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A Note of Caution About the Bemba Arrests

by Kevin Jon Heller

The ICC has announced that four individuals associated with the Bemba case, including Bemba’s lead counsel and case manager, have been arrested on suspicion of witness tampering and manufacturing evidence:

On 23 and 24 November 2013, the authorities of the Netherlands, France, Belgium and the Democratic Republic of the Congo (DRC) acting pursuant to a warrant of arrest issued by Judge Cuno Tarfusser, the Single Judge of the Pre-Trial Chamber II of the International Criminal Court (ICC), arrested four persons suspected of offences against the administration of justice allegedly committed in connection with the case of The Prosecutor v. Jean-Pierre Bemba Gombo. This warrant of arrest in respect of the same charges was also served on Jean-Pierre Bemba at the ICC’s detention centre, where he has been detained since 3 July 2008.

On 20 November 2013, Judge Tarfusser issued a warrant of arrest for Jean-Pierre Bemba Gombo, his Lead Counsel Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo (a member of Mr Bemba’s defence team and case manager), Fidèle Babala Wandu (a member of the DRC Parliament and Deputy Secretary General of the Mouvement pour la Libération du Congo), and Narcisse Arido (a Defence witness).

Judge Cuno Tarfusser found that there are reasonable grounds to believe that these persons are criminally responsible for the commission of offences against the administration of justice (article 70 of the Rome Statute) by corruptly influencing witnesses before the ICC and presenting evidence that they knew to be false or forged. The suspects, it is alleged, were part of a network for the purposes of presenting false or forged documents and bribing certain persons to give false testimony in the case against Mr Bemba.

Commentators are celebrating the arrests. Mark Kersten, for example, writes that they “will likely (and hopefully) have a significant impact on the conduct of counsel – both prosecution and defence – with respect to the treatment of evidence and witnesses during trial.”

If Bemba’s lead counsel and case manager are guilty of witness tampering and manufacturing evidence, they deserve to be punished. But I’ll say this: the OTP better be right. Because if they are not — and all four arrestees are, of course, presumed innocent — the Court has deprived Bemba of his right under Art. 55(2)(c) of the Rome Statute to have “legal assistance of his choosing” and crippled his defense in the middle of trial. Lead counsel plays a critical role on a defence team, and in many ways a case manager plays an even more important role. So I have no idea what happens now with Bemba’s trial — although I suspect the Court will pretend new lawyers can simply slide into the roles previously occupied by the arrested lawyers, perhaps adjourning the trial for a month or so to give the new lawyers time to “get up to speed.”

Just curious: are the commentators celebrating the arrests willing to go on record and say that, if Bemba’s lawyers are acquitted, Bemba is entitled to a new trial when he is convicted?

Proposals for RPE 134 — and an Unsuccessful Defence of Trial By Skype

by Kevin Jon Heller

A couple of days ago, I blogged about proposals that will soon be debated at the ICC’s Assembly of States Parties (ASP) to excuse Kenyatta and Ruto from having to be physically present at trial. Colum Lynch has kindly posted the text of the two proposals, both of which would amend Rule 134 of the Rules of Procedure and Evidence (RPE). Here is the first one — which the Chair’s Compilation document does not attribute to a particular delegation, but is almost certainly Kenya’s:

4.      Notwithstanding paragraphs 1 to 3 above, if the accused is a sitting Head of State or Government, or a person entitled to act in such capacity, has prior to the commencement of the trial submitted to the jurisdiction of the Court (discussed alternative: “who is subject to a summons to appear”), appearance by such person throughout the trial may, if he or she so wishes, be by counsel, provided a notice in writing has been filed with the Court stating that the accused has explicitly waived his or her right to be present at the trial and the trial chamber is satisfied that the rights of the accused will be fully ensured in his or her absence.

There are two problems with this proposal. The primary one is that, as I explained in my previous post, it is inconsistent with Art. 63(1) of the Rome Statute, which requires the accused to be physically present at trial. Art. 51(4) of the Rome Statue provides that “[t]he Rules of Procedure and Evidence, amendments thereto, and any provisional Rule shall be consistent with this Statute,” while Art. 51(5) provides that “[i]n the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail.” Permitting the accused to be “present” at trial through his counsel, therefore, requires amending Art. 63(1), not Rule 134.

The other problem with the proposal is that it does not even purport to generally redefine the meaning of presence in Art. 63(1). Even if presence could be redefined through the RPE, there would be no justification for excusing only sitting heads of state from physical presence at trial. There is thus little doubt that the proposal is nothing more than an instrumental attempt by Kenya to get around Art. 63(1).

The second proposed amendment to Rule 134 is more interesting…

Can the ASP Permit Trial by Skype?

by Kevin Jon Heller

As Mark Kersten discusses today at Justice in Conflict, one of the reasons the Security Council rejected Kenya’s request to defer the Kenyatta and Ruto prosecutions is that it believes the issue of their presence at trial is better addressed by the Assembly of States Parties. Here is how Mark summarizes what could happen at the ASP:

At this year’s ASP, Kenya is hoping to see a number of amendments to the Rome Statute adopted. Chief among them is a change to provisions pertaining to whether an accused (and especially a Head of State) is required to be continuously present and his/her trial in The Hague. The problem for Kenya, however, is that even if a sufficient number of ICC states parties agreed to amend the Rome Statute, those changes would only come into effect after one year. Kenyatta’s trial is due to begin in early February, less than three months from now.

Consequently, Kenya will also seek amendments to Rule 134 of the ICC’s Rules of Procedure and Evidence. In particular, the ASP will examine proposed amendments to sections pertaining to the ‘presence’ of defendants during their trial. In plain language, proposals will be made to amend this rule in order to: 1) allow a defendant to be ‘present’ during trial via “video technology” and 2) allow a defendant to be personally excused at trial but be ‘present’ during trial via his/her counsel. There is every indication that other member-states, as well as the Obama administration, are inclined to support these amendments. Crucially, and unlike the proposed changes to the Rome Statute itself, if these amendments are passed by a two-thirds majority of states parties at the ASP, they would take effect immediately. An ICC trial by Skype is emerging as a real possibility.

Mark argues that “The ASP faces two key hurdles: first, any amendments have to be consistent with the Rome Statute and, second, any amendment will have to jive with previous Appeal Chamber decisions.” I don’t think the second issue is particularly important: if the ASP amends the Rome Statute or the RPE, that amendment would presumably trump any judicial interpretation of the provision’s previous incarnation.

The first issue, however, is critical — and I don’t see how the ASP can get around the amendment provisions in the Rome Statute by amending RPE 134 instead of Art. 63(1) itself. Rule 134 says nothing about the defendant’s presence at trial; it simply establishes the procedures governing motions relating to trial proceedings. More importantly, as Mark notes, the RPE are subordinate to the Rome Statute — and Art. 63(1) specifically provides that “[t]he defendant shall be present at trial.” There is no question that “presence” in Art. 63(1) refers to physical presence; after all, Art. 63(2) provides that “[i]f the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused.” Presence also means physical presence throughout the RPE, as indicated by, inter alia, Rules 122, 123, and 124 (concerning the defendant’s presence at the confirmation hearing.)

Given the clear meaning of Art. 63(1), I don’t think the ASP can excuse Kenyatta and Ruto from being physically present at trial by redefining presence in the RPE. Indeed, I think it would be disingenuous for the ASP to try. The problem, of course, is that amending Art. 63(1) would not help Kenyatta and Ruto; as Mark notes, unlike amendments to the RPE, amendments to the Rome Statute do not immediately take effect. In fact, Mark significantly understates how long it would take for an amendment to Art. 63(1) to be activated: pursuant to Art. 121(4), non-substantive amendments come into force one year after 7/8 of States Parties have accepted the amendment, not one year after the amendment is approved by the ASP. That could take years.

We’ll see what the ASP does. Colour me skeptical, though, that the Security Council made a wise decision by punting the presence issue to the ASP.

Appeals Chamber Ensures Ruto & Kenyatta Won’t Cooperate with the ICC

by Kevin Jon Heller

In a unanimous decision, the Appeals Chamber has reversed Trial Chamber V(a) and held that Ruto is required to continuously attend his trial, with exceptions to be granted only in exceptional circumstances. The decision is limited to Ruto, but it clearly applies to Kenyatta, as well, whom Trial Chamber V(b) has also excused from continuous presence.

It’s decisions like these that make me despair for the long-term viability of the Court. From a policy perspective, the decision is a disaster — it basically ensures that Ruto and Kenyatta will stop cooperating with the Court. Even worse, the decision will almost certainly engender considerable sympathy for the two men; after all, whether the ICC likes it or not, Ruto and Kenyatta were democratically elected to run a state critically important to African security. They are not Omar al-Bashir, who came to power in a coup and maintains power through fraudulent elections. Nor are their crimes as grave or their guilt as obvious.

Unlike the Trial Chambers — especially in the Kenyatta case — the Appeals Chamber seems completely oblivious to the obvious implications of its uncompromising position. Here is its list of rationales for requiring continuous participation (para. 49):

The accused person is not merely a passive observer of the trial, but the subject of the criminal proceedings and, as such, an active participant therein. It is important for the accused person to have the opportunity to follow the testimony of witnesses testifying against him or her so that he or she is in a position to react to any contradictions between his or her recollection of events and the account of the witness. It is also through the process of confronting the accused with the evidence against him or her that the fullest and most comprehensive record of the relevant events may be formed. Furthermore, the continuous absence of an accused from his or her own trial would have a detrimental impact on the morale and participation of victims and witnesses. More broadly, the presence of the accused during the trial plays an important role in promoting public confidence in the administration of justice.

The most obvious response is this: Ruto and Kenyatta will play no role at all in “promoting public confidence in the administration of justice” if they do not show up for trial. But beyond that, the Appeals Chamber’s rationales are either irrelevant or equally compatible with a more flexible approach to presence. Presence at trial is indeed important for an accused’s ability to understand the evidence against him — but it’s not the Court’s role to make sure the accused make smart strategic choices. There is no relationship at all between confronting an accused with the evidence against him and creating a comprehensive record, especially given that he cannot be forced to testify against his will (Art. 67(g) of the Rome Statute). And although it’s certainly possible that an accused’s absence may have a detrimental impact on the morale of victims and witnesses, I imagine most are more concerned with a conviction (and at least some would probably prefer not to have to give evidence in front of their victimizer).

These are policy concerns, of course, and the Appeals Chamber was faced with a legal issue — whether the Rome Statute requires an accused to be continuously present at trial. Indeed, I would have respected the Appeals Chamber if it had adopted the OTP’s argument and simply held that Art. 63(1) means what it says: “The accused shall be present during the trial.” An absolute presence requirement is obviously consistent with Art. 63(1) — and is generally if not unequivocally supported by the drafting history of the provision.

But that is not what the Appeals Chamber did. Instead, it tried to have it both ways — rejecting an absolute presence requirement and denying Trial Chambers the discretion they need to fashion a presence requirement that will ensure Ruto and Kenyatta show up for trial. Here is the key paragraph:

62. From the foregoing, the following limitations on the discretion of the Trial Chamber to excuse an accused person from presence during trial may be derived: (i) the absence of the accused can only take place in exceptional circumstances and must not become the rule; (ii) the possibility of alternative measures must have been considered, including, but not limited to, changes to the trial schedule or a short adjournment of the trial; (iii) any absence must be limited to that which is strictly necessary; (iv) the accused must have explicitly waived his or her right to be present at trial; (v) the rights of the accused must be fully ensured in his or her absence, in particular through representation by counsel; and (vi) the decision as to whether the accused may be excused from attending part of his or her trial must be taken on a case-by-case basis, with due regard to the subject matter of the specific hearings that the accused would not attend during the period for which excusal has been requested.

This is the worst of both worlds — the kind of mushy, divorced-from-the-text-of-the-Rome-Statute approach to Art. 63(1) that makes the Court seem callow and capricious. Indeed, the Appeals Chamber’s decision sends precisely the wrong message to Kenyatta and Ruto: “hey guys, it’s true that the Rome Statute doesn’t require your continuous presence. But it requires it more often than the Trial Chamber thinks it does. So you’ll just have to hope that the Trial Chamber will apply the test we pulled out of thin air in a manner that doesn’t make it impossible for you to both run Kenya and cooperate with the Court.” I think we know how that will turn out.

Once again, the ICC has shot itself in its foot. Deferral by the Security Council is looking like a better option by the day.

Libya’s Magic Security Situation and al-Senussi’s Right to Counsel

by Kevin Jon Heller

One of the most distressing aspects of the admissibility decision in al-Senussi is PTC I’s remarkable unwillingness to question Libya’s strategic invocation of its precarious “security situation.” As described by Libya, that situation really is magic — somehow managing to prevent the Libyan government from doing anything to protect al-Senussi’s rights without preventing the government from prosecuting al-Senussi.

Consider the issue I discussed in my previous post – Libya’s failure to provide al-Senussi with an attorney. Here are the PTC’s two relevant statements, from paras. 292 and 307:

In the Chamber’s view, the fact that Mr Al-Senussi’s right to benefit from legal assistance at the investigation stage is yet to be implemented does not justify a finding of unwillingness under article 17(2)(c) of the Statute, in the absence of any indication that this is inconsistent with Libya’s intent to bring Mr Al-Senussi to justice. Rather, from the evidence and the submissions before the Chamber, it appears that Mr Al-Senussi’s right to legal representation has been primarily prejudiced so far by the security situation in the country.

It appears, by Libya’s own admission, that the fact that Mr Al- Senussi is yet to obtain legal representation is primarily due to “security difficulties”.

The first thing to be said is that Libya blaming its failure to provide al-Senussi with counsel on its security situation is not an “admission” – it is Libya’s preferred framing of the issue. Libya is desperate to prevent the ICC from reaching the opposite conclusion: namely, that al-Senussi lacks counsel because the government has done everything in its power to prevent him from obtaining one. Were the PTC to (correctly) blame Libya for al-Senussi’s lack of counsel, Libya would have two problems: (1) the case for unwillingness would be greatly strengthened, because Libya’s intentional denial of al-Senussi’s right to counsel would threaten the viability of his prosecution once the accusation stage is complete; and (2) the case for inability would also be greatly strengthened, because Libya would not be able to plausibly maintain that once the security situation improves, there will be no impediment to providing al-Senussi with counsel.

To put it mildly, PTC I’s mantra-like invocation of Libya’s “security situation” is less than convincing. To begin with, the PTC never explains why the security situation in Libya prevents the government from providing al-Senussi with counsel. The PTC simply cites Libya’s reply and a Human Rights Watch press release, neither of which justifies its conclusion The one paragraph in Libya’s reply concerning al-Senussi’s lawyer (para. 146) claims only that “several local lawyers have indicated their willingness to represent Mr. Al-Senussi in the domestic proceedings.” The reply does not name those lawyers, nor does it provide any evidence in support of its claim that they exist. Moreover, the Human Rights Watch press release is revealingly entitled “Libya: Ensure Abdallah Sanussi access to a lawyer.” It does not attribute al-Senussi’s lack of counsel to the security situation in Libya; on the contrary, it specifically mentions the numerous times the Libyan court overseeing al-Senussi’s detention has ignored his request for an attorney, to which he is entitled even at the investigative stage of the proceedings.

Even more problematic, nothing in the record suggests that the security situation in Libya will somehow magically improve between now and the beginning of al-Senussi’s trial. As even casual Libya observers know, the security situation is getting worse by the day. Indeed, Judge van den Wyngaert, though joining in the admissibility decision, took the unusual step of appending a declaration to the decision expressing concern about the recent kidnapping of Libya’s Prime Minister and stating that she “would have preferred to seek submissions from the parties and participants as to whether Libya’s security situation remains sufficiently stable to carry out criminal proceedings against Mr Al-Senussi.” Even if it attributes al-Senussi’s lack of counsel to the “security situation,” therefore, PTC I has absolutely no reason to accept Libya’s assertions that it will be able to provide al-Senussi with counsel prior to trial.

And that, of course, is the problem with PTC I’s new “at the time of the admissibility decision” test for complementarity, which I criticized in my previous post. Al-Senussi’s lack of counsel may not threaten his prosecution right now — but it eventually will. And that is true regardless of whether al-Senussi’s lack of counsel reflects Libyan strategy or the security situation in Libya.

PTC I’s Inconsistent Approach to Complementarity and the Right to Counsel

by Kevin Jon Heller

Pre-Trial Chamber I has granted Libya’s challenge to the admissibility of the case against Abdullah al-Senussi. This is obviously a major win for the Libyan government, especially given that the very same PTC denied its admissibility challenge regarding Saif Gaddafi.

There is much to like in the PTC’s decision. It takes a very broad approach to the “same conduct” requirement with regard to the definition of a “case” — something I’ve long advocated. (Indeed, I’ve advocated jettisoning the rule entirely.) It reaffirms that states are not obligated to prosecute international crimes as international crimes; ordinary crimes are sufficient. And it once again rejects the idea that the failure of a domestic proceeding to live up to international standards of due process makes a case admissible, rightly emphasizing that due process is relevant only insofar as the failure of a domestic prosecution to live up to national standards of due process threatens the viability of that prosecution.

That said, there is one very problematic aspect of the PTC’s decision in al-Senussi: its treatment of al-Senussi’s right to counsel is completely inconsistent with its decision in Gaddafi. In Gaddafi, PTC I held that Libya’s failure to provide Gaddafi with an attorney meant that it was “unable” to prosecute him within the meaning of Art. 17(3) of the Rome Statute (emphasis mine)…

More SCSL Hypocrisy Concerning Customary International Law

by Kevin Jon Heller

In my previous post on the Taylor appeal, I noted two troubling aspects of the Appeals Chamber’s judgment concerning customary international law: (1) its erroneous belief that legal principles that narrow criminal responsibility have to have a customary foundation; and (2) its hypocritical affirmation that recklesness is the mens rea of aiding and abetting (which goes beyond the ICTY and ICTR) despite the principle having no basis in custom whatsoever.

In this brief post, I want to note that the SCSL’s hypocrisy toward custom extends to its analysis of Taylor’s disproportionate sentence. The judgment focuses on the principle that conviction as an accessory “generally warrants a lesser sentence than that to be imposed for more direct forms of participation.” That principle has been consistently applied by the ICTY and ICTR, leading to significant differences in sentences at both tribunals. (I mention the relevant studies in my article.) It was also honored, though clearly in the breach, by the Trial Chamber in Taylor. The Appeals Chamber, however, categorically rejects the principle — once again, as with specific direction, on the ground that it lacks an adequate foundation in customary international law:

667. The Appeals Chamber has considered the ICTY/ICTR jurisprudence cited by the Defence and adopted by the Trial Chamber, which is based on the holding of the ICTY Appeals Chamber in Vasiljević. This Appeals Chamber does not consider that holding persuasive. A number of the national laws relied on in the Vasiljević Appeal Judgment do not support the principle that aiding and abetting as a form of criminal participation warrants a lesser punishment, but only establish that an accused‘s minor participation in the commission of the crime may be a mitigating circumstance…. This Appeals Chamber notes that the Vasiljević Appeals Chamber did not declare its holding reflective of customary international law, nor did it pronounce it a general principle of law.

The Appeals Chamber is probably correct that the principle lacks an adequate customary foundation. Its analysis of whether it qualifies as a general principle of criminal law, however, is more questionable. The Appeals Chamber dismisses that possibility by citing common-law systems that do not formally distinguish between principals and accessories, making both potentially subject to the same punishment. (Most civil-law systems do formally distinguish between them in terms of sentence.) But the Appeals Chamber studiously avoids inquiring whether, in practice, common-law systems nevertheless generally sentence accessories more leniently than principals. My guess is that nearly all of them do.

My point here, though, is not to defend the principal/accessory distinction as a general principle of criminal law. Instead, it’s to note that, in terms of custom, the Appeals Chamber’s approach to sentencing is no less hypocritical than its approach to substantive criminal law. Contrast what it says about the principal/accessory distinction with what it says about extraterritoriality as an aggravating factor, which the defence (correctly) alleged in its appeal brief lacks any foundation whatsoever in customary international law (and has never been applied by any international tribunal):

The Appeals Chamber considers that it was unnecessary for the Trial Chamber to refer to public international law in order to take into consideration the extraterritorial nature and consequences of Taylor‘s acts and conduct. The Appeals Chamber accepts the Trial Chamber‘s finding that the extraterritorial nature and consequences of Taylor‘s acts and conduct are directly related to Taylor and the gravity of his culpable conduct, justifying holding him responsible.

Shorter Appeals Chamber: an aggravating factor that increases Taylor’s sentence does not have to have a customary foundation, as long as it’s “directly related” to his culpability, but a sentencing principle that decreases Taylor’s sentence does have to have a customary foundation, even if it is also “directly related” to his culpability.

Such is the Appeals Chamber’s understanding of customary international law. It’s only important when a principle might work in the defendant’s favor. As long as a principle harms the defendant, custom is irrelevant.

Welcome to nullum crimen sine lege through the SCSL looking glass.

Has the ICC Learned Its Lesson from Melinda Taylor’s Detention?

by Kevin Jon Heller

The Pre-Trial Chamber has ordered the Registrar to arrange a privileged visit between al-Senussi and his ICC lawyer, Ben Emmerson, in Libya. On the positive side, the PTC seems to have learned something from Libya’s abhorrent detention of Melinda Taylor. Witness the following language in the order:

15. Taking into account the purpose of the visit, the provisions of the ad hoc arrangement should be appropriate to ensure, in particular, the right of Mr Al-Senussi to communicate freely with his counsel in confidence, in  accordance with article 67(l)(b) of the Statute.

16. Therefore, the arrangement should include all practical arrangements necessary to ensure the unhindered entrance of the Defence team and their belongings to Libya as well as their appropriate treatment and protection during their stay on Libyan territory. This treatment should explicitly include, at a minimum, immunity from arrest and detention and from search of personal baggage for the individuals participating in the visit, the inviolability of the Defence documents, and the non-interference with and guarantee of the privileged nature and communication between Mr Al-Senussi and his Defence during the meeting. The Chamber recalls that, in conformity with international law, such privileges and immunities are without prejudice to the obligation of those participating in the visit to respect the national laws of Libya. If Libya has reasonable grounds to believe that the Defence of Mr Al-Senussi has violated Libyan law, Libya shall, however, not take any action that may impact on the necessary treatment that must be accorded to the Defence under the Statute, unless and until the Presidency of the Court has, upon prompt official request by Libya, waived the relevant immunity.

It’s good to see the PTC insisting on a privileged meeting and immunity for Emmerson and the other members of the defence team. But I’m baffled by the fact that the order is directed to the Registrar and not to Libya; indeed, the PTC denied the defence’s request for finding Libya in breach of its obligation to cooperate with the Court. The Registrar, however, is not the problem. Libya is. The Registrar has not prevented Emmerson from meeting with al-Senussi in the seven months since the PTC first requested a privileged visit. Libya has.

There is no reason to believe that Libya will suddenly start to cooperate with the Registrar. The only consistent aspect of Libya’s behavior has been its contempt for the Court. Will the PTC ever get around to ordering Libya to respect al-Senussi’s right to counsel?

Stay tuned.

BREAKING: Bashir Problem Now a Non-Problem

by Kevin Jon Heller

For the non-twitterati, Omar al-Bashir has — unsurprisingly — cancelled his trip to the UN. That decision reflects an underappreciated “soft power” aspect of the ICC: even an unexecuted arrest warrant limits the freedom of a suspect facing charges. There may be no reasonable prospect of Bashir being arrested anytime soon. But there is also no reasonable prospect that he will be traveling outside of Asia, Africa, and the Middle East anytime soon either, making it much more difficult for him to function as an effective head of state. With luck, his political party will eventually decide he’s more trouble than he’s worth — at which point he may well end up in the ICC’s dock. (A lesson Mr. Milosevic learned the hard way.)

UN General Assembly Should Allow US to Deny Al Bashir Access

by John Cerone

[John P. Cerone is Visiting Professor of International Law at the Fletcher School of Law & Diplomacy (Tufts University) and Professor of Law at the New England School of Law.  He has also served as Special Advisor to the US delegation to the UN Human Rights Council and as a legal advisor to international criminal courts.]

Omar al Bashir, President of Sudan and fugitive from international criminal justice, must not be allowed to address the United Nations General Assembly.  To permit him to appear on the rostrum would undermine the credibility of the United Nations as a whole, and in particular in the realm of human rights.

Beginning on September 24, an unprecedented number of Heads of State and Government began to converge as the General Debate opened for the 68th session of the United Nations General Assembly.  Mr. Bashir has recently confirmed his intention to travel to New York to participate in the session.

The General Assembly has it within its power to waive the US obligation to admit Mr. Bashir onto US territory.  Arresting him in the US is not an option, as Mr. Bashir is immune from arrest under obligations owed to Sudan.  And even if the US was prepared to violate these obligations, or to attempt to craft legal arguments to circumvent them, arresting a visiting Head of State who had lawfully been admitted to the US in order to address the UN General Assembly could precipitate a constitutional crisis in the United Nations.

However, unlike the obligation to respect his immunity, which is an obligation owed to Sudan, the obligation to facilitate his travel to the UN is an obligation owed to the UN as an organization, and not to Sudan.

The Headquarters Agreement, which requires the United States to facilitate the travel of Member State officials to UN Headquarters, is a bilateral treaty that was approved by the UN General Assembly in 1947.  There are only two parties to the treaty – the US and the UN as an organization, and the rights accorded to the UN under the treaty are for the benefit of the organization.  (Sudan is not a party to that treaty, and any rights incidentally conferred on third parties could be suspended by the mutual consent of the two parties to the treaty.)

It is arguable that the Secretary General could, on his own initiative, waive the UN’s right to have the visa issued…  (Continue Reading)

Bashir Calls Everyone’s Bluff, Says He is Coming to UN General Assembly Meetings in New York City*

by Julian Ku

Wow! I kind of assumed all the posturing and tough talk from U.S. and ICC officials would scare off Sudan’s President Bashir from visiting NY next week to address the UN General Assembly.  But it appears he really is coming.

Sudanese President Omar Hassan al-Bashir, wanted by the International Criminal Court on genocide charges, said on Sunday he planned to attend this week’s U.N. General Assembly and had already booked a hotel in New York.

Washington has led calls for Bashir to face international justice over bloodshed in the now decade-old conflict in Sudan’s Darfur region, and a senior State Department official said last week that Bashir would “not receive a warm welcome” if he travelled to New York.

Although I think the U.S. has a legal obligation to allow Bashir to attend the meetings (and leave) unmolested, I am surprised the U.S. didn’t simply deny him the visa and dare the U.N. General Assembly or Secretariat to complain about it.  Were they really going to file protests about this? Were states in the GA really going to go nuts over this? And hasn’t anyone asked the U.N. Secretary General to state his views, so as to give the U.S. cover to deny him the visa?

Maybe the U.S. is going to take up the ICC’s invitation to arrest Bashir. But I just can’t imagine they would want that hassle just now.  Arresting a head of state is a dicey business, especially when you have no legal obligation to do so, and you would probably be violating other legal obligations to carry out the arrest (and you may spark more conflict back in Sudan as well).  It seems it would have been easier just to deny him the visa.

More likely then, the U.S. is really going to let Bashir attend, and although he won’t get a warm welcome, the U.S. will probably not arrest him.  U.S. Ambassador to the U.N. Sam Power may have a meltdown, especially if Bashir has reserved a room at the Waldorf Astoria (where she has a posh penthouse residence). Would love to see what happens if they bump into each other in the elevators…  And Mia Farrow has vowed to chase him down, so things could get ugly over there.

Seriously, though, I do think that an unmolested Bashir visit to the UN GA meetings would be further evidence for Eric Posner’s thesis that the ICC is facing serious decline (if not Doom) (But see Kevin’s rebuttal here).  I don’t think that the decline is the ICC’s “fault” (and I don’t think Posner thinks that either).  Rather, the decline of the ICC may simply be the result of the lack of political will in the U.S. Government, the other UN member states, and in the UN’s key institutions.  If Bashir is allowed to come to NY for the UN meetings, the lack of will among all of these players will be quite self-evident. Maybe we shouldn’t bother with the ICC if no one is going to actually support it when that support is needed.

*Right after this post went up, Mark Kersten reports that he hears that the visa hasn’t come through yet, which makes this post a bit premature, but hopefully still interesting!

Eric Posner on the Coming Death of the ICC

by Kevin Jon Heller

Eric Posner has a new Cassandra column at Slate, this latest one foretelling the doom of the ICC. There isn’t much point in disagreeing with his basic thesis; no one knows at this point — not him, not I — whether the ICC will succeed. It is possible, however, to take issue with a number of assertions that Posner makes in his article. Some are unfair; others are simply wrong.

If anyone ought to be prosecuted for war crimes, it’s this reviled leader, who almost certainly directed poison gas attacks against civilians. But as Joshua Keating explained in Slate, it’s not going to happen. This, just the latest blow to the ICC, illustrates once again why the prospect of international justice through global courts is ever receding—and why the court’s own days may be numbered.

This assertion falls into the unfair category. As Alana Tiemessen pointed out on twitter, the ICC can hardly be blamed for the failure of the Security Council (for now) to refer Assad to the Court. And, of course, the assertion simply ignores the fact that the Security Council has referred controversial situations to the Court in the past. Posner could have acknowledged Darfur and Libya. He could have acknowledged how the Darfur referral has made it considerably more difficult for Bashir to function as Sudan’s head of state. (See, e.g., the ongoing controversy over his desire to travel to the US to attend the UN General Assembly, which will never happen.) If Posner wanted to say something critical, he could have pointed out that the real problem is the Security Council’s failure to back up its referrals, either financially or in terms of enforcement. But that would have simply highlighted the fact that the problem is the Security Council, not the ICC.

Instead, the worst of the bad guys were tried at Nuremberg and in Tokyo. But the postwar proceedings faced a problem. Hitler’s and Tojo’s invasions of innocent countries—and even Hitler’s massacre of civilians at home—did not violate any rule of international law that came with personal criminal liability. Leaders were tried and punished nonetheless, but doubts about legitimacy lingered, since the trials lacked a basis in international law even while they condemned defendants for violating it.

Both unfair and wrong. Posner simply elides the difference between aggression, crimes against humanity, and war crimes with regard to retroactivity…