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The Ituri Conundrum: Qualifying Conflicts between an Occupying Power and an Autonomous Non-State Actor

Published on July 15, 2019        Author: 
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Last week, Trial Chamber VI of the International Criminal Court (ICC) issued the long-awaited judgment in the Ntaganda case. The judges found the defendant guilty on all 18 counts, including the ICC’s first ever conviction for sexual slavery. Although the Chamber is yet to resolve matters related to sentencing and reparations, the decision marks an important milestone in the proceedings, which began with an arrest warrant issued back in August 2006 (Mr Ntaganda surrendered himself to the ICC in March 2013).

Readers of this blog will be familiar with the case as well as with some of the controversies surrounding its progress. In brief, Bosco Ntaganda was the Deputy Chief of Staff of the Patriotic Forces for the Liberation of Congo (FPLC), the armed wing of the Union of Congolese Patriots (UPC). The UPC/FPLC was one of the armed groups involved in the so-called Ituri conflict, which took place between 1999 and 2003 in the Ituri region in the north-eastern Democratic Republic of the Congo (DRC). Before the ICC, Mr Ntaganda was charged with 13 counts of war crimes and five counts of crimes against humanity, all allegedly committed in Ituri between 2002 and 2003.

The judgment, which fills over 500 pages, no doubt deserves careful scrutiny before any general pronouncements can be made as to its overall quality and rigour. Instead of analysing the judgment as a whole, this post focuses on a narrow question related to the Chamber’s legal qualification of the conflict in Ituri at the material time (discussed in paras 699–730 of the judgment). In particular, I am going to look at how international humanitarian law (IHL) qualifies conflicts between an occupying power and an autonomous non-State actor. The analysis builds on my research into complex conflict situations, which was published as part of my recent book on Internationalized Armed Conflicts in International Law (OUP 2018, especially chapter 3).

The situation in Ituri between 2002 and 2003 was notoriously convoluted, Read the rest of this entry…

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Canada Avoids Indigenous Reconciliation and the UN Declaration on the Rights of Indigenous Peoples

Published on July 3, 2019        Author: 
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If you believe that Canada is a country filled with self-effacing and polite people, you may miss the genocidal violence within its borders. First Nations, Inuit, and Métis have always known that the Government of Canada along with the Canadian provincial governments have deliberately implemented and enabled the continuous annihilation of Indigenous peoples. The National Inquiry into Missing and Murdered Indigenous Women and Girls found in its report, released earlier this month, that Indigenous women were 12 times more likely to be killed or to disappear than other women in Canada. The report concluded that this violence is the result of historical and ongoing race-based genocide against Indigenous peoples.

The National Inquiry was commissioned by the Government of Canada in 2015 to launch a public inquiry into the disproportionate levels of violence against Indigenous women and girls. It was the result of long-standing pressure from grassroots family members and survivors, community organizations and national Indigenous organizations, international human rights organizations, and the Truth and Reconciliation Commission of Canada. It took a tragedy in 2014 to lead to a public inquiry: the body of Tina Fontaine, a 15-year-old girl from the Sagkeeng First Nation, was found in the Red River in Winnipeg, Manitoba wrapped in a duvet weighed down with 25 pounds of rocks; when the main murder suspect was acquitted, people across the country were outraged which generated wide-spread calls for an investigation into why Indigenous girls and women were dying at a high rate.

The report’s conclusion was not new news to anyone who understood Canadian politics. What is noteworthy is that Prime Minister Justin Trudeau publicly accepted that Canada has committed and continues to commit genocide. Many citizens and prominent officials in Canada, however, had a visceral reaction against the characterization of the violence as genocidal. It did not match the story that Canadian citizens and government officials tell themselves about Canada as a promoter of international human rights abroad or of what they thought modern genocide looks like.

Never has international law forced Canada to face itself so honestly. Some are arguing that because genocide did not exist as an international crime before the 1948 Geneva Conventions, the colonial violence in Canada’s past may not fall under the gambit of modern international criminal law (here and here) even if they reverberate today. These arguments, however, treat colonialism in Canada as a punctuated historical phenomenon. Read the rest of this entry…

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Filed under: Genocide, Indigenous Peoples
 
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Clarifying the Contours of the Crime of Starvation

Published on June 27, 2019        Author:  and
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The Lack of Prosecutions

Starving civilians as a method of warfare has long been prohibited and criminalised across the full spectrum of international legal frameworks, yet despite this criminalisation and its grave human cost, there has yet to be a prosecution of starvation on the international level. Consequently, the crime and its intersection with a wide range of other violations remain entirely unexplored.

The crimes that have oc­cupied the international courts are those most frequently associated with an ongoing armed conflict. Whether the persecutory rapes in Bosnia, the slaughter in Rwanda, or the amputations of civilians in Freetown in Sierra Leone. This is the type of criminal conduct that appears to have shaped the perception of the type of deaths and injury that are most appropriate for prosecution in modern international criminal courts, with starvation languishing on the margins of prosecutorial imagination and practice.

In a legal policy paper recently issued by Global Rights Compliance (GRC), we set out in more detail the reasons behind the dearth of prosecutions and explore the paths to prohibition and accountability for the widespread and systematic death and suffering that it causes worldwide, with a focus on criminal prosecutions.

The F Word – The Return of Famines

Famines have returned and they strike where accountability (political or criminal) fails. In 2017 the UN identified four situations of acute food insecurity that threatened famine or breached that threshold, in north-eastern Nigeria, Somalia, South Sudan and Yemen. In December 2018 famine was formally declared across regions of Yemen, this is likely to be the famine that will define this era. Starvation is also being used as a weapon of war in Syria and the Democratic Republic of Congo. The Gaza Strip and in Venezuela also suffer from the manipulation, obstruction and politicization of food and humanitarian aid. Read the rest of this entry…

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Interests of Justice? The ICC urgently needs reforms

Published on June 11, 2019        Author: 
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The demands for an “independent evaluation” through a small group of experts, formulated by four former presidents of the Assembly of State Parties of the International Criminal Court (ICC) and accompanied by several critical blogs (see, inter alia, here, here, here and here) is the outcome of several controversial court decisions and the Court’s manifest problem in its decision-making process, i.e., its serious governance problems.

Probably the most controversial decision, made on 12 April 2019, concerns the rejection by Pre-Trial Chamber (PTC) II of the Prosecutor’s application of the initiation of a (formal) investigation into the Afghanistan situation involving crimes allegedly committed by the Taliban, Afghan and US military forces. The PTC based its decision on a broad interpretation of the ambiguous concept of “interests of justice” (Art. 53(1)(c) Rome Statute) and the expected lack of cooperation by Afghanistan and the USA, allegedly resulting in limited chances of a successful investigation. Thereby the Chamber converts the interests of justice concept into a utilitarian efficiency clause which is predicated on the possible success of the proceedings. Not only is this difficult to reconcile with the rationale of the said concept but also incompatible with the wording of Art. 53(1)(c) which links the “interest of justice” to, inter alia, the gravity of the crime and the interests of the victims. Yet, both of these criteria speak for the opposite result than that reached by the Chamber, namely the opening of the formal investigation. For the gravity of the crimes is acknowledged by the Chamber itself and the victims’ interests are reflected by the submission of information by hundreds of them during the preliminary examination. If a Chamber considers that despite the existence of gravity and interests of victims “an investigation would not serve the interests of justice”, i.e. “nonetheless” (Art. 53(1)(c)) the existence of these criteria, it must show that there are more important “substantial reasons” which displace the prima facie interests of justice (derived from gravity and victims’ interests) in favour of opening a formal investigation. In other words, while the term “nonetheless” makes clear that there may be countervailing considerations which may speak against the opening of an investigation despite gravity and victims’ interests, these countervailing considerations must be thoroughly substantiated and, at any rate, do not turn the interests of justice clause into a mere, free floating policy factor which gives a Chamber an unfettered discretion (see also Ambos, Treatise International Criminal Law Vol. III, 2016, p. 390). The present Chamber fails to grasp these complexities and therebyshows a lack of sensibility with regard to the “interests of justice” concept. Thus, it is not surprising that the decision has met serious criticisms in the international criminal law blogsphere (see here, here, here and here) and the Prosecutor filed a leave to appeal request on 7 June 2019. The most recent Appeals Chamber decision from the 6 May 2019, denying the personal immunity of the then Sudanese President Al-Bashir and interpreting the non-immunity rule of Art. 27 Rome Statute as one of customary law, has also received some criticism (see here and here) but ultimately deserves support (see here and here) since it confirms the historical (Nuremberg) trend of non-immunity in international criminal justice. Read the rest of this entry…

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A Hidden Reading of the ICC Appeals Chamber’s Judgment in the Jordan Referral Re Al-Bashir

Published on June 6, 2019        Author: 
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On 6 May 2019, the Appeals Chamber of the International Criminal Court (ICC) issued the Judgment in the Jordan Referral re Al-Bashir Appeal. It found that Jordan had no ground to refuse to execute the request by the ICC for arrest and surrender of Omar Al-Bashir, the then Head of State of Sudan – a State not party to the Rome Statute.  In this highly controversial judgment, the Appeals Chamber held that ‘[t]here is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court.’ (par. 1, 113) Endorsing the ICC Pre-Trial Chamber I’s 2011 Malawi Non-Cooperation Decision, the Appeals Chamber furthermore held that ‘[t]he absence of a rule of customary international law recognising Head of State immunity vis-à-vis international courts is relevant […] also for the horizontal relationship between States when a State is requested by an international court to arrest and surrender the Head of State of another State.’ (par. 114)  

The Chamber could have ended its judgment on the issue of immunities there, as this finding on customary international law, if correct, would seem to dispose of the matter. However, it decided to also consider the position taken  by Pre-Trial Chamber II in the Jordan Non-Cooperation Decision, that the immunity of the Sudanese President was removed by virtue of the Security Council (SC) resolution referring the situation in Darfur to the ICC.

In this post, I will argue that the Chamber not only confirmed the legal validity of what has been termed the ‘Security Council route’ – as developed in the Jordan & South Africa Non-Cooperation Decisions – but actually upheld that it is such reasoning that must be applied at the horizontal level to displace the immunity of a Head of State of a non-party State. I will show that this conclusion flows from the Joint Concurring Opinion of 4 of the 5 Appeals Chamber judges (Judges Eboe-Osuji, Morrison, Hofmański and Bossa) – constantly referred to in the main Judgment for further elaboration – and the recently issued Q&A regarding the Appeals Chamber Judgment. Read the rest of this entry…

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Whither the Aspirational ICC, Welcome the ‘Practical’ Court?

Published on May 22, 2019        Author: 
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What is the promise of the International Criminal Court (ICC)? What do we, as observers, scholars, and constructive critics of the Court, believe that the ICC should do in a world of populism, altered balances of power, and persistent atrocity? Why has the Court been able to achieve so little and what would be required, in terms of new strategies and reforms, to build a better ICC? What do we believe that the institution should look like in the future? What is our vision of the ICC?

Over the past few weeks, EJIL:Talk! has hosted a number of thoughtful and thought-provoking essays seeking to answer some of these questions. With this piece, I want to ask admittedly less than legal questions: is the ICC becoming a less aspirational institution and can we balance the aspirations of ICC justice with the need to deliver meaningful accountability?

The Shadow of Expectations

It is now conventional wisdom that, for the majority of its existence, the ICC and its backers promised too much to too many. As is often pointed out, the Court and its most fervent champions set expectations that the ICC could never meet. They insisted that the Court would end impunity for international crimes, put victims front and center in all of its work, transcend global power relations, deter mass atrocities, hold the most powerful to account, promote reconciliation… you name it. It’s a laundry list of things that the ICC didn’t achieve because it couldn’t achieve them. It should never have been asked to.

The ICC hasn’t been a panacea for political ills such as violent political conflict or social challenges such as reconciliation. Unmet expectations have thus left many proponents privately regretful of having espoused unrealistic expectations about the Court and worrying about the disappointment that ensued. Now, the aim of many – both inside and outside of the ICC – is to focus on being realistic and on what the Court can realistically achieve. But there may be a cost to bending too far towards practicality: the loss of an institution that is meaningfully aspirational. The goal must be to strike a balance practicality and aspiration. Read the rest of this entry…

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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: 
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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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Symposium on the Genocide Convention: Is the Duty to Prevent Genocide an Obligation of Result or an Obligation of Conduct according to the ICJ?

Published on May 16, 2019        Author: 
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Editor’s note: This is the final post in our blog symposium arising out of the Nottingham International Law and Security Centre conference to mark the 70th Anniversary of the Genocide Convention. Read the other posts in this symposium here and here.

This post questions the findings of the International Court of Justice (ICJ) in the 2007 Bosnia v. Serbia case, according to which the duty to prevent a genocide is an obligation of conduct that can be assessed only after the occurrence of a genocide. The post first briefly explores the distinction between obligations of conduct and obligations of result on the basis of the International Law Commission (ILC)’s works and judicial practice. The post moves on to emphasise some inconsistencies in the ICJ’s reasoning in relation to the occurrence of a genocide as a prerequisite for the violation of the duty to prevent genocide. Finally, the post advances some possible explanations of the role of the event ‘genocide’ in relation to the duty to prevent genocide.

The 2007 ICJ’s Decision

In the 2007 Bosnia v. Serbia case, the Court for the first time declared that an autonomous obligation of diligent conduct to prevent genocide exists under Article I of the 1948 Genocide Convention (see my reflections here). According to the Court:

It is clear that the obligation in question is one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible. A State does not incur responsibility simply because the desired result is not achieved; responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide. In this area the notion of “due diligence”, which calls for an assessment in concreto, is of critical importance. (para 430, emphasis added)

The Court went on to affirm that a breach of the duty to prevent genocide can be assessed only after a genocide has occurred. The Court took the view that:

a State can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed. It is at the time when commission of the prohibited act (genocide or any of the other acts listed in Article III of the Convention) begins that the breach of an obligation of prevention occurs. […] If neither genocide nor any of the other acts listed in Article III of the Convention are ultimately carried out, then a State that omitted to act when it could have done so cannot be held responsible a posteriori, since the event did not happen. (para 431, emphasis added)

However, the view that a genocide must occur before a State’s compliance with the duty to prevent genocide can be assessed ignores the fact that this duty is a due diligence obligation of conduct. This conclusion is supported by the analysis of the evolution of the notion of obligations of conduct. Read the rest of this entry…

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Symposium on the Genocide Convention: Reflecting on the Genocide Convention at 70: How genocide became a crime subject to universal jurisdiction

Published on May 16, 2019        Author: 
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Editor’s note: This is the second post in our blog symposium arising out of the Nottingham International Law and Security Centre conference to mark the 70th Anniversary of the Genocide Convention. Read the first post here.

The 9th of December 2018 marked the 70th anniversary of the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide 1948 by the United Nations General Assembly. Article 6 of the Convention expressly grants adjudicatory jurisdiction to the territorial State (the State where the crime occurred) and to an international penal tribunal with the acceptance of the Contracting Parties. However, the textual content of the Article has not prevented the application of extraterritorial jurisdiction to the crime, including universal criminal jurisdiction. Reflecting on the Genocide Convention at 70, this post briefly analyses the development of universal jurisdiction over the crime of genocide. It explains how Article 6 has led to the application of the universality principle to the crime, and considers what can be learned from this phenomenon in the context of the legacy of the Genocide Convention.

The origins of the application of universal jurisdiction to genocide began decades before the drafting of the Genocide Convention in 1947. Read the rest of this entry…

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