Author Archive for
Kevin Jon Heller

A Seriously Not Cool Phishing Email

by Kevin Jon Heller

I normally find scam emails amusing — especially the one where Ban Ki-moon wants to give me “scam compensation” in the amount of $500,000 on behalf of the “World Bank/United Nations Assisted [sic] Programme.” But the one I received today is just sick:

Dear Friend,

I know this email will surprise you. Please accept my offer for charity plans. My name is Mrs. Halima Izar. I am a rich Syrian woman of 66 years. I was married to the director of (IZAR SEAFOOD LTD) located in China and Cambodia. I am seriously suffering from the chemical gas attack that affected us in August in Damascus. My entire families died by that attack. My condition is hopeless to survive. Nobody to call for help. I am using my doctor’s android phone to send you this email. I want you to take over my funds in Cambodia for charity plans and humanitarian aid for Syrian refugees, and motherless, less privileged, widows in your country. I pray Allah to help us. I have $10,800.000.00 in my Bank. I will offer you 12% for your commitment. My lawyer in Cambodia will direct and arrange the release of the funds to you. I have informed him of my intension to appoint you receive this funds. His contact is below:

Barrister. Toek Sreymao
E-mail: toeksreymao [at] gmail [dot] com
TEL- +855-883994742

May God Bless You.

Mrs Halima

Using chemical-weapons attacks in Syria to try to cheat naive people out of their money is revolting. I hope God does something to “Mrs Halima” other than bless her.

Now That’s a Broad Reading of the Jus Ad Bellum!

by Kevin Jon Heller

The European Parliament has just overwhelmingly passed a resolution condemning the use of armed drones. I’ll leave it to others to do the hard work of analyzing the resolution, but I couldn’t let this paragraph pass without a mention (emphasis mine):

E. whereas drone strikes outside a declared war by a state on the territory of another state without the consent of the latter or of the UN Security Council constitute a violation of international law and of the territorial integrity and sovereignty of that country.

The last time a state formally declared war was 8 August 1945, when Russia declared war on Japan. So much for Art. 51 of the UN Charter…

Mueller on Kenya and the ICC

by Kevin Jon Heller

Susanne Mueller, who works at Boston University’s African Studies Center, has published a very interesting essay on the relationship between Kenya and the ICC. I want to bring it to our readers’ attention, because it’s published in the Journal of East African Studies, which many international-law folk may not normally read. Here is the abstract:

Kenya’s 2013 election was supremely important, but for a reason not normally highlighted or discussed. Uhuru Kenyatta and William Ruto’s run for president and deputy president as International Criminal Court (ICC) indictees was a key strategy to deflect the court and to insulate themselves from its power once they won the election. The paper maintains that the strategy entailed a set of delaying tactics and other pressures to ensure that the trials would not take place until after the election when their political power could be used to maximum effect to halt or delay them. However, unlike in 2007–08, the 2013 election did not result in mass violence. The Kenyatta–Ruto alliance united former ethnic antagonists in a defensive reaction to the ICC. The analysis has implications for theories seeking to explain why countries ratify and comply with treaties. It develops an alternative political economy argument to account for outliers like Kenya and has implications for international criminal justice and democracy in Kenya.

It’s an illuminating and persuasive argument, well worth the read if you are interested in Kenya and the ICC. A free copy can be downloaded here.

A Modest Suggestion for the Ukrainian Parliament (Updated)

by Kevin Jon Heller

According to VOA News, the Ukrainian Parliament would like the ICC to investigate recently-deposed President Yanukovych:

Ukraine’s parliament voted on Tuesday to send fugitive President Viktor Yanukovych to be tried for ‘serious crimes’ by the International Criminal Court once he has been captured.

A resolution, overwhelmingly supported by the assembly, linked Yanukovych, who was ousted on Saturday and is now on the run, to police violence against protesters which it said had led to the deaths of more than 100 citizens from Ukraine and other states.

The resolution said former interior minister Vitaly Zakharchenko and former prosecutor-general Viktor Pshonka, who are also being sought by the authorities, should also be sent for trial at the ICC, which is based in The Hague.

The court says it needs a request from Ukraine’s government giving it jurisdiction to investigate Yanukovych and others over deaths during the protests.

I’m pretty sure the Court did not actually say that. Why? Because Ukraine has signed but not ratified the Rome Statute. And it can’t without Parliament’s intervention, because Ukraine’s Constitutional Court has held that the Rome Statute is not in conformity with the Ukrainian Constitution. So here’s a suggestion: before Parliament tries to send its former President to the Hague — and it would, of course, have to refer the situation in the Ukraine, not just him — it should amend the Constitution and ratify the Rome Statute.

All that said, there would be worse things than a Ukraine self-referral. After all, the Ukraine is not in Africa, and it’s unlikely that Yanukovych won’t eventually be apprehended. Prosecuting a former non-African head of state would do wonders for the ICC’s reputation.

UPDATE: In the comments, Shehzad Charania mentions the possibility of the Ukraine accepting the ICC’s jurisdiction on an ad hoc basis and then waiting for the OTP to initiate a proprio motu investigation. As I read the Constitutional Court’s decision, linked to above, that route is also foreclosed by the Ukrainian Constitution. Here is the relevant paragraph from the ICRC’s summary of the decision:

Article 124 of the Ukrainian Constitution states that the administration of justice is the exclusive competence of the courts and that judicial functions cannot be delegated to other bodies or officials. The Constitutional Court noted that the jurisdiction of the ICC under the Rome Statute is complementary to national judicial systems. However, under Article 4(2) of the Rome Statute, the ICC may exercise its functions and powers on the territory of any State party, and under Article 17, the ICC may find a case to be admissible if the State is unwilling or unable genuinely to carry out the investigation or prosecution. The Court concluded that jurisdiction supplementary to the national system was not contemplated by the Ukrainian Constitution. Hence, the amendment of the Constitution is required before the Statute can be ratified.

If the problem with ratifying the Rome Statute is that Ukraine cannot delegate the administration of justice to an international court, that would seem to prohibit accepting the ICC’s jurisdiction on an ad hoc basis, as well.

Lecture Next Week at UCL

by Kevin Jon Heller

Opinio Juris readers who are based in London may be interested in coming to a lecture I’ll be giving for the ILA at University College London next week. Here is the relevant information:

International Law Association (British Branch) Lecture
What is an international crime?

Wednesday 5 March 2014, 6-7pm

  • Speaker: Professor Kevin Jon Heller (Prof. of Criminal Law, SOAS)
  • Chair: Dr Kimberley Trapp (UCL)
  • Venue: UCL Faculty of Laws
  • Admission: Free of charge
  • Accreditation: 1 CPD hour SRA (BSB pending)

Nearly all ICL scholars accept the idea that an international crime is an act that is directly criminalized by international law. Professor Heller will challenge that definition, what he calls the “direct-criminalization thesis,” in this lecture. More specifically, he argue that the thesis can only be defended on the basis of an unconvincing and illegitimate naturalist understanding of the creation of international law — and that any attempt to defend the direct-criminalization thesis on positivist grounds collapses it into what he calls the “national-criminalization thesis,” the idea that an international crime is an act that all states are obligated to domestically criminalize.

This is essentially the same presentation I gave at Oxford a few weeks ago, so if you were there or listened to the podcast, there is no reason to come to this event. But if you do go, please come up afterward and say hello!

The Reprieve Drone Strike Communication I — Jurisdiction

by Kevin Jon Heller

Reprieve, the excellent British human-rights organisation, has submitted a communication to the ICC asking it to investigate NATO personnel involved in CIA drone strikes in Pakistan. Here is Reprieve’s press release:

Drone victims are today lodging a complaint with the International Criminal Court (ICC) accusing NATO member states of war crimes over their role in facilitating the US’s covert drone programme in Pakistan.

It has been revealed in recent months that the UK, Germany, Australia, and other NATO partners support US drone strikes through intelligence-sharing. Because all these countries are signatories to the Rome Statute, they fall under The ICC’s jurisdiction and can therefore be investigated for war crimes. Kareem Khan - whose civilian brother and son were killed in a 2009 drone strike – is at The Hague with his lawyers from the human rights charity Reprieve and the Foundation for Fundamental Rights who have filed the complaint on his behalf.

The CIA has launched more than 300 missiles at North Waziristan since its covert drone programme began and it is estimated that between 2004 and 2013, thousands of people have been killed, many of them civilians including children.

The US has immunised itself from legal accountability over drone strikes and the UK has closed its domestic courts to foreign drone victims. In a recent decision, the Court of Appeal in London ruled that it would not opine on the legality of British agents’ involvement in the US drone war in Pakistan, for fear of causing embarrassment to its closest ally.

The communication is a fascinating document to read, and it is quite damning concerning the effects of the CIA’s drone strikes. My interest in the communication, however, focuses on two critical legal issues: (1) whether the ICC would have jurisdiction over NATO personnel involved in the CIA’s strikes; and (2) whether it can be persuasively argued that those personnel have been complicit in the strikes. I’ll discuss the jurisdictional issue in this post and the substantive complicity issue in my next post.

As the communication acknowledges, neither Pakistan (where the drone strikes took place) nor the US (which launched the drone strikes) has ratified the Rome Statute. Reprieve nevertheless asserts that the ICC would have jurisdiction over NATO personnel involved in the drone strikes — particularly individuals from the UK, Germany, and Australia — on two different grounds (para. 7):

The Court’s jurisdiction over the crimes committed as a result of drone strikes in Pakistan arises in two ways. The first is (subjective) territorial jurisdiction on grounds that the attacks were launched from a State Party (e.g. Afghanistan), while the second is nationality (on grounds that there is a reasonable basis for concluding that the nationals of States Parties to the Rome Statute may have participated in crimes under the Statute.

It may seem odd that the communication spends time trying to establish that Art. 12(2)(a) of the Rome Statute, the territorial jurisdiction provision, includes subjective territoriality. Why not just invoke nationality jurisdiction, given that Reprieve is only asking the ICC to investigate “nationals of States Parties”? In fact, the communication’s move is actually quite clever — and necessary.

To see why, consider what Art. 25(3) says, in relevant part (emphasis mine): “In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person…” The italicized language is critical, because the communication does not claim that the NATO personnel committed the war crimes themselves. On the contrary, Reprieve views those individuals as accessories to war crimes allegedly committed by CIA drone operators (para. 13; emphasis mine):…

New Book: Lewis, The Birth of the New Justice

by Kevin Jon Heller

I rarely get excited about a new book before I’ve read it — but I’m excited about this one, Mark Lewis’s The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919-1950. Here is OUP’s description:

The Birth of the New Justice is a history of the attempts to instate ad hoc and permanent international criminal courts and new international criminal laws from the end of World War I to the beginning of the Cold War. The purpose of these courts was to repress aggressive war, war crimes, terrorism, and genocide.

Rather than arguing that these legal projects were attempts by state governments to project a “liberal legalism” and create an international state system that limited sovereignty, Mark Lewis shows that European jurists in a variety of transnational organizations derived their motives from a range of ideological motives – liberal, conservative, utopian, humanitarian, nationalist, and particularist. European jurists at the Paris Peace Conference in 1919 created a controversial new philosophy of prosecution and punishment, and during the following decades, jurists in different organizations, including the International Law Association, International Association for Criminal Law, the World Jewish Congress, and the International Committee of the Red Cross, transformed the ideas of the legitimacy of post-war trials and the concept of international crime to deal with myriad social and political problems. The concept of an international criminal court was never static, and the idea that national tribunals would form an integral part of an international system to enforce new laws was frequently advanced as a pragmatic-and politically convenient-solution.

The Birth of the New Justice shows that legal organizations were not merely interested in ensuring that the guilty were punished or that international peace was assured. They hoped to instil particular moral values, represent the interests of certain social groups, and even pursue national agendas. At the same time, their projects to define new types of crimes and ensure that old ones were truly punished also sprang from hopes that a new international political and moral order would check the power of the sovereign nation-state. When jurists had to scale back their projects, it was not only because state governments opposed them; it was also because they lacked political connections, did not build public support for their ideas, or decided that compromises were better than nothing.

A book of this nature is much needed — the era between WW I and WW II has not received anywhere near enough attention from international criminal law scholars. I hope the book is good! (I will report back once I’ve read it.)

A Few Thoughts on Eugene Kontorovich’s Response to My Post

by Kevin Jon Heller

Eugene has graciously responded to my earlier post; you can find his new post here. It’s well worth a read. I just want to offer a few  thoughts on Eugene’s response, because I think it fails to address the core of my critique: that it is incorrect to claim, as Eugene did in his first post, that Europe’s opposition to the juvenile death penalty is based on the idea that “minors are not really responsible for their actions.” I argued that, on the contrary, Europe’s opposition to the juvenile death penalty is part and parcel of its opposition to the death penalty itself.

Eugene’s new post provides no support for his original thesis. Here is what he argues, in order:

The EU’s position is that the death penalty is wrong under any circumstances; however, the juvenile death penalty is even wronger. And this distinction could presumably only be due to the reduced decision-making capacity of juveniles.

Thus in their amicus brief in Roper, the EU did not argue that the death penalty was unconstitutional – though they stated their opposition – rather, they argued the juvenile death penalty was unconstitutional even if the death penalty itself were constitutional. (As amici, they were in no way limited to the facts of the case, and could have submitted a much broader argument.) The EU’s opposition to the juvenile death penalty repeatedly points to an “international consensus” against it, reflected in various treaties and U.N. documents. These instruments specifically do not bar the death penalty, but do prohibit the juvenile death penalty. Thus the consensus which the EU pointed to is itself based on a belief in a fundamental distinction between juvenile and adult death penalties.

It is true that there is an international consensus against the juvenile death penalty. And it is highly likely that some of the states that are part of the international consensus oppose the juvenile death penalty because they believe juveniles have a “reduced decision-making capacity.” But nothing in the EU amicus brief suggests that European states oppose the juvenile death penalty because of the diminished moral capacity of juveniles. As I noted in my earlier post, Europe opposes the death penalty for everyone, adult and juvenile, because — in the words of the Council of Europe — “everyone’s right to life is a basic value and that the abolition of the death penalty is essential to the protection of this right and for the full recognition of the inherent dignity of all human beings.” Yes, Europe would be more than willing to argue that “the juvenile death penalty was unconstitutional even if the death penalty itself were constitutional.” But that is because the international consensus against the juvenile death penalty is much stronger, not because Europe believes juveniles “are not really responsible for their actions.” In other words, the EU’s amicus brief does not care why some states permit the adult penalty but permit the juvenile death penalty (which may well reflect a view of juvenile moral capacity); it simply cares that even those states still reject the juvenile death penalty.

To be sure, if the EU thinks the juvenile DP to be even worse, it will not be reflected in its internal policies – but it would be reflected in its external ones. An indeed, in dealing with third countries, the EU makes a fundamental distinction between the juvenile and adult death penalty. As spelled out in the EU Guidelines on the Death Penalty, Europe will provide aid and have good relations with countries that practice the death penalty, Europe’s position is that where the death penalty exists, it should always be subject to certain “minimum standards”:

Where states insist on maintaining the death penalty, the EU considers it important that the following minimum standards should be met: … iii) capital punishment may not be imposed on … Persons below 18 years of age at the time of the commission of their crime;

Eugene does not quote the EU’s minimum standards in full, and the text he does not quote complicates his argument that Europe views the juvenile death penalty as “worse” than the adult death penalty because of the “reduced decision-making capacity of juveniles.” Here is the paragraph in full, with the omitted text in bold:

Capital punishment may not be imposed on:
• Persons below 18 years of age at the time of the commission of their crime;
• Pregnant women or new mothers;
• Persons who have become insane.

The EU’s suggested ban on executing the insane clearly does reflect the idea that insane persons have a “reduced decision-making capacity.” But the ban on executing “pregnant women or new mothers” doesn’t. Their decision-making capacity is not reduced — yet the EU insists that death-penalty states not execute them, either. So which category are juveniles closest to — the insane (who should not be executed because they are not responsible for their actions) or pregnant women and new mothers (who shouldn’t be executed because it’s inherently wrong to execute them)? There is no way of knowing from the EU’s Guidelines on the Death Penalty — which means that the Guidelines don’t support Eugene’s argument that Europe views the juvenile death penalty as worse than the adult death penalty because “minors are not really responsible for their actions.”

Let me add another point of Belgian inconsistency. Allowing minors to take their lives, or have them been taken, necessarily makes assumptions about their capacity that is at odds with many liberal features of international law. International treaties, including the Rome Statute of the ICC, make the recruitment of child soldiers a crime, and European countries have been active in promoting the expansion of these norms.

Being a child soldier (under 15) is not a crime, only enlisting them. Crucially, the consent of the child, her parents or any psychologists is not a defense. Indeed, consent is presumed, as the crime covers accepting voluntary enlistees. As the Special Court for Sierra Leone put it:

The act of enlisting presupposes that the individual in question voluntarily consented to be part of the armed force or group. However, where a child under the age of 15 years is allowed to voluntarily join an armed force or group, his or her consent is not a valid defence.

But is this still a far cry from euthanasia? Not if the underlying issue is one of capacity to make life-imperiling decisions. And it is important to point out 15 year old may join armed conflict in when the defeat of their side would lead to the massacre or oppression of them and their families and the destruction of their way of life. Yet international law still prohibits their recruitment. This does not mean it can never be rational for a child to join armed forces, but rather that we make a categorical judgement that even if it is sometimes rational, they lack the judgement to make decisions that imperil their lives.

The emphasis is mine — because I think Eugene’s argument actually proves my point, not his. Eugene’s claim is that the prohibition on the recruitment of child soldiers, which European states have enthusiastically supported, reflects Europe’s view that juveniles have a “reduced decision-making capacity.” But the bolded text, which I completely agree with, indicates that, on the contrary, international law prohibits the recruitment of child soldiers because it is wrong to let juveniles engage in combat, even if they are capable of making a rational decision to do so. Differently put, international law presumes that child soldiers consent to recruitment because recruiting child soldiers is wrong even when consensual, not because juveniles can never rationally decide to become child soldiers.

The bottom line is this: there is nothing inconsistent about Belgium’s legalizing juvenile euthanasia while rejecting the juvenile death penalty and opposing the recruitment of child soldiers. Belgium simply believes that executing juveniles and recruiting child soldiers is inherently wrong, while permitting terminally ill children to make an informed decision to end their own lives is not. Those are normative positions, and Eugene is free to think they are unwise. But they are not based on an inconsistent view of whether juveniles are responsible for their actions.

Eugene Kontorovich’s Problematic Attack on Roper v. Simmons

by Kevin Jon Heller

I’m currently in Belgium, teaching an intensive course on international criminal law at Katholieke University Leuven. So I was struck by Eugene Kontorovich’s most recent post at the Volokh Conspiracy, in which he uses a new Belgian law permitting euthanasia for minors to criticize the Supreme Court’s abolition of the juvenile death penalty in Roper v. Simmons. Here is the crux of his argument (emphasis mine):

Aside from its inherent significance, Belgium’s move requires us to revisit Roper v. Simmons, the 2005 Supreme Court case that ruled it inherently unconstitutional to apply the death penalty to anyone under 18. European nations had long waged a moral campaign against America’s allowance of the death penalty for 16-18 year olds, which they called barbaric and savage. After all, minors are not really responsible for their actions. America was labelled a human rights violator, an international outlier.

Finally, in Roper, the Court caved in to this pressure. Indeed, it cited the European position as support for its conclusion – other countries do not allow for such a thing.

Why can a 17 year-old rapist-murderer not face capital punishment? Because, as Justice Kennedy wrote in a 5-4 decision, science has shown that minors, even 17-year-olds, are too immature to truly understand the consequences of their decisions, or the meaning of life and death. Juveniles are prone to “impetuous and ill-considered actions” that they should not be made to lose their life for, even if the action involved taking the life of another.” Moreover, juveniles are susceptible to peer pressure, Kennedy wrote. (Of course, one of the concerns in allowing euthanasia is external pressure from doctors, parents and others.)

Yet now we see Belgium thinks kids are responsible enough; the Netherlands similarly allows euthanasia as young as 12. These countries may be the way of the future, as they have been in other areas of progressive mores. Roper misread their belief system. It is not one of paternalistic concern for youth.

Eugene does not provide a link for his assertion that Europe opposes the juvenile death penalty because “minors are not really responsible for their actions.” But I don’t think that’s surprising, because Europe’s opposition to the juvenile death penalty is not based on that idea. Europe has abolished the juvenile death penalty because it rejects the very idea of the death penalty itself, not because it believe minors are not responsible for their actions. After all, no European state other than Belarus permits the death penalty for anyoneIt is thus irrelevant for Roper‘s purposes that Belgium and the Netherlands believe that minors are capable of making an informed decision to end their own lives; that in no way undermines their opposition to the juvenile death penalty. To sustain Eugene’s argument, he would have to identify a state that (1) permits the death penalty for adults while prohibiting it for juveniles on the ground that juveniles, unlike adults, are not responsible for their actions, but (2) allows juveniles to take their own lives on the ground that they are capable of making an informed decision to do so. Belgium and the Netherlands don’t qualify.

It’s also worth noting that, in his zeal to level a “gotcha” at Roper, Eugene misstates Belgian criminal law. Here is what he says about Belgium’s rejection of the juvenile death penalty (emphasis mine):

It is not one of paternalistic concern for youth. Rather, a system that permits the euthanasia of innocent 12 year-olds but not the punishment of guilty 17-year-olds is one that exalts autonomy without culpability.

Of course, with the juvenile death penalty, only a small fraction of minors who committed capital crimes would be sentenced to death. On a case by case basis, hosts of psychologists, jurors, and judges would have to be convinced that the particular defendant truly knew what they were doing.

So it comes out that the juveniles cannot really make accountable decisions when it comes to killing people, unless it is themselves. Or to put it differently, Belgium will not hold children responsible when they hurt others, but gives them free license to hurt themselves. Perversely, in Belgium, the youths who are considered grown up enough to be euthanized have not done anything wrong at all, unlike Simmons, who tied up his victim and thew him off a bridge.

This is simply false. Belgium most certainly holds juveniles criminally responsible for their actions — it simply doesn’t permit executing them. In Belgium, children between the ages of 12 and 15 can be prosecuted in juvenile court and imprisoned until they are 20. And children who are 16 and 17 — the latter being the age that Eugene singles out — can be prosecuted for murder in the Court of Assize and sentenced to a maximum of 30 years in adult prison. Eugene may think a 30-year sentence for a 17-year-old who commits murder is too lenient, but he cannot seriously contend that Belgian criminal law does not permit “the punishment of guilty 17-year-olds,” that it is based on the idea that “juveniles cannot really make accountable decisions when it comes to killing people,” or that it “will not hold children responsible when they hurt others.”

I often agree with Eugene on issues other than Israel (piracy and universal jurisdiction in particular). But his attempt to use Belgian criminal law to attack Roper is fatally flawed.

When Acquittal Is Small Consolation…

by Kevin Jon Heller

Although the ICTY’s recent high-profile acquittals have been getting all the attention, it’s worth noting that the ICTR Appeals Chamber has just acquitted two high-ranking defendants, Augustin Ndindiliyimana, the former chief of staff of the Rwandan paramilitary police, and François-Xavier Nzuwonemeye, the former commander of a military reconnaissance battalion, on the ground that the Trial Chamber erred in concluding that they had effective control over gendarmes suspected of participating in the 1994 genocide. The acquittals are obviously notable in themselves, but what’s particularly striking — and more than a little disturbing — is that Gen. Ndindiliyimana was originally sentenced to time served because he had spent 11 years in pre-trial detention:

Mr. Ndindiliyimana, who was arrested in Belgium in 2000, was convicted in 2011 of genocide, extermination as a crime against humanity and murder, and he was sentenced to 11 years. He was freed after time served.

Eleven years in pre-trial detention at an international tribunal is simply unacceptable. And Ndindiliyimana’s acquittal on all charges after 11 years in pre-trial detention simply adds insult to injury. All in all, a bad day for the ICTR’s reputation.

Vasiliev on the Relationship Between Perisic and Sainovic

by Kevin Jon Heller

Sergey Vasiliev, an excellent young ICL scholar, has posted at the Center for International Criminal Justice a superb — and very long — analysis of the relationship between Perisic and Sainovic entitled “Consistency of Jurisprudence, Finality of Acquittals, and Ne Bis in Idem.” I agree with almost everything Sergey says, although I don’t think we should consider the Perisic AC’s adoption of the specific-direction requirement to be “clear error” (a basic requirement of any argument that the Appeals Chamber should reconsider the judgment) simply because the Sainovic AC says that it was. As Bill Schabas notes in his recent post, the legal issue can hardly be considered settled by Sainovic, given that the judgment was not unanimous, was decided by different appeals judges and the two dissenters (on the specific-direction point) in Perisic, and included a judge who was inexplicably in the majority in both Perisic and Sainovic. I also find it odd that Sergey doesn’t like my claim that the OTP’s motion for reconsideration belongs in the dustbin, given that he unequivocally rejects — on ne bis in idem and human-rights grounds — the idea that the OTP should be given what it wants: namely, Perisic’s acquittal overturned and a conviction entered.

But those are minor points. The post is must-read for anyone interested in the specific-direction requirement or the sudden implosion of the ICTY’s Appeals Chamber.

Schabas on the OTP’s Attempt to Reconsider Perisic

by Kevin Jon Heller

It’s an excellent post, well worth reading in its entirety. I just want to flag two particularly important points. The first concerns whether, in light of Šainović, Perišić can really be considered fundamentally flawed. Schabas compellingly argues no:

But the Prosecutor is not claiming that any ‘new fact’ has been discovered. Rather, the Prosecutor is arguing that the law has changed as a result of the legal basis of the acquittal of Perišić being ‘unequivocally overturned’. But was it?

First, there was a dissenting opinion in Šainović. Under the circumstances, the word ‘unequivocal’ is probably not appropriate. Second, Judge Ramaroson, who sat in both Perišić and Šainović agreed with the majority judgment in both cases. I would not use the word ‘unequivocal’ to describe such a strange situation. Judge Ramaroson might have enlightened us with a separate opinion to explain the change of heart. Third, the Appeals Chamber cannot ‘overturn’ the Appeals Chamber. It may seem paradoxical, but by refusing to follow the finding in Perišić the judges in Šainović may inadvertently have undermined the authority of their own judgment. Who is to say that yet another five-judge panel of the Appeals Chamber will not ‘overturn’ Šainović, perhaps restoring Perišić or possibily setting out a third vision of aiding and abetting? It seems more accurate to describe what has happened is that four judges of the Appeals Chamber disagree with four other judges of the Appeals Chamber (really, three judges, because one of them disagrees with herself).

The second point concerns the human-rights implications of “reconsidering” Perišić’s acquittal 11 months after it became final. I considered mentioning the issue in my previous post, but ultimately didn’t. Here is what Schabas says:

The real problem with the Prosecutor’s motion concerns the rights of the accused. According to article 14(7) of the International Covenant on Civil and Political Rights, ‘No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.’ The same rule is formulated slightly differently in article 4 of Protocol No. 7 to the European Convention on Human Rights:

1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of the State.

2. The provisions of the preceding paragraph shall not prevent the re-opening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

3. No derogation from this Article shall be made under Article 15 of the Convention.

Can the Prosecutor argue that when Perišić was acquitted by the Appeals Chamber there was ‘a fundamental defect in the proceedings’? There is not much in the way of judicial interpretation on this expression. Recently a Chamber of the European Court of Human Rights held that there was such a ‘fundamental defect’ where an acquittal was based upon an amnesty (Marguš v. Croatia, no. 4455/10, § 74, 13 November 2012). The case is currently pending before the Grand Chamber. But four judges disagreeing with four judges cannot be described as a ‘fundamental defect in the proceedings’.

The rule against double jeopardy (ne bis in idem) is part of a larger norm known by the term res judicata. It is almost certainly a general principle of law in the sense this expression is employed by article 38 of the Statute of the International Court of Justice. There is something profoundly troublesome about reconsideration of a final acquittal because a new judicial finding concerning legal interpretation is at variance with an earlier one.

I have nothing to add to Schabas’s points. I completely agree with them. We can only hope, for the sake of the ICTY’s legitimacy, that the Appeals Chamber does as well.