I have uploaded a copy of the report, which was available for a couple of hours on the ICC website but then removed without explanation.  (It’s marked public.)  Representatives of the Registry spent five days in Libya in late February and early March, so things could have changed significantly since that time.  Nevertheless, the report paints an interesting — and depressing — picture of the conditions of Gaddafi’s captivity and his feelings toward the ICC.  Here are some key paragraphs (emphasis mine):

15. The delegation left at 10 am on 3 March 2012 and arrived in a house located in Zintan around noon. The delegation was asked to wait in the house for a while, ft was then asked to walk to a house located opposite where Saif Al- Islam Gaddafi was staying. All shutters were closed. The door was heavy and in metal. Several young guards dressed up with military clothes and armed with Kalashnikovs were present in the house. The members of the Registry and the OPCD waited for approximately 40 minutes as Dr. El Gehani was talking to Mr. Gaddafi. Upon his return, the Coordinator indicated that Mr, Gaddafi wanted to talk to him about the Libyan procedures against him and about the possibility to have a lawyer. He mentioned that Mr. Gaddafi had requested to have an interview with him as a condition to speak to the Court. Dr. El Gehani added that he advised him to appoint a lawyer…

17. Saif Al-Islam Gaddafi appeared smiling and willing to talk to the Court. It was difficult to assess whether he had lost a lot of weight as he was wearing large clothes. He appeared slimmer than on the picture annexed to his arrest warrant. He was missing part of his thumb and index at his right hand. He had no visible bruise on his face….

I have no idea whether it’s true, but that’s what the BBC is reporting:

The International Criminal Court could soon drop its demand that Saif al-Islam Gaddafi be transferred to the Hague for trial, officials have told the BBC.

They say the most prominent son of the former Libyan leader Muammar Gaddafi could instead be tried inside Libya but under the supervision of the ICC.

The argument over who should try him has been going on ever since he was captured in November last year.

The ICC has indicted him for crimes against humanity.

Now the Libyan justice ministry says a deal is being finalised where Mr Gaddafi can be tried in Libya but with security and legal supervision by the international court.

The BBC’s Jon Donnison, in the Libyan capital Tripoli, has been told by a western official with good knowledge of the case that a deal is close to being agreed.

The article raises a number of questions.  What would the charges be?  Would the ICC impose a de facto complementarity requirement on Libya, conditioning any deal on Libya’s willingness to prosecute Saif for the same crimes against humanity, murder and persecution, based on the same conduct for which the arrest warrant was issued?  Or would the ICC be willing to allow Libya to prosecute Saif for “ordinary” crimes (i.e., not international) based on the same or different conduct as long as the charges were adequately serious?  (An approach to complementarity that I have defended here.)  How, exactly, would the ICC “supervise” the trial?  Are we simply talking some sort of positive complementarity, whereby the Court would provide the Libyan court system with training and the like?  Or would the ICC have the right to insist on specific rules of evidence, due-process guarantees, and so forth?

There is also the question, of course, of how to reconcile a potential deal with the Rome Statute.  As I read the Statute, because the charges have not yet been confirmed, the OTP would have the right to discontinue the arrest warrant; Article 61(4) provides in relevant part that “[b]efore the [confirmation] hearing, the Prosecutor may continue the investigation and may amend or withdraw any charges.”  But if the OTP withdrew the charges against Saif, what leverage would it have to ensure that Libya lived up to its end of the deal?  If Libya broke one of its promises to the Court, I think that the OTP’s only remedy would be to seek a new arrest warrant for Saif and then try to convince the Libyan government to honor it — which it clearly wouldn’t, given its attitude toward the first arrest warrant.

The bottom line: if the BBC report is accurate, the OTP would obviously be trying to make the best of a very difficult situation.  Would ensuring that the ICC has at least some role in a national trial be a good idea?  To be honest, I’m not so sure.  I think it is very unlikely that Saif will get a fair trial in Libya, ICC involvement or not.  Any deal between the ICC and Libya, therefore, would means that the Court would be on the hook for the results of the trial — if it turns out to be a fiasco, the Court would share the blame with the Libyan government.  And rightfully so.  Be careful what you wish for, ICC!

Stay tuned…

Moreno-Ocampo’s inability to avoid allegations of bias has long haunted his tenure as Prosecutor.  It’s impossible to forget, for example, photos of him standing next to the Ugandan President, Youweri Museveni, as he announced that he was investigating the situation in Northern Uganda — an act that Ugandans widely perceived, rightly in light of the OTP’s failure to seriously investigate crimes committed by government forces, as indicating that the ICC was working on behalf of the Ugandan government.

Unfortunately, Moreno-Ocampo seems to have learned nothing over the years.  Case in point: the letter he just sent to Guillaume Soro, the former commander of the pro-Outtara rebel group Forces Républicaines de Côte d’Ivoire (FRCI), congratulating Soro on his election as President of the Cote D’Ivoire National Assembly.  Here is an English translation of some of the letter, which Soro posted on his Facebook page on April 4:

I have the honor to extend my most sincere congratulations and those of my collaborators on your appointment as President of the National Assembly of Côte d’Ivoire….  I want to reiterate my gratitude for your action and support for the work of my Office in Côte d’Ivoire, and I hope you will continue the same quality collaboration with my successor, Fatou Bensouda….  I hope we will have the opportunity to see us in the coming weeks to continue the fruitful cooperation between your Government and my office.

It is understandable that the OTP wants to maintain good relations with the Ivorian government, which has not ratified the Rome Statute but has accepted the Court’s jurisdiction on an ad hoc basis under Article 12(3).  The problem is that Soro does not exactly have clean hands in the various conflicts that have torn Cote D’Ivoire apart for the past decade; on the contrary, Human Rights Watch, the UN, and other groups have documented his responsibility time and again for a wide variety of very serious war crimes and crimes against humanity.  Here, for example, is a snippet from one of HRW’s 2011 reports…

The bankruptcy of the U.S. military-commissions system is currently on full display in the trial of Abd al-Rahim Al-Nashiri.  Readers who can stomach the spectacle of a tortured detainee being prosecuted for imaginary war crimes committed at a time when there was no armed conflict between the U.S. and al-Qaeda anywhere in the world can find excellent coverage of the pre-trial motions at Lawfare.

Republican congressman Allan West channeled Joe McCarthy yesterday, telling supporters at a rally that “he’s heard” as many as 80 Democratic representatives in the House are members of the Communist Party.  When asked to clarify his remarks, he wouldn’t name names — but he said he was referring to the Progressive Caucus.  No problem, then.

In honor of Ozzie Guillen, the manager of the Miami Marlins, who was forced to apologize today to Miami’s Cuban-American community for saying that he admired Fidel Castro’s ability to avoid being assassinated by the U.S. for five decades, who said the following?

I believe that there is no country in the world including any and all the countries under colonial domination, where economic colonization, humiliation and exploitation were worse than in Cuba, in part owing to my country’s policies during the Batista regime. I approved the proclamation which Fidel Castro made in the Sierra Maestra, when he justifiably called for justice and especially yearned to rid Cuba of corruption. I will even go further: to some extent it is as though Batista was the incarnation of a number of sins on the part of the United States. Now we shall have to pay for those sins. In the matter of the Batista regime, I am in agreement with the first Cuban revolutionaries. That is perfectly clear.

Click through for the answer.

The Texas International Law Journal has published its mini-symposium on Karl Chang’s article that argues the law of neutrality provides the applicable legal framework for the United States’ conflict with al-Qaeda.  There are two responses to the article: one by Rebecca Ingber, who is currently a fellow at Columbia Law School; and one by me.  Here is the abstract of my response, which is entitled “The Law of Neutrality Does Not Apply to the Conflict with Al-Qaeda, and It’s a Good Thing, Too: A Response to Chang”:

In his Article “Enemy Status and Military Detention in the War Against Al-Qaeda,” Karl Chang addresses one of the most critical problems in contemporary international law: the scope of a state’s detention authority in non-international armed conflict (NIAC). Some have argued that detention in NIAC is governed solely by the rules of international humanitarian law (IHL) applicable in international armed conflict (IAC), particularly the Fourth Geneva Convention’s provisions concerning the detention of civilians. Others claim that because conventional IHL does not regulate detention in NIAC, the scope of detention must be determined solely by reference to national law and international human rights law (IHRL). And still others have taken the position that IHL, national law, and IHRL are all relevant to determining the scope of detention in NIAC.

Chang, by contrast, looks to a completely different source of law: the law of neutrality. He rejects the idea that the scope of detention in NIAC is determined by the distinction between “combatants” and “civilians,” which is essential to all of the approaches mentioned above. Instead, he argues that “the legal limit on military detention is ‘enemy,’ a concept that has been defined in the law of neutrality.” Indeed, in his view, “The framework of duties and immunities in neutrality law gives an overarching international law framework for U.S. military operations against al-Qaeda.” This is a unique thesis. De lege ferenda, the law as it ought to be, the Article makes an intriguing case for the relevance of neutrality law’s distinction between friend and enemy. But de lege lata, the law as it is, the Article is deeply problematic. Properly understood, the law of neutrality either does not apply to whatever NIAC exists between the United States and al-Qaeda or applies in a symmetrical manner that, if states took it seriously, would effectively cripple the United States’ counterterrorism efforts against al-Qaeda.

Readers’ thoughts would be most welcome.

Mr. Davenport makes some very strong claims in his post concerning the OTP’s refusal to accept the Palestinian declaration.  Although I am on record with my belief that accepting the declaration would be a terrible political move for the ICC, I have a number of questions about Mr. Davenport’s claims.  I hope he will take the time to answer them in a subsequent guest-post.

First, Mr. Davenport says that “[t]he only case in favor of jurisdiction was always a set of political arguments in search of a valid legal vehicle that was never found.”  Bill Schabas has offered a quite compelling “legal vehicle” for the ICC to accept the Palestinian declaration, which focuses on (1) the fact that the Rome Statute is open to “all states,” and (2) that the UN Secretary-General previously concluded that the Cook Islands could ratify any treaty open to “all states” even though it was not an independent state, because it had been granted membership by a number of specialized UN agencies, including UNESCO.  Indeed, the Cook Islands has ratified the Rome Statute.  I would thus appreciate Mr. Davenport’s explanation of why, in light of the Cook Islands precedent and Palestine’s membership in UNESCO, Palestine is not entitled to ratify any treaty open to “all states,” including the Rome Statute.

Second, Mr. Davenport argues that “[t]ypical of such extra-legal arguments is a previous post pointing out that, since the submission in 2009, the political case for Palestinian statehood has grown stronger, when the only legally relevant time was when the acts complained of took place (2002-early 2009).”  I would appreciate Mr. Davenport pointing out what provisions in the Rome Statute support his argument.  Article 11(2) of the Rome State specifically provides that “if a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3” (emphasis mine). Article 12(3), in turn, permits a state to accept the ICC’s jurisdiction over any crime committed after 1 July 2002, the date the Rome Statute entered into force, even if that acceptance is retroactive.  Indeed, the Court has never questioned Cote D’Ivoire’s declaration under Article 12(3), filed with the Court on 1 October 2003, even though the declaration accepted jurisdiction retroactive to 19 September 2002.  The OTP is currently investigating the situation in Cote D’Ivoire.

Third, Mr. Davenport says, with regard to the OTP’s belief that the Assembly of States Parties could vote to accept the Palestinian declaration, “[s]urely this means that ASP review would only be to implement any action by the U.N.; nothing in the Rome State implies any larger ASP role in statehood matters in any event.”  What is the basis for this claim?  If UNESCO’s membership is entitled to admit Palestine without approval by the UNSC or UNGA, why is an independent international organization not entitled to do the same?  The UN has no formal authority over the ICC (except concerning referrals to the Court, of course, which is given to the Security Council by the Rome Statute).  And why is it not implicit in the Rome Statute that the ASP — the ICC’s “legislature” — may determine who is eligible to ratify the Rome Statute or accept its jurisdiction?  After all, Article 112(2), as the OTP pointed out, specifically says that the ASP may “[p]erform any other function consistent with this Statute or the Rules of Procedure and Evidence.”  How would a determination that the Court may accept the Palestinian declaration be inconsistent with the Statute or RPE?

Mr. Davenport concludes his post by claiming that “this is clearly the end of the line for any ICC complaints about the events raised in the PNA’s declaration of 2009.”  In light of the considerations I have discussed above, that seems to be a questionable conclusion.  I look forward to Mr. Davenport’s response.

It’s not every day that a law review article comes along that combines two of my interests: greenwashing, whereby large corporations pretend to care about the environment in order to distract people from the fact that they are busily destroying it, and Chevron.  So I want to put in a hearty plug for Miriam Cherry and Judd Sneirson’s “Chevron, Greenwashing, and the Myth of ‘Green Oil Companies’,” which is forthcoming in the Journal of Energy, Climate, and the Environment.  Here is the abstract:

As green business practices grow in popularity, so does the temptation to “greenwash” one’s business to appear more environmentally and socially responsible than it actually is. We examined this phenomenon in an earlier paper, using BP and the Deepwater Horizon catastrophe as a case study and developing a framework for policing dubious claims of corporate social responsibility. This Article revisits these issues focusing on Chevron, an oil company that claims in its advertisements to care deeply about the environment and the communities in which it operates, even as it faces an $18 billion judgment for polluting the Ecuadorean Amazon and injuring its people. After describing Chevron’s “we agree” advertising campaign, the Article sets out our framework for approaching “faux” corporate social responsibility, gauges whether misled consumers and investors might have a legal remedy as a result of Chevron’s advertising claims, and proposes refinements to better regulate corporate greenwashing.

As Cherry and Sneirson point out in their introduction, Chevron touts “The Chevron Way” on its website, insisting that the corporation “is built on our values, which distinguish us and guide our actions. We conduct our business in a socially responsible and ethical manner. We respect the law, support universal human rights, protect the environment and benefit the communities where we work.”

Noted without comment.

The ICC’s Pre-Trial Chamber I (PTC) has rejected Libya’s request to postpone the surrender of Saif Gaddafi so that he can be prosecuted domestically for other crimes.  That request was based on Article 95, which reads:

Where there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19, the requested State may postpone the execution of a request under this Part pending a determination by the Court, unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence pursuant to article 18 or 19.

Readers will recall that Dapo Akande, Jens Ohlin, and I have been involved in a friendly debate about whether Article 95 applies to surrender requests, as they believe, or only to requests for the collection of evidence, as I believe.  (See here and here.)  Libya’s latest request gave the PTC an opportunity to give us an answer — but, unfortunately, the judges ducked the Article 95 issue, holding that Libya’s failure to bring a formal admissibility challenge pursuant to Article 18 or 19 meant that they did not have to reach it (emphasis mine):

18.    With regard to article 95 of the Statute, on which the Government of Libya further bases its Second Postponement Request, the Chamber recalls that this provision may be invoked only ”[wjhere there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19.” Consequently, article 95 of the Statute only applies when there is an admissibility challenge under consideration. Though Libya has announced that an admissibility challenge is forthcoming, there is currently no such challenge before the Chamber. Therefore, the Chamber holds that article 95 of the Statute cannot serve as a legal basis for Libya’s Second Postponement Request. Consequently, the Second Postponement Request presented by the Government of Libya must be rejected. At this time, the Chamber does not consider it necessary to determine whether article 95 of the Statute applies to surrender requests.

I don’t think this statement tips the PTC’s hand, but it’s clear that the judges recognize the issue.  Once (if?) Libya does file a formal admissibility challenge, we’ll likely have our answer.

Hat-Tip: Gentian Zyberi at the always excellent International Law Observer.

As I noted in my previous post, the OTP has implied that it would accept a determination by the Assembly of States Parties (ASP) that Palestine qualifies as a state for purposes of the ICC’s jurisdiction.  That raises an interesting question: why have the Palestinians never (to the best of my knowledge) asked the ASP to make such a determination?  The ASP meets every year and can meet at any time when “circumstances so require” (Article 112(6)) at the Bureau’s initiative or at the request of 1/3 of the States Parties (ASP Rule #8) — 41 States Parties, at present.  I haven’t done the math, but I would be shocked if the ASP didn’t accept the Palestinian declaration, which would require — because the statehood issue is clearly a “matter of substance” — approval “by a two-thirds majority of those present and voting provided that an absolute majority of States Parties constitutes the quorum for voting” (Article 112(7)(a)).  In other words, at least 61 States Parties would have to show up at a meeting and 2/3 of those States Parties would have to vote to accept the declaration.

Such a determination by the ASP would, however, raise the question I alluded to in my previous post: would a determination be reviewable by the Court?  Dapo Akande asks that question in a recent post on the substance of the Palestinian declaration (which interested readers should definitely check out), but he doesn’t venture an answer.  Personally, I don’t see how the judges could review a determination that Palestine qualifies as a state for purposes of Article 12(3); nothing in the Rome Statute permits them to review any other decision by the ASP.

As most readers probably know by now, the Office of the Prosecutor has finally — after three inexcusable years of inaction — officially rejected Palestine’s attempt to accept the ICC’s jurisdiction pursuant to Article 12(3) of the Rome Statute.  Politically, I think the OTP has made the right decision; the ICC has enough problems without interjecting itself into one of the world’s most intractable conflicts.  Legally, though, I’m not so sure: although I initially believed that Palestine could not qualify as a “state” for purposes of Article 12(3), this post by Bill Schabas convinced me that UNESCO’s acceptance of Palestinian membership means that Palestine does, in fact, have the right to accept the Court’s jurisdiction (and to accede to the Rome Statute generally).

I don’t want to debate the legal or political merits of Palestine’s declaration in this post.  Instead, I want to ask a question for which I simply do not have a definitive answer: which organ of the ICC gets to decide whether Palestine can accept the Court’s jurisdiction?  The OTP obviously believes that it makes the decision.  Amnesty International, however, disagrees: the BBC quotes Marek Marczynski, the head of the organization’s International Justice campaign, as claiming that the OTP’s decision “breaches the Rome Statute which clearly states that such matters should be considered by the institution’s judges.” I think Marczynski is wrong about that: nothing in the Rome Statute says that the judges get to decide whether an entity qualifies as a state for purposes of jurisdiction, at least in the first instance.  The problem is that nothing in the Rome Statute specifically entrusts that decision to the OTP, either.  Article 12(3) is silent on the issue, and although the OTP is responsible for deciding whether to an investigate a particular situation, that does not necessarily mean the OTP has the authority to decide whether an entity referring a situation qualifies as a state.

There is, of course, another important question for which there is no easy answer: if we assume that the OTP gets to decide whether Palestine qualifies as a state for purposes of Article 12(3), can the Appeals Chamber review that decision? Article 82 of the Rome Statute, which governs appeals of decisions other than verdicts and sentences, provides in paragraph 1 that “[e]ither party may appeal any of the following decisions in accordance with the Rules of Procedure and Evidence… [a] decision with respect to jurisdiction or admissibility.”  Whether Palestine can accept the ICC’s jurisdiction pursuant to Article 12(3) would seem to be “a decision with respect to jurisdiction.”  Moreover, Article 18(4), which governs appeals of admissibility decisions by the Pre-Trial Chamber, provides that “[t]he State concerned or the Prosecutor may appeal to the Appeals Chamber against a ruling of the Pre-Trial Chamber, in accordance with article 82.”  There is obviously no ruling of the Pre-Trial Chamber concerning Palestine’s status, but Article 18(4) implies that the Appeals Chamber has the authority to review conflicts between the OTP and States concerning investigative decisions.  Still, the answer is anything but clear.

Finally, it’s also important to ask what role the Assembly of States Parties (ASP) should play in all of this.  Article 112(2) provides that the ASP shall “[p]rovide management oversight to the Presidency, the Prosecutor and the Registrar regarding the administration of the Court” and “[p]erform any other function consistent with this Statute or the Rules of Procedure and Evidence.”  It is certainly possible to argue that deciding whether an entity qualifies as a state falls within the purview of the ASP under Article 112; the ASP also seems to be the most logical candidate for making that decision, which is more political than legal.  In fact, the OTP seems to suggest that it would accept a decision by the ASP that Palestine qualifies as a state for purposes of Article 12(3), writing in its statement that “it is for the relevant bodies at the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute and thereby enabling the exercise of jurisdiction by the Court” (emphasis mine).

I don’t know how to answer any of these questions.  In general, I think two interpretations of the Rome Statute are most plausible: (1) the OTP makes the initial decision concerning whether Palestine can accept the ICC’s jurisdiction, but that decision is reviewable by the Appeals Chamber; or (2) the ASP decides whether Palestine qualifies as a state for purposes of Article 12(3), and that decision is not reviewable by anyone.  I’m genuinely torn, however, between the two interpretations.

Readers?  Your thoughts?

UPDATE: In the comments, Hostage calls attention to an FAQ issued by the Registry concerning the Palestinian declaration.  The Registry takes the position in the FAQ that a “conclusive determination” on the applicability of Article 12(3) “would have to be made by the judges at an appropriate moment.”  The FAQ is not clear, unfortunately, concerning which chamber would make that determination or when the “appropriate moment” would be — although it seems to contemplate appellate review, because it acknowledges without comment the OTP’s belief that it was entitled to determine, at least in the first instance, “whether the declaration by the Palestinian National Authority accepting the exercise of the ICC meets statutory requirements.”

UPDATE 2: Amnesty International has issued a “Questions and Answers” statement that appears to back off from Marczynski’s claim that the OTP has breached the Rome Statute by unilaterally rejecting the Palestinian declaration.  The Q&A suggests that it would be better for the judges to make an impartial decision on the declaration, but points out that Article 19(3) of the Rome Statute, which allows the Pre-Trial Chamber to make a decision “regarding a question of jurisdiction or admissibility” that does not involve a specific case only at the request of the Prosecutor.  I’m not sure Article 19(3) is the only applicable provision, for the reasons discussed above.  But Amnesty is on much firmer ground with its Q&A than with Marczynski’s initial claim.