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Another Round in the Amnesty-Goodman-Heller Debate over Universal Jurisdiction

by Kevin Jon Heller

At long last, Amnesty has weighed in on the debate between me and Ryan about its methodology for determining whether a state exercises universal jurisdiction over at least one international crime. As I expected, and contrary to Ryan’s claim, Amnesty does not consider it sufficient for a state to have incorporated the Rome Statute into its domestic legislation. On the contrary, it requires the existence of domestic legislation that extends universal jurisdiction over an international crime, whether specifically (“this legislation provides universal jurisdiction over international crime X”) or generically (“this legislation provides universal jurisdiciton over all international crimes defined in ratified treaties”). Here is the key statement from Amnesty’s response:

[T]he above mentioned conclusions are not based on counting “[s]tates as having enacted universal jurisdiction if the state is a party to the Rome Statute for the International Criminal Court or, more precisely, if the state has adopted a form of implementing legislation along with ratification of the treaty”. That would be a mistake. For example: Chad, Gabon, Maldivas, Nauru, and Zambia – which are states party to the Rome Statute are enlisted in the report as not providing for universal jurisdiction for any of the crimes defined in the Rome Statute. And Ireland and Liechtenstein – which have ratified the Rome Statute and enacted legislation implementing it into national law — are also both considered as not providing for universal jurisdiction with regard to crimes against humanity and genocide. In sum, Amnesty International considers that the domestic law in these countries has the effect of conferring universal jurisdiction over crimes defined in, for example, the Rome Statute. Therefore Amnesty International are not basing the claim that such countries have universal jurisdiction on the fact of their ratification of the Rome Statute alone but rather on domestic legislation that enacts universal jurisdiction for all crimes in treaties (including for example the Rome Statute) that they have ratified.

Unfortunately, Ryan still insists that Amnesty is overcounting the number of universal jurisdiction states. Here is his response, in relevant part:

In other words, the problem with the coding procedure is that it appears to involve the following two steps:

Step 1: the proposition that the Rome Statute obligates state parties to enact universal jurisdiction for ICC crimes

Step 2: the decision to code a state as having enacted universal jurisdiction if it (a) is a party to the Rome Statute and (b) its domestic law provides for jurisdiction over crimes obligated by international treaty

As I explained in my original post, Step 1 is flawed. The Rome Statute does not include universal jurisdiction, and has no obligation whatsoever for state parties to provide (extraterritorial) jurisdiction for ICC crimes.

I suspect that the reason Amnesty sets forth the two steps as a part of its coding procedure is because it is meaningful – i.e., that it makes a difference in their results. It is difficult to discern, from the Annexes of the study, which particular states might be affected, because the relevant information is not provided.

There are a number of problems with this response. To begin with, there is no “Step 1″ in Amnesty’s analysis…

BREAKING: ICTY Orders Immediate Execution of All Acquitted Defendants

by Kevin Jon Heller

PRESS RELEASE
(Exclusively for the use of the media. Not an official document)
The Hague, 25 December 2013
MS/PR1593e

Acquitted defendants to be immediately apprehended and executed

The Trial Chamber on Saturday issued a decision on the status of the freedom of individuals acquitted by the Tribunal. The Chamber unanimously ordered all such individuals immediately apprehended and executed.

The Chamber’s order is made pursuant to Rule 54 of the Rules of Procedure and Evidence, which provides that “[a]t the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.” The Trial Chamber rejected the argument of counsel for acquittees Ante Gotovina and Momčilo Perišić, made in an October 31 motion, that Rule 54 did not apply to the post-trial phase of a case and, in any event, did not permit the Chamber to order the execution of an acquitted individual. The Chamber noted that “the trial” could be fairly read to include the post-judgment phase and pointed out that the Rule provided the Chamber with broad discretion to do whatever is “necessary.”

The Chamber also rejected the claim of defence counsel that Art. 14(3) of the Statute, which provides that “[t]he accused shall be presumed innocent until proved guilty,” prohibited post-acquittal execution. The Chamber held that the provision did not apply, because an individual acquitted by the Tribunal could no longer be considered an “accused.” The Chamber equally disagreed with the claim that the decision countenanced summary execution, noting that it had carefully considered the merits of the issue and that, as judges, the Chamber would never countenance any action that was inconsistent with the rights of the defence.

Finally, the Chamber emphasized that today’s decision was consistent with the object and purpose of the Statute, which is to combat impunity. “The Chamber cannot permit individuals to avoid justice through technicalities such as acquittal,” the judges wrote.

The Office of the Prosecutor issued a statement in support of today’s decision, citing Churchill’s suggestion that high-ranking Nazis be rounded up and shot as precedent for the Trial Chamber’s order. It also immediately filed a motion with the Trial Chamber asking it to prospectively apply the order to current trials, in the unlikely event that guilty defendants such as Karadžić or Mladić are acquitted.

PS. No actual acquitted individuals were harmed in the making of this post, which is satire. Alas, the reasoning that it makes fun of is all too real. See here, for example.

The Final Nail in the ICTY’s Coffin

by Kevin Jon Heller

So, it’s official: the ICTY Trial Chamber has decided to let Judge Niang replace Judge Harhoff on the Seselj case:

The Trial Chamber on Friday issued a decision on the continuation of the proceedings in the case of Vojislav Šešelj, following the disqualification of Judge Frederik Harhoff and appointment of Judge Mandiaye Niang to the Bench.

The Chamber unanimously ordered that the proceedings would resume from the point after the closing arguments, and move into the deliberations phase as soon as Judge Niang has familiarized himself with the file. The Trial Chamber will issue a decision once this has been completed.

The Chamber agreed that a new judge is able to assess witness testimony given in his absence through other means, including video recordings. Consequently, the Chamber concluded that Judge Niang will be thus able to evaluate the credibility of witnesses heard during the proceedings in the Šešelj case, and familiarise himself with the record of the proceedings to a satisfactory degree.

[snip]

The Prosecution argued that that the trial should continue at the deliberation stage, after Judge Niang familiarises himself with the existing case record. The Prosecution claimed that such a solution would not be unprecedented in the Tribunal’s practice, pointing to the trial of Slobodan Milosevic where Judge Bonomy replaced Judge May.

The ICTY has yet to release an English translation of the decision, but Dov Jacobs notes on twitter that the Trial Chamber claims allowing Judge Niang to participate in deliberations, despite not hearing a single witness or item of evidence, is “in the interest of justice.” By “in the interests of justice,” of course, the Trial Chamber means “in the interests of conviction,” because there is nothing remotely just about permitting a judge to decide the fate of an individual whose trial he did not attend for even a single day.

Alas, that is only one of many absurdities in the case. As I have pointed out before, the Tribunal is appointing Judge Niang pursuant to a rule of procedure, Rule 15bis, that applies only to “part heard” cases. But applying the rule as written would prevent Seselj from being convicted, so the Tribunal is simply ignoring what it says. And, of course, the OTP is playing its part by invoking the dreaded Milosevic case as precedent, conveniently ignoring the fact that Judge Bonomy was appointed to replace Judge May before the defence began its case in chief, a situation that — unlike Seselj’s — is actually covered by Rule 15bis.

But don’t worry, Judge Niang is supposedly going to spend the next six months “assess[ing] witness testimony given in his absence through other means, including video recordings,” and will thus be able to “familiarise himself with the record of the proceedings to a satisfactory degree.” Of course he will: it’s not like the trial lasted 175 days, involved 81 witnesses, included 1,380 exhibits, and generated more than 18,000 pages of trial transcript (a mere 100 pages of transcript per day, assuming Judge Niang never takes a day off and fits his reading in around the hundreds of hours of witness testimony he will need to watch).

I’ve always defended the legitimacy of the ICTY — even after experiencing first-hand in the Karadzic case how unfair the Tribunal can be at times. But no longer. Unless the Appeals Chamber does the right thing, this latest decision will forever tarnish both the ICTY’s legacy and international criminal justice more generally.

My Surreply to Ryan Goodman About Universal Jurisdiction

by Kevin Jon Heller

In my previous post, I questioned Ryan’s claim that Amnesty International’s totals concerning the number of states exercising universal jurisdiction over at least one international crime “may be significantly inflated.” I pointed out that, contrary to what he was asserting, the report did not count a state simply because it it had incorporated the Rome Statute into its domestic legislation; on the contrary, in every case it identified the specific legislative provision(s) that extended universal jurisdiction over one or more international crimes.

Ryan has replied to my post. Here is the core of his response:

Kevin agrees with one aspect of my argument. He writes, “As Ryan rightly points out, the Rome Statute is neither based on universal jurisdiction nor requires states that implement it to adopt universal jurisdiction.”

Kevin, however, disagrees with another aspect. But this disagreement is based on a misunderstanding of my argument. I accept responsibility as an author for any lack of clarity. Kevin writes, “Amnesty does not seem to be suggesting that implementing the Rome Statute simpliciter is enough to consider a state to have universal jurisdiction over the international crimes therein.”

Kevin thinks I disagree with that description. But I agree with it.

Ryan does not explain how I misunderstood his argument, and I fail to see how I did. If he does not believe Amnesty is overcounting states in its study by including those that merely incorporate the Rome Statute, what is the basis for his claim that Amnesty’s numbers are “significantly inflated”? After all, the title of his original post is “Counting Universal Jurisdiction States: What’s Wrong with Amnesty International’s Numbers.” And why did he write “Here’s what troubles me: Amnesty International appears to count states as having enacted universal jurisdiction… if the state has adopted a form of implementing legislation along with ratification of the treaty”?

Confused about what I got wrong, I asked Ryan on twitter whether he was withdrawing his claim that Amnesty’s universal-jurisdiction numbers are “significantly inflated.” He said he was not. So he still believes that at least some non-negligible number of states that Amnesty counts in its study do not, in fact, exercise universal jurisdiction over at least one international crime.

That is an empirical claim, and one that Ryan has not supported. He has yet to cite even one state that he believes Amnesty wrongly included in its study — much less enough states to justify his claim that Amnesty’s numbers are “significantly inflated.”

Is Amnesty Overcounting the Number of Universal Jurisdiction States?

by Kevin Jon Heller

Not long ago, Amnesty International released an updated version of its massive study “Universal Jursidiction: A Preliminary Survey of Legislation Around the World.” The report concluded, inter alia, that 86% of the world’s states exercise universal jurisdiction over at least one kind of international crime. (Most commonly, war crimes.)

In a post today at Just Security, my friend and regular sparring partner Ryan Goodman suggests that Amnesty’s number “may be significantly inflated” (emphasis added):

Here’s what troubles me: Amnesty International appears to count states as having enacted universal jurisdiction if the state is a party to the Rome Statute for the International Criminal Court or, more precisely, if the state has adopted a form of implementing legislation along with ratification of the treaty. Amnesty makes that decision on the stated assumption that the Rome Statute implicitly requires member states to adopt universal jurisdiction corresponding to its core crimes.

As Ryan rightly points out, the Rome Statute is neither based on universal jurisdiction nor requires states that implement it to adopt universal jurisdiction. That said, I do not believe Amnesty is doing what Ryan says it is — considering a state to have universal jurisdiction over a crime simply because it has incorporate the Rome Statute into its domestic legislation. In defense of that claim, Ryan cites a paragraph from the study’s methodology section (p. 9):

Crimes defined in national law, with reference to treaties.

In some instances, the state has defined a crime under international law, such as genocide, as a crime in national law and provided that its courts have jurisdiction over crimes in treaties it has ratified (some provisions do not specify that the treaty has to have been ratified). In those instances, the state would have jurisdiction not only over crimes in aut dedere aut judicare treaties, but treaties like the Convention for the Prevention and Punishment of the Crime of Genocide (Genocide Convention) and the Rome Statute of the International Criminal Court (Rome Statute) that do not contain an express obligation to exercise universal jurisdiction, although they may contain an implied obligation to do so. Annex I indicates that the state has jurisdiction over the relevant crime (YES).

This paragraph is not a picture of clarity, but Amnesty does not seem to be suggesting that implementing the Rome Statute simpliciter is enough to consider a state to have universal jurisdiction over the international crimes therein. What the paragraph says, I think, is that some states adopt universal jurisdiction legislation that does not specifically mention international crimes (e.g., State X shall have universal jurisdiction over genocide), but instead applies universal jurisdiction to any crime defined in a treaty ratified by that state — a much broader formulation.

More importantly, the report’s country-by-country analysis (Annex II) does not indicate that Amnesty counts a state as a universal jurisdiction state simply because it has incorporated the Rome Statute into its domestic legislation. On the contrary, the report always paraphrases the specific language in domestic legislation that supports the existence of universal jurisdiction. Consider three states — France, Kenya, and South Africa — all of which have incorporated the Rome Statute:

France

- art. 689-11 (anyone may be prosecuted by French courts who habitually resides on French territory and is responsible for one of the crimes within the jurisdiction of the International Criminal Court – genocide, crimes against humanity and war crimes – committed abroad, if the acts are punishable in the state where committed or if that state or the state of the person’s nationality is a party to the Rome Statute, provided that the prosecution was requested by the relevant minister, and that this official has verified that the International Criminal Court has expressly declined jurisdiction and that no international criminal court has requested surrender and no state has requested extradition)

Kenya

- International Crimes Act 2008, s. 8 (war crimes in International Crimes Act, s. 6 if the person is, after commission of the offence, present in Kenya) Crimes against humanity: International Crimes Act 2008, s. 8 (crimes against humanity in International Crimes Act 2008, s. 6 if the person is, after commission of the offence, present in Kenya) Genocide: International Crimes Act 2008, s. 8 (genocide in International Crimes Act 1959, s. 6 if the person is, after commission of the offence, present in Kenya)

South Africa

War crimes: ICC Act 2002, ss. 4 and 5 (provided that the person, after the commission of the crime, is present in the territory of the Republic and that the National Director authorises the prosecution) Crimes against humanity: ICC Act 2002, ss. 4 and 5 (see war crimes) Genocide: ICC Act 2002, ss. 4 and 5 (see war crimes)

If there are any Amnesty readers out there, please feel free to settle the dispute!

Russia Ignores ITLOS, Formally Violates its UNCLOS Obligations, and No One Cares

by Julian Ku

I’ve been so distracted with my own projects and with China’s ADIZ that I forgot to note that Russia has been in violation of its obligations under UNCLOS since at least December 2.  But that’s OK, it seems that everyone else has forgotten this fact as well.

December 2 was the date set by the International Tribunal for the Law of the Sea for compliance with its order that Russia “immediately release the vessel Arctic Sunrise  and all persons who have been detained, upon the posting of a bond or other financial security by the Netherlands….”  The Netherlands has posted that bond, and as far as I can tell, the Arctic Sunrise has not been released, and none of the detainees have been allowed to leave the “territory and maritime areas under the jurisdiction of the Russian Federation.”  (All have been granted bail, though.)

Russia has no obligation to participate in the ITLOS proceeding, but it has a clear obligation under Article 290(5) to “comply promptly with any provisional measures prescribed…” by the ITLOS.  So Russia is now in plain violation with a lawful judgment of the ITLOS.

What is amazing about this violation in plain sight is that the media appears to have forgotten about this lingering ITLOS order. Russia ignores the ITLOS, and….nothing.  Even the reliable Greenpeace Blog is fairly quiet since their folks are out on bail.  So it turns out no one really cares all that much that the ITLOS has been essentially rendered a nullity in this case as a result of the unilateral action of one of UNCLOS’s member states. I suppose that the Dutch are working out some sort of diplomatic settlement. But this doesn’t change the formal legal violation.

Why do I bring this up? Because if Russia takes no reputational hit from its defiance of ITLOS here, then it seems less likely that other states will worry about the reputational hit from defying ITLOS or other international courts.  Hence, Paul Reichler (the Philippines U.S. attorney in its arbitration) is almost certainly wrong when he said recently:

….[T]here is a heavy price to pay for a state that defies an international court order, or a judgment of an arbitral tribunal that is seen, that is recognized, in the international community as legitimate, as fair, as correct, as appropriate,” Reichler said in a forum hosted by the US-based Center for Strategic and International Studies (CSIS) on Tuesday evening, Philippine time.

“There’s a price to be paid for branding yourself as an international outlaw, as a state that doesn’t respect, that doesn’t comply with international law,” said the topnotch lawyer, who has defended sovereign states for over 25 years.

Hmm…Iran in 1980 (Hostages), the U.S. in 1984 (Nicaragua) and 2008 (Mexico), Colombia in 2013 (Nicaragua)…uh, sorry Paul, I’m not seeing any heavy prices being paid.   So far, Russia is offering a real-life empirical counter-example to Reichler’s claim. Indeed, I don’t see that Russia is paying much of a price at all, so far.  Maybe this is because Russia’s international reputation is not exactly at an all time high, right now. Stlll, China is watching.  If Russia can ignore ITLOS in a case where they actually have detained 30 foreign nationals (mostly from the U.S., Australia, and Europe), then do we really think China will suffer much damage from ignoring an arcane ruling about a bunch of rock/islands where no actual human beings are actually affected?

Judge Harhoff Digs Himself Deeper

by Kevin Jon Heller

The two-part series I mentioned in my previous post seems designed to rehabilitate Judge Harhoff’s image in the international-law community. Unfortunately, the articles, which draw heavily on an interview with the judge himself, simply underscore why it was necessary for the ICTY to remove him from the Seselj case. To begin with, consider what the judge says in the second article about how his infamous email, sent to 56 of his closest friends, was leaked to the press. One might speculate that one of those 56 friends might have leaked it. But not Judge Harhoff. He suspects the shadowy hand of foreign intelligence services (emphasis added):

For Mr. Harhoff, however, the rub was elsewhere. He asks: Who would have had an interest in leaking the email – and why leak it to a tabloid newspaper like B.T.?

”None of 56 recipients reads a newspaper like B.T. If one of them wanted to leak my email they would most likely have preferred more reputable newspapers such as Politiken or Information,” Mr. Harhoff inferred, “and at least they would have consulted me first.”

All 56 recipients have since given him personal guarantees they didn’t leak it. Mr. Harhoff also asked each of them whether they had forwarded his message to someone else, but not everyone responded to this question. So he believes that in all likelihood the mail was passed on to a third party unknown to him.

Who could it be?

”I am sure that all judges are having their email correspondence monitored,” Mr. Harhoff said (a suspicion shared by several other judges, as far as Information has been able to ascertain).

”It might make sense to assume that if a foreign intelligence service were able to read my email this would be a smart way to silence me by making it public”, he said.

Yes, foreign intelligence services — presumably those of Israel and the US, whom Judge Harhoff believes put pressure on President Meron to adopt the specific-direction requirement — are so worried about one judge at a tribunal with limited jurisdiction that they read his email and conspire to silence him. Makes perfect sense.

Judge Harhoff also has interesting things to say about his President Meron accusation:

During the interview, Mr. Harhoff seemed to be of two minds. On the one hand, he conceded that his contention of Mr. Meron’s possible motives was ”pure  speculation”. On the other hand, he left open the possibility that a likely explanation for Mr. Meron’s radical departure from a “more or less set practice” could be that he had somehow been influenced by outside military interests.

”In military establishments, some people might have been uncomfortable having to accept the evolving liberal jurisprudence at ICTY, since this could set a precedent for the International Criminal Court, ICC. And in the future that could make it very hard to be a general,” Mr. Harhoff said.

[snip]

In the interview Mr. Harhoff mused: ”Why was it so important for Meron to ensure the acquittal of two Croatian officers who were accused of indiscriminate shelling of towns and civilian centers?”

He wondered: ”It has been pointed out by many others that the United States strongly supported the Croats with arms and intelligence. Gotovina was only able to defeat the Serbs militarily because of the American support. Would that in any way implicate the US Army? Probably not. But we don’t know what the accused might have revealed, if he had been convicted.”

So Judge Harhoff admits that it is “pure speculation” that President Meron manipulated his fellow judges into acquitting Perisic, Stanisic, and Simatovic.(And apparently Gotovina.) But he still believes — and, worse, says to a journalist after the email scandal — that President Meron is an American and Israeli puppet.

And we’re supposed to believe that the ICTY shouldn’t have removed Judge Harhoff from the Seselj case?

Seriously, Read the Damn Perisic Judgment

by Kevin Jon Heller

I get that many people don’t like the specific-direction requirement. I understand the anger that the Perisic, Stanisic, and Simatovic acquittals have generated. I’ve even explained why, though I think the Appeals Chamber was correct to reinvigorate the specific-direction requirement in Perisic, I would have preferred a different doctrinal mechanism.

But I am really, really tired of people — journalists, human-rights activists, scholars — who cannot be bothered to actually read the Perisic judgment. I’ve blogged about basic errors before. (See here and here.) But this two-part series (here and here) on Judge Harhoff takes the cake. Consider the following quotes from the articles (emphasis mine):

In the Perisic case, the Trial Chamber’s conviction was overturned by the Appeals Chamber by adding, without further explanation, the requirement that the accused general, in addition to his military assistance and his knowledge of the commission of the crimes, should also have given the direct perpetrators a “specific direction” to commit those crimes.

In his study Mr. Stewart showed that General Perisic was the first military commander to be acquitted according to the principle that it must be proven that a general gave his subordinates “specific direction” to commit a crime. [Note: Stewart understands the requirement. The journalist here doesn't understand Stewart.]

Charles Taylor was accused and convicted in trial court of ’aiding and abetting’ war crimes in Sierra Leone’s civil war. In its decision, the Appeals Chamber questioned whether at all, under the new standard, it would be possible to prove to whom the accused would actually have given his “specific direction” to commit the crimes.

In fact, as a judge in the Trial Chamber that had convicted general Perisic in the first instance, the South African strongly opposed the majority’s conviction of the accused and wrote a dissenting opinion in which he argued that the general should be acquitted, because the Prosecution had not proven that the general had given “specific direction” to the perpetrators.

In his dissenting opinion, Judge Moloto wrote that it was not enough that general Perisic had been aware of the crimes committed by the Bosnian Serbs in Bosnia, who received arms and intelligence from the Serbian army through general Perisic. It also had to be proven that the accused had in fact ordered the Bosnian forces allied with Serbia to commit the crimes in question.

In one of the cases, two high-ranking Croatian military officers were acquitted on a mere technicality. In the other case, the Appeals Chamber acquitted a Serbian general by overturning a standard previously used in Trial Chambers to convict senior officers for ”aiding and abetting” war crimes committed by perpetrators on the ground. All of a sudden, the Appeals Chamber required that a senior officer must have given “specific direction” to commit the crimes for which the officer stands accused.

Six quotes — each completely and utterly wrong. As I have pointed out before (many times…),Perisic does not say that a perpetrator must specifically direct a crime; it says that a perpetrator must specifically direct his assistance toward a crime. Ordering and aiding and abetting are completely different modes of participation. A perpetrator can aid and abet a crime without having any direct (or indirect) communication whatsoever with the person who actually commits it. The prosecution must simply prove — in terms of aiding and abetting’s actus reus — that the perpetrator specifically directed his assistance toward the commission of a crime and that the assistance had a substantial effect on the crime’s commission.

Again, I have no problem with criticizing the specific-direction requirement. But people need to criticize what the Appeals Chamber actually held in Perisic. If you can’t be bothered to read the judgment, you have no business writing about it.

The OTP’s Remarkable Slow-Walking of the Afghanistan Examination

by Kevin Jon Heller

The Office of the Prosecutor (OTP) at the ICC just released its 2013 Report on Preliminary Examination Activities. There is much to chew over in the report, but what is most striking is the OTP’s slow-walking of its preliminary examination into crimes committed in Afghanistan.

The OTP divides preliminary examinations into four phases: (1) initial assessment, which filters out requests for investigation over which the ICC cannot have jurisdiction; (2) jurisdiction, which asks “whether there is a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court”; (3) admissibility, which focuses on gravity and complementarity; and (4) interests of justice, whether the OTP should decline to proceed despite jurisdiction and admissibility.

The OTP opened its investigation into the situation in Afghanistan in January 2007. Yet only now – nearly seven years later – has the OTP concluded that there is a reasonable basis to believe that crimes were committed there. And what are those crimes? Here is a snippet from the report:

23. Killings: According to the United Nations Assistance Mission in Afghanistan (“UNAMA”), over 14,300 civilians have been killed in the conflict in Afghanistan in the period between January 2007 and June 2013. Members of anti-government armed groups were responsible for at least 9,778 civilian deaths, while the pro-government forces were responsible for at least 3,210 civilian deaths. A number of reported killings remain unattributed.

24. According to UNAMA, more civilians were killed by members of anti- government armed groups in the first half of 2013 than in 2012. Members of the Taliban and affiliated armed groups are allegedly responsible for deliberately killing specific categories of civilians perceived to support the Afghan government and/or foreign entities present in Afghanistan. These categories of civilians, identified as such in the Taliban Code of Conduct (Layha) and in public statements issued by the Taliban leadership, include former police and military personnel, private security contractors, construction workers, interpreters, truck drivers, UN personnel, NGO employees, journalists, doctors, health workers, teachers, students, tribal and religious elders, as well as high profile individuals such as members of parliament, governors and mullahs, district governors, provincial council members, government employees at all levels, and individuals who joined the Afghanistan Peace and Reintegration Program and their relatives. The UNAMA 2013 mid-year report, in particular, indicated a pattern of targeted killings of mullahs who were mainly attacked while performing funeral ceremonies for members of Afghan government forces.

You can see why it took the OTP nearly seven years to determine (para. 35) “that there is a reasonable basis to believe that crimes within the Court’s jurisdiction have been committed within the situation of Afghanistan.” The crimes are so minor and so isolated that they could only be uncovered by years of diligent investigation.

The OTP obviously could have moved to Phase 3 — admissibility — years ago. So why didn’t it — especially given the pressing need for a non-African investigation? See below…

Will the New RPE 134 Provisions Survive Judicial Review? (Probably Not.)

by Kevin Jon Heller

The Assembly of States Parties (ASP) has adopted three new rules of procedure — RPE 134 bister, and quater – designed to minimize the obligation of accused to be physically present at trial. The OTP will almost certainly challenge the new rules. So will any of them survive judicial review?

Rule 134bis

Rule 134bis concerns video technology:

1.      An accused subject to a summons to appear may submit a written request to the Trial Chamber to be allowed to be present in the courtroom through the use of video technology during part or parts of his or her trial.

2.      The Trial Chamber shall rule on the request on a case-by-case basis, with due regard to the subject matter of the specific hearings in question.

The fate of this provision is tricky to assess. On the one hand, virtual presence does not conflict with the various rationales the Appeals Chamber offered in Ruto for requiring the accused to be present at trial:

The accused person is not merely a passive observer of the trial, but the subject of the criminal proceedings and, as such, an active participant therein. It is important for the accused person to have the opportunity to follow the testimony of witnesses testifying against him or her so that he or she is in a position to react to any contradictions between his or her recollection of events and the account of the witness. It is also through the process of confronting the accused with the evidence against him or her that the fullest and most comprehensive record of the relevant events may be formed. Furthermore, the continuous absence of an accused from his or her own trial would have a detrimental impact on the morale and participation of victims and witnesses. More broadly, the presence of the accused during the trial plays an important role in promoting public confidence in the administration of justice.

On the other hand, Art. 63(1) contemplates physical presence, not virtual presence. Art. 63(2) elaborates on the presence requirement in Art. 63(1) by permitting the Trial Chamber to remove the accused “[i]f the accused, being present before the Court, continues to disrupt the trial” — a clear indication that the drafters of Art. 63(1) were assuming physical presence when they drafted the Article. More importantly, though — and in direct contrast to the Chair of the ASP’s claim that Rule 134bis does not conflict with Art. 63(1) because “video-conference technology (VCT)… was not foreseen when the Rome Statute was drafted” – Art. 63(2) itself contemplates the use of videoconferencing, but only when a disruptive accused has been removed from the courtroom (emphasis mine)…

The Curious Timing of the Bemba Arrests

by Kevin Jon Heller

Two of the four men arrested on suspicion of witness tampering and manufacturing evidence in the Bemba case appeared before the Court today, along with Bemba himself. Not surprisingly, defence counsel for the defence counsel focused on the various ways in which the arrests will prejudice Bemba’s case:

Meanwhile, defense lawyers for the accused stated that the new charges had harmed the defense case of Mr. Bemba, whose trial for war crimes and crimes against humanity started in November 2010.

Xavier-Jean Keita, who represented Mr. Kilolo-Musamba, said the defense would write to the judge and raise questions about the timing of the new case. The defense would also “raise issues about the consequences on the main case and also talk about the involvement of the prosecution because the Office of the Prosecutor is a fully-fledged party to the main case.”

Defense lawyers also said Mr. Kilolo-Musamba’s iPad and Blackberry were seized during his arrest, yet they contained “the entire defense strategy” in Mr. Bemba’s ongoing trial.

Cuno Tarfusser, the single judge handling the case, said the items would for now remain in the custody of the court’s registry. The prosecution would only have access to seized documents and items that related strictly to the new charges.

Mr. Kilolo-Musamba, 41, deplored the “strong-arm tactics” Ms. Bensouda employed. He said allegations of forged evidence could have been dealt with during the ongoing trial rather than through an arrest warrant.

“I was surprised to be deprived of my freedom given that I spend most of my time in The Hague within the premises of [the ICC] where I have my offices,” said Mr. Kilolo-Musamba. “If she had called me in advance, I would have attended the summons.”

He said at the time of his arrest, he was coming from a meeting related to an ongoing investigation to help him to identify handwriting experts, and radio transmission specialists who were on duty in Bangui when a disputed radio transmission was made.

“That is the issue at stake,” said Mr. Kilolo-Musamba, referring to the radio transmission and contested handwriting on an undisclosed document. “It is a shame the prosecution made use of these tactics and this way harmed the defense of Mr. Bemba in the main case, which has come to an end as we were already drafting the final submissions.”

Kilolo-Musamba’s point about the timing of the arrests is a good one. Given how easy it was for the Court to apprehend the four men — a point noted by Mark Kersten — why seek their arrest now, literally days after the defence finished presenting its evidence? There is no longer any threat of witness tampering or evidence manufacturing. All that remains is for the defence is to finish the closing briefs — a phase in which the involvement of Bemba’s lead counsel and case manager will be particularly important. The arrests couldn’t have waited a few months until the briefs were written and filed?

The question, then, is what happens now. I don’t see how the Trial Chamber can continue Bemba’s trial in the absence of the two attorneys; to expect Bemba’s other attorney, Peter Haynes QC (who is excellent), to write the closing briefs by himself is unrealistic. So if the Trial Chamber cares about Bemba’s right to a fair trial, it will have to suspend the proceedings until the new allegations are resolved. We’ll see if that happens.

Will Russia Comply with the ITLOS Ruling? Probably Not.

by Julian Ku

It looks like Russia is not going to comply with last week’s ITLOS ruling, ordering it to release the Arctic Sunrise and its passengers upon payment of a bond.

Russia is not going to comply with the International Tribunal for the Law of the Sea’s Friday ruling regarding the Arctic Sunrise vessel operated by Greenpeace, Russian presidential chief of staff Sergei Ivanov said.

“It will not, because we said at the very start that we are not going to take part in these proceedings,” Ivanov said on Saturday when asked by journalists how Russia will react to the Tribunal’s ruling.

Russia ratified the convention based on which this Tribunal acts with a number of reservations, which prevented it from entering these particular proceedings, Ivanov said.

“The issue will be handled not politically but legally, based on Russian law rather than someone’s political wishes,” he added.

Russia will probably stick to its legal position, which is contained in its note verbale to the Netherlands, arguing that this matter lies beyond the jurisdiction of UNCLOS dispute settlement since it is an exercise of Russia’s criminal jurisdiction in its law enforcement capacity.

Of course, as Prof. Craig Allen noted here, the ITLOS rejected Russia’s view of jurisdiction holding that an Annex VII Arbitral Tribunal would have at least prima facie jurisdiction.  This seems to be enough to justify ITLOS’s provisional measures jurisdiction.  Since such a tribunal has the power to determine its own jurisdiction (pursuant to UNCLOS Art. 288(4)), Russia’s jurisdictional position is hard to support.  It’s also annoying because just a few months ago, the world was treated to a lecture from President Putin on how “the law is still the law, and we must follow it whether we like it or not” in the midst of the Syria crisis.

Russia will not technically violate its UNCLOS obligations until Monday, December 2, the deadline for compliance with the ITLOS order.  And it is already releasing most of the Greenpeace folks on bail (leaving the country is another matter).  So it will probably work out some sort of diplomatic settlement with the Netherlands here, but it looks like complying with the ITLOS order is not in the cards.  As this Russian law professor explains,

“If Russia refuses to fulfill the requirements of the International Tribunal for the Law of the Sea regarding the Greenpeace case, it will not entail any sanctions. International law does not provide punishment for insubordination,” Labin said.

I don’t want to overstate the significance of this incident, but if Russia fails to comply (unlike Ghana earlier this year) and does not participate in the Annex VII arbitration (per the China example) either, this is another serious problem for the future effectiveness of UNCLOS dispute settlement.