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International Criminal Law

Thoughts on the Ukraine Ad Hoc Self-Referral

by Kevin Jon Heller

As readers no doubt know, Ukraine has accepted the ICC’s jurisdiction on an ad hoc basis for acts committed between 21 November 2013 and 22 February 2014. The self-referral has already led to a good deal of intelligent commentary — see, for example, Mark Leon Goldberg’s discussion of the politics of an ICC investigation here and Mark Kersten’s convincing argument that Russia may not be particularly opposed to an ICC investigation here. I just want to add a few additional thoughts.

To begin with, I remain troubled by the insistence of Ukraine’s Constitutional Court that Ukraine cannot delegate its adjudicative jurisdiction to an international court. As it said in 2001:

Article 124 of the Ukrainian Constitution states that the administration of justice is the exclusive competence of the courts and that judicial functions cannot be delegated to other bodies or officials. The Constitutional Court noted that the jurisdiction of the ICC under the Rome Statute is complementary to national judicial systems. However, under Article 4(2) of the Rome Statute, the ICC may exercise its functions and powers on the territory of any State party, and under Article 17, the ICC may find a case to be admissible if the State is unwilling or unable genuinely to carry out the investigation or prosecution. The Court concluded that jurisdiction supplementary to the national system was not contemplated by the Ukrainian Constitution. Hence, the amendment of the Constitution is required before the Statute can be ratified.

Parliament’s acceptance of the ICC’s jurisdiction, even on an ad hoc basis, seems specifically foreclosed by the Constitutional Court’s judgment. Ukraine’s President and Parliament clearly don’t care about that inconvenient fact; will the ICC? Martin Holtermann may be right — the ICC may simply defer to Ukraine’s President and Parliament. But I can help but think it would be unseemly for an international court like the ICC to simply ignore a clear judgment issued by the highest court in a state purporting to accept its jurisdiction. At the very least, Fatou Bensouda should take the Ukraine’s internal conflict into account when she decides whether to open a formal investigation — you can bet that any suspect wanted by the ICC would challenge the legality of the self-referral in Ukraine’s domestic courts, litigation that could make it very difficult for ICC proceedings to go forward.

Relatedly, I think it’s important to remind ourselves that Ukraine’s self-referral does not mean the OTP will open a formal investigation into the situation. Diane Amann writes today that the self-referral shows “Europe is on [the] ICC docket.” That’s true — but only in the formal sense. As Mark Kersten noted in February, Europe has been on the ICC docket for a long time in terms of preliminary investigations. After all, the OTP announced the Georgia investigation in August 2008 — nearly six years ago. (Its Afghanistan investigation has been plodding along even longer, since 2007.) That hasn’t quelled the voices that have been complaining — with justification — that the ICC has been overly obsessed with Africa. So unless and until the OTP decides to open a formal investigation into the situation in Ukraine, the country’s self-referral is unlikely to have any positive effect whatsoever on the Court’s African reputation.

Finally, a brief thought on the temporal limits of the self-referral. I don’t think the ICC will reject the referral on the ground that it is too carefully tailored to ensure only one side of the conflict. (A major problem with Comoros’s Mavi Marmara state referral.) The temporal limits, however narrow, make some sense — the referral begins when Yanukovych announced Ukraine was abandoning the agreement with the European Union and ends when Yanukovych fled the country. Should Ukraine have accepted the ICC’s jurisdiction for a longer period — most notably, to include Russia’s invasion of Crimea? I had an interesting twitter debate earlier today on that issue with a bunch of smart Court-watchers, including Ryan Goodman, Eugene Kontorovich, Mark Kersten, Martin Holtermann, and David Kaye. I pointed out that it’s difficult to see what international crimes Russia committed during the invasion, other than the non-prosecutable crime of aggression. Ryan replied that a longer self-referral could give the ICC an opportunity to address important issues in the law of occupation. (See also his post here.) That’s absolutely true — but only if Russia actually violates the law of occupation, which seems unlikely given the popularity (certainly not uniform) of the invasion and annexation within Crimea itself. The wildcard is the crime that Eugene mentioned during our discussion — the transfer of civilians into occupied territory. I have no idea whether Russia intends to directly or indirectly transfer Russians into Crimea; Eugene seems to think it does, and I will defer to his greater knowledge of the situation. But my position with regard to that possibility is the same as my position on Israel’s transfer of civilians into the West Bank: whatever the merits of the allegations, the war crime is legally uncertain and factually difficult to prove, especially when the transfer is indirect instead of direct — which it is in the West Bank and would almost certainly be in Crimea. In the absence of other violations of the law of occupation, therefore, I am not sure the OTP would get involved.

I imagine we will have much more to discuss concerning the ICC and Ukraine in the weeks to come!

How to Get Yourself Convicted of Terrorism

by Kevin Jon Heller

Just follow the lead of Henry Okah, a Nigerian national recently convicted in South Africa (under universal jurisdiction) of terrorism-related offences in the Niger delta. Here are the key paragraphs from the trial court’s decision:

[28] The correctness of copies of 3 journals kept by the accused in his own handwriting was admitted. In these journals the accused made notes in from January to September 2010 of names, military clothing, equipment and hardware. For example, he writes:

“Battle jackets… boots… boats, rounds… walkies…engines… balaklavas… water bottles… tee shirts, caps, belts, camo(flage) shorts… TNT… backpacks… binoculars nightvision… badges… bulletproof vests… tents… VHF radios … generators… rechargeable lamps… fuel… ordering through Ange Dewrance the construction of a gunboat with protector plates for the gunmen… rifle slings… the contact numbers of Military Surplus Stores CC… compasses… BMG assault weapons… RPG …SAM …grenade launchers… mortars… landmines… anti-tank missiles… shotguns… handguns… notes on military tactics inter alia the use of explosives, weaponry and sabotage… and notes on counter insurgency.. names of his co-militants like Tompolo, Stoneface, Boyloaf, Moses, Chima, Raphael, VIP, Stanley…”

[29] Also admitted is the fact that an email address and account was registered with Yahoo with a login name “nigdelunrest” in the name of “Mr. Jomo Gbomo.”

I hear iamalqaeda [at] gmail [dot] com and loyaltalibansoldier [at] mac [dot] com are still available. Any takers?

Hat-Tip: Chris Gevers, University of KwaZulu-Natal, who blogs at War and Law.

Could Moreno-Ocampo Represent LRA Victims at the ICC?

by Kevin Jon Heller

John Louth at OUP passes along the latest potential twist in Moreno-Ocampo’s career path:

The former prosecutor of the International Criminal Court (ICC), Mr Luis Moreno Ocampo, has offered to represent the victims of Barlonyo Massacre in the court.Barlonyo village in Agweng Sub-county, Lira District is where more than 400 people were massacred by suspected Lord’s Resistance Army rebels on February 21, 2004. A total of 301 people are buried at the memorial site in a mass grave.

However, more people are believed to have been killed in the attack as 11,000 people were in the camp at the time. “I have something to offer you, I want to be your lawyer,” Mr Ocampo told the survivors who gathered at Barlonyo to welcome him on Friday.

He then asked those in the crowd who lost relatives in Barlonyo massacre to raise their hands and all did. He then offered to represent them in court. Mr Ocampo said initially, it was thought only 200 were killed in Barlonyo but now he knows more people were killed.

“We can document that. The killing, abduction and the looting and we can present this to the ICC. We can request to expand the arrest warrant, the number of victims and the number of crimes and document well what happened here,” he said.

“We can present this to the ICC we can request to expand the arrest warrant we can expand the number of victims and number of crimes.” Mr Ocampo was invited to Lango region by Children of Peace, an NGO supporting the vulnerable and victims of the Barlonyo in Lira District

I have no idea whether Moreno-Ocampo actually intends to represent Barlonyo victims at the ICC, but it’s worth thinking about some of the potential ethical issues that such representation would involve. Like all counsel who are involved with the Court, Moreno-Ocampo would be subject to the Code of Professional Conduct for Counsel. The most relevant provision is Art. 12, “Impediments to representation”:

1. Counsel shall not represent a client in a case:

(a) If the case is the same as or substantially related to another case in which counsel or his or her associates represents or formerly represented another client and the interests of the client are incompatible with the interests of the former client, unless the client and the former client consent after consultation; or

(b) In which counsel was involved or was privy to confidential information as a staff member of the Court relating to the case in which counsel seeks to appear. The lifting of this impediment may, however, at counsel’s request, be ordered by the Court if deemed justified in the interests of justice. Counsel shall still be bound by the duties of confidentiality stemming from his or her former position as a staff member of the Court.

I don’t think Art. 12(1)(a) would apply, because the OTP doesn’t have “clients” in the sense of private counsel — especially given that the victims of crimes have their own counsel, making clear that they are not represented by the OTP. But it would be interesting to see the OTP’s position, because it could at least plausibly argue that the provision would require Moreno-Ocampo to get its permission to represent the Barlonyo victims. There is no question that the Barlonyo case is “substantially related” to Moreno-Ocampo’s previous work on the LRA cases; after all, the OTP pursued those cases on his watch and Moreno-Ocampo was responsible for opening the Uganda investigation in the first place. And although the interests of the OTP and the victims often align, that is certainly not necessarily the case — see, e.g., the Lubanga controversy over sexual violence. So I could see Bensouda worrying that Moreno-Ocampo might pursue a strategy for the Barlonyo victims that was inconsistent with his previous work on the LRA cases.

Which leads to Art. 12(1)(b), the confidentiality provision. That provision could easily be fatal to Moreno-Ocampo’s potential representation of the Barlonyo victims, even if the OTP didn’t oppose it. No former member of the OTP could have had greater access to confidential information than Moreno-Ocampo; after all, he was the Prosecutor for eight years. Could he represent the victims without in any way revealing or relying on confidential information he had access to while he was the Prosecutor? I’m willing to give Moreno-Ocampo the benefit of the doubt that he would take his confidentiality obligation seriously, but I’m skeptical that he — or anyone in a similar position — could maintain the mental “Chinese wall” necessary to avoid information bleed. So I could very easily see the Court deciding that it would not be in the “interests of justice” — or in the interests of the victims themselves — to permit Moreno-Ocamo to represent the Barlonyo victims given his previous role in the Court.

I have no problem with Moreno-Ocampo using his clout and visibility to promote the interests of the Barlonyo victims. But I’m not sure whether he should actually represent them at the ICC. In my view, it would be difficult, if not impossible, for Moreno-Ocampo to navigate the exceptionally complicated confidentiality issues that would be involved in working on behalf of victims in a situation he was once responsible for investigating. We’ll see what happens.

Al-Senussi, Gaddafi Show Trial to Begin Next Month

by Kevin Jon Heller

According to Lebanon’s Daily Star, Libya intends to begin the trial on April 14, just a few weeks from now:

Seif al-Islam Kadhafi, Saadi Kadhafi and former spy chief Abdullah Senussi are among more than 30 officials from the ousted regime who are to stand trial on charges ranging from murder to embezzlement.

Former premiers Al-Baghdadi al-Mahmudi and Bouzid Dorda are also among those going on trial from April 14, Seddik al-Sour, spokesman for the state prosecutor’s office, told a news conference.

Charges against Kadhafi’s sons and aides include murder, kidnapping, complicity in incitement to rape, plunder, sabotage, embezzlement of public funds and acts harmful to national unity.

Saadi Kadhafi, who was extradited from Mali earlier this month, is to stand trial in the same case, said Sour.

His older brother Seif al-Islam, Kadhafi’s former heir apparent, is being held by rebels in the western city of Zintan who have refused to transfer him to Tripoli for the trial.

Sour said he could stand trial via video conference from his detention cell in Zintan.

There is still no evidence that either al-Senussi or Gaddafi have ever had access to a lawyer, despite Libya’s constant assertions to the ICC that the government is doing everything in its power to arrange representation for them. Can’t let a little thing like Libyan law get in the way of a good show trial. And, of course, the nice thing about a show trial is that there really isn’t any need for the defendants to prepare a defence.

It’s also difficult to avoid noting the irony of Sour’s suggestion that Gaddafi could be tried via video link — exactly what the Assembly of States Parties and the Trial Chamber (though not yet the Appeals Chamber) have said is fine in the Kenya cases. To be fair, Libya would use videoconferencing without Gaddafi’s consent, whereas the ASP’s backdoor amendment of the Rome Statute was designed to placate Kenyatta and Ruto. But once the ASP and TC proved willing to dilute the clear presence requirement in Art. 63(1) of the Rome Statute, it was only a matter of time before states began taking liberties with presence, as well.

The ICC Fiddles While Libya Burns

by Kevin Jon Heller

For quite some time I zealously followed all of the various filings in the Libya cases — by Libya, al-Senussi and Gaddafi, the Registry, the OPCV, everyone. I also regularly blogged about those filings. But I haven’t lately, as consistent readers will know. The reason?

The ICC judges seem to have lost all interest in actually making decisions.

The record is quite shocking. Take the admissibility challenges. The Pre-Trial Chamber rejected Libya’s admissibility challenge to the case against Saif Gaddafi on 31 May 2013, nearly ten months ago. And it granted Libya’s admissibility challenge to the case against al-Senussi on 11 October 2013, more than five months ago. Both sides immediately appealed the decisions, yet the Appeals Chamber has done nothing since. I’ve been hearing rumours lately that the Appeals Chamber is planning on resolving both appeals at the same time. That may reduce the judges’ workload, but it doesn’t justify letting the appeals languish well beyond what is reasonable.

But it’s not just the Appeals Chamber that is failing to do its job. Pre-Trial Chamber I deserves even harsher criticism. Not surprisingly, Gaddafi’s defence team has been trying desperately to convince the Pre-Trial Chamber to issue a finding of non-compliance against Libya regarding its failure to surrender Gaddafi to the Court. (Or to at least try to surrender him, given that he is still being held in Zintan.) The defence filed its its first request for a finding of non-compliance on 7 May 2013, and it has filed numerous similar requests since. Yet the Pre-Trial Chamber has still not issued a decision on any of the defence’s requests.

So what has Pre-Trial Chamber I been doing in the Libya cases? Not much. It has issued a grand total of three decisions in the past five months, none of which have been substantive. Here they are:

13/02/2014 ICC-01/11-01/11-511 Pre-Trial Chamber I Decision designating a single judge
11/12/2013 ICC-01/11-01/11-490 Pre-Trial Chamber I Decision on the “Request for Leave to Appeal against the ‘Decision on the Request for an order for the commencement of the pre-confirmation phase by the Defence of Saif Al-Islam Gaddafi’”
13/11/2013 ICC-01/11-01/11-477 Pre-Trial Chamber I Decision on the “Defence application on behalf of Mr. Abdullah Al Senussi for leave to appeal against the ‘Decision on the request of the Defence of Abdullah Al-Senussi to make a finding of non-cooperation by the Islamic Republic of Mauritania and refer

Although it’s bad enough that the Court’s judges feel no urgency to address al-Senussi’s situation, their willingness to turn a blind eye to Gaddafi’s detention is simply unconscionable. As his defence team notes in its most recent — and certain to be equally ignored — request for a finding of non-compliance, Gaddafi has now been held in solitary confinement without access to a lawyer (at least one not subsequently imprisoned unlawfully by the Libyan government) for more than two years. (27 months, to be precise.) That situation has been condemned not only by the United Nations Working Group on Arbitrary Detention, but also by the African Court of Human Rights, which determined more than a year ago with regard to Gaddafi’s detention that “there exists a situation of extreme gravity and urgency, as well as a risk of irreparable harm to the Detainee.”

Yet still the judges do nothing — fiddling while Libya burns.

Is the Crimea Crisis a Factual or Legal Disagreement?

by Julian Ku

University of Memphis law professor Boris Mamlyuk criticizes most U.S. international law commentary on the Crimea/Ukraine crisis for failing to take seriously the Russian point of view. I’ve noticed several commenters here have also complained about our pro-Western bias.  Part of the problem is that there is a dearth of international law commentators writing in English in favor of the Russian legal position. Even Prof. Mamlyuk’s short essay doesn’t try to defend or explain Russia’s legal position, except to point out that Ukraine may have committed some minor violations of its own.  But let me try to at least explore Russia’s position in more detail. The best defense I can come up with is that Russia is arguing the “facts” and not the “law.”

During today’s Security Council debate, Russia’s UN Ambassador Vitaly Churkin appears to have given a fuller defense of Russia’s legal position, at least vis-a-vis the upcoming Crimea referendum.

“Some dispute the legality of such a referendum, but it is unacceptable to manipulate individual principles and norms of international law, randomly pulling them out of context not only of the international law, but the specific political circumstances and historical aspects,” Churkin said.

In each case, the envoy believes, one should “balance between the principles of territorial integrity and the right for self-determination.”

“It is clear that the implementation of the right of self-determination in the form of separation from the existing state is an extraordinary measure. In Crimea such a case apparently arose as a result of a legal vacuum, which emerged as a result of unconstitutional, violent coup d’état carried out in Kiev by radical nationalists, as well as direct threats by the latter to impose their order on the whole territory of Ukraine.”

I am pretty surprised that Russia is  endorsing this expansive view of self-determination, which I think could be fairly invoked by certain parts of Russia itself (Hello, Chechnya!).  But I suppose the dispute here with the West could be understood as factual rather than legal.  Most scholars would accept the idea that self-determination is appropriate in certain exceptional circumstances, such as decolonization or when facing the threat of genocide or other mass killings. No one west of the Ukraine border seems to think Crimea qualifies (except the good folks at RT) because none of us think that the new Ukrainian government has threatened Crimea in any tangible way.  But Russia could be understood to be arguing the facts (see, Crimea really is threatened by the fascists in Kiev) rather than the law.  I think it is a pretty ludicrous factual argument, but there it is.

Russia’s position on the use of military force is also factual rather than legal.  It argues that there are no Russian forces in Crimea other than the naval forces that are stationed there by treaty right. It simply denies that the forces in control in Crimea are official Russian troops.  This appears to be an even more ludicrous factual claim, but it also would mean that Russia accepts that open displays of military force would be a violation of the Charter.

Russia’s shift to factual rather than legal arguments is smart because it parries US and EU criticisms about the “violation of international law.”  It doesn’t rebut those charges terribly well, mind you, but perhaps the argument is just strong enough to convince those who want to find ways to accept the legality of Russia’s actions.

Another Terrible Day for the OTP

by Kevin Jon Heller

Readers are no doubt aware that Germain Katanga was convicted by the ICC yesterday. What may be less obvious is that the verdict nevertheless represents the Trial Chamber’s complete rejection of the OTP’s case against Katanga. The OTP alleged that Katanga was responsible as an indirect co-perpetrator for seven counts of war crimes (using children under the age of fifteen to take active part in hostilities, directing an attack against civilians, wilful killing, destruction of property, pillaging, sexual slavery, and rape) and three counts of crimes against humanity (murder, rape, and sexual slavery). The Trial Chamber acquitted Katanga on all of the charges concerning rape, sexual slavery, and the use of child soldiers. And although it convicted him of one crime against humanity (murder) and four war crimes (murder, attacking a civilian population, destruction of property and pillaging), the Trial Chamber rejected the idea that he was responsible for those crimes as an indirect co-perpetrator, choosing to “recharacterize” the facts to support finding him guilty as an accessory under Art. 25(3)(d) of the Rome Statute (contribution to a group crime).

The OTP, in short, failed to prove any of its legal claims — just as it did with regard to Katanga’s co-defendant, Mathieu Ngudjolo, who was acquitted on all charges in 2012. Indeed, had the Trial Chamber not been willing to substitute an uncharged and unconfirmed mode of participation for the charged and confirmed one, Katanga would have simply walked, as well.

(Which is, by the way, exactly what should have happened. The Trial Chamber’s “recharacterization” of the facts in the case, which was motivated solely by the desire to ensure Katanga’s conviction — thereby saving the OTP from itself — was fundamentally inconsistent with Katanga’s right to a fair trial. But that will be the subject of my next post.)

All in all, another terrible day for the OTP.

International Law: Not Helping to Resolve the Ukraine Crisis

by Julian Ku

I’m getting more and more nervous about events in Ukraine, and particularly in the Crimea.  Things are spinning (almost) out of control, and it is worth noting that international legal principles are not helping lead toward a resolution.

Instead of working out a negotiated transition, the new leaders of Ukraine have adopted a maximalist position by seizing power and then seeking to prosecute the former (?) president Viktor Yanukovych,  They’ve done this by (apparently) accepting the ad hoc jurisdiction of the ICC, and making noises about turning Yanukovych (and others) over to the ICC.

Kevin raises a very good legal point: ICC ratification appears to violate Ukraine’s own constitution as interpreted by its own constitutional court. But the new leaders of Ukraine don’t seem troubled by that ruling (or even aware of it).  So it is not surprising Yanukovych has retreated to Russia, where he can avoid both Ukrainian and ICC prosecutions.  In any event, an ICC referral will lock in Ukraine to its current path, making a negotiated transition even harder.

International legal principles are also not much help in restraining a Russian military intervention.  Russia appears to be mobilizing its military along the border, and the U.S. is warning against violations of Ukraine’s sovereignty.  It would be ironic if Russia starts to make noises about a need for “humanitarian intervention” to protect the Russian minority in Ukraine (especially in the Crimea).  It will also be ironic if the U.S. started demanding that Russia seek UN Security Council authorization for any use of force. The legal case for humanitarian intervention here is not very strong, but it is not implausible to think that retribution against ethnic Russians in Ukraine could happen.  I doubt the legality will bother Russia much (it didn’t much worry about it in Georgia), but now that Russia made such a big fuss about international law governing the use of force over Syria, will it do so here? And will anyone care?

Mueller on Kenya and the ICC

by Kevin Jon Heller

Susanne Mueller, who works at Boston University’s African Studies Center, has published a very interesting essay on the relationship between Kenya and the ICC. I want to bring it to our readers’ attention, because it’s published in the Journal of East African Studies, which many international-law folk may not normally read. Here is the abstract:

Kenya’s 2013 election was supremely important, but for a reason not normally highlighted or discussed. Uhuru Kenyatta and William Ruto’s run for president and deputy president as International Criminal Court (ICC) indictees was a key strategy to deflect the court and to insulate themselves from its power once they won the election. The paper maintains that the strategy entailed a set of delaying tactics and other pressures to ensure that the trials would not take place until after the election when their political power could be used to maximum effect to halt or delay them. However, unlike in 2007–08, the 2013 election did not result in mass violence. The Kenyatta–Ruto alliance united former ethnic antagonists in a defensive reaction to the ICC. The analysis has implications for theories seeking to explain why countries ratify and comply with treaties. It develops an alternative political economy argument to account for outliers like Kenya and has implications for international criminal justice and democracy in Kenya.

It’s an illuminating and persuasive argument, well worth the read if you are interested in Kenya and the ICC. A free copy can be downloaded here.

A Modest Suggestion for the Ukrainian Parliament (Updated)

by Kevin Jon Heller

According to VOA News, the Ukrainian Parliament would like the ICC to investigate recently-deposed President Yanukovych:

Ukraine’s parliament voted on Tuesday to send fugitive President Viktor Yanukovych to be tried for ‘serious crimes’ by the International Criminal Court once he has been captured.

A resolution, overwhelmingly supported by the assembly, linked Yanukovych, who was ousted on Saturday and is now on the run, to police violence against protesters which it said had led to the deaths of more than 100 citizens from Ukraine and other states.

The resolution said former interior minister Vitaly Zakharchenko and former prosecutor-general Viktor Pshonka, who are also being sought by the authorities, should also be sent for trial at the ICC, which is based in The Hague.

The court says it needs a request from Ukraine’s government giving it jurisdiction to investigate Yanukovych and others over deaths during the protests.

I’m pretty sure the Court did not actually say that. Why? Because Ukraine has signed but not ratified the Rome Statute. And it can’t without Parliament’s intervention, because Ukraine’s Constitutional Court has held that the Rome Statute is not in conformity with the Ukrainian Constitution. So here’s a suggestion: before Parliament tries to send its former President to the Hague — and it would, of course, have to refer the situation in the Ukraine, not just him — it should amend the Constitution and ratify the Rome Statute.

All that said, there would be worse things than a Ukraine self-referral. After all, the Ukraine is not in Africa, and it’s unlikely that Yanukovych won’t eventually be apprehended. Prosecuting a former non-African head of state would do wonders for the ICC’s reputation.

UPDATE: In the comments, Shehzad Charania mentions the possibility of the Ukraine accepting the ICC’s jurisdiction on an ad hoc basis and then waiting for the OTP to initiate a proprio motu investigation. As I read the Constitutional Court’s decision, linked to above, that route is also foreclosed by the Ukrainian Constitution. Here is the relevant paragraph from the ICRC’s summary of the decision:

Article 124 of the Ukrainian Constitution states that the administration of justice is the exclusive competence of the courts and that judicial functions cannot be delegated to other bodies or officials. The Constitutional Court noted that the jurisdiction of the ICC under the Rome Statute is complementary to national judicial systems. However, under Article 4(2) of the Rome Statute, the ICC may exercise its functions and powers on the territory of any State party, and under Article 17, the ICC may find a case to be admissible if the State is unwilling or unable genuinely to carry out the investigation or prosecution. The Court concluded that jurisdiction supplementary to the national system was not contemplated by the Ukrainian Constitution. Hence, the amendment of the Constitution is required before the Statute can be ratified.

If the problem with ratifying the Rome Statute is that Ukraine cannot delegate the administration of justice to an international court, that would seem to prohibit accepting the ICC’s jurisdiction on an ad hoc basis, as well.

Lecture Next Week at UCL

by Kevin Jon Heller

Opinio Juris readers who are based in London may be interested in coming to a lecture I’ll be giving for the ILA at University College London next week. Here is the relevant information:

International Law Association (British Branch) Lecture
What is an international crime?

Wednesday 5 March 2014, 6-7pm

  • Speaker: Professor Kevin Jon Heller (Prof. of Criminal Law, SOAS)
  • Chair: Dr Kimberley Trapp (UCL)
  • Venue: UCL Faculty of Laws
  • Admission: Free of charge
  • Accreditation: 1 CPD hour SRA (BSB pending)

Nearly all ICL scholars accept the idea that an international crime is an act that is directly criminalized by international law. Professor Heller will challenge that definition, what he calls the “direct-criminalization thesis,” in this lecture. More specifically, he argue that the thesis can only be defended on the basis of an unconvincing and illegitimate naturalist understanding of the creation of international law — and that any attempt to defend the direct-criminalization thesis on positivist grounds collapses it into what he calls the “national-criminalization thesis,” the idea that an international crime is an act that all states are obligated to domestically criminalize.

This is essentially the same presentation I gave at Oxford a few weeks ago, so if you were there or listened to the podcast, there is no reason to come to this event. But if you do go, please come up afterward and say hello!

The Reprieve Drone Strike Communication I — Jurisdiction

by Kevin Jon Heller

Reprieve, the excellent British human-rights organisation, has submitted a communication to the ICC asking it to investigate NATO personnel involved in CIA drone strikes in Pakistan. Here is Reprieve’s press release:

Drone victims are today lodging a complaint with the International Criminal Court (ICC) accusing NATO member states of war crimes over their role in facilitating the US’s covert drone programme in Pakistan.

It has been revealed in recent months that the UK, Germany, Australia, and other NATO partners support US drone strikes through intelligence-sharing. Because all these countries are signatories to the Rome Statute, they fall under The ICC’s jurisdiction and can therefore be investigated for war crimes. Kareem Khan - whose civilian brother and son were killed in a 2009 drone strike – is at The Hague with his lawyers from the human rights charity Reprieve and the Foundation for Fundamental Rights who have filed the complaint on his behalf.

The CIA has launched more than 300 missiles at North Waziristan since its covert drone programme began and it is estimated that between 2004 and 2013, thousands of people have been killed, many of them civilians including children.

The US has immunised itself from legal accountability over drone strikes and the UK has closed its domestic courts to foreign drone victims. In a recent decision, the Court of Appeal in London ruled that it would not opine on the legality of British agents’ involvement in the US drone war in Pakistan, for fear of causing embarrassment to its closest ally.

The communication is a fascinating document to read, and it is quite damning concerning the effects of the CIA’s drone strikes. My interest in the communication, however, focuses on two critical legal issues: (1) whether the ICC would have jurisdiction over NATO personnel involved in the CIA’s strikes; and (2) whether it can be persuasively argued that those personnel have been complicit in the strikes. I’ll discuss the jurisdictional issue in this post and the substantive complicity issue in my next post.

As the communication acknowledges, neither Pakistan (where the drone strikes took place) nor the US (which launched the drone strikes) has ratified the Rome Statute. Reprieve nevertheless asserts that the ICC would have jurisdiction over NATO personnel involved in the drone strikes — particularly individuals from the UK, Germany, and Australia — on two different grounds (para. 7):

The Court’s jurisdiction over the crimes committed as a result of drone strikes in Pakistan arises in two ways. The first is (subjective) territorial jurisdiction on grounds that the attacks were launched from a State Party (e.g. Afghanistan), while the second is nationality (on grounds that there is a reasonable basis for concluding that the nationals of States Parties to the Rome Statute may have participated in crimes under the Statute.

It may seem odd that the communication spends time trying to establish that Art. 12(2)(a) of the Rome Statute, the territorial jurisdiction provision, includes subjective territoriality. Why not just invoke nationality jurisdiction, given that Reprieve is only asking the ICC to investigate “nationals of States Parties”? In fact, the communication’s move is actually quite clever — and necessary.

To see why, consider what Art. 25(3) says, in relevant part (emphasis mine): “In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person…” The italicized language is critical, because the communication does not claim that the NATO personnel committed the war crimes themselves. On the contrary, Reprieve views those individuals as accessories to war crimes allegedly committed by CIA drone operators (para. 13; emphasis mine):…