As reported in Serbian and Croatian media yesterday, and officially confirmed by the Court today (press release). As for what the Court will decide, it will most likely find that no crime in the conflict in Croatia constitutes genocide, that it lacks the jurisdiction to decide on the responsibility of either state for any other crime, and that accordingly it has to reject both Croatia’s claim and Serbia’s counterclaim. By ‘most likely’ read ‘virtually inevitable, so that I would fall of my chair if the Court did anything else’ – see more here. We’ll see whether the Court will say something interesting on various ancillary substantive questions before it reaches its main conclusion.
The ICC’s Office of the Prosecutor recently released its annual report on preliminary examinations. The big news, analyzed by many commentators, is that the OTP is conducting a preliminary examination of alleged crimes of torture by U.S. forces in Afghanistan. In the highly unlikely eventuality that the OTP does not close the investigation on one of a variety of procedural grounds, it could be the Court’s first confrontation with a powerful Western state, and its first proceedings against nationals of a non-member state for actions on the territory of a member state.
But the U.S. is not the only major power and non-state party that the report throws down the gauntlet to. The 2014 report announced that a full investigation of potential Russian crimes committed in Georgia may be opened “in the near future.” Since 2008, the OTP has been investigating “the situation in Georgia,” that is, the 2008 Russo-Georgian war, that resulted in Russia cementing its control over occupied parts of Georgia while also conquering new territory. The investigation focuses on ethnic cleansing by Russian-backed forces of ethnic Georgians from Russian-occupied territory in Georgia (South Ossetia). The OTP has concluded that there is a reasonable basis to believe that these actions “amounted to the crime against humanity of forcible transfer of ethnic Georgians under article 7(1)(d).”
‘Temporary Exclusion Orders’ and their Implications for the United Kingdom’s International Legal Obligations, Part II
This is Part II of a two-part post, a modified version of a legal opinion submitted to the UK Parliament’s Joint Committee on Human Rights on the proposal to introduce temporary exclusion orders of British citizens suspected of engaging in terrorist activities. Part I discussed the implications of temporary exclusion orders (TEOs) for the UK’s international legal obligations to British citizens. This Part discusses the implications for its obligations to other States.
Responsibility to other States
There is no justification in international law for the exclusion, even temporarily, of British citizens from the United Kingdom. So far as such exclusion engages the legal interests of other States, there may be some scope for agreements with the UK. However, no such agreement can avoid the UK’s international legal obligations towards its citizens – they continue and cannot be outsourced.
The unstated premise of ‘host State’ assistance is, necessarily, the existence of an agreement between the United Kingdom and any such State. The Home Office Impact Assessment on temporary exclusion orders refers briefly and on just a few occasions to ‘host’ States, to describe those which will be expected to carry the burden of the TEO policy, including the risks which presumably accompany harbouring individuals suspected of terrorist associations. The Impact Assessment refers repeatedly to the risk which terrorism might pose to the United Kingdom, but not at all to any such risk to ‘host’ States. Moreover, apart from one reference to discussions with France in relation to juxtaposed controls, neither this document nor any other mentions the necessity for agreements, or considers the elements which might well be considered essential. Read the rest of this entry…
Leadership accountability or symbolic responsibility?
Using nationality jurisdiction to focus on the accountability of ‘foreign fighters’ is likely to entail a fundamental shift in prosecutorial policy. The OTP has traditionally defended a focus on leadership accountability, i.e. prosecution of ‘those who bear the greatest responsibility for the most serious crimes’. This concept was a cornerstone of prosecutorial strategy during the Ocampo era, and has been applied in early prosecutorial practice (e.g., Prosecutorial Strategy 2009-2012). The OTP has slightly adjusted its strategy in its Strategic Plan 2012-2015 (para. 22) where it recognized the need to gradually build cases upwards. It defended a bottom-up approach based on ‘limitations in investigative possibilities and/or a lack of cooperation and the required evidentiary standards’. It argued that the Office would first investigate and prosecute ‘a limited number of mid- and high-level perpetrators’ in order to ultimately ‘have a reasonable chance to convict the most responsible’. It also noted that the Office would consider ‘prosecuting lower level perpetrators where their conduct has been particularly grave and has acquired extensive notoriety’ since such a strategy would ‘in the end be more cost-effective than having unsuccessful or no prosecutions against the highest placed perpetrators’.
It is tempting to say that the International Criminal Court (ICC) should open a preliminary examination into the violence of the self-proclaimed Islamic State of Iraq and Syria (‘Islamic State’, hereinafter IS). IS has branded itself as an enemy of the West. Its atrocities are attacks on the very foundation of human dignity and conceptions of civilization. They shock the conscience of humankind. Some of the rhetoric denies the very norms and rules on which international law has been built for centuries. Evidence of atrocities is displayed publicly to illustrate power and spread fear. Records indicate that high numbers of nationals of ICC State Parties have been mobilized as so-called foreign fighters, including nationals of Western countries, North Africa (e.g., Tunisia) and the Middle East (e.g., Jordan). The ICC is in a position of vulnerability. It is under perceived pressure to ‘get out of Africa’.
At first sight, all of the factors make IS a perfect target for ICC intervention. Prosecutor Bensouda noted in an interview on 20 November that the Office of the Prosecutor (OTP) would consider options of ICC engagement. ICC assessment is at an early stage, i.e. Phase 1 of preliminary examinations where the OTP makes an initial assessment of all information to analyse the seriousness of information received and identify the crime base. But taking IS crimes to the ICC poses particular problems that deserve careful consideration. Starting it on a wrong premise might compromise some of the very foundations on which the legitimacy of the ICC is based.
Some Reflections on the Legal Treatment of Terrorism: Marking the 11th Seminar of the Latin American Study Group on International Criminal Law
At its last seminar, which took place in Lima from 27 to 29 October 2014, the Latin American Study Group on International Criminal Law (Link KAS/Link CEDPAL) discussed the complex phenomenon of terrorism in its Latin American context. Taking group members’ presentations as its starting point, the debate focused on how this phenomenon is being dealt with in some Latin American states and the transnational and international issues arising in consequence. The following main problems were identified: the lack of conceptual clarity in the definition of terrorism as a criminal offence, the flexibilisation of the principle of legality, the disproportionality of punishments, forms of procedure that seem dubious from the perspective of the rule of law, and a populist, warlike discourse (“guerra al terrorismo”). The most important conclusions were included in the so-called Declaration of Lima, which is printed at the end of this brief report.
Over and above aspects of criminal law in a narrower sense, the fight against terrorism challenges states from a criminological and socioeconomic point of view, as well as from the perspective of criminal policy. Furthermore, the political populist discourse on terrorism has influenced the way terrorism is treated in criminal law. This topic’s complexity starts with the lack of conceptual and terminological clarity concerning what is actually to be understood as terrorism and accordingly what is to be prosecuted and punished. The lack of a definition of terrorism that has been mutually agreed upon at an international level has led to (the possibility of) very different acts – ranging from social protest to the undifferentiated use of weapons of great destructive power – being called terrorist.
In the Declaration of Lima, the study group explicitly acknowledges that terrorism is a serious crime; however, this does not free the states in question from their obligation to observe the boundaries set by the rule of law. This is why it is necessary to create a very precise legal definition of the relevant punishable conduct and observe the principle of proportionality when determining the extent of the punishment and the concrete sanction to be applied. Furthermore, no special jurisidiction may be created. In addition, the principles and rules of fair trial under the rule of law must apply in the same way they do to other criminal offences. Read the rest of this entry…
Geoff Corn and Guglielmo Verdirame take part in Transatlantic Dialogue on International Law and Armed Conflict
This week Professors Geoff Corn (left, South Texas College of Law) and Guglielmo Verdirame (right, Kings College London & barrister at 20 Essex Street) contributed pieces in the joint blog series arising out of the Transatlantic Workshop on International Law and Armed Conflict held in Oxford this past July.
Geoff Corn’s piece, “Squaring the Circle: The Intersection of Battlefield Regulation and Criminal Responsibility”, was posted at Lawfare at the start of this week. In this thoughtful pose, Geoff says:
“I sought to highlight what I believe are several evidentiary and institutional complexities associated with subjecting commanders and other operational decision-makers to criminal accountability for battle-command judgments – complexities that will become more significant as cases focus increasingly on complex operational decision-making, particularly in relation to targeting.”
He raises a number of important issues relating to the feasibility of international criminal prosecutions to produce credible accountability decisions in relation to battlefield decision-making. One question he addresses, which is particularly novel but really important is this:
“[A] complicated aspect of criminal prosecution based on alleged unlawful targeting decisions is the relationship between LOAC/IHL presumptions and criminal burdens of proof. The presumption of innocence an axiomatic component of any fundamentally fair trial, and imposes on the prosecution the burden of production and the burden of persuasion. However, several LOAC/IHL targeting rules are based on presumptions which, when applied in the criminal context, arguably shift the burden of production to the defense.”
At the the end of the week, Guglielmo’s piece, “Taming War through Law – A Philosophical & Legal Perspective” , was posted on InterCross (the blog of the ICRC. Guglielmo begins his post in this way:
“The relationship between theory and practice in international law eludes easy explanations. In the history of international law there are examples of ideas shaping practice. But at times the phenomenon of international law – with its complex mix of state practice, adjudication and politics – finds directions not foreseen by any theory.
The application of human rights law to armed conflict may be a case in point. It emerged over the last two decades from the decisions of international and domestic courts without being preceded by a reflection – by jurists, policy-makers or others – on how human rights could contribute to regulating armed conflict. Can this development be accommodated within the system of international law or does it in some way challenge its architecture?”
His post then examines the work of Kant, Grotius and Hobbes, together with decisions of the European Court of Human Rights and the UK courts, in his survey of the question whether human rights law should apply to armed conflicts.
On 7 August 2014, the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) delivered its second trial judgment. This lengthy decision addressed the criminal responsibility of the two remaining ‘senior leaders’ of the Democratic Kampuchea regime that are the subject of Case 002: Noun Chea (Pol Pot’s second in command) and Khieu Samphan (the President of the State Presidium and the ‘public face’ of the regime). Both were convicted of crimes against humanity and sentenced to life imprisonment, the maximum penalty available under the ECCC Law. The Chamber also endorsed a number of reparations projects requested by civil parties. The judgment is significant for its detailed consideration of one of the most vivid images of the Khmer Rouge era – the evacuation of Phnom Penh and other cities, and whether this population movement was contrary to international law.
Case 002 concerns crimes committed throughout Cambodia during the entire period of the Democratic Kampuchea regime, which existed from 17 April 1975 to 6 January 1979. It is one of the most complex cases to be conducted before an international or internationalised criminal tribunal. Recognising this, as well the uncertain nature of funding for the ECCC and the fear that the advanced age of the accused meant there was a real possibility that they would not live to judgment, the Trial Chamber severed Case 002 into separate trials in September 2011. The judgment delivered in August is the first in this series of trials (hence Case 002/01), and is limited to considering three crime ‘sites’ only: the evacuation of the population of Phnom Penh (and other cities) into the countryside in April 1975 (first population movement); a further movement of the population between various zones from September 1975 to at least December 1977 (second population movement); and the execution of former Khmer Republic officials and soldiers in connection with the first population movement, in particular the executions committed at Tuol Po Chrey in April 1975. All other crime sites and policies are to be considered in future ‘mini-trials’. Read the rest of this entry…
Jean-Baptiste Maillart is a PhD Candidate at the University of Geneva and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights.
Article 12(2)(a) of the Rome Statute provides that the ICC may exercise its jurisdiction over a crime if the “State on the territory of which the conduct in question occurred” is a party to the Statute or has accepted the Court’s jurisdiction by a declaration. It has become commonplace to paraphrase that provision as stating that the Court may exercise its territorial jurisdiction over a crime that has been committed within the territory of a State Party. For instance, the late Judge Hans-Peter Kaul wrote [p. 607] “if a core crime is committed by an individual in the territory of a State Party to the Statute, the ICC will have jurisdiction” (see also the commentaries of Schabas [p. 285], Bourgon [p. 564] and Haupais [p. 582]). The Court itself uses the exact same wording: “[…] under article 12(2) of the Statute one of the two alternative criteria must be met: (a) the relevant crime was committed in the territory of a State Party or […] (b) the relevant crime was committed by a national of a State Party […]” (ICC-01/04-01/07-262 [§. 14]); see also for instance ICC-02/11-14 [§. 187] or ICC-01/09-19-Corr [§. 175]).
However, a careful and literal reading of Article 12(2)(a) leads to a different conclusion. The Court has jurisdiction over a crime when “the conduct”of this crime occurred on the territory of a State party, not when the crime was committed there. Some scholars addressing Article 12 (e.g., Wagner [p. 485] and Vagias [p. 53]) have pointed out the exact terminology used, but none have considered whether it could have any practical effect. This post considers, on the basis of the traditional interpretation of the term “conduct”, a possible challenge to the ICC’s jurisdiction over certain cross-border crimes where, if Article 12(2)(a) said “commission”, it would undoubtedly have jurisdiction. In other words, it could be argued that it is incorrect to read “conduct occur[ing]” on certain territory as equivalent to “commission of a crime” on that territory. The post also proposes a counter-argument in favor of jurisdiction. Read the rest of this entry…
Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Israel Treiman Faculty Fellow at Washington University School of Law and has been the Director of the Whitney R. Harris World Law Institute since 2007.
Douglas J. Pivnichny, JD, is the Whitney R. Harris World Law Institute Fellow at Washington University School of Law in St. Louis, Missouri, and a masters candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.
The Crimes Against Humanity Initiative and Recent Developments at the ILC
On Thursday, July 17, the International Law Commission moved the topic of crimes against humanity from its long-term to its active agenda and appointed Professor Sean D. Murphy as Special Rapporteur. The Rapporteur’s charge is to prepare a First Report, which will begin the process of proposing Draft Articles to the Commission for its approval. The expectation is that, in due course, the Commission will send a complete set of Draft Articles for use as a convention to the United Nations General Assembly. This was a crucial step in filling a normative gap that has persisted despite the development of international criminal law during the past decades: the absence of a comprehensive global treaty on crimes against humanity.
The Commission’s interest in this topic was sparked by the work of the Crimes Against Humanity Initiative, launched by Professor Leila Sadat of Washington University School of Law in 2008. The Initiativeset out to study the current state of the law and sociological reality regarding the commission of crimes against humanity and to address the gap in the current international legal framework by drafting a global, comprehensive model convention on crimes against humanity. Ambitious in scope and conceptual design, the Initiative has been directed by a distinguished Steering Committee and consulted more than 300 experts in the course of elaborating and discussing the Proposed International Convention for the Prevention and Punishment of Crimes Against Humanity (Proposed Convention), published by Cambridge University Press in English, French and Spanish in Forging a Convention for Crimes Against Humanity (1st ed., 2011; 2nd ed., 2013). Arabic, Chinese, German and Russian translations are also available. Read the rest of this entry…