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Home Archive for category "International Criminal Law"

ICTY Due to Render Mladic Trial Judgment

Published on November 21, 2017        Author: 

The International Criminal Tribunal for the Former Yugoslavia will tomorrow render its very final trial judgment, in one of its most important cases, that of Ratko Mladic, the commander of the army of the Bosnian Serbs during the conflict in Bosnia. As with the case of Radovan Karadzic, the wartime president of the Bosnian Serb republic, there are few unknowns in Mladic’s case – he will be convicted, and he will spend the remainder of his life in prison, whether his sentence is formally that of life imprisonment or not (for our coverage of the Karadzic judgment see here, here and here). Let me nonetheless address two of the remaining uncertainties, and one clear certainty.

The first count of the indictment charges Mladic with genocide in several Bosnian municipalities in 1992; the second charges him with genocide in Srebrenica in 1995. And it is on the former that Mladic actually has a realistic chance – even a likelihood – of being acquitted. This is exactly what happened with Karadzic, and the ICTY has ‘only’ been able to find genocide in Srebrenica, not in any of the other municipalities. This whole issue was also of great relevance to the botched attempt to revise the 2007 Bosnian Genocide judgment of the ICJ earlier this year. That said, while in the Karadzic case the Trial Chamber deciding on a rule 98 bis motion originally found that Karadzic could not be convicted of genocide in the municipalities by a reasonable trier of fact – a finding later reversed by the Appeals Chamber – in Mladic the Trial Chamber’s rule 98 bis decision found that the prosecution did, in fact, make it out its initial evidentiary burden (see here, at p. 24). The possibility thus remains that the Mladic and Karadzic trial chambers will disagree on the existence of genocide outside Srebrenica; that possibility is relatively low, but it is not zero. The whole thing will in any event receive its judicial epilogue before the Appeals Chamber of the MICT.

Secondly, one difficulty with the Karadzic judgment was the factual 2:1 divide among the judges regarding the first shelling of the Markale marketplace during the siege of Sarajevo. As I explained in my Karadzic post:

[W]hen it comes to the siege of Sarajevo the Trial Chamber confirmed the overall picture of the terrorization of the civilian population as established in the ICTY’s previous cases, such as Galic. There is however one politically very big issue here – the two shellings of the Markale marketplace in Sarajevo, on 5 February 1994 and 28 August 1995, in which dozens of people were killed and injured. The standard Bosniak narrative is that the marketplace was deliberately shelled by the Bosnian Serb army to terrorize the civilian population; the standard Serb narrative is that the shellings were done by the Bosniaks themselves in order to demonize the Serbs and provoke an international military response (which the latter one did). The Trial Chamber found (starting at p. 1662) that both incidents were perpetrated by Bosnian Serbs. However, Judge Baird dissented (p. 2542 et seq.) with respect to the 5 February 1994 incident, finding that there was reasonable doubt that the Bosnian Serbs did not commit the attack. Clearly this opens the door for Karadzic to appeal (rightly or wrongly), but even more importantly the division in the Trial Chamber reinforces the divided realities lived by the different communities in Bosnia as well.

It will be interesting to see what the Mladic Trial Chamber decides on these two attacks.

Finally, one thing that is absolutely certain is how the trial judgment will be received in the former Yugoslavia. Again, absent massive judicial aneurysms Mladic is going to be convicted; there is no conceivable reality in which he walks from the courtroom tomorrow morning as a free man. That conviction will not, however, persuade any ethnic Serbs in Bosnia or Serbia who previously believed in his innocence that he is in fact guilty; rather, they will treat the judgment as yet another example of a Western conspiracy against the Serbs. For example, a 2011 public survey of the Serbian population commissioned by the Belgrade Centre for Human Rights found that 55% of ethnic Serbs thought that Mladic was not guilty of the crimes he was charged with by the ICTY, only 17% felt that he was guilty, and 28% did not know or did not want to give their opinion. I have no reason to believe that these results would be any different if the poll was conducted today (if anything they are probably worse), or that the trial judgment convicting Mladic would change anyone’s views. Similarly, if Mladic is – like Karadzic – acquitted on count 1, genocide in the municipalities, the negative reaction among Bosniak nationalists and victim groups is similarly going to be quite predictable.  (For more on this, see the series of articles I did on the impact of the ICTY and other criminal tribunals on local audiences – here, here and here).

That said, while the bottom line of the Mladic case is clear, there are bound to be various different legal and factual issues in the judgment that are worth exploring in more detail. We will have more coverage on the blog in the days to follow.

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A Moving Conference: Rights, Justice and Memories of the City

Published on November 21, 2017        Author: 

Conferences rarely get reviewed (but see a recent such review here), but given the amount of time, money and carbon emissions that goes into them, we may wish to evaluate them. Moreover, in reviewing a conference, we can try to capture and share an experience that, unlike a book, cannot be picked up again.

The conference Rights, Justice, and Memories of the City that took place in Lviv, Ukraine, from 9 to 12 November, is worth an attempt at capturing. If allowed to pick only one adjective, I would choose ‘moving’. Unlike most academic conferences, the conference involved a lot of physical moving around: the opening lecture took place at the Ukrainian Catholic University; the workshop next day, Placeless/Placeness: Ideas of Rights and Justice in Eastern Europe, was at the Center for Urban History and in the city hall on the city’s beautiful main square; the Saturday included a discussion at the Mayor’s office, a three-hour city walk and an art performance in the Lviv Philarmonic; while the Sunday offered a visit to the nearby town of Zhovkva. These were not mere ‘excursions’, agenda items peripheral to the core business of seated discussion. Rather, they were key to what was being discussed throughout the conference, including during the walks: the role of a place in the development of ideas on rights and justice.

Inspired by Philippe Sands’s celebrated East West Street: On the origins of genocide and crimes against humanity (Weidenfeld&Nicholson 2016, published in Ukrainian in September 2017), this event connected Hersch Lauterpacht and Raphael Lemkin and their legal work to the socio-political context within which they developed. Historians provided brilliant insights into the need for members of minorities to think and act in a cosmopolitan way. Reut Paz outspokenly illustrated the significance of Lemberg/Lwów/Lviv/Lvov with an excerpt from the Eichmann trial, where Eichmann mentions that it was here that he saw something he had not seen before: ‘Blutfontänen’, fountains of blood springing up from the soil due to the extent of killing of Jews that had taken place. Sean Murphy explained how the International Law Commission was working on a draft convention on the prevention and suppression of crimes against humanity, a concept inserted in the Nuremberg Charter at Lauterpacht’s recommendation. And the Ukrainian Judge on the European Court of Human Rights, Judge Ganna Yudkivska, pleaded civil society to continue its fight for human rights in an environment of backlash. Read the rest of this entry…

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The Immunity of al-Bashir: The Latest Turn in the Jurisprudence of the ICC

Published on November 15, 2017        Author: 

On 6 July 2017, the Pre-Trial Chamber of the ICC issued a new decision in the case of Omar al-Bashir. The Chamber ruled that South Africa failed to comply with its obligation to arrest the President of Sudan by welcoming him for a summit of the African Union two years earlier. This decision did not come as a surprise because the Court had repeatedly ruled before that al-Bashir does not enjoy immunity from arrest and that all states parties have an obligation to arrest him. What makes the decision curious, however, is that the Chamber again adopted a new position on the immunity of al-Bashir:

  • In 2011, the Chamber found that al-Bashir does not enjoy immunity because of an exception under customary international law for the prosecution of international crimes by an international court like the ICC. According to the Chad and Malawi decisions, no sitting Head of State could ever claim immunity before the ICC (for reactions see: here and here).
  • In 2014, the Chamber revised its position and concluded that the Security Council implicitly waived his immunity in Resolution 1593. Al-Bashir would not enjoy immunity because the Council issued a binding decision under Chapter VII of the UN Charter obliging Sudan ‘to cooperate fully with … the Court’ (for reactions to the DRC decision see: here and here).
  • In it most recent decision of 6 July 2017, the Chamber found that al-Bashir does not enjoy immunity because the Security Council’s referral placed Sudan in a similar position as a state party. Al-Bashir would not possess immunity from arrest because of Article 27(2) of the Statute which provides that immunities ‘… shall not bar the Court from exercising its jurisdiction’.

In this post I examine the Chamber’s most recent decision on the case of al-Bashir and make a number of critical observations. Read the rest of this entry…

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War crimes in Afghanistan and Beyond: Will the ICC Weigh in on the “Global Battlefield” Debate?

Published on November 9, 2017        Author: 

The ICC Prosecutor recently announced her decision to request an authorization to open a formal investigation into possible international crimes committed in connection with the conflict in Afghanistan. The outcome of her preliminary examination was long-awaited and expected to be significant because an investigation into the Afghanistan situation would cover all parties involved – that is, not only local actors but also the international coalition, including the US (US nationals would come under the jurisdiction of the Court if they committed crimes in Afghanistan or in any other State party to the Rome Statute).

The Prosecutor’s choice to subject some aspects of the Afghan conflict to judicial scrutiny despite the pressures deserves to be praised as an “act of bravery.” If the Pre-Trial Chamber authorizes this investigation, the road to justice will be long – many have already commented on possible issues of jurisdiction (e.g. here and here), admissibility (e.g. here and here), evidence-gathering and cooperation (e.g. here), etc. In this post, I want to focus on a potential effect of this announcement: the situation in Afghanistan may give the ICC an opportunity to weigh in on the debate over the global applicability of IHL. Fatou Bensouda intends to prosecute acts of torture committed in CIA detention facilities located in Europe, in connection with the armed conflict in Afghanistan, as war crimes. If she does, ICC judges will have to rule on whether IHL applied to those acts and hence more generally on whether IHL applies beyond the territory of a State where a non-international armed conflict (NIAC) is primarily taking place. The geographical scope of IHL remains one of the most vexing debates in international law (as was clear from a heated discussion on this blog and others, just a month ago) but the Afghanistan investigation may help highlight an overlooked aspect of it. Here is why. Read the rest of this entry…

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Access to Remedy Under the UNGPs: Vedanta and the Expansion of Parent Company Liability

Published on October 31, 2017        Author: 

On Friday, 13 October 2017 the UK Court of Appeal handed down its long anticipated decision in Lungowe and others v. Vedanta Resources Plc and Konkola Copper Mines Plc [2017] EWCA Civ 1528 (“Vedanta”). The appeal was brought by UK-based Vedanta Resources Plc (“Vedanta Resources”) and its Zambian subsidiary Konkola Copper Mines (“KCM”), against a decision dismissing certain jurisdictional challenges brought by each of Vedanta Resources and KCM.

The underlying claim was brought by a group of Zambian Villagers alleging that harmful effluent from the appellants’ Zambian copper mining operations had been discharged into the local environment, including waterways that were of critical importance to the livelihood of the claimants, and to their physical, economic and social wellbeing. Rejecting the appeal, the Court of Appeal found that the claim could proceed against the appellants in the UK.

The Vedanta litigation is a critical avenue for the claimants to pursue effective remedy as envisioned by the UN Guiding Principles on Business and Human Rights (“UNGPs”) and represents a significant development in the emerging doctrine of parent liability. Read the rest of this entry…

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Myanmar’s Rohingya Crisis and the Need for a Regional Response to Statelessness in Southeast Asia

Published on October 30, 2017        Author: 

Over the past two months, about half a million Rohingya people have fled from Myanmar (Burma) to neighboring Bangladesh. The immediate trigger for this mass exodus was a crackdown by Myanmar’s security forces against Rohingya insurgents and civilians, which reportedly included widespread torture, rape, and killing. However, the roots of this conflict lie far in the past.

The Rohingya are a Muslim ethnic minority based in the western part of predominantly Buddhist Myanmar. Since the establishment of Myanmar in 1948, Rohingya leaders have made separatist claims, at times accompanied by a violent struggle by some insurgent groups. The government, on its part, has denied Burmese citizenship to the Rohingya people and refused to include them among the country’s 135 officially recognized ethnic groups. The government asserts that the Rohingya are illegal migrants from Bangladesh, whereas the Rohingya consider themselves to be indigenous people of western Myanmar. Neither Bangladesh nor any other country has been willing to grant citizenship to Myanmar’s Rohingya, and the vast majority of the group’s one million members have thus remained stateless.    

As a stateless minority, the Rohingya have suffered severe discrimination in Myanmar. They have been denied the right to participate in elections and have faced severe restrictions on movement, land ownership, family life, religious freedom, education, and employment. They have also been persecuted by extremist Buddhist groups without government interference. During the last decades, this reality has pushed tens of thousands of Rohingya to seek asylum in neighboring countries. The present crisis thus marks the culmination of the longstanding persecution of this stateless minority.

In this contribution, I argue that the adoption of a more effective regional response to the problem of statelessness is essential in order to ameliorate the plight of the Rohingya and other stateless groups in Southeast Asia. I begin by providing a brief factual background on statelessness in Southeast Asia. I then describe the existing international legal framework on statelessness, noting the limited impact that it has had in Southeast Asia. Finally, I present the justifications for adopting a new Southeast Asian regional approach to statelessness, and discuss the role that the Association of Southeast Asian Nations (ASEAN) should play in this respect. Read the rest of this entry…

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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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