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Home Archive for category "International Tribunals"

Acquittals by the International Criminal Court

Published on January 18, 2019        Author: 
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Earlier this week, a Trial Chamber of the International Criminal Court acquitted Laurent Gbago, former President of Côte d’Ivoire, and his right-hand man, Charles Blé Goudé. (In what follows, I will refer only to Gbagbo). By a majority of two to one, the judges held that there was insufficient evidence to place Gbagbo on his defense. The Prosecutor has indicated that she will appeal this decision.

Critics of the ICC claim that this track record constitutes an indictment of the Court. They point, in comparison, to the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY). During its active life from 1995 to 2017, it indicted 161 individuals of whom 99 were sentenced, 19 acquitted and 13 referred to domestic courts.  The United Nations International Criminal Tribunal for Rwanda, during its period of activity indicted 96 individuals of whom 62 were sentenced, 14 acquitted and 10 referred to domestic courts.  

I would suggest, however, that the comparison is not a fair one. In the case of the UN tribunals, each court was given a specific mandate that extended over a defined territory – the states that comprised the former Yugoslavia in the case of the first and Rwanda in the second. They were supported by resolutions of the Security Council that were legally binding on all members of the United Nations. They had the full and active support of the United States that brought its political and economic muscle to back that support. On the other side, the ICC has jurisdiction over war crimes perpetrated in 123 States or committed anywhere by a person who is a national of one of those 123 States. On this ground alone the differences become manifest.

That mistakes have been made by organs of the ICC cannot be doubted. However, it is always easy to criticise in hindsight. Some proceedings have taken too long. Some of the judges have been less than prompt in issuing their decisions. Criticism of, as well as praise for, the ICC has come both from civil society and from governments.

In June 2018, there was a massive outpouring of criticism at the decision of a majority of the ICC Appeals Chamber acquitting the former Vice-President of the Central African Republic, Jean-Pierre Bemba. 

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The UN Human Rights Committee Disagrees with the European Court of Human Rights Again: The Right to Manifest Religion by Wearing a Burqa

Published on January 3, 2019        Author: 
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It is perhaps unsurprising to observers of the UN Human Rights Committee’s (HRC) jurisprudence that in the recent decisions of Yaker v France and Hebbadi v France, the HRC came to the opposite conclusion to the European Court of Human Rights (ECtHR) regarding the compatibility of the so-called ‘French burqa ban’ with the right to manifest religion. In SAS v France, the ECtHR had found that although the French Loi no 2010–1192 interdisant la dissimulation du visage dans l’espace public of 11 October 2010, JO 12 October 2010 (herein after the ‘burqa ban’) interfered with the right to manifest religion, it did not constitute a violation of article 9 European Convention on Human Rights (ECHR) as it pursued the legitimate aim of ‘living together’ and fell within the State’s margin of appreciation (see my earlier post on this case). In contrast, in Yaker and Hebaddi, the HRC found that the same law violated not only article 18, the right to thought, conscience and religion, but also article 26 of the International Covenant on Civil and Political Rights (ICCPR), the right to equality before the law.

The HRC’s freedom of religion or belief jurisprudence has consistently diverged from that of the ECtHR when the right to manifest religion by wearing religious clothing is at issue. Both bodies have heard directly analogous cases, but while the HRC has found that restrictions on religious clothing justified by reference to either secularism or public order violate article 18 ICCPR, the ECtHR has deferred to the State’s margin of appreciation and declined to find a violation (see my earlier post on this blog). As a result, the HRC’s decisions in Yaker and Hebbadi were not entirely unexpected, especially as in its Concluding Observations on the fifth periodic report of France in 2015, the HRC had expressed ‘the view that these laws [including the burqa ban] infringe the freedom to express one’s religion or belief and that they have a disproportionate impact on members of specific religions and on girls’ (para 22). However, its decision in these cases remains noteworthy as a result of: its consideration of ‘living together’ as a legitimate aim under the article 18(3) ICCPR limitations clause; the HRC’s recognition that the burqa ban constituted intersectional discrimination; and the nuanced approach adopted to the gender equality argument. The analysis here will focus on Yaker, although the HRC’s reasoning in both cases is identical. Read the rest of this entry…

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Trivia: Judges on Multiple International Tribunals

Published on January 2, 2019        Author: 
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In previous posts (here and here) of some years ago, I noted the increasing number of judges elected to the International Court of Justice who had prior experience on another international tribunal. With the proliferation of international tribunals over the past couple of decades, this phenomenon of judges being elected to one international tribunal after having served in some judicial capacity on another appears to be on the increase. About 10 days ago, the United Nations General Assembly held elections for two judicial vacancies on the International Residual Mechanism for International Criminal Tribunals. The Assembly elected Yusuf Aksar of Turkey as a judge, but after  six rounds of balloting was unable to elect the second judge, with a further round of balloting to be held at date to be announced. Professor Aksar currently serves as an ad hoc judge of the European Court of Human Rights. This is the latest example of an international judge with prior international judicial experience. 

All of this leads me to wonder which international judge (by which I mean, judge of a standing international tribunal) has served on the most number of (standing) international tribunals. I can think of one judge who has sat on three international tribunals and two judges who have served on/been elected to  four.

My opening trivia questions for the new year are these:

  1. Which judge has served on the International Court of Justice; the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court?

  2. Which judge has been elected to the  International Court of Justice; the International Criminal Tribunal for the former Yugoslavia; the International Criminal Tribunal for Rwanda; and the International Criminal Court?

  3. Which judge has served on the  International Court of Justice; the International Criminal Tribunal for the former Yugoslavia; the International Criminal Tribunal for Rwanda; and the Appellate Body of the World Trade Organisation?

  4. Can anyone think of an international judge who has served on 5 or more standing international tribunals?

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The Decentralisation of International Crimes: A shift from the central criminal apparatus at the ICC?

Published on December 27, 2018        Author: 
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In her statement to the UN Security Council on November 2018, Fatou Bensouda vowed to search ‘outside of Libya’ for accountability of global actors in the migration context. This is one of the many moves by the Office of the Prosecutor (OTP) in their prosecutorial trajectory towards a more holistic approach. Such an approach widens the accountability net to capture crimes and potentially responsible actors, which would otherwise fall outside the geographical scope of the ICC’s “situations”.

In this post, I argue that this new approach, which has largely passed under the radar, is both desirable and justified. In what follows, I make three propositions. First, the ICC has by far adopted, in practice, a localised approach stressing system criminality. Second, in light of the globalisation of international crimes, this orthodox approach may be obsolete by failing to reflect and assert accountability comprehensively. The proliferation of cross-border transactions and the enhanced risk of transnational harms would require no less than modernising current prosecutorial strategies to properly respond to the changing faces of international crimes. The last proposition suggests that this new approach is justified and imminent out of practicality to fulfil the Court’s mandate.

The Orthodox Approach

Since the first case in Lubanga, it has been the customary practice of the ICC to localise liabilities. This means the Court would ordinarily zoom in on a particular (non-)State structural apparatus of power, and build a case theory upon it. The natural task of the Prosecution would be to identify and re-construct in abstracto the hierarchical structure that sustained the commission of crimes, and to translate it into respective responsibilities of criminal participants in concreto. Terms such as ‘organised apparatus’ and ‘hierarchical criminal network’ are common languages replete in the work of the Prosecution and Chambers. Read the rest of this entry…

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A Quick Holiday Update on Ukraine/Russia Litigation before the ECtHR

Published on December 24, 2018        Author: 
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Last week the European Court of Human Rights published a press release which is worth flagging for readers, with an update on litigation concerning various aspects of the conflict in Ukraine pending before it. As things stand, there are more than 4000 individual cases before the Court with a nexus to the conflict, whether in Eastern Ukraine or Crimea. There are currently five pending interstate cases between Ukraine and Russia, the latest one filed in November, concerning the Kerch Strait incident (see this prior post by James Kraska) and in which the Court has indicted interim measures. The Court has now decided to adjourn many of the individual cases, pending its decision in the interstate cases on the applicability of the Convention, specifically with regard to the Article 1 ECHR jurisdiction of both Ukraine and Russia; for a discussion of this issue, see my recent ICLQ article with Tatjana Papic on the applicability of the ECHR in contested territories.

The full press release is reproduced below.

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In the name of the European Club of Liberal Democracies: How to Evaluate the Strasbourg Jurisprudence

Published on December 20, 2018        Author: 
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How should the European Court of Human Rights be reformed? Para. 41 of the Copenhagen Declaration of April 2018 seeks to scrutinise, for this purpose, recent developments in its jurisprudence, to decide, before the end of 2019, on further reform (para. 5 Copenhagen Declaration). What is a meaningful idea for such scrutiny? This post provides a legal reconstruction of the Court with respect to who it represents and in whose name it decides, that is in the name of the European club of liberal democracies. From here on, it flags the identity crisis of the club as the Court’s most important challenge. It also shows the procedural margin of appreciation doctrine as a possible path to the Court’s future, with a reformed role that focuses on the essentials of the club.

The focus “in whose name?”

An evaluation of the Court’s jurisprudence needs an idea of its democratic legitimacy, not least because it often confronts elected governments. The question, ‘in whose name’ the Strasbourg Court is deciding, evokes such an idea. Indeed, many national courts state right at the outset that they decide In the name of the people or the republic, whatever is conceived as the ultimate source of their legitimacy. Accordingly, most evaluations of domestic courts start from this premise.

In the judgements of the ECtHR, as those of any international court, nothing of that kind is written. So the question is what could feature in there as a short formula which provides a similar idea? One might consider referring to the Convention. It would then read In the name of the European Convention on Human Rights, as if a domestic court would start with In the name of the law. Yet, this is a step too short: the legitimacy does not stem from the law itself, but from its approval by parliament. Accordingly, the basis of the Court’s democratic legitimacy stems from the national ratifications of the Convention.

Hence, in a normal international controversy between two states, one could consider a court to decide In the name of the high contracting parties litigating before the court. But this makes little sense for the Strasbourg court: most controversies at the ECtHR are between a state and a national of that state. A different formula is needed. Read the rest of this entry…

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Response: Strengthening Justice for Victims Through Complementarity

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Editor’s Note: This post is part of our Joint Symposium with Justice in Conflict on Human Rights Watch’s Report, Pressure Point: The ICC’s Impact on National Justice 

Many thanks to the editors and the contributors for making this online symposium possible. Our primary goal with Pressure Point was to identify whether and how the Office of the Prosecutor at the ICC could become more effective in pursuing its policy goal of encouraging national prosecutions through engagement at the preliminary examination stage.

But we also hoped that Pressure Point could play a role in bringing broader awareness about this dimension of the prosecutor’s work, and to stimulate others to consider how they might be able to contribute to efforts to spur national prosecutions as part of expanding the reach of justice. In this response, we address some key areas of agreement among the contributors while also addressing some differences in perspective or conclusions.

As we make clear in the report and as Emeric also emphasizes, pursuing national prosecutions is only a secondary goal of preliminary examinations, which primarily are focused on determining whether the ICC should exercise jurisdiction. When it comes to how the prosecutor should approach those determinations, it is clear there are a number of important considerations that go far beyond our report’s focus on positive complementarity. Carsten Stahn’s contribution here impressively covers that vast terrain, and brings in additional voices from the recently published Quality Control in Preliminary Examinations to set out a number of areas where further consideration is helpful. Read the rest of this entry…

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The Ethos of “Positive Complementarity”

Published on December 11, 2018        Author: 
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Editor’s Note:This post is part of our Joint Symposium with Justice in Conflict on Human Rights Watch’s Report, Pressure Point: The ICC’s Impact on National Justice 

I am grateful to Dapo Akande and Mark Kersten for their invitation to contribute to this “symposium” on HRW’s valuable report on the impact of the preliminary examinations (“PE”) of the ICC Office of the Prosecutor (“OTP” or the “Office”) on national justice. I happen to respond to this invitation in-between “complementarity missions” to two countries selected as case studies by HRW, namely Colombia and Guinea. I therefore hope that my modest input will be seen as being informed by first-hand field experience in the practice of the Office’s “positive approach to complementarity.”

In past years, preliminary examinations have been recognized as a core OTP activity. They have thus become the subject of increased attention by multiple stakeholders and a topic of academic research. To an extent, this new scrutiny is a recognition of the relevance and importance of “PE activities” and has been partly triggered by the OTP’s own transparency as demonstrated by its annual reporting and open-door policy. Inevitably, however, increased scrutiny comes with increased criticism, which are always welcome when constructive and well-informed, less so when they are speculative or based on lack of knowledge and understanding of the OTP’s work in practice. In this regard, I am grateful to the HRW team for engaging substantively with the Office over the course of their project and for taking the time to better understand our modus operandi, as well as the challenges, dilemmas and limitations faced by the OTP in its endeavours.

While the HRW report offers a generally balanced and reasonable assessment, I do not share some of their findings. It is nonetheless comforting to read an acknowledgment of positive changes introduced in the OTP practice in the past years, particularly those under Prosecutor Bensouda’s tenure. It appears that the Office’s efforts to explain its policy and activities have borne fruit over time, as also recognized by the contributions of Sanchez and Stahn to this symposium. Read the rest of this entry…

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A Complementarity Toolkit?

Published on December 10, 2018        Author: 
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Editor’s Note: This post is part of our Joint Symposium with Justice in Conflict on Human Rights Watch’s Report, Pressure Point: The ICC’s Impact on National Justice 

In the long-term, bolstering national proceedings is crucial in the fight against impunity for the most serious crimes, and is fundamental to hopes for the ICC’s broad impact. It can also restore trust in national institutions, which have been severely damaged or have failed completely in a context of armed conflict or systematic repression.

A recent Human Rights Watch report provides a detailed examination of how the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) can trigger domestic investigations and prosecutions into serious crimes, looking at Colombia, Georgia, Guinea and the United Kingdom as case studies. The report discusses a range of practical actions that the OTP can take as part of its complementarity activities during the admissibility phase of its analysis, and how these actions have played out in various contexts.

In and of itself, the report is a fascinating and useful overview of the chronology of the OTPs engagement in Colombia, Georgia, Guinea and the United Kingdom, with insights and analysis from individuals who played a role in each situation – insider accounts from civil society activists, officials from national prosecuting and judicial authorities, diplomats, and OTP staff.

One of the most enlightening elements that comes out from Human Rights Watch’s research is the detailed examples of various actions that the OTP has taken in different situations. Drawing them out and compiling them, it is striking that they comprise a coherent and practicable toolkit of complementarity measures. They also fall squarely in line with the steps that national prosecutors have to take to retain control over proceedings in their countries. Broadly speaking, they fall into five steps — Read the rest of this entry…

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Complementarity (in)action in the UK?

Published on December 7, 2018        Author: 
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Editor’s Note: This post is part of our Joint Symposium with Justice in Conflict on Human Rights Watch’s Report, Pressure Point: The ICC’s Impact on National Justice 

In response to the 2014 re-opening of an International Criminal Court (ICC) preliminary examination into the situation in Iraq, Britain put in place legal measures to address the alleged crimes committed by UK forces in Iraq currently being examined by the ICC. These measures include a specialized investigatory unit, known as the Iraq Historic Allegations Team (IHAT), replaced last year by a smaller service police investigation, known as SPLI. British authorities argue that their efforts represent “a clear demonstration of complementarity in action”, therefore precluding an ICC investigation.

In Pressure Point – a recent research report by Human Rights Watch (HRW) investigating the claims made about positive complementarity in four case studies, including the Iraq / UK situation – HRW rightly paints a more murky picture of the legal processes in Britain as well as the ICC’s ability to influence them. Indeed, HRW observes that legal responses in Britain have been “piecemeal, ad-hoc, and almost exclusively driven by the efforts of individual victims, their families, and legal representatives”. It also concludes that the ICC’s examination “neither catalyzed national investigative activities in the UK, nor impacted the existing domestic structure established to address allegations of abuses by British armed forces in Iraq” in any significant way. My own research similarly points to significant challenges in making positive complementarity work in the Iraq / UK situation.

In this post, I consider some of the key challenges for ensuring positive complementarity in Britain and reflect on what this tells us more broadly about the ICC’s complementarity regime. Read the rest of this entry…

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