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International Courts and Dispute Resolution

The Puzzling US Submission to the Assembly of States Parties

by Kevin Jon Heller

The US submission to the ASP has finally appeared. It is not very long — about 1.5 pages — but manages to pack in a good number of false claims and bizarre interpretations of the Rome Statute.

In terms of falsity, the US repeats its longstanding claim that the Court has no jurisdiction over the nationals of non-state parties, even when those nationals are responsible for an international crime committed on the territory of a state party (p. 1):

As an initial matter, and as we have consistently emphasized, the United States is not a party to the Rome Statute and has not consented to any assertion of ICC jurisdiction, nor has the Security Council taken action under Chapter VII of the UN Charter to establish jurisdiction over U.S. personnel. It is a fundamental principle of international law that a treaty is binding only on its parties and that it does not create obligations for non-parties without their consent. The Rome Statute cannot be interpreted as disposing of rights of the United States as a non-Party without U.S. consent.

This is wrong, for reasons Dapo Akande has patiently explained. It’s also completely hypocritical, because the US had no objection to the Special Court for Sierra Leone (SCSL) prosecuting Charles Taylor, a Liberian national, even though the SCSL was created by an international agreement — between the UN and Sierra Leone — to which Liberia was not a party. Indeed, the current US submission emphasises that it was “one of the most vocal supporters for the creation of tribunals to try those most responsible for atrocities committed in Rwanda and Sierra Leone.”

The most bizarre argument in the submission has to do with the principle of complementarity (p. 1):

Additionally, we are concerned about any ICC determination — as required by the Rome Statute’s core principle of complementarity — on, for example, the genuineness of U.S. legal proceedings without United States consent. The principle of complementarity fundamentally limits the ICC’s exercise of jurisdiction to those cases in which a State is genuinely unwilling or unable to comply with its duties, such as those under the Geneva Conventions, to investigate and prosecute war crimes, genocide, and crimes against humanity. Just as we have not consented to jurisdiction over our personnel, we have not consented to the ICC’s evaluation of our own accountability efforts.

This is literally nonsense. The ICC would only formally assess complementarity in the context of a specific prosecution of an American national — and would only do so (practically, if not because of a legal limitation) if the US decided to challenge the admissibility of a case. So the US would have to “consent” to the Court examining the genuineness of American proceedings if it wanted to head off a prosecution. Beyond that, consent has nothing to do with complementarity.

I will avoid making snarky comments about the US’s claim (p. 2) that it “has undertaken numerous, vigorous efforts to determine whether its personnel have violated the law and, where there have been violations, has taken appropriate actions to hold its personnel accountable.” But I can’t let the following claim (p. 2) go unremarked:

Indeed, we note the irony that in seeking permission to investigate the actions of U.S. personnel, the Prosecutor appears to have relied heavily upon information from investigations that the United States Government itself decided to make public. We question whether pursuing this investigation will make other countries less willing or able to engage in similar examinations of their own actions and to be transparent about the results.

This is, well… ironic. The OTP’s request to open an investigation into Afghanistan notes multiple times (see para. 27 for an example) that the US refused to cooperate with the preliminary examination. And the request relies very heavily on the executive summary of the Senate Intelligence Committee’s “Study of the Central Intelligence Agency’s Detention and Interrogation Program” — which the White House and CIA tried desperately to keep from ever seeing the light of day.

All that said, I am delighted by the following statement in the US submission (p. 1; emphasis mine):

The principle of complementarity fundamentally limits the ICC’s exercise of jurisdiction to those cases in which a State is genuinely unwilling or unable to comply with its duties, such as those under the Geneva Conventions, to investigate and prosecute war crimes, genocide, and crimes against humanity.

The US has now formally acknowledged that it has a duty under international law “to investigate and prosecute war crimes, genocide, and crimes against humanity”! That is a bold and progressive claim, especially with regard to crimes against humanity, for which there is no treaty that demands either investigation or prosecution. I imagine that position will come as something of a surprise to the parts of the US government that were not involved in drafting the submission…

The US’s ASP submission: wrong, bizarre, but surprisingly — and probably inadvertently — progressive.

Against (False) Consensus — the ASP and the Aggression Amendments

by Kevin Jon Heller

Although many important issues will be discussed this week at the Assembly of States Parties (ASP), none will be quite so momentous as the decision to activate the ICC’s jurisdiction over the crime of aggression. Whatever one thinks of the merits of the definition of aggression, there is no question that the activation of jurisdiction will represent the culmination of seventy years of efforts to deem aggression an international crime.

When the ASP finally makes a decision concerning the aggression amendments, the Rome Statute will encourage it to do so by consensus. The relevant provision is Art. 112(7):

Each State Party shall have one vote. Every effort shall be made to reach decisions by consensus in the Assembly and in the Bureau. If consensus cannot be reached, except as otherwise provided in the Statute:

(a)     Decisions on matters of substance must be approved by a two-thirds majority of those present and voting provided that an absolute majority of States Parties constitutes the quorum for voting;

(b)     Decisions on matters of procedure shall be taken by a simple majority of States Parties present and voting.

With regard to amendments, the Rome Statute does “otherwise provide.” According to Art. 121(3), “[t]he adoption of an amendment at a meeting of the Assembly of States Parties or at a Review Conference on which consensus cannot be reached shall require a two-thirds majority of States Parties.” Similarly, Art. 123(3) says that “[t]he provisions of article 121, paragraphs 3 to 7, shall apply to the adoption and entry into force of any amendment to the Statute considered at a Review Conference.”

The aggression amendments were adopted by consensus at the 2010 Review Conference held in Kampala. That was a mistake, because there was no genuine consensus at Kampala concerning one particularly critical issue: whether the Court will have jurisdiction over an act of aggression committed on the territory of a state party that has ratified the aggression amendments by a national of a state party that has not ratified them. States have taken diametrically opposed positions on that issue. Most — led by Liechtenstein — believe that the Court will have jurisdiction in that situation unless the non-ratifying state formally opts-out of the crime of aggression. But some — led by Japan, Canada, and the United Kingdom — insist that the Court will have no jurisdiction because non-ratification is enough.

I don’t want to re-litigate the merits of the debate. Regular readers know I agree with the Japan/Canada/UK group. My point is more modest: to call attention to the danger that false consensus poses to the legitimacy of the crime of aggression. By adopting the aggression amendments by consensus, instead of through a formal vote, the ASP made possible the kind of bitter disagreement that has characterized the state-party opt-out/opt-in debate. Just consider the following paragraphs from the ASP’s most recent report concerning the facilitation of aggression’s activation (emphasis mine):

19. Some delegations suggested that a declaration lodged with the Registrar, indicating that a State Party did not accept the jurisdiction of the Court over the crime of aggression, would bring the desired clarity. These delegations stressed that the negotiating history of the amendments during the Special Working Group on the Crime of Aggression as well as during the Review Conference offered clear evidence of the correct legal interpretation of the agreement reached in Kampala… By enabling States Parties to declare that they do not accept the jurisdiction of the Court in respect of crimes of aggression committed by their nationals (“opt-out”), the compromise agreed in Kampala had chosen the middle-ground between two opposing positions. It was explained that the Review Conference had considered the opposing position papers concerning the second sentence of article 121, paragraph 5, (the so-called “positive” and “negative” understandings), which both were ultimately deleted in favor of including the opt-out regime. As a result, in their view the compromise reached at the Review Conference was clear, and jurisdiction of the Court could extend to nationals of those States Parties which had not ratified the amendments, unless they opted out.

20. Other delegations took the view that too much emphasis was being placed on the negotiating history of the amendments and on concessions or compromises, rather than on legal principles and the plain meaning of the texts. These delegations explained that they had left the Review Conference with a different understanding, namely that the amendments would not apply to those States Parties which would not ratify them. In their view, open legal questions as to the implications of activation remained. These had not been solved during the seven years since the Review Conference, in spite of ratifications by 34 States Parties. It was pointed out that negotiations at the Review Conference could not have the effect of changing treaty rights and obligations. Accordingly, it was important to focus on the ordinary language of the text as there were differing understandings of the negotiating history, since it was also possible to explain the opt-out as something that was available to ratifying States Parties. These delegations questioned how they could be required to take action to opt out of the Court’s jurisdiction if they had not chosen to opt in by ratifying the amendments in the first place.

This is false consensus, not genuine consensus. State have been debating the opt-out/opt-in point for seven years as a result of the “consensus” at Kampala — debate that has overshadowed the importance of the aggression amendments themselves and has cost the ASP significant time that could have been better spent debating other issues.

Both camps deserve blame for this situation. The “opt-out” camp deserves blame for continuing to insist that genuine consensus existed at Kampala even though it’s quite clear it did not. And the “opt-in” camp deserves blame for permitting the aggression amendments to be adopted by consensus even though they knew disagreement existed about such a fundamental issue.

It will be interesting to see what happens this week at the ASP. There are rumblings — according to my well-connected friend Don Ferencz — that the opt-in group might put up a fight:

The member states of the Court will meet at UN headquarters in New York from December 4th to 14th to address making good on the pledge which they made in Kampala. Although 34 nations have already ratified their acceptance of the Court’s aggression jurisdiction – including over half of the members of NATO – Britain and France have not. Instead, they have joined with a handful of states, including Japan, Canada, Norway, and Colombia, in tacitly threatening to defeat activation of the Court’s aggression jurisdiction by their insistence that the Court must first clarify that the aggression amendments will not apply to leaders of any state that does not independently ratify them…

It is significant that the upcoming decision on aggression is expected to be undertaken pursuant to a consensus resolution. This means that the activation resolution must either be adopted by unanimous approval or not adopted at all. In such circumstances, each member state of the Court has the power to thwart the will of even an overwhelming majority simply by not consenting to the adoption resolution, regardless of the express terms of what was unanimously agreed to in Kampala. The non-ratifying countries which are demanding clarity that their leaders will remain beyond the Court’s reach on the crime of aggression, therefore, each have a potentially game-ending card to play in opposition of the final approval. The question is, with the whole world watching, do they dare play it?

My personal hope is that the opt-out camp will give in and accept the opt-in camp’s position that the Court will have no jurisdiction over a state party that does not ratify the aggression amendments — thereby creating genuine, if forced, consensus. Not only do I think that opt-in is the correct legal position, I am very skeptical that the opt-out camp would have enough votes to adopt the aggression amendments over the objections of the opt-in camp. According to paragraph 28 of the ASP’s facilitation report, they would need 82 in the absence of consensus. And that seems unlikely, given what I’ve heard about the number of states that are either opt-in or plan to abstain on any vote to activate the Court’s jurisdiction over aggression.

UPDATE: I have updated the post to mention Arts. 121(3) and 123(3) of the Rome Statute, as well as my understanding of the state of play concerning the vote to activate jurisdiction.

A Potentially Serious Problem with the Final Decision Concerning Comoros

by Kevin Jon Heller

A couple of days ago, the OTP finally announced what we all expected: that it would not reconsider its refusal to open a formal investigation into Israel’s attack on the MV Mavi Marmara. Dov Jacobs has already offered some thoughts on the lengthy document the OTP has filed with the Court explaining its reasoning — what the OTP nicely calls the Final Decision. I fully concur with Dov’s thoughts (except with his position on retroactive acceptance of jurisdiction), and I write here simply to add one of my own.

To begin with, I think this is the most impressive OTP brief I have ever read — especially given the complexity of the procedural issues that it addresses. It is exceptionally well written and argued. I don’t know who the author is, but she would have made an excellent analytic philosopher. Fatou Bensouda should promote her immediately.

That said, I strongly believe that the Final Decision’s understanding of when the OTP is required to investigate a situation is fundamentally flawed — and will almost certainly come back to haunt the OTP in future preliminary examinations. I have argued, as have most scholars, that situational gravity is a function of all the potential cases in a situation that would be admissible before the Court: the greater the number of prosecutable crimes and the greater their individual gravity, the more situationally grave the situation. To be sure, it is not an easy task to compare the situational gravity of different situations. But I don’t think there a practical alternative, given that the OTP can only investigate a very small percentage of the situations in which admissible crimes have been committed.

The Final Decision, however, appears to take a very different approach. Instead of deciding whether to open an investigation based on the gravity of all the potentially admissible cases in a situation, the OTP seems to believe that it is required to open an investigation as long as even one potential case within a situation would be sufficiently grave to prosecute. Consider the following paragraphs (emphasis mine):

11. Although the Prosecution maintains its view that no potential case arising from this situation would be admissible before this Court—which is the only issue in dispute with the Comoros—this does not excuse any crimes which may have been perpetrated.

332. Consistent with article 53(3)(a) of the Statute and rule 108(3), and based on the above reasoning and the information available on 6 November 2014, the Prosecution hereby decides to uphold the disposition of the Report. There remains no reasonable basis to proceed with an investigation, since there is no reasonable basis to conclude that any potential case arising from the situation would be of sufficient gravity to be admissible before the Court.

This approach, it is worth noting, appears to represent a retreat from the position the OTP took in its initial explanation of why it would not investigate the Comoros situation. Here is paragraph 24 of that document (emphasis mine):

Having carefully assessed the relevant considerations, the Office has concluded that the potential case(s) that would likely arise from an investigation of the flotilla incident would not be of sufficient gravity to justify further action by the Court, in light of the criteria for admissibility 8 provided in article 17(1)(d) and the guidance outlined in article 8(1) of the Statute.

It is possible, of course, that the Final Decision refers to the gravity of “any potential case” instead of “the potential case(s)” not because the OTP’s approach to situational gravity has changed, but because there is only one potential case in the Comoros situation: the attack on the MV Mavi Marmara. But the difference of language is striking — and given the legal and analytic precision of the Final Decision, I find it difficult to believe that its emphasis on whether any individual case would be admissible is simply a slip of the keyboard.

I assume, therefore, that the Final Decision means what it says: the OTP believes it has to investigate any situation in which there is at least one potential case that is grave enough to be admissible. But that is a very problematic position.

To begin with, it leads to precisely the kind of unhelpful dispute we have seen in Comoros situation, where the OTP believes a specific case is not sufficiently grave to be admissible and the Pre-Trial Chamber disagrees. Both the OTP and the PTC have spent a great deal of time during their “judicial dialogue” (Dov’s apt expression) comparing the Mavi Marmara case to the Abu Garda and Banda cases. Here, for example, is how the Final Decision critiques the PTC’s insistence that the Mavi Marmara case is sufficiently grave to be admissible:

77. However, the Request does not address the basis on which the Prosecution considered that “the total number of victims of the flotilla incident reached relatively limited proportions as compared, generally, to other cases investigated by the Office”—in particular, the circumstances of the Abu Garda and Banda cases (which are, in relevant part, identical). Although the majority likewise referred to these cases, it did not consider those particular characteristics.

78. As the Report expressly states, Abu Garda likewise concerned the allegation of “a single attack involving a relatively low number of victims”—but it was “distinguishable” because of “the nature and impact of the alleged crimes”, which were committed against international peacekeeping forces. Accordingly, the attack alleged in Abu Garda differed in nature from the identified crimes aboard the Mavi Marmara. Crimes against international peacekeepers strike at the heart of the international community’s mechanisms for collective security, and thus their direct and indirect victims include not only the peacekeepers and their families, but also the large number of civilians deprived of protection more widely because of the disruption to the peacekeepers’ operations. The Request does not address this distinction. [130]

n. 130 Likewise, the recent Al Mahdi case—solely concerning attacks on property protected under article 8(2)(e)(iv) of the Statute—was considered sufficiently grave to be admissible before the Court, resulting in a conviction. In the context of sentencing, the Trial Chamber stressed that the charged conduct was of “significant gravity”, among other reasons, because 1) the destroyed mausoleums were “among the most cherished buildings” in Timbuktu, an “emblematic city” which “played a crucial role in the expansion of Islam in the region” and which is “at the heart of Mali’s cultural heritage”; 2) the destroyed mausoleums were of proven significance to the inhabitants of Timbuktu not only as a matter of religious observance but also as a symbol and focus of community activity and unity; and 3) all the destroyed sites but one were designated UNESCO World Heritage sites, whose destruction also directly affects “people throughout Mali and the international community.” This same reasoning is applicable, mutatis mutandis, to the question of admissibility.

I don’t find the OTP’s efforts to distinguish the Mavi Marmara case from Abu Garda, Banda, and Al Mahdi particularly convincing. Its selection of factors to highlight strikes me as completely subjective and result-driven. Indeed, when faced with the PTC’s insistence that the message the Mavi Marmara attack sent to the international community — that Israel is willing to use force to maintain an illegal blockade that is causing a massive humanitarian crisis in Gaza — it simply retreats to “well, we disagree, and there is nothing you can do about it”:

80. Indeed, the majority appears simply to disagree with the Prosecution’s view of the weight to be given to… the significance of any ‘message’ sent by the interception of the flotilla itself. Given the Prosecution’s understanding of the proper standard of review under article 53(3)(a), and the absence of a reasoned conclusion that the Report was in these respects incorrect or unreasonable, the Prosecution does not consider it appropriate to depart from its original determination in the Report.

My point is not that the PTC’s gravity analysis is right and the OTP’s is wrong. (Though I do think the PTC has the stronger argument.) My problem is with the OTP’s position that it must investigate any situation in which at least one case is grave enough to be admissible. Debates over case gravity are inevitable when that is the standard for opening an investigation. But they are easily avoided if the OTP takes a more holistic approach to situational gravity, comparing the gravity of different situations by examining all of the potentially admissible cases within them. Even if we assume (as I do) that the attack on the Mavi Marmara is sufficiently grave to be admissible, the overall situational gravity of the Comoros situation (which involves only one case) still pales in comparison not only to numerous other situations under preliminary examination, but even — and more importantly — to the situational gravity of the Palestine situation as a whole. As I have argued previously, the last thing the OTP should do is investigate one very small part of the much larger conflict between Israel and Palestine. If it ever takes the Palestine situation on, it needs to look at crimes committed by both sides throughout Palestinian territory.

There is, however, an even more significant problem with the Final Decision’s standard for opening an investigation: if taken seriously, it will simply overwhelm the OTP’s resources. There may not be even one admissible case in the Comoros situation (because there is only one case), but how likely is it that larger situations, which are the norm, will not contain even one case sufficiently grave to prosecute? Just think about the situations currently at Phase 2 or Phase 3 of the preliminary-examination process: Burundi, Gabon, Iraq, Palestine, Ukraine, Colombia, Guinea, and Nigeria. There may well be complementarity issues in some of those situations that counsel not opening an investigation, but it seems exceptionally likely that each contains at least one admissible case. The Final Decision’s standard would thus seem — barring complementarity concerns — to require the OTP to open a formal investigation in all eight situations. Which is, of course, practically impossible.

Nor is that all. If the existence of even one admissible case is enough to require the OTP to investigate a situation, states will have little problem using referrals (self or other) to achieve nakedly partisan ends. Palestine, for example, could simply refer a single day during Operation Protective Edge in which Israel flattened an entire neighbourhood in Gaza or destroyed a UN school sheltering displaced civilians. It would be difficult, if not impossible, for the OTP to plausibly maintain that those acts are not grave enough to prosecute. So it would have to open an investigation. That makes little sense. Far better for the OTP to simply say that, however grave those specific attacks might be, the overall gravity of the gerrymandered “situation” is not sufficient to investigate in light of the gravity of other situations.

I hope I am wrong about when the OTP believes it is required to open an investigation into a situation. If so, the OTP needs to clarify its position immediately. Because the standard articulated in the Final Decision — the existence of even one case sufficiently grave to be admissible — is simply unworkable.

A Vile and Shameless Attack on Golriz Ghahraman

by Kevin Jon Heller

I am proud of many of my former students, but the one I am most proud of is Golriz Ghahraman, who took my international criminal law course many years ago at the University of Auckland and is still a dear friend. In the years since my course, Golriz has worked on the Karadzic case, earned an MSt in human rights from Oxford, served as a prosecutor at the Cambodia tribunal, and developed a glittering legal practice representing the powerless and disenfranchised in New Zealand. Most impressive of all, though, just a few weeks ago Golriz became the first refugee MP in New Zealand history — she and her family fled Iran when she was a young girl — as a member of the Green Party.

Golriz’s success is a tribute to hard work and commitment, and I can only imagine how inspirational her story must be for refugees and women in New Zealand and elsewhere. Which is why I am furious — absolutely furious — about an attack on Golriz written by “a former Labour staffer in New Zealand and Australia” named Phil Quin that is as mendacious as it is shameless.

Golriz’s sin, in Quin’s eyes? Having the temerity to work as a defence attorney on the Nzirorera and Bikindi cases at the ICTR:

At the ICTR, a would-be New Zealand politician decided to use a year in Africa to volunteer as an intern for the defence team. Golriz Ghahraman was not one of the 200 lawyers appointed by the UN. Her presence was voluntary. The ICTR was famously cashed up — it cost more than US$2 billion to secure only 61 convictions. Since recent publicity of Ghahraman’s time in Rwanda, one argument waged at me  —  that defendants deserve a lawyer — is a shameless red herring. Nobody is disputing this, least of all me, but the notion Ghahraman’s skills were needed when there were more than three high-end, properly accredited, lawyers for each one of the accused is beyond a joke. It was work experience.

Of course, there’s nothing wrong with work experience, and internships are a good way to broaden one’s horizons. But I am deeply troubled by how Ghahraman chose to spend her time dealing with the aftermath of the genocide. The entire ICTR defence was predicated on a revisionist account of what happened in 1994 — one that posits the victims as perpetrators — and it is incredible that someone as smart as Ghahraman didn’t know that going into the role.

It’s one thing for a UN defence lawyer to be assigned to defend ratbags. It’s quite another to seek them out in a voluntary capacity. (Apparently she went on the payroll three months in).

The ignorance of Quin’s argument — here and in the rest of the article — is breathtaking. Let’s start with his basic factual errors. First, there is no such thing as a “UN” defence attorney. As the ICTR’s own website notes, “Defence counsels at the ICTR are not part of the institutional structure but rather paid as independent contractors, traveling to Arusha as necessary for their case.”

Second, 200 lawyers were not “appointed” by the UN. That number refers to the ICTR list of qualified lawyers from which defendants could choose counsel.

Third, no lawyer was ever “assigned” to a case against his or her will. Each and every lawyer who worked on a case at the ICTR “sought [the case] out in a voluntary capacity.”

Fourth, there is no such thing as an “ICTR defence,” much less one that was “entirely” about blaming the Tutsi for bringing on the genocide themselves. Each defendant had his own argument for why he or she should be acquitted.

Bikindi’s argument, which Golriz helped develop as one of his lawyers, was that he did not conspire to commit genocide, that he did not commit genocide, that he was not complicit in genocide, that he did not incite genocide, that he did not kill as a crime against humanity, and that he did not persecute as a crime against humanity. And guess what? The Trial Chamber unanimously acquitted Bikindi on every charge other than incitement.

Quin conveniently fails to mention that the Trial Chamber agreed with Bikindi that the other charges had no merit. So when he says — with regard to the genocide deniers’ “twisted view of history” — that “[w]ittingly or not, Ghahraman jumped on that bandwagon. As a public figure, she ought to be judged by such choices,” he is indicting the Trial Chamber no less than Golriz.

Golriz is not a genocide denier, of course. Golriz is a lawyer who defended an individual accused of committing horrible crimes, a necessary role for anyone who takes due process and natural justice seriously. Quin might not care about whether ICTR defendants receive fair trials, but the Tribunal itself does. As it notes on its website, “[a]s with other tribunals and courts of law, the Defence has been playing a crucial role in ICTR proceedings, upholding the principle of equality of arms and ensuring the fairness of proceedings.”

Quin’s argument, therefore, is not simply factually challenged. It is offensive. Attacking a lawyer for being willing to take on an unpopular client is beneath contempt. I expect such lawyer-baiting from the right wing, which has repeatedly attacked lawyers who defend accused terrorists at Guantanamo Bay. I didn’t expect it from someone who has supposedly worked for the Labour Party in Australia and New Zealand.

And, of course, I didn’t expect the attack to target Golriz, one of literally dozens of defence lawyers who have worked at the ICTR — and one who also happened to prosecute genocide in Cambodia. (An inconvenient fact Quin also somehow failed to mention.) For some reason, of all those attorneys — which include more than a few Aussies and Kiwis — Quin finds only one worthy of attack: the female refugee MP from the Green Party. I wonder why that is?

I am furious. If you are too, let Newsroom know what you think of its decision to print Quin’s baseless attacks. Newsroom’s Facebook page is here, and its twitter handle is @NewsroomNZ.

UPDATE: Stuff.co.nz published another attack on Golriz written by Quin. It’s basically Quin plagiarizing himself, but you can read it if you have a tough stomach.

Reflections on the Mladić Verdict: A High-Point for the ICTY’s Legacy and Perhaps Hope for Victims of Other Conflicts

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor at the Center for Global Affairs at New York University.]

As Jens Ohlin has written, a highly awaited verdict came out Wednesday, November 22, sentencing Ratko Mladic, former commander of the Main Staff of the Bosnian Serb Army (VRS), to life in prison for genocide, war crimes and crimes against humanity committed from 1992-1995.

The verdict was not unexpected given Mladić’s lengthy trial, and that his involvement as commander of the troops who committed the Srebrenica massacre was recorded on well–known news footage.  Wire intercepts of his communications were until recently hanging on display on the walls of the Potočari memorial near Srebrenica, in the former battery factory that had also housed UN peacekeepers.

This high-level verdict is an extremely significant one for the ICTY.  Mladić was convicted of:

  • genocide and persecution, extermination, murder, and the inhumane act of forcible transfer in the area of Srebrenica in 1995;
  • persecution, extermination, murder, deportation and inhumane act of forcible transfer in municipalities throughout Bosnia;
  • murder, terror and unlawful attacks on civilians in Sarajevo; and
  • hostage-taking of UN personnel.

The only count of which he was acquitted was the “greater genocide” theory—genocide in additional municipalities in Bosnia in 1992.  The verdict is subject to appeal, as is the sentence.

These were extremely brutal crimes with large numbers of victims—over 8,300 alone in and around Srebrenica, over 13,000 in Sarajevo, after a multi-year campaign of sniping and shelling its citizens.  The ICTY’s proceedings were extensive, thorough, (and lengthy).  Trial commenced in May 2012, and according to the ICTY, there were 530 trial days, 592 witnesses, and nearly 10,000 exhibits introduced into evidence.

While the verdict is coming late in the day no doubt for some victims and their families (for example, 22 years after the Srebrenica massacre), this is not entirely the ICTY’s fault.  Mladić spent nearly 16 years on the run, and was only captured and sent to The Hague in 2011.

Well-done trials of international tribunals also take time, particularly when so many victims and so many crimes are involved.  Funder states often complain about the high costs of international trials, but these costs pale in comparison to peacekeeping expenditures that might have been required had high-level perpetrators not been indicted and apprehended.  And, if one measures the number of crime scenes involved or number of victims whose crimes were adjudicated, then costs seem not nearly as high.  States’ representatives and tribunal critics who make these cost arguments should reflect:  would they really like to argue to remaining family members that justice for their loved ones is not worth it?

Victims may or may not feel some “closure” at this verdict.  Complete closure is of course impossible, as no one can restore their loved ones.  But hopefully surviving victims and family members of those who did not survive will take some measure of solace from the verdict.

As Marko Milanovic has written, denial of crimes and partial denial of crimes is still a pervasive problem among certain communities in the former Yugoslavia (particularly in Repŭblika Srpska and Serbia), and today’s verdict is not anticipated to change that.  Yet, establishing the facts, hearing witness testimonies, and introducing documentary evidence is extremely significant in its own right, and helps create a solid record that makes denial harder, and perhaps will make it gradually less and less plausible.

Finally, the Mladić verdict can also give us hope for future prosecutions—that justice is sometimes delayed, but remains possible and one needs to remember this.  For years (when I was a junior attorney at Human Rights Watch) there was only an “arrest Mladić and Karadžić campaign,” and we had no idea if these two fugitives from justice would ever be apprehended.  It took years of concerted pressure and economic leverage from the US and the EU, but the arrests did occur, and the trials did occur.  So, as we look on as mass crimes continue today in other countries (such as Syria and Myanmar), and the geopolitical roadblocks to seeing any kind of comprehensive justice solutions, we should remember this long trajectory that the ICTY’s work took, and the need to stay the course.

An Utterly Damning Report on Moreno-Ocampo

by Kevin Jon Heller

Following on the heels of the much-reported e-mail scandal, FICHL has released a policy brief entitled “A Prosecutor Falls, Time for the Court to Rise” that is an utterly damning indictment of Luis Moreno-Ocampo’s tenure at the ICC. Here is a taste of the report, which picks up not long after the Court became operative:

This idyllic mood in the OTP continued through the summer of 2003, as if “the Office was embraced by the human warmth and outstanding social skills of the Prosecutor”. Among the new staff then recruited was co-author William H. Wiley, the first investigator in the Office. The situation started to change in late September 2003. The Chef de cabinet sought to hire a fourth diplomat in the OTP from one of the two Governments that had enabled the election. The Prosecutor asked the Senior Legal Adviser to legitimize the appointment. When he gently referred to the importance of following the rules on recruitment, the Prosecutor shouted: “For you, I am the law!”. To facilitate the recruitment of the diplomat, the Prosecutor asked Wiley to find dirt on the stronger candidate, as his first “investigative task”.

The mask of power fell repeatedly during the autumn of 2003 and subsequent months. The practice of vigorous peer review of important draft motions and other documents – so carefully established in the OTP of the nearby International Criminal Tribunal for the Former Yugoslavia – was not followed. A culture was established whereby even working meetings were choreographed, to ensure that the Prosecutor and his favourites would not be contradicted – soon, no one dared to. A “sense of fear” and “intimidation” set in. The idea of ‘one Court’ was undervalued. Several government officials and leaders of non-governmental organizations knew about the problems already from late 2003 onwards. Within a few years, 22 of the top staff members in the OTP left. Among those who remained were colleagues who worked on cases that collapsed, were withdrawn, and postponed again and again.

A report condemning Moreno-Ocampo comes as no surprise: supporters and critics of the Court alike agree that he was a disastrous choice for the Court’s first Prosecutor. The authors of the report are surprising, however, because three of them are among the Court’s most important initial employees: William H. Wiley, mentioned above; Morten Bergsmo, who led the preparatory team for the OTP and was its first Senior Legal Adviser; and Sam Muller, who led the ICC’s Advance Team.  If they are not credible witnesses to what went on in the early days of the Court, no one is.

Kudos to the authors — which also include Wolfgang Kaleck, the Secretary-General of the European Centre for Constitutional and Human Rights — for their willingness to go public with their grievances and recollections. They do so, of course, because they are all committed to the long-term success of the Court. We can only hope the ICC is listening.

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!