by

December 8, 2014

As we all await the release of the executive summary of the Senate Select Committee on Intelligence’s report on CIA torture, I’d like to offer a brief interlude to consider international justice efforts, with a focus on Africa. Last week was an important one for international justice—a story of some good, some bad, and some ugly.

Democratic Republic of Congo

First, the good news. The Appeals Chamber of the International Criminal Court affirmed the verdict and the 14-year sentence of Thomas Lubanga Dyilo for the war crime of conscripting and using children in armed conflict (see here for background). The opinion, while a noteworthy accomplishment, marks an imperfect end to the first substantive case to proceed before the Court. Procedural irregularities involving the disclosure obligations of the Office of the Prosecutor (OTP) brought the case to the edge of dismissal several times. Furthermore, the OTP was criticized for not pursuing more expansive charges against Lubanga given his notoriety in the conflict in Ituri, Democratic Republic of Congo. Most controversially, the OTP declined to seek to amend the indictment to include charges of sexual violence committed against girl soldiers. At trial, multiple witnesses testified to being the victim of sexual violence; although this evidence ultimately did not support any counts in the charge sheet, it did inform the Court’s important reparations analysis.

In any case, Lubanga was convicted in March 2012, and last week, the Chamber rejected all his grounds for appeal. President Song (South Korea) partially dissented on the grounds that conscripting, enlisting, and using child soldiers constitutes one crime, rather than three. Judge Ušacka (Latvia) dissented more vociferously, reasoning that the evidence was insufficient to convict beyond a reasonable doubt, including with respect to the pivotal issue of the age of the victims. (A detailed summary of the judgment and dissents is available here).

Burundi

Another development bodes well for the instantiation of legalism on the continent. The East African Court of Justice (EACJ), one of several increasingly influential regional bodies, ruled recently that Burundi had violated the Treaty for the Establishment of the East African Community, as well as its own Constitution, when it blocked a prominent opposition party from holding a meeting. The Treaty sets forth a number of “fundamental principles,” including the imperative that its 5 state parties pursue good governance, democracy, the rule of law, and the protection of human and people’s rights in the region. The Court, which was established to promote a common market and resolve trade disputes, has become, in effect, a human rights court; this evolution inspired an excellent paper delivered by Professor James Gathii at the ASIL Mid-Year meeting this year.

The most recent ruling offers further evidence of the ability of human rights advocates to creatively invoke available fora to advance human rights claims and the willingness of judges to entertain these claims even in the absence of a specific grant of jurisdiction. Although Burundi has experienced a long history of sectarian violence stoked by political elites intent on consolidating their own power, it has never gone the way of Rwanda in terms full-scale inter-ethnic violence between its Hutu and Tutsi communities. Nonetheless, an increasingly tense political environment has observers concerned about the prospects for violence during the next general elections, which are scheduled for summer 2015.

Kenya

Although not a surprise, the ICC OTP announced that it would withdraw its case against Kenyan President Uhuru Kenyatta. The prosecutor had asked for an indefinite adjournment until Kenya complied with its cooperation obligations under the Rome Statute (as I discuss here); the Trial Chamber had essentially given the Prosecutor a week to either withdraw the charges against Kenyatta or proceed to trial. At the same time, and inexplicably, the Chamber rejected a Prosecution request for a finding of non-cooperation against Kenya and a referral of the matter to the Assembly of States Parties notwithstanding that the Chamber confirmed that Kenya had not approached its cooperation obligations in “good faith.” The Chamber determined that the non-cooperation issue should have been raised earlier, even though it has confounded the proceedings since their inception—a point raised repeatedly by the Prosecutor in her submissions over the years.

Not surprisingly, Kenyatta was triumphant following the announcement and slammed the OTP for “victimizing” him and for “failing the victims” of the 2007-8 post-election violence (PEV). The irony of this last claim is pungent, given that the Government of Kenya has done virtually nothing on accountability or reparations with respect to the PEV or its victims, notwithstanding a cogent and detailed set of recommendations for action from its own Truth, Justice & Reconciliation Commission. In his statement, Kenyatta also thanked the African Union for demonstrating “robust and unflinching support by word and deed, in the true spirit of African brotherhood.”

The decision to withdraw the charges was made without prejudice to the possibility of bringing a new case should the evidence materialize. Although these provisions have never been tested, a quick read of the Statute suggests that double jeopardy has not yet attached; the relevant provision of the Statute (Article 20(1)) implies that the defendant would have no right to invoke double jeopardy prior to his conviction or acquittal:

No person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.

This provision is consistent with the International Covenant on Civil & Political Rights, which states at Article 14(7):

No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

Under U.S. law, double jeopardy usually attaches at a much earlier stage: when the jury is sworn or, in a bench trial, when the first witness is sworn or evidence introduced.

The AU-ICC Relationship

It remains to be seen whether the withdrawal of the charges against Kenyatta will diffuse the occasionally tense relationship between the African Union (and its members) and the International Criminal Court. A collaboration between Stanford Law School’s Allen Weiner and the American Bar Association’s ICC Project, led by Kip Hale, has generated a new discussion forum devoted to this issue. It contains submissions by

As this forum reveals, any discussion of the complex and evolving relationship between the African Union (AU) and the International Criminal Court (ICC) must bear in mind that, like any multilateral organization, the AU is heterogeneous, as are its member states. Positions advanced by elites in diplomatic settings may not be shared by officials, members of civil society, or the common citizen in the domestic context. The ambivalent attitude articulated by some AU members toward the ICC stems from a convergence of principled arguments and more cynical concerns, including fears of neo-imperialism, a commitment to pan-Africanism and to finding African solutions to African problems, reasonable reservations about the efficacy and judgment of certain elements within the ICC, pressure from powerful African states, and a self-interested fealty to principles of foreign official immunity.

While there is a sound basis for each and every case in the Court’s docket to go forward, and many situations are before the Court at the request of the situation country itself, the exclusive focus on crimes in Africa while extreme violence unfolds around the globe does lend credence to concerns about selective justice. These extra-legal and political concerns obviously should not influence the Prosecutor in her choice of situations or cases; she has to follow the evidence and adhere to the terms of the Statute. That said, it is no doubt true that opening an investigation into a non-African situation would do much to diffuse the ICC-AU relationship, if only to eliminate the spurious argument that the ICC is “targeting” Africa.

Afghanistan

In other developments outside of Africa, as Ryan Goodman discussed, the Office of the Prosecutor is continuing its preliminary examination into the Afghanistan situation, which includes allegations against U.S. forces. The examination is at the phase at which complementarity and gravity are under consideration. As Kevin Jon Heller explains here, the gravity inquiry involves the entire Afghan situation (so-called “situational gravity”), rather than the gravity of any particular potential case. So, concluding the preliminary examination on gravity grounds alone is unlikely given the high levels of violence against civilians there by remnants of the Taliban and other violent non-state actors. The territorial nature of the ICC’s jurisdiction means that allegations against U.S. forces remain in the mix alongside other more serious incidents, as discussed by David Bosco. This threatens to strain the US-ICC relationship, as former Department of Defense official Ryan Vogel has noted. Vogel writes:

Pursuing a case against the United States also carries certain political risks with very little possibility of an actual successful prosecution of an American. The United States is not a party to the Rome Statute and has consistently asserted that the ICC does not have jurisdiction over U.S. territory or U.S. persons.  While the Prosecutor may disagree with this legal argument, she is unlikely to accomplish anything more than press releases if she continues to move toward an investigation of the United States.  As a practical matter, the United States would almost certainly never cooperate with the prosecution of Americans, and such cooperation may be precluded by the American Servicemembers’ Protection Act. … The Prosecutor risks irreparably harming the ICC’s important relationship with the United States, while accomplishing virtually nothing in return, aside from (hollowly) demonstrating that the ICC intends to take cases outside of Africa.

Georgia

In other non-African ICC news, Georgia last week submitted its instrument of ratification of the 2010 amendments to the Rome Statute on the crime of aggression. This brings the number of ratifications to 20 (30 are needed, plus a decision to be taken after January 2017, to bring the amendments into force).

Georgia has been the subject of a preliminary examination by the Office of the Prosecutor of the ICC since 2008 that is focused on the armed conflict in South Ossetia. The OTP has deemed that conflict to be “international” by virtue of Russia’s involvement and is examining potential crimes against humanity and war crimes. So far, the OTP has concluded that there is a

reasonable basis to believe that South Ossetian forces carried out a widespread and systematic attack against the ethnic Georgian civilian population in South Ossetia and adjacent areas in the context of the armed conflict in the period from August 2008 through October 2008 that amounted to the crime against humanity of forcible transfer of ethnic Georgians under article 7(1)(d). There is a reasonable basis to believe that these forces also committed war crimes of pillaging under 8(2)(b)(xvi) and/or article 8(2)(e)(v) and destroying civilian property belonging to ethnic Georgians under article 8(2)(a)(iv) and/or article 8(2)(e)(xii) in the same period.

The OTP has also been considering allegations that Georgian armed forces attacked the Russian Peacekeeping Battalion, although so far the evidence has been deemed “inconclusive.”

The OTP has stayed its hand to date because national proceedings are “ongoing” in both Georgia and the Russian Federation, although investigations in the former have apparently been hampered by the

 lack of access to South Ossetia and lack of mutual legal assistance with Russia.

Meanwhile, a Russian Federation Investigative Committee is examining alleged attacks on Russian citizens and peacekeepers by Georgian armed forces and by Russian servicemen. It is not examining crimes by South Ossetian forces.

Rumors are that Georgia may present the first non-African preliminary examination to develop into a full-scale investigation. As the OTP notes in its most recent Report on Preliminary Examinations:

Progress in these investigations appears limited, and more than six years after the end of the armed conflict, no alleged perpetrator has been prosecuted, nor has there been any decision not to prosecute the persons concerned as a result of these investigations. The Office will therefore analyse the updated information received on national proceedings in order to reach a decision in the near future on whether to seek authorization from the Pre-Trial Chamber to open an investigation of the situation in Georgia pursuant to article 15(3) of the Statute.

Assembly of States Parties

The ICC’s Assembly of States Parties is meeting for the next two weeks in New York (its 13th session). A number of items are on the agenda, including the election of six judges, consideration of the budget, progress reports by the trust Fund for Victims and the Committee on Budget and Finance, and the presentation of substantive reports on such topics as arrest strategies and potential amendments to the Statute. The latter include the Kenyan proposal (discussed in greater detail here) to amend Article 27 on immunity to require the Court to “pause” proceedings against heads of state while they are in office and Article 63 on trial in the presence of the accused—proposals potentially mooted by the withdrawal of the Kenyatta charges. Other proposed amendments involve

  • tinkering with the war crimes provision on prohibited weapons (Argentina et al.),
  • including the use of nuclear weapons as a war crime (Mexico),
  • adding international drug trafficking to the Court’s jurisdiction (Trinidad & Tobago and Belize),
  • empowering the General Assembly to defer action before the Court under Article 16 in the event that the Security Council does not respond to a request from a state with jurisdiction to do so (South Africa), and
  • allowing the assertion of a regional criminal court to trigger complementarity (Kenya).

The issue of state cooperation (or the lack thereof) will be a special thematic topic of consideration, with an emphasis on sexual and gender-based violence. Stay tuned for additional coverage of the ASP gathering.

Upcoming Events

An event on international justice will take place in observance of Human Rights Day, entitled:

Promoting Accountability for Human Rights Violations – Forging Effective and Efficient Litigation of International Atrocity Crimes

It will be held December 10, 2014, at ONE UN New York, One United Nations Plaza, New York City; 6 – 7:30 PM, followed by a networking reception.  It is hosted by the International Criminal Justice Consortium and The Kingdom of the Netherlands. The line-up for the event is as follows:

  • Keynote – Litigation in International Jurisdictions: Honorable Judge Sang-Hyun SONG (Republic of Korea), the President of the C
  • Litigation in hybrid International-Domestic Jurisdictions: Honorable Judge Patricia Whalen (USA)
  • Litigation within a Regional Framework/Across Multiple Borders:  Matevz Pezdirc (Slovenia) Head of EU Genocide Network Secretariat, Eurojust
  • Litigation within Domestic Jurisdictions: Brahmy Poologasingham (Sri Lanka) Eastern Congo Initiative 

According to the organizers:

The event will focus on the critical importance of international criminal justice to the larger human rights movement, including the prevention of mass human rights abuses through accountability. To best deter future mass human rights abuses and provide an important measure of justice to victims of such horrific crimes, it is critical that the international criminal justice system is as swift and effective as it can possibly be. If cases are too long, too distant, or too ineffectual, they are too readily dismissed by affected communities as well as by the perpetrators of such atrocities. This event will focus on the different, but overlapping challenges faced by domestic and international practitioners in the investigation, prosecution and adjudication of genocide, crimes against humanity, and war crimes. In discussing these topics, the presenters would touch upon the unique hurdles in each jurisdiction, the proven practices they have used in confronting these hurdles, and the best ways that States and the international civil society can best support their work.

This event will address both the effectiveness and efficiency of work by the ICC as an institution and complementarity proceedings by discussing items that bind the two together: the practical legal work necessary to do these cases well, and the similar as well as different types of support each needs.

RSVP – was-jbz@minbuza.nl

Filed under:

, , , , ,