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Home Archive for category "International Criminal Law"

The ‘Security Council Route’ to the Derogation from Personal Head of State Immunity in the Al-Bashir Case: How Explicit must Security Council Resolutions be?

Published on September 19, 2018        Author: 
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Last week, the Appeals Court of the International Criminal Court (ICC, the Court) held hearings in relation to Jordan’s Appeal from a decision of Pre-Trial Chamber (PTC) II holding that it has failed to cooperate with the Court in the arrest and surrender of Sudan’s President, Omar Al-Bashir. As is well known, Al-Bashir is presently subject to an ICC Arrest Warrant for committing war crimes, crimes against humanity and genocide in Darfur, following the referral of the situation by the Security Council (SC) to the Court. He has made a series official visits to Jordan and other states parties to the ICC Statute (the Rome Statute). However, none of those states has dared to arrest him to date. Their principal argument is that Al-Bashir enjoys personal immunities from foreign domestic jurisdiction under treaties and customary international law, that these are not covered by the removal of immunity in Art. 27(2) of the Rome Statute, and are thereby safeguarded by Art. 98 of the Statute.

The hearings, together with the Appeals Chamber’s decisions leading to them, represent a unique moment in the history of international criminal law for two main reasons. First, this is the first time in which the ICC has invited, accepted and heard submissions from leading international law scholars as amici curiae, as well as engaged in direct (and sometimes heated!) oral discussions with them. Secondly, some of the legal and policy issues discussed in the hearings are of fundamental importance to international criminal law and public international law in general. They include questions such as the extent of the SC’s powers, a possible customary international law exception to personal immunities before international criminal tribunals, and the practical importance of preserving such immunities for international peace and security. Thus, watching the hearings online has certainly kept some of us entranced during the entire week.

However, aside from the special role attached to academic commentary and from the systemic issues discussed in the hearings and in the written observations, one question seems to have been at the heart of the debates on Al-Bashir’s immunities. This question is whether the SC can implicitly derogate from personal immunities otherwise applicable under treaties or customary international law, or whether it must do so explicitly. Indeed, all parties and participants seem to agree that the SC has the power to displace personal immunities and other rules of treaty or general international law, except for jus cogens norms. Yet they disagree as to how clear the Council must be in order to do so. Read the rest of this entry…

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The Hartford Guidelines on Speech Crimes in International Criminal Law

Published on August 31, 2018        Author: 
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Armed conflicts and mass atrocities are usually preceded by a propaganda campaign in which politicians and public figures foment ethnic, national, racial or religious hatred, and incite their followers to acts of violence. Since the ancient Greeks, criminal law has held the person inciting the crime as responsible as the material perpetrator and yet historically, the international legal mechanisms available to interdict and punish inciters have been meager.

International tribunals face unique challenges when adjudicating international speech crimes such as direct and public incitement to commit genocide and instigating crimes against humanity. Courts must balance freedom of expression, a right protected by international conventions, with the need to regulate potentially harmful speech. Offences such as instigating persecution and incitement to genocide remain an unsettled area of international law where the evidence required to satisfy the elements is unclear. Recently at the ICC, prosecution cases relying heavily on speech acts to demonstrate a contribution to an alleged criminal plan have collapsed at the pre-trial or trial stage (e.g., Mbarushimana and Ruto/Sang). Even when the prosecution secures convictions, the legal reasoning in the judgments is often roundly criticized by legal scholars (e.g., Nahimana and Bikindi at the ICTR).

With inchoate crimes such as incitement to genocide, the primary task of the court is to determine the intentionality of the speaker, a task that is made more difficult by the fact that propagandists often use coded or euphemistic speech which courts may perceive as symbolic or expressive, rather than as directly advocating a crime. In the case of completed crimes, international courts must ascertain whether there is a causal nexus between the expression and any subsequent offence in complex, overdetermined situations where multiple forces are at work and intervening factors may exist. Read the rest of this entry…

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Transitional Justice Without Truth?

Published on August 27, 2018        Author: 
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During his election campaign, Colombia’s new president Iván Duque announced that he would seek amendments to the peace agreement with the FARC-EP of 24 November 2016 and the ensuing unique Colombian system of Transitional Justice (TJ) (Sistema Integral de Verdad, Justicia, Reparación y No Repetición, SIVJRNR– see here for details of that system). Now, the parliamentary group of his party (Centro Democrático, CD) in the Colombian Congress has followed his words with deeds and launched a proposal for a constitutional amendment (Transitional Article 5A) (of which the government, however, was, according to its spokesperson, not aware). Under this amendment, all the TJ-organs, in particular the Truth Commission (Comisión para el Esclarecimiento de la Verdad, la Convivencia y la No Repetición) and the Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, JEP), will be denied access to confidential information affecting national security. This proposed amendment follows another change that the CD  has proposed to the procedural regime of the Special Jurisdiciton for Peace, shortly after the presidential election (still in the former Congress). Under that change, surrender of military personnel to the Special Jurisdiction for Peace would be voluntary and there would be a separate jurisdiction for the military. However, the constitutionality of this rule is very doubtful because it would undermine the constitutional TJ framework. From this perspective, it is consistent that the new government is now preparing an amendment of the Constitution itself, by denying the TJ organs access to information.

Of course, the new proposal amounts to a frontal attack on any TJ-system, because its central component is the establishment of (historical) truth and, based on this, a cultural memory. Such a cultural memory is important for any transitional society in its entirety, both for victims and perpetrators, as both groups are part of this society. But how can a proposal that practically hinders the establishment of truth and memory be reconciled with victims’ rights that the new government has repeatedly called for, in particular the right to truth? How can historical truth be established without access to the information in question? Read the rest of this entry…

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Jurisdictional Immunities in the New York Southern District Court? The case of Rukoro et al. v. Federal Republic of Germany

Published on August 13, 2018        Author:  and
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In 2015, German State officials began referring to the atrocities committed by Imperial German soldiers in today’s Namibia between 1904 and 1908 as ‘what would now be called genocide’. This paradigm shift sparked considerable societal debate about Germany’s long neglected colonial past – finally, one might say. Although an official apology is still lacking, Germany and Namibia are currently addressing this ‘terrible chapter in history’ at an inter-State level. Despite this diplomatic progress, however, and much to the dismay of many descendants of victims of the German colonial era, individual compensation is not a subject of those negotiations. On 5 January 2017, various Herero and Nama representatives filed a (subsequently amended) class action complaint against Germany in the New York Southern District Court, which addresses both past and present day issues (for an overview of the case see here and here). The plaintiffs, first, request compensation for ‘the horrific genocide and unlawful taking of property’ by Germany (complaintpara 1). Secondly, the plaintiffs ask the Court to declare that their exclusion from the ongoing negotiations between Germany and Namibia violates international law (ibid. para 2).

After more than one and a half years of proceedings, things now seem to be getting serious. At a ‘pre-trial conference’ held on 31 July, both parties pleaded for the first time on the delicate question of the Court’s jurisdiction. This short contribution focuses on whether and to what extent Germany is entitled to claim immunity from jurisdiction. It then analyses at which point of the proceedings this immunity would be (or has already been) violated, and considers possible implications of the case from an immunity perspective and beyond.

Can Germany claim immunity from jurisdiction?

Deriving from the sovereign equality of States, jurisdictional immunity protects States from being subjected to the jurisdiction of courts in another State. It is widely accepted in contemporary international law that States only have an obligation to give effect to this immunity for another State’s acta jure imperii. The ICJ defined these as ‘exercises of sovereign power’ (Jurisdictional Immunities, para 60), as distinct from States’ private and commercial activities (acta jure gestionis), which are excluded from the scope of immunity.

Today’s negotiations between Germany and Namibia – the object of the plaintiffs’ second request – touch upon issues such as inter-State compensation (and other forms of redress). Such matters can only be settled by States acting in sovereign capacity, i.e. by way of acta jure imperii. The various acts of the colonial era – the objects of the plaintiffs’ first request – have to be distinguished. The genocidal crimes were committed by Imperial Germany’s armed forces in military operations. A State’s armed forces typically exercise sovereign power. The situation is less clear when it comes to the takings of property. The plaintiffs seem to argue that these were sovereign acts (complaint, para 39). Yet, the German authorities also stripped many Herero and Nama of their belongings by (grossly unfair) contracts. If viewed as private law agreements, these might constitute acta jure gestionis. From an international law perspective, a more nuanced assessment of the different forms of colonial wrongs could therefore have been a promising strand of argument for the complaint. Read the rest of this entry…

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Rome Statute at 20: Suggestions to States to Strengthen the ICC

Published on August 6, 2018        Author:  and
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This year marks the 20th anniversary of the adoption of the Rome Statute, the treaty that established the International Criminal Court (ICC, Court), the world’s only permanent tribunal with a mandate to investigate and prosecute genocide, crimes against humanity, war crimes, and the crime of aggression. The euphoria that greeted its adoption has been tempered by an appreciation of its limits. Disappointment with the Court’s record has led to pessimism about the future of international criminal justice generally. Critics point out that the ICC has spent nearly US$1.5 billion since it began operations in 2002 and, in that time, convicted just three people on charges of war crimes and crimes against humanity.

The truth is more nuanced

But the ICC is more active, and its cases more complex, than many of its critics realize. The ICC has brought cases against 42 individuals, resulting in eight convictions (five for witness tampering). Cases have failed, for a variety of reasons – including state obstruction of access to evidence, and bribery and intimidation of witnesses – at the pre-trial, trial and appeal stages. Four persons are currently on trial; another is in ICC custody at the confirmation of charges stage. A large proportion of those charged are fugitives.

Another key point is that the ICC is a court of last resort. It does not have primacy of jurisdiction like the tribunals for the former Yugoslavia (ICTY), Rwanda (ICTR), Sierra Leone (SCSL), and Cambodia (ECCC). Instead, the ICC’s guiding principle is complementarity: it will not intervene if a State is genuinely investigating or prosecuting. So, by design, the ICC’s duty to investigate and prosecute is deferential to domestic jurisdictions, which can result in challenging circumstances for all involved. Unlike predecessor tribunals, the Office of the Prosecutor (OTP) must devote considerable resources to encouraging, and assessing the progress of, domestic legal processes.

The Court carries a heavy workload and is forced to spread its resources thinly. Whereas the ICTY, ICTR, SCSL and ECCC had scores of lawyers and analysts poring over evidence from one conflict, the ICC has to deal with many. It is currently carrying out “preliminary examinations” in Afghanistan, Colombia, Gabon, Guinea, Iraq, Nigeria, Palestine, the Philippines, Ukraine and Venezuela. It is conducting investigations in Uganda, the DRC, Darfur, the Central African Republic (CAR), Libya, Côte d’Ivoire, Mali, Georgia and Burundi. Each requires mastering a complex conflict with shifting alliances, an array of State and non-State actors, and dozens of societal factors central to a proper contextual understanding. Each requires gaining access to reliable evidence necessary to determine which party is responsible for which crimes, and whether the state is genuinely investigating or prosecuting. This requires a great deal of diplomatic engagement with numerous States. Read the rest of this entry…

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Geographical Remoteness in Bemba

Published on July 30, 2018        Author: 
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Introduction

The ICC Appeals Chamber’s acquittal of Jean-Pierre Bemba Gombo continues to provoke discussion. In a previous post, I addressed the Appeals Chamber’s treatment of the relevance of a commander’s motivation in taking measures to prevent or punish the crimes of his subordinates. This issue of motivations was one of two putative errors emphasised by the Appeals Chamber in its summative paragraph – paragraph 191 – on the Trial Chamber’s finding that Mr Bemba failed to take all necessary and reasonable measures. The second putative error identified in that paragraph concerned the Trial Chamber’s failure to properly take into account the difficulties that Mr Bemba would have faced as a remote commander sending troops to a foreign country.

The description of Mr Bemba as a remote commander has been emphasised in numerous media reports, as well as in academic commentary. A concern raised in the latter is that the decision introduces a new distinction into the law of command responsibility – a distinction between remote and non-remote commanders, with the former being held to a lower standard than the latter. This post analyses how the Appeals Chamber dealt with the remoteness issue. First, it sets out the Majority Judgment’s findings on Mr Bemba’s status as a remote commander and suggests that it is not clear whether it intended to draw a legal distinction between commanders. Second, it argues that the drawing of such a distinction would be indefensible as a matter of principle – geographical position ought not be used to distinguish between commanders. Third, and happily, it shows that even if the Majority Judgment is unclear, President Oboe-Osuji’s Concurring Separate Opinion and the Joint Dissenting Opinion of Judges Hofmanski and Monageng indicate that there weren’t three votes for the introduction of any such distinction. In other words, the decision in Bemba does not stand for the proposition that we are now faced with an additional distinction in the law of command responsibility. Finally, it returns to Bemba itself, and the Majority Judgment’s reasoning on this point. That reasoning is not convincing. Read the rest of this entry…

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Not Appropriate:  PTC I, Palestine and the Development of a Discriminatory ICC Jurisprudence

Published on July 26, 2018        Author:  and
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On 13 July, Pre-Trial Chamber I (PTC I) issued an unprecedented decision in which it ordered the Registry to establish unique public information and outreach activities for the “benefit of the victims in the situation in Palestine”, as well as to report on its situation activities on an ongoing basis.  No Pre-Trial Chamber has made the same orders with respect to victim outreach in a situation under preliminary examination before, and the legality, timing, and singular nature of the decision all give rise to concern. 

The decision singles out victims of one situation whilst ignoring others, reflecting a double standard which forms the basis of Israel’s complaints that its rights to equal treatment are systematically violated before 21st century international organisations and tribunals. In this sense, the decision is illuminating as it demonstrates to international criminal law practitioners how PTC I has substantiated Israel’s complaint of double standards in the Chambers’ first substantive engagement with the Situation in Palestine. Given the unique way that the Situation in Palestine has been singled out, PTC I’s decision will be viewed by many as a political one.  This is an accusation which, especially after the collapse of the Kenya cases, the ICC should be more wary of making itself susceptible to.

The Legality of the PTC Decision Read the rest of this entry…

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First and Second Degree Genocide? Considering a Case for Bifurcation of the Law

Published on June 19, 2018        Author: 
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At its inception, the crime of genocide, which broadly concerns criminal conduct targeted at a group, was generally seen as somehow more culpable or aggravated than international crimes targeted at an individual. Critical opposition to that view exists (See Milanović on the Karadžić and Mladić Trial Chamber judgments). Contemporary application, however, of the law continues to consider genocide as “horrific in its scope” precisely because perpetrators identify “entire human groups for extinction” and “seek to deprive humanity of the manifold richness its nationalities, races, ethnicities and religions provide” (Krstić, Appeals Chamber judgment, para. 36).

The Appeals Chamber in Krstić has emphasized that the gravity of genocide is “reflected in the stringent requirements which must be satisfied before this conviction is imposed” (para. 37). This includes proving a specific intent to destroy a group such that the group targeted for destruction was either the whole “protected group”, or a “substantial” part of that whole (the “substantiality test”). Where the requirements are satisfied, the Appeals Chamber implores that “the law must not shy away from referring to the crime committed by its proper name” (para. 37).

My contention is that the law in fact has shied away from referring to the crime of genocide by its proper name. Read the rest of this entry…

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Commanders’ Motivations in Bemba

Published on June 15, 2018        Author: 
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Introduction

No doubt there is much to be written about Jean-Pierre Bemba Gombo’s acquittal by the Appeals Chamber – on its implications for the ICC, for politics in the Democratic Republic of the Congo, and for the standard of review in future appeals. In this post, I will focus on a single issue addressed by the Appeals Chamber: the relevance of a commander’s motivation in taking measures to prevent or punish the crimes of his subordinates. This may seem a narrow issue – it was, initially, but one aspect of one element of the test for superior responsibility that formed part of one ground of appeal. However, this issue turned out to play a critical role in the majority’s decision to acquit the defendant.

Background

A majority of the Appeals Chamber – Judges Van den Wyngaert, Eboe-Osuji and Morrison – held that the second ground of appeal and part of the third ground of appeal were determinative of the appeal. The second ground averred that the conviction exceeded the charges. The third ground averred that Mr Bemba was not liable as a superior, with the relevant part upheld concerning whether he took all necessary and reasonable measures to prevent or repress the commission of his subordinates’ crimes. Within this part, the majority’s decision emphasised, in particular, two putative errors in the Trial Chamber’s finding that Mr Bemba failed to take all necessary and reasonable measures (para 191). The first concerned the Trial Chamber’s assessment of Mr Bemba’s motivation in taking the measures that he did take. This is the issue addressed in this post. Read the rest of this entry…

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In Bemba and Beyond, Crimes Adjudged to Commit Themselves

Published on June 13, 2018        Author: 
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And now, it seems, we must fear to endure crimes adjudged to have no cognizable author – crimes that everyone knows occurred, but that escape the assignment of responsibility that is supposed to be an essential function of international criminal justice. Crimes adjudged, as one commentator lamented, to have committed themselves.

Provoking these dire sentiments is Friday’s International Criminal Court judgment in Prosecutor v. Bemba, in which a bitterly divided Appeals Chamber exonerated a politician-warlord from the Democratic of Congo (DRC) whom a Trial Chamber had sentenced to serve eighteen years in prison. The Appeals Chamber majority, constituting three of the five appellate judges, first maintained that the 2016 trial judgment merited no deference, then proceeded to evaluate the case de novo, and ultimately found all five counts of conviction unsustainable. The man whom para. 13 of the appeals decision identifies as “President of the MLC, a political party founded by him and based in the northwest of the DRC, and Commander-in-Chief of its military branch, the ALC,” thus was acquitted of charges on which he had been held since 2008. Bemba is awaiting the results of his appeal on a separate conviction for witness tampering. Yesterday, the Court ruled that he could join his family in Belgium while he awaits sentencing in that case. Read the rest of this entry…

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