Did you guys know this was happening?
In case you’re wondering: Yes, it is a new TV show about, um, ICC cops (because that’s totally a thing), and yes, there will be a drinking game. See you this summer.
H/T to the incomparable Vanessa Parra.
While I was off making my semi-annual offering to the gods of poorly-attended-panel-presentations, the political science blogosphere got interested in the ICC.
Taking on the ecstatic reaction to Bosco Ntaganda’s unexpected surrender last month, Fearon wonders whether this is truly a “victory for justice.” He identifies two possible reasons we might actually see perverse effects whereby the operation of the ICC could actually lead to increased human rights violations. The first is the classic argument espoused by Team Peace in the Peace vs. Justice debate: If you’re an atrocity committing potential ICC indictee, the possibility of facing accountability provides a profound disincentive against laying down your arms.
The second is what Fearon refers to as a liability limiting mechanism. He suggests that, all else equal, your ICC-indicted atrocity committer is in a better position than your unindicted atrocity committer, because if things start to go south, the former always has the option of an all expenses paid trip to The Hague.
This is an interesting argument, and one whose implications are worth teasing out. There are a couple of ways that The-Hague-as-escape-route could result in an increase in violations. We can think of them as mirror images to “general” and “specific” deterrence claims. (Note: This is the distinction between deterring potential future offenders vs. deterring future offenses by the individual being punished.)
First, in an exact reversal of arguments about the ICC’s possible “general deterrent” effect, the existence of the ICC might encourage potential perpetrators who wouldn’t otherwise commit atrocities to do so. In order for this to follow, some class of potential perpetrator would have to be interested in committing atrocities, but deterred by the risk of being killed in retaliation. These potential perpetrators would also have to be aware of the ICC and reasonably able to predict what will attract its attention, such that they could commit atrocities in a manner well-targeted to producing protective ICC warrants. This may be logically plausible for some marginal cases, but it seems practically improbable for many of the same reasons that a strong general deterrent effect is unlikely: ICC intervention is never certain, and is heavily constrained by both resource and political considerations.
The more likely scenario, and the one that I think Fearon likely has in mind, is something I’ve worried about for a while. For those specific perpetrators who have already attracted the attention of the ICC, the issuance of a warrant may operate as a license to kill. Once you know that you have the escape route to The Hague in place, whatever restraint was provided by the risk of suffering politically (including, but not limited to, retaliatory killing) for your actions will vanish. This raises the possibility that rather than producing specific deterrence, the ICC could in fact be producing the opposite (specific anti-deterrence?).
I agree with Fearon that the prospects for the ICC to directly deter the commission of mass atrocities are dim. However, this does not mean that the ICC cannot contribute to reducing the occurrence of these crimes through other mechanisms. For more on this, check out two other responses to Fearon’s post: Erik Voeten’s, suggesting that the ICC may encourage domestic level enforcement that will ultimately have the capacity to deter, especially in “countries where ‘mid-level’ human rights abuses occur,” and Heger, Aloyo, & Dutton’s, discussing their findings that ICC membership is correlated with significantly less torture.
Happy New Year, internets.
In case you’re nostalgic for 2012 already (The royal wedding! Unseasonably warm temparatures! RomneyBot3000!), good news: The podcast for the Congo in Harlem “Kony 2012: Lessons for the Congo” panel that Amanda and I participated in is now available:
Each panelist focused his or her remarks on a different aspect of the Kony 2012 campaign and subsequent kerfuffle. I chose to highlight Invisible Children’s emphasis on ICC prosecution for Joseph Kony as the ultimate goal of their advocacy, and explained why I found this strategy an awkward fit for the LRA crisis.
A point I had hoped to discuss further, but didn’t have time for, is that Kony 2012 demonstrates some of the problems that can arise when complex political situations are treated as problems for criminal justice to solve.
The idea behind the existence of the International Criminal Court is a laudable commitment not to allow criminal behavior that is also political behavior to go unpunished; to have a legal mechanism that will punish those guilty of mass atrocities that is to some extent insulated from the operation of politics. But this insulation comes at a price: Once the legal mechanism gets going, you can’t reintroduce politics, even if it might produce better peace and justice outcomes. Consequently, Uganda was not able to offer the suspension of the ICC warrants during peace negotiations with the LRA.
A number of critics (me included) have made the point that Invisible Children’s approach takes a long-standing political crisis, and reduces it to the criminality of one man. And the reaction from those who feel this criticism is unfair has been: “Why do we care? This guy has committed egregious crimes, does it really matter if we’re over-simplifying the conflict as long as he’s punished?” But it does matter, because when you choose legal solutions you are foreclosing political options.
Being aware of this tradeoff is particularly important with regard to Congo, where we see a similar move being made with the conflict minerals campaign, which tells us that the violence in the Kivus is the consequence of individual greed and criminality, not complicated political dynamics. And it’s clear why this narrative is appealing– a lot of confusing complexity washes out, and law enforcement solutions are a comparatively simple policy ask. But if the story that conflict mineral activists are telling isn’t correct, then law enforcement solutions will not address the root causes of the violence.
All of which leads me to wonder: The international criminal justice system was set up to deal with the political that is also criminal – to ensure that human rights abusers don’t get away with murder because they happen to occupy positions of political power. But is it equally well-suited to dealing with the criminal that is also political?
OSJI’s Eric Witte describes the verdict as a “worrying signal about the quality of ICC prosecutions,” while human rights groups suggest that the court has failed to provide justice to Congolese victims of war crimes and crimes against humanity.
These reactions are undoubtedly valid, but there’s a silver lining.
Courts have to do two things to establish their legitimacy. They must show that they can enforce accountability for unlawful behavior, and they must demonstrate their allegiance to the legal process rather than politics. That second criterion is a particular challenge for the International Criminal Court, a relatively new legal institution operating in a highly politicized context.
Yesterday’s acquittal shows that, although the ICC faces tremendous pressure to deliver convictions, it will not operate merely as a stamp on public consensus about a defendant’s guilt. If the prosecution failed to prove the charges against Ngudjolo beyond a reasonable doubt, then it is an important and positive development for international justice that the Trial Chamber declined to convict him.
Yes, the UN General Assembly’s approval of “non-member observer state” status for Palestine is big news. No, it does not mean that Israeli leaders should be keeping an eye out for ICC investigators.
Palestine’s new status as a sorta-kinda-maybe-state does mean that it can now join the ICC. But, as Mark Goldberg points out, if Palestine tries again to refer the situation to the court, it will be up to Chief Prosecutor Fatou Bensouda first to decide whether to open an investigation, and then whether to issue charges. At either stage, she might decide that the evidence doesn’t support proceeding, or that pursuing a case is not “in the interests of justice” (Rome Statute, Art. 53). That last one gives her broad discretion to decline to proceed, which could be useful cover if, say, she felt that it was not a real swell idea for a young institution in a politically precarious position to piss off the superpower by going after one of its most important allies. You know, hypothetically.
Additionally, the Prosecutor might conclude that she is blocked by Israeli court proceedings covering actions in Palestine (Rome Statute, Art. 19). The ICC’s jurisdiction is complementary, which means it is only empowered to hear cases that the relevant state judicial system(s) are “unwilling or unable” to prosecute. Unlike many of the states who make up the ICC’s current caseload, Israel has a competent and active judiciary that has heard numerous cases arising out of policy towards the Occupied Territories. Determining that past judicial precedent suggests an “unwillingness” to prosecute would require a complicated and messy analysis that ICC is ill-equipped to undertake.
Finally, even if the Prosecutor were willing to proceed, it is not clear what events would be eligible. The ICC’s potential temporal jurisdiction over a state’s territory starts from the day the Rome Statute entered into force for that state. For many states, that’s the day of the court’s birth, July 1, 2002, but for those states that signed the treaty after the court started its work, it’s later.
So if Palestine joined the ICC tomorrow, a straightforward interpretation of the court’s jurisdictional provisions would say that the ICC could only prosecute crimes that take place starting from December 2012. There’s a possible Hail Mary argument invoking the Eichmann precedent that new states have retroactive jurisdiction over crimes against their citizens, but there’s no reason to think that this could be passed on to the ICC. The court only inherits its members’ jurisdiction over crimes committed by their citizens, or on their territory, not crimes committed against their citizens. And extending the ICC’s jurisdiction over Palestine back in time would effectively strip Israel of jurisdiction over a portion of its territory during a time in which it was the uncontested (with regard to formal institutions) sovereign. Additionally, the fact that Palestine’s “stateness” is likely to remain a bit of an open question makes any kind of retroactivity more of a stretch.
[Late-breaking news: Kevin Jon Heller has a new post up at Opinio Juris expounding a very different view. He cites Côte D'Ivoire's April 18, 2003 acceptance of the ICC's jurisdiction back to July 1, 2002 as evidence that states can give the court retroactive jurisdiction. I don't agree that this is relevant precedent; Côte D'Ivoire was the territorial sovereign throughout the entire period, so its retroactive acceptance of jurisdiction raises none of the issues posed by a new state.]
We have a piece up at The Atlantic today!
It’s about the four ICC staff members who have been detained by the Zintani militia in Libya, and why this is a super-duper-big-deal-for-serious-we-mean-it for the court. (We don’t want to spoil anything, but it’s possible that the phrase “Black Hawk Down” gets used.)
In short, the violation of the staff’s diplomatic immunity complicates an already tense interaction between Libya and the ICC, and potentially undermines the court’s ability to work in unstable contexts.
Some important issues raised by this crisis that we didn’t have space to discuss in the article:
Ntaganda’s continued freedom, and prominent position as a general in the Congolese national army (FARDC), has been a thorn in the side of international justice advocates who want him to face trial on a 2006 ICC warrant. -Particularly for ICC Prosecutor Luis Moreno-Ocampo, who has repeatedly called on the Congolese government and/or MONUSCO to arrest Ntaganda and surrender him to the ICC. However, regional actors have been reluctant to act on these demands due to their belief that Ntaganda’s cooperation is crucial to ensuring (relative) stability in the Kivus.
A statement by Kabila that Ntaganda should stand trial is therefore big news. Events over the last couple of weeks have suggested that Ntaganda’s grip on power may be slipping. If regional powers (specifically, the Rwandan government) no longer think his cooperation is necessary for peace in the Kivus, then he may indeed be vulnerable to arrest. However, as Jason Stearns points out, it’s not clear what Kabila actually said. Although Western media are reporting it as a call for Ntaganda’s immediate capture, it may simply have been a statement that he “could be arrested by Congolese officials when the moment is right.”
Whether or not Ntaganda ends up in the dock, these developments have set off a new round of the perennial peace vs. justice debate. For advocates of justice, Ntaganda’s ability to live freely among the victims of CNDP atrocities is a clear case of unacceptable impunity. For those on the other side of the debate, his freedom is simply the price of preventing future atrocities.
A number of people, concerned about the risk of violence in the Kivus if Ntaganda gets nabbed, have asked what options the Prosecutor has for suspending the warrant. The answer is: none.
Unsurprisingly, the architecture of the international criminal law system skews heavily towards Team Justice in the peace vs. justice debate. Although the Rome Statue builds in some prosecutorial discretion regarding decisions about what cases to pursue – specifically, Article 53 allows the Prosecutor to decline to proceed with an investigation “there are substantial reasons to believe that an investigation would not serve the interests of justice” – once a warrant is issued the Prosecutor has no ability to defer to political considerations. There are, however, two other legal mechanisms that can delay or prevent an ICC prosecution once a warrant has been issued. (And, of course, the political mechanism of everybody just looking the other way and not arresting the guy.)
The first is the Article 16 Security Council deferral procedure, which can delay an ICC prosecution for renewable 1 year periods. The implication of situating this mechanism within the Council’s Chapter VII powers is that it applies only when a prosecution represents a threat to the peace.
The second is the preemption of ICC prosecution by a domestic trial, which I’ve explained previously. (This one actually underscores how little power the Prosecutor has to defer to politics after the issuance of warrants. In the case of Saif al-Gaddafi, we’ve seen Moreno-Ocampo support Libya’s new government’s efforts to preempt the ICC prosecution, only to get slapped down by the Pre-Trial Chamber.)
Either of these mechanisms could potentially be utilized in the Ntaganda case, however, it’s not clear that they would actually help with the peace vs. justice conundrum.
The Security Council deferral mechanism only delays the process; it doesn’t lift the warrant, so whatever incentives a looming threat of prosecution creates to retain the ability to spoil peace would persist. And preempting ICC jurisdiction through a domestic proceeding would require the Congolese authorities to try Ntaganda under conditions that meet international fair trial standards (i.e. no indefinite detention, no secretive military tribunal). Such a process is therefore likely to be at least as disruptive to the peace as an ICC prosecution.
Given the other choices on the table, the selection (so far) of the “let him wander around Goma, profiting off of everything in sight” option starts to look a bit more understandable…
This week in first world problems: “‘It’s not cheap like it used to be,’ laments Dale Weathington of Kolcraft, an American firm that uses contract manufacturers to make prams in southern China. Labour costs have surged by 20% a year for the past four years, he grumbles (emphasis mine).” This sounds like the curmudgeonest dude in history. Also I’m pretty sure he makes an imaginary product.
“Sixteen civilians [have] been killed in a shooting spree by a U.S. officer stationed in Afghanistan…The incident is the latest in a series of widely publicized self-inflicted setbacks for U.S. forces in recent months. In February, Qurans were mistakenly burned as garbage at a military base in Afghanistan, which led to deadly riots. In January, a video of U.S. forces urinating on Taliban corpses surfaced on the Internet.” Reaction from Newt Gingrich: “We’re not prepared to be ruthless enough.” Just so everybody has it straight, to Newt Gingrich, massacring civilians and pissing on corpses counts as not ruthless enough.
ICC celebrates its decennial with…a verdict!
I recently read David Scheffer’s All the Missing Souls: A Personal History of the War Crimes Tribunals. It’s a fascinating memoir of life as the U.S.’s first ever Ambassador for War Crimes Issues. I highly recommend it if you’re into either detailed negotiating histories of international institutions or snarky observations about UN bureaucrats and French people.
Scheffer’s discussion of the Rwandan genocide and the creation of the International Criminal Tribunal for Rwanda (ICTR) is particularly eye-opening, especially when compared to other former policymakers’ accounts of the same events. (Looking at you, Madeleine “it was complicated” Albright.) I suspect most readers will be drawn to the story of how the US and the UN bogged down in endless discussions of the meaning of the word “genocide” rather than reacting to the mass slaughter, but, being me, I found the blow-by-blow of the bargaining process between the new Rwandan regime and the international community over issues like the temporal jurisdiction of the ICTR and the possibility of the death penalty equally interesting. Not just because I love me some jurisdictional issues, but because when we talk about the impact of the tribunals, we’re generally comparing to the counterfactual of no accountability mechanism. Scheffer’s accounts of setting up the ad hoc tribunals, the hybrids, and the International Criminal Court (ICC) let us think about the courts we might have had instead.
Descending further into law-nerdery, in the section on the ICC, Scheffer advances a surprising interpretation of the applicability of the Rome Statute to nationals of non-party states. This is an issue Amanda and I touched on a couple of months ago with regard to the potential for an ICC investigation into recent attacks on civilians in Sudan, a non-party state. Scheffer suggests that Art. 11(2) and Art. 24 of the statute together preclude the jurisdiction over nationals of non-parties (except in the case of a Security Council referral) entirely.
For those who aren’t following along at home with a well-thumbed copy of the Rome Statute: Art. 11(2) says that if states join the court after the entry into force of the Rome Statute (on July 1, 2002), the court’s jurisdiction only reaches back to the date the state joined, and Art. 24 says that no person can be held responsible for crimes committed before the Statute’s entry into force. Reading these in combination, Scheffer argues that a blanket extension of the court’s jurisdiction to non-party nationals would pre-empt the effect of possible future ratifications. He explains that:
“[A] nonparty country … would have to accept the proposition that a future ratification of the Rome Statute would be meaningless because their nationals have been covered by the statute since July 1, 2002.”
Because this result would be absurd (although I actually think the more likely absurd result would be that a non-party state that commits an atrocity in 2012 would self-protectively ratify in 2013), Scheffer concludes that non-party state nationals must only be covered by the statute in cases where the state consents (under the Art. 12(3) special declaration procedure) or the Security Council refers the situation to the ICC.
I’m not sold on this interpretation. As Scheffer acknowledges, Art. 12 is clear that the court has jurisdiction over crimes when either the national state of the alleged perpetrators or the state where the alleged crimes occurred is a party to the Rome Statute. Scheffer’s reading would knock out the ability of a state party to request the ICC’s involvement in a case where a non-party state’s nationals commit atrocities on the state party’s territory, against their civilians. So, if Freedonia (a non-party state) sends raiding parties into neighboring Sylvania (a state party), and while there, Freedonia’s nationals commit mass rape against Sylvanian villagers, Sylvania couldn’t refer the case to the ICC. While I agree that this would make the court less controversial, especially for those non-party states that have widely deployed military forces (ahem, U.S.), it seems to me to be clearly against the intent of the statute, of which Art. 12 is an unambiguous expression.
Climbing back out of the law-nerdery pit, there’s also quite an interesting domestic politics angle here. The bits on the negotiation of the Rome Statute underscore both what a difficult job war crimes ambassadoring is, and how complicated the development of foreign policy can be in a democracy. Scheffer’s negotiating position at the talks was developed through coordination between the Departments of State, Justice, and Defense, each of which had different interests and concerns relating to the creation of an international court. Set against the backdrop of the Lewinsky scandal, with Jesse Helms in Congress vowing to torpedo the whole thing, the process of representing the Clinton administration’s position at Rome reads as a colossally discouraging experience.
On the every-cloud-has-a-silver-lining side of things, after several years in one of the world’s most frustrating jobs, minor irritations like this review by John Yoo probably barely register. But for those of us who make a career out of being annoyed, the scare quotes around “impunity” and “atrocity crimes,” coming from the man who gave us “Torture Memos” as a defined term, are not to be missed…
At the end of our post on the ICC’s apparent investigation of non-Darfur atrocities in Sudan, we asked our friend Obi-Wan Heller for help. Happily, he answered the call almost immediately:
“My best guess is — as they suggest — that the OTP has received assurances from the new South Sudanese government that it will either (1) ratify the Rome Statute and accept the Court’s jurisdiction retroactively, or (2) file a declaration under Article 12(3) of the Rome Statute accepting jurisdiction on an hoc basis over the crimes the OTP is investigating. Either way, the issue would be how far back in time South Sudan could accept the Court’s jurisdiction. Kate and Amanda suggest that the relevant date would be 9 July 2011, South Sudan’s chosen independence day. That makes sense, but the issue is murky — as it always is when it comes to state formation and recognition. So I can imagine two arguments for more expansive retroactive jurisdiction. To begin with, South Sudan could argue that, for purposes of acceptance of jurisdiction, the relevant date is 7 February 2011, when the results of the independence referendum were formally published by the referendum commission. That would be enough to justify the OTP’s investigation, because the Time article notes that the investigation is focusing on crimes committed in late May 2011.
A second argument, however, is much more interesting. South Sudan could invoke the Eichmann “precedent” and argue that a state should have the right to give the Court retroactive jurisdiction over any and all crimes committed against its citizens, even if the state did not formally exist at the time of their commission. Both the District Court of Jerusalem and the Israeli Supreme Court accepted a similar argument (involving domestic jurisdiction) with regard to Eichmann’s crimes against the Jews during World War II, which obviously predated Israel’s formal existence as a state. Would the Court buy an argument based on Eichmann? I have no idea — but I don’t think it’s frivolous.”
The Eichmann precedent is an interesting idea. I agree that it’s not frivolous – I’m not sure I’d call it a mainstream legal theory, but that’s partly because the formation of new states is a relatively rare occurrence, so it hasn’t had a chance to come up. And Kevin is right that it is a good fit in some ways for the situation at issue here – new country, pre-independence atrocities against its citizens, etc.
On the other hand, the jurisdictional issues of Eichmann were different from those at issue here, in some pretty important ways. As Kevin says, Eichmann can be read broadly to stand for the rule that a state doesn’t violate international law by exercising jurisdiction retroactively over crimes committed against its citizens before the state formally existed. However, that is passive personality jurisdiction (a fancy lawyer term for “jurisdiction over crimes in which your citizens were victims”), which the ICC pretty clearly doesn’t have.
Rather, the Court borrows its member states’ active personality jurisdiction (fancy lawyer for “jurisdiction over crimes committed by your nationals”), and territorial jurisdiction (just what it sounds like – jurisdiction over crimes committed within the state’s territory.) It seems to me that it’s particularly a stretch to make territorial jurisdiction retroactive, because, unlike other bases for jurisdiction, territory belongs to one state at a time. Until independence, South Sudan’s territory was part of Sudan, and under its territorial jurisdiction. If territorial jurisdiction were made retroactive here for the ICC’s purposes, would that also retroactively deprive Sudan of jurisdiction over that territory? Would Sudan and South Sudan be considered to have concurrently held jurisdiction over the territory during the pre-independence period? Either way, that is a much, much bigger can of worms than Eichmann was.
Moreover, in Eichmann, Israeli law expressly granted Israeli courts retroactive, extraterritorial jurisdiction over the Nazis’ crimes. The international law issues were about absence of law: the Israeli high court found that international law did not explicitly bar retroactive criminal statutes, or the criminalization of conduct taking place outside a state’s borders but affecting its citizens. This new Sudanese investigation strikes me as almost exactly the opposite situation. There is no explicitly retroactive law for the ICC to rely on here. And rather than just having to prove an absence of an international law prohibition, the Court would have to find that the case fits within the narrow category of the Court’s jurisdiction under the Rome Statute, which, for the reasons in the preceding paragraph, I’m doubtful it can do.
And, as Kate points out in her comment to Kevin’s post, even if the Court were to Eichmann this all the way home, that would still only cover crimes that took place on the territory of what is now South Sudan. Which means that the investigations into what happened in Kordofan, Blue Nile, and the Nuba Mountains would still require a Security Council resolution to go anywhere. Which brings us back to our original question…