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Human Rights

The Arbitrariness of ICTY Jurisprudence (Specific-Direction Style)

by Kevin Jon Heller

Last week, the ICTY Appeals Chamber reversed the acquittals of Jovica Stanisic and Franko Simatovic, the former head and deputy head of the Serbian secret police under Milosevic, and ordered them retried. One of the two grounds for reversal was the Trial Chamber’s adoption of the specific-direction requirement; in the majority’s view (the vote was 3-2), specific direction is not an element of the actus reus of aiding and abetting.

As Marko Milanovic notes today at EJIL: Talk!, the outcome of the Stanisic & Simatovic appeal was completely predictable, because all three of the judges in the majority — Pocar, Liu, and Ramaroson — were also in the majority in Sainovic, in which the Appeals Chamber first rejected its earlier decision in Perisic to adopt the specific-direction requirement. Indeed, Liu and Ramaroson had each rejected the requirement in Perisic, as well.

But here is what’s interesting: Stanisic & Simatovic was completely predictable only because Judge Meron replaced two judges that were originally assigned to the appeal. The original five judges were Meron himself, Agius, Pocar, Liu, and Khan. Two of those judges were in the majority in Perisic (Meron and Agius) and two, as noted, were in the majority in Sainovic (Pocar and Liu). Assuming that none of those judges changed his mind about specific direction, the deciding vote would thus have been Khan, who had not yet expressed an opinion on the doctrine.

The calculus changed, however, when Meron made the first change — replacing himself with Judge Afande. That change meant that there was now only one judge in favour of specific direction (Agius), two judges against it (Pocar and Liu) and two judges who had not yet taken a position (Khan and Afande). That was still an unpredictable panel, even though it now leaned toward rejecting specific direction.

And then came Meron’s second change: replacing Judge Khan with Judge Ramaroson. That change meant the writing was on the wall, because the lineup now included one judge in favour of specific direction (Agius), three judges against it (Pocar, Liu, and Ramaroson), and one judge who had not taken a position (Afande). So it no longer mattered what Judge Afande thought.

There is no reason to believe anything untoward explains Meron’s changes; after all, he supported specific direction in Perisic. But it’s regrettable that it was so easy to predict the outcome of the Stanisic & Simatovic appeal simply by counting judges — as Marko notes, “this unfortunately exposes some of the arbitrariness inherent in judicial decision-making in borderline cases.” The substance of ICTY jurisprudence should not be decided by which judges the President decides to appoint to an Appellate Bench. (In this regard, the structure of the ICC’s judiciary is vastly superior. At the ICC, all five judges in the Appeals Division hear every appeal.)

My position on the specific-direction requirement is well known, so I won’t rehash it here. But I will end this post by noting that the only unknown quantity in Stanisic & Simatovic, Judge Afande, concluded in his dissent that specific direction is an inherent aspect of aiding and abetting — precisely what I’ve been arguing. Win the battle, lose the war…

Transitional Justice and Judicial Activism Symposium: Closing

by Ruti Teitel

[Ruti Teitel is the Ernst C Stiefel Professor of Comparative Law, New York Law School and the author of Globalizing Transitional Justice (OUP paper2015).]

I have learned a great deal from the thoughtful responses to my article (.pdf) by the participants in this symposium. Dinah PoKempner is correct to say that my article doesn’t address the merits of a “right of accountability” as such but rather looks to how the move to judicialization and application of human rights law interacts with political and other domestic processes of transition. She speculates that “the judicial recognition of such duties is unlikely to narrow the ambit of transitional justice.” Clearly more research here is needed to see how these processes interact: one could conclude that it might well engage in constructive way with transition. Dinah concludes that the problem is that there is too little in the way of human rights law associated with the transition, rather than too much. The question here may be less the ambit of the right to accountability in itself than the nature of the remedies that tribunals impose, and their relationship to the domestic processes of transitional justice.

One example, which I discuss in my article is, is Goiburu, where the Inter-American Court required that Paraguay’s create a museum, which would honor the victims of human rights abuses in the conflict of the past. Such a remedy arguably risks preempting truth processes where all sides the conflict have an opportunity to address narratives of truth. While Dinah concludes that “(t)he repertoire of transitional justice is likely to remain broader than the jurisprudence of human rights courts, which serve a different end, and a different pace” from its very inception the Inter American Court of Human Rights has been drawn into the issue of accountability relating to transitions.

On the other hand, Cesare Romano suggests as an implication of my analysis the notion that international courts exercise discretion in taking jurisdiction, based on the nature of the issues at stake in the dispute, and the extent to which its underlying character is political. Drawing upon the current peace deal in Havana between Colombia and the FARC, which does not contemplate a maximalist approach to justice, Cesare raises the question of whether such a deal would withstand scrutiny given the jurisprudence in my article. He argues that the” time has come to start considering the merits of allowing international adjudicative bodies, like the various international human rights courts, and quasi-adjudicative bodies, like the Inter-American Commission and the Human Rights Committee, to pick and choose their cases.”

At present they have no such choice, Cesare continues:

Faced with inopportune cases, international adjudicative bodies too often end up compromising their legitimacy. They stall, dither, and, eventually, render flawed decisions that try to square the circle and appease everyone but end up appeasing no one. And when they take advantage of the little leeway they have and manage to dodge the case, they are open to criticism because of the lack of transparency about the considerations that have been weighted.

His proposal that international tribunals would have discretion to refuse cases say along political question lines is very interesting. No doubt, where a tribunal is long established and has acquired considerable legitimacy and recognized independence this could work. In other instances, where there is a greater fragility, the result might be undue political pressure on a tribunal not to adjudicate in controversial cases. The concern is that since transitional justice issues involve both law and politics that genuine legal disputes would be screened out due to political questions and the right of accountability might well be elided altogether.

Chandra Sriram questions the use of the term “crossjudging” to denote the influence of the jurisprudence of one tribunal on another.

In my view “cross-judging” is a broader notion than transnational judicial dialogue or cooperation because it can denote the use by a tribunal of another’s jurisprudence in the manner of simply drawing on the relevant normative material, i.e. without networking or any interaction between the judges. In this sense “cross-judging” points to a rich universe of case law in the international domain that is relevant, whether or not tribunals or judges choose to interact explicitly.

Chandra also makes several observations that to go issues of state responsibility, a focus of international law/ she underscores an issue at the heart of my article which goes to accountability for disapprearances where there is often blanket denial : “Judgments have relied on a mixture of state responsibility for direct action by its agents, and of state inaction. “ She invites me to expand on this issue “particularly in light of two challenges which confront international criminal and transitional justice: the role of non-state actors in serious abuses, and modalities of interpreting complicity and joint criminal enterprise “

Kristen Boon’s post addresses “the undercurrents of state responsibility” raised by my article.
Boon writes:

As conceptualized in her article, the right to accountability is a primary rule of international law that is based in treaty law, and particularly the right to life. It is also connected to other sources such as the International Convention for the Protection of All Persons from Enforced Disappearances, and Article 7 of the Statute of the ICC. There is, of course, no “right to accountability” as such.

She rightly notes that the emergence of the norm of right to accountability doesn’t settle but continues to create challenges re secondary rules particularly regarding attribution. I agree. One issue for instance is whether there might be attribution where a state egregiously fails to investigate alleged human rights abuses over a long period of time, simply foreclosing accountability. In some circumstances, could one draw the inference that, in doing nothing to address the wrongfulness of the conduct that the state is adopting or acknowledging that conduct as its own within the meaning of Article 11 of the ILC Articles. This is just to illustrate that the question of attribution cannot be reduced to considerations simply of state “control” when we are dealing with the right to accountability

Moreno-Ocampo Needs a Remedial Criminal Law Course

by Kevin Jon Heller

Here is Moreno-Ocampo’s latest doozy, concerning the possibility of Israelis being prosecuted for war crimes related to Israel’s illegal settlements in the West Bank:

Where the Israeli High Court of Justice has approved specific settlements as legal, this could provide a complete defense to any allegations that they are war crimes, former International Criminal Court chief prosecutor Luis Moreno-Ocampo told the Jerusalem Post on Thursday.

Moreno-Ocampo is in Jerusalem lecturing at the The Fried-Gal Transitional Justice Initiative at the Hebrew University Law School.

Although Moreno-Ocampo has stepped down from his post, he was the boss of the current ICC chief prosecutor who will decide whether or not the settlements qualify as a war crime, is considered highly influential internationally and his statement could be a major coup in the debate over the issue.

Moreno-Ocampo did not by any means say that the settlements were legal under international law.

But he did say that “Israel’s High Court is highly respected internationally” and that anyone prosecuting Israelis regarding settlement activity would be incapable of proving criminal intent if those Israelis explained that they honestly believed their actions were legal once ratified by the country’s top court.

“At least they could show no intention” to commit a crime said the former chief ICC prosecutor.

Few ICL scholars are more sympathetic to mistake defences than I am (see this article), but Moreno-Ocampo’s statements simply make no sense. Most obviously, Art. 32(2) of the Rome Statute specifically recognises the principle ignorantia legis neminem excusat — ignorance of the law excuses no one:

A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility.

Art. 32(2) applies regardless of whether a defendant was simply unaware that his actions were illegal (ignorance) or affirmatively believed that they were legal (mistaken belief). So if an Israeli was prosecuted for committing a settlement-related war crime — transfer of civilians into occupied territory, forcible transfer, pillaging, etc. — it would not matter that he either did not know international law criminalised his actions or believed that his actions were legal because the Israeli Supreme Court had approved the legality of settlements. The only question would be whether he committed the actus reus of the war crime in question with the necessary mens rea.

To be sure, some common-law systems provide an exception to the ignorantia legis principle where the defendant has reasonably relied on an official interpretation of the law. Moreno-Ocampo’s emphasis on the reputation of the Israeli Supreme Court suggests he might be thinking about that exception. But there are two significant problems here. First, no such exception exists in the Rome Statute, as the text of Art. 32(2) makes clear. Second, even if there was one, the ICC would be very unlikely to conclude that an Israeli defendant could reasonably rely on a statement by an Israeli court — even a supposedly “highly respected” one (which is questionable) — that settlements are legal. That would obviously be the case if the Israeli Supreme Court affirmed that the settlements were legal under Israeli law; no international tribunal has ever allowed such a “domestic legality” defence. And I seriously doubt that the ICC would find it any more reasonable for an Israeli defendant to rely on an Israeli court’s interpretation of international law, given the widespread international rejection of official Israeli positions on a variety of international-law issues.

Finally, we might be generous and assume that Moreno-Ocampo was actually thinking not about Art. 32(2) of the Rome Statute, but about Art. 32(1), which recognises mistakes that negative mens rea:

A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.

In this interpretation, Moreno-Ocamp is actually arguing that an Israeli defendant who knew the Israeli Supreme Court had approved the legality of the settlements would not have the mental states required by any of the various settlement-related war crimes. But that is a flawed argument, because none of those war crimes require a mens rea that would be negated by a belief in settlement legality. Consider, for example, the elements of the war crime of direct or indirect transfer, Art. 8(2)(b)(viii) of the Rome Statute:

1. The perpetrator: (a) Transferred, directly or indirectly, parts of its own population into the territory it occupies…

2. The conduct took place in the context of and was associated with an international armed conflict.

3. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

In terms of mens rea, Art. 8(2)(b)(viii) requires the prosecution to prove that the defendant (1) intentionally engaged in the acts that qualified as direct or indirect transfer; (2) knew that Israeli civilians were moving into occupied territory; and (3) knew that Israel exercised effective control over the West Bank at the time of the transfer. The defendant’s belief that settlements are legal would not negate either of those mental elements, so Art. 32(1) would not apply.

No matter how we interpret it, then, Moreno-Ocampo’s statement about the Israeli Supreme Court makes no sense as a matter of substantive international criminal law. Israel relies on the “expertise” of this “highly influential” former prosecutor at its own peril…

Transitional Justice and Judicial Activism Symposium: Comments by Chandra Lekha Sriram

by Chandra Lekha Sriram

[Chandra Lekha Sriram, Professor of International Law and International Relations and Director, Centre on Human Rights in Conflict, University of East London.]

This insightful article covers a great deal of subject matter, far more than can be analysed in a brief comment. These include not only the topics signaled by the title, but also the relationship between transitional justice and international criminal accountability and between transitional justice and the jurisprudence of regional courts. The primary focus of the article is the jurisprudence of regional courts, specifically the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR), on forced disappearances and its relationship to political transitions. It necessarily touches upon a number of complex issues that continue to bedevil transitional justice and international criminal justice, and I will take up a few of these.

State perpetration and state inaction
The paper understandably begins with the jurisprudence of the IACtHR) and the Velasquez-Rodriguez, relating to enforced disappearances in Honduras. As with many of the cases to follow, while the pattern of state perpetration appeared evident, the state engaged in blanket denial of responsibility, and evidentiary difficulties have meant that judgments have relied on a mixture of state responsibility for direct action by its agents, and of state inaction. Teitel rightly flags this issue, but doesn’t expand on it as she might do, particularly in light of two challenges which confront international criminal and transitional justice: the role of non-state actors in serious abuses, and modalities of interpreting complicity and joint criminal enterprise.

Transnational/regional state violence
Not surprisingly given the history of transnational violence and inter-state collaboration in abuses via Plan Condor in South America, the IACtHR has had to render judgments on regional violence. Yet, while its decisions have referred to regional patterns of violence, they haven’t grappled sufficiently with additional challenges that state collaboration may have for questions of state responsibility, either for breaches of obligations to their own citizens or potentially those in relation to other states. Teitel explains that the trend is to treat such violations as erga omnes and thus of concern to the international community generally; this turn also appears to underpin treatment of temporal jurisdiction encompassing violations which predate some states’ acceptance of the jurisdiction of the court. Each of these trends seem open to question, and the essay might have interrogated these further.

Justice in and for strong vs weak states
The article argues that there has been a shift from strong to weak state transitional justice, in states with weak rule of law, with concomitant effects for regional and international courts. Certainly, it is notable that many of the situation countries at the International Criminal Court (ICC) are either emerging from serious internal armed conflict or are dysfunctional or collapsed states. However, these countries are all in Africa, with only Georgia now the subject of a non-African request for the opening of an investigation, and therefore not subject to the jurisdiction of either of the regional courts examined in the article. Further, while it is true that some of these states do have weak or failing judiciaries, many do not, although those judiciaries may well be corrupt or biased. Further, many states of interest for the article are not weak or collapsed, and are able to resist implementing judgments, either thoroughly or at all, such as Russia or Brazil. Even some ICC situation countries are quite strong, or at least able to resist external courts, such as Sudan, Kenya and Uganda. The claim regarding this trend needs more justification, particularly as there are important implications noted, such as that it is concomitant with an expansion of legal obligations and rights.

Cross-judging or transnational legal culture?
The article develops the concept of “cross-judging”, or interpretation across legal systems. She characterizes this largely as the cross-referencing of cases between the two regional courts. However, one might ask for a greater examination of the use of similar doctrines and practices across not only these courts but also others, as she begins to discuss when addressing subsidiarity, deference, and the ICC principle of complementarity. Here, an examination of the work of the African Court of Human and People’s Rights might have provided an additional comparative perspective, particularly given that court’s broader application of states’ obligations beyond the African Convention. The necessity of the creation of the term “cross-judging” is also somewhat unclear, given the rich literature that exists on transnational judicial dialogue and transnational legal culture. Is there something unique about the new term?

Expanding external jurisprudence and internal transitional justice
Teitel closes with reflections upon the challenges where courts intervene in countries where accountability has begun, but has stopped or is delayed. She suggests that there is, or ought to be, a continuum of accountability where there are domestic political considerations in play. Building on conceptions of judicial deference, subsidiarity and complementarity, she makes the case for caution with the increase of judicialization. It is an important call, given that much of the argument against judicialization and indeed individual criminalization has focused purely on political pragmatism, and political strategies, whereas she focuses on legal strategies. This approach opens up new opportunities for both research and policy development.

To close in brief, this is an article rich with challenges and ideas, and I have drawn on and queried just a few. Naturally, such an article could not have addressed all of the issues I have raised, but I look forward to Teitel’s reactions to the comments in this piece and others.

Transitional Justice and Judicial Activism Symposium: International Courts and Tribunals Should Have Discretionary Review

by Cesare Romano

[Cesare Romano is Professor of Law, Joseph W. Ford Fellow, and Director of the International Human Rights Clinic at Loyola Law School, Los Angeles. He is also Senior Research Fellow of iCourts, University of Copenhagen, and of Pluricourts, University of Oslo.]

Last September, the President of Colombia, Juan Manuel Santos, and Timoleón Jiménez, the top commander of the Revolutionary Armed Forces of Colombia (FARC), met in Havana to unveil a plan to put an end to the violence that has plagued their country for more than 50 years. According to the National Center for Historical Memory, between 1958 and 2012 about 220,000 people died as a result of the conflict between leftist guerrillas, right-wing paramilitary groups, and government security forces. Of those, about 80% were civilians. Moreover, violence, or the fear of it, created 6 million of refugees or internally displaced persons.

A key aspect of the plan is what sort of penalties the perpetrators of crimes against humanity during the long conflict should face. As agreed in Havana, while the rank-and-file of the FARC’s fighters will receive amnesties, leaders charged with “the most serious and representative” crimes will be judged by a Special Tribunal, containing a minority of foreign judges (para 3 of Joint Communique No. 60) (.pdf). Those who confess and collaborate with a Truth Commission will benefit from alternative penalties: between five and eight years of community work “with effective restriction of liberty”, though not in prison conditions. Those who do not collaborate will go to jail for up to 20 years. Similar procedures will apply to the armed forces and those found guilty of financing right-wing paramilitary vigilantes.

Once upon a time, ending civil wars was fairly straightforward, at least from the legal point of view. In return for demobilizing, insurgents would get an amnesty and, if they were lucky, political reforms or even a hand in writing a new constitution. That was what happened in the Central American peace deals of the 1990s, and with Colombia’s M-19 rebels, active between 1970 and 1990.

However, as Ruti Teitel’s article Transitional Justice and Judicial Activism: A Right to Accountability? (.pdf) details, international law has changed since then. Starting from the mid-1990s, the imperative of accountability has moved to the front and center, displacing time-honored transitional justice processes including lustration, exile and the many hard-bargains peoples have made throughout history to turn the page on traumatic events and move on. Nowadays, blanket amnesties that grant impunity for international crimes are, at best, frowned upon, and are even arguably prohibited by international law. Moreover, the range of crimes that cannot be pardoned or amnestied is growing by the day, going beyond jus cogens.

As the Colombian peace process advances, many wonder whether the agreements reached in Havana will pass muster with the International Criminal Court, the Inter-American Court of Human Rights or the UN Human Rights Committee. Will the punishment meted out by the Special Tribunal satisfy the ICC Prosecutor? Some victims will certainly challenge the legality of the agreement before the Human Rights Committee or the Inter-American Commission. The question might even reach the Inter-American Court, as it has been the case in the past with similar processes in Brazil, Uruguay, Chile and Peru. Will the imperatives of accountability and human rights undo the negotiations? Teitel’s article skillfully takes us through the maze of considerations and dilemmas that international judicial involvement in transitional justice efforts create.

I believe time has come to start considering the merits of allowing international adjudicative bodies, like the various international human rights courts, and quasi-adjudicative bodies, like the Inter-American Commission and the Human Rights Committee, to pick and choose their cases.

“Discretionary review” is the authority appellate courts have to decide which cases they will consider from among those submitted to them. The opposite of discretionary review is “mandatory review”, in which appellate courts must consider all appeals submitted (as long as they are admissible and the appellate court has jurisdiction, of course).

Discretionary review is widely employed in all modern and developed judicial systems. It has several advantages. It enables an appellate court to focus its limited resources on cases that have large public benefits, and to decide substantive cases with the lowest “opportunity cost”, thus giving the judges the opportunity to avoid being entangled in disputes where the political stakes are too high. It helps the system to develop a coherent body of case law, and reduce potential conflicts with past decisions or other jurisdictions.

Under contemporary international law, international courts and tribunals have mostly mandatory review. When a case is admissible and the adjudicating body in question has jurisdiction, there is little the judges can do to avoid deciding the case. Arguably, the International Court of Justice would have been better off if it had the chance to avoid answering questions that it could not really answer, such as whether the use or threat of use of nuclear weapons is against international law, or whether genocide had been committed in the former Yugoslavia in the 1990s.

I am sure the Inter-American Court would have preferred not having to pronounce itself on the legality under international law of amnesty laws in several Latin American states. But it had no choice. Once the Inter-American Commission brings a case before it, unless it finds the case not admissible or that it does not have jurisdiction (which has happened, for technical and practical reasons, extremely rarely in the history of the Court), it has to decide. And, given the legal parameters that it has to apply, and the general pro homine bias it necessarily has, the cases lead to scripted conclusions.

The same can be said about the African Court of Human and Peoples’ Rights and the European Court of Human Rights. Albeit in recent years, after the entry into force of Protocol 14 to the European Convention, the Strasbourg court has been given limited discretionary review through the introduction of pilot cases, it is still forced to decide more often than not cases that it should not decide as a matter of opportunity. Admittedly, international criminal tribunals have greater discretion that the other kinds of international adjudicative bodies. However, the discretion is only the Prosecutor’s. Once the Prosecutor has decided to investigate and indict, the judges cannot second guess the Prosecutor and dismiss the case because it might undermine delicate transitional justice efforts.

Faced with inopportune cases, international adjudicative bodies too often end up compromising their legitimacy. They stall, dither, and, eventually, render flawed decisions that try to square the circle and appease everyone but end up appeasing no one. And when they take advantage of the little leeway they have and manage to dodge the case, they are open to criticism because of the lack of transparency about the considerations that have been weighted.

Such a reform would be a momentous change in international procedural law, even if limited to just one adjudicative body. There are many questions to be considered, including whether it could be done by simply modifying the rules of procedure and add a new admissibility criterion, or whether it would require changing the statutes, and, thus, require states’ intervention; how much latitude should international judicial bodies have in deciding when to hear a case; who should be allowed to argue on whether the court should take on the case and how (petition of certiorari only or also hearings?); by what majority should the decision be taken (e.g. the U.S Supreme Court requires four judges out of nine to vote to take on a case); whether the judges should motivate the decision not to take on a case; and so on.

Granted, discretionary review has some disadvantages, too. It reduces access to justice and leaves the parties (mostly victims of human rights abuses) at the mercy of the discretion of the court. However, if we can trust the wisdom of these judges on the merits of the case, why can’t we trust them also on weighing the costs and benefits, writ large, of hearing the case? It is exactly the conundrums of transitional justices detailed in Teitel’s article that should give us pause and let us consider the merits of discretionary review in international adjudicative processes.

Transitional Justice and Judicial Activism Symposium: Comments by Dinah PoKempner

by Dinah PoKempner

[Dinah PoKempner is General Counsel of Human Rights Watch. She is writing in her personal capacity. Views expressed in this essay are not necessarily those of HRW.]

Increasing judicial recognition of a duty to investigate and even to prosecute serious violations of international law is unlikely to narrow the ambit of transitional justice; to the contrary, it adds pressure for more thorough transitional measures by upping the reputational cost of impunity.

Not even two decades have passed since agreement of the Rome Statute of the International Criminal Court, arguably a high water mark in political consensus on accountability for human rights crimes. While that institution has survived what was initially feared to be its strongest political obstacle—the non-participation and even subversion of great powers—it is still having difficulty in gaining acceptance in Africa, a region with the greatest number of both states parties and ICC investigations. The region is also known for weak state institutions where, as Ruti Teitel would acknowledge, supranational judicial intervention (even by invitation) may be most likely and most appropriate. Indeed, watching its moves in carefully navigating a course to find what is politically as well as legally feasible to prosecute is itself an education in the limitations of international law as a bulwark against real-world impunity, even after the moment of international political consensus.

I mention this, because it seems premature to worry, as Teitel does, about a developing judicial consensus on what she terms the “right to accountability” overwhelming the political options for transitional justice. If anything, judicial recognition of state obligations to provide account, investigate and even prosecute the most serious abuses can add a little impetus for broader transition from a regime of abuse towards one of legality.

Teitel elegantly traces a number of components of accountability through international judicial bodies. She grounds the notion of account in the crime of enforced disappearance, where the question of what happened and who did it—that is, the state’s refusal to give account–is quite literally the central wrong. As she points out, the law developed in a way highly sensitive to context, in this case the regional as well as national context of patterns of impunity, failure to investigate, and systemic political corruption that courts noted in imputing duties to the state even where states denied involvement in the crime.

It bears mention that in less obscure contexts—massacres, genocides, ethnic cleansing—the notion of an investigation and formal account has also become established as a primary duty of the state, both through normal domestic law and through transitional mechanisms. Should the state fail in this duty, such an account might be supplied by a foreign or international prosecutor, court or commission if need be. Either way, resort beyond the national courts indicates a failure of the state to assume the burden of the account as well as the conclusions on remediation or retribution that may flow therefrom. What disappearance jurisprudence added was not an entirely sui generis duty of investigation or right to the truth (.pdf), but rather a notable judicial reluctance to step aside (by courts flexibly interpreting doctrines such as standing, exhaustion of remedies, statutes of limitation, etc.) when a state stonewalled on what everyone more or less knew were the likely victims, the likely perpetrators, and the likely wrongs.

Indeed, enforced disappearance, more than many other human rights crimes, is custom-built for legal deniability. It may be that the precedent of courts sidestepping prudential obstacles to read new duties into the law may be more interesting as a model of judicial approach for other elusive or deniable crimes than as the origin point of a duty to investigate. Perhaps a duty of democratic oversight or transparency will one day be read into human rights law when deniability for violations rests on secrecy justified by national security interests; or maybe we will see a duty of accurate and public record-keeping on persons taken into state custody, to avoid liability for conditions that encourage abuse.

The second line of jurisprudence Teitel describes as creating a “right to retributive justice” involve state actions that in the main implicate criminal acts for which there is a clear and pre-existing duty of investigation and potentially prosecution, such as torture, enforced disappearance or a crime against humanity. Although scholars have long asserted a duty of prosecution, it was not seen by all as comprehensive or mandatory until fairly recently. That such a duty is gaining judicial recognition is a natural corollary of the positive duty of states to prevent abuses, by discouraging an environment of impunity.

But the formal legal recognition of a duty to prosecute does not necessarily displace transitional justice measures as Teitel suggests when she adverts to “a restructuring and narrowing of the relevant questions” or to a shift of emphasis from “political and social goals of transition to other more limited aims such as procedural justice for victims and their families.” There is no reason that these processes cannot co-exist, and indeed, they often do.

Indeed, as she acknowledges, supranational legal interventions from regional courts can also take place outside of a transitional context or in lieu of it; Russia and Turkey are not in the midst of transition with respect to their counter-terrorism policies, to the contrary. One might even wonder whether the incorporation of some states to regional human rights mechanisms might in some ways “normalize” these moments of intervention and criticism. But even where they don’t produce systemic change, such interventions do not pass unnoticed and can provide some support for those who press for greater respect of human rights or incorporation of universal standards into domestic law. And sometimes these rulings can impel further alignment with more generally held democratic norms where the political process hit a plateau.

Teitel’s recommendation that regional courts take into consideration whether some deference to transitional justice processes is due, while pragmatic, perhaps misses the point that whatever their function was at their moment of inception, these courts are not serving only transitional ends. The European Court of Human Rights, for example, mostly regulates mature democracies, and undue deference to the transient political circumstances of one state creates normative license for others as well. A regional court may not be able to disturb a self-amnesty law in a given country, but it can discourage that law from having wider recognition as a legitimate act of a sovereign democracy. The repertoire of transitional justice is likely to remain broader than the jurisprudence of human rights courts, which serve a different end, and a different pace.

Transitional Justice and Judicial Activism Symposium: Introduction

by Ruti Teitel

[Ruti Teitel is the Ernst C Stiefel Professor of Comparative Law, New York Law School and the author of Globalizing Transitional Justice (OUP paper2015).]

I am very pleased to participate in this Opinio Juris roundtable on my just-published article Transitional Justice and Judicial Activism: A Right to Accountability? (.pdf), and particularly to engage with Dinah PoKempner, Professors Cesare Romano, Chandra Sriram and others who have offered such thoughtful and probing observations on my article.

The article grows out of a multi-year ongoing project that examines on the jurisprudence pertaining to states undergoing political transition or dealing with unresolved justice issues from prior transitions. In this particular essay, the emphasis is on transnational human rights jurisprudence, notably that of the Inter-American Court of Human Rights and the European Court of Human Rights. These tribunals, sometimes in dialogue with each other, have evolved, through interpretation of existing legal instruments, an approach that establishes what I term a “right to accountability,” an entitlement of victims of human rights abuses by the state to the investigation and prosecution of these offences, as well as various remedies for past failures of accountability. The result is to frame transitional justice in terms of human rights, with an emphasis on those who have suffered from human rights abuses particularly in conflicts of the past.

Beginning with the Inter-American Court decision of Velasquez Rodriguez, the Latin American case law has been highly contextualized to the special challenge of dealing with those human rights abuses characteristic of the “dirty war,” especially disappearances. It is often implied that no less than criminal law punishments can satisfy demands for accountability. Thus, as I explore in the article, these judgments cannot help but collide, in many contexts, with approaches to transitional justice that emphasize social reconciliation, or social peace. Examples include various forms of amnesty in Peru, Chile and Uruguay that can go back as far as the 1980s, and that are put in question by the right to accountability approach. Most recently, the Inter-American Court embraced a challenge to amnesty practices in Brazil that had been the result of a process of open democratic deliberation and freely arrived at and supported by wide number of political actors in that country including its Supreme Court.

The pressing question that is the articles focus becomes is the legitimacy of such judgments particularly after the passage of significant time, and where there had been comprehensive processes of transitional justice on a case by case basis, including repair of victims, and some form of arrival of truth but nevertheless something falling short of individualized criminal accountability and punishment.

The tension between domestic ownership of transitional justice and internal political compromises that it produces and the rights based approach may point to the need to qualify or relativize the right to accountability so conceived in light of important normative considerations and political factors, which I elaborate in the Article, such as first and foremost the relevance of context and capacity, the strength/weakness of the relevant state, the degree of compliance/impunity; ie thinking about the relevant rights fulfillment not in dichotomous terms but rather in terms of what could be seen as a “continuum of accountability.” (See p 414.) I argue for “greater care …in intervening where some accountability process has started….There may be a number of political and institutional reasons at play and ideally the court should have an appreciation of these reasons before deciding whether and how to intervene.” Id.

A related approach would be to resort to the concept of “complementarity,” associated most notably with the exercise of jurisdiction by the ICC. The question is whether complementarity, deference to domestic processes can be justified where there is no lack of ability or willingness to prosecute but there has been a conscious inclusive democratic decision to prioritize other forms of accountability than full or conventional criminal sanctions.

Overall, my stance is that human rights tribunals need to develop techniques of adjudication that permit a constructive dialogue with domestic political and legal institutions and practices of transitional justice, a dialogue sensitive to context and the considerations that affect the relative legitimacy of transnational tribunals and domestic political and legal actors in addressing questions of justice related to political conflict.

The International Criminal Court’s Assembly of States Parties Meetings: Challenges to the Work of the Court

by Jennifer Trahan

[Jennifer Trahan is Associate Clinical Professor, The Center for Global Affairs, NYU-SPS. She attended ICC ASP 14 on behalf of the American NGO Coalition for the ICC and the American Branch of the International Law Association International Criminal Court Committee. The opinions expressed are not necessarily those of AMICC or the ABILA.]

From November 18-27, delegates of states that are parties to the International Criminal Court’s Rome Statute, as well as NGOs and delegates of non-State Parties gathered in The Hague for the 14th annual Assembly of States Parties meetings.

While much of the ASP’s business carried on as usual, two threats to the Court’s work emerged.
The first came in the form of a Kenyan proposal seeking an interpretation or reaffirmation that Rule 68’s amendment made at the ASP in 2013 would not apply retroactively. On its face, the measure Kenya proposed looked harmless enough. The ASP is indeed the body before which amendments to the ICC’s Rome Statute and Rules of Procedure and Evidence are to be brought after prior presentation to the New York working group on amendments.

But the unstated purpose behind Kenya’s proposal appeared to relate to the pending cases against Kenyan Deputy President William Ruto, and Joshua Arap Sang. Each is charged with crimes against humanity in connection with post-election violence in Kenya’s 2007-8 presidential elections in which over 1,000 persons died. (The measure may also have been indirectly aimed at insuring that a prior case against Kenyan President Uhuru Kenyatta – as to whom the charges have been withdrawn without prejudice – will not be reinstated.) A likely goal is to ensure that prior recorded witness testimony of witnesses who subsequently became “unavailable” could not be used in evidence. Given serious and credible allegations of witness tampering and disappearances—there are pending proceedings related to attempts to corrupt ICC witnesses in the Kenya cases—the proposal could be aimed at keeping out information potentially relevant to pending trials. To make matters worse, the issue of whether the Rule 68 amendment applies retroactively is currently pending before the ICC’s Appeals Chamber in the Ruto & Sang case.

In oral remarks responding to Kenya’s proposal on Thursday November 19 and then again in the closing plenary session, various States made strong statements about the need to preserve the Court’s independence and not interfere in matters pending before the Court. Yet, it was disheartening to later see delegates willing to attempt to mollify the Kenyan delegation by negotiating language favorable to the Kenyan position. If a matter really is sub judice, there should be no ASP role, period. (The only bright spot is that the language negotiated was included in a final report summarizing discussions of the Assembly, and not in a formal assembly resolution.) What the Court will eventually make of all of this, is, of course, another matter – as the judges do not necessarily need to accept even Rule or Statutory amendments from the ASP if they deem them inconsistent with the Rome Statute or beyond the ASP’s authority. Moreover, judges would likely accord language from a report little weight, if any.

Kenya’s second proposal was to develop an ad hoc mechanism of independent jurists to advise the Prosecutor in her selection of Prosecution witnesses. There is absolutely no precedent for such a measure, which clearly is aimed at stymying the Prosecutor’s work. Such an attempt to interfere with Prosecutorial independence appropriately met with little enthusiasm from other state delegations.

The theatrics of Kenya’s presentation of these proposals on November 19 were amplified when the more than 80-person Kenyan delegation applauded loudly to all of Kenya’s statements. Most of the rest of the room then applauded the interventions by other states who insisted on the Court’s independence, and not interfering in matters pending before the Court. The effect was somewhat like an audience at a sporting event, cheering their two respective teams. It seemed unseemly to say the least, and one can only wonder at the choice of allowing a delegation to be that large. Most other States sent at most a handful of representatives.

Another threat to the Court’s work was far more ordinary and predictable but also serious: seven States Parties holding out not to give the Prosecutor the budget she requested as necessary to do her work. With the Court active in 8 situation countries, with 23 pending cases, and preliminary examinations across the globe, now is not the time to nickel and dime the Prosecutor of the world’s worst atrocity crimes. The Court has a bigger docket than it ever has had before. The blame here also should be extended to the U.N. Security Council, which referred two situations to the Court (those in Libya and Darfur) but refused to pay for them, and has failed to insure that any of the outstanding arrest warrants or other transfers related to the cases are executed. At the ASP, the Prosecutor had requested a budget increase of 17%, but only received a 7.1% increase. If she now has to curtail meritorious investigations, which is anticipated, we have only States to blame, and not the Prosecutor.

These ASP gatherings of NGO’s and State delegates from around the world are in some ways heartening – to see a global network of individuals committed to international criminal justice, and the prosecution of the worse atrocity crimes through the ICC. Complementing the formal sessions are numerous “side events” that range the gamut from attempting to ensure justice locally in Africa, to strengthening the ICC’s work related to victims, and attempting to ensure accountability for crimes in Syria. Yet, the ASP meetings are also disheartening to see such attempts at political interference in the Court’s work (and budgetary shortsightedness). It is also disappointing, although perhaps understandable, to see States attempting to pacify delegates in order to avoid having their State potentially withdraw from the Rome Statute. One wonders whether that Faustian bargain is worth striking.

On the Legitimacy of the Settlements: A Legal and Historical Perspective

by Lorenzo Kamel

[Dr Lorenzo Kamel is Senior Fellow at IAI and Research Fellow at Harvard’s CMES]

It would seem unnecessary in 2015 to refer to the League of Nations or the Mandate for Palestine when discussing the legal status of the Palestinian territories. Yet, in recent years several scholars are resorting to these issues to provide a legal justification for the construction/enlargement of outposts/settlements and the indirect denial of the right of the Palestinian people to self-determination. This article aims to deconstruct these approaches and to shed light on the selective use of history and international law that underpins them.

The 89 pages of the Levy Report, released on 9 July 2012 by a special committee appointed in late January 2012 by PM Netanyahu to investigate whether the Israeli presence in the West Bank is to be considered an occupation or not, clarified that “with the establishment of the United Nations in 1945, the principle of recognizing the validity of existing rights of states acquired under various mandates, including of course the rights of Jews to settle in the Land of Israel by virtue of the above documents, was determined in article 80 of its charter”.

In a video entitled “the Legal Case for Israel,” international lawyer Eugene Kontorovich pointed out that “up to 1948 all this area [present-day Israel and the Palestinian territories] was Palestine reserved as a Jewish State by the League of Nations Mandate […] the legality of the Mandate jurisprudence cannot be changed.” More in general and according to an interpretation held by a growing number of scholars and by most of Israel’s right-wing parties, the preamble as well as Article 2 of the Mandate secured the establishment of the Jewish National Home on, in Howard Grief’s words, “the whole country of Palestine, not a mere part of it.” (H. Grief, The Legal Foundation and Borders of Israel under International Law (Jerusalem: Mazo, 2008), p. 106.) It would follow that, as argued by the late Eugene Rostow, “the Jewish right of settlement in the whole of western Palestine – the area west of the Jordan – survived the British withdrawal in 1948”.

But to resort to the League of Nations and the British Mandate for Palestine might be counterproductive for those committed to finding legal justifications for the construction of outposts, or the enlargement of settlements, in the Palestinian territories. The term “national home,” in fact, had no mutually agreed-upon meaning or scope and the British government was under no definite obligation, since the Mandate made any Jewish immigration subject to “suitable conditions” and contained safeguards for the rights and position of the non-Jewish communities.

True, in 1919 prominent British official Jan Christiaan Smuts, a leading figure in Lloyd George’s War Cabinet and an open supporter of racial segregation, envisaged the rise of “a great Jewish State.” Lloyd Gorge himself pointed out that “it was contemplated that when the time arrived for according representative institutions in Palestine, if the Jews had meanwhile responded to the opportunity afforded them by the idea of a National Home and had become a definite majority of the inhabitants, then Palestine would thus become a Jewish Commonwealth”.

On the other hand, the first Attorney General of Palestine, “lifelong Zionist” Norman Bentwich, contended that “a national home, as distinguished from a state, is a country where a people are acknowledged as having a recognized legal position and the opportunity of developing their cultural, social and intellectual ideals without receiving political rights”.

This position was also consistent with the one expressed a few years earlier by the general secretary and future President of the Zionist Organization Nahum Sokolov. He represented the Zionist Organization at the 1919’s Paris Peace Conference, where made it clear that the

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Apparently, I’m a 9/11 Truther (Al-Bahlul Revisited)

by Kevin Jon Heller

Only a “truther” who denies that al-Qaeda was responsible for 9/11 could doubt the international law basis for holding al Bahlul accountable for his role in this completed war crime.

So Peter Margulies argues in his latest attempt to defend the indefensible: al-Bahlul’s conviction for the non-existent war crime of conspiracy as an inchoate offence. To describe the accusation as offensive is an understatement, given that it accuses not only me and Steve Vladeck of being 9/11 truthers, but Judge Tatel and Judge Rogers, as well.

Even worse, though, Margulies’ arguments seem to have gotten even more problematic over time. Let’s take an in-depth look at his post. Here is how it opens:

Our amicus brief argued that upholding al Bahlul’s conviction would permit military commissions to try only a “narrow class” of cases outside commissions’ accepted jurisdiction…

Points for openly admitting that the military commissions’ “accepted jurisdiction” does not include jurisdiction over non-existent war crimes such as conspiracy. But no points for the claim that we shouldn’t hold courts to their actual jurisdiction as long as we are only letting them exceed their actual jurisdiction occasionally, in a “narrow class” of cases. You know, when it’s really, really important to let them exceed their actual jurisdiction. Last time I checked, jurisdiction wasn’t just a suggestion about the kind of cases a court can hear.

Margulies:

Al Bahlul challenged his conspiracy conviction on Article III grounds because international tribunals such as Nuremberg have generally declined to try defendants for engaging in an inchoate, stand-alone conspiracy (e.g., an agreement without a completed crime).

Note the fudge: “generally.” Not generally. Always. No international tribunal has ever convicted a defendant of conspiracy to commit a war crime. Not one…

McAuliffe on the ICC and “Creeping Cosmopolitanism”

by Kevin Jon Heller

As I was researching a new essay on complementarity, I stumbled across a fantastic article in the Chinese Journal of International Law by Paidrag McAuliffe, a Senior Lecturer at the University of Liverpool School of Law. Here is the abstract of the article, which is entitled “From Watchdog to Workhorse: Explaining the Emergence of the ICC’s Burden-sharing Policy as an Example of Creeping Cosmopolitanism”:

Though it was initially presumed that the primary role of the International Criminal Court (ICC) would be a residual one of monitoring and ensuring the fulfilment by the State of its obligations under the Rome Statute, it has over time moved towards a more activist “burden-sharing” role. Here, the Office of the Prosecutor initiates prosecutions of the leaders who bear the most responsibility for the most egregious crimes and encourages national prosecutions for the lower-ranking perpetrators. Since at least 2006, the Prosecutor has committed to a formal policy of inviting and welcoming voluntary referrals as a first step in triggering the jurisdiction of the Court. The judges on the Court have approved these referrals, while the broader academic and activist communities welcomed this more vertical relationship with national jurisdictions and, significantly, have provided the intellectual justifications for it. Burden-sharing, a concept unmentioned at the Rome Conference establishing the ICC, is presented as an unproblematic, natural and organic emanation from the Statute. This article argues that this development was not in fact inevitable or mandated by the Rome Statute. It was chosen, and in justifying this choice, familiar modes of cosmopolitan-constitutionalist treaty interpretation fundamentally premised on the field’s virtue and indispensability have operated to enable a Court established as a residual watchdog to become a workhorse in individual situations by assuming the preponderance of responsibility for combating impunity.

I found myself repeatedly nodding my head in agreement while I read the article, particularly when it discussed how judges, prosecutors, scholars, and activists have relied on ambiguities in treaty interpretation to push a particular activist agenda at the ICC. The article reminds me of the critical ICL scholarship by two of my favourite scholars, Fred Megret and Darryl Robinson — both of whom the article cites quite often.

The article is a must read for anyone interested in the ICC and ICL scholarship more generally. You can find it here.

The Daily Caller and Alan Dershowitz’s Dishonest Attack on MSF

by Kevin Jon Heller

It was only a matter of time before the far right began to attack Medicins Sans Frontieres (MSF) for being in league with the Taliban — and thus implicitly (nudge nudge, wink wink) the actual party responsible for the US’s notorious assault on its hospital in Kunduz. And the attack has now begun. Here is a snippet from an article today in the Daily Caller:

International law experts are blasting Doctors Without Borders for forcibly removing civilian patients from the aid group’s Kunduz, Afghanistan, hospital and replacing them with wounded Taliban fighters when the city fell to the rebel control in late September.

Alan Dershowitz, an acclaimed Harvard constitutional lawyer and authority in international law, said that he was not surprised that the group, known as Medecins Sans Frontieres, favored Taliban fighters over civilian patients, telling The Daily Caller News Foundation in an interview that he regards Doctors Without Borders as “Doctors Without Morals.”

Dershowitz charged the group with having a long history of anti-Western political stances and of not being neutral. He says MSF “is a heavily ideological organization that often favors radical groups over Western democracies and is highly politicized.”

The lawyer said the doctors also were hypocritical. “What they violate is their own stated mandate and that is of taking no political ideological position and treating all people in need of medical care equally. It’s just not what they do.”

[snip]

Yet MSF itself may have violated a whole host of humanitarian laws by its own admission that Kunduz hospital administrators agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.

The acknowledgement was buried inside a Nov. 5 “interim” report released by MSF that traced the internal activities at their hospital leading up to the attack.

MSF disclosed in its report that on Sept. 28, the day the city fell to rebels, hospital administrators “met with a Taliban representative to discuss the need to free beds for other critical patients due to the ongoing fighting, and therefore for some patients to be discharged.”

On Sept. 30, MSF passively reported that “a large number of patients discharged from the hospital, including some against medical advice. It is unclear whether some of these patients discharged themselves due to the discussion to free some beds between MSF and the Taliban representative.”

I want to focus here on the claim that MSF “admitted” in its November 5 report that it “agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.”

Quite simply, that is a lie. MSF makes no such admission in the report.

We can begin with September 28. Prior to that date, most of the wounded combatants in the MSF hospital in Kunduz were government soldiers and police officers. As of September 28, however, the balance shifted to Taliban combatants:

As was the case since the opening of the Trauma Centre, the vast majority of the wounded combatants were observed to be government forces and police. In the week starting 28 September, this shifted to primarily wounded Taliban combatants… As far as our teams are aware, after this time [the afternoon of the 28th], no more wounded Afghan government forces were being brought to the Trauma Centre.  (p. 4).

The next day, faced with an excessive number of patients, MSF met with the Taliban:

MSF met with a Taliban representative to discuss the need to free beds for other critical patients due to the ongoing fighting, and therefore for some patients to be discharged and for those who required nursing follow-up to be referred to the MSF Chardara medical post (p. 5).

At this point — September 29 — half of the wounded in the hospital were wounded Taliban fighters (p. 5). Patients then began to leave the hospital the next day, September 30:

Starting this same day a large number of patients discharged from the hospital, including some against medical advice. It is unclear whether some of these patients discharged themselves due to the discussion to free some beds between MSF and the Taliban representative or whether there were general concerns about security as rumours were circulating of a government counter-offensive to reclaim Kunduz city. At the same time as patients were being discharged from the hospital, new patients were being admitted (p. 5).

The MSF report is careful not to identify whether the discharged patients were civilians or combatants. But there is no indication in the report that MSF agreed with the Taliban “to discharge Afghan civilian patients”; that MSF actually discharged civilian patients because of any such agreement; or that discharged civilian patients were replaced by “wounded rebel soldiers.” Literally none.

Indeed, everything in the report points to precisely the opposite conclusion: namely, that MSF convinced the Taliban to remove wounded rebel fighters from the hospital to open beds for new patients. The patients that left the hospital were not “removed by MSF”; the report makes clear that they “discharged themselves,” in some cases “against medical advice.” Are we supposed to believe that MSF ejected civilian patients against the advice of its own doctors and then dishonestly claimed the patients left voluntarily? That’s Ben Carson conspiracy land.

Did some civilians voluntarily leave the hospital because fear of the fighting? Perhaps. But it’s difficult to imagine why civilians would trade the relative security of a well-marked civilian hospital for the uncertainty of weathering intense urban fighting in their homes — especially if leaving was “against medical advice.” It is far more likely that the wounded who discharged themselves were Taliban fighters worried about their safety — even in a civilian hospital, and despite their wounds — given the possibility of a “government counter-offensive.” After all, as noted above, more than half of the patients in the MSF hospital were Taliban on September 30.

To be clear, because of MSF’s commitment to neutrality, it is impossible to state categorically that most of the patients who left the hospital on September 30 were Taliban fighters, not civilians. But it is fundamentally dishonest for the Daily Caller and Alan Dershowitz to claim that MSF “agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.” MSF admitted no such thing.