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Human Rights

The Post-Incarceration Life of International Criminals

by Kevin Jon Heller

The inestimable Mark Kersten devotes his new column at Justice Hub (ignore the scary portrait) to an unusual issue: whether international criminals should be able to pursue higher education once they are released from prison. The column focuses on Thomas Lubanga, who recently stated his desire to complete a PhD at Kisengani University after he is released. Here is Mark’s takeaway, reached after he discusses the (very different) examples of Saif Gaddafi and Sam Kolo:

Still, these stories raise important questions: should convicted and alleged war criminals be allowed – perhaps even encouraged – to pursue higher education? Is there, as many believe, something curative in the pursuit of education that might help to deter relapses into criminality? Is there something morally egregious when former perpetrators of mass atrocities are afforded educational opportunities that they have – by their very actions – denied thousands of others? Is the best alternative to prevent them from pursuing any education and thus letting them ‘rot in prison’ or turning a blind eye and sending them back into the world without any support? What would be the risks in doing so? Do tribunals have any responsibilities for supporting released convicts? Should the tribunals and the international community consider the strategies of domestic prison systems, where education is often encouraged as a means of healing and skills development?

As the world of international criminal justice plods along and matures, new and uncomfortable questions will undoubtedly emerge, including what the post-incarceration life of war criminals should look like. There are no easy answers. The pursuit of higher education may leave a bitter taste in the mouths of some. But given all of the options and the ever-present risk of war criminals returning to their old habits, encouraging them to pursue an education may be a least-worst option.

I confess that I don’t find this a difficult issue at all. In my view, once an international criminal has served his sentence, he should be treated no differently than any other citizen. That’s the way we treat domestic criminals, as Mark notes. Why should international criminals be treated differently? Because their crimes are worse? That may be so — but once they have paid their debt to the international community, what is the basis for continuing to punish them by denying them educational opportunities? Human-rights groups and victims may believe that Lubanga got off easy; I might agree with them. But it’s not Lubanga’s fault that Moreno-Ocampo undercharged him. And it’s not Lubanga’s fault that the Trial Chamber arguably (I don’t agree) gave him too lenient of a sentence. He did the crime and served the time. That should be the end of the story. So I don’t like Mark’s question about whether Lubanga should be “allowed” to pursue a PhD. He would no more be “allowed” to pursue a PhD after his release than I would. There is no legal basis to deny him one. (Admission requirements, of course, are another story…)

For similar reasons, I don’t like the way Mark phrases his final takeaway: that encouraging international criminals to pursue an education “may be a least-worst option.” Nothing in Mark’s column indicates that anything negative will result from an international criminal getting a PhD. Saif Gaddafi is a poor example, because he didn’t actually write his own dissertation. And Sam Kolo’s post-LRA life indicates that Mark should have concluded encouraging international criminals to pursue an education may well be the very best option. So what is the basis for describing post-incarceration education as one of the “least worst” options? Is the fear that the international criminal will write a dissertation entitled “A Step-by-Step Guide to Committing Genocide”? It seems far more likely that the international criminal — if successful in, say, a PhD program — will rely on his previous actions to illuminate an aspect of conflict that we “peaceable” types cannot possibly understand in the same way.

Indeed, as I was  reading Mark’s column, I couldn’t get Albert Speer out of my mind. Speer did not pursue a PhD after he was released from Spandau prison in 1966, but there is no denying that he used both his incarceration and his post-incarceration life productively. He wrote Inside the Third Reich and Spandau: The Secret Diaries while in prison, and after his release he wrote Infiltration, a seminal work on Himmler’s SS. How much less would we know about the Third Reich if Speer had not been “allowed” to write and publish books on account of his crimes?

I’m not suggesting, of course, that Lubanga is likely to follow in Speer’s academic footsteps. But Lubanga’s proposed focus for his graduate studies does, in fact, seem worthwhile: “I hope to help identify a new form of sociology that will help the tribal groups to live together in harmony.” If anyone has something to say about that topic, isn’t it someone who knows tribal conflict all too well?

Trial Chamber Reiterates Irrelevance of the Confirmation Hearing

by Kevin Jon Heller

A few months ago, I blogged about the OTP’s attempt to invoke Regulation 55 in Laurent Gbagbo’s trial. As I noted in that post, the OTP asked the Trial Chamber (TC) to consider convicting Laurent Gbagbo of various crimes against humanity on the basis of command and superior responsibility, even though the Pre-Trial Chamber (PTC) specifically refused to confirm those modes of liability because doing so “would require the Chamber to depart significantly from its understanding of how events unfolded in Cote d’Ivoire during the post-electoral crisis and Laurent Gbagbo’s involvement therein.”

Not surprisingly, the Trial Chamber agrees with the OTP that it should keep its options open:

13. In the Request, the Prosecution demonstrates that the elements of Article 28(a) and (b) of the Statute may be derived from the facts and circumstances confirmed by the Pre-Trial Chamber. Further, in the Pre-Trial Brief, the Prosecution indicates that the evidence supporting liability under Article 28 of the Statute is encompassed by that supporting other charged modes of liability. In light of the Gbagbo Confirmation Decision, Request and Pre-Trial Brief, it appears to the Chamber that the legal characterisation of the facts and circumstances described in the charges may be subject to change to include Mr Gbagbo’s liability under Article 28(a) or (b) of the Statute.

I will not reiterate the various problems with using Regulation 55 in this manner; interested readers should see my chapter on the Regulation. But it’s worth spending a bit of time on the Trial Chamber’s decision, because it illustrates how the judges’ increasingly aggressive use of Regulation 55 has effectively consigned the confirmation hearing to irrelevance and made a mockery of the defendant’s right to a fair trial. Let’s start with this paragraph:

8. The Chamber notes that the Prosecution appears to have bypassed other statutory remedies available before making the Request. Before moving the Chamber to exercise its propria motu powers under Regulation 55(2) of the Regulations, the Prosecution could have sought (i) leave to appeal the Gbagbo Confirmation Decision or (ii) pursuant to Article 61(9) of the Statute, an amendment thereto. Notwithstanding this failure, as set out below and in the specific context of the Gbagbo Confirmation Decision, it is apparent to the Chamber that the legal characterisation of the facts described in the charges may be subject to change. In these unique circumstances, the Prosecution’s failure to exhaust other remedies does not impact on the Chamber’s obligation to give notice under Regulation 55(2) of the Regulations.

So now the OTP doesn’t even have to appeal the PTC’s confirmation decision before it asks the Trial Chamber to consider convicting the defendant on the basis of a mode of liability the PTC specifically rejected. Or, differently put, even if the PTC is correct that the OTP did not establish “substantial grounds to believe that the person committed the crime charged” on the basis of the charged mode of liability, the TC is still free to convict the defendant on the basis of that unconfirmed mode of liability as long as the OTP does better at trial. Could the irrelevance of the confirmation hearing be any clearer?

But wait, you say. The TC didn’t say the OTP never has to appeal the PTC’s confirmation decision. It said there are “unique circumstances” in this case that justify the OTP’s failure to appeal. Isn’t that important? Indeed it is — and revealingly so. Here are the so-called “unique” or “exceptional” circumstances in Gbagbo:

12. In this case, the exceptional circumstances surrounding the proposed recharacterisation must be emphasised from the outset. In particular, the Pre-Trial Chamber expressly acknowledged, on different occasions, the possibility of Mr Gbagbo’s liability under Article 28 of the Statute, a mode of liability with notably different requirements than all those in Article 25(3) of the Statute. The Pre-Trial Chamber first mentioned criminal responsibility under Article 28 of the Statue as early as the confirmation hearing, before the Prosecution included this mode of liability in its document containing the charges. Thereafter, in declining to confirm charges under Article 28 of the Statute, the majority of the Pre-Trial Chamber ‘[could] not rule out the possibility that the discussion of evidence at trial may lead to a different legal characterisation of the facts’. It found that Mr Gbagbo’s failure ‘to prevent violence or to take adequate steps to investigate and punish the authors of the crimes […] was an inherent component of the deliberate effort to achieve the purpose of retaining power at any cost’. Even the judge dissenting from the Gbagbo Confirmation Decision mentioned the possibility in this case of liability under Article 28 of the Statute, indication that she ‘could have, in principle, envisaged confirming the charges’ on that basis.

So it doesn’t matter that the PTC actually concluded that the OTP failed to present sufficient evidence to sustain command or superior responsibility. Nor does it matter that the PTC actually concluded that convicting Gbagbo as a commander or superior “would require the Chamber to depart significantly from its understanding of how events unfolded in Cote d’Ivoire during the post-electoral crisis and [his] involvement therein.” No, what really matters is that the PTC thought about the possibility of confirming command or superior responsibility; that the PTC couldn’t rule out the possibility that the OTP might be able to establish Gbagbo’s command or superior responsibility at trial; and that the dissenting judge “could have… envisaged” disagreeing with the majority’s refusal to confirm command or superior responsibility. Those are the “unique” or “exceptional” circumstances making an appeal irrelevant — which are obviously not unique or exceptional at all.

The Trial Chamber’s decision means that Gbagbo will now not only have to mount a defence against five distinct modes of liability: indirect co-perpetration, ordering, soliciting, inducing, and otherwise contributing to the commission of crimes. He will also have to defend himself against the very different idea that he was responsible for subordinates’ crimes as a commander or superior. And, of course, four months have passed since the OTP asked the TC to give Gbagbo notice of the potential recharacterisation. So the TC will give Gbagbo more time to prepare his defence, right?

Silly rabbit. Of course not:

17. Moreover, the Chamber considers that the Gbagbo Defence fails to justify its alternative request for recalculation of the trial commencement date: it does not provide any concrete indication as to the impact this decision would have on its trial preparations. On the information before it, stressing that the facts and circumstances described in the charges remain unchanged and noting that the Prosecution intends to rely on the same body of evidence, the Chamber considers that the current commencement date and accompanying schedule provide adequate time for trial preparation.

According to the Trial Chamber, in other words, it requires no work at all for Gbagbo to prepare a defence against the idea that he was responsible for subordinates’ crimes on the basis of command or superior responsibility, even though the elements of those unconfirmed modes of liability are completely different than the elements of the confirmed modes. And why are those legal differences irrelevant? Because “the Prosecution intends to rely on the same body of evidence” at trial — you know, the same body of evidence the PTC concluded could not even establish “substantial grounds” to believe Gbagbo is responsible as a commander or superior.

Thus does the Trial Chamber reduce the adversarial trial to a glorified fact-finding mission — just one in which the prosecution has a high standard of proof. It would be possible to design a legal system in which the prosecution and defence were responsible for arguing about facts and the judges were responsible for deciding which crimes and modes of liability the facts were consistent with those facts. But that is not the ICC system. (Nor, for that matter, is it the common-law system or the civil-law system.) At the ICC, the prosecution does not simply prove “facts and circumstances”; it has the burden of proving every element of the charged crime(s) and the charged mode(s) of liability beyond a reasonable doubt. They don’t call it the confirmation of “charges” hearing for nothing.

Yet none of that matters to the Trial Chamber. The TC’s position is that to “avoid impunity” — ie, to avoid having to acquit a defendant simply because the prosecution couldn’t prove its case beyond a reasonable doubt — it must be able to convict the defendant on the basis of any mode that it believes the prosecution managed to establish during trial, regardless of the prosecution’s actual theory of the case or the PTC’s view of the prosecution’s evidence. Which means, of course, that the confirmation decision is nothing more than a general set of suggestions that the TC is in no way obligated to follow.

A greater perversion of the Rome Statute is difficult to imagine.

The National Security Law Journal Outdoes the Onion

by Kevin Jon Heller

The journal has published what has to be the most ridiculous article in the history of IHL scholarship. And no, I’m not being hyperbolic. Written by someone named William C. Bradford, identified — terrifyingly —  as an “Associate Professor of Law, National Security, and Strategy, National Defense University, Washington, D.C,” it’s entitled “Trahison des Professeurs: The Critical Law of Armed Conflict as an Islamist Fifth Column.” (Props to the author for knowing how to use Google: the main title translates as “treason of the professors.”)

I’m not going to waste even a few seconds of my life responding to the article, which blathers on for 180 pages and nearly 800 footnotes. (Seriously.) I will just offer two quotes, almost chosen at random. In the first, the author advocates prosecuting CLOACA scholars (the “critical law of armed conflict academy” — a scatological acronym the author no doubt finds profoundly clever) for material support for terrorism. Bonus points for actually calling for a new House Un-American Activities Committee!

In concert with federal and state law enforcement agencies, Congress can investigate linkages between CLOACA and Islamism to determine “the extent, character, and objects of un-American propaganda activities in the U.S. [that] attack the . . . form of government . . . guaranteed by our Constitution.” Because CLOACA output propagandizes for the Islamist cause, CLOACA would arguably be within the jurisdiction of a renewed version of the House Un-American Activities Committee (Committee on Internal Security) charged with investigating propaganda conducive to an Islamist victory and the alteration of the U.S. form of government this victory would necessarily entail.

“Material support” includes “expert advice or assistance” in training Islamist groups to use LOAC in support of advocacy and propaganda campaigns, even where experts providing such services lack intent to further illegal Islamist activity. CLOACA scholarship reflecting aspirations for a reconfigured LOAC regime it knows or should know will redound to Islamists’ benefit, or painting the United States as engaged in an illegal war, misrepresents LOAC and makes “false claims” and uses “propaganda” in a manner that constitutes support and training prohibited by the material support statute. Culpable CLOACA members can be tried in military courts: Article 104 of the Uniform Code of Military Justice provides that “[a]ny person who . . . aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things . . . shall suffer death or . . . other punishments as a court-martial or military commission may direct;” the Rule for Court Martial 201 creates jurisdiction over any individual for an Article 104 offense.

But that’s not my favourite quote. This one is — in which the author argues that that CLOACA scholars are unlawful combatants who can be killed in their law-school offices:

CLOACA scholarship and advocacy that attenuates U.S. arms and undermines American will are PSYOPs, which are combatant acts. Consequently, if these acts are colorable as propaganda inciting others to war crimes, such acts are prosecutable. CLOACA members are thus combatants who, like all other combatants, can be targeted at any time and place and captured and detained until termination of hostilities. As unlawful combatants for failure to wear the distinctive insignia of a party, CLOACA propagandists are subject to coercive interrogation, trial, and imprisonment. Further, the infrastructure used to create and disseminate CLOACA propaganda—law school facilities, scholars’ home offices, and media outlets where they give interviews—are also lawful targets given the causal connection between the content disseminated and Islamist crimes incited. Shocking and extreme as this option might seem, CLOACA scholars, and the law schools that employ them, are—at least in theory—targetable so long as attacks are proportional, distinguish noncombatants from combatants, employ nonprohibited weapons, and contribute to the defeat of Islamism.

No, I’m not kidding. And no, the author apparently isn’t either.

I won’t tell readers to go read the article for themselves, because that would be cruel and unusual punishment. I will simply end by pointing out the most fundamental flaw in the article: namely, that it fails to note that I am a card-carrying member of CLOACA. Indeed, I’ve been advocating for radical Islam to defeat the West for years now, both here on the blog and in my scholarship. Surely I should be targeted, too!

UPDATE: The author of the article, William C. Bradford, resigned from Indiana University-Indianapolis’s law school in 2005 after it was revealed that he had lied about his military record — including falsely claiming to have won a Silver Star during Desert Storm. See this article in Inside Higher Education.

New Opportunities to Research Civil War at Melbourne Law School

by Kevin Jon Heller

My colleague Anne Orford has just received — and deservedly so — a very significant Australian Laureate Fellowship for a program entitled Civil War, Intervention, and International Law. The program is funded by the Australian Research Council from 2015 to 2020 and will establish an interdisciplinary research team based at Melbourne Law School. Here is a snippet from the description of the program:

Professor Orford’s ARC Laureate Fellowship Program will undertake a comprehensive analysis of one of the most pressing questions in contemporary international law and politics: whether, and if so under what conditions, foreign actors can lawfully intervene in civil wars. The lawfulness of external intervention in the domestic affairs of states is one of the most enduring and contested topics of debate within the disciplines of international law and international relations. The intensity of debates about the legality of intervention by the US and its allies in Iraq and Syria on the one hand, and by Russia in the Ukraine on the other, illustrates both the urgency of this issue and the difficulty of finding general principles to address it. The project will combine archival research, legal analysis, and critical theorising to develop a conceptual framework that can better grasp the changing patterns and practices of intervention.

The program is now inviting applications for two Postdoctoral Fellowships, which are full-time, fixed term research positions that can last up to five years. Here is the description:

The Postdoctoral Fellows will be appointed to undertake projects that explore the historical and contemporary practice of interventions in a specific region, chosen from Africa, Asia, Europe, Latin America, or the Middle East. The specific regional studies, as well as the cases to be explored as part of those regional studies, will be chosen by the Postdoctoral Fellows in conjunction with Professor Orford. The Postdoctoral Fellows will take responsibility under the supervision of Professor Orford for developing the regional studies and for drawing out cross-cutting themes between them. The aim will be to map and evaluate the specific legal, political, and economic issues that have influenced and shaped interventions in civil wars in particular regions, the legal justifications that have accompanied those interventions, and the normative innovations that have resulted. It is well accepted, for example, that the principle of non-intervention has a particular meaning and importance in the inter-American context, as many early formulations of the principle emerged out of attempts to renegotiate the relation between the US and its near neighbours in Central and South America. Similarly, the responsibility to protect concept has a close association with African states and attempts to manage civil wars on that continent. The cases within each regional study may include pre- and immediately post-World War 2 situations (such as those in Spain and China), early post-colonial conflicts (such as those in Korea, Vietnam, and Cambodia), proxy wars of the 1980s (such as those in Afghanistan and Nicaragua), and post-Cold War situations (such as those involving the former Yugoslavia, Rwanda, the Democratic Republic of the Congo, Libya, Iraq, Ukraine, and Syria). The focus of the program is on developments over the twentieth and twenty-first centuries, but proposals focusing on nineteenth century practice will also be considered. It is anticipated that the studies undertaken by the Postdoctoral Fellows will be published as monographs.

The program is also seeking two PhD students:

The doctoral projects will each study an emerging area of conceptual innovation that has played a role in reshaping the broader normative framework governing intervention in civil war over the past decades. One project will analyse the impact of the related concepts of humanitarian intervention and the responsibility to protect, and the second will analyse the impact of the concepts of collective self-defence and intervention by invitation that have been invoked in the context of the war on terror. The projects will study particular cases of intervention in civil war that were justified either in terms of protecting civilians (using concepts such as humanitarian intervention or the responsibility to protect) or of responding to terrorism (using concepts such as collective self-defence or intervention by invitation). The projects will involve detailed analyses of how legal arguments have been used in practice – for example, the ways in which legal concepts have been invoked by parties to civil wars (including foreign interveners), the extent to which the use of legal arguments has been innovative and directed to transforming existing norms, the patterns of diplomatic and military practice that those legal arguments have sought to justify, how other states have responded to such justifications, what positions states have taken publicly in debates on relevant issues in the General Assembly and the Security Council, and how decisions by external actors to support or recognise particular groups have been publicly justified. It is anticipated that the resulting doctoral theses will be published.

Anne is a fantastic scholar, the law school has a superb academic culture, and there are very few places in the world more pleasant to live than Melbourne. I hope interested readers will apply. You can find more information here.

The Most Distressing Paragraph in the Comoros Review Decision

by Kevin Jon Heller

No matter how many times I read the decision, I keep coming back to this paragraph:

51. As a final note, the Chamber cannot overlook the discrepancy between, on the one hand, the Prosecutor’s conclusion that the identified crimes were so evidently not grave enough to justify action by the Court, of which the raison d’être is to investigate and prosecute international crimes of concern to the international community, and, on the other hand, the attention and concern that these events attracted from the parties involved, also leading to several fact-finding efforts on behalf of States and the United Nations in order to shed light on the events. The Chamber is confident that, when reconsidering her decision, the Prosecutor will fully uphold her mandate under the Statute.

The Pre-Trial Chamber’s comment is mere dicta. But oy gevalt is it dangerous dicta — a dream come true for the ICC’s critics, who have always insisted that the Court’s work will be driven by politics, not law. The paragraph does indeed seem to suggest that the gravity of particular crimes is a function, at least in part, of how much attention the international community pays to them. Such a consideration not only makes a mockery of the Court’s independence, it defies common sense: just as crimes the world obsesses over might be insufficiently grave to warrant investigation, crimes the world ignores could be more than grave enough. You don’t have to be an Israel apologist to see that.

I share the PTC’s confidence the Prosecutor will indeed fully uphold her mandate. And that means she will assess the IDF’s crimes on the Mavi Marmara without regard to what the international community thinks about them.

The Pre-Trial Chamber’s Dangerous Comoros Review Decision

by Kevin Jon Heller

In late 2014, the Office of the Prosecutor rejected a request by Comoros to open a formal investigation into Israel’s attack on the Mavi Marmara. To my great surprise, the Pre-Trial Chamber (Judge Kovacs dissenting) has now ordered the OTP to reconsider its decision. The order does not require the OTP to open a formal investigation, because the declination was based on gravity, not on the interests of justice — a critical distinction under Art. 53 of the Rome Statute, as I explain here. But the PTC’s decision leaves little doubt that it expects the OTP to open one. Moreover, the PTC’s decision appears designed to push the OTP to decline to formally investigate a second time (assuming it doesn’t change its mind about the Comoros situation) on the basis of the interests of justice, which would then give the PTC the right to demand the OTP investigate.

To put it simply, this is a deeply problematic and extremely dangerous decision — nothing less than a frontal assault on the OTP’s prosecutorial discretion, despite the PTC’s claims to the contrary. I will explain why in this (very long) post.

At the outset, it is important to emphasise that we are dealing here with situational gravity, not case gravity. In other words, the question is not whether the OTP should have opened a case against specific members of the IDF who were responsible for crimes on the Mavi Marmara, but whether the OTP should have opened a situation into the Comoros situation as a whole. The Rome Statute is notoriously vague about the difference between situational gravity and case gravity, even though it formally adopts the distinction in Art. 53. But it is a critical distinction, because the OTP obviously cannot assess the gravity of an entire situation in the same way that it assesses the gravity of a specific crime within a situation.

The PTC disagrees with nearly every aspect of the OTP’s gravity analysis. It begins by rejecting the OTP’s insistence (in ¶ 62 of its response to Comoro’s request for review) that the gravity of the Comoros situation is limited by the fact that there is no “reasonable basis to believe that ‘senior IDF commanders and Israeli leaders’ were responsible as perpetrators or planners of the apparent war crimes’.” Here is how the PTC responds to that claim:

23. The Chamber is of the view that the Prosecutor erred in the Decision Not to Investigate by failing to consider whether the persons likely to be the object of the investigation into the situation would include those who bear the greatest responsibility for the identified crimes. Contrary to the Prosecutor’s argument at paragraph 62 of her Response, the conclusion in the Decision Not to Investigate that there was not a reasonable basis to believe that “senior IDF commanders and Israeli leaders” were responsible as perpetrators or planners of the identified crimes does not answer the question at issue, which relates to the Prosecutor’s ability to investigate and prosecute those being the most responsible for the crimes under consideration and not as such to the seniority or hierarchical position of those who may be responsible for such crimes.

These are fundamentally irreconcilable conceptions of “potential perpetrator” gravity. The OTP is taking the traditional ICTY/ICTR approach, asking whether the Israeli perpetrators of the crimes on the Mavi Marmara are militarily or politically important enough to justify the time and expense of a formal investigation. The PTC, by contrast, does not care about the relative importance of the perpetrators; it simply wants to know whether the OTP can prosecute the individuals who are most responsible for committing the crimes in question.

To see the difference between the two approaches — and to see why the OTP’s approach is far better — consider a hypothetical situation involving only one crime: a group of the lowest-ranking soldiers from State X executes, against the stated wishes of their commanders, 10 civilians from State Y. The OTP would conclude that the “potential perpetrator” gravity factor militates against opening a formal investigation in State Y, because the crime in question, though terrible, did not involve militarily important perpetrators. The PTC, by contrast, would reach precisely the opposite conclusion concerning gravity, deeming the soldiers “most responsible” for the crime by virtue of the fact that they acted against orders. After all, no one else was responsible for the decision to execute the civilians.

The PTC’s approach to “potential perpetrator” gravity is simply bizarre….

Guest Post: Protecting Schools 80 Years After Roerich

by Bede Sheppard

[Bede Sheppard is deputy children’s rights director at Human Rights Watch.]
Eighty-years ago today, the United States became the first country to ratify the international treaty commonly known as the Roerich Pact. Actually, “commonly” is a bit of a stretch—the 80-year-old agreement doesn’t get a lot of attention these days—yet one of its key objectives has recently been in the spotlight.
The pact’s full name, the “Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments,” gives a clearer overview of its intentions. The treaty’s first article notes that “educational…institutions shall be considered as neutral and as such respected and protected by belligerents… The same respect and protection shall be accorded to…educational…institutions in time of peace as well as in war.”
Only 10 countries joined the treaty—all of them from the Americas. The Americas is also the region with the highest number of countries in which laws explicitly limit the authority of government security forces to enter higher education institutions. Most recently, many countries in the Americas have been early and enthusiastic supporters of the Safe Schools Declaration that was opened for states to join at an international summit in Oslo, Norway, on May 28-29.
The Safe Schools Declaration was drafted under the leadership of Argentina and Norway. The 47 countries that have joined so far include Argentina, Brazil, Chile, Costa Rica, Ecuador, Honduras, Jamaica, Panama, and Uruguay. The Declaration is a political commitment to do more to protect students, teachers, schools, and universities from attack during times of armed conflict. It also allows countries to endorse and commit to use a set of Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict, which call upon armed forces to refrain from converting schools or universities into military bases, barracks, defensive positions, detention centers, and weapons caches.
The need to continue working for the protection of education institutions 80 years after the Roerich Pact remains clear. In the past decade, schools have been used for military purposes in at least 26 countries with armed conflict—the majority of countries with armed conflict during that time. The practice exposes students and teachers to the danger of incoming attacks if they remain in the school while they are being used, as well as the risk of harassment, rape, and forced recruitment by the soldiers inside the school. When schools are taken over completely, those buildings may still be damaged or destroyed, with long-term consequences for students’ education. The practice has also been shown to cause students to drop out of school as well as harming school attendance, new enrollment, and advancement to higher levels of education.
But 80 years after being the first to join the Roerich Pact, the United States has shown no interest in joining the Safe Schools Declaration. At the United Nations Human Rights Council in Geneva this month, the United States joined countries such as China, Cuba, Pakistan, and Saudi Arabia to snub efforts to highlight the Oslo Safe Schools Summit in an annual resolution on the right to education. (Bolivia and Venezuela sat out the vote as well.)
Another sign of the waning US interest in the goals of the Roerich Pact can be found in the new Defense Department Law of War Manual. The manual’s forerunner—the army’s 1956 field manual on the law of land warfare, noted that the Roerich Pact “accords a neutralized and protected status” to educational institutions. Disappointingly, that recognition of educational institutions’ neutrality has been dropped in the new manual, which instead describes the pact as providing only for the “respect and protection” of education institutions.
The United States should be moving forward, not backward, when it comes to improving the protection of schools during armed conflict.  UN Security Council Resolution 2225, passed in June, expresses “deep concern that the military use of schools in contravention of applicable international law may render schools legitimate targets of attack, thus endangering the safety of children and in this regard encourages Member States to take concrete measures to deter such use of schools by armed forces and armed groups.” Many states will see endorsement and use of the new Guidelines as just such “concrete measures,” and the United States should too.
On overseeing the signing of the Roerich Pact, US President Franklin Roosevelt said: “In opening this Pact to the adherence of the nations of the world, we are endeavoring to make of universal application one of the principles vital to the preservation of modern civilization.” Respecting schools and universities as neutral and protected sites is indeed vital to the preservation of modern civilization. Let’s work to achieve it before another 80 years pass.

A Legitimate Need for Disqualification in the Lubanga Case

by Kevin Jon Heller

Thomas Lubanga’s lawyer, Catherine Mabille, has moved to disqualify Judge Silvia Fernández de Gurmendi from Lubanga’s upcoming sentence review on the ground that the judge was involved in the case while working in the Office of the Prosecutor. Here are the relevant paragraphs from the motion:

11… [O]fficial Court documents show that Judge Silvia Fernández de Gurmendi acted as Chef de Cabinet for the Prosecutor, Mr Moreno Ocampo.

12. In particular, Judge Silvia Fernández de Gurmendi was engaged in that capacity during the period between the application for a warrant of arrest against Mr Tomas Lubanga and the confirmation of charges hearing in that case.

13. It follows that a reasonable observer, properly informed, must necessarily conclude that she participated in person in the investigations concerning Mr Thomas Lubanga, participated in the drafting of the application for his arrest, participated in the drafting of the detailed list of charges submitted to the Pre-Trial Chamber for examination and, in general, that she participated at the highest level of the organisation in the proceedings against Mr Thomas Lubanga until December 2006.

14. Witnesses Bernard Lavigne (P-0582) and Nicolas Sebire (P-0583) were called in this case by Trial Chamber I to “testify as to the approach and the procedures applied to intermediaries” to assist the Chamber in ruling on the Defence’s abuse of process application. They confirm that the executive committee established within the Office of the Prosecutor, of which Judge Silvia Fernández de Gurmendi was a member, was regularly consulted on the conduct of investigations and that it directed the course of those investigations.

15. Mr Sebire stated that he had himself attended two meetings of the executive committee, the purpose of which was “[TRANSLATION] to report on the investigation, the progress of the investigation and the evidence gathered by … by the time of appearing before the committee.”

The OTP does not deny that Judge Fernandez was previously involved in the Lubanga case. On the contrary, it simply insists that the test for recusal is whether “a reasonable and properly informed observer would apprehend bias by Judge Fernández in deciding on the early release of Mr Lubanga” — and that the Judge’s “sporadic and general” involvement in the case does not satisfy the test:

13. Finally, the Presidency should consider Judge Fernández’s non-operational and relatively circumscribed role in the Lubanga case resulting from her position as head of JCCD and as a member of ExCom from June 2003 to December 2006. Judge Fernandez was never directly responsible for the investigation and prosecution of the Lubanga case. JCCD is a division of the Office of the Prosecutor entrusted with conducting preliminary examinations; evaluating information pursuant to articles 15 and 53(1); providing advice on whether a reasonable basis to proceed with an investigation exists, and providing advice on issues related to jurisdiction and admissibility, and on cooperation matters. Thus, Judge Fernández would have been involved in the early stages of the proceedings in the Democratic Republic of the Congo (including the Lubanga case), in particular, in the decision to commence an investigation, and in transmitting requests for cooperation, including arrest warrants and investigative missions in the field.

14. As a member of ExCom, Judge Fernández would have participated in the general discussion and approval of the main legal and strategic documents and major investigative and prosecution activities developed by the Investigation and Prosecution Divisions with respect to all the cases from June 2003 to December 2006, including that against Mr Lubanga. However, her intervention would have necessarily been sporadic and general in nature. She was not one of the lawyers involved in investigating or prosecuting the case against Mr Lubanga; although she would have been kept apprised of and approved of various steps as the case proceeded against him during the period of her tenure at the Office of the Prosecutor, her situation is not comparable to that of a prosecution lawyer deeply involved in the case and knowledgeable of its details.

I have great respect for Judge Fernandez. I’m thrilled that she was recently elected President of the Court. And I have no doubt whatsoever that she would not be biased against Lubanga in the sentence review. But that’s irrelevant — because Art. 41(2)(a) of the Rome Statute still requires her disqualification. Here is the text of the provision (emphasis mine):

A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground. A judge shall be disqualified from a case in accordance with this paragraph if, inter alia, that judge has previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted.

The OTP admits that Judge Fernandez has previously been involved in the Lubanga case. Art. 41(2)(a) thus prohibits her from participating in the sentence review as a member of the Appeals Chamber — a judge “shall” be disqualified (not “may” be disqualified) if she has previously been involved “in any capacity” (not in a significant capacity) in the case. End of story.

The OTP, of course, disagrees. Most obviously, it insists that previous involvement in a case requires disqualification only if that involvement would lead a reasonable observer to doubt the judge’s impartiality. But that is not what Art. 41(2)(a) says. There are only two ways to read the provision: (1) as providing two different grounds requiring disqualification — appearance of bias or previous participation in the case; or (2) as establishing an irrebuttable presumption that previous participation gives rise to a reasonable doubt of a judge’s impartiality. The second interpretation is likely correct, given that the provision mentions previous participation “inter alia” as a situation in which a judge “shall” (not “may”) be disqualified from a case. Either way, though, Judge Fernandez must be disqualified from Lubanga’s sentence review.

The OTP seems to recognise that, despite its argument, nothing in the wording of Art. 41(2)(a) actually suggests that previous participation requires disqualification only if a reasonable observer would doubt a judge’s impartiality. It thus insists (para. 7) that “[t]he relevant provisions must be contextually and purposively interpreted according to the rules on interpretation of treaties in the Vienna Convention, and must be applied on a case-by-case basis.” This is typical ICC double-speak, a nudge-nudge, wink-wink to the judges asking them to ignore a clear provision of the Rome Statute simply because the OTP finds it inconvenient. The judges need to say no — although, given their history (Regulation 55, anyone?), there is reason to suspect they’ll simply do what the OTP wants.

Stay tuned…

UPDATE: I made similar points a few years ago. See here.

Ryan Goodman to Work at DoD for One Year

by Kevin Jon Heller

Ryan — friend of Opinio Juris and friend of Kevin — has been appointed Special Counsel to the General Counsel of the Department of Defense. Here is a snippet from NYU’s press release:

In his new role at the Department of Defense Goodman will focus primarily on national security law and law of armed conflict. “I am very humbled to have this opportunity to work with the General Counsel and the outstanding people of the Defense Department,” said Goodman. “I look forward to the hard work and challenges ahead in this arena of public service.”

One of the nation’s leading scholars in national security and human rights law, Goodman co-founded Just Security, a blog for the rigorous analysis of law, rights, and national security, in 2013. With Goodman serving as co-editor-in-chief, Just Security quickly achieved international prominence for providing balanced and broad analysis of major legislation and executive action, information about the impact of US national security policies around the world, and scrutiny of international legal developments in the national security area.  During his time with the Defense Department, Goodman will discontinue his work with Just Security.

I’m sad that we will not have the benefit of Ryan’s blogging for a year, but the blogosphere’s loss is the DoD’s gain. Readers know that I have reservations about academics going into government service, but I have no doubt whatsoever that Ryan — like his mentor Harold Koh before him — will be a principled, conscientious, and even courageous voice in government. Indeed, Ryan has never shied away from criticising the USG when he thinks its approach to international law has been misguided. I just regret that we will probably never get to know how he spent his year with the DoD!

Please join me in congratulating Ryan — though I think the DoD is really the one that deserves congratulations.

The Gaza Report’s Treatment of Warnings: A Response to Blank

by Kevin Jon Heller

Laurie Blank published a post yesterday at Lawfare entitled “The UN Gaza Report: Heads I Win, Tails You Lose.” The post accuses the Independent Commission of Inquiry’s report on Operation Protective Edge (“Gaza Report”) of “completely undermin[ing] the foundational notion of equal application of the law” with regard to three areas of IHL: warnings, civilian vs military objects, and compliance. None of Blank’s criticisms are convincing, but in this post I want to focus solely on her first topic, warnings. Here is what she says about the Commission’s discussion of whether Israel complied with its obligation under IHL to provide civilians in Gaza with “effective advance warning” prior to attack:

First, consider the report’s treatment of warnings, one of the precautions set out in Article 57 of Additional Protocol I.  Article 57 mandates that when launching attacks, “effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.”  The Commission examines Israel’s warnings in great detail, including leaflets, telephone calls, texts and roof-knocks, noting that the warnings often did lead to successful evacuation and save many lives.  However, the Commission found in many cases that specific phone warnings were not effective as required by LOAC, because the individuals in the targeted building would not know “in what direction to escape.” (¶ 237).

However, LOAC contains no requirement that the civilian population be able to act on the warnings in order to find them effective.  Instead, the legally correct approach is to examine whether the warnings generally informed civilians that they were at risk and should seek shelter. In other words, the legal issue is whether they were effective in transmitting a warning, not whether the civilians actually heeded them. The Israel Defense Forces routinely made individualized, specific phone calls to warn the residents of buildings to seek safety in advance of an attack on a particular building, far exceeding the requirements of LOAC. Yet the Commission bases its conclusions on the post-hoc question of whether civilians actually found shelter, which ultimately depends on a host of considerations outside the control of the attacking party.

Unfortunately, both paragraphs misrepresent the Gaza Report. Let’s consider Blank’s claims one-by-one.

[T]he Commission found in many cases that specific phone warnings were not effective as required by LOAC, because the individuals in the targeted building would not know “in what direction to escape.”

The Israel Defense Forces routinely made individualized, specific phone calls to warn the residents of buildings to seek safety in advance of an attack on a particular building, far exceeding the requirements of LOAC.

These statements are misleading. The subsection of the Gaza Report that Blank criticises focuses on Israel’s controversial use of “roof knocking,” not on its use of phone calls to civilians located in or near buildings about to be attacked. (The subsection is entitled “Roof Knock Warnings.”) Indeed, the entire point of the subsection is to explain why roof-knocking does not provide civilians with effective advance notice unless it is combined with a phone call or “other specific warnings” (¶ 239). Blank does not challenge the Commission’s conclusion in that regard. She does not even acknowledge it…

Fourth Annual Junior Faculty Forum for International Law

by Kevin Jon Heller

The forum is being held this week in Florence, Italy. Here is the description:

The Annual Junior Faculty Forum for International Law was launched in the summer of 2011. It held its inaugural event at the New York University School of Law in May 2012; the second Forum was held at the University of Nottingham in May 2013 and the third (and most recent) Forum occurred at the University of Melbourne in July 2014. The Forum is designed as a regular addition to the international law calendar; its founding co-convenors are Dino Kritsiotis, Professor of Public International Law in the University of Nottingham, Anne Orford, Michael D. Kirby Professor of International Law in the University of Melbourne, and J.H.H. Weiler, President of the European University Institute in Florence. The Forum will allow international legal scholars, in the first six years of their academic career, a unique opportunity to present their research work by being paired with a senior scholar in the field of international law or related fields, who will lead a discussion of their presentation within the Forum.

The fourth Forum will convene at the European University Institute in June 2015, and selected presentations from the Forum will be published in the European Journal of International Law (Oxford University Press), a practice established from the inaugural Forum.

The young scholars invited to participate this year are: Rohini Sen (O.P. Jindal Global), Kristina Daugirdas (Michigan), Ingo Venzke (Amsterdam), Anne-Charlotte Martineau (Max Planck), Oisin Suttle (Sheffield), Nicolas M. Perrone (Universidad Externado de Colombia), Deborah Whitehall (Monash), Anna Dolidze (Western), Mieke van der Linden (Max Planck), Arman Sarvarian (Surrey), Surabhi Ranganathan (Warwick), Philippa Webb (King’s College), and Maria Varaki (Kadir Has).

It should be an excellent forum. I hope readers who are young academics will consider applying for the fifth one!

Appeals Chamber Fails To See the Forest — Complementarity Edition

by Kevin Jon Heller

Earlier this week, the Appeals Chamber rejected Cote d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo. The challenge was based on Gbagbo’s 20-year sentence for disturbing the peace, forming and organising armed gangs, and undermining state security. Like the Pre-Trial Chamber, the Appeals Chamber concluded that Gbagbo’s domestic convictions failed to satisfy Art. 17’s “same conduct” requirement, making her case admissible. Here are the key paragraphs:

99. The Pre-Trial Chamber found that the conduct underlying the alleged economic crimes was “clearly of a different nature” from the conduct alleged in the proceedings before the Court, and therefore “irrelevant”.171 The Pre-Trial Chamber further found that according to the documentation provided by Côte d’Ivoire, in particular Annex 8 to the Admissibility Challenge, the alleged conduct was characterised as [REDACTED].172 In view of the description of the alleged acts provided in the material submitted by Côte d’Ivoire, the Appeals Chamber finds that it was not unreasonable for the Pre-Trial Chamber to find this conduct to be of a different nature to Ms Gbagbo’s alleged conduct in relation to the crimes against humanity of murder, rape and other forms of sexual violence, persecution and other inhumane acts, on the basis of which the Warrant of Arrest was issued against her by the Court. In addition, Côte d’Ivoire does not explain why “excessively rigid distinction” between the crimes allegedly investigated domestically and those before the Court is erroneous.

100. As regards crimes against the State, the Pre-Trial Chamber noted that in the domestic proceedings it is alleged that Ms Gbagbo [REDACTED].173 The Pre-Trial Chamber further noted that, in the domestic proceedings, “there are references to, inter alia, the allegations of [REDACTED].174 The Pre-Trial Chamber observed that the provisions criminalising such alleged conduct are included in the section of the Ivorian Criminal Code concerning felonies and misdemeanours against the safety of the State, the national defence and the public security.175 The Pre-Trial Chamber concluded that the alleged conduct only includes [REDACTED] and therefore the domestic proceedings in question “do not cover the same conduct” that is alleged in the case before the Court.176 The Appeals Chamber finds that it was not unreasonable for the Pre-Trial Chamber to find, on the basis of the description of the alleged conduct contained in the documents provided by Côte d’Ivoire, read in light of the applicable provisions of the Ivorian Criminal Code, that this conduct, characterised as infringing [REDACTED], is not the same as that alleged before the Court. In addition, as indicated earlier, Côte d’Ivoire does not explain why “excessively rigid distinction” between the crimes allegedly investigated domestically and those before the Court is erroneous.

I have no doubt that the Appeals Chamber’s application of the “same conduct” requirement is correct. But I think it is important to once again ask a basic question about the requirement: what does the ICC gain by insisting that Cote d’Ivoire surrender Gbagbo to the Court to face a second prosecution? 20 years is a significant sentence — five years longer than Lubanga’s, and eight years longer than Katanga’s. Even if the OTP manages to convict Gbagbo, she is very unlikely to receive a substantially longer sentence. So why should the ICC waste the OTP’s precious and overstretched resources by trying Gbagbo again?

My answer, not surprisingly, remains the same: it shouldn’t. The ICC simply cannot afford the kind of hyper-formalism that underlies the “same conduct” requirement. As I have argued elsewhere, the Court should defer to any national prosecution that results in a sentence equal to or longer than the sentence the suspect could expect to receive at the ICC, even if the national prosecution is based on completely different conduct than the ICC’s prosecution.

In fairness to the Appeals Chamber, it’s worth noting that Gbagbo’s attorney challenged the Pre-Trial Chamber’s application of the “same conduct” requirement; she did not challenge the requirement itself. That’s a shame, because I think Gbagbo’s case perfectly illustrates why the Appeals Chamber should jettison the “same conduct” requirement. Would it? Probably not — as I note in my article, the requirement does have a clear textual basis in Art. 20 of the Rome Statute (“upward” ne bis in idem). But the Appeals Chamber has proven remarkably willing to ignore the Rome Statute when it proves inconvenient, so it would have been worth a shot — especially as the “same conduct” requirement is fundamentally inconsistent with the principle of complementarity’s emphasis on the ICC being a court of last resort . At the very least, challenging the requirement would have forced the Appeals Chamber to explain why the requirement’s waste of OTP resources is warranted. I would have liked to read that explanation.