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Home Archive for category "International Criminal Law"

Negotiating Justice at the ASP: From Crisis to Constructive Dialogue

Published on November 29, 2016        Author: 

During the past two weeks, the world came together in The Hague for the Assembly of States Parties (ASP), the annual diplomatic meeting on the International Criminal Court (ICC). It was clear that this session would be crucial for the ICC’s future and its place in the geopolitical constellation. The weeks before had thrown the Court in somewhat of an existential crisis: Burundi, South Africa and Gambia announced their withdrawal from the ICC. Several other states, such as Uganda and the Philippines, announced that they might leave too. Russia withdrew their signature from the ICC a day after the Court called the Crimea situation an international armed conflict and occupation. And US mobilization against the ICC is anticipated following the Court’s announcement that it may soon open full investigation into Afghanistan, including US conduct. Not surprisingly therefore, the main theme of this year’s ASP was (African) critique, cooperation and complementarity (i.e. the relationship between national prosecutions and the ICC as a court of last resort). However, observers of this year’s ASP also noticed a remarkable turn of attitude, language, tone and body language by representatives of the ICC and most state delegations. Like Darryl Robinson pointed out in his post, the discussion on the critique of the ICC during this ASP session could be described as “groundbreaking” – open, respecting and mature – while “constructive”, “dialogue” and “common ground” became this year’s sound-bites.

How the ICC and the project of international criminal justice will affect and be affected by this shifting geopolitical landscape remains to be seen. However, more than merely a technocratic meeting between states on the management and budget of the institution, the ASP functions as an annual diplomatic ritual where stakeholders reconstitute and renegotiate the ICC, and the international criminal justice field more broadly. It is a site of continuous (re)negotiation and political proxy battles on the law and politics, practice and development of international criminal justice. As such, the ASP offers an ethnographic prism for understanding how consensus and contestation in global deliberation processes forms part of the identity project of international criminal justice.

Lost amid polarization

This year was decidedly different from previous years, when polarization grew increasingly tense. Read the rest of this entry…

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Africa and the ICC: Shattered Taboos, and the Status Quo

Published on November 23, 2016        Author: 

The withdrawals of South Africa, Burundi and the Gambia from the International Criminal Court have generated much discussion in the past few weeks. After shock and despondency, commentary has shifted to new and creative ways of dealing with the ICC’s ‘Africa problem’. Some of these proposals are truly original, for instance Ambassador Scheffer’s suggestion that African states should target non-African states to balance the ICC’s case docket, while others strike a more measured (Mark Kersten here) but ultimately hopeful (Darryl Robinson here and here) tone about the prospects of salvaging the international criminal justice project. As far as I can tell, only one commentator engages head on with the full spectrum of critiques and problems that the ICC faces, making Tor Krever’s conclusion that “little has changed” particularly noteworthy. In this post, I want to suggest that the conflict between the ICC and African states has poisoned the debate in subtle and imperceptible ways that raise troubling questions about the future of the international criminal justice project.

The Shifting Debate

The debate about the ICC’s role in Africa has certainly shifted in the past few weeks. At the ongoing Assembly of States Parties (ASP) in The Hague, civil society representatives are, for the first time, voicing formerly taboo opinions, like the suggestion that Al-Bashir may benefit from immunity under customary international law. To be sure, civil society groups are not endorsing this legalistic argument, which has long been put forward by prominent scholars of international law (see here, here and here), but it is certainly a revolution of sorts when NGOs acknowledge that the African Union (AU)’s denunciation of the ICC’s conflicting case law on Head of State immunity is more than just Machiavellian politicking aimed at shielding dictators.

Whatever the merits of the AU and South Africa’s legalistic position on Bashir’s immunity, it is hard to deny that a major shift may be afoot when the ICC’s President rushes to welcome the justice minister of South Africa, which just repudiated its membership of the Court, in a last-ditch attempt to accommodate his government’s concerns and, hopefully, find a way out of ‘the impasse’.

This is not to suggest that the ICC should not engage in diplomacy. If there is a way to change South Africa’s withdrawal decision, then the Court’s representatives should certainly try. However, in the rush to stem the prospect of diminished membership, the ICC must not lose sight of the bigger picture and the ideals on which it is premised. The real danger is that the ICC vs. Africa quagmire has already irreversibly changed the debate, with negative long-term consequences for the Court and its supporters. Read the rest of this entry…

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Feeling a Way Forward for International Justice – ICC, Africa and the World

Published on November 22, 2016        Author: 

As we all know, 2016 has seen, on many fronts, a surge of isolationism and nativism, as well as a tendency toward polarization and “post-factual” rhetoric. Against this global backdrop, there were reasons to expect dramatic confrontations at the ongoing session of the International Criminal Court’s (ICC) Assembly of States Parties (ASP). In recent years, discontent with the ICC has been growing, particularly among African states, culminating in three prominent withdrawals (on which see my previous post). If badly handled, the situation could lead to further withdrawals and setbacks for international criminal law.

The ASP has instead offered a promising glimmer of light in the gloom of 2016. On Friday 18 November the ASP held an “open bureau meeting” on the ICC-Africa relationship. The maturity of the discussion renewed my hope in the possibility of respectful listening, open-mindedness, sincere engagement and meaningful change.

Rather than drawing battle lines, delegations from all latitudes generally reached out in a very open and reflective manner. The sensationalist, oversimplified criticisms that are common in media and even academic commentary made little appearance. Instead, delegations generally advanced grounded, focused concerns and possible solutions.

For a great many states, the current impasse was a wakeup call. Instead of reacting to all concerns as attempts to undermine the Statute and the rule of law, delegations showed a sincere readiness for real conversations about the future of international justice. International justice must be inclusive justice. African states helped shape the Rome Statute system and will continue to do so. International justice must also be living and organic, adapting to experience. As the Ugandan delegate explained, a legislature can revise a rule based on experience and changed conditions, which is not necessarily to disrespect the original rule.

The discussion was at times moving. Some delegates at the podium shared heartfelt thoughts, their feelings of connectedness to other states parties, and even the personal tragedies that led them to support international criminal justice. Read the rest of this entry…

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Russia’s Withdrawal of Signature from the Rome Statute Would not Shield its Nationals from Potential Prosecution at the ICC

Published on November 21, 2016        Author: 

On 16 November 2016, the president of the Russian Federation issued bylaw № 361-rp “On the Russian Federation’s intention not to become a party to the Rome Statute of the International Criminal Court”.

It follows from paragraph 1 of the bylaw that the Ministry of Justice of the Russian Federation, after consultations with a number of State organs, including the Supreme Court, the Prosecutor-General’s Office and others, suggested to:

dispatch a notification to the Secretary-General of the United Nations about the Russian Federation’s intention not to become a party to the Rome Statute of the International Criminal Court, which was adopted by a Diplomatic Conference of Plenipotentiaries under the auspice of the UN in the city of Rome, on 17 July 1998, and which was signed on behalf of the Russian Federation on 13 September 2000.

As Russia’s Ministry of Foreign Affairs (MFA) explained in an official statement on the same day, the most immediate effect of bylaw № 361-rp would be the withdrawal of Russia’s signature of 13 September 2000 from, and not proceeding to the ratification of, the Rome Statute in accordance with its Article 126. Officially, the MFA criticised the ICC for its alleged lack of efficiency and independence, biased attitude and high cost:

The ICC as the first permanent body of international criminal justice inspired high hopes of the international community in the fight against impunity in the context of common efforts to maintain international peace and security, to settle ongoing conflicts and to prevent new tensions.

Unfortunately the Court failed to meet the expectations to become a truly independent, authoritative international tribunal. The work of the Court is characterized in a principled way as ineffective and one-sided in different fora, including the United Nations General Assembly and the Security Council. It is worth noting that during the 14 years of the Court’s work it passed only four sentences having spent over a billion dollars.

In this regard the demarche of the African Union which has decided to develop measures on a coordinated withdrawal of African States from the Rome Statute is understandable. Some of these States are already conducting such procedures.

Read the rest of this entry…

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The Legal Protection of Mass Graves

Published on November 18, 2016        Author: 

Mass graves have been found all around the world, in Uganda, Burundi, The Philippines, Nepal and India. Yet, there is no definition of the term ‘mass grave’ in international law. Our common understanding is derived from pictures of history and news reports according to which ‘mass grave’ describes a site containing a multitude of human remains; a site of harrowing human loss, suffering and unimaginable acts of cruelty.

An Associated Press study published on 30 August 2016 revealed that 72 mass graves have been located in Iraq and Syria as a result of the occupation of the Islamic State. The estimated number of bodies inside them, based on both excavation findings as well as memories of witnesses and survivors, ranges from 5200 to a staggering 15000. The majority of these mass graves were located in Iraq, most in territory too dangerous to excavate. In Syria, once certain areas are secure enough to enter, more previously unreported sites may be identified.

A week after the Associated Press publication, the Group of the Progressive Alliance of Socialists & Democrats began to advocate for European support to preserve mass graves in Iraq and Syria. Despite this, the response of the international community has been as scarce as academic reflections on the topic.

The protection of mass grave sites and their content is paramount since they provide invaluable information for both the prosecution of perpetrators of international crimes, and the realisation of the right to truth, effective remedies and reparation for families of the deceased. In the following, we draw attention to the lack of legal protection, and the dire need for legal regulation and its effective implementation with respect to the treatment and maintenance of mass grave sites. Read the rest of this entry…

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Guilty but Free: The ICC Renders its First Contempt Case Judgment

hOn 19 October 2016, the Trial Chamber VII of the International Criminal Court issued its verdict in the case The Prosecutor v Jean-Pierre Bemba Gobo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu, Narcisse Arido (Bemba et al.) – the ICC’s first contempt case.

The five men had been accused of offences against the administration of justice under Article 70 of the Rome Statute (RS) in the Main Case against Jean-Pierre Bemba. They were (to different degrees) found guilty by the Chamber for corruptly influencing 14 defence witnesses in the Main Case, presenting false evidence, and giving false testimony when under an obligation to tell the truth. Mr Bemba (the accused in the Main Case), his lawyer Mr Kilolo, Bemba’s defence team’s case manager Mr Mangenda, Mr Babala, a political ally of Bemba’s, and Mr Arido, Bemba’s financier, had briefed the witnesses, provided them with false testimonies, payed them and promised them relocation to Europe if they testified in Bemba’s favour.

Attending the hearing on Wednesday 19 October, the authors of this post did not expect to see more than a normal delivery of judgment. Eventually, however, we listened to a vivid argument on whether to remand in custody of the ICC’s detention centre the accused Mr Kilolo, Mr Mangenda, Mr Babala and Mr Arido, while awaiting their sentencing judgment. Bemba, having been sentenced to 18 years of imprisonment in the Main Case, is in custody anyway. Both, the Prosecution and the Defence presented their arguments as to whether detention was appropriate and allowed by law, in which the latter deplored – through a noteworthy “we do not dine with the judges” – that, unlike the judges, they had not been informed of the Prosecution’s intention to file this application. Eventually, the Chamber rejected the application, relying on its assessment that there was no risk that the four accused wouldn’t show up to any subsequent Court meeting.

This post examines the issues mentioned during the discussion between the Prosecution and the Defence. It seeks to clarify in which circumstances an accused can be detained after a conviction, although a sentence has not yet been pronounced. Read the rest of this entry…

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Take the Long View of International Justice

Published on October 24, 2016        Author: 

Last week there was much coverage about South Africa’s intended withdrawal from the Rome Statute of the International Criminal Court (ICC), as well as potential withdrawals by other states, including Burundi. The dominant theme in the media coverage was that this is a “major blow” or “devastating blow” to the ICC. I am hesitant about some of the gladiatorial metaphors. I suggest there are differences between a setback for the International Criminal Law (ICL) project, for human beings, and for the ICC. I also suggest a measured perspective, placing these events within a very long, turbulent, contested tale of human governance.

Historic perspective on a long-term project

Our lives are short and history is long. The tumults of our times loom correspondingly large to us, but the longer view can put crises in context. For example, many current criticisms of ICL reflect impatience and indignation that a fully-fledged, mature, international rule of law with global compliance has not been built in a few years. But it took centuries to produce current configurations of state governance and rule of law – the idea that human institutions might try to provide a better approximation of justice in human lives. And even after centuries of practice, errors, disasters, lessons and successes, the state law system is very, very far indeed from perfected. ICL itself is one effort to ameliorate to those flaws. We happen to be alive during a significant renovation in a centuries-old system.

My point is: past innovations in human governance took centuries, not months. They involved much contestation. If people see ICL in historical perspective, they will not expect quick fixes or linear progress. ICL entails politically, sociologically, legally and intellectually difficult and contestable changes to entrenched systems. There will be lessons to learn and criticisms to absorb. If it succeeds, it will do so after lurches, setbacks and pushbacks. Comfortingly, on the biggest scale, human governance has been moving in a positive direction for a long time. Read the rest of this entry…

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International and Domestic Implications of South Africa’s Withdrawal from the ICC

Published on October 24, 2016        Author: 

In the early hours of Friday 21 October 2016, it was revealed that the South African Minister of International Relations and Cooperation had issued official notification of South Africa’s withdrawal from the International Criminal Court (a copy of the instrument of withdrawal can be seen here). This was received by the UN Secretary-General, starting the prescribed 12-month notice period for withdrawal from the Court (Article 127 of the Rome Statute). This announcement came as a shock to many in the legal community in South Africa and abroad. While the South African government had expressed unhappiness with the Court, and had previously threatened withdrawal, there was no public indication that an official decision to withdraw had been taken, nor had any public consultation taken place on the matter in Parliament or elsewhere.

This decision will have significant implications for the legal landscape in South Africa, and likely also for the position of other African States in the ICC. It is also possible that it will lead to the fundamental weakening of the ICC itself. Here I consider various implications of this sudden announcement, both from the domestic South African and international perspectives. First, I address the status of the instrument of withdrawal in international and domestic law. I then look at the impact of withdrawal for the enforcement of international criminal law in South Africa. Finally, I address some possible consequences for the ICC itself.

Is it Legal?

The first question is whether the notice of withdrawal signed by the Minister is lawful, from the lenses of international and domestic law, given that this was a purely Executive act that was not preceded by any form of public or parliamentary consultation, let alone approval. Similar questions arise in the context of the Brexit ‘Article 50’ debate. While it seems that the instrument of withdrawal is likely sufficient to take effect in international law, it is doubtful that the domestic legal requirements have been adhered to. Read the rest of this entry…

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South African Withdrawal from the International Criminal Court – Does the ICC Statute Lead to Violations of Other International Obligations?

Published on October 22, 2016        Author: 

The relations between the International Criminal Court (ICC) and African States have come to a head once again this week with situation now at its lowest point. The government of South Africa has announced (see here) that it is withdrawing from the Statute of the ICC and that it has submitted its instrument of withdrawal to the UN Secretary General in accordance with Article 127(1) of the ICC Statute. Under that provision, the withdrawal shall take effect one year after the date of receipt of the notification of withdrawal (unless the state specifies a later date in the notification). South Africa, which had previously been a strong supporter of the Court, thus becomes the first state to withdraw from the ICC. To add to the sense of crisis, the South African withdrawal follows on from the decision over the past couple of weeks of the President and Parliament of Burundi to also withdraw from the ICC Statute. Although the Burundi Parliament has voted to do this and the President has signed a decree to this effect(see here and here), Burundi does not appear to have, as yet, notified the UN Secretary-General of its intention to withdraw to the ICC. There are fears that other African states will follow suit. [Lost in all of this was the news that, by contrast, another African country, Gabon, referred the situation in that country to the ICC less than4 weeks ago (see here for statement of ICC Prosecutor).]

South Africa’s Reasons for Withdrawal

The South African notification of withdrawal has not yet been released publicly but we have a detailed statement from the Minister of Justice regarding the reasons behind the withdrawal. One of the major grounds on which the South African government justifies its withdrawal is that:

“the Rome Statute [and the domestic Act implementing it] compel South Africa to arrest persons who may enjoy diplomatic immunity under customary international law but who are wanted by the court.”

The government claim is thus that complying with the ICC Statute will cause South Africa to breach its obligations to other states. The Minister suggests that resolving this conflict of obligations is important, because it undermines the ability of South Africa to work towards peaceful resolution of disputes and to promote the important objective of bringing conflicts to an end. The Minister went on to say that: “South Africa has had to do so [arrest people wanted by the ICC], even under circumstances where we are actively involved in promoting peace, stability and dialogue in those countries”. He stated further that:

“We wish to give effect to the rule of customary international law, which recognises the diplomatic immunity of heads of state and others in order to effectively promote dialogue and the peaceful resolution of conflicts wherever they may occur, particularly on the African continent”.

Does the ICC Statute Require States to Violate the Customary International Law of Immunity?

I do not intend to address the broader peace vs justice debate in this post (Is South Africa right to seek to pursue peace over immediate claims to justice in particular situations?) Reasonable minds can disagree on this. However, I wish to question the claim by South Africa that the Rome Statute requires it to violate customary international law of immunity. Read the rest of this entry…

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The Airstrike Killing Members of the Syrian Armed Forces was not an International Crime

Published on October 19, 2016        Author: 

The US coalition formed to combat the Islamic State was recently involved in a drone strike in Syria which mistakenly killed at least 62 Syrian government troops. The air strike involved US, British, Danish and Australian forces. An investigation into how the incident occurred is currently underway.

The attack was described by Syria’s president Bashar al-Assad as ‘flagrant aggression’ and led to the Russians calling an emergency meeting of the UN Security Council. Suggestions have since been made by some that at least the British nationals involved in the attack could face the possibility of an International Criminal Court (ICC) investigation.

The purpose of this post is not to explore the likelihood or unlikelihood of an ICC investigation. Rather, it is to consider whether an international crime has been committed in attacking and killing the Syrian soldiers.

There are three possibilities: firstly, that the act was a war crime; secondly, that it was a crime against humanity committed during an armed conflict; and thirdly, that it was a crime against humanity committed during peacetime. Read the rest of this entry…

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