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Home Archive for category "International Criminal Law"

Extradition: English Court refuses to extradite alleged génocidaires to Rwanda–will a domestic prosecution follow?

Published on October 2, 2017        Author: 

The Divisional Court of England and Wales has dismissed the appeal of the Government of Rwanda in the high-profile extradition proceedings against five alleged génocidaires in the case of Rwanda v Nteziryayo and ors. The men will not be extradited to Rwanda to stand trial for genocide and it now appears that, if they are to be tried at all, it must be in the UK.

The judgment of the Divisional Court affirmed the decision of District Judge Emma Arbuthnot on 22 December 2015 to discharge the extradition requests on two grounds: double jeopardy–one of the requested persons had been tried in a domestic ‘Gacaca’ court—and article 6 of the European Convention on Human Rights. The Judge accepted the evidence of the requested persons that there was a real risk they might suffer a flagrant breach of their rights to a fair trial if extradited to Rwanda.

The background to this latest decision reveals the evolving measures employed by the international community to promote justice and end impunity for international crimes. 

Following the genocide in Rwanda in 1994, the UN Security Council established the International Criminal Tribunal for Rwanda (ICTR) which was intended to bring to trial those most responsible for the genocide and other serious violations of law perpetrated in Rwanda. Security Council Resolution 1824, passed on July 2008, called for the completion of the work of the ICTR by 2010. Read the rest of this entry…

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The scope of ICC jurisdiction over the crime of aggression: a different perspective

Published on September 29, 2017        Author: 

In his post of 26 June 2017 Dapo Akande asks:

“Are nationals of states that do not ratify or accept the Kampala amendments, and which also do not opt out of ICC jurisdiction as provided for in those amendments, subject to ICC jurisdiction over aggression in cases where the situation is referred to the Court by a state, or the prosecutor takes up the matter proprio motu?”

Why does the answer to this question matter? “No” means that an ICC state party that has ratified the amendments will enjoy the Court’s judicial protection only if it falls victim to aggression by one of the other (currently) 33 ratifying states. It would be an opt-in regime for potential aggressor states, and in fact, they could at any time later opt-out again (opt-in-opt-out). “Yes” means that such protection extends to aggression committed by any of the 123 other ICC states parties – of course with the significant caveat they can still opt out. That would be an opt-out regime. All of this of course only in the absence of a referral by the UN Security Council, which would make state consent a moot point.

The issue is currently discussed by ICC states parties in view of the activation decision to be taken in December 2017. I am therefore happy to explain why I think the answer is “yes”, even though Dapo gave a thoughtful argument for “no”. Read the rest of this entry…

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Who is the victim of cultural heritage destruction? The Reparations Order in the case of the Prosecutor v Ahmad Al Faqi Al Mahdi

Published on August 25, 2017        Author: 

On 17 August 2017, Trial Chamber VIII of the ICC issued its Reparations Order in the Al Mahdi case. The Chamber found that Al Mahdi was liable for 2.7 million euros for (a) the damage caused by the attack of nine mosques and the Sidi Yahia Mosque door; (b) the economic loss caused to the individuals whose livelihoods depended upon the tourism and maintenance of these ‘Protected Buildings’ and to the community of Timbuktu as a whole; and (c) the moral harm caused by the attacks, as illustrated by one of the victims quoted in the order: “My faith is shattered. My family fled [.] […] I lost everything and all my faith” (at §85).

The Reparations Order builds upon the reparations principles established in Lubanga and Katanga. However, it is also one of the few opportunities public international law has had to pronounce upon appropriate reparations for heritage destruction—forming part of the string of ‘firsts’ involved in Al Mahdi thus far.

Who is a ‘relevant victim’ of cultural heritage destruction?

The Chamber identified three groups of victims: the inhabitants of Timbuktu, as the direct victims of the crime; the population of Mali; and, notably, the international community. The latter category is a new element in the reparations jurisprudence of the Court, and its inclusion in the present Order seems to be mostly a consequence of the particular category of crime the Chamber was dealing with. Read the rest of this entry…

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The Defense of ‘Obedience to Superior Orders’ in the Age of Legal Clearance of Military Operations

Published on August 24, 2017        Author: 

A military pilot receives an order to bomb a building in a densely populated city. He is told that the order has received legal “clearance” from military legal advisors. Can the pilot refuse to obey the order without being punished, since he feels that the order is manifestly unlawful? Will the pilot be held criminally responsible if he obeys, and the order is determined, after the bombing, to be manifestly unlawful?

In our brave new world in which many military operations routinely receive legal clearance by military lawyers, these questions have become highly relevant. Last month’s judgment of the Israeli Supreme Court in HCJ 1971/15 Al-Masri v. The Chief Military Advocate General (in Hebrew) offers interesting answers to these questions in an obiter dictum. In the first section of this post, I briefly introduce the legal dilemma at the heart of these questions. Then I present the new Israeli judgment. In the third section, I analyze the obiter dictum and the response offered in it to the legal dilemma. Thereafter I conclude by fleshing out the gist of my criticism on the Al-Masri obiter.   Read the rest of this entry…

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The Al-Werfalli Arrest Warrant: Denial of Fair Trial as an Additional Allegation and a Hint at a Possible Defence

Published on August 23, 2017        Author: 

Last week, the International Criminal Court (ICC) issued an arrest warrant in the Libya Situation against Mahmoud Al-Werfalli. The arrest warrant alleges that Al-Werfalli is criminally responsible for the war crime of Murder, in a non-international armed conflict, pursuant to Article 8(2)(c)(i) of the Rome Statute, in relation to the alleged summary execution of 33 persons. Based on the facts laid out in the arrest warrant, the ICC Office of the Prosecutor (OTP) could also have alleged that Al-Werfalli is criminally responsible for the war crime of “sentencing or executing without due process” (“denial of fair trial”) pursuant to Article 8(2)(c)(iv) of the Rome Statute. This choice would be novel in modern international criminal law practice. However, it has been done in other jurisdictions (See J. DePiazza, “Denial of Fair Trial as an International Crime — Precedent for Pleading and Proving it under the Rome Statute” 15 Journal of International Criminal Justice (2017)). Another interesting element of the arrest warrant is that it hints at a possible defence to any eventual charge of murder or denial of fair trial – mistake of fact.

According to the arrest warrant, Al-Werfalli is a Commander in the Al-Saiqa Brigade, an elite unit reported to comprise 5,000 soldiers. In May 2014, the Brigade joined “Operation Dignity”, with other armed elements, for the reported purpose of fighting terrorist groups in Benghazi. The operation continued until at least 18 March 2017. In this context, the arrest warrant alleges that, in seven separate incidents, 33 persons who were either civilians or persons hors de combat, were detained and then executed. It is alleged that they were either executed personally by Al-Werfalli or on his orders. The arrest warrant further alleges that “[t]here is no information in the evidence to show that they have been afforded a trial by a legitimate court, whether military or otherwise” (Arrest Warrant, para. 10). Read the rest of this entry…

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The Kosovo Specialist Chambers’ Rules of Procedure and Evidence

Published on August 17, 2017        Author: 

The Kosovo Specialist Chambers (KSC) and the Specialist Prosecutor’s Office (SPO) are the latest addition to a multi-layered and broad spectrum of international institutions dedicated to the investigation and prosecution of international crimes. In March 2017, the Judges of the KSC adopted the Rules of Procedure and Evidence (RPE), which are now finally available on the Tribunal’s website. In the following, I will provide a first analysis of the RPE and evaluate them against existing procedural laws of International(ized) Criminal Tribunals (ICTs). It goes without saying that, in the face of the sheer number of rules (211), this analysis can only be cursory.

The biggest achievement of the Judges certainly is that they translated the institutional uniqueness of the KSC – an internationalized tribunal with a Constitutional Chamber (‘Specialist Chamber of the Constitutional Court’) and the European Union as the primary sponsor – into the rules. This especially becomes apparent through the incorporation of an interpretation rule (Rule 4) into the RPE, which refers – inter alia – to ‘the framework as set out in Article 3 [KSC-Law]’. This Article 3 (its length makes it impractical to reproduce it here) is not only a modern version of Article 21 of the ICC-Statute. It also determines that the KSC shall adjudicate and function in accordance with the European Convention on Human Rights and Fundamental Freedoms (ECHR) and the Constitution of Kosovo. This is remarkable in many regards: the preference to refer to the ECHR rather than ‘internationally recognized human rights’ (Article 21(3) ICC-Statute) has the potential of strengthening the rights of the defendant. The vagueness of the term ‘internationally recognized human rights’ has led to the assumption that it denotes something less than universal acceptance. The European human rights jurisprudence, by contrast, is one of the most developed and most discussed in secondary source material (Young, ICLQ 60 (2011), 204). Moreover, through its Article 22, the Constitution of Kosovo gives the ECHR constitutional value. Of course, one could think that this does not make any practical difference, since the ECHR is mentioned as a source of the KSC anyway. However, recall that Kosovo is not a party to the ECHR and therefore not internationally liable for its implementation. The reference to the ECHR in Kosovo’s Constitution makes these human rights justiciable because both the accused and the victim are entitled to make referrals to the Constitutional Chamber in relation to alleged violations by the KSC of their human rights guaranteed by the Constitution (Article 113(7) Kosovo Constitution). Thus, in questions of the KSC’s activity and subject-matter jurisdiction, it is the Constitutional Chamber – not an appellate body – that serves as the final authority for the interpretation of the Constitution (Article 49 KSC-Law). This turns the rights enshrined in the ECHR into basic rights and contributes to a constitutionalization.

Of course, the strengthened judicial review at the KSC through the establishment of a Constitutional Chamber comes at a price, and it does not take much to predict a governance problem. More concretely, as praiseworthy as a constitutionalized ECHR may be in theory, in practice it will not make it any easier for the Judges to face the daily task of running an ICT. Take, for instance, the first Constitutional Chamber judgment about the constitutionality of the KSC RPE, Rule 19 in particular: in the version that was first referred to the Constitutional Chamber on 27 March 2017, Rule 19 contained a paragraph 3 where a hearing could continue for no more than five working days in the presence of just two instead of three Judges, in case one Judge was absent due to circumstances such as illness. Such a rule has great practical importance and is modelled after Rule 16(A) of the Special Court for Sierra Leone (SCSL) RPE and Rule 15bis ICTY RPE. Nevertheless, the Constitutional Chamber declared Rule 19(3) KSC RPE unconstitutional, because Article 25(1) KSC-Law prescribes that the Trial Panels, Court of Appeal Panels and Supreme Court Panels are comprised of ‘three’ Judges, and the KSC-Law is silent on whether hearings may be conducted before a ‘Panel’ of two Judges (Specialist Chamber of the Constitutional Court, para. 39). Read the rest of this entry…

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Why the ICC won’t get it right – The Legal Nature of UN Security Council Referrals and Al-Bashir Immunities

Published on July 24, 2017        Author: 

As readers of this blog probably know, the issue of personal immunities of Sudanese President Al-Bashir is highly controversial (see here, here, here, here, here, here, here and here). In particular, previous rulings by the ICC’s Pre-Trial Chambers have been criticized for their incorrect, inadequate and/or inconsistent reasoning for concluding that personal immunities do not apply in case of Sudanese President Omar Al Bashir.

On 6 July 2017, the Pre-Trial Chamber II issued yet another set of arguments for the same conclusion (here), while Judge Marc Perrin de Brichambaut issued a minority opinion disagreeing with the majority’s reasoning (here). In essence, the PTC II, by majority, held that

because the rights and obligations as provided for in the Statute, including article 27(2), are applicable to Sudan (by imposition of the Security Council acting under Chapter VII of the UN Charter), the immunities of Omar Al-Bashir as Head of State do not bar States Parties to the Rome Statute from executing the Court’s request of his arrest and surrender (para 107)

Disagreeing with the majority decision, Judge Brichambaut found that “the current state of the law does not allow a definite answer to be reached in relation to the question of whether this resolution removes the immunities of Omar Al Bashir” (para 83). However, Judge Brichambaut finds that

The combined effect of a literal and contextual interpretation of article IV of the Genocide Convention, in conjunction with an assessment of the object and purpose of this treaty, lead to the conclusion that Omar Al-Bashir does not enjoy personal immunity, having been “charged” with genocide within the meaning of article VI of the Genocide Convention. (para 100)

In this blog post, I am not addressing the decision or the minority opinion specifically (as I am sure others will do so shortly). Rather, I wish to present a theory of the legal nature of SC referrals, without which, the ICC will not get the issues surrounding Bashir’s immunities right. Read the rest of this entry…

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Facts, Alternative Facts, and International Law

Published on May 29, 2017        Author: 

On October 3, 2015, at 2:08a.m., a U.S. Special Operations AC-130 gunship attacked a Doctors Without Borders [Médecins Sans Frontières, MSF] hospital in Kunduz, Afghanistan, with heavy fire. Forty-two people were killed, mostly patients and hospital staff members. Dozens of others were injured, and the hospital building was severely damaged and subsequently closed. When the dust finally settled, the question that pre-occupied the press and most pundits was whether this was a war crime.

Attempts to answer this question prompted discussions about the relevant laws and their proper interpretation, which, in turn, fueled disputes about specific facts relevant to these laws. Recent news stories about the Trump administration’s plan to relax some of the battlefield rules further intensified the legal controversies. Unfortunately this focus on questions of law, guilt, and blame divert attention from the more basic questions of what actually happened, why it happened, and what might be done to prevent similar incidents in the future.

The attack on the Kunduz hospital and the controversy that followed it exemplify a broader phenomenon. Legal fact-finding reports set to resolve factual disputes often trigger more controversies, and are poorly equipped to mobilize domestic sanctioning and condemnation of war criminals by their societies. People are motivated to believe what they already know, and to reject facts that are inconsistent with their prior beliefs and political ideology. Legal fact-finding reports are susceptible to social biases just as any other source of information. Therefore, they often fail to create a shared understanding of ‘what happened’ or to combat denialism of crimes. They also lack the emotional appeal, participatory value, and social cues that moral expressions or other types of social truth-telling entail. Read the rest of this entry…

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Filed under: EJIL Analysis, War Crimes
 
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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: 

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…

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Chechnya’s Anti-Gay Purge: Crimes Against Humanity

Published on May 9, 2017        Author: 

Despite widespread condemnation from the U.N., Council of Europe, E.U., United States, and other countries, a brutal campaign against gay men in Chechnya continues. The abuses take the form of abduction-style detention, enforced disappearances, torture, and killings. Considering the systematic features and the brutality of the abuses, Chechnya’s anti-gay campaign amounts to crimes against humanity, and it demands proper condemnation and response from the international community.

Crimes against humanity, as an international crime, has been defined in various statues and law commissions’ proposals since 1945. They each have their own distinctive feature tailored to the specific historical context during which they were drafted. For example, the Nuremberg Charter and the International Criminal Tribunal for the former Yugoslavia (ICTY) Statute’s definition require the element “in armed conflicts”, while the International Criminal Tribunal for Rwanda (ICTR) Statute requires a discriminatory intent. This note uses the definition in Article 7 of the Rome Statue of the International Criminal Court (ICC): “any of the acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack,” followed by specific acts listed in sub-paragraphs. This definition has been almost entirely adopted by the International Law Commission in its latest version of draft articles on crimes against humanity (note: the proposed draft articles are still in work progress).

Murder, Imprisonment, Torture, Enforced Disappearance, and Other Inhumane Acts

The argument that the Chechnya’s campaign against gay men constitutes crimes against humanity as the criminal acts listed in Article 7.1 (a), (e), (f), and (i) is quite straightforward. There has been credible reporting on abuses committed against gay men in Chechnya, including abduction, imprisonment, enforced disappearances, torture, and killings. All the described abuses have been approved by Chechen local government, with Moscow turning a blind eye to them. In many cases, violations were directly committed by Chechen security forces. Read the rest of this entry…

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