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Home Posts tagged "International Criminal Law"

The Hartford Guidelines on Speech Crimes in International Criminal Law

Published on August 31, 2018        Author: 
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Armed conflicts and mass atrocities are usually preceded by a propaganda campaign in which politicians and public figures foment ethnic, national, racial or religious hatred, and incite their followers to acts of violence. Since the ancient Greeks, criminal law has held the person inciting the crime as responsible as the material perpetrator and yet historically, the international legal mechanisms available to interdict and punish inciters have been meager.

International tribunals face unique challenges when adjudicating international speech crimes such as direct and public incitement to commit genocide and instigating crimes against humanity. Courts must balance freedom of expression, a right protected by international conventions, with the need to regulate potentially harmful speech. Offences such as instigating persecution and incitement to genocide remain an unsettled area of international law where the evidence required to satisfy the elements is unclear. Recently at the ICC, prosecution cases relying heavily on speech acts to demonstrate a contribution to an alleged criminal plan have collapsed at the pre-trial or trial stage (e.g., Mbarushimana and Ruto/Sang). Even when the prosecution secures convictions, the legal reasoning in the judgments is often roundly criticized by legal scholars (e.g., Nahimana and Bikindi at the ICTR).

With inchoate crimes such as incitement to genocide, the primary task of the court is to determine the intentionality of the speaker, a task that is made more difficult by the fact that propagandists often use coded or euphemistic speech which courts may perceive as symbolic or expressive, rather than as directly advocating a crime. In the case of completed crimes, international courts must ascertain whether there is a causal nexus between the expression and any subsequent offence in complex, overdetermined situations where multiple forces are at work and intervening factors may exist. Read the rest of this entry…

 

Time to Investigate European Agents for Crimes against Migrants in Libya

Published on March 29, 2018        Author: , and
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In March 2011, the ICC Office of the Prosecutor of the international criminal court opened its investigation into the situation in Libya, following a referral by the UN Security Council. The investigation concerns crimes against humanity in Libya starting 15 February 2011, including the crimes against humanity of murder and persecution, allegedly committed by Libyan agents. As the ICC Prosecutor explained to the UN Security Council in her statement of 8 May 2017, the investigation also concerns “serious and widespread crimes against migrants attempting to transit through Libya.” Fatou Bensouda labels Libya as a “marketplace for the trafficking of human beings.” As she says, “thousands of vulnerable migrants, including women and children, are being held in detention centres across Libya in often inhumane condition.” The findings are corroborated by the UN Support Mission in Libya (UNMSIL) and the Panel of Experts established pursuant to Resolution 1973 (2011). Both report on the atrocities to which migrants are subjected, not only by armed militias, smugglers and traffickers, but also by the new Libyan Coast Guard and the Department for Combatting Illegal Migration of the UN-backed Al Sarraj’s Government of National Accord – established with EU and Italian support.

These acts are not usually regarded as the bread and butter of international criminal law. Yet, for influential observers, they have seemed to reinstitute a modern form of slavery and to conjure images of mass arbitrary killings reminiscent of atrocity. For example, in a statement from November 22, 2017, French President Emmanuel Macron invoked slavery, explaining that trafficking in Libya has become a crime against humanity. For its part, the International Organisation for Migration, via its Missing Migrant project, has documented 46,000 cases of dead or missing worldwide since 2000.

During the whole time, however, various observers have pointed to the complicity of European countries with the relevant acts. Since 2011, Forensic Oceanography has been doing important investigative work in which the ethically fraught European involvement in preventing migration from Libya has been unfolded. Amnesty International has exposed a dark web of collusion, whereby EU states and Italy in particular have used Libyan militia to ensure migrants do not make it across the Mediterranean. Last December, John Dalhuisen, Amnesty International’s Europe Director, denounced European governments for:

“not just be[ing] fully aware of these abuses; by actively supporting the Libyan authorities in stopping sea crossings and containing people in Libya, they are complicit in these abuses.”

In perhaps the most recent evidence of such complicity, Italian authorities have seized the Spanish NGO rescue boat Open Arms and initiated a criminal investigation against members of its crew. The Open Arms, in response to a call from MRCC Rome of March 15, 2018, had rescued 218 people on the high seas and subsequently refused to deliver them to the (so-called) Libyan Coast Guard. After a row lasting several hours and including death threats, the vessel headed north for a medical evacuation in Malta, before requesting permission to disembark in Sicily. Despite Italy’s authorization, the captain and mission coordinator have been charged on counts of “criminal association” and “facilitation of irregular migration”. Italy claims they were obliged to hand over the survivors to Libya under its NGO Code of Conduct, disregarding that that would have amounted to refoulement. Italy thus flouted the requirement of delivery to a “place of safety” under the maritime conventions. It has become overwhelmingly clear that Libyan rescue operations in the Mediterranean are tantamount, as Charles Heller put it, to a plan of “rescue at gunpoint.”

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Formal, Functional, and Intermediate Approaches to Reparations Liability: Situating the ICC’s 15 December 2017 Lubanga Reparations Decision

Published on January 4, 2018        Author:  and
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On 15 December 2017, the International Criminal Court (ICC) Trial Chamber II found Thomas Lubanga Dyilo, former President and Commander-in-Chief of the UPC/FPLC, responsible for reparations in the amount of USD 10,000,000 — the largest ICC reparations order issued to-date. The Lubanga case was the first to reach the reparations stage — yet controversy surrounding procedural requirements delayed the Chamber’s determination of Lubanga’s monetary liability. Last month’s decision answered some of these procedural questions, and raised new ones. This piece breaks down Trial Chamber II’s 15 December 2017 decision, and situates it alongside Trial Chambers’ recent assessments of monetary liability in the Katanga and Al Mahdi cases. We suggest that we have now seen ICC Trial Chambers assess defendants’ monetary liability for reparations via formal, functional, and intermediate approaches.

Lubanga was convicted on 14 March 2012 of enlisting and conscripting children under the age of 15, and using them to actively participate in hostilities from 1 September 2002 until 13 August 2003. On 7 August 2012, Trial Chamber I delivered the ICC’s first-ever order for reparations, authorising only collective reparations. On 3 March 2015, the Appeals Chamber overturned part of the Trial Chamber’s decision and issued an amended order for reparations, giving a newly constituted Trial Chamber II (composed of Judges Brichambaut, Herrera Carbuccia and Kovács) the confined tasks of a) determining the amount for which Lubanga was responsible, and b) monitoring and overseeing the implementation of the order. In its Judgment and order, the Appeals Chamber did not identify the number of victims who suffered harm as a result of Lubanga’s crimes. Nor had Trial Chamber I provided a figure in its original Judgment, although it found the crimes were widespread.

As explained in an article published last year, heated procedural debates soon emerged, as Trial Chamber II and the Trust Fund for Victims (TFV) clashed in their understandings of their respective mandates: while the Chamber believed it needed to identify and “approve” victims entitled to reparations as a prerequisite to determining Lubanga’s monetary liability, the TFV believed this was unnecessary, and something the TFV should do during implementation (the TFV had estimated there were 3,000 potentially eligible victims). Similarly, while the Trial Chamber believed that it needed to determine the extent of the harm caused to victims to establish Lubanga’s liability, the TFV thought that the extent of the harm was already described adequately in the Judgment, Sentencing Decision, and decisions on victims participation. However, in what appeared to be a change of its original position, the Trial Chamber acknowledged mid-proceedings that the victims identified by the TFV were a sample, but did not comprise the totality, of victims potentially eligible for reparations, namely those who suffered harm as a result of the crimes for which Lubanga was convicted. This shift proved foundational to the Trial Chamber’s 15 December 2017 decision. Read the rest of this entry…

 
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The Possibility of Disclosing Findings After a Detainee Dies in International Criminal Proceedings

Published on December 21, 2017        Author: 
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International criminal courts and tribunals have no jurisdiction over the dead. Such courts make factual findings that have reputational implications for those who have died, but the dead are not parties to a case. They cannot be bound by the power of a court. A trial chamber or appeals chamber that attempts to exercise jurisdiction over the dead is acting ultra vires.

The possibility of death before the issuing of the final appeal judgment is a particular problem in leadership trials. The accused are more likely to be older. Such trials are expected to take longer. They are inevitably stressful. These are structural problems that can be managed, but not eliminated.

In a trial where all the evidence has been submitted, a great deal of effort and expense has already gone into the trial even before the trial judgment is issued. In a single-accused trial, should the accused die before the trial judgment is issued, there is a sense in which this effort is wasted. No trial judgment can be issued. Bench memoranda and internal drafts are left unpublished. The machinery simply stops. Given the low level of proof required, any confirmation of charges or (at the ICTY) Article 98 bis decision does little to settle the disputes of fact and law that may have been at least partially resolved by a trial judgment. A similar situation might apply in a appeals process halted by the death of a detainee. The issues certified for appeal cannot be resolved by the appeals chamber if the appeals chamber lacks jurisdiction to do so. Similarly, proceedings may be stopped at a any stage if the accused is no longer competent to stand trial (e.g. Ieng Thirith).

What should be done? Trials should be quicker, which could be facilitated by limiting sprawling indictments and allowing more evidence to be submitted on paper rather than via viva voce testimony. The health and security of the detainees should be guarded and protected to the greatest degree possible, a point to which I will return. The general concerns for a speedy trial and the well-being of detainees are obvious, uncontroversial, and even banal, but should be addressed with more urgency than in the past. Read the rest of this entry…

 

Chechnya’s Anti-Gay Purge: Crimes Against Humanity

Published on May 9, 2017        Author: 
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Despite widespread condemnation from the U.N., Council of Europe, E.U., United States, and other countries, a brutal campaign against gay men in Chechnya continues. The abuses take the form of abduction-style detention, enforced disappearances, torture, and killings. Considering the systematic features and the brutality of the abuses, Chechnya’s anti-gay campaign amounts to crimes against humanity, and it demands proper condemnation and response from the international community.

Crimes against humanity, as an international crime, has been defined in various statues and law commissions’ proposals since 1945. They each have their own distinctive feature tailored to the specific historical context during which they were drafted. For example, the Nuremberg Charter and the International Criminal Tribunal for the former Yugoslavia (ICTY) Statute’s definition require the element “in armed conflicts”, while the International Criminal Tribunal for Rwanda (ICTR) Statute requires a discriminatory intent. This note uses the definition in Article 7 of the Rome Statue of the International Criminal Court (ICC): “any of the acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack,” followed by specific acts listed in sub-paragraphs. This definition has been almost entirely adopted by the International Law Commission in its latest version of draft articles on crimes against humanity (note: the proposed draft articles are still in work progress).

Murder, Imprisonment, Torture, Enforced Disappearance, and Other Inhumane Acts

The argument that the Chechnya’s campaign against gay men constitutes crimes against humanity as the criminal acts listed in Article 7.1 (a), (e), (f), and (i) is quite straightforward. There has been credible reporting on abuses committed against gay men in Chechnya, including abduction, imprisonment, enforced disappearances, torture, and killings. All the described abuses have been approved by Chechen local government, with Moscow turning a blind eye to them. In many cases, violations were directly committed by Chechen security forces. Read the rest of this entry…

 

‘Legacy Talk’ at the International Criminal Tribunal for Rwanda

Published on May 2, 2016        Author: 
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As mentioned in Marko Milanovic’s recent post, the American Journal of International Law will soon publish a Symposium at the occasion of the closure of the ad hoc tribunals. Marko’s article considers the impact of the International Criminal Tribunal for the former Yugoslavia (ICTY). We were asked to reflect upon the legacy and impact of the International Criminal Tribunal for Rwanda (ICTR). An advance (original and longer) version is available here.

Before turning to the ICTR’s potential legacies, our article explores the ways in which the concept of “legacy” can be understood in the context of an international criminal tribunal. Although rarely defined and even less frequently theorised, the term has recently been much in vogue in international criminal law, so much so that Viviane Dittrich has observed a “legacy turn” within the field.  Even before it closed down, the ICTR dedicated human resources, a website and a video to publicise its legacy.

As the ICTR’s legacy website and video demonstrate, the Tribunal has made claims about its legacy in no uncertain terms. For instance, the video lists the Tribunal’s monumental contributions to international criminal law, but it also describes a much broader impact: “a record of legal reform in Rwanda, and outreach, education, legal training, and healing.” The narrator claims, “today in Rwanda, it’s safe to listen to the radio again: the sound is of a nation rebuilding.” Yet the film’s final words are not about Rwanda, but affirm “a world pushing forward despite great imperfection, each day closer to a time when international law offers justice to all people, everywhere.”

This rhetoric about one’s own legacy exemplifies what we call ‘legacy talk’. Unlike legacy planning, which concerns ensuring that there will be something to leave behind, legacy talk attempts to consolidate a set of interpretations about what is left. Read the rest of this entry…

 
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