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Home International Tribunals Archive for category "International Criminal Court"

Another Challenge for Colombia’s Transitional Justice Process: Aggravated Differential Treatment between Armed Forces and FARC

Published on October 19, 2018        Author: 
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A new proposal for a constitutional amendment has caused another highly controversial debate in Colombia. The proposal foresees the creation of “special chambers” within the Colombian Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, SJP) with the exclusive competence to try members of the Armed Forces. Just a quick reminder: The Final Peace Agreement was concluded between the Colombian Government and the Revolutionary Armed Forces of Colombia – People’s Army (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo, FARC-EP) in November 2016. It introduced the SJP as the Peace Agreement’s single legal mechanism, responsible for bringing all parties to the conflict to justice. The new government and its party in the Colombian Congress (“Centro Democrático”) are keen to make some reforms to the SJP. A few weeks ago we have discussed here a proposal to radically limit the access of the SJP and other organs of the Colombian TJ System to information related to national security. The now proposed constitutional amendment is the result of a debate that had already started earlier this year at the time of the negotiations regarding the SJP’s Rules of Procedure and Evidence (RPE). It evolved around the introduction of Article 75 RPE which provides for a special procedure for the Armed Forces in relation to the crimes committed during the armed conflict. The rule was finally adopted and ultimately paved the way for this recent proposal.

The authors of the proposal (among them former President Alvaro Uribe Vélez, one of the Peace Agreement’s most vocal opponents) consider that the Armed Forces “have fought in the name and in favor of the legitimate State”, including those members  that committed crimes not eligible for amnesty; in contrast, the FARC are characterized as just a “criminal organization pursuing criminal purposes” (Explanatory Statement to the proposal (ES), p. 11 [all translations by the author]). The proposal’s aim is, of course, to strengthen the position of the Armed Forces, especially of those members involved in international crimes and thus possibly subject to national or international proceedings. However, as it stands the proposal will do a disservice to the Armed Forces which should rather stick to the existing mechanisms of the SJP in order to have higher security with regard to the International Criminal Court (ICC). For reasons of space, I cannot explain here the multiple problems of the proposal with regard to the current Colombian constitutional system (especially, but not exclusively regarding the SJP), and its international obligations (regarding the jurisprudence of the Inter-American Court of Human Rights, the ICC and under International Humanitarian Law). Instead, I will focus on the serious problem that the proposal creates for its presumed beneficiaries with regard to the preliminary examination undertaken by the ICC’s Office of the Prosecutor (OTP).

The proposal has implications for the application of the complementarity principle, which regulates the relationship between national jurisdictions and the ICC. Read the rest of this entry…

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The ICC Pre-Trial Chamber’s Reading of “or” in the Myanmar Jurisdiction Ruling: On the Relevance of Linguistics to Interpretation

Published on October 2, 2018        Author:  and
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Linguistics continues to be a blind spot for international lawyers. Despite the self-perception that lawyers work predominantly with language, an in-depth inquiry into the actual science dealing with the phenomenon of language remains, to a large extent, a desideratum. Linguistics can, however, be very helpful in understanding the intended meaning of a word or phrase, as we will try to argue in this post. A good example of its usefulness and significance is provided in the recent decision of the ICC Pre-Trial Chamber on the Prosecutor’s request for a ruling on whether the Court may exercise jurisdiction over the alleged deportation of members of the Rohingya people from Myanmar to Bangladesh. In paras 52 ff., the Chamber had to interpret Article 7(1)(d) of the Rome Statute to establish whether the Article embodies either a single or two separate crimes, in light of the use of the word “or”. As will be be shown, the resulting interpretation of the word “or” demonstrates the usefulness of linguistic knowledge from which international law could draw in the future.

We hope that we are not seen as using a case featuring harrowing events as a mere façade for legal-intellectual exchanges. We suggest that a narrow technical approach is justified, particularly, in such important cases where so much depends on interpretation (e.g., the exact contours of jurisdiction of an international court).

Linguistics, semantics, pragmatics

International lawyers’ relationship with linguistics has been somewhat selective. In recent writing, some have used elements of corpus linguistics or discourse analysis to gain insights into international law. However, other modern aspects of studying meaning as a phenomenon in language seem to continuously escape international lawyers’ attention. For example, there is a certain tendency to refer to Wittgenstein’s Philosophical Investigations (1953) and his argument that words are defined by how they are used without putting his work in context (see e.g. recently Klabbers, International Law, Cambridge University Press 2017, p. 56). The progress that linguistics has made in the decades following the 1950s, in particular with regard to the semantics-pragmatics divide, is left aside as a consequence. Read the rest of this entry…

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The ‘Security Council Route’ to the Derogation from Personal Head of State Immunity in the Al-Bashir Case: How Explicit must Security Council Resolutions be?

Published on September 19, 2018        Author: 
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Last week, the Appeals Court of the International Criminal Court (ICC, the Court) held hearings in relation to Jordan’s Appeal from a decision of Pre-Trial Chamber (PTC) II holding that it has failed to cooperate with the Court in the arrest and surrender of Sudan’s President, Omar Al-Bashir. As is well known, Al-Bashir is presently subject to an ICC Arrest Warrant for committing war crimes, crimes against humanity and genocide in Darfur, following the referral of the situation by the Security Council (SC) to the Court. He has made a series official visits to Jordan and other states parties to the ICC Statute (the Rome Statute). However, none of those states has dared to arrest him to date. Their principal argument is that Al-Bashir enjoys personal immunities from foreign domestic jurisdiction under treaties and customary international law, that these are not covered by the removal of immunity in Art. 27(2) of the Rome Statute, and are thereby safeguarded by Art. 98 of the Statute.

The hearings, together with the Appeals Chamber’s decisions leading to them, represent a unique moment in the history of international criminal law for two main reasons. First, this is the first time in which the ICC has invited, accepted and heard submissions from leading international law scholars as amici curiae, as well as engaged in direct (and sometimes heated!) oral discussions with them. Secondly, some of the legal and policy issues discussed in the hearings are of fundamental importance to international criminal law and public international law in general. They include questions such as the extent of the SC’s powers, a possible customary international law exception to personal immunities before international criminal tribunals, and the practical importance of preserving such immunities for international peace and security. Thus, watching the hearings online has certainly kept some of us entranced during the entire week.

However, aside from the special role attached to academic commentary and from the systemic issues discussed in the hearings and in the written observations, one question seems to have been at the heart of the debates on Al-Bashir’s immunities. This question is whether the SC can implicitly derogate from personal immunities otherwise applicable under treaties or customary international law, or whether it must do so explicitly. Indeed, all parties and participants seem to agree that the SC has the power to displace personal immunities and other rules of treaty or general international law, except for jus cogens norms. Yet they disagree as to how clear the Council must be in order to do so. Read the rest of this entry…

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The Bolton Speech: The Legality of US Retaliatory Action Against Judges and Officials of the International Criminal Court?

Published on September 14, 2018        Author: 
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The speech given on Monday by John Bolton, US National Security Adviser, threatening action by the US against the International Criminal Court (ICC) in response to potential ICC investigation of US personnel with regard to the situation in Afghanistan has generated a lot of interest (see herehere, here and here). There are a plethora of policy and political issues raised by the looming clash between the ICC and the US which have been set out on other blogs in recent days (here and here). In terms of the legal issues, we are back to the old debate about whether the ICC is entitled to exercise jurisdiction over nationals of non-party states, in the absence of a referral by the UN Security Council (on which see this 2003 article of mine and this recent post in response). This post addresses whether the actions that Bolton says the US will take against Judges and ICC officials would be lawful under international law. Bolton says that the US:

“… will respond against the ICC and its personnel to the extent permitted by U.S. law.  We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.”

In particular, I wish to focus on whether the US would violate international law by banning ICC judges and officials from entering the US. Even if the US were to seek to prosecute ICC personnel, it is unlikely that it would obtain custody over them (unless other states cooperate with the US). The primary effect of such attempted prosecutions would be to prevent those people from entering the US, in fear of being arrested.

Barring ICC personnel from entry into the US is a significant issue because (i) the meetings of the ICC Assembly of States Parties are held at the United Nations Headquarters in New York every other year; (ii) the ICC Prosecutor goes to the Security Council, at its request, to report to the Council on the situations referred to the Court by the Council; and (iii) the President of the ICC presents a report, on the work of the Court, to the UN General Assembly annually. All of these activities and visits will have to stop if the threat by John Bolton (either to prosecute or to ban ICC judges and officials) were to be carried out.

Does the US have International Legal Obligations Preventing  it from taking Retaliatory Action  Against ICC Personnel?

To the extent that US retaliatory actions against ICC personnel  take place within the US, the starting position would be the US can control entry into the US, prosecute people who in its view threaten US security (probably based on the protective principle of jurisdiction) and sanction funds in the US unless such acts are inconsistent with contrary obligations under international law.

Read the rest of this entry…

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The Bashir Appeal at the ICC

Published on September 10, 2018        Author: 
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This morning, the ICC Appeals Chamber of the International Criminal Court (ICC) begin its hearings in the appeal of Jordan against the decision of the Pre-Trial Chamber that Jordan failed to comply with its obligations under the ICC Statute by failing to arrest Sudanese President Omar Al-Bashir when he visited Jordan. The hearings raise the question whether a party to the Statute must respect the immunity of the head of state of a non-party to the statute when the arrest of the latter is sought by the ICC. These are issues that have been discussed with respect to President Bashir from the moment when the warrant for his arrest was issued by the ICC. They have also been the subject of four (conflicting) decisions by the Pre Trial Chambers. It is now hoped that the Appeals Chamber will issue a decision that will settle the position of the ICC with respect to this issue. Over the course of this week, the Appeals Chamber will hear not only from Jordan and the Prosecutor but also from the African Union, the League of Arab States, and a number of academics that have been permitted to make submissions to the Chamber.

In July, AJIL Unbound, the online supplement to the American Journal of International Law, published a symposium on “The Rome Statute of Twenty”. That symposium, edited by Judge Theodor Meron & Professor Maggie Gardner, is composed of essays mostly by serving and past judges of the ICC and the ad hoc tribunals. It was a pleasure to be asked to contribute to that symposium. In my contribution, titled, “The Immunity of Heads of States of Non-Parties in the Early Years of the ICC”, I chose to write on the issues that have arisen in the Bashir Appeal. I have written on these issues before and summarise my views in the limited space I had in the AJIL Unbound essay. My introduction to the essay is as follows: Read the rest of this entry…

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Rome Statute at 20: Suggestions to States to Strengthen the ICC

Published on August 6, 2018        Author:  and
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This year marks the 20th anniversary of the adoption of the Rome Statute, the treaty that established the International Criminal Court (ICC, Court), the world’s only permanent tribunal with a mandate to investigate and prosecute genocide, crimes against humanity, war crimes, and the crime of aggression. The euphoria that greeted its adoption has been tempered by an appreciation of its limits. Disappointment with the Court’s record has led to pessimism about the future of international criminal justice generally. Critics point out that the ICC has spent nearly US$1.5 billion since it began operations in 2002 and, in that time, convicted just three people on charges of war crimes and crimes against humanity.

The truth is more nuanced

But the ICC is more active, and its cases more complex, than many of its critics realize. The ICC has brought cases against 42 individuals, resulting in eight convictions (five for witness tampering). Cases have failed, for a variety of reasons – including state obstruction of access to evidence, and bribery and intimidation of witnesses – at the pre-trial, trial and appeal stages. Four persons are currently on trial; another is in ICC custody at the confirmation of charges stage. A large proportion of those charged are fugitives.

Another key point is that the ICC is a court of last resort. It does not have primacy of jurisdiction like the tribunals for the former Yugoslavia (ICTY), Rwanda (ICTR), Sierra Leone (SCSL), and Cambodia (ECCC). Instead, the ICC’s guiding principle is complementarity: it will not intervene if a State is genuinely investigating or prosecuting. So, by design, the ICC’s duty to investigate and prosecute is deferential to domestic jurisdictions, which can result in challenging circumstances for all involved. Unlike predecessor tribunals, the Office of the Prosecutor (OTP) must devote considerable resources to encouraging, and assessing the progress of, domestic legal processes.

The Court carries a heavy workload and is forced to spread its resources thinly. Whereas the ICTY, ICTR, SCSL and ECCC had scores of lawyers and analysts poring over evidence from one conflict, the ICC has to deal with many. It is currently carrying out “preliminary examinations” in Afghanistan, Colombia, Gabon, Guinea, Iraq, Nigeria, Palestine, the Philippines, Ukraine and Venezuela. It is conducting investigations in Uganda, the DRC, Darfur, the Central African Republic (CAR), Libya, Côte d’Ivoire, Mali, Georgia and Burundi. Each requires mastering a complex conflict with shifting alliances, an array of State and non-State actors, and dozens of societal factors central to a proper contextual understanding. Each requires gaining access to reliable evidence necessary to determine which party is responsible for which crimes, and whether the state is genuinely investigating or prosecuting. This requires a great deal of diplomatic engagement with numerous States. Read the rest of this entry…

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Geographical Remoteness in Bemba

Published on July 30, 2018        Author: 
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Introduction

The ICC Appeals Chamber’s acquittal of Jean-Pierre Bemba Gombo continues to provoke discussion. In a previous post, I addressed the Appeals Chamber’s treatment of the relevance of a commander’s motivation in taking measures to prevent or punish the crimes of his subordinates. This issue of motivations was one of two putative errors emphasised by the Appeals Chamber in its summative paragraph – paragraph 191 – on the Trial Chamber’s finding that Mr Bemba failed to take all necessary and reasonable measures. The second putative error identified in that paragraph concerned the Trial Chamber’s failure to properly take into account the difficulties that Mr Bemba would have faced as a remote commander sending troops to a foreign country.

The description of Mr Bemba as a remote commander has been emphasised in numerous media reports, as well as in academic commentary. A concern raised in the latter is that the decision introduces a new distinction into the law of command responsibility – a distinction between remote and non-remote commanders, with the former being held to a lower standard than the latter. This post analyses how the Appeals Chamber dealt with the remoteness issue. First, it sets out the Majority Judgment’s findings on Mr Bemba’s status as a remote commander and suggests that it is not clear whether it intended to draw a legal distinction between commanders. Second, it argues that the drawing of such a distinction would be indefensible as a matter of principle – geographical position ought not be used to distinguish between commanders. Third, and happily, it shows that even if the Majority Judgment is unclear, President Oboe-Osuji’s Concurring Separate Opinion and the Joint Dissenting Opinion of Judges Hofmanski and Monageng indicate that there weren’t three votes for the introduction of any such distinction. In other words, the decision in Bemba does not stand for the proposition that we are now faced with an additional distinction in the law of command responsibility. Finally, it returns to Bemba itself, and the Majority Judgment’s reasoning on this point. That reasoning is not convincing. Read the rest of this entry…

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Not Appropriate:  PTC I, Palestine and the Development of a Discriminatory ICC Jurisprudence

Published on July 26, 2018        Author:  and
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On 13 July, Pre-Trial Chamber I (PTC I) issued an unprecedented decision in which it ordered the Registry to establish unique public information and outreach activities for the “benefit of the victims in the situation in Palestine”, as well as to report on its situation activities on an ongoing basis.  No Pre-Trial Chamber has made the same orders with respect to victim outreach in a situation under preliminary examination before, and the legality, timing, and singular nature of the decision all give rise to concern. 

The decision singles out victims of one situation whilst ignoring others, reflecting a double standard which forms the basis of Israel’s complaints that its rights to equal treatment are systematically violated before 21st century international organisations and tribunals. In this sense, the decision is illuminating as it demonstrates to international criminal law practitioners how PTC I has substantiated Israel’s complaint of double standards in the Chambers’ first substantive engagement with the Situation in Palestine. Given the unique way that the Situation in Palestine has been singled out, PTC I’s decision will be viewed by many as a political one.  This is an accusation which, especially after the collapse of the Kenya cases, the ICC should be more wary of making itself susceptible to.

The Legality of the PTC Decision Read the rest of this entry…

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First and Second Degree Genocide? Considering a Case for Bifurcation of the Law

Published on June 19, 2018        Author: 
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At its inception, the crime of genocide, which broadly concerns criminal conduct targeted at a group, was generally seen as somehow more culpable or aggravated than international crimes targeted at an individual. Critical opposition to that view exists (See Milanović on the Karadžić and Mladić Trial Chamber judgments). Contemporary application, however, of the law continues to consider genocide as “horrific in its scope” precisely because perpetrators identify “entire human groups for extinction” and “seek to deprive humanity of the manifold richness its nationalities, races, ethnicities and religions provide” (Krstić, Appeals Chamber judgment, para. 36).

The Appeals Chamber in Krstić has emphasized that the gravity of genocide is “reflected in the stringent requirements which must be satisfied before this conviction is imposed” (para. 37). This includes proving a specific intent to destroy a group such that the group targeted for destruction was either the whole “protected group”, or a “substantial” part of that whole (the “substantiality test”). Where the requirements are satisfied, the Appeals Chamber implores that “the law must not shy away from referring to the crime committed by its proper name” (para. 37).

My contention is that the law in fact has shied away from referring to the crime of genocide by its proper name. Read the rest of this entry…

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Commanders’ Motivations in Bemba

Published on June 15, 2018        Author: 
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Introduction

No doubt there is much to be written about Jean-Pierre Bemba Gombo’s acquittal by the Appeals Chamber – on its implications for the ICC, for politics in the Democratic Republic of the Congo, and for the standard of review in future appeals. In this post, I will focus on a single issue addressed by the Appeals Chamber: the relevance of a commander’s motivation in taking measures to prevent or punish the crimes of his subordinates. This may seem a narrow issue – it was, initially, but one aspect of one element of the test for superior responsibility that formed part of one ground of appeal. However, this issue turned out to play a critical role in the majority’s decision to acquit the defendant.

Background

A majority of the Appeals Chamber – Judges Van den Wyngaert, Eboe-Osuji and Morrison – held that the second ground of appeal and part of the third ground of appeal were determinative of the appeal. The second ground averred that the conviction exceeded the charges. The third ground averred that Mr Bemba was not liable as a superior, with the relevant part upheld concerning whether he took all necessary and reasonable measures to prevent or repress the commission of his subordinates’ crimes. Within this part, the majority’s decision emphasised, in particular, two putative errors in the Trial Chamber’s finding that Mr Bemba failed to take all necessary and reasonable measures (para 191). The first concerned the Trial Chamber’s assessment of Mr Bemba’s motivation in taking the measures that he did take. This is the issue addressed in this post. Read the rest of this entry…

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