Archive of posts for category
International Criminal Law

Kim Priemel, “The Betrayal: The Nuremberg Trials and German Divergence”

by Kevin Jon Heller

I want to call readers’ attention to Oxford University Press’s publication of my friend Kim Priemel‘s new book, The Betrayal: The Nuremberg Trials and German Divergence. Here is the publisher’s description:

At the end of World War II the Allies faced a threefold challenge: how to punish perpetrators of appalling crimes for which the categories of ‘genocide’ and ‘crimes against humanity’ had to be coined; how to explain that these had been committed by Germany, of all nations; and how to reform Germans. The Allied answer to this conundrum was the application of historical reasoning to legal procedure. In the thirteen Nuremberg trials held between 1945 and 1949, and in corresponding cases elsewhere, a concerted effort was made to punish key perpetrators while at the same time providing a complex analysis of the Nazi state and German history. Building on a long debate about Germany’s divergence from a presumed Western path of development, Allied prosecutors sketched a historical trajectory which had led Germany to betray the Western model. Historical reasoning both accounted for the moral breakdown of a ‘civilised’ nation and rendered plausible arguments that this had indeed been a collective failure rather than one of a small criminal clique. The prosecutors therefore carefully laid out how institutions such as private enterprise, academic science, the military, or bureaucracy, which looked ostensibly similar to their opposite numbers in the Allied nations, had been corrupted in Germany even before Hitler’s rise to power. While the argument, depending on individual protagonists, subject matters, and contexts, met with uneven success in court, it offered a final twist which was of obvious appeal in the Cold War to come: if Germany had lost its way, it could still be brought back into the Western fold. The first comprehensive study of the Nuremberg trials, The Betrayal thus also explores how history underpins transitional trials as we encounter them in today’s courtrooms from Arusha to The Hague.

I cannot recommend the book highly enough. It’s a remarkable piece of scholarship, weaving together legal history, political history, and intellectual history into a seamless and compelling whole. Kim is a superb historian — and one who writes about law as well as most legal scholars. The book also does something almost unprecedented: tell the story of the IMT and NMTs together, which is necessary for understanding both. The book’s only competitor in that regard is Telford Taylor’s wonderful book The Anatomy of the Nuremberg Trials: A Personal Memoir — but Taylor’s book is, as the title indicates, a memoir, not an “objective” legal history.

Anyone interested in Nuremberg, international criminal law, or transitional justice will want to pick up a copy of The Betrayal. To appropriate Larry Solum: read Priemel!

New Article on SSRN

by Kevin Jon Heller

I have posted a short article on SSRN, entitled “Taking a Consenting Part: The Lost Mode of Participation.” Here is the abstract:

This short article, my contribution to a special issue of the Loyola International and Comparative Law Review commemorating the 70th anniversary of the Nuremberg Trial, critically examines “taking a consenting part” in an international crime – a mode of participation that was applied by the Nuremberg Military Tribunals but then disappeared into the ether of international criminal law, never to be seen again. The article is divided into three sections. Section I briefly explains how the NMTs understood the basic principles of individual criminal responsibility. Section II discusses the essential elements of “taking a consenting part” as a sui generis omission-based mode of participation. Finally, using Hadžihasanović at the ICTY as a case study, Section III asks whether international criminal law would be better off if it rediscovered “taking a consenting part” in an international crime.

As always, comments welcome!

Trump Advocates World War III

by Kevin Jon Heller

I know pointing out stupid things Donald Trump says is a fool’s errand — pretty much everything Donald Trump says is stupid. (Note to non-hack conservative friends: I genuinely feel sorry for you.) But I’m struck by how little attention pundits have paid to this gem:

I think that once the nuclear alternative happens, it’s over. At the same time, we have to be prepared. I can’t take anything off the table.Because you look at some of these countries, you look at North Korea, we’re doing nothing there. China should solve that problem for us. China should go into North Korea. China is totally powerful as it relates to North Korea.

There are, shall we say, a couple of problems with this suggestion. First, Trump is openly advocating China invading North Korea without provocation. You don’t have to be a Kim Jong-un apologist to suggest that international law might look rather unkindly at that. Second, although China is no doubt “totally powerful” compared to North Korea, North Korea has something of an equalizer — nuclear weapons. (The topic Trump had been asked to discuss.) Does anyone doubt that Kim Jong-un would use them against China if, as Trump wants, China tried to wipe North Korea off the face of the earth?

PS: I’m being good and not pointing out that Trump was openly advocating genocide…

The Guardian’s Remarkable Lack of Concern for Accuracy

by Kevin Jon Heller

I love the Guardian. It’s generally a great paper. But its unwillingness to correct even the most basic mistakes constantly amazes me. In an otherwise interesting article about the ICC and environmental crimes, John Vidal and Owen Bowcott — the Guardian‘s environment editor and legal affairs correspondent, respectively — say this (emphasis mine):

The ICC can take action if the crime happens in any of the 139 countries that have signed up to the Rome Statute, if the perpetrator originates from one of these countries, or if the UN security council refers a case to it. Crimes must have taken place after the Rome statue came into force on 1 July 2002.

This is just wrong. Unequivocally wrong. 139 states have signed the Rome Statute, but only 124 have ratified or acceded to it. The ICC has territorial and active-nationality jurisdiction only over the latter.

I tweeted the correction to John Vidal. He’s ignored it — for reasons that are beyond me, given that it would take a web editor 10 seconds to correct. But perhaps Owen Bowcott is to blame: a few years ago he not only refused to correct his blatant mistake concerning the ICTY’s holding in Perisic regarding specific direction, he repeated his mistake in a later article on Charles Taylor.

New Essay: What Is an International Crime? (A Revisionist History)

by Kevin Jon Heller

I have posted the essay on SSRN. Here is the abstract:

The question “what is an international crime?” has two aspects. First, it asks us to identify which acts qualify as international crimes. Second, and more fundamentally, it asks us to identify what is distinctive about an international crime – what makes an international crime different from a transnational crime or an ordinary domestic crime.

Considerable disagreement exists concerning the first issue, particularly with regard to whether torture and terrorism should be considered international crimes. But nearly all states, international tribunals, and ICL scholars take the same position concerning the second issue: an act qualifies as an international crime if – and only if – that act is universally criminal under international law. The international-law aspect of the definition distinguishes an international crime from a domestic crime: although some acts that qualify as domestic crimes are universally criminal – murder, for example – their universality derives not from international law, but from the fact that every state in the world has independently decided to criminalize them. The universality aspect of the definition, in turn, distinguishes an international crime from a transnational crime: although a transnational crime such as drug trafficking involves an act that international law deems criminal through a suppression convention, international law does not deem the prohibited act universally criminal, because a suppression convention does not bind states that decline to ratify it.

This definition of an international crime, however, leads to an obvious question: how exactly does an act become universally criminal under international law? Two very different answers are possible – and the goal of this article is to adjudicate between them. The first answer, what I call the “direct criminalization thesis” (DCT), is that certain acts are universally criminal because they are directly criminalized by international law itself, regardless of whether states criminalize them. Nearly every modern ICL scholar takes this position, as does the ILC.

The second answer, what I call the “national criminalization thesis” (NCT), rejects the idea that international law bypasses domestic law by directly criminalizing particular acts. According to the NCT, certain acts are universally criminal under international law – and thus qualify as true international crimes – because international law obligates every state in the world to criminalize and prosecute them. No modern ICL scholar has taken this approach, although intimations of it date back to Grotius.

Which thesis is correct? This article argues that it depends on whether we adopt a naturalist or positivist approach to international law. Although every international criminal tribunal has insisted that international crimes are positivist, not naturalist, phenomena, no extant theory of positivism – not even so-called “instant custom” – is capable of justifying the idea that certain acts are directly criminalized by international law. On the contrary: if we take positivism seriously, the NCT provides the only coherent explanation of how international law can deem certain acts to be universally criminal. Maintaining fidelity to the DCT, therefore, requires rejecting positivism in favour of naturalism – with all of naturalism’s inherent limitations.

I have given a number of talks on this topic over the past couple of years, and my positivist critique of direct criminalisation has always proved controversial. The argument in the essay has evolved substantially, but I doubt it will be any more popular. I still continue to be surprised that, with the exception of a somewhat skeptical Roger O’Keefe, no scholar and no court has ever attempted to provide a comprehensive defence of the idea that certain acts (international crimes) are directly criminalised by international law. The idea is simply taken for granted based on a single statement in the IMT judgment and on the work of the International Law Commission. Indeed, as I try to show, direct criminalisation seems to be little more than an article of faith — a naturalist artifact that has proven very useful for the ICL project, which is predicated on the superiority of international law over domestic law. Indeed, my suspicion, merely noted in the essay, is that ICL is inherently naturalist, at least in the form that has the kind of sovereignty-limiting muscle its acolytes believe it should have.

The essay is very long — 30,000 words, nearly 400 footnotes. I’ve submitted it for consideration by AJIL, but I am sure I will revise it substantially before it is ultimately published there or somewhere else. So comments and criticisms are, as always, most welcome.

Human Rights Hypocrisy — Special Rapporteur for Torture Edition

by Kevin Jon Heller

PassBlue published a very disturbing article yesterday about nominations for five vacant UN Special Rapporteur positions. According to the article, although the President of the Human Rights Council, South Korea’s Choi Kyonglim, has endorsed four of the selection committee’s five first choices, he has refused to endorse its first choice for Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Karim Khan QC, in favour of the committee’s second choice, Nils Melzer. There is no question Melzer is a wonderful choice — he’s an accomplished scholar, has vast practical experience with the ICRC, and is a great person. The article suggests, however, that there may be a darker reason for Choi not endorsing Khan — Khan’s defence work at various international tribunals:

Khan has worked in the prosecutor’s office of the international criminal tribunals for the former Yugoslavia and Rwanda, two courts created to try perpetrators of grave crimes in the Yugoslav wars and Rwandan genocide of the 1990s. He has also represented victims in the Extraordinary Chambers of the Courts of Cambodia formed to prosecute culprits of the Cambodian genocide of the late 1970s.

Khan also has a rich history of defending suspects of mass atrocity crimes. His current clients include William S. Ruto, deputy president of Kenya, who until April was on trial at the International Criminal Court in The Hague, charged with crimes against humanity. Khan has also worked on the defense of Jean-Pierre Bemba, a former vice president of the Democratic Republic of the Congo. In June, Bemba was found guilty by the court of war crimes and crimes against humanity.

One academic critic, based in Britain, who spoke on condition of anonymity, said that Khan had not showed enough dedication to protecting victims, given his defense of alleged criminals. This work, the person said, could clash with Khan’s role as special rapporteur if he had been nominated by the council president, should accusations be made against Ruto or other potential clients of his. (The Ruto case was vacated because of witness interference, but could be reopened if new evidence surfaces.)

In his application for the UN role, Khan wrote that “having acted for all sides in cases where torture is alleged, not only helps demonstrate my independence and ability to be impartial, but I believe that it can lend additional credibility to my role as Special Rapporteur.”

The case involving Ruto was deeply marred by witness intimidation, according to Fatou Bensouda, the chief prosecutor of the International Criminal Court, and judges who heard the case. Fergal Gaynor, who represents victims in the court’s case against Uhuru M. Kenyatta, the president of Kenya, has also questioned the extent of Khan’s commitment to justice for victims of violence.

“Bribery and intimidation of witnesses can and does collapse legitimate cases,” he said. “It is fair to question whether Mr. Khan appreciates how interference with witnesses can completely deprive torture victims of the ability to know the truth about the crimes committed against them, to have the wrongfulness of the torture publicly acknowledged, and to receive fair compensation for that torture.”

In an interview in 2014, Khan said of witness problems in the case, “I’m not sure witnesses have been and are being intimidated in this case. As I said, I have prosecuted and defended and represented the victims, and every single case I’ve been involved in has been headlined by ‘This is unprecedented witness intimidation’ and ‘unprecedented’ this and that.”

John Washburn, convener of the American Non-Governmental Organizations Coalition for the International Criminal Court, based at Columbia University, said the issue was “whether Khan’s actions as Ruto’s defense counsel displayed values and judgments that reflect on his suitability as rapporteur.”

The article is careful to avoid directly attributing these ideas to Choi. But given that Khan is the only first-choice candidate Choi has refused to endorse, it seems highly likely that Khan’s defence work is the reason. If so, that’s shocking. Defending individuals accused of serious international crimes is not inconsistent with human-rights work — it is human-rights work. It’s not an accident that Art. 14 of the ICCPR protects a defendant’s right to a fair trial. After all, show trials are a hallmark of repressive states, from Bangladesh to the United States.

This should be Human Rights 101. For some reason, though, the same “human-rights activists” who condemn unfair domestic criminal trials — special courts in Bangladesh and military commissions in the United States alike — fall silent when it comes to international trials. The tacit assumption — which should embarrass anyone who claims to care about human rights — is that an effective defence is unnecessary at international trials, because investigators always do a good job, the OTP is always motivated by a profound love of justice, judges are always infallible, and defendants are always guilty. All of those things are sometimes true. Perhaps even usually true. But not always. Sometimes an international tribunal doesn’t do its job and an innocent person is prosecuted. And it is precisely the job of skilled advocates like Khan to make sure those defendants are not convicted — or convicted only for crimes they actually committed.

I would say this about any defence attorney. (And of course I’m biased, having been one myself.) But it’s particularly appalling that Khan would be vilified for doing his job — anonymously, of course, because the British academic quoted above is a coward who wants to ensure his slander has no professional consequences. (As if anyone really cares what we academics think!) Khan has a sterling reputation as a defence attorney, no matter how contentious some of his trials might have been. I have never seen anyone claim — nor is there even the slightest evidence — that Khan was involved in the Kenyan government’s misconduct in Ruto. And I say that despite being completely convinced that the Kenyan government did, in fact, commit serious misconduct. The comments by Gaynor and Washburn are thus completely misplaced — and all too typical of the tendency, possessed by people who should know better, to conveniently forget that the right to a defence is a human right. But at least Gaynor and Washburn have the courage to attach their names to their opinions!

Finally, although it shouldn’t matter, it is worth remembering — as the article points out, to its credit — that Khan had a distinguished career as an international prosecutor before moving to the other side of the courtroom. He even has experience representing victims. Does he suddenly forget the importance of victims whenever he is retained to act for a defendant? Or does he simply understand that the rights of defendants are no less important than the rights of the other parties to a criminal trial?

I have no doubt Melzer, whom I’ve had the pleasure to know for more than a decade and think the world of, will make an excellent Special Rapporteur. But Khan would have made a great one, as well — and we are left to simply speculate how skilled Khan would have been at convincing states to cooperate with him, given his rich experience defending senior government officials. I hope, despite how it appears, that Choi preferred Melzer for reasons other than Khan’s work as a defence attorney. But if that is why he bypassed Khan, anyone who cares about human rights — all human rights — should be appalled.

The International Criminal Court at 14

by Shehzad Charania

[Shehzad Charania was the Legal Adviser and Head of International Law at the British Embassy in The Hague between January 2013 and August 2016.  The views set out in this article are personal, and do not necessarily reflect the views of the British Embassy or the Foreign and Commonwealth Office.]

Earlier this year, the King of the Netherlands opened the new permanent premises of the International Criminal Court in The Hague, in a ceremony co-hosted by ICC President Silvia Fernandez and the President of the Assembly of States Parties Senegalese Justice Minister Sidiki Kaba.  The Secretary General of the United Nations Ban Ki-Moon also attended, along with former ICC Presidents and Judges.

In his remarks, the Secretary General said that the inauguration was a “milestone in global efforts to promote and uphold human rights and the rule of law”.  The ASP President said that this was a “day of hope for all victims of mass crimes in the world”.  President Fernandez announced that the Court was “here to stay”.

But setting the rhetoric aside, how does the ICC’s report card look since it opened its doors 14 years ago?

The successes

Clearly, the ICC has come a long way since its establishment in 2002.  It has had notable successes.  The Prosecutor securing a first conviction against Thomas Lubanga was a significant step forward in bringing accountability for the recruitment and use of child soldiers; the second conviction saw the accused Germain Katanga apologise to his victims.  The conviction in March of former DRC Vice President Jean Pierre Bemba was the Court’s first for rape.  Earlier in March, the Court received its first guilty plea when Ahmad al-Faqi al-Mahdi admitted to the destruction of historical and religious monuments in Timbuktu.  And across all the cases, 25,000 victims are formally participating in ICC proceedings, with over 180,000 beneficiaries of assistance through the ICC’s Trust Fund for Victims.

The setbacks

But the Court’s successes have arguably been overshadowed by a series of high-profile setbacks. For the Office of the Prosecutor, the most notable have been in Kenya, where the Prosecutor’s six attempted prosecutions for the 2007-08 post-election violence have all ended in failure, the final case against Kenyan Deputy President William Ruto collapsing in April.  Last year, the Prosecutor had to withdraw similar charges against President Kenyatta.  In the ruling in the case against the Deputy President, the majority referred to witness intimidation and, in the words of the Presiding Judge, “political meddling”.  But there have also been highly critical judicial decisions regarding the quality of the prosecution’s investigations and evidence across all the Kenyan cases.

The challenges

The Court’s current challenges are stark.  Yet it is important to note that many of these are primarily for its Member States rather than the institution to address.  But failure to deal with them reflects on the effectiveness, legitimacy and credibility of the ICC itself.  Here are some.

First, all the cases and eight of the nine investigations at the ICC are African, leading to accusations of racism and neo-colonialism, and questions around the Court’s legitimacy.  Admittedly, the majority of the Court’s situations were referred to the Prosecutor by African countries themselves.  But the Prosecutor has faced criticism about the fact that in those same situations there have been indictments only of opposition figures, opening up the Court to further accusations of partial justice, and allowing the ICC to be used for political ends.

Second, the absence of the US, Russia, China and India means that there will always be a question mark over the ICC’s relevance.  More urgently, the Court does not have jurisdiction over the worst crimes taking place in the world today: neither Syria nor Iraq are members of the Court, and Russia and China have vetoed a UN Security Council resolution allowing the ICC to step in on Syria.

Third, inadequate State cooperation remains the biggest obstacle to progress.  Just a few months ago, the ICC’s Pre-Trial Chamber made findings of non-cooperation against Djibouti and Uganda for not arresting Sudan’s President Omar Al-Bashir, in line with their legal obligation under the Rome Statute, when he stepped onto their territory.  And the cases against the Kenyan President and Deputy President, as well as the ongoing investigations into crimes committed in Cote d’Ivoire in 2012, have starkly posed the question of how the Court can prosecute serving high-ranking State officials when it needs the assistance of authorities in those very States to do so effectively.

Fourth, witness tampering is becoming an increasing part of the Court’s workload, diverting precious resources from the investigation and prosecution of the most serious crimes the ICC was set up to deal with.  The Court’s most expensive trial in 2016 was such a case.

Fifth, it takes years to administer international justice in a single case, in part due to the complexity of the crimes involved.  The current timescales could be reduced through more efficient procedures, and this is the ICC President’s top priority.  But these cases will never be as fast as simpler, domestic cases.  Many survivors will die before they see accountability.

Finally, international justice costs money.  And as States begin negotiations on the 2017 budget, they understand that unlike other international organisations they cannot tell the institution what to do – which investigation to open, who to pursue, and who to convict or acquit.  The Court must use States Parties’ own money to pursue individuals in those same States, sometime the heads of those States.  That’s part of the “price” of international justice.

The future

The ICC, therefore, faces an uphill task, not made easier by what is potentially on the horizon.  The Court is already investigating Russian and Georgian actions during the 2008 armed conflict.  And it is conducting preliminary examinations outside Africa – which could lead to full investigations and therefore indictments – in situations relating to: Ukraine, where the Prosecutor is likely to be examining allegations against Russia following the annexation of Crimea; Afghanistan, where amongst other things allegations of detainee abuse by US officials are being considered; possible war crimes by all sides in the Occupied Palestinian Territories; and of course Iraq. In addition, within the next couple of years, the Court is likely to have jurisdiction over the crime of aggression, opening up a whole new political dimension to the ICC’s work.

But for countries such as the UK which attaches serious importance to the rules based international system, the test of its commitment is about seeing institutions such as the ICC through both the good and the bad times. That means ensuring full cooperation, resisting threats to its independence, speaking up for the Court when it is under attack, and all while continuing to push for serious institutional reform.

More than ever, the ICC needs its friends, in particular States Parties and NGOs, to be constructive critics. At the same time, after only 14 years of existence, we should not be surprised that there is more to do within an institution designed to hold the most powerful individuals to account. Instead of lamenting the fact that the ICC is not perfect, we should celebrate the fact that the Court exists at all, and that it is ready and willing to meet the challenges head on.

Self-Aggrandizement Alert: Two New Publications

by Kevin Jon Heller

I’m delighted to announce the publication of two new essays. The first is “The Use and Abuse of Analogy in IHL,” which is a chapter in Jens’s edited book for CUP, “Theoretical Boundaries of Armed Conflict and Human Rights.”


I’m very proud of the essay — and all of the contributions to the book are excellent.

The second publication is my article “Radical Complementarity,” which has just appeared in the Journal of International Criminal Justice. Here is the abstract:

In March 2015, a domestic court in Côte d’Ivoire sentenced Simone Gbagbo to 20 years in prison for disturbing the peace, organizing armed gangs and undermining state security — a sentence considerably longer than any sentence imposed by the International Criminal Court (ICC) and twice as long as the Ivorian prosecutors requested. The Court has nevertheless held that Gbagbo’s case remains admissible, because her domestic prosecution was not based on the same conduct as the conduct underlying the crimes against humanity charges issued by the Office of the Prosecutor. This article argues that the Court’s decision in Simone Gbagbois inconsistent with the principle of complementarity. Section 1 criticizes the Court’s jurisprudence concerning Article 17’s ‘same person’ requirement, arguing that the test the judges use to determine whether a state is investigating a particular suspect is both inconsistent with the ICC Statute and far too restrictive in practice. Section 2 explains why the ‘same conduct’ requirement is antithetical to the goals underlying complementarity and should be rejected as a matter of law. The article thus defends what we might call ‘radical complementarity’: the idea that as long as a state is making a genuine effort to bring a suspect to justice, the ICC should find his or her case inadmissible regardless of the conduct the state investigates or the prosecutorial strategy the state pursues.

The published version differs substantially from the one I posted a while back on SSRN. You can find the article here.

How Not to Lie Convincingly About the ICC

by Kevin Jon Heller

Did you hear the one about Judge de Gurmendi, the President of the ICC, taking bribes for from 2004 on to ensure Omar al-Bashir’s indictment?

The president of the International Criminal Court (ICC) is facing calls to resign after it emerged that she may have received financial rewards said to be in millions of dollars to ensure the indictment of Sudanese President Omar al Bashir.

Information reaching The London Evening Post here say that between 2004 and 2015, Argentinian-born ICC President Judge Silvia Alejandra Fernández de Gurmendi allegedly received into her private bank accounts at Banco Popular in the Virgin Islands, the First Caribbean Bank in the Bahamas and the Congregation B’nai Israel unexplained funds mounting to over US$17million that was allegedly used to bribe witnesses that enabled the ICC to indict the Sudanese leader.

The funds are alleged to have been channelled through Judge de Gurmendi’s accounts by Barting Holding Ltd, Atlantic Corporation, Genesis International Holdings and Napex International, all of which are offshore financial companies, who allegedly made wire transfers ranging from US$150,000-US$250,000 to the judge’s bank accounts. It is alleged that these funds were made available to Judge de Gurmendi during the time that President Bashir was under investigation and the ICC was looking for evidence to indict him.

It has been further alleged that funds channelled through Judge de Gurmendi’s accounts were allegedly distributed by her to groups in Darfur including the Sudan Liberation Movement, formerly the Darfur Liberation Front founded by Abdul Wahid al Nur and others in 2002. Appointed ICC President in March last year, de Gurmendi is alleged to have used the funds to ‘recruit, coach and fake evidence and witnesses to testify against President Bashir’.

You have to admire the skill of the bribers. Judge de Gurmendi didn’t become a judge at the ICC until 2010 — long after the first arrest warrant for al-Bashir was issued.

NOTE: Judge de Gurmendi was the head of the Jurisdiction, Complementarity, and Cooperation Division in the OTP from 2003-2006. But nearly four years passed from the end of her tenure to the issuance of the first arrest warrant for Bashir. So my sarcasm above stands.

Is the Requirement That Crimes Against Humanity Be Committed Against a “Civilian Population” Really Necessary?

by Joanna Nicholson

[Dr. Joanna Nicholson is a Researcher at PluriCourts – Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order at the University of Oslo.]

For a crime to amount to a crime against humanity, it must be shown to have been part of a bigger picture, namely part of a widespread or systematic attack against a civilian population. The requirement that an attack be against a “civilian population” has created some uncertainty as to whether persons who are hors de combat can be victims of the crime.

Case law is peppered with discussion as to whether those who are hors de combat are “civilians” or constitute members of the “civilian population” for the purposes of crimes against humanity. Careful examination of this jurisprudence reveals that international criminal courts and tribunals, particularly the ad hoc tribunals, have taken different approaches to this issue.

The International Criminal Tribunal for the former Yugoslavia’s (ICTY) case law has taken a meandering path. Some cases have endeavoured to include those who are hors de combat within the notion of “civilian” (see for example, Kordić and Čerkez (.pdf), para. 421), whereas others have sought to include them within the notion of “civilian population” (see, for example, Naletilić and Martinović(.pdf), para. 235). The issue was ultimately resolved by the ICTY Appeals Chamber in two cases: Martić (.pdf) and Mrškić (.pdf). The Trial Chambers in both cases (rightly) held that persons hors de combat are not civilian for the purposes of Article 5 of the ICTY Statute (the provision of the Statute concerning crimes against humanity). This was confirmed on appeal. However, both Appeals Chambers held that the chapeau requirement of Article 5 does not require that the individual criminal acts be committed against civilians, but rather that it serves to emphasise the collective nature of the crime. Thus, providing the chapeau requirement is fulfilled, and that there has been a widespread and systematic attack against a civilian population, individual victims who are hors de combat can be victims of the crime (Martić Appeal Judgment paras 303-314; Mrškić Appeal Judgment, para. 33).

The International Criminal Tribunal for Rwanda (ICTR) has taken a different approach. In Akayesu (.pdf), the Trial Chamber found that persons hors de combat are members of the civilian population for the purposes of crimes against humanity.  This finding was followed, with zero to minimal discussion, in subsequent cases before the tribunal.

The different approaches of the ad hoc tribunals on this matter can lead to very different outcomes. Adopting the ICTY’s approach means that an attack directed purely against persons hors de combat does not amount to a crime against humanity. Indeed, this was found to have been the case in Mrškić, where the attack had been solely against the persons who were hors de combat and did not form part of a wider attack against a civilian population. The Appeals Chamber held that the attack did not therefore amount to a crime against humanity.

Following the ICTR’s approach, on the other hand, would mean that persons hors de combat are included within the notion of “civilian population” and constitute victims of the crime even if the attack is only against them.  Thus, the persons hors de combat in the Mrškić case would have been eligible victims of the crime.

If one weighs up the two different approaches, the ICTY’s presents itself as being the most logical and thoroughly considered. Nevertheless, it leaves a certain amount of dissatisfaction, and it makes one wonder whether there is a need for a “civilian population” element within the definition of crimes against humanity at all.

As it stands at the moment, following the ICTY approach at least, the civilian population requirement means that attacks that are purely against persons hors de combat cannot amount to crimes against humanity. Certainly, such acts could be prosecuted as war crimes, as indeed happened in the Mrškić case, but this fails to adequately reflect the gravity of the offence, and ignores the symbolic nature that a charge of crimes against humanity has.

The reference to “civilian population” does help to emphasise the collective nature of the crime, but this is arguably adequately reflected in the “widespread or systematic attack” element.  Future definitions of the crime could omit reference to a “civilian” population in the chapeau requirement, replacing it with “population.” Naturally, any court interpreting the chapeau requirement would have to bear IHL in mind and ensure that legitimate attacks against military personnel were not erroneously found to be crimes against humanity.

The “civilian population” requirement should no longer be considered a necessary element to find an act is a crime against humanity. Discarding the civilian population” requirement would mean that attacks that are purely against persons hors de combat can be prosecuted as crimes against humanity and can receive the recognition they deserve.

Implications of the 30th Ratification of the International Criminal Court’s Crime of Aggression Amendment by Palestine

by Jennifer Trahan

[Jennifer Trahan is Associate Clinical Professor, at The Center for Global Affairs, NYU-SPS, and Chair of the American Branch of the International Law Association’s International Criminal Court Committee. The views expressed are those of the author.]

A significant event happened quietly at the UN on June 27: Palestine deposited the thirtieth instrument of ratification of the International Criminal Court’s crime of aggression amendment, with 30 ratifications being the required number for activation. However, one more vote to activate the amendment, to occur after January 1, 2017, is required by the ICC’s Assembly of States Parties for the ICC to be able to exercise jurisdiction. Thus, Palestine’s deposit did not cause the amendment to become operational, although it brought it a step closer to the activation vote planned for December 2017.

There may be some confusion on the meaning of Palestinian ratification among those not steeped in the jurisdictional nuances of the crime of aggression amendment negotiated in 2010 in Kampala, Uganda. Although one might think that this is all about the Palestinians trying to create jurisdiction over Israel vis-à-vis the crime of aggression, that is not how it will work.

The crime of aggression amendment has a different jurisdictional regime than what currently exists under the ICC’s Rome Statute concerning the crimes of genocide, war crimes and crimes against humanity. If a national of a non-State Party (e.g., Israel) commits any of those crimes in the territory of a State Party, there would be ICC jurisdiction.

The crime of aggression amendment — whether for good or ill (depending on one’s perspective) —per 15bis(5) keeps crimes committed on the territory of, or by the nationals of, non-States Parties entirely out of its jurisdiction for purposes of State Party and proprio motu referrals (article 15bis). This means that Israeli nationals or crimes committed on Israeli territory will be outside the ICC’s crime of aggression jurisdiction. This then has a bizarre consequence here – that Palestine can ratify the crime of aggression amendment, not “opt out” of jurisdiction (something a State Party can also do per 15bis(4)), and, even after the crime activates, the ICC still could not prosecute Palestinian nationals who commit aggression against Israel, since Israel is a non-State Party. A Handbook compiled by some of the Kampala drafters clearly states: “Non-States Parties are thus excluded both as potential aggressor and victim States.” The crime of aggression amendment thus has significant jurisdictional loop-holes, and will create quite a narrow jurisdictional regime, even once activated. Stated more positively, it creates a consensual regime.

While activation also will activate ICC jurisdiction if the U.N. Security Council makes referrals (under article 15ter), it is considered unlikely that the US would permit alleged Israeli aggression to be referred.

So, the 30th ratification brings the world one step closer to having crime of aggression jurisdiction activated before the ICC, but it does not have direct ramifications for Israel – whether that was the Palestinian goal or not.

At this point, the reader may well wonder – is this Kampala amendment worthwhile with all these jurisdictional loopholes? I will argue it is: activation of the crime will undoubtedly cause states to take pause and ponder more seriously the potential consequences of starting an illegal war, and this is a good thing – even if ICC jurisdiction will not cover the specific case in question; also, states may implement the amendment into their domestic laws, and that may create jurisdiction – giving further pause to states inclined to commence an illegal war. The goal of course is not to generate ICC cases, but to influence state behavior positively.

The crime of aggression, of course, is hardly a novel concept. It criminalizes what is already illegal under article 2(4) of the U.N. Charter, and is similar in concept to the prosecutions of the International Military Tribunal at Nuremberg, which prosecuted war of aggression. In fact, states were working already over 100 years ago on this concept, when in 1913 they founded the “Peace Palace” in The Hague, Netherlands — in an attempt to have states litigate and arbitrate over issues of war, rather than go to war.

A few states have concerns about activation — the US for example, although it too as a non-State Party is exempt from jurisdiction vis-à-vis its nationals and crimes on its territory. Yet, the process is proceeding, with the 30 ratifications accomplished, and several other States Parties in the process of ratifying the amendment. US concern that humanitarian intervention would be criminalized may be something of a “red herring” – first, the US does not appear to have any clear and consistent policy of humanitarian intervention (for instance, as the UK has) and second, because, as at least most scholars seem to agree, humanitarian intervention would not be covered by the crime, as it would not constitute a “manifest” Charter violation. (The crime has a significant “threshold” in requiring that there be a “manifest” Charter violation [.pdf]; this means that only very serious cases that are unambiguously illegal , could be prosecuted.) The crime of aggression, in these ways, is rather conservative — having both jurisdictional loopholes and this high threshold.

There is still a chance, that, at some point, the ICC judges will find that Palestine is not a “state,” and thus was incapable of ratifying the Rome Statute, and similarly incapable of ratifying the crime of aggression amendment. (Judges always have jurisdiction to review their own jurisdiction – so regardless of the UN’s acceptance of the instruments of ratification, the ICC Judges could view the issue differently.) This would have little impact on the process of activating the crime, since several ratifications are in the pipeline, and will undoubtedly happen prior to December 2016. (There must be a year’s delay after the 30th ratification, for activation, along with the ASP vote).

Overall, while the Palestinians may have hoped to make a strong political statement, what the ICC crime of aggression tries to do is take the issue of aggression more out of the political process and into judicial hands. How one feels about this may depend on one’s confidence in the ICC, which, despite some setbacks, has gradually been proving itself to be a responsible, judicial institution, warranting confidence and support.

Mark Kersten’s New Book on the ICC

by Kevin Jon Heller

I am delighted to announce that OUP has just published Mark Kersten’s new bookJustice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace. Here is the press’s description:

What happens when the international community simultaneously pursues peace and justice in response to ongoing conflicts? What are the effects of interventions by the International Criminal Court (ICC) on the wars in which the institution intervenes? Is holding perpetrators of mass atrocities accountable a help or hindrance to conflict resolution? This book offers an in-depth examination of the effects of interventions by the ICC on peace, justice and conflict processes. The ‘peace versus justice’ debate, wherein it is argued that the ICC has either positive or negative effects on ‘peace’, has spawned in response to the Court’s propensity to intervene in conflicts as they still rage. This book is a response to, and a critical engagement with, this debate.

Building on theoretical and analytical insights from the fields of conflict and peace studies, conflict resolution, and negotiation theory, the book develops a novel analytical framework to study the Court’s effects on peace, justice, and conflict processes. This framework is applied to two cases: Libya and northern Uganda. Drawing on extensive fieldwork, the core of the book examines the empirical effects of the ICC on each case. The book also examines why the ICC has the effects that it does, delineating the relationship between the interests of states that refer situations to the Court and the ICC’s institutional interests, arguing that the negotiation of these interests determines which side of a conflict the ICC targets and thus its effects on peace, justice, and conflict processes.

While the effects of the ICC’s interventions are ultimately and inevitably mixed, the book makes a unique contribution to the empirical record on ICC interventions and presents a novel and sophisticated means of studying, analyzing, and understanding the effects of the Court’s interventions in Libya, northern Uganda – and beyond.

I’ve been following (and promoting) Mark’s work for a long time — since he was a PhD student at the LSE and had just started the blog Justice in Conflict. The blog has turned into a major player in the world of international criminal law, and I have no doubt that Mark’s book will have a significant impact on the field, as well. I’ve had the pleasure of reading it, and it’s excellent.

Buy Kersten! You’ll learn something and help better society, because Mark says that “OUP has agreed to make up to 200 copies of the book available, with all royalties I earn from sales of the book being used to pay for those copies to be shipped to libraries and universities across Africa, especially to those in ICC-affected countries.”