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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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Foreign Jurists in the Colombian Special Jurisdiction for Peace: A New Concept of Amicus Curiae?

Published on December 19, 2017        Author:  and
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One year after the conclusion, on 24 November 2016, of the Final Peace Agreement between the Colombian government and the FARC-EP (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo/ Revolutionary Armed Forces of Colombia – People’s Army), the implementation of that Agreement now enters a decisive phase. That Agreement was reached after the rejection of the first version of 24 August 2016 by a slim majority of 50.2% of votes. Last month, the Constitutional Court, by unanimous vote, approved the constitutional reform that implements the Agreement through a special legislative act (Acto Legislativo 01 of 4 April 2017). However, the Court objected to some articles concerning the Special Jurisdiction for Peace ( SPJ or JEP – Jurisdicción Especial para la Paz) which is the judicial cornerstone of the Agreement. The judges of the JEP have recently been selected in a transparent and competitive procedure by a fully independent and mixed Selection Committee (Comité de Escogencia).

While the Final Agreement no longer provides for foreign judges – this was one of the points that proved unacceptable to those who opposed the original Agreement, led by former President Uribe – these have now been substituted by foreign jurists called amici curiae. These, too, were recently selected by the Comité de Escogencia on 6 December 2017, with10 in total for the two JEP organs (four for the “Tribunal para la Paz” and six for the “Salas de Justicia”) with two reserve amici for each organ (the first author of this blog was selected for the Tribunal for Peace). However, it is not quite clear what role these amici will ultimately play before the JEP. We will argue in this post that the Colombian concept of amicus curiae differs from the usual international understanding. This can be explained by the particular Colombian context, where, on the one hand, the parties to the Peace Agreement favored the participation of foreign judges in the JEP, but, on the other hand, the strong opposition to the agreement forced the government to even limit the influence of the substitute foreign jurists (amici). While the ‘Colombian model’ is unique and innovative, only practice will show whether the foreign jurists are mere advisors to the different JEP organs or if they will be able to play a more important and influential role by directly participating in the deliberation of the exclusively Colombian judges. Read the rest of this entry…

 

Evacuation of Civilian Populations and Criminal Complicity: A Critical Appraisal of the February 2017 Report of the Syria Commission of Inquiry

Published on May 24, 2017        Author: 
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In its February 2017 Report (A/HRC/34/64), the Independent International Commission of Inquiry on Syria made the bold statement that the evacuation of the civilian population from Eastern Aleppo, pursuant to an agreement between the Syrian government and the armed groups “amounts to the war crime of forced displacement” since it was made “for strategic reasons” and “not for the security of civilians or imperative military necessity.” (para. 93). A – perhaps unintended – consequence of this proposition would be that staff of NGOs or other non-state actors who assisted in this evacuation may be criminally liable as accomplices in this war crime.

I will argue here that this proposition is incorrect for basically two reasons. First, the Report does not make a persuasive argument that a war crime has been committed and thus there is no criminal conduct to which other individuals could have been contributed. Secondly, even if, arguendo, one assumes that the evacuation amounted to a war crime, to provide assistance in the evacuation of civilians does not constitute criminally relevant complicity.

Read the rest of this entry…

 

Karadzic’s Genocidal Intent as the “Only Reasonable Inference”?

Published on April 1, 2016        Author: 
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As a follow-up to Marko Milanovic’s excellent post, I have some further comments on the recent Karadzic judgment, especially on the Trial Chamber’s bifurcated approach to the two genocide charges (acquittal re the municipalities joint criminal enterprise [JCE] and conviction re the Srebrencia JCE, see paras. 2571 et seq. and 5655 et seq. respectively). Before turning to the concrete points, I must present a caveat and a general commentary on the evidentiary standard.

The caveat refers to the quite delicate position of an academic commentator when analysing a trial judgment. Being myself a trial judge (albeit only in my second profession as the majority of my time is dedicated to my academic work) in a procedural system where the actual trial, governed by the principles of orality and immediacy, is considered the height of the proceedings, I am aware that nothing can substitute the direct impressions taken from the actual trial hearings, especially regarding the oral and immediate presentation of evidence. The academic commentator is more in the position of a judge at the appeal stage, in the sense of the French cassation or the German Revision, where the ensuing legal review of the trial court’s sentence is essentially based on the critical legal analysis of this court’s written judgment. Thus, my comments are the mere product of a critical reading of the respective parts of the Karadzic trial judgment, further limited by the natural margin of deference to be given to any trial court, and the restrictive ‘reasonable trier of fact’ appeal standard of international criminal proceedings.

This brings me to the evidentiary standard with regard to the proof of the subjective element (mens rea) of criminal law offences captured in the old Roman maxim, dolus ex re, i.e. the intent (mental element) (is to be) inferred from the external circumstances of the objective act (actus reus). This is nothing other than the modern indirect or circumstantial evidence which has taken centre stage in international criminal proceedings, especially as regards the proof of the special intent to destroy a protected group in the crime of genocide (paras. 550, 5825). Indeed, the whole genocidal case against Karadzic is based on circumstantial evidence, defined by the Chamber, referring to settled case law, as “evidence of a number of different circumstances surrounding an event from which a fact at issue may be reasonably inferred” (para. 14) and, in addition, requiring a highly demanding ‘only reasonable inference’ standard (paras. 10, 14). In concrete terms, this entails a double evidentiary test as the trial chamber must first be convinced that a certain inference is the only reasonable one and second, that all reasonable inferences taken together – as the totality of (indirect) evidence – prove beyond reasonable doubt the respective mental element and thus, ultimately, the guilt of the accused.

Let us now turn to my concrete queries. Read the rest of this entry…

 

The new enemy of mankind: The Jurisdiction of the ICC over members of “Islamic State”

Published on November 26, 2015        Author: 
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President Obama has called the recent Paris terror attacks an “attack on all of humanity”. In doing so, he has touched upon the core of so-called crimes against humanity. Due to their quantitative and qualitative dimensions and their utter disregard for fundamental values, such crimes are directed not only against individual persons, but against humanity as a whole. The link to a State was abandoned in the Statutes of the UN Ad Hoc Tribunals in 1993 (ICTY) and 1994 (ICTR) and then, with a universal claim,  in 1998 with the definition adopted in Article 7 of the Rome Statute of the International Criminal Court (ICC). Since then, it has been possible for crimes against humanity to be committed by non-state actors. Their traditional State-based rationale – punishing the representatives of the morally perverted State that uses its power against its own citizens without restraint – can be transferred to non-state actors. When these actors, like the so-called Islamic State (IS), send suicide assassins into a concert hall to execute innocent civilians, this reveals a level of moral perversion that is typical of crimes against humanity. That the perpetrators invoke God when doing so makes the matter even worse. Religiously motivated perpetrators of crimes against humanity not only deny their victims’ right to exist, but in doing so place themselves above us “unbelievers” as part of a supposedly divine mission; in fact, they act in the same manner as the crusaders they claim to be fighting against.

A perpetrator of a crime against humanity is “hostis humani generis”, an enemy of mankind. The concept was used to refer to pirates long before crimes against humanity existed. The IS is far worse than pirates, and its acts carry all of the hallmarks of crimes against humanity. While this may have been doubted before Paris, after the attacks these doubts are gone with the wind. In the dry technical language of the so-called context element of crimes against humanity, the attacks represent a widespread and systematic attack directed against the civilian population. The attack targeted a large number of civilians and had been planned in a premeditated fashion. The intentional killing of more than 100 people constitutes the required single act of ‘murder’. As a consequence, the ICC has jurisdiction ratione materiae, without any need for recourse to war crimes. This makes the matter simpler, as it is highly controversial – despite the unambiguous language of the French President Hollande (“acte de guerre”) – whether an armed conflict can actually exist between a transnational non-state actor and a State under current International Humanitarian Law.

However, does the ICC also have formal jurisdiction over acts committed by members of Islamic State? Read the rest of this entry…

 

The Armenian “Genocide”?

Published on May 11, 2015        Author: 
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Given the difficulty in proving the special intent to destroy, the charge of genocide is not one to be brought lightly.

No-one can reasonably argue with the clear statements made by German President Joachim Gauck in his speech on Armenia held on 23 April 2015: “one hundred years ago, hundreds of thousands of members of the Armenian people” became “the victims of planned and systematic murder”. It is probably also accurate to say that these acts, for which the Ottoman Empire was responsible, were perpetrated against the Armenians “because they were Armenians”. But did these acts really constitute “genocide”, as Gauck further stated, in a legal sense?

According to the Convention on Genocide adopted in 1948, we are facing a genocide when certain acts are committed against a “national, ethnical, racial or religious group” with “the intent to destroy [it] in whole or in part”. The term derives from the Greek γένος (race, tribe) and the Latin caedere (to kill). The Armenians doubtlessly constitute such an (ethnic and religious) group; however, did the Turkish perpetrators really act with the required intent to destroy? Is it even possible to designate prior conduct using a legal category that did not exist at the time said conduct occurred?

These are by no means mere juristic quibbles. The prohibition of genocide constitutes so-called peremptory international law (ius cogens). The “prevention and punishment” demanded by the Convention is thus directed not only at the perpetrating and territorial State, but at all States on our planet. They are all called to prevent genocide and – if prevention is unsuccessful – to punish it. The extraordinary degree of wrongdoing inherent in genocide – the attack on one of the abovementioned groups and the denial of its right to exist implicit in this attack – makes it the “crime of crimes”, to which particular stigma is attached. Thus it is quite understandable that a State should try to defend itself against the stigmatisation associated with genocide. Read the rest of this entry…

 

Our terrorists, your terrorists? The United Nations Security Council urges states to combat “foreign terrorist fighters”, but does not define “terrorism”

Published on October 2, 2014        Author: 
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The aim of Resolution 2178 of the UN Security Council, which was passed unanimously on 24 September, is laudable in principle: to combat the growing jihadi “terror tourism”, coming from France, Germany, the UK and other Western states, in a comprehensive manner, not just through criminal and police laws. In its preamble, the eight-page Resolution explicitly recognises that international terrorism cannot be defeated through military and other repressive measures alone. However, it does not define terrorism, its key object of reference, instead speaking vaguely of “terrorism in all forms and manifestations”. Its operative paragraphs (paras. 2 ff.) refer to “terrorists”, “terrorist groups”, “individuals” and “person[s]” travelling abroad to fulfil a terrorist “purpose”, making no distinction between them. This terrorist purpose supposedly consists of the perpetration or preparation of terrorist acts, or the participation in terrorist acts or terrorist training. UN member states must prosecute the persons in question. Furthermore, they must make any financing of such journeys and assistance in carrying them out, including the recruitment of “terrorist” fighters, subject to criminal sanctions and prosecution. Finally, the listing of the persons in question – famously called a ‘civil death penalty’ by Dick Marty, the former chairman of the Legal Affairs and Human Rights Committee of the Council of Europe – is also provided for (para. 7).

But how is all of this to work under the rule of law if the phenomenon to be combatted is not defined? The Resolution remains silent on this issue, referring only to fighters belonging to ISIL, ANF and other groups deriving from Al-Qaida (para. 10), without, of course, presenting this as a definitive list. One wonders why the Resolution did not adopt para. 3 of Security Council Resolution 1566. This paragraph defines terrorist acts as acts (1) committed with the intent to cause death or serious bodily injury, or taking of hostages, (2) with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which (3) constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism. This is, in essence, the definition of international terrorism recognised by customary international law, which also forms the basis for a UN draft treaty of 2010 and is referred to in international jurisprudence, such as the famous jurisdictional decision (15 Feb. 2011) of the UN Special Tribunal for Lebanon, mainly authored by the late Antonio Casesse.

Unfortunately, Resolution 2178 ignores all of these definitions and thus ultimately leaves it up to each UN member state to apply the measures called for to those individuals defined as “terrorist” by that respective state itself. Read the rest of this entry…

Filed under: Security Council, Terrorism
 

Palestine, UN Non-Member Observer Status and ICC Jurisdiction

Published on May 6, 2014        Author: 
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ICCOn 22 January 2009, the Palestinian Minister of Justice, on behalf of the Palestinian National Authority (PNA), lodged a declaration recognizing the jurisdiction of the International Criminal Court (ICC) (pictured left) ‘for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002.’ On 3 April 2012, the ICC Office of the Prosecutor concluded that the preconditions to the exercise of jurisdictionwere not met, arguing that Palestine had only been granted ‘observer’, not ‘Non-member State’ status by General Assembly (GA). The Prosecutor considered that the Declaration ‘was not validly lodged’ (Report on Preliminary Examinations Activities 2013, para. 236). However, the Prosecutor also said that ‘allegations of crimes committed in Palestine’ could be considered ‘in the future’ if the ‘competent organs of United Nations … resolve the legal issue relevant to an assessment of article 12 …’. On 29 November 2012 the UN GA – by 138 votes to 9, with 41 abstentions – decided ‘to accord to Palestine non-member observer State status.’ (GA Res. 67/19 of 4 Dec. 2012, para. 2) (see previous EJIL:Talk! Posts here, here and here)

With this decision, the legal issue raised in the Prosecutor’s decision has been resolved. Palestine has been ‘upgraded’ from a mere ‘observer’ to a ‘Non-member State’. The formal declaration of statehood, which some previously considered a missing precondition to Palestine’s status as a State (Ronen, JICJ 8(2010), 26; Shany, JICJ 8 (2010), 337), has been produced by the GA. And this notwithstanding the possible lack of complete fulfilment of the Montevideo criteria (in particular the effective government criterion; cf. Shaw, JICJ 9 (2011), 307 ff.). The view that Palestine is now a State is not only the prevailing view among scholars (Zimmermann, JICJ 11(2013), 303; Ronen, JICJ 12 (2014) 8; contra still Kontorovich, JICJ 11 (2013), 979), but above all has been confirmed by treaty practice since the GA Resolution, i.e., the accession of Palestine to at least 15 international treaties (accepted by the respective depositaries). This means that Palestine, represented by its government, can now not only trigger ICC jurisdiction by way of a declaration under Article 12(3) of the ICC Statute but also directly accede to the ICC Statute (albeit without retroactive effect, cf. Articles 11(2), 126(2)). While there is no longer a need to overcome the lack of statehood by way of a functional interpretation of Article 12(3) (Shany, JICJ 8 (2010), 329; Pellet, JICJ 8(2010), 981, the new Article 12(3) power suffers from several limitations. Those limitations will be the focus of this post (leaving aside the subsequent ‘ordinary’ obstacles, especially gravity, admissibility and interests of justice, to turn an ICC situation into a formal investigation of a case). Here are the four problems with Article 12(3) that I see.

First, Article 12(3) is premised on a delegation-based theory of jurisdiction (Shany, JICJ 8(2010), 331-2), i.e., the ‘State’ within the meaning of the provision delegates a part of its jurisdiction to the ICC. Of course, this presupposes that the State possesses the jurisdiction it wants to delegate in the first place. Here Annex II of the 1995 Israeli-Palestinian Interim Agreement (‘Oslo II’) comes into play. According to its Article I, the Palestinian criminal jurisdiction is limited to ‘offenses committed by Palestinians and/or non-Israelis in the Territory’. ‘Territory’ refers to the West Bank and the Gaza Strip, in principle including East Jerusalem. Indeed, this is the Palestinian territory internationally recognized as a ‘single territorial unit’ (Art. IV Declaration of Principles 1993 [Oslo I]; Art  XI(1) Oslo II). Of course, on the one hand, Palestinian jurisdiction does not extend to the Area C in the West Bank (including Israeli settlements and military installations). On the other hand, while Israel does not, in principle, claim sovereignty over the West Bank and Gaza, it does so with regard to East Jerusalem. Thus, on the basis of Oslo, Palestinian criminal jurisdiction is severely limited both ratione personae and ratione loci.

To get around these limitations one may argue that Oslo, having been agreed between Israel and the PLO, as the representative of the Palestinian people (GA Res. 67/19, para. 2), can neither bind the PNA, which only came into existence with Oslo, nor, a fortiori, the government of the now formally recognized State of Palestine. Read the rest of this entry…

 

Prosecution of Former Nazi Camp Guards: About Restoring Society’s Trust in Law and Participation in a Criminal Enterprise

Published on May 20, 2013        Author: 
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The recent debate in Germany about the prosecution of former Nazi concentration camp guards – all about 90 years old – and the detention of one on 6 May near Stuttgart reminds us of the controversy about the trial against John Demjanjuk in the district court (Landgericht) of Munich in 2011. The controversy is by no means limited to Germany but takes place in all countries (for example Cambodia) where old men and sometimes women are held accountable for long passed crimes (for example the crimes of the Khmer Rouge). What these trials have in common is the old age of the accused, who may not survive to the end of their trials. Indeed, Demjanjuk died before the appeal against his conviction was decided. More recently, former Khmer Rouge senior official  Ien Sary died on 14 March 2013, during his trial by the Extraordinary Chambers in the Courts of Cambodia . Typical of these trials are also the enormous difficulties in finding appropriate evidence such a long time after the facts. Moreover, given that camp guards normally just follow orders of mid- or top-level responsible they are only small cogs in the machinery of destruction set up by the criminal system and their individual criminal responsibility is difficult to establish. We will return to this problem at the end of this essay.

On a more fundamental level, one is always confronted with the question of the justification or rationale of such trials in terms of the purposes of punishment. Offender-related rationales, especially re-socialization or rehabilitation, are hardly plausible in the context of system criminality, especially when the perpetrators are facing death anyway. The likelihood of convicted system criminals re-offending in a new system is next to zero. System criminals do not need to be re-socialized through punishment since they have not been deviant in the societies in which they lived in . Indeed, they carried out the atrocities demanded by the former criminal system, for example keep running a concentration camp. If this (their) system is replaced by a new one they usually quickly adapt to this one too and turn into the normal citizens they have always been, except for the period of the criminal system. These citizens are good neighbours who do not come into conflict with the law. Their conflict concerns their conduct in the former criminal system. Thus, they are investigated for past instead of present conduct. In sum, former system criminals neither have to be reintegrated into the new society nor is it necessary that this society must be protected against them, especially if they are harmless old men today.

What about retribution (just deserts) then? Does it justify prosecuting these people? Read the rest of this entry…

 

ICC OTP Report on the Situation in Colombia – A critical analysis

Published on February 1, 2013        Author: 
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Professor Kai Ambos is Chair of Criminal Law, Criminal Procedure, Comparative Law and International Criminal Law at the Georg-August-Universität Göttingen, Germany and Judge at the Provincial Court (Landgericht) of Lower Saxony in Göttingen

Preliminary Remarks

On 14 November 2012 the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) published the “Interim Report” on the “Situation in Colombia”. The Report is exceptional for the fact that the OPP usually does not submit such kind of country report at this (preliminary) stage of the proceedings; instead, the Office’s activities are reported in its Annual Report on Preliminary Examination Activities. The reason why this is different in this case is “the high level of public interest” in the Colombian situation. In fact, the very existence of the Report demonstrates the seriousness with which the Office continues to monitor the situation in Colombia.

Despite all its shortcomings, the Report still deserves praise in that it constitutes a unique effort to subsume the complex Colombian situation under the legal regime of the Rome Statute. In fact, the OTP offers the first “official” and impartial account of the Colombian violence in ICL terms and this constitutes an advance in itself, not least with regard to the domestic discussion in Colombia. More concretely speaking, however, the Report offers a mixed picture. While some issues are treated adequately, contributing significantly to an accurate assessment of the Colombian situation, especially with regard to the topic of the “false positives”, the treatment of other aspects leaves more questions than answers. In this sense, the Report makes it difficult to determine with some precision the further course of the OTP’s evaluation of the Colombian situation. Indeed, the Report does not provide for clear standards that could serve as a framework for current and possibly future peace negotiations. Perhaps the question of an “alternative punishment” is the most important one effectively left open by the Report. Clearly, the report reflects the complexities of the Colombian situation which make it so difficult to come to a balanced and satisfactory judgment with a view to possible intervention by the ICC. It may well be argued that this situation demonstrates more than any other the importance of cooperation and mutual learning between local and international criminal justice.

Read the rest of this entry…

 
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