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Home Archive for category "International Criminal Law"

Part I: What can be done about the length of proceedings at the ICC?

Published on November 15, 2019        Author:  and

 

Editor’s note: this is Part I of a two-part post.

“Judgement does not come suddenly; the proceedings gradually merge into the judgement.”

Franz Kafka, The Trial

Jean-Pierre Bemba made his first appearance before the Pre-Trial Chamber in July 2008. His trial began in November 2010 and lasted four years. Two more years passed before the Trial Chamber found him guilty in March 2016. Another two years passed before the Appeals Chamber finally acquitted him in June 2018. He had been in custody for almost a decade. Other trials at the ICC have lasted nearly as long.

Long proceedings are not unique to the ICC. The most striking case must be the Nyiramasuhuko et al trial at the ICTR. There were six accused, arrested between 1995 and 1998. The trial began in June 2001. All six were convicted ten years later, in June 2011. Their appeals were not resolved until December 2015, by which time one of them had been in detention, awaiting the final resolution of proceedings, for twenty years.

The problem of lengthy criminal proceedings plagues domestic judicial systems, too. Indeed, a significant number of applications before the European Court of Human Rights (“ECtHR”) concern alleged violation of the right to a fair trial within a reasonable time under article 6 of the European Convention of Human Rights (“ECHR”). The extent of the problem in certain countries has prompted the ECtHR to resort to the so-called ‘pilot judgment’ procedure.

What is a reasonable length for criminal proceedings? Read the rest of this entry…

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Of Babies, Bathwater, and List B Judges at the International Criminal Court

Published on November 13, 2019        Author: 

 

The Open Society Justice Initiative recently released an excellent report on the selection of judges at the International Criminal Court (“Raising the Bar”). It is a detailed and thoughtful report combining often eye-opening interviews and desk scholarship. It makes a number of very important recommendations about improving the process by which ICC judges are nominated and elected. In this post, however, I wish to take issue with one of the report’s key recommendations. It is only one recommendation, but it is an idea which is increasingly frequently put forward in various fora as a sine qua non of effective International Criminal Court reform.

This is the suggestion that the only criterion for appointment to the ICC judiciary should be excellence in the practice of criminal law. Thus, the suggestion goes, the statutory provision that judges may be elected either on the basis of expertise in criminal law and practice (the “List A” judges) or expertise in relevant areas of international law and practice (the “List B” judges) should be abolished.

The Open Society Justice Initiative report certainly lends significant credence to the view that the List B route to the ICC bench has on occasion been used to appoint lawyers who have spent their career as diplomats and not prosecutors, defenders, judges, or scholar-practitioners.

However, the idea that a significant number of the Court’s woes would be corrected if only it were properly staffed with solid criminal law judges is, I think, overstated. Let’s briefly consider a few of the decisions of the Court which have been most maligned in recent commentary. Read the rest of this entry…

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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.

Read the rest of this entry…

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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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A Collective Failure to Prevent Turkey’s Operation ‘Peace Spring’ and NATO’s Silence on International Law

Published on October 14, 2019        Author: 

Since last week Turkey has been using massive military force in Syria. Turkey has decided to call her military operation ‘Peace Spring’. ‘Peace Spring’ seems to be even more extensive than ‘Olive Branch’, Turkey’s preceding invasion of Syria. ‘Peace Spring’ has already resulted in the flight of tens of thousands of civilians. Worldwide, observers fear that ‘Peace Spring’ could lead to a humanitarian catastrophe in Syria, a country whose people have been suffering from unspeakable pain for many years now. There is also widespread fear that the so-called ‘Islamic State’ could benefit from ‘Peace Spring’ as the use of force is being directed against precisely those Kurdish forces that had helped keeping the ‘Islamic State’ at bay. It thus appears that a depressingly large number of indications suggest that the name ‘Peace Spring’ is a cynical euphemism for a brutal military course of action possibly ending in a bloody disaster.     

In her letter to the United Nations, Turkey invokes her right of self-defence, as recognized in Article 51 of the UN Charter, ‘to counter’ an ‘imminent terrorist threat’. The ‘facts’ that Turkey refers to in this letter are essentially those:

‘In particular, PKK/PYD/YPG units close to Turkish borders in the north-east of Syria, continue to be a source of direct and imminent threat as they opened harassment fire on Turkish border posts, by also using snipers and advanced weaponry such as anti-tank guided missiles.’

Under international law, the right of self-defence exists if an armed attack against another State occurs. In such a case, cross-border defensive forcible action is permissible to the extent that the action is necessary and proportional to counter the attack. The existence of a right of anticipatory self-defence has long been controversial. An arguable case can be made that such a right exists if an armed attack against a State is imminent. It is also a matter of fierce debate whether a right of self-defence exists in case of a non-State armed attack and whether it may justify forcible defensive action on the territory of another State. An arguable case can be made that such a right exists where a State is either unwilling or unable to prevent a non-State group from conducting a large-scale cross-border armed attack from the territory of that State – under strict conditions of proportionality.

Even on the basis of such a broad understanding of the right of self-defence, which is being fiercely rejected by a significant number of States and by a significant number of highly respected international lawyers as being unduly permissive, it is impossible to see how Operation ‘Peace Spring’ could be justified under international law. 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).

Read the rest of this entry…

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A Tale of Two Cases: Lessons for the Prosecutor of the International Criminal Court (Part III)

Published on August 30, 2019        Author: 

In earlier posts in this series (here and here) I have examined the ICC Office of the Prosecutor’s (OTP) great successes and failures of July 2019. A successful conviction in Ntaganda and a dismissal of its case in Gbagbo and Blé Goudé. I’ve noted a number of important differences between the two cases and in this post I’d like to reflect on the way forward. First, I will ask what lessons appear to have been taken to heart in the OTP’s new strategic plan. Second, I’ll offer a few brief concluding thoughts to this series of posts.

What has the OTP learned? The Strategic Plan 2019-2021

There are a number of encouraging signs in the new OTP Strategic Plan. Broadly, it acknowledges that preparing high-quality cases with the best chances of success in Court will require pursuing fewer cases, those cases may need to be narrower, and there will need to be a process for situations under preliminary investigation to be closed. Read the rest of this entry…

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A Tale of Two Cases: Lessons for the Prosecutor of the International Criminal Court (Part II)

Published on August 29, 2019        Author: 

In this three part series of posts I’m reflecting on the lessons to be learned from the sharply contrasting results last month at the International Criminal Court with a conviction entered in Ntaganda and reasons finally being released for the dismissal of the Prosecution case in Gbagbo and Blé GoudéThe former involved a rebel commander accused of being a co-perpetrator of attacks against civilians, including sexual offences and sexual enslavement. Yesterday, I noted that in Ntaganda the ICC Office of the Prosecutor (OTP) benefitted from its long engagement with, and consequent deep knowledge of, the relevant conflict. It also ran a well-prepared case targeting a rebel leader (as both a direct and indirect perpetrator) and had framed charges based in common facts and a limited number of key incidents. Gbagbo and Blé Goudé involved allegations that the former president of Côte D’Ivoire organised attacks upon civilian supporters of his principal political rival in post-election violence. The key question, of course, is what accounts for the difference in outcomes?

Today I will examine Gbagbo and Blé Goudé in some detail, and tomorrow I will ask – looking at the OTP’s new strategy document – whether the right lessons have been learned. 

What went wrong in Gbagbo and Blé Goudé

The majority in the Gbagbo and Blé Goudé Trial Chamber for the no case to answer motion were Judges Henderson and Tarfusser, Judge Herrera-Carbuccia dissenting. For reasons of space, I will focus on the Henderson and Tarfusser separate opinions (although technically, Judge Tarfusser concurs in Judge Henderson’s reasons for dismissing the case which makes his opinion the Chamber’s “reasons”). In sum, though, their account of what went wrong for the Prosecutor was: a poorly conducted investigation was conducted which then had to underpin an inflexible and overly simplistic case theory, which was in turn poorly executed in the courtroom. “In a nutshell, the majority acquitted Mr Gbagbo and Mr Blé Goudé because the way in which the Prosecutor depicted their actions and omissions from a legal point of view could not be sustained by the evidence” (Judge Henderson, Preliminary remarks, para 2). These opinions do not make for comfortable reading. Read the rest of this entry…

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A Tale of Two Cases: Lessons for the Prosecutor of the International Criminal Court? (Part I)

Published on August 28, 2019        Author: 

Last month was a mixed one for the ICC Office of the Prosecutor. On 8 July 2019 it appeared that the ICC “had found its footing”, with a Trial Chamber delivering a staid, methodical judgment in Ntaganda. This was a double victory for the OTP: a conviction of a rebel leader in a truly horrific conflict; and a public affirmation that it could present a well-run and coherent case. However, on 16 July 2019, reasons for the ‘no case to answer’ decision were released in Gbagbo and Blé Goudé (‘Gbagbo’) in which the majority (Judges Henderson and Tarfusser) were scathing in their assessment of the OTP’s performance. Then on 26 July 2019 the OTP released the final version of its Strategic Plan 2019-2021 which noted, with some understatement, there has been “a period of mixed results in court” and “significant setbacks”. In fairness to the OTP no-one, not even the majority in Gbagbo, doubts that the OTP has hard-working and dedicated staff prosecuting cases of great complexity (see para 9 of the Reasons of Judge Henderson). The question is, how can the same Office produce such different results? A key problem in Gbagbo was that the majority of the Trial Chamber were completely unpersuaded by the Prosecutor’s ‘system of evidence’ and case theory. Yet, this was not a problem in Ntaganda. What accounts for the difference?

Over three blog posts I propose to look at: first, what went right in Ntaganda; second, what went wrong in Gbagbo; and, third, to ask whether the new OTP Strategic Plan has learned the right lessons and set the right priorities. I will also reflect in that final post on whether these results pose a significant challenge to my recent posts critical of ICC performance (spoiler alert: no, they do not). Read the rest of this entry…

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