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Human Rights

Guest Post: Bartels–Temporal Scope of Application of IHL: When do Non-International Armed Conflicts End? Part 2

by Rogier Bartels

[Rogier Bartels is a Legal Officer (Chambers) at the International Criminal Court and a research-fellow at the Netherlands Defence Academy. The views below are the author’s alone.]

The first part of this post discussed that a non-international armed conflict (NIAC) ends when the NIAC-criteria (a certain level of organisation of the parties groups, and a certain intensity of the armed violence) are no longer both present.

At the ICTY, the various trial chambers seized of cases concerning Kosovo and Macedonia had to consider the lower threshold for the start of (or continued existence of) a NIAC. The Boškoski and Tarculovski Trial Chamber, for example, gave a detailed overview of the indicators used so far and reviewed how the relevant elements of Common Article 3 recognised in Tadić (organisation and intensity; see Tadić TJ, para. 562) are to be understood. Its findings were confirmed by the Appeals Chamber (see Boškoski and Tarculovski AJ, paras 19-24). Certain “factors”, and a number of “indicators” thereof, were identified that need to be taken into account when assessing the organisation and intensity criteria. These factors have since been adopted by the Lubanga Trial Chamber in the first ICC judgment (paras 537-538).

If agreed that a NIAC ends when the criteria of “intensity” and “organisation” no longer exist, using these factors and indicators identified in the case law, could be helpful in determining such an ending. Naturally, not all indicators are of assistance. Most notably, the indicator of the existence of (attempts to broker) ceasefire agreements shows that parties considered that there was an armed conflict took place (at the time of the alleged crimes), but obviously does not answer the question whether the conflict continued or ended after such agreements.

Other indicators cannot easily be applied ‘in reverse’. A reversed examination of “the extent of destruction”, for example, would be difficult, as it is hard to assess whether damage diminishes if only few buildings are left standing or if few potential targets remain. The lack of (new or ongoing) damage may well be due to these circumstances, rather than result from the end of the conflict. Nevertheless, an indicator merely serves to ‘indicate’ the existence of an NIAC, and has to be seen in relation to the other indicators: if few military objects remain and a prolonged period occurs during which no targets are attacked, this may well be a sign that the conflict has ended.

In addition, some indicators could be adapted. Instead of looking at the (type of) weapons used, an indicator could be the effectiveness of a disarmament programme: the type and amount of weapons handed in vis-à-vis the initial number of fighters or the approximate type and number of weapons initially deployed. For the indicator of refugee flows from combat zones, one could look, rather than at the number of civilians fleeing an area, at the number of civilians returning home, i.e. considering their pre-conflict place of residence safe enough to return to. (That is not to say that a conflict could never be considered as ended when refugees and or IDPs do not return to their homes as this may be caused by other factors, such as, a changed ethnic composition of the area concerned, lack of cooperation by the government and/or measures implemented by the victorious party).

When peace agreements, as suggested by Tadić, are considered to be the end of NIACs, the focus appears to be laid on the intensity requirement. The discussion regarding the start of the Syrian NIAC (see here for an overview), however, has highlighted the (greater) importance of the organisational requirement. Between the two NIAC-criteria, organisation is the most relevant for the assessment of the end of such conflicts. The decline in organisation of one or more of the parties to the conflict can result in a security vacuum when the controlling regime (i.e. the state or the rebel force) gives way and the resulting (state) apparatus is not (yet) able to provide for effective security. Also, the opposing party will mainly target the organisational structure of an armed group. Whilst targeting the leadership was relatively uncommon in IACs, it has been the main goal in NIACs. It appears also the most effective way to bring about the end of such a conflict. See, for example, the killing of LTTE leader Prabhakaran in 2009, the effects of air strikes killing commanders of the FARC, and the (drone) attacks by United States on the Al-Qaeda leadership. Furthermore, intensity or ‘protractedness’ is hard to pinpoint on a specific moment, because some time element – despite claims to the contrary (see, e.g., the ICTY’s Delalić et al. TJ, para 184 and Kordić and Cerkez AJ, para. 341) – is still inherent in this requirement. Moreover, small break-away fractions of an armed group could continue to carry out attacks, or sectarian violence could go on after – or perhaps result from – the disappearance of the organisational structure of one or more of the fighting parties. Take, for example, the situation in Libya in the period after the defeat of the Gaddafi regime and the forming of the new government by the rebels.

My submission that NIACs end when the level of violence and/or organisation drops below a certain lower threshold, has consequences for the application of IHL and consequently for the protection afforded by IHL. It may be feared that it would lead to “legal uncertainty and confusion” (compare Gotovina et al TJ, para. 1694). In practice, however, having an end-threshold should not create a gap in protection, hence no uncertainty – or at least no more uncertainty than as to the start of the application of IHL at the beginning of a NIAC. Using the lower threshold for the application of IHL ‘in reverse’ in order to determine the end of a NIAC may actually allow for a smoother transition between the law governing the use of force during armed conflict (conduct of hostilities paradigm) and the law governing force outside situations of armed conflict (law enforcement paradigm). It makes sense to gradually move towards a law enforcement approach in the end stages of a NIAC. When the intensity of the fighting has decreased, and/or organisational structure of concerning groups has broken down, to such an extent that it no longer reaches the lower threshold, persons belonging to a (partly or fully broken down) group, would not be “directly participating in hostilities” in the traditional sense, but rather find themselves in a situation where the opposing party controls the territory they are in. As advocated elsewhere (albeit received with much criticism; see here for an overview), the opposing party should then apply the human rights/law enforcement approach when taking action against these persons. If it is unclear whether or not a situation of armed conflict continues to exist, the attacking party should err on the safe side and apply the least amount of force necessary (i.e. in line with law enforcement type of proportionality). This also follows from a moral as well as practical point of view: if the conflict is ending, what would be the benefit of and why would one want to continue to kill the opponents, rather than to start thinking about a process that would bring a lasting peace after the conflict?

The breakdown of the organisational structure of an armed group (which will, amongst other things, be indicated by the inability to carry out military operations) should result in the cessation of the “continuous combat function” of members of that group, thereby limiting the right to target the persons concerned. For those advocating for the so-called “membership approach”, no problem arises either: an even further breakdown of the group’s organisational structure would result in the concerning persons ceasing to be ‘members’; and thus targetable. After all, there needs to be a group or organisation in order for someone to be a member of it.

To sum up, it is my hypothesis that NIACs do not necessarily end only by virtue of a peace settlement being reached, but rather by the more factual circumstance of the level of “organisation” and “intensity” falling below the threshold set for the application of IHL. To assess when NIACs end, one could resort to using the factors and indicators for determining the lower threshold for the start of such conflicts, as identified by the ICTY in its voluminous case law. However, they are to be applied on a case-by-case basis, as not all of them are adaptable to the specific circumstances in which some conflicts take place.

New Book: Lewis, The Birth of the New Justice

by Kevin Jon Heller

I rarely get excited about a new book before I’ve read it — but I’m excited about this one, Mark Lewis’s The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919-1950. Here is OUP’s description:

The Birth of the New Justice is a history of the attempts to instate ad hoc and permanent international criminal courts and new international criminal laws from the end of World War I to the beginning of the Cold War. The purpose of these courts was to repress aggressive war, war crimes, terrorism, and genocide.

Rather than arguing that these legal projects were attempts by state governments to project a “liberal legalism” and create an international state system that limited sovereignty, Mark Lewis shows that European jurists in a variety of transnational organizations derived their motives from a range of ideological motives – liberal, conservative, utopian, humanitarian, nationalist, and particularist. European jurists at the Paris Peace Conference in 1919 created a controversial new philosophy of prosecution and punishment, and during the following decades, jurists in different organizations, including the International Law Association, International Association for Criminal Law, the World Jewish Congress, and the International Committee of the Red Cross, transformed the ideas of the legitimacy of post-war trials and the concept of international crime to deal with myriad social and political problems. The concept of an international criminal court was never static, and the idea that national tribunals would form an integral part of an international system to enforce new laws was frequently advanced as a pragmatic-and politically convenient-solution.

The Birth of the New Justice shows that legal organizations were not merely interested in ensuring that the guilty were punished or that international peace was assured. They hoped to instil particular moral values, represent the interests of certain social groups, and even pursue national agendas. At the same time, their projects to define new types of crimes and ensure that old ones were truly punished also sprang from hopes that a new international political and moral order would check the power of the sovereign nation-state. When jurists had to scale back their projects, it was not only because state governments opposed them; it was also because they lacked political connections, did not build public support for their ideas, or decided that compromises were better than nothing.

A book of this nature is much needed — the era between WW I and WW II has not received anywhere near enough attention from international criminal law scholars. I hope the book is good! (I will report back once I’ve read it.)

Guest Post: Bartels–Temporal Scope of Application of IHL: When do Non-International Armed Conflicts End? Part 1

by Rogier Bartels

[Rogier Bartels is a Legal Officer (Chambers) at the International Criminal Court and a research-fellow at the Netherlands Defence Academy. The below post discusses an argument made at a conference organised by the Grotius Centre for International Legal Studies in June 2012, that is expanded on in a chapter in the forthcoming book Jus Post Bellum (edited by Carsten Stahn et al.). The views below are the author’s alone.]

Over the past weeks, several ceasefire and peace agreements were concluded in a number of non-international armed conflict (NIAC) situations: in South-Sudan, the Philippines and Myanmar. The Syrian negotiations in Geneva have only yielded minor success, but those between the Colombian government and its longstanding enemy, the FARC, appear to have been more constructive. Nonetheless, all too often when there are peace talks or even peace agreements in a country, the fighting between the opposing sides does not (immediately) cease (see, e.g., here and here). In this post, I will address the end of temporal scope of the law applicable to the fighting in NIAC, i.e. international humanitarian law (IHL) and when such NIACs can be considered as ended.

Although certain provision of international humanitarian law (IHL), or laws of armed conflict, apply in peace time (e.g., Arts 47 and 53 of GC I) or continue to apply for a certain period after the end of the armed conflict (like Art. 5 of AP II), the application of the vast majority of IHL rules is dependent on the existence of an (international or non-international) armed conflict. Whilst the scope of application included in Common Articles 2 and 3 of the Geneva Conventions of 1949 initially, of course, pertained only to these treaties, it has become accepted over time that said scope governs the application of the whole body of IHL; thus also for the rules contained in, e.g., the weapon treaties and customary IHL. Yet, one of the glaring gaps in IHL concerns its very foundation, namely the question of the definition of ‘armed conflict’. IHL does not provide a clear definition for either type of armed conflict: international armed conflict (IAC) or NIAC. A definition for NIACs was purposely left out of the 1949 Conventions and their Protocols, and it is true that a single definition may not be able to encompass all varieties of contemporary armed conflict. However, without a clear definition, determining when conflicts start is problematic; and it is similarly problematic to determine when they end.

Ever since IHL became applicable to conflicts that are “not of an international character” (i.e. with the inclusion of Common Article 3 in the 1949 Geneva Conventions), there has been much debate on what is to be considered a NIAC, and when the threshold of violence has surpassed a situation of mere internal disturbances, civil unrest or riots. The existence of an armed conflict allows States to take more forceful action, such as the use of lethal force against ‘fighters’ and/or against those directly participating in hostilities. In addition, when called upon to determine whether (war) crimes were committed, courts and tribunals must assess whether in the situations before them, an armed conflict existed – either to satisfy their jurisdictional requirements or to identify the applicable body of law. It is therefore of no surprise there has been extensive legal and academic debate, as well as voluminous case law on what qualifies as a NIAC, and on when the so-called lower threshold for NIAC has been crossed. The debate has almost solely focused on the start of these armed conflicts. In contrast, very little has been written on the temporal application of IHL, or indeed, on the end of these armed conflicts.

Common Article 3 does not refer to an end of its application. Similarly, Additional Protocol II refers to the “end of the armed conflict” (Articles 2(2) and 25 AP II), but does not clarify when this may be. The first, and almost only, authoritative statement hereon was made by the Appeals Chamber of the ICTY in its seminal decision on jurisdiction in Tadić:

that an armed conflict exists whenever there is […] protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities […], in the case of internal conflicts, [until] a peaceful settlement is achieved. (Tadić Jurisdiction Decision, para. 70)

So what is a peaceful settlement? The term is not very specific but suggests that IHL will cease to apply when the parties reach a peace agreement with each other. It is my view that the existence of a peace agreement is too rigid a standard to judge whether a NIAC can be considered to have ended. Moreover, it is submitted here that this approach and is not supported by the IHL.

For both IACs and NIACs, the test whether there is an armed conflict depends on the factual situation, and not on political statements. Political refusal to recognise the existence of a conflict is especially prevalent in cases of NIACs. It is argued therefore that political acts should be equally non-determinative in the test of whether peace has been achieved. As a result, the political act (statement) of agreeing to a peace deal should not be the determinative factor in whether a conflict has ceased. In Sierra Leone, for example, two “Lomé Peace Accords” were signed before the RUF was finally defeated and dissolved a few years later. Consider also the conflict between the Singhalese government of Sri Lanka and the LTTE: a peace agreement was signed between the warring parties in 2002, but the fighting did not cease. It was not until the full-scale military defeat in May 2009 of the LTTE by the government forces, that the armed conflict actually ended. Such a non-international version of debellatio is rare, however. On occasion, NIACs just taper out until they have withered away and no warring parties exist anymore. Often, however, as was the case with the Shining Path in Peru, armed groups continue to exist, but on a smaller scale with less fighting power, thereby forming less of a threat. On the other hand, it is also possible that only part of an armed group becomes a party to the agreement, as was the case with the Interahamwe in Rwanda.

Furthermore, the need for an “effective and final cessation of hostilities” for IACs comports with the fact that such a conflict starts with the first hostile act (involving two States), which initiates the protection given by IHL, namely – as Pictet put it – when the first (protected) person is affected by an attack. However, the threshold for the existence of a NIAC is significantly higher and not all violence reaches this threshold. Equally, at the end of a NIAC, certain violence should be considered to be below the armed conflict level. If a NIAC only starts when organised groups are engaged in fighting of certain intensity, then logically, the armed conflict ends when these two criteria are no longer both present. This would also make clear that the United States’ so-called NIAC against Al-Qaeda cannot be a “perpetual war”.

A Few Thoughts on Eugene Kontorovich’s Response to My Post

by Kevin Jon Heller

Eugene has graciously responded to my earlier post; you can find his new post here. It’s well worth a read. I just want to offer a few  thoughts on Eugene’s response, because I think it fails to address the core of my critique: that it is incorrect to claim, as Eugene did in his first post, that Europe’s opposition to the juvenile death penalty is based on the idea that “minors are not really responsible for their actions.” I argued that, on the contrary, Europe’s opposition to the juvenile death penalty is part and parcel of its opposition to the death penalty itself.

Eugene’s new post provides no support for his original thesis. Here is what he argues, in order:

The EU’s position is that the death penalty is wrong under any circumstances; however, the juvenile death penalty is even wronger. And this distinction could presumably only be due to the reduced decision-making capacity of juveniles.

Thus in their amicus brief in Roper, the EU did not argue that the death penalty was unconstitutional – though they stated their opposition – rather, they argued the juvenile death penalty was unconstitutional even if the death penalty itself were constitutional. (As amici, they were in no way limited to the facts of the case, and could have submitted a much broader argument.) The EU’s opposition to the juvenile death penalty repeatedly points to an “international consensus” against it, reflected in various treaties and U.N. documents. These instruments specifically do not bar the death penalty, but do prohibit the juvenile death penalty. Thus the consensus which the EU pointed to is itself based on a belief in a fundamental distinction between juvenile and adult death penalties.

It is true that there is an international consensus against the juvenile death penalty. And it is highly likely that some of the states that are part of the international consensus oppose the juvenile death penalty because they believe juveniles have a “reduced decision-making capacity.” But nothing in the EU amicus brief suggests that European states oppose the juvenile death penalty because of the diminished moral capacity of juveniles. As I noted in my earlier post, Europe opposes the death penalty for everyone, adult and juvenile, because — in the words of the Council of Europe — “everyone’s right to life is a basic value and that the abolition of the death penalty is essential to the protection of this right and for the full recognition of the inherent dignity of all human beings.” Yes, Europe would be more than willing to argue that “the juvenile death penalty was unconstitutional even if the death penalty itself were constitutional.” But that is because the international consensus against the juvenile death penalty is much stronger, not because Europe believes juveniles “are not really responsible for their actions.” In other words, the EU’s amicus brief does not care why some states permit the adult penalty but permit the juvenile death penalty (which may well reflect a view of juvenile moral capacity); it simply cares that even those states still reject the juvenile death penalty.

To be sure, if the EU thinks the juvenile DP to be even worse, it will not be reflected in its internal policies – but it would be reflected in its external ones. An indeed, in dealing with third countries, the EU makes a fundamental distinction between the juvenile and adult death penalty. As spelled out in the EU Guidelines on the Death Penalty, Europe will provide aid and have good relations with countries that practice the death penalty, Europe’s position is that where the death penalty exists, it should always be subject to certain “minimum standards”:

Where states insist on maintaining the death penalty, the EU considers it important that the following minimum standards should be met: … iii) capital punishment may not be imposed on … Persons below 18 years of age at the time of the commission of their crime;

Eugene does not quote the EU’s minimum standards in full, and the text he does not quote complicates his argument that Europe views the juvenile death penalty as “worse” than the adult death penalty because of the “reduced decision-making capacity of juveniles.” Here is the paragraph in full, with the omitted text in bold:

Capital punishment may not be imposed on:
• Persons below 18 years of age at the time of the commission of their crime;
• Pregnant women or new mothers;
• Persons who have become insane.

The EU’s suggested ban on executing the insane clearly does reflect the idea that insane persons have a ”reduced decision-making capacity.” But the ban on executing “pregnant women or new mothers” doesn’t. Their decision-making capacity is not reduced — yet the EU insists that death-penalty states not execute them, either. So which category are juveniles closest to — the insane (who should not be executed because they are not responsible for their actions) or pregnant women and new mothers (who shouldn’t be executed because it’s inherently wrong to execute them)? There is no way of knowing from the EU’s Guidelines on the Death Penalty — which means that the Guidelines don’t support Eugene’s argument that Europe views the juvenile death penalty as worse than the adult death penalty because ”minors are not really responsible for their actions.”

Let me add another point of Belgian inconsistency. Allowing minors to take their lives, or have them been taken, necessarily makes assumptions about their capacity that is at odds with many liberal features of international law. International treaties, including the Rome Statute of the ICC, make the recruitment of child soldiers a crime, and European countries have been active in promoting the expansion of these norms.

Being a child soldier (under 15) is not a crime, only enlisting them. Crucially, the consent of the child, her parents or any psychologists is not a defense. Indeed, consent is presumed, as the crime covers accepting voluntary enlistees. As the Special Court for Sierra Leone put it:

The act of enlisting presupposes that the individual in question voluntarily consented to be part of the armed force or group. However, where a child under the age of 15 years is allowed to voluntarily join an armed force or group, his or her consent is not a valid defence.

But is this still a far cry from euthanasia? Not if the underlying issue is one of capacity to make life-imperiling decisions. And it is important to point out 15 year old may join armed conflict in when the defeat of their side would lead to the massacre or oppression of them and their families and the destruction of their way of life. Yet international law still prohibits their recruitment. This does not mean it can never be rational for a child to join armed forces, but rather that we make a categorical judgement that even if it is sometimes rational, they lack the judgement to make decisions that imperil their lives.

The emphasis is mine — because I think Eugene’s argument actually proves my point, not his. Eugene’s claim is that the prohibition on the recruitment of child soldiers, which European states have enthusiastically supported, reflects Europe’s view that juveniles have a ”reduced decision-making capacity.” But the bolded text, which I completely agree with, indicates that, on the contrary, international law prohibits the recruitment of child soldiers because it is wrong to let juveniles engage in combat, even if they are capable of making a rational decision to do so. Differently put, international law presumes that child soldiers consent to recruitment because recruiting child soldiers is wrong even when consensual, not because juveniles can never rationally decide to become child soldiers.

The bottom line is this: there is nothing inconsistent about Belgium’s legalizing juvenile euthanasia while rejecting the juvenile death penalty and opposing the recruitment of child soldiers. Belgium simply believes that executing juveniles and recruiting child soldiers is inherently wrong, while permitting terminally ill children to make an informed decision to end their own lives is not. Those are normative positions, and Eugene is free to think they are unwise. But they are not based on an inconsistent view of whether juveniles are responsible for their actions.

Eugene Kontorovich’s Problematic Attack on Roper v. Simmons

by Kevin Jon Heller

I’m currently in Belgium, teaching an intensive course on international criminal law at Katholieke University Leuven. So I was struck by Eugene Kontorovich’s most recent post at the Volokh Conspiracy, in which he uses a new Belgian law permitting euthanasia for minors to criticize the Supreme Court’s abolition of the juvenile death penalty in Roper v. Simmons. Here is the crux of his argument (emphasis mine):

Aside from its inherent significance, Belgium’s move requires us to revisit Roper v. Simmons, the 2005 Supreme Court case that ruled it inherently unconstitutional to apply the death penalty to anyone under 18. European nations had long waged a moral campaign against America’s allowance of the death penalty for 16-18 year olds, which they called barbaric and savage. After all, minors are not really responsible for their actions. America was labelled a human rights violator, an international outlier.

Finally, in Roper, the Court caved in to this pressure. Indeed, it cited the European position as support for its conclusion – other countries do not allow for such a thing.

Why can a 17 year-old rapist-murderer not face capital punishment? Because, as Justice Kennedy wrote in a 5-4 decision, science has shown that minors, even 17-year-olds, are too immature to truly understand the consequences of their decisions, or the meaning of life and death. Juveniles are prone to “impetuous and ill-considered actions” that they should not be made to lose their life for, even if the action involved taking the life of another.” Moreover, juveniles are susceptible to peer pressure, Kennedy wrote. (Of course, one of the concerns in allowing euthanasia is external pressure from doctors, parents and others.)

Yet now we see Belgium thinks kids are responsible enough; the Netherlands similarly allows euthanasia as young as 12. These countries may be the way of the future, as they have been in other areas of progressive mores. Roper misread their belief system. It is not one of paternalistic concern for youth.

Eugene does not provide a link for his assertion that Europe opposes the juvenile death penalty because “minors are not really responsible for their actions.” But I don’t think that’s surprising, because Europe’s opposition to the juvenile death penalty is not based on that idea. Europe has abolished the juvenile death penalty because it rejects the very idea of the death penalty itself, not because it believe minors are not responsible for their actions. After all, no European state other than Belarus permits the death penalty for anyoneIt is thus irrelevant for Roper‘s purposes that Belgium and the Netherlands believe that minors are capable of making an informed decision to end their own lives; that in no way undermines their opposition to the juvenile death penalty. To sustain Eugene’s argument, he would have to identify a state that (1) permits the death penalty for adults while prohibiting it for juveniles on the ground that juveniles, unlike adults, are not responsible for their actions, but (2) allows juveniles to take their own lives on the ground that they are capable of making an informed decision to do so. Belgium and the Netherlands don’t qualify.

It’s also worth noting that, in his zeal to level a “gotcha” at Roper, Eugene misstates Belgian criminal law. Here is what he says about Belgium’s rejection of the juvenile death penalty (emphasis mine):

It is not one of paternalistic concern for youth. Rather, a system that permits the euthanasia of innocent 12 year-olds but not the punishment of guilty 17-year-olds is one that exalts autonomy without culpability.

Of course, with the juvenile death penalty, only a small fraction of minors who committed capital crimes would be sentenced to death. On a case by case basis, hosts of psychologists, jurors, and judges would have to be convinced that the particular defendant truly knew what they were doing.

So it comes out that the juveniles cannot really make accountable decisions when it comes to killing people, unless it is themselves. Or to put it differently, Belgium will not hold children responsible when they hurt others, but gives them free license to hurt themselves. Perversely, in Belgium, the youths who are considered grown up enough to be euthanized have not done anything wrong at all, unlike Simmons, who tied up his victim and thew him off a bridge.

This is simply false. Belgium most certainly holds juveniles criminally responsible for their actions — it simply doesn’t permit executing them. In Belgium, children between the ages of 12 and 15 can be prosecuted in juvenile court and imprisoned until they are 20. And children who are 16 and 17 — the latter being the age that Eugene singles out — can be prosecuted for murder in the Court of Assize and sentenced to a maximum of 30 years in adult prison. Eugene may think a 30-year sentence for a 17-year-old who commits murder is too lenient, but he cannot seriously contend that Belgian criminal law does not permit “the punishment of guilty 17-year-olds,” that it is based on the idea that “juveniles cannot really make accountable decisions when it comes to killing people,” or that it “will not hold children responsible when they hurt others.”

I often agree with Eugene on issues other than Israel (piracy and universal jurisdiction in particular). But his attempt to use Belgian criminal law to attack Roper is fatally flawed.

When Acquittal Is Small Consolation…

by Kevin Jon Heller

Although the ICTY’s recent high-profile acquittals have been getting all the attention, it’s worth noting that the ICTR Appeals Chamber has just acquitted two high-ranking defendants, Augustin Ndindiliyimana, the former chief of staff of the Rwandan paramilitary police, and François-Xavier Nzuwonemeye, the former commander of a military reconnaissance battalion, on the ground that the Trial Chamber erred in concluding that they had effective control over gendarmes suspected of participating in the 1994 genocide. The acquittals are obviously notable in themselves, but what’s particularly striking — and more than a little disturbing — is that Gen. Ndindiliyimana was originally sentenced to time served because he had spent 11 years in pre-trial detention:

Mr. Ndindiliyimana, who was arrested in Belgium in 2000, was convicted in 2011 of genocide, extermination as a crime against humanity and murder, and he was sentenced to 11 years. He was freed after time served.

Eleven years in pre-trial detention at an international tribunal is simply unacceptable. And Ndindiliyimana’s acquittal on all charges after 11 years in pre-trial detention simply adds insult to injury. All in all, a bad day for the ICTR’s reputation.

Vasiliev on the Relationship Between Perisic and Sainovic

by Kevin Jon Heller

Sergey Vasiliev, an excellent young ICL scholar, has posted at the Center for International Criminal Justice a superb — and very long — analysis of the relationship between Perisic and Sainovic entitled “Consistency of Jurisprudence, Finality of Acquittals, and Ne Bis in Idem.” I agree with almost everything Sergey says, although I don’t think we should consider the Perisic AC’s adoption of the specific-direction requirement to be “clear error” (a basic requirement of any argument that the Appeals Chamber should reconsider the judgment) simply because the Sainovic AC says that it was. As Bill Schabas notes in his recent post, the legal issue can hardly be considered settled by Sainovic, given that the judgment was not unanimous, was decided by different appeals judges and the two dissenters (on the specific-direction point) in Perisic, and included a judge who was inexplicably in the majority in both Perisic and Sainovic. I also find it odd that Sergey doesn’t like my claim that the OTP’s motion for reconsideration belongs in the dustbin, given that he unequivocally rejects — on ne bis in idem and human-rights grounds — the idea that the OTP should be given what it wants: namely, Perisic’s acquittal overturned and a conviction entered.

But those are minor points. The post is must-read for anyone interested in the specific-direction requirement or the sudden implosion of the ICTY’s Appeals Chamber.

Schabas on the OTP’s Attempt to Reconsider Perisic

by Kevin Jon Heller

It’s an excellent post, well worth reading in its entirety. I just want to flag two particularly important points. The first concerns whether, in light of Šainović, Perišić can really be considered fundamentally flawed. Schabas compellingly argues no:

But the Prosecutor is not claiming that any ‘new fact’ has been discovered. Rather, the Prosecutor is arguing that the law has changed as a result of the legal basis of the acquittal of Perišić being ‘unequivocally overturned’. But was it?

First, there was a dissenting opinion in Šainović. Under the circumstances, the word ‘unequivocal’ is probably not appropriate. Second, Judge Ramaroson, who sat in both Perišić and Šainović agreed with the majority judgment in both cases. I would not use the word ‘unequivocal’ to describe such a strange situation. Judge Ramaroson might have enlightened us with a separate opinion to explain the change of heart. Third, the Appeals Chamber cannot ‘overturn’ the Appeals Chamber. It may seem paradoxical, but by refusing to follow the finding in Perišić the judges in Šainović may inadvertently have undermined the authority of their own judgment. Who is to say that yet another five-judge panel of the Appeals Chamber will not ‘overturn’ Šainović, perhaps restoring Perišić or possibily setting out a third vision of aiding and abetting? It seems more accurate to describe what has happened is that four judges of the Appeals Chamber disagree with four other judges of the Appeals Chamber (really, three judges, because one of them disagrees with herself).

The second point concerns the human-rights implications of “reconsidering” Perišić’s acquittal 11 months after it became final. I considered mentioning the issue in my previous post, but ultimately didn’t. Here is what Schabas says:

The real problem with the Prosecutor’s motion concerns the rights of the accused. According to article 14(7) of the International Covenant on Civil and Political Rights, ‘No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.’ The same rule is formulated slightly differently in article 4 of Protocol No. 7 to the European Convention on Human Rights:

1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of the State.

2. The provisions of the preceding paragraph shall not prevent the re-opening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

3. No derogation from this Article shall be made under Article 15 of the Convention.

Can the Prosecutor argue that when Perišić was acquitted by the Appeals Chamber there was ‘a fundamental defect in the proceedings’? There is not much in the way of judicial interpretation on this expression. Recently a Chamber of the European Court of Human Rights held that there was such a ‘fundamental defect’ where an acquittal was based upon an amnesty (Marguš v. Croatia, no. 4455/10, § 74, 13 November 2012). The case is currently pending before the Grand Chamber. But four judges disagreeing with four judges cannot be described as a ‘fundamental defect in the proceedings’.

The rule against double jeopardy (ne bis in idem) is part of a larger norm known by the term res judicata. It is almost certainly a general principle of law in the sense this expression is employed by article 38 of the Statute of the International Court of Justice. There is something profoundly troublesome about reconsideration of a final acquittal because a new judicial finding concerning legal interpretation is at variance with an earlier one.

I have nothing to add to Schabas’s points. I completely agree with them. We can only hope, for the sake of the ICTY’s legitimacy, that the Appeals Chamber does as well.

AJIL Symposium: Response to comments on “A New International Human Rights Court for West Africa”

by Karen Alter, Larry Helfer and Jacqueline McAllister

[Karen J. Alter is Professor of Political Science and Law at Northwestern University, Laurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law at Duke University, and Jacqueline McAllister is Assistant Professor of Political Science at Kenyon College (as of July 2014).]

Many thanks to Solomon Ebobrah, Kofi Kufuor, and Horace Adjolohoun for their challenging and insightful comments our AJIL article, A New International Human Rights Court for West Africa. We are pleased to have provoked a debate about the drivers of legal integration in Africa and to see this debate linked to a larger set of literatures.  We hope that this symposium will encourage others to investigate the forces that have shaped regional integration projects around the world and to use evidence from ECOWAS to inform regional integration theory in general.

Our article attempts to stay on firm empirical ground and to generate as complete and accurate an account of the ECOWAS Court’s transformation as one can have at this moment in time.  But here is the rub—what does it mean to say “at this moment of time?”

There were many questions that we could not answer in research conducted only a few years after the events in question. For example, we did not interview the member state officials who debated the expansion of the Court’s jurisdiction.  This was in part due to a lack of time and money, but also because doing so was unlikely to yield different or more complete information.  The decision to extend the Court’s jurisdiction is recent and still contested.  This makes it tricky to interview participants, whose answers may be colored by or speak to the sentiments of the day.

Someday, African scholars may write a version of the recent book The Classics of EU Law Revisited, which examines foundational ECJ rulings fifty years later. The passage of time allowed EU historians to access personal archives and analyze the views of key individuals, and thereby reconstruct what happened before, during, and after these rulings.  We look forward to the day that our account of the ECOWAS Court is similarly dissected.  For now, here are our tentative answers to some of the questions raised in this symposium.

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AJIL Symposium: Can the ECOWAS Court Revive Regionalism Through Human Rights?

by Horace Adjolohoun

[Dr. Horace S. Adjolohoun is a Senior Legal Expert at the African Commission on Human and Peoples’ Rights. He recently completed his LLD thesis on Giving Effect to the Human Rights Jurisprudence of the ECOWAS Court of Justice: Compliance and Influence at the University of Pretoria.]

I agree with Alter, Helfer and McAllister that progressive judicial lawmaking may be risky, particularly in an environment where domestic politics are not in favor of a supranational court that limits the sovereignty margin of state organs. In the context of the ECOWAS Court of Justice (ECCJ), an interesting question could therefore be whether, by a purposive adjudication, the Court could read community law through its human rights mandate. The Court has repeatedly given a negative answer, and many have warned of the related risks, particular bearing in mind the fall of the SADC Tribunal. An association of factors makes me suggest that the chance could be worth taking.

The ECCJ is the official judicial body in which ECOWAS has vested the mandate to oversee the interpretation and application of norms adopted under the aegis of the Community (‘original’ Community law). I suggest that the African Charter has acquired the status of Community law because of its ‘constructive’ incorporation in ECOWAS instruments, particularly the 1993 Revised Treaty and the 2001 Governance Protocol. On the basis of the 2005 Court Protocol, the ECCJ has confirmed that status through its successive human rights judgments, starting from the first one in 2005. Article 31(1) VCLTTreaty law commands that interpretation of conventions should follow the ordinary meaning and not expand beyond the initial intention of the parties. Particularly, in the framework of regional integration arrangements, the ‘agency’ doctrine suggests that the Agent (here the ECCJ) may not usurp legislative functions by either interpreting the silence of the law in a particular direction (which I argue the ECCJ did in the Ugokwe case) or – and thereby – generating new norms that were not expressly formulated by law-makers (here, state parties)  (see Stone Sweet, 10-15). Some of the authors of the lead article support that approach in a previous work.

I agree that the silence of the 2005 Protocol regarding the well established international customary law rule of exhaustion of domestic remedies is as plain as was the lack of direct access for private litigants in the Afolabi era. Despite this, the ECCJ’s judges espoused purposive – and, in my view, ‘progressive’ – judicial lawmaking regarding exhaustion. The ECOWAS human rights ‘regime’ borrows from the African Charter-based system, which poses seven admissibility requirements for complaints to be accepted by the African Court and Commission. In the practice of the Commission, the rule of exhaustion is by far the one that attracts more contention. The 2005 ECCJ Protocol provides for ‘non-anonymity’ and ‘non-pendency’ as the two admissibility conditions.

From the foregoing, it is surprising that, in the course of lawmaking, ECOWAS states provided expressly for two ‘minor’ conditions, and remained silent for a ‘major’ condition, which has always attracted dispute. (more…)

AJIL Symposium: Regional Courts, Regionalism, Critical Junctures and Economic Integration in Africa

by Kofi Kufuor

[Dr. Kofi Oteng Kufuor is a Professor at the University of East London, UK.]

In November 2013 the ECOWAS Community Court of Justice threw out a case brought before it by Nigerian traders seeking a judgment that Ghana’s investment legislation which discriminated against ECOWAS nationals was inconsistent with ECOWAS law. The decision by the Court was surprising not only on account of it being a setback to the ECOWAS goals of a single economic market but it was also a blow to the supranational regime that the members created with the adoption of the Revised ECOWAS Treaty. Moreover, this decision was even more astonishing as it went against ECOWAS law and related protocols on the free movement of persons, right of residence and establishment.

The decision was also surprising in the wake of the efforts by the Court, carefully outlined in the paper “A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice” by Alter, Helfer and McAllister (AHM), to extend its power. The research by AHM states that in the early stages of the Court’s power grab, economic union was sacrificed for the protection of human rights. At the core of the paper by AHM is that a constellation of actors, driven by a variety of interests, came together at a critical juncture in ECOWAS politics – there was widespread concern about the respect for human rights and humanitarian law – and this meeting of persons and policy space created an opportunity for the Court to expand its reach into the realm of human rights.

However, if we accept the core arguments of public choice theory then the Court could have exploited the petition before it to seize more power for itself. Thus public choice theorists studying international organizations will be surprised to see that this supranational moment has slipped especially with regard to an organization that still has compliance and legitimacy problems.

AHM assert that the decision to allow private interests to bring human rights suits before the ECOWAS Court was done at the expense of the Court serving as an engine for realizing the economic integration objective. The inference from this is that while a critical juncture appeared and thus an opportunity seized in the name of human rights, a similar opportunity is yet to come into existence for economic interests. However, looking at the rejection of the traders’ suit from a non-economic “irrational” point of view, the ECOWAS Court has struck a blow for re-connecting markets to society by abating neoliberal economic openness that subordinate Ghana’s investment law to ECOWAS law. Was the Court able to do so because the kind of interests that birthed the Court’s rights moment did not exist at the regional level? Inferred from AHM’s work the answer seems to be yes.

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OTP Asks for Perisic Reconsideration — On the Basis of Nothing

by Kevin Jon Heller

Fresh from its victory in Sainovic, the ICTY Office of the Prosecutor (OTP) has now asked the Appeals Chamber to reconsider its final judgment in Perisic on the ground that it would be unjust to permit Perisic to remain acquitted. As the legal basis for such reconsideration 11 months after final judgment, the OTP cites…

Precisely nothing.

Which is not surprising, because nothing in the ICTY Statute actually permits such reconsideration. The only provision that deals with reconsideration of Appeals Chamber judgments is Art. 26, which is limited to the discovery of new facts:

Where a new fact has been discovered which was not known at the time of the proceedings before the Trial Chambers or the Appeals Chamber and which could have been a decisive factor in reaching the decision, the convicted person or the Prosecutor may submit to the International Tribunal an application for review of the judgement.

Even more problematic for the OTP, the Appeals Chamber specifically rejected reconsideration of final appeals judgments in Zigic, noting that the victims and the accused “are both entitled to certainty and finality of legal judgments.”

Lacking any legal basis for its request, the OTP does what it always does — invite the Appeals Chamber to engage in what Darryl Robinson has called “victim-centered reasoning” and reconsider Perisic anyway. In the OTP’s words, because Perisic was wrongly decided (according to one iteration of the Appeals Chamber), “the interests of justice for the tens of thousands of victims, substantially outweighs Perisic’s interest in finality of proceedings. Justice must be restored to the victims. Reconsideration is the only way to this end.” Put more simply: forget that inconvenient principle of legality. The demands of justice trump the text of the ICTY Statute.

It’s also worth noting a profound irony at the heart of the OTP’s request. It acknowledges Zigic is against it — so it argues that the Appeals Chamber should disregard Zigic in favour of its earlier decision in Celebici, which held, in another classic example of ignoring the text of the ICTY Statute in favor of its supposed “object and purpose” of combating impunity, that the Appeals Chamber’s “inherent jurisdiction” (of course) empowers it to reconsider any decision, no matter when decided, that “has led to an injustice.” In other words, the OTP is asking the Appeals Chamber to ignore a new decision (Zigic) that rejected an old decision (Celebici) in order to apply a new decision (Sainovic) that rejected an old decision (Perisic). Remarkable.

I would like to predict that the Appeals Chamber will consign this motion to the dustbin where it belongs. But who knows? As Marko Milanovic has pointed out, precedent no longer has much meaning for the Appeals Chamber. The outcome of an appeal now largely turns on which judges are randomly assigned to the panel.

I will be speaking soon on Perisic and Sainovic at a conference on the legacy of the ICTY. With each motion like this one, that legacy becomes a bit more tarnished.

UPDATE: Dov Jacobs adds some important points at Spreading the Jam.