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ICC Review Conference: Taking Stock of Stocktaking

Published on June 3, 2010        Author: 

In the opening days of the Review Conference, one often heard references to the Review Conference as an “historic event” and a “second constitutional moment”.  With the significant exception of the possible adoption of the crime of aggression, which would indeed be a profound development, there is reason to ask whether the Conference is more a “constitutional moment” or just “another day at the office”.

My first blog highlighted the potential value of the stocktaking exercise.  Amending attitudes and understandings could prove as important, or more important, than amending the Statute.  I remain positive about the idea of stock-taking, the topics selected, the format adopted and the prominent panelists invited to open discussions.

However, given that the venue is a Review Conference, and given that the stocktaking is in part a substitute for actual amendments to the Statute, one might have hoped that the delegates would at least tackle a few issues of comparable difficulty and significance and take some meaningful decisions about their vision for international justice.  Instead, the discussions among States have adhered quite closely to safe, well-worn and self-congratulatory scripts.

Thus, for example, in the discussions on peace and justice, most States intervened to deliver an essentially similar message:  Peace is good.  Justice is good.  Peace and justice are not contradictory.  Except perhaps sometimes when they at least seem so, and such situations require careful thought and handling.  The last point is typically made in a knowledgeable tone hinting that the speaker has a few deep insights into how this is done (and giving the sense that different delegations might handle the balancing in very different ways).  Repeat 40 times in different voices and languages, with no real delving into controversies or solutions. Read the rest of this entry…

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The Place of International Criminal Justice within the International Legal Order: A Rejoinder

Published on May 27, 2010        Author: 

Amrita Kapur’s posted reply to Ken Anderson’s “The Rise of International Criminal Law” and myself makes a series of nuanced points, many of which I appreciate.  I am unsure how deep our disagreements actually run, but because some of her language indicates an affinity for views of which I am critical, I will take the opportunity to expose some areas of sharp disagreement – if not actually between myself and Kapur, then surely between myself and others who highly tout the project of international criminal justice.

Kapur’s post acknowledges that “trials are inherently flawed as a process to achieve the noble purposes ascribed to the ICJ project.”  She nonetheless insists that justice “must surely include, if not focus on, justice for the wronged parties, the victims, and the society that must build peace and reconciliation.”  This statement is open to varying interpretations, but to sharpen the discussion, I will provisionally interpret it to make two typical assertions with which I take issue:  first, that an authoritative condemnation of perpetrators is an essential element of post-conflict efforts to reaffirm the dignity of victims; and second, that peace and reconciliation are necessarily predicated on – and therefore, perhaps, should be held hostage to – the authoritative triumph of a particular moral judgment about the acts of conflict participants.

If one has in one’s mind’s eye morally unambiguous conflicts, where one side used atrocious means in the service of a manifestly evil end, both of these assertions seem plausible.  Insofar as the ICL project limits its ambitions to such circumstances – and there are enough of these to keep us busy – it has my full support.  But many armed conflicts involve, on one or both sides, informed persons of good faith and sound reason who endorse the use of ruthless methods for what they regard as an indispensable greater good.  Ruthless acts have often been committed, not because of a “culture of impunity,” but because actors (and their constituencies) believed, non-pathologically, that presumptively wrongful acts were justified in the effort to avert what they regarded as a morally worse overall outcome.  (I regard the Israeli-Palestinian conflict as quintessential in this regard, but even the question of which conflicts fall into this category turns on one’s political attitudes.)

 Among the conclusions that follow from this observation is that the potential target list for the ICL project is too rich.  The problem is not simply the danger that the typically-hoped-for expansion of domestic-court invocation of universal jurisdiction will produce frivolous prosecutions or legally unjustified convictions.  Fully sound cases could, in principle, be brought against a very wide range of actors, and yet in practice, prosecutions will almost always be reserved for the politically unpopular and strategically uninfluential.  Read the rest of this entry…

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Conceptual distinctions between the ICJ project and its constituent processes: A Reply to Brad Roth and Ken Anderson

Published on May 11, 2010        Author: 

 Amrita Kapur is a Consultant with the International Development Law Organization, and recently appointed as the International Advisor to the Women’s Justice Unit of the Judicial System Monitoring Programme in Dili, East Timor.  She has previously worked at the International Center for Transitional Justice, the International Criminal Court, and as a domestic prosecutor and Legal Aid criminal defence lawyer. In this post she responds to the article by Ken Anderson “The Rise of International Criminal Law: Intended and Unintended Consequences” and a recent post by Brad Roth

Professors Anderson and Roth accurately characterize the disparity between international criminal law (ICL) rhetoric and the continuing tolerance of impunity as hypocrisy with the worst kind of consequences.  However, their predictive speculations overlook important distinctions between ICL and humanitarian intervention, including historical context and the underlying catalysts for their continuing evolution. Roth’s response highlights the confluence of the two, but ultimately seeks to conflate their objectives and neglects emerging trends: in so doing, he fails to address the inherent shortcomings of the international criminal process as a tool to further the international criminal justice (ICJ) project.  This reply addresses humanitarian intervention and ICL as constituents of the ICJ project, referring to both Roth and Anderson for conceptual completeness.

1.  Nurturing a culture of humanitarian intervention

The central position occupied by ICL in the international legal order is claimed to give rise to two extreme situations: the guarantee that genocide will occur without intervention (Anderson) and/or the unchecked illegal use of force by powerful states (Roth).  As briefly addressed in my previous reply to Anderson (at 1031), framing ICL as a policy alternative that reduces the pressure to intervene presupposes intervention is an established and otherwise “morally inevitable” practice: this is simply not the case.

Humanitarian intervention is a very recent politically and militarily significant extension to the principles espoused by ICL.  Rather than being opposing or counter-balancing trends, humanitarian intervention and international criminal accountability are concurrently developing: while they are not entirely independent of one another, they are at different stages of ‘maturation’ and given the contrasting commitment in resources and political capital, inevitably developing at different paces.  Numerous humanitarian crises have elicited a peacekeeping force from the Security Council (Sierra Leone, East Timor, Bangladesh, Cambodia and the DRC are just a few), but always with mandates falling short of ensuring the protection of human rights and cessation of international crimes.  A fair evaluation of the trend towards humanitarian intervention must be anchored in an appreciation of the previously impermeable norm of non-intervention.  Read the rest of this entry…

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Discussion of Anderson’s “The Rise of International Criminal Law: Intended and Unintended Consequences”

Published on May 4, 2010        Author: 

Over the next few days we will be discussing the article published by Prof. Ken Anderson “The Rise of International Criminal Law: Intended and Unintended Consequences” in EJIL’s 20th Anniversary Symposium (last year) on the Use of Force. In the abstract to the article, Prof. Anderson states that:

The rise of international criminal law has been one of the remarkable features of international law since 1990. One of the less-explored questions of international criminal law is its social effects, within the international community and the community of public international law, in other parts and activities of international law. In particular, what are the effects of the rise of international criminal law and its emerging system of tribunals on the rest of the laws of armed conflict? What are the effects upon apparently unrelated aspects of humanitarian and human rights law? What are the effects upon other large systems and institutions of public international law, such as the UN and other international organizations? As international criminal law has emerged as a visible face of public international law, has it supplanted or even ‘crowded’ other aspects and institutions of public international law? This brief article offers a high-altitude, high-speed look at the effects of international criminal law on other parts of public international law and organizations.

Below is a response to by Prof. Brad Roth. In his post Prof. Roth responds not only to Ken Anderson’s article but also engages with the response to that article by Amrita Kapur, published in issue 4 of the 2009 vol. of EJIL.

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Les extrêmes se touchent: Anxieties about International Criminal Law from Poles Apart

Published on May 3, 2010        Author: 

Brad Roth is Associate Professor of Poitical Science at Wayne State University. He specializes in political and legal theory, American and comparative public law, and international law. In this post, he reflects on an EJIL article, “The Rise of International Criminal Law: Intended and Unintended Consequences,” by Professor Kenneth Anderson published in one of EJIL’s Twentieth Anniversary Special Issues.

 In “The Rise of International Criminal Law: Intended and Unintended Consequences,” 20 Euro. J. Int’l L. 331 (2009), Kenneth Anderson surveys potential indirect effects of ICL “as social practice” on other areas of international law and international organization.  By no means does Anderson launch a frontal assault on ICL, nor does he disparage any of its concrete accomplishments; indeed, he characterizes ICL “as perhaps the signal achievement in public international law since 1990 and the end of the Cold War.”  Nonetheless, the article manifests a sense of unease about various aspects of ICL’s rise to prominence, and that alone is likely to raise eyebrows, given the reverential tone that more ordinarily marks legal scholars’ accounts of the project.

Anderson’s many observations encompass a broad range of subjects, and do not admit of a ready summary.  Running through the discussion, however, is a concern that the cart has been placed before the horse, that the institutions of international criminal justice have an uncertain practical B and moral B significance in the absence of an international community that is ready, willing, and able to respond forcibly to ongoing atrocities.  Nuremberg, Anderson reminds us (at 335), “was a lovely hood ornament on the ungainly vehicle that liberated Western Europe, but it was not a substitute for D-day.”

Indeed, what is most distinctive in Anderson’s discussion is his characterization of the relationship between jus in bello and jus ad bellum.  In particular, he insists that the right to administer universal justice is earned, not through neutrality, but through partisanship.  Whereas many other commentators have viewed “victor’s justice” with unease, suspicion, or lamentation, Anderson contends that it is uniquely the victorious struggle over the atrocity-committing enemy that confers moral standing to administer penal justice.  By contrast, in the former Yugoslavia a decade and a half ago and in Darfur now, international actors have sought – discreditably, if understandably – to establish mechanisms for prosecuting crimes post hoc while shirking the moral duty to undertake a war to stop the perpetrators in real time. Read the rest of this entry…

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German Federal Prosecutor Terminates Investigation Against German Soldiers With Respect to NATO Air Strike in Afghanistan

Published on April 29, 2010        Author: 

Constantin von der Groeben is a Ph.D. candidate at the University of Cologne, Germany and a LL.M. candidate at NYU School of Law. His Ph.D. deals with the applicability of the Laws of Armed Conflict to the War on Terrorism. He is a fellow of the Studienstiftung des deutschen Volkes (German National Academic Foundation).

Last week, on 20 April 2010, the German Federal Prosecutor closed the case against German soldiers, Colonel Klein and his First Sergeant Wilhelm, who were responsible for the NATO air strike near Kunduz last September.

Klein had requested the air strike against two fuel trucks which were stuck on a sandbank near the German camp in Kunduz. Up to 142 people were killed in the attack, and as was later revealed many civilians were among the dead. This inflamed the already heated debate over the role of the German Bundeswehr in Afghanistan, and the German participation in the unpopular NATO mission there. Eventually the German Defense Minister Karl Theodor zu Guttenberg called the air strike disproportionate.

Apart from some significant political repercussions, the Kunduz air strike eventually raised the question of criminal responsibility of German soldiers in Afghanistan, and the Federal Prosecutor opened an investigation against Klein and Wilhelm. It was the first time ever that soldiers of the Bundeswehr were investigated for war crime charges. Now, finally, the Prosecutor has decided to terminate the investigations on the grounds that neither Klein nor Wilhelm acted in violation of either international or ordinary criminal law.

The Decision in a Nutshell

Let me briefly summarize the major points in his decision.

First, the Federal Prosecutor characterized the situation in Afghanistan as a non-international armed conflict. Accordingly International Criminal Law was applicable in this case. In Germany, International Criminal Law has been implemented in the domestic legal order through the Völkerstrafgesetzbuch (VStGB – Code of Crimes against International Law). The relevant provision of the VStGB, which could have subjected Klein and Wilhelm to criminal liability, is § 11(1)(3) VStGB which regulates the war crime of deliberately causing disproportionate harm to civilians. This Provision in the German code is analogous to Art 8(2)(b)(iv) of the Statue of the International Criminal Court.

Second, applying the VStGB, the Federal Prosecutor found there was no violation of § 11(1)(3) because he concluded that neither Klein nor Wilhelm knew about the civilians’ presence near the gas tanker trucks when they ordered the attack, but rather assumed that they were only attacking Taliban. According to the Prosecutor, the German soldiers’ assumption was legitimate, because they had exhausted all possible means to investigate the situation and to assure themselves there were no civilians near the trucks. The fact that their assumption later turned out to be wrong did not make a difference: according to the Prosecutor, the decisive factor was the ex-ante assessment of the situation. Read the rest of this entry…

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Yet More on Arresting the Pope

Published on April 25, 2010        Author: 

In more news on the prosecute the Pope front (see Dapo’s earlier post), Christopher Hitchens, that glorious contrarian and one of the originators of the whole idea, has an article in Newsweek in which he elaborates on the legal strategy that, shall we say, the anti-Pope movement will adopt in advance of the Pope’s planned visit to the UK (h/t Julian Ku at Opinio Juris).

Let me say at the outset that, to my mind, it is clear that the Catholic Church has been indelibly tarnished by the priestly rape of children in many countries, and the systematic attempts to cover-up the abuse by the hierarchy. A credible case has also been made that the current Pope has himself shamefully participated in the cover-up. In short, I have no love lost for the Catholic Church.

Likewise, on a lighter note, I have always enjoyed the writings of Christopher Hitchens, who is often enlightening on many an issue, and never fails to entertain. His skills as a polemicist are beyond question, as numerous clips on Youtube of him demolishing worthy and unworthy opponents can attest. And let’s not forget his famous critique of the purported saintliness of Mother Theresa, which I thoroughly recommend.

Hitchens, in short, is never boring. But with this particular piece, which touches on several questions of international law, I must confess that he truly comes off as quite the know-it-all dilettante. The piece is full of such glaring holes and inaccuracies that one must really question the wisdom of publishing it. Now, I don’t of course expect people who are not (international) lawyers to know anything about international law – but then they at least should exercise more caution in writing about legal issues. So, let’s start off with Hitchens’ argument, given with the benefit of legal advice from Geoffrey Robertson QC:

Read the rest of this entry…

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Can the Pope Be Arrested in Connection with the Sexual Abuse Scandal?

Published on April 14, 2010        Author: 

The sexual abuse scandal surrounding the Catholic Church has taken a new turn in recent weeks with calls for the Pope to be prosecuted  for crimes against humanity. The Pope is due to visit the UK in September this year and some prominent campaigners and lawyers have argued that he should be arrested in the UK  and prosecuted for his role in the cover up of sexual abuse. Alternatively, these campaigners and lawyers say they will seek an arrest warrant by the International Criminal Court  on charges of crimes against humanity. The leaders of this campaign are eminent people and include Richard Dawkins, the well known Oxford Professor and, shall we say, atheist campaigner, Christopher Hitchens, another promiment atheist author and Geoffrey Robertson QC, a prominent British barrister who was a judge at the Special Court for Sierra Leone (see reports here and here  and an article by Richard Dawkins here).

 However, this attempt to get the Pope arrested and prosecuted in the UK has no chance of success as such an arrest would be in violation of international law. Likewise, the proposed prosecution by the International Criminal Court is most unlikely to get off the ground and similarly flawed as a matter of international law. However, these proposals raise some interesting issues of international law surrounding the status of the Pope, the Vatican and the Holy See.

The  reason the Pope cannot be arrested and prosecuted in the UK is because he is entitled to Head of State immunity.  Dawkins and Hitchens are not unaware of this problem.  Apparently they have enlisted Geoffrey Robertson QC to provide an opinion stating that the pope is not a head of State and therefore not entitled to head of State immunity. Robertson elaborates on this point in a recent article in the Guardian. Robertson argues that the Pope is not entitled head of State immunity as a matter of international law because the Vatican is not a State.  His arguments are simply incorrect. The Vatican has a tiny territory and a tiny population but it does fulfill the criteria for Statehood. As James Crawford puts it, in his authoritative work The Creation of States in International Law (2nd ed, 2006), p. 225, after detailed analysis: “it is clear that the Vatican City is a State in international law, despite its size and special circumstances.” The size of population or territory are irrelevant for the purposes of Statehood.  What is important is that the entity possesses those criteria as well as the two other criteria for Statehood – which are: a government in effective control of the territory and independence (or what is called “capacity to enter into legal relations” in the words of the Montevideo Convention on the Rights and Duties of States 1935). The Vatican as a territorial entity does have a government: the Holy See which is headed by the Pope. As Crawford’s analysis makes clear, the Holy See has its own independent legal personality (about which more later on) and that personality predates the Statehood of the Vatican. However, the Holy See is also the government of the Vatican City State. More imporantly, the Vatican is independent of any other State. Its independence from Italy which is the State that could have had claims to control that territory is recognised in the Lateran Treaty of 1929. Read the rest of this entry…

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ICC Launches Online Library on International Criminal Law

Published on May 27, 2009        Author: 

The International Criminal Court has recently launched a new version of its Legal Tools site. The site contains an invaluable online library on international criminal law which will probably be  the first port of call for those working in this field. According to the release announcing the launch:

The Legal Tools amount to a knowledge-transfer platform for international criminal and human rights law made freely available to the general public through the website of the ICC. The Legal Tools Database is the most comprehensive on international criminal law. It contains more than 40,000 documents, including decisions and indictments from all international or internationalised criminal tribunals, preparatory works of the ICC, case documents from the ICC, treaties, information about national legal systems, and relevant decisions from national courts. The service also contains a new knowledge-base on national legislation implementing the ICC Statute.

The Legal Tools were designed and developed in the Legal Advisory Section of the ICC Office of the Prosecutor by Morten Bergsmo and his team, while a network of outsourcing partners are collecting and registering the documents, metadata and keywords in the Legal Tools Database: the Norwegian Centre for Human Rights (University of Oslo), the Human Rights Law Centre (University of Nottingham), the International Research and Documentation Centre for War Crimes Trials (University of Marburg), the Institute of International Law and International Relations (University of Graz), the T.M.C. Asser Institute, the Hague Institute for the Internationalisation of Law and TRIAL (Track Impunity Always). The Nottingham Human Rights Law Centre has developed the knowledge-base on implementing legislation. The EEAR (European academy of eJustice) is responsible for technical implementation of the Legal Tools Database and Website.

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Second Thoughts on the Crime of Aggression

Published on April 9, 2009        Author: 

Professor Andreas Paulus holds the Chair of Public and International Law at Georg-August-University Göttingen. He is a member of the Scientific Advisory Board of the European Journal of International Law. He has served as counsel of the Federal Republic of Germany in the LaGrand case (Germany vs. United States) and as Adviser to the German team in the Certain Property (Liechtenstein v. Germany) cases before the International Court of Justice.

In his post on the Legal Position of ICC Parties and Non-Parties Regarding Aggression, Dapo Akande has shown that it is by no means assured that the Assembly of States Parties will be able to agree on a procedure for agreeing on a definition of the crime of aggression in the ICC Statute, let alone on the substance of a definition itself. The purpose of this post is different, however. Based on a discussion of the crime of aggression at this year’s ASIL Annual Meeting, I continue to have serious reservations as to the very goal of defining the crime of aggression at the present stage of development of the international law of the use of force [for a more extensive treatment, see my piece “Peace Through Justice?” in the Wayne Law Review 50 (2004) 1-35]. The inclusion of the crime in the jurisdiction of the Court at this particular moment may not only be ineffective, but has considerable potential to harm both the ICC and general international law. In my opinion, it is simply not good enough, as one panel participant at the ASIL meeting put it, that we do not know the effects of such a definition, but that a formulaic compromise could be found and the rest be left to the Court itself. Rather, dealing with one of the most serious issues of all times, the crime of aggression should only be included when it promises to have positive effect. Not to be misunderstood: I have been a supporter of the Court from the beginning. But that does not mean that the Court is a panacea that can only do good.

According to the agreed definition in Article 8 bis of the proposal of the Working Group, “‘crime of aggression’ means the planning, preparation, initiation or execution, […] of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” In my view, there are at least four reasons why this definition of the crime of aggression would do more harm than good at the present time:

1) The meaning of a “manifest” violation remains unclear, in spite of the attempt by the Working Group to clarify it. According to at least one member of the ASIL panel, “manifest” relates to the evidence for a violation. But that would amount to a confusion between evidence and substance of a crime. The terms “character, gravity and scale” rather suggest that certain acts of aggression are larger than others and therefore subject to prosecution. The drafting history would point to the inclusion of a threshold for prosecution “to exclude some borderline cases.” Read the rest of this entry…

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