So reports the media. I, for one, am shocked: it’s almost as if KSM has concluded, having been waterboarded (read: tortured) 183 times in one month, that the U.S. might not actually be committed to the highest standards of fairness and justice now.
Come on, KSM. Can’t bygones be bygones? Heed Obama’s injunction: now is the time to look forward, not backward.
In the comments to my previous post, Mark Kersten (of the superb Justice in Conflict blog) asks an excellent question:
Saif remains in the custody of the former rebels in Zintan, not the NTC. Further, the rebels in Zintan have consistently reiterated that they would like to see Saif tried there and not in Tripoli. Yet the admissibility challenge is from the government of Libya – ie. the NTC. Should the Pre-Trial Chamber take this into consideration when ruling on the admissibility of the case?
The answer is yes. Article 17(3) provides that “[i]n order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings” (emphasis mine). I don’t think Article 17(3) requires Libya to actually have Saif or Al-Senussi in its custody, but it obviously has to have the ability to obtain them. Does it? The motion simply glosses the question (para. 96):
Libya is clearly “able to obtain the accused or the necessary evidence and testimony”. Mr. Gaddafi is under custody in Libya and an extradition request to Mauritania for Mr. Al-Senussi is pending.
I’m less confident than the authors of the motion…
The Nuremberg defense pops up in the strangest places. As the NFL fans among our readers know, Commissioner Roger Goodell has suspended four New Orleans Saints players for their role in Bountygate — a program whereby Saints players would get financial bonuses for intentionally injuring other players on the football field, essentially the most heinous crime a football player can commit. What is most remarkable about the reaction from sportswriters to the unprecedented suspensions is how many almost reflexively invoke the Nuremberg defense in order to minimize the players’ culpability. Here, for example, is Mark Kreidler at ESPN.com…
Libya has now brought a formal admissibility challenge under Article 19 of the Rome Statute. The motion, written by Philippe Sands, Payam Akhavan, and Michelle Butler, is a brilliant piece of work and stands a good chance of success. I’ll have much to say about the motion in the next few days, but in this post I want to focus on two aspects of it that I think work at cross-purposes: (1) its insistence that the absence of due process in a national proceeding does not make a case admissible before the ICC; and (2) its quite savage attack on the integrity of the Office of Public Counsel for the Defence.
To begin with, I was surprised — and more than a little pleased — to see that the motion basically argues that Article 17 of the Rome Statute does not make the absence of national due process a ground for admissibility:
99. As noted by highly qualified publicists, “there is a danger that the provisions of Article 17 will become a tool for overly harsh assessments of the judicial machinery in developing countries.” It is not the function of the ICC to hold Libya’s national legal system against an exacting and elaborate standard beyond that basically required for a fair trial. As other distinguished commentators (including drafters of the Rome Statute) have noted generally in regard to due process considerations,
“Arguments have been made that the Court is thus given a general role in monitoring the human rights standards of domestic authorities. The better view is that delay and lack of independence are relevant only in so far as either of them indicates an intention to shield the person concerned from justice. There does not appear to be anything in the Statute to make the Court responsible for the protection of the human rights of the accused in the national enforcement of international criminal law; the principle of complementarity addresses the particular aspects of the proceedings which are referred to in Article 17, whereas more general human rights considerations about the conduct of national prosecutions are more properly addressed by human rights treaties and bodies.”
As I have explained at length elsewhere, this is absolutely correct The delegates to the Rome Conference specifically drafted Article 17 of the Rome Statute to prevent the Court from admitting a case solely on the ground that the national prosecution would be unfair. Indeed, they rejected a proposed version of Article 17 (from Italy) that would have permitted the Court to consider whether “the said investigations or proceedings… were or are conducted with full respect for the fundamental rights of the accused.” We can certainly lament that limitation, and I criticize it in my article. But the proper remedy is to amend the Rome Statute, not for the Pre-Trial Chamber to rewrite Article 17 sub silentio…
Of course, that means it’s been a much better week for anyone who isn’t so keen on the prospect of attacking Iran. I’m not sure the nails are in Netanyahu’s political coffin quite yet, but the carpenters are certainly gathering their supplies. First up, Lt. Gen. Benny Gantz, Chief of Staff of the IDF, rejecting the notion that Iran is run by lunatics hell-bent on nuclear war:
Gantz said: “[Iran] is going step by step to the place where it will be able to decide whether to manufacture a nuclear bomb. It hasn’t yet decided whether to go the extra mile.”
The chief of staff of the Israel Defence Forces said the decision to develop nuclear weapons is only in the hands of the supreme leader, Ayatollah Ali Khamenei.
“If the supreme religious leader Ayatollah Ali Khamenei wants, he will advance it to the acquisition of a nuclear bomb, but the decision must first be taken. It will happen if Khamenei judges that he is invulnerable to a [military] response,” he said in the interview published on Wednesday.
“I believe he would be making an enormous mistake, and I don’t think he will want to go the extra mile.”
“I think the Iranian leadership is composed of very rational people. But I agree that such a capability, in the hands of Islamic fundamentalists who at particular moments could make different calculations, is dangerous.”
According to Gantz, western pressure on Iran by means of diplomacy and economic sanctions has had an effect on Tehran’s rulers but a military response is still an option, albeit the last.
Next up, Yuval Diskin, the former head of Shin Bet, Israel’s intelligence service, being remarkably blunt about Netanyahu’s dismal tenure as Prime Minister…
The blog, which has been uniformly excellent to date, is dedicated to exploring maritime piracy in all its dimensions. Here is the description:
Piracy is on the rise because of failed states and crushing poverty. A majority of modern pirate attacks originate in the Horn of Africa in Somalia although there is now a growing problem in the Gulf of Guinea. This blog is a study in the legal and practical problems associated with piracy off the coast of Somalia and elsewhere. It examines some of the root causes of piracy, attempts to prevent or stop attacks, and mechanisms for the prosecution of suspected pirates. The prosecution of suspected pirates raises a myriad of legal issues that begin with arrest and collection of evidence, proper venue and jurisdiction, to name but a few.
The blog is run by Roger L. Phillips and Matteo Crippa, both of whom are legal officers with United Nations Assistance to the Khmer Rouge Trial.
Welcome, Communis Hostis Omnium!
At International Criminal Law Bureau, Kirsty Sutherland calls attention to a surprise moment during the Taylor verdict that has received, to the best of my knowledge, absolutely no attention from the media:
In an unexpected turn of events, as Justice Lussick (Presiding), Justice Doherty and Justice Sebutinde rose to leave the courtroom after delivering the verdict, Justice Sow addressed the Court:
“The only moment where a Judge can express his opinion is during the deliberations or in the courtroom, and, pursuant to the Rules, when there are no serious deliberations, the only place left for me is the courtroom. I won’t get — because I think we have been sitting for too long but for me I have my dissenting opinion and I disagree with the findings and conclusions of the other Judges, because for me under any mode of liability, under any accepted standard of proof, the guilt of the accused from the evidence provided in this trial is not proved beyond reasonable doubt by the Prosecution. And my only worry is that the whole system is not consistent with all the principles we know and love, and the system is not consistent with all the values of international criminal justice, and I’m afraid the whole system is under grave danger of just losing all credibility, and I’m afraid this whole thing is headed for failure.”
Hearing the voice of their counterpart did not deter Justices Lussick, Doherty and Sebutinde from walking out. Justice Sow’s microphone immediately cut out and a curtain was drawn across the public gallery. Nonetheless, he persisted to air his views to those present, unaided by a microphone.
Pretty stunning stuff. Judge Sow’s views are legally irrelevant, of course, because he was the alternate judge. But he is obviously intimately familiar with the evidence in the case, so his “dissent” supports the idea that the prosecution’s case was remarkably weak.
The Special Court for Sierra Leone has found Charles Taylor guilty on all counts, but only as an aider and abettor — the judges have rejected the prosecution’s allegations that he participated in a JCE to commit the crimes alleged in the indictment or that he had effective control over the RUF soldiers who committed the crimes (i.e, no ordering or command responsibility). The verdict represents a colossal victory for Taylor, even if it means that he will still receive a substantial sentence. (Kudos to the superb Courtenay Griffiths, QC.)
Shocking. Absolutely shocking. What a stunning rebuke to the prosecution.
The media is widely reporting (see, for example, the Washington Post here) that later today Charles Taylor will become the first sitting or former Head of State to have his fate decided by an international tribunal. They should really do their research: the Nuremberg Tribunal convicted Karl Doenitz, the Commander in Chief of the German Navy, who served as the President of Germany for 23 days following Hitler’s suicide. Doenitz, Hitler’s chosen successor, was no mere figurehead; among other things, he ordered Alfred Jodl to unconditionally surrender the German armed forces to the Allies on 7 May 1945.
Get it right, media people! I’m keeping a list…
I am delighted to announce that over the next few days Opinio Juris will be hosting a symposium on what is increasingly called, following Tel Aviv University’s Aeyal Gross, the “functional approach” to the law of occupation. Here is the description that was sent to the contributors:
Occupation law has undergone significant evolution in modern times, and cases such as Iraq and Gaza have raised interesting questions about when an occupation ends and what the duties of an occupying power may be during the transition to restoration of lawful sovereignty. How can occupation law be applied to situations in which an occupying power has partially retreated but continues to exercise governmental functions? Is the application of occupation law a binary question, or can some provisions of the law of occupation apply, while others may not? Which arrangement is most responsive to fostering accountability toward the civilian population? International attention sparked by the Gaza flotilla incident in 2010 has raised significant questions about the legal status of Gaza, with the governments of Israel and Turkey arguing opposing sides of the question of whether Gaza is occupied.
We will post the contributions on Monday, Tuesday, and Wednesday. We will then post responses by the contributors on Thursday. The line-up is as follows:
Readers will notice that the contributors come from all over the political spectrum. Indeed, what makes this symposium so interesting is that it is not possible to infer a particular scholar’s position on the functional approach from his or her political affiliations — being “pro-Israel” or “pro-Palestinian” does not necessarily correlate with either acceptance or rejection of the functional approach.
We look forward to the discussion and encourage readers to weigh in — respectfully — in the comments.
In my previous post, I discussed the Registry’s report of its visit with Saif Gaddafi in Libya, which was posted on the ICC website and then removed without explanation a few hours later. It has come to my attention that the Office of Public Counsel for the Defence (OPCD) also prepared a report of that visit — and that the OPCD’s report also appeared and then disappeared from the ICC website. I have uploaded a copy of the report for interested readers. It’s much more heavily redacted than the Registry’s, yet offers a number of useful tidbits of information about Saif’s attitude toward the ICC:
33. [Redacted]. The details of ICC proceedings therefore appeared irrelevant to him, as his primary concern is his security in Libya. He would, however, prefer to be under the custody of the ICC in The Hague, rather than being detained in the current conditions, or transferred to Tripoli.
34. It is not correct that he informed the Libyan authorities that he did not wish to meet with any officials from the ICC.
35. Mr. Gaddafi met with the Attorney General and asked for a lawyer in connection with the Libyan proceedings. He was informed that it would be impossible for a lawyer to visit him in Zintan. Mr. Gaddafi does not think that he has signed anything waiving the right to have a lawyer, but in any case, he had been informed in definite terms at the beginning by the Attorney General that it would be impossible to implement in practice.
36. The persons guarding him have mobile phones but there did not appear to be any fixed telephone lines, from which he could call anyone to choose a lawyer. Although the visit did not take place in the particular room in which he is being detained, it is clear that he would not be able to keep privileged documents in a secure location.
37. When asked whether he would want someone, such as his family, to arrange for a Libyan lawyer for the domestic proceedings, he responded that he would.
38. Mr. Gaddafi has been interviewed by the Libyan authorities in connection with allegations concerning the fact that he allegedly did not have a licence for two camels, and issues concerning the cleaning of his fish farms.
39. Dr. Gehani informed Mr. Gaddafi during his meeting with him that Dr. Gehani is the ‘architect’ of the allegations against him. Dr. Gehani also notified him that their investigation into murder, rape et cetera had been terminated because they had no evidence against him.
40. In terms of his legal representation before the ICC, Mr. Gaddafi does want legal representation, but he was not in a position to select counsel himself He does not know any lawyers, his family did not have any retained lawyers to his knowledge, and he does not have the ability to call lawyers to interview them or ascertain their availability.
41. Mr. Gaddafi requested the OPCD to either select counsel or help him in this matter. [Redacted]. Mr. Gaddafi is also willing for the OPCD to continue to represent him before the ICC, until a counsel is appointed.
Saif’s statements about the status of the investigation into his actions obviously need to be taken with a grain of salt — as do Gehani’s, if Saif is reporting them accurately — but they are still cause for concern. No matter what your view of complementarity, it would obviously be unacceptable for Libya to try him only for minor crimes.
I find Saif’s statements about the ICC particularly interesting, as well. It’s not surprising that he would prefer to be turned over to the Court for prosecution — he’d get better detention conditions, much better legal representation, and a more fair trial. And, of course, he would not be eligible for the death penalty. Saif’s statements also contradict Moreno-Ocampo’s criticism of Xavier-Jean Keita, the head of the OPCD, which I discussed in an earlier post. It seems quite clear that Saif does, in fact, want the OPCD to represent his interests at the ICC while the Court and the Libyan government debate his fate.
Now if someone could just explain to me why these two reports on Saif’s situation, both of which are marked public, disappeared from the ICC website…
So reports Radio Netherlands Worldwide. The dispute, not surprisingly, involves Luis Moreno-Ocampo and Libya:
This week the court’s public defender, Xavier-Jean Keita, accused chief prosecutor Luis Moreno Ocampo of siding with the Libyans and demanded he be removed from the case.
In a court filing boiling with indignation, he accused Ocampo of making misleading statements during a visit to Tripoli this week suggesting a deal has already been done whereby Gaddafi will face trial in Tripoli.
“There appears to be a strong perception that the ICC Prosecutor has aligned himself to the interests of the Libyan authorities,” Keita wrote in a court filing. “It might also be appropriate for the ICC Prosecutor to consider recusing himself from the case.”
[snip]
Ocampo earlier had suggested to judges that, as Gaddafi had not formally requested a lawyer during a meeting in March with an ICC defence official, Keita be removed from the case.
Judges said no to that one, too, but they have still to make up their minds what to do about a case that is fast spiralling into a major political problem for the ICC.
Libya insists it is taking the court seriously and has hired Phillipe Sands, a leading British Queens Counsel and author of “Lawless World”, which accused the Bush administration of war crimes in Iraq, to make its case to the ICC.
But Libya’s chances of a successful challenge look weak. First, it will have to justify keeping Gaddafi in isolation for months, where he has been denied access to a lawyer as well as family visits.
Second, it has no functioning justice system, with the law on transitional justice still to be gazetted.
And third, Libya is showing signs of disintegration. With separatists in the east and south demanding autonomy, the powerful Zintan militias have refused to hand over Gaddafi to government custody.
Rights groups say Libya is in no position to hold a fair trial. Richard Dicker, head of international justice at Human Rights Watch in New York, told RNW: “Credibility? That’s exactly what they [Libya] won’t have with a kangaroo process in Tripoli and a quick execution. That’s an Iraqi solution.”
I don’t quite know what to make of all this. To be honest, I think both Keita and Moreno-Ocampo are in the wrong. Moreno-Ocampo’s criticism of Keita is obviously misplaced: there is nothing inappropriate about Keita protecting Saif’s interests at the ICC — and the Registry’s report on Saif’s situation in Libya, discussed in my previous post, makes clear that Keita is not purporting to represent his interests regarding a national prosecution, which would obviously be inappropriate.
Keita’s criticism of Moreno-Ocampo also seems misplaced — at least in the abstract. The OTP has the right under Article 61 of the Rome Statute to withdraw the charges against Saif, because they have not yet been confirmed by the Pre-Trial Chamber. So I don’t see what’s wrong with Moreno-Ocampo trying to work out a deal with the Libyans to prosecute Saif domestically. The real question is what such a deal would look like — and here I definitely have my concerns. As I noted a few days ago, if the OTP withdraws the charges against Saif as part of a deal with the Libyan government, it would suffer the reputational costs of what would almost certainly be an unfair national prosecution. That would not be the case, however, if the OTP acceded to the wishes of the other organs of the ICC and demanded that Libya formally challenge the admissibility of a national prosecution under Articles 18 and 19 of the Rome Statute. In the unlikely event that such a challenge succeeded, it would not be the ICC’s fault — much less the OTP’s — if Saif received an unfair trial.
That last point is an important one. The RNW article quoted above, like so many articles (and blog posts) on the Libya situation, incorrectly presumes that the ICC would be entitled to reject an admissibility challenge on the ground that Saif would not receive a fair trial in Libya. As I have explained before, the drafters of the Rome Statute specifically rejected the idea that the absence of due process renders a state “unwilling” or “unable” to prosecute; a state can be considered unwilling or unable only if its national prosecution is designed to make it more difficult to successfully prosecute the perpetrator. So there is nothing wrong with the OTP ignoring fair-trial concerns in its discussions with the Libyan government — unless it cuts a deal with Libya that involves dropping the charges against Saif. In the admissibility context, due process does not matter. Outside of that context, it most certainly does. The OTP has no business whatsoever negotiating away Articles 18 and 19 unless it can ensure that Saif receives a fair trial. And therein lies the danger of Moreno-Ocampo’s negotations with the Libyan government.
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