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Home Archive for category "International Criminal Law" (Page 4)

Fiddling While Rome Burns?  The Appeals Chamber’s Curious Decision in Prosecutor v. Jean-Pierre Bemba Gombo

Published on June 12, 2018        Author: 
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On March 21, 2016, after a 4-1/2 year-long trial that heard the testimony of 77 witnesses, the introduction of 773 items of evidence, and gave rise to a transcript that was thousands of pages long, a unanimous Trial Chamber convicted Jean-Pierre Bemba Gombo of crimes against humanity and war crimes committed by his troops in the Central African Republic from 2002-2003 and sentenced him to 18 years imprisonment.  The case was the first to find a perpetrator guilty of command responsibility under article 28, and the first ICC case involving a conviction for sexual violence. The three trial judges, were unanimous in their assessment of Bemba’s culpability under the Statute, although two judges raised questions regarding the parameters of article 28.

On June 8, the Appeals Chamber reversed, 3-2, and acquitted the accused finding that Bemba’s conviction exceeded the facts and circumstances described in the charges brought against him and declined to permit a trial on the facts it found to be outside the scope of the initial Trial Chamber Judgment. Judges Monagang (Botswana) and Hofmański (Poland) would have upheld the conviction and penned a lengthy Dissenting Opinion.  Judge Eboe-Osuji (now President of the Court) would have permitted a retrial on the new charges his colleagues found to be outside the scope of the original conviction, but was apparently unable to persuade his colleagues to join him in that view. 

How did this happen? Read the rest of this entry…

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A Prudential, Policy-Based Approach to the Investigation of Nationals of Non-States Parties

Published on May 30, 2018        Author:  and
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On 22 May, Palestinian Foreign Minister Riyad al-Maliki submitted a referral to the International Criminal Court (ICC) regarding the situation in Palestine since 13 June 2014, with no end date.  This follows the Prosecutor’s statements on 8 April and 14 May responding to the situation on the Gaza border (which were themselves unusual, if not unique, examples of OTP practice).  As with the proposed investigation of US nationals in the Situation in Afghanistan, the Myanmar and Bangladesh issue that is under consideration and the investigation of Russian conduct in Georgia and Ukraine, the question of whether, and if so how, the ICC may exercise jurisdiction over nationals of non-state parties absent a Security Council referral is pressing once again.

By proceeding with investigation of Russian conduct in Georgia and Ukraine, Israeli conduct in Gaza and the West Bank, and American conduct in Afghanistan, legal issues which arise upon exercise of the Court’s enforcement jurisdiction will foreseeably give rise to challenges both before the ICC, as well as in national jurisdictions during surrender proceedings. This contribution suggests that a prudential, even cautious, policy-based approach to the investigation of nationals of non-states parties may help the OTP avoid pitfalls resulting from proceeding without sufficient regard to non-states parties’ jurisdictional objections. Read the rest of this entry…

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What lies beneath? The turn to values in international criminal legal discourse

Published on April 23, 2018        Author: 
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On the 9th of April, the Office of the Prosecutor (OTP) of the International Criminal Court submitted a request for a ruling by the Pre-Trial Chamber on whether the Court has territorial jurisdiction over the deportation of Rohingya people from Myanmar to Bangladesh. This development may impact how the ICC approaches its territorial jurisdiction in future, and raises interesting questions over the legal nature of the crime of deportation. However, the submission also gives rise to questions of a more theoretical nature that relate to the normative basis of international crimes, or more specifically, the acts that constitute them. The Prosecutor’s submission on jurisdiction over deportation into Bangladesh highlights an emerging trend in international criminal law towards identifying and surfacing the individual values or rights underlying international crimes. This coincides with a broader debate on the legal goods protected by these crimes, and invites us to consider the implications of this trend for the communicative function of the law.

Part of the Prosecutor’s submission on jurisdiction in Bangladesh addresses the distinction between the crimes of deportation and forcible transfer. Read the rest of this entry…

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Prosecuting ‘The Beatles’ before the ICC: A Gateway for the Opening of an Investigation in Syria?

Published on April 19, 2018        Author: 
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Calls have been mounting for Alexanda Kotey and El Shafee Elsheikh, two fighters captured by the Syrian Kurds, to be tried in the UK, the US, or at the International Criminal Court (ICC) in The Hague. Kotey and Elsheikh were part of a group of four Islamic State militants known as ‘the Beatles’ (because of their British accents). Although not particularly high ranking within ISIS, the Beatles are infamous for their role in the imprisonment, torture and killing of Western hostages. There is reason to believe that they are responsible for war crimes and crimes against humanity. 

The purpose of this post is to examine the feasibility and propriety of bringing the Beatles before the ICC for trial. Kotey and Elsheikh have been stripped of their British citizenship so as to stop them from re-entering the UK. The UK defence minister, Tobias Ellwood, is however arguing that Kotey and Elsheikh should be tried by the ICC. Kotey himself affirmed that a trial at the ICC ‘would be the logical solution.’ As of now, the Syrian Kurds do not seem to have received a request for the surrender of the two fighters to the Court.

The Temporal Scope of the ICC’s Personal Jurisdiction Read the rest of this entry…

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The Prosecutor’s Request for a Ruling on the ICC’s Jurisdiction over the Deportation of Rohingya from Myanmar to Bangladesh: A Gender Perspective

Published on April 18, 2018        Author:  and
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On 9 April 2018, the ICC’s Office of the Prosecutor requested a ruling of a pre-trial chamber on the ICC’s jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

While Geoff Curfman in his Just Security post has already aptly commented on the Prosecution’s approach, this post seeks to examine the Prosecution’s request from a different angle, namely a gender perspective.

Background: Sexual violence against Rohingya

Documentation efforts in refugee camps in Bangladesh are exposing the grave nature and vast scale of sexual violence perpetrated against Rohingya in Myanmar, forcing many to flee. Human Rights Watch, for example, stated that it “found that Burmese security forces raped and sexually assaulted women and girls […]”. The report of the OHCHR’s Fact-finding Mission on Myanmar declared that there is “ample and corroborated information on brutal gang rapes and other forms of sexual violence against women”. Finally, Special Representative on Sexual Violence in Conflict, Pramila Patten, told the Security Council that every woman or girl she had spoken with during her visit to Rohingya encampments in Bangladesh “ha[d] either endured or witnessed sexual violence”, including seeing women literally being raped to death. Approximately 80% of those forced into Bangladesh since 25 August 2017 are women and children, and while sexual violence has not be limited to women and girls, it is understood they appear to comprise the majority of victims of sexual violence in this context.

Sexual violence and the Prosecution’s Request: Deportation as a blessing in disguise for gender justice Read the rest of this entry…

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The Katanga and Al Mahdi Appeals Judgments and the Right of Access to Justice for Victims: Missed Opportunity?

Published on April 9, 2018        Author: 
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On 9 March 2018, the International Criminal Court (ICC) Appeals Chamber rendered two judgments on reparations, namely the Al Mahdi and Katanga cases. The general principles and approaches of ICC reparations have been previously addressed in this blog (here and here). This time, the two appeals judgments were the first occasions for the Court to review the right of access to justice for victims during these reparations proceedings. InAl Mahdi, the Trial Chamber delegated the task of eligibility screening to the Trust Fund for Victims (TFV), thereby allegedly failing to accord victims a right to judicial assessment of their applications for reparations by a competent tribunal. In Katanga, it was argued that the right of victims to receive continuous legal representation was essential for a meaningful and practical right to claim reparations, given the complexity of the proceedings.    

At the outset, both rights to judicial assessment by a tribunal and to legal representation come within the purview of the right of access to justice, a right guaranteed in international human rights instruments (ICCPR article 14(1); ECHR article 6(1); ACHR article 8(1); ACHPR article 7(1)). The purpose of this post is not to say that the appeals judgments were incorrect in affirming the Trial Chamber’s decisions on these issues because the rights of victims had been violated. Rather, it takes a helicopter view on the way these issues have been dealt with. Whereas the Al Mahdi judgment recognises that the judicial assessment of reparations must ultimately be before trial chambers, the Katanga judgment dodged the relevance of continuous legal representation of victims to their right of access to justice during the reparations proceedings.

Bearing in mind that chambers are obliged to ensure the compliance of international human rights law (Rome Statute, article 21(3); ICC Rules of Procedure and Evidence, Rule 97(3)), both judgments may have indicated a judicial practice of non-interventionism within the Court by over-relying on procedural discretions.

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Time to Investigate European Agents for Crimes against Migrants in Libya

Published on March 29, 2018        Author: , and
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In March 2011, the ICC Office of the Prosecutor of the international criminal court opened its investigation into the situation in Libya, following a referral by the UN Security Council. The investigation concerns crimes against humanity in Libya starting 15 February 2011, including the crimes against humanity of murder and persecution, allegedly committed by Libyan agents. As the ICC Prosecutor explained to the UN Security Council in her statement of 8 May 2017, the investigation also concerns “serious and widespread crimes against migrants attempting to transit through Libya.” Fatou Bensouda labels Libya as a “marketplace for the trafficking of human beings.” As she says, “thousands of vulnerable migrants, including women and children, are being held in detention centres across Libya in often inhumane condition.” The findings are corroborated by the UN Support Mission in Libya (UNMSIL) and the Panel of Experts established pursuant to Resolution 1973 (2011). Both report on the atrocities to which migrants are subjected, not only by armed militias, smugglers and traffickers, but also by the new Libyan Coast Guard and the Department for Combatting Illegal Migration of the UN-backed Al Sarraj’s Government of National Accord – established with EU and Italian support.

These acts are not usually regarded as the bread and butter of international criminal law. Yet, for influential observers, they have seemed to reinstitute a modern form of slavery and to conjure images of mass arbitrary killings reminiscent of atrocity. For example, in a statement from November 22, 2017, French President Emmanuel Macron invoked slavery, explaining that trafficking in Libya has become a crime against humanity. For its part, the International Organisation for Migration, via its Missing Migrant project, has documented 46,000 cases of dead or missing worldwide since 2000.

During the whole time, however, various observers have pointed to the complicity of European countries with the relevant acts. Since 2011, Forensic Oceanography has been doing important investigative work in which the ethically fraught European involvement in preventing migration from Libya has been unfolded. Amnesty International has exposed a dark web of collusion, whereby EU states and Italy in particular have used Libyan militia to ensure migrants do not make it across the Mediterranean. Last December, John Dalhuisen, Amnesty International’s Europe Director, denounced European governments for:

“not just be[ing] fully aware of these abuses; by actively supporting the Libyan authorities in stopping sea crossings and containing people in Libya, they are complicit in these abuses.”

In perhaps the most recent evidence of such complicity, Italian authorities have seized the Spanish NGO rescue boat Open Arms and initiated a criminal investigation against members of its crew. The Open Arms, in response to a call from MRCC Rome of March 15, 2018, had rescued 218 people on the high seas and subsequently refused to deliver them to the (so-called) Libyan Coast Guard. After a row lasting several hours and including death threats, the vessel headed north for a medical evacuation in Malta, before requesting permission to disembark in Sicily. Despite Italy’s authorization, the captain and mission coordinator have been charged on counts of “criminal association” and “facilitation of irregular migration”. Italy claims they were obliged to hand over the survivors to Libya under its NGO Code of Conduct, disregarding that that would have amounted to refoulement. Italy thus flouted the requirement of delivery to a “place of safety” under the maritime conventions. It has become overwhelmingly clear that Libyan rescue operations in the Mediterranean are tantamount, as Charles Heller put it, to a plan of “rescue at gunpoint.”

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African Union v International Criminal Court: episode MLXIII (?)

Published on March 23, 2018        Author: 
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It never gets boring. At the latest African Union (AU) summit, which wrapped up recently in Addis Ababa, the AU-ICC controversy went into its next round; this time, however, with a rather constructive proposal for easing the tensions that had built up over the past decade or so as a result of the uneven application of international criminal justice. In this post I will reflect upon the implications of the recent summit decision for the future of international criminal justice, including the debate about immunities, the consequences of potential arrest warrants for high-ranking Burundian officials, as well as the debate about an African mass withdrawal. 

Previous AU responses to what was being perceived as neo-colonial interference on the part of the International Criminal Court had not been very constructive – ranging from issuing shrill statements calling the Court “a political instrument targeting Africa and Africans“, threatening mass withdrawal, blocking the opening of the ICC Liaison Office in Addis, and announcing non-cooperation in the arrest of suspects. This time, by contrast, the AU opted for a more constructive, de-escalatory approach, using the tools of international law – instead of international politics – to make its voice heard: It announced that it would seek, through the UN General Assembly, an advisory opinion from the International Court of Justice (ICJ) on the question of immunity. The AU also decided that it would seek an interpretative declaration from the Assembly of States Parties (ASP) on how Article 27 of the Rome Statute of the ICC, which removes immunity for state officials, and Article 98, which addresses cooperation with respect to a waiver of immunity and consent to surrender relate to one another, and the related question of how a Security Council referral affects the enjoyment of immunities of officials of non-state parties. The proposal to seek an advisory opinion from the ICJ was first made several years ago. It is not clear why this proposal was shelved in the meantime. Perhaps the AU feared the ICJ would find in favor of the ICC’s position. Read the rest of this entry…

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The Use of Nerve Agents in Salisbury: Why does it Matter Whether it Amounts to a Use of Force in International Law?

Published on March 17, 2018        Author: 
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Over the past few days, there has been discussion of whether the attempt to murder Sergei Skripal and his daughter, in the UK, by the use of a nerve agent amounts to an unlawful use force by Russia in breach of Art. 2(4) of the United Nations Charter and customary international law (see posts by Marc Weller, Tom Ruys, and Ashley Deeks). There is agreement that if the action was attributable to Russia, it would amount to a breach of at least some obligation under international law. Marc Weller, points out that the act would amount to an unlawful intervention and a violation of the territorial sovereignty of the UK. Marko argues that these acts would also be a violation of the human rights of the individuals concerned. However, the British Prime Minister characterised the act as an unlawful use of force. What I wish to do in this post is to ask why this categorisation might matter in international law. What exactly are the implications, as a matter of law, of characterising the act as a use of force? This was an issue that was raised in the comments to Marc Weller’s post and some of the points I make below have already been made in that discussion though I expand on them. As discussed below, this characterisation might have far reaching implications in a number of areas of international law, extending beyond the possibility of self-defence, to the possibility of countermeasures, the law relating to state responsibility, the qualification of a situation in the law of armed conflict, and international criminal law. I accept that many of the points discussed below are not clear cut, and some are even contentious. However, I think that having a catalogue of the possible consequences of the arguments relating to the use of force helps us to see more clearly what is at stake when we make these arguments.  

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Gravity of the Past: Polish-Ukrainian Memory War and Freedom of Speech

Published on February 22, 2018        Author: 
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There is a power to the words ‘I remember’: the power of an event long past, exerting itself upon the present […] When the words begin a flow of warmth or love, it is a positive, binding power, but it is the most divisive and negative one possible when they lead on to events of death and destruction…

Ilana R. Bet-El

Collective memory matters politically: it provides a nation with an identity and common myth of origin, legitimizing power by creating a desired image of the past. This explains why states are preoccupied with memory, prescribing by law what has to be remembered and what must be forgotten. Revanchism, ethnic cleansing and war are all results of memory. The clash of historical narratives sponsored by states can destroy interstate relations. This happened in the case of Poland and Ukraine; these States were involved in memory war because of the attempts, from both sides, to instrumentilise history and use it for nationalist and populist goals.

These two countries were the ‘bloodlands’ during the Second World War. Yet, they have different memories of controversial events of the twentieth century. Describing the differing memories of the Polish-Ukrainian conflict Timothy Snyder writes:

[…] for patriotic Ukrainians the Organization of Ukrainian Nationalists created a moment of Ukrainian sovereign action by declaring a Ukrainian state under Nazi occupation in 1941 and a lasting memory of national heroism by their doomed struggle, for Poles its UPA [the Ukrainian Insurgent Army. – A.Ch.] was the organization which cleansed Poles from Western Ukraine in 1943 and 1944. Ukrainian patriots […] are unwilling to accept that the UPA did commit mass race murder in 1943-4. Poles […] are apt to believe that the anti-Ukrainian military operations of 1944-7 were a direct result (and a just one) of the UPA’s earlier ethnic cleansing. Both views are substantially incorrect. The UPA did indeed brutally murder […] Polish civilians in 1943-3. But in 1944-7 the Polish communist regime acted to ‘resolve the Ukrainian question in Poland’, not only to liquidate the UPA […]. [C]leansing actions (the word used at the time) […] was carried out in the name of the Ukrainian nation against Poles and in the name of the Polish nation against Ukrainians.

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