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Pardons for Crimes Against Humanity: Some Critical Considerations Regarding the Pardon of Former Peruvian President Alberto Fujimori

Published on January 8, 2018        Author:  and

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On Christmas eve the current President of Peru, Pedro Pablo Kuczynski, pardoned the former president Fujimori who had served about 12 years of a sentence of 25 years for crimes against humanity (Resolución Suprema n° 281-2017-JUS of 24.12.2017). Leaving aside the particular political context in which this pardon was issued (a few days before a parliamentary motion to remove President Kuczynski for corruption allegations failed because members of Fuerza Popular, the political movement of Fujimori’s daughter, voted against it), the decision raises several legal questions under Peruvian and international law. One of the questions, which this post will consider is the legality of pardons for persons convicted of crimes against humanity, an issue that raises similar considerations to amnesties for such crimes. To start with, it is important to note that in Peru, in general, pardons cannot be issued arbitrarily. In the case of the so-called humanitarian pardon, there are two generic circumstances that deserve closer attention.

On the one hand, the decision is, of course, only legitimate if it is based on a genuine and sufficient humanitarian reason. Read the rest of this entry…

 
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Announcements: Assistant Professor of International Law at Maastricht University; Scholars Workshop – Challenges to Global Constitutionalism; CfA Hague Academy of International Law 

Published on January 7, 2018        Author: 

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1. Assistant Professor of International Law at Maastricht University, the Netherlands. The Department of International and European Law of the Faculty of Law of Maastricht University intends to appoint a fulltime Assistant Professor of International Law (‘Universitair Docent’) with a starting date of 1 May 2018 (or a period shortly after that). Applicants must have proven expertise in public international law. Excellent written and spoken English is required. Knowledge of the Dutch language may be an advantage, but is not required. More information is available here. Informal enquiries may be made to Prof Jure Vidmar (jure.vidmar@maastrichtuniversity.nl).

2. Scholars Workshop: Challenges to Global Constitutionalism. The editorial team of Global Constitutionalism, in conjunction with PluriCourts, will be organizing a workshop from 4 – 6 July at the WZB Berlin Social Science Center. As part of this workshop we will be running special sessions for scholars interested in publishing in the field of global constitutionalism. Each selected scholar will be invited to present a paper to the workshop. The expectation is that selected papers, after revisions based upon feedback at the workshop, would be submitted to Global Constitutionalism for peer review with the possibility of publication. Editors from the journal will work closely with the selected scholars throughout the process. We invite paper proposals on any topic related to global constitutionalism. We define global constitutionalism as the foundations, limitations, and contestations of the principles and norms of political order and their dynamics over time on a global scale. We invite submissions from a broad range of disciplines including International Law, Political Science, International Relations, Comparative Constitutional Law, Comparative Politics, Political Theory and Philosophy. To apply, please submit a paper abstract of up to 400 words and an academic biography of 150 words at globcon-journal {at} wzb(.)eu. The deadline for submissions is 23 February 2018. If you have any questions, please contact globcon-journal@wzb.eu. For further information, see here

3. Call for Applications: Hague Academy of International Law – Centre for Studies and Research in International Law and International Relations. The Hague Academy of International Law is now accepting applications for the next session of its Centre for Studies and Research in International Law and International Relations, which is to take place  from 20 August – 7 September 2018. This year’s subject is “International Inspections.” The program is available here. For more information, see here

Filed under: Announcements and Events
 
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Formal, Functional, and Intermediate Approaches to Reparations Liability: Situating the ICC’s 15 December 2017 Lubanga Reparations Decision

Published on January 4, 2018        Author:  and

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On 15 December 2017, the International Criminal Court (ICC) Trial Chamber II found Thomas Lubanga Dyilo, former President and Commander-in-Chief of the UPC/FPLC, responsible for reparations in the amount of USD 10,000,000 — the largest ICC reparations order issued to-date. The Lubanga case was the first to reach the reparations stage — yet controversy surrounding procedural requirements delayed the Chamber’s determination of Lubanga’s monetary liability. Last month’s decision answered some of these procedural questions, and raised new ones. This piece breaks down Trial Chamber II’s 15 December 2017 decision, and situates it alongside Trial Chambers’ recent assessments of monetary liability in the Katanga and Al Mahdi cases. We suggest that we have now seen ICC Trial Chambers assess defendants’ monetary liability for reparations via formal, functional, and intermediate approaches.

Lubanga was convicted on 14 March 2012 of enlisting and conscripting children under the age of 15, and using them to actively participate in hostilities from 1 September 2002 until 13 August 2003. On 7 August 2012, Trial Chamber I delivered the ICC’s first-ever order for reparations, authorising only collective reparations. On 3 March 2015, the Appeals Chamber overturned part of the Trial Chamber’s decision and issued an amended order for reparations, giving a newly constituted Trial Chamber II (composed of Judges Brichambaut, Herrera Carbuccia and Kovács) the confined tasks of a) determining the amount for which Lubanga was responsible, and b) monitoring and overseeing the implementation of the order. In its Judgment and order, the Appeals Chamber did not identify the number of victims who suffered harm as a result of Lubanga’s crimes. Nor had Trial Chamber I provided a figure in its original Judgment, although it found the crimes were widespread.

As explained in an article published last year, heated procedural debates soon emerged, as Trial Chamber II and the Trust Fund for Victims (TFV) clashed in their understandings of their respective mandates: while the Chamber believed it needed to identify and “approve” victims entitled to reparations as a prerequisite to determining Lubanga’s monetary liability, the TFV believed this was unnecessary, and something the TFV should do during implementation (the TFV had estimated there were 3,000 potentially eligible victims). Similarly, while the Trial Chamber believed that it needed to determine the extent of the harm caused to victims to establish Lubanga’s liability, the TFV thought that the extent of the harm was already described adequately in the Judgment, Sentencing Decision, and decisions on victims participation. However, in what appeared to be a change of its original position, the Trial Chamber acknowledged mid-proceedings that the victims identified by the TFV were a sample, but did not comprise the totality, of victims potentially eligible for reparations, namely those who suffered harm as a result of the crimes for which Lubanga was convicted. This shift proved foundational to the Trial Chamber’s 15 December 2017 decision. Read the rest of this entry…

 
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Freeing up the Rules on The Treatment of Detainees from the Debate on the Geographical Scope of International Humanitarian Law

Published on January 3, 2018        Author: 

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A few weeks ago, my great friend Elvina Pothelet analysed, on this blog, the decision of the International Criminal Court (ICC) Prosecutor’s to request authorization to investigate, inter alia, acts of ill-treatment of detainees allegedly committed since 2002 by the CIA in black sites in Poland, Romania and Lithuania, in connection with the armed conflict occurring in Afghanistan. Elvina affirmed that there may be an added value in qualifying these alleged behaviours as war crimes, but she also hinted that such qualification might support the idea that International Humanitarian Law (IHL) applies globally, even outside the borders of the States where active hostilities take place. In this post I will argue that a wide geographical scope of application of the IHL rules on the treatment of detainees — especially those contained in common Article 3 to the Geneva Conventions and reflected in customary international law — does not necessarily imply an equally wide applicability of the rules on the conduct of hostilities.

To put my intervention in context, I should recall the obvious: a war crime presupposes a serious violation of an IHL rule. And for a rule of IHL to be applicable, there must be a sufficient link of correlation (so-called ‘nexus’) between the behaviour in question and an armed conflict (see ICTY AC, Kunarac, § 57 ff., referring to acts that are ‘closely related to the armed conflict’; see also Cassese). Although these sources refer to international criminal law (ICL), they build on the principle that IHL only applies to conducts and events which are sufficiently related to an armed conflict, as recognized e.g. in the ICRC Introduction to IHL, at pp. 28 and 59 (see also Practitioners’ Guide to Human Rights Law (HRL) in Armed Conflict, § 4.23). When such behaviour occurs outside the theatre of hostilities — e.g. where acts of torture were allegedly perpetrated in Poland/Romania/Lithuania, but the supposedly related hostilities took place in Afghanistan — one should ask whether such ‘sufficient nexus’ exists and, additionally, whether are there any geographical limitations to its establishment. In other words, is IHL applicable to conduct or an event as soon as it is sufficiently connected to an armed conflict, regardless of the territory where it took place (as contended, e.g., by Lubell-Derejko)? Or should the applicability of IHL be limited only to behaviour occurring in the area where active hostilities are being fought, or in the territory of a State party to the conflict (as deemed preferable by the ICRC in its 2015 report, at p. 15)?

Like ‘global battlefield’ theorists, I am convinced that geographical considerations per se do not necessarily limit the applicability of IHL. But, as also accepted by Lubell and Derejko, I believe that they are a fundamental factor to be taken into account when assessing the existence of the necessary nexus between an event under scrutiny and an armed conflict. Geographical distance from the actual conflict may be an indication that the relevant conduct or event is sufficiently ‘closely related to the hostilities’. And that is where I think the difference between the rules on the treatment of detainees and other IHL rules (especially those on the conduct of hostilities) lies. Read the rest of this entry…

 
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Customary International Law and the Addition of New War Crimes to the Statute of the ICC

Published on January 2, 2018        Author: 

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In addition to the activation of the International Criminal Court’s jurisdiction over the crime of aggression (see previous post), the recently concluded Assembly of States Parties (ASP) to the Statute of the ICC, also adopted three amendments adding to the list of war crimes within the jurisdiction of the Court. These new war crimes relate to the use of prohibited weapons in international as well as non-international armed conflicts. However, in the lead-up to the ASP there was controversy regarding the wisdom and even the legality of adding to the list of war crimes. One of the concerns was that there would be fragmentation of the Rome Statute system with different crimes applicable in differing situations to different individuals. This is because under the amendment procedure to the Rome Statute (Art. 121(5)) these new crimes would not apply to nationals of, or conduct on the territory of, non-ratifying states parties. Another concern was that the new crimes (or at least some of them) are, in the view of some states, not criminalised under customary international law and thus not suitable for addition for inclusion in the ICC Statute. It is this latter issue that I focus on this post, though as I will explain later, the issue overlaps with the question of fragmentation of the Rome Statute regime. In this post, I discuss the implications of criminalising conduct under the ICC  Statute which do not amount to customary international law crimes. I take no position on whether the crimes that have been added are, or are not, crimes under customary international law (though I think few would doubt that the use of biological weapons is such a customary international crime), but explain why this is an important question that states are right to pay attention to.

The new war crimes to be inserted into the Rome Statute are as follows (see Resolution ICC-ASP/16/Res.4):

  • Employing weapons, which use microbial or other biological agents, or toxins, whatever their origin or method of production [to be inserted as Art. 8(2)(b)xxvii) and Art. 8(2)(e)(xvi)]
  • Employing weapons the primary effect of which is to injure by fragments which in the human body escape detection by X-rays [to be inserted as Art. 8(2)(b)(xxviii) and Art. 8(2((e)(xvii)];
  • Employing laser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices [to be inserted as article 8(2)(b)(xxix) and Art. 8(2)(e)(xviii)].

Read the rest of this entry…