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Human Rights

A Problematic Take on the Lubanga Trial

by Kevin Jon Heller

Justice in Conflict has a guest post today from a scholar who has written a book about the Lubanga trial. I think the post makes some excellent points about the problems with the trial. But I have serious reservations — acknowledging that I have not read the book — about the author’s take on why the trial did not focus on sexual violence:

Another [serious flaw] was the Chamber’s embargo on sexual violence. The matter of sexual violence loomed large in the trial not by its presence but by its absence. It became the trial’s trademark shame, a conspicuous token of the Chamber’s failure to place the substance of the Ituri province’s tragedy above the Chamber’s perpetual legal jousting. For most of the trial the Chamber did what it could to hear as little as possible about how frequently young women were raped and enslaved.

This is both unfair and mistaken. There is one reason, and one reason only, that sexual violence did not figure more prominently in the trial: Luis Moreno-Ocampo decided not to charge Lubanga with the relevant war crimes or crimes against humanity, choosing instead to focus exclusively on the war crime of conscripting or enlisting child soldiers. Here, for example, is what Patricia Viseur Sellers, a former Legal Advisor for Gender and prosecutor at the ICTY has to say:

Crimes of sexual violence were not charged. Such accusations were certainly within the purview of the Prosecutor. The Prosecutor could have brought charges related to sexual violence. Under the ICC Statute, enslavement, rape, torture, sexual slavery and inhuman acts are defined as crimes against humanity. In the Lubanga case, charges were brought under Article 8, war crimes, and as such could have included charges of torture, rape, sexual slavery or outrages upon personal dignity.

The Trial Chamber noted that they chose not to amend the charges. The Prosecutor could have amended the indictment at anytime prior to trial or even at a reasonable moment during the presentation of the prosecution case [to include charges for crimes of sexual violence]. The Prosecutor has suggested that to do so would have been detrimental to the due process rights of the accused. However, in the event of granting the Prosecutor’s move to amend, the Trial Chamber could have allowed the accused whatever time he needed to prepare his case in light of additional charges. That is a fairly standard procedure at other international tribunals.

Given Moreno-Ocampo’s decision to charge Lubanga solely with conscripting or enlisting child soldiers, the Trial Chamber had no choice but to limit the amount of testimony the prosecution could introduce regarding sexual violence. The Chamber explained why in paras. 629 and 630 of its judgment:

629. Notwithstanding the conclusions set out above, and given the submissions made at various stages of the proceedings, the Chamber needs finally to address how the issue of sexual violence is to be treated in the context of Article 8(2)(e)(vii) of the Statute. It is to be noted that although the prosecution referred to sexual violence in its opening and closing submissions, it has not requested any relevant amendment to the charges. During the trial the legal representatives of victims requested the Chamber to include this conduct in its consideration of the charges, and their joint request led to Decisions on the issue by the Trial Chamber and the Appeals Chamber (viz. whether it was permissible the change the legal characterisation of the facts to include crimes associated with sexual violence). Not only did the prosecution fail to apply to include rape and sexual enslavement at the relevant procedural stages, in essence it opposed this step. It submitted that it would cause unfairness to the accused if he was tried and convicted on this basis.

630. In accordance with the jurisprudence of the Appeals Chamber, the Trial Chamber’s Article 74 Decision shall not exceed the facts and circumstances (i.e. the factual allegations) described in the charges and any amendments to them. The Trial Chamber has earlier pointed out that “[f]actual allegations potentially supporting sexual slavery are simply not referred to at any stage in the Decision on the Confirmation of Charges”.1810 Regardless of whether sexual violence may properly be included within the scope of “using [children under the age of 15] to participate actively in hostilities” as a matter of law,1811 because facts relating to sexual violence were not included in the Decision on the Confirmation of Charges, it would be impermissible for the Chamber to base its Decision pursuant to Article 74(2) on the evidence introduced during the trial that is relevant to this issue.

Moreover, I think the author’s claim that “[t]he matter of sexual violence loomed large in the trial not by its presence but by its absence” is considerably overstated. Not only did sexual violence figure prominently in both the prosecution’s opening and closing arguments, as the Trial Chamber notes in its judgment, there was also considerable testimony concerning sexual violence during trial. The judgment points out in a footnote (n. 54) that 30 different witnesses, 18 female, 12 male, “referred to acts of sexual violence which they either suffered or witnessed.” And it discusses testimony given by one witness, P-0046, at length. Here is just a snippet of P-0046’s testimony:

890. According to the evidence of P-0046, all the girls she met at the demobilisation centres, except for a few who had been protected by certain women in the camps, told the witness that they had been sexually abused, most frequently by their commanders but also by other soldiers. Some fell pregnant, resulting in abortions; and there were instances of multiple abortions. The witness gave evidence that the psychological and physical state of some of these young girls was catastrophic.

891. The youngest victim of this sexual abuse interviewed by P-0046 was 12 years old. The witness stated that some of those who became pregnant were thrown out of the armed group and ended up on the streets of Bunia. Others went to join their relatives, and although they may have felt they remained part of the UPC, the latter failed to provide them with support. It was difficult to reintegrate them into their families because the girls were stigmatised, and significant mediation was necessary. The witness stated that the children provided her with a clear account of systematic sexual violence in the camps.

Should the Lubanga trial have included specific crimes of sexual violence? Absolutely. But the absence of those charges and the (relatively) limited testimony concerning sexual violence cannot be attributed to the Trial Chamber. If you are looking for someone to blame — and you should be — blame Luis Moreno-Ocampo.

NOTE: I have not addressed the victims’ efforts to add sexual-violence charges in the middle of trial. If you want to blame the Chamber for rejecting that request, fair enough. But I have already explained why I think the Chamber was correct.

Don’t Forget About Hors De Combat — Shovel Version

by Kevin Jon Heller

On January 9, Command Sergeant Major John Wayne Troxell, the senior enlisted adviser to the Chairman of the Joint Chiefs of Staff, posted a rather incendiary statement on Facebook about the future of ISIS:

ISIS needs to understand that the Joint Force is on orders to annihilate them. So, they have two options should they decide to come up against the United States, our allies and partners: surrender or die!

If they surrender, we will safeguard them to their detainee facility cell, provide them chow, a cot and due process.

HOWEVER, if they choose not to surrender, then we will kill them with extreme prejudice, whether that be through security force assistance, by dropping bombs on them, shooting them in the face, or beating them to death with our entrenching tools.

The statement has provoked horror in many quarters — particularly concerning Troxell’s colourful endorsement of beating ISIS members to death with shovels. That horror, in turn, has elicited a long post at Lawfare from Laurie Blank explaining that, in fact, beating ISIS members to death with a shovel is completely lawful. As Blank explains, IHL permits lethal force to be used against combatants, a shovel is neither an indiscriminate weapon nor one that necessarily causes superfluous injury and/or unnecessary suffering, and there is no obligation not to attack a combatant who has not affirmatively surrendered. Blank thus concludes that “[i]n fact, though gruesome, the use of a shovel to kill an enemy in combat is entirely within the bounds of the law.”

As far as it goes, Blank’s analysis of IHL is absolutely correct. Her conclusion, however, overlooks one of the most basic principles of IHL: namely, that it is categorically unlawful to intentionally attack — or continue to attack — a combatant who is hors de combat because he is unconscious or incapacitated by wounds. As Jonathan Horowitz pointed out a few days ago at Just Security, essentially anticipating Blank’s post, once an ISIS fighter was rendered unconscious or incapacitated with a shovel, it would violate IHL and be a war crime to continue to hit him:

Someone who surrenders is only one of three types of fighters that the laws of war protect from attack, known as hors de combat. The other types are 1) anyone who is in the power of an adverse party (such as an unwillingly captured ISIS fighter) and 2) anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness. What this means is that, similar to ISIS fighters who surrender, these others types of people hors de combat also can’t be legally bombed or “beaten to death with entrenching tools.” If an ISIS enemy fighter is wounded and unconscious, he surely can’t surrender. But U.S. soldiers equally can’t then legally shoot that unconscious fighter in the face. Doing so would be a war crime.

Blank knows  all three prongs of the hors de combat rule (Art. 41(1) of the First Additional Protocol) as well as anyone, which is what makes her failure to discuss that critical limitation on the lawfulness of using a shovel as a weapon all the more odd. Words don’t just matter in war, as Jonathan powerfully notes. They also matter in popular discourse. It would be very unfortunate if a reader not particularly familiar with IHL came away from Blank’s post thinking it is “entirely within the bounds of the law” to beat an ISIS fighter — or any combatant — to death with a shovel. That isn’t the law, nor should it be. Just as you can’t beat an ISIS fighter to death with a shovel after he has surrendered or been captured, you can’t beat him to death with a shovel after he is unconscious or incapacitated.

Why the New Weapons Amendments (Should) Apply to Non-States Parties

by Kevin Jon Heller

Although aggression received most of the attention at the Assembly of States Parties (ASP) last month, the ASP also adopted a series of amendments to Art. 8 of the Rome Statute, the war-crimes provision, prohibiting the use of three kinds of weapons in both international armed conflict (IAC) and non-international armed conflict (NIAC):

[W]eapons, which use microbial or other biological agents, or toxins, whatever their origin or method of production.

[W]eapons the primary effect of which is to injure by fragments which in the human body escape detection by X-rays.

[L]aser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices.

Because the weapons amendments were adopted pursuant to Art. 121(5) of the Rome Statute, they will only apply to state parties that ratify the amendments. This is, of course, the effect of the second sentence of Art. 121(5), which caused so much controversy in the context of aggression: “In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.”

Art. 121(5), however, applies only to states parties. It does not apply to states that have not ratified the Rome Statute. In the context of aggression, that limitation raised the possibility of the Court prosecuting an act of aggression committed by a non-state party on the territory of a state party — something the Court’s normal jurisdictional regime permits for war crimes, crimes against humanity, and genocide. To avoid that possibility, the ASP amended the Rome Statute to include a new provision, Art. 15bis(5), that specifically (and also controversially) completely excludes non-states parties from the crime of aggression:

In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.

I had assumed that no such jurisdictional limitation applied to the new weapons amendments. As Patryk Labuda recently pointed out on twitter, however, the ASP appears to believe otherwise. Here is the second preambular paragraph to the amendments (emphasis mine):

Noting also article 121, paragraph 5, of the Statute which states that any amendment to articles 5, 6, 7 and 8 of the Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance and that in respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding the crime covered by the amendment when committed by that State Party’s nationals or on its territory, and confirming its understanding that in respect to this amendment the same principle that applies in respect of a State Party which has not accepted this amendment applies also in respect of States that are not parties to the Statute.

The bolded language is intended to exempt non-states parties from the normal jurisdictional regime of the Court. Clause 2 states that if a state party does not ratify the weapons amendments, the Court cannot prosecute the use of a prohibited weapon either when committed by a national of that state or on the territory of that state. Clause 3 then puts non-states parties in the same position as a state party who has not ratified the amendments.

This limitation regarding non-states parties is very odd, because the ASP had every right to make the new weapons amendments applicable to non-states parties. Non-states parties are currently prohibited from using certain weapons on the territory of a state party — those that are criminalized by the Rome Statute as adopted in 1998. The new weapons amendments thus fragment the Court’s jurisdiction over non-states parties: although they cannot use poisoned weapons, asphyxiating gases, and expanding/flattening bullets on the territory of a state party, they are still permitted to use biological, fragmentation, and blinding laser weapons — even on the territory of a state party that has ratified the new weapons amendments.

I see no persuasive rationale for this asymmetry. Exempting non-states parties from the crime of aggression is one thing: aggression is a sui generis crime and was not previously within the Court’s (active) jurisdiction. But the drafters of the Rome Statute had no problem making non-states parties subject to the original war crimes involving prohibited weapons, nor did the 124 states who ratified the Rome Statute have a problem accepting the potential criminal liability of non-states parties. So why should things be any different for the new war crimes? If Russia cannot use napalm (an asphyxiating gas) on Georgian territory, why should it be able to use ricin (a biological weapon) on it?

To be sure, the same exclusion of non-states parties was included in the war-crimes amendments adopted at Kampala in 2010, which criminalized the use of poisoned weapons, asphyxiating gases, and expanding or flattening bullets in NIAC. But that limitation was largely superfluous regarding non-states parties, because the Rome Statute already criminalized the use of those weapons in IAC, the primary type of conflict in which a non-state party can be subject to the Court’s war-crimes jurisdiction. (Transnational NIACs aside.) The limitation is anything but superfluous for the new weapons amendments, because they are specifically designed, inter alia, to criminalize the use of certain weapons in IAC.

I also believe — and this is the reason I have written this post — that the exclusion for non-states parties included in the preamble to the new weapons amendments has no legal effect. The argument is a complicated one, and I have made aspects of it at length in a JICJ article on the legal status of the aggression “Understandings” that were adopted at Kampala in 2010. The basic problem is this: nothing in the amended Rome Statute excludes non-states parties from the new war crimes. That limitation exists solely in the preamble. So it is difficult to see why or even how the judges could enforce it, given that Art. 21(1)(a) of the Rome Statute specifically provides that “[t]he Court shall apply… [i]n the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence.” If the judges simply apply the Rome Statute, the Court has jurisdiction over every war crime in Art. 8 that is committed by a non-state party on the territory of a state party — including the new ones.

To be sure, one could fashion a fancy argument for applying the limitation based on Art. 31 of the VCLT, which provides that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” and deems a preamble to be part of a treaty’s context. I would be sympathetic to such an argument, because I think the point of treaty interpretation is to give effect to the intent of the drafters. But that is by no means the dominant approach to treaty interpretation. Most international-law scholars favour a “plain meaning” approach — and the Court seems to, as well. (At least when doing so expands the ambit of criminal responsibility. When it doesn’t, object and purpose tend to take over.)

Moreover, all of the other parts of the Rome Statute also qualify as “context” under Art. 31. And here the aggression amendments are, in my view, not only relevant but dispositive: if non-states parties could be excluded from the normal jurisdictional regime of the Court simply by saying as much in a preamble to an amendment, why did the ASP specifically amend the Rome Statute to exclude non-states parties from the crime of aggression? Perhaps the ASP was just being overly cautious, but that seems unlikely given how carefully almost every word of the aggression amendments was negotiated and drafted. It seems far more likely that the ASP realized — correctly, in my view — that the exclusion had to be included in the text of the Rome Statute to be given force by the judges.

In short, despite what the preamble to the new weapons amendments says, I believe that the OTP now has have every right to charge a national of a non-state party who uses (say) a biological weapon on the territory of a state party that has ratified the amendments — and the judges would have every right to convict the perpetrator of the relevant war crime. The ASP exclusion of non-states parties from the amendments has no legal effect.

NOTE: Dapo Akande has posted at EJIL: Talk! an excellent analysis of the relationship between the new war crimes and customary international law. I completely agree with him — including with his statement that, in practice, excluding non-states parties from the crimes will solve some tricky immunity problems.

How Did Carter Page Get a PhD from SOAS?

by Kevin Jon Heller

The Guardian is reporting today that Carter Page — Donald Trump’s bumbling former foreign-policy advisor, who has been interviewed quite extensively by the FBI regarding his contacts with Russia — earned a PhD from SOAS in 2011 after failing his defence twice. Here are some snippets from the story:

Page first submitted his thesis on central Asia’s transition from communism to capitalism in 2008. Two respected academics, Professor Gregory Andrusz, and Dr Peter Duncan, were asked to read his thesis and to examine him in a face-to-face interview known as a viva.

Andrusz said he had expected it would be “easy” to pass Page, a student at the School of Oriental and African Studies (Soas). He said it actually took “days and days” to wade through Page’s work. Page “knew next to nothing” about social science and seemed “unfamiliar with basic concepts like Marxism or state capitalism,” the professor said.

The viva, held at University College, London, went badly. “Page seemed to think that if he talked enough, people would think he was well-informed. In fact it was the reverse,” Andrusz said. He added that Page was “dumbfounded” when the examiners told him he had failed.

Their subsequent report was withering. It said Page’s thesis was “characterised by considerable repetition, verbosity and vagueness of expression”, failed to meet the criteria required for a PhD, and needed “substantial revision”. He was given 18 months to produce another draft.

Page resubmitted in November 2010. Although this essay was a “substantial improvement” it still didn’t merit a PhD and wasn’t publishable in a “learned journal of international repute”, Andrusz noted. When after a four-hour interview, the examiners informed him he had failed again, Page grew “extremely agitated”.

[snip]

After this second encounter, Andrusz and Duncan both resigned as Page’s examiners. In a letter to Soas, they said it would be “inappropriate” for them to carry on following Page’s “accusation of bias” and his apparent attempts to browbeat them. Andrusz said he was stunned when he discovered Page had joined Trump’s team.

Soas refuses to identify the academics who eventually passed Page’s PhD thesis, citing data protection rules.

In a statement, Soas said it had “proper and robust procedures for the award of PhDs”. It added: “All theses are examined by international experts in their field and are passed only where they meet appropriate high academic standards.”

I don’t think it is technically accurate to say that Page “failed” his defence twice. It seems more likely that each time he received a “not pass, but with major corrections” — which is not the same thing as a fail under SOAS’s PhD regulations. If a student fails, he or she cannot resubmit.

That said, I have never heard of a SOAS doctoral student being offered “not pass, but with major corrections” twice. The current regulations, which date back to at least 2014, specifically provide (section 6.9) that “[c]andidates for MPhil or PhD who are ‘not pass, but with major corrections’ are permitted one re-entry to examination.” They also require the revised dissertation be submitted within 12 months of the defence, while Page was given 18 months. It is possible, of course, that the regulations were different in 2010. But I think it’s unlikely.

It is also strange that SOAS would simply replace the original examiners with new ones after two “not pass” results and a subsequent allegation of bias. Why would a student who failed to correct his dissertation twice be given a third bite of the apple with different examiners? Page is hardly the first student to allege bias when he received a failing mark — and it’s not like he’s Saif Gaddafi or anything.

Something is seriously wrong here. SOAS is a world-class university with very high academic standards — one I’m proud to be associated with. The administration owes all of us an explanation. Hiding behind data privacy is not acceptable.

NOTE: SOAS’s Guidance for Examiners says candidates have 18 months to resubmit and at least mentions the possibility of examiners recommending “a further referral to revise and resubmit the thesis.” I am not sure how the Guidance can be reconciled with the PhD Regulations, and I presume the latter are binding.

One Step Forward for International Criminal Law; One Step Backwards for Jurisdiction

by Jennifer Trahan

[Jennifer Trahan is Associate Professor, The Center for Global Affairs, NYU-SPS and Chair of the International Criminal Court Committee of the American Branch of the International Law Association]

On Thursday, December 14, 2017, the ICC’s Assembly of States Parties (ASP) took the historic and significant decision, by consensus, to activate, effective July 17, 2018, the ICC’s jurisdiction over its 4th crime, the crime of aggression. (The Kampala crime of aggression amendment had been “adopted” in 2010 at the Kampala Review Conference, but there was a delay mechanism such that jurisdiction did not yet “activate”, but first required 30 States Parties to ratify the amendment (35 now have), and one more decision by the ASP to activate.)

The decision made by the ASP was a step forward for international criminal law, a step forward for completing the Rome Statute as envisioned in 1998 (which already included jurisdiction over 4 crimes), a step forward for carrying on the legacy of the International Military Tribunal at Nuremberg, and a step forward in trying to create more deterrence behind UN Charter article 2(4). But, it was a step backwards in how to read the Court’s jurisdiction over the crime.

While many had hoped that at the ASP, it could be agreed to simply “activate” jurisdiction by consensus (for instance, simply reflected in a sentence in a resolution), already over the past year it appeared that would not be the case. As many readers will know, there have been two different readings of what was accomplished in Kampala.

The differences in reading pertained to which States Parties would be covered by the ICC’s crime of aggression jurisdiction after activation in the situation of State Party referral or proprio motu initiation of investigation (Rome Statute article 15 bis). (Activation also triggers the possibility of UN Security Council referrals covering the crime of aggression (article 15 ter); non-States Parties were completely exempted from the crime’s jurisdictional reach already during the Kampala negotiations (art. 15 bis, para. 5).)

One reading (let us call it the Liechtenstein/Swiss/majority reading) was that after the activation decision, for purposes of State Party referrals and proprio motu initiation, ALL States Parties could be subject to crime of aggression jurisdiction, absent their lodging an “opt out” declaration, but only also if either the aggressor or victim State Party had also actively ratified the crime of aggression amendment. The other reading (let us call it the UK/French reading), was that no State Party could be covered by the crime of aggression after activation unless it had also actively ratified the amendment. (This reading results in an extremely restrictive jurisdictional regime, because, frankly, ratifying States Parties such as Liechtenstein and Botswana are not invading each other.)

After a year of a “facilitation” process, led by Austria, to try to resolve this issue, negotiations opened during the ASP. What I am calling the Liechtenstein/Swiss/majority group proposed various draft texts that could have helped bridge the gap between the two readings, with Brazil and Austria also proposing helpful suggestions. Yet, the UK/France (at times joined by Norway, Japan, Colombia, Australia, Canada and Denmark) insisted on their view simply prevailing, and, in the end, the UK and France never moved from that position. (This narrative reflects my understanding of negotiations gleaned from discussions with representatives of States Parties, as, unfortunately, members of civil society were excluded from the “closed door” negotiations.)

The desire to achieve consensus activation (meaning any State Party could block consensus) provided any single State Party (or two States Parties, as was the case here) with enormous leverage. A vote would require 2/3rd of States Parties voting for it, and a few delegations did not stay to the close of the ASP (so the full 123 States Parties were not present towards the end of the conference). Additionally, a vote suggests a divided commitment that States Parties did not appear to want, and how the vote would turn out seemed uncertain as well.

In the end, States Parties had (for many of them) the very difficult decision to make—whether to activate the crime in an historic and important decision, if it meant accepting the extremely restrictive reading of jurisdiction given by the French/UK group. (This is quite ironic because it means that the 4 states that had conducted the Nuremberg prosecutions are either now caved out of crime of aggression jurisdiction (the US and Russia as non-States Parties) or can easily do so by not ratifying the amendment (the UK and France).) On the other hand, a decision not to accept the UK/French reading meant that the negotiations would conclude with no agreement, and no clear commitment when, where or whether to resume negotiations, and no certainty that any resumed negotiation would conclude any differently in the future.

This author believes States Parties made the right decision. It was not what many of them had wanted and thought they had negotiated in Kampala. Yet, international law often moves forward in imperfect ways (the war crimes amendment also adopted at this ASP dropped a key war crime along the way). And, really, in the end of the day, all States Parties agreed that the crime of aggression is a consensual regime—and it was only how to achieve that (basically an “opt in” or “opt out” approach).

It was a large concession, which now means, at present when the crime of aggression activates on July 17, 2018 (the activation date selected in the activating resolution, ICC-ASP/16/L.10*), it will have extremely limited jurisdictional reach. The good news is the ICC will hardly be overwhelmed with cases (for those who worried about this)—it could even take years before there is a case of aggression within its jurisdiction. The bad news of course if that if one hoped the activation of the crime could have some deterrent impact in trying to prevent aggressive uses of force, including war, that deterrent impact is now lessened. (Deterrent impact is more likely now to be created through the possibility of U.N. Security Council referral—which could cover States Parties (whether or not they ratify) and non-States Parties). In terms of increasing the jurisdictional reach for purposes of non-Security Council referrals, it is now up to the ICC, civil society and States Parties to press for additional crime of aggression ratifications.

The Draft Resolution’s Curious Paragraph 3

by Kevin Jon Heller

A friend who is even more jaded than I called my attention to the following curious paragraph in the Draft Resolution the ASP has just adopted by consensus:

3.    Reaffirms paragraph 1 of article 40 and paragraph 1 of article 119 of the Rome Statute in relation to the judicial independence of the judges of the Court.

This paragraph is new — it was not included in the earlier Draft Resolution I blogged about. For those of you who are not total Rome Statute nerds, here is the text of the two referenced articles:

Art. 40(1): “The judges shall be independent in the performance of their functions.”

Art. 119: “Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court.”

I think my friend is right: Paragraph 3 likely represents the last gasp of the opt-out camp — a shameless plea to the judges to ignore the text and drafting history of the Draft Resolution and require states that have not ratified the aggression amendments to opt-out. Fortunately, as jaded as I am about the ICC’s judges, I think the likelihood of the plea ever succeeding is essentially zero. The text and drafting history are too clear. Moreover, a decision to adopt the opt-out position despite the text and drafting history of the Draft Resolution would be catastrophic for the Court. It would be bad enough if the OTP brought aggression charges against a state party that had not ratified the amendments. It could be the end of the Court — and I am not being Chicken Little here — if the judges permitted such charges to proceed. Such a decision could easily lead to the UK, France, Japan, and others to withdraw from the Court. And they would be justified in doing so.

The judges’ relentless judicial activism has damaged the Court enough. If the Court is to have any future — one in which states cooperate with it and use their muscle to ensure that it succeeds — states have to be confident that the judges will respect their will, even when that will is less than ideal.

Paragraph 3 should never have been included in the Draft Resolution.

ASP Adopts the Aggression Amendments by Consensus

by Kevin Jon Heller

It went down to the wire, but it’s over. States reached consensus on adopting the aggression amendments — after those in the opt-out camp gave in to the opt-in camp. The adopted Draft Resolution provides the following:

Confirms that… in the case of a State referral or proprio motu investigation the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments.

This language is unequivocal, going well beyond the Draft Resolution I referenced in my previous post. Under the adopted Resolution, state parties do not have to do any in order to remain outside the Court’s aggression jurisdiction. Unless a state party ratifies or accepts the aggression amendments, it will be in the same position as a non-state party.

Having received a few rather nasty emails regarding my defense of the opt-in position, I want to make my substantive views clear. Although I completely agree with the opt-in states that, as a matter of treaty law, they could not be subjected to the Court’s jurisdiction over aggression in any way unless they ratified the aggression amendments, that is not my preferred jurisdictional regime. On the contrary, I believe that aggression should be governed by the same regime — automatic jurisdiction — that applies to the other core crimes. In particular, I strongly dislike the decision to exempt non-states parties from the Court’s jurisdiction even when one of their nationals commits the crime of aggression on the territory of a state party. I see no reason why state parties should not be protected against aggression by non-party states in the same way they are protected against war crimes, crimes against humanity, and genocide.

My reservations aside, this is clearly an historic day. Kudos to all the states, NGOs, and individuals — I am so glad the inestimable Ben Ferencz lived to see this — who made the activation of aggression possible.

A Different View of the Aggression Activation Negotiations – A Perspective from the Ground

by Gregory Gordon

[Gregory Gordon is Associate Professor of Law at the Chinese University of Hong Kong]

I’m here on the ground in New York and I want to provide an additional perspective on Kevin’s post. First, the document he has posted is strictly a transitory draft meant only to facilitate discussion. In no way does it necessarily represent any hardened position of the delegates. From what I understand, there is no consensus on it and the parties have moved on from it.

Second, even if it did represent the final word, his understanding about OP(1)(a) and (b) is not necessarily accurate. ICC-ASP/16/L.9/Rev.1 OP (1)(a) only acknowledges the position of those States Parties (i.e., the UK/France camp), which is already reflected in the Report on the facilitation, statements made here upon adoption of any resolution, or by letter to the ASP by 31 December 2018. Subsection (b) applies only to the States Parties referred to in (a). Kevin provides his interpretation that “they” extends to all other States Parties. But the understanding of folks here on the ground is that (b) is limited to those States Parties in (a).

Kevin is entitled to his interpretation — but it does not seem to accord with the tenor of negotiations. Moreover – and this is very important – and in all due respect to Kevin – at this point, it is not helpful to speculate on either the process or substance of negotiations that remain active and have a way to go prior to a final decision (either way) by States Parties. I appreciate that he is trying to stimulate interested discussion – that’s his right – but given the delicate nature of negotiations, public comment could have a potentially misleading and unintended detrimental effect. ICC-ASP/16/L.9/Rev.1, which Kevin has posted in its entirety, was not intended to be publicly released. There are good reasons for that. Many of us here are hoping that this delicate negotiation process will lead to an outcome that will contribute toward the progressive development of international criminal law. Let us hope those delicate negotiations – still very much in train — come to fruition.

The Opt-Out Camp Possibly Folds — Clearing Way for Aggression?

by Kevin Jon Heller

A new document is being circulated at the Assembly of States Parties entitled “Draft Resolution: Activation of the jurisdiction of the Court over the crime of aggression.” Operative Provision 1(b) seems to indicate that the opt-out camp, led by Liechtenstein, has conceded the jurisdictional point to the opt-in camp, led by Japan, Canada, and the United Kingdom. Here is the text of OP1(b):

(b)    The Assembly unanimously confirms that, in accordance with the Rome Statute, in case of a State referral or proprio motu investigation the Court shall not exercise its jurisdiction in respect of the crime of aggression when committed by nationals or on the territory of the States Parties referred to in subparagraph (a), unless they ratify or accept the amendments regarding the crime of aggression.

The provision makes clear that the Court will have no jurisdiction over any act of aggression involving a state party that does not ratify or accept the aggression amendments — thus placing states parties in the same position as non-state parties.

There is, however, one twist. To take advantage of OP1(b), a state will have to make its agreement with the opt-in camp known by no later than 31 December 2018, when the Court’s jurisdiction will begin. That’s the result of reading OP1(b) in conjunction with OP1(a). Here is the text of the latter provision:

(a)      The Assembly acknowledges the positions expressed by States Parties, individually or collectively, as reflected in the Report on the facilitation or upon adoption of this resolution to be reflected in the Official Records of this session of the Assembly or communicated in writing to the President of the Assembly by 31 December 2018 that, for whatever reason, including based on paragraph 5 of article 121 of the Rome Statute, they do not accept the Court’s exercise of jurisdiction over the crime of aggression unless they ratify or accept the amendments regarding the crime of aggression,

I can’t see why the Draft Resolution would not satisfy the opt-in states. So if the opt-out camp supports the resolution, it should ensure that the aggression amendments are adopted by consensus later today.

NOTE: As I read the Draft Resolution, states that join the Court after 31 December 2018 would have to opt-out of aggression jurisdiction, because OP1 would not apply to them. That’s an interesting twist/compromise!

The Puzzling US Submission to the Assembly of States Parties

by Kevin Jon Heller

The US submission to the ASP has finally appeared. It is not very long — about 1.5 pages — but manages to pack in a good number of false claims and bizarre interpretations of the Rome Statute.

In terms of falsity, the US repeats its longstanding claim that the Court has no jurisdiction over the nationals of non-state parties, even when those nationals are responsible for an international crime committed on the territory of a state party (p. 1):

As an initial matter, and as we have consistently emphasized, the United States is not a party to the Rome Statute and has not consented to any assertion of ICC jurisdiction, nor has the Security Council taken action under Chapter VII of the UN Charter to establish jurisdiction over U.S. personnel. It is a fundamental principle of international law that a treaty is binding only on its parties and that it does not create obligations for non-parties without their consent. The Rome Statute cannot be interpreted as disposing of rights of the United States as a non-Party without U.S. consent.

This is wrong, for reasons Dapo Akande has patiently explained. It’s also completely hypocritical, because the US had no objection to the Special Court for Sierra Leone (SCSL) prosecuting Charles Taylor, a Liberian national, even though the SCSL was created by an international agreement — between the UN and Sierra Leone — to which Liberia was not a party. Indeed, the current US submission emphasises that it was “one of the most vocal supporters for the creation of tribunals to try those most responsible for atrocities committed in Rwanda and Sierra Leone.”

The most bizarre argument in the submission has to do with the principle of complementarity (p. 1):

Additionally, we are concerned about any ICC determination — as required by the Rome Statute’s core principle of complementarity — on, for example, the genuineness of U.S. legal proceedings without United States consent. The principle of complementarity fundamentally limits the ICC’s exercise of jurisdiction to those cases in which a State is genuinely unwilling or unable to comply with its duties, such as those under the Geneva Conventions, to investigate and prosecute war crimes, genocide, and crimes against humanity. Just as we have not consented to jurisdiction over our personnel, we have not consented to the ICC’s evaluation of our own accountability efforts.

This is literally nonsense. The ICC would only formally assess complementarity in the context of a specific prosecution of an American national — and would only do so (practically, if not because of a legal limitation) if the US decided to challenge the admissibility of a case. So the US would have to “consent” to the Court examining the genuineness of American proceedings if it wanted to head off a prosecution. Beyond that, consent has nothing to do with complementarity.

I will avoid making snarky comments about the US’s claim (p. 2) that it “has undertaken numerous, vigorous efforts to determine whether its personnel have violated the law and, where there have been violations, has taken appropriate actions to hold its personnel accountable.” But I can’t let the following claim (p. 2) go unremarked:

Indeed, we note the irony that in seeking permission to investigate the actions of U.S. personnel, the Prosecutor appears to have relied heavily upon information from investigations that the United States Government itself decided to make public. We question whether pursuing this investigation will make other countries less willing or able to engage in similar examinations of their own actions and to be transparent about the results.

This is, well… ironic. The OTP’s request to open an investigation into Afghanistan notes multiple times (see para. 27 for an example) that the US refused to cooperate with the preliminary examination. And the request relies very heavily on the executive summary of the Senate Intelligence Committee’s “Study of the Central Intelligence Agency’s Detention and Interrogation Program” — which the White House and CIA tried desperately to keep from ever seeing the light of day.

All that said, I am delighted by the following statement in the US submission (p. 1; emphasis mine):

The principle of complementarity fundamentally limits the ICC’s exercise of jurisdiction to those cases in which a State is genuinely unwilling or unable to comply with its duties, such as those under the Geneva Conventions, to investigate and prosecute war crimes, genocide, and crimes against humanity.

The US has now formally acknowledged that it has a duty under international law “to investigate and prosecute war crimes, genocide, and crimes against humanity”! That is a bold and progressive claim, especially with regard to crimes against humanity, for which there is no treaty that demands either investigation or prosecution. I imagine that position will come as something of a surprise to the parts of the US government that were not involved in drafting the submission…

The US’s ASP submission: wrong, bizarre, but surprisingly — and probably inadvertently — progressive.

Against (False) Consensus — the ASP and the Aggression Amendments

by Kevin Jon Heller

Although many important issues will be discussed this week at the Assembly of States Parties (ASP), none will be quite so momentous as the decision to activate the ICC’s jurisdiction over the crime of aggression. Whatever one thinks of the merits of the definition of aggression, there is no question that the activation of jurisdiction will represent the culmination of seventy years of efforts to deem aggression an international crime.

When the ASP finally makes a decision concerning the aggression amendments, the Rome Statute will encourage it to do so by consensus. The relevant provision is Art. 112(7):

Each State Party shall have one vote. Every effort shall be made to reach decisions by consensus in the Assembly and in the Bureau. If consensus cannot be reached, except as otherwise provided in the Statute:

(a)     Decisions on matters of substance must be approved by a two-thirds majority of those present and voting provided that an absolute majority of States Parties constitutes the quorum for voting;

(b)     Decisions on matters of procedure shall be taken by a simple majority of States Parties present and voting.

With regard to amendments, the Rome Statute does “otherwise provide.” According to Art. 121(3), “[t]he adoption of an amendment at a meeting of the Assembly of States Parties or at a Review Conference on which consensus cannot be reached shall require a two-thirds majority of States Parties.” Similarly, Art. 123(3) says that “[t]he provisions of article 121, paragraphs 3 to 7, shall apply to the adoption and entry into force of any amendment to the Statute considered at a Review Conference.”

The aggression amendments were adopted by consensus at the 2010 Review Conference held in Kampala. That was a mistake, because there was no genuine consensus at Kampala concerning one particularly critical issue: whether the Court will have jurisdiction over an act of aggression committed on the territory of a state party that has ratified the aggression amendments by a national of a state party that has not ratified them. States have taken diametrically opposed positions on that issue. Most — led by Liechtenstein — believe that the Court will have jurisdiction in that situation unless the non-ratifying state formally opts-out of the crime of aggression. But some — led by Japan, Canada, and the United Kingdom — insist that the Court will have no jurisdiction because non-ratification is enough.

I don’t want to re-litigate the merits of the debate. Regular readers know I agree with the Japan/Canada/UK group. My point is more modest: to call attention to the danger that false consensus poses to the legitimacy of the crime of aggression. By adopting the aggression amendments by consensus, instead of through a formal vote, the ASP made possible the kind of bitter disagreement that has characterized the state-party opt-out/opt-in debate. Just consider the following paragraphs from the ASP’s most recent report concerning the facilitation of aggression’s activation (emphasis mine):

19. Some delegations suggested that a declaration lodged with the Registrar, indicating that a State Party did not accept the jurisdiction of the Court over the crime of aggression, would bring the desired clarity. These delegations stressed that the negotiating history of the amendments during the Special Working Group on the Crime of Aggression as well as during the Review Conference offered clear evidence of the correct legal interpretation of the agreement reached in Kampala… By enabling States Parties to declare that they do not accept the jurisdiction of the Court in respect of crimes of aggression committed by their nationals (“opt-out”), the compromise agreed in Kampala had chosen the middle-ground between two opposing positions. It was explained that the Review Conference had considered the opposing position papers concerning the second sentence of article 121, paragraph 5, (the so-called “positive” and “negative” understandings), which both were ultimately deleted in favor of including the opt-out regime. As a result, in their view the compromise reached at the Review Conference was clear, and jurisdiction of the Court could extend to nationals of those States Parties which had not ratified the amendments, unless they opted out.

20. Other delegations took the view that too much emphasis was being placed on the negotiating history of the amendments and on concessions or compromises, rather than on legal principles and the plain meaning of the texts. These delegations explained that they had left the Review Conference with a different understanding, namely that the amendments would not apply to those States Parties which would not ratify them. In their view, open legal questions as to the implications of activation remained. These had not been solved during the seven years since the Review Conference, in spite of ratifications by 34 States Parties. It was pointed out that negotiations at the Review Conference could not have the effect of changing treaty rights and obligations. Accordingly, it was important to focus on the ordinary language of the text as there were differing understandings of the negotiating history, since it was also possible to explain the opt-out as something that was available to ratifying States Parties. These delegations questioned how they could be required to take action to opt out of the Court’s jurisdiction if they had not chosen to opt in by ratifying the amendments in the first place.

This is false consensus, not genuine consensus. State have been debating the opt-out/opt-in point for seven years as a result of the “consensus” at Kampala — debate that has overshadowed the importance of the aggression amendments themselves and has cost the ASP significant time that could have been better spent debating other issues.

Both camps deserve blame for this situation. The “opt-out” camp deserves blame for continuing to insist that genuine consensus existed at Kampala even though it’s quite clear it did not. And the “opt-in” camp deserves blame for permitting the aggression amendments to be adopted by consensus even though they knew disagreement existed about such a fundamental issue.

It will be interesting to see what happens this week at the ASP. There are rumblings — according to my well-connected friend Don Ferencz — that the opt-in group might put up a fight:

The member states of the Court will meet at UN headquarters in New York from December 4th to 14th to address making good on the pledge which they made in Kampala. Although 34 nations have already ratified their acceptance of the Court’s aggression jurisdiction – including over half of the members of NATO – Britain and France have not. Instead, they have joined with a handful of states, including Japan, Canada, Norway, and Colombia, in tacitly threatening to defeat activation of the Court’s aggression jurisdiction by their insistence that the Court must first clarify that the aggression amendments will not apply to leaders of any state that does not independently ratify them…

It is significant that the upcoming decision on aggression is expected to be undertaken pursuant to a consensus resolution. This means that the activation resolution must either be adopted by unanimous approval or not adopted at all. In such circumstances, each member state of the Court has the power to thwart the will of even an overwhelming majority simply by not consenting to the adoption resolution, regardless of the express terms of what was unanimously agreed to in Kampala. The non-ratifying countries which are demanding clarity that their leaders will remain beyond the Court’s reach on the crime of aggression, therefore, each have a potentially game-ending card to play in opposition of the final approval. The question is, with the whole world watching, do they dare play it?

My personal hope is that the opt-out camp will give in and accept the opt-in camp’s position that the Court will have no jurisdiction over a state party that does not ratify the aggression amendments — thereby creating genuine, if forced, consensus. Not only do I think that opt-in is the correct legal position, I am very skeptical that the opt-out camp would have enough votes to adopt the aggression amendments over the objections of the opt-in camp. According to paragraph 28 of the ASP’s facilitation report, they would need 82 in the absence of consensus. And that seems unlikely, given what I’ve heard about the number of states that are either opt-in or plan to abstain on any vote to activate the Court’s jurisdiction over aggression.

UPDATE: I have updated the post to mention Arts. 121(3) and 123(3) of the Rome Statute, as well as my understanding of the state of play concerning the vote to activate jurisdiction.

Reminder: Seventh Annual Junior Faculty Forum for International Law

by Kevin Jon Heller

Reminder: Deadline for Applications for Seventh Annual Junior Faculty Forum for International Law—May 28, 29 and 30, 2018

This is a brief reminder that applications for the Seventh Annual Junior Faculty Forum for International Law are due on Dec. 15, 2017. The Forum will be convened by Anne Orford (Law – Melbourne), Dino Kritsiotis (Law – Nottingham) and J.H.H. Weiler (Law – NYU) and will be held at the University of Melbourne in May next year. Full details of the application process are available on the Forum website (http://annualjuniorfacultyforumil.org/). Applications are welcome!