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Home International Criminal Law Archive for category "War Crimes"

The Ituri Conundrum: Qualifying Conflicts between an Occupying Power and an Autonomous Non-State Actor

Published on July 15, 2019        Author: 
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Last week, Trial Chamber VI of the International Criminal Court (ICC) issued the long-awaited judgment in the Ntaganda case. The judges found the defendant guilty on all 18 counts, including the ICC’s first ever conviction for sexual slavery. Although the Chamber is yet to resolve matters related to sentencing and reparations, the decision marks an important milestone in the proceedings, which began with an arrest warrant issued back in August 2006 (Mr Ntaganda surrendered himself to the ICC in March 2013).

Readers of this blog will be familiar with the case as well as with some of the controversies surrounding its progress. In brief, Bosco Ntaganda was the Deputy Chief of Staff of the Patriotic Forces for the Liberation of Congo (FPLC), the armed wing of the Union of Congolese Patriots (UPC). The UPC/FPLC was one of the armed groups involved in the so-called Ituri conflict, which took place between 1999 and 2003 in the Ituri region in the north-eastern Democratic Republic of the Congo (DRC). Before the ICC, Mr Ntaganda was charged with 13 counts of war crimes and five counts of crimes against humanity, all allegedly committed in Ituri between 2002 and 2003.

The judgment, which fills over 500 pages, no doubt deserves careful scrutiny before any general pronouncements can be made as to its overall quality and rigour. Instead of analysing the judgment as a whole, this post focuses on a narrow question related to the Chamber’s legal qualification of the conflict in Ituri at the material time (discussed in paras 699–730 of the judgment). In particular, I am going to look at how international humanitarian law (IHL) qualifies conflicts between an occupying power and an autonomous non-State actor. The analysis builds on my research into complex conflict situations, which was published as part of my recent book on Internationalized Armed Conflicts in International Law (OUP 2018, especially chapter 3).

The situation in Ituri between 2002 and 2003 was notoriously convoluted, Read the rest of this entry…

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Part I- This is not fine: The International Criminal Court in Trouble

Published on March 21, 2019        Author: 
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Editor’s note: This is Part I of a three-part series.

There is now a real sense that the International Criminal Court is in trouble. The questions are: how much, why and what is to be done?

The UK pulled no punches in its statement to the 17th International Criminal Court Assembly of State Parties:

The United Kingdom strongly supports the aims of the ICC and believes there is an essential role for an international institution like the Court in delivery of justice at the international level. But as an Assembly of States Parties to the Statute, we cannot bury our heads in the sand and pretend everything is fine when it isn’t. The statistics are sobering. After [nearly] 20 years, and 1.5 billion Euros spent we have only three core crime convictions. As others have said, and I quote “it is undeniable that the Rome project still falls short of the expectations of the participants at that ground-breaking conference in Rome”. The time has come for States to take a fundamental look at how the Court is operating. We need to work together to address the challenges, for the future health of the Court, a Court that we care about deeply.

The UK statement, delivered by Legal Director Andrew Murdoch,* ‘welcome[d] the steps taken by the Prosecutor to investigate the media allegations surrounding the former Prosecutor that surfaced twelve months ago’ and noted that the ‘Court is in danger of spending more money on internal litigation, including litigation on salaries, than on victims’.

Some will no doubt point to ongoing ICC investigations into the actions of UK personnel in Iraq, to impugn the UK’s motives in making these points. Its criticisms, however, are undeniably grounded in fact. Things are not fine. In April it will be 16 years since the Court’s first prosecutor was sworn in. A widespread sense among the ICC’s supporters that there is some soul-searching to be done about the future direction of the Court has only been heightened in the weeks since the Gbagbo acquittal.

Let’s be clear about the paucity of concrete results. There have been eight convictions, one overturned on appeal, one arising from a guilty plea and four relating to Article 70 administration of justice offences. The four convictions for offences against the administration of justice all arise out of the Central African Republic investigation and involve sentences of 6 months to 3 years. The other convictions may be summarised as:

  • Bemba (CAR) – sentenced to 18 years, overturned on appeal; an administration of justice case continues;
  • Katanga (DRC) – sentenced to 12 years, transferred back to DRC custody with ‘sentence served’ after 8 years;
  • Lubanga (DRC) – convicted to 14 years;
  • Al-Mahdi (Mali) – proceeded on a guilty plea and was sentenced to 9 years.

This is to set aside the very considerable disquiet expressed regarding the Katanga conviction, involving the dismissal of charges against his alleged co-perpetrator and judicial recharacterization of the relevant mode of liability after the close of proceedings. There is also now the very public embarrassment of both the collapse of the Kenya situation prosecutions and now the entry of acquittals on a “no case to answer” motion by the Trial Chamber in Gbagbo. As Labuda notes, if the Gbagbo acquittal is upheld on appeal, the ICC will be in the ‘rather awkward’ position of having acquitted more alleged international criminal than it has convicted. Indeed, as Dürr points out, to have more acquittals and terminated proceedings than convictions is unique among international criminal tribunals.

There are certainly more complex, and arguably more important, metrics by which to judge the success or failure of an international criminal tribunal than the number of its convictions. Indeed, we would rightly be sceptical of the fairness of proceedings that only resulted in conviction. However, to the extent that the Court is meant to serve expressivist goals, fight impunity, or deter atrocity – it must present some credible threat to those who should fear accountability. It is often argued that the simple possibility of ICC accountability may deter atrocity and that the existence of institutions may change behaviour. As lawyers we know that behaviour changes in the ‘shadow of the court’, but that court must first cast a shadow.

In a series of reflections, I will argue that we should now be very worried about the extent to which the Court is casting much of a shadow at all. In exploring who and what is to blame for this situation, I will pursue two themes: conditions and culture. Read the rest of this entry…

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‘Open for Business’: The Special Criminal Court Launches Investigations in the Central African Republic

Published on February 8, 2019        Author: 
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On 22 October 2018, the Special Criminal Court (SCC) held its inaugural session in Bangui, the capital of the Central African Republic (CAR). Several weeks later, the Special Prosecutor, Col. Toussaint Muntazini, announced his long-awaited prosecutorial strategy. Coming three years after Parliament initially requested a specialist ‘war crimes’ tribunal for CAR, these two acts mark a watershed in the country’s fight against impunity. After providing some background on the SCC, this post examines the prosecutorial strategy and the prospects of accountability in CAR.

The Legal Framework

Established by domestic legislation in June 2015, the SCC is a hybrid tribunal fully integrated into the Central African justice system. It is staffed by national and international prosecutors and judges, and relies on logistical and technical support from the UN peacekeeping mission in CAR. Funded by voluntary contributions, the SCC is functionally independent from both the United Nations and CAR government. Its five-year mandate, which officially began on 22 October 2018, is renewable.

Prosecutorial Strategy

Why did the SCC publicize its prosecutorial strategy? Other tribunals, for instance the Special Court for Sierra Leone and the International Criminal Tribunals for Rwanda and the former Yugoslavia, never made their strategies public (to the extent such strategies existed). The SCC’s decision to ‘go public’ is more in line with the International Criminal Court (ICC)’s practice of adopting formal policies on a variety of matters. Read the rest of this entry…

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Some Concerns with the Pre-Trial Chamber’s Second Decision in Relation to the Mavi Marmara Incident

Published on December 5, 2018        Author: 
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On 15 November 2018, Pre-Trial Chamber I of the International Criminal Court (ICC) issued a decision in response to an application by The Comoros seeking judicial review of the Prosecutor’s ‘final decision’ not to proceed with the investigation of the Situation on the Registered Vessels of the Union of The Comoros, The Hellenic Republic of Greece and Cambodia (Mavi Marmara incident). This decision is the most recent in a string of proceedings since The Comoros first referred the situation to the Court in 2013. In brief: following the publication of the Prosecutor’s 2014 report declining to initiate an investigation on grounds of insufficient gravity, The Comoros sought review under Article 53(3)(a) of the Rome Statute. The Pre-Trial Chamber’s 2015 decision found several errors in the Prosecutor’s application of gravity and requested her to reconsider her decision not to investigate. In response, the Prosecutor sought to appeal the decision under Article 82(1)(a) by characterising it as one pertaining to admissibility. The appeal was dismissed in limine on the ground that the Pre-Trial Chamber had not ruled on the admissibility of the situation; ‘the final decision in this regard being reserved for the Prosecutor’ (para 64).

When in 2017 the Prosecutor published her ‘final decision’ detailing the reasons for her decision (upon reconsideration) not to investigate, The Comoros sought a second review under Article 53(3)(a) and the decision of the Pre-Trial Chamber this November was issued in response. The decision relies on the finding that the Pre-Trial Chamber’s 2015 decision constituted a ‘final judicial decision’ (para 96). From this, the Court draws the following consequences: (1) that the Prosecutor is obliged to comply with its 2015 decision, (2) that the 2015 decision must constitute the basis for the Prosecutor’s reconsideration, and (3) that the Prosecutor’s ‘final decision’ – by failing to do so – is not final at all. These proceedings have tested the limits of prosecutorial discretion in the initiation of investigations under Article 53(1) of the Rome Statute, and it is in this context that this post identifies three problematic aspects of the Pre-Trial Chamber’s decision. 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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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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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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The Role of the ICC in Protecting the Rights of Children Born of Rape in War

Published on February 12, 2018        Author: 
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The trial at the International Criminal Court (ICC) of Dominic Ongwen, commander of the Lord’s Resistance Army (LRA), has attracted widespread legal and political debate.  Much of the commentary has focused on the former child soldier’s status as a victim-perpetrator. Missing from mainstream legal discourse is consideration of another status Ongwen holds as a result of his alleged crimes: fatherhood.  Relatedly, and more importantly, also overlooked is a group of victims of his crimes: children born as a result of rape.  Within the LRA “forced marriage” system, thousands of children were born from the rape of girls held in captivity.

Drawing primarily upon the Ongwen case and the crime of forced pregnancy, this post considers the ICC’s role in recognising the rights of children born of rape and repairing harms against them, consistent with their right to reparation under international law.  Stigmatisation within “post-conflict” communities is a key harm suffered by children born of rape, often driven by their perceived association with perpetrator fathers.  The ICC’s capacity to redress or, inadvertently, exacerbate stigma against this group of victims requires attention. Read the rest of this entry…

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Customary International Law and the Addition of New War Crimes to the Statute of the ICC

Published on January 2, 2018        Author: 
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In addition to the activation of the International Criminal Court’s jurisdiction over the crime of aggression (see previous post), the recently concluded Assembly of States Parties (ASP) to the Statute of the ICC, also adopted three amendments adding to the list of war crimes within the jurisdiction of the Court. These new war crimes relate to the use of prohibited weapons in international as well as non-international armed conflicts. However, in the lead-up to the ASP there was controversy regarding the wisdom and even the legality of adding to the list of war crimes. One of the concerns was that there would be fragmentation of the Rome Statute system with different crimes applicable in differing situations to different individuals. This is because under the amendment procedure to the Rome Statute (Art. 121(5)) these new crimes would not apply to nationals of, or conduct on the territory of, non-ratifying states parties. Another concern was that the new crimes (or at least some of them) are, in the view of some states, not criminalised under customary international law and thus not suitable for addition for inclusion in the ICC Statute. It is this latter issue that I focus on this post, though as I will explain later, the issue overlaps with the question of fragmentation of the Rome Statute regime. In this post, I discuss the implications of criminalising conduct under the ICC  Statute which do not amount to customary international law crimes. I take no position on whether the crimes that have been added are, or are not, crimes under customary international law (though I think few would doubt that the use of biological weapons is such a customary international crime), but explain why this is an important question that states are right to pay attention to.

The new war crimes to be inserted into the Rome Statute are as follows (see Resolution ICC-ASP/16/Res.4):

  • Employing weapons, which use microbial or other biological agents, or toxins, whatever their origin or method of production [to be inserted as Art. 8(2)(b)xxvii) and Art. 8(2)(e)(xvi)]
  • Employing weapons the primary effect of which is to injure by fragments which in the human body escape detection by X-rays [to be inserted as Art. 8(2)(b)(xxviii) and Art. 8(2((e)(xvii)];
  • Employing laser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices [to be inserted as article 8(2)(b)(xxix) and Art. 8(2)(e)(xviii)].

Read the rest of this entry…

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An Eventful Day in The Hague: Channeling Socrates and Goering

Published on November 30, 2017        Author: 
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Yesterday the ICTY delivered its very final appeals judgment, in the case of Prlic et al, finding all of the defendants – political and military leaders of Bosnian Croats – guilty of crimes against Bosnian Muslims, and affirming the sentences passed on them by the trial chamber (summary; judgment). Yesterday, also, one of the defendants in the case, Slobodan Praljak, a general during the Bosnian conflict but by formal training a rather eclectic individual with degrees in philosophy, sociology, and theatre from the University of Zagreb, committed suicide in the courtroom. He did so by standing up in the dock, loudly declaiming to the judges that: “Slobodan Praljak is not a war criminal and I reject your judgment with contempt” [yes he did that very nice thing of referring to himself in the third person], and then drinking a vial of poison in full view of the (visibly shocked) judges, and the cameras. The video of this dramatic one-upmanship of Socrates and Hermann Goering, the first (and hopefully last) for an international courtroom, is here.

Like in the Mladic case, the reaction to the judgment was predictably nationalist and predictably depressing. The prime minister of Croatia – a member state of the EU – completely rejected the judgment, saying that it constituted a grave moral injustice against the defendants and the Croatian people as a whole. So did the Croat member (and current chairman) of the Presidency of Bosnia and Herzegovina, who stated that Praljak was prepared to sacrifice his very life to show to the world and to a political court that he was in fact innocent. This martyrdom narrative is now bound to feed Croat nationalism for a long, long time. The principal reason for all this ire is not so much the conviction as such, but the Appeals Chamber’s confirmation of the finding at trial that the defendants participated in a joint criminal enterprise together with leaders from Croatia, including President Tudjman, whose purpose was to consolidate a Croat entity in Bosnia through the ethnic cleansing of Bosnian Muslims. This is also coupled with the findings about Croatia’s control over Bosnian Croat forces and the characterization of the armed conflict as international, i.e. inter-state, in nature.

What of the judgment more generally? It is very long (more than 1400 pages), longer than most ICTY appeals judgments. This is largely the product of numerous problems, errors in law and reasoning in the trial judgment – itself caused to no small degree by the peculiarities of the presiding trial judge (remember the Seselj acquittal? Yes, that guy.). Yet despite the many problems, and reversals on numerous points, the Appeals Chamber essentially endorsed the basic factual and culpability account of the trial judgment, saying that the totality of the crimes for which the defendants have been convicted suffices for the sentences they have been given. Throughout its judgment the Appeals Chamber is in a constructive, repair mode in relation to the trial judgment, especially when compared to the hypercritical deconstructivism in the Gotovina judgment.

There are many legally interesting issues in the case of broader import. First, the Chamber’s approach to the classification of the armed conflict in Bosnia and the scope of application of the Geneva Conventions. Second, similarly, the Chamber’s application of the law of occupation, and its finding that Croatia was occupying parts of Bosnia through its proxies. Third, and most controversially, its reversal of the majority trial chamber finding that the destruction of the Old Bridge (Stari Most) in Mostar constituted a war crime of wanton destruction of property not justified by military necessity. Judge Pocar dissented on this point very energetically. Essentially the Chamber found that (1) the bridge was a military objective, as it was being used by Bosnian Muslim forces; (2) therefore the destruction of the bridge could not be ‘wanton’, even if it was disproportionate in its impact on the civilian population under IHL; (3) the Trial Chamber found no other property destroyed in this event; (4) therefore an element of the crime was missing or unproved. The judgment thus does not directly engage with the ‘pure’ IHL proportionality question, as the majority and dissent did at trial. Finally, the analysis of JCE is very dense and fact-specific; one particularly interesting set of issues dealt with the inconsistent terminology used in the French original of the trial judgment and its impact on the relevant mens rea standard.

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