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

by Jennifer Trahan

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

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

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

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

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

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

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

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

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

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

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

Mladic Convicted

by Jens David Ohlin

The ICTY Trial Chamber announced today its verdict in Prosecutor v.  Ratko Mladić and has found the defendant guilty and sentenced him to life in prison. (The judgement summary, which was read aloud in court, is available here. I don’t see a link to the full judgement; if someone else has it, please provide a link in the comments below.) Although this outcome was widely expected by most court observers, the details of the decision merit some discussion.

First, the Chamber found Mladić guilty of genocide in Srebrenica but not of genocide in the other provinces. According to the court (from the oral summary):

The Chamber then examined the specific intent of the physical perpetrators. The Chamber found by majority, Judge Orie, dissenting, that the physical perpetrators in Sanski Most, Vlasenica, and Foča, and certain perpetrators in Kotor Varoš and Prijedor Municipalities intended to destroy the Bosnian Muslims in those Municipalities as a part of the protected group. The Chamber then considered whether the targeted part constituted a substantial part of the protected group, and concluded that the Bosnian Muslims targeted in each municipality formed a relatively small part of the protected group and were also in other ways not a substantial part. Consequently, the Chamber was not satisfied that the only reasonable inference was that the physical perpetrators possessed the required intent to destroy a substantial part of the protected group of Bosnian Muslims.

This finding is consistent with other cases where the ICTY has failed to conclude that the crimes committed in these municipalities amounted to genocide. But the genocide finding for Srebrenica was reaffirmed in Mladić.

As for modes of liability, Mladić was found guilty of participating in four joint criminal enterprises. As far as I can tell from the court’s oral summary, the chamber convicted Mladić in each case of JCE I, meaning that the chamber concluded that the defendant shared the intent to carry out the crimes of the JCE (its objective). There is no reference to JCE III, i.e. liability for crimes committed by other members of the enterprise that fall outside the scope of its design but which were reasonably foreseeable. It seems as if the court felt it unnecessary to rely on the controversial JCE III, preferring instead to simply rest its conclusions on the more stable and secure JCE I theory.  (If I have misread the judgement summary in this regard, please correct me in the comments.) If this is what happened, the court has preserved JCE III as a viable theory by removing an opportunity for judicial scrutiny of the doctrine at the appeal level.

The four joint criminal enterprises were described in the following manner:

First, an Overarching JCE, which had the objective of permanently removing Muslims and Croats from Serb-claimed territory in Bosnia-Herzegovina, through the commission of the crimes charged in the indictment, including Genocide, Persecutions, Extermination, Murder, the inhumane act of forcible transfer, and Deportation.

Second, a Sarajevo JCE, which had the objective of spreading terror among the civilian population through a campaign of sniping and shelling as charged in the indictment including through murder, acts of violence the primary purpose of which is to spread terror among the civilian population and Unlawful Attacks on Civilians.

Third, a Srebrenica JCE, the objective of which was the elimination of Bosnian Muslims in Srebrenica through the crimes charged in the indictment, including Genocide, Persecutions, Extermination, Murder, the inhumane act of forcible transfer, and Deportation.

Fourth, a Hostage-taking JCE, the objective of which was taking UN personnel hostage to prevent NATO from conducting air strikes against Bosnian-Serb military targets through the crime of Taking of Hostages, as a war crime.

One question I have is the relationship between the “Overarching JCE” and the other JCE. This isn’t exactly spelled out in the summary and it will be interesting to read the full judgement to understand their exact relationship. Are the second, third, and fourth JCEs merely sub-components of the overarching JCE? Or are these overlapping JCEs? How should we understand their geometric inter-relation? Furthermore, does describing one of the JCEs as “overarching” have some consequence for the application of the doctrine to the facts of this case? I would welcome thoughts from readers on this point.

Finally, with regard to the hostage-taking JCE, it is interesting to read the chamber’s conclusion that the defendant “intended the objective of the hostage-taking joint criminal enterprise, to capture UN personnel and detain them in strategic military locations to prevent NATO from launching further air strikes. The Chamber found that the Accused’s statements, in particular with regard to the fate of UNPROFOR personnel, were tantamount to having issued threats to continue to detain or to kill UN personnel, and that these threats were meant to end the air strikes.”

I also found it interesting that the chamber declined to give the defendant a reduction from a life sentence just because the defendant was acquitted on one count (genocide in the municipalities). Rather than looking at the significance of that acquittal for purposes of determining the appropriate sentence, the chamber looked to the significance of the convictions to determine Mladić’s blameworthiness.

The appeal in the case will be heard by the Mechanism (MICT).

Cyber POWS and the Second Geneva Convention

by Jeffrey Biller

[Jeffrey Biller, Lt Col, USAF, is the Associate Director for the Law of Air, Space and Cyber Operations at the Stockton Center for the Study of International Law, US Naval War College.]

Those familiar with Patrick O’Brian’s Aubry-Maturin series of novels (brought to film in Master and Commander starring Russel Crowe) will know that the boarding and seizure of ships was a common feature of naval warfare in the Age of Sail. However, modern naval conflicts rely more on the sinking of ships than their capture. Although the standoff range of most modern weapons weighs against an imminent change of this feature, there is one modern method of warfare that raises the question of capture once again: cyber warfare. This post is the second in a series examining the impact of cyber on the law of naval warfare through the lens of the updated commentary to the Second Geneva Convention (GCII). This first of this series examined the question of whether a crew can be “shipwrecked” within the meaning of GCII for purposes of Article 12 protections. This post takes that scenario one-step further and examines the status of a crew on a ship commandeered by cyber means.

Although indeed more difficult from a technical standpoint, it stands to reason that if a ship could be completely disabled through an offensive cyber operation, those same networked systems could also be controlled by an outside entity. With a high enough level of control, it would functionally turn the ship into a remotely operated vessel, similar to other drone-type vehicles. The first question to ask is whether the analysis differs from a ship disabled by cyber means. This could simply be a situation where the crew is “in peril” and, if they refrain from hostilities, must be afforded Article 12 protections. However, if someone is in control of the ship and could choose to pilot the crew to safety, is it really in peril?

Assuming the crew, for whatever reasons, chooses to stay onboard the ship and not disable it through mechanical means, it is fair to ask if they must be afforded Article 16 protections as prisoners of war (POW), which states that “…the wounded, sick and shipwrecked of a belligerent who fall into enemy hands shall be prisoners of war, and the provisions of international law concerning prisoners of war shall apply to them.” Breaking that article down into its parts, we first examine the phrase “wounded, sick and shipwrecked of a belligerent.” It may be tempting to suggest that, at this point, the crew is not wounded, sick or shipwrecked, so Article 16 would not apply. However, para 1575 of the updated commentary states that:

Although in setting down who is a prisoner of war Article 16 uses the looser formulation ‘the wounded, sick and shipwrecked of a belligerent’ rather than the more technical terms used in Article 13, the definition of prisoners of war in the Second Convention is not meant to diverge from that in the Third Convention.

The Third Geneva Convention (GCIII), Article 4, clearly states that “[p]risoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy,” and covers those “soldiers who became prisoners without fighting.” Essentially, this means that in whatever manner the sailor comes into the power of the enemy, regardless of being wounded, sick, or shipwrecked, they are now a POW.

The next element is the crux of the analysis, the phrase “who fall into enemy hands.” The obvious difficulty is deciding whether this is possible when the enemy is not physically present. The updated commentary, in para 1568, states that “the phrase ‘fall into enemy hands’ is sufficiently broad to cover capture or surrender.” Here, let us assume the crew has neither chosen to leave the ship nor made an affirmative action of surrender. Although para 1571 of the updated commentary suggests “[n]o active ‘capture’ is necessary,” the enemy certainly seems to have captured the ship, and if the crew is unwilling or unable to abandon the captured ship, are they also captured? The updated commentary makes no further definition, which is understandable. Capture without the physical presence of the enemy is a novel concept with few, if any, analogies.

One analogy is the case of unmanned combat systems, such as drones. If the operator of an attack drone witnesses a group of enemy combatants with weapons dropped and waving a white flag, should those soldiers be considered hors de combat and no longer subject to attack? The lack of ground forces to process as POWs those who surrender has made this question a matter of some debate due to the potential for misuse. The difference in the current situation is the greater potential degree of control exercised over those aboard a ship at sea as opposed to soldiers on the ground. The crew of a ship for which they no longer have effective control is subject to the whims of their controllers while they remain onboard the ship. The crew could potentially be driven into a perilous situation or perhaps even internally detonated if the weapon systems have been accessed.

Given the difficulty of defining what is required for capture without the presence of enemy soldiers, it may be instructive to turn a separate, but related, body of law: international human rights law (IHRL) for assistance. Although unlikely to apply in the current scenario, IHRL can offer a useful insight into what level of control is required for certain protective obligations to attach under international law. For example, the European Convention of Human Rights held in Al Skeini, paras 133 – 140, that the Convention applies extra-territorially either through the exercise of effective control over an area or through the exercise of control over a person by a State agent. In an earlier case, the Court had also held that human rights obligations attach to civilians on board a ship when military forces placed the crew under guard and gained control of the ship’s navigation, thereby exercising “full and effective” control. In Al-Skeini, the court ruled that the “exercise of physical power and control over the person in question” was critical in establishing jurisdiction.

Although “full and effective control” is a human rights concept, it illustrates that physical power and operational control of a ship’s navigational functions are potential factors in determining what level of power is required by enemy forces before obligations are placed upon them under that legal regime. It may be that this level of control can be obtained by the use of cyber means and if it is, then the crew should be considered as POWs with the attendant protections. This brings us to the third element of Article 16: “the provisions of international law concerning prisoners of war shall apply to them.”

What would be the obligations towards a crew on a warship over which they no longer have control? Although these requirements are primarily contained in GCIII, the updated commentary to GCII does spell out certain provisions. Of note, it states in para 1579 that “the time a person is held on board is limited to the absolutely necessary.”

If the potential for POWs to be taken under such circumstances exists, what must navies do to prepare? First, navies looking to employ cyber operations involving gaining control over ships should formulate a plan of what to do with the crew if they remain onboard. The Geneva Conventions place certain obligations on how they are to be treated and States must understand how they will transfer that crew to a more appropriate facility. Second, navies that employ networked systems would be wise to ensure there is a mechanism to revert to mechanical control or formulate clear plans as to their operating procedures in the event of a successful cyber-attack.

CfP: Contingency in the Course of International Law

by Kevin Jon Heller

Just a reminder that the deadline is fast approaching for the workshop I am organising with Ingo Venzke, “Contingency in the Course of International Law: How International Law Could Have Been.” The workshop, which will feature an opening address by Fleur Johns (UNSW) and a closing address by Sam Moyn (Yale), will be held over two half days and one full day from June 14-16, 2018. Here is the concept:

The workshop will ask a question that is deceptive in its simplicity: How might international law have been otherwise? The overarching aim will be to expose the contingencies of international law’s development by inquiring into international law’s past. Such inquiries may be of systematic purport – asking, for example, how a different conception of the sources of international law could have emerged. Or they may focus on specific areas of the law, asking questions like whether the idea of state crimes could have taken hold or whether the NIEO could have achieved greater success. International law’s past is almost certainly ripe with possibilities that we have forgotten. The workshop will seek to reveal and remember them.

The workshop will focus on trying to tell compelling stories about international law’s contingency. To be sure, those attempts may fail and claims to contingency may well turn out to be false. Either way, though, we will question the present state of international law by challenging its pretense to necessity and by better understanding the forces that have shaped it. Put simply with Robert Musil: ‘If there is a sense of reality, there must also be a sense for possibility’.

While the operation of the law is bound to gloss over any contingency in its course, we wish to draw out those contingencies to learn what could (not) have been. Some contributions will focus on the operation of international law itself, exploring the differential developments that could have taken place concerning seminal judicial decisions (eg, what if France had won the Lotus case?), key treaties (eg, what if states had failed to conclude the Second Additional Protocol in 1977?), or important institutions (eg, what if the International Clearing Union had been established in 1949?). Another set of inquiries will question the development of international law in light of more general historical events that might not have happened or might have happened differently, such as the outbreak of World War I, the processes of decolonization, or the terrorist attacks of 9/11. And yet other angles are welcome.

In the course of concrete inquiries into international law’s past, there are numerous opportunities for theoretical reflection about the nature of contingency itself, ranging from philosophies of legal history to questions about the narrator’s perspective. How should actor- and structure-centered accounts of the past be combined in probing the contingency of past events? How should we cope with possible tensions between pursuing interests in the present while avoiding undue anachronisms? And how can we contextualize legal developments without reducing law to its context only? Not the least, the question of how it could have been provides a renewed take on perennial questions of international law’s relationship with power, culture, and justice.

The deadline for abstracts is December 1. You can download the full Call for Papers here. If you have any questions, please don’t hesitate to email me.

Call for Submissions / Nominations: The Francis Lieber Prize

by Chris Borgen

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


Article prize:

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

 

The Legality of Pardons in Latin America (Part II)

by Alonso Gurmendi Dunkelberg

[Alonso Gurmendi is Professor of International Law at Universidad del Pacífico, in Peru.]

As seen in Part I, Colombian transitional justice mechanisms have played a key role in the evolution of the Inter-American Court’s jurisprudence on proportionality of punishment. In this second part, I will analyze whether the Court’s Colombian case-law can influence Peru’s discussion regarding a hypothetical humanitarian pardon for former autocratic President Alberto Fujimori. In particular, my objective is to analyze whether, in the same vein as peace negotiations, poor health can constitute a viable reason to mitigate the proportionality of punishment principle.

In this discussion, health in old age provides an interesting test for the La Rochela standard, and could potentially be a determining factor with significant impact in the Court’s future. After all, can early release still be considered an irrisory punishment leading to impunity when the individual in question suffers from serious illness or infirmity? And if so, how sick must he or she be before a pardon can be granted? This is not an easy question to answer. Humanitarianism is just as much a part of international criminal law as retribution, and it will likely constitute another crossroads for the Court in the near future.

In 2012, the United Nations High Commissioner for Human Rights (E/2012/51) explored “whether the continued incarceration of older persons is a disproportionately severe punishment”, stating that “[c]onsidering the purposes of punishment –retribution, incapacitation, deterrence, and rehabilitation- there may be little justification for many older persons’ continued incarceration in the prison system in certain instances” and that “alternative forms of punishment may be preferable based on the financial, practical, and human rights considerations involved” (¶61). That same year, Human Rights Watch arrived at similar conclusions, claiming that “while a prison term may have been proportionate at the time imposed, increasing age and infirmity may change the calculus against continued incarceration and in favor of some form of conditional release”, even in cases of acceptable conditions of confinement. These arguments indicate that health may very well be another “clearly identifiable objective compatible with the American Convention” that may warrant a softening of proportionality. The Court, however, has never said so.

In any case, it will be very difficult for the Court to maintain its silence for much longer. Fujimori is not the only aging human rights violator in the region and discussions of this sort will only increase with media attention. The Court will need a standard that allows it to keep its reputation as both an enemy of impunity and a custodian of human rights, while at the same time keeping a consistent and fair-minded jurisprudence. The Court is, after all, not the only one analyzing the Colombian Peace Agreement. Some very respectable sources have criticized it, expressing, as Human Rights Watch does, “very serious concerns that the justice provisions of the accord could result in confessed war criminals not receiving meaningful punishment for the grave crimes for which they were responsible”.

If, as available evidence seems to suggest, the Court wishes to side with the agreement, it will need to address the legitimate complaints of Fujimori’s supporters who raise the question of why should a FARC war criminal receive an 8-year limited mobility sentence, while their cancer-prone leader is already serving his 11th year of jail-time. Moreover, since Peru never needed a peace agreement, but rather defeated the Shining Path through military means, there are genuine concerns that the Court’s findings may end up producing a system where it is more convenient to settle wars than to actually win them. In other words, if the Court is willing to balance peace and justice, it should take a concrete stance on whether health and justice can be balanced in a similar fashion. And at least from the Court’s own jurisprudence, it seems the question is not so much if health can soften proportionality, but rather when.

One good place to seek guidance for the formulation of a standard is the experience of international tribunals with early release of prisoners. This, of course, does not mean that the Inter-American Court would have to follow the same rules as the ICTY or the ICC (especially considering some of their limitations), but it does offer a good starting point for the Court to build upon its own standard.

The ICTY Rules of Procedure and Evidence include provisions stating that “in determining whether pardon or commutation is appropriate, the President shall take into account, inter alia, the gravity of the crime or crimes for which the prisoner was convicted, the treatment of similarly-situated prisoners, the prisoner’s demonstration of rehabilitation, as well as any substantial cooperation of the prisoner with the Prosecutor” (Rule 125). Article 110 of the Rome Statute, in turn, incorporates a 2/3 of time served trigger for initiation of early release proceedings, which require the ICC to review similar factors, related to collaboration with justice, disassociation with the crimes, reparations, and lack of health or advanced age.

The ICC tested this standard in 2015, denying early release to Thomas Lubanga. The Panel concluded that Lubanga only satisfied the requirement of possible resocialization (¶53) and considered that there was no justification for his release (¶77), particularly given the fact that Lubanga showed no indication of any remorse for his crimes and had provided no significant assistance to the Court (¶64).

Upon these findings, a humanitarian pardon could potentially be consistent with the American Convention on Human Rights, so long as some specific requirements are met. For one, infirmity due to old age or illness needs to have rendered the purposes of punishment impossible, as seen above. As per La Rochela, some general rehabilitative or even transitional purpose needs to be advanced as well. For example, the inmate must have disassociated from his crime and accepted his culpability. The pardon could also be tied to a requirement of collaboration with justice and an offering of full truth. In this sense, if reclusion in a prison can no longer serve any purpose given the individual’s health problems and he or she is no longer defending his crimes, a humanitarian pardon could be consistent with Inter-American human rights law.

These considerations would also need to be evaluated taking into account time served and domestic law. Indeed, a pardon for an individual that has served 2/3 of his or her sentence is more likely to be accepted than one for someone who has only served 1/3. Likewise, even if all of these requirements are present, domestic law would still need to regulate such pardoning, since it is by definition a discretionary prerogative of the Government.

Now, while this change in its approach to proportionality is born out of the Court’s own findings, it may nevertheless be poorly received by the Latin American human rights community, very much used to working from an expanded understanding of Barrios Altos, that leaves little chance for the early release of jailed international criminals. It will be important for human rights advocates to understand that the process started by La Rochela is a direct response to the human rights challenges of the 21st century, just as much as Barrios Altos was a response to the challenges of the 20th. A strong proportionality principle will still be the rule, but once one exception is allowed, it is to be expected that others will follow. One cannot give a blessing to lenient punishment in some exceptional circumstances, while at the same time barring any lenity in punishment in other equally exceptional circumstances.

Moreover, it is still unlikely that this new approach would benefit Alberto Fujimori, who not only remains un-repented of his crimes, but does not seem to be in any form of terminal or extremely ill state that could render his sentence useless. Not to mention the many domestic legal hurdles his proposed pardon would need to face. If anything, other less media sensitive inmates may be benefited, in more justifiable circumstances. After all, one very significant risk Peru’s human rights community needs to avoid in these difficult transitional times is that of the black swan approach to justice, where rules are designed inductively, from a very specific case, and then applied generally. It is justice and humanitarian values -not keeping a specific autocrat in jail- that should inform progressive development of human rights.

Vargas Niño’s Mistaken Critique of My Position on Burundi

by Kevin Jon Heller

Spreading the Jam has a guest post today from Santiago Vargas Niño criticising my argument that the OTP was required to notify Burundi as soon as it decided to ask the OTP to authorize the investigation. Here is what he says:

Professor Heller cites Article 15(6) to argue that, by receiving information under articles 15(1) and 15(2) of the Statute, the Prosecution has initiated an investigation. An equally plain reading of Article 18 would suggest that a parallel duty to notify concerned States would arise as soon as a situation caught the Prosecutor’s eye. Yet he acknowledges that “notification cannot be required every time the OTP decides to advance a preliminary examination (…) The better interpretation of Art. 18 is that notification is required once the OTP has decided to ask the PTC to authorize an investigation.”

Not only is that moment different to the “initiation” of an investigation, both under articles 15 and 18, thus rendering any claims of “natural” interpretation of the Statute inane, but professor Heller’s amalgamation of preliminary examination and investigation flies in the face of Article 15(3). This provision orders the Prosecution to submit a request for authorisation if it concludes that there is a reasonable basis to proceed with an investigation. Years of unchallenged practice have led to the understanding that such conclusion can only be reached through the preliminary examination, a stage that precedes the opening of an investigation and that is described by Article 15(2) – not by Article 15(1). Professor Heller’s argument also discounts the significance of Article 15(4), which squarely attributes the power to authorise the “commencement” (i.e. “initiation”) of an investigation to the PTC, and which conditions it upon the Prosecution’s demonstration that there is a reasonable basis to proceed under Article 53(1).

Furthermore, equating the launch of a preliminary examination with the artificial “initiation” of an investigation under Article 15(1) is extremely risky. If that were the case, the Prosecution should not have rushed to apply for authorisation to commence an investigation in Burundi before 25 October 2017 because its preliminary examination would have constituted a “criminal [investigation] (…) which [was] commenced prior to the date on which the withdrawal became effective” under Article 127. Such interpretation would also allow the Prosecution to exercise its powers under Article 54, as professor Jacobs puts it, since the moment: “an OTP investigator sitting in front of his computer in The Hague [starts] downloading HRW and Amnesty International reports.”

According to Vargas Niño, my argument “stems solely from [my] peculiar approach to Article 15.” Alas, it is his approach that is peculiar. And not just peculiar — wrong…

The Legality of Pardons in Latin America (Part I)

by Alonso Gurmendi Dunkelberg

[Alonso Gurmendi is Professor of International Law at Universidad del Pacífico, in Peru.]

In recent months, most commentaries coming out of South America have focused on the Colombian Peace Agreement with the FARC. There is, however, another post-conflict country positing interesting legal questions. In parallel to Colombia, Peru has been engaged in its own debate over whether international and domestic law permit the pardoning of international crimes in case of serious health problems of a prisoner; specifically, former autocratic President Alberto Fujimori.

This post is divided into two parts. Part I will review how Colombia’s experience with transitional justice has influenced the Court’s approach to the prohibition of amnesties and other limitations of responsibility for international crimes. Part II will apply and compare these findings to humanitarian pardons, as discussed in Peru. I will argue that the connection between both situations may end up fundamentally changing the approximation of the Inter-American system to prison benefits such as pardons, forcing it to accept a few very tightly knitted exceptions to what is an otherwise strict preference against leniency in punishment and early release of gross human rights violators. These new developments, however, are still unlikely to help Mr. Fujimori’s case.

  1. Some Context

To understand the debate surrounding Fujimori’s hypothetical pardon, one must first comprehend the underlying case that landed him in jail. Fujimori was President of Peru between 1990 and 2000. At that time, Peru was fighting the Shining Path –a Maoist terrorist group- in a conflict that would ultimately cost the country an estimated 65 thousand lives. Two years into his term, Fujimori led a “self-coup”, directing the military to close Congress, effectively ruling by decree for a period of nine months, setting up the basis for his decade-long autocratic government and approving harsh counter-terrorism laws that destroyed due process guarantees.

Among his most shameful practices was the creation of a death squad called “Grupo Colina”. On November 1991 and July 1992 respectively, Colina carried out the two most well-known extra-judicial executions of the Fujimori era: the Barrios Altos and La Cantuta massacres. In Barrios Altos, a group of civilians were forced to lie on the floor and then shot point blank, resulting in the killing of 15 people and the injuring of 4. In La Cantuta, a group of university students and two professors were forcefully removed from their homes and secretly executed.

In 2009, the Peruvian Supreme Court found Fujimori guilty of ordering the Barrios Altos and La Cantuta massacres. Given that Peru did not regulate international crimes, however, the Court was not able to condemn Fujimori for crimes against humanity. Instead, in a rather controversial passage (¶711), it decided to condemn him for the domestic crime of murder but attaching to it international consequences. Thus, Fujimori’s sentence would be unaffected by statutes of limitations and required a punishment proportional to its gravity. He was sentenced to 25 years of jail time.

Since then, and despite being placed in a uniquely well-kept prison –considering Peruvian standards- Fujimori’s health has been progressively deteriorating. He has been diagnosed with hernia, hypertension, tachycardia, depression, and, most notably, tongue cancer. His lawyers claim that prison –no matter the conditions- is not the proper place for him to heal. His many opponents claim instead that his “golden prison” has everything he needs to be treated, and that he should serve every single day of his sentence.

  1. The Legality of Pardons, Explored

The Inter-American Court’s longstanding jurisprudence on the illegality of amnesties is one of its most well-known contributions to international human rights law. Fittingly, it started in 2001, precisely with the Barrios Altos case, where the Court annulled an amnesty law favoring Colina members. In one of its most well-known paragraphs, the Court stated that:

“[A]ll amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they intend to prevent the investigation and punishment of those responsible for serious human rights violations” (¶41).

Through the years, the Court slowly but steadily began to expand the Barrios Altos interpretation to go beyond just amnesties. In July 2004, in Hermanos Gómez Paquiyauri v. Peru, the Court noted that States “must also abstain from resorting to measures such as amnesty, extinguishment, and measures designed to eliminate responsibility, as well as measures that seek to impede criminal prosecution or to suppress the effects of the conviction” (¶232, highlight added). While not expressly covering pardons, this passage seems to imprint the notion that convictions cannot be cut short. Next year, in Gutierrez-Soler v. Colombia, the Court would, for the first time, mention pardons, slightly shifting the drafting of the Gómez Paquiyauri rule, adding: “the State shall refrain from resorting to amnesty, pardon, statute of limitations and from enacting provisions to exclude liability, as well as measures aimed at preventing criminal prosecution or at voiding the effects of a conviction” (¶97, highlight added).

The Court never offered a reason for this expansion. The connection between impunity and pardons is, after all, not obvious: the punishment exists, it is just reduced. Moreover, while later judgments kept the wording of “measures aimed at voiding the effects of a conviction”, they noticeably removed the express mention to pardons (See e.g. Gómez-Palomino v. Peru, ¶140). In fact, in the 2006 Almonacid Arellano v. Chile, perhaps the most important case on the illegality of amnesties since Barrios Altos, the Court not only continued to omit an express mention to pardons, but, surprisingly, entirely removed the wording in Gutierrez-Soler, regarding “measures aimed at voiding the effects of a conviction”. In this case, the Court simply cited the general Barrios Altos standard applicable to “all amnesty provisions” and concluded that “States cannot neglect their duty to investigate, identify, and punish those persons responsible for crimes against humanity by enforcing amnesty laws or any other similar domestic provisions” (¶114). Since then, the Court has not made any mention to pardons or suppression of convictions.

It is beyond the scope of this post to discover the actual reasons behind this short lived express mention of pardons. Suffice to say that, in the years since Almonacid, the Court has faced newer challenges with regard to punishment, which complicated its analysis. In 2005, the Colombian Government approved Law 975, also known as Justice & Peace Law. This law granted special benefits to members of illegal paramilitary forces who collaborated with justice through an offering of truth or reparations, even in cases of gross human rights violations, in exchange for their de-mobilization. Benefitted individuals would see their sentences reduced and replaced with an “alternative punishment” of 5 to 8 years. The scheme, which was later used as a model for the current Colombian Peace Agreement with the FARC, was opposed by human rights groups arguing that it may lead to impunity and hinder the right to truth.

In the 2007 La Rochela v. Colombia, the Court dealt, for the first time, with transitional mechanisms involving a softening of justice in exchange for peace. The dilemma at the heart of the Court’s jurisprudence was unavoidable: The Colombian Justice & Peace Law was, after all, most definitely, a “measure aimed at voiding the effects of a conviction”. It effectively suspended convictions and replaced them with softer punishments but –and here is the key point- in exchange for a concrete humanitarian advantage. This was a phenomenon the Court had never had to deal with in the past and it fundamentally changed its approach to punishment for years to come.

In La Rochela, instead of annulling the law, the Court set out several preconditions that the Justice & Peace Law would have to comply with in order to meet Inter-American standards (¶192). The Court placed heavy emphasis in the role of truth and reconciliation, setting out a standard for determining the relationship between proportionality and leniency in punishment. It thus stated that “[e]very element which determines the severity of the punishment should correspond to a clearly identifiable objective and be compatible with the [American] Convention [on Human Rights]” (¶196).

This passage is of remarkable importance, as it gives precisely the kind of explanation that Gutierrez-Soler failed to provide: when exactly can reduction of punishment constitute impunity and when can it not. Hence, for the Court, peace negotiations to end conflict would indeed constitute a “clearly identifiable objective compatible with the American Convention” that warrants a softening of proportionality. This conclusion has been gaining traction in the Court’s jurisprudence, particularly thanks to the Colombian experience with the FARC. For example, in the 2012 El Mozote v. El Salvador case, not very long after the initiation of negotiations with the FARC, five judges appended a Concurring Opinion, very much tailored to fit Colombian requirements. They stated that, at the end of an armed conflict, “it is necessary to devise ways to process those accused of committing serious crimes such as the ones mentioned, in the understanding that a negotiated peace process attempts to ensure that the combatants choose peace and submit to justice”, including alternative or suspended sentences (¶30).

The findings in La Rochela and El Mozote, however, do raise the question of whether there could be other “clearly identifiable objectives compatible with the American Convention” that may warrant a softening of proportionality. So far, the Court has been unwilling to offer any such example. In 2010, in the case of Cepeda v. Colombia, the Court addressed the political assassination of an opposition Senator by two sergeants of the Colombian Army who received copious prison benefits, ultimately reducing their 43 year sentence to 11 and 12 years respectively. The Court established that “[u]nder the rule of proportionality, in the exercise of their obligation to prosecute such serious violations, States must ensure that the sentences imposed and their execution do not constitute factors that contribute to impunity, taking into account aspects such as the characteristics of the crime, and the participation and guilt of the accused”. (¶150, emphasis added). The Court did not take the opportunity to expand its proportionality case-law, but rather maintained its pre-La Rochela distaste for early release intact.

Something similar happened in July 2012, when the Peruvian Supreme Court controversially reversed its previous ruling treating the crimes of Grupo Colina as crimes against humanity, and reduced the punishment given to its members. The leader of Colina, Santiago Martin Rivas, saw his jail time reduced from 25 to 22 years. Other members got reductions of between 3 and 5 years, and one individual received a 7-year reduction. The Inter-American Court addressed the situation two months later, in September 2012, arguing that:

“While even in cases of gross violations of human rights, international law admits that certain circumstances or situations may generate an attenuation of the punishment or a reduction in penalty, such as effective collaboration with justice through information that may allow for the resolution of the crime, the Tribunal considers that the state will need to ponder the application of such measures in the present case, given that their undue granting may eventually lead to a form of impunity” (¶57, free translation).

The Court therefore repeated its original La Rochela formula, whereby proportionality can be reduced in exchange for a specific benefit, such as in the case of plea bargains. No further explanation of the La Rochela standard was offered, yet again.

It is at this point that the question of health becomes relevant: How should a post-La Rochela Court handle a hypothetical pardon for an ill inmate condemned for serious human rights violations? Could health be seen as another clearly identifiable objective compatible with the American Convention that warrants a softening of proportionality? And, if so, under what standards? I will address these issues in Part II.

The Sea is Still Cruel – A Mariner’s Perspective on Some Aspects of the Updated ICRC Commentary on the Second Geneva Convention

by Peter Barker

[Lieutenant Commander Peter Barker is a Royal Navy barrister, currently serving as the Associate Director for the Law of Coalition Operations at the United States Naval War College.  The views expressed in this article are personal and do not reflect the position of the United Kingdom government or Armed Forces.]

Technology has changed many aspects of naval warfare and the rate of change shows no sign of abating.  Despite these developments, the physical effects of immersion in the ocean are essentially the same for a shipwrecked sailor in the 21st century as for sailors of previous centuries.  The human body will still cool about 25 times quicker in water than in air.  Survival times in freezing water can be as short as 15 minutes and even in more benign temperatures, life expectancy can be as short as 1 to 6 hours depending on physiological condition.  Exhaustion will quickly set in and the presence of sea spray creates a real risk of secondary drowning.  It is a trite statement that international humanitarian law is concerned with the protection of the vulnerable in armed conflicts, combatants as well as civilians.  The unique dangers of the sea for shipwrecked sailors makes them acutely vulnerable and in need of these protections.

For these reasons, the requirement for parties to a conflict to search for, and collect, the shipwrecked is critical to the protections contained within the Second Geneva Convention.  The obligation is made explicit in article 18, although this is a natural extension of the requirement to respect and protect the shipwrecked in all circumstances contained in article 12.  As stated in the updated ICRC Commentary, article 18(1) is “among the most important provisions in the Second Convention [and]… is paramount in achieving one of the core objectives of the Convention” (para 1617).  These words are uncontroversial and the importance of the general duty to rescue has been highlighted recently in an International Review of the Red Cross article.

Whilst the importance of article 18(1) might be clear, the exact interpretation of this critical provision is ambiguous in two key respects.  Firstly, the requirement to act arises only “at the end of the engagement”.  The need to identify the end of the engagement is unique to the Second Convention.  The equivalent provision for land warfare (article 15 of the First Geneva Convention) includes a requirement to act “at all times”.  Unfortunately for legal certainty, the days of traditional naval battles, the meeting of two fleets and the emergence of a victor, are now consigned to history.  Modern naval warfare occurs across a range of domains, both physical and electronic.  It is possible for a ship to be attacked (and therefore in an engagement) without being immediately aware of the fact.  Similarly, the point at which hostile action ends may be vague and so it may be difficult to assess exactly when the duties contained within article 18(1) are triggered.  The updated ICRC Commentary suggests that this determination requires a “good faith assessment” (para 1655) but precisely what factors are required to be taken into account remains unclear.

Secondly, the Parties are required to take “all possible measures” to search for, and collect, the wounded, shipwrecked and sick.  This phrase seems to place a heavy burden on Parties and the commanding officers of units at sea.  One reading would suggest that this requires Parties to take any action that is not impossible.  The reality of naval conflict is that this interpretation would inevitably require ships and submarines to be placed at considerable risk, a conclusion that would be militarily unacceptable.  Instead, both the ICRC and various States have openly acknowledged that there are limits to this requirement, but the extent of these vary depending on the source.  A full review of this issue is beyond the scope of this post, but a brief overview of various approaches is sufficient to highlight the interpretive problem associated with this phrase.

The UK Manual of the Law of Armed Conflict circumscribes the phrase “all possible measures” by the simple insertion of the words “consistent with their own security”.  This is almost identical to the approach taken by the United States in one part of “The Commander’s Handbook on the Law of Naval Operations” (“consistent with the security of their forces” – para 11.6).  This can be contrasted with another approach adopted within the same document when dealing with reportable violations where it suggests that the caveat to “all possible measures” is “when military interests do permit” (para 6.3).  Different wording is used in the US Department of Defense Law of War Manual (para 7.4.4), where, in line with the original ICRC Commentary of 1960 (page 130), emphasis is placed on the judgment of individual military commanders in assessing what is possible.  Personnel are not expected to “place their lives at undue risk” and a commander of a naval ship “need not increase the risk to his or her vessel from threats”.  The updated ICRC Commentary adopts a different, arguably more stringent standard.  At para 1650, it acknowledges that almost all actions required of commanders under article 18 will require the assumption of some risk to their own forces.  It is only when there is “major risk to its personnel” that the requirement to act is lifted.  It is not necessary to examine this in further detail.  The simple point is that there are a variety of standards adopted when interpreting the phrase “all possible measures”, particularly when deciding on the level of risk to their own forces that commanders are expected to assume when fulfilling their obligations.

This unresolved ambiguity has clear consequences for the shipwrecked sailor whose protection may be undesirably dependent on individual circumstances or the views of the opposing Party.  It also has consequences for naval commanders.  The captain of a ship or submarine, as an agent of the “Party to the conflict” will bear responsibility for ensuring that the provisions of the Convention are adhered to.  Failure to act, leading to the death or serious injury of shipwrecked sailors, may constitute a grave breach of the Convention for the purposes of Article 51.  A full review of the position in international criminal law is unnecessary but it is sufficient to note that the 2017 ICRC Commentary (para 3065) considers that willfully leaving shipwrecked survivors without assistance may amount to the grave breach of willful killing.  The exact circumstances in which this liability would arise are not clear, partly due to the issues surrounding the phrase “all possible measures”.  This is particularly difficult when naval commanders, especially those on submarines, may be making decisions in very short time frames and without access to legal advice.  In these situations, it would be hoped that knowledge of the actions required would be instinctive but this seems impossible given the current state of the law.

For “those in peril on the sea”, article 18 of the Second Geneva Convention is of particular importance, given their acute vulnerability.  For commanders, who are likely to be required to fulfil the Convention obligations in practice, the provisions are frustratingly unclear

A Response to Dov Jacobs on the Burundi Investigation

by Kevin Jon Heller

At Spreading the Jam, Dov Jacobs defends the Pre-Trial Chamber’s conclusion in the Burundi situation that the OTP is not required to notify a state until after the PTC has authorized an investigation. Here are the critical paragraphs from his post:

Note the different language used [in Art. 18] depending on whether there is a referral under 13(a) (state referral) or 13(b) (proprio motu): in the former case, the notification must come when “the Prosecutor has determined that there would be a reasonable basis to commence an investigation”, in the latter the notification must come when “the Prosecutor initiates an investigation” pursuant to Article 15. This seems to mean that the initiation of an investigation is something different, in a proprio motu context, that the fact that the OTP considers that there is a reasonable basis to proceed with an investigation. For me, this means that all procedural steps of Article 15 need to have been followed (including the formal authorisation) before the notification obligation of Article 18 kicks in. The determination by the Prosecutor that “there is a reasonable basis to proceed with an investigation” (Article 15(3)), which is sufficient to initiate an investigation under 13(a) is only one step of the procedure under article 15. Kevin seems to equate the authorisation under 15(4) and authorisation under 18(2). But I think these are two different “authorisations”. Under 15(4), a PTC authorises the initiation of a proprio motu investigation, while under 18(2), it is an authorisation to investigate despite the request for deferral by a State, irrespective of whether the investigation was initiated initially under 13(a) or 13(c).

I think the confusion comes from a possible misunderstanding on the scope of Article 18. Article 18 provides for a limited procedure to be followed for a preliminary ruling on admissibility which I think is self-contained within Article 18. Which means that in my view the notification requirement under Article 18 cannot be read in as a condition for the validity of the Article 15 procedure. I should add also that Article 18 does not lead to a formal challenge to admissibility, which will fall under Article 19. In this sense, I do not think Kevin is right (whether one agrees with his interpretation of Article 18 or not) in saying that Burundi will not be able to challenge admissibility before a case is brought. They will be able to do so at any time (especially given the ICC’s case law that “case” in the Rome Statute does not really mean “case” in the context of admissibility questions, which is why everybody assesses admissibility as early as the PE phase. I think that doesn’t make sense, but that is a different debate…).

In my view, though clever, Dov’s argument is problematic. The first problem concerns his claim that “all procedural steps of Article 15 need to have been followed (including the formal authorisation) before the notification obligation of Article 18 kicks in.” That position is irreconcilable with Art. 15. As I pointed out in my previous post, Art. 15 not only specifically distinguishes between the OTP initiating an investigation proprio motu (paragraph 1) and the PTC authorizing the commencement of that investigation (paragraph 4), it specifically deems the former but not the latter part of the preliminary-examination process (paragraph 6). Paragraph 6 makes no sense if “initiates” in paragraph 1 refers to all of the steps in Art. 15, including authorization.

The only way Dov can avoid that critique is to assert that “initiates” in Art. 15(1) does not mean the same thing as “initiates” in Art. 18(1). If they mean the same thing, Art. 18(1)’s notification requirement necessarily kicks in — as I previously argued — prior to the PTC authorizing the proprio motu investigation (because Art. 15(6) says initiating is part of the preliminary-examination process and authorization is not). Dov provides no evidence that “initiates” means different things in Art. 18(1) and Art. 15(1), and any such argument is difficult to reconcile with the fact that Art. 18(1) specifically refers to “the Prosecutor initiat[ing] an investigation pursuant to articles 13 (c) and 15,” thereby using “initiates” in Art. 15(1) to give meaning to Art. 18(1)’s notification requirement. Moreover, if the drafters of Art. 18 wanted the proprio motu notification requirement to kick in only after all of the steps in Art. 15 had been completed, why would they not simply have written “or the Court authorizes the commencement of the investigation” instead of “or the Prosecutor initiates an investigation”?

Equally problematic is Dov’s insistence that Burundi will be able to challenge the validity of the proprio motu investigation even though the PTC has already formally authorized it. Dov’s argument to that effect is strangely devoid of any reference to the actual language of Art. 19; he simply says that “’case’ in the Rome Statute does not really mean ‘case’ in the context of admissibility questions.” If Dov believes that Art. 19 allows a state to shut down an already-authorized proprio motu investigation by invoking complementarity, he should make the argument. In my view, nothing in Art. 19 permits such a challenge, given that the Article is limited — both in name and in terms of its specific provisions — to cases. Art. 19(2) is particularly revealing in that regard, as it specifically limits jurisdiction and admissibility challenges to “[a]n accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58” (subparagraph a) or “[a] State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted” (subparagraph b).

Dov’s reading also makes a mishmash of the relationship between Art. 19 and Art. 15. If Dov is right, a state can use a complementarity challenge under Art. 19 to shut down a proprio motu investigation that has already been authorized by the PTC under Art. 15. Yet the PTC has to consider issues of complementarity in order to authorize a proprio motu investigation in the first place, because it has to find the OTP’s contemplated cases admissible in order to conclude that there is a “reasonable basis to proceed with [the[ investigation.” Dov’s position thus requires the PTC to consider complementarity twice in Burundi-like situations: once when the OTP asks it to authorize a proprio motu investigation ex parte (under Art. 15), and again when the affected state asks it  to defer the investigation (under Art. 18). When deciding to authorize the investigation, the PTC will hear only from the OTP; when deciding to defer the investigation, the PTC will hear from both the OTP and the PTC. Why would the drafters of the Rome Statute adopted such a duplicative and cumbersome process? My (textually sound) interpretation of Art. 18’s notification process makes much more sense, because it means that the PTC will only address complementarity once, before it authorizes a proprio motu investigation.

My interpretation is also superior to Dov’s in terms of the politics of proprio motu investigations. If Dov’s interpretation of the Rome Statute is correct, a state facing referral by another state can use Art. 18 to prevent the PTC from ever formally approving the OTP’s belief that an investigation is warranted, while a state facing proprio motu investigation cannot invoke Art. 18 until after the PTC has formally approved a similar belief. States are thus better off being referred by another state than being investigated proprio motu whenever the OTP can convince the PTC to grant the latter ex parte. It goes without saying, however, that states at the Rome Conference were far more concerned by proprio motu investigations than state referrals.

Dov’s defense of the PTC’s interpretation of Art. 18’s notification requirement is very clever. But I think it’s also clearly incorrect.

How the PTC Botched the Ex Parte Request to Investigate Burundi

by Kevin Jon Heller

Last week I argued that the OTP’s failure to ask the Pre-Trial Chamber to authorize an investigation prior to Burundi’s withdrawal from the ICC becoming effective — 28 October 2017 — meant that the Court no longer had jurisdiction over crimes committed on Burundi’s territory prior to that date. I still think my legal analysis is correct, but my factual assumption was clearly not. As it turns out, the OTP filed an authorization request with the PTC on September 15, but did so ex parte and under seal — a possibility the ever-brilliant Sergey Vasiliev discussed a few days ago here at Opinio Juris. The PTC authorized the investigation on October 25, three days before Burundi’s withdrawal became effective, but only released a public redacted version of its decision yesterday, November 9. As it stands now, therefore, the ICC retains jurisdiction over crimes committed in Burundi prior to 28 October 2017.

Unfortunately, the PTC’s decision contains a critical legal flaw — one whose importance cannot be overstated. Because the OTP filed its request to open an investigation ex parte and under seal, Burundi was not informed that the request existed until after the PTC had already decided to grant the request and authorize the investigation. The PTC makes this clear in paragraph 11 of its decision:

11. In sum, the Chamber finds that, on the basis of a combined reading of articles 15(3), 18 and 68(1) of the Statute and rule 50(1) of the Rules, a procedure pertaining to a request for authorization of an investigation may, under certain circumstances, be conducted under seal, ex parte, with the Prosecutor only.

In fact, the OTP did not even inform Burundi about the investigation immediately after the PTC authorized it, because the PTC accepted the OTP’s argument that it needed 10 additional days to ensure that victims and witnesses were protected. (See paragraphs 16-19.)

Here is the problem: Art. 18 of the Rome Statute required the OTP to notify Burundi when it initiated the investigation into the situation there, not when the PTC authorized the investigation. Here is what the PTC says in paragraph 17 (emphasis mine)…

The Cyber “Shipwrecked” and the Second Geneva Convention

by Jeffrey Biller

[Jeffrey Biller, Lt Col, USAF, is the Associate Director for the Law of Air, Space and Cyber Operations at the Stockton Center for the Study of International Law, US Naval War College.]

This May, the law of naval warfare took a significant step forward with the International Committee of the Red Cross (ICRC) release of an updated commentary on the Second Geneva Convention (GCII). The updated commentary is the first since the original commentary was released in 1960, and recognizes significant changes both in the conduct of naval conflicts and interpretations of the governing law. One such significant change is the advent of the cyber domain as a key component in naval operations. This post examines one potential impact of the cyber domain on naval operations – the protections afforded to shipwrecked crews under Article 12 of GCII.

Recent examples of potential cyber operations targeting maritime vessels include the infection of an 80,000-ton ship’s navigation system via a malware-infected USB stick and the possible GPS spoofing of at least twenty ships near the Russian port of Novorossiysk. Modern naval vessels utilize programmable logic controllers to interface hardware components with the physical systems onboard a ship. This creates potential vulnerabilities to power, hydraulic, steering, propulsion, and other critical systems. Should some or all of these systems be subject to a cyber-attack during an armed conflict, with the result that the ship becomes disabled, questions arise as to the status of that ship and whether the crew must be afforded certain protections under GCII.

Article 12 of GCII provides that “[m]embers of the armed forces . . . who are at sea and who are wounded, sick or shipwrecked, shall be respected and protected in all circumstances,” affording them protections against further attack once they qualify as “shipwrecked.” Traditional notions of shipwreck conjure up images of ships ablaze and beginning to sink as the result of cannon, torpedo, or aerial bombs. However, Article 12 states, “the term ‘shipwreck’ includes shipwreck from any cause.” Given the reliance of many modern warships on cyber controlled critical systems, it begs the question: can the crew of a warship be shipwrecked, within the meaning of GCII, by purely cyber means, thereby affording protections from further attack. Although no State has yet officially addressed this specific question, a review of the updated commentary’s Article 12 analysis suggests an answer in the affirmative.

The 2017 commentary states, “to qualify as shipwrecked the person must be in a situation of peril at sea” and “in all cases the person must refrain from any act of hostility.” (See Updated Commentary, para. 1379). Thus, we have two criteria that must be met and are difficult to determine in the cyber context: establishing whether the crew of a ship disabled by cyber means is in “peril at sea,” and, if so, how to determine if that crew has refrained from engaging in hostilities.

Peril at Sea

Framing the analysis of whether a ship’s crew disabled through cyber means can be considered in peril is the guidance to read the term shipwreck “as being broad.” (See Updated Commentary, para. 1383). The 2017 commentary reiterates the 1960 commentary exhortation for the term to be “taken in its broadest sense.” (Commentary to Geneva Convention II for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea 84–92 (Jean Pictet ed., 1960)). Despite a broad reading of the term shipwrecked, it can initially be difficult to accept that a ship with no outwardly apparent damage should be considered in peril. However, the loss of propulsion, steering, life-support, and other critical systems is enough to create a dangerous situation, even if it is not immediately life threatening. To this point, the 2017 commentary finds that “[p]ersons on a fully disabled ship . . . whose situation is dangerous but not necessarily imminently life-threatening, are also covered, as long as they refrain from any act of hostility . . . .” (See Updated Commentary, para. 1384). Furthermore, the commentary states “[s]ituations that are potentially life-threatening . . . also render persons on board ‘in peril’ at sea.” (See Updated Commentary, para. 1385).

Perhaps the primary difficulty in determining whether the crew of a ship disabled by cyber means is in peril is that the extent of that damage may be unknown, initially even to the crew itself. The damage to networked systems may require extensive repair necessitating new equipment or experts be brought on board before critical systems can be repaired. Conversely, the damage might quickly be repaired, with a ship’s weapon systems again posing a deadly threat to opposing warships.

Furthermore, the attribution of who or what is responsible for the disabling of the ship’s networks may be initially unclear. Indeed, it may be that the damage is entirely self-inflicted or unintentionally caused by malware previously and unknowingly introduced by a member of the ship’s crew. In these situations, the commentary’s inclusion of “shipwrecks caused by human error or a malfunction”(See Updated Commentary, para. 1386) in its definition of “any other cause,” makes clear that a ship’s crew could be rendered shipwrecked through cyber means even if the damage to the ship’s networks is self-inflicted or caused by means other than enemy action. Accordingly, a determination of attribution is legally unnecessary in evaluating whether protections should be afforded.

Refraining from Hostilities

In addition to being at peril, the commentary indicates that a crew does not receive the protections of Article 12 unless they also refrain from any further act of hostility. Determining whether a warship’s crew has complied with this requirement can be difficult even when the signs are visually observable, such as when members of the crew can be seen abandoning the ship. A ship’s weapon systems may remain functional even while other systems are severely damaged and there may be members of the crew operating those systems. Recall that the ship itself remains a military object subject to attack throughout; it is only the crew that receives protections in a shipwreck situation. This 2017 commentary recognizes this difficulty:

However, it will likely be very difficult or even impossible for an enemy to know whether the crew is working to repair weapons with the aim of continuing hostilities without an outward sign indicating otherwise. Furthermore, as the sailors are on board a military objective, it is likely that a disabled or damaged warship would need to surrender (e.g. by striking its colours) in order for protection to be secured. (See Updated Commentary, para. 1390).

A question specific to the cyber domain is what cyber defense measures a crew may take to prevent further cyber damage to the ship, while still refraining from hostilities. Here, the distinction between active cyber defenses, sometimes referred to as “hack-backs,” and passive defenses may hold the answer. Whereas active cyber defenses may pose a threat to opposing actors in the conflict, passive defenses pose no such threat and are akin to trying to save a damaged ship. Whereas refraining from further hostilities make no requirement that a crew stop trying to save a damaged ship, there is an obligation to refrain from acts that pose a threat to opposing forces.

Finally, determining whether a crew is refraining from hostilities in this context will likely required some communication to other forces taking part in the engagement. Unfortunately, the same cyber event that damaged other critical systems may also have damaged the disabled ship’s communications equipment. Although the commentary suggests “striking its colours” as a means of signaling the cessation of hostilities, most naval engagements of the future are likely to be fought at standoff range and visual signals may be useless.

Future Considerations

Whereas many practical difficulties inhibit the determination of whether the crew of a ship disabled by cyber means should be afforded Article 12 protections, the commentary suggests that it is clearly possible. GCII makes no requirement as to how a ship becomes disabled and the commentary stresses that the protections are quite broad. This difficulty does raise several interesting questions for naval forces who operate warships largely dependent on networked systems. These naval powers may need to retain non-digital methods of communication such as analog radios or high-range visual systems that can indicate a ship is in peril and is refraining from hostilities. Moreover, the question of whether states employing cyber methods and means in an attempt to disable enemy warships must notify their own warships operating in the area of such efforts is a valid question.

Unfortunately, the impact of cyber operations on the Geneva Conventions was limited to the discussion of the scope of applicability in the new commentary. This is understandable given the nascent stage of determining the applicability of international humanitarian law to cyber operations. However, the increased depth of analysis in the new commentary does aid in making the analysis clearer. Ensuring that GCII protections will be afforded to the crews of potential “cyber shipwrecks” is one such area that must be considered by naval powers going forward.