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A Neo-Colonial Court for Weak States? Not Quite. Making Sense of the International Criminal Court’s Afghanistan Decision

Published on April 13, 2019        Author: 

The International Criminal Court (ICC)’s involvement in Afghanistan has received a great deal of attention ever since the Prosecutor announced she would seek to initiate an investigation in November 2017. Rightly or wrongly, what made this inquiry so contentious was not the suffering of millions of Afghan people, but rather the alleged war crimes of a few dozen American nationals. Judging by most of the commentary, analysts worried primarily about one question: would the ICC be able to hold to account powerful states and their citizens?

Yesterday’s decision does not inspire confidence in that regard. Pre-Trial Chamber II unanimously agreed that an investigation into crimes against humanity and war crimes allegedly committed on the territory of Afghanistan was not in the ‘interests of justice’. This came as a surprise, to put it mildly. Against the backdrop of the ICC’s evolving institutional dynamics, this post will argue that, while the Afghanistan decision should not be viewed simply as a capitulation to great power interests, it foreshadows a reckoning with various assumptions that have guided the Prosecutor’s work and civil society support for the Court since 2003.

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The Hole in the Doughnut – The OTP Strategic Plans and Self-Regulatory Actions in International Criminal Law

Published on April 10, 2019        Author:  and

The past months have been turbulent at the ICC. The shower of critiques seems to have obscured that, although it is already April 2019, the OTP has not yet published its 2019-2021 Strategic Plan. The Strategic Plan is the main document through which the OTP publicizes its strategy and policies (see Regulation 14 of the Regulations of the Office of the Prosecutor). The goal of the Strategic Plan is to provide ‘transparency and clarity’ on the OTP work, making its actions predictable and allowing others to ‘plan their actions taking into consideration the Office’s work’ (para. 11, 2009-2012 Strategic Plan).

The first Strategic Plan was published in 2006 and, since then, three more came out (2009-2012, 2012-2015, and 2016-2018). In October 2018, the ASP Committee on Budget and Finance reported that it had been informed by the OTP that ‘the Strategic Plan for 2019-2021 is about to be finalized, after the completion of an internal consultation process within the OTP’ (para. 58) and that a draft would be circulated in November 2018 among relevant stakeholders. In December of the same year, the ASP stressed that it is expecting the Strategic Plan for 2019-2021 to be published at the end of the first quarter of 2019. Five months later and at the end of the first quarter, here we are, with no public Strategic Plan in sight. The Court may be facing another turbulence soon.

The Prosecutor has broad discretionary powers to select situations and cases, and enjoys great administrative independence. With the exception of budget approval and management oversight by the ASP (art. 112(b) and (d) of the Statute), other ICC organs cannot limit nor direct the actions of the OTP, and the Prosecutor has full authority over the administration of the OTP and of its resources. However, as per arts. 4 and 34 of the Statute, the Prosecutor is still a public official, and the OTP is still an organ of an international organization. Their freedom to administrate their resources and actions is therefore limited to their institutional functions and roles. 

Dworkin described discretion as a doughnut hole: it does not exist except as an open surrounded by a restrictive belt Read the rest of this entry…

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Colombia: Time for the ICC Prosecutor to Act?

Published on April 2, 2019        Author:  and

The controversy evolving around the role and competence of the Colombian Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, SJP) has reached a new peak: Colombian President Iván Duque initiated a frontal attack against the Jurisdiction’s statutory law that goes beyond all previous assaults directed against the country’s Transitional Justice (TJ) system. We argue in this post that the current developments are an alarming threat to the Colombian peace process, and that President Duque’s most recent intent to impede the proper functioning of SJP has the potential to challenge any meaningful existence of that jurisdiction. Ultimately, we argue that this highly critical situation could (and probably should) prompt the Prosecutor of the ICC to take action.      

Previous attempts to weaken the Transitional Justice Process

It is not the first time that President Duque has attempted to undermine the country’s TJ-process. During his election campaign in August 2018, he announced that he would seek amendments to the Final Peace Agreement which was reached in 2016 between the Colombian government  and the Revolutionary Armed Forces of Colombia – Peoples Army (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo, FARC-EP). After his election, Duque’s parliamentary group in the Colombian Congress (Centro Democrático, CD) has turned his words into action launching a proposal for a constitutional amendment that would deny all TJ-organs (including the SJP) access to confidential information affecting national security. The proposal would inhibit the work of all TJ-mechanisms and thus amounts to a frontal attack on the whole system, as has been commented in a previous post.

In October 2018, a new proposal issued by the Colombian Congress suggested the creation of special chambers within the SJP with the sole competence to try members of the Colombian Armed Forces. As a sort of military jurisdiction, whose impartiality and independence is more than questionable, it would unduly privilege members of the Armed Forces involved in international crimes. Thereby, it further threatens to undermine the SJP’s crucial function as the single mechanism responsible to bring all parties of the conflict to justice.

Even though the Colombian Congress has not adopted both proposals so far, they evince the government’s obvious intent to undermine the SJP’s constitutional framework and hinder its proper functioning.

The latest attack on the Special Jurisdiction for Peace

On 10 March, the government doubled down on its attempts to derail Colombia’s TJ-system: President Duque partially objected to the Statutory Law on the Administration of Justice of the SJP Read the rest of this entry…

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Some Reactions to Douglas Guilfoyle’s Posts on the Troubles of the ICC

Published on April 1, 2019        Author: 

Editor’s note: This post is a response to Douglas Guilfoyle’s recent three part series: ‘This is not Fine: The ICC in Trouble‘ (Part I, Part II, Part III).

It is as if someone at the Court saw Douglas Guilfoyle’s first post here at EJIL:Talk! on the ICC’s troubles and decided that it was crucial to immediately prove him right. 

Last week, on the 22 march 2019, the Court made public a decision from the plenary of Judges allowing Judge Ozaki, who is sitting in the Ntaganda case (currently in the deliberations phase), to also commence her duties as the Japanese ambassador to the Republic of Estonia concurrently to her function as an ICC Judge. Here is not the place to analyse this decision, but it is for me symptomatic of the bubble in which the institution (here the Judges) lives where they seem blind to outside perceptions. Indeed, how can the vast majority of Judges not see that for most people the exercise of a political/diplomatic function is by its very nature incompatible with a judicial function? As noted by the three judges who dissented: 

For the minority, it was evident that the performance of an executive or political function for a State Party by an individual who remained a Judge of the Court was entirely likely to affect public confidence in judicial independence.

This decision is proof – if there was any need for more than provided in the Court’s practice in the past 15 years – of the relevance and timeliness of the 3-part blog series by Douglas explaining why the ICC is not fine and what should be improved. It is a thoughtful and detailed analysis of the Court’s woes and I agree both with its general evaluation and with most of the specific points raised. 

In this post, I would like to humbly propose not so much a response, but a reaction to some of the arguments put forward.

The Utility or Futility of the Pre-Trial Chamber

I would tend to agree with Douglas that today, one has the feeling that the confirmation of charges phase is a waste of time, for example because decisions on the confirmation of charges actually provide very little guidance on the content of the charges (including modes of liability) and relevant evidence. The process appears cumbersome and long and in need of a reform. I would not, however, be as critical as Douglas for a series of reasons. Read the rest of this entry…

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

Published on March 25, 2019        Author: 

Editor’s note: This is the final post in a three-part series. Parts I and II are available here and here.

In this final reflection I would like to offer some concluding remarks based on my previous two posts. Those posts do not break any new ground for those who follow the International Criminal Court closely. However, they represent my attempt to step back and examine some of the Court’s troubles more holistically. Indeed, they barely scratch the surface of various matters one could explore in such a series.

The basic fact remains that in 20 years and almost two complete prosecutorial terms, the Court that ostensibly exists to fight impunity and prosecute those most responsible for the crimes of greatest concern to the international community has managed only three convictions for core international crimes. Of these one was a guilty plea (Al Mahdi), one controversially involved the Court’s judges saving a collapsing case by recharacterizing the mode of liability after the presentation of argument and evidence had concluded and without hearing further argument on point (Katanga), and one took six years to result in a single conviction for the recruitment of child soldiers (Lubanga).

This is not a record of success. The argument I have put forward is first that there are real questions as to whether the Court’s job is possible to do on the present conditions. In my first post I argued that many of the defences made of the Court are simply articulations of the structural requirements for success which are not present. In my second post, I argued that even given those structural limitations it is not obvious that the Court as presently constituted is up to the task. The OTP appears unable to consistently mount successful and convincing cases. While the first Prosecutor must certainly take much of the blame, the second does not appear to have had much success righting the ship. Just as worrying, however, appears to be the breakdown in trust between the OTP and Chambers. Beyond the examples given in my second post, the Pre-Trial Chamber has attempted to circumscribe prosecutorial discretion or direct the course of investigations both in relation to the Cormoros and Bangladesh situations. Further, there are very worrying signs of a breakdown in collegiality among the ICC judges which is damaging both the formal coherence of court decisions and its wider legitimacy. This is before we even touch on the Court’s unsightly history of internal employment litigation and pay disputes, and now reports that the ICC mismanaged property in the Bemba case frozen to provide for any reparation orders. The allegation is that over 10 years Mr Bemba’s property was “left to devalue, dissipate or simply rot.” From the outside, the picture is one of dysfunction.

What is to be done? As foreshadowed, I think the answer has to be found in a guiding ethic of modesty and collegiality. I will address this in terms of institutional design, investigations and evidence, and judicial culture. The temptation will be to double down and push harder in the present direction of travel. This would be a mistake. The Court is facing a legitimacy crisis. To survive as an institution, the court is going to need to start making some compromises with reality.

Institutional design

In retrospect, elements of the Court’s design were from the outset overambitious or over-complicated. 

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

Published on March 22, 2019        Author: 

Editor’s note: This is Part II of a three-part series. Part I is available here.

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: 

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: 

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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Acquittals by the International Criminal Court

Published on January 18, 2019        Author: 

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

Published on December 27, 2018        Author: 

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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