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International Courts and Dispute Resolution

A Response to Dov Jacobs on the Burundi Investigation

by Kevin Jon Heller

At Spreading the Jam, Dov Jacobs defends the Pre-Trial Chamber’s conclusion in the Burundi situation that the OTP is not required to notify a state until after the PTC has authorized an investigation. Here are the critical paragraphs from his post:

Note the different language used [in Art. 18] depending on whether there is a referral under 13(a) (state referral) or 13(b) (proprio motu): in the former case, the notification must come when “the Prosecutor has determined that there would be a reasonable basis to commence an investigation”, in the latter the notification must come when “the Prosecutor initiates an investigation” pursuant to Article 15. This seems to mean that the initiation of an investigation is something different, in a proprio motu context, that the fact that the OTP considers that there is a reasonable basis to proceed with an investigation. For me, this means that all procedural steps of Article 15 need to have been followed (including the formal authorisation) before the notification obligation of Article 18 kicks in. The determination by the Prosecutor that “there is a reasonable basis to proceed with an investigation” (Article 15(3)), which is sufficient to initiate an investigation under 13(a) is only one step of the procedure under article 15. Kevin seems to equate the authorisation under 15(4) and authorisation under 18(2). But I think these are two different “authorisations”. Under 15(4), a PTC authorises the initiation of a proprio motu investigation, while under 18(2), it is an authorisation to investigate despite the request for deferral by a State, irrespective of whether the investigation was initiated initially under 13(a) or 13(c).

I think the confusion comes from a possible misunderstanding on the scope of Article 18. Article 18 provides for a limited procedure to be followed for a preliminary ruling on admissibility which I think is self-contained within Article 18. Which means that in my view the notification requirement under Article 18 cannot be read in as a condition for the validity of the Article 15 procedure. I should add also that Article 18 does not lead to a formal challenge to admissibility, which will fall under Article 19. In this sense, I do not think Kevin is right (whether one agrees with his interpretation of Article 18 or not) in saying that Burundi will not be able to challenge admissibility before a case is brought. They will be able to do so at any time (especially given the ICC’s case law that “case” in the Rome Statute does not really mean “case” in the context of admissibility questions, which is why everybody assesses admissibility as early as the PE phase. I think that doesn’t make sense, but that is a different debate…).

In my view, though clever, Dov’s argument is problematic. The first problem concerns his claim that “all procedural steps of Article 15 need to have been followed (including the formal authorisation) before the notification obligation of Article 18 kicks in.” That position is irreconcilable with Art. 15. As I pointed out in my previous post, Art. 15 not only specifically distinguishes between the OTP initiating an investigation proprio motu (paragraph 1) and the PTC authorizing the commencement of that investigation (paragraph 4), it specifically deems the former but not the latter part of the preliminary-examination process (paragraph 6). Paragraph 6 makes no sense if “initiates” in paragraph 1 refers to all of the steps in Art. 15, including authorization.

The only way Dov can avoid that critique is to assert that “initiates” in Art. 15(1) does not mean the same thing as “initiates” in Art. 18(1). If they mean the same thing, Art. 18(1)’s notification requirement necessarily kicks in — as I previously argued — prior to the PTC authorizing the proprio motu investigation (because Art. 15(6) says initiating is part of the preliminary-examination process and authorization is not). Dov provides no evidence that “initiates” means different things in Art. 18(1) and Art. 15(1), and any such argument is difficult to reconcile with the fact that Art. 18(1) specifically refers to “the Prosecutor initiat[ing] an investigation pursuant to articles 13 (c) and 15,” thereby using “initiates” in Art. 15(1) to give meaning to Art. 18(1)’s notification requirement. Moreover, if the drafters of Art. 18 wanted the proprio motu notification requirement to kick in only after all of the steps in Art. 15 had been completed, why would they not simply have written “or the Court authorizes the commencement of the investigation” instead of “or the Prosecutor initiates an investigation”?

Equally problematic is Dov’s insistence that Burundi will be able to challenge the validity of the proprio motu investigation even though the PTC has already formally authorized it. Dov’s argument to that effect is strangely devoid of any reference to the actual language of Art. 19; he simply says that “’case’ in the Rome Statute does not really mean ‘case’ in the context of admissibility questions.” If Dov believes that Art. 19 allows a state to shut down an already-authorized proprio motu investigation by invoking complementarity, he should make the argument. In my view, nothing in Art. 19 permits such a challenge, given that the Article is limited — both in name and in terms of its specific provisions — to cases. Art. 19(2) is particularly revealing in that regard, as it specifically limits jurisdiction and admissibility challenges to “[a]n accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58” (subparagraph a) or “[a] State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted” (subparagraph b).

Dov’s reading also makes a mishmash of the relationship between Art. 19 and Art. 15. If Dov is right, a state can use a complementarity challenge under Art. 19 to shut down a proprio motu investigation that has already been authorized by the PTC under Art. 15. Yet the PTC has to consider issues of complementarity in order to authorize a proprio motu investigation in the first place, because it has to find the OTP’s contemplated cases admissible in order to conclude that there is a “reasonable basis to proceed with [the[ investigation.” Dov’s position thus requires the PTC to consider complementarity twice in Burundi-like situations: once when the OTP asks it to authorize a proprio motu investigation ex parte (under Art. 15), and again when the affected state asks it  to defer the investigation (under Art. 18). When deciding to authorize the investigation, the PTC will hear only from the OTP; when deciding to defer the investigation, the PTC will hear from both the OTP and the PTC. Why would the drafters of the Rome Statute adopted such a duplicative and cumbersome process? My (textually sound) interpretation of Art. 18’s notification process makes much more sense, because it means that the PTC will only address complementarity once, before it authorizes a proprio motu investigation.

My interpretation is also superior to Dov’s in terms of the politics of proprio motu investigations. If Dov’s interpretation of the Rome Statute is correct, a state facing referral by another state can use Art. 18 to prevent the PTC from ever formally approving the OTP’s belief that an investigation is warranted, while a state facing proprio motu investigation cannot invoke Art. 18 until after the PTC has formally approved a similar belief. States are thus better off being referred by another state than being investigated proprio motu whenever the OTP can convince the PTC to grant the latter ex parte. It goes without saying, however, that states at the Rome Conference were far more concerned by proprio motu investigations than state referrals.

Dov’s defense of the PTC’s interpretation of Art. 18’s notification requirement is very clever. But I think it’s also clearly incorrect.

How the PTC Botched the Ex Parte Request to Investigate Burundi

by Kevin Jon Heller

Last week I argued that the OTP’s failure to ask the Pre-Trial Chamber to authorize an investigation prior to Burundi’s withdrawal from the ICC becoming effective — 28 October 2017 — meant that the Court no longer had jurisdiction over crimes committed on Burundi’s territory prior to that date. I still think my legal analysis is correct, but my factual assumption was clearly not. As it turns out, the OTP filed an authorization request with the PTC on September 15, but did so ex parte and under seal — a possibility the ever-brilliant Sergey Vasiliev discussed a few days ago here at Opinio Juris. The PTC authorized the investigation on October 25, three days before Burundi’s withdrawal became effective, but only released a public redacted version of its decision yesterday, November 9. As it stands now, therefore, the ICC retains jurisdiction over crimes committed in Burundi prior to 28 October 2017.

Unfortunately, the PTC’s decision contains a critical legal flaw — one whose importance cannot be overstated. Because the OTP filed its request to open an investigation ex parte and under seal, Burundi was not informed that the request existed until after the PTC had already decided to grant the request and authorize the investigation. The PTC makes this clear in paragraph 11 of its decision:

11. In sum, the Chamber finds that, on the basis of a combined reading of articles 15(3), 18 and 68(1) of the Statute and rule 50(1) of the Rules, a procedure pertaining to a request for authorization of an investigation may, under certain circumstances, be conducted under seal, ex parte, with the Prosecutor only.

In fact, the OTP did not even inform Burundi about the investigation immediately after the PTC authorized it, because the PTC accepted the OTP’s argument that it needed 10 additional days to ensure that victims and witnesses were protected. (See paragraphs 16-19.)

Here is the problem: Art. 18 of the Rome Statute required the OTP to notify Burundi when it initiated the investigation into the situation there, not when the PTC authorized the investigation. Here is what the PTC says in paragraph 17 (emphasis mine)…

Initial Thoughts on the ICC’s Decision to Investigate Afghanistan

by Kevin Jon Heller

Very significant news out of the ICC today: after a decade-long preliminary examination, the OTP has finally decided to ask the Pre-Trial Chamber to authorize a formal investigation into the situation in Afghanistan. Here is a snippet from Fatou Bensouda’s announcement:

For decades, the people of Afghanistan have endured the scourge of armed conflict.  Following a meticulous preliminary examination of the situation, I have come to the conclusion that all legal criteria required under the Rome Statute to commence an investigation have been met.  In due course, I will file my request for judicial authorisation to open an investigation, submitting that there is a reasonable basis to believe that war crimes and crimes against humanity have been committed in connection with the armed conflict in Afghanistan.  It will be for the Judges of the Court’s Pre-Trial Chamber, constituted by the Presidency, to decide whether I have satisfied them that the Statute’s legal criteria to authorise opening an investigation are fulfilled.

Given the limited temporal scope of the Court’s jurisdiction, my request for judicial authorisation will focus solely upon war crimes and crimes against humanity allegedly committed since 1 May 2003 on the territory of Afghanistan as well as war crimes closely linked to the situation in Afghanistan allegedly committed since 1 July 2002 on the territory of other States Parties to the Rome Statute.  The Court has no jurisdiction respecting crimes alleged to have been committed before those cut-off dates.

Assuming the PTC grants the OTP’s request — which is basically a foregone conclusion — Afghanistan will become (following Georgia) the second ICC investigation outside of Africa.

It will be very interesting to see how the US reacts to the announcement. The OTP made it clear in its 2016 preliminary-examination report that it intends to investigate crimes committed by the US military and the CIA:

211. The information available provides a reasonable basis to believe that, in the course of interrogating these detainees, and in conduct supporting those interrogations, members of the US armed forces and the US Central Intelligence Agency (“CIA”) resorted to techniques amounting to the commission of the war crimes of torture, cruel treatment, outrages upon personal dignity, and rape. These acts are punishable under articles 8(2)(c)(i) and (ii) and 8(2)(e)(vi) of the Statute. Specifically:

  • Members of US armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1 May 2003 and 31 December 2014. The majority of the abuses are alleged to have occurred in 2003-2004.
  • Members of the CIA appear to have subjected at least 27 detained persons to torture, cruel treatment, outrages upon personal dignity and/or rape on the territory of Afghanistan and other States Parties to the Statute (namely Poland, Romania and Lithuania) between December 2002 and March 2008. The majority of the abuses are alleged to have occurred in 2003-2004.

212. These alleged crimes were not the abuses of a few isolated individuals. Rather, they appear to have been committed as part of approved interrogation techniques in an attempt to extract ‘actionable intelligence’ from detainees. According to information available, the resort to such interrogation techniques was ultimately put to an end by the authorities concerned, hence the limited time-period during which the crimes allegedly occurred.

213. The Office considers that there is a reasonable basis to believe these alleged crimes were committed in furtherance of a policy or policies aimed at eliciting information through the use of interrogation techniques involving cruel or violent methods which would support US objectives in the conflict in Afghanistan. Likewise, there is a reasonable basis to believe that all the crimes identified herein have a nexus to the Afghanistan conflict.

If the US formally challenges the investigation — a big if, because it would probably see doing so as an acknowledgment of the investigation’s legitimacy — it will no doubt rely on Mike Newton’s argument in the Vanderbilt Journal of Transnational Law that the Status of Forces Agreement (SOFA) between Afghanistan and the United States precludes the ICC from exercising jurisdiction over American soldiers. (The SOFA presumably doesn’t apply to CIA operatives, who are not part of the US armed forces.) Oversimplifying a bit, Mike argues that Afghanistan has no jurisdiction that it can delegate to the ICC, because the SOFA provides that the US retains exclusive jurisdiction over crimes committed by American soldiers. I disagree with the argument, for reasons ably laid out by Roger O’Keefe and Carsten Stahn. But it is a serious argument that deserves serious consideration.

Like Dov Jacobs, I am also intrigued by the OTP’s stated intention to investigate crimes committed by the CIA in Romania, Lithuania, and Poland. There is no jurisdictional problem, because those states are all members of the ICC and the the SOFA that applies to NATO states is based on shared jurisdiction, not exclusive jurisdiction. And I don’t think anything in the Rome Statute prohibits the OTP from defining a situation to include territory of multiple states. But we have definitely never seen a situation like this before.

I doubt that we will see the ICC issue arrest warrants for an American soldier or CIA operative anytime soon. My guess is that the OTP will begin with crimes committed by the Taliban, which will be much easier to investigate and prosecute than American crimes. (If only because Donald Trump might be crazy enough to actually invade The Hague if the Court ever got its hands on an American.) But this is still a momentous — if long overdue — day for the ICC. Opening an investigation that could lead to Americans being prosecuted, even if only in theory, is a remarkable act of bravery for a Court that has proven largely impotent with regard to crimes committed by government officials.

Kudos to Fatou Bensouda and the OTP.

A Dissenting Opinion on the ICC and Burundi

by Kevin Jon Heller

As has been widely reported, Burundi has just become the first state to formally withdraw from the ICC. The OTP has been examining the situation in Burundi since April 2016, but it did not formally ask the Pre-Trial Chamber (PTC) to authorize an investigation prior to Burundi’s withdrawal becoming effective. So what does Burundi’s withdrawal mean for the OTP’s preliminary examination (PE)? Can the OTP still ask the PTC to authorize an investigation into crimes committed in Burundi prior to withdrawal? Or does Burundi’s withdrawal divest the Court of jurisdiction over the situation?

The relevant provision is Art. 127(2) of the Rome Statute (my emphasis):

A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.

The ICC is taking the position that Art. 127(2)’s bolded language means Burundi’s withdrawal does not affect the Court’s jurisdiction over crimes committed prior to the date the withdrawal became effective — 28 October 2017. It does not explain why, but the argument is relatively straightforward: (1) the PE in Burundi began prior to 28 October 2017; (2) a PE qualifies as a “matter”; (3) the OTP is part of the Court. Hence (4) the Burundi PE “was already under consideration by the Court prior to the date on which the withdrawal became effective” and the Court continues to have jurisdiction over (“consider”) the situation.

A number of commentators agree with the ICC’s position, including Amnesty International and Beitel van der Merwe. The only dissenting voice is Dov Jacobs, who is skeptical about point (2) — whether a PE really qualifies as a “matter” for purposes of Art. 127(2). Here is what he says:

The key issue is what is covered by the expression “any matter already under consideration by the Court”. Alex Whiting makes the argument that this expression is broad enough to cover preliminary examinations by the OTP. Possibly, he is right from a linguistic point of view. However, I have a difficulty with the idea that such an informal phase as a preliminary examination (which might simply involve an OTP investigator sitting in front of his computer in The Hague downloading HRW and Amnesty International reports) might have such massive consequences as trumping the decision of a State to withdraw from the Rome Statute.

I agree with Dov. As is well known, the OTP divides the preliminary-examination process into four phases: (1) determining whether a situation falls “manifestly outside” of the ICC’s jurisdiction; (2) determining whether there is a reasonable basis to believe an international crime was committed in the situation; (3) assessing admissibility; (4) assessing the interests of justice. According to the OTP, a “formal” PE begins with Phase 2 (emphasis mine):

80. Phase 2, which represents the formal commencement of a preliminary examination of a given situation, focuses on whether the preconditions to the exercise of jurisdiction under article 12 are satisfied and whether there is a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court. Phase 2 analysis is conducted in respect of all article 15 communications that were not rejected in Phase 1, as well as of information arising from referrals by a State Party or the Security Council, declarations lodged pursuant to article 12(3), open source information, and testimony received at the seat of the Court.

Dov’s example of the OTP investigator downloading HRW or AI reports about a situation is thus spot on. Because such reports are “open source information,” the very act of looking at it means that a PE is at Phase 2 and a “formal” PE has commenced. Which means in turn that — according to the ICC’s interpretation of Art. 127(2) — the Court retains jurisdiction over the situation in the report. (And retains it in perpetuity, because there is no time limit on an OTP decision to advance a PE to a full investigation, as the 13 year-old Colombia PE indicates.)

Like Dov, I am not sure “matter” can or should be interpreted to include any formal PE, even one triggered by an OTP investigator (or even an intern?) downloading an NGO report (or even just reading it on the screen?). But I think there is a more important question about the ICC’s interpretation of Art. 127(2): whether a situation is under “consideration by the Court” simply by virtue of the OTP preliminarily examining it. Alex Whiting believes that it is (emphasis mine):

There is a decent but far from certain argument that jurisdiction should survive at least for any crimes that are the subject of a preliminary examination by the Office of the Prosecutor before the date of a State Party’s effective withdrawal. Following the broad first sentence of Article 127(2), the provision addresses two specific situations: (1) when an investigation or proceeding is underway before effective withdrawal, the departing State Party continues to have a legal duty to cooperate with the Court’s inquiry even after the State Party has left the Court, and (2) the State Party’s departure cannot prejudice the Court’s “consideration of any matter” that was already underway before departure. The “Court” in the Rome Statute refers to the entire ICC, including the Prosecutor, and not just the judges.

I disagree. There is no question that “the Court” sometimes refers to “the entire ICC,” such as when the Rome Statute is referring generically to the ICC’s location or international legal personality. Indeed, Art. 34 says that “the Court” is composed of the Presidency, the judiciary, the OTP, and the Registry.

But the Rome Statute also uses “the Court” in a more restrictive fashion — to refer specifically to the judiciary, excluding the OTP. Here are some examples:

[1] Art. 19(3) provides that “[t]he Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility.”

[2] Art. 19(7) provides that “[i]f a challenge is made by a State referred to in paragraph 2 (b) or (c), the Prosecutor shall suspend the investigation until such time as the Court makes a determination in accordance with article 17.”

[3] Art. 19(10) provides that “[i]f the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a review of the decision.”

[4] Art. 21(2) provides that “[t]he Court may apply principles and rules of law as interpreted in its previous decisions.” The OTP doesn’t issue decisions.

[5] Art. 65(5) provides that “[a]ny discussions between the Prosecutor and the defence regarding modification of the charges, the admission of guilt or the penalty to be imposed shall not be binding on the Court.”

[6] Art. 66(3) provides that, “[i]n order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.”

[7] Art. 67(2) provides that, with regard to the rights of the defendant, “[i]n case of doubt as to the application of this paragraph, the Court shall decide.”

I could go on. The point is that, contra Alex, we cannot simply assume that Art. 127(2)’s reference to “the Court” includes both the judiciary and the OTP. It may well be that Art. 127(2) refers only to the judiciary. The distinction, of course, is critical in the context of Burundi’s withdrawal: if a matter must be “under consideration by” the judiciary for Art. 127(2) to apply, then the OTP’s failure to open an investigation into the situation means that the Court (writ large) no longer has jurisdiction over any crimes committed in Burundi — not even over those committed prior to the date Burundi’s withdrawal became effective.

I cannot claim with absolute certainty that the more restrictive reading of Art. 127(2) is correct, especially as Amnesty International says that the travaux preparatoires do not shed any light on the issue. But it seems like the much stronger position. Most importantly, the precise expression “under consideration by the Court” also appears in Art. 95, which deals with the postponement of requests in connection with admissibility challenges (emphasis mine):

Where there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19, the requested State may postpone the execution of a request under this Part pending a determination by the Court, unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence pursuant to article 18 or 19.

“Under consideration by the Court” in Art. 95 clearly means “under consideration by the judiciary.” Normal rules of treaty interpretation thus suggest that the same expression in Art. 127(2) is similarly restrictive.

This interpretation of Art. 127(2) is also supported by the problem Dov identifies — that deeming any PE a “matter” gives the OTP so much power that the withdrawal provision is a virtual nullity. A PE does indeed seem like a “matter,” but that does not mean a PE is a matter “under consideration by the Court.” The better view is that a situation is only “under consideration by the Court” once the OTP asks the PTC to authorize an investigation into that situation.

The upshot of all of this is that, in my view, the Court no longer has jurisdiction over crimes committed on the territory of Burundi prior to the state’s withdrawal from the ICC. If the OTP had wanted to keep alive the situation, it needed to ask the PTC before 28 October 2017 for permission to open an investigation. And it failed to do so.

New Essay: Specially-Affected States and the Formation of Custom

by Kevin Jon Heller

I have just posted on SSRN a draft of a (very) long article entitled “Specially-Affected States and the Formation of Custom.” It represents my first real foray into both “classic” public international law and postcolonial critique. Here is the abstract:

Although the US has consistently relied on the ICJ’s doctrine of specially-affected states to claim that it and other powerful states in the Global North play a privileged role in the formation of customary international law, the doctrine itself has been almost completely ignored both by legal scholars and by the ICJ itself. This article attempts to fill that lacuna. In particular, by focusing on debates in a variety of areas of international law – with particular emphasis on the jus ad bellum and jus in bello – it addresses two questions: (1) what makes a state “specially affected”? and (2) what exactly is the importance of a state qualifying as “specially affected” for custom formation? The article concludes not only that the US approach to the doctrine of specially-affected states is fatally flawed, but also that a more theoretically coherent understanding of the doctrine would give states in the Global South power over the development of custom that the US and other Global North states would never find acceptable.

You can download the article here. As always, comments most welcome!

Symposium: Aeyal Gross’s “The Writing on the Wall”

by Kevin Jon Heller

Over the next three days we will be featuring an online discussion of my SOAS colleague and TAU law professor Aeyal Gross‘s new book for Cambridge University Press, The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017). The book develops ideas that Aeyal discussed on Opinio Juris — in a symposium on the functional approach to occupation — more than five years ago. So it’s fitting that we discuss his book on the blog now!

We are delighted to welcome a number of commenters, including Eliav Lieblich (TAU), Valentina Azarova (Koç) (who also contributed to the earlier symposium), Diana Buttu (IMEU), and Eugene Kontorovich (Northwestern). Aeyal will respond to the comments at the end of the symposium.

We look forward to the conversation!

Workshop CfP: Contingency in the Course of International Law

by Kevin Jon Heller

I am delighted to release the call for papers for a workshop I am organising with Ingo Venzke, my fantastic colleague at the Amsterdam Center for International Law. The workshop is entitled “Contingency in the Course of International Law: How International Law Could Have Been” and will feature an opening address by Fleur Johns (UNSW) and a closing address by Sam Moyn (Yale). The workshop will be held over two half days and one full day from June 14-16 2018. Here is our description of the concept:

The workshop will ask a question that is deceptive in its simplicity: How might international law have been otherwise? The overarching aim will be to expose the contingencies of international law’s development by inquiring into international law’s past. Such inquiries may be of systematic purport – asking, for example, how a different conception of the sources of international law could have emerged. Or they may focus on specific areas of the law, asking questions like whether the idea of state crimes could have taken hold or whether the NIEO could have achieved greater success. International law’s past is almost certainly ripe with possibilities that we have forgotten. The workshop will seek to reveal and remember them.

The workshop will focus on trying to tell compelling stories about international law’s contingency. To be sure, those attempts may fail and claims to contingency may well turn out to be false. Either way, though, we will question the present state of international law by challenging its pretense to necessity and by better understanding the forces that have shaped it. Put simply with Robert Musil: ‘If there is a sense of reality, there must also be a sense for possibility’.

While the operation of the law is bound to gloss over any contingency in its course, we wish to draw out those contingencies to learn what could (not) have been. Some contributions will focus on the operation of international law itself, exploring the differential developments that could have taken place concerning seminal judicial decisions (eg, what if France had won the Lotus case?), key treaties (eg, what if states had failed to conclude the Second Additional Protocol in 1977?), or important institutions (eg, what if the International Clearing Union had been established in 1949?). Another set of inquiries will question the development of international law in light of more general historical events that might not have happened or might have happened differently, such as the outbreak of World War I, the processes of decolonization, or the terrorist attacks of 9/11. And yet other angles are welcome.

In the course of concrete inquiries into international law’s past, there are numerous opportunities for theoretical reflection about the nature of contingency itself, ranging from philosophies of legal history to questions about the narrator’s perspective. How should actor- and structure-centered accounts of the past be combined in probing the contingency of past events? How should we cope with possible tensions between pursuing interests in the present while avoiding undue anachronisms? And how can we contextualize legal developments without reducing law to its context only? Not the least, the question of how it could have been provides a renewed take on perennial questions of international law’s relationship with power, culture, and justice.

The workshop is open to everyone from PhD students to senior scholars — from law and from outside it — and the deadline for abstracts is December 1. You can download the full Call for Papers here. If you have any questions, please don’t hesitate to email me.

This Is Why People Think the ICC Is Unfairly Targeting Africa

by Kevin Jon Heller

Snapshot of two days in the life of the ICC.

On Tuesday, the ICC issued a new arrest warrant in the Libya situation — for Mahmoud al-Werfalli, a commander in the so-called Libyan National Army (LNA), which defected from the Libyan army during the revolution and is currently vying for power with the UN-backed Government of National Accord (GNA). The arrest warrant represents a new phase in the ICC’s completely unsuccessful investigation in Libya, as it is the first to focus on events that happened after the revolution. There is no reason to believe, however, that the warrant for al-Werfalli will be any more successful than the ones for Gaddafi and al-Senussi: the LNA has already made clear they will not surrender him to the ICC, and the GNA has zero prospect at present of capturing him.

On Wednesday, Rodrigo Duterte, the President of the Philippines, instructed his police to shoot human-rights activists who are “obstructing justice” by investigating his war against (alleged) drug dealers. That war has involved at least 7,000 extrajudicial killings in the past 13 months and has featured Duterte openly admitting not only that he has ordered the extrajudicial kilings, but that he has personally committed themHuman-rights groups and even a Philippine senator have called for the ICC to open an investigation into the situation.

There seems to be little question that al-Werfalli is guilty of ordering and participating in more than two dozen summary executions of captured soldiers — remarkably, there is video to that effect. But al-Werfalli is one military commander among hundreds responsible for horrific crimes in Libya. Duterte, by contrast, is the President of one of the only states in Southeast Asia that has ratified the Rome Statute. Even if he never ended up in the ICC’s dock, a formal investigation of the situation that he has almost single-handedly created in the Philippines would do more to deter the commission of international crimes than 500 arrest warrants for thugs like al-Werfalli. Yet despite issuing a strong statement making clear that the Court has jurisdiction over the situation and could prosecute individuals responsible for international crimes, there is no indication that the OTP has seriously contemplated opening a formal investigation in the Philippines.

The ICC fiddles in Benghazi while Manila burns. And yet the ICC claims not to understand why so many people think it’s obsessed with Africa.

MH17 Downing Suspects to be Prosecuted Before Dutch Domestic Courts – An Obstacle or an Advantage for International Justice?

by Aaron Matta

[Dr. Aaron Matta is an expert in international law with working experience at International Courts. He also recently co-founded The Hague Council on Advancing International Justice, a network for and with practitioners, academics, and policymakers in the area of international justice. I would like to thank Dr. Philip Ambach and Anda Scarlat for their feedback on earlier drafts of this commentary.The views expressed here are of the authors alone]

After nearly three years since the downing of the Malaysia Airlines MH17 flight, the countries comprising the Joint Investigation Team (JIT) – namely Australia, Belgium, Malaysia, the Netherlands and Ukraine – announced on 5 July their decision to initiate domestic investigations and prosecutions in the Netherlands in relation to the incident. To facilitate these procedures, a bilateral treaty on international legal cooperation between Ukraine and the Netherlands was signed on July 7. The treaty provides that those suspected of downing flight MH17 can be prosecuted in the Netherlands in respect of all 298 victims, which originate from 17 different countries. This means that all next of kin will have the same rights in the Dutch criminal proceedings regardless of their nationality.

These new developments are not surprising given that most of the victims were Dutch and the Netherlands has led the investigation and coordinated the international team of investigators thus far. This move also shows the determination of the JIT states to bring to justice those responsible, particularly after failed attempts to establish an ad hoc international MH17 Court had failed due to Russia’s veto in the United Nations Security Council. However, the recent decision to prosecute suspects in a Dutch domestic court raises challenges, particularly in view of the ongoing preliminary examination in Ukraine by the Prosecutor of the International Criminal Court (ICC). While international law provides several legal avenues for redress for this incident, in both criminal and civil proceedings, – which I extensively analyzed in an earlier blog post – the avenues analyzed here fall under the category of individual criminal responsibility.

So why can the Netherlands exercise its criminal jurisdiction in this case, if the incident occurred in Ukraine? In principle, Ukraine would retain the primary right to investigate and prosecute those responsible according to the legal principle of territorial jurisdiction – based on where the crime was committed. The Ukrainian leadership determined, however, that it would be very difficult to carry out the investigations and prosecutions due to the ongoing conflict in the Donbass region, where the MH17 incident took place. As a result, Ukraine triggered the ICC’s jurisdiction over crimes allegedly committed on its territory from 20 February 2014 onwards via two declarations under the ICC Statute, requesting the ICC Prosecutor to investigate the matter. Currently, following these requests, the ICC Prosecutor is undertaking a preliminary examination that could lead to the opening of a criminal investigation. Such investigation could potentially include the downing of the MH17 flight as an alleged war crime.

Nonetheless, the other JIT states, including the Netherlands, can also assert their domestic jurisdictions over this matter based on the legal principle of passive personality jurisdiction, due to the fact that their citizens were killed in this incident. In light of last week’s decision, the Dutch domestic criminal specialized courts will now be able to investigate and prosecute those responsible for the downing of MH17 on the basis of four main legal sources: first, as domestic crimes under the Dutch penal code, such as murder or manslaughter; second, as an international crime under the Dutch International Crimes Act of 2003; thirdly, as a crime on the basis of the 1971 Montreal Convention, which allows the domestic prosecution of any person committing unlawful acts against the safety of civil aviation; and finally, the bilateral judicial cooperation agreement recently signed with Ukraine.

However, the concurrent use of multiple criminal prosecution mechanisms, namely the Dutch domestic courts and the ICC, may cause difficulties. First, issues may arise under the basic principle of ‘ne bis in idem’, which states that no person can be tried twice for the same crime. Thus, if a Dutch court prosecutes an individual, this may prevent the ICC from prosecuting the same individual for the same crime. It is therefore essential for the JIT states to coordinate and cooperate with each other, and more importantly with the ICC, when it comes to gathering evidence, selection of suspects and conducting fair trials, to avoid duplication and wasting resources.

In addition, an investigation by the Dutch national authorities will most likely block any investigation by the ICC by virtue of the latter’s complementarity to national courts of its States Parties. According to this principle, states are primarily responsible for investigating and prosecuting international crimes. The ICC only intervenes if states parties to the Rome Statute of the ICC are unable or unwilling to prosecute individuals’ suspected/accused of the most serious crimes of concern to the international community. With this in mind, a division of labor between the different jurisdictions, and among the different actors involved, could be arranged. For example, the Netherlands could focus in prosecuting those most responsible for the MH17 incident, while the ICC concentrates its efforts and limited resources to investigating other crimes committed in the Ukrainian territory.

Other challenges that will be faced by all of the jurisdictions involved are, for example, meeting the high standards of proof required for establishing the suspects’ guilt beyond reasonable doubt. This includes notably the requirement to prove the alleged perpetrator’s ‘knowledge and intent’ to commit a war crime. Additionally, there will be several procedural obstacles when it comes to judicial cooperation and the sharing of crucial potential evidence. Clear examples of this are the thousands of intercepted telephone calls gathered by Ukrainian law enforcement and intelligence agencies. While some of this evidence can easily be shared with the JIT investigators, as well as with the Dutch and ICC prosecutors, in several instances much of this data cannot be shared due to some restrictions in the Ukrainian legal system. This is the case, for example, with evidence that may have been acquired or intercepted following special legal procedures into the downing of the MH17, such as investigations carried out in the interest of state security and the fight against terrorism.

The bilateral agreement between the Netherlands and Ukraine addresses some of these issues by reducing or simplifying some procedural hurdles. For example, the agreement tackles the issue of examination of Ukrainian defendants via video link or the transferring of enforcement of prison sentences that may be imposed, due to extradition restrictions in the Ukrainian legal system.

Finally, a major obstacle will prove to be obtaining custody of the potential suspects, particularly if they are Russian nationals and/or located on Russian territory. The Russian Federation will most likely not be willing to extradite potential Russian suspects, in spite of international pressure, in light of the current geopolitical tensions prevailing in the region. In this respect, trials in absentia (where the suspect is absent from the legal proceedings), which are provided for in the Dutch criminal code could prove to be a limited yet practical solution.

Regardless of these numerous challenges, the decision to initiate judicial proceedings in the Netherlands providing a solid avenue for legal redress for the incident should be welcomed. Such an initiative would further show that the JIT states are serious about seeking justice for the victims of this tragic incident and their relatives.

Reply by Gregory S. Gordon: On the General Part, the New Media and the Responsibility to Protect

by Gregory Gordon

[Gregory Gordon is Associate Professor of Law, Associate Dean for Development and External Affairs and Director of the Research Postgraduates Programme at The Chinese University of Hong Kong Faculty of Law.  He was formerly a prosecutor with the International Criminal Tribunal for Rwanda and the U.S. Department of Justice, Office of Special Investigations.]

I am grateful to Opinio Juris, especially organizers Chris Borgen and Jessica Dorsey, for providing this amazing platform to have a discussion about my new book Atrocity Speech Law: Foundation, Fragmentation, Fruition. And I would like to thank Professors Roger Clark, Mark Drumbl and David Simon for their astute and thought-provoking observations. Each took a different perspective regarding the book so I will respond to each of them ad seriatim.

Roger Clark is one of the great architects of international criminal law (ICL) and his contribution here masterfully situates my central arguments within the larger framework of ICL’s general part. Much is made in my book of incitement’s circumscribed application to the core offenses. But incitement is not ICL’s only marginalized inchoate modality – conspiracy has gotten the same treatment, as Roger indicates in his post. Animus toward that modality, however, arguably comes from different quarters. As Roger suggests, since Justice Jackson negotiated the contours of what would become the Nuremberg Charter, Americans have met with resistance when trying to weave conspiracy, a common count in American charging instruments, into ICL’s doctrinal warp and weft. And that’s not just in relation to the Pinkerton-type conspiracy to which Roger alludes (commonly associated with the controversial third category of joint criminal enterprise or “JCE III”– i.e., assigning criminal liability for offenses that were the “natural and foreseeable consequence” of implementing a common design).

I have very vivid memories of indictment-review meetings at the International Criminal Tribunal for Rwanda (ICTR), where lawyers from Civil Law jurisdictions would gnash their teeth and stoutly object to proposed garden-variety conspiracy counts. This could be the subject of another Symposium but I am still perplexed by this animosity; agreements to engage in group criminality – especially in the mass atrocity context – should be nipped in the bud and that is the object of inchoate conspiracy. And thus, to clear up one of Roger’s points, I am a fan of inchoate conspiracy! Of course, like any penal regulation, it can be abused. But when administered properly it can be a remarkably effective enforcement tool. And there is no doubt that my American-honed criminal law perspective colors my views on this topic!

So it is somewhat ironic that ill feeling toward that other inchoate crime, incitement, is primarily of American origin — owing to a rabid free speech ethos flowing from libertarian impulses. And it is here that I part company with many of my compatriots. As I point out in my book, incitement was nearly left out of the Genocide Convention due to American opposition out of concerns for liberty of expression. In fact, as Roger hints at in his post, it was the American position that there was no need to criminalize incitement separately, as it was already covered by conspiracy. I do not share that view. Provoking others to commit genocide is different from agreeing with them to do so. Conspiracy can be effected through non-verbal means. But incitement is always a verbal delict.

And that’s one of the key points in my book. It is true that we can technically find more general penal provisions to cover oral/written criminality in reference to mass atrocity. We could, for example, charge conspiracy rather than incitement or complicity rather than speech abetting (my proposed new modality). But that would be a mistake, I submit. We must recognize the critical, and unique, role played by verbal provocation in the atrocity context. And the operationalization of my proposed “Unified Liability Theory” does just that. While preserving incitement’s pride of place in reference to genocide, it would untether it from this traditional mooring and link it to the other core crimes. Just to be clear, in relation to Roger’s concern, that necessarily means adding incitement to crimes against humanity (CAH). And, more granularly, it should also entail incitement to the individual enumerated CAH acts. Thus, we should be thinking along the lines of incitement to CAH-extermination, for example.

And this is not such a radical idea. Roger references the little-noticed provision of US Army Field Manual 27-10, cited in my book, which criminalizes incitement to commit genocide, war crimes and crimes against humanity. And lest we forget, this was the approach taken by the International Law Commission in both the 1954 and 1996 versions of its Draft Code of Offences against the Peace and Security of Mankind. That is why I find baffling the ILC’s exclusion of incitement in the current version of its draft articles for a Convention on Crimes against Humanity.

Like all his work, Mark Drumbl’s analysis here is as brilliant lexically as it is legally! I can think of few other scholars whose work I peruse as much for the art of the prose as for the depth of the ideas. Perhaps it is appropriate that he comments on my book’s length. As it happens, during my darkest days of drafting drudgery, I would turn to the writing in works such as Atrocity, Punishment, and International Law to get inspired. And sure enough, after a few choice Drumblian paragraphs, I was back to my manuscript and the words would start to flow!

But let me state that I don’t believe my manuscript’s heft is for want of proper editing or any other indulgence. The criminal law governing the relationship between speech and atrocity had become such a tangled mess, that a proper genealogy, i.e., a big dig below several strata of botched norm-crafting, was necessary. Mark generously (I think) describes this law-formation process as “bricolage” in its English-language academic sense (i.e., something constructed or created from a diverse range of available things, with no teleological orientation).

But there may be a bit of irony in his use of this word. Per its ordinary Gallic meaning, bricolage refers to home-improvement “do it yourself” projects. And, in light of atrocity speech law’s herky-jerky doctrinal accretion, this is revelatory. For every stage of legislation – the Nuremberg Charter, the Genocide Convention, the ad hoc tribunal statutes, the Rome Statute – one discerns a “do it yourself” mentality (in a solipsistic sense) regarding the laws crafted to deal with discrete situations or problems. There appears to be little thought about what came before or what might follow — the bigger picture simply did not factor in. And deeper etymological analysis yields even more irony. When used pejoratively, bricolage in French means “patch-up job” or “shoddy workmanship.” And that perfectly describes the current atrocity speech law framework (and, to be fair, Mark certainly recognizes “concerns over coherence, predictability, and consistency.”)

Still, Mark intimates this process might have some value given the law’s natural, organic growth. I appreciate his point. But how much does organic growth matter if the ground soil is toxic to begin with? And regardless of soil quality, I highly doubt one could say the growth has been organic in any salutary, Aristotelean sense. Rather, the law has sprouted up pell-mell, like a dense tangle of weeds. And disentangling that mess, as well as explaining how properly to reconstitute it, takes patient parsing and ultimately results in a large Kindle data file. It was high time, I felt, to move past the myopic fragments of scholarship that had failed to offer holistic remedies.

Moreover, as Mark points out, that was not my only task. I also wished to suggest a to do list for future scholarship in this area. And, in this regard, I appreciate Mark’s emphasis on the key issue of sentencing. It simply would not do to adjust the liability misalignments while ignoring the punishment ones. As noted in my book, penalties to date have seemed as random as the contours of the substantive offense architecture that gave rise to them. Mark has generated amazing scholarship in this area and if he could turn his attention to this part of the atrocity speech law mess, we might get the insights needed to fix what is a highly undertheorized part of ICL.

Regarding atrocity and the new media, Mark has homed in on another critical aspect of future work in this area. I can understand his point about how “last century” the focus of my book seems to be. But it’s important to understand the context here. Atrocity Speech Law is mostly about the jurisprudence emanating from the Rwanda/Yugoslavia ad hoc tribunals and Nuremberg. When, to the chorus of RTLM rants, the Land of a Thousand Hills was being drenched in Tutsi blood, newspapers and radios were still the dominant media. When the Balkans convulsed in an orgy of post-Cold War ethnic cleansing, the likes of Slobodan Milošević and Radovan Karadžić were taking to the airwaves, not Twitter or Instagram. And so the jurisprudence to date reflects that.

Still, there are points in my monograph where the new media factor in. For instance, regarding incitement to genocide, I counsel considering media type as an evaluative factor to determine whether the “incitement” element of the offense has been satisfied. A more static medium, such as print, would compel a weaker inference of incitement. Social media, such as Twitter, would call for a polar-opposite inference. And in-between would be radio, a transmission vehicle less viral than social media but far more inherently incendiary than newspapers. Similarly, in respect of persecution, contextual evaluation of the speech in reference to a widespread or systematic attack against a civilian population demands consideration of the medium. Use of Instagram raises fewer freedom of expression concerns than, say, distribution of a pamphlet.

That said, Mark is on to something big. The issues raised by the use of new media must be grappled with more fully in the literature. When the next wave of state-sponsored mass violence leads to a new spate of inquests, questions of guilt in relation to internet service providers and social media platforms will no doubt vex future courts. We need to get out ahead of these issues and understand how to resolve them now. If we do, perhaps justice can be meted out far more efficiently and effectively than it was through this now-concluding ad hoc tribunal cycle. And, who knows, maybe good scholarship can contribute toward blunting atrocity rhetoric such that future trials will not even be necessary.

And that is a good segue to David Simon’s outstanding contribution. He focuses on how atrocity speech law coherence can help promote deterrence. But fixing the substantive law, he submits, will not be enough sans meaningful implementation. Given the outsize influence of the US, and the Security Council P5 generally, he questions whether the courts are the ideal enforcement fora in the first instance. But he brilliantly posits an alternative — “a network of non-governmental organizations paired with independent international bodies, perhaps set up at regional levels . . . that could be charged with identifying or responding to atrocity speech complaints.” And if not successful at that level, matters could be referred to higher bodies, such as upper-level regional organizations or perhaps even the ICC.

I was really excited when I read David’s post because, in certain important respects, it aligns well with another project I’m now working on concerning the philosophical foundations of international criminal law. In my new piece, tentatively titled Transnational Governmentality Networking: A Neo-Foucauldian Account of International Criminal Law, I rely on Michel Foucault’s later-stage theory of “governmentality” to help theorize the origins of international criminal law (ICL). Governmentality can roughly be defined as a non-disciplinary form of power arising from an amalgamation of institutions, procedures, analyses, and tactics that enable governance. I contend that ICL grew organically (there’s that word again!) from low-level, often informal, transnational networks enabled through the intercession of nongovernmental and international organizations. These networks ultimately facilitated the series of procedures, analyses and tactics that have reached critical mass in the formation of ICL.

Per this account, we can see David’s proposal as essentially suggesting a return to ICL roots (a bit of “reverse engineering” on his part as well!). But here the context is hate speech with a view toward atrocity prevention (via the emerging Responsibility to Protect norm). Obviously, on a personal level, I could not be more pleased to see two key branches of my scholarship brought together for such a meaningful purpose. And to have it coming from one of our finest genocide scholars is an incredible honor. Clearly, we need more of this sort of outside-the-box thinking if we ever realistically hope to redeem that “never again” pledge.

Comments on Atrocity Speech Law by Gregory Gordon

by David Simon

[David J. Simon is the Director of the Genocide Studies Program at Yale University.]

It is something of a cliché to call a newly published book an “achievement.”  I can think of no better word, however, to describe Gregory Gordon’s Atrocity Speech Law.  This is the rare book on legal doctrine that is engaging and digestible to lawyers, legal academics, and non-lawyers alike.  Professor Gordon describes horrifying episodes of atrocity speech in recent history, meticulously develops and dissects the ensuing case law that unfolded, and cogently argues for a more comprehensive vision of future standards by which atrocity speech should be proscribed, prosecuted, and adjudicated upon.  These quite different component parts are so well executed that it is almost easy to forget by the magisterial end that the whole project begins with the coining of the term “Atrocity Speech Law.”  Gordon has set an extremely high standard for future books on the subject.

Gordon begins the task of elaborating what this field encompasses by surveying a disparate/scattered set of jurisprudential concerns surrounding speech related to the commission of atrocity crimes.  Finding coherence lacking, he proceeds to articulate both a jurisprudential fix and a set of real life motivations for doing so.  Not being a legal academic myself, I will mostly refrain from commenting upon the former.  Suffice it to say that Gordon’s reverse engineering of atrocity speech case law exposes and illustrates an unholy trinity of haste, political expediency, and under-competent judging that all too frequently characterizes the formation (and execution) of international humanitarian and criminal law.

The fix he proposes to the doctrinal mess he describes is not merely a matter of bringing order to a chaotic corner of the legal world.  For Gordon,

…folding all speech-related delicts into a single provision provides for a better organized exposition of the law and calls greater attention to speech as a potent factor in provoking and fueling atrocity.  As a practical matter, rather than having a fragmented collection of rules scattered in different parts of a statute, the proposed consolidated provision puts the proper emphasis on speech crimes and facilitates simultaneous consideration of the offenses so that prosecutors can make more efficient and effective charging decisions (385).

However, as my own interests and expertise, such as it is, lie in the field of atrocity prevention, I focus on the implications of Gordon’s work there.  In a narrow reading, there is benefit – indirect but important – to doctrinal coherence:  too much of international prevention efforts are ad hoc, uncoordinated, and therefore come off as collectively amateurish.  Like its international post-conflict justice component, the prevention regime itself, therefore, seems easily circumventable, characterizable as the project of one-world dreamers with little bite except in occasional instances of post hoc convenience.  One might reasonably expect a legal code to be the exception, but as Gordon shows in his survey of the field’s fragmentation, this is far from the case.  The call of coherence is also a call for the prevention project to be taken seriously, and for it to have the tools necessary for that to be so.

Displaying the righteous zeal of a former prosecutor (and I mean that as an unmitigated compliment), Gordon offers a more direct payoff projected from this project.  He notes that the operationalization of his doctrinal fixes

would promote greater consistency in prosecuting atrocity speech in both municipal and transnational fora around the world.  And it would more effectively put would-be verbal hatemongers on notice that speech in atrocity contexts will not be the collateral postscript to filling mass graves.  Rather, it will serve as humanity’s alarm bell, auguring and triggering punishment before it is too late (395).

The logic underpinning this bold claim is straightforward:  several efforts to establish constructs by which to understand genocide have, as Gordon cites, emphasized the role that speech plays in the process of effecting genocide and other atrocities. For example, Gregory Stanton’s “Ten Stages” theory gives significant weight to the role of speech acts in fomenting atrocities.  Nearly half of Stanton’s stages may substantially involve speech: Classification (Step 1), Symbolization (2), Dehumanization (4), Polarization (6), and – controversially, as Gordon acknowledges, Denial (10) (see here).

If conceptualizations like these are accurate, to prevent genocide requires disrupting the willful acts core to each step of the process.  And when those acts include speech acts, a framework for prevention necessarily must include a strategy for identifying speech that has the potential to cause atrocity – and doing something about it. A comprehensive and consistent framework for defining atrocity speech, as Gordon provides, enables the first task.

The second, however, remains a challenge, particularly as one moves away from relying on the knowledge of the possibility of ex post adjudication and punishment having a deterrent effect, and towards ex ante identification and intercession.

At the basis of the difficulty of ex ante intercession is Gordon’s completely accurate conclusion that the harm of atrocity speech is not necessarily a product of the injury (or violence) it causes, but in its very potential to cause violence.  Thus, Gordon rightly argues that to respond appropriately (i.e., preventively) to incitement, the doctrine must recognize its inchoate nature. To invoke a phrase from another field, the anti-atrocity speech regime must feature (proactive) police patrols as well as (reactive) fire alarms.  However, convincing courts to play their proactive role is a tough sell on the criminal side.  International courts can barely maintain their capacity to render ex post judgments, much less take on ex ante cases.  Both international and national courts have been loath to separate guilt from the causation of harm, even when statutes dictate otherwise.  Furthermore, it is hard to imagine atrocity speech, which for better or for worse always has a tentacle in the realm of politics, being given a hearing which itself would not be accused of being political.  In most countries, a state, through its municipal courts, would be unlikely to look into the alleged speech transgressions of (fellow) state actors out of concern for its own legitimacy.  Prosecutions of non-state actors would be more likely to occur, but inevitably smack of overreach, an attempt of to use the power of the state to quash dissent.

The guidance Gordon gives, while delineating with remarkable clarity the nature of speech that should elicit a response anterior to atrocity actions, leaves unanswered questions  as to who ought to identify the transgressions and who ought to initiate the prosecutions.  As with much of the genocide prevention effort, political expedience concerns will likely override implementation even where municipal jurisdictions have adopted it.  Skepticism of internationalism combined with realist conceptions of foreign policy will mute its application at the international level. The outsize role the United States plays in establishing global norms is especially challenging for the implementation of a prevention agenda around atrocity speech:  not only is skepticism of global governance high, but there is extreme reluctance on the part of the United States to countenance ex ante speech limitations of any sort, a handicap to the adoption of anti-atrocity speech norms.

I suspect – and by that I mean ‘fear’ – that the arc of the Responsibility to Protect (R2P) norm may represent the most likely trajectory.  R2P emerged from an idealistic set of principles, gained life as a body of UN-elaborated language, and withered to something that is cited in international policy when not significantly inconvenient to major powers.  The unwillingness to place principle above politics (and, barring that, fiscal constraints) relegates R2P to the status of secondary concern.

And yet the story of R2P offers a glimmer of hope, as well.  The advent of R2P has introduced language of responsibility into the proceedings of various junctures of global governance.  When global actors use or endorse the language disingenuously, that disingenuousness comes with a price in terms of reputation and credibility (albeit one that countries, over and over again, have been willing to pay.)  Where R2P tends to succeed is below the Security Council level, in the rhetoric of middle powers, in the actions of young regional organizations like the African Union’s Peace and Security Council, or the Office of Security and Co-operation in Europe.  Politics and other concerns can still supersede the sway of the norm at this level, but with fewer veto players holding trump cards at higher levels, the doctrine stands a greater chance of gaining a foothold.

I would argue that the task for the atrocity speech crimes project is to build an implementation infrastructure that does not rely solely on judges and criminal complaints.  The architecture of atrocity speech policy must acknowledge legal realism, which recognizes the enduring political barriers to implementation of a regime based solely on ideals. In doing so, the goal would not be to pare back, or make less inclusive, the anti-atrocity speech framework.  Rather, the task is to populate the regime with institutions other than politically disinterested municipal courts or under-empowered international ones.

The task is to develop an administrative architecture that could preside over an essentially civil law application of Gordon’s framework.  The architecture might involve a network of non-governmental organizations paired with independent international bodies, perhaps set up at regional levels.  A core mandate of these bodies would be to hear such cases of alleged atrocity speech, and deliver injunctions accordingly.  While the bodies would possess no policy power, the failure of the enjoined to adhere to the injunctions then would become legal matter in its own right, triggering referral to either a higher juridical body (like the ICC) or a political one (like the Security Council, or its equivalents on regional government organizations).

There exist blueprints in the world of global governance for such a mid-level institution. The European Court of Human Rights has injunctive powers (albeit among others). Alternatively, treaty-derived institutions like the International Criminal Court or the International Atomic Energy Agency interface with the United Nations but were separately established, and thereby exercise a measure of independence.  Thus Article 6 of Gordon’s proposed treaty could be expanded to specify a mid-level international organization that could be charged with identifying or responding to atrocity speech complaints.  Certainly, this would not be without controversy, and the institution(s) would be vulnerable to capture.  Yet compromisable new institutions remain preferable to vesting all anti-atrocity speech prerogatives with national and international organs that have, to this point, created a muddled body of law, and whose politicization is already manifest.

Technology, Speech, Hate, Virtuality … and the Path of the Law

by Mark Drumbl

[Mark A. Drumbl is the Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute at Washington and Lee University.]

Atrocity Speech Law is a hefty book. It is, as Professor Gordon himself describes it, a ‘tome’. Atrocity Speech Law is rigorous and ambitious: packed with information, breathtakingly detailed, brimming with integrity, and vivified by important themes of law reform. In contrast to the absurd invective it seeks to deter, Gregory’s arguments are measured and modulated, poised and principled.

Although Gregory has invested so much in this book, and the book contains so much, he also is wisely modest that much more remains to be said. So I want to say something about one thing Gregory has identified as something that remains to be said, and then I want to say something about something else that he hasn’t identified as such.

But, first, to the core argument: Gregory posits that atrocity speech law exists but is hampered by the fact it is fragmented. The fragmentation, I would hasten to add, is not deliberate or intentional. Like much of law, the law regulating atrocity speech emerged by virtue of bricolage. That said, and however charmingly organic, bricolage quickly brushes up against important limits: concerns over coherence, predictability, and consistency. In fact, simply by labeling the issue at hand as ‘atrocity speech’, Gregory already contributes structure and parsimony, in that the regulation of speech that encourages violence currently remains cobbled together from various specific crimes such as incitement to genocide, hate speech, ordering, instigation, and persecution as a crime against humanity. By advancing arguments of unification and codification (he proposes a draft convention on atrocity speech), Gregory situates himself within a venerable tradition of international law-making. Although I often find myself attracted to (a bit of) messiness, and believe the value of Cartesian organization in the world of law may be overrated and too hungrily stated, Gregory makes a very compelling case for his vision.

Gregory gestures ahead near the end of the book. He points to historical research, denial, sentencing, and empirical inquiry on the actual effects of hate speech as areas for further research. Among these, I think that sentencing is of particular salience. Gregory finds unexplainable variation among sentences issued for hate speech crimes at the international level.  I am not surprised. I have long questioned the rationalities of sentencing at the international criminal courts and tribunals and the operational coherence of the sentences that actually are issued. Although greater predictability has arisen over time, which is good to see, pockets of concern persist. Assembling together the various crimes that involve speech, which Gregory has done, and providing a heuristic of sentences for these crimes, which Gregory also has done, exposes these underdeveloped aspects of sentencing. Although retribution and deterrence are taken as the two major goal of international sentencing, as re-announced recently by the ICC in Bemba and Al Mahdi, how would these goals apply in the case of atrocity speech? Can persons convicted for speech crimes be rehabilitated? Are they in a position, unlike other criminals, to undo what they had done, to disclaim what they had claimed, to correct the record, to retract, to unwind? If so, how could these remedies form part of the punitive schematic?

Turning now to the something not spoken of: Atrocity Speech Law largely absents conversations about technology. This surprises me. The book has a bit of a last century vibe to it. Sure, some societies are more technologically embedded and uploaded than others, but we are all well beyond newspapers and radio broadcasts. Our world is less one of RTML and Kangura and megaphones and Nuremberg rallies than it is one of social media, anonymous (and instantaneous) information, and virality; of YouTube and the internet; of ‘fake news’ and doctored events; of Instagram and Facebook and  Twitter and Whatsapp and Iphones. Widespread and systematic access to the Web, so to speak, permits everyone to become a speaker (anonymous or otherwise) and to be heard. So hate speech metastasizes much faster than ever before, it can stain so many listeners so quickly, and can become pandemic. Anyone with an internet connection can start it.  State-run television, cable given over to the interests of an ideology, and the press each certainly and assuredly is important. But I would wish to hear from Gregory as to how his (re)construction of atrocity speech law would map onto these new virtual media which definitively change how and through whom and from where ‘information’ is obtained.  How does technology challenge (or not) the many legal elements of the crime?

Gregory closes his book with an appeal for both application of penal law and preventative measures. So, then, preventatively, how to ventilate the spaces of the Web in which ‘speakers’ vent their furor? Is social host liability, liability for providing space, an answer? If so, what further cascades might such liability present for freedom of expression? Any vexation? What opportunities for reparations? What can we learn from internet regulation domestically, for example, when virtuality is used to cyberbully or humiliate individuals?

Gregory’s book is a tour-de-force. We are all the better for it. We are lucky to have him, and his work, to guide us through these rapidly growing thickets.