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Human Rights

Crossing Lines Is Back! (And Actually Better Than Ever)

by Kevin Jon Heller

I stopped watching Crossing Lines about five episodes into Season 2 – about the time the ICC started investigating a series of home invasions. (Yes, really.) I had no intention of watching again, but I decided to give the show one more try at the urging of my friend Mel O’Brien. So a couple of nights ago I watched the double episode that kicks off Season 3, which features an almost entirely new cast, including the excellent Elizabeth Mitchell and Goran Višnjić (who is Croatian, a nice touch).

To be sure, the show still has its fair share of minor annoyances. Our protagonists remain, inanely, the “cross-border team.” The magic hologram machine has yet to make an appearance, but the team does have a virtual chalkboard that would be at home in Minority Report. Donald Sutherland’s barrister robe has these weird little stubs that make it look like it came from an S&M dungeon. The South African judge is a little too gleeful when he pronounces the defendant guilty (which annoyed Mel) – and why are there approximately 10 other judges sitting around him?

There are still substantive problems, as well. The double episode revolves around the team trying to establish the reliability of documents before they are excluded by the judges – which, of course, would never happen at the ICC, given its civil-law-oriented “free proof” evidentiary regime. The judges would simply admit the documents and then take reliability issues into account when determining their probative value. And the defendant appears to be formally charged with “ethnic cleansing” – which is, of course, a non-technical term. The correct charge would have been, given the facts of the case, forcible transfer.

That said, I have to admit the double episode was pretty darn good. The defendant was a Congolese warlord accused of massacring an entire village in the eastern part of the DRC. An actual international crime – and one that didn’t even cross a border! Better, the warlord was acting on behalf of an American corporation that needed to ensure the continued supply of coltan, a rare metal necessary for its telecommunications products. The village was sitting on a particular valuable deposit of the metal, so the warlord killed its inhabitants to open the area to mining.

That is a quite sophisticated story line – and one that is very realistic. It was also particularly enjoyable to see the ICC bring the sleazy American CEO to justice – in a US court, another nice touch. (Although the substantive international criminal lawyer in me would have liked to see Donald Sutherland litigate the jurisdictional issues involved in prosecuting a national of a non-State-Party for aiding and abetting an international crime that was committed on the territory of a State Party.) If only the real ICC would go after a multinational corporation!

All in all, a job well done by the show’s writers. We’ll see if the progress lasts…

Defending the FSA Against Russia — the Jus ad Bellum Perspective

by Kevin Jon Heller

It’s been widely reported over the past few days that Russia has been bombing the Free Syrian Army under the pretext of joining the fight against ISIS. That development spurred an interesting post at Lawfare by Bobby Chesney about whether Art. II of the Constitution — the Commander-in-Chief Clause — would permit the US to defend the FSA, which it has been equipping and training. As Bobby points out, rather skeptically I think, the USG seems to believe it would (internal block quote omitted):

[I]t is an interesting legal question, especially in light of recent testimony from Under Secretary of Defense for Policy Wormuth to the effect that Article II could be invoked to permit U.S. forces to defend DOD-trained Syrian forces in the event of an attack on them by Assad regime forces.  Wormuth’s position was repeated by an unnamed “senior administration official” a few days ago.

Given this position, is there any reason to think the answer would be different if we are talking instead about Russian forces attacking those same DOD-trained units?  I see no reason why that would be the case, though the policy stakes obviously are immensely different.  Next, is there anything different if instead we are talking about CIA-trained, rather than DOD-trained, Syrian forces.  Again, I can’t see why this would alter the analysis; under the apparent theory of the Obama administration, the government already possesses whatever legal authority would be needed to use force to prevent Russian jets from striking U.S.-sponsored Syrian units.

I have no doubt Bobby’s right — as I said on Twitter, he has forgotten more about Art. II than I ever knew. I just want to point out that invoking Art. II to defend the FSA against Russia would be more than a little perverse given the status of such an attack under international law — the jus ad bellum, in particular.

Let’s start with Russia. Although its attacks on the FSA might have violated the jus in bello — I certainly wouldn’t be surprised — they did not violate the UN Charter’s prohibition on the use of force with regard to Syria, because they were conducted with the Syrian government’s consent. Nor is there any plausible argument for viewing the Russian actions as an armed attack on the US — whatever the Art. II argument about the US’s “national interest” (see this skeptical Jack Goldsmith post), an attack on the FSA is not a use of force against the US’s “territorial integrity or political independence.”

What this means, of course, is that the US could not invoke self-defense under Art. 51 to justify using force against Russia to defend the FSA — say, by destroying a Russian bomber. Not only would such a use of force create an international armed conflict between the US and Russia, it would itself qualify as an armed attack under Art. 2(4), thereby permitting Russia to use force against the US in self-defense. Russia would simply be responding to an unlawful act of aggression by the US.

(To be sure, the same analysis would apply to any US use of force against Syria in defense of the FSA. But it would obviously be a much bigger deal for the US to commit an aggressive act against a major Western power — one that is also a permanent member of the Security Council.)

Again, I have no idea how these jus ad bellum considerations affect the Art. II analysis. Knowing the US, the fact that attacking Russia would qualify as an unlawful act of aggression might be irrelevant. The optics of using Art. II to justify such an attack would nevertheless be deeply troubling, to say the least.

That “Broad Consensus” for Unwilling/Unable Just Got Less Broad

by Kevin Jon Heller

A few days ago, I pointed out that Kate Martin’s “broad consensus that there is a right to use military force in self-defense when the host country is unable or unwilling to stop the attack” actually includes no more than four of the world’s 194 states. That consensus is not exactly broad — and it looks even shakier now that Russia has apparently rejected the “unwilling or unable” test in the context of Syria:

On Saturday, France launched a campaign of airstrikes against the Islamic State in Syria. Commenting on the effort, Russian Foreign Ministry spokeswoman Maria Zakharova pondered what kind of conception of ‘self-defense’ would drive one country to carry out an operation to bomb another without that country’s explicit permission.

Earlier, Prime Minister Manuel Valls was cited by French media as saying that Paris’s bombing campaign constitutes self-defense. “We are acting in self-defense,” Valls noted, according to Reuters.

In a post on her Facebook page, Zakharova pondered that “it would be nice to know more about this concept of self-defense, in the form of air strikes [on the territory of Syria,] a state which did not attack anyone, and without its consent, and about this concept’s compliance with international law.”

The spokeswoman referred to the fact that in its air campaign against ISIL, the Western coalition never once found the need to consult with Syria’s legitimate government, and on the contrary, has repeatedly declared that the elected government of Bashar Assad cannot be part of Syria’s future.Zakharova noted that she found it entertaining that “the referendum in Crimea is called an annexation, but air strikes conducted without the approval of the Security Council or of the receiving side is self-defense.”

The spokeswoman emphasized that while “it’s clear that the Islamic State is a threat to the entire world,” first two questions must be answered: “First, who was it that created ISIL? And second, on what basis are you acting on the territory of a sovereign state, bypassing a legitimate government which not only does not support, but is selflessly fighting against ISIL?”

Zakharova concluded that “this is not international law; this is its abolition in front of a shocked international community.”

If I was being picky, I would acknowledge that Zakharova did not specifically reject “unwilling or unable.” Her emphasis on the requirement of Syria’s consent nevertheless implicitly rejects “unwilling or unable” far more clearly than the statements by various governments that supposedly — according to Ashley Deeks — support the test. So it is more than fair to count Russia in the anti-“unwilling or unable” camp.

If you’re keeping score at home, that makes it: at most four states that support “unwilling or unable”; at least one state that rejects it.

And yet scholars claim that there is a “broad consensus” in favour of the test. Thus does method die not with a bang, but a whimper.

Why It’s Counterproductive to Discuss an MH17 Tribunal

by Kevin Jon Heller

States whose nationals died in the attack on MH17 were understandably upset when Russia vetoed a Security Council resolution that would have created an ad hoc tribunal to prosecute those responsible for the attack. Their idea to create a treaty-based court, however, is simply not helpful:

Australia’s foreign minister, Julie Bishop, will meet with her counterparts from Belgium, Malaysia, the Netherlands and Ukraine on Tuesday during the annual United Nations general assembly meeting.

One of the proposals is for a tribunal similar to that established to prosecute Libyan suspects over the 1988 bombing of a Pan Am flight over Scotland.

Nations that lost some of the 298 passengers and crew in the MalaysiaAirlines disaster over eastern Ukraine in July 2014 are also looking at launching separate prosecutions.

A report by the Dutch led-investigation team, set to be published on 13 October, is understood to include evidence the plane was brought down by a Russian-made Buk missile fired from separatist territory in eastern Ukraine.

Russia has denied any involvement but in July used its veto power at the UN to block a resolution that would have formed a tribunal to bring the perpetrators to justice.

There is no question the victim states could create a tribunal via treaty — they would simply be delegating their passive-personality jurisdiction to the tribunal. The ICC is based on similar pooling of jurisdiction.

But what would creating such a tribunal accomplish? A treaty-based tribunal might have some ability to investigate the attack, given that MH17 was flying over non-Crimea Ukraine when it was shot down. But how would it get its hands on potential defendants? Pro-Russian separatists are almost certainly responsible for the attack, which means that the suspects are likely to be either in Russia-annexed Crimea or in Russia proper. Either way, the tribunal would have to convince Russia to surrender potential defendants to it — and Russia would have no legal obligation to do so as a non-signatory to the treaty creating the tribunal. That’s the primary difference between a treaty-based tribunal and a tribunal created by the Security Council: the latter could at least impose a cooperation obligation on Russia and sanction it for non-compliance. The tribunal being contemplated by the victim states could do no more than say “pretty please.” And we know how that request would turn out.

There is also, of course, that little issue of the ICC. Earlier this month, Ukraine filed a second Art. 12(3) declaration with the Court, this one giving the Court jurisdiction over all crimes committed on Ukrainian territory since 20 February 2014 — which includes the attack on MH17. So why create an ad hoc tribunal that would simply compete with the ICC? To be sure, the Court would also have a difficult time obtaining potential defendants, given that Russia has not ratified the Rome Statute. But it seems reasonable to assume, ceteris paribus, that an international court with 124 members is more likely to achieve results than a multinational court with five members. Moreover, there would be something more than a little unseemly about Australia, Belgium, and the Netherlands creating a treaty-based tribunal to investigate the MH17 attack. After all, unlike Russia, those states have ratified the Rome Statute.

The problem, in short, is not that the international community lacks an institution capable of prosecuting those responsible for the attack on MH17. The problem is that the international community has almost no chance of getting its hands on potential defendants. So until they can figure out how to get Russia to voluntarily assist with an investigation, victim states such as Australia and the Netherlands would be better off remaining silent about the possibility of a treaty-based tribunal. Discussing one will simply raise the hopes of those who lost loved ones in the attack — hopes that will almost certainly never be realised.

A “Broad Consensus” — of Between Two and Four States

by Kevin Jon Heller

Yes, the “unwilling or unable” test marches on. The latest step forward is a Just Security blog post by Kate Martin, the Director of the Center for National Security Studies, that cites absolutely nothing in defense of the test other than another scholar who cites almost nothing in defense of the test. Here is what Martin says in the context of the UK’s recent drone strikes in Syria (emphasis mine):

Some issues raised by the UK Article 51 legal theory are less controversial than others. The US and other states understand customary international law to include the right to use military force in self-defense against armed attacks, and claim the right to use military force under Article 51 outside of an armed conflict. As Lubell has noted, there is support for reading Article 51 as justifying the use of military force against non-state actors. There is broad consensus that there is a right to use military force in self-defense when the host country is unable or unwilling to stop the attack.

And what does Martin offer in support of this “broad consensus”? A link to a blog post at Lawfare by Ashley Deeks, in which Deeks (1) correctly points out that the US and UK both support “unwilling or unable,” (2) claims that “France appears to be prepared to invoke the ‘unwilling or unable’ concept in the Syria context,” and (3) states that Australia is “apparently relying on a collective self-defense of Iraq/unwilling and unable theory.”

So at most there is a “broad consensus” of four states in support of “unwilling or unable.” And perhaps there are only two. That’s quite a consensus.

This isn’t even instant custom. This is custom by scholarly fiat.

Open Letter from International Lawyers to EU States, the European Union and European Publics on the Refugee Crisis in Europe

by Başak Çalı

[Dr. Başak Çalı is Director for the Center of Global Public Law and Associate Professor of International Law at Koç University, Turkey. She the secretary general of the European Society of International Law. The following is written in her personal capacity.]

It is a rare event for international lawyers to overwhelmingly agree on the content, scope and interpretation of international law. This open letter (.pdf) from 674 international lawyers and practitioners from across the globe, including leading experts in international refugee law, concerning international law obligations to those seeking refuge is one example of this. The letter emerged from a session on ‘Refugee Crisis and Europe’ that took place at the 11th Annual Conference of the European Society of International Law in Oslo on 12th September 2015. It was open for signature for just two days, from 21st September until midnight on 22nd September 2015. The letter has been sent to EU leaders ahead of their informal meeting on migration. Due to overwhelming demands from international lawyers and EU’s ongoing discussion of the issue, the letter has been re-opened for signature until 28 September 2015 Midnight CET.

The text of 22 September states:

We, the undersigned international lawyers, gathered at the European Society of International Law 11th Annual Meeting in Oslo on 12th September 2015, and other international law scholars and experts, condemn the failure to offer protection to people seeking refuge in Europe, and the lack of respect for the human rights of those seeking refuge.

In particular, we express our horror at the human rights violations being perpetrated against those seeking refuge, in particular the acts of violence, unjustified coercion and arbitrary detention.

We note that European states have obligations not only to refugees and migrants on their territories, but that international refugee law rests on international responsibility sharing. The world’s refugees are disproportionately outside Europe. We note that over nine-tenths of Syrian refugees are in five countries, Turkey, Lebanon, Jordan, Egypt and Iraq. We note that around one quarter of Lebanon’s population comprises refugees.

We note that all European states have obligations not only to refugees as defined under the 1951 Convention on the Status of Refugees, but also to those protected against return under international human rights law and customary international law. We note that this broad duty of non-refoulement protects all those at real risk of serious human rights violations if returned. They should be afforded international protection. EU Member States have further obligations under EU law.

We urge European states and the EU to alleviate the humanitarian crisis, prevent further loss of life in dangerous journeys to Europe by providing safe passage, and live up to their obligations in international and EU law.

We recall the legacy of Fridtjof Nansen, the first League of Nations High Commissioner for Refugees, and the initiator of the Nansen passport, created to facilitate the safe passage and legal migration opportunities for refugees and stateless persons.

We urge European states and the EU to:

– meet their obligations of international responsibility-sharing, to resettle significant numbers of refugees and provide aid to countries hosting large numbers of refugees.

– as regards those seeking protection in Europe, abandon those policies which prevent safe and legal access to protection. The UNHCR estimates over 2,860 people have died at sea trying to get to Europe this year alone. Suspending carrier sanctions and issuing humanitarian visas would largely prevent the need for those seeking refuge to make dangerous journeys.

– respect and protect the human rights of those seeking refuge once they are in Europe, including by enabling them to access asylum procedures or ensuring safe passage to countries where they wish to seek international protection.

– immediately suspend Dublin returns of asylum-seekers to their first point of entry, but ensure that its rules on family reunification are implemented fully and swiftly.

– relocate asylum-seekers and refugees in a manner that respects the dignity and agency of those relocated, and increases Europe’s capacity to offer protection.

– replace the Dublin System with one which accords with international human rights law and respects the dignity and autonomy of asylum-seekers, and supports international and intra-European responsibility-sharing.

– implement fair and swift procedures to recognize all those in need of international protection.

– while claims are being examined, afford those in need of international protection, at a minimum, the reception conditions to which they are entitled in international human rights and EU law.

– respect the right to family life, including positive obligations with regard to family unity, facilitation of swift family reunification and family tracing.

– treat all refugees, asylum-seekers and migrants with dignity and respect, respecting and protecting their human rights, irrespective of status.

For the current list of signatures, please see this page.

Poor ICC Outreach — Uganda Edition

by Kevin Jon Heller

The ICC has always had a legitimacy problem in Uganda. In particular, as Mark Kersten ably explained earlier this year, the Court is widely viewed by Ugandans as partial to Museveni, despite the fact that the OTP is supposedly investigating both the government and the LRA:

From the outset, the ICC showcased a bias towards the Government of Yoweri Museveni. In 2004 and following months of negotiations, then ICC Chief Prosecutor Luis Moreno-Ocampo infamously held a joint press conference with Museveni to announce that Kampala had referred the LRA to the ICC. This was no accident. Moreno-Ocampo was made aware by his staff of the appearance of partiality that this would create. Moreover, while the referral was later amended to cover the “situation in northern Uganda”, severe damage to the independence of the Court had been done. To many in northern Uganda as well as the Court’s supporters, the Prosecutor had shown his true colours: he would only prosecute the LRA and only the LRA. In 2005, five arrest warrants were issued, all for senior LRA commanders, including leader Joseph Kony. To this day, the ICC has never emerged from under this cloud of apparent bias towards the Museveni Government. Recent events won’t foster much hope that it ever will.

Given this history, you would think the Court would go out of its way to make sure people understand that it is not investigating only the LRA. You would be wrong. As I was perusing the ICC website yesterday, I found myself on the page dedicated to the Uganda situation. Other than providing information about ongoing cases, the page simply links to two press releases — one reporting the 29 January 2004 self-referral, and one reporting the OTP’s 29 July 2004 decision to open a formal investigation. Here is the self-referral press release:

President of Uganda refers situation concerning the Lord’s Resistance Army (LRA) to the ICC


Situation: Uganda

In December 2003 the President Yoweri Museveni took the decision to refer the situation concerning the Lord’s Resistance Army to the Prosecutor of the International Criminal Court. The Prosecutor has determined that there is a sufficient basis to start planning for the first investigation of the International Criminal Court. Determination to initiate the investigation will take place in the coming months.

President Museveni met with the Prosecutor in London to establish the basis for future co-operation between Uganda and the International Criminal Court. A key issue will be locating and arresting the LRA leadership. This will require the active co-operation of states and international institutions in supporting the efforts of the Ugandan authorities.

Many of the members of the LRA are themselves victims, having been abducted and brutalised by the LRA leadership. The reintegration of these individuals into Ugandan society is key to the future stability of Northern Uganda. This will require the concerted support of the international community – Uganda and the Court cannot do this alone.

In a bid to encourage members of the LRA to return to normal life, the Ugandan authorities have enacted an amnesty law. President Museveni has indicated to the Prosecutor his intention to amend this amnesty so as to exclude the leadership of the LRA, ensuring that those bearing the greatest responsibility for the crimes against humanity committed in Northern Uganda are brought to justice.

According to the Rome Statute, the Prosecutor has to inform all States Parties to the Statute of the formal initiation of an investigation. Following this the Prosecutor may seek an arrest warrant from the Pre-trial Chamber. To take this step, the Prosecutor must determine that there is a reasonable basis to proceed with an investigation. The Prosecutor will work with Ugandan authorities, other states and international organisations in gathering the necessary information to make this determination.

President Museveni and the Prosecutor of the International Criminal Court will hold a press conference on Thursday 29 January 2004 at 18:00 at the Hotel Intercontinental Hyde Park, London.

And here is the investigation press release:

Prosecutor of the International Criminal Court opens an investigation into Nothern Uganda


Situation: Uganda

The Chief Prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, has determined that there is a reasonable basis to open an investigation into the situation concerning Northern Uganda, following the referral of the situation by Uganda in December 2003. The decision to open an investigation was taken after thorough analysis of available information in order to ensure that requirements of the Rome Statute are satisfied.

The Prosecutor has notified the States Parties to the ICC and other concerned states of his intention to start an investigation, in accordance with article 18 of the Rome Statute.

Notice the subtle change of language: whereas the first press release refers to “the situation concerning the Lord’s Resistance Army,” the second press release refers to “the situation concerning Northern Uganda.” That change reflects the OTP’s rejection of the one-sided nature of Uganda’s first self-referral, as Mark discusses above. But it’s a subtle change — and the Court does not explain it on the Uganda page or anywhere else on the website. If you’re an ICC expert, you will probably pick up on the difference yourself. But if you’re a layperson, you will come away from reading about the Uganda situation believing precisely what Mark accurately describes as being so devastating to the Court’s legitimacy: namely, that the ICC is investigating the LRA — and only the LRA.

Mark and I have each complained (see here and here) about the ICC’s inability to maintain an accessible and useful website. But at least those complains were just about how difficult it is to get documents in a timely fashion. The issue with regard to Uganda goes much deeper than that — the webpage affirmatively (if unintentionally) misleads the reader about the Court’s work in a manner that can only harm the Court.

For a struggling institution, that’s simply unacceptable.

British Government Says “Oops, Our Bad” in Terrorism Case

by Kevin Jon Heller

Well, this is a tad embarrassing for the British government. A prosecution of a Swedish national for providing support to Syrian rebels fell apart when… it became clear the British government had been providing support to the same Syrian rebels:

His lawyers argued that British intelligence agencies were supporting the same Syrian opposition groups as he was, and were party to a secret operation providing weapons and non-lethal help to the groups, including the Free Syrian Army.

Bherlin Gildo, 37, who was arrested last October on his way from Copenhagen to Manila, was accused of attending a terrorist training camp and receiving weapons training between 31 August 2012 and 1 March 2013 as well as possessing information likely to be useful to a terrorist.

Riel Karmy-Jones, for the crown, told the court on Monday that after reviewing the evidence it was decided there was no longer a reasonable prospect of a prosecution. “Many matters were raised we did not know at the outset,” she told the recorder of London, Nicholas Hilliard QC, who lifted all reporting restrictions and entered not guilty verdicts.

In earlier court hearings, Gildo’s defence lawyers argued he was helping the same rebel groups the British government was aiding before the emergence of the extreme Islamist group, Isis. His trial would have been an “affront to justice”, his lawyers said.

Henry Blaxland QC, the defence counsel, said: “If it is the case that HM government was actively involved in supporting armed resistance to the Assad regime at a time when the defendant was present in Syria and himself participating in such resistance it would be unconscionable to allow the prosecution to continue.”

I think the only surprising thing about the case is that the British government dismissed the charges. A similar US prosecution would likely have continued, with the government somehow convincing the judge to prevent the defendant from introducing evidence of its hypocrisy.

Guest Post: A Complementarity Challenge Gone Awry– The ICC and the Libya Warrants

by Jennifer Trahan

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

On July 28, 2015, a domestic court in Libya announced death sentences against Saif al-Islam Gaddafi, the son of former Libyan leader Muammar Gaddafi, and Abdullah al Senussi, who served as intelligence chief. In total, 32 former Gaddafi-era officials were convicted, including 9 who were sentenced to death. Yet, observer accounts suggest the trials were deeply flawed, lacking key fair trial protections. The possibility that Libya will carry out the death sentences is clearly of huge concern to the defendants, but should also be of concern at the International Criminal Court.

On February 26, 2011, the UN Security Council referred the situation in Libya to the International Criminal Court. The Court originally issued 3 warrants for crimes committed during the 2011 uprising, against Muammar Gaddafi, Saif al-Islam Gaddafi, and Abdullah al Senussi, charging them with murder and persecution as crimes against humanity. The case against Muammar Gaddafi was terminated after his death.

Initially at issue in both the Saif Gaddafi and al Senussi cases was whether they should be tried in Libya or at the ICC, as the ICC will only try cases where national courts are “unwilling” or “unable” to conduct the trials. The Court ruled that Saif needed to be tried at the ICC, whereas al Senussi could be tried in Libya, as he was the subject of domestic proceedings and the ICC deemed Libya “willing” and “able” to carry them out. The ICC Appeals Chamber affirmed both rulings.

Yet, despite the ruling that Saif should be tried in The Hague, he was never surrendered, and remains in Libya. His situation is complicated by the fact that he is not held by any governmental authorities, but the “Zintan” militia.

As to al Senussi, this Author thinks the Court erred in its decision. The problem with the criteria of “willing” and “able” (or that a national court is not “unwilling” or “unable” to try the accused, as it is phrased in article 17 of the Rome Statute), is that it generally ignores an equally problematic third possibility – that a national court is “all too willing” to try someone (i.e., the situation of “overzealous” national proceedings). This is a situation one can certainly anticipate any time there has been a regime change and the new government wants to “get” at officials of the past regime – in other words, potentially the situation here. The rush to justice resulting in the Saddam Hussein execution is another example.

Human Rights Watch reports that al Senussi was denied adequate time to prepare his case, and adequate assistance of counsel. Saif, who was not even present for his trial, was apparently denied both these protections, and, additionally, while trials in absentia are permitted in Libya, the procedural safeguards required for them were apparently not provided. While the death penalty is permissible under Libyan law (and its imposition alone does not necessarily mean the trials were unfair), more and more countries categorically oppose the death penalty. At minimum, where it is a possible punishment, it is especially important that fair trial guarantees are scrupulously observed.

Should this turn of events be of concern to the ICC? Indeed.

Saif was supposed to be tried at the ICC, and he could end up executed in Libya. As a result of the ICC’s rulings, a “green light” was given to al Senussi’s trial in Libya, which has also resulted in a death sentence. If the sentences are affirmed on appeal and carried out, the ICC will have played a role in allowing two executions based on trials suspected of serious due process flaws.

There is still a chance for an appeal in Libya. Libya’s Supreme Court should independently and fairly review the verdict, particularly with a view to due process. But in the mean time, more pressure should be put to bear to ensure that Saif is transferred to The Hague (where he should have been all along), and al Senussi’s counsel should move to reopen the admissibility challenge based on newly discovered information (the events in Libya), or the ICC Prosecutor’s Office should do so.

The Appeals Chamber did leave an opening in its July 24, 2014 ruling (.pdf), suggesting that it would not utterly ignore due process violations by a national court, suggesting some concerns of an “all too willing” or “vengeful” national court:

It is clear that regard has to be had to ‘principles of due process recognized by international law’ for all three limbs of article 17(2), and it is also noted that whether proceedings were or are ‘conducted independently or impartially’ is one of the considerations under article 17(2)(c). . . . As such, human rights standards may assist the Court in its assessment of whether the proceedings are or were conducted ‘independently or impartially’ within the meaning of article 17(2)(c).

To the extent the Appeals Chamber also suggested the national proceedings would have to be “completely lack[ing in] fairness” such that they fail to provide “any genuine form of justice,” before the ICC can be the proper venue, the Judges are setting the bar too high. (Alternatively, it is conceivable that, upon further inquiry, one might find even that bar met.)

It is true that the drafters of the Rome Statute specifically rejected making the lack of due process a ground for admissibility. Yet, the precedent they were dealing with at the time – the experiences of the ICTY and ICTR, where “unwilling” and “unable” trials respectively were the concern – simply do not reflect what has become the experience of the ICC. Moreover, it is quite possible –as the Appeals Chamber has done — to read a “due process” component into the language of article 17 of the Rome Statute.

Based on the events in Libya—flawed proceedings that suggest a lack of impartiality—the Court should now find the al Senussi case “admissible” at the ICC and order him transferred. If that happens, individual states and the UN Security Council should be prepared to help ensure the transfer actually happens.

These may not seem the most significant cases the ICC has on its docket (they probably aren’t), but it would be a bleak day if the ICC (and the UN Security Council) stand by and let these death sentences be carried out on cases that stemmed from the Security Council’s referral, and as to which the ICC was involved.

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.