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

Published on March 22, 2019        Author: 
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Editor’s note: This is Part II of a three-part series.

Part I of these reflections focused upon the structural constraints faced by the International Criminal Court as a whole. Within this framework, I wish to focus upon the role of individuals and officeholders in the courts success or failure within those constraints, with a focus on the office of the prosecutor and the judges of the court (Chambers). This post thus sets out to address questions of the Court’s internal workings, practices and culture. In relation to the OTP, I will focus on questions of strategy and management; in respect of chambers, questions of collegiality and assessment of evidence. Space precludes an evaluation of the Registry’s contribution to the court’s present woes beyond my earlier allusion to the well-known, long and expensive series of employment law cases brought against it which followed from a previous registrar’s restructuring exercise. Again, little here will seem especially new to close observers of the Court, the point is to pull together a worrying cluster of issues for a broader audience. Warning: long post ahead.

The Office of the Prosecutor (OTP)

It is worth acknowledging both the enormous power of the role of an international prosecutor, and the very great difficulties in doing the job successfully. As Stahn notes, the Prosecutor is the engine of international criminal tribunal proceedings. He or she conducts investigations, selects defendants, brings cases to trial. In doing so, it is common for prosecutors to say that they are only following the law or evidence, but in practice they have substantial discretion in case and defendant selection. In addition, obtaining defendants and evidence requires, in practice, the cooperation of States. Thus, prosecutors’ work ‘is inherently linked to politics due to the political context of crimes, the politics behind institutional engagement and their large degree of choice.’ That said, international prosecutions are hard. Gathering evidence in conflict zones is hard. Operating in the face of government obstruction is hard. And the reality of selective justice at the international level means prosecutors will always be open to criticisms of partiality or lacking independence. It’s a challenging job. Much was going to depend on the ICC Assembly of State Party’s choice of prosecutor in 2003.

The first Prosecutor

The first Prosecutor of the International Criminal Court, Luis Moreno-Ocampo, was during his tenure an Olympian figure; though the verdict of history on his achievements looks increasingly likely to be that of Ozymandias. 

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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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Brexit Means Brexit: Does It so When It Comes to EU Citizenship?

Published on March 15, 2019        Author: 
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Following a dramatic referendum, the United Kingdom triggered Art. 50 of the TEU in March 2017 officially commencing its withdrawal from the EU. At first glance, one of the many consequences of the move is the loss of EU citizenship for all British citizens as they will no longer be ‘holding the nationality of a Member State’ (TFEU, Art. 20(1)). This means losing all the perks that go with an EU passport, among them the freedom of movement, residence, and employment across the Union (id., Art. 20(2)).

A broader question of fairness and justice arises when ca. sixteen million people who have not voted in favour of leaving the bloc and have not committed any fraud or deceit are going to be stripped of their EU citizenship, and all of the privileges associated therewith. Not surprisingly, there have been some speculations on whether (and how) EU citizenship can be preserved by the Brits.

EU Citizenship

In its contemporary form, EU citizenship was established by the TEU back in 1992 providing that an EU citizen is ‘[e]very national of a Member State’ (Art. 9). The drafters of the Treaties could easily avoid using the term ‘citizenship’ and simply assign all the rights to nationals of the Member States but did not do that (William Thomas Worster, Brexit and the International Law Prohibitions on the Loss of EU Citizenship 15 International Organizations Law Review 341, 348 (2018)). However, the true roots of EU citizenship can be found in the Treaty of Paris signed in 1951. The Treaty virtually denounced any restrictions in the employment of professionals ‘in the coal and steel industries’ (Art. 69). Read the rest of this entry…

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Non-Precluded Measures Clause: Substance or Procedure? A comment on Certain Iranian Assets

Published on March 6, 2019        Author: 
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On 13 February 2019, the International Court of Justice (ICJ) issued its Judgment on the preliminary objections raised by the US to Iran’s claims in the Certain Iranian Assets case. The dispute involves the exercise of jurisdiction over Iran by US courts and the seizure of assets of Iranian state-owned companies to satisfy those court’s judgments. According to Iran, these actions are in breach of the US obligations under the 1955 Iran-US Treaty of Amity. The background to the case and the Court’s recent decision have been analysed elsewhere (see, eg, here). In this post, I want to comment on one specific element of the Court’s reasoning: its decision in relation to the US objection based on Article XX(1) of the Treaty of Amity.

Article XX(1) states, in relevant part, that:

The present treaty shall not preclude the application of measures …

(c) regulating the production of or traffic in arms, ammunition and implements of war, or traffic in other materials carried on directly or indirectly for the purpose of supplying a military establishment; and

(d) necessary to fulfil the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests.

The US argued that the function of this provision was to exclude certain matters from the substantive scope of the Treaty, with the consequence that they fell outside the Court’s jurisdiction which is limited, under Article XXI, to disputes relating to the interpretation and application of the Treaty. The Court rejected the US preliminary objection and decided, as it had done on previous occasions, that the provision in question constituted a ‘defence on the merits’ (para 47). This seems to be the right approach: Read the rest of this entry…

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ICJ Delivers Chagos Advisory Opinion, UK Loses Badly

Published on February 25, 2019        Author: 
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Earlier this afternoon the ICJ delivered its Chagos advisory opinion. Briefly, the Court found that the separation of the Chagos archipelago from the British colony of Mauritius was contrary to the right to self-determination and that accordingly the decolonization of Mauritius was not completed in conformity with international law. As a consequence, the Court found that the UK’s continuing administration of the archipelago, which includes the largest US naval base in the Indian Ocean, Diego Garcia, is a continuing internationally wrongful act, which the UK was under an obligation to cease as soon as possible. The Court was almost unanimous – its decision not to exercise discretion and decline giving an opinion was made by 12 votes to 1, while its findings on the merits were made by 13 votes to 1 (Judge Donoghue dissenting). The AO and the various separate opinions is available here.

Here are some key takeaways.

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Anticipating the Chagos Advisory Opinion: The Forgotten History of the UK’s Invocation of the Right to Self-Determination for the Sudan in the 1940s

Published on February 19, 2019        Author:  and
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What does 2019 have in store for international law? Little seems predictable, but 2019 is likely to be the year in which the International Court of Justice will for the first time in two decades pronounce on the law of self-determination. In the Kosovo Advisory Opinion, the ICJ managed to sail around this spiky fundamental concept of international law, but it will be harder to avoid in the advisory proceedings on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius. This case puts self-determination front and centre.

One of the questions that the ICJ may have to address is that of the legal status of self-determination as early as 1965, including Great Britain’s argument that it had, until then, consistently objected to references to a ‘right’ of self-determination. Influential legal literature underlines the trickiness of that question, as it locates the birth of self-determination as a legal right exactly in the period 1960-1970, but without pinpointing a specific birthday. 

However, legal historiography has thus far omitted a case that suggests that self-determination was imbued with legal meaning, by Great Britain itself, at an earlier stage, namely in the 1940s. Our forthcoming article in the British Yearbook of International Law shows that during the UN Security Council’s second year of operation, in 1947, the UK invoked the right of self-determination of another people, the Sudanese, as their legal entitlement, in its effort to counter Egyptian claims on the Sudan. While others have written brilliant histories of how the Sudan emerged into statehood, our article aims to restore the Sudan case to the legal history of self-determination, including the UK’s role in this. Thus, even if popular historical imagination envisages self-determination as a revolutionary ideal championed by the colonized but denied by the colonizers, in the case of the Sudan, the British propagated the Sudanese right to self-determination, albeit, as we argue, as an emanation of, not a deviation from, their own colonial predispositions. 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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A Positive Take on the Legacy of the 1978 Judgment in Ireland v. United Kingdom

Published on February 7, 2019        Author: 
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In September 2018, a request by the Irish Government to refer the Ireland v. United Kingdom revision case to the Grand Chamber of the European Court of Human Rights (ECtHR) was refused, closing a door that had been reopened after forty years. The fact that the ECtHR arrived at a finding of inhuman and degrading treatment ‘only’ has been maligned. In this post, I’d like to highlight an alternative perspective and suggest that this judgment elevated the gravity of the ‘other’ forms of treatment and set in motion a pioneering approach to the interpretation of Article 3 ECHR.

Subsequent to the Chamber judgment in March 2018, there was much debate (including in this blog) about whether the ECtHR should have revised its 1978 finding of inhuman and degrading treatment in light of the additional evidence. Some have supported the ECtHR’s exercise of restraint in the use of its exceptional revision powers under Rule 80 of the Rules of Court, pointing out the need for legal certainty. Others have critiqued the Court’s approach to the new evidence or have lamented the Court’s failure to follow the European Commission on Human Rights’ finding of torture, opening the door to manipulation of the torture-versus-ill-treatment distinction. All have opined that the facts of the case would give rise to a finding of torture today.

A further commonality across the commentary is that all refer to the finding of inhuman and degrading treatment ‘only’. The 2018 judgment itself describes the applicant Government’s request for the Court to find that the ‘five techniques’ ‘amounted to a practice not merely of inhuman and degrading treatment but of torture within the meaning of Article 3 of the Convention’ (para. 8). In the context of these debates, and the revision request itself, the distinction between torture and inhuman and degrading treatment ‘only’ has been amplified. That is, there is a pervasive and implicit sense that inhuman and degrading treatment is in some way not as bad as torture. In 2018, as was observed in 1978, the Court’s failure to arrive at a finding of torture overshadowed the finding of inhuman and degrading treatment. Read the rest of this entry…

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WTO Dispute on the US Human Rights Sanctions is Looming on the Horizon

Published on January 31, 2019        Author: 
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At the turn of the year, Venezuela initiated a WTO dispute with the United States. In a nutshell, Venezuela questions WTO-consistency of a number of coercive trade-restrictive measures (economic sanctions) imposed by the United States. Some of those restrictions were allegedly imposed on the human rights grounds.

US sanctions against Venezuela

The United States has been consistently imposing trade-restrictive measures against Venezuela, yet none of them has ever been challenged at the WTO. Most likely, the last wave of such restrictions is a spark that lit the fuse. In recent years, the Trump Administration introduced additional restrictions on Venezuela’s financial sector, leaving the country’s finances in shambles, as well as sanctions directed against the country’s gold sector. According to the media reports published in January 2019, the United States considers even tougher sanctions, particularly the ones that can impede Venezuela’s oil industry.

Human rights sanctions against Venezuela

The United States is notorious for its practice of economic coercion, which has been debated at length within the international community. Economic measures imposed to promote human rights entered the US foreign policy agenda under President Carter. In the following decades, the US has made ample use of them. 

In December 2014, the US Congress enacted the Venezuela Defense of Human Rights and Civil Society Act of 2014. The enactment of the act was triggered by a number of events, particularly by the deteriorated living standards and the violent crackdown on the anti-government protesters. The act authorizes the President to impose various targeted sanctions, – sanctions against current or former government officials responsible for acts of violence or serious human rights abuses against protesters. The ambit of such sanctions includes blocking of assets of the designated individuals as well as travel restrictions. In pursuit of its authority, President Obama declared the national emergency in respect of the situation in Venezuela and issued an Executive Order 13692 of March 8, 2015, which implements the aforesaid human rights sanctions.

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Holding States to Account for Gender-Based Violence: The Inter-American Court of Human Rights’ decisions in López Soto vs Venezuela and Women Victims of Sexual Torture in Atenco vs Mexico

Published on January 21, 2019        Author: 
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In two recent decisions, the Inter-American Court of Human Rights (IACtHR) has affirmed the existing binding obligations of States to address gender-based violence against women by State and non-State actors. The López Soto vs Venezuela decision (published in November 2018) is the IACtHR’s first ruling on State responsibility for acts of sexual torture and sexual slavery by a private actor and its first case for gender-based violence against Venezuela. The Women Victims of Sexual Torture in Atenco vs Mexico decision (published in December 2018) sets out the State obligations in cases of sexual torture by state security forces. Both rulings build on the IACtHR’s prior gender jurisprudence and set important new precedents by providing detailed content to the duties of due diligence and by explaining the circumstances in which States can be held liable for breaching them.

The López Soto vs Venezuela case examines the circumstances in which acts of gender-based violence by private actors can be attributed to the State. In 2001, a well-connected private individual kidnapped Linda Loaiza López Soto, then 18 years old, in Caracas, Venezuela, holding her hostage for over three months. During her captivity, she was brutally tortured, raped and humiliated. In her February 2018 testimony before the IACtHR, she provided a harrowing account of the sadistic abuse she endured, the multiple surgeries she underwent for her injuries following her rescue, and the lasting impact of these injuries. López Soto brought her case before the IACtHR after domestic authorities failed to duly investigate and prosecute the crimes, convicting her abductor of lesser charges.

The Court focused its analysis on two contentious issues: (1) whether the conduct of a private actor could be attributed to Venezuela; and (2) whether this conduct amounted to torture and sexual slavery under international law, as argued by the plaintiff. Read the rest of this entry…

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