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International Criminal Law

Another Terrible Day for the OTP

by Kevin Jon Heller

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

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

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

All in all, another terrible day for the OTP.

International Law: Not Helping to Resolve the Ukraine Crisis

by Julian Ku

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

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

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

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

Mueller on Kenya and the ICC

by Kevin Jon Heller

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

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

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

A Modest Suggestion for the Ukrainian Parliament (Updated)

by Kevin Jon Heller

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

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

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

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

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

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

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

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

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

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

Lecture Next Week at UCL

by Kevin Jon Heller

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

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

Wednesday 5 March 2014, 6-7pm

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

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

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

The Reprieve Drone Strike Communication I — Jurisdiction

by Kevin Jon Heller

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

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

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

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

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

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

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

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

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

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

Guest Post: Bartels–Temporal Scope of Application of IHL: When do Non-International Armed Conflicts End? Part 2

by Rogier Bartels

[Rogier Bartels is a Legal Officer (Chambers) at the International Criminal Court and a research-fellow at the Netherlands Defence Academy. The views below are the author’s alone.]

The first part of this post discussed that a non-international armed conflict (NIAC) ends when the NIAC-criteria (a certain level of organisation of the parties groups, and a certain intensity of the armed violence) are no longer both present.

At the ICTY, the various trial chambers seized of cases concerning Kosovo and Macedonia had to consider the lower threshold for the start of (or continued existence of) a NIAC. The Boškoski and Tarculovski Trial Chamber, for example, gave a detailed overview of the indicators used so far and reviewed how the relevant elements of Common Article 3 recognised in Tadić (organisation and intensity; see Tadić TJ, para. 562) are to be understood. Its findings were confirmed by the Appeals Chamber (see Boškoski and Tarculovski AJ, paras 19-24). Certain “factors”, and a number of “indicators” thereof, were identified that need to be taken into account when assessing the organisation and intensity criteria. These factors have since been adopted by the Lubanga Trial Chamber in the first ICC judgment (paras 537-538).

If agreed that a NIAC ends when the criteria of “intensity” and “organisation” no longer exist, using these factors and indicators identified in the case law, could be helpful in determining such an ending. Naturally, not all indicators are of assistance. Most notably, the indicator of the existence of (attempts to broker) ceasefire agreements shows that parties considered that there was an armed conflict took place (at the time of the alleged crimes), but obviously does not answer the question whether the conflict continued or ended after such agreements.

Other indicators cannot easily be applied ‘in reverse’. A reversed examination of “the extent of destruction”, for example, would be difficult, as it is hard to assess whether damage diminishes if only few buildings are left standing or if few potential targets remain. The lack of (new or ongoing) damage may well be due to these circumstances, rather than result from the end of the conflict. Nevertheless, an indicator merely serves to ‘indicate’ the existence of an NIAC, and has to be seen in relation to the other indicators: if few military objects remain and a prolonged period occurs during which no targets are attacked, this may well be a sign that the conflict has ended.

In addition, some indicators could be adapted. Instead of looking at the (type of) weapons used, an indicator could be the effectiveness of a disarmament programme: the type and amount of weapons handed in vis-à-vis the initial number of fighters or the approximate type and number of weapons initially deployed. For the indicator of refugee flows from combat zones, one could look, rather than at the number of civilians fleeing an area, at the number of civilians returning home, i.e. considering their pre-conflict place of residence safe enough to return to. (That is not to say that a conflict could never be considered as ended when refugees and or IDPs do not return to their homes as this may be caused by other factors, such as, a changed ethnic composition of the area concerned, lack of cooperation by the government and/or measures implemented by the victorious party).

When peace agreements, as suggested by Tadić, are considered to be the end of NIACs, the focus appears to be laid on the intensity requirement. The discussion regarding the start of the Syrian NIAC (see here for an overview), however, has highlighted the (greater) importance of the organisational requirement. Between the two NIAC-criteria, organisation is the most relevant for the assessment of the end of such conflicts. The decline in organisation of one or more of the parties to the conflict can result in a security vacuum when the controlling regime (i.e. the state or the rebel force) gives way and the resulting (state) apparatus is not (yet) able to provide for effective security. Also, the opposing party will mainly target the organisational structure of an armed group. Whilst targeting the leadership was relatively uncommon in IACs, it has been the main goal in NIACs. It appears also the most effective way to bring about the end of such a conflict. See, for example, the killing of LTTE leader Prabhakaran in 2009, the effects of air strikes killing commanders of the FARC, and the (drone) attacks by United States on the Al-Qaeda leadership. Furthermore, intensity or ‘protractedness’ is hard to pinpoint on a specific moment, because some time element – despite claims to the contrary (see, e.g., the ICTY’s Delalić et al. TJ, para 184 and Kordić and Cerkez AJ, para. 341) – is still inherent in this requirement. Moreover, small break-away fractions of an armed group could continue to carry out attacks, or sectarian violence could go on after – or perhaps result from – the disappearance of the organisational structure of one or more of the fighting parties. Take, for example, the situation in Libya in the period after the defeat of the Gaddafi regime and the forming of the new government by the rebels.

My submission that NIACs end when the level of violence and/or organisation drops below a certain lower threshold, has consequences for the application of IHL and consequently for the protection afforded by IHL. It may be feared that it would lead to “legal uncertainty and confusion” (compare Gotovina et al TJ, para. 1694). In practice, however, having an end-threshold should not create a gap in protection, hence no uncertainty – or at least no more uncertainty than as to the start of the application of IHL at the beginning of a NIAC. Using the lower threshold for the application of IHL ‘in reverse’ in order to determine the end of a NIAC may actually allow for a smoother transition between the law governing the use of force during armed conflict (conduct of hostilities paradigm) and the law governing force outside situations of armed conflict (law enforcement paradigm). It makes sense to gradually move towards a law enforcement approach in the end stages of a NIAC. When the intensity of the fighting has decreased, and/or organisational structure of concerning groups has broken down, to such an extent that it no longer reaches the lower threshold, persons belonging to a (partly or fully broken down) group, would not be “directly participating in hostilities” in the traditional sense, but rather find themselves in a situation where the opposing party controls the territory they are in. As advocated elsewhere (albeit received with much criticism; see here for an overview), the opposing party should then apply the human rights/law enforcement approach when taking action against these persons. If it is unclear whether or not a situation of armed conflict continues to exist, the attacking party should err on the safe side and apply the least amount of force necessary (i.e. in line with law enforcement type of proportionality). This also follows from a moral as well as practical point of view: if the conflict is ending, what would be the benefit of and why would one want to continue to kill the opponents, rather than to start thinking about a process that would bring a lasting peace after the conflict?

The breakdown of the organisational structure of an armed group (which will, amongst other things, be indicated by the inability to carry out military operations) should result in the cessation of the “continuous combat function” of members of that group, thereby limiting the right to target the persons concerned. For those advocating for the so-called “membership approach”, no problem arises either: an even further breakdown of the group’s organisational structure would result in the concerning persons ceasing to be ‘members’; and thus targetable. After all, there needs to be a group or organisation in order for someone to be a member of it.

To sum up, it is my hypothesis that NIACs do not necessarily end only by virtue of a peace settlement being reached, but rather by the more factual circumstance of the level of “organisation” and “intensity” falling below the threshold set for the application of IHL. To assess when NIACs end, one could resort to using the factors and indicators for determining the lower threshold for the start of such conflicts, as identified by the ICTY in its voluminous case law. However, they are to be applied on a case-by-case basis, as not all of them are adaptable to the specific circumstances in which some conflicts take place.

New Book: Lewis, The Birth of the New Justice

by Kevin Jon Heller

I rarely get excited about a new book before I’ve read it — but I’m excited about this one, Mark Lewis’s The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919-1950. Here is OUP’s description:

The Birth of the New Justice is a history of the attempts to instate ad hoc and permanent international criminal courts and new international criminal laws from the end of World War I to the beginning of the Cold War. The purpose of these courts was to repress aggressive war, war crimes, terrorism, and genocide.

Rather than arguing that these legal projects were attempts by state governments to project a “liberal legalism” and create an international state system that limited sovereignty, Mark Lewis shows that European jurists in a variety of transnational organizations derived their motives from a range of ideological motives – liberal, conservative, utopian, humanitarian, nationalist, and particularist. European jurists at the Paris Peace Conference in 1919 created a controversial new philosophy of prosecution and punishment, and during the following decades, jurists in different organizations, including the International Law Association, International Association for Criminal Law, the World Jewish Congress, and the International Committee of the Red Cross, transformed the ideas of the legitimacy of post-war trials and the concept of international crime to deal with myriad social and political problems. The concept of an international criminal court was never static, and the idea that national tribunals would form an integral part of an international system to enforce new laws was frequently advanced as a pragmatic-and politically convenient-solution.

The Birth of the New Justice shows that legal organizations were not merely interested in ensuring that the guilty were punished or that international peace was assured. They hoped to instil particular moral values, represent the interests of certain social groups, and even pursue national agendas. At the same time, their projects to define new types of crimes and ensure that old ones were truly punished also sprang from hopes that a new international political and moral order would check the power of the sovereign nation-state. When jurists had to scale back their projects, it was not only because state governments opposed them; it was also because they lacked political connections, did not build public support for their ideas, or decided that compromises were better than nothing.

A book of this nature is much needed — the era between WW I and WW II has not received anywhere near enough attention from international criminal law scholars. I hope the book is good! (I will report back once I’ve read it.)

Guest Post: Bartels–Temporal Scope of Application of IHL: When do Non-International Armed Conflicts End? Part 1

by Rogier Bartels

[Rogier Bartels is a Legal Officer (Chambers) at the International Criminal Court and a research-fellow at the Netherlands Defence Academy. The below post discusses an argument made at a conference organised by the Grotius Centre for International Legal Studies in June 2012, that is expanded on in a chapter in the forthcoming book Jus Post Bellum (edited by Carsten Stahn et al.). The views below are the author’s alone.]

Over the past weeks, several ceasefire and peace agreements were concluded in a number of non-international armed conflict (NIAC) situations: in South-Sudan, the Philippines and Myanmar. The Syrian negotiations in Geneva have only yielded minor success, but those between the Colombian government and its longstanding enemy, the FARC, appear to have been more constructive. Nonetheless, all too often when there are peace talks or even peace agreements in a country, the fighting between the opposing sides does not (immediately) cease (see, e.g., here and here). In this post, I will address the end of temporal scope of the law applicable to the fighting in NIAC, i.e. international humanitarian law (IHL) and when such NIACs can be considered as ended.

Although certain provision of international humanitarian law (IHL), or laws of armed conflict, apply in peace time (e.g., Arts 47 and 53 of GC I) or continue to apply for a certain period after the end of the armed conflict (like Art. 5 of AP II), the application of the vast majority of IHL rules is dependent on the existence of an (international or non-international) armed conflict. Whilst the scope of application included in Common Articles 2 and 3 of the Geneva Conventions of 1949 initially, of course, pertained only to these treaties, it has become accepted over time that said scope governs the application of the whole body of IHL; thus also for the rules contained in, e.g., the weapon treaties and customary IHL. Yet, one of the glaring gaps in IHL concerns its very foundation, namely the question of the definition of ‘armed conflict’. IHL does not provide a clear definition for either type of armed conflict: international armed conflict (IAC) or NIAC. A definition for NIACs was purposely left out of the 1949 Conventions and their Protocols, and it is true that a single definition may not be able to encompass all varieties of contemporary armed conflict. However, without a clear definition, determining when conflicts start is problematic; and it is similarly problematic to determine when they end.

Ever since IHL became applicable to conflicts that are “not of an international character” (i.e. with the inclusion of Common Article 3 in the 1949 Geneva Conventions), there has been much debate on what is to be considered a NIAC, and when the threshold of violence has surpassed a situation of mere internal disturbances, civil unrest or riots. The existence of an armed conflict allows States to take more forceful action, such as the use of lethal force against ‘fighters’ and/or against those directly participating in hostilities. In addition, when called upon to determine whether (war) crimes were committed, courts and tribunals must assess whether in the situations before them, an armed conflict existed – either to satisfy their jurisdictional requirements or to identify the applicable body of law. It is therefore of no surprise there has been extensive legal and academic debate, as well as voluminous case law on what qualifies as a NIAC, and on when the so-called lower threshold for NIAC has been crossed. The debate has almost solely focused on the start of these armed conflicts. In contrast, very little has been written on the temporal application of IHL, or indeed, on the end of these armed conflicts.

Common Article 3 does not refer to an end of its application. Similarly, Additional Protocol II refers to the “end of the armed conflict” (Articles 2(2) and 25 AP II), but does not clarify when this may be. The first, and almost only, authoritative statement hereon was made by the Appeals Chamber of the ICTY in its seminal decision on jurisdiction in Tadić:

that an armed conflict exists whenever there is […] protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities […], in the case of internal conflicts, [until] a peaceful settlement is achieved. (Tadić Jurisdiction Decision, para. 70)

So what is a peaceful settlement? The term is not very specific but suggests that IHL will cease to apply when the parties reach a peace agreement with each other. It is my view that the existence of a peace agreement is too rigid a standard to judge whether a NIAC can be considered to have ended. Moreover, it is submitted here that this approach and is not supported by the IHL.

For both IACs and NIACs, the test whether there is an armed conflict depends on the factual situation, and not on political statements. Political refusal to recognise the existence of a conflict is especially prevalent in cases of NIACs. It is argued therefore that political acts should be equally non-determinative in the test of whether peace has been achieved. As a result, the political act (statement) of agreeing to a peace deal should not be the determinative factor in whether a conflict has ceased. In Sierra Leone, for example, two “Lomé Peace Accords” were signed before the RUF was finally defeated and dissolved a few years later. Consider also the conflict between the Singhalese government of Sri Lanka and the LTTE: a peace agreement was signed between the warring parties in 2002, but the fighting did not cease. It was not until the full-scale military defeat in May 2009 of the LTTE by the government forces, that the armed conflict actually ended. Such a non-international version of debellatio is rare, however. On occasion, NIACs just taper out until they have withered away and no warring parties exist anymore. Often, however, as was the case with the Shining Path in Peru, armed groups continue to exist, but on a smaller scale with less fighting power, thereby forming less of a threat. On the other hand, it is also possible that only part of an armed group becomes a party to the agreement, as was the case with the Interahamwe in Rwanda.

Furthermore, the need for an “effective and final cessation of hostilities” for IACs comports with the fact that such a conflict starts with the first hostile act (involving two States), which initiates the protection given by IHL, namely – as Pictet put it – when the first (protected) person is affected by an attack. However, the threshold for the existence of a NIAC is significantly higher and not all violence reaches this threshold. Equally, at the end of a NIAC, certain violence should be considered to be below the armed conflict level. If a NIAC only starts when organised groups are engaged in fighting of certain intensity, then logically, the armed conflict ends when these two criteria are no longer both present. This would also make clear that the United States’ so-called NIAC against Al-Qaeda cannot be a “perpetual war”.

When Acquittal Is Small Consolation…

by Kevin Jon Heller

Although the ICTY’s recent high-profile acquittals have been getting all the attention, it’s worth noting that the ICTR Appeals Chamber has just acquitted two high-ranking defendants, Augustin Ndindiliyimana, the former chief of staff of the Rwandan paramilitary police, and François-Xavier Nzuwonemeye, the former commander of a military reconnaissance battalion, on the ground that the Trial Chamber erred in concluding that they had effective control over gendarmes suspected of participating in the 1994 genocide. The acquittals are obviously notable in themselves, but what’s particularly striking — and more than a little disturbing — is that Gen. Ndindiliyimana was originally sentenced to time served because he had spent 11 years in pre-trial detention:

Mr. Ndindiliyimana, who was arrested in Belgium in 2000, was convicted in 2011 of genocide, extermination as a crime against humanity and murder, and he was sentenced to 11 years. He was freed after time served.

Eleven years in pre-trial detention at an international tribunal is simply unacceptable. And Ndindiliyimana’s acquittal on all charges after 11 years in pre-trial detention simply adds insult to injury. All in all, a bad day for the ICTR’s reputation.

Vasiliev on the Relationship Between Perisic and Sainovic

by Kevin Jon Heller

Sergey Vasiliev, an excellent young ICL scholar, has posted at the Center for International Criminal Justice a superb — and very long — analysis of the relationship between Perisic and Sainovic entitled “Consistency of Jurisprudence, Finality of Acquittals, and Ne Bis in Idem.” I agree with almost everything Sergey says, although I don’t think we should consider the Perisic AC’s adoption of the specific-direction requirement to be “clear error” (a basic requirement of any argument that the Appeals Chamber should reconsider the judgment) simply because the Sainovic AC says that it was. As Bill Schabas notes in his recent post, the legal issue can hardly be considered settled by Sainovic, given that the judgment was not unanimous, was decided by different appeals judges and the two dissenters (on the specific-direction point) in Perisic, and included a judge who was inexplicably in the majority in both Perisic and Sainovic. I also find it odd that Sergey doesn’t like my claim that the OTP’s motion for reconsideration belongs in the dustbin, given that he unequivocally rejects — on ne bis in idem and human-rights grounds — the idea that the OTP should be given what it wants: namely, Perisic’s acquittal overturned and a conviction entered.

But those are minor points. The post is must-read for anyone interested in the specific-direction requirement or the sudden implosion of the ICTY’s Appeals Chamber.

Schabas on the OTP’s Attempt to Reconsider Perisic

by Kevin Jon Heller

It’s an excellent post, well worth reading in its entirety. I just want to flag two particularly important points. The first concerns whether, in light of Šainović, Perišić can really be considered fundamentally flawed. Schabas compellingly argues no:

But the Prosecutor is not claiming that any ‘new fact’ has been discovered. Rather, the Prosecutor is arguing that the law has changed as a result of the legal basis of the acquittal of Perišić being ‘unequivocally overturned’. But was it?

First, there was a dissenting opinion in Šainović. Under the circumstances, the word ‘unequivocal’ is probably not appropriate. Second, Judge Ramaroson, who sat in both Perišić and Šainović agreed with the majority judgment in both cases. I would not use the word ‘unequivocal’ to describe such a strange situation. Judge Ramaroson might have enlightened us with a separate opinion to explain the change of heart. Third, the Appeals Chamber cannot ‘overturn’ the Appeals Chamber. It may seem paradoxical, but by refusing to follow the finding in Perišić the judges in Šainović may inadvertently have undermined the authority of their own judgment. Who is to say that yet another five-judge panel of the Appeals Chamber will not ‘overturn’ Šainović, perhaps restoring Perišić or possibily setting out a third vision of aiding and abetting? It seems more accurate to describe what has happened is that four judges of the Appeals Chamber disagree with four other judges of the Appeals Chamber (really, three judges, because one of them disagrees with herself).

The second point concerns the human-rights implications of “reconsidering” Perišić’s acquittal 11 months after it became final. I considered mentioning the issue in my previous post, but ultimately didn’t. Here is what Schabas says:

The real problem with the Prosecutor’s motion concerns the rights of the accused. According to article 14(7) of the International Covenant on Civil and Political Rights, ‘No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.’ The same rule is formulated slightly differently in article 4 of Protocol No. 7 to the European Convention on Human Rights:

1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of the State.

2. The provisions of the preceding paragraph shall not prevent the re-opening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

3. No derogation from this Article shall be made under Article 15 of the Convention.

Can the Prosecutor argue that when Perišić was acquitted by the Appeals Chamber there was ‘a fundamental defect in the proceedings’? There is not much in the way of judicial interpretation on this expression. Recently a Chamber of the European Court of Human Rights held that there was such a ‘fundamental defect’ where an acquittal was based upon an amnesty (Marguš v. Croatia, no. 4455/10, § 74, 13 November 2012). The case is currently pending before the Grand Chamber. But four judges disagreeing with four judges cannot be described as a ‘fundamental defect in the proceedings’.

The rule against double jeopardy (ne bis in idem) is part of a larger norm known by the term res judicata. It is almost certainly a general principle of law in the sense this expression is employed by article 38 of the Statute of the International Court of Justice. There is something profoundly troublesome about reconsideration of a final acquittal because a new judicial finding concerning legal interpretation is at variance with an earlier one.

I have nothing to add to Schabas’s points. I completely agree with them. We can only hope, for the sake of the ICTY’s legitimacy, that the Appeals Chamber does as well.