In association with the International Commission of Jurists

International Criminal Law

02 Oct

Observers have watched with keen interest as Mahmoud Abbas took the politically risky, some say courageous, move to seek UN recognition of Palestine as a state. At the very center of Abbas' polarizing decision is the International Criminal Court and the possibility of opening an investigation into alleged crimes in Palestine. To think that the ICC would be so integral a player in the challenge of peace in the Middle East would have been unimaginable just a few short years ago. Just as remarkable is the demonstrated centrality of statehood in the pursuit of global justice, something that surely keeps the dreamers of international criminal justice up at night. It really wasn't supposed to go this way. The ICC was meant to be a shining star in the liberal cosmopolitan trajectory which instructed the peoples of the world that no one could hide behind state sovereignty anymore. What mattered in global politics and ethics wasn't still supposed to be states over all else. Slowly, but surely, the post-WWII global conscience was intended to wither away the rigidity of statehood as the primary unit of international politics and replace it with “the human”. The most important association was no longer supposed to be a state or a territory or religion. These were to be secondary, displaced by a “consciousness of being a citizen of the world, whatever other affiliations we may have.” Citizenship of state was to become secondary to citizenship of a “worldwide community of human beings” who shared a universal ethical code and which represented and protected all those who counted themselves as human. We were to be universal individuals. Rights were ours as individual people but shared by all. These individual rights were to be protected but we were to care about them everywhere. It is as a result of this liberal cosmopolitan trajectory that we have a human rights regime, a doctrine of Responsibility to Protect and the International Criminal Court. It is in the name of our common, universal citizenship in “humanity” that these institutions and regimes were established. The ICC, in particular, is an acknowledgement that “cosmopolitan norms of justice accrue to individuals as moral and legal persons in a worldwide civil society,” and the creation of “protections for individuals as human beings.” “[W]hat advocates of the International Criminal Court aspire to, above all, is the creation of a universal moral and judicial community” to replace power politics. Central to the establishment of the Court was the notion that individuals – and not states – are responsible for violations of international humanitarian and human rights law, reflecting a view “that thinking of human rights violations as perpetrated by monolithic and abstract entities called states, and holding only states responsible...stood in the way of human rights enforcement”. As Kirsten Ainley writes, there is a palpable and “increasing focus on the individual, rather than the state, as the key agent in international politics,” the “result of the rise of cosmopolitan liberalism.” To return to the case of Palestine, what is remarkable is the centrality of statehood, and by extension state sovereignty, in the capacity of Palestinians to pursue international justice. Surely, to many readers this will be unsurprising – the ICC's Rome Statute, after all, was negotiated by states and nations only come under the Court's jurisdiction if they refer themselves or ratify the Statute. In other words, the Court continues to privilege statehood, at most marking a negotiation between state politics and the liberal cosmopolitan protection of human rights. However, with the case of Palestine the importance of the state-based power-politics has come only more forcefully into light.
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01 Oct

It appears the right-wing has settled on a shiny new historical comparison to justify the targeted killing of Anwar al-Awlaki.  Here is Jack Goldsmith in the New York Times: An attack on an enemy soldier during war is not an assassination. During World War II, the United States targeted and killed Adm. Isoroku Yamamoto, the architect of the Japanese...

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30 Sep

The following is a guest-post by David Glazier, Associate Professor of Law at Loyola Law School in Los Angeles.  Our thanks to him for providing it. As Kevin noted on Wednesday, the Department of Defense approved military commission charges against Abd Al Rahim Hussayn Muhammad Al Nashiri, alleged USS Cole bombing mastermind, clearing the way for his arraignment and subsequent trial. ...

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29 Sep

Moreno-Ocampo has always had the reputation of being more politically savvy than legally savvy.  Frankly, he seems completely politically tone-deaf to me.  Witness his recent comments on the implications of a possible UN General Assembly decision to give Palestine "observer state" status: A few blocks away from the UN this week, the man at the centre of the controversy said...

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29 Sep

A few weeks ago I spoke with a senior transitional justice researcher and aspiring politician from northern Uganda about the trials (if you excuse the pun) and tribulations of achieving peace and justice in the region. He described sentiments familiar to those who have engaged in the “peace versus justice” debate:
“I don't see it as a debate. It is common sense that in situations of what we have been experiencing, strategically we should be sequencing these issues, prioritizing and looking at what is best in the short-term and what is best in the long-term. It is very legitimate in any process that we must create an enabling environment that can guarantee justice can be done...If you start asking for justice even before you create that enabling environment, it is not even a debate, it is foolery...We must sequence them.”
I subsequently challenged him on the effectiveness of his argument to which he responded that Argentina was the ideal example of a state which had successfully sequenced peace and justice. The “sequencing argument” has become a popular feature in the rigid and harshly dichotomous “peace versus justice” debate. The argument is attractive because it represents an attempt to find ground between the polarizing views that there is “no peace without justice” and “there is no justice without peace.” While the sequencing argument is closer to the latter in suggesting that justice may have to follow peace it largely acknowledges that justice is necessary in the long term. Unlike scholars of a realist bent who are sceptical of any attempt to achieve justice in conflict and post-conflict contexts, the point is not to reject accountability and reconciliation but to create an environment in which pursuing justice enforces rather than destabilizes peace. The sequencing argument is rather nuanced and intuitive. It weaves together the two major strands of thinking on peace: positive peace and negative peace. Negative peace, the cessation of large-scale, direct violence, is required before justice can be pursued. If justice is sought prior to the “silencing of the guns”, then it risks prolonging the conflict. However, once a negative peace is secured, justice should be pursued. Only by identifying and rectifying past wrongs – including human rights abuses – can a more encompassing, positive peace be achieved. In short, the sequencing argument suggests a trajectory of:
violent conflict –> negative peace –> justice and accountability –> positive peace
Proponents of the sequencing argument have, however, not thoroughly scrutinized how their theory translates into practice. On the ground, the sequencing argument presumably looks a little like this: in order to achieve a cessation of violence, parties enter inclusive peace negotiations to achieve a power-sharing agreement and peaceful transition. The parties discontinue active conflict while even the most brutal and unsavoury of leaders are guaranteed amnesties as an incentive to cease violent activity. Once stability is assured and the time for accountability is ripe, those amnesties are revoked and the leaders of the conflict are brought to account, ushering in positive peace and justice.
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28 Sep

The United States has formally referred military-commission charges against Abd al-Rahim Al-Nashiri for his alleged involvement in a number of terrorist attacks between 2000 and 2002.  Here is Bobby Chesney's helpful description of the charges: Charge 1: Using Treachery/Perfidy (10 USC 950t(17)) – the idea here is that the use of a civilian boat, civilian clothing, and so forth to...

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27 Sep

This past summer, Uganda did something it had never done before: it put a rebel from the notorious Lord's Resistance Army (LRA) on trial for international crimes. The trial of Thomas Kwoyelo marked yet another fascinating twist in Uganda's experience of confronting past atrocities. The government's Directorate of Public Prosecutions alleged that Kwoyelo was guilty of 12 charges of grave breaches of the fourth Geneva Convention and 53 counts of violating Uganda's penal code. Last week, however, judges deemed prosecuting Kwoyelo unconstitutional and ordered him to be set free. The primary obstacle to trying any former rebels in Uganda is the state's Amnesty Law (2000) which was passed with the backing of powerful local northern Ugandan leaders. It effectively guarantees that any individual who either escaped or was captured and subsequently renounced rebellion can be granted reprieve from any prosecution. The trial of Kwoyelo raised, once again, unresolved issues about the use of amnesty laws in societies emerging from violent political conflicts characterized by widespread atrocities. During three months of research, I had the opportunity to attend much of Kwoyelo's trial and speak to many of those involved and affected by his case. From its inception, there was always something peculiar and uncomfortably political about the proceedings. The case opened, quite literally, to the tune of a marching band. While rather clumsy in their approach – much to the chagrin of the presiding judges – Kwoyelo's defense team argued that prosecuting their client was unconstitutional. Because other former combatants, including some who were senior to Kwoyelo, had been granted amnesty, trying Kwoyelo constituted an infringement of his right to fair treatment and equality before the law. Not being able to decide on the constitutionality of the case, the ICD referred it to the Constitutional Court, which agreed with the defense and ordered Kwoyelo to be granted an amnesty and be released:
"We are satisfied that the applicant has made out a case showing that the Amnesty Commission and the Director of Public Prosecutions have not accorded him equal treatment under the Amnesty Act. He is entitled to a declaration that their acts are inconsistent with Article 21(1) (2) of the Constitution and thus null and void. We so find. We order that the file be returned to the court, which sent it with a direction that it must cease the trial of the applicant forthwith."
The importance of the Kwoyelo trial, both legally and politically, is rather obvious. Had Uganda successfully tried and convicted Kwoyelo (and they still might), it would have given the government a plank upon which to build a complementarity challenge to the ICC's jurisdiction, something the government had expressed interest in doing. However, the spectre of a successful trial also instigated fears in northern Uganda. Former senior rebel commanders explained their uneasiness of potentially becoming the Government's next targets for trial if Kwoyelo was denied amnesty. The instability incurred by revoking thousands of amnesties would be absolutely devastating to a region and people eager to move forward. Of course, the granting of an amnesty and the defeat of the government's case against Kwoyelo is equally as controversial. International human rights groups sent representatives to monitor the trial and provide assistance to government lawyers. Predictably, Human Rights Watch argued that amnesties “for crimes such as war crimes and crimes against humanity run counter to international law and practice.” In the wake of the Kwoyelo verdict, Amnesty International released a statement which declared that:
“What we are witnessing here is simply pervasive impunity for serious crimes and human rights violations...Neither Thomas Kwoyelo, nor others accused of committing war crimes should be granted amnesty.”
Human rights groups and fervent human rights advocates and scholars have been engaging in what amounts to talking amnesties out of reality. They claim not only that it is morally and legally wrong to grant amnesties but ominously warn that doing so is to risk ever becoming a functioning, liberal democracy. However, that granting amnesties for crimes such as those allegedly committed by Kwoyelo “run contrary to international law and practice” is not obvious. To borrow from the decision in an Appeal's Chamber ruling at the Special Court for Sierra Leone: a duty to prosecute international crimes and a prohibition on the use of amnesties may be crystallizing, but has not yet crystalized.
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25 Sep

It was so promising. Everyone appeared to be on board when, last February, the international community decided that the situation in Libya should be investigated by the International Criminal Court. Not only did the UN Security Council refer the situation in Libya to the Court, but it did so unanimously. However, despite hefty rhetoric about the importance of bringing the Libyan leader to justice, Western states have been happy to instrumentalize the Court in order to isolate Gaddafi and have just as keenly abandoned their interest in bringing the Libyan tyrant to The Hague. Their initial and overwhelming zeal for international justice also obscured their complicity in sustaining Gaddafi's regime and its crimes against the Libyan people. Readers of the UN Security Council Resolution 1970 will note that the resolution imposes a temporal limit on the ICC's jurisdiction. While the Rome Statute declares that the Court can investigate events since July 1, 2002, the ICC was instructed to only investigate alleged international crimes in Libya since February 15, 2011. In addition, the referral explicitly removes citizens of non-state parties from the jurisdiction of the Court. Despite the questionably legal nature of such restrictions, the referral was celebrated as marking a new chapter in international justice and the relationship between the ICC and the Security Council. Yet, ironically, as the intervention in Libya began to succeed and Gaddafi became increasingly isolated, commitment to achieving international justice waned. That Western states sought to prohibit the Court from investigating any Libyan crimes prior to February 15, 2011 is unsurprising. Doing so would have exposed a litany of instances in which Western states propped up the Gaddafi regime and were complicit in systemic and systematic human rights violations. It doesn't take much research to discover the extent to which Western states and Libya developed a remarkably cozy political, military and economic relationship. Virtually every major Western state had significant dealings with Gaddafi and his regime. Despite protestations from human rights groups and Gaddafi’s victims, he was no longer the “criminal” tyrant who presided over a “reign of terror”, as described by Ronald Reagan. Instead, he was convinced to take responsibility for Lockerbie, renounce sponsorship for international terrorism and become a partner in the fight against radical Islam, and dismantle his nuclear and weapons of mass destruction programmes. Justified by realpolitik, Gaddafi became a “friend”, an “ally” and “one of ours”. It was a remarkable transformation and one which ushered in a wave of bilateral deals which helped keep his police state in power and his people oppressed. Getting Gaddafi on the right side of terrorism and nuclear proliferation was necessary and the concessions achieved by restoring Gaddafi's image were surely worth it. However, as Stephen Glover has argued: “What is not defensible is the subsequent indulging of this horrible man, and treating him as though he were a normal leader of a normal country.”
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23 Sep

I've been following the Kenyan confirmation hearing relatively closely, and I've continually found the reporting at allAfrica.com -- which aggregates articles from numerous leading African newspapers -- to provide extremely good coverage of the proceedings.  An article today from the Nairobi Star, however, caught my eye for all the wrong reasons (my emphasis): A dissenting judge of the International Criminal Court...

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23 Sep

I want to call readers' attention to a very interesting new essay by Milan Markovic, forthcoming in the Texas International Law Journal, that urges the ICC to adopt a code of conduct for prosecutors in the OTP.  Here is the abstract: A largely unexamined area of law is the intersection between legal ethics and international criminal law. This...

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21 Sep

Following Talisman Energy, the Fourth Circuit has now held in Aziz v. Alcolac, another ATS case, that the mens rea of aiding and abetting under the "law of nations" is intent, not knowledge.  That's plainly wrong, as I have pointed out before, so there is no point dwelling on the new decision.  But this paragraph deserves specific mention, because it...

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21 Sep

[Ed. note: David Caron is the C. William Maxeiner Distinguished Professor of Law at the UC Berkeley School of Law and the President of the American Society of International Law. This post is also published in the ASIL Newsletter.] The continuing influence (the “tail”) of historic events such as 9/11 has numerous dimensions.  In international law, the event and the responses...

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