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International Criminal Law

Why Art. 4(h) of the AU’s Constitutive Act Does Not Support UHI

by Kevin Jon Heller

I like much of what Jennifer Trahan says in her recent post about the permanent veto. But I would take issue — unsurprisingly — with her claim that “there is in fact more past precedent for reliance on the doctrine of humanitarian intervention than is often recognized, including not only NATO’s 1999 intervention in Kosovo, but also African and Arab practice.” There is no need to belabour the Kosovo argument, which I have already criticised in my response to Harold Koh. Instead, I want to focus in this post on the idea that African practice provides support for a customary right to unilateral humanitarian intervention (UHI). That idea seems to be popping up with more regularity these days, as those who believe UHI should be legal cast about for a plausible argument to that effect. Marc Weller, for example, recently made a similar claim in his intemperate response to Marko Milanovic’s recent post at EJIL: Talk! on the illegality of the Syria attack:

Moreover, the African Union has in fact formally committed itself to the doctrine in its own constitutive treaties–an act that destroys the presumption that the use of force for humanitarian purposes would necessarily violate the prohibition of the use of force.

Weller is referring to Art. 4(h) of the Constitutive Act of the African Union, which has been ratified by all 53 African states have signed the Act. Art. 4(h) permits the AU’s Assembly of Heads of State and Government of the Union to authorise the use of force against a Member State that is responsible for the commission of international crimes:

The Union shall function in accordance with the following principles… (h) the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity.

Properly understood, however, Art. 4(h) of the Constitutive Act provides no support whatsoever for the legality of UHI. To see why, it is useful to begin by explaining why the case for a customary rule permitting UHI is not supported by humanitarian uses of force authorised by the Security Council under Chapter VII of the UN Charter. The reason is straightforward: the essence of UHI is that the state being attacked does not consent to force being used on its territory, and all states consent to the possibility of the Security Council authorising the use of force on their territory when they ratify the Charter. The relevant provisions are Art. 24(1) and Art. 25:

Article 24

  1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

Article 25

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

Because of Art. 24(1) and Art. 25, humanitarian intervention authorised by the Security Council under Chapter VII is by definition legally consensual — even if the state being attacked is politically opposed to the use of force on its territory.

For similar reasons, humanitarian intervention authorised by the AU’s Assembly of Heads of State and Government of the Union pursuant to Art. 4(h) of the Constitutive Act cannot be non-consensual. By ratifying the Constitutive Act, all AU members have empowered the Assembly to authorise the use force on their territory to stop the commission of international crimes. They may not like that use of force, but they have consented to it.

Humanitarian intervention authorised by the AU, therefore, no more supports the customary legality of UHI than humanitarian intervention authorised by the Security Council. In each case, the use of force in question is authorised by a supranational organisation acting on the basis of the consent of the parties that have ratified its founding treaty. That is the antithesis of the nonconsensual use of force — the constitutive feature of UHI.

A Letter to Israel About Its Plans to Forcibly Deport Africans

by Kevin Jon Heller

Opinio Juris readers might be interested in this letter from GLAN Legal — the Global Legal Action Network — to the Presidents and Attorneys General of Israel and Uganda. It was written by Itamar Mann, Yannis Kalpouzos, and Omer Shatz, with input from me. Here is the introduction:

The Global Legal Action Network (GLAN) is an organization of lawyers initiating transnational human rights litigation around the world. Our focus is on cases in which “developed” countries are responsible for violations occurring in “developing” countries. We write to respectfully warn both Israel and Uganda that the forcible deportation plan currently being discussed for Eritrean and Sudanese asylum seekers living in Israel may amount to a crime within the jurisdiction of the International Criminal Court (ICC).

The letter then proceeds to lay out the basics of the argument — which seems pretty unimpeachable to me. Note the reliance on the OPT’s recent argument concerning deportation from Myanmar to Bangladesh!

The Departed: Implications of the Philippines’ Withdrawal from the ICC

by Jennifer Tridgell

[Jennifer Tridgell is a Legal Intern at the International Criminal Court. She has previously worked at the Philippines Commission on Human Rights and the High Court of Hong Kong. The views expressed in this article are her own.]

On 19 March 2018, President Duterte withdrew the Philippines from the Rome Statute (“Statute”). This decision is disappointing, yet unsurprising. The President has repeatedly threatened to withdraw, and declared that the International Criminal Court (“Court”) is being used as a “political tool”. Earlier in 2018, Chief Prosecutor Bensouda opened a preliminary examination (“PE”) into whether the Philippine Government is responsible for alleged crimes against humanity committed in the “War on Drugs” from at least 1 July 2016 (“Situation in the Philippines”). To date, Human Rights Watch estimates that the bloody campaign has claimed over 12,000 lives.

In this post, I firstly examine whether the Philippines has withdrawn from the Statute. Secondly, I analyse the Government’s obligations to cooperate with the Court after its withdrawal, especially in relation to the PE. Finally, I consider why the PE into the Situation in the Philippines is strategically significant for the Court’s future and mandate to end impunity for international crimes.

Legal Requirements for Withdrawal

According to international law, the Philippines has withdrawn from the Statute. Under Article 127(1) of the Statute, a State party may withdraw via written notification to the Secretary-General of the United Nations (“UN”). At a minimum, the withdrawal shall “take effect one year after the date of receipt of the notification” (emphasis added). Burundi is the only nation to have effectively withdrawn from the Statute. Since President Duterte has given written notification to withdraw, it shall become effective on 19 March 2019.

Yet it is unclear whether President Duterte has the domestic power to withdraw unilaterally from the Statute. Before the Philippines ratified the Statute in 2011, at least two-thirds of Senators had to give their consent under Section 21, Article VII of the 1987 Constitution for the treaty to become “valid and effective”. This Constitution is silent on the treaty withdrawal process, and Senators have failed to pass a resolution on whether it also requires their consent. Therefore, the Supreme Court of the Philippines might be asked to determine if President Duterte has the power to withdraw. When South Africa tried to withdraw unilaterally from the Statute, this decision was revoked after the High Court ruled that it was “unconstitutional and invalid”. For this post, I assume that the Philippines has withdrawn from the Statute.

State Obligations to the Court

Legal Framework

Article 127(2) of the Statute determines the Philippines’ obligations to the Court after its withdrawal. It seeks to prevent States from using withdrawal to avoid jurisdiction, once they are under scrutiny from the Court (Klamberg, p. 757), by giving effect to Article 70(1)(b) of the Vienna Convention on the Law of Treaties, which stipulates that the termination of a treaty “[d]oes not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination”. Article 127(2) states that:

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 (emphasis added).

This Article provides that a State party may have two ongoing obligations after its withdrawal, which I analyse below in relation to the PE into the Situation in the Philippines respectively. Firstly, a State party must cooperate with “criminal investigations and proceedings” which were commenced prior to the date of the effective withdrawal. PEs are probably excluded as they precede criminal investigations. Although it does not state when an investigation commences, the Pre-Trial Chamber (“PTC”) concludes that an investigation clearly has commenced with the decision to authorise it (para. 26). Thus, it is expected that the Office of the Prosecutor (“OTP”) will move quickly so that the Court may authorise a formal investigation into the Situation in the Philippines before 19 March 2019.

The Court took this approach for the Situation in Burundi. Only two days before Burundi’s withdrawal became effective, the PTC authorised a formal investigation under Article 15 of the Statute. While Burundi gave notice of withdrawal shortly after the OTP requested authorisation of this investigation, the Philippines gave its notification just after the OTP opened a PE. Consequently, the OTP is under considerable pressure to conduct this PE, then request and possibly receive the Court’s authorisation for an investigation within one year.

Secondly, a State shall not prejudice the consideration of “any matter” under consideration “by the Court” that was commenced before its withdrawal becomes effective. The meaning of this section is ambiguous. Does a “matter” include consideration of any situation or case? Does “the Court” refer to Chambers or does it encompass the OTP? Schabas (p. 1536) postulates that an expansive interpretation might find that “any matter” is before “the Court” when the OTP is “considering” applying to the PTC for authorisation of an investigation under Article 15 of the Statute.

However, I agree with Kevin Jon Heller that the better view is that a situation is only “under consideration” by the Court once the OTP has asked the PTC to authorise an investigation. I suggest that PEs may not constitute a “matter” before “the Court”. PEs are preliminary, informal processes with “no particular applicable legal framework and no direct legal consequences” (see Dov Jacobs). They are solely initiated by the OTP, which is one organ of the Court and may not embody “the Court”. Instead, “the Court” may refer to Chambers. For example, Article 95 of the Statute refers to Chambers when it uses the same phrase “under consideration by the Court”.

Furthermore, it does not befit the OTP’s role to unilaterally determine States’ obligations after their withdrawal. Amnesty International and Whiting argue for a broad interpretation of Article 127(2) of the Statute, so that States cannot prejudice consideration of PEs and thereby avoid the Court’s jurisdiction. The OTP has sweeping discretion to initiate any PE that is not “manifestly beyond” the Court’s jurisdiction, under Article 15 of the Statute. Yet this power is subject to checks and balances, including the need for the OTP to seek Court authorisation for an investigation in Article 15(3) of the Statute. Ultimately, the Philippines may not be obligated to cooperate with the PE into the Situation in the Philippines after its withdrawal, but it would be obligated under an investigation.

Practical Implications

All is not lost for victims in the Philippines. Regardless of whether or not the Court authorises an investigation before the date of effective withdrawal, the Philippines remains a State party until then. Therefore, the Court has jurisdiction over crimes within its jurisdiction that may have been committed in the Philippines or by nationals of the Philippines up to and including the date of effective withdrawal (see Burundi at para. 24). These crimes are also not subject to any statute of limitations (Article 29 of the Statute). Accordingly, the Court may authorise an investigation into the Situation in the Philippines or other alleged crimes within these limits at any time.

However, even if the Court approves an investigation before the date of effective withdrawal, the Philippines is unlikely to cooperate under Article 127(2) of the Statute. In fact, President Duterte has given express orders to the contrary. This does not diminish the importance of States respecting their obligations, but it follows that the OTP faces greater hurdles in carrying out its duty. Under a more amenable Government, the Philippines may freely choose to cooperate with the Court, even when it is not legally obliged to do so. For example, the Philippine Government has compensated victims under the Marcos dictatorship of the 1970s and 1980s.

Importance of the Preliminary Examination

The PE into the Situation in the Philippines is important for two reasons. Firstly, the Court may bolster its reputation as a truly international institution, because the PE is the first time that the Chief Prosecutor has set her sights on Asia. It is the most “underrepresented region” at the Court, with just 35% of States ratifying the Statute (Kim, p. 254), and abstentions from some of the world’s most populous nations, including China, India and Indonesia. The region with the next lowest rate of representation is Africa which, despite having a comparable number of States, has almost double the number of signatories as Asia (Kim, p. 254). With the global balance of power shifting to Asia, the OTP has made a strategic decision to initiate the PE in the Philippines and have a place in the region’s future.

By examining the Philippines, the OTP gains not only the opportunity to reshape Asia’s notoriously uneasy relationship with the Court (generally, see Chesterman, Sperfeldt and Palmer and Schuldt), but also to address criticism that the Court is inappropriately targeting African nations. Recently, the OTP has focused further afield with PEs into the Situations in Ukraine, Iraq/UK and Venezuela, amongst others.

Secondly, the PE in the Philippines may help to deter bloody anti-drug campaigns around the world. The OTP has placed the War on Drugs in the global spotlight, which may put pressure on the Philippines to reconsider its policies. However, South-East Asia is notorious for the world’s harshest drug penalties and their high popular support. Over 18 months into the War on Drugs, President Duterte still enjoys 80 percent approval ratings. Perhaps “inspired” by Duterte, Indonesia’s President Widodo has ramped up anti-drug rhetoric and called for police to shoot drug offenders. Whenever there are executions of drug traffickers, President Widodo’s approval ratings surge. These hard-line regional attitudes towards drug offences not only make it more difficult to encourage Filipino victims to come forward, but also to persuade nations to abandon their violent practices towards drug offenders.

Conclusion

In 1989, Trinidad and Tobago proposed the creation of an international criminal court to address drug trafficking. It is with a twinge of irony that the resulting Court will now be (rightly) used to seek justice for drug dealers and addicts who have been allegedly murdered in the War on Drugs.

The Philippines’ decision to withdraw from the Statute is disappointing and disturbing. Every day that President Duterte’s brutal campaign against drugs continues, the body count swells and impunity reigns. Thankfully, even if an investigation is not approved before the date of effective withdrawal and the Philippine Government refuses to cooperate, the Court will always have jurisdiction over these alleged crimes.

The Coming Attack on Syria Will Be Unlawful

by Kevin Jon Heller

You go to war with the President you have, not the President you wish you had.

We should keep that basic truth in mind as the US inches ever closer to war with Syria — and potentially with Russia, a far more terrifying possibility. Donald Trump does not care about civilians in Syria. He does not care about containing the spread of chemical or biological weapons. If he attacks Syria, it will be for one and only one reason: to distract attention from his collusion with Russia, his obstruction of justice, and his corruption. As Trump well knows, Americans love nothing more than high-def images of American bombs falling from the skies. No matter how many innocent civilians die (especially brown ones), an attack on Syria will give his approval ratings a healthy boost. That is all the motivation he needs.

That Trump will act with base motives does not mean, however, that an attack on Syria would be unlawful. Illegality has to be demonstrated, not assumed.

So let’s start with some basic principles. Syria is a sovereign state. Russia is using force on Syrian territory with the consent of the Syrian government. The US is not. To justify its use of force in Syria, therefore, the US would have to be acting in self-defence. If it was not acting in self-defence, it would be violating the jus cogens prohibition of the use of force that is enshrined in Art. 2(4) of the UN Charter.

With regard to its use of force in Syria against ISIS and other terrorist groups, the US at least has a plausible claim to individual and collective self-defence: the “unwilling or unable” doctrine. Readers know that I do not believe that “unwilling or unable” reflects customary international law. (For the most recent scholarly rejection of that idea, by Brunee & Toope, see here.) But the argument is not a frivolous one.

An attack directed at Syria itself, however, would be patently unlawful. Syria has never attacked US forces or interests. By contrast, the US has attacked Syria: in 2017, when it fired 59 cruise missiles at a government airfield in Shayrat; and in 2018, when it killed approximately 100 members of a pro-Assad militia who attacked a Syrian Democratic Forces headquarters. The US offered no legal justification whatsoever for the 2017 attack, and it claimed that the attack on the militia was “self-defence” — as if collective self-defence somehow permitted the US to come to the aid of a rebel group.

But that is the past. More importantly, there is no evidence — literally none — that Syria has any intention of attacking US forces. Not in the near future or in any future. If the US attacks Syria, therefore, it would not be acting in self-defence. Its attack would violate the jus cogens prohibition of the use of force. It would be, to use the accurate but loaded term, the aggressor.

And that would, of course, have two very important consequences — consequences you will not see discussed in the American media if and when the US attack begins. To begin with, Syria would have every right to use force to defend itself. It could shoot down American fighter planes. It could kill American soldiers. The only limitations on Syria’s right of self-defence would be the usual ones: necessity and proportionality.

Even more importantly, Russia would also be legally entitled to use force against the US. The right of collective self-defence is guaranteed by Art. 51 of the UN Charter and by customary international law. Just as the US invoked collective self-defence to justify attacking North Vietnam at South Vietnam’s request, Russia could invoke collective self-defence to justify attacking the US at Syria’s request. What is sauce for the American goose is sauce for the Russian gander. This is the most frightening aspect of Trump’s madness: although the Syrian military is capable of doing far more damage to American forces than Iraq’s or Libya’s militaries ever were, Russia’s military is one of the most powerful and technologically-sophisticated in the world. A hot war between Russia and the US could be literally catastrophic.

None of this jus ad bellum analysis should be remotely controversial — at least not to those who don’t believe the US has the God-given right to use extraterritorial force wherever and whenever it pleases. All of the conclusions above derive from a straightforward application of black-letter rules concerning the use of force.

That said, in recent days we have seen a number of scholarly attempts to justify Trump’s coming attack on Syria. I want to focus on one such attempt here, by my friend (and retired Maj. Gen.) Charlie Dunlap at Lawfire. Dunlap offers two potential justifications for attacking Syria: (1) self-defence; and (2) unilateral humanitarian intervention. Neither justification works.

With regard to self-defence, Charlie says the following with regard to Syria’s chemical and biological weapons:

Today, there are considerably more U.S. troops in Syria – perhaps as many as 2,000  – well within range of a number of Syrian weapons’ delivery systems.  Accordingly, it is not unreasonable to conclude that these uniquely dangerous weapons of mass destruction require an aggressive response.

Even if we assume that US troops are in Syria lawfully — a big if, given that it requires accepting the “unwilling or unable” doctrine — this argument denudes Art. 51’s armed attack requirement of all meaning. As noted above, Syria has neither attacked US troops nor threatened to do so. The mere possibility of attack — involving the mere possibility of that attack involving chemical or biological weapons — cannot justify an armed “response” by the US. To argue otherwise is to embrace preventive self-defence on steroids — going beyond even the US’s rationale for attacking the shadowy Khorosan group, where the US spokesman openly acknowledged, with regard to what armed attack the US was supposedly trying to prevent, that “I don’t know that we can pin that down to a day or month or week or six months.” At least terrorists who were possibly associated with the Khorasan group had previously attacked US interests. With regard to Syria, there is not even one previous attack to invoke.

Charlie’s invocation of unilateral humanitarian intervention (UHI) is no more persuasive. Here is what he says:

I also contended that Harold Koh’s 2013 argument about humanitarian intervention in certain narrow circumstances was supportive of a separate legal rationale for the 2017 strikes. I think the reaction of the international community to last year’s strikes is indicative of a growing consensus supporting limited interventions in select situations much as Professor Koh conceptualized, at least in the case of a clear violation of international law.

I have previously explained — in response to Harold Koh — why there is no plausible argument for the legality of UHI. The same critique applies here. I would just add that the international reaction to the 2017 attack on the airfield at Shayrat does not help the argument, for one simple reason: the US never invoked UHI as a justification for the attack. Because it did not, states were under no obligation to denounce UHI after the attack took place — as they have repeatedly done in the face of attacks (such as Kosovo) where one or two states did invoke the doctrine. What I said a few days ago regarding Israel’s 2007 Al-Kibar attack applies no less to the 2017 Shayrat attack: had the US claimed that the attack was legal UHI, the international response would have assuredly been different.

The conclusion above thus remains sound: if the US attacks Syria, it will be the aggressor and both Syria and Russia will have the right to use force against the US in self-defence.

Let me end with what I hope is obvious: this is a legal analysis, full stop. It is not a normative argument. I loathe Assad, a murderous dictator who deserves to spend the rest of his life in prison for his innumerable crimes. I understand the desire to something — anything — to prevent further violence against innocent Syrian civilians. I don’t believe, as I said in my response to Koh, that attacking Syria would contribute to that goal — particularly if it was limited to aerial warfare, as it almost certainly would be. But even if it would, the prohibition of the use of force still matters. We should not cloak acts that categorically violate that prohibition in a patina of legal respectability.

Implications of the Rohingya Argument for Libya and Syria (and Jordan)

by Kevin Jon Heller

In my previous post, I offered three cautionary thoughts about the OTP’s decision to ask the Pre-Trial Division to hold that the ICC has jurisdiction over Myanmar’s deportation of the Rohingya to Bangladesh. In this post, I want to offer a few thoughts on what a successful outcome would mean for refugee crises elsewhere — particularly in Libya and Syria.

We can start with the relatively easy case: Libya. Because of UNSC Res. 1970, the ICC has jurisdiction over any international crime committed on the territory of Libya from 2011 onwards. If the OTP’s theory of deportation is correct, it would be able to prosecute both (1) deportations from Libya committed by the Libyan government and armed forces, and (2) deportations into Libya from neighbouring states that are not members of the ICC — namely, Egypt, Sudan, and Algeria. Fatou Bensouda has already signalled interest in prosecuting “migrant-related crimes” committed by Libyans in Libya. A positive outcome to the OTP’s request in the Rohingya situation would make it possible for her to prosecute Egyptian, Sudanese, and Algerian nationals as well.

The more interesting case is Syria, given that Syria is not a member of the ICC and there is little chance the Security Council will refer the situation in Syria to the Court anytime soon. There are two scenarios worth discussing here: (1) deportations by the Syrian government or by various Syrian rebel groups into a neighbouring state; and (2) deportations by the Syrian government or by various Syrian rebel groups onto the high seas.

Going in reverse order, the ICC would have no jurisdiction over any deportation from Syria onto the high seas. There are two possible situations here: where the deported civilians drown on the high seas, and where the deported civilians make it to an ICC member-state such as Italy or Germany. In the first (profoundly sad) situation, no essential element of deportation (or of any other international crime) would have taken place on the the territory of a state party. And in the second situation, the civilians would not have been deported “directly” into the territory of a member-state — they would have been directly deported onto the high seas and only “indirectly” deported into the territory of a state party. Deportation’s “essential element” of crossing an international border would thus have taken place in Syria and on the high seas — not on the territory of a member state. This is the importance of the OTP’s repeated insistence in its request (see paras. 4, 13, and 28) that only direct deportations activate the Court’s jurisdiction.

In the second scenario, where the civilians are directly deported into a neighbouring state’s territory, a positive outcome to the OTP’s request in the Rohingya situation would mean that the ICC would have jurisdiction over any deportation from Syria into the territory of a state party. There is, in fact, only one ICC member-state that borders Syria: Jordan. Jordan would be a particularly attractive application of the OTP’s theory of deportation, given that more than 650,000 Syrians are currently taking refuge there — almost exactly the same number as the Rohingya in Bangladesh. (Though not all of the Syrian refugees in Jordan have been the victim of deportation.)

I wonder, though, what Jordan would think of the OTP opening an investigation into deportations from Syria into Jordan. Presumably, that situation would not be limited to deportations, but would also include Jordan’s own treatment of Syrian refugees. (A more tailored situation would be immediately seen for what it was — a sop to Jordan.) As Human Rights Watch has ably documented, Jordan has been summarily returning hundreds of Syrian refugees back to Syria each month, a clear violation of international law. Those actions very likely qualify as the crime against humanity of persecution, especially when Jordanian authorities specifically target for expulsion a national group such as Palestinians. So it is not difficult to imagine the OTP bringing a case involving Jordan’s expulsions as part of an investigation into Syrian deportations. Indeed, the OTP would likely find it much easier to prosecute the expulsions, given that Jordan is not only obligated to cooperate with the ICC but has long been one of its most vocal supporters. Ironically, then, an investigation into Syrian deportations might mean that a Jordanian ends up in the dock before a Syrian!

NOTE: I don’t think the Jordan prosecution I discuss above is likely to happen. I’m just teasing out the possible implications of the ICC having jurisdiction over deportations from non-member states to member-states.

Three Cautionary Thoughts on the OTP’s Rohingya Request

by Kevin Jon Heller

Major news out of the ICC today: the OTP has formally asked the Pre-Trial Division to determine whether the Court has jurisdiction over the deportation of the Rohingya from Myanmar to Bangladesh. Here is the introduction of the OTP’s brief:

1. The Prosecution seeks a ruling on a question of jurisdiction: whether the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

2. Consistent and credible public reports reviewed by the Prosecution indicate that since August 2017 more than 670,000 Rohingya, lawfully present in Myanmar, have been intentionally deported across the international border into Bangladesh. The UN High Commissioner for Human Rights has described the Rohingya crisis as “a textbook example of ethnic cleansing”, and according to the UN Special Envoy for human rights in Myanmar, it potentially bears the “hallmarks of a genocide”. The coercive acts relevant to the deportations occurred on the territory of a State which is not a party to the Rome Statute (Myanmar). However, the Prosecution considers that the Court may nonetheless exercise jurisdiction under article 12(2)(a) of the Statute because an essential legal element of the crime—crossing an international border—occurred on the territory of a State which is a party to the Rome Statute (Bangladesh).

3. Given these exceptional circumstances and the nature of this legal issue, the Prosecutor has exercised her independent discretion under articles 19(3) and 42 to seek a ruling on the question from the Pre-Trial Chamber. This will assist in her further deliberations concerning any preliminary examination she may independently undertake, including in the event an ICC State Party decides to refer the matter to the Court under articles 13(a) and 14.

This is one of the best OTP briefs I have ever read. It is rigorous, learned, and exceptionally sophisticated in its use of comparative materials. It is also far more persuasive than I expected it to be, particularly concerning the idea that the ICC has jurisdiction over a crime as long as one of its elements took place on the territory of a state party. I don’t know who wrote the brief — it names only Fatou Bensouda and James Stewart, the Deputy Prosecutor — but he or she needs to be promoted immediately.

I do, however, want to raise three concerns about the brief.

First, it is very important to understand how limited any ICC investigation into the Rohingya situation would be. There is a reason that the OTP is asking the Pre-Trial Division to offer its opinion only on deportation: no other war crime or crime against humanity necessarily involves conduct that crosses an international border. So even if the Pre-Trial Division agrees with the OTP about deportation, the Court will still not have jurisdiction over the many other crimes committed against the Rohingya. Not genocide. Not murder. Not sexual violence. Those acts have taken place solely on the territory of Myanmar.

Second, and relatedly, there is the question of situational gravity. Should the OTP investigate the Rohingya situation if it can only charge perpetrators with deportation as a crime against humanity and/or as a war crime? There is no legal reason it cannot, but imagine if the Commander-in-Chief of the Myanmar Army ended up in the dock at the ICC. Would the Rohingya be satisfied if he was not charged with genocide or murder or sexual violence? Would Human Rights Watch or the International Commission of Jurists? Deportation is a serious crime, but it doesn’t inherently involve physical violence. And it’s unquestionably not the most serious crime committed by the Myanmar military and government. So I genuinely wonder whether an OPT investigation into deportation and deportation alone would be worth it.

Third, although I find much of the brief convincing, I am not completely sold on the OTP’s argument that “an essential legal element of the crime — crossing an international border — occurred on the territory of a State which is a party to the Rome Statute.” The argument assumes that it is not possible to distinguish between crossing an international border and being on the territory of the state on the other side. But is that correct? Can we really not view crossing an international border and being on the territory of the state on the other side as two spatially distinct acts?

Although it does not directly answer the question, there is at least one situation in which civilians can cross an international border without being on the territory of another state — when they are deported to the high seas. The OTP acknowledges as much in its brief. Here is footnote 32:

As a matter of law, however, it is not necessary to prove entry to another State, but merely that the victim has been ejected from the originating State—as such, a victim may potentially be deported to the high seas. What is crucial is that the international border, de jure or de facto, of the originating State is crossed. Hence, customary international law has emphasised consideration of the kinds of borders that might suffice: see e.g. Stakić AJ, para. 300; Đorđević AJ, paras. 533-536; Prlić TJ, Vol. I, para. 47; Popović TJ, para. 892.

The first sentence of the footnote seems important — and complicating. If deportation does not actually require proof of “entry to another State,” only the crossing of an international border, how can we say that an “essential element” of deportation was committed in State Y simply because civilians happened to enter there after crossing an international border? Either entry to another state is an essential element of deportation or it is not — and the high seas example seems to point toward “not.”

This argument does not hold, of course, if an international border is somehow dual territory: the territory of State X and the territory of State Y; the territory of State X and the high seas. An international border cannot be the territory of just the State into which the civilians enter, because that would mean, irrationally, that the border’s spatial location would change depending on which State — X or Y — was doing the deporting. But if an international border is dual territory, the OTP’s theory works: crossing an international border “between” the two states would take place on the territory of both State X and State Y.

There are, in short, two possibilities. The first is to assume that an international border is part of the territory of both of the states it divides. The second is to assume that an international border is part of the territory of neither of the states it divides. The first possibility means that the OTP is correct: the ICC has jurisdiction over the deportation of the Rohingya, because at least one “essential element” of deportation — crossing an international border — took place on the territory of a state party, Bangladesh. The second possibility means that the OTP is wrong: the ICC does not have jurisdiction over the deportation of the Rohingya, because no “essential element” of deportation took place on the territory of a state party, Bangladesh. The essential elements took place either in Myanmar or somewhere that does not qualify as either Myanmar’s territory or Bangladesh’s territory.

To be honest, I have no idea which possibility is correct. I simply do not know enough about the legal status of international borders. I just think the OTP’s assumption that the Rohingya crossing the border into Bangladesh necessarily means that an essential element of deportation took place in Bangladesh is less obvious than it might first appear.

I’m really glad I’m not a member of the Pre-Trial Division right now.

Aggression and Criminal Responsibility (for Whom?)

by Nikola Hajdin

[Nikola Hajdin is a doctoral candidate in international law at Stockholm University and a fellow at the Stockholm Centre for International Law and Justice]

On December the 14th, 2017, the Assembly of States Parties to the Rome Statute adopted a resolution that activates the International Criminal Court’s (ICC) jurisdiction over the crime of aggression (CoA). After the adoption of aggression amendments in 2010 in Kampala, controversy arose regarding the scope of its jurisdiction (for a brief overview on what has been happening in the last seven years, see here and here). In this post, however, I draw attention to yet another of many conundrums that the Office of the Prosecutor (OTP) will ultimately have to deal with—namely, the outer limits of criminal responsibility for the CoA.

The problem with the CoA’s leadership nature

Article 25 of the Rome Statue—labeled ‘Individual criminal responsibility’—stipulates that a person who commits a crime under the ICC purview is individually responsible and liable for punishment. Paragraph 3 of the Article echoes what has been now broadly accepted as a ‘differentiation model’ of participation, whereby perpetrators commit crimes (a) and accessories merely contribute to their commission (b-d). Or, in words of ICC Trial Chamber II, perpetrators’ conduct constitutes commission of the crime, whilst accessories’ is solely connected to the commission of someone else’s crime (see Katanga judgment, para.1384). Added in 2010, paragraph 3(bis) nevertheless reads:

In respect of the crime of aggression, the provisions of this article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State.

This so-called leadership clause (similarly mentioned in Article 8bis(1) as well) narrows responsibility to those in position to ‘control or direct’ state policy. This is nothing new for the CoA. Since the 1940s, aggression has been perceived as a leadership crime—a ‘supreme crime’ that may be committed only by the highest state officials. This is one of the main conceptual differences between the CoA and other crimes under the ICC’s jurisdiction. The latter are usually perpetrated by common foot soldiers and masterminded by leaders, whilst commission of the CoA is exclusively reserved to state leadership. This leadership nature adds an additional layer to the system of imputation of criminal responsibility: before the assessment of who committed and who assisted the crime in terms of Article 25, the ICC has to identify leaders that meet the requirement of ‘control or direct’ standard. This raises the question of what it means for an individual to qualify as the leadership of a state.

Different approaches to ‘control or direct’

To predict how the OTP and ICC will interpret ‘control or direct’ is challenging. Even worse, there’s no analogous jurisprudence: the leadership clause in the Nuremberg era was a lower standard ‘shape or influence’ (see High Command, p.488). An easy case for prosecution is the highest political and military state officials. A harder one is with non-immediate, civil society leaders who contribute to acts of aggression, yet do not have any formal a priori relationship with the state apparatus: e.g., business leaders whose companies sell weapons that are used in an aggressive war. (This issue was already raised by Heller in 2007.)

Here I will lay out three possible approaches to the ‘control or direct’ standard: ‘effective control’ from superior responsibility; ‘control’ from the ‘control over the crime theory’; and ‘control’ from the ‘overall control’ test.

One way to inform interpretation is to rely on the ‘effective control’ standard from the doctrine of superior responsibility (Article 28 of the Rome Statute). Effective control is defined as ‘the material ability to prevent offences or punish the offender’ (see Popović et al. Appeal Judgment, para. 1857). In a vast bureaucratic apparatus, once an aggressive policy has been devised, only a few people may prevent acts of aggression from happening. Even fewer are capable to use their authority to bring the offenders to justice. Accordingly, it is questionable whether anyone apart from the highest state leadership would be able to meet this requirement. Be that as it may, there’s nothing in the CoA definition suggesting this rather elusive standard. So there is room for a less stringent interpretation.

Another possibility is the ‘control over the crime’ theory and its definition of ‘control’. The contours of this theory may indeed give some guidance in interpreting the CoA’s leadership clause. In its variant of co-perpetration, control means the power to frustrate the commission of the crime by not performing essential tasks. Those who are assigned essential tasks have joint control over the crime (see Lubanga Confirmation Decision, para. 342).

The problem with this theory, however, is that its normative nature is different from ‘control or direct’. The ICC has developed the ‘control over the crime’ theory in order to distinguish between principals who commit the crime (by virtue of their control over it) and accessories that merely participate in the commission of someone else’s crime. In this vein, principal responsibility is ascribed to direct perpetrators — those who carry out material elements of the crime (‘with blood on their hands’) — and to masterminds who are often far behind the scenes — those who devise a criminal policy that sets in motion the chain of events leading towards commission of the crime (‘without blood on their hands’). By contrast, the CoA’s ‘control or direct’ standard purports to limit both perpetratorship and accessoryship to the policy level. Only when the policy level leaders are identified could the ‘control over the crime’ theory be applied to assign responsibility. But if the ‘control over the crime’ theory is used to determine leadership for the CoA, the same standard could not be re-applied to distinguish between perpetrators and accessories, because those in ‘control’ pursuant to the ‘control over the crime’ theory are regarded as perpetrators. Consequently, all participants in the crime of aggression would be labeled as perpetrators. This outcome might be normatively satisfactory to some (proponents of the unitary participation model), but it would be incoherent under the differentiation model of individual criminal responsibility. There needs to be room for accessoryship as well in the CoA, as Article 25(3bis) suggests, and therefore the standard of ‘control’ has to be different from the ‘control over the crime’ theory.

The third possibility might be to define ‘control’ as equivalent to ‘overall control’ test set forth in Tadić. In an article published earlier this year, I suggested this approach, whereby both the immediate and non-immediate state leadership are covered by the current definition of the CoA. This standard was examined in the context of responsibility of a state for the conduct of private individuals (or groups), rather than the responsibility of individuals for the action of a state. That notwithstanding, the analysis could be useful for the CoA as it identifies the position of (overall) control. However, the rationale behind the interpretation goes in the opposite direction, focusing on the individual and his degree of control over state policy. Based on jurisprudence and scholarship, I conclude that as long as a person has an ‘impact’ on the policy, he should satisfy the ‘control or direct’ requirement. I acknowledge, however, that ‘impact’ is not a very precise term and as such is not easy to define.

It bears stressing that this approach does not overly broaden criminal responsibility for aggression. Current doctrine requires the mens rea of dolus directus, which is already cumbersome for the prosecution. Specifically, the OTP has to prove that the perpetrator acted purposefully, i.e. he was aware of his position of ‘control’ and consequences of his deeds, and he consciously chose to engage in the conduct or cause a result. Only those who acted in this way can be prosecuted for CoA.

In short, once leaders are identified, the ‘control over the crime’ theory should be used to distinguish between perpetrators and accessories.

Outlook

Once seen as a ‘supreme crime’, today the CoA has a different social value. Experience from the international criminal tribunals shows that other crimes have the capacity to stigmatize the highest state leaders for their misdeeds. Certainly, the ICC’s CoA will not stop violence between states. It is, moreover, an open question when we will see the first aggressors sitting in the dock in The Hague. Nonetheless, it should be clear that the CoA is not reserved for high political and military leaders. The ICC or any other court should bear this in mind when interpreting the leadership standard. Civil society leaders, such as industrialists, ought to be prosecuted as long as their impact on the governmental policy is substantial and they meet the actus reus and mens rea of the CoA. Every criminal law system in the world, as peculiar as it can be, recognizes the responsibility of those who furnish the murder weapon. The crime of aggression should be no exception.

Propaganda and Accountability for International Crimes in the Age of Social Media: Revisiting Accomplice Liability in International Criminal Law

by Talita de Souza Dias

[Talita de Souza Dias is a DPhil Candidate and a Tutor in Public International Law and International Criminal Law at the Faculty of Law, University of Oxford.]

In the past few weeks, there have been a series of news reports on the role that data-mining firm Cambridge Analytica played in the outcome of the 2016 US elections, which led to Donald Trump’s controversial victory (see, e.g., here and here). In essence, the corporation is being accused of manipulating the results of that election, especially by harvesting protected personal data from Facebook and by making targeted posts on this and other social media platforms, including with the aim of discrediting other candidates and spreading fake news. Significantly, there have also been allegations that Cambridge Analytica has been employing similar marketing tactics in Kenya for the purposes of manipulating the country’s 2013 presidential elections, and the primary elections that took place earlier this year, in favour of Kenya’s President Uhuru Kenyatta (see here, here and here). According to the company’s website, it collected data on the ‘electorate’s real needs (jobs) and fears (tribal violence)’ to ‘draft an effective campaign strategy’. Footage obtained from a hidden camera also shows one of Cambridge Analytica’s managing directors admitting to the company’s role in rebranding Kenyatta’s entire party twice, such as by drafting speeches and manifestos, managing their media campaign, and ‘stag(ing) the whole thing’. In light of these allegations, and Kenya’s recent history of post-election violence, there have been fears that the company’s marketing strategies might contribute to yet another wave of ethnic hatred and physical confrontation in the country (see here). It is important to recall that Kenya’s 2007 post-election violence gave rise to an investigation and a series of prosecutions before the International Criminal Court (ICC), including against Kenyatta.

To be sure, war propaganda and the involvement of the media in the commission of international crimes are not new phenomena, as the examples of Nazi Germany and Rwanda testify. However, the use of social media adds a new lawyer of complexity and raises a series of new questions on the international criminal responsibility of the individuals involved in marketing campaigns such as the ones orchestrated by Cambridge Analytica. Two such questions are of particular relevance. First, is the contribution to an election campaign, or the manipulation of an election sufficient to engage the individual criminal reasonability of social media operators for any ensuing international crimes? Secondly, in what other ways the use of social media can give rise to international criminal responsibility?

Since we are talking about the use of social media to assist with or contribute to the commission of international crimes by other individuals, it is accomplice or accessorial liability that is most relevant to our scenarios. In particular, there are two key modes of accomplice liability that could potentially fit the factual pattern at hand, namely, aiding and abetting, or instigating, soliciting, inducing and inciting (or simply ‘instigation’). Under customary international law (CIL) and in the Rome Statute of the ICC, the objective and subjective elements of instigation have not been subject to any significant controversy. Indeed, under both CIL and the Rome Statute, instigation requires conduct that prompts, drives or causes the principal perpetrator to commit the crime. Thus, the instigation must be a ‘clear’ or ‘direct’ contributing factor to the commission of the crime. This does not mean that the contribution must be essential to the crime, but it must have substantially contributed to it. As to the mental element, the default standard in either regime seems to apply: under CIL, intentional conduct must be coupled with knowledge of the substantial likelihood of the crime (i.e. recklessness), whereas in the Rome Statute Article 30 requires intent both in relation to the conduct and the result (i.e. intention or dolus directus).

The picture is somewhat blurrier when it comes to aiding and abetting. On the one hand, the objective elements of this mode of liability seem to be same under CIL and the Rome Statute: although a substantial or significant contribution is required, this broadly includes any contribution that is more than a de minimus. Thus, what separates an inadvertent contribution from aiding and abetting is the mental element. Again, the mental element in the Rome Statute differs from the one under CIL. After some confusion in the case-law of the ICTY as to whether or not ‘specific direction’ was required for aiding and abetting, it now appears to be settled that, under CIL, knowledge is the requisite mental element for that mode of liability. Thus, the accused must know that his/her conduct assists, or is substantially likely to assist a specific crime. As to the Rome Statute, Article 25(3)(c) requires the aider to have ‘the purpose of facilitating the commission of [the] crime’. Thus, the ICC has held that Article 30’s default requirement of intent also applies to aiding and abetting (see, for instance, the recent Appeal Judgement in the Bemba et al. case, paras 1390-1391, 1399-1401). Nonetheless, in an attempt to address neutral or non-criminal types of assistance, some commentators have proposed a restrictive interpretation of aiding and abetting (see, e.g. Kai Ambos’ post on the evacuation of civilians in Syria and the Separate Opinion of Judge Fernández de Gurmendi in the Mbarushimana Appeals Confirmation Decision). The idea is to require, aside from a minimum and purposeful contribution, some normative nexus between the aider and the principal’s conduct. Although it is not very clear what such normative standard entails, it appears that it is mainly based on the unlawfulness of the assistance and on the fact that it increases the risk of the commission of the crime. The same interpretation has been applied to the Rome Statute’s residual mode of accomplice liability under Article 25(3)(d). However, this provision seems to be less demanding than Article 25(3)(c), in that it only requires the accomplice to have knowledge that a certain group has the intention or common purpose to commit a crime.

Applying this law to our relevant factual scenarios, it seems that assistance to the election of an individual who turns out to be a perpetrator of international crimes, by means involving the use of social media, could potentially amount to instigation or aiding and abetting under CIL and Article 25(3)(b) and (c) of the Rome Statute, or to the residual mode of liability under Article 25(3)(d) of the Statute. This is because, as the example of Cambridge Analytica shows, social media can be a powerful if not decisive tool for putting such individuals in a position to commit international crimes, such as crimes against humanity, genocide, war crimes and the crime of aggression. It can also shape their political agendas and discourse, and so directly influence the commission of such crimes. However, the accomplice must either act with knowledge of the principal’s intent to commit the crime(s), or share the latter’s intent. In addition, if one adopts a restrictive interpretation of accomplice liability, the lawfulness of the accomplice’s contribution would be a decisive factor. In this regard, there seems to be general agreement that the use of unauthorised personal data is unlawful in most domestic legal systems and under international law (it is at the very least a breach of the human right to privacy). However, it remains open to question whether targeted posts which influence the behaviour of the electorate are unlawful under either body of law. Although it is likely that derogatory posts on social media can amount to an unlawful contribution (as these may constitute defamation, slander or libel in many domestic legal systems), it is unclear what other types of posts can have the same legal qualification.

Regarding other types of assistance, it seems that social media has countless ways of influencing or contributing to the commission of international crimes. In particular, following the footsteps of Nazi war propaganda and RTL’s radio broadcasts in Rwanda, social media can be used to instigate or incite the commission of international crimes by the masses. In addition, data-mining or harvesting can also be used in the planning or preparation of international crimes, especially those targeting predominantly civilian populations, such as crimes against humanity and genocide. If it is proved that such acts substantially contribute to those crimes and that the accomplice acts with the requisite knowledge or intent, then accessorial liability could be engaged under CIL and the Rome Statute, as instigation, aiding and abetting, or the ICC’s residual mode of liability.

Furthermore, aside from accessorial liability for the acts of others, social media operators could be held responsible for their own acts, as principal perpetrators. This could be the case if such acts consist of direct and public incitement to commit genocide, or hate speech as an underlying act of crime against humanity (if made in conjunction with other acts that severely deprive individuals of their human rights). Their acts could also fall under superior responsibility of civilians under CIL or Article 28(b) of the Rome Statute, provided that they have effective control over social media platforms, actual or constructive knowledge of the commission of international crimes by their subordinates, and fail to prevent or punish such crimes.

In conclusion, the use of social media to manipulate elections and to provide other types of assistance to international crimes can potentially give rise to individual criminal responsibility under international law. In addition to the contribution itself, other objective and mental elements must still be proved, but such responsibility cannot be ruled out. Importantly, the ICC still has jurisdiction of over the situation in Kenya, and it may well re-open its investigation and prosecutions on this matter. It also has jurisdiction over similar scenarios taking place on the territory of its states parties and acts committed by nationals of such states, at the very least. In addition, domestic courts also have jurisdiction over similar facts, including under the principle of universality, at least when they amount to crimes against humanity, genocide and war crimes.

Why Al-Kibar Does Not Contribute to Pre-Emptive Self-Defence

by Kevin Jon Heller

Elena Chachko has an interesting post at Lawfare discussing Israel’s recent public acknowledgement of what the international community has long known: that it was responsible for the 2007 attack on the Al-Kibar nuclear reactor in Syria. Although I agree with much of Chachko’s post, I would take issue with what she says about how the failure of states to condemn the attack at the time and to react to Israel’s new acknowledgment of its responsibility might affect the customary status of pre-emptive self-defence:

It would be unwise to jump to the conclusion that the many states that did not protest the Al-Kibar strike instead acquiesced to it, thus indicating their support for a right to exercise preemptive self-defense to eliminate nuclear threats. Still, one could argue that the clandestine and military nature of the Al-Kibar reactor, its proximity to Israel, and the hostility between Israel and Syria rendered Israel’s “last opportunity to stop an existential threat” argument more plausible now than when it invoked it to justify the destruction of Osirak—a distant, declared, reactor built with French assistance. Under this reasoning, the relatively muted international response could suggest that members of the international community might be willing to entertain preemptive self-defense under such extreme circumstances.

In sum, the question of whether international law now recognizes a right to preemptive self-defense against nuclear threats remains highly contested. But the evolution of the international position from “Opera” to “Outside the Box,” even after Israel acknowledged its role in the latter, is telling. Both scholars and politicians will likely take this evolution into account in discerning state practice on this question going forward.

With respect to Chachko, this argument is problematic. As she acknowledges, Israel has still not articulated any legal justification for the Al-Kibar attack, much less claimed that it represented a legal act of pre-emptive self-defence:

It remains true, however, that we do not know what Israel’s legal position actually was. Israel has yet to provide a public legal justification for the Al-Kibar operation under jus ad bellum. The newly released interviews with members of Israel’s leadership at the time, including then-prime minister Ehud Olmert, did not explicitly address the legal aspects of the decision to carry out the strike. The only  I found in the reports about the strike to the role of lawyers in vetting the operation was a brief mention of then-attorney general Meni Mazuz’s involvement in drafting the government decision that authorized the operation.

Because Israel has not provided a legal justification for the attack, the attack cannot help establish the legality of pre-emptive self-defence. As the ICJ made clear in the Nicaragua case, practice unaccompanied by opinio juris does not contribute to modifying customary rules concerning the use of force (para. 207; emphasis mine):

The Court has no jurisdiction to rule upon the conformity with international law of any conduct of States not parties to the present dispute, or of conduct of the Parties unconnected with the dispute; nor has it authority to ascribe to States legal views which they do not themselves advance. The significance for the Court of cases of State conduct prima facie inconsistent with the principle of non-intervention lies in the nature of the ground offered as justification. Reliance by a State on a novel right or an unprecedented exception to the principle might, if shared in principle by other States, tend towards a modification of customary international law. In fact however the Court finds that States have not justified their conduct by reference to a new right of intervention or a new exception to the principle of its prohibition. The United States authorities have on some occasions clearly stated their grounds for intervening in the affairs of a foreign State for reasons connected with, for example, the domestic policies of that country, its ideology, the level of its armaments, or the direction of its foreign policy. But these were statements of international policy, and not an assertion of rules of existing international law.

For similar reasons, the “relatively muted” response by states to the Al-Kibar attack also cannot help establish the legality of pre-emptive self-defence. It is true that silence in the face of practice can count as acquiescence to a proposed customary rule. But that is only the case when — to quote the ILC’s new Draft Conclusion 3 regarding the formation of custom — “the circumstances called for some reaction.” No reaction is required when a state does not provide a legal justification for its actions. In 2007, Israel did not even acknowledge that it was responsible for the attack. And even now, in 2018, Israel is not claiming that it acted in self-defence. So it would not simply be “unwise” to read too much into the international community’s response to the Al-Kibar attack. It would be legally inappropriate to do so.

I also disagree with Chachko’s claim that silence “could suggest that members of the international community might be willing to entertain preemptive self-defense under such extreme circumstances.” I think it actually suggests the opposite: it is extremely likely that states — particularly those in the Non-Aligned Movement (NAM) — remained silent about the Al-Kibar attack precisely because Israel neither acknowledged that it was responsible for the attack nor claimed that the attack was a legitimate act of pre-emptive self-defence. As Chachko rightly points out — echoing the Spector/Cohen blog post  she links to — there were sound political and strategic reasons for states, particularly in the Middle East, not to get too worked up about the 2007 attack. In the absence of Israel claiming self-defence, NAM’s silence was legally costless. But it is difficult to believe that it would have remained silent in the face of a legal claim that pre-emptive self-defence is lawful. After all, NAM has consistently denounced pre-emptive self-defence as unlawful.

Israel’s acknowledgment that it was responsible for the Al-Kibar attack is politically important. But it has no legal implications whatsoever.

Five PhDs and One Postdoc at the University of Amsterdam

by Kevin Jon Heller

I am delighted to announce that my law school is advertising six new positions to start in September 2018 — five PhD and one postdoc. The postdoc will be public international law with a focus on international economic law:

The vacancy is for a Postdoctoral researcher in Public International Law. The researcher should have a background in International Economic Law (broadly understood) that allows her/him to possibly contribute to teaching tasks (see below on ‘tasks’).

The postdoctoral researcher should place her/his research within the programme on ‘Law and Justice Across Borders’, in which ACIL collaborates with the Amsterdam Center for European Law and Governance (ACELG) and the Center for the Study of European Private Law (CSECL). Preferably, the postdoctoral researcher should connect to one of ACIL’s research projects (available on the ACIL website).

Three of the PhD positions will focus specifically on international criminal law:

In September 2018 a five year research project will be launched, entitled ‘The Outer limits of Secondary Liability for International Crimes and Serious Human Rights Violations’. The research project is directed by Göran Sluiter, professor in International Criminal Law, and is financed by the Netherlands Organisation for Scientific Research (NWO), by means of a VICI-grant.

The project will be embedded within the Amsterdam Center for International Law (ACIL), one of the research priority areas of the University, and the department of Criminal Law.

One of the PhD positions will be devoted to public international law generally:

The PhD researcher will develop his or her project as part of the Amsterdam Center for International Law (ACIL). In principle, the PhD researcher may focus on any aspect of Public International Law. Preferably, the research should connect to one of ACIL’s projects (available on the ACIL website).

The researcher is also encouraged to embed her/his research within the programme on  ‘Law and Justice Across Borders’, though that is not strictly necessary. In that programme, ACIL collaborates with the Amsterdam Center for European Law and Governance (ACELG) and the Center for the Study of European Private Law (CSECL).

And one PhD position will focus on the intersection of public international law and EU law:

The PhD researcher will develop his or her project as part of the Amsterdam Centre for European Law and Governance (ACELG) and Amsterdam Center for International Law (ACIL). In principle, the PhD researcher may focus on any question that involves aspects of both European Union law and Public International Law.

ACELG and ACIL cooperate together with the Centre for the Study of European Contract Law (CSECL) within the framework of the research platform ‘Law and Justice Across Borders’. An interest in participating in this broader research community is a significant advantage.

Research at ACELG And ACIL employs legal-doctrinal methods of research as well as non-legal methods. An interdisciplinary dimension of research is encouraged.

I strongly encourage Opinio Juris readers to apply. The University of Amsterdam Law School is a great place to work, with a superb Dean in Andre Nollkaemper, a new building in a great location (by the zoo!), numerous excellent ICL/PIL scholars, and a fantastic current group of (relatively new) PhDs and postdocs. With six new additions, our academic culture will be even richer.

The deadline for all the positions is May 1.

The Impact of Unpaid Internships at the ICC on the Development and Legitimacy of the ICC

by Karl Kemp

[Karl Kemp is a freelance South African journalist whose work has appeared, inter alia, in VICE and Rolling Stone magazine.]

The controversy and angst engendered by the subject of unpaid internships is nothing new to my generation. In 2015, an UN intern in Geneva was found sleeping in a tent next to the city’s eponymous lake, unable to afford housing, having lied on his application form regarding the fact that he had sufficient means to support him during the program. The world’s paid-internship advocacy groups have come into ever-sharper focus since, as UN interns around the globe staged protests and walkouts. International organizations, and the UN in particular, have become notorious for their lack of paid internship and entry-level positions.

As I write, myself and dozens of my fellow LL.M public international law graduates from the University of Amsterdam class of 2017 are embroiled in a seemingly futile struggle to break into a subsection of this world – that of international criminal justice. This problem is patent and pressing in the UN system generally, and yet it has particular bearing upon the institutions of international criminal law, and especially the under-fire ICC.

Though the Hague-based court and standard-bearer for international criminal justice has been facing an onslaught of think-pieces and media glamorizing regarding its alleged ‘racial bias’ since time immemorial, there are other, more tangible and less clickbait-worthy issues that needs be solved. Many of my former classmates have attempted to survive on a shoestring budget working internships before relenting and turning to the lucrative corporate private international law world in Amsterdam. Others take low-paid positions at academic research institutions or manage social media accounts for legal think-tanks in order to ‘get a foot in the door’. Whilst admirable, and of course serving a vital part of legal development, this imbalanced state of affairs serves to keep potentially brilliant lawyers from the judiciary and further adds to a field of professional commentators rather than practitioners.

The question of unpaid internships is not a purely moral or ethical one. Quite clearly, there are budget constraints and other factors that the general public are not privy to which influence the ICC’s spending priorities. Rather, the problem is that unpaid internships have a real and tangible impact on the work of the ICC and the development of international criminal law generally. The institution should prioritise a sustainable policy of centralized training in order to avoid a crisis of legitimacy. Should a crisis of legitimacy arise, the moral aspect of the debate will come into play regardless of the court’s best intentions.

Of course, it would be absurd to suggest that a lack of a salaried staff of interns is the root cause of the ICC’s woes, but it does represent a useful symbolic representation of a more abstract issue that touches at the roots of the ICC’s legal culture – that of a lack of a sustainable, future-orientated approach to the persons that will eventually people its halls and be tasked with delivering the aforementioned international criminal justice, and the effect this has on the court’s overall trajectory.

The link between inefficiency and unpaid internships may be extrapolated as follows: The ICC’s work, and that of its forebears, is often accused of being hampered by a clashing of legal cultures and an unsettled legal practice engendered by the attempted fusion of continental and common law procedures. It has been argued by scholars that this approach leads to inefficiency and a lowering of fair-trial standards.

Specifically, Jackson and Brunger note that

“the process of harmonization has developed in a pragmatic manner on the basis of those procedures that seemed most accessible to hand and has resulted in a procedural convergence of largely ‘adversarial’ structures. Yet such a convergence…was achieved without a shared consensus as to how these structures were to be utilized for the purposes of doing international justice. This absence of consensus created a vacuum for an inevitable fragmentation of practice.”

As a standard-bearing court, these kinds of issues leave the ICC more vulnerable to external criticism, and rightly so. Any globalized institution that acts outside national sovereignty should be held to the utmost standards of fairness and legitimacy. This means that efficient, fair and transparent procedures at the ICC are of paramount importance. The work of the ICC must be the benchmark standard for international criminal justice and as such any missteps are detrimental to perceptions of legitimacy – and hence key to the project of international justice

Currently, the ICC more resembles an ad hoc body of lawyers with already settled ideas of what legal practice entail, which then necessitates an overly flexible and inefficient system to compensate. For example, the abstract system of free proof evidence, in which evidence is freely admitted and weighed in totality at the end of proceedings, has come under fire by scholars like Peter Murphy, who accuse it of placing the accused in a precarious position regarding their trial rights by creating ‘evidential debris’. He notes that “in addition to making trials much longer and more complex than they need be, such evidential debris poisons the record and ultimately makes it more difficult for judges to assess the weight of the evidence and arrive at the truth”. Scholars have further questioned issues such as the role of the judge in proceedings, whether rules of evidence should be applied, and what role witness statements should play. These are all sharply distinguished in the various legal traditions, and it is unsurprising that lawyers trained in one or the other have difficulty accepting and putting into practice that with which they are not familiar.

These ingrained approaches, continental and common and all the various substrata of them, are baggage brought with lawyers from domestic jurisdictions, and that this has carried on happening despite the ICC now being operative for a generation, may be partly ascribed to the policy of unpaid internships and related matters pertaining to a failure to invest in young lawyers. The combined practice of unpaid internships and a lack of centralized, specialized legal training forces aspirant lawyers and advocates like myself and many of those in my former classes to train at domestic levels (if we have not given up on ICL entirely) in hopes of coming back to the ICC with sufficient experience to gain a paid position – and hence reinforces the paradigm of clashing legal cultures, and hence contributes to the aforementioned unsettled legal practice and inefficiency of procedure. And of course, it is those from developing countries who labour most under the living costs of The Hague, (consistently ranked among the most expensive cities in Europe) – those that the work of international courts most affect, and who have most of a stake in the success of the court.

Given the uniquely limited range of entry-level positions and the internships that take their place in such a system, these few opportunities simply must be made as accessible as possible to as many aspiring criminal lawyers as possible. Paying interns and centralizing and prioritizing training and practical education from the ground up should thus be a core component of a new strategy to address inefficiencies. It would go some ways to ensure that international criminal lawyers are exactly that – not criminal lawyers who are forced to adapt to a system which does not have a jury, or rules of evidence admission, or does have a complete dossier approach, or does allow hearsay, or any other example from the wide range of clashes at the ICC.

Obviously, paying interns will not resolve the issue entirely. There is no international bar exam, and domestic qualifications will remain necessary for the foreseeable future should young lawyers wish to eventually appear in court. But attracting young persons to a secure financial working environment will allow for a focusing of effort and ideas; interns that will learn the workings of the ICC and international criminal law before they are influenced by domestic systems – lawyers whose foundations are laid in the field, upon which to build, rather than the other way around. The distinction is fundamentally important, and should serve to guide the ICC in developing a workable strategy.

It would appear that few career paths are more difficult to navigate, more frustrating to tread, more confusing to reach the top of, than international criminal law. Young aspirant international criminal lawyers need a measure of reassurance that the field is developing and welcoming to those who wish to practice, as opposed to comment or proselytize. We cannot all be academics and scholars; a horde of know-better’s pressganging a small body of litigators, prosecutors and defence counsels. The ICC simply has to broaden its approach or we will wallow in the politics we so desperately need to be divorced from, risking being known as a profession of chatter rather than action.

Case selection controversy may eventually be resolved as it is not a constitutive element of the ICC in that it does not affect its structure or function. The same cannot be said of the bare-bones composition of the court from the ground- up – and by prioritising legal training and reforming a vision for the future of ICL, the court would do better in ensuring long-term sustainability. Paying its interns would be a huge step in that direction.

Kenyan Appeals Court Strongly Affirms That al-Bashir Cannot Claim Immunity As a Defense Against the ICC’s Arrest Warrants

by Tim Fish Hodgson

[Tim Fish Hodgson is a Legal Adviser for the International Commission of Jurists in Johannesburg, South Africa.]

A Kenyan Court of Appeal decision handed down last week has, once again, reaffirmed the Kenyan government’s international obligation to arrest Sudanese President Omar al-Bashir should he ever return to Kenya. The Court concluded “the Government of Kenya by inviting al Bashir to Kenya and failing to arrest him acted not only with complete impunity but also in violation of its international obligations.”

The African Union and some individual States such as South Africa, Uganda and Kenya appear to have serious concerns relating to what they perceive the conflicts between their obligations to arrest al-Bashir under the Rome Statue of the ICC and their obligation to respect his diplomatic immunity as a Head of State. This apparent conflict is clearly expressed by both the African Union’s ‘Withdrawal Strategy Document’ and the draft International Crimes Bill introduced by the Minister of Justice to South African Parliament. But the greatest testament to this discomfort is these and other states repeated failures to arrest al-Bashir despite their international legal obligations and pressure from local, regional and international human rights defenders.

The Kenyan Appeal Court recognized the “rare geopolitical predicament” faced by the Kenyan government in balancing its “focal role” in Sudan and “remaining true the African Union resolution not to cooperate with the [ICC]” with its obligations in terms of the international criminal law which is has domesticated in its own International Crimes Act.

Nevertheless, grounding its judgment in the historical foundations of international criminal law, the Court quotes with approval the Nuremberg Tribunal’s observation that “perpetrators cannot shelter themselves behind their official positions in order to be freed from punishment in appropriate proceedings”. The Court notes that when a state commits acts which violate ius cogens norms it “waives any rights to immunity” and concludes that, similarly, “we have no doubt that an exception to immunity exists in cases where the individual is responsible for crimes against humanity”. This, it reasons is because “acts amounting to international crimes of individuals cannot be considered legitimate performance of official functions of State” capable of attracting immunity in the first place.

In taking this approach the Kenyan Court of Appeal deftly acknowledges that despite the potential political conflicts that there is no real legal conflict between provisions on the Rome Statute with respect to immunity. This same approach was supported by the International Commission of Jurist’s submission to South African Parliament signed by six former Constitutional Court Justices and Navi Pillay the former United Nations High Commissioner for Human Rights. In a judgment that has received praise from international law experts John Dugard and Guénaël Mettraux no less, the Supreme Court of Appeal of South Africa too concurred with this approach, noting that allowing immunity to prevent arrest in such situations “would create an intolerable anomaly”.

Highlighting the irony that Kenya’s government disregard of its international obligations in inviting al-Bashir to the inauguration of Kenya’s progressive Constitution, the Court also notes that the government’s actions violate a specific provision of the Kenyan Constitution itself. Article 143(4) of the Constitution reads “[t]he immunity of the President under this Article shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity”.

Despite these categorical statements of Kenya’s legal obligations to arrest al-Bashir pursuant to the Kenyan Constitution, the International Crimes Act and the Rome Statute of the ICC, the Court overturned the provisional arrest warrant for al-Bashir issued by the High Court on the ground the requisite urgency no longer existed at the time the order was issued.

This, it reasoned, is because section 131(1)(c) of Kenya’s International Crimes Act explicitly permits the issuing of a provisional warrant only if “it is necessary or desirable for an arrest warrant to be issued urgently”.

This aspect of the Court’s judgment, which is inconsistent with the Rome Statute, strongly implies that future applications relating to al-Bashir’s arrest would need to be heard and determined urgently before or during a visit to the country. This despite the Court’s own observations that the Kenyan government remains bound by its international obligation to cooperate with the International Criminal Court by executing warrants the ICC had issued when al-Bashir’s visit in 2010.

Bolstering the possibility of the urgent issue of a provisional arrest warrant in a Kenyan High Court, however, the Court’s decision affirms that human rights organizations such as the Kenyan Section of the International Commission of Jurists have legal standing to approach the High Court requesting the issue of a provisional arrest warrant. This will mean that, as with litigation initiated by the Southern Africa Litigation Centre in South Africa, the Kenyan government’s own continued indifference or deliberate resistance to its international obligations, would not prevent al-Bashir’s arrest should he return to the country.

The judgment of the Kenyan Court of Appeal is of regional and international significance in the face of increasing threats of collective withdrawal of African countries from the ICC. Most particularly, after failing to arrest al-Bashir on a visit to South Africa in 2015, the South African government appears to be charging ahead with its intention to withdraw from the ICC by proposing the enactment of woefully inadequate domestic legislation.

As a decisive statement by an African court this judgment will be useful for human rights defenders, lawyers and judges in South Africa who are consistently accused of lacking regional legitimacy by the government in their attempts to ensure that al-Bashir is arrested and prevent South Africa’s withdrawal from the ICC. In the South African context, it remains to be seen whether newly appointed President Cyril Ramaphosa may change the South African government’s headstrong tune in the face of considerable, consistent and widespread criticism.

Finally, to some the Kenyan Appeal Court’s decision to invalidate the provisional arrest warrant for al-Bashir may appear to provide legitimacy to the Kenyan governments action. Properly read, this is perhaps merely politically astute exercise of its powers and is clearly overshadowed by the Court’s decisive condemnations of the government’s intransigence and strong findings which make absolutely clear that the Kenyan government is obliged to cooperate in al-Bashir’s arrest should he ever return to Kenya.

In terms of 163(4) of the Kenyan Constitution decisions of the Appeal Court may be appealed to the Supreme Court of Kenya if it can be shown that the matter involves the interpretation or application the Constitution or if it is decided that it is a matter of “general public importance”.