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International Courts and Dispute Resolution

Article 87(5) of the Rome Statute — Bizarre and Possibly Counterproductive

by Kevin Jon Heller

In a recent post, I noted my puzzlement at Russia’s recent announcement that it will not cooperate with the ICC’s investigation in Georgia. Noting that “Russia has very little to fear” from the investigation, I asked why it would not “milk a little goodwill by at least pretending to cooperate with the ICC” — especially as Russia could simply stop cooperating with the ICC if the OTP ever found evidence that incriminated it.

My post elicited the following response from Patricia Jimenez Kwast on her personal blog:

This might be true in political terms. However, the legal picture is more complicated than this. Once Russia agrees to cooperate with the Court, it can face decisions of non-cooperation if it would simply stop cooperating and might lead to steps under Article 87(5)(b) of the Statute. As a permanent member of the Security Council, Russia would probably block any meaningful Security Council engagement under 87(5)(b), but the point is that ‘pretending to cooperate’ or stopping cooperation after agreeing to cooperate does carry legal consequences. It is not a decision that should be taken lightly.

To be perfectly honest, I had never paid any attention to Art. 87(5) until I read Kwast’s post. Here is what it says:

(a) The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.

(b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.

I am much less sure than Kwast that Art. 87(5) would apply if Russia cooperated with the ICC and then stopped cooperating. The article seems to contemplate some kind of formal relationship between the Court and a non-party State — an “arrangement” or an “agreement” or something similar (ejusdem generis). After all, Art. 87(5)(b) addresses non-cooperation when a State “enters into” such an arrangement or agreement with the Court, language that we would normally associate with the law of contract. So I think the best reading of Art. 87(5) is that it applies only when a non-party State makes a formal commitment to cooperate with the Court and then breaks that commitment. I don’t think it applies any time a non-party State voluntarily provides the Court with information and then decides to stop providing it. After all, if Art. 87(5) does apply in such situations, it is profoundly counterproductive. Why would any non-party State ever voluntarily cooperate with the Court if doing so means that it cannot stop cooperating? I think the drafters of the Rome Statute were smart enough not to provide non-party States with such a powerful incentive to avoid the Court like the plague.

In any case, I doubt Russia is trembling in its boots at the thought of a non-cooperation finding. The Security Council did not refer the situation in Georgia, so the most the Court can do is complain about Russian non-cooperation to the Assembly of States Parties. And the Assembly of States Parties has no authority over Russia — because it’s a non-party State…

I’m more than a little baffled by Art. 87(5). Comments from readers would be most appreciated.

Russia’s Short-Sighted Approach to the Georgia Investigation

by Kevin Jon Heller

According to a recent article in Agenda.ge, Russia has announced that it will not cooperate with the ICC’s formal investigation into the situation in Georgia:

Russia’s Ministry of Justice issued a statement confirming it would not cooperate with the investigation, reported Russian media today.

Tbilisi was not surprised by Moscow’s decision. The Georgian side believed it would not be in Russia’s best interests for this case to be investigated.

Russian officials stated it would not collaborate with The Hague Court since the Russian parliament had not ratified the Rome Statue, which Russia signed in 2000.

“As of February 1, 2016, the Russia Federation has not ratified the Rome Statute of the International Criminal Court and the document has not come into power,” Russia’s Justice Ministry said.

[snip]

Earlier, spokesperson for Russia’s Foreign Ministry Maria Zakharova said Moscow was disappointed with ICC’s recent activities and would be forced to “fundamentally review its attitude towards the ICC”.

Zakharova said ICC prosecutor Fatou Bensouda had taken Georgia’s side and started an investigation aimed against Russia and South Ossetia.

“Such actions hardly reflect the ideals of justice,” she said.

Assuming the article is correct — and Agenda.ge is, of course, a Georgian news organization — the statement represents a rather baffling shift in Russia’s approach to the Georgia investigation. According to the OTP’s request for authorization to open the investigation, Russia generally cooperated with the ICC during the preliminary examination, including providing the OTP with 28 volumes of evidence concerning Georgian attacks on Russian peacekeepers in South Ossetia. Given that the Pre-Trial Chamber has authorized the OTP to investigate those attacks (para. 29), Russia’s cooperation seems to have paid off, at least to some extent.

More fundamentally, though, Russia doesn’t seem to have much to fear from the ICC. The OTP’s most sensational allegation is probably that Russia had “overall control” of South Ossetia’s forces during the 2008 conflict…

Al Jazeera Panel Discussion on Siege Warfare in Syria

by Kevin Jon Heller

Sorry for the endless self-promotion, but I thought readers might be interested in the following episode of Al Jazeera’s Inside Story, which includes a 30-minute panel on siege warfare in Syria that I participated in. It was quite a wide-ranging discussion, focusing less on international law than I expected.

As always, comments welcome! I hope readers don’t think I was too soft on either Assad or the UN…

As Ukraine Prepares to Take Russia to UNCLOS Arbitration Over Crimea, I Predict Russia’s Likely Reaction

by Julian Ku

There have been noises coming out Ukraine for years that its government was preparing an international legal action against Russia over Crimea.  It looks like Ukraine has finally prepared to pull the trigger. According to this report, Ukraine is ready to charge Russia with violating the UN Convention on the Law of the Sea in the following ways.

“First, the seizure of fields with mineral reserves and illegal oil and gas on the continental shelf of Ukraine in the Black Sea. Secondly, the unlawful seizure of power to regulate fish catch, unlawful fish catch and not allowing Ukrainian fishing companies to catch fish in the offshore zone near the Crimean peninsula. Third, construction of a gas pipeline, a power line and a bridge across the Kerch Strait without the consent of Ukraine, the unlawful blocking of transit of Ukrainian vessels across the Kerch Strait and the unlawful seizure of navigation rights. Fourth, the conducting of studies of archeological and historical sites in the Black Sea bed without the consent of Ukraine,”

Both Russia and Ukraine have specified arbitration under Annex VII of UNCLOS. So if Ukraine filed a claim, it would follow the same procedure and rules as the one recently followed in the Philippines’ case against China and the Netherlands’ claim against Russia (over the Greenpeace seizures).

Unfortunately for Ukraine, I think I already know how Russia will react to any such arbitral claim.  First, like China has done against the Philippines, it will invoke its declaration under Article 298 excluding disputes “relating to sea boundary delimitations” from the jurisdiction of the UNCLOS arbitral tribunal.

Second, and like China again, Russia will almost certainly boycott the UNCLOS arbitration by refusing to appoint any arbitrators and refusing to show up at the hearings.  It followed this path in the Greenpeace “Arctic Sunrise” arbitration and there is no reason to think it will react any differently this time.

So although Ukraine probably has a good claim under UNCLOS, and it has a good case for jurisdiction as well, it should not get too excited.  Even if it wins its arbitration, it will probably not accomplish a great deal.

Discussing Gbagbo on BBC World News

by Kevin Jon Heller

I had the pleasure of going on BBC World News a couple of days ago to discuss the opening of Laurent Gbagbo’s trial at the ICC. The clip they sent me is very low quality; the sound isn’t even synced correctly. But I’m posting it just in case anyone wants to hear what I had to say. It’s about three minutes long.

I have to admit, being in that giant BBC studio was intimidating. I’ve done television before, but it was always remote from a tiny recording room. I hope I acquitted myself okay!

New Article on SSRN: “Radical Complementarity” (Updated)

by Kevin Jon Heller

The article is forthcoming in the Journal of International Criminal Justice. Here is the abstract:

In March 2015, Simone Gbagbo, the former First Lady of Côte d’Ivoire, was convicted of various crimes in an Ivorian court and sentenced to 20 years in prison. Despite her conviction and sentence, however, the Appeals Chamber has held that her case is admissible before the ICC. The reason: the national proceeding was not based on “substantially the same conduct” as the international one. Whereas the OTP intended to prosecute Gbagbo for the crimes against humanity of murder, rape, other inhumane acts, and persecution, the Ivorian court convicted her for the ordinary domestic crimes of disturbing the peace, organising armed gangs, and undermining state security.

This Article argues that the Appeals Chamber’s decision in Simone Gbagbo undermines the principle of complementarity – and that, in general, the ICC has used complementarity to impose structural limits on national proceedings that are inconsistent with the Rome Statute and counterproductive in practice. The Article thus defends ‘radical complementarity’: the idea that as long as a state is making a genuine effort to bring a suspect to justice, the ICC should find his or her case inadmissible regardless of the prosecutorial strategy the state pursues, regardless of the conduct the state investigates, and regardless of the crimes the state charges.

The Article is divided into three sections. Section 1 defends the Appeals Chamber’s recent conclusion in Al-Senussi that the principle of complementarity does not require states to charge international crimes as international crimes, because charging ‘ordinary’ domestic crimes is enough. Section 2 then criticises the Court’s jurisprudence concerning Art. 17’s ‘same perpetrator’ requirement, arguing that the test the judges use to determine whether a state is investigating a particular suspect is both inconsistent with the Rome Statute and far too restrictive in practice. Finally, using Simone Gbagbo as its touchstone, Section 3 explains why the ‘same conduct’ requirement, though textually defensible, is antithetical to the goals underlying complementarity and should be eliminated.

The article brings together thoughts I’ve developed both here at Opinio Juris and in my academic writing. In terms of the latter, it’s something of a sequel to my article “A Sentence-Based Theory of Complementarity.” (Double self-promotion!)

As always, thoughts are most welcome!

NOTE: I have uploaded a revised version of the article to SSRN. Chris’s comment below made me realise I should note my sentence-based theory of complementarity. It’s not a radical change, but — at the risk of seeming like I’m trolling for downloads — you should get the new version if you want to read the article but haven’t already.

Is Russia’s Boycott of an Arbitration Brought Under Ukraine-Russia Bilateral Investment Treaty a Sign of a Trend?

by Julian Ku

When a country is brought to arbitration under a treaty, it often challenges the jurisdiction of that arbitral tribunal in arguments before that tribunal. But in recent years, we’ve seen several examples of countries that have simply chosen to “boycott” or not participate in the arbitral hearings whatsoever.

China adopted this approach in its ongoing United Nations Convention on the Law of the Sea (UNCLOS) arbitration with the Philippines (which it recently confirmed again this past December). Russia also followed this strategy by simply not showing up at the International Tribunal on the Law of the Sea ITLOS provisional measures hearing related to its seizure of the Greenpeace vessel Arctic Sunrise.  And Russia has recently confirmed that it will adopt this “non-participation” approach with respect to a recent arbitration brought by a Ukrainian business alleging expropriation of its ownership of an airport in Crimea.

Three cases do not make a trend, but observers of international law and adjudication should take notice nonetheless.  Will “non-participation” prove a viable strategy for states (as opposed to actually making legal arguments against jurisdiction)?  Granted, as far as I can tell, neither China nor Russia have very strong arguments against jurisdiction in the cases above.  So is it better to simply walk away?  If the state has no intention of complying with a negative award, it might make rational sense to simply avoid the process altogether.  Will other states try this approach?

 

The Arbitrariness of ICTY Jurisprudence (Specific-Direction Style)

by Kevin Jon Heller

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

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

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

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

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

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

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

China Launches Op-Ed Rebuttal to Philippines’ Arbitration Case

by Julian Ku

The UNCLOS Arbitral Tribunal formed to consider the dispute between the Philippines and China gave China until January 1 to file a response to the arguments made by the Philippines at its most recent merits hearing.  China had not showed up at any of the hearings, nor has it submitted any official written arguments to the Tribunal.   I don’t know if China will file any submissions (don’t hold your breath), but its state-run flagship The People’s Daily has launched an op-ed fusillade this week attacking the Philippines. Perhaps, this is China’s response to the arguments made at the arbitral hearing.

The first editorial, “Grandstanding Cannot Cover Up Illegal Moves”, is focused on vilifying the Philippines’ for bringing this arbitration, and the remarks of its foreign minister Albert F. del Rosario. The criticism is mostly non-legal, accusing Mr. del Rosario of bad faith, speaking untruths, and being an all-around bad guy.  But the oped does contain the germ of a legal argument justifying China’s defiance of the UNCLOS tribunal:

State sovereignty is a core principle in contemporary international law. No force is above a sovereign state. No country, organization or individual could expect China to stand by and allow its interests to be harmed. Here is a piece of advice for people like Mr. del Rosario: Don’t misread the situation. The Chinese government and people are adamant about safeguarding China’s rights and interests in the South China Sea. All calculating moves against that would end up in failure.

The second editorial, China’s Sovereignty over the South China Sea Islands Brooks No Denial, offers more of a legal and factual argument.  Interestingly, the editorial relies heavily on the legal force of the 1943 Cairo Declaration and the 1945 Potsdam Declaration as the basis for China’s South China Sea claims over the disputed Spratly/Nansha Islands.  The theory here is that the Spratly/Nansha islands belonged to China, and that Japan forcibly occupied them during WWII.  Cairo and Potsdam required Japan to return all “stolen” territories, ergo, the South China Sea islands go back to China.

The Philippines (apparently) argued at the merits hearing that the Nansha Islands were “terra nullius” and were not included in the “stolen” territories that Japan had to return to China.  Moreover, the Philippines argued that the Cairo and Potsdam Declarations were not legally binding.

China responds with a factual claim (China has always had sovereignty over the islands) as well as legal claim (the Cairo and Potsdam Declarations are legally binding). This latter argument is not precisely accurate, although it is true that Japan promised to comply with Potsdam in its surrender.  But none of this changes the fact that neither Cairo nor Potsdam say anything about the Spratlys/Nansha specifically, and seem a weak legal basis for China’s claims to those islands.

In any event, the editorial is largely rhetorical rather than legal. It concludes by rallying the Chinese people against mysterious international forces threatening their sovereignty:

[T]he determination of the Chinese people to safeguard its territorial integrity is as firm as a rock. Only the Chinese people have the final say when it comes to China’s territory. Any attempt to negate China’s sovereignty, rights and interests through a so-called “arbitration award” will be nothing but wishful thinking, just like flowers in a mirror and reflection of the moon in water. By going back on its own words and confusing the concepts for the purpose of territorial expansion, the Philippines will only end up bringing disgrace on itself.

Gotta love the metaphors, although I doubt very much the Arbitral Tribunal will be in any way moved by them.

Transitional Justice and Judicial Activism Symposium: Closing

by Ruti Teitel

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

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

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

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

At present they have no such choice, Cesare continues:

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

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

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

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

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

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

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

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

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

by Chandra Lekha Sriram

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

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

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

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

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

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

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

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

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

by Cesare Romano

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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