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Emerging Voices: Incorporation of Plural Realisations of Justice within the ICC System

by Justin Yang

[Justin S. Yang, PhD Researcher at King’s College London; LL.M at Leiden University.]

The International Criminal Court (ICC) projects a legal framework that is unique from the prior expressions of international criminal justice. In the construction of its Statute, in particular through the system of complementarity, the Court embodies the potential to actualise a horizontal and communitarian system of justice; rather than mandating a singular perspective of law in a vertical hierarchy, the ICC framework is designed to accommodate the inherent plurality of its international membership.

Tracing the development of international criminal justice institutions in the 20th century has illustrated that this project has been in oscillation between peak periods of heightened inter-state cooperation and trough periods of resistance to encroachments on Westphalian sovereignty. The respective institutions that were established following World War I, World War II, and the Cold War have predominantly reflected the interests of only the particularly powerful states, albeit under international communitarian rhetoric.

Prior to the ICC, exercises in international criminal justice were exclusively facilitated first by the key multinational states of the post-war Allies, and later by the P5 of the UN Security Council. Rather than devising a new justice system that could be compatible with sovereign equality and the multiplicity of legitimate legal systems on the international plane, the post-war multinational bloc opted to adopt the vertical trial-based nature of Western domestic criminal systems. In other words, these judicial institutions, acting on behalf of the multinational leadership, presided at the apex of their respective scope of adjudication, in the same way a sovereign reigns supreme in its domestic system. Mirroring the capacities of the sovereign, these international judiciaries were unchallengeable, and arbitrarily made claims to various laws, as understood and accepted by them, onto diverse heterogeneous situations. In this penetrative hierarchy, sovereign boundaries and the indigenous legal systems of the subject state were explicitly disregarded and disapplied by the adjudicators. Therefore, diverse circumstances, local peculiarities, and contextual relevancies, all of which could materially affect the process of adjudication and determination of culpability, failed to be considered. The crimes were analysed solely through the perspectives of the multinational victors.

The ICC marks a departure from this tradition of vertical justice. The democratic legitimacy inherent in its treaty-based creation, and its central tenets of independence and impartiality has, in theory, separated criminal adjudication from overarching political agendas, including that of the UN Security Council. The symbiotic relationship between the Court and its member states, within the complementarity regime, has allowed for a horizontal, stateless, and impartial system of justice to exist over the global community. Being complementary to national systems means that the Court preliminarily defers to a state’s sovereign prerogatives to exercise criminal jurisdiction over international crimes. This prerogative is perceived as a duty of every state (Rome Statute, Preamble). Upon failing this duty at a standard deemed acceptable by the Court, the case may then be admitted into the ICC docket. State proceedings are therefore inherently underpinned by the implicit threat of the Court ‘seizing’ the case, if the framework of preventing impunity (Rome Statute, Article 17) is not satisfactorily upheld. Continue reading…

Guest Post: Malaysia Airlines Flight MH17–Possible Legal Avenues for Redress (Part 2)

by Aaron Matta and Anda Scarlat

[Dr Aaron Matta is a Senior Researcher at The Hague Institute for Global Justice, Rule of Law Program. Anda Scarlat is a Summer Fellow with the Rule of Law Program at the Institute.With many thanks to Dr Lyal Sunga and Jill Coster van Voorhout for their helpful feedback on earlier drafts of this commentary.]

Following on from our previous commentary on potential state responsibility, this post will look at the role of individual criminal responsibility in addressing the downing of MH17. Proposals have been made for using either existing mechanisms or for setting up a new tribunal to address this incident specifically. Determining the best avenue ultimately depends on the outcome of the investigations into the incident and the political realities of the situation.

At the outset, it is important to note the most recent major development: the Russian veto, on 29 July 2015, of a proposed United Nations Security Council (UNSC) resolution which aimed to set up an international tribunal to prosecute the individuals responsible for downing MH17. Despite this apparent setback, which is explored further below, a wide variety of options remain open.

Domestic Prosecution

First, the alleged perpetrators could face domestic prosecution in a state which has jurisdiction over the crimes in question. The most familiar bases for jurisdiction under international law would be: territorial (i.e. Ukraine, in whose territory and/or airspace the alleged crimes took place; or Malaysia, as the state of registration of the aircraft, in accordance with Article 3(1) of the Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft); nationality (depending on the nationality of the alleged perpetrators, which has not yet been established); and passive personality (depending on the nationality of the victims, so including states such as The Netherlands, Malaysia and Australia). In addition, if international crimes are alleged, any state could exercise universal jurisdiction over the alleged perpetrators, for example on grounds that the incident amounted to “war crimes”; this would depend on the various states having legislated to give their domestic courts jurisdiction to prosecute international crimes. In addition, it may be very difficult to secure the arrest and surrender of accused persons for prosecution at the national level, especially if they are high ranking officials.

It is possible that The Netherlands would exercise jurisdiction over these alleged crimes, based on either passive personality or universality, given the important role it has played in investigations thus far, as well as the fact that a large number of its nationals died during the incident. Although these circumstances are likely to result in support for such a prosecution at the domestic level in future, The Netherlands (alongside states such as Australia, Belgium, Malaysia and Ukraine) is currently pushing for other avenues for prosecution, such as an international tribunal.

One could also argue that Ukraine and Malaysia have more robust jurisdictional claims over the incident by virtue of the territoriality principle. However, this argument is typically based on the practical reality that these states would, in most cases, have better access to the witnesses and other evidence needed for prosecution. In the case of MH17, given the strong involvement of The Netherlands and other states in the investigation thus far, these investigating states may be in a better position, de facto, to carry out the prosecutions, regardless of the relative robustness of the de jure basis for jurisdiction.

International Criminal Court

Secondly, if international crimes falling within the ambit of the Rome Statute of the International Criminal Court (ICC) are alleged, the perpetrators could also be tried before this Court. However, (more…)

Emerging Voices: “Do No Harm” and The Development of General Corporate Human Rights Obligations

by Gabriel Armas-Cardona

[Gabriel Armas-Cardona received his J.D. from New York University and was a legal officer at Lawyers Collective in New Delhi, India where he managed the Global Health and Human Rights Database.]

Human rights activists have long complained of legal lacunae in domestic and international law over the regulation of corporations. This is why last year’s United Nations Human Rights Council resolution to elaborate binding obligations on corporations was cheered by activists (and derided by business). The UN’s previous attempt to develop a general framework of responsibilities in the 2011 Guiding Principles on Business and Human Rights did not impose binding obligations, likely one of the reasons it was generally praised by corporations.

Corporate behavior is primarily regulated through two domestic legal systems: tort and a corporate regulatory regime. The first is the traditional remedy system for individuals while the latter is the State impositions on business to promote a social good. In well-regulated States, these two distinct systems have grown to more effectively protect that society. But many developing countries don’t have legal systems in place that effectively protect their society and almost no State regulates corporate action abroad for the protection of other societies. The value of binding legal obligations is that they can remove the lacunae by having universal and consistent obligations for all corporations within States and in the interstitial space between jurisdictions.

These obligations would be distinct from and would not dilute State human rights obligations. Having multiple dutybearers, even qualitatively different ones, is not problematic. Corporate obligations would positively interplay with States’ duty to protect to further realize human rights. When a violation by a corporation occurs, it would be the State’s duty to provide a remedy system, stemming from a State’s duty to protect, and the corporation’s duty to cooperate with that system, stemming from the secondary duties mentioned in the duty to fulfill, or to directly provide reparations to the victim (in normal parlance: go to court or settle). If the corporation cannot provide reparations (e.g. due to bankruptcy), then the State would have to provide reparations directly. Either way, the victim is made whole.

Underlying the challenge is that there currently is no principled framework for universally applicable corporate obligations. One can’t simply copy State obligations and apply them to corporations; their obligations must reflect that they are private actors. The Guiding Principles state that corporations “should avoid infringing on the human rights of others” (Principle 11), or as the Special Representative of the Secretary-General that wrote the Guiding Principles said, the responsibility of a corporation is “put simply, to do no harm.” The principle of “do no harm” has been used as a touchstone in corporate human rights obligations since at least 2002 and is a surprisingly suitable standard for developing a structure for general obligations.

As dutybearers, the same tripartite typology of human rights can apply to corporations as States; i.e., a human right would impose duties on corporations to respect, protect and fulfill. The Shue/Eide typology recognizes that the realization of rights can require measures of varying degrees of activity by dutybearers. Corporations can violate rights as producers, industry players, or employers; thus, depending on the situation, corporations may be required to stop selling defective goods, protect victims from violations done by the corporation’s supply chain or provide reparations for a prior harm. The majority of obligations falls within the duty to respect, but the duties to protect and fulfill provide new and interesting duties that respond to the concerns of corporate violations.

To understand what substantive obligations arise from “do no harm,” it helps to use the example of a particular right, such as the right to health. As economic entities, corporations are able to directly infringe on the realization of economic, social, and cultural (ESC) rights. The right to health is one of the most developed and broadest ESC rights, making it useful to use here.

The content of corporate obligations vis-à-vis the right to health

(more…)

Guest Post: Malaysia Airlines Flight MH17–Possible Legal Avenues for Redress (Part 1)

by Aaron Matta and Anda Scarlat

[Dr Aaron Matta is a Senior Researcher at The Hague Institute for Global Justice, Rule of Law Program. Anda Scarlat is a Summer Fellow with the Rule of Law Program at the Institute.With many thanks to Dr Lyal Sunga and Jill Coster van Voorhout for their helpful feedback on earlier drafts of this commentary.]

17 July 2015 marked one year since the downing of Malaysia Airlines flight MH17 over eastern Ukraine, resulting in the death of 298 persons (passengers and crew). As approximately two thirds of the victims were Dutch nationals, the tragedy is particularly poignant in The Netherlands. The facts surrounding the incident are not yet clear, with suggested scenarios for the downing of the aircraft including firing by pro-Russian rebels or from a Ukrainian fighter jet. International investigations are still ongoing and are looking, on the one hand, at the causes of the incident and, on the other hand, at criminal responsibility. The Netherlands is taking an active role in both investigations.

The past year has also been marked by increasing speculation on the legal avenues for redress available to the victims’ families, the affected states, and the international community as a whole. The options include: state responsibility (inter-state litigation in the International Court of Justice (ICJ), or claims against a state who violated its human rights obligations under the European Convention on Human Rights (ECHR)); and individual criminal responsibility (at the national and international levels).

This first of two posts will look at the two options for state responsibility, while our second essay will consider proposals for international criminal responsibility and the prospect of setting up an international criminal tribunal.

Inter-State Dispute Resolution: International Court of Justice

Shortly after the downing of MH17, speculation began about possible inter-state claims before the ICJ. As aptly explained here, a possible claim against Ukraine could be based on the precedent in the Corfu Channel Case, for causing or failing to prevent the downing of MH17 while it passed through Ukrainian airspace. The precise basis for the claim would depend on the outcome of the factual investigation. First, responsibility could arise if Ukraine were directly responsible for the incident through a positive act, such as the use of a weapon. Second, responsibility could arise if Ukraine had failed to avert a foreseeable risk to civilian aviation within its airspace, given that there was ongoing fighting in eastern Ukraine and that Ukraine had already decided to close its airspace up to 32,000 feet, which was just short of the altitude at which MH17 was flying.

Furthermore, if it is found that those responsible for downing MH17 were receiving support from another state (for example Russia, as is widely argued) the supporting state could face a claim along the lines of that raised in the Nicaragua Case, for “‘organizing or encouraging the organization of irregular forces or armed bands … for incursion into the territory of another State’ and ‘participating in acts of civil strife … in another State’, in the terms of General Assembly resolution 2625 (XXV)” (para 228).

Substantive issues aside, another pertinent consideration is that the ICJ’s jurisdiction is fundamentally based on state consent (as per Article 36(1) of the ICJ Statute). As explained here, the potential respondent states (for example Ukraine or Russia, if the result of the investigation points towards them) have not made a declaration accepting the ICJ’s jurisdiction in respect of inter-state disputes (Article 36(2)). Therefore, the feasibility of an ICJ claim would depend on the respondent states accepting the jurisdiction of the ICJ for this particular claim via a special agreement (Article 36(1)). This makes inter-state litigation on the MH17 incident relatively unlikely.

In addition, such a claim would have to be brought to the ICJ by one of the potential applicant states, for example The Netherlands. This illustrates the relative impotence of the individual in the international system: the victims’ families depend on a state choosing to bring a claim under diplomatic protection on behalf of its nationals. As yet, there have been no indications that an ICJ claim would be pursued.

The difficulties in bringing a contentious case before the ICJ may be bypassed if one of the UN organs, for example the General Assembly or Secretary General, requests an Advisory Opinion on the MH17 incident, as suggested by Olexander Horin, Ukrainian Ambassador to The Netherlands [see video, relevant parts are in English]. Even though this may give some clarity on the legal position, the Advisory Opinion would not be binding on the responsible state(s), and may therefore be of limited value in practice.

Human Rights Claims: European Court of Human Rights and Domestic Litigation

Potentially responsible states could, however, face claims directly from the victims’ families under the ECHR. Such a case, Ioppa v Ukraine, was lodged with the European Court of Human Rights (ECtHR) in November 2014, alleging that Ukraine has violated its human rights obligations, presumably under Article 2 (the right to life). In addition, the applicants could also bring a claim against Russia, if the ongoing investigation concludes that Russia was sufficiently involved in the conflict in eastern Ukraine, as detailed below. Both Ukraine and Russia are parties to the ECHR, which means that individuals can bring claims against them before the ECtHR for alleged human rights violations (Article 34 of the ECHR). (more…)

The Post-Incarceration Life of International Criminals

by Kevin Jon Heller

The inestimable Mark Kersten devotes his new column at Justice Hub (ignore the scary portrait) to an unusual issue: whether international criminals should be able to pursue higher education once they are released from prison. The column focuses on Thomas Lubanga, who recently stated his desire to complete a PhD at Kisengani University after he is released. Here is Mark’s takeaway, reached after he discusses the (very different) examples of Saif Gaddafi and Sam Kolo:

Still, these stories raise important questions: should convicted and alleged war criminals be allowed – perhaps even encouraged – to pursue higher education? Is there, as many believe, something curative in the pursuit of education that might help to deter relapses into criminality? Is there something morally egregious when former perpetrators of mass atrocities are afforded educational opportunities that they have – by their very actions – denied thousands of others? Is the best alternative to prevent them from pursuing any education and thus letting them ‘rot in prison’ or turning a blind eye and sending them back into the world without any support? What would be the risks in doing so? Do tribunals have any responsibilities for supporting released convicts? Should the tribunals and the international community consider the strategies of domestic prison systems, where education is often encouraged as a means of healing and skills development?

As the world of international criminal justice plods along and matures, new and uncomfortable questions will undoubtedly emerge, including what the post-incarceration life of war criminals should look like. There are no easy answers. The pursuit of higher education may leave a bitter taste in the mouths of some. But given all of the options and the ever-present risk of war criminals returning to their old habits, encouraging them to pursue an education may be a least-worst option.

I confess that I don’t find this a difficult issue at all. In my view, once an international criminal has served his sentence, he should be treated no differently than any other citizen. That’s the way we treat domestic criminals, as Mark notes. Why should international criminals be treated differently? Because their crimes are worse? That may be so — but once they have paid their debt to the international community, what is the basis for continuing to punish them by denying them educational opportunities? Human-rights groups and victims may believe that Lubanga got off easy; I might agree with them. But it’s not Lubanga’s fault that Moreno-Ocampo undercharged him. And it’s not Lubanga’s fault that the Trial Chamber arguably (I don’t agree) gave him too lenient of a sentence. He did the crime and served the time. That should be the end of the story. So I don’t like Mark’s question about whether Lubanga should be “allowed” to pursue a PhD. He would no more be “allowed” to pursue a PhD after his release than I would. There is no legal basis to deny him one. (Admission requirements, of course, are another story…)

For similar reasons, I don’t like the way Mark phrases his final takeaway: that encouraging international criminals to pursue an education “may be a least-worst option.” Nothing in Mark’s column indicates that anything negative will result from an international criminal getting a PhD. Saif Gaddafi is a poor example, because he didn’t actually write his own dissertation. And Sam Kolo’s post-LRA life indicates that Mark should have concluded encouraging international criminals to pursue an education may well be the very best option. So what is the basis for describing post-incarceration education as one of the “least worst” options? Is the fear that the international criminal will write a dissertation entitled “A Step-by-Step Guide to Committing Genocide”? It seems far more likely that the international criminal — if successful in, say, a PhD program — will rely on his previous actions to illuminate an aspect of conflict that we “peaceable” types cannot possibly understand in the same way.

Indeed, as I was  reading Mark’s column, I couldn’t get Albert Speer out of my mind. Speer did not pursue a PhD after he was released from Spandau prison in 1966, but there is no denying that he used both his incarceration and his post-incarceration life productively. He wrote Inside the Third Reich and Spandau: The Secret Diaries while in prison, and after his release he wrote Infiltration, a seminal work on Himmler’s SS. How much less would we know about the Third Reich if Speer had not been “allowed” to write and publish books on account of his crimes?

I’m not suggesting, of course, that Lubanga is likely to follow in Speer’s academic footsteps. But Lubanga’s proposed focus for his graduate studies does, in fact, seem worthwhile: “I hope to help identify a new form of sociology that will help the tribal groups to live together in harmony.” If anyone has something to say about that topic, isn’t it someone who knows tribal conflict all too well?

So What Are Your Top 5 Worst Treaties Ever?

by Duncan Hollis

Benjamin Soloway at Foreign Policy magazine thrilled me last week when he called to set up an interview for this story on the worst treaties ever.  Simply put, I love treaties and I love lists.  After all, a few years back I started a discussion on the most important treaties ever.  But, having given a lot of thought to my top 5, I was surprised to have never done a list of my bottom five.  So, I spent an entire day before talking to Ben, pestering my family (who do not necessarily share my enthusiasm for all things treaty-related) with various candidates based on different ways of defining “worst” (worst treaty for humanity? the parties? one party in particular? for third parties? for the agreement’s stated goals?).  In the end, I’m glad to see all the treaties that I mentioned got onto his list. Some, sadly, didn’t make the cut –I’d wanted the Universal Rubber Agreement included because it’s a rare example of a treaty that so failed to perform its intended functions (stabilizing rubber as a commodity) that the parties went through the trouble of terminating it in lieu of just letting it fall into desuetude.

Interested readers should definitely read Ben’s article.  But I thought I’d open the comments section here to allow Opinio Juris readers to sound off on whether they agree with his list, or to offer their own suggestions.  What treaties would you add (or delete) if we’re talking about the worst treaties of all time?

Members of UN Security Council Discuss LGBT Issues

by Kristen Boon

13 of the 15 members of the UN Security Council met yesterday to address LGBT issues for the first time in a closed session chaired by Chile and the US.     The focus was on persecution of gays in Syria and Iraq.    As an Arria-formula meeting, the discussion was confidential, however news reports after indicate the group discussed the Islamic State’s targeting of LGBTQ residents of Iraq and Syria.   Samantha Power, US Ambassador to the UN, told the diplomats that “we are coming together as a Security Council to condemn these acts, to demand they stop, and to commit to one day bringing the perpetrators to justice. That unified condemnation matters.”

See the news reports here, here and here for more details.

Emerging Voices: Is the International Community Ready for a “Duty to End Impunity”?

by Auriane Botte

[Auriane Botte is a Ph.D candidate in International Law at the University of Nottingham (UK).]

One can no longer count the number of times that the objective of ending impunity for core international crimes has been crushed by more pressing political and diplomatic interests. The most recent instance was on the 15th of June when South Africa allowed Omar al Bashir to return to Sudan despite an interim order issued by the High Court in Pretoria to prevent the Sudanese President from leaving South Africa, pending a decision on implementing an arrest warrant issued by the International Criminal Court (ICC) in 2010. This decision to favour impunity over justice is even more disgraceful since South Africa has been a State Party to the Rome Statute since 2000. As a quick reminder, Omar al Bashir is accused of indirectly participating in the commission of crimes against humanity, war crimes and genocide committed in Darfur. What happened in South Africa may, nevertheless, give a ray of hope as there was, for once, an attempt to hold Bashir accountable. Another positive aspect of this non-event is that it demonstrated the increasing power of civil society to put pressure on governments in relation to issues of impunity, with the support of the domestic courts.

The situation in Darfur, Sudan has repeatedly been under the spotlight this year, as it sadly illustrated the weakening of the fight against impunity for core international crimes. Last December, the ICC Prosecutor announced in her report to the Security Council on the situation in Darfur that she decided to “hibernate” the investigation on this situation. This decision was taken following a blatant lack of cooperation from Sudan and a lack of support from the Security Council for the work of the ICC, despite the fact that the situation was initially referred to the Court by the Security Council. The ICC Prosecutor as well as the ICC Pre-Trial Chamber II recently pointed out the lack of willingness from the Security Council to play its part by imposing measures on UN Member States for their failure to comply with Resolution 1593 (2005) requesting cooperation with the ICC. This lack of cooperation with the ICC from UN Member States as well as from the Security Council demonstrates the limits of the commitment of the international community to achieve the objective of ending impunity.

These two serious impediments to the objective of ending impunity in Darfur highlight a major flaw in the response to core international crimes by the international community: the absence of significant consequences for the failure to cooperate with the ICC. In other words, if a State decides not to cooperate with the ICC, it is unlikely that the State will have to face any serious consequences. The scarce provisions of the Rome Statute related to non-cooperation and the soft approach taken by the Security Council or the Assembly of States Parties on instances of non-cooperation illustrate further this flaw. In the specific situation in Sudan, an argument has been put forward, notably by the African Union, that the States Parties may justify their refusal to execute a request from the ICC to surrender Omar al Bashir by their obligation under International Law to respect the diplomatic immunity of the Head of States. This goes back to the ongoing debate of the opposing Articles 27 and 98 of the Rome Statute, raising the question whether the irrelevance of official capacity under the Rome Statute should prevail over obligations to ensure diplomatic immunity under International Law. The main issue here is that the Security Council did not explicitly waive the diplomatic immunity of the alleged perpetrators in Sudan. Nevertheless, the ICC Pre-Trial Chamber II reaffirmed that Resolution 1593 (2005) did de facto waive the immunity of Omar al Bashir.

The problem of the lack of commitment to end impunity for mass crimes goes beyond the issues of non-cooperation with the ICC. It may be timely to rethink the responsibility for core international crimes by looking at the broad picture. A possible way to revive the objective of ending impunity for core international crimes may be to consider it outside the focus of individual criminal responsibility and to integrate it within a larger framework of accountability mechanisms. This may allow for developing a wider approach drawing simultaneously from International Criminal Law and State responsibility norms to cover an extensive range of accountability mechanisms at the international and domestic level. International Criminal Justice may potentially benefit from the conceptualisation of a duty to end impunity lying with the States and associated with appropriate consequences for the failure to fulfil this duty. It is important to note that this obligation may not only fall upon the States. The Security Council may also have an impact on ending impunity through targeted sanctions and other accountability measures. Due to the limited length of this post, this issue will not be discussed further.

A structured framework to strengthen the duty to end impunity may be inspired by (more…)

Emerging Voices: Strength and Legitimacy of Control Mechanisms in International Human Rights Treaties: The Moderation Effect

by Katarína Sipulova, Hubert Smekal and Jozef Janovsky

[Katarína Šipulová is a student in an MSt in Socio-Legal Research, University of Oxford and a PhD candidate at the Faculty of Social Studies, Masaryk University. Hubert Smekal is an Assistant Professor at Faculty of Social Studies, Masaryk University; and Jozef Janovský holds an MSc in Applied Statistics, University of Oxford, having previously studied politics and applied mathematics at Masaryk University. This contribution comes from research under a project entitled “International Human Rights Obligations of the Czech Republic: Trends, Practice, Causes and Consequences,” GA13-27956S, supported by the Czech Science Foundation GAČR.]

The study finds that the strength of a human-rights treaty’s control mechanism moderates the effect of the political regime on how states commit to HR treaties. Empirical test of the “moderation effect hypothesis” showed that the overall speed of the commitment process of communist Czechoslovakia and newer democratic regimes (CR and SR) was quite similar. However, while communist Czechoslovakia preferred commitments to treaties with weak control mechanisms, the transitioning CSFR and its democratic successors were more prone to ratify treaties with a strong control mechanism.

What motivates states to ratify international human rights treaties remains an unanswered question in political science. Many tentative explanations for the observed commitment patterns have been proposed, relating e.g. to the character of the political regime of the state (Moravcsik 2000, Hafner-Burton – Tsutsui – Meyer 2008), the characteristics of a treaty and how they diverge from a country’s practice (Hathaway 2007; Cole 2005), and foreign policy goals (Goodman 2000, Heyns and Viljoen 2001), especially accession to the EU (Guzman 2008; Landman 2005).

A thorough examination of practices in two post-communist countries, the Czech Republic and Slovakia, contributes to this long-standing debate on different commitments patterns (i.e. signatures and ratifications). Our in-depth comparative study is based on a set of more than 190 human rights treaties; by a “human-rights treaty” we understand any multilateral treaty which includes human-rights provisions (i.e. both predominantly human-rights treaties and treaties dealing with human rights only in parts of their provisions). These are typically treaties which originated in the Council of Europe, the United Nations and the International Labour Organization.

The study covers two countries with similar foreign policy incentives as well as a common historical, political, and legal heritage. Interestingly, the political experience of the both countries has included non-democratic, semi-democratic, democratic and transitional periods. After the fall of a four-decade-long communist regime in 1989, both countries experienced a short intermezzo as a federal democratic republic (“CSFR”), which dissolved on 1 January 1993 following strong calls for national self-determination. Approximately seven decades of common history meant that the two new states shared a common starting point with regards to their international commitments and domestic legal systems. The Czech Republic set off decisively for political and economic liberal reforms in order to quickly integrate into Western international structures and it very soon acquired a reputation of the front-runner among post-communist countries. On the other hand, between 1993 and 1998, Slovakia, under the government of Prime Minister Vladimír Mečiar, slowly moved towards a semi-authoritarian system, characterised by restrictions of political rights, censorship in the media, and economic scandals. At the end of 1998, Mečiar’s government fell due to worsening economic problems and foreign-policy failures (pre-accession talks with the EU and NATO were particularly unsuccessful). After 1998, Slovakia caught up with the other CEE candidate countries and fully reoriented its efforts towards integration into Western structures. In December 2002, both states successfully concluded their pre-accession negotiations with the EU and subsequently acceded on 1 May 2004.

In this study, we do not break out the period of Mečiar’s government for methodological reasons: its character and position on the democratic – non-democratic axis remains disputable (see Janos 2000, Kitschelt 1999, or Linz and Stepan 1996). However, the political developments are taken into account when interpreting the data. Experience with different political regimes adds data variability and enables us to focus on the relationship between the character of the regime and state’s commitment activity wherever possible. Academic literature includes regime type among the most important variables influencing the decision to commit. Several authors have pointed out that non-democratic countries with poor human rights records tend to ratify treaties at a higher rate and speed (Hathaway 2002), in order to demonstrate a low-cost legitimizing symbolic commitment without any actual willingness to comply (Hafner-Burton – Tsutsui – Meyer 2008). Moreover, this commitment might be further distorted either by the use of reservations (Neumayer 2007) or a control mechanism too weak to be seen as a credible threat (Dutton 2013).

Control mechanisms adopted in human-rights treaties (i.e. their strength) differ profoundly: from no control, through an obligation to submit internal reports, to subordination to the jurisdiction of a judicial body. In this short contribution, we focus on the influence of the control mechanism on commitment patterns. Our distinct argument, that the strength of a treaty’s control mechanism moderates the effect of the political regime on how states commit to HR treaties, is then tested on the Czech and Slovak experience.

Empirical Study

Figure 1 mirrors our expectations regarding the frequency and the speed of human rights commitments of the Czech Republic and Slovakia under different political regimes. Based on the above-mentioned theories, we would expect non-democratic communist Czechoslovakia to commit to few human rights treaties, and primarily to those with a weak control mechanism (i.e. with no actual control or limited to domestic reports). However, the process of these commitments should be rather fast, because of the limited need for deliberation. On the other hand, we expect the post-1989 Federal Republic to be strongly human-rights oriented, committing frequently and fast in order to boost its international credentials and spur the proverbial return to (Western) Europe. After the consolidation of new democracies, we expect the speed of ratifications to slow down.

Figure 1: Theoretical expectations (Source: authors)

  Regime Commitment pattern(expected frequency and speed of commitments)
Communist Czechoslovakia (1948-1989) Non-Dem Low commitment activity; medium-fast processHigher for treaties with a weak control mechanism compared to democracies
 Federal Republic (1990-1992) Dem High + fast for all treaties
Czech Republic (1993 →) Dem Medium + slow for all treaties
Slovak Republic (1993 →) Dem* Medium + slow for all treaties

The overall human rights commitment activity of Czechoslovakia and its successors is presented in Figure 2. The graph shows the cumulative number (more…)

Weekly News Wrap: Monday, August 24, 2015

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

UN/World

  • Signatories of the Arms Trade Treaty, a major treaty aimed at regulating the international arms trade, should agree a number of key steps for its implementation at a conference this week, host nation Mexico said on Sunday.

Trial Chamber Reiterates Irrelevance of the Confirmation Hearing

by Kevin Jon Heller

A few months ago, I blogged about the OTP’s attempt to invoke Regulation 55 in Laurent Gbagbo’s trial. As I noted in that post, the OTP asked the Trial Chamber (TC) to consider convicting Laurent Gbagbo of various crimes against humanity on the basis of command and superior responsibility, even though the Pre-Trial Chamber (PTC) specifically refused to confirm those modes of liability because doing so “would require the Chamber to depart significantly from its understanding of how events unfolded in Cote d’Ivoire during the post-electoral crisis and Laurent Gbagbo’s involvement therein.”

Not surprisingly, the Trial Chamber agrees with the OTP that it should keep its options open:

13. In the Request, the Prosecution demonstrates that the elements of Article 28(a) and (b) of the Statute may be derived from the facts and circumstances confirmed by the Pre-Trial Chamber. Further, in the Pre-Trial Brief, the Prosecution indicates that the evidence supporting liability under Article 28 of the Statute is encompassed by that supporting other charged modes of liability. In light of the Gbagbo Confirmation Decision, Request and Pre-Trial Brief, it appears to the Chamber that the legal characterisation of the facts and circumstances described in the charges may be subject to change to include Mr Gbagbo’s liability under Article 28(a) or (b) of the Statute.

I will not reiterate the various problems with using Regulation 55 in this manner; interested readers should see my chapter on the Regulation. But it’s worth spending a bit of time on the Trial Chamber’s decision, because it illustrates how the judges’ increasingly aggressive use of Regulation 55 has effectively consigned the confirmation hearing to irrelevance and made a mockery of the defendant’s right to a fair trial. Let’s start with this paragraph:

8. The Chamber notes that the Prosecution appears to have bypassed other statutory remedies available before making the Request. Before moving the Chamber to exercise its propria motu powers under Regulation 55(2) of the Regulations, the Prosecution could have sought (i) leave to appeal the Gbagbo Confirmation Decision or (ii) pursuant to Article 61(9) of the Statute, an amendment thereto. Notwithstanding this failure, as set out below and in the specific context of the Gbagbo Confirmation Decision, it is apparent to the Chamber that the legal characterisation of the facts described in the charges may be subject to change. In these unique circumstances, the Prosecution’s failure to exhaust other remedies does not impact on the Chamber’s obligation to give notice under Regulation 55(2) of the Regulations.

So now the OTP doesn’t even have to appeal the PTC’s confirmation decision before it asks the Trial Chamber to consider convicting the defendant on the basis of a mode of liability the PTC specifically rejected. Or, differently put, even if the PTC is correct that the OTP did not establish “substantial grounds to believe that the person committed the crime charged” on the basis of the charged mode of liability, the TC is still free to convict the defendant on the basis of that unconfirmed mode of liability as long as the OTP does better at trial. Could the irrelevance of the confirmation hearing be any clearer?

But wait, you say. The TC didn’t say the OTP never has to appeal the PTC’s confirmation decision. It said there are “unique circumstances” in this case that justify the OTP’s failure to appeal. Isn’t that important? Indeed it is — and revealingly so. Here are the so-called “unique” or “exceptional” circumstances in Gbagbo:

12. In this case, the exceptional circumstances surrounding the proposed recharacterisation must be emphasised from the outset. In particular, the Pre-Trial Chamber expressly acknowledged, on different occasions, the possibility of Mr Gbagbo’s liability under Article 28 of the Statute, a mode of liability with notably different requirements than all those in Article 25(3) of the Statute. The Pre-Trial Chamber first mentioned criminal responsibility under Article 28 of the Statue as early as the confirmation hearing, before the Prosecution included this mode of liability in its document containing the charges. Thereafter, in declining to confirm charges under Article 28 of the Statute, the majority of the Pre-Trial Chamber ‘[could] not rule out the possibility that the discussion of evidence at trial may lead to a different legal characterisation of the facts’. It found that Mr Gbagbo’s failure ‘to prevent violence or to take adequate steps to investigate and punish the authors of the crimes […] was an inherent component of the deliberate effort to achieve the purpose of retaining power at any cost’. Even the judge dissenting from the Gbagbo Confirmation Decision mentioned the possibility in this case of liability under Article 28 of the Statute, indication that she ‘could have, in principle, envisaged confirming the charges’ on that basis.

So it doesn’t matter that the PTC actually concluded that the OTP failed to present sufficient evidence to sustain command or superior responsibility. Nor does it matter that the PTC actually concluded that convicting Gbagbo as a commander or superior “would require the Chamber to depart significantly from its understanding of how events unfolded in Cote d’Ivoire during the post-electoral crisis and [his] involvement therein.” No, what really matters is that the PTC thought about the possibility of confirming command or superior responsibility; that the PTC couldn’t rule out the possibility that the OTP might be able to establish Gbagbo’s command or superior responsibility at trial; and that the dissenting judge “could have… envisaged” disagreeing with the majority’s refusal to confirm command or superior responsibility. Those are the “unique” or “exceptional” circumstances making an appeal irrelevant — which are obviously not unique or exceptional at all.

The Trial Chamber’s decision means that Gbagbo will now not only have to mount a defence against five distinct modes of liability: indirect co-perpetration, ordering, soliciting, inducing, and otherwise contributing to the commission of crimes. He will also have to defend himself against the very different idea that he was responsible for subordinates’ crimes as a commander or superior. And, of course, four months have passed since the OTP asked the TC to give Gbagbo notice of the potential recharacterisation. So the TC will give Gbagbo more time to prepare his defence, right?

Silly rabbit. Of course not:

17. Moreover, the Chamber considers that the Gbagbo Defence fails to justify its alternative request for recalculation of the trial commencement date: it does not provide any concrete indication as to the impact this decision would have on its trial preparations. On the information before it, stressing that the facts and circumstances described in the charges remain unchanged and noting that the Prosecution intends to rely on the same body of evidence, the Chamber considers that the current commencement date and accompanying schedule provide adequate time for trial preparation.

According to the Trial Chamber, in other words, it requires no work at all for Gbagbo to prepare a defence against the idea that he was responsible for subordinates’ crimes on the basis of command or superior responsibility, even though the elements of those unconfirmed modes of liability are completely different than the elements of the confirmed modes. And why are those legal differences irrelevant? Because “the Prosecution intends to rely on the same body of evidence” at trial — you know, the same body of evidence the PTC concluded could not even establish “substantial grounds” to believe Gbagbo is responsible as a commander or superior.

Thus does the Trial Chamber reduce the adversarial trial to a glorified fact-finding mission — just one in which the prosecution has a high standard of proof. It would be possible to design a legal system in which the prosecution and defence were responsible for arguing about facts and the judges were responsible for deciding which crimes and modes of liability the facts were consistent with those facts. But that is not the ICC system. (Nor, for that matter, is it the common-law system or the civil-law system.) At the ICC, the prosecution does not simply prove “facts and circumstances”; it has the burden of proving every element of the charged crime(s) and the charged mode(s) of liability beyond a reasonable doubt. They don’t call it the confirmation of “charges” hearing for nothing.

Yet none of that matters to the Trial Chamber. The TC’s position is that to “avoid impunity” — ie, to avoid having to acquit a defendant simply because the prosecution couldn’t prove its case beyond a reasonable doubt — it must be able to convict the defendant on the basis of any mode that it believes the prosecution managed to establish during trial, regardless of the prosecution’s actual theory of the case or the PTC’s view of the prosecution’s evidence. Which means, of course, that the confirmation decision is nothing more than a general set of suggestions that the TC is in no way obligated to follow.

A greater perversion of the Rome Statute is difficult to imagine.

Emerging Voices: Victim Participation in ICC and ECCC’s Proceedings

by Melanie Vianney-Liaud

[Mélanie Vianney-Liaud is a PhD Candidate at the Aix-Marseille University, III, France.]

At the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC), victims are granted procedural rights to participate in their personal capacity. However, in both courts, victim participation is challenging since mass crimes make thousands of victims. The crimes perpetrated during the Khmer Rouge regime in Cambodia, for example, caused the death of nearly 1.7 million people. Legally speaking, the victims are those who have suffered harm as a result of a crime, namely the act(s) or omission(s) reproached to the accused in a criminal trial. Consequently, given the widespread scale of atrocities committed by the Khmer Rouge, almost the whole Cambodian population could claim victim status at the ECCC. This raises the question of how to ensure victims effective procedural rights in criminal proceedings whereas they are so many.

Several options have been contemplated. Victim participation status at the ICC and ECCC are different. The purpose of this post is to show that despite such differences, the exercise of victims’ rights is extremely restricted in both courts to the point that, today, there is no effective and useful victim participation in international criminal proceedings.

At the ICC

At the ICC, victims’ participation stems from the will of the States which negotiated the Rome Statute. Article 68.3 provides that :

Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered (…). Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate (…).

However, neither the Rome Statute nor the ICC Rules of procedure and Evidence determine the modalities of victim participation. It is left to the judges to set such rules (ICC Rules of Procedure and Evidence, Rule 89.1). Thus, at the ICC, victim participation depends on each Chamber and varies in each case. For example, in the Katanga and Ngudjolo Chui case, the Trial Chamber II decided that the victims’ legal representatives « must be able to consult all of the public and confidential decisions and documents in the record of the case » (Decision on the Modalities of Victim Participation at Trial, § 121) whereas in the Bemba Gombo case, the Trial Chamber III limited legal representatives’ access to confidential material « relevant to their views and concerns » (Decision on the Participation of Victims in Trial, § 47).

With the exception of the Pre-Trial Chamber I in the Katanga and Ngudjolo Chui case, all ICC Chambers adopted a casuistic approach. Thus, for example, in the Lubanga case, the Trial Chamber I held that « in order to participate at a specific stage in the proceedings, e.g. during the examination of a particular witness or the discussion of a particular legal issue or type of evidence, a victim is required to show, in a discrete written application, the reasons why her interests are affected by the evidence or issue then arising in the case » (Decision on Victims’ Participation, § 96). Consequently, in the trial of Bemba Gombo, to have access to confidential documents, the legal representatives need file a request in which they shall show how the interests of their clients are affected by such documents without knowing their content. This puts the legal representatives in a tricky situation since they have to speculate on how that content might concern their clients in order to motive their participation.

The Pre-Trial Chamber I in Katanga and Ngudjolo Chui considered that the casuistic approach – where « victims are required to ask for the leave of the competent Chamber to perform the most simple procedural activity » – makes the rights attributed to those granted the status of victim « purely symbolic » (Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, § 51).

At the ECCC

At the ECCC, victim participation was not provided by the Chambers’ creators (i.e. the United Nations and the Cambodian Governement). It stems from the judges who set the modalities of victim participation, as at the ICC. However, contrary to the ICC, such rules are not determined in a decision of the competent Chamber in each case. They were established in the ECCC Internal Rules. The judges based on the victim status in Cambodian law. Thus, according to Rule 23.1, victims participate as « civil parties » in the ECCC proceedings. They enjoy important procedural rights that they exercise throughout the whole criminal proceedings, either directly or through their lawyers, without having to ask the Chamber for permission. For instance, at the investigation stage, civil parties may request investigation action (Rule 55.10). At trial, they may question witnesses (Rule 91.2), and even the accused (Rule 90.2). Civil parties may also appeal the verdict of the Trial Chamber, when Prosecutors have appealed (Rule 105.1). In order to effectively exercise such rights, civil parties and their lawyers have access to the whole case file (i.e. the record of the case) at each stage of the proceedings (see Rules 55.11 and 86).

The fact that victims’ rights are included in the Internal Rules may imply that ECCC victims enjoy a higher legal security than at the ICC, since their legal status should less depend on judges’ discretion in each case. However, ECCC Internal Rules were amended several times, and the modalities of civil party participation have not been spared by such revisions. Particularly, during the sixth Internal Rules’ revision session in 2010, the relevant provisions were modified for ensuring effective proceedings in Case 002, ECCC’s most important case in which the last surviving Khmer Rouge leaders are indicted. The new provisions introduced two original creations. Firstly, according to new Rule 23.3, the whole civil parties of Case 002 (about 4,000 victims) have been gathered in a single, consolidated group at trial who, secondly, is represented by two lead co-lawyers designated by the Court.

In 2011, the Trial Chamber separated Case 002 trial proceedings in relation to the charges of the indictment in order to conduct several manageable « mini-trials ». Thus, the scope of Case 002/01, the first small trial, included only crimes against humanity committed during the course of two phases of movement of population, and executions of Khmer Republic officials at the execution site of Tuol Po Chrey. According to Case 002 Indictment, 1018 civil parties were declared admissible in the context of the movements of population (§§ 261, 354) and 20 with regards to Tuol Po Chrey (§ 714). However, in the 2011 decision, the Trial Chamber determined that because civil parties « no longer participate individually …, but instead as a consolidated group [with] collective interests …, limiting the scope of the facts to be tried during the first trial … has no impact on the nature of civil party participation at trial » (Severance Order Pursuant to Internal Rule 89ter, § 8). Consequently, the Trial Chamber did not sever the consolidated group of civil parties in order to keep only the victims concerned by the crimes tried in Case 002/01. Therefore, a litte less than 3,000 civil parties participated in Case 002/01 whereas their prejudice had no causal link with the crimes reproached to the accused within that trial. Such a participation means that victims at the ECCC are not considered as real legal actors but rather as mere ornaments.

Conclusion

Despite promising starts, in both ICC and ECCC, victim participation has rapidly been restricted to move towards a symbolic involvment. Such a practice calls into question the pertinence and interest of victim participation in international criminal proceedings.

Admittedly, granting hundreds or even thousands victims the opportunity to participate in person is clearly materially impossible. From a legal point of view, the balancing of the accused’s rights with victims’ rights raises considerable conceptual difficulties. The fears and suspicion caused by victim participation are, therefore, understandable.

However, victims, even if they are many, are not symbols. They deserve the opportunity to really participate in the criminal proceedings which affect them, as soon as this right is granted to them. Some ICC and ECCC’s judges have recognised the various interests of victims participating in the proceedings of both courts (see e.g., ICC, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, §§ 31-43 and ECCC, Decision on Civil Party Participation in Provisional Detention Appeals, § 40). However, it shall also be recognized that international criminal proceedings take advantage of victim participation.