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Africa

Huge Win in the Zimbabwe Torture Docket Case

by Kevin Jon Heller

Earlier this year, Chris Gevers blogged about the Zimbabwe Torture Docket case, in which the Constitutional Court of South Africa was asked to determine whether the South African Police Service (SAPS) is required to investigate allegations that high-ranking government and security officials in Zimbabwe committed acts of torture. Those acts took place solely in Zimbabwe and involved only Zimbabweans, so the key issues in the case were (1) whether South Africa’s adoption of universal jurisdiction over torture obligated SAPS to investigate the torture, and (2) if so, what conditions, if any, qualified that obligation.

As Chris noted in his post, I and three other international criminal law scholars (Gerhard Kemp, John Dugard, and Hannah Woolaver, with Hannah doing most of the heavy lifting) filed an amicus brief with the Court addressing the question of whether anything in international law prohibits a state from opening a universal-jurisdiction investigation in absentia — without the presence of the suspect. That was a critical sub-issue in the case, because although the Zimbabwean suspects travel regularly to South Africa, they would not necessarily be present at the beginning of a SAPS investigation.

The Court released its decision today — and it’s a complete win for the amici and (far more importantly) for the excellent Southern Africa Litigation Centre (SALC), which brought the case. First, with regard to the in absentia issue, the Court agreed with amici that international law did not prohibit universal-jurisdiction investigations in absentia (p. 27). I won’t rehash the Court’s analysis, but I do want to quote the Court’s excellent explanation of why states should be allowed to conduct such investigations (p. 28):

[48] This approach is to be followed for several valid reasons. Requiring presence for an investigation would render nugatory the object of combating crimes against humanity. If a suspect were to enter and remain briefly in the territory of a state party, without a certain level of prior investigation, it would not be practicable to initiate  charges and prosecution. An anticipatory investigation does not violate fair trial rights of the suspect or accused person. A determination of presence or anticipated presence requires an investigation in the first instance. Ascertaining a current or anticipated location of a suspect could not occur otherwise. Furthermore, any possible next step that could arise as a result of an investigation, such as a prosecution or an extradition request, requires an assessment of information which can only be attained through an investigation. By way of example, it is only once a docket has been completed and handed to a prosecutor that there can be an assessment as to whether or not to prosecute.

The Court then proceeded to hold that SAPS not only had the right to open a universal-jurisdiction investigation into torture in Zimbabwe, it had an obligation to do so — a remarkable position for the Court to take…

Guest Post: Kenyatta (Finally) Has to Go Back to The Hague

by Abel Knottnerus

[Abel S. Knottnerus is a PhD Researcher in International Law and International Relations at the University of Groningen.]

The case against Kenyan President Uhuru Kenyatta has reached a critical juncture. Almost six months ago, Trial Chamber V(B) adjourned the commencement of his trial until 7 October “for the specific purpose of providing an opportunity for compliance by the Kenyan Government with outstanding cooperation requests” (para. 2). Three weeks ago, however, the Prosecution submitted that the start of Kenyatta’s trial should again be adjourned, because the Kenyan government would still not have fulfilled its cooperation requirements. In response, the Chamber decided on 19 September that it will hold two status conferences on 7 and 8 October to discuss “the status of cooperation between the Prosecution and the Kenyan government” (para. 11).

These conferences will determine the future, if any, of Kenyatta’s trial. Yet, before this ‘do-or-die’ moment, the Chamber first had to decide on another sensitive matter, namely whether Kenyatta would have to be physically present in The Hague for the second of the two status conferences. On Tuesday, the Chamber ruled, by Majority (Judge Ozaki partially dissenting), that Kenyatta indeed has to travel to The Hague. Assuming that Kenyatta will not disobey this direct order, this will be the first time that a sitting Head of State will appear before the ICC.

Kenyatta’s excusal request and the Prosecution’s response

In the initial decision announcing the status conferences, the Trial Chamber stated that “given the critical juncture of the proceedings and the matters to be considered, the accused is required to be present at the status conference on 8 October” (para. 12). Despite this clear language, Kenyatta’s defence requested the Chamber last Thursday to excuse Kenyatta from attending. Based on Rule 134quater of the Rules of Procedure and Evidence the defence argued that Kenyatta has to fulfil extraordinary public duties at the highest national level on the scheduled date, because he is due to attend the Northern Corridor Infrastructure Summit in Kampala, Uganda. The defence added that this meeting was arranged prior to the Chamber’s decision to convene the status conference and that Kenyatta would therefore also not be able to attend by video-link.

In the alternative, the defence requested to reschedule the status conference and that on this new date Kenyatta would be allowed to be present through video-link in accordance with Rule 134bis. Instead of travelling to The Hague, a ‘skype session’ would enable Kenyatta “to perform his extraordinary public duties as President of Kenya to the greatest extent possible while causing the least inconvenience to the Court” (para. 13).

In response to the defence’s request, the Prosecution submitted on Monday that Rules 134bis and quater are not applicable at this stage of the proceedings because Kenyatta’s trial has not yet commenced. According to the Prosecution, the Trial Chamber would have the (inherent) discretion to reschedule the status conference as well as to permit Kenyatta to attend by video-link. While not opposing the former option, the Prosecution as well as the Legal Representative for Victims (LRV) argued that the defence had given no clear reasons for attendance by video-link on a later date, other than the distance that the accused would have to travel and his status as Head of State.

The (in)applicability of Rules 134quater and bis

(more…)

It’s Time to Reconsider the Al-Senussi Case. (But How?)

by Kevin Jon Heller

As readers are no doubt aware, Libya has descended into absolute chaos. As of now, there is quite literally no functioning central government:

Libya’s newly elected parliament has reappointed Abdullah al-Thinni as prime minister, asking him to form a “crisis government” within two weeks even as the authorities acknowledged they had lost control of “most” government buildings in Tripoli.

Senior officials and the parliament, known as the Council of Representatives, were forced last month to relocate from the capital to Tubruq in eastern Libya after fighting broke out between the Dawn of Libya coalition, led by brigades from the city of Misurata, and rival militias based at the city’s international airport.

Since then the airport has fallen to the Islamist-affiliated coalition and Tripoli appears to have slipped almost completely out of the government’s grip.

Mr Thinni’s administration said in a statement posted on its Facebook page late on Sunday night that it had lost control of Tripoli and that its officials had been unable to access their offices, which had been occupied by opposition militias.

“We announce that most ministries, state agencies and institutions in Tripoli are out of our control,” said the government. Some state buildings had been occupied by armed groups and staff, including ministers and undersecretaries, had been threatened and prevented from entering, it said.

“It has become difficult for them to go to their offices without facing either arrest or assassination, especially after several armed formations announced threats against them, attacked their homes and terrorised their families,” the statement added.

The collapse of the Libyan government comes less than five weeks after the ICC Appeals Chamber unanimously decided that the case against Abdullah al-Senussi was inadmissible. In its view at the time — to quote the summary of the admissibility decision — “the case against Mr Al-Senussi is being investigated by Libya and… Libya is not unwilling or unable genuinely to carry out the investigation.”

Whatever the merits of the Appeals Chamber’s decision at the time — and they’re limited — the situation on the ground in Libya has obviously rendered it obsolete. It is now impossible to argue that the Libyan government is “able” to effectively prosecute al-Senussi, no matter how willing it might be. The Court thus needs to reconsider the admissibility of his case sooner rather than later.

Fortunately, the drafters of the Rome Statute anticipated just such a situation. Art. 19(10) specifically provides that  “[i]f the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a review of the decision when he or she is fully satisfied that new facts have arisen which negate the basis on which the case had previously been found inadmissible under article 17.” The OTP should submit such a request as soon as possible; whatever hesitation it once had about forcefully asserting the admissibility of the case, there is now no possible justification for not trying to take control of it.

But what about al-Senussi? Can he challenge the inadmissibility decision? It’s a very complicated issue — but I think the best answer, regrettably, is that he cannot…

The Man Who Would Be King, Daddy’s Little Princess, and their Territorial Claim

by Chris Borgen

There are many dads who have played make-believe with their little girls, perhaps taking the part of kindly king to his daughter’s princess.  Not many people have turned this game into an international legal incident concerning state formation.  But  at least one man has. According to the Washington Post:

Jeremiah Heaton was playing with his daughter in their Abingdon, Va., home last winter when she asked whether she could be a real princess.

Heaton, a father of three who works in the mining industry, didn’t want to make any false promises to Emily, then 6, who was “big on being a princess.” But he still said yes.

“As a parent you sometimes go down paths you never thought you would,” Heaton said.

Within months, Heaton was journeying through the desolate southern stretches of Egypt and into an unclaimed 800-square-mile patch of arid desert. There, on June 16 — Emily’s seventh birthday — he planted a blue flag with four stars and a crown on a rocky hill. The area, a sandy expanse sitting along the Sudanese border, morphed from what locals call Bir Tawil into what Heaton and his family call the “Kingdom of North Sudan.”

There, Heaton is the self-described king and Emily is his princess.

Wow. Heaton just upped the ante for all non-royal dads. The Washington Post also reports:

Heaton says his claim over Bir Tawil is legitimate. He argues that planting the flag — which his children designed — is exactly how several other countries, including what became the United States, were historically claimed. The key difference, Heaton said, is that those historical cases of imperialism were acts of war while his was an act of love.

“I founded the nation in love for my daughter,” Heaton said.

That’s sweet. Really. But let’s turn to the international legal argument… (more…)

Why Did Katanga Drop His Appeal? And Why Did the OTP?

by Kevin Jon Heller

Many people are surprised that Germain Katanga has dropped his appeal, particularly given Judge Van den Wyngaert’s savage dissent. I’m not surprised in the least, because it locks in his sentence, which the OTP planned to appeal. Katanga’s 12-year sentence is even shorter than Lubanga’s, and he has already spent seven years in pre-trial detention. In fact, he’ll be eligible for sentence review in little more than a year.

To be sure, if Katanga thought he had a good chance of overturning his conviction on appeal, I’m sure he would have rolled the dice. But I think his assessment of that likelihood was spot-on. As I’ve noted before, the verdict was a disaster for the OTP — had the Trial Chamber majority not appointed itself backup prosecutors, Katanga would have walked. And despite Judge Van den Wyngaert’s impressive dissent, the Appeals Chamber was very unlikely to disapprove of the Trial Chamber’s unfair use of Regulation 55. After all, the Appeals Chamber has already issued two horrible decisions affirming its applicability.

The big question in my mind is why the OTP agreed to drop its appeal, which was obviously part of a quid pro quo. Unlike Katanga, the OTP had little to lose by appealing — there is no way the Appeals Chamber would have reduced Katanga’s sentence, and for the reasons above it’s equally unlikely it would have overturned his conviction.

If any readers know — or can intelligently speculate about — the OTP’s motivations, please weigh in below.

Analysing the US Invocation of Self-Defence Re: Abu Khattallah

by Kevin Jon Heller

Most of the discussion about Abu Khattallah’s capture in Libya has focused on the operation’s basis — or lack thereof — in domestic US law. Less attention has been paid to whether international law permitted the US to use force on Libyan soil. As Marty Lederman recently noted at Just Security, Abu Khattallah’s capture can potentially be justified on two different grounds: (1) Libya consented to the capture operation; or (2) the capture operation represented a legitimate act of self-defence under the UN Charter. The first justification does not appear open to the US; the available evidence indicates that the operation was conducted without Libya’s consent. So it’s not surprising that the US has claimed — in a letter submitted to the UN by Samantha Power on June 17 — that Article 51 permitted the operation:

The investigation also determined that [Abu Khattallah] continued to plan further armed attacks against U.S. persons. The measures we have taken to capture Abu Khattallah in Libya were therefore necessary to prevent such armed attacks, and were taken in accordance with the United States’ inherent right of self-defense. We are therefore reporting these measures to the Security Council in accordance with Article 51 of the United Nations Charter.

Power’s letter obscures far more than it reveals. In fact, the US’s invocation of self-defence raises four very difficult questions:

  • Can a non-state actor launch an “armed attack” that triggers the right of self-defence?
  • If so, must that armed attack be attributable in some fashion to the state whose territory is the object of “self-defensive” force?
  • Do all uses of armed force qualify as an “armed attack” for purposes of Article 51?
  • Does the right of self-defence permit force to be used anticipatorily?

In this post, I want to put aside the first two questions. I have no doubt that a non-state actor can launch an armed attack within the meaning of Article 51, and my views on the “unwilling or unable” test are well-known. It’s worth spending some time, though, on the third and fourth questions.

The third question is interesting because it’s not clear that all uses of force qualify as “armed attacks” for purposes of Article 51. The UN Charter itself distinguishes between the “use of force” (Art. 2(4)) and “armed attack” (Art. 51), and the ICJ has suggested in both Nicaragua and Oil Platforms that at least some uses of force may be so de minimis that they do not entitle the victim state to use force in self-defence. (As opposed to taking other countermeasures.) On the other hand, customary international law seems to indicate that the threshold of force for an armed attack is extremely low. Here is Tom Ruys’ conclusion in his magisterial book “Armed Attack” and Article 51 of the UN Charter (p. 155):

In the end, customary practice suggests that, subject to the necessity and proportionality criteria, even small-scale bombings, artillery, naval or aerial attacks qualify as ‘armed attacks’ activating Article 51 UN Charter, as long as they result in, or are capable of resulting in destruction of property or loss of lives. By contrast, the firing of a single missile into some uninhabited wasteland as a mere display of force, in contravention of Article 2(4) UN Charter, would arguably not reach the gravity threshold.

In sum, the following general conclusions can be made: (1) the travaux of the Definition of Aggression suggest that a minimal gravity is indeed required and seem to rule out the aforementioned Option 3; (2) ‘concrete’ customary evidence nonetheless makes clear that the gravity threshold should not be set too high and that even small-scale attacks involving the use of (possibly) lethal force may trigger Article 51.

If Ruys is right — and he has examined state practice and opinio juris far more carefully than any other scholar writing on the use of force — the attack on the US embassy in Benghazi almost certainly was, in fact, an “armed attack” for purposes of Art. 51.

What, then, about the fourth question? Here is where the US claim of self-defence regarding the Abu Khattallah operation becomes problematic. The US clearly cannot use the original Benghazi armed attack to justify the operation — although a state’s response to an armed attack may not have to be immediate, the prohibition on armed force in Art. 2(4) of the UN Charter would be meaningless if a state could “pocket” an armed attack and respond to it with armed force much later — nearly two years later, in the case of Benghazi. Indeed, Power seems to acknowledge as much when she emphasises that Abu Khattallah was planning further armed attacks. Does that planning mean the capture operation was a legitimate act of self-defence by the US?

Answering that question, of course, requires us to address the temporal limits of self-defence under Art. 51. Three basic positions on that issue are possible:

  • Self-defence permits the use of force only in response to an armed attack; force cannot be used pre-emptively or preventively (“responsive self-defence”)
  • Self-defence permits the use of force to pre-empt an imminent armed attack but not to prevent a temporally more remote armed attack (“pre-emptive self-defence”)
  • Self-defence permits the use of force to prevent even a temporally remote armed attack (“preventive self-defence”)

Unfortunately, because of the US’s typical lack of transparency concerning its use of force, Power’s letter says nothing about the time-frame of the armed attacks Abu Khattallah was supposedly planning. (Nor does it provide any evidence of that planning, but that’s another question.) The time-frame doesn’t matter, however, if responsive self-defence is the correct position — as noted, the capture operation cannot be justified as a response to the original Benghazi attack.

Most readers — at least those in the West — will no doubt be inclined to reject responsive self-defence as too narrow, even though it is the only position consistent with the text of Article 51, which permits self-defence “if an armed attack occurs.” Surely customary international law does not require a state to wait until an armed attack has already taken place to defend itself, no matter what the UN Charter says.

This issue is much more difficult issue than it may appear. Those interested should read the relevant section of Ruys’ book; I’ll just quote his bottom line (pp. 341-42):

In light of the available evidence, it can be concluded that there has indeed been a shift in States’ opinio iuris insofar as support for pre-emptive self-defence, fairly rare and muted prior to 2001, has become more widespread and explicit in recent years. At the same time, it seems a bridge too far to claim that there exists today widespread acceptance of the legality of self-defence against so-called “imminent” threats. Such assertion tends to forego the opposition of a considerable group of mainly Latin-American, north-African and Asian States. In the present author’s view, it would therefore be more appropriate to argue that the crack in opinio iuris among States has widened, without, however, identifying one approach or the other as the majority view. The implication is that, taking account of the Charter “baseline” and the absence of a concrete precedent in State practice which convincingly demonstrates the international community’s support for some form of anticipatory self-defence, it is impossible to identify de lege lata a general right of pre- emptive – and a fortiori preventive – self-defence.

Ruys’ reference to the UN Charter’s “baseline” is important, because Art. 51’s adoption of responsive self-defence indicates that states who support a more relaxed concept of self-defence, such as the US, have the obligation to find sufficient state practice and opinio juris to establish a broader rule. And such state practice and opinio juris is simply lacking — unless, as is too often the case with custom, we simply ignore the views of the Global South.

Even if responsive self-defence is too narrow, however, that does not mean the Abu Khattallah operation was a legitimate act of self-defence. If the US had evidence that Abu Khattallah was about to launch another armed attack, it is reasonable to assume Powers would have said so in her letter. That she failed to do so thus seems to indicate — though is clearly not dispositive — that the US did not believe another armed attack was imminent when it launched the capture operation. Power’s letter may well indicate, therefore, that the US is promoting the broadest understanding of self-defence possible — preventive self-defence instead of pre-emptive self-defence. If so, as Ruys notes (pp. 336-38), the US is on shaky ground indeed:

[T]here can be no doubt that even among States adhering to the “counter-restrictionist” view, support for self-defence against non-imminent threats is virtually non-existent. Apart from the fact that the sponsors of Operation “Iraqi Freedom” avoided this justification, it may be observed that many States, such as Germany, Japan, Switzerland, Uganda, Singapore or Liechtenstein, which professed support for anticipatory self-defence after 2002, nonetheless placed great weight on the imminence requirement. Germany, for instance, expressly denounced an erosion of the Charter framework and State practice via the notion of “preventive self-defence.” Likewise, the French politique de defense unequivocally “rejects… the notion of preventive self-defence.”

What is more, even the “traditional” adherents of the counter-restrictionist interpretation of Article 51 generally appear to uphold the imminence requirement. Despite bold statements by its Prime Minister on the need to adapt the UN Charter, Australia’s response to “In Larger Freedom” was rather cautious: it simply “[supported] reaffirmation by the Secretary-General that Article 51 of the Charter adequately covers the inherent right to self-defence against actual and imminent attack.” Israel called for an explicit recognition in the World Summit Outcome that States may use force in self-defence “in the event of both actual and imminent attacks.” As far as the British position is concerned, Attorney- General Lord Goldsmith in 2004 declared before the House of Lords that: “It is… the Government’s view that international law permits the use of force in self-defence against an imminent attack but does not authorize the use of force to mount a pre-emptive strike against a threat that is more remote.”…

[W]e may therefore conclude that the trend in State practice has been broadly similar to that in legal doctrine: support for anticipatory self-defence has increased, but has by and large restricted this concept to imminent threats.

Again, in the absence of additional information, we cannot categorically reject the US’s insistence that the Abu Khattallah operation was a legitimate act of self-defence. But there is considerable reason to be skeptical. Indeed, the US’s lack of transparency concerning its understanding of Art. 51 of the UN Charter may well indicate it has adopted a position that even its closest allies formally disavow.

Bensouda Accuses UNAMID of Covering Up Sudanese Crimes

by Kevin Jon Heller

I’m not sure how I missed this, but these are very strong — and atypically blunt — allegations by Fatou Bensouda:

The International Criminal Court (ICC) prosecutor Fatou Bensouda urged the United Nations Security Council (UNSC) to investigate reports that the UN peacekeeping force in Darfur (UNAMID) deliberately contributed in covering up crimes in the restive region.

In reference to US-based Foreign Policy (FP) magazine reports, Bensouda asked the council to authorize a “thorough, independent and public inquiry” probe into allegations that UNAMID being subject to “manipulation” through acts committed “with the intentional effect of covering up crimes committed against civilians and peacekeepers”.

FP obtained confidential internal UN memos from UNAMID ex-spokesperson Aicha ElBasri that asserts how the UN peacekeeping force suppressed negative information on violations that occurred in Darfur by Sudanese government and other parties.

The ICC prosecutor said that the responsibility for the “cover-up” may lie “with a handful of individuals” but warned that it undermines the credibility of the peacekeeping mission.

Africa Review adds some additional detail to ElBasri’s disturbing allegations:

Last April, former Unamid spokeswoman Aicha Elbasri, revealed that the unit had misinformed the UN by withholding important details about Darfur.

Unamid has observed the government forces indiscriminately bombing entire villages, targeting civilian and military targets alike. However, these observations are never publically reported in the regular updates by the UN Secretary General to the UNSC,” Ms Elbasri claimed.

She reported that the UN peacekeeping mission did not tell the world that the Khartoum government failed to disarm the Janjaweed militias; that it, conversely, reintegrated them into paramilitary forces under new names, and let them continue committing their widespread, systematic attacks directed against the civilian population in Darfur.

The UNAMID situation obviously requires a UN investigation, so it’s encouraging to see that Bensouda request was quickly supported by both Australia and Rwanda. The UK’s statement, however, is disappointingly tentative, suggesting that the Secretariat — and not the Security Council — should investigate. Given the seriousness of the allegations, that’s simply not good enough.

Charles Taylor Requests Transfer to Rwanda

by Kevin Jon Heller

Full disclosure: Taylor is represented by John Jones QC, who is my colleague at Doughty Street Chambers.

Charles Taylor has filed a disturbing motion with the Special Court for Sierra Leone’s Residual Mechanism, requesting that he be transferred from prison in the UK to a prison in Rwanda because of his mistreatment by the British government. Here are the key paragraphs from the motion’s introduction:

Charles Taylor is the first and only person sent by an international court to serve their sentence, against their wish, outside of their continent of origin. This previously invariable practice accords with a basic requirement of humane treatment: that prisoners should be able to receive periodic visits from their families. International human rights standards, including as recently affirmed by the European Court of Human Rights (“ECtHR”) in Khodorkovskiy, prohibit sending a prisoner unnecessarily for away from the habitual residence of family members, or otherwise creating obstacles that prevent periodic visits.

That is precisely the consequence of Mr. Taylor’s detention in the United Kingdom (“UK”). The extraordinary cost and difficulty of travel for Liberian citizens to the UK, given the financial circumstances of Mr. Taylor’s family, means that Mr. Taylor will seldom, if ever, see his wife and three young daughters, let alone the rest of his family, again. That deprivation will continue, given the length of Mr. Taylor’s sentence, for the remainder of his life unless significant measures are taken to facilitate those visits. The UK has, to the contrary, obstructed such visits. Visa requests by Mr. Taylor’s wife and two of his young daughters have been denied even though the UK was well aware of the purpose of the requested visit. Mr. Taylor has not seen his wife and children since being transferred to the UK eight months ago. This already constitutes a human rights violation: the ECtHR has specifically held that even shorter periods of deprivation of family contact constitute a violation of the right to family life.

Even if these legal impediments were to be surmounted, neither the UK nor the RSCSL has demonstrated any willingness to overcome the inherent difficulties and cost of travel to the UK so as to permit family visits of even a minimally acceptable frequency. The United Kingdom and the RSCSL are jointly and severally responsible for the violation of not only Mr. Taylor’s right to family life, but that of his family members. An immediate remedy is required to put an end to this ongoing violation, and a remedy is readily available to the RSCSL: terminate his enforcement in the UK and transfer Mr. Taylor to Rwanda.

Mr. Taylor’s isolation is exacerbated by the conditions in which he is, and must be, held in the UK. Mr. Taylor has been confined to the prison’s hospital wing, effectively in isolation, since his arrival there. The prison authorities believe, correctly, that Mr. Taylor is too much of a target and too vulnerable to be accommodated within the general prison population. The seriousness of the danger is underscored by the interception of an anonymous letter, possibly originating from within the prison itself, threatening Mr. Taylor with bodily harm and death. Radislav Krstić, whose crimes were less notorious than those for which Mr. Taylor has been found responsible, suffered a near-fatal attack by fellow inmates in a UK prison in 2010. The ICTY was apparently sufficiently concerned about the UK’s ability to ensure adequate conditions of detention for Mr. Krstić that he was transferred back to The Hague. The RSCSL should be equally concerned about the real threat faced by Mr. Taylor, and the unsuitability of a UK prison to ensure that he is kept in a situation that meets the minimum standards required by international law.

The RSCSL should accordingly exercise its authority pursuant to Article 9(2) of the Enforcement of Sentences Agreement between the Court and the UK on 10 July 2007 (“SCSL-UK Enforcement Agreement”) and immediately terminate the enforcement of Mr. Taylor’s sentence, and order that he be transferred directly to Rwanda or, in the alternative, to The Hague pending further deliberations. Rwanda is a location that will permit reasonably frequent family visits and provide Mr. Taylor with a safe environment without being segregated from all other prisoners.

The motion’s allegations, which are supported by hundreds of pages of annexes, are profoundly unsettling. I’d like to say I’m surprised that I haven’t heard more about Taylor’s situation, but I’m not: the media generally pay attention only to individuals accused of international crimes, producing article after article about the allegedly cushy conditions in the UN Detention Unit — the so-called “Hague Hilton.” Once defendants are convicted, journalists seem to lose interest in them. I hope this new motion will spur more coverage of post-conviction detention, which is anything but cushy even in places as “advanced” as the UK — as Taylor’s situation demonstrates.

It will be interesting to see if the SCSL takes the motion seriously. It should.

Washington University Law Professor Sworn in as Malawi’s President

by Julian Ku

So, Professor of Law, what are you going to do after you retire from your tenured post teaching and finish writing all the articles and books you want to write? Well, I guess I’ll become President (of Malawi)!

On Saturday, [Peter] Mutharika, now 74, a soft-spoken professor with a proper English-educated accent and who smoked a pipe while he taught in the 1970s, shocked many of his former colleagues and students when he was officially named the southeastern African country’s president after a tumultuous election that took more than a week to resolve.

It was an ascent to power just three years after his formal retirement from Washington University.

Congrats to Professor (er, I mean President) Mutharika!   It is not very often that a professor of international commercial law and contracts becomes a head of state.  It sounds like there are many serious obstacles facing him (and only a few of those are related to his background as a U.S. law professor), but I am sure all of us in the U.S. law academy wish him the best!

Guest Post: the Zimbabwe Torture Docket Case

by Christopher Gevers

[Christopher Gevers is a lecturer at the School of Law at the University of KwaZulu-Natal. Disclaimer: Christopher advised the Southern Africa Litigation Centre and the Zimbabwe Exiles Forum (the Applicants) on the international legal aspects of the case and assisted in the drafting of their written submissions. Twitter: @ChrisGevers]

On May 19, South Africa’s Constitutional Court heard a landmark universal jurisdiction case involving alleged crimes against humanity committed in Zimbabwe in 2007. The so-called ‘Zimbabwe Torture Docket’ case involves an administrative review application brought by two civil society organisations against the South African government’s decision not to open an investigation into the alleged crimes under the country’s Rome Statute Act.

The genesis of the case was a docket hand-delivered by the Southern Africa Litigation Centre (SALC) to the Priority Crimes Litigation Unit of the National Proseuting Authority (NPA) on 14 March 2008. The docket contained evidence of acts of torture committed in Zimbabwe following a raid on Harvest House – the headquarters of the opposition Movement for Democratic Change – on 28 March 2007. The docket further alleged that the torture was systematic and took place as part of an attack against the civilian population, pursuant to a State policy: elevating it to the level of crimes against humanity. The docket named senior security and government officials that it alleged bore individual criminal responsibility for these crimes under the doctrine of command responsibility. According to the docket, these individuals frequented South Africa regularly on both official and personal business. On this basis SALC requested the authorities investigate, and if necessary prosecute, these crimes under section 4 of the Rome Statute Act on the basis of universal jurisdiction.

On 19 June 2009 – fifteen months after recieving the docket – the NPA wrote to SALC advising it that, after consultation with the Police, it did not intend to pursue the matter, citing various reasons. In December 2009 SALC launched a legal challenge in the North Gauteng High Court to the decision of the NPA and the Police not to pursue the matter on the basis that it was irregular and unlawful under South Africa’s administrative justice principles and contrary to the rule of law (see here and here for further background). SALC was joined by a second Applicant: the Zimbabwe Exiles Forum.

The Applicants were successful in the High Court, and succesfully defended that decision in the Supreme Court of Appeal (SCA) (for a detailed discussion of these decisions see here and here). In the most recent decision the SCA found that (i) the Police were empowered to investigate the alleged offences irrespective ofwhether or not the alleged perpetrators are present in South Africa, and (ii) in this matter the Police were required  to initiate an investigation under the Rome Statute Act into the alleged offences.

This week’s case involves an appeal by the Police against the SCA’s decision (the NPA elected not to appeal). The Police adopted a twin-attack on the SCA’s decision: (i) challenging the legality of the proposed investigation under international law and South African law, and (ii) challeging the order given by the SCA as both procedurally irregular and ultra vires. OJ readers will most likely be interested in the first challenge.

In the Constitutional Court the written submissions of the Parties – which include no less than seven amici curiae (including an expert brief by inter alia John Dugard and OJ’s Kevin Heller) – raise a number of interesting international and domestic legal questions regarding the exercise of universal jurisdiction. These include: the legality of so-called universal jurisdiction in absentia under international law; the limits (if any) international law places on states’ investigative powers in UJ cases; the correct interpretation of the (domestic) Rome Statute Act’s ’presence’ requirement; whether the Convention Against Torture (and its implementing legislation) is the lex specialis in this matter; the relevance of the fact that Zimbabwe is not a party to the Rome Statute; and the question of whether there is an obligation to prosecute international crimes under international law or domestic Constitutional law.

International law observers will no doubt hope that the Constitutional Court takes up the invitation to consider these arguments fully and, regardless of where it lands on the matter, render a detailed judgment with far-reaching consequences for the exercise of universal jurisdiction by national courts.

No, the Attack on the USS Cole Did Not Take Place in Armed Conflict

by Kevin Jon Heller

I argued more than three years ago that the US decision to prosecute Abd al-Rahim Abdul al-Nashiri in a military commission was illegitimate, because the attack on the USS Cole did not take place during an armed conflict. (I also pointed out that al-Nashiri was systematically tortured, including through the use of mock executions and waterboarding.) Peter Margulies takes a whack at the contrary position today at Lawfare, and the results aren’t pretty. Here, for example, is what he says about the Tadic test:

Under international law, the existence of a noninternational armed conflict depends on the intensity and duration of violence and the existence of an organized armed group (OAG) responsible for the violence. The OAG criterion is readily met: “core” Al Qaeda ordered the Cole attack and used it as a basis for recruiting more terrorists. The geographic distance between Yemen and Afghanistan is irrelevant given the centrality of Al Qaeda’s planning, which placed Osama bin Laden and Al-Nashiri in the same OAG.

The duration and hostility factors also break against Al-Nashiri. In the MCA, Congress gave military commissions jurisdiction over acts committed before September 11, recognizing that Al Qaeda’s military efforts against the US predated that event. The conduct of the US prior to the Cole bombing buttresses Congress’s finding. In August, 1998, President Clinton responded to the Al Qaeda-planned East African Embassy bombings, which killed over 250 persons, with a wave of Cruise missile strikes in Afghanistan and Sudan. That sounds pretty intense to me, although the intensity seems lost on Al-Nashiri’s advocates.

Margulies gets the NIAC test right, and he is even likely right that al-Nashiri was part of “core” al-Qaeda at the time of the attack on the USS Cole. But his discussion of the duration and intensity factors is deeply flawed. To begin with, as I have pointed out before (numerous times), the existence of a NIAC is a purely objective question, one determined by the facts on the ground, irrespective of the subjective perception of the parties to the hostilities. The MCA’s jurisdictional provisions are thus irrelevant to whether the US was involved in a NIAC with core al-Qaeda when the USS Cole was attacked.

More importantly, it is clear that no such NIAC existed at the time of the attack…

PTC II to Defence Attorneys: You Are All Criminals

by Kevin Jon Heller

I’ve been remiss in my blogging lately for a variety of reasons, but I can’t let pass two interrelated decisions by Pre-Trial Chamber II (sitting as a single judge) in the criminal proceedings against Aimé Kilolo Musamba and Jean-Jacques Mangenda Kabongo — Bemba’s lead defence attorney and case manager, respectively. The two men, who are currently in custody, are accused of tampering with witnesses and manufacturing evidence.

The decisions in question concern the requests by Kilolo and Mangenda for release pending trial. To justify denying a suspect pre-trial release, the PTC must find (1) that there are reasonable grounds to believe the suspect committed the crimes alleged by the OTP, and (2) that ongoing detention is necessary for one of the reasons set forth in Art. 58(1)(b) of the Rome Statute — namely, to ensure that the suspect appears at trial, to prevent the suspect from obstructing the OTP’s investigation, or to prevent the suspect from continuing to commit crimes.

In both cases, and essentially on exactly the same grounds, the PTC found that continued detention was warranted. I’m willing to accept the PTC’s conclusion regarding the first limb of the detention test; although I’m skeptical the OTP can prove the allegations at trial for a variety of substantive and procedural reasons, a judge could find that there are reasonable grounds to believe Kilolo and Mangenda tampered with witnesses and/or manufactured evidence. But I am appalled by the PTC’s approach to the second limb of the detention test, where it concludes that Kilolo and Mangenda are both flight risks and are likely to obstruct the OTP’s investigation. The PTC’s reasoning exhibits a truly breathtaking contempt for the role that defence attorneys and case managers play at the ICC. Here is what the PTC says about Kilolo being a flight risk (and the PTC makes the same argument for Mangenda) (emphasis added):

22. Whilst acknowledging the handing over of Mr Kilolo’s passport to the authorities of the Detention Centre, the Single Judge observes that this does not detract from the risks of flight which are inherent in the very connection of Aimé Kilolo to the network of Jean-Pierre Bemba Gombo and to the ensuing likelihood that he might be made available resources enabling him to abscond from the jurisdiction of the Court. Furthermore, it is to be noted that Mr Kilolo requests to be released in Belgium, i.e. in a country within the Schengen area, where travel is to a great extent possible without the need that identity documents be shown or relied upon.

[snip]

24. The Single Judge is likewise not persuaded that Aimé Kilolo’s withdrawal from his role as lead counsel for Jean-Pierre Bemba in the Main Case entails per se the severance of all of his ties to the latter’s vast network and hence to the concrete risk that resources be made available to him for the purpose of evading justice. The fact that “depuis le 6 décembre 2013, le requérant n’a plus de contacts privilégiés avec M. Bemba” (emphasis added) does not mean that the long-established relationship between Mr Bemba and Mr Kilolo by virtue of the latter’s role as lead counsel in the Main Case has ceased to exist. Contrary to what stated by the Defence the absence of documents witnessing to the existence of a “relation personnelle” between the two cannot be considered as mitigating or otherwise affecting this conclusion. Similarly, if it is true that assets pertaining to Mr Bemba and Mr Babala have been seized by way of implementation of the Chamber’s order, such assets obviously form but a small part of the assets which are or might be made available to the network as a whole, which comprises a number of individuals by far exceeding the suspects in this case.

Notice what the PTC is claiming here: Kilolo is part of Bemba’s “network” simply because he served as Bemba’s defence attorney. Kilolo is thus “inherently” a flight risk, despite not having been convicted of any crime — presumably the presumption of innocence still applies to the pending charges — because he has access to the vast resources of Bemba’s criminal organisation. In short: Bemba’s defence attorney is no different than Bemba’s henchmen and enforcers. He just plays a different role in Bemba’s organisation.

The PTC’s argument is disturbingly reminiscent of the post-9/11 demonisation of defence attorneys in the US who had the temerity to represent individuals accused of terrorism. Marc Thiessen, for example, (in)famously claimed that “[t]he habeas lawyers were not doing their constitutional duty to defend unpopular criminal defendants. They were using the federal courts as a tool to undermine our military’s ability to keep dangerous enemy combatants off the battlefield in a time of war.” Such despicable claims led to significant pushback from both progressives and (to their credit) many conservatives — and rightfully so. Yet now we witness the unseemly spectacle of an international judge engaging in precisely the same kind of demonisation.

Nor is that all. The PTC’s explanation of why Mangenda is likely to obstruct the OTP’s investigation is just as offensive (emphasis added):

As stated by the Prosecutor, Mangenda’s former role as case manager for Jean-Pierre Bemba entails that he is likely to know the identity of most of the potential witnesses; moreover, given the precise information disclosed to him, now he is even in a better position to obstruct or endanger the investigations. As regards the fact that the Prosecutor’s investigation is close to completion, it cannot be reasonably excluded that additional action might be taken, in respect of other evidentiary items which might still be outstanding, whether in relation to the Main Case or to these proceedings, in spite of the fact that some pieces of evidence are indeed in the possession of the Court or of the relevant national authorities and as such beyond the suspects’ reach.

Is it possible to imagine greater contempt for the role — absolutely critical, as any defence attorney knows — of a case manager? Of course Mangenda will obstruct the OTP’s investigation (now the presumption of innocence is jettisoned completely); after all, what member of Bemba’s “network” would be better placed to do so than his case manager, who has access to all kinds of insider information?

Again, the PTC’s contempt for the defence function is truly shocking. Unfortunately, it seems to be a pattern at the ICC — let’s not forget how the Court essentially abandoned and apologized for Melinda Taylor when Libya imprisoned her on the basis of truly ludicrous allegations. Defence attorneys and case managers, even those accused of serious crimes, deserve better.