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International Security

Why the New Weapons Amendments (Should) Apply to Non-States Parties

by Kevin Jon Heller

Although aggression received most of the attention at the Assembly of States Parties (ASP) last month, the ASP also adopted a series of amendments to Art. 8 of the Rome Statute, the war-crimes provision, prohibiting the use of three kinds of weapons in both international armed conflict (IAC) and non-international armed conflict (NIAC):

[W]eapons, which use microbial or other biological agents, or toxins, whatever their origin or method of production.

[W]eapons the primary effect of which is to injure by fragments which in the human body escape detection by X-rays.

[L]aser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices.

Because the weapons amendments were adopted pursuant to Art. 121(5) of the Rome Statute, they will only apply to state parties that ratify the amendments. This is, of course, the effect of the second sentence of Art. 121(5), which caused so much controversy in the context of aggression: “In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.”

Art. 121(5), however, applies only to states parties. It does not apply to states that have not ratified the Rome Statute. In the context of aggression, that limitation raised the possibility of the Court prosecuting an act of aggression committed by a non-state party on the territory of a state party — something the Court’s normal jurisdictional regime permits for war crimes, crimes against humanity, and genocide. To avoid that possibility, the ASP amended the Rome Statute to include a new provision, Art. 15bis(5), that specifically (and also controversially) completely excludes non-states parties from the crime of aggression:

In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.

I had assumed that no such jurisdictional limitation applied to the new weapons amendments. As Patryk Labuda recently pointed out on twitter, however, the ASP appears to believe otherwise. Here is the second preambular paragraph to the amendments (emphasis mine):

Noting also article 121, paragraph 5, of the Statute which states that any amendment to articles 5, 6, 7 and 8 of the Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance and that in respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding the crime covered by the amendment when committed by that State Party’s nationals or on its territory, and confirming its understanding that in respect to this amendment the same principle that applies in respect of a State Party which has not accepted this amendment applies also in respect of States that are not parties to the Statute.

The bolded language is intended to exempt non-states parties from the normal jurisdictional regime of the Court. Clause 2 states that if a state party does not ratify the weapons amendments, the Court cannot prosecute the use of a prohibited weapon either when committed by a national of that state or on the territory of that state. Clause 3 then puts non-states parties in the same position as a state party who has not ratified the amendments.

This limitation regarding non-states parties is very odd, because the ASP had every right to make the new weapons amendments applicable to non-states parties. Non-states parties are currently prohibited from using certain weapons on the territory of a state party — those that are criminalized by the Rome Statute as adopted in 1998. The new weapons amendments thus fragment the Court’s jurisdiction over non-states parties: although they cannot use poisoned weapons, asphyxiating gases, and expanding/flattening bullets on the territory of a state party, they are still permitted to use biological, fragmentation, and blinding laser weapons — even on the territory of a state party that has ratified the new weapons amendments.

I see no persuasive rationale for this asymmetry. Exempting non-states parties from the crime of aggression is one thing: aggression is a sui generis crime and was not previously within the Court’s (active) jurisdiction. But the drafters of the Rome Statute had no problem making non-states parties subject to the original war crimes involving prohibited weapons, nor did the 124 states who ratified the Rome Statute have a problem accepting the potential criminal liability of non-states parties. So why should things be any different for the new war crimes? If Russia cannot use napalm (an asphyxiating gas) on Georgian territory, why should it be able to use ricin (a biological weapon) on it?

To be sure, the same exclusion of non-states parties was included in the war-crimes amendments adopted at Kampala in 2010, which criminalized the use of poisoned weapons, asphyxiating gases, and expanding or flattening bullets in NIAC. But that limitation was largely superfluous regarding non-states parties, because the Rome Statute already criminalized the use of those weapons in IAC, the primary type of conflict in which a non-state party can be subject to the Court’s war-crimes jurisdiction. (Transnational NIACs aside.) The limitation is anything but superfluous for the new weapons amendments, because they are specifically designed, inter alia, to criminalize the use of certain weapons in IAC.

I also believe — and this is the reason I have written this post — that the exclusion for non-states parties included in the preamble to the new weapons amendments has no legal effect. The argument is a complicated one, and I have made aspects of it at length in a JICJ article on the legal status of the aggression “Understandings” that were adopted at Kampala in 2010. The basic problem is this: nothing in the amended Rome Statute excludes non-states parties from the new war crimes. That limitation exists solely in the preamble. So it is difficult to see why or even how the judges could enforce it, given that Art. 21(1)(a) of the Rome Statute specifically provides that “[t]he Court shall apply… [i]n the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence.” If the judges simply apply the Rome Statute, the Court has jurisdiction over every war crime in Art. 8 that is committed by a non-state party on the territory of a state party — including the new ones.

To be sure, one could fashion a fancy argument for applying the limitation based on Art. 31 of the VCLT, which provides that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” and deems a preamble to be part of a treaty’s context. I would be sympathetic to such an argument, because I think the point of treaty interpretation is to give effect to the intent of the drafters. But that is by no means the dominant approach to treaty interpretation. Most international-law scholars favour a “plain meaning” approach — and the Court seems to, as well. (At least when doing so expands the ambit of criminal responsibility. When it doesn’t, object and purpose tend to take over.)

Moreover, all of the other parts of the Rome Statute also qualify as “context” under Art. 31. And here the aggression amendments are, in my view, not only relevant but dispositive: if non-states parties could be excluded from the normal jurisdictional regime of the Court simply by saying as much in a preamble to an amendment, why did the ASP specifically amend the Rome Statute to exclude non-states parties from the crime of aggression? Perhaps the ASP was just being overly cautious, but that seems unlikely given how carefully almost every word of the aggression amendments was negotiated and drafted. It seems far more likely that the ASP realized — correctly, in my view — that the exclusion had to be included in the text of the Rome Statute to be given force by the judges.

In short, despite what the preamble to the new weapons amendments says, I believe that the OTP now has have every right to charge a national of a non-state party who uses (say) a biological weapon on the territory of a state party that has ratified the amendments — and the judges would have every right to convict the perpetrator of the relevant war crime. The ASP exclusion of non-states parties from the amendments has no legal effect.

NOTE: Dapo Akande has posted at EJIL: Talk! an excellent analysis of the relationship between the new war crimes and customary international law. I completely agree with him — including with his statement that, in practice, excluding non-states parties from the crimes will solve some tricky immunity problems.

One Step Forward for International Criminal Law; One Step Backwards for Jurisdiction

by Jennifer Trahan

[Jennifer Trahan is Associate Professor, The Center for Global Affairs, NYU-SPS and Chair of the International Criminal Court Committee of the American Branch of the International Law Association]

On Thursday, December 14, 2017, the ICC’s Assembly of States Parties (ASP) took the historic and significant decision, by consensus, to activate, effective July 17, 2018, the ICC’s jurisdiction over its 4th crime, the crime of aggression. (The Kampala crime of aggression amendment had been “adopted” in 2010 at the Kampala Review Conference, but there was a delay mechanism such that jurisdiction did not yet “activate”, but first required 30 States Parties to ratify the amendment (35 now have), and one more decision by the ASP to activate.)

The decision made by the ASP was a step forward for international criminal law, a step forward for completing the Rome Statute as envisioned in 1998 (which already included jurisdiction over 4 crimes), a step forward for carrying on the legacy of the International Military Tribunal at Nuremberg, and a step forward in trying to create more deterrence behind UN Charter article 2(4). But, it was a step backwards in how to read the Court’s jurisdiction over the crime.

While many had hoped that at the ASP, it could be agreed to simply “activate” jurisdiction by consensus (for instance, simply reflected in a sentence in a resolution), already over the past year it appeared that would not be the case. As many readers will know, there have been two different readings of what was accomplished in Kampala.

The differences in reading pertained to which States Parties would be covered by the ICC’s crime of aggression jurisdiction after activation in the situation of State Party referral or proprio motu initiation of investigation (Rome Statute article 15 bis). (Activation also triggers the possibility of UN Security Council referrals covering the crime of aggression (article 15 ter); non-States Parties were completely exempted from the crime’s jurisdictional reach already during the Kampala negotiations (art. 15 bis, para. 5).)

One reading (let us call it the Liechtenstein/Swiss/majority reading) was that after the activation decision, for purposes of State Party referrals and proprio motu initiation, ALL States Parties could be subject to crime of aggression jurisdiction, absent their lodging an “opt out” declaration, but only also if either the aggressor or victim State Party had also actively ratified the crime of aggression amendment. The other reading (let us call it the UK/French reading), was that no State Party could be covered by the crime of aggression after activation unless it had also actively ratified the amendment. (This reading results in an extremely restrictive jurisdictional regime, because, frankly, ratifying States Parties such as Liechtenstein and Botswana are not invading each other.)

After a year of a “facilitation” process, led by Austria, to try to resolve this issue, negotiations opened during the ASP. What I am calling the Liechtenstein/Swiss/majority group proposed various draft texts that could have helped bridge the gap between the two readings, with Brazil and Austria also proposing helpful suggestions. Yet, the UK/France (at times joined by Norway, Japan, Colombia, Australia, Canada and Denmark) insisted on their view simply prevailing, and, in the end, the UK and France never moved from that position. (This narrative reflects my understanding of negotiations gleaned from discussions with representatives of States Parties, as, unfortunately, members of civil society were excluded from the “closed door” negotiations.)

The desire to achieve consensus activation (meaning any State Party could block consensus) provided any single State Party (or two States Parties, as was the case here) with enormous leverage. A vote would require 2/3rd of States Parties voting for it, and a few delegations did not stay to the close of the ASP (so the full 123 States Parties were not present towards the end of the conference). Additionally, a vote suggests a divided commitment that States Parties did not appear to want, and how the vote would turn out seemed uncertain as well.

In the end, States Parties had (for many of them) the very difficult decision to make—whether to activate the crime in an historic and important decision, if it meant accepting the extremely restrictive reading of jurisdiction given by the French/UK group. (This is quite ironic because it means that the 4 states that had conducted the Nuremberg prosecutions are either now caved out of crime of aggression jurisdiction (the US and Russia as non-States Parties) or can easily do so by not ratifying the amendment (the UK and France).) On the other hand, a decision not to accept the UK/French reading meant that the negotiations would conclude with no agreement, and no clear commitment when, where or whether to resume negotiations, and no certainty that any resumed negotiation would conclude any differently in the future.

This author believes States Parties made the right decision. It was not what many of them had wanted and thought they had negotiated in Kampala. Yet, international law often moves forward in imperfect ways (the war crimes amendment also adopted at this ASP dropped a key war crime along the way). And, really, in the end of the day, all States Parties agreed that the crime of aggression is a consensual regime—and it was only how to achieve that (basically an “opt in” or “opt out” approach).

It was a large concession, which now means, at present when the crime of aggression activates on July 17, 2018 (the activation date selected in the activating resolution, ICC-ASP/16/L.10*), it will have extremely limited jurisdictional reach. The good news is the ICC will hardly be overwhelmed with cases (for those who worried about this)—it could even take years before there is a case of aggression within its jurisdiction. The bad news of course if that if one hoped the activation of the crime could have some deterrent impact in trying to prevent aggressive uses of force, including war, that deterrent impact is now lessened. (Deterrent impact is more likely now to be created through the possibility of U.N. Security Council referral—which could cover States Parties (whether or not they ratify) and non-States Parties). In terms of increasing the jurisdictional reach for purposes of non-Security Council referrals, it is now up to the ICC, civil society and States Parties to press for additional crime of aggression ratifications.

The Draft Resolution’s Curious Paragraph 3

by Kevin Jon Heller

A friend who is even more jaded than I called my attention to the following curious paragraph in the Draft Resolution the ASP has just adopted by consensus:

3.    Reaffirms paragraph 1 of article 40 and paragraph 1 of article 119 of the Rome Statute in relation to the judicial independence of the judges of the Court.

This paragraph is new — it was not included in the earlier Draft Resolution I blogged about. For those of you who are not total Rome Statute nerds, here is the text of the two referenced articles:

Art. 40(1): “The judges shall be independent in the performance of their functions.”

Art. 119: “Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court.”

I think my friend is right: Paragraph 3 likely represents the last gasp of the opt-out camp — a shameless plea to the judges to ignore the text and drafting history of the Draft Resolution and require states that have not ratified the aggression amendments to opt-out. Fortunately, as jaded as I am about the ICC’s judges, I think the likelihood of the plea ever succeeding is essentially zero. The text and drafting history are too clear. Moreover, a decision to adopt the opt-out position despite the text and drafting history of the Draft Resolution would be catastrophic for the Court. It would be bad enough if the OTP brought aggression charges against a state party that had not ratified the amendments. It could be the end of the Court — and I am not being Chicken Little here — if the judges permitted such charges to proceed. Such a decision could easily lead to the UK, France, Japan, and others to withdraw from the Court. And they would be justified in doing so.

The judges’ relentless judicial activism has damaged the Court enough. If the Court is to have any future — one in which states cooperate with it and use their muscle to ensure that it succeeds — states have to be confident that the judges will respect their will, even when that will is less than ideal.

Paragraph 3 should never have been included in the Draft Resolution.

ASP Adopts the Aggression Amendments by Consensus

by Kevin Jon Heller

It went down to the wire, but it’s over. States reached consensus on adopting the aggression amendments — after those in the opt-out camp gave in to the opt-in camp. The adopted Draft Resolution provides the following:

Confirms that… in the case of a State referral or proprio motu investigation the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments.

This language is unequivocal, going well beyond the Draft Resolution I referenced in my previous post. Under the adopted Resolution, state parties do not have to do any in order to remain outside the Court’s aggression jurisdiction. Unless a state party ratifies or accepts the aggression amendments, it will be in the same position as a non-state party.

Having received a few rather nasty emails regarding my defense of the opt-in position, I want to make my substantive views clear. Although I completely agree with the opt-in states that, as a matter of treaty law, they could not be subjected to the Court’s jurisdiction over aggression in any way unless they ratified the aggression amendments, that is not my preferred jurisdictional regime. On the contrary, I believe that aggression should be governed by the same regime — automatic jurisdiction — that applies to the other core crimes. In particular, I strongly dislike the decision to exempt non-states parties from the Court’s jurisdiction even when one of their nationals commits the crime of aggression on the territory of a state party. I see no reason why state parties should not be protected against aggression by non-party states in the same way they are protected against war crimes, crimes against humanity, and genocide.

My reservations aside, this is clearly an historic day. Kudos to all the states, NGOs, and individuals — I am so glad the inestimable Ben Ferencz lived to see this — who made the activation of aggression possible.

A Different View of the Aggression Activation Negotiations – A Perspective from the Ground

by Gregory Gordon

[Gregory Gordon is Associate Professor of Law at the Chinese University of Hong Kong]

I’m here on the ground in New York and I want to provide an additional perspective on Kevin’s post. First, the document he has posted is strictly a transitory draft meant only to facilitate discussion. In no way does it necessarily represent any hardened position of the delegates. From what I understand, there is no consensus on it and the parties have moved on from it.

Second, even if it did represent the final word, his understanding about OP(1)(a) and (b) is not necessarily accurate. ICC-ASP/16/L.9/Rev.1 OP (1)(a) only acknowledges the position of those States Parties (i.e., the UK/France camp), which is already reflected in the Report on the facilitation, statements made here upon adoption of any resolution, or by letter to the ASP by 31 December 2018. Subsection (b) applies only to the States Parties referred to in (a). Kevin provides his interpretation that “they” extends to all other States Parties. But the understanding of folks here on the ground is that (b) is limited to those States Parties in (a).

Kevin is entitled to his interpretation — but it does not seem to accord with the tenor of negotiations. Moreover – and this is very important – and in all due respect to Kevin – at this point, it is not helpful to speculate on either the process or substance of negotiations that remain active and have a way to go prior to a final decision (either way) by States Parties. I appreciate that he is trying to stimulate interested discussion – that’s his right – but given the delicate nature of negotiations, public comment could have a potentially misleading and unintended detrimental effect. ICC-ASP/16/L.9/Rev.1, which Kevin has posted in its entirety, was not intended to be publicly released. There are good reasons for that. Many of us here are hoping that this delicate negotiation process will lead to an outcome that will contribute toward the progressive development of international criminal law. Let us hope those delicate negotiations – still very much in train — come to fruition.

The Opt-Out Camp Possibly Folds — Clearing Way for Aggression?

by Kevin Jon Heller

A new document is being circulated at the Assembly of States Parties entitled “Draft Resolution: Activation of the jurisdiction of the Court over the crime of aggression.” Operative Provision 1(b) seems to indicate that the opt-out camp, led by Liechtenstein, has conceded the jurisdictional point to the opt-in camp, led by Japan, Canada, and the United Kingdom. Here is the text of OP1(b):

(b)    The Assembly unanimously confirms that, in accordance with the Rome Statute, in case of a State referral or proprio motu investigation the Court shall not exercise its jurisdiction in respect of the crime of aggression when committed by nationals or on the territory of the States Parties referred to in subparagraph (a), unless they ratify or accept the amendments regarding the crime of aggression.

The provision makes clear that the Court will have no jurisdiction over any act of aggression involving a state party that does not ratify or accept the aggression amendments — thus placing states parties in the same position as non-state parties.

There is, however, one twist. To take advantage of OP1(b), a state will have to make its agreement with the opt-in camp known by no later than 31 December 2018, when the Court’s jurisdiction will begin. That’s the result of reading OP1(b) in conjunction with OP1(a). Here is the text of the latter provision:

(a)      The Assembly acknowledges the positions expressed by States Parties, individually or collectively, as reflected in the Report on the facilitation or upon adoption of this resolution to be reflected in the Official Records of this session of the Assembly or communicated in writing to the President of the Assembly by 31 December 2018 that, for whatever reason, including based on paragraph 5 of article 121 of the Rome Statute, they do not accept the Court’s exercise of jurisdiction over the crime of aggression unless they ratify or accept the amendments regarding the crime of aggression,

I can’t see why the Draft Resolution would not satisfy the opt-in states. So if the opt-out camp supports the resolution, it should ensure that the aggression amendments are adopted by consensus later today.

NOTE: As I read the Draft Resolution, states that join the Court after 31 December 2018 would have to opt-out of aggression jurisdiction, because OP1 would not apply to them. That’s an interesting twist/compromise!

Against (False) Consensus — the ASP and the Aggression Amendments

by Kevin Jon Heller

Although many important issues will be discussed this week at the Assembly of States Parties (ASP), none will be quite so momentous as the decision to activate the ICC’s jurisdiction over the crime of aggression. Whatever one thinks of the merits of the definition of aggression, there is no question that the activation of jurisdiction will represent the culmination of seventy years of efforts to deem aggression an international crime.

When the ASP finally makes a decision concerning the aggression amendments, the Rome Statute will encourage it to do so by consensus. The relevant provision is Art. 112(7):

Each State Party shall have one vote. Every effort shall be made to reach decisions by consensus in the Assembly and in the Bureau. If consensus cannot be reached, except as otherwise provided in the Statute:

(a)     Decisions on matters of substance must be approved by a two-thirds majority of those present and voting provided that an absolute majority of States Parties constitutes the quorum for voting;

(b)     Decisions on matters of procedure shall be taken by a simple majority of States Parties present and voting.

With regard to amendments, the Rome Statute does “otherwise provide.” According to Art. 121(3), “[t]he adoption of an amendment at a meeting of the Assembly of States Parties or at a Review Conference on which consensus cannot be reached shall require a two-thirds majority of States Parties.” Similarly, Art. 123(3) says that “[t]he provisions of article 121, paragraphs 3 to 7, shall apply to the adoption and entry into force of any amendment to the Statute considered at a Review Conference.”

The aggression amendments were adopted by consensus at the 2010 Review Conference held in Kampala. That was a mistake, because there was no genuine consensus at Kampala concerning one particularly critical issue: whether the Court will have jurisdiction over an act of aggression committed on the territory of a state party that has ratified the aggression amendments by a national of a state party that has not ratified them. States have taken diametrically opposed positions on that issue. Most — led by Liechtenstein — believe that the Court will have jurisdiction in that situation unless the non-ratifying state formally opts-out of the crime of aggression. But some — led by Japan, Canada, and the United Kingdom — insist that the Court will have no jurisdiction because non-ratification is enough.

I don’t want to re-litigate the merits of the debate. Regular readers know I agree with the Japan/Canada/UK group. My point is more modest: to call attention to the danger that false consensus poses to the legitimacy of the crime of aggression. By adopting the aggression amendments by consensus, instead of through a formal vote, the ASP made possible the kind of bitter disagreement that has characterized the state-party opt-out/opt-in debate. Just consider the following paragraphs from the ASP’s most recent report concerning the facilitation of aggression’s activation (emphasis mine):

19. Some delegations suggested that a declaration lodged with the Registrar, indicating that a State Party did not accept the jurisdiction of the Court over the crime of aggression, would bring the desired clarity. These delegations stressed that the negotiating history of the amendments during the Special Working Group on the Crime of Aggression as well as during the Review Conference offered clear evidence of the correct legal interpretation of the agreement reached in Kampala… By enabling States Parties to declare that they do not accept the jurisdiction of the Court in respect of crimes of aggression committed by their nationals (“opt-out”), the compromise agreed in Kampala had chosen the middle-ground between two opposing positions. It was explained that the Review Conference had considered the opposing position papers concerning the second sentence of article 121, paragraph 5, (the so-called “positive” and “negative” understandings), which both were ultimately deleted in favor of including the opt-out regime. As a result, in their view the compromise reached at the Review Conference was clear, and jurisdiction of the Court could extend to nationals of those States Parties which had not ratified the amendments, unless they opted out.

20. Other delegations took the view that too much emphasis was being placed on the negotiating history of the amendments and on concessions or compromises, rather than on legal principles and the plain meaning of the texts. These delegations explained that they had left the Review Conference with a different understanding, namely that the amendments would not apply to those States Parties which would not ratify them. In their view, open legal questions as to the implications of activation remained. These had not been solved during the seven years since the Review Conference, in spite of ratifications by 34 States Parties. It was pointed out that negotiations at the Review Conference could not have the effect of changing treaty rights and obligations. Accordingly, it was important to focus on the ordinary language of the text as there were differing understandings of the negotiating history, since it was also possible to explain the opt-out as something that was available to ratifying States Parties. These delegations questioned how they could be required to take action to opt out of the Court’s jurisdiction if they had not chosen to opt in by ratifying the amendments in the first place.

This is false consensus, not genuine consensus. State have been debating the opt-out/opt-in point for seven years as a result of the “consensus” at Kampala — debate that has overshadowed the importance of the aggression amendments themselves and has cost the ASP significant time that could have been better spent debating other issues.

Both camps deserve blame for this situation. The “opt-out” camp deserves blame for continuing to insist that genuine consensus existed at Kampala even though it’s quite clear it did not. And the “opt-in” camp deserves blame for permitting the aggression amendments to be adopted by consensus even though they knew disagreement existed about such a fundamental issue.

It will be interesting to see what happens this week at the ASP. There are rumblings — according to my well-connected friend Don Ferencz — that the opt-in group might put up a fight:

The member states of the Court will meet at UN headquarters in New York from December 4th to 14th to address making good on the pledge which they made in Kampala. Although 34 nations have already ratified their acceptance of the Court’s aggression jurisdiction – including over half of the members of NATO – Britain and France have not. Instead, they have joined with a handful of states, including Japan, Canada, Norway, and Colombia, in tacitly threatening to defeat activation of the Court’s aggression jurisdiction by their insistence that the Court must first clarify that the aggression amendments will not apply to leaders of any state that does not independently ratify them…

It is significant that the upcoming decision on aggression is expected to be undertaken pursuant to a consensus resolution. This means that the activation resolution must either be adopted by unanimous approval or not adopted at all. In such circumstances, each member state of the Court has the power to thwart the will of even an overwhelming majority simply by not consenting to the adoption resolution, regardless of the express terms of what was unanimously agreed to in Kampala. The non-ratifying countries which are demanding clarity that their leaders will remain beyond the Court’s reach on the crime of aggression, therefore, each have a potentially game-ending card to play in opposition of the final approval. The question is, with the whole world watching, do they dare play it?

My personal hope is that the opt-out camp will give in and accept the opt-in camp’s position that the Court will have no jurisdiction over a state party that does not ratify the aggression amendments — thereby creating genuine, if forced, consensus. Not only do I think that opt-in is the correct legal position, I am very skeptical that the opt-out camp would have enough votes to adopt the aggression amendments over the objections of the opt-in camp. According to paragraph 28 of the ASP’s facilitation report, they would need 82 in the absence of consensus. And that seems unlikely, given what I’ve heard about the number of states that are either opt-in or plan to abstain on any vote to activate the Court’s jurisdiction over aggression.

UPDATE: I have updated the post to mention Arts. 121(3) and 123(3) of the Rome Statute, as well as my understanding of the state of play concerning the vote to activate jurisdiction.

A Potentially Serious Problem with the Final Decision Concerning Comoros

by Kevin Jon Heller

A couple of days ago, the OTP finally announced what we all expected: that it would not reconsider its refusal to open a formal investigation into Israel’s attack on the MV Mavi Marmara. Dov Jacobs has already offered some thoughts on the lengthy document the OTP has filed with the Court explaining its reasoning — what the OTP nicely calls the Final Decision. I fully concur with Dov’s thoughts (except with his position on retroactive acceptance of jurisdiction), and I write here simply to add one of my own.

To begin with, I think this is the most impressive OTP brief I have ever read — especially given the complexity of the procedural issues that it addresses. It is exceptionally well written and argued. I don’t know who the author is, but she would have made an excellent analytic philosopher. Fatou Bensouda should promote her immediately.

That said, I strongly believe that the Final Decision’s understanding of when the OTP is required to investigate a situation is fundamentally flawed — and will almost certainly come back to haunt the OTP in future preliminary examinations. I have argued, as have most scholars, that situational gravity is a function of all the potential cases in a situation that would be admissible before the Court: the greater the number of prosecutable crimes and the greater their individual gravity, the more situationally grave the situation. To be sure, it is not an easy task to compare the situational gravity of different situations. But I don’t think there a practical alternative, given that the OTP can only investigate a very small percentage of the situations in which admissible crimes have been committed.

The Final Decision, however, appears to take a very different approach. Instead of deciding whether to open an investigation based on the gravity of all the potentially admissible cases in a situation, the OTP seems to believe that it is required to open an investigation as long as even one potential case within a situation would be sufficiently grave to prosecute. Consider the following paragraphs (emphasis mine):

11. Although the Prosecution maintains its view that no potential case arising from this situation would be admissible before this Court—which is the only issue in dispute with the Comoros—this does not excuse any crimes which may have been perpetrated.

332. Consistent with article 53(3)(a) of the Statute and rule 108(3), and based on the above reasoning and the information available on 6 November 2014, the Prosecution hereby decides to uphold the disposition of the Report. There remains no reasonable basis to proceed with an investigation, since there is no reasonable basis to conclude that any potential case arising from the situation would be of sufficient gravity to be admissible before the Court.

This approach, it is worth noting, appears to represent a retreat from the position the OTP took in its initial explanation of why it would not investigate the Comoros situation. Here is paragraph 24 of that document (emphasis mine):

Having carefully assessed the relevant considerations, the Office has concluded that the potential case(s) that would likely arise from an investigation of the flotilla incident would not be of sufficient gravity to justify further action by the Court, in light of the criteria for admissibility 8 provided in article 17(1)(d) and the guidance outlined in article 8(1) of the Statute.

It is possible, of course, that the Final Decision refers to the gravity of “any potential case” instead of “the potential case(s)” not because the OTP’s approach to situational gravity has changed, but because there is only one potential case in the Comoros situation: the attack on the MV Mavi Marmara. But the difference of language is striking — and given the legal and analytic precision of the Final Decision, I find it difficult to believe that its emphasis on whether any individual case would be admissible is simply a slip of the keyboard.

I assume, therefore, that the Final Decision means what it says: the OTP believes it has to investigate any situation in which there is at least one potential case that is grave enough to be admissible. But that is a very problematic position.

To begin with, it leads to precisely the kind of unhelpful dispute we have seen in Comoros situation, where the OTP believes a specific case is not sufficiently grave to be admissible and the Pre-Trial Chamber disagrees. Both the OTP and the PTC have spent a great deal of time during their “judicial dialogue” (Dov’s apt expression) comparing the Mavi Marmara case to the Abu Garda and Banda cases. Here, for example, is how the Final Decision critiques the PTC’s insistence that the Mavi Marmara case is sufficiently grave to be admissible:

77. However, the Request does not address the basis on which the Prosecution considered that “the total number of victims of the flotilla incident reached relatively limited proportions as compared, generally, to other cases investigated by the Office”—in particular, the circumstances of the Abu Garda and Banda cases (which are, in relevant part, identical). Although the majority likewise referred to these cases, it did not consider those particular characteristics.

78. As the Report expressly states, Abu Garda likewise concerned the allegation of “a single attack involving a relatively low number of victims”—but it was “distinguishable” because of “the nature and impact of the alleged crimes”, which were committed against international peacekeeping forces. Accordingly, the attack alleged in Abu Garda differed in nature from the identified crimes aboard the Mavi Marmara. Crimes against international peacekeepers strike at the heart of the international community’s mechanisms for collective security, and thus their direct and indirect victims include not only the peacekeepers and their families, but also the large number of civilians deprived of protection more widely because of the disruption to the peacekeepers’ operations. The Request does not address this distinction. [130]

n. 130 Likewise, the recent Al Mahdi case—solely concerning attacks on property protected under article 8(2)(e)(iv) of the Statute—was considered sufficiently grave to be admissible before the Court, resulting in a conviction. In the context of sentencing, the Trial Chamber stressed that the charged conduct was of “significant gravity”, among other reasons, because 1) the destroyed mausoleums were “among the most cherished buildings” in Timbuktu, an “emblematic city” which “played a crucial role in the expansion of Islam in the region” and which is “at the heart of Mali’s cultural heritage”; 2) the destroyed mausoleums were of proven significance to the inhabitants of Timbuktu not only as a matter of religious observance but also as a symbol and focus of community activity and unity; and 3) all the destroyed sites but one were designated UNESCO World Heritage sites, whose destruction also directly affects “people throughout Mali and the international community.” This same reasoning is applicable, mutatis mutandis, to the question of admissibility.

I don’t find the OTP’s efforts to distinguish the Mavi Marmara case from Abu Garda, Banda, and Al Mahdi particularly convincing. Its selection of factors to highlight strikes me as completely subjective and result-driven. Indeed, when faced with the PTC’s insistence that the message the Mavi Marmara attack sent to the international community — that Israel is willing to use force to maintain an illegal blockade that is causing a massive humanitarian crisis in Gaza — it simply retreats to “well, we disagree, and there is nothing you can do about it”:

80. Indeed, the majority appears simply to disagree with the Prosecution’s view of the weight to be given to… the significance of any ‘message’ sent by the interception of the flotilla itself. Given the Prosecution’s understanding of the proper standard of review under article 53(3)(a), and the absence of a reasoned conclusion that the Report was in these respects incorrect or unreasonable, the Prosecution does not consider it appropriate to depart from its original determination in the Report.

My point is not that the PTC’s gravity analysis is right and the OTP’s is wrong. (Though I do think the PTC has the stronger argument.) My problem is with the OTP’s position that it must investigate any situation in which at least one case is grave enough to be admissible. Debates over case gravity are inevitable when that is the standard for opening an investigation. But they are easily avoided if the OTP takes a more holistic approach to situational gravity, comparing the gravity of different situations by examining all of the potentially admissible cases within them. Even if we assume (as I do) that the attack on the Mavi Marmara is sufficiently grave to be admissible, the overall situational gravity of the Comoros situation (which involves only one case) still pales in comparison not only to numerous other situations under preliminary examination, but even — and more importantly — to the situational gravity of the Palestine situation as a whole. As I have argued previously, the last thing the OTP should do is investigate one very small part of the much larger conflict between Israel and Palestine. If it ever takes the Palestine situation on, it needs to look at crimes committed by both sides throughout Palestinian territory.

There is, however, an even more significant problem with the Final Decision’s standard for opening an investigation: if taken seriously, it will simply overwhelm the OTP’s resources. There may not be even one admissible case in the Comoros situation (because there is only one case), but how likely is it that larger situations, which are the norm, will not contain even one case sufficiently grave to prosecute? Just think about the situations currently at Phase 2 or Phase 3 of the preliminary-examination process: Burundi, Gabon, Iraq, Palestine, Ukraine, Colombia, Guinea, and Nigeria. There may well be complementarity issues in some of those situations that counsel not opening an investigation, but it seems exceptionally likely that each contains at least one admissible case. The Final Decision’s standard would thus seem — barring complementarity concerns — to require the OTP to open a formal investigation in all eight situations. Which is, of course, practically impossible.

Nor is that all. If the existence of even one admissible case is enough to require the OTP to investigate a situation, states will have little problem using referrals (self or other) to achieve nakedly partisan ends. Palestine, for example, could simply refer a single day during Operation Protective Edge in which Israel flattened an entire neighbourhood in Gaza or destroyed a UN school sheltering displaced civilians. It would be difficult, if not impossible, for the OTP to plausibly maintain that those acts are not grave enough to prosecute. So it would have to open an investigation. That makes little sense. Far better for the OTP to simply say that, however grave those specific attacks might be, the overall gravity of the gerrymandered “situation” is not sufficient to investigate in light of the gravity of other situations.

I hope I am wrong about when the OTP believes it is required to open an investigation into a situation. If so, the OTP needs to clarify its position immediately. Because the standard articulated in the Final Decision — the existence of even one case sufficiently grave to be admissible — is simply unworkable.

Reflections on the Mladić Verdict: A High-Point for the ICTY’s Legacy and Perhaps Hope for Victims of Other Conflicts

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor at the Center for Global Affairs at New York University.]

As Jens Ohlin has written, a highly awaited verdict came out Wednesday, November 22, sentencing Ratko Mladic, former commander of the Main Staff of the Bosnian Serb Army (VRS), to life in prison for genocide, war crimes and crimes against humanity committed from 1992-1995.

The verdict was not unexpected given Mladić’s lengthy trial, and that his involvement as commander of the troops who committed the Srebrenica massacre was recorded on well–known news footage.  Wire intercepts of his communications were until recently hanging on display on the walls of the Potočari memorial near Srebrenica, in the former battery factory that had also housed UN peacekeepers.

This high-level verdict is an extremely significant one for the ICTY.  Mladić was convicted of:

  • genocide and persecution, extermination, murder, and the inhumane act of forcible transfer in the area of Srebrenica in 1995;
  • persecution, extermination, murder, deportation and inhumane act of forcible transfer in municipalities throughout Bosnia;
  • murder, terror and unlawful attacks on civilians in Sarajevo; and
  • hostage-taking of UN personnel.

The only count of which he was acquitted was the “greater genocide” theory—genocide in additional municipalities in Bosnia in 1992.  The verdict is subject to appeal, as is the sentence.

These were extremely brutal crimes with large numbers of victims—over 8,300 alone in and around Srebrenica, over 13,000 in Sarajevo, after a multi-year campaign of sniping and shelling its citizens.  The ICTY’s proceedings were extensive, thorough, (and lengthy).  Trial commenced in May 2012, and according to the ICTY, there were 530 trial days, 592 witnesses, and nearly 10,000 exhibits introduced into evidence.

While the verdict is coming late in the day no doubt for some victims and their families (for example, 22 years after the Srebrenica massacre), this is not entirely the ICTY’s fault.  Mladić spent nearly 16 years on the run, and was only captured and sent to The Hague in 2011.

Well-done trials of international tribunals also take time, particularly when so many victims and so many crimes are involved.  Funder states often complain about the high costs of international trials, but these costs pale in comparison to peacekeeping expenditures that might have been required had high-level perpetrators not been indicted and apprehended.  And, if one measures the number of crime scenes involved or number of victims whose crimes were adjudicated, then costs seem not nearly as high.  States’ representatives and tribunal critics who make these cost arguments should reflect:  would they really like to argue to remaining family members that justice for their loved ones is not worth it?

Victims may or may not feel some “closure” at this verdict.  Complete closure is of course impossible, as no one can restore their loved ones.  But hopefully surviving victims and family members of those who did not survive will take some measure of solace from the verdict.

As Marko Milanovic has written, denial of crimes and partial denial of crimes is still a pervasive problem among certain communities in the former Yugoslavia (particularly in Repŭblika Srpska and Serbia), and today’s verdict is not anticipated to change that.  Yet, establishing the facts, hearing witness testimonies, and introducing documentary evidence is extremely significant in its own right, and helps create a solid record that makes denial harder, and perhaps will make it gradually less and less plausible.

Finally, the Mladić verdict can also give us hope for future prosecutions—that justice is sometimes delayed, but remains possible and one needs to remember this.  For years (when I was a junior attorney at Human Rights Watch) there was only an “arrest Mladić and Karadžić campaign,” and we had no idea if these two fugitives from justice would ever be apprehended.  It took years of concerted pressure and economic leverage from the US and the EU, but the arrests did occur, and the trials did occur.  So, as we look on as mass crimes continue today in other countries (such as Syria and Myanmar), and the geopolitical roadblocks to seeing any kind of comprehensive justice solutions, we should remember this long trajectory that the ICTY’s work took, and the need to stay the course.

An Utterly Damning Report on Moreno-Ocampo

by Kevin Jon Heller

Following on the heels of the much-reported e-mail scandal, FICHL has released a policy brief entitled “A Prosecutor Falls, Time for the Court to Rise” that is an utterly damning indictment of Luis Moreno-Ocampo’s tenure at the ICC. Here is a taste of the report, which picks up not long after the Court became operative:

This idyllic mood in the OTP continued through the summer of 2003, as if “the Office was embraced by the human warmth and outstanding social skills of the Prosecutor”. Among the new staff then recruited was co-author William H. Wiley, the first investigator in the Office. The situation started to change in late September 2003. The Chef de cabinet sought to hire a fourth diplomat in the OTP from one of the two Governments that had enabled the election. The Prosecutor asked the Senior Legal Adviser to legitimize the appointment. When he gently referred to the importance of following the rules on recruitment, the Prosecutor shouted: “For you, I am the law!”. To facilitate the recruitment of the diplomat, the Prosecutor asked Wiley to find dirt on the stronger candidate, as his first “investigative task”.

The mask of power fell repeatedly during the autumn of 2003 and subsequent months. The practice of vigorous peer review of important draft motions and other documents – so carefully established in the OTP of the nearby International Criminal Tribunal for the Former Yugoslavia – was not followed. A culture was established whereby even working meetings were choreographed, to ensure that the Prosecutor and his favourites would not be contradicted – soon, no one dared to. A “sense of fear” and “intimidation” set in. The idea of ‘one Court’ was undervalued. Several government officials and leaders of non-governmental organizations knew about the problems already from late 2003 onwards. Within a few years, 22 of the top staff members in the OTP left. Among those who remained were colleagues who worked on cases that collapsed, were withdrawn, and postponed again and again.

A report condemning Moreno-Ocampo comes as no surprise: supporters and critics of the Court alike agree that he was a disastrous choice for the Court’s first Prosecutor. The authors of the report are surprising, however, because three of them are among the Court’s most important initial employees: William H. Wiley, mentioned above; Morten Bergsmo, who led the preparatory team for the OTP and was its first Senior Legal Adviser; and Sam Muller, who led the ICC’s Advance Team.  If they are not credible witnesses to what went on in the early days of the Court, no one is.

Kudos to the authors — which also include Wolfgang Kaleck, the Secretary-General of the European Centre for Constitutional and Human Rights — for their willingness to go public with their grievances and recollections. They do so, of course, because they are all committed to the long-term success of the Court. We can only hope the ICC is listening.

Call for Submissions / Nominations: The Francis Lieber Prize

by Chris Borgen

The American Society of International Law’s Lieber Society on the Law of Armed Conflict awards the Francis Lieber Prize to the authors of publications that the judges consider to be outstanding in the field of law and armed conflict.  Both monographs and articles (including chapters in books of essays) are eligible for consideration — the prize is awarded to the best submission in each of these two categories.
 
Criteria:         Any work in the English language published during 2017 or whose publication is in final proof at the time of submission may be nominated for this prize.  Works that have already been considered for this prize may not be re-submitted.  Entries may address topics such as the use of force in international law, the conduct of hostilities during international and non‑international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter‑terrorist operations, and humanitarian assistance. Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.
 
Eligibility:       Anyone may apply for the article or book prize.  For those in academia or research institutions, the prize is open to those who are up to 8 years post-PhD or JD or those with up to 8 years in an academic teaching or research position. Membership in the American Society of International Law is not required.  Multi-authored works may be submitted if all the authors are eligible to enter the competition.  Submissions from outside the United States are welcomed.
 
Submission:     Submissions, including a letter or message of nomination, must be received by 10 January 2018.  Three copies of books must be submitted.  Electronic submission of articles is encouraged. Authors may submit their own work.  All submissions must include contact information (e‑mail, fax, phone, address) and relevant information demonstrating compliance with eligibility criteria.  The Prize Committee will acknowledge receipt of the submission by e‑mail. 
 
Printed submissions must be sent to:
 
Professor Laurie Blank
Emory University School of Law
1301 Clifton Road
Atlanta, Georgia  30322
USA
 
Electronic submissions must be sent to:
 
 Lblank[at]emory.edu
 
Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize.
 
Prize:   The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prize consists of a certificate of recognition and a year’s membership in the American Society of International Law.  The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in April 2018. 
 
In 2017, the winners were:
 
Book prize:
— Kenneth Watkin, “Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict” (OUP 2016)


Article prize:

— Tom Dannenbaum, “Why Have We Criminalized Aggressive War?,” 126 Yale Law Journal (2017)
 

 

Initial Thoughts on the ICC’s Decision to Investigate Afghanistan

by Kevin Jon Heller

Very significant news out of the ICC today: after a decade-long preliminary examination, the OTP has finally decided to ask the Pre-Trial Chamber to authorize a formal investigation into the situation in Afghanistan. Here is a snippet from Fatou Bensouda’s announcement:

For decades, the people of Afghanistan have endured the scourge of armed conflict.  Following a meticulous preliminary examination of the situation, I have come to the conclusion that all legal criteria required under the Rome Statute to commence an investigation have been met.  In due course, I will file my request for judicial authorisation to open an investigation, submitting that there is a reasonable basis to believe that war crimes and crimes against humanity have been committed in connection with the armed conflict in Afghanistan.  It will be for the Judges of the Court’s Pre-Trial Chamber, constituted by the Presidency, to decide whether I have satisfied them that the Statute’s legal criteria to authorise opening an investigation are fulfilled.

Given the limited temporal scope of the Court’s jurisdiction, my request for judicial authorisation will focus solely upon war crimes and crimes against humanity allegedly committed since 1 May 2003 on the territory of Afghanistan as well as war crimes closely linked to the situation in Afghanistan allegedly committed since 1 July 2002 on the territory of other States Parties to the Rome Statute.  The Court has no jurisdiction respecting crimes alleged to have been committed before those cut-off dates.

Assuming the PTC grants the OTP’s request — which is basically a foregone conclusion — Afghanistan will become (following Georgia) the second ICC investigation outside of Africa.

It will be very interesting to see how the US reacts to the announcement. The OTP made it clear in its 2016 preliminary-examination report that it intends to investigate crimes committed by the US military and the CIA:

211. The information available provides a reasonable basis to believe that, in the course of interrogating these detainees, and in conduct supporting those interrogations, members of the US armed forces and the US Central Intelligence Agency (“CIA”) resorted to techniques amounting to the commission of the war crimes of torture, cruel treatment, outrages upon personal dignity, and rape. These acts are punishable under articles 8(2)(c)(i) and (ii) and 8(2)(e)(vi) of the Statute. Specifically:

  • Members of US armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1 May 2003 and 31 December 2014. The majority of the abuses are alleged to have occurred in 2003-2004.
  • Members of the CIA appear to have subjected at least 27 detained persons to torture, cruel treatment, outrages upon personal dignity and/or rape on the territory of Afghanistan and other States Parties to the Statute (namely Poland, Romania and Lithuania) between December 2002 and March 2008. The majority of the abuses are alleged to have occurred in 2003-2004.

212. These alleged crimes were not the abuses of a few isolated individuals. Rather, they appear to have been committed as part of approved interrogation techniques in an attempt to extract ‘actionable intelligence’ from detainees. According to information available, the resort to such interrogation techniques was ultimately put to an end by the authorities concerned, hence the limited time-period during which the crimes allegedly occurred.

213. The Office considers that there is a reasonable basis to believe these alleged crimes were committed in furtherance of a policy or policies aimed at eliciting information through the use of interrogation techniques involving cruel or violent methods which would support US objectives in the conflict in Afghanistan. Likewise, there is a reasonable basis to believe that all the crimes identified herein have a nexus to the Afghanistan conflict.

If the US formally challenges the investigation — a big if, because it would probably see doing so as an acknowledgment of the investigation’s legitimacy — it will no doubt rely on Mike Newton’s argument in the Vanderbilt Journal of Transnational Law that the Status of Forces Agreement (SOFA) between Afghanistan and the United States precludes the ICC from exercising jurisdiction over American soldiers. (The SOFA presumably doesn’t apply to CIA operatives, who are not part of the US armed forces.) Oversimplifying a bit, Mike argues that Afghanistan has no jurisdiction that it can delegate to the ICC, because the SOFA provides that the US retains exclusive jurisdiction over crimes committed by American soldiers. I disagree with the argument, for reasons ably laid out by Roger O’Keefe and Carsten Stahn. But it is a serious argument that deserves serious consideration.

Like Dov Jacobs, I am also intrigued by the OTP’s stated intention to investigate crimes committed by the CIA in Romania, Lithuania, and Poland. There is no jurisdictional problem, because those states are all members of the ICC and the the SOFA that applies to NATO states is based on shared jurisdiction, not exclusive jurisdiction. And I don’t think anything in the Rome Statute prohibits the OTP from defining a situation to include territory of multiple states. But we have definitely never seen a situation like this before.

I doubt that we will see the ICC issue arrest warrants for an American soldier or CIA operative anytime soon. My guess is that the OTP will begin with crimes committed by the Taliban, which will be much easier to investigate and prosecute than American crimes. (If only because Donald Trump might be crazy enough to actually invade The Hague if the Court ever got its hands on an American.) But this is still a momentous — if long overdue — day for the ICC. Opening an investigation that could lead to Americans being prosecuted, even if only in theory, is a remarkable act of bravery for a Court that has proven largely impotent with regard to crimes committed by government officials.

Kudos to Fatou Bensouda and the OTP.