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International Security

The PTC’s Bizarre Request for Additional Information About Afghanistan

by Kevin Jon Heller

As Patryk Labuda noted earlier today on twitter, the Pre-Trial Chamber (PTC) has ordered the OTP to provide it with additional information concerning the investigation in Afghanistan. Here are the key paragraphs of the order:

3. The Chamber observes that the Prosecutor seeks authorisation to initiate an investigation for crimes committed on the territory of Afghanistan from 1 May 2003 onwards, as well as crimes committed within the context of the situation in other States Parties from 1 July 2002 onwards.2 However, the supporting material provided, particularly in relation to the structure, organisation, and conduct of the Afghan Forces – collectively referred to by the Prosecutor as Afghan National Security Forces or Afghan National Defense and Security Forces (“ANSF”) – mostly falls within the time period 2011 to 2014. Further, little to no information has been provided regarding the structure and organisation of the Islamic State operating in Afghanistan, also refer red to as “Daesh” or “Islamic State Khorasan Province”3. Similarly, the information provided with respect to the structure of the United States of America (“US”) forces falls mainly within the period of 2001-2008, with regard to interrogation policies of the US forces within the period of 2001-2006 and with regard to the conduct of US forces within the period of 2003-2011.

4. The Chamber is of the view that further information is required for the Chamber’s determination under article 15(4) of the Statute. Accordingly, it orders the Prosecutor to submit to the Chamber the following:

a. Any publicly available report from the United Nations Assistance Mission in Afghanistan (“UNAMA”) on the treatment of detainees, apart from the reports from 2011, 2013, 2015 and 2017 already submitted;

b. Any publicly available report from the Afghanistan Independent Human Rights Commission (“AIHRC”) on torture, apart from the report from 2012 already submitted;

c. The United Nations (“UN”) Secretary-General reports to the General Assembly on the topic: “The situation in Afghanistan and its implications for international peace and security”, from the years 2003, 2004, 2010, 2013, 2014, 2015, and 2017;

d. Any publicly available report from the UN Secretary-General to the General Assembly on the topic “Children and armed conflict in Afghanistan”, apart from the report from 2008 already submitted;

e. Further clarification and information, to the extent possible, about the structure and organisation of the Islamic State operating in Afghanistan; and

f. Further clarification and information, to the extent possible, about the structure of the US forces for the time period after 2008; for the interrogation policies of the US forces for the time period after 2006; as well as for the conduct of the US forces for the time period after 2011.

This is actually the second time that the PTC has asked for more information. On 5 December 2017, it ordered the OTP to provide it with “media reports and article 15 communications concerning allegations attributed to special forces of a number of international forces operating in Afghanistan,” as well as as a list of incidents where, in the OTP’s view, “there is a reasonable basis to believe that crimes falling within the jurisdiction of the Court were committed during military operations conducted by international military forces.”

The first request made some sense, given that the PTC generally asked for information either possessed only by the OTP (the communications) or reflecting of the OTP’s internal analysis of the situation in Afghanistan (the list of incidents). The new request, however, is bizarre. To begin with, there is no reason that the PTC could not obtain the information in the first four categories itself, given that it specifically wants the OTP to provide it with “publicly available” information. I know for a fact that the judges have legal officers and access to google. Any reasonably competent researcher could obtain the relevant reports in an hour or so.

A similar criticism could be offered of category five — assuming that the request is not based on the PTC’s belief that the OTP has non-public information about the structure of IS — as well as of the first two requests in category 6. After all, the OTP’s information about interrogation policies comes largely from publicly available sources such as the summary of the Senate Torture Report.

The final request in category 6 — about the conduct of US forces after 2011 — makes some sense, given that the PTC is basically asking the OTP to justify its conclusion that there is a reasonable basis to believe US forces are responsible for mistreating detainees. But I share Patryk’s confusion about why the PTC thinks it needs that information to decide whether to authorize the Afghanistan investigation. Art. 15(4)’s “reasonable basis to proceed” standard is anything but onerous. Such a basis exists, according to Art. 53, as long as the available information (1) “provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed”; (2) admissibility is not an issue; and (3) there are no “substantial reasons to believe that an investigation would not serve the interests of justice.” There is no question that the OTP’s request for authorization satisfies requirements 1 and 3, and it cannot seriously be argued that complementarity — the first aspect of the admissibility requirement — counsels against opening the Afghanistan investigation. As the request itself notes, none of the relevant parties (the Afghan government, the US government, and the armed groups) have have investigated or prosecuted those most responsible for international crimes in Afghanistan.

Which leaves gravity, the other aspect of admissibility. The only plausible interpretation of the PTC’s order is that it does not think it can assess the gravity of the situation in Afghanistan without the requested information. But that makes little sense. Can it be seriously maintained that the collective actions of the Afghan military between 2011 and 2014, the actions of the Taliban and IS since 2003, and the actions of US forces and the CIA between 2003 and 2011 are not sufficiently grave to warrant a proprio motu investigation? I dare anyone to read the OTP’s superbly argued and documented 181-page request for authorization and reach that conclusion. (Especially when Afghanistan is compared to, say, the Burundi investigation, which the PTC had no trouble authorizing.)

To be sure, that does not mean the OTP has provided sufficient information concerning the actions of all of the parties at all of the relevant times. But that is where the final clause of Art. 15(4) comes in (emphasis mine):

 If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.

If the OTP brings a case against an individual whose criminal responsibility cannot be properly assessed without additional information of the kind the PTC wants, it can demand that information when the defendant challenges admissibility or the OTP seeks confirmation of charges. There is no reason why the PTC should demand that information now.

I have little doubt that the OTP will quickly comply with the PTC’s order. But there is no legal or evidentiary reason why it should have to. The PTC already has more than enough information at its disposable to authorize the Afghanistan investigation.

Activating the Crime of Aggression: A Response to Stürchler

by Kevin Jon Heller

Nikolas Stürchler, the Head of International Humanitarian Law and International Criminal Justice Section at the Swiss Federal Department of Foreign Affairs, has a new post at EJIL: Talk! discussing the ASP’s decision to completely exclude states parties from the crime of aggression unless they ratify the aggression amendments — the “opt-in” position advocated by a number of states, most notably the UK, Japan, and Canada. The post is very long and quite technical, so I won’t try to summarise it. Basically, Stürchler argues that the judges are still free to adopt the “opt-out” position, because the Resolution “confirming” the opt-in position, despite being adopted by consensus, conflicts with Art. 15bis(4) of the Rome Statute, which reflects the opt-out position. Here are the relevant paragraphs:

What remains is an operative paragraph 2 that, like the second sentence of paragraph 5 of article 121 of the Rome Statute which it seeks to leverage, stands in contradiction to paragraph 4 of article 15bis of the Rome Statute. Paragraph 4 of article 15bis literally asserts that the Court has jurisdiction over a crime of aggression “arising from an act of aggression by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar.” In this sense, it is somewhat difficult to argue that operative paragraph 2 is simply a case of interpreting or clarifying the crime of aggression amendments. If the intended point of operative paragraph 2 is to revise paragraph 4 of article 15bis, the problem is that it was not passed pursuant to the Statute’s amendment provisions. One could argue that the Assembly did no more than clarify that the second sentence of paragraph 5 of article 121 fully applies, thus conditioning the application of article 15bis on a State Party’s ratification or acceptance, but this nonetheless would seem to imply a revision of the plain reading of article 15bis.

Be it as it may, with the Assembly having achieved activation, it is now up to the Court to determine the extent of its jurisdiction over acts of aggression committed by nationals or on the territory of non-ratifying States Parties. It is for this reason that the reference to the independence of the judges in operative paragraph 3 is so important. Pending a clear pronouncement by the Court, the only way for any State Party to legally ensure that its nationals fall outside the remit of the ICC’s jurisdiction continues to be to file an opt-out declaration in accordance with paragraph 4 of article 15bis of the Rome Statute.

I want to make three quick points here. The first is that, in fact, Operative Paragraph 3 (OP3) of the Resolution is completely irrelevant to the jurisdictional question. The judges are independent because of Art. 40 of the Rome Statute; OP3 simply reiterates their independence. So the judges would have the right to decide on the jurisdictional question even if OP3 was not included in the Resolution. (In that regard, I’m not sure why the states promoting the opt-in position were so opposed to OP3. A paragraph that tried to take away judicial independence concerning the interpretation of the new crime of aggression would have been patently ultra vires.)

The second — and more important — point is that Stürchler’s argument about the conflict between Operative Paragraph 2 (OP2) and Art. 15bis(4) is remarkably selective. The underlying principle is that the ASP cannot adopt a provision that conflicts with an article in the Rome Statute unless it formally amends the Rome Statute itself. As he writes, “[i]f the intended point of operative paragraph 2 is to revise paragraph 4 of article 15bis, the problem is that it was not passed pursuant to the Statute’s amendment provisions.” I agree with the principle! But here is the problem: Art. 15bis(4) was also not adopted pursuant to the Rome Statute’s amendment provisions. Art. 121(5)’s second sentence “literally asserts” that, “[i]n 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. 15bis(4)’s requirement of an opt-out thus can only apply to a state that has ratified the aggression amendments. If a state does not ratify the amendments, Art. 121(5) — which pre-existed Art. 15bis(4) — controls, the unamended Rome Statute applies to that state, and the Court has no jurisdiction over an act of aggression committed by that state’s nationals or on its territory.

This is not — or should not be — a controversial point. Not even the opt-out positions’s most fervent defenders claim that the adoption of Art 15bis(4) was consistent with the amendment provisions in Art. 121(5). Instead, they argue that the ASP agreed by consensus to apply only the first sentence of Art. 121(5), excluding the inconvenient second sentence. Stürchler’s own principle, therefore, means that the judges are perfectly free to ignore Art. 15bis(4) and apply Art. 121(5) as written — thus ending up with the same opt-in provision that OP2 is designed to confirm. Stürchler and the other opt-out proponents cannot have it both ways: either both OP2 and Art. 15bis(4) are valid (in which case opt-in applies) or neither of them are (in which case opt-in applies).

The third and final point is that Stürchler’s principle — that the ASP cannot adopt a provision that conflicts with an article in the Rome Statute unless it formally amends the Rome Statute itself — supports what I argued a few weeks ago: that the new weapons amendments adopted by the ASP apply to non-states parties even though the ASP declared that they do not. As I noted in that post, the ASP did not amend the Rome Statute to exclude non-states parties, as it did with the crime of aggression. Instead, the ASP simply confirmed its understanding that the new war crimes (covering the use of biological, fragmenting, and blinding weapons) would not apply to non-states parties. According to Stürchler’s principle, therefore, the judges are free to ignore the ASP’s declaration and apply the Court’s normal jurisdictional regime in Art. 12(2) to the new war crimes — which means that the Court has every right to prosecute the national of a non-state party who uses a prohibited weapon on the territory of a state party.

No, There Is No International Legal Basis for the “Bloody Nose” Strategy

by Kevin Jon Heller

At Lawfare yesterday, two law professors at West Point defended the US’s right to attack North Korea if it tests another nuclear weapon or fires another missile into Japanese waters:

North Korea is extraordinarily close to becoming a . This very real possibility has reportedly resulted in the United States debating a limited military strike dubbed the “bloody nose” strategy. In effect,  would allow for a timely and proportional response against North Korean sites in the event of another nuclear test or missile launch. For , such a strike might include using force to target a North Korean missile site or a military base. The hope would be that such a strike would “” and “illustrate the high price the regime could pay for its behavior” without “igniting an all-out-war on the Korean Peninsula.”

In the authors’ view, “[t]here is a strong argument such a strike would be lawful” either as collective self-defense of Japan or as individual self-defense by the US.

I disagree.

The fundamental problem is that “another nuclear test or missile launch” would not qualify as an armed attack sufficient to give rise to the right of either collective or individual self-defense. The authors make no attempt to explain how another nuclear test would be an armed attack — which is not surprising, given that previous tests have all been on North Korean territory (with terrible consequences for North Koreans). And here is their argument concerning another conventional missile launch:

More difficult is determining whether North Korea’s current behavior justifies the limited military strike proposed in the “bloody nose” strategy. Consider, for example, another North Korean test in which it launches an unarmed missile into Japanese sovereign territory. Arguably, a test rocket without armed explosives is merely a delivery system, not a “weapon.” On the other hand, such a rocket is capable of causing “” and thus could be construed as a “weapon.” According to the and the , a “[b]ombardment by the armed forces of a State against the territory of another State, or the use of any weapons by a State against the territory of another State” is an act of aggression. Such a North Korean missile launch would seem to fall within this definition and could  as an armed attack.

On the contrary, such an interpretation would not be reasonable — even if we accept the idea that an unarmed missile is a weapon. Tom Ruys has carefully analysed state practice concerning when a de minimis attack qualifies as an armed attack for purposes of self-defense. Here is his conclusion (p. 155; emphasis mine):

In the end, customary practice suggests that, subject to the necessity and proportionality criteria, even small-scale bombings, artillery, naval or aerial attacks qualify as ‘armed attacks’ activating Article 51 UN Charter, as long as they result in, or are capable of resulting in destruction of property or loss of lives. By contrast, the firing of a single missile into some uninhabited wasteland as a mere display of force, in contravention of Article 2(4) UN Charter, would arguably not reach the gravity threshold.

The attack that the authors imagine — an unarmed missile fired into Japan’s territorial sea — is precisely the kind of attack that is not “capable of resulting in destruction of property or loss of lives.” That attack thus cannot give rise to the right of self-defense. Indeed, even the source that the authors cite, Karl Zemanek’s entry “Armed Attack” in the Max Planck Encyclopedia of International Law, rejects their insistence that an unarmed missile fired into Japan’s territorial sea could “reasonably be interpreted as an armed attack.” Here is what Zemanek says about de minimis attacks (emphasis mine):

In sum, it is submitted that regardless of the dispute over degrees in the use of force, or over the quantifiability of victims and damage, or over harmful intentions, an armed attack even when it consists of a single incident, which leads to a considerable loss of life and extensive destruction of property, is of sufficient gravity to be considered an ‘armed attack’ in the sense of Art. 51 UN Charter.

The authors’ claim that the US would be entitled to act in “collective self-defense” in response to an “armed attack” in the form of an unarmed missile fired into Japan’s territorial waters is also problematic. Here is their argument:

The 1960  of Mutual Cooperation and Security between the United States and Japan states “[e]ach Party recognizes that an armed attack against either Party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes.” This treaty may provide a basis for the United States’ to engage in a limited retaliatory strike. One could argue that, pursuant to the 1986  out of the International Court of Justice (ICJ), the United States would have to obtain Japan’s affirmative consent before engaging in a strike against North Korea in collective self-defense. However, Article 51 certainly does not refer to any such prerequisite, and the ICJ’s conclusion in Nicaragua is . On a more practical note, it is highly unlikely  a collective self-defense strike by the United States.

It is not clear why the authors believe that Japan would not need need to specifically consent to “collective self-defense.” There are two possible interpretations of their argument: (1) the Treaty of Mutual Cooperation automatically provides the US with the consent it needs to “defend” Japan in case of an armed attack; (2) collective self-defense never requires the consent of the attacked state. The authors’ criticism of the Nicaragua judgment implies that they take position (2). As Ruys explains, however, state practice — from Jordan in 1958 to South Vietnam in 1965 to the Soviet invasion of Afghanistan in 1980 — indicates that collective self-defense is lawful only when the state with the right of individual self-defense requests it (pp. 88-89):

This brings us to the third and decisive reason why the conception of collective ‘defence of the other’, endorsed by the ICJ and a majority of legal scholars, holds the upper hand over the ‘defence of the self’ approach: customary practice provides virtually no support either for the requirement that a proximity relationship should exist, or for the idea that collective self-defence may be exercised absent the approval of the actual victim State. On the contrary, practice convincingly shows that a State which is the subject of an attack has a legal right to ask for military assistance.


In sum, in each case, what was deemed crucial was whether the actual victim State had a right of individual self-defence, and whether it approved of the actions of the assisting State. Of course, the assisting State will most often have some sort of interest in responding to the victim’s request; States seldom engage in military action out of pure altruism. Yet, practice makes clear that a proximate relationship is not a legal criterion; only the victim State’s approval is.

The stronger argument, then, is that the Treaty of Mutual Cooperation would automatically provide the necessary consent for US to engage in “collective self-defense.” Aurel Sari raised this possibility on Twitter last night. I am not convinced that the Treaty eliminates the need for Japan’s consent to armed force being used on its behalf. In particular, Art. IV provides that “[t]he Parties will consult together… at the request of either Party, whenever the security of Japan or international peace and security in the Far East is threatened,” which seems to contemplate acts of self-defense being undertaken only with the specific agreement of both Japan and the US. But Aurel’s argument must still be taken seriously, and it provides the only coherent basis for the authors’ position on collective self-defense.

(As an aside, I find very unconvincing the author’s casual assertion that “it is highly unlikely  a collective self-defense strike by the United States.” On the contrary, I think Japan would be quite likely to oppose the US responding to a unarmed missile attack by using force — even relatively restrained force — directly against North Korea. A North Korean response would be more likely to target Japan than the US. So Japan would have every incentive not to consent to “collective self-defense” in such a situation.)

Finally, I find very unconvincing the author’s insistence that the US is close to having an individual right of self-defense against North Korea:

Even without another missile targeting Japan, the United States could arguably rely on its own Article 51 individual right of self-defense to justify a “bloody nose” strike. While somewhat controversial, the United States interprets the individual right of self-defense to allow for a preemptive-but-proportional  when the need to do so is . In other words, if the United States determines North Korea’s behavior indicates a forthcoming attack it can act in self-defense before absorbing the first blow.

North Korea’s recent activities help support a preemptive self-defense argument. Despite extensive efforts by the international community, including through , and , North Korea continues to defiantly test powerful nuclear weapons and launch ballistic missiles. Furthermore, it has gone to great lengths to conceal its nuclear testing program by creating underground facilities and intricate . This behavior, coupled with North Korea’s pattern of  and  against the United States and other nations, makes a preemptive use of force seem more and more . As the North Korean threat increases and non-military measures are exhausted, it becomes reasonable to believe that the last opportunity for the United States to act is fast approaching.

There is no question that the US would have the right to act in self-defense to prevent an imminent attack by North Korea — anticipatory self-defense. But the authors seem to adopt an understanding of self-defence’s necessity requirement that goes well beyond the traditional Caroline standard of imminence, according to which the need to act must be “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” They specifically argue for preemptive self-defense, a term that the US traditionally uses to describe self-defense against attacks that are not imminent.(The Bush doctrine is an example.) And they invoke the “last opportunity to act” test, which is not necessarily inconsistent with anticipatory self-defense, but can easily be interpreted to allow for preemptive self-defense, as Adil Haque nicely explains here.

If the authors are endorsing a view of self-defense that does not require an imminent attack, their position is clearly wrong. Here is Ruys again (pp. 336-38):

[T]here can be no doubt that even among States adhering to the “counter-restrictionist” view, support for self-defence against non-imminent threats is virtually non-existent. Apart from the fact that the sponsors of Operation “Iraqi Freedom” avoided this justification, it may be observed that many States, such as Germany, Japan, Switzerland, Uganda, Singapore or Liechtenstein, which professed support for anticipatory self-defence after 2002, nonetheless placed great weight on the imminence requirement. Germany, for instance, expressly denounced an erosion of the Charter framework and State practice via the notion of “preventive self-defence.” Likewise, the French politique de defense unequivocally “rejects… the notion of preventive self-defence.”

What is more, even the “traditional” adherents of the counter-restrictionist interpretation of Article 51 generally appear to uphold the imminence requirement. Despite bold statements by its Prime Minister on the need to adapt the UN Charter, Australia’s response to “In Larger Freedom” was rather cautious: it simply “[supported] reaffirmation by the Secretary-General that Article 51 of the Charter adequately covers the inherent right to self-defence against actual and imminent attack.” Israel called for an explicit recognition in the World Summit Outcome that States may use force in self-defence “in the event of both actual and imminent attacks.” As far as the British position is concerned, Attorney- General Lord Goldsmith in 2004 declared before the House of Lords that: “It is… the Government’s view that international law permits the use of force in self-defence against an imminent attack but does not authorize the use of force to mount a pre-emptive strike against a threat that is more remote.”…

[W]e may therefore conclude that the trend in State practice has been broadly similar to that in legal doctrine: support for anticipatory self-defence has increased, but has by and large restricted this concept to imminent threats.

By contrast, if the authors believe that an imminent attack is required but want to define “imminent” to include the “last opportunity to act” test,” they are not necessarily arguing for an unlawful version of self-defense. It depends on how broadly they interpret “last opportunity to act.” An acceptably narrow definition of the test does, however, seem inconsistent with the authors’ insistence that “[a]s the North Korean threat increases and non-military measures are exhausted, it becomes reasonable to believe that the last opportunity for the United States to act is fast approaching.” To begin with, although there is certainly cause for concern, North Korea does not seem particularly close to having the technology necessary to attack the US mainland with a nuclear missile. Moreover — and more importantly — despite its belligerence and bluster, there is little evidence that North Korea actually wants to attack the US, much less intends to do so as soon as possible. North Korea has long had the ability to launch a conventional attack against numerous US installations overseas — and probably now has the ability to reach the US mainland with a conventional missile. Yet no such attack has ever taken place.

Is it possible that, at some point, the US will have the legal right to attack North Korea in self-defense? Absolutely. But that time is not now — even if North Korea fires another unarmed missile into Japanese territorial waters. And there is little reason to believe that the “last opportunity for the United States to act is fast approaching.” Any argument at present for the “bloody nose” strategy, therefore, is both legally unsound and profoundly counterproductive.

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.