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International Criminal Law

Guest Post: International Criminal Justice and Reconciliation: Beyond the Retributive vs. Restorative Divide (Part 2 of 2)

by Carsten Stahn

[Carsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director of the Grotius Centre for International Studies.This two-part post is based on a talk given at the seminar on Reconciliation v. Accountability: Balancing Interests of Peace and Justice, organized by the Centre for International Law Research and Policy on 29 May 2015 at the Peace Palace. Part 1 can be found here.]

2. International Criminal Justice and Reconciliation: Improving Connections

It is easy to criticize international criminal justice for its shortcomings. A hard question is: How can the connection between international criminal justice be improved?

Existing studies have expressed doubts to what extent international criminal trials have promoted a ‘thicker’ conception of individual, inter-group or inter-societal reconciliation, at least in the short or medium term. International trials have limited the space for denial of atrocities and created a public space and reference point to confront history, which is one pre-requisite for societal transformation. In past years, international courts have sought to address their limitations through greater investment in restorative features (i.e., victim participation, compensatory justice), complementarity strategies, and education and outreach (e.g., legacy). But improvements might start with a closer look at retributive practices and procedures.

2.1.Reconciliatory potential of retributive justice

There is, first of all, a need to reduce practices that undermine the reconciliatory potential of retributive justice.

(I) Judicial Management

One of the most basic lessons is that  criminal courts and tribunals need to complete trials and produce a judicial outcome, in order to have a transformative effect. In existing practice, criticism has focused on the divisive nature of acquittals or dissents. Such judgments may indeed confirm existing societal tensions. But they are not necessarily detrimental to longer-term processes of reconciliation. They represent a legitimate outcome and contribute to the process of truth-finding. More critical are flaws in the justice process as such, i.e., unfinished or derailed proceedings. At the international level, there are number of critical examples over the past decade, including Milošević, Lubanga, or most recently Kenyatta. In a national context, the Rios Montt trial was affected by dilatory tactics and intimidation. Such examples undermine the demonstration effect of justice, and the faith in law and institutions that is necessary for meaningful engagement with the ‘other’.

The prospect of the trial to contribute to reconciliation depends on its acceptance and perception as a common forum. Each trial necessarily involves a certain degree of theatre and drama. International trials can easily turn into show trials, and struggle to confront ideology fueled criminality. These challenges need to be addressed. Judicial proceedings need to provide space to challenge pre-determined attitudes and biases or the heroization of agents, in order to maintain their perception as shared fora. This requires active, and sometimes better judicial management of proceedings, deeper engagement with conflicting visions of history and causes of criminality, and space to highlight and challenge contradictions in ideology-tainted discourse.

(ii) Plea agreements

From a reconciliatory perspective, it seems tempting to encourage plea agreements in proceedings. But this inclination is deceptive. In the early ICTY practice, guilty pleas were used as a means of reconciling punishment with acknowledgment of wrong or apology. Experience has shown that such admissions of guilt cannot be taken at face value. For instance, Mrs Plavsic’s guilty plea in 2003 was initially heralded as a significant move towards the advancement of reconciliation. After sentencing, she retracted her guilty plea and expression of remorse. This experience highlights the fragility of negotiated justice.  If an apology is offered in return for sentence leniency, it might not necessarily benefit reconciliation, and call it into question the genuineness of remorse.

In the ICC context, risks of bargaining are curtailed by greater judicial power, and structural attention to the interests of victims (Art. 65 (4) ICC Statute) But at the Court, similar concerns have arisen in the context of the apology of Katanga. Katanga’s remorse was offered after the sentencing judgment, and before the decision on appeal. It caused resentment among victims, since it was perceived as a tradeoff for the discontinuance of the appeal.

2.2. Justice Approaches

International criminal justice may contribute to break divides, if it makes best use of the constructive tension between retributive and restorative approaches.

(i) Constituency and locality  

A fundamental element is the approach towards constituency and locality. Justice, and in particular, justice in the Hague, must be a two- way street. International proceedings are not merely abstract processes, geared at the interests of the parties or fictive community interests; they require a close nexus  context, and the interests of affected communities and victims. It is this inclusiveness, which connects international criminal justice to processes of reconciliation. In current practice, interaction with the ‘domestic’ or ‘local’ is often characterized by outsourcing, transfer of cases or one-directional communication (e.g., ‘outreach’). The conditions of this relationship, and its transformation over time (e.g., after closure of cases) require further structural attention. Holding local hearings (e.g., Ntaganda) may facilitate visibility and access to victims, and foster the perception that ‘justice is seen to be done’. But it is not in itself sufficient to facilitate a structural dialogue locally.

(ii) Challenging‘friend/enemy’ clusters

Many trials suffer from the reproduction of binaries, and are perceived as obstacles to reconciliation, if they remain entrenched in ‘friend/enemy’ clusters, or associate crime or victimhood across pre-configured collective identities (e.g., ethnic lines). International criminal justice may reduce these frictions, if it pays attention to rights and wrongs of  all sides of the conflict, as mandated by the principle of objectivity (Art. 54 ICC Statute). A positive contribution to reconciliation also requires better engagement with dilemmas of selectivity, and justification of choices (e.g., selection of situations, cases, defendants). Typically, most attention is focused on action. But from a perspective of reconciliation, inaction requires equal attention. It is, in particular, important to communicate that inaction does not entail an endorsement of violations.

(iii) Contradictorial v. adversarial proceedings

International criminal courts have experimented with different types of procedures. Experiences suggest that inquisitorial features may be more closely aligned with rationales of reconciliation. Accusatorial models tend to treat parties to proceedings as adversaries. This structure consolidates binaries, and produces clear winners and losers. This methodology fuels a certain hostility, and stands in tension to a more exploratory mode of inquiry. As noted by Albin Eser, this contradiction could be mitigated, if procedures were construed as ‘contradictorial’, rather than ‘adversarial’, i.e. focused on ‘elucidating the truth by way of  contradiction, including confrontation’ and ‘(controversial) dialogue’ in ‘a spirit of cooperation’, rather than hostile contest. Steps like these would facilitate empathy and potential re-humanization of perpetrators and victims. One of the implicit purposes of these trials is to give back to the victims some of the humanity that they have lost.

(iv) Fact-finding

A last procedural point relates to fact-finding and quality of evidence. Existing practice continues to rely heavily on oral testimony. Testimonial evidence is fragile and limited by epistemic challenges, since it linked to assessments of trustworthiness. This is shown by many examples, internationally and nationally. Some of these vulnerabilities might be limited by creative uses of information technology, and better translation of ‘big data’ into analysis or evidence. International courts and tribunals (e.g., ICC, STL) serve as important pioneers in this field.

2.3. Treatments of Actors

Finally, prospects of reconciliation are closely linked to the experiences of parties and participants in the justice process. Individuals share and digest experiences through narratives. Criminal proceedings may contribute to this process, if parties and participants have the impression that they are listened to.

Some of the most direct transformative effects may occur through the experience of testimony, i.e., the contact and exposure of witnesses or victims to a professional justice environment. Existing practice provides positive and negative examples. Existing experiences might be improved through greater care for witnesses before and after testimony, and better management of victim participation in proceedings, including information, representation  and processes of inclusion and exclusion. Greater caution is required in the use and labeling of victims. Judicial proceedings tend to produce imageries (e.g., vulnerability) and abstract categorizations of victimhood that may have disempowering effects on victims.

One innovative development at the international level is the ICC’s approach towards reparation. It combines retributive and restorative features. It establishes a direct form of  accountability of the convicted person towards victims, which differs from classical models of victim-offender mediation. Accountability is grounded in the obligation to repair harm, but linked to the punitive dimensions of ICC justice (e.g., conviction, sentence). Jurisprudence has made it clear that establishment of accountability towards victims through reparation proceedings is an asset per se that can provide a greater sense of justice to victims, even in cases where the defendant is indigent. Examples like these illustrate some of the strengths and possibilities of international criminal justice.

 3. Not a conclusion

In the future, as in the past, it will remain difficult to demonstrate empirically whether and how international criminal justice contributes positively to reconciliation. This debate is likely to continue. It might be interesting to turn the question around: Would one be better off without international criminal justice? If the question is framed in the negative, the ‘benefit of the doubt’ might gain greater weight.

At least three insights can be drawn now. First, reconciliation is not, and should not necessarily be treated as a primary goal of international criminal justice. The criminal trial is at best one intermediate factor in such a process. Second, the contribution to reconciliation cannot be assessed exclusively through the lens of restorative justice. Some important impulses result from the positive tension between retributive and restorative justice. Third, some of the strengths of international criminal justice lie in its expressivist features and, its ability to serve as experiment for national experiences. These experiences require further translation and/or transformation in a national or local context, rather than mere replication.

Guest Post: International Criminal Justice and Reconciliation: Beyond the Retributive vs. Restorative Divide (Part 1 of 2)

by Carsten Stahn

[Carsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director of the Grotius Centre for International Studies.This two-part post is based on a talk given at the seminar on Reconciliation v. Accountability: Balancing Interests of Peace and Justice, organized by the Centre for International Law Research and Policy on 29 May 2015 at the Peace Palace.]


Punishment and reconciliation are closely linked. In this post, I would like to explore one issue of this relationship, namely the link between the retributive and restorative justice. The core dilemma was identified by Hannah Arendt in her treatment of forgiveness in the Human Condition in1958:

 ‘men are unable to forgive what they cannot punish and are unable to punish what turns out to be unforgivable’.

This dichotomy still stands today. Since Nuremberg and Tokyo, there is a strong trend to recognize that the purposes of trials reach beyond retribution and vengeance. International criminal proceedings are increasingly associated with restorative features, because punishment alone has inherent limitations. Some harm may only heal with time. At the same time, certain acts may be beyond forgiveness. This argument is used to discard alternatives to punishment or short cuts to impunity, in particular in relation to core crimes.

These dilemmas arise in any mass atrocity context. They have a legitimate space in law and justice policies. They cannot, and should not be outplayed against each other, but stand in a dialectic relationship. The right equilibrium must be found anew in any specific context, through argument, contestation and persuasion.

The contribution of international criminal justice to reconciliation is modest. Reconciliation has of course many meanings. It extends beyond the victim-offender relationship that forms part of the criminal trial. It involves different levels: interpersonal forgiveness and collective dimensions (e.g., community-based, societal or national reconciliation). It contains retrospective (e.g., understanding of the past, healing, undoing of wrong) and prospective elements (e.g., social repair). Legal visions of time do not necessarily correlate with societal understandings. International criminal justice typically only covers fragments of the past, and glimpses of the imagination of the future.

Unlike a judgment in a trial, reconciliation can rarely be tied to a specific moment in time. It occurs as a process. As argued in the Handbook on Reconciliation after Violent Conflict, it is both a goal, i.e., an ideal state to strive for, and a process ‘through which a society moves from a divided past to a shared future’. It involves ‘social learning’ and a move beyond negative co-existence and the mere absence of conflict. Justice is only one element, alongside others such as the search for truth, forgiveness or healing.

It is questionable to what extent reconciliation should be framed as a primary goal of international criminal justice per se. International criminal justice can neither stop conflict nor create reconciliation. A Court can judge, but only people can build or repair social relations. A Chamber cannot order an apology by the perpetrator, nor forgiveness by victims. In fact, the liberal criminal trial may require respect of the will of those who do not choose to forgive. The experiences in the Balkans, Latin America and Africa have shown that healing and forgiveness are culturally-bound processes that are rooted in local cultures, and start at the level of the individual or community based structures. Reconciliation requires the recognition of a more inclusive common identity that transcends the justice trial. But international criminal law strengthens the claim that reconciliation should not be conceived ‘as an alternative to justice’. Moreover, the criminal trial can provide conditions that facilitate such complex processes. It may signal a rupture with the past that contributes to a process of reconciliation.

In the following, I will try to unpack some of the existing divides. I will first challenge whether restorative approaches are per se better suited to achieve reconciliation than retributive mechanisms. I will then explore certain means to improve the connection between international criminal justice and reconciliation.

1. Links between Reconciliation and Retributive Justice

Retributive justice mechanisms, such as international criminal courts and tribunals, are often criticized for their limitations, namely their emphasis on perpetrators, their individualization of guilt and focus on the past, and their risks. This includes detachment from local context and emphasis on universal justice models and standards. Restorative mechanisms of justice, including victim-centred and less formal forms of accountability, have gained increased acceptance as a middle ground between retributive justice and blanket pardon. They are viewed as more conducive to reconciliation, in light of their stronger focus on needs of victims, their proximity to community or group structures, and their flexibility in terms of process and sanction (e.g., restorative penalties). This either/or logic requires differentiation. Developments over past decades suggest that it is the linkage between these two models that may be most conducive to reconciliation.

1.1.Punishment as prerequisite for reconciliation

One first important point is that prosecution aimed at punishment is not necessarily an obstacle to reconciliation. In certain contexts, retribution may have a greater effect on reconciliation that certain restorative forms of justice that prioritize forgiveness or forgetting. Forgiveness often requires more than a mere apology or generic acknowledgments of responsibility. Victims might be more willing to forgive, or at least temper their feelings of revenge, if they know that the perpetrator will be punished. A recent example is the trial against camp guard Oskar Gröning before German Courts. Ausschwitz survivor Eva Moses Kor shook hands with Gröning. She noted that she could forgive because ‘forgiveness does not absolve the perpetrator from taking responsibility for his actions’ nor diminish the ‘need to know what happened there.’

1.2.‘Us vs. them’ divides

Second, reconciliation is linked to cognitive and affective change, grounded in social interaction. It is shaped by positive experience with the ‘other’ and a relationship of recognition and trust. As argued by Jodi Halpern and Harvey Weinstein, reconciliation ‘shows itself in the degree to which people actually can act as distinct individuals with mutual regard in the real world’. Prosecutor have a tendency to portray perpetrators as persons lacking in humanity. But there are many types of perpetrators in international criminal justice: Political leaders, executers, followers. Alette Smeulers has identified at least nine different species:


‘(1) the criminal mastermind; (2) the careerist; (3) the profiteer; (4) the fanatic; (5) the devoted warrior; (6) the professional; (7) the criminal and sadist; (8) the follower; and (9) the compromised perpetrator’.


One common feature is that many of them are ‘ordinary’ persons who turn into criminals because of context. International criminal justice offers a space to re-humanize, by breaking some of the inequalities and hierarchies inherent in system criminality, or de-constructing context. As argued by Pablo de Greiff, the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, the criminal trial provides a forum to discard any ‘implicit claim of superiority made by the criminal’s behaviour’. In specific contexts, the victim and perpetrator (re-)encounter each other as mutual holders of rights, or as members of a common polity. These structural features can lay important foundations for longer-term processes of social repair or reconciliation. They can break up ‘us vs. them’ divides.

1.3.Acceptance of multiple truths

A third point relates to the relationship between reconciliation and truth-finding. One of the inherent features of a criminal trial is that it can produce different narratives, or even multiple truths, through assigned roles in the legal process, competing testimonies or conflicting decisions. International criminal justice is paved with such examples. It has produced many frustrating experiences for victims of crime. But this is not necessarily an impediment to healing or forgiveness. Reconciliation is not linked to the acceptance of a ‘single truth’ or narrative, but grounded in the acceptance or toleration of conflicting points of view. It lives from the ability to respect the ‘other’ and tolerate difference, despite opposite or conflicting views of events and facts. The strength of the criminal process lies in the fact that it offers a forum where contradictions and contestations may legitimately co-exist, based on the constraints of the law.

New Edited Collection on the ICC

by Kevin Jon Heller

Oxford University Press has just published a massive new book on the ICC, “The Law and Practice of the International Criminal Court,” edited by Leiden’s Carsten Stahn. Here is the publisher’s description:

The International Criminal Court is a controversial and important body within international law; one that is significantly growing in importance, particularly as other international criminal tribunals close down. After a decade of Court practice, this book takes stock of the activities of the International Criminal Court, identifying the key issues in need of re-thinking or potential reform. It provides a systematic and in-depth thematic account of the law and practice of the Court, including its changes context, the challenges it faces, and its overall contribution to international criminal law. The book is written by over forty leading practitioners and scholars from both inside and outside the Court. They provide an unparallelled insight into the Court as an institution, its jurisprudence, the impact of its activities, and its future development.

The work addresses the ways in which the practice of the International Criminal Court has emerged, and identifies ways in which this practice could be refined or improved in future cases. The book is organised along six key themes: (i) the context of International Criminal Court investigations and prosecutions; (ii) the relationship of the Court to domestic jurisdictions; (iii) prosecutorial policy and practice; (iv) the applicable law; (v) fairness and expeditiousness of proceedings; and (vi) its impact and lessons learned. It shows the ways in which the Court has offered fresh perspectives on the theorization and conception of crimes, charges and individual criminal responsibility. It examines the procedural framework of the Court, including the functioning of different stages of proceedings. The Court’s decisions have significant repercussions: on domestic law, criminal theory, and the law of other international courts and tribunals. In this context, the book assesses the extent to which specific approaches and assumptions, both positive and negative, regarding the potential impact of the Court are in need of re-thinking. This book will be essential reading for practitioners, scholars, and students of international criminal law.

The book includes my essay on Regulation 55 and an essay on co-perpetration by Jens. At £195, most people won’t be able to buy a copy. But four chapters are available for free download and most libraries are sure to acquire it.

Congratulations to Carsten on a tremendous accomplishment!

Appeals Chamber Fails To See the Forest — Complementarity Edition

by Kevin Jon Heller

Earlier this week, the Appeals Chamber rejected Cote d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo. The challenge was based on Gbagbo’s 20-year sentence for disturbing the peace, forming and organising armed gangs, and undermining state security. Like the Pre-Trial Chamber, the Appeals Chamber concluded that Gbagbo’s domestic convictions failed to satisfy Art. 17’s “same conduct” requirement, making her case admissible. Here are the key paragraphs:

99. The Pre-Trial Chamber found that the conduct underlying the alleged economic crimes was “clearly of a different nature” from the conduct alleged in the proceedings before the Court, and therefore “irrelevant”.171 The Pre-Trial Chamber further found that according to the documentation provided by Côte d’Ivoire, in particular Annex 8 to the Admissibility Challenge, the alleged conduct was characterised as [REDACTED].172 In view of the description of the alleged acts provided in the material submitted by Côte d’Ivoire, the Appeals Chamber finds that it was not unreasonable for the Pre-Trial Chamber to find this conduct to be of a different nature to Ms Gbagbo’s alleged conduct in relation to the crimes against humanity of murder, rape and other forms of sexual violence, persecution and other inhumane acts, on the basis of which the Warrant of Arrest was issued against her by the Court. In addition, Côte d’Ivoire does not explain why “excessively rigid distinction” between the crimes allegedly investigated domestically and those before the Court is erroneous.

100. As regards crimes against the State, the Pre-Trial Chamber noted that in the domestic proceedings it is alleged that Ms Gbagbo [REDACTED].173 The Pre-Trial Chamber further noted that, in the domestic proceedings, “there are references to, inter alia, the allegations of [REDACTED].174 The Pre-Trial Chamber observed that the provisions criminalising such alleged conduct are included in the section of the Ivorian Criminal Code concerning felonies and misdemeanours against the safety of the State, the national defence and the public security.175 The Pre-Trial Chamber concluded that the alleged conduct only includes [REDACTED] and therefore the domestic proceedings in question “do not cover the same conduct” that is alleged in the case before the Court.176 The Appeals Chamber finds that it was not unreasonable for the Pre-Trial Chamber to find, on the basis of the description of the alleged conduct contained in the documents provided by Côte d’Ivoire, read in light of the applicable provisions of the Ivorian Criminal Code, that this conduct, characterised as infringing [REDACTED], is not the same as that alleged before the Court. In addition, as indicated earlier, Côte d’Ivoire does not explain why “excessively rigid distinction” between the crimes allegedly investigated domestically and those before the Court is erroneous.

I have no doubt that the Appeals Chamber’s application of the “same conduct” requirement is correct. But I think it is important to once again ask a basic question about the requirement: what does the ICC gain by insisting that Cote d’Ivoire surrender Gbagbo to the Court to face a second prosecution? 20 years is a significant sentence — five years longer than Lubanga’s, and eight years longer than Katanga’s. Even if the OTP manages to convict Gbagbo, she is very unlikely to receive a substantially longer sentence. So why should the ICC waste the OTP’s precious and overstretched resources by trying Gbagbo again?

My answer, not surprisingly, remains the same: it shouldn’t. The ICC simply cannot afford the kind of hyper-formalism that underlies the “same conduct” requirement. As I have argued elsewhere, the Court should defer to any national prosecution that results in a sentence equal to or longer than the sentence the suspect could expect to receive at the ICC, even if the national prosecution is based on completely different conduct than the ICC’s prosecution.

In fairness to the Appeals Chamber, it’s worth noting that Gbagbo’s attorney challenged the Pre-Trial Chamber’s application of the “same conduct” requirement; she did not challenge the requirement itself. That’s a shame, because I think Gbagbo’s case perfectly illustrates why the Appeals Chamber should jettison the “same conduct” requirement. Would it? Probably not — as I note in my article, the requirement does have a clear textual basis in Art. 20 of the Rome Statute (“upward” ne bis in idem). But the Appeals Chamber has proven remarkably willing to ignore the Rome Statute when it proves inconvenient, so it would have been worth a shot — especially as the “same conduct” requirement is fundamentally inconsistent with the principle of complementarity’s emphasis on the ICC being a court of last resort . At the very least, challenging the requirement would have forced the Appeals Chamber to explain why the requirement’s waste of OTP resources is warranted. I would have liked to read that explanation.

Guest Post: Five Questions on the Colombian Sentencing Practice and the Principle of Complementarity under the Rome Statue

by Marina Aksenova

[Marina Aksenova is a post-doc in the Centre for Excellence for International Courts, Faculty of Law, University of Copenhagen.]

The ICC prosecution team has been conducting preliminary examinations in Colombia for over ten years and has yet to decide whether to move to the stage of formal investigations. In doing so, it must assess, among other things, whether reduced or suspended sentences rendered to senior perpetrators by the local judiciary are adequate in light of the gravity of the crimes committed during the continuing civil war. The ICC prosecution noted in its 2012 report on Colombia that some paramilitaries may benefit from the sentences of 5 to 8 years imprisonment if convicted of genocide, crimes against humanity, war crimes provided they demobilize. The matter is further complicated by the ICC’s capacity to frustrate the ongoing peace negotiations between the government and the FARC guerrillas. These talks aim at ending a conflict disrupting the country for over fifty years.

The issue of sentencing in Colombia illustrates the difficulties the Court faces in applying the principle of complementarity in practice. What are the exact criteria of assessing the state’s willingness to undertake genuine prosecutions? The ICC will evaluate domestic penalties with the reference to two different legal regimes provided by the Rome Statute – admissibility and sentencing. Up until now, the Court has not treated these two issues in conjunction with each other. The post discusses five specific concerns that this exercise may produce. This working paper elaborates on the context surrounding the questions presented below.

  1. Proportionality of sentences

The idea that a penalty must be in proportion to the gravity of the crime is widely accepted in international criminal law. In the Lubanga sentencing decision (para. 36), the ICC held that the ‘gravity of the crime’ is one of the principal factors to be considered in the determination of sentence, which should be in proportion to the offence and reflect the culpability of the convicted person. How will this consideration play out in the complementarity analysis? Will a sentence of 5 to 8 years of imprisonment for crimes against humanity and war crimes be considered grossly disproportionate?

The principle of complementarity presupposes the primacy of states in handling cases domestically. Thus, according to Article 17 of the Rome Statute, a case comes within the purview of the Court only if the crimes are of sufficient gravity and the country in question is unable or unwilling to address them via its national criminal justice system. Article 17(2) specifies that the state is ‘unwilling’ if it initiates the proceedings with an unjustified delay or with the purpose of shielding the person concerned from criminal responsibility or fails to conduct the proceedings independently or impartially – all of which signals lack of intent to bring the person concerned to justice. It is important that the offences allegedly prosecuted and investigated on a national level cover substantially the same conduct as those charged by the ICC, while legal characterization of the underlying incidents matters less.

Consequently, even if domestic prosecutions cover the ‘same conduct’ but result in disproportionately light penalties, this may evidence the state’s intent to shield some persons from responsibility, and, thus, render the case admissible to the ICC. There are three caveats to this argument. First, the ICC’s own sentencing practice so far has been rather lenient: Thomas Lubanga received a sentence of 14 years of imprisonment and Germain Katanga received a sentence of 12 years. The Lubanga analysis of proportionality suggests that no rigid guidelines are available for measuring the correlation between the gravity of the offence and the sentence. The Chamber in its sentencing decision (paras. 92-93) rejected the strict numerical approach suggested by the OTP and upheld its own discretion to assess the totality of factors when deciding on the ultimate number of years of imprisonment. The deficiencies in Mr. Lunbanga’s mens rea and his cooperation with the Court played an important role in the determination of his sentence.

Secondly, in the Al Senussi admissibility decision (paras. 218-219), the ICC dealt with the reverse situation  – the Defence argued that the threat of a death penalty, which the accused faced in Libya, rendered the case admissible because of the adverse effect on the accused. The ICC rejected this plea and granted local authorities a wide margin of appreciation when it comes to punishment, claiming it is not a human rights court. One might expect similar flexibility in cases on the other side of the spectrum.

Finally, Article 53(1)(c) of the Rome Statute allows some room for a manoeuvre granting the prosecution the power not to commence an investigation even where the situation is formally admissible if it serves the ‘interests of justice’. The ‘interests of justice’ is a broad category open to various interpretations, but ultimately it leaves the door open for a political compromise. The fragility of the Colombian peace talks is likely to fall within this category because arguably it provides for a valid reason not to proceed to the official investigations by the ICC.

  1. Participation of the convicted persons in political life

Participation of convicted persons in political life is a burning issue in the peace talks in Colombia. Many senior perpetrators have links to the government or the FARC and hope to remain in power after a deal has been reached. Even if certain leaders from both sides receive formal punishment, the question still remains whether these people will be allowed to form part of a future government. Is it possible to conceive of suspended or lenient sentences as sufficiently reflecting public censure if the convicted person re-enters politics? Can such punishment deter future violations by senior perpetrators?

The Rome Statute does not give any guidance as to whether convicted persons may participate in political life; it restricts the types of punishment to a maximum sentence of 30 years of imprisonment, fine and forfeiture of assets. If one looks at the broader picture, Article 27 renders the official capacity as is generally irrelevant to the ICC prosecutions. This provision is not directly relevant to sentencing, but it reflects the spirit of the Rome Statute. One might argue that for this reason alone the ICC may criticize participation of the convicted person’s in political life.

In its complementarity analysis, the ICC may also refer to the general sentencing practice of the respective state. The Colombian Criminal Code appears rather flexible in this regard; it leaves it up to the judges to decide whether to ban the offender from political life. The law provides for the suspension of rights and public functions as well as the loss of public office as an additional punishment for various offences, such as, murder of certain persons. Loss of public office can last up to 5 years, while suspension of other rights can vary from 5 to 20 years. In certain circumstances, rights can be restored at an earlier date (Articles 43(1), 43(2), 92, 135 of the Colombian Criminal Code).

The ICC is unlikely to be guided solely by the provisions of Colombian law, however. Instead, it is may look at the standards applicable in other states in an attempt to discern generally recognized principles of law deriving from the multitude of domestic legal systems. This is one of the sources of international law along with treaty and custom. It seems that in some jurisdictions there is a blanket prohibition to occupy public posts for those convicted of serious offences. For example, Article 45 of the German Criminal Code reads as follows: ‘Whoever is sentenced for a serious criminal offense to imprisonment for at least one year shall lose for a period of five years the capacity to hold public office and attain public electoral rights.’ This provision reflects an understanding that the public censure element of punishment is severely compromised if someone convicted of a grave offence is allowed to re-enter public life.

  1. Relevance of domestic law for the ICC complementarity analysis

The Rome Statute does not suggest that the ICC should consider the scale of penalties of the relevant state. Its determination of sentences shall solely be guided by the gravity of the crime, individual circumstances of the accused, and mitigating and aggravating factors. It is in contrast to the statutes of the ad hoc tribunals, which allow recourse to domestic law; although, it has rarely been seen in practice.

The ICC will assess Colombian criminal law in its complementarity analysis in the light of the principles enshrined in the Rome Statute and international law. The general principle is that the person cannot invoke domestic law to avoid responsibility under international criminal law. When it comes to the admissibility test, it is essential that the penalty imposed at the national level is not intended to shield the person from criminal responsibility.

  1. Disparity of sentences

The sentencing practice of the Colombian courts shows some disparity in sentences meted out to various parties to the conflict. Colombia attempts to bring to justice different responsible actors, but their penalties are significantly different. How will this aspect play out in the complementarity analysis of the ICC? The question of disparate sentences is tightly linked with the idea of individualized punishments and judicial discretion widely accepted at the ICC. There are a number of factors that might support Colombia’s claim for lenient (and, to a lesser extent, suspended) and/or disparate sentences.

Firstly, it seems that the ICC prosecution already pointed to broad discretion of the Colombian judiciary in its 2012 report (para. 206), when it confirmed that the ICC would examine local sentences individually on the basis of particular factors, such as, the intent to bring perpetrators to justice, the gravity of the crimes and the efforts to establish the truth. Secondly, the ICC practice itself shows relative leniency in its two available sentencing rulings. Thirdly, the reasoning in the Katanga sentencing decision (para. 38) exhibits a trend of integrating reconciliatory aims in sentencing considerations. Fourthly, the Rome Statute upholds the power of the prosecution to halt investigations if it is not in the ‘interests of justice’ in light of the gravity of the crimes and the interests of victims.

  1. Remedy to the victims

When combining two legal frameworks for the purposes of complementarity analysis, the ICC might have to decide where it stands on the issue of enforcement of human rights and victims’ rights. In the recent complementarity decision in the Al Senussi case (paras. 218-219), the ICC refused to act as a human rights court and rendered the case inadmissible, notwithstanding the death penalty threatening the accused. The Court’s view might be altered when victims’ rights are at stake, as is the case in Colombia. Both the Colombian national legislation and the Rome Statute contain provisions upholding victims’ rights in the process of criminal adjudication. Reduced sentences for war crimes and crimes against humanity may be at odds with the victims’ quest for justice. One way to resolve this contradiction is to ensure that victims receive adequate reparations for their suffering. It will not ‘offset’ the perceived impunity of senior perpetrators entirely, but it will help in mitigating the concern.

When the Left Shoots Itself in the Foot (IHL Version)

by Kevin Jon Heller

Last week, I made the mistake of relying on an article in Electronic Intifada about a recent speech by Moshe Ya’alon, the Israeli Defense Minister. Here are the relevant paragraphs in the article:

Israeli defense minister Moshe Yaalon on Tuesday said Israel would attack entire civilian neighborhoods during any future assault on Gaza or Lebanon.

Speaking at a conference in Jerusalem, Yaalon threatened that “we are going to hurt Lebanese civilians to include kids of the family. We went through a very long deep discussion … we did it then, we did it in [the] Gaza Strip, we are going to do it in any round of hostilities in the future.”

I probably should have known better than to rely on an article entitled, in relevant part, “Israeli defense minister promises to kill more civilians.” Prompted by a skeptical commenter, I watched the video of Ya’alon’s speech. And the video makes clear that the author of the article, Asa Winstanley, selectively quoted what Ya’alon said in order to make it seem like Ya’alon was advocating deliberately attacking civilians. In fact, Ya’alon was discussing a possible attack on a rocket launcher located in a civilian house and acknowledging that, if the IDF launched the attack, it was clear they were “going to hurt Lebanese civilians to include kids of the family.” The IDF launched the attack anyway, believing that the military advantage outweighed the certain civilian damage.

Bothered by being suckered into making such a significant mistake, I tweeted Winstanley about his selective quotation. Perhaps he had not actually seen the video? His response was disappointing, to put it mildly. Instead of acknowledging his mistake, he repeated the selective quote. I replied that the video made clear Ya’alon was talking about Israel’s proportionality calculation, not deliberate attacks on civilians, and pointed out that civilian damage is permissible under IHL unless the anticipated civilian damage caused by an attack is excessive in relation to the expected military advantage. I also noted that I thought the attack Ya’alon was discussing was still illegal, because in my view killing a number of civilians in order to take out one rocket launcher was disproportionate.

At that point, it’s safe to say, Winstanley simply lost it. Here are some of his tweets, with my thoughts in the parentheticals…

Regulation 55 and the Irrelevance of the Confirmation Hearing

by Kevin Jon Heller

It’s becoming an old story: the Pre-Trial Chamber (PTC) rejects a charged mode of liability after a confirmation hearing, so the OTP simply asks the Trial Chamber (TC) to give the defendant notice that it will consider convicting him on the basis of the rejected mode anyway. This time, the defendant is Laurent Gbagbo. The OTP initially alleged that Gbagbo is responsible for various crimes against humanity on the basis of Art. 25 in the Rome Statute — indirect co-perpetration; ordering, soliciting or inducing; and otherwise contributing to the commission of crimes — as well as command responsibility and superior responsibility. Following the confirmation hearing, the PTC confirmed all of the modes of liability in Art. 25, but declined to confirm command and superior responsibility, because those modes “would require the Chamber to depart significantly from its understanding of how events unfolded in Cote d’Ivoire during the post-electoral crisis and Laurent Gbagbo’s involvement therein.” Undeterred, the OTP then asked the TC to invoke Regulation 55:

The Office of the Prosecutor (“Prosecution”) requests that Trial Chamber I (“Chamber”) give notice to the Parties and participants pursuant to regulation 55(2) of the Regulations of the Court (“RoC”) that the legal characterisation of the facts confirmed by Pre-Trial Chamber I (“Pre-Trial Chamber”) may be subject to change to accord with a further alternative form of participation of the Accused Laurent Gbagbo (“Gbagbo”): superior responsibility under article 28(a) and (b) of the Rome Statute (“Statute”) for all crimes (“Request”).

I have explained at length in this article why the Rome Statute — Art. 61 in particular — does not permit the Trial Chamber to convict a defendant on the basis of an unconfirmed mode of liability, so there is no need to repeat the argument here. Suffice it to say that the OTP’s request, which will almost certainly be granted by the TC (if past practice is any guide), continues the confirmation hearing’s long, slow slide into irrelevance. Given how the TC and Appeals Chamber have (wrongly) interpreted Regulation 55, the confirmation hearing actually “confirms” nothing; it just provides suggestions to the TC concerning how it might choose to convict the defendant. If the TC wants to go a different direction and convict the defendant on the basis of an unconfirmed mode of participation, no problem. It can simply “recharacterize” the facts and circumstances proven at trial.

Discerning readers might wonder how a defendant is supposed to prepare his defence in such a situation. Isn’t the entire point of the confirmation hearing to inform the defendant of the crimes and modes of liability he will have to rebut during trial? Yes — which is the fundamental problem with Regulation 55 as the judges have interpreted it. Because of their interpretation, defendants now have only two potential strategies at trial: (1) prepare a defence to every possible legal characterization of the facts and circumstances in the charge sheet — all possible crimes and all possible modes of liability; or (2) ignore the law entirely and focus solely on rebutting the facts and circumstances themselves. The first strategy is effectively impossible — and it’s very unlikely the TC would even let a defendant do it. (“Sorry, you have to pick one or two theories of the case — even though we can pick any theory we want down the track.”) And the second strategy is inconsistent with the nature of the adversarial trial contemplated by the Rome Statute. Defendants are (supposed to be) charged with specific crimes on the basis of specific modes of liability; they are not charged with bare facts and circumstances.

It’s a shame that the ICC’s judges have allowed Regulation 55 to metastasise into the ultimate judicial hammer — a one-size-fits-all tool for saving the OTP from its own poor charging decisions and ineffective trial advocacy. (See, e.g., Katanga.) But, of course, it’s not a surprise. After all, the judges wrote the Regulation themselves.

Guest Post: The End of the Road for Ngudjolo and the Stacked Odds Against ICC Acquitted

by Emma Irving

[Emma Irving is a PhD Researcher at the University of Amsterdam School of Law, and a visiting researcher at Cornell University.]

Earlier this week was the final instalment of the story of the International Criminal Court’s (ICC) first acquittal, with the removal of Mathieu Ngjudjolo Chui from the Netherlands back to the Democratic Republic of Congo (DRC).

It was not altogether surprising when the Appeals Chamber of the ICC upheld the Ngjudjolo’s acquittal on the 27th February this year. What was surprising was the events that followed. Immediately following the judgment, Ngudjolo was escorted by Dutch police to Schiphol International Airport to be deported back to the Democratic Republic of Congo. The plane made it all the way to the runway before being dramatically called back: Ngudjolo was to have his asylum application heard a second time.

Ngudjolo first applied for asylum in the Netherlands in 2012 after he was acquitted by the ICC Trial Chamber. In this case too he made it all the way to Schiphol Airport, but not quite onto a plane, before the Dutch authorities halted the deportation. Ngudjolo contended, and still does, that he would be at risk if returned to the DRC. The Dutch authorities responded to these claims by stating that Ngudjolo had not provided enough evidence of the risks he faced, and that in any event he was excluded from refugee protection as a suspected war criminal. The issue was appealed all the way to the Council of State, the highest administrative body in the Netherlands, which ultimately sided with the Dutch government. It held that Article 1F of the 1951 Refugee Convention, which disqualifies an individual from refugee status if they are suspected of having committed war crimes or crimes against humanity, could be applied despite an acquittal by the ICC. The Council deemed that the evidentiary standard for exclusion was lower than in criminal cases, and that Ngudjolo’s acquittal did not remove suspicion of his involvement in other crimes. The asylum application was denied.

Such is how matters stood up until the appeal judgment. Ngudjolo’s legal team secured a second asylum hearing after he was acquitted on appeal, stopping his immediate deportation. However, on the 23rd of April 2015, this application was also refused. While Ngudjolo can appeal this decision, an appeal will not have suspensive effect, and his deportation was scheduled for the 1st May. For a more detailed procedural history see here and here.

After an application for residence in Switzerland on humanitarian grounds was turned down, Ngudjolo reached the end of the road in terms of preventing his return to the DRC. And that road seemed to be a dead-end all along. The odds were stacked against Ngudjolo from the beginning: 1) he was in a catch-22 position as regards acting as a witness in his own defence, 2) the ICC did not act to assist him, and 3) he could not cast his asylum seeking net beyond the Netherlands.

To begin with Ngudjolo’s role as a witness, he was caught in a no-win situation. Although important in securing his acquittal, the content of Ngudjolo’s testimony prejudiced his position on release. It both prevented him from returning home, and prevented him from remaining in the Netherlands. As regards returning home, Ngudjolo made statements against the DRC government, and in particular, provided a letter that incriminated the DRC government in the attack on the village of Bogoro, for which he himself was standing trial. Speaking out against the powers-that-be in the DRC, Ngudjolo claims, has placed him at great risk. As to remaining in the Netherlands as a refugee, Ngudjolo’s testimony handed the Dutch authorities the evidence they needed to exclude him from refugee protection. In order to prove that he was not involved in the Bogoro attack, Ngudjolo provided details as to his position in the militia hierarchy. The Dutch authorities then used this information, combined with other reports about the conflict, to invoke Article 1F. For reasons that the ICC has kept confidential, Ngudjolo was also excluded from ICC witness protection. He was therefore stuck in a lose-lose situation: give evidence in his own defence but have nowhere to go if acquitted, or do not give evidence and increase the chance of conviction.

Then there was the inaction on the part of the ICC. The dilemma of acquitted persons who cannot return to their home countries is by no means new. The International Criminal Tribunal for Rwanda (ICTR) has been dealing with this thorny issue for years, and still has no firm resolution – while the Tribunal may have wrapped up at the end of last year, there are still acquitted persons living in a safehouse in Arusha. It is perhaps this legacy that has prompted the ICC to act the way it has: to simply open its doors and allow acquitted persons to walk out (and be arrested). Granted, when a person is cleared of all charges, the right to liberty requires their release, as does the Rome Statute (Article 81(3)(c)). However, as Ngudjolo’s case demonstrates, this is not always ideal. When it comes to acquitted persons, the Rules of Procedure and Evidence also have something to say. Rule 185 obliges the Court to make such arrangements as it considers appropriate for the transfer of an acquitted person, taking into account the person’s views, to a State. This can be a State that is obliged to receive the acquitted person, a State that has agreed to receive the person, or a State that has sought the acquitted person’s extradition.

From a reading of the text of Rule 185 alone, it would seem that the ICC can order a transfer to any State willing or obliged to receive the individual. But then there is Article 21(3) Rome Statute. This Article requires that all law applicable to the ICC be interpreted and applied in accordance with internationally recognised human rights norms, of which non-refoulement is one. It is argued that when Rule 185 is read with Article 21(3), it must mean that the ICC cannot order a transfer to a State where the individual would be at risk. This application of Rule 185 would require the creation of a procedure to decide where the acquitted person is to go before they are released. A comparable process is undertaken when an accused is considered eligible for interim release; a hearing must be held in which a State willing to host the accused is identified. Neither this approach to Rule 185, nor apparently any other, was taken in Ngudjolo’s case. His release and hand over to the Dutch police seems to have been done with no formal decision on where he would be taken, at least none that is transparent and publicly available.

The final obstacle facing Ngudjolo was the fact that the Netherlands was his only option for seeking asylum. The construction of the Refugee Convention is such that no other State is obliged to hear an asylum application from him, as he is neither on their territory nor at their border. For this reason he is only able to make applications for humanitarian residence, or variations of, which are entirely discretionary (this limitation is what led to the chronic problem of acquitted persons at the ICTR). The consequence is the overburdening of The Netherlands with asylum claims from not only acquitted, but also witnesses. It is perhaps not surprising that the Netherlands has fought hard against such applications, for fear of establishing a precedent.

In the end it was May 11th, rather than May 1st, that saw Ngudjolo deported from the Netherlands. Interestingly, the website for the 1533 Sanctions Committee still lists Ngudjolo as being subject to a UN travel ban, although this does not seemed to have proven a hindrance. The Ngudjolo case is another instalment in the story of the ICC’s growing pains, and in The Netherlands’ fight to minimise the impact of it hosting the Court. This story will go on as the ICC continues its operations and more judgments are rendered, and it is hoped that in future the odds become a bit more evenly distributed.

Must Read: Darryl Robinson on the ICC’s “Inescapable Dyads”

by Kevin Jon Heller

Darryl is one of my very favourite international criminal law scholars. Indeed, I think he is the leading purveyor of what we might call “meta” ICL scholarship — scholarship that is concerned less with doctrine than with the nature of ICL reasoning and rhetoric itself. His article “The Identity Crisis of International Criminal Law” is a genuine classic, and I learn from everything he writes. So it is with great pleasure that I call readers’ attention to Darryl’s brilliant new article, just published in the Leiden Journal of International Law. It’s entitled “Inescapable Dyads: Why the ICC Cannot Win,” and here is the abstract:

The International Criminal Court (ICC) is surrounded by controversies and criticisms. This article highlights some patterns in the arguments, showing that many plausible criticisms reflect inescapable dyads. For any position that Court could take, one or more powerful criticisms can inevitably be advanced. The tension can be obscured because shared terms are often recruited for opposite meanings. Awareness of these patterns can (i) provide a framework to better situate arguments, (ii) reveal the deeper complexity of the problems, and (iii) help us to evaluate and improve upon the arguments. Awareness of dyadic structures can lead to a debate that is more generous, as we acknowledge the difficulty and uncertainty of choosing among flawed options, yet also more rigorous, as we attempt to articulate and improve upon our frameworks of evaluation. The goal of this article is to encourage a better conversation that can generate better insights.

The article is a must-read for anyone interested in ICL. You can find the published version here (free until end of October 2015) and an earlier SSRN draft here.

Breaking the Silence — About Israel’s Assault on Gaza

by Kevin Jon Heller

The irreplaceable Breaking the Silence has released a new report on Operation Protective Edge — and it’s a doozy. Here are some particularly disturbing snippets from the Guardian‘s article on the report, which contains dozens of testimonials by past and present IDF soldiers:

“[The commander] said: ‘We don’t take risks. We do not spare ammo. We unload, we use as much as possible.’”

“The rules of engagement [were] pretty identical,” added another sergeant who served in a mechanised infantry unit in Deir al-Balah. “Anything inside [the Gaza Strip] is a threat. The area has to be ‘sterilised,’ empty of people – and if we don’t see someone waving a white flag, screaming: “I give up” or something – then he’s a threat and there’s authorisation to open fire … The saying was: ‘There’s no such thing there as a person who is uninvolved.’ In that situation, anyone there is involved.”

“The rules of engagement for soldiers advancing on the ground were: open fire, open fire everywhere, first thing when you go in,” recalled another soldier who served during the ground operation in Gaza City. The assumption being that the moment we went in [to the Gaza Strip], anyone who dared poke his head out was a terrorist.”

Soldiers were also encouraged to treat individuals who came too close or watched from windows or other vantage points as “scouts” who could be killed regardless of whether there was hard evidence they were spotting for Hamas or other militant groups. “If it looks like a man, shoot. It was simple: you’re in a motherfucking combat zone,” said a sergeant who served in an infantry unit in the northern Gaza strip.

“A few hours before you went in the whole area was bombed, if there’s anyone there who doesn’t clearly look innocent, you apparently need to shoot that person.” Defining ‘innocent’ he added: “If you see the person is less than 1.40 metres tall or if you see it’s a lady … If it’s a man you shoot.”

In at least one instance described by soldiers, being female did not help two women who were killed because one had a mobile phone. A soldier described the incident: “After the commander told the tank commander to go scan that place, and three tanks went to check [the bodies] … it was two women, over the age of 30 … unarmed. They were listed as terrorists. They were fired at. So of course they must have been terrorists.”

The soldiers’ descriptions are disturbingly reminiscent of the notorious “free fire” zones in Vietnam and the US government’s well-documented (and erroneous) belief that signature strikes directed against “military-age men in an area of known terrorist activity” comply with IHL’s principle of distinction. The testimonials are, in a word, stunning — and put the lie to oft-repeated shibboleths about the IDF being “the most moral army in the world.” As ever, the stories told by the IDF and the Israeli government are contradicted by the soldiers who actually have to do the killing and dying.

You can find the report here. And if you’re interested in a predictable right-wing attempt to discredit the report — which basically just complains that Breaking the Silence doesn’t release the identity of the soldiers who gave testimony (gee, can’t imagine why not…) — see here.

Guest Post: The Complexity of International Trials Is Necessary

by Stuart Ford

[Stuart Ford is an Assistant Professor at The John Marshall Law School.]

International criminal trials are extremely complex. The average trial at the International Criminal Tribunal for the former Yugoslavia (ICTY) takes 176 trial days and involves more than 120 witnesses and 2,000 exhibits. See here at table 2. In comparison, the average criminal trial in the United States takes less than one day, and even the average murder trial takes only three or four days. Id. at 53-55. As a result, there is a widespread belief that international criminal trials are too complex, and international tribunals have come under enormous pressure to reduce that complexity. See here at Part I.

The ICTY, for example, made a number of changes to the Rules of Evidence and Procedure that were intended to reduce trial complexity. See, for example, here. Professors Langer and Doherty found that those changes failed to reduce the complexity of the ICTY’s trials, but why? The answer is important because if we understood what drove the complexity of international trials, perhaps we could find ways to reduce their complexity (and the associated cost) without undermining the purposes of international criminal justice.

My latest project attempts to answer that question by taking the complexity data I collected for my earlier work on the efficiency of international criminal courts and using it to build a model of trial complexity. Trial complexity is the response variable in the model, while the explanatory variables were based on a number of hypotheses about what might cause trial complexity. The hypotheses are summarized below:

H1 Complexity increases as the number of accused tried together increases
H2 Complexity increases as the seniority of the accused in the political and military hierarchy increases
H3 Complexity increases as the total number of counts in the indictment increases
H4 Complexity increases as the number of crime sites in the indictment increases
H5 Complexity increases if the accused are charged with genocide
H6 Complexity increases is the accused are charged as members of a joint criminal enterprise (JCE)
H7 Complexity increases if the accused are charged under a theory of superior responsibility
H8 Complexity decreases if the accused are charged as a direct perpetrators

The association between the hypotheses and trial complexity was then tested using a multiple regression model. The results of the regression are presented below:

Model Results
Variable Effect Size Significant
Total Accused   0.077 Yes
Seniority   0.065 Yes
Total Counts   0.0061 Yes
Crime Sites   0.0006 No
Genocide   0.066 No
JCE   0.048 No
Superior Responsibility -0.088 No
Direct Perpetrator -0.20 Yes

The results suggest that international tribunals will have a very hard time reducing the complexity of their trials. First of all, the number of crime sites is not significant in the model. Thus simply permitting the judge to impose limits on the number of crime sites in the indictment will probably not be successful. The number of counts in the indictment is statistically significant, but the magnitude of the effect is very small, indicating that any reduction in the overall complexity from imposing limits on the number of counts would also be small. Neither the mode of liability used to prosecute the accused or the legal qualification of the charge had a statistically significant effect on trial complexity either.

In contrast, two factors are both statistically significant and have a large impact on the resulting trial complexity. The most important factor is the accused’s seniority within their respective military or political hierarchies. The complexity that resulted from increasing the accused’s seniority by one level was approximately equivalent to adding an additional ten counts to the indictment. Direct perpetration also had a large impact on overall complexity. Accused who were alleged to be direct perpetrators of violence (i.e., they carried it out themselves), had significantly shorter trials.

The figure below shows the relative contributions of the various factors to the complexity of the median ICTY case. The seniority of the accused and whether the accused was a direct perpetrator account for the majority of the resulting trial complexity.


So, what does this all mean? The results suggest that the key factor driving the complexity of international criminal trials is the geographic and organizational distance of the accused from the crimes they are alleged to be responsible for. Indirect perpetration, where the accused is alleged to be legally responsible for crimes that were physically carried out by others, is a hallmark of international criminal trials. Such individuals tend to be distant, both organizationally and geographically, from the violence that results. (In the model, this distance is captured by the seniority and direct perpetration variables.) As a result, proving that they are criminally responsible for the acts of the direct perpetrators is very difficult and accounts for the bulk of the trial’s complexity.

This has implications for the future of international trials. For at least the last ten years, international tribunals have sought to reduce trial complexity by tinkering with the rules of procedure and evidence. This is unlikely to ever be successful because changes in the procedure cannot change the accused’s seniority or whether that person is a direct perpetrator.

There are some ways that trial complexity could be reduced, but they all come with fairly serious drawbacks. For example, courts could significantly reduce complexity by trying only low-level direct perpetrators. For policy reasons, however, international courts have been encouraged to focus on the most senior leaders. See, for example, here at 71-74. The result is very complex and expensive trials.

Making international criminal law a strict liability regime would also probably reduce complexity significantly by reducing the difficulty of linking accused to crimes from which they are organizationally and geographically distant. The cost, however, would be too high. Strict liability crimes are only appropriate when the violation is not associated with strong moral condemnation and the penalties are small. Serious violations of international criminal law, however, involve both stiff penalties and strong moral condemnation. Importing strict liability into international criminal law would be extremely undesirable, even if it did dramatically reduce trial complexity.

Another possibility would be to embrace symbolic charging at international tribunals. My calculations (see here at 38-42) indicate that using symbolic charging rather than representative charging would have reduced trial complexity at the ICTY by, at best, about a quarter. At the same time, it would have made it significantly harder for the court to achieve its goals by limiting its ability to inform the historical record, promote post-conflict reconciliation, and help victims find closure. These are important goals of international criminal justice and they are probably not worth compromising for a relatively modest reduction in trial complexity.

Finally, an increased use of plea bargaining might be another way to reduce overall trial complexity by simply avoiding the need to have some trials. Unfortunately, it is unlikely to have a significant impact because the cases involving the most senior leaders are the cases least likely to be resolved through a plea bargain and simultaneously the largest source of trial complexity. Prosecutors, for instance, are probably reluctant to enter into a plea deal with the individuals they believe masterminded the crimes. At the same time, senior accused are more likely to see their prosecutions in political terms and thus less likely to accept a plea deal. Indeed, the majority of plea bargains at the ICTY were accepted by low to mid-level accused.

The last ten years have seen most international tribunals focus their efforts on the most senior leaders, almost none of whom are direct perpetrators of violence.   The unsurprising result is trials of enormous complexity. Moreover, this complexity is largely out of the hands of individual judges and prosecutors. It arises from the policy decision to focus on senior leaders, and the model suggests it cannot be meaningfully changed by tinkering with the rules of procedure and evidence. The cost and complexity of international criminal trials is a necessary consequence of that policy decision.

The Advantage for Palestine of a Slow Preliminary Examination

by Kevin Jon Heller

Nearly everyone treats Palestine’s membership in the ICC as a done deal; after all, the UN Secretary-General (UNSG) has accepted Palestine’s accession to the Rome Statute and the OTP has publicly stated that “since Palestine was granted observer State status in the UN by the UNGA, it must be considered a ‘State’ for the purposes of accession.” But neither the UNSG nor the OTP has final say over whether Palestine qualifies as a state; as Eugene Kontorovich, my friend and regular Israel/Palestine sparring partner, has repeatedly pointed out on Twitter (see here, for example), statehood is a legal issue that the ICC’s judges will eventually have to decide.

Unlike Eugene, I would be very surprised if the judges second-guessed the UNSG and the OTP and held that Palestine does not qualify as a state. But it’s certainly possible. So here is something for Palestine to consider: because the ICC’s judges cannot make a determination concerning Palestine’s statehood until the OTP has decided to formally investigate the situation, the longer the preliminary examination takes, the longer Palestine will have to make it more difficult for the judges to decide against it.

I don’t want to get into too much detail about the relevant provisions in the Rome Statute; a brief summary should suffice. Art. 15, which concerns proprio motu investigations — the current situation regarding Palestine, because the OTP treats an Art. 12(3) declaration as a request for an Art. 15 investigation — does not permit the Pre-Trial Chamber (PTC) to determine whether a situation “appears to fall within the jurisdiction of the Court” until the OTP has asked it to authorise a formal investigation. Art. 18, which in certain circumstances requires the OTP to defer to state investigations of specific suspects, also does not apply until the OTP has decided to formally investigate (whether proprio motu or on the basis of a state referral). And Art. 19, the basic complementarity provision, does not permit a state to challenge admissibility until there is a specific case pending and does not permit a suspect to challenge admissibility (which includes jurisdiction) until a warrant for his arrest or a summons for his appearance has been issued — both of which occur subsequent to the opening of a formal investigation.

There is, in short, only one party that can ask the PTC to decide a jurisdictional issue prior to the commencement of a formal investigation: the OTP itself. That’s Art. 19(3). And it’s safe to say that the OTP won’t ask the PTC to determine whether Palestine qualifies as a state before it has to.

That means, of course, that it could easily be years before the PTC gets to weigh in on the issue of Palestinian statehood. Why is that a good thing for Palestine? Most obviously, because it gives it more time to get its statehood ducks in a row — acceding to more international conventions, resolving internal political differences, seeking additional recognitions of Palestine as a state, etc. More importantly, though, it gives Palestine time to become an integral member of the Court, thereby increasing the institutional pressure on the PTC to conclude that it is a state. Assume that the OTP takes four years to open a formal investigation, which would be relatively quick by OTP standards. Palestine could — and should! — take advantage of that gap to pay dues each year to the ICC; to attend the annual sessions of the ASP (as it did as an observer in the 13th Session) and participate in its intersessional work; to nominate Palestine’s delegate to the ASP for a position in the Bureau; and (better still) to nominate a Palestinian as a judge. After four years of such involvement, it would be very difficult for the PTC to conclude that Palestine was not a state, given that such a decision would force the ASP to expel the Palestinian delegate, (presumably) refund four years of Palestine’s dues, and perhaps even unseat a Palestinian judge.

I’m sure some readers — particularly those who believe that Palestine cannot qualify as a state as long as Israel illegally occupies its territory — will find my strategy cynical. Perhaps it is — but it would hardly be the first time a state acted strategically with regard to an international organisation. After all, Israel is the culprit-in-chief in that regard; its favourite strategy, which is the height of cynicism, is to refuse to cooperate with an international investigation and then dismiss the results of that investigation as “one-sided” and thus biased. Moreover, I use the term “state” with regard to Palestine deliberately; contrary to the view of many pro-Israel commentators, the Montevideo criteria do not remotely doom Palestine’s claim to statehood. On the contrary, I believe Palestine has legally qualified as a state under those criteria for many years. But that is a subject for another day. (Interested readers can start with this brief, written by Errol Mendes.)

For now, Palestine needs to take full advantage of its admittedly provisional membership in the ICC. As a wise man once said, if it walks like a duck and quacks like a duck…