OMG, WTF, ICC Part II: Kevin Heller Responds

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

OMG, WTF ICC?

So this one really threw us for a loop.

TIME claims to have obtained an internal ICC memo showing that the Court is “compiling evidence of possible recent war crimes in southern Sudan, allegedly directed by Sudanese Defense Minister Abdelrahim Mohamed Hussein.” Apparently, in addition to the Prosecutor’s request for a warrant for Hussein in connection with attacks on civilians in Darfur, “the ICC is separately building a case that Hussein may be behind the killing of civilians over the past year in Kordofan, Nuba Mountains, Blue Nile state and South Sudan.”

Internets, help us figure out what’s going on here. How can the ICC be investigating these events?

To review: There are three paths to an ICC case. The first is a referral of a situation by an involved state. The second is Security Council authorization. The third is that the Office of the Prosecutor can initiate its own investigation, but only into alleged events either (1) occurring on the territory of a state that’s accepted the ICC’s jurisdiction, or (2) perpetrated by a national of a state that’s accepted the ICC’s jurisdiction.

Sudan is not a member of the ICC, and President al-Bashir is not exactly besties with Moreno-Ocampo, so we think it’s unlikely Khartoum referred this situation to the Prosecutor.  The newly independent South Sudan has not signed up to the ICC yet, so they probably didn’t do it either. (Although there is a mechanism through which a non-signatory state can accept jurisdiction of the court over specific crimes occurring on its territory. In the case of South Sudan, this would likely only be possible for crimes occuring since July 9, 2011, when they assumed sovereign authority.)

The Security Council didn’t refer these events to the ICC either. While Security Council resolution 1593 expressly requested that the ICC take up the issue of Darfur, that referral was limited to events taking place in Darfur since 2002.  None of the new areas supposedly included in the memo are located in Darfur.  So, no jurisdiction there.

And as far as we can tell, the Prosecutor should also have been estopped from initiating his own investigation because of Sudan’s and South Sudan’s non-membership.

So, uh, what gives?  Did the TIME reporter get an Enough Project report and mistakenly conclude it was an internal ICC memo?  Or is there some other reason why the ICC, a court of limited jurisdiction and limited resources, would be spending the latter on an investigation that is clearly outside of the former?

Help us, Kevin Jon Heller, you’re our only hope!

Fun with Complementarity

There is SO MUCH international criminal law news right now, you guys. Case 002 opened at the Khmer Rouge Tribunal (more on that later), Bangladesh began a trial for atrocities committed during its independence fight, and George W. Bush and Tony Blair were found guilty of war crimes by a “Let’s Play Make Believe” tribunal in Malaysia.

But the biggest story is that Saif al-Islam Gaddafi and Abdullah al-Senussi, both the subject of ICC warrants on crimes against humanity charges, were captured in Libya this weekend. The Libyan authorities have expressed a very strong desire to try Saif themselves and a reluctance to hand him over to the ICC, so ICC Chief Prosecutor Luis Moreno-Ocampo headed down to Libya yesterday to talk things out.

As far as I can tell, it was at that point that every news media outlet in the world began misreporting the story. So, uh, note to Al Jazeera, The Guardian, MSNBC, Voice of America, and the rest of y’all: Moreno-Ocampo most certainly did not agree that the Libyans will try Saif. You know how I know this, despite my lack of a foreign correspondent on the ground in Tripoli? It’s because the Chief Prosecutor does not have the power to make that decision.

The new Libyan government is well within its rights to challenge the ICC’s jurisdiction if it wants to prosecute the crimes against humanity charges itself. And there’s a good chance they’d prevail on the challenge, given that the ICC’s jurisdiction is complementary, not universal. (This means that the court can only try cases where the relevant domestic judicial system is either “unwilling” or “unable” to prosecute.) However, the assessment of whether Libya is “able” to prosecute rests with the Pre-Trial Chamber of the ICC, not with the state itself, or with the Chief Prosecutor.

This particularly legal issue hasn’t been explored before* so the Libyan case will be an exciting (maybe just for me) opportunity to establish exactly how the ICC will handle inquiries into the ability of states to try mass atrocity cases. Specifically: Will the Pre-Trial Chamber defer to state preferences and call off ICC proceedings when states show a genuine desire to conduct trials themselves, or will it conduct an extensive analysis of judicial capacity?

I suspect the bizarre reports we’re getting that the ICC has “ruled” that the Libyans can try Saif stem from the fact that the Prosecutor has opted for the former course,** and will support Libya’s efforts to try the case. We’ll see whether the judges do likewise…

*Note: The ICC did slap down a challenge to its jurisdiction from Kenya earlier this year, but it was on the grounds that the Kenyan government wasn’t conducting an investigation or prosecution on charges similar to those in the ICC case, not that it didn’t have the capacity to do so.

**Possibly in recognition of the fact that if Libya flat out refuses to hand Saif over, there’s not much the ICC can do…

The Gaddafi Warrant

And… I’m back! Married, honeymooned, de-jet-lagged, etc. And just in time, because Pre-Trial Chamber I of the International Criminal Court issued an arrest warrant today for Libyan leader Muammar Gaddafi. It was accompanied by warrants for Gaddafi’s son, Saif al-Islam Gaddafi, and brother-in-law, Abdullah al-Senussi. All three are charged with crimes against humanity for the murder and persecution of Libyan nationals between February 15th and 28th, 2011.

The issuance of these warrants reflects the judges’ belief that there are reasonable grounds for concluding that (1) violations rising to the level of crimes against humanity occurred during the crackdown against Libyan civilians, and (2) the three men are criminally responsible for these violations.

A couple of interesting things here:

First, Gaddafi’s responsibility is alleged on the grounds that he has “absolute control over the Libyan State apparatus” and Sennusi’s based on his status as the head of Military Intelligence. Gaddafi’s son, however, is not a member of the Libyan government. The judges note that Saif al-Islam Gaddafi, “although not having an official position, is Muammar Gaddafi’s unspoken successor and the most influential person within his inner circle.” They therefore conclude that he “exercised control over crucial parts of the State apparatus, including finances and logistics and had the powers of a de facto Prime Minister.” This makes good sense, given what we know of Saif’s role in the crackdown. But if the case ever goes to trial, we should expect an exciting battle over the facts necessary to establish his de facto control.

Second, no mention is made in these warrants of the alleged Viagra-fueled mass rapes raised by Prosecutor Moreno-Ocampo last month. The absence of charges in the warrants doesn’t mean mass rape didn’t occur. It may, as the Prosecutor indicated, simply mean that further investigation is needed. However, according to the Christian Science Monitor, Amnesty International researchers attempting to find support for this claim “have found no evidence to back it whatsoever.” Pfizer must be so relieved…

What’s My Line?

CNN reports today that ICC Chief Prosecutor Luis Moreno-Ocampo is investigating the possibility that the Gaddafi regime is pursuing a policy of institutionalized rape against the Libyan rebels.  In the interview, Moreno-Ocampo cites disturbing reports that security forces are using male sexual enhancement drugs to enable the commission of rape.

In a quote sure to add Pfizer to the Chief Prosecutor’s ever-lengthening List O’ Nemeses, he observes: “Viagra is a tool of massive rape.”

Obviously, this is horrifying.  But it is also quite clearly the set-up for the funniest joke ever, if only I knew what it was.  I’m a little distracted at the moment (T minus 11 until wedding day, etc. etc.), so perhaps you guys can lend a hand.


Today in Things That Aren’t True

An article in today’s New York Times suggests that efforts to find an exit for Colonel Gaddafi are “complicated by the likelihood that he would be indicted by the International Criminal Court in the Hague for the bombing of Pan Am 103 in 1988, and atrocities inside Libya.”

This is pretty epically incorrect.

Gaddafi may well face charges at the ICC for his regime’s violent response to the protests that sparked the current civil war, but he will most certainly not be charged for the bombing of Pan Am 103.  The ICC has jurisdiction only over events that occurred after the entry into force of the treaty establishing the court (the Rome Statute), which took place on July 1, 2002.  The 1988 Lockerbie bombing is decidedly not subject to the court’s jurisdiction.

Any atrocities committed by Gaddafi in Libya between July 1, 2002 and the current crisis are also unlikely to be the subject of an ICC warrant.  Libya is not a signatory of the Rome Statute and has therefore not accepted the ICC’s jurisdiction over crimes committed on its territory.  Consequently, the only way for regime crimes to be tried at the ICC is if the Security Council refers them to the court. Security Council resolution 1970 did just that, but it explicitly limited the scope of the referral to “the situation in the Libyan Arab Jamahiriya since 15 February 2011.”

So, five demerits for you, New York Times.

WTF Friday, 7/16/2010

  • I would have to imagine that many people’s perception of child soldiers will change after this NYT article. It reports on the U.S.-funded Somali government’s use of child soldiers. This is telling: “When asked how the American government could guarantee that American money was not being used to arm children, one of the officials said, ‘I don’t have a good answer for that.’” Also I have to give a wtf to Obama for his response to questioning regarding America’s place alongside Somalia as the only countries not to have ratified the Convention on the Rights of the Child: “It is embarrassing to find ourselves in the company of Somalia, a lawless land.” That’s just rude, really.
  • Following the World Cup, there have been rumors of the possibility of a return of xenophobic violence in South Africa. And even if there hadn’t been, Jacob Zuma would scare everyone about it anyway: “Let us isolate all elements who may have sinister agendas, who may want to create havoc and sow pain and destruction in communities.” What a wordsmith, right?
  • Bashir’s finally got the trifecta! The ICC earlier this week added a warrant for genocide to go along with a previous warrant of war crimes and crimes against humanity. Hope he thanks his mom in his acceptance speech. This is also the ICC’s first warrant for genocide, so congrats to them, too. According to Elise Keppler, senior counsel with the International Justice Program at Human Rights Watch, “President al-Bashir’s stonewalling on the initial ICC warrant against him appears only more outrageous now that he’s also being sought for genocide” Really? That’s what appears outrageous? Not the fact that a second warrant was issued after the first one was followed only by Bashir “kicking out nearly half of Darfur’s humanitarian aid providers?” Ok whatever you say…

  • And finally, FP reports on Beijing’s lock-down policy for migrants. A banner reads, “Closing up the village benefits everyone.” Really? Everyone? Guess I’ll just have to continue with this trusting mood today…

Only 8 Shopping Days Left Until International Justice Day!

Just a friendly reminder that International Justice Day is fast approaching. If you haven’t yet purchased a gift for that special ICC prosecutor in your life, well, time to get cracking.

Here are some suggestions:

  1. A Bashir-catching net.
  2. A sparkly headband for keeping the hair off his face while gazing pensively into the middle distance at Scheveningen beach. (It’s hard to think deep thoughts about international justice in all that wind without proper headgear. Trust me, I’ve tried.)
  3. A cocktail set for preparing rapetinis, official drink of “giving a voice to rape victims.”
  4. This t-shirt:

Happy shopping!

*Hattip to everyone in my department who sent me the link to that shirt. Thanks guys!

Insert ‘Justice League’ Joke Here

UN Secretary General Ban Ki-Moon and Ugandan President Yoweri Museveni played a friendly game of soccer in Kampala today to “highlight the work of the International Criminal Court.” (The ICC is currently the subject of a major review conference meeting in Uganda’s capital city.)

Am I the only one who thinks naming the teams “Dignity” and “Justice” was a huge missed opportunity to compete “Peace” vs. “Justice” and settle the issue once and for all?

Update: AFP seems to have blocked the embedded link, but you can watch it here: http://www.youtube.com/watch?v=TUweOt0Hlyo

Things That Annoy Me, 8/20/09 Edition

Today my “war crimes” Google News Alert coughed up this gem from the New York Daily News: “Stop the world court from hauling Israelis off to the Hague” by Jay Sekulow and Brett Joshpe.

My first thought was “Wow, Jay and Brett, you have clearly fallen victim to the same sort of irresponsible headline writers that got Jeffrey Gettleman in so much trouble a few weeks back.”

After all, surely anyone contributing a guest column on the topic of the International Criminal Court to a newspaper with over 600,000 daily readers would know that (1) the ICC is not the “World Court” and (2) that it is famously incapable of hauling anyone anywhere (see, e.g., Omar al-Bashir).

Sadly for Jay and Brett’s reputations, however, it turns out an ill-informed headline writer was not at fault. Midway through the piece, they opine: “Before long, the International Criminal Court could very well drag Israelis into The Hague and put them on trial for defending themselves from terrorists.”

Let’s review, shall we? The ICC has an Office of the Prosecutor; a Registry; a Presidency; Pre-Trial, Trial, and Appellate divisions; and some space down at the Scheveningen cellblock. You know what it doesn’t have? A “dragging people into The Hague” unit.

So, even if the current controversy regarding ICC jurisdiction over alleged war crimes in Gaza gets resolved in favor of allowing a prosecution, the Court would rely on State Parties to enforce its warrant. Israel is not a State Party to the Rome Statute and would therefore have no obligation to hand over its commanders. (Although it’s worth noting that if there is clear evidence of war crimes, Israel could preempt an ICC prosecution by holding its own trial.)

Of course, there’s always the possibility of an accused getting picked up while traveling abroad, but somehow I doubt that the U.S. government is going to look too favorably on any of its allies or aid recipients handing over Israeli military commanders for prosecution. And it shouldn’t be too difficult for said commanders to avoid beach holidays in the countries that are not susceptible to such pressure. So really, short of getting tangled up in the wheel spokes of a Dutch person’s bicycle and being unable to extricate themselves prior to arrival within city limits, the likelihood of anyone getting “dragged into The Hague” is pretty minimal.

So there.

*Photo of ICC exterior from wikimedia.