Recent Posts

The Gaza Report’s Treatment of Warnings: A Response to Blank

by Kevin Jon Heller

Laurie Blank published a post yesterday at Lawfare entitled “The UN Gaza Report: Heads I Win, Tails You Lose.” The post accuses the Independent Commission of Inquiry’s report on Operation Protective Edge (“Gaza Report”) of “completely undermin[ing] the foundational notion of equal application of the law” with regard to three areas of IHL: warnings, civilian vs military objects, and compliance. None of Blank’s criticisms are convincing, but in this post I want to focus solely on her first topic, warnings. Here is what she says about the Commission’s discussion of whether Israel complied with its obligation under IHL to provide civilians in Gaza with “effective advance warning” prior to attack:

First, consider the report’s treatment of warnings, one of the precautions set out in Article 57 of Additional Protocol I.  Article 57 mandates that when launching attacks, “effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.”  The Commission examines Israel’s warnings in great detail, including leaflets, telephone calls, texts and roof-knocks, noting that the warnings often did lead to successful evacuation and save many lives.  However, the Commission found in many cases that specific phone warnings were not effective as required by LOAC, because the individuals in the targeted building would not know “in what direction to escape.” (¶ 237).

However, LOAC contains no requirement that the civilian population be able to act on the warnings in order to find them effective.  Instead, the legally correct approach is to examine whether the warnings generally informed civilians that they were at risk and should seek shelter. In other words, the legal issue is whether they were effective in transmitting a warning, not whether the civilians actually heeded them. The Israel Defense Forces routinely made individualized, specific phone calls to warn the residents of buildings to seek safety in advance of an attack on a particular building, far exceeding the requirements of LOAC. Yet the Commission bases its conclusions on the post-hoc question of whether civilians actually found shelter, which ultimately depends on a host of considerations outside the control of the attacking party.

Unfortunately, both paragraphs misrepresent the Gaza Report. Let’s consider Blank’s claims one-by-one.

[T]he Commission found in many cases that specific phone warnings were not effective as required by LOAC, because the individuals in the targeted building would not know “in what direction to escape.”

The Israel Defense Forces routinely made individualized, specific phone calls to warn the residents of buildings to seek safety in advance of an attack on a particular building, far exceeding the requirements of LOAC.

These statements are misleading. The subsection of the Gaza Report that Blank criticises focuses on Israel’s controversial use of “roof knocking,” not on its use of phone calls to civilians located in or near buildings about to be attacked. (The subsection is entitled “Roof Knock Warnings.”) Indeed, the entire point of the subsection is to explain why roof-knocking does not provide civilians with effective advance notice unless it is combined with a phone call or “other specific warnings” (¶ 239). Blank does not challenge the Commission’s conclusion in that regard. She does not even acknowledge it…

More thoughts on al-Bashir, Sudan, and South Africa

by Jens David Ohlin

I wanted to follow up on my previous post about the inter-branch dispute in the South African government over executing an international arrest warrant against President al-Bashir of Sudan. A South African court issued an order preventing al-Bashir from leaving South Africa, but notwithstanding this decision, the South Africa government appears to have let him escape anyway. It appears to be a case of executive branch defiance of a binding judicial order.

Several readers have suggested that South Africa is not under a legal obligation to arrest al-Bashir because doing so would violate their obligations to Sudan to respect either head of state or diplomatic immunity under either customary international law or the Vienna Convention. Furthermore, article 98 of the Rome Statute specifically says that a party to the Statute need not arrest someone if doing so would conflict with its other international obligations. Some have suggested that either South Africa or the ICC can request a waiver from Sudan, but if no waiver is forthcoming, then South Africa need not execute the arrest warrant pursuant to article 98, which reads:

Article 98: Cooperation with respect to waiver of immunity and consent to surrender
1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.
2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

This is an old debate, with important and excellent contributions from scholars such as Paola Gaeta and Dapo Akande. I want to make a quick point here and just broadly sketch out my view on this matter.

Regardless of the correct view on this matter in general, there are specific aspects to this particular dispute with Sudan that are relevant to the legal analysis. It is not just a question of analyzing the Rome Statute, customary international law, and the Vienna Convention. There are other sources of law to consider.

The charges against al-Bashir include genocide. Although the legal obligations regarding the prevention and punishment of genocide originally emerged from the Genocide Convention, they have now risen to customary international law and represent erga omnes obligations. Furthermore, one of those obligations is the duty to prosecute or extradite any individual accused of genocide. This is a jus cogens obligation that prevails over any supposed legal obligation under the law of diplomatic relations. In this case, then, Sudan is under a legal obligation to either prosecute al-Bashir or turn him over to a competent court for trial. Because of this obligation, South Africa would not be violating any duty to Sudan by arresting al-Bashir and sending him to The Hague.

Even if one does not accept this argument, there is a second reason why Sudan is under a legal obligation to turn over al-Bashir, and by extension why South Africa owes no legal obligation to Sudan in this regard. The UN Security Council, in referring the case to the ICC, invoked its Chapter VII powers and directed Sudan to cooperate with the court. As such, Sudan is under an international legal obligation to cooperate with the court. Since this legal obligation is binding and stems from the Security Council’s Chapter VII authority, it prevails over any conflicting legal obligation. This principle is embodied in Article 103 of the Charter but is also customary law and part of the necessary architecture of our modern Charter-based collective security regime.

(Just to be clear, the details of this analysis need to be flushed out; for purposes of blogging brevity, this was the outline of the argument.)

Weekly News Wrap: Monday, June 15, 2015

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

  • A teenage North Korean soldier has walked across the world’s most heavily militarised border in a bid to defect to South Korea, South Korean defence ministry officials said.
  • Britain has pulled out agents from operations in “hostile countries” after Russia and China cracked top-secret information contained in files leaked by former US National Security Agency contractor Edward Snowden, according to the UK’s Sunday Times newspaper.

Europe

Americas

Oceania

UN/World

  • UN-sponsored negotiations on the Yemen crisis have started in Geneva, with the aim of ending the bloody conflict in the country.These talks aimed at ending the war in Yemen have however been thrown into doubt amid uncertainty over whether rebel Houthi negotiators will attend, with reports saying the Shia rebels missed a flight to Geneva.

Bashir Leaves South Africa

by Jens David Ohlin

I’m not one to get hysterical over ICC news, but this recent development today strikes me as deeply problematic, and perhaps a tipping point. But perhaps not the tipping point that the ICC detractors have in mind.

Sudanese President al-Bashir was attending a conference in South Africa this weekend with other heads of state and officials from several African nations. The government of South Africa took the position that Bashir was entitled to immunity and could not be arrested; apparently, this was Bashir’s assumption as well, otherwise I doubt he would have traveled to South Africa in the first place.

However, a South African court ruled that Bashir should be arrested, since South Africa voluntarily signed the Rome Statute and has a legal obligation as a member of the court to execute its arrest warrants. You will recall that the Sudan case began as a Chapter VII referral from the UN Security Council.

In response, the South African government whisked Bashir out of the country, apparently in open defiance of a judicial order preventing them from letting him leave, and just hours before the Supreme Court of South Africa ruled that the government was under a legal obligation to arrest him and explicitly finding that the government’s failure to arrest him would be contrary to the South African Constitution.

From the outside looking in, this looks awfully close to being on the precipice of a constitutional crisis in South Africa. Although one would expect inter-branch disputes in any divided government, such open defiance of a binding judicial order strikes me as deeply harmful to the rule of law. From news reports, I see no evidence that the original judicial order was suspended or otherwise not operative in the hours preceding the Supreme Court’s decision. (But if a reader from South Africa knows the specifics on this question, and the news reports are wrong, please educate us in the comments section.)

What will the ICC do? It strikes me that this level of open defiance — not just of the ICC but also of one’s own judiciary — takes the failure to arrest Bashir to a whole new level. Some will no doubt suggest that this entails that the ICC is a sham with no real power or authority. I take the opposite conclusion. I wonder if this brazenness will now force either the ICC Assembly of State Parties or the Security Council to finally engage in some enforcement actions against states who are not cooperating with the ICC on this matter. Indeed, I would think that the Assembly of State Parties is the appropriate body to take decisive action on this matter. Not only has the ICC concluded that Bashir must be arrested, head of state immunity notwithstanding, but apparently the South African Supreme Court agreed as well. So what excuse can the South African government muster? It would seem that neither international nor even domestic law supports their position, thus weakening the rhetorical power of their arguments. They cannot even suggest that they were caught between their international and domestic obligations.

Of course, I am not an expert on South African law. In the US it is very difficult to get a court to issue an order demanding that the executive arrest someone. (A writ of mandamus in that context would be highly unusual.) Usually the judiciary does the opposite: tells the executive to release someone they have arrested. But South African law might be different in that respect, as indeed are civil law jurisdictions that allow for the triggering of the criminal process in ways other than the discretionary arrest of the suspect by the police. Again, I’d appreciate any information on South African procedure that readers might have.

UPDATE: The name of the court that issued the ruling was the North Gauteng High Court in Pretoria.

Will Al-Bahlul’s Appeal of his Conspiracy Conviction go to the Supreme Court?

by Jens David Ohlin

On Friday, the DC Circuit vacated al-Bahlul’s military commission conviction for conspiracy. There has been, and will be, much coverage of this decision, especially since the decision is a great candidate for a successful Supreme Court cert petition. Assuming that the federal government wants to appeal, which I can’t imagine it would not, the case would allow the Supreme Court to return to an issue — conspiracy as a substantive offense — that it has not addressed since Hamdan (which left many crucial questions unanswered due to the fractured nature of the majority opinion and Justice Kennedy’s unwillingness to take a position on the conspiracy issue). So Bahlul is ripe for SCOTUS consideration.

There are many aspects of the lengthy DC circuit opinion, and others have discussed the Article III issues in greater depth and detail, including Steve Vladeck, Peter Margulies, Steve Vladeck again, and others.  Some are more interested in the constitutional question about what constraints exist on military commission jurisdiction as an exception to the usual constitutional requirements of an Article III court (a judge with life tenure, etc.).

But what interests me more is the government’s argument that although conspiracy is not a violation of the international law of war, there is still sufficient evidence that conspiracy is triable before military commissions as a matter of domestic “common law of war,” something akin to the precedent of military commissions.  In the past I have wondered aloud about the details of this bizarre argument. So what I found most interesting in the DC Circuit’s opinion is that they do not push back as strongly as I would have liked on the government’s methodological framing of this argument, and instead push back on the paucity of evidence for its conclusion. Here is the specific paragraph that interests me:

The history of inchoate conspiracy being tried by law of war military tribunals is thin by comparison and equivocal at best. The government has identified only a handful of ambiguous examples, and none in which an inchoate conspiracy conviction was affirmed by the Judicial Branch. The examples are unpersuasive in themselves and insufficient to establish a longstanding historical practice (page 18).

The opinion then goes on to note the problematic precedent of the Lincoln assassination case, which was prosecuted before a military commission. Although conspiracy was one of the charges, the decision notes that the relationship between conspiracy and the completed offense was totally unclear in the case. (Whatever one thinks of the Lincoln assassination case as a precedent, it was clearly not a case of pure inchoate conspiracy, since the conspiracy was not frustrated and it succeeded in killing Lincoln).) Furthermore, while the Quirin conspirators during World War II were charged with conspiracy, the Supreme Court made no mention of the conspiracy charges when it upheld their convictions from the military commission, preferring instead to rest its analysis on the sabotage charge.

Finally, the majority notes that although Thomas’ dissent in Hamdan clearly relied on inchoate conspiracy as a part of the domestic common law of war, the majority contends that at most there were only three votes for this position at the time of Hamdan. To the extent that other justices referred to the common law of war in Hamdan (the Stevens opinion), it was used as a source of constraint, rather than expansion, for the jurisdiction of the military commissions.

(One problem I noted in reading the opinion is that on page 37 of the opinion the majority refers to JCE and aiding and abetting as “offenses against the law of war,” instead of referring to them as modes of liability or legal doctrines. Not sure why they would say that.)

Of course, I’ve left out  a host of other constitutional issues that are important in this case, in part because what concerns me is the fate of conspiracy under the law of war, and how courts should understand the “law of war” as a body of law. Part of what makes this case so fascinating is that the government and the defense have radically different ideas of what the law of war is. Although the majority opinion in Bahlul does not explicitly resolve this question, it does say on multiple occasions that both the Quirin and Hamdan holdings were based on the international law of war.

Will the Supreme Court grant cert in this case? I am inclined to say yes, simply because hearing this case will help clarify the jurisdiction of military commissions in both a general and specific sense. The general element is that the Supreme Court will have the opportunity to clarify how and why military commissions operate as exceptions to the Article III requirement. The specific element is that the Supreme Court can clarify its position on the crime of conspiracy, which continues to be at issue in terrorism prosecutions.

Guest Post: Revoking Citizenship of Foreign Fighters: Implications for the Jurisdiction of the International Criminal Court

by Ailsa McKeon

[Ailsa McKeon is a BA/LLB (Hons I) from the University of Queensland.]

Growing numbers of men and women are travelling to the Middle East to fight for ‘ISIS’. Political figures from several Western nations, including Australia, the UK, Canada and Norway, have publicly asserted that these individuals should be stripped of citizenship of their countries of origin to protect, punish and deter. Yet, however well-intentioned this strategy may appear, it could also have negative consequences for the ICC’s jurisdiction if these individuals are accused of crimes within its remit.

Revocation of citizenship is contrary to international law if it renders any individual stateless. It is possible nonetheless, as shown, for example, by Burma/Myanmar’s treatment of Rohingya people. The idea is less controversial when applied to those with multiple nationalities who would retain at least one. Regardless, revocation of citizenship in any case would be a complicating factor for ICC jurisdiction.

Art 25(1) of the Rome Statute gives the ICC jurisdiction over natural persons only. Art 12 sets out the preconditions for the ICC’s exercise of jurisdiction in relation to the crimes specified in Art 5(1). Essentially, it requires the State on whose territory the relevant conduct occurred, or of which the person accused of the crime is a national, to be a party to the Rome Statute or to have consented to the Court’s jurisdiction in respect of the particular crime alleged. The exception is where the UN Security Council, acting under Chapter VII of the UN Charter, refers a situation to the Prosecutor in which a crime within the ICC’s competence appears to have been committed. The ICC can then exercise jurisdiction whether or not the relevant State is a party. However, such referrals may be impeded by the exercise of the veto power by any of the five permanent Security Council members.

Where an individual commits acts alleged to constitute crimes within the ICC’s jurisdiction before revocation, they can be pursued as a national of a ratifying nation based on Art 12(1): that is, at the time the crime is said to have been committed, the person was a national of a State Party, which, by becoming a State Party, accepted the court’s jurisdiction over its territory and nationals. Subsequent withdrawal of citizenship cannot change that. However, the ability later to exercise that jurisdiction is a distinct issue, as will be discussed below in relation to Art 127.

In the reverse situation, where an individual commits such conduct only after withdrawal of citizenship of a State Party, the existence of jurisdiction is unlikely. It seems that in the continued absence of territorial jurisdiction, the ICC would be unable to commence proceedings due to lacking jurisdiction ratione personae. This challenging prospect presently confronts the ICC, as Western nations foreshadow action to revoke citizenship of foreign fighters. Prosecutor Bensouda released a statement in April 2015 indicating that, although the situation continues to be monitored, the Office of the Prosecutor is not currently in a position to commence investigation or prosecution of any individual involved with ISIS from a State party. As the Prosecutor observes, neither Iraq nor Syria (nor many of their neighbouring States) is party to the Rome Statute: as such, the ICC would rely on personal jurisdiction to prosecute any foreign fighter alleged to be most responsible for mass crimes. In the event that personal jurisdiction is removed, the ICC would be rendered powerless over such individuals.

The situation with respect to crimes continuing either side of revocation is more indeterminate, in the same manner as continuing crimes commenced prior to the Rome Statute’s entry into force. This is relevant because the precise point at which revocation of citizenship would take effect with respect to any particular individual under various national legislative regimes is unknown.

The most direct analogy as to loss of jurisdiction over continuing crimes arises under the Statute of the ICTR. (Similar circumstances affect the ECCC, however the issue has not been addressed there.) Art 7 defines the ICTR’s temporal jurisdiction to “extend to a period beginning on 1 January 1994 and ending on 31 December 1994”. The ICTR held in the Nahimana appeal that “[criminal] responsibility could not be based on criminal conduct prior to 1 January 1994, but… evidence of pre-1994 acts could nonetheless have probative value”. However, nothing was said in that case of conduct occurring after 31 December 1994; the same conclusion cannot necessarily be drawn regarding the evidentiary value of subsequent conduct as to possible earlier criminality in this context. Regardless, this ruling seems to confirm the view that jurisdictional limits are applied strictly, even for continuing crimes that are commenced before, but not completed until after, jurisdiction is removed. Loss of jurisdiction by the ICC would therefore prevent determination of culpability or innocence.

A less obvious parallel may be drawn with the law of diplomatic protection. Where an individual with immunity loses nationality of the State from which it was derived prior to commencement of criminal proceedings, the individual will also lose the protection of that State in respect of a wrong they committed while its national. As a result, proceedings may ensue against an individual who had held diplomatic protection at the time of allegedly committing a wrong, where otherwise they could not. However, that situation is distinguishable from the one of present concern: there, a pre-existing bar is removed so that jurisdiction is allowed, while in the case of revocation of citizenship, jurisdiction exists until its substratum is displaced by the revocation. This does not speak in favour of ICC jurisdiction existing in respect of continuing crimes where the elements of the crime are not complete until after citizenship is revoked.

A contrasting analogy may be made with the withdrawal of ratification of the Rome Statute. Art 127(2) states:

“… [a State Party’s] withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”

This provision foresees politically-motivated withdrawals and operates so that the ICC retains the ability to exercise jurisdiction over individuals already being investigated or prosecuted, despite the State Party’s ouster of its jurisdiction otherwise. Art 127 explicitly applies only to State Party withdrawal from the entire Rome Statute, operating to displace the rebuttable presumption that a treaty cannot be denounced unilaterally unless it is shown that this possibility was intended by the parties or that a right of withdrawal exists by implication from express terms.

The obverse consequence implied by Art 127(2) is that proceedings may not be commenced in the ICC in respect of the territory or nationals of a State that has withdrawn with effect as per Art 127(1). This position seems also to apply to persons whose citizenship of a State Party has been revoked, even where a continuing crime was allegedly commenced while citizenship of a State Party remained in force, for the reason observed earlier that such jurisdiction has been lost by the time the crime is complete. Further, given its specificity, Art 127 cannot be applied directly to revocation of citizenship to suggest that jurisdiction will continue over individuals whose investigation or prosecution has been commenced, but whose citizenship is subsequently revoked. Rather, in the absence of express provision to that effect, it appears that proceedings would have to be abandoned. This proposition is confirmed by the terms of Art 12(2), which relevantly provides that “the Court may exercise its jurisdiction if… the State of which the person accused of the crime is a national” is a State Party or has accepted the jurisdiction of the Court in accordance with Art 12(3). Although the crime remains within the ICC’s competence, personal jurisdiction is absent where the person is no longer a national of a ratifying State.

Were any ratifying nation to follow through with revoking a foreign fighter’s citizenship, it is arguable that this act would breach the obligation under Art 86, “in accordance with the provisions of [the] Statute, [to] cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” In fact, it would make it substantially more difficult for the ICC to pursue individuals suspected of involvement in the most egregious crimes where those crimes are not commenced or completed until after the revocation.

This issue is a live one. Foreign fighters are firmly positioned within ISIS’s leadership structure and in active operations, while allegations of war crimes and crimes against humanity have already been made against the group. There is a clear possibility that foreign fighters may warrant investigation and prosecution by domestic or international authorities. It should therefore be of concern that an essentially administrative act by a State Party may seriously impede ICC involvement where a State is unwilling or unable to proceed.

Events and Announcements: June 14, 2015

by Jessica Dorsey

Announcements

  • Registration is now open for the 11th Annual Conference of the European Society of International Law to be held at the University of Oslo on 10 – 12 September 2015. The conference theme is: The Judicialization of International Law – A Mixed BlessingConference highlights include:
    • A Keynote Panel on A Turn to the Rule of Law in International Politics: The Role of the International Judiciary with James Crawford and Martti Koskenniemi
    • Agorae focusing on current events: International Law and the Fight against ISIS; The Accession of the European Union to the European Convention on Human Rights; The Situation in Ukraine
    • A closing lecture on Developments in Geopolitics – The End(s) of Judicialization? by Philippe Sands
    • A reception at Astrup Fearnley, museum of contemporary art, and a conference dinner at the Hotel Continental in the city center of Oslo

    The draft programme of the conference and details of how to register for the event are available on the conference website. There are still various possibilities for sponsoring the event. For information about sponsorship possibilities please contact the organizing committee at esil-2015 [at] jus [dot] uio [dot] no.

  • On Thursday 17 September 2015, the Otto-Riese Memorial Lecture by UNCTAD Secretary-General will take place in Lausanne Switzerland – Dorigny. Mukhisa Kituyi, of Kenya, who became UNCTAD’s seventh Secretary-General on 1 September 2013, will deliver the Otto-Riese-Memorial Lecture on Thursday 17 September 2015 at 17:15 at the Opening Ceremony of the LLM Programme in International and European Economic and Commercial Law (MAS) of the University of Lausanne. He has an extensive background as an elected official, an academic, and a holder of high government office. He also has wide-ranging experience in trade negotiations, and in African and broader international economics and diplomacy. Prof. Andreas R. Ziegler, Director of the LLM Programme is proud and happy that the Secretary General has accepted his invitation. The programme organizes a lecture series in honour of Otto Riese. Otto Riese (1894-1977) was a professor and Dean at the University of Lausanne Law School who became the first German judge at the European Court of Justice.
  • On Friday 18 September 2015 (9:00 – 17:00) a workshop entitled Preferential Trade and Investment Agreements: Curse or Blessing? will take place, hosted by the Study Group on Preferential Trade and Investment Agreements (PTIAs) of the International Law Association (ILA) with presentations by its members at the University of Lausanne. It is a one-day event though an opening reception is held on Thursday evening 17 September 17:30 with a guest lecture by the UNCTAD Secretary General Mukhisa Kituyi followed by a reception. Sign up from  09.06.15  to  28.08.15 The event is open to the public and pre-registration is open now (E: llm [at] unil [dot] ch). The event is co-organized by the LLM Programme in International and European Economic and Commercial Law at the Law Faculty of the University of Lausanne together with the Swiss Branch of the ILA and the Swiss Network for International Studies (SNIS). The event is free for students and ILA Members (of any branch). All others pay 150 CHF or can alternatively join any ILA branch. In order to join the Swiss branch of the ILA now (including free membership for the rest of 2015, 100 CHF per year from 2016) contact E: llm [at] unil [dot] ch.

Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

New app facilitates evidence collection for atrocity crimes

by Kristen Boon

Eyewitness.org has released a new app that creates a secure “digital locker” for those who seek to record digital evidence of atrocity crimes for eventual use in by courts. The app has been produced by the International Bar Association and the legal services division of Lexis Nexis.   Information is available here.    The app was developed after controversies regarding the veracity of videos in other contexts.

By using metadata, the recordings can verify the location via GPS coordinates, and date / time of the collection, and confirm no editing has taken place.  The app also contains a “destruct” feature if the user wishes to delete it and the material in an emergency.

What will eyewitness do with the footage?   Their webpage reports:

eyeWitness will use the footage to promote accountability for international atrocity crimes, specifically war crimes, crimes against humanity, genocide, and torture. When eyeWitness receives the images, a copy is transferred to a specialised database for analysis by the eyeWitness expert legal team. The team will analyse the videos to determine if they may show that an atrocity crime was committed. The eyeWitness legal team becomes the advocate for the footage, working continuously with legal authorities in relevant international, regional, and national jurisdictions to ensure the image is used to bring to justice those who have committed international atrocity crimes. In some cases, particularly when an atrocity is brought to light that has not received international attention, eyeWitness may provide a copy of the footage to media to raise awareness of the situation and advocate for investigation.

The development of apps such as this one may revolutionize the investigation of international atrocities.  They provide potentially very crucial streams of evidence, and facilitate “citizen policing.”   In the domestic context, there are analogies to a police accountability app released by the ACLU last week.

This app is a significant development in the field of atrocity investigations for the many “citizen journalists” willing to risk injury, arrest and maybe even death to document crimes.  Yet it still raises some important questions.  Traditional investigative authorities, for example, are subject to investigation protocols that are intended to yield highly probative evidence.   Given the unstable situation in Syria, Ukraine, Iraq the DRC (where the IBA hopes the app will be used) and the limited jurisdiction of international courts, traditional authorities have not been able to perform their role of documenting and investigating ongoing atrocities. Nonetheless, the absence of trained professionals and the lack of protocols, means that certain safeguards will not be available.

In addition, if lawyers tried to to gain access to the stored material, there may be battles over rights of confidentiality.   Indeed, given the massive amount of evidence apps like this could produce, this may be no small challenge for Lexis Nexis.

Although eyewitness does not commission any particular investigations, this technology is linked, in  a broader sense, to the work of private organizations like the Commission for Justice and Accountability (CIJA), which has conducted independent investigations in conflict situations, often before staff from international criminal tribunals are on the ground.   This article by Mark Kersten in the Washington Post lays out the pros and cons.   On the one hand, privately funded investigations may speed up the investigation of international crimes, and ensure that crucial evidence is not lost.   The individuals who work for these organizations also have a self-described higher risk tolerance than public bodies. On the other hand, impartiality and chain of evidence are key concerns: prosecutors fear the evidence collected by these organizations may not stand up in courts of law.

The development of this technology, and the parallel trend towards privately funded investigations, suggests that a profound change in the way international crimes are investigated is underway.

 

Thank You, An Hertogen

by Chris Borgen

In March 2012 An Hertogen and Jessica Dorsey joined Opinio Juris as our first two Assistant Editors. Over the years, both have contributed immensely to Opinio Juris. Today, we bid An farewell as she enters a new phase in her career.

You may be most familiar with An’s work writing our Weekly Round-Ups and well as the Events and Announcements posts. But that was only the most public part of a great deal of work she has put into the site, including organizing symposia, proofing and editing submissions, and troubleshooting technical issues. An and Jessica were also the team that began our (now yearly) “Emerging Voices” symposium, highlighting the work of early career academics and practitioners (the next iteration of which will begin next month).

In short, An has been a great colleague and we will miss her. We are, however, excited about what is next for her: An has recently accepted a position as a lecturer at the University of Auckland Faculty of Law and she has also been awarded a research grant for a multi-year project on good neighborliness in international law. We hope that once she gets settled into her teaching schedule, An will guest blog with us.

On behalf of all of us, An, thank you for all your diligent work and the long hours that you have put into Opinio Juris. We wish you the best and we look forward to working together again soon.

Guest Post: International Criminal Justice and Reconciliation: Beyond the Retributive vs. Restorative Divide (Part 2 of 2)

by Carsten Stahn

[Carsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director of the Grotius Centre for International Studies.This two-part post is based on a talk given at the seminar on Reconciliation v. Accountability: Balancing Interests of Peace and Justice, organized by the Centre for International Law Research and Policy on 29 May 2015 at the Peace Palace. Part 1 can be found here.]

2. International Criminal Justice and Reconciliation: Improving Connections

It is easy to criticize international criminal justice for its shortcomings. A hard question is: How can the connection between international criminal justice be improved?

Existing studies have expressed doubts to what extent international criminal trials have promoted a ‘thicker’ conception of individual, inter-group or inter-societal reconciliation, at least in the short or medium term. International trials have limited the space for denial of atrocities and created a public space and reference point to confront history, which is one pre-requisite for societal transformation. In past years, international courts have sought to address their limitations through greater investment in restorative features (i.e., victim participation, compensatory justice), complementarity strategies, and education and outreach (e.g., legacy). But improvements might start with a closer look at retributive practices and procedures.

2.1.Reconciliatory potential of retributive justice

There is, first of all, a need to reduce practices that undermine the reconciliatory potential of retributive justice.

(I) Judicial Management

One of the most basic lessons is that  criminal courts and tribunals need to complete trials and produce a judicial outcome, in order to have a transformative effect. In existing practice, criticism has focused on the divisive nature of acquittals or dissents. Such judgments may indeed confirm existing societal tensions. But they are not necessarily detrimental to longer-term processes of reconciliation. They represent a legitimate outcome and contribute to the process of truth-finding. More critical are flaws in the justice process as such, i.e., unfinished or derailed proceedings. At the international level, there are number of critical examples over the past decade, including Milošević, Lubanga, or most recently Kenyatta. In a national context, the Rios Montt trial was affected by dilatory tactics and intimidation. Such examples undermine the demonstration effect of justice, and the faith in law and institutions that is necessary for meaningful engagement with the ‘other’.

The prospect of the trial to contribute to reconciliation depends on its acceptance and perception as a common forum. Each trial necessarily involves a certain degree of theatre and drama. International trials can easily turn into show trials, and struggle to confront ideology fueled criminality. These challenges need to be addressed. Judicial proceedings need to provide space to challenge pre-determined attitudes and biases or the heroization of agents, in order to maintain their perception as shared fora. This requires active, and sometimes better judicial management of proceedings, deeper engagement with conflicting visions of history and causes of criminality, and space to highlight and challenge contradictions in ideology-tainted discourse.

(ii) Plea agreements

From a reconciliatory perspective, it seems tempting to encourage plea agreements in proceedings. But this inclination is deceptive. In the early ICTY practice, guilty pleas were used as a means of reconciling punishment with acknowledgment of wrong or apology. Experience has shown that such admissions of guilt cannot be taken at face value. For instance, Mrs Plavsic’s guilty plea in 2003 was initially heralded as a significant move towards the advancement of reconciliation. After sentencing, she retracted her guilty plea and expression of remorse. This experience highlights the fragility of negotiated justice.  If an apology is offered in return for sentence leniency, it might not necessarily benefit reconciliation, and call it into question the genuineness of remorse.

In the ICC context, risks of bargaining are curtailed by greater judicial power, and structural attention to the interests of victims (Art. 65 (4) ICC Statute) But at the Court, similar concerns have arisen in the context of the apology of Katanga. Katanga’s remorse was offered after the sentencing judgment, and before the decision on appeal. It caused resentment among victims, since it was perceived as a tradeoff for the discontinuance of the appeal.

2.2. Justice Approaches

International criminal justice may contribute to break divides, if it makes best use of the constructive tension between retributive and restorative approaches.

(i) Constituency and locality  

A fundamental element is the approach towards constituency and locality. Justice, and in particular, justice in the Hague, must be a two- way street. International proceedings are not merely abstract processes, geared at the interests of the parties or fictive community interests; they require a close nexus  context, and the interests of affected communities and victims. It is this inclusiveness, which connects international criminal justice to processes of reconciliation. In current practice, interaction with the ‘domestic’ or ‘local’ is often characterized by outsourcing, transfer of cases or one-directional communication (e.g., ‘outreach’). The conditions of this relationship, and its transformation over time (e.g., after closure of cases) require further structural attention. Holding local hearings (e.g., Ntaganda) may facilitate visibility and access to victims, and foster the perception that ‘justice is seen to be done’. But it is not in itself sufficient to facilitate a structural dialogue locally.

(ii) Challenging‘friend/enemy’ clusters

Many trials suffer from the reproduction of binaries, and are perceived as obstacles to reconciliation, if they remain entrenched in ‘friend/enemy’ clusters, or associate crime or victimhood across pre-configured collective identities (e.g., ethnic lines). International criminal justice may reduce these frictions, if it pays attention to rights and wrongs of  all sides of the conflict, as mandated by the principle of objectivity (Art. 54 ICC Statute). A positive contribution to reconciliation also requires better engagement with dilemmas of selectivity, and justification of choices (e.g., selection of situations, cases, defendants). Typically, most attention is focused on action. But from a perspective of reconciliation, inaction requires equal attention. It is, in particular, important to communicate that inaction does not entail an endorsement of violations.

(iii) Contradictorial v. adversarial proceedings

International criminal courts have experimented with different types of procedures. Experiences suggest that inquisitorial features may be more closely aligned with rationales of reconciliation. Accusatorial models tend to treat parties to proceedings as adversaries. This structure consolidates binaries, and produces clear winners and losers. This methodology fuels a certain hostility, and stands in tension to a more exploratory mode of inquiry. As noted by Albin Eser, this contradiction could be mitigated, if procedures were construed as ‘contradictorial’, rather than ‘adversarial’, i.e. focused on ‘elucidating the truth by way of  contradiction, including confrontation’ and ‘(controversial) dialogue’ in ‘a spirit of cooperation’, rather than hostile contest. Steps like these would facilitate empathy and potential re-humanization of perpetrators and victims. One of the implicit purposes of these trials is to give back to the victims some of the humanity that they have lost.

(iv) Fact-finding

A last procedural point relates to fact-finding and quality of evidence. Existing practice continues to rely heavily on oral testimony. Testimonial evidence is fragile and limited by epistemic challenges, since it linked to assessments of trustworthiness. This is shown by many examples, internationally and nationally. Some of these vulnerabilities might be limited by creative uses of information technology, and better translation of ‘big data’ into analysis or evidence. International courts and tribunals (e.g., ICC, STL) serve as important pioneers in this field.

2.3. Treatments of Actors

Finally, prospects of reconciliation are closely linked to the experiences of parties and participants in the justice process. Individuals share and digest experiences through narratives. Criminal proceedings may contribute to this process, if parties and participants have the impression that they are listened to.

Some of the most direct transformative effects may occur through the experience of testimony, i.e., the contact and exposure of witnesses or victims to a professional justice environment. Existing practice provides positive and negative examples. Existing experiences might be improved through greater care for witnesses before and after testimony, and better management of victim participation in proceedings, including information, representation  and processes of inclusion and exclusion. Greater caution is required in the use and labeling of victims. Judicial proceedings tend to produce imageries (e.g., vulnerability) and abstract categorizations of victimhood that may have disempowering effects on victims.

One innovative development at the international level is the ICC’s approach towards reparation. It combines retributive and restorative features. It establishes a direct form of  accountability of the convicted person towards victims, which differs from classical models of victim-offender mediation. Accountability is grounded in the obligation to repair harm, but linked to the punitive dimensions of ICC justice (e.g., conviction, sentence). Jurisprudence has made it clear that establishment of accountability towards victims through reparation proceedings is an asset per se that can provide a greater sense of justice to victims, even in cases where the defendant is indigent. Examples like these illustrate some of the strengths and possibilities of international criminal justice.

 3. Not a conclusion

In the future, as in the past, it will remain difficult to demonstrate empirically whether and how international criminal justice contributes positively to reconciliation. This debate is likely to continue. It might be interesting to turn the question around: Would one be better off without international criminal justice? If the question is framed in the negative, the ‘benefit of the doubt’ might gain greater weight.

At least three insights can be drawn now. First, reconciliation is not, and should not necessarily be treated as a primary goal of international criminal justice. The criminal trial is at best one intermediate factor in such a process. Second, the contribution to reconciliation cannot be assessed exclusively through the lens of restorative justice. Some important impulses result from the positive tension between retributive and restorative justice. Third, some of the strengths of international criminal justice lie in its expressivist features and, its ability to serve as experiment for national experiences. These experiences require further translation and/or transformation in a national or local context, rather than mere replication.

The Supreme Court Endorses the Power of the President to Defy Congress in Foreign Affairs

by Julian Ku

I generally read the U.S. Constitution to grant broad powers to the President in the conduct of foreign affairs (see here for my recent take on Presidential war powers), but I am more hesitant to read the Constitution to prohibit congressional override of executive acts.  That is why I disagree with Peter’s implication above that today’s U.S.Supreme Court decision in Zivotofsky in any way cuts back on presidential power in foreign affairs.  I also disagree with Deborah’s characterization of the opinion as “narrow.” To me, it is actually a remarkable endorsement (by justices not named Clarence Thomas) of the President’s power to act in defiance of an express congressional mandate.

Which is a roundabout way of explaining my surprise that the Supreme Court upheld the President’s decision to defy and ignore an express congressional mandate requiring him to allow individuals to list “Jerusalem, Israel” as the place of birth on their passports. I don’t doubt that the President gets to decide whether the U.S. will recognize whether Jerusalem is “in” Israel, but I am a bit surprised to see that majority endorse the power of the President to ignore an express congressional mandate, especially when the majority doesn’t even make clear that the “recognition” power is being affected by a passport listing.

To put in constitutional law-nerd terms, Justice Jackson’s classic concurring opinion in Youngstown Sheet & Tube listed three categories of presidential power: expressly authorized by Congress, not authorized by not prohibited by Congress, and expressly prohibited or mandated by Congress.  This last category, which Jackson described as where the president’s power is at his “lowest ebb,” has never been applied by the Supreme Court before today.  Indeed, many commentators in the context of the commander in chief power have suggested such exclusive powers don’t really exist (see my musings here on this point in the context of the commander in chief power).  Justice Thomas was out on his own island in Hamdi v. Rumsfeld, for instance, but he was relying on a very similar structural argument to the one the Court introduced today.

I think that the President’s recognition power is probably exclusive, but that what constitutes the “recognition” should be interpreted quite narrowly.  That is why I joined Eugene Kontorovich’s amicus brief arguing that a passport designation is not part of the recognition power.  Indeed, if it IS part of the recognition power, the government of China is going to have a pretty good complaint about laws that allow the designation of “Taiwan” on passports. So the Court may have inadvertently created new diplomatic complications in its efforts to avoid other ones.

In any event, the Court could have chosen the “judicially modest” way out. It could have interpreted the relevant statute narrowly to avoid touching on the “recognition” power.  Instead, it reached out to announce judicial endorsement of an exclusive presidential power, and invalidated a law passed by Congress and signed by the President.  I am glad to welcome Justices Ginsburg, Breyer, Sotomayor, Kagan, and Kennedy to the “exclusive presidential power” bandwagon.  Justice Thomas was getting lonely, so I suppose he will be glad to have the company.

 

Notes on Zivotofsky

by Deborah Pearlstein

A fascinating ruling from the U.S. Supreme Court this morning in Zivotofsky v. Kerry, the case presenting the question whether Congress can mandate that U.S. citizens born (to American parents) in Jerusalem may have Israel listed on their passports as their place of birth. Since 1948, every U.S. president has carefully avoided opining in any context on the status of Jerusalem as falling within Israeli or any other nation’s sovereignty. The U.S. State Department has thus always issued passports listing “Jerusalem,” and not Israel as the place of birth for citizens born there. In 2002, Congress enacted a law mandating that citizens so desiring could have “Israel” listed as their place of birth. President Bush, then Obama, objected, arguing that such a law infringed on the President’s power to recognize foreign sovereign governments – a power both administrations maintained is held exclusively by the executive. The case marks the first time the Court has ever recognized a ‘preclusive’ power of the executive branch – that is, a power the President not only holds under the Constitution, but holds even if Congress enacts a law otherwise.

Two brief initial notes as I continue to digest. First, the majority’s opinion is workmanlike and narrow. The Court applies the well known framework for analyzing questions of executive power established in Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer, relies on a host of earlier Court opinions, and concludes that the Reception Clause (the Article II provision giving the President the power to receive ambassadors) necessarily “encompasses the authority to acknowledge, in a formal sense, the legitimacy of other states and governments, including their territorial bounds.” The Court’s opinion – which transcends typical political divisions (Justice Thomas joins (in part) the majority of Justices Kennedy, Breyer, Ginsburg, Sotomayor, and Kagan) – expressly disclaims any reliance on Article II’s Vesting Clause, the broad and undefined vesting in the President of “the executive power.” A holding based on that clause would have had potentially much more significant implications; the Vesting Clause has been regularly invoked by those advocating the most capacious understandings of executive power as a catch-all provision for affording the President sweeping powers in national security and foreign affairs. This decision offers no support for that theory.

Second, the majority’s opinion sensibly relies repeatedly on the nature and practice of recognition at international law as informing the framers’ understanding of the import of affording the President the power to receive ambassadors. As the Court puts it on one of several occasions: “[I]nternational scholars [citing Grotius and Vattel] suggested that receiving an ambassador was tantamount to recognizing the sovereignty of the sending state.” This is and should be seen as yet another unremarkable example of reliance by the Court on international law in understanding the scope of contemporary executive power under the U.S. Constitution. Not even Thomas in concurrence (much) protests. Whether the Supreme Court’s relative comfort with such analysis trickles down to the lower courts as questions of executive power arise in other contexts – the D.C. Circuit, among others, remains chronically allergic to international law in any form – will be among the more interesting consequences of this otherwise limited ruling to watch.