The Worst Anti-ICC Editorial Ever

by Kevin Jon Heller

As part of the backlash against the Goldstone Commission’s recommendation that the Security Council refer the situation in Gaza to the ICC if Israel and Hamas do not conduct credible investigations of their crimes, the far-right Jerusalem Post published an editorial today entitled “Strange Justice: The ICC, Europe, and the World.”  The editorial was ostensibly written by a Researcher at Hebrew University of Jerusalem, but one wonders what, exactly, the author actually researches — the editorial contains more basic factual errors than any editorial I have ever read.  Normally, I would just laugh the editorial off and turn to more pressing writing matters.  But I think it’s important to make clear just how little the Jerusalem Post seems to care about the quality of its editorial pages — after all, the newspaper is likely the primary source of information about the ICC for many conservative Israelis.

Let slip the fisking!

The recent revelation that the gas-station-attendant-turned-Liberian-warlord Charles Taylor has converted to Judaism once again reminds us that he is in the International Criminal Court (ICC) prison in The Hague.

First sentence, first obvious error: Taylor is in the UN Detention Centre in The Hague, which is not run by the ICC.  (Although the ICC does have prisoners there.)  Moreover, Taylor is being tried not by the ICC, but by the Special Court for Sierra Leone.  (Lest the reader think my interpretation of the statement is uncharitable, keep reading.  The author has no idea that the international tribunals are separate institutions.)

With the publication of the Goldstone report accusing Israel of “war crimes” there is a chance that Israelis might one day share his fate. Yet at the same time, other European courts are releasing terrorists and elderly Nazis due to “ill health.”

This begs the question: Why are UN prisoners of the ICC not given the same rights as Nazis and terrorists?

ICC prisoners are not prisoners of the UN.  The ICC and the UN are separate.  Moreover, the Rome Statute not only authorizes the Court to reduce a sentence, it requires the Court to review a sentence after the prisoner has served 2/3 of his sentence or 25 years of a life sentence. (Article 110).

(As an aside, one wonders whether the author would be quite so eager to see a convicted Hamas terrorist released because he was elderly or in ill health.)

Are Europeans who committed war crimes during World War II seemingly beyond the jurisdiction of the ICC? The court excels at prosecuting Eastern Europeans (primarily Serbs) and Africans.

The author gets one right: no, the ICC does not have jurisdiction over crimes committed by Europeans (or anyone else) during WW II. It does, however, have jurisdiction over crimes committed by Europeans after 1 July 2002.

The ICC, established by the UN in 1993, has four ongoing investigations, all in Africa (Sudan, Congo, Uganda and Central African Republic). Of 14 individuals currently indicted, two have died and four are in custody. The others are “fugitives.” However, over the past decade and a half, the ICC has also prosecuted war crimes in the former Yugoslavia and Rwanda through special tribunals.

Note to author: the ICTY and ICTR are not part of the ICC.  The ICTY was established in 1993 by the Security Council; the ICC was established in 1998 by treaty.

Consider the case of Slobodan Milosevic, the highest-profile case. Although he was transferred to the court’s custody in 2001, the prosecution took two years to present its case. Milosevic died in his cell in 2006, in the midst of a seemingly endless trial. Consider that the Nuremburg trials, which investigated millions of deaths, took just one year to complete. The right to a speedy trial is a hallmark of most justice systems, but not the UN’s.

The author almost makes a valid point: accused at international tribunals do spend too much time in pre-trial detention, despite the fact that — contrary to the author’s assertion — all international tribunals guarantee the right to a speedy trial. (See, e.g., Article 67 of the Rome Statute.)  The right to a speedy trial also refers to the length of pre-trial detention, not the length of trial.  (Although the length of trials is certainly a problem.)

Another associated problem with the ICC is its method of justice, which includes its lack of jurisdiction, its convoluted bureaucracy, its lack of an appeal process and its lack of a trial by jury.

As for the ICC not using juries, true enough.  But neither do many of the civilian criminal-justice systems to which the author unfavorably compares the ICC system.  As for the “lack of an appeal process,” the author is dead wrong: all convicted defendants at the ICC have the right to appeal both their conviction and their sentence. (Article 81.)  Note also that the Nazis convicted by the IMT — a trial with which the author (rightly) appears quite taken — had no appellate rights whatsoever.

It has 16 permanent judges and 12 temporary ad litem judges. Seven of the permanent judges are from European countries, one is from the US and one is from Australia. Of the 12 temporary judges, eight are from European countries. Thus the court is primarily European run.

Sorry, that’s the ICTY again.  The ICC currently has 17 judges, five of whom are African (including the First VP), three of whom are Latino, and two of whom are Asian (including the President).  So much for the Court being “primarily being European run”!  (Especially as three of the European judges are from Finland, Latvia, and Bulgaria, not exactly traditional colonial powers.)

Yet those it judges are not from Europe; they are usually kidnapped from their home countries, without the ability to appeal their extradition, and shipped to Europe to sit in a European prison where they have no access to legal protections that other Europeans enjoy.

Yep, no rights at all — except for all of the rights in the ICCPR (like Europeans), such as the right not to be subjected to arbitrary arrest and detention (Article 55), as well as the right to challenge the Court’s jurisdiction and the admissibility of the case (Article 19).

From where does the UN derive its power to detain people? When UN workers commit crimes in foreign countries, they are sent home for prosecution. But those same workers can place locals in UN custody without the local having a right to appeal!

Again, the ICC and the UN are separate.  The ICC gets its power to detain people from the Rome Statute, a treaty ratified by 110 states, and — in the case of referrals — from the Security Council’s authority under Chapter VII.

Until the ICC grants the same rights to Charles Taylor that it does to Nazis and other Europeans, it cannot be considered a legitimate court, and should be spurned by the world.

See?  I told you that the author doesn’t understand that the ICC and SCSL are different!

If the ICC actually resembled the Kafkaesque nightmare imagined by the author, I would agree that it should be spurned by the world.  Fortunately, it doesn’t.  The only thing that should be spurned, therefore, are know-nothing editorials like this one.  The Jerusalem Post should be ashamed of itself for publishing it.

http://opiniojuris.org/2009/09/22/the-worst-anti-icc-editorial-ever/

12 Responses

  1. So much for fact-checking at the post!  thanks Kevin

  2. Apparently the author of the editorial is a guest columnist for the J-Post and is, according to his Wikipedia entry, a “scholar, politician, social activist, free market liberal, conservative, reviewer of books and man of letters.”  The entire wiki page reads like it is autobiographical.  Check it out for laughs: http://en.wikipedia.org/wiki/User:Sfrantzman 

  3. Fair enough. I would be much more interested in your opinions on this Economist editorial, for example, and particularly its brutal summation of the report as a ‘thimbleful of poison’…

  4. Whoa! Now that is a newspaper to wipe your ass with!

  5. I had seen that and commend your patience in responding to each point! I thought of doing it, but decided the op-ed could speak for itself.
    You could also mention in relation to the jury trial that Israel itself didn’t give Eichmann a trial by jury.

  6. Dov,

    Excellent point about Eichmann!

  7. I too thought of Eichmann, re: this:

    they are usually kidnapped from their home countries, without the ability to appeal their extradition

    How awful for, er, Eichmann.

  8. Well said and well done for taking the time to write an article in response to a terrible editorial.

    I have one point of query though: I was recently at the Charles Taylor trial and thought Mr Taylor was being held in the ICC detention centre at Scheveningen (the cost of his detention being paid to the ICC by the SCSL). Are there not two international detention centres in the same Dutch prison complex (one is the UN Detention Centre and the other is run by the ICC – with both sharing certain facilities) and Mr Taylor resides in the ICC detention centre?


    Regardless of where he is living at present the editorial is still terrible.

  9. This had me stumped:

    “Yet at the same time, other European courts are releasing terrorists and elderly Nazis due to ‘ill health.’”

    Could the author by any chance be talking about the Scottish Cabinet Secretary for Justice, Kenny MacAskill, who is not a court, and the German courts currently trying John Demjanjuk and a German defendant, which have done so such thing?

  10. Well, that’s his user page, so I imagine he’s allowed to wax self-gratifying.  This has absolutely nothing to do with his editorial, but it’s rather interesting to take a look through his Wikipedia edits:

    http://en.wikipedia.org/w/index.php?title=Special:Contributions&target=Sfrantzman

    He certainly has… diverse interests.

  11. In response to Mr. Henderson’s query, Mr. Charles Taylor is indeed held by the ICC Detention Centre. He is in the same unit as the ICC detainees, quite separate from the ICTY lot, who are held in the same prison but in a different unit. 

    Otherwise, I share all criticism set out above.

  12. The Detention Centre issue is one of semantics.  The UN Detention Centre houses all of the prisoners held by the international tribunals.  They are separated by tribunal and each tribunal manages its own prisoners.  Charles Taylor is housed with the ICC prisoners.

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