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UN and other Int’l Organizations

Ukraine Parliament to Amend Constitution Re: the Rome Statute

by Kevin Jon Heller

As I’ve noted before, Ukraine’s Constitutional Court has held that the Ukraine cannot ratify the Rome Statute because — in the words of the ICRC — “the administration of justice is the exclusive competence of the courts and… judicial functions cannot be delegated to other bodies or officials.” According to the Coalition for the International Criminal Court (on twitter), the Rada is now considering a bill that would amend Ukraine’s constitution to make ratification possible. The text of the bill is in Ukrainian; if anyone out there would like to provide a translation (the bill is short), I’d be most appreciative:

Проект
вноситься народним депутатом України
Ю. Б. Дерев’янком
та іншими народними депутатами України

ЗАКОН УКРАЇНИ
Про внесення змін до статті 124 Конституції України

Верховна Рада України постановляє:

1. Доповнити статтю 124 Конституції України (Відомості Верховної Ради України, 1996 р., № 30, ст. 141) частиною шостою такого змісту:

“Україна може визнати юрисдикцію Міжнародного кримінального суду на умовах, передбачених Римським статутом Міжнародного кримінального суду.”

2. Цей Закон набирає чинності з дня, наступного за днем його опублікування.

Голова Верховної Ради  О. ТУРЧИНОВ
України

I’m intrigued by the fact that Ukraine’s parliament believes it has to amend the constitution in order to ratify the Rome Statute, but is free to accept the ICC’s jurisdiction on an ad hoc basis. The decision of the Constitutional Court prohibits any delegation of Ukraine’s jurisdiction to an international tribunal — which would seem to include ad hoc delegations as well as permanent delegations. But I’m obviously not an expert on Ukrainian law!

The Security Council Won’t Even Go Dutch with the ICC on Syria

by Kevin Jon Heller

There are many reasons to be skeptical of the Security Council referring the situation in Syria to the ICC, not the least of which is that an ICC investigation is unlikely to accomplish anything given the ongoing conflict. (One that Assad is almost certainly going to win.) But just in case that’s not enough, take a gander at this provision in the draft referral:

[The Security Council] recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily and encourages States to make such contributions.

In other words, the UN just wants to refer the situation; it doesn’t want to pay for the ICC’s investigation. So much for Art. 115 of the Rome Statute, which provides that “[t]he expenses of the Court and the Assembly of States Parties… shall be provided by the following sources… Funds provided by the United Nations, subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to referrals by the Security Council”…

I have previously urged the Prosecutor to refuse to open an investigation into the situation in Syria unless the Security Council is willing to fund it. The draft referral makes clear that the Security Council has no intention of doing so. In the unlikely event that the referral ever passes, I hope the Prosecutor will consider my suggestion.

PTC II to Defence Attorneys: You Are All Criminals

by Kevin Jon Heller

I’ve been remiss in my blogging lately for a variety of reasons, but I can’t let pass two interrelated decisions by Pre-Trial Chamber II (sitting as a single judge) in the criminal proceedings against Aimé Kilolo Musamba and Jean-Jacques Mangenda Kabongo — Bemba’s lead defence attorney and case manager, respectively. The two men, who are currently in custody, are accused of tampering with witnesses and manufacturing evidence.

The decisions in question concern the requests by Kilolo and Mangenda for release pending trial. To justify denying a suspect pre-trial release, the PTC must find (1) that there are reasonable grounds to believe the suspect committed the crimes alleged by the OTP, and (2) that ongoing detention is necessary for one of the reasons set forth in Art. 58(1)(b) of the Rome Statute — namely, to ensure that the suspect appears at trial, to prevent the suspect from obstructing the OTP’s investigation, or to prevent the suspect from continuing to commit crimes.

In both cases, and essentially on exactly the same grounds, the PTC found that continued detention was warranted. I’m willing to accept the PTC’s conclusion regarding the first limb of the detention test; although I’m skeptical the OTP can prove the allegations at trial for a variety of substantive and procedural reasons, a judge could find that there are reasonable grounds to believe Kilolo and Mangenda tampered with witnesses and/or manufactured evidence. But I am appalled by the PTC’s approach to the second limb of the detention test, where it concludes that Kilolo and Mangenda are both flight risks and are likely to obstruct the OTP’s investigation. The PTC’s reasoning exhibits a truly breathtaking contempt for the role that defence attorneys and case managers play at the ICC. Here is what the PTC says about Kilolo being a flight risk (and the PTC makes the same argument for Mangenda) (emphasis added):

22. Whilst acknowledging the handing over of Mr Kilolo’s passport to the authorities of the Detention Centre, the Single Judge observes that this does not detract from the risks of flight which are inherent in the very connection of Aimé Kilolo to the network of Jean-Pierre Bemba Gombo and to the ensuing likelihood that he might be made available resources enabling him to abscond from the jurisdiction of the Court. Furthermore, it is to be noted that Mr Kilolo requests to be released in Belgium, i.e. in a country within the Schengen area, where travel is to a great extent possible without the need that identity documents be shown or relied upon.

[snip]

24. The Single Judge is likewise not persuaded that Aimé Kilolo’s withdrawal from his role as lead counsel for Jean-Pierre Bemba in the Main Case entails per se the severance of all of his ties to the latter’s vast network and hence to the concrete risk that resources be made available to him for the purpose of evading justice. The fact that “depuis le 6 décembre 2013, le requérant n’a plus de contacts privilégiés avec M. Bemba” (emphasis added) does not mean that the long-established relationship between Mr Bemba and Mr Kilolo by virtue of the latter’s role as lead counsel in the Main Case has ceased to exist. Contrary to what stated by the Defence the absence of documents witnessing to the existence of a “relation personnelle” between the two cannot be considered as mitigating or otherwise affecting this conclusion. Similarly, if it is true that assets pertaining to Mr Bemba and Mr Babala have been seized by way of implementation of the Chamber’s order, such assets obviously form but a small part of the assets which are or might be made available to the network as a whole, which comprises a number of individuals by far exceeding the suspects in this case.

Notice what the PTC is claiming here: Kilolo is part of Bemba’s “network” simply because he served as Bemba’s defence attorney. Kilolo is thus “inherently” a flight risk, despite not having been convicted of any crime — presumably the presumption of innocence still applies to the pending charges — because he has access to the vast resources of Bemba’s criminal organisation. In short: Bemba’s defence attorney is no different than Bemba’s henchmen and enforcers. He just plays a different role in Bemba’s organisation.

The PTC’s argument is disturbingly reminiscent of the post-9/11 demonisation of defence attorneys in the US who had the temerity to represent individuals accused of terrorism. Marc Thiessen, for example, (in)famously claimed that “[t]he habeas lawyers were not doing their constitutional duty to defend unpopular criminal defendants. They were using the federal courts as a tool to undermine our military’s ability to keep dangerous enemy combatants off the battlefield in a time of war.” Such despicable claims led to significant pushback from both progressives and (to their credit) many conservatives — and rightfully so. Yet now we witness the unseemly spectacle of an international judge engaging in precisely the same kind of demonisation.

Nor is that all. The PTC’s explanation of why Mangenda is likely to obstruct the OTP’s investigation is just as offensive (emphasis added):

As stated by the Prosecutor, Mangenda’s former role as case manager for Jean-Pierre Bemba entails that he is likely to know the identity of most of the potential witnesses; moreover, given the precise information disclosed to him, now he is even in a better position to obstruct or endanger the investigations. As regards the fact that the Prosecutor’s investigation is close to completion, it cannot be reasonably excluded that additional action might be taken, in respect of other evidentiary items which might still be outstanding, whether in relation to the Main Case or to these proceedings, in spite of the fact that some pieces of evidence are indeed in the possession of the Court or of the relevant national authorities and as such beyond the suspects’ reach.

Is it possible to imagine greater contempt for the role — absolutely critical, as any defence attorney knows — of a case manager? Of course Mangenda will obstruct the OTP’s investigation (now the presumption of innocence is jettisoned completely); after all, what member of Bemba’s “network” would be better placed to do so than his case manager, who has access to all kinds of insider information?

Again, the PTC’s contempt for the defence function is truly shocking. Unfortunately, it seems to be a pattern at the ICC — let’s not forget how the Court essentially abandoned and apologized for Melinda Taylor when Libya imprisoned her on the basis of truly ludicrous allegations. Defence attorneys and case managers, even those accused of serious crimes, deserve better.

NETmundial, Borders in Cyberspace, and a Duty to Hack

by Duncan Hollis

Last week’s NETmundial conference serves as a reminder of just how much the nature of cyberspace remains (at least theoretically) undetermined.  We still can’t agree on what kind of resource cyberspace “is”:  Is it a global public good as Sir Tim Berners Lee proclaimed (i.e., a res communis) or just a collection of technology subject to sovereignty regulation like so many other resources?  This theoretical divide may help explain the continuing back and forth between multi-stakeholder governance (which includes, but does not privilege, a role for States) versus the multilateral governance project (which most certainly does).  NETmundial may have been a net plus for multi-stakeholder proponents, but I’m much less sanguine that it represents an end to claims that cyberspace can — and should — be regulated primarily by government controls over internet resources (for more on the details of NETmundial and its final statement see Milton Mueller’s take-away here).

My skepticism about how international law will draw borders for cyberspace governance leads me to think about other roles borders can play in cyberspace — that is, using international law to draw lines separating acceptable from unacceptable behavior, permitted conduct from required conduct, etc.  I’ve drafted a new chapter that, in the context of cyber war, examines both the ways we draw law from borders and borders from law in cyberspace.  I critique the status quo on both theoretical and functional grounds, concluding that we should seek to start a new process not just for constructing governance regimes, but normative ones as well.  Consistent with the book’s central focus on cyber war, I proffer a case-study for such an approach with respect to armed conflicts, arguing international humanitarian law should adopt a Duty to Hack.  My idea is that, even though it does so only occasionally now, international law should regularly require States to use cyber-operations in their military operations whenever they are the least harmful means available for achieving military objectives.  You can download a copy of the paper here on SSRN.

For those looking for more details, here’s the abstract:

Warfare and boundaries have a symbiotic relationship. Whether as its cause or effect, States historically used war to delineate the borders that divided them. Laws and borders have a similar relationship. Sometimes laws are the product of borders as when national boundaries delineate the reach of States’ authorities. But borders may also be the product of law; laws regularly draw lines between permitted and prohibited conduct or bound off required acts from permissible ones. Both logics are on display in debates over international law in cyberspace. Some characterize cyberspace as a unique, self-governing ‘space’ that requires its own borders and the drawing of tailor-made rules therein. For others, cyberspace is merely a technological medium that States can govern via traditional territorial borders with rules drawn ‘by analogy’ from pre-existing legal regimes.

This chapter critiques current formulations drawing law from boundaries and boundaries from law in cyberspace with respect to (a) its governance; (b) the use of force; and (c) international humanitarian law (IHL). In each area, I identify theoretical problems that exist in the absence of any uniform theory for why cyberspace needs boundaries. At the same time, I elaborate functional problems with existing boundary claims – particularly by analogy – in terms of their (i) accuracy, (ii) effectiveness and (iii) completeness. These prevailing difficulties on whether, where, and why borders are needed in cyberspace suggests the time is ripe for re-appraising the landscape.

This chapter seeks to launch such a re-thinking project by proposing a new rule of IHL – a Duty to Hack. The Duty to Hack would require States to use cyber-operations in their military operations whenever they are the least harmful means available for achieving military objectives. Thus, if a State can achieve the same military objective by bombing a factory or using a cyber-operation to take it off-line temporarily, the Duty to Hack requires that State to pursue the latter course. Although novel, I submit the Duty to Hack more accurately and effectively accounts for IHL’s fundamental principles and cyberspace’s unique attributes than existing efforts to foist legal boundaries upon State cyber-operations by analogy. Moreover, adopting the Duty to Hack could constitute a necessary first step to resolving the larger theoretical and functional challenges currently associated with law’s boundaries in cyberspace.

 

Thoughts on the Ukraine Ad Hoc Self-Referral

by Kevin Jon Heller

As readers no doubt know, Ukraine has accepted the ICC’s jurisdiction on an ad hoc basis for acts committed between 21 November 2013 and 22 February 2014. The self-referral has already led to a good deal of intelligent commentary — see, for example, Mark Leon Goldberg’s discussion of the politics of an ICC investigation here and Mark Kersten’s convincing argument that Russia may not be particularly opposed to an ICC investigation here. I just want to add a few additional thoughts.

To begin with, I remain troubled by the insistence of Ukraine’s Constitutional Court that Ukraine cannot delegate its adjudicative jurisdiction to an international court. As it said in 2001:

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

Parliament’s acceptance of the ICC’s jurisdiction, even on an ad hoc basis, seems specifically foreclosed by the Constitutional Court’s judgment. Ukraine’s President and Parliament clearly don’t care about that inconvenient fact; will the ICC? Martin Holtermann may be right — the ICC may simply defer to Ukraine’s President and Parliament. But I can help but think it would be unseemly for an international court like the ICC to simply ignore a clear judgment issued by the highest court in a state purporting to accept its jurisdiction. At the very least, Fatou Bensouda should take the Ukraine’s internal conflict into account when she decides whether to open a formal investigation — you can bet that any suspect wanted by the ICC would challenge the legality of the self-referral in Ukraine’s domestic courts, litigation that could make it very difficult for ICC proceedings to go forward.

Relatedly, I think it’s important to remind ourselves that Ukraine’s self-referral does not mean the OTP will open a formal investigation into the situation. Diane Amann writes today that the self-referral shows “Europe is on [the] ICC docket.” That’s true — but only in the formal sense. As Mark Kersten noted in February, Europe has been on the ICC docket for a long time in terms of preliminary investigations. After all, the OTP announced the Georgia investigation in August 2008 — nearly six years ago. (Its Afghanistan investigation has been plodding along even longer, since 2007.) That hasn’t quelled the voices that have been complaining — with justification — that the ICC has been overly obsessed with Africa. So unless and until the OTP decides to open a formal investigation into the situation in Ukraine, the country’s self-referral is unlikely to have any positive effect whatsoever on the Court’s African reputation.

Finally, a brief thought on the temporal limits of the self-referral. I don’t think the ICC will reject the referral on the ground that it is too carefully tailored to ensure only one side of the conflict. (A major problem with Comoros’s Mavi Marmara state referral.) The temporal limits, however narrow, make some sense — the referral begins when Yanukovych announced Ukraine was abandoning the agreement with the European Union and ends when Yanukovych fled the country. Should Ukraine have accepted the ICC’s jurisdiction for a longer period — most notably, to include Russia’s invasion of Crimea? I had an interesting twitter debate earlier today on that issue with a bunch of smart Court-watchers, including Ryan Goodman, Eugene Kontorovich, Mark Kersten, Martin Holtermann, and David Kaye. I pointed out that it’s difficult to see what international crimes Russia committed during the invasion, other than the non-prosecutable crime of aggression. Ryan replied that a longer self-referral could give the ICC an opportunity to address important issues in the law of occupation. (See also his post here.) That’s absolutely true — but only if Russia actually violates the law of occupation, which seems unlikely given the popularity (certainly not uniform) of the invasion and annexation within Crimea itself. The wildcard is the crime that Eugene mentioned during our discussion — the transfer of civilians into occupied territory. I have no idea whether Russia intends to directly or indirectly transfer Russians into Crimea; Eugene seems to think it does, and I will defer to his greater knowledge of the situation. But my position with regard to that possibility is the same as my position on Israel’s transfer of civilians into the West Bank: whatever the merits of the allegations, the war crime is legally uncertain and factually difficult to prove, especially when the transfer is indirect instead of direct — which it is in the West Bank and would almost certainly be in Crimea. In the absence of other violations of the law of occupation, therefore, I am not sure the OTP would get involved.

I imagine we will have much more to discuss concerning the ICC and Ukraine in the weeks to come!

Engaging the Writings of Martti Koskenniemi

by Duncan Hollis

MK2r_hollis (2)

Last Spring, Temple Law School was pleased to host a two day workshop on the scholarship of one of international law’s true giants – Martti Koskenniemi (simply put, I’m a big fan). Organized by my colleague, Jeff Dunoff, it was a great event with a wide-ranging conversation launching off Martti’s works in international legal theory, international legal history, fragmentation, interdisciplinary scholarship, ethics and the future of international law.  

Given how great the workshop was, I could not be more pleased to note that the accompanying papers have now been compiled and published in a single volume of the Temple International and Comparative Law Journal (vol. 27, no. 2). The full table of contents for the Symposium Issue can be found here

The papers include Jeff Dunoff’s framing introduction, a fascinating paper by Martti on the historiography of international law, and a slew of papers by renowned scholars, including Kim Scheppele, Tomer Broude, Sean Murphy, Mark Pollack, Rob Howse and Ruti Teitel, Samuel Moyn, Jan Klabbers, Andrew Lang and Susan Marks, Frédéric Mégret, and Ralf Michaels.  These papers address a number of themes that run through Koskenniemi’s work, including international law and empire; the fragmentation of international law; interdisciplinary approaches to international law; reading – and misreading – the tradition; and the international lawyer as ethical agent.  Both individually and collectively, the papers represent a significant effort to engage, explore, and extend the ideas found in Koskenniemi’s writings.

The special symposium issue is the first of what will be a tradition of yearly Symposia that will be organized by Temple faculty and published in the Journal.  As such, the Symposia marks a new form of collaboration between Temple faculty and students, and represent an experiment in academic publishing designed to provide students the experience of editing papers on cutting-edge research, and at the same time injecting faculty expertise into the selection and substantive editing of papers.

There Is No General “Security Exception” in the UNHQ Agreement Act

by Kevin Jon Heller

I fully concur with Julian’s recent post about the United Nations Headquarters Agreement. There is no question that the US decision to deny Aboutalebi a visa violates the Agreement itself. But I’ve seen suggestions, most notably by my friend John Bellinger, that the US is not violating domestic US law because the 1947 United Nations Headquarters Agreement Act (scroll down) contains a “security exception” to the visa requirement. Here is what John said, according to Bloomberg:

President Barack Obama has authority to deny a visa to Iran’s newest choice as envoy to the UN, yet doing so would open up risks for U.S. foreign policy.

The decision in the case of Hamid Aboutalebi, who was part of the group that took over the American embassy in Tehran in 1979, is being made at a delicate point in U.S.-led negotiations over Iran’s nuclear program.

Under the United Nations Headquarters Agreement Act approved by Congress in 1947, the president has authority to deny visas to individuals deemed to pose a security threat to the U.S., said John Bellinger, a former State Department legal adviser who is now partner at Arnold and Porter LLP in Washington.

If Obama decides a person is a threat “then we’re not required to give that person a visa, and that would be consistent with our obligations under the headquarters agreement,” Bellinger said. “Whether that’s good policy or not that would be up to others to decide.”

“The short answer is, it’s complicated,” he said.

I disagree. With respect to John, nothing in the Headquarters Agreement Act permits the US to deny a visa to anyone it considers a “security threat.” The relevant provision is section 6, which Julian did not quote in full in his post (emphasis mine):

Nothing in the agreement shall be construed as in any way diminishing, abridging, or weakening the right of the United States to safeguard its own security and completely to control the entrance of aliens into any territory of the United States other than the headquarters district and its immediate vicinity, as to be defined and fixed in a supplementary agreement between the Government of the United States and the United Nations in pursuance of section 13 (3) (e) of the agreement, and such areas as it is reasonably necessary to traverse in transit between the same and foreign countries. Moreover, nothing in section 14 of the agreement with respect to facilitating entrance into the United States by persons who wish to visit the headquarters district and do not enjoy the right of entry provided in section 11 of the agreement shall be construed to amend or suspend in any way the immigration laws of the United States or to commit the United States in any way to effect any amendment or suspension of such laws.

Section 6 contains two separate provisions. Provision 1 permits the US to prohibit individuals who have a right of entry under the Headquarters Agreement but are considered a security threat from traveling anywhere other than other than “the [UN] headquarters district and its immediate vicinity.” Provision 2 then permits the US to deny entry completely to anyone who does not have a right of entry under the Headquarters Agreement. Section 6 thus does not permit the US to deny entry completely to someone who has a right of entry.

I think this is the only plausible reading of section 6. To find a general “security exception,” we have to read “safeguard its own security” (1) in isolation from the rest of the sentence in which it is placed (in which case we must still infer that the US is entitled to deny entry completely to individuals who are security threats, because Provision 1 does not specify any remedy other than limitation to the UN area), and (2) in isolation from Provision 2, which does explicitly permit denying entry completely but limits that remedy to individuals who do not have a right of entry under the Headquarters Agreement. Moreover, as Julian notes, it is extremely unlikely the UN would have accepted a general security exception if that had been Congress’s intent, because such an exception would have effectively rendered section 11 of the Headquarters Agreement moot.

Thanks to Tyler Cullis for calling the “security exception” problem to my attention.

Can the U.S. Legally Deny Iran’s New U.N. Ambassador a Visa to New York? Nope.

by Julian Ku

According to Reuters, the U.S. is thinking hard about denying a visa to Iran’s new U.N. Ambassador, thus preventing him from taking up his post in New York. The new ambassador, Hamid Abutalebi, apparently participated in the Iranian takeover of the U.S. embassy in Tehran back in 1979. Although nothing is official yet, it looks like the U.S. is going to invoke its “security exception” to the U.N. Headquarters Agreement to deny Abutalebi a visa.   As in the case involving President Bashir of Sudan, denying a visa to Iran’s ambassador would almost certainly violate the Headquarters Agreement.  Let’s take a look at Section 11:

The federal, state or local authorities of the United States shall not impose any impediments to transit to or from the headquarters district of (1) representatives of Members or officials of the United Nations…

Iran’s ambassador is clearly covered by this language. The only U.S. argument flows from the “security” exception attached to the Headquarters Agreement upon its approval by the U.S. Congress.

Nothing in the agreement shall be construed as in any way diminishing, abridging, or weakening the right of the United States to safeguard its own security and completely to control the entrance of aliens into any territory of the United States….

As a matter of international law, I do not think the United Nations ever officially accepted this amendment to the original Headquarters Agreement, and certainly it has never accepted the rather broad U.S. interpretation of this provision.  A deal was struck in the past to allow the U.S. to give very limited visas that kept visitors within 15 miles of UN Headquarters.

In any event, the U.N. has battled with the U.S. several times in the past over the use of this clause to deny visas to the PLO, or even to close down PLO observer missions at the U.N.  The U.N. even sought arbitration (as provided by the Headquarters Agreement) as well as an advisory opinion from the ICJ when the US went after the PLO back in the late 1980s.

Does this mean the U.S. cannot deny the visa? I think under domestic U.S. law, there is certainly a plausible basis for denial given Abutalebi’s past connections and U.S. practice in this area.  But the U.N. would be well within its rights to claim a violation of the Headquarters Agreement and to demand an arbitration that it would have a good chance of winning.   I don’t get why the U.S. wants to pick this fight at this time. I’d prefer it hang tough on its demand that Iran eliminate its nuclear weapons program rather than deny a visa over actions taken by a guy 35 years ago.  But it looks like we are going to have this fight, so stay tuned.

Could Moreno-Ocampo Represent LRA Victims at the ICC?

by Kevin Jon Heller

John Louth at OUP passes along the latest potential twist in Moreno-Ocampo’s career path:

The former prosecutor of the International Criminal Court (ICC), Mr Luis Moreno Ocampo, has offered to represent the victims of Barlonyo Massacre in the court.Barlonyo village in Agweng Sub-county, Lira District is where more than 400 people were massacred by suspected Lord’s Resistance Army rebels on February 21, 2004. A total of 301 people are buried at the memorial site in a mass grave.

However, more people are believed to have been killed in the attack as 11,000 people were in the camp at the time. “I have something to offer you, I want to be your lawyer,” Mr Ocampo told the survivors who gathered at Barlonyo to welcome him on Friday.

He then asked those in the crowd who lost relatives in Barlonyo massacre to raise their hands and all did. He then offered to represent them in court. Mr Ocampo said initially, it was thought only 200 were killed in Barlonyo but now he knows more people were killed.

“We can document that. The killing, abduction and the looting and we can present this to the ICC. We can request to expand the arrest warrant, the number of victims and the number of crimes and document well what happened here,” he said.

“We can present this to the ICC we can request to expand the arrest warrant we can expand the number of victims and number of crimes.” Mr Ocampo was invited to Lango region by Children of Peace, an NGO supporting the vulnerable and victims of the Barlonyo in Lira District

I have no idea whether Moreno-Ocampo actually intends to represent Barlonyo victims at the ICC, but it’s worth thinking about some of the potential ethical issues that such representation would involve. Like all counsel who are involved with the Court, Moreno-Ocampo would be subject to the Code of Professional Conduct for Counsel. The most relevant provision is Art. 12, “Impediments to representation”:

1. Counsel shall not represent a client in a case:

(a) If the case is the same as or substantially related to another case in which counsel or his or her associates represents or formerly represented another client and the interests of the client are incompatible with the interests of the former client, unless the client and the former client consent after consultation; or

(b) In which counsel was involved or was privy to confidential information as a staff member of the Court relating to the case in which counsel seeks to appear. The lifting of this impediment may, however, at counsel’s request, be ordered by the Court if deemed justified in the interests of justice. Counsel shall still be bound by the duties of confidentiality stemming from his or her former position as a staff member of the Court.

I don’t think Art. 12(1)(a) would apply, because the OTP doesn’t have “clients” in the sense of private counsel — especially given that the victims of crimes have their own counsel, making clear that they are not represented by the OTP. But it would be interesting to see the OTP’s position, because it could at least plausibly argue that the provision would require Moreno-Ocampo to get its permission to represent the Barlonyo victims. There is no question that the Barlonyo case is “substantially related” to Moreno-Ocampo’s previous work on the LRA cases; after all, the OTP pursued those cases on his watch and Moreno-Ocampo was responsible for opening the Uganda investigation in the first place. And although the interests of the OTP and the victims often align, that is certainly not necessarily the case — see, e.g., the Lubanga controversy over sexual violence. So I could see Bensouda worrying that Moreno-Ocampo might pursue a strategy for the Barlonyo victims that was inconsistent with his previous work on the LRA cases.

Which leads to Art. 12(1)(b), the confidentiality provision. That provision could easily be fatal to Moreno-Ocampo’s potential representation of the Barlonyo victims, even if the OTP didn’t oppose it. No former member of the OTP could have had greater access to confidential information than Moreno-Ocampo; after all, he was the Prosecutor for eight years. Could he represent the victims without in any way revealing or relying on confidential information he had access to while he was the Prosecutor? I’m willing to give Moreno-Ocampo the benefit of the doubt that he would take his confidentiality obligation seriously, but I’m skeptical that he — or anyone in a similar position — could maintain the mental “Chinese wall” necessary to avoid information bleed. So I could very easily see the Court deciding that it would not be in the “interests of justice” — or in the interests of the victims themselves — to permit Moreno-Ocamo to represent the Barlonyo victims given his previous role in the Court.

I have no problem with Moreno-Ocampo using his clout and visibility to promote the interests of the Barlonyo victims. But I’m not sure whether he should actually represent them at the ICC. In my view, it would be difficult, if not impossible, for Moreno-Ocampo to navigate the exceptionally complicated confidentiality issues that would be involved in working on behalf of victims in a situation he was once responsible for investigating. We’ll see what happens.

Al-Senussi, Gaddafi Show Trial to Begin Next Month

by Kevin Jon Heller

According to Lebanon’s Daily Star, Libya intends to begin the trial on April 14, just a few weeks from now:

Seif al-Islam Kadhafi, Saadi Kadhafi and former spy chief Abdullah Senussi are among more than 30 officials from the ousted regime who are to stand trial on charges ranging from murder to embezzlement.

Former premiers Al-Baghdadi al-Mahmudi and Bouzid Dorda are also among those going on trial from April 14, Seddik al-Sour, spokesman for the state prosecutor’s office, told a news conference.

Charges against Kadhafi’s sons and aides include murder, kidnapping, complicity in incitement to rape, plunder, sabotage, embezzlement of public funds and acts harmful to national unity.

Saadi Kadhafi, who was extradited from Mali earlier this month, is to stand trial in the same case, said Sour.

His older brother Seif al-Islam, Kadhafi’s former heir apparent, is being held by rebels in the western city of Zintan who have refused to transfer him to Tripoli for the trial.

Sour said he could stand trial via video conference from his detention cell in Zintan.

There is still no evidence that either al-Senussi or Gaddafi have ever had access to a lawyer, despite Libya’s constant assertions to the ICC that the government is doing everything in its power to arrange representation for them. Can’t let a little thing like Libyan law get in the way of a good show trial. And, of course, the nice thing about a show trial is that there really isn’t any need for the defendants to prepare a defence.

It’s also difficult to avoid noting the irony of Sour’s suggestion that Gaddafi could be tried via video link — exactly what the Assembly of States Parties and the Trial Chamber (though not yet the Appeals Chamber) have said is fine in the Kenya cases. To be fair, Libya would use videoconferencing without Gaddafi’s consent, whereas the ASP’s backdoor amendment of the Rome Statute was designed to placate Kenyatta and Ruto. But once the ASP and TC proved willing to dilute the clear presence requirement in Art. 63(1) of the Rome Statute, it was only a matter of time before states began taking liberties with presence, as well.

The ICC Fiddles While Libya Burns

by Kevin Jon Heller

For quite some time I zealously followed all of the various filings in the Libya cases — by Libya, al-Senussi and Gaddafi, the Registry, the OPCV, everyone. I also regularly blogged about those filings. But I haven’t lately, as consistent readers will know. The reason?

The ICC judges seem to have lost all interest in actually making decisions.

The record is quite shocking. Take the admissibility challenges. The Pre-Trial Chamber rejected Libya’s admissibility challenge to the case against Saif Gaddafi on 31 May 2013, nearly ten months ago. And it granted Libya’s admissibility challenge to the case against al-Senussi on 11 October 2013, more than five months ago. Both sides immediately appealed the decisions, yet the Appeals Chamber has done nothing since. I’ve been hearing rumours lately that the Appeals Chamber is planning on resolving both appeals at the same time. That may reduce the judges’ workload, but it doesn’t justify letting the appeals languish well beyond what is reasonable.

But it’s not just the Appeals Chamber that is failing to do its job. Pre-Trial Chamber I deserves even harsher criticism. Not surprisingly, Gaddafi’s defence team has been trying desperately to convince the Pre-Trial Chamber to issue a finding of non-compliance against Libya regarding its failure to surrender Gaddafi to the Court. (Or to at least try to surrender him, given that he is still being held in Zintan.) The defence filed its its first request for a finding of non-compliance on 7 May 2013, and it has filed numerous similar requests since. Yet the Pre-Trial Chamber has still not issued a decision on any of the defence’s requests.

So what has Pre-Trial Chamber I been doing in the Libya cases? Not much. It has issued a grand total of three decisions in the past five months, none of which have been substantive. Here they are:

13/02/2014 ICC-01/11-01/11-511 Pre-Trial Chamber I Decision designating a single judge
11/12/2013 ICC-01/11-01/11-490 Pre-Trial Chamber I Decision on the “Request for Leave to Appeal against the ‘Decision on the Request for an order for the commencement of the pre-confirmation phase by the Defence of Saif Al-Islam Gaddafi’”
13/11/2013 ICC-01/11-01/11-477 Pre-Trial Chamber I Decision on the “Defence application on behalf of Mr. Abdullah Al Senussi for leave to appeal against the ‘Decision on the request of the Defence of Abdullah Al-Senussi to make a finding of non-cooperation by the Islamic Republic of Mauritania and refer

Although it’s bad enough that the Court’s judges feel no urgency to address al-Senussi’s situation, their willingness to turn a blind eye to Gaddafi’s detention is simply unconscionable. As his defence team notes in its most recent — and certain to be equally ignored — request for a finding of non-compliance, Gaddafi has now been held in solitary confinement without access to a lawyer (at least one not subsequently imprisoned unlawfully by the Libyan government) for more than two years. (27 months, to be precise.) That situation has been condemned not only by the United Nations Working Group on Arbitrary Detention, but also by the African Court of Human Rights, which determined more than a year ago with regard to Gaddafi’s detention that “there exists a situation of extreme gravity and urgency, as well as a risk of irreparable harm to the Detainee.”

Yet still the judges do nothing — fiddling while Libya burns.

Another Terrible Day for the OTP

by Kevin Jon Heller

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

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

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

All in all, another terrible day for the OTP.