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The Other Poisoned Chalice: Unprecedented Evidentiary Standards in the Gbagbo case? (Part 3)

Published on November 6, 2019        Author: 

In this three-part series I seek to draw attention to legally-unprecedented and epistemologically-unsound evidentiary standards emerging at the ICC, particularly in the Gbagbo case.  The mainstream reaction to the Gbagbo case has been to accept the narrative that the problem lies entirely with evidence.  However, when the majority derides the “questionable quality of much of the evidence” (§1608), it speaks from a lens of Cartesian standards. If one reads the judgment instead through the lens of more typical legal standards, the evidence is harrowing.  Thousands of diverse items of evidence – eye-witnesses, videos, insiders, experts, and forensic and documentary evidence – attest to hundreds of instances of killing, wounding, raping, torturing and burning of civilians by police and other pro-Gbagbo forces.

At Nuremberg, Robert Jackson warned that giving the defendants an unfair trial would be a poisoned chalice for the tribunal itself.  My concern is that opposite extreme is also a poisoned chalice.  An exclusive focus on the interests of the accused, to the exclusion of all other considerations, leading to rarified and ungrounded standards, will also collapse the system.  If unchecked, these standards can only lead to repeated collapses of investigations and prosecutions.  We are at an interesting moment, because scholars are rightly warning against ‘crisis narratives’, and I myself have appealed for less alarmism.   Nonetheless I think that evidentiary standards are now one of the most crucial topics for study and reform.

The previous two posts (see Part I here and Part II here) gave only a cursory outline of problematic approaches to evidence and examples thereof. I will now touch on two related points, (1) evidentiary expectations for crimes against humanity and (2) investigative criticisms that overlook the applicable legal regime, and then I will conclude. Read the rest of this entry…

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The Other Poisoned Chalice: Unprecedented Evidentiary Standards in the Gbagbo Case? (Part 2)

Published on November 6, 2019        Author: 

My aim in this three-part series is to start a conversation about unusual and problematic evidentiary standards emerging at the ICC.  These standards flow from a commendable impulse to uphold the highest standards, but they entail an unprecedented and unattainable exactitude. In my view, if these standards take hold, they will result in the repeated crashing of complex cases, making them especially poorly suited for precisely the types of cases the ICC is mandated to deal with. 

In my view, the more common and appropriate approach, seen in national and international practice, is even-handed, holistic, experiential and practical.  The experiential approach draws on human experience.  It employs sound methods of reasoning, such as triangulation, extrapolation, interpolation, and inference to best explanation, and thus it is can work judiciously with patterns and inferences.  It is also practical: it bears in mind feasibility and procedural economy.

For brevity, I will call the alternative, emerging approach the “Cartesian” approach. I introduced its features in part 1 of this series, such as its hyperscepticality, atomism, and fixation with certainty and speculative doubts.  In this post I will give some additional examples of problematic evidentiary approaches as seen in the Gbagbo trial decision.  As the judgments are over 1300 pages, I am only able to outline some of the concerns and some examples in the most general and cursory.  My hope is to trigger an invigorated discussion of international criminal evidence law.

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The Other Poisoned Chalice: Unprecedented Evidentiary Standards in the Gbagbo Case? (Part 1)

Published on November 5, 2019        Author: 

The aim of this post is to start a conversation about unusual evidentiary standards emerging in some judgments at the ICC.  Although the underlying impetus is commendable, these standards pose legally unprecedented and epistemologically unsound demands.  Remarkably, these novel evidentiary approaches, which depart significantly from national and international practice, have not yet triggered much conversation.  As recent cases (such as Gbagbo) have ended in acquittals, the Court-watching community has largely simply echoed the judicial criticisms of the evidence, and hence blamed inadequate investigations.  While investigative improvements are likely part of the solution, any serious effort to repair the ICC has to consider these evidentiary standards.  These standards will significantly increase the costs and delays of ICC proceedings.  In cases of any complexity, the standards can only result in failed cases.  An invigorated sub-discipline – international criminal evidence law – is urgently needed.

In this three-part series of posts, I will focus on the Gbagbo acquittal judgment.  Douglas Guilfoyle’s thoughtful ‘tale of two cases’ advances a hypothesis that the different outcome between the Gbagbo acquittal and Ntaganda conviction is because the latter focused on an easier, smaller case.  That may be true, but I want to place alongside that another hypothesis, that the difference between the two outcomes may in part be the very different approaches by the judges.

I open with a word of sympathy for judges.  At an earlier stage of international criminal law, Tribunal judges were often criticized by academics (including me) for adopting approaches that were too pro-conviction and that overlooked rights of the accused.  Hence it is entirely understandable that judges and legal officers may have lurched in the other direction, with an eagerness to demonstrate their unparalleled care for the accused. 

The problem is when the zeal for impeccable standards swings too far, and produces a method that is so rigid, formalistic, and hypersceptical that it loses sight of substance and feasibility. Read the rest of this entry…

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Five Procedural Takeaways from the ICC’s 18 July 2019 Lubanga Second Reparations Judgment

Published on September 13, 2019        Author:  and

On 18 July 2019, the International Criminal Court (ICC) Appeals Chamber issued a landmark judgment upholding a USD 10,000,000 collective reparations award for victims in the case against Thomas Lubanga Dyilo. In this second—and hopefully final—Appeals judgment on reparations in the Lubanga case, the Appeals Chamber largely confirmed the methodology that Trial Chamber II employed in its 15 December 2017 decision setting the amount of Lubanga’s liability for reparations (“Lubanga Reparations Award”). At the same time, the Appeals Chamber reversed Trial Chamber II’s rejection of 48 victim applicants for reparations, who will now be entitled to re-apply for collective reparations benefits before the Trust Fund for Victims (TFV).

Overall, we suggest that the 18 July 2019 Lubanga judgment confirms the large discretion that Trial Chambers retain in choosing a procedure and methodology to calculate reparations awards and determine a convicted person’s liability for reparations. At the same time, it makes clear that such discretion is not unfettered. To this end, the judgment presents several “ground rules” that Trial Chambers must follow, moving forward.

This piece outlines five procedure-related takeaways that arise from the Appeals Chamber’s 18 July 2019 Lubanga judgment, which will impact the structure and function of the ICC’s evolving reparations regime. By situating the Lubanga judgment alongside judgments recently issued in the Al Mahdi and Katanga cases, we aim to highlight points of convergence and divergence in the case law. Because we do not survey all questions asked and answered in the 18 July 2019 Lubanga judgment, we hope that this piece will complement syntheses of the judgment that other commentators have produced in recent weeks (for instance, see Wairagala Wakabi’s post here; see also Luke Moffett’s and Janet Anderson’s recent commentaries here).

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An Unforeseen Pandora’s Box? Absolute Non-Refoulement Obligations under Article 5 of the ILC Draft Articles on Crimes Against Humanity

Published on May 20, 2019        Author: 

Introduction

In 2013, the International Law Commission (ILC) added to its long-term work programme the topic of a convention on the prevention and punishment of crimes against humanity. This proposed convention is meant to join sibling conventions addressing genocide and war crimes and would stand in the tradition of other conventions addressing serious crimes, such as torture and enforced disappearance. So far, the ILC has adopted 15 Draft Articles which include a wide range of obligations for future State parties regarding the prevention of crimes against humanity, as well as on measures relating to domestic criminalization, mutual legal assistance and extradition. This blog post, however, focusses on Draft Article 5, which includes an absolute non-refoulement obligation with regard to crimes against humanity:

Article 5 Non-refoulement 

  1. No State shall expel, return (refouler), surrender or extradite a person to territory under the jurisdiction of another State where there are substantial grounds for believing that he or she would be in danger of being subjected to a crime against humanity.
  2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the territory under the jurisdiction of the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights or of serious violations of international humanitarian law.

While the commentary on the Draft Articles argues that most States consider Article 5 to be a mere codification exercise and consistent with existing obligations under international human rights law (IHRL), some states such as the USA, UK and Jordan have expressed their concern that Draft Article 5 constitutes a progressive development of the law and introduces new, mandatory standards of non-refoulement protection. This post makes three main claims. First, that Draft Article 5 does indeed constitute a progressive development of the law and would supersede the current non-refoulement regime under both refugee and human rights law. Second, that although the proposed new regime would increase the protection of individuals from refoulement, it does so in a rather arbitrary fashion. Lastly, that this new regime will further restrict the ability of states to expel or return unwanted individuals who have committed serious crimes or constitute a danger to their community and could therefore trigger a significant political backlash once the Draft Articles reach the level of political decision makers in the future member states of the Convention. Read the rest of this entry…

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Part I- This is not fine: The International Criminal Court in Trouble

Published on March 21, 2019        Author: 

Editor’s note: This is Part I of a three-part series.

There is now a real sense that the International Criminal Court is in trouble. The questions are: how much, why and what is to be done?

The UK pulled no punches in its statement to the 17th International Criminal Court Assembly of State Parties:

The United Kingdom strongly supports the aims of the ICC and believes there is an essential role for an international institution like the Court in delivery of justice at the international level. But as an Assembly of States Parties to the Statute, we cannot bury our heads in the sand and pretend everything is fine when it isn’t. The statistics are sobering. After [nearly] 20 years, and 1.5 billion Euros spent we have only three core crime convictions. As others have said, and I quote “it is undeniable that the Rome project still falls short of the expectations of the participants at that ground-breaking conference in Rome”. The time has come for States to take a fundamental look at how the Court is operating. We need to work together to address the challenges, for the future health of the Court, a Court that we care about deeply.

The UK statement, delivered by Legal Director Andrew Murdoch,* ‘welcome[d] the steps taken by the Prosecutor to investigate the media allegations surrounding the former Prosecutor that surfaced twelve months ago’ and noted that the ‘Court is in danger of spending more money on internal litigation, including litigation on salaries, than on victims’.

Some will no doubt point to ongoing ICC investigations into the actions of UK personnel in Iraq, to impugn the UK’s motives in making these points. Its criticisms, however, are undeniably grounded in fact. Things are not fine. In April it will be 16 years since the Court’s first prosecutor was sworn in. A widespread sense among the ICC’s supporters that there is some soul-searching to be done about the future direction of the Court has only been heightened in the weeks since the Gbagbo acquittal.

Let’s be clear about the paucity of concrete results. There have been eight convictions, one overturned on appeal, one arising from a guilty plea and four relating to Article 70 administration of justice offences. The four convictions for offences against the administration of justice all arise out of the Central African Republic investigation and involve sentences of 6 months to 3 years. The other convictions may be summarised as:

  • Bemba (CAR) – sentenced to 18 years, overturned on appeal; an administration of justice case continues;
  • Katanga (DRC) – sentenced to 12 years, transferred back to DRC custody with ‘sentence served’ after 8 years;
  • Lubanga (DRC) – convicted to 14 years;
  • Al-Mahdi (Mali) – proceeded on a guilty plea and was sentenced to 9 years.

This is to set aside the very considerable disquiet expressed regarding the Katanga conviction, involving the dismissal of charges against his alleged co-perpetrator and judicial recharacterization of the relevant mode of liability after the close of proceedings. There is also now the very public embarrassment of both the collapse of the Kenya situation prosecutions and now the entry of acquittals on a “no case to answer” motion by the Trial Chamber in Gbagbo. As Labuda notes, if the Gbagbo acquittal is upheld on appeal, the ICC will be in the ‘rather awkward’ position of having acquitted more alleged international criminal than it has convicted. Indeed, as Dürr points out, to have more acquittals and terminated proceedings than convictions is unique among international criminal tribunals.

There are certainly more complex, and arguably more important, metrics by which to judge the success or failure of an international criminal tribunal than the number of its convictions. Indeed, we would rightly be sceptical of the fairness of proceedings that only resulted in conviction. However, to the extent that the Court is meant to serve expressivist goals, fight impunity, or deter atrocity – it must present some credible threat to those who should fear accountability. It is often argued that the simple possibility of ICC accountability may deter atrocity and that the existence of institutions may change behaviour. As lawyers we know that behaviour changes in the ‘shadow of the court’, but that court must first cast a shadow.

In a series of reflections, I will argue that we should now be very worried about the extent to which the Court is casting much of a shadow at all. In exploring who and what is to blame for this situation, I will pursue two themes: conditions and culture. Read the rest of this entry…

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‘Open for Business’: The Special Criminal Court Launches Investigations in the Central African Republic

Published on February 8, 2019        Author: 

On 22 October 2018, the Special Criminal Court (SCC) held its inaugural session in Bangui, the capital of the Central African Republic (CAR). Several weeks later, the Special Prosecutor, Col. Toussaint Muntazini, announced his long-awaited prosecutorial strategy. Coming three years after Parliament initially requested a specialist ‘war crimes’ tribunal for CAR, these two acts mark a watershed in the country’s fight against impunity. After providing some background on the SCC, this post examines the prosecutorial strategy and the prospects of accountability in CAR.

The Legal Framework

Established by domestic legislation in June 2015, the SCC is a hybrid tribunal fully integrated into the Central African justice system. It is staffed by national and international prosecutors and judges, and relies on logistical and technical support from the UN peacekeeping mission in CAR. Funded by voluntary contributions, the SCC is functionally independent from both the United Nations and CAR government. Its five-year mandate, which officially began on 22 October 2018, is renewable.

Prosecutorial Strategy

Why did the SCC publicize its prosecutorial strategy? Other tribunals, for instance the Special Court for Sierra Leone and the International Criminal Tribunals for Rwanda and the former Yugoslavia, never made their strategies public (to the extent such strategies existed). The SCC’s decision to ‘go public’ is more in line with the International Criminal Court (ICC)’s practice of adopting formal policies on a variety of matters. Read the rest of this entry…

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Understanding the State Party Referral of the Situation in Venezuela

Published on November 1, 2018        Author: 

Since 8 February 2018, the situation in Venezuela has been the subject of an ongoing preliminary examination by the Office of the Prosecutor of the International Criminal Court. On Wednesday 26 September 2018, however, a coalition of States Parties to the Rome Statute composed of Argentina, Canada, Chile, Colombia, Paraguay, and Peru jointly submitted a referral of the situation in Venezuela to the Prosecutor. In this referral, it was requested that the Prosecutor open an investigation into the commission of crimes against humanity allegedly committed in Venezuela under the government of President Nicolás Maduro, beginning on February 12, 2014. This referral, the ninth referral received by the Prosecutor, is not only the first referral to be submitted by a “coalition” of States Parties, but also one (directly) concerning a situation occurring on the territory of another State Party.

Pursuant to article 13 and 14 of the Rome Statute, a referral by a State Party is one of the three triggering mechanisms under which the Court may exercise its jurisdiction. It represents a formal request by a State Party (or in this case States Parties) for the Prosecutor to initiate an investigation on crimes allegedly committed in a situation. Furthermore, it gives the referring State Party the opportunity to present supporting documentation regarding the situation in question. It does not, as explained by the Prosecutor in her response to the Venezuela referral, automatically lead to the opening of an investigation. Instead, as a triggering mechanism, it leads the Prosecutor to apply the statutory criteria to assess whether the referred situation warrants investigation. This process, otherwise referred to as a preliminary examination, entails an evaluation of the criteria set out in article 53(1) of the Statute. In the event that the Prosecutor decides to initiate an investigation on a situation referred to her by a State Party, she is not required to seek authorisation from the Pre-Trial Chamber to proceed.

The legal effect of a State Party referral is therefore limited to three key aspects: it can trigger a preliminary examination by the Prosecutor; it can act as a formal submission of new information vis-à-vis article 14(2); as well as allowing for the initiation of an investigation (if the Prosecutor decides so) without the need for judicial authorization by the Pre-Trial Chamber.

In applying these aspects to the Venezuela referral, it appears that its legal effect is rather limited. Read the rest of this entry…

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In Bemba and Beyond, Crimes Adjudged to Commit Themselves

Published on June 13, 2018        Author: 

And now, it seems, we must fear to endure crimes adjudged to have no cognizable author – crimes that everyone knows occurred, but that escape the assignment of responsibility that is supposed to be an essential function of international criminal justice. Crimes adjudged, as one commentator lamented, to have committed themselves.

Provoking these dire sentiments is Friday’s International Criminal Court judgment in Prosecutor v. Bemba, in which a bitterly divided Appeals Chamber exonerated a politician-warlord from the Democratic of Congo (DRC) whom a Trial Chamber had sentenced to serve eighteen years in prison. The Appeals Chamber majority, constituting three of the five appellate judges, first maintained that the 2016 trial judgment merited no deference, then proceeded to evaluate the case de novo, and ultimately found all five counts of conviction unsustainable. The man whom para. 13 of the appeals decision identifies as “President of the MLC, a political party founded by him and based in the northwest of the DRC, and Commander-in-Chief of its military branch, the ALC,” thus was acquitted of charges on which he had been held since 2008. Bemba is awaiting the results of his appeal on a separate conviction for witness tampering. Yesterday, the Court ruled that he could join his family in Belgium while he awaits sentencing in that case. Read the rest of this entry…

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What lies beneath? The turn to values in international criminal legal discourse

Published on April 23, 2018        Author: 

On the 9th of April, the Office of the Prosecutor (OTP) of the International Criminal Court submitted a request for a ruling by the Pre-Trial Chamber on whether the Court has territorial jurisdiction over the deportation of Rohingya people from Myanmar to Bangladesh. This development may impact how the ICC approaches its territorial jurisdiction in future, and raises interesting questions over the legal nature of the crime of deportation. However, the submission also gives rise to questions of a more theoretical nature that relate to the normative basis of international crimes, or more specifically, the acts that constitute them. The Prosecutor’s submission on jurisdiction over deportation into Bangladesh highlights an emerging trend in international criminal law towards identifying and surfacing the individual values or rights underlying international crimes. This coincides with a broader debate on the legal goods protected by these crimes, and invites us to consider the implications of this trend for the communicative function of the law.

Part of the Prosecutor’s submission on jurisdiction in Bangladesh addresses the distinction between the crimes of deportation and forcible transfer. Read the rest of this entry…

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