Category Archives: International Law

WTF Friday, 5/24/13

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This week’s entry is a rare WTF inspired by awesomeness: The Onion’s “9 Photos Of Jennifer Lawrence That Will Make You Reassess The Scope Of The 1986 Vienna Convention On The Law Of Treaties Between States And International Organizations.”

What’s the connection between Oscar-winning actress Jennifer Lawrence and an obscure, not-even-in-force, multilateral treaty? Unclear. Who on The Onion staff is even aware of the VCLTIO, and why? Also unclear. Why do they refer to the ICJ’s 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons as an advisory “paper”? Mystifying. And what’s their problem with Article 66, anyway?

We may never know.

Data! Beautiful Data!

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Jumping on the international justice blogger bandwagon, I concur with Mark and KJH that you should all go read Daniel McLaughlin’s new report for the Leitner Center: “International Criminal Tribunals: A Visual Overview.”

If you’ve ever wondered “how much money in reparations has been paid out to atrocity victims worldwide” or “how many ICTR indictees are still at large” or “can the Special Tribunal for Lebanon conduct trials in absentia,” then this is the resource for you.

It’s also the resource for me, combining my love of brightly colored charts and international criminal law. For instance:

Seriously, go check it out.

Clearing Up Some Confusion on UN Immunity and the Haitian Cholera Claims

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A number of news outlets are reporting that the UN has “invoked immunity” in response to claims for compensation from Haitian victims of a cholera epidemic that was probably introduced by Nepalese members of the MINUSTAH peacekeeping mission.

That’s not quite what happened.

The UN didn’t invoke its immunity, because it didn’t have to. The claims for compensation were not an effort to file suit in the courts of Haiti, or any other nation from whose jurisdiction the UN is immune. Rather, they were an attempt by NGOs representing Haitian victims, recognizing the UN’s immunity to lawsuits, to file a claim with the UN itself.

Let’s start from the top:

The UN has immunity from legal process under the 1946 Convention on the Privileges and Immunities of the United Nations. This means that UN officials and “experts on mission for the United Nations” (which is how peacekeepers are classified) are protected from any legal claims or charges arising out of actions performed in their official capacity.**

However, Article 29 of that Convention provides an avenue for the resolution of some disputes that courts cannot reach because of the UN’s immunity. It states that: “The United Nations shall make provisions for appropriate modes of settlement of disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party.”

In keeping with this obligation, MINUSTAH’s Status of Forces agreement with the Haitian government provided for the establishment of a three person “standing claims commission” to hear civil claims arising out of actions of MINUSTAH, or its members, outside of the Haitian courts’ jurisdiction. This never happened. (And in fact, it appears that the creation of such a commission has never happened anywhere.)

Due to the nonexistence of the standing claims commission, the victims submitted their petition to MINUSTAH’s claims unit and directly to UN HQ. The UN Office of Legal Affairs took fifteen months to review it, and responded by letter yesterday. Its position is that the cholera claims are not the sort of “dispute[] of a private law character” envisioned by Art. 29 of the Convention, but rather involve questions of public law and policy. Well worth the wait, huh?

As Kristen Boon points out over at Opinio Juris: “The upshot of this communication is that the claimants have no venue to pursue their case.” There is no right of appeal for the UN’s denial of compensation, and any attempt to bring a case in Haitian courts (which victims representatives have signaled they will pursue) will be met with an immediate invocation of immunity. -In which case, we can all look forward to some recycled headlines.

 

**This isn’t relevant for the cholera claims, but the Status of Forces agreements that the UN signs with countries where peacekeeping operations deploy include additional language stating that military personnel “shall be subject to the exclusive jurisdiction of their respective participating States in respect of any criminal offences.” This means that even when peacekeepers commit crimes in no way related to their official duties (like, for instance, raping Congolese children), they can’t be prosecuted by the host country.

 

Say What, Mittens?

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In last night’s foreign policy (where “foreign policy” now includes wrangling about U.S. standardized test scores) debate, Republican candidate Mitt Romney said something weird about Iran.

Actually, he said a number of weird things about Iran, including claiming (and not for the first time!) that Syria is Iran’s “route to the sea.” But for my money, the strangest thing he said was:

“I’d make sure that Ahmadinejad is indicted under the Genocide Convention. His words amount to genocide incitation. I would indict him for it.”

He’s said this one before as well, and I’ve wondered what he could possible mean by it. Well, last night, TPM asked Romney senior adviser Eric Fehrnstrom to clarify, and my confusion only increased.

Apparently, the Romney campaign is under the impression that the “World Court” could arrest Ahmadinejad for allegedly saying that Israel should be “wiped off the map.” Here are some problems with that plan:

  1. The “World Court” is the International Court of Justice. It has no criminal jurisdiction, and therefore cannot indict or arrest anyone.
  2. The Genocide Convention is a treaty among states (including the U.S. and Iran) that says that the parties to the treaty must prevent and punish genocide crimes. It does establish that incitement to genocide is a crime under international law, but it is not a criminal statute under which individuals can be indicted.
  3. If Romney and his advisors perhaps meant to invoke the International Criminal Court, rather than the ICJ, well, that’s a problem too. Although incitement to genocide IS a crime under the Rome Statute, the U.S. isn’t a party to the ICC, which means it can’t refer cases to the Prosecutor. 
  4. Romney is advised on foreign policy by John Bolton, who famously described the U.S.’s decision to pull out of the ICC as “[t]he happiest moment of [his] government service”, so it seems unlikely that a Romney administration would mean an about-face for U.S. policy on the ICC.
  5. Even if the U.S. did join, the ICC can only prosecute cases in which either the crime is committed on the territory of a state party, or the perpetrator is a national of a state party. (Unless the Security Council gets involved, but that’s not a possibility here.) Iran has not joined the ICC.
So I’m still stumped. The only (barely) legally plausible option here is to bring a case against Iran in the ICJ for violating its treaty obligations under the Genocide Convention. But the persistent use of the word “indictment” by both Romney and his surrogates suggests that isn’t what he’s got in mind. Anyone understand what’s going on here?

 

 

Live (Not Really) from the ECCC

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As I’ve mentioned previously, I spent a bunch of last month hanging out at the Extraordinary Chambers of the Courts of Cambodia, observing Case 002, the trial of Nuon Chea, Ieng Sary, and Khieu Samphan for Khmer Rouge atrocities.

It’s an interesting experience sitting in the audience, watching a mass atrocity trial while surrounded by the victims of that atrocity. I ended up being about as absorbed by the interaction between the security personnel and the Khmer Rouge victims in the public gallery than by the actual proceedings in the courtroom.  (Also, in the three years since I stopped actively practicing law, I’d sort of forgotten just how dull court can be, no matter how interesting the subject matter of the trial.)

Setting aside (as much as I can), the substantive legal issues under discussion, here’s a brief sample of the experience watching the proceedings:

July 20, 2012
9:02am: The Trial Chamber explains that the Prosecution will wrap up its examination of expert witness David Chandler (author of a number of books on Cambodian history) this morning before turning things over to counsel for the Civil Parties.

9:07am: Security guard tells me I can’t sit with my legs crossed. Ookay. Feet on the floor, eyes straight ahead.

9:22am: I decide “Revolutionary Flag” would be a really awesome band name.

9:44am: Security guard makes victims stop leaning on the backs of the seats in front of them, sit up straight.

9:47am: I decide “The Three Ghosts” would be an even more awesome band name.

10:28am: The expert witness complements S-21 prison head Duch’s “wonderful” handwriting.

10:35: The Trial Chamber breaks for coffee.

10:53: Proceedings resume.

10:57am: I take the desk out of the seat arm in order to put my notebook on it, 3 security guards panic, hover suspiciously over me as I write.

11:02am: National defense counsel for Ieng Sary objects to the witness’s reference to an S-21 confession, argues that this is torture-tainted evidence that cannot be used under international law. I am confused, as the intention of the prohibition is surely not to protect torturers from having evidence of their torture presented. (More on this later.) It turns out it doesn’t matter, because the reference is actually to a letter written prior to interrogation anyway. Yeesh.

11:15am: Counsel for the Civil Parties begin their questions.

11:27: Security guard yells at two victims for sleeping, makes them sit up. I’m an actual international lawyer writing a dissertation on international criminal tribunals and I can barely stay focused. I can’t imagine how bored these Cambodians from the provinces are…

12:03: International counsel for Nuon Chea states that his client is suffering from a headache, back pain, and a lack of concentration, and will not be returning to the courtroom for the afternoon’s proceedings. (This happens every day, and every day I think “Me too, dude. Me too.”)

12:15pm: Trial Chamber breaks for lunch.

1:32pm: Proceedings resume.

2:13pm: Counsel for the Civil Parties asks the witness whether there are any historical events comparable in scale to the April 1975 forced evacuation of Phnom Penh. The witness responds that there’s nothing similarly severe in recorded history, but he “can’t speak for the Mongols.” That seems like good sense. We should never try to speak for the Mongols.

2:20pm: Security guard tells victim to sit with his legs closer together. Man, these guys have highly specific leg position requirements.

2:28pm: A very confusing digression about the Milgram experiments occurs. Everyone is perplexed, especially the national defense counsel for Ieng Sary who, unsurprisingly, can’t place the name “Milgram.”

2:37pm: Security guard scolds victim for putting his arm up on the back of the chair next to him. Apparently arm position is also important.

2:44pm: Trial Chamber breaks for coffee. I am suffering from a headache, back pain, and lack of concentration, and decide to go home.

Note: If you’re interested in the latest developments in Case 002, the transcripts are up on the ECCC’s website.

All Hail the Iron God

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I’ve spent several days over the last couple of weeks observing the proceedings at the Extraordinary Chambers in the Courts of Cambodia (otherwise known as the Khmer Rouge Tribunal). It’s been an interesting experience, which I will get around to blogging next week, but so far, nothing has happened to rival Pol Pot’s nephew Saloth Ban’s testimony in April that “the Iron God told [him] that this Court is unjust.”

Said Iron God, speaking to him in a dream, also suggested that while testifying, he should not answer any questions that made him unhappy. Unsurprisingly, the President of the Trial Chamber, Cambodian judge Nil Nonn, was not impressed with the god’s advice, and instructed the witness to get on with his testimony.

Apparently, Saloth Ban was referring to Lok Ta Dambong Dek, a.k.a. “the Lord of the Iron Staff,” whose statue (pictured at right) stands in a spirit house outside of the courtroom. Before testifying, Buddhist witnesses swear their oath to answer truthfully in front of it.

You could see how the oath might give a person nightmares. It’s terrifying. In the U.S., witnesses swear “to tell the truth, the whole truth and nothing but the truth.” By contrast, Cambodian witnesses appearing before the Khmer Rouge Tribunal must swear the following:

I will answer only the truth, in accordance with what I have personally seen, heard, know, and remember. If I answer falsely on any issue, may all the guardian angels, forest guardians and powerful sacred spirits destroy me, may my material possessions be destroyed, and may I die a miserable and violent death. But, if I answer truthfully, may the sacred spirits assist me in having abundant material possession and living in peace and happiness along with my family and relatives forever, in all my reincarnations.

I’m told this is actually a watered down version of the oath witnesses take in the domestic courts here. Yikes.

Recommended Reading on the Khmer Rouge Tribunal

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Stéphanie Giry has an interesting post about the Khmer Rouge Tribunal up at the NY Review of Books blog. I’m in Phnom Penh at the moment, spending my time watching the Tribunal’s proceedings and harassing the people who work there, so I’ll have plenty to add on the subject soon, but if you’re looking for a good sum-up of the situation, go read Giry’s piece.

In outlining the political challenges (both domestic and international) to the effective delivery of justice for Khmer Rouge crimes, Giry raises a number of troubling issues that apply to international justice efforts more widely. The existence of “few degrees of separation between the crimes of yesterday and the leaders of today” describes any number of post-atrocity societies, constraining prosecutorial choices and incentivizing political interference. Similarly, in the presence of incentives to interfere, corruption issues around an accountability process are always a possibility.

However, it is Giry’s description of the role of the UN and donor governments that I find most disturbing in its potential broad applicability. She characterizes the international actors participating in the Tribunal’s work as “eager to present themselves as guardians of international justice for as small a political price as possible.” Unfortunately, this sentiment echoes a number of conversations I’ve had with people here over the last two and a half weeks.

The hybrid tribunal model (in which a domestic government and international actors work together to create and staff a court) is intended to supplement the capacity of local judicial institutions to a degree sufficient to produce justice that meets international standards. But if the international partners can’t be bothered to object when these standards are violated, what’s the point?

 

New Piece at The Atlantic

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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:

  • Reuters’ bizarre quote from outgoing ICC prosecutor Luis Moreno-Ocampo that “the Zintan authorities claim they have the right to investigate the case against the ICC pair,” but ”It’s not what we would expect from the court…from the defense.” Really, dude? How about “they have full immunity from investigation, detention, and prosecution, so this is categorically unacceptable and they must be released immediately.” Couldn’t he have started at FIFA last week?
  • The fact that you can bet LMO would have given an unambiguous statement of support for any Office of the Prosecutor or Registry staff members in similar circumstances. Defense counsel have always had a bit of a struggle at the international tribunals (enthusiasm for international justice is limited to prosecuting the architects of mass atrocity, not so much defending them); should we take the absence of international outcry regarding Taylor et al.’s detention as one more indication of their second class status?
  • Traditionally, a large part of immunity’s force within international law has been based on reciprocity; states respect foreign officials’ immunity because they didn’t want to put their own diplomats at risk. That dynamic isn’t present for international institutions, which “take” more immunity than they “give.” The ICC is a particularly strong example of this, given that it asserts the right to try heads of state and other officials who would otherwise be immune. Does the Court’s inability to reciprocate make its claim to immunity for its staff members less compelling?
  • Unlike domestic courts, the ICC can’t try crimes that have been committed against itself. In light of recent events, that seems like a serious weakness.

Thoughts?

Statehood 101

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Big news, guys: The National Movement for the Liberation of Azawad (MNLA) just declared independence from Mali.

If you’ve been following events in Mali recently, you know that the coup on March 21st was carried out by soldiers unhappy with the way President Amadou Touré’s government was handling the MNLA insurgency. The coup was a huge disappointment for fans of democracy, because Mali was a frequently cited rare success story of democratic consolidation in the region. (Although maybe it shouldn’t have come as such a surprise.)

With the military distracted with coup-ing, the MNLA has taken the opportunity to advance south and capture territory. Today’s declaration of independence follows the accomplishment of their territorial goals within Mali and notes that the “Independent State of Azawad” will respect the borders of neighboring states.

That’s not enough to get neighboring states to agree to respect Azawad’s borders in turn, though. Under international law (specifically, the 1933 Montevideo Convention on the Rights and Duties of States), qualifying for statehood requires four things: (1) a permanent population; (2) a defined territory; (3) a government; and (4) the capacity to enter into relations with the other states.

Although the Convention specifies that once a political entity meets these four criteria, they should be recognized by the international community as a state, in practice, this isn’t really how it works. Somaliland, for instance, declared its independence from Somalia in 1992, but remains unrecognized despite a permanent population, clearly demarcated territorial boundaries, a functioning multi-party democracy, and extensive diplomatic contacts with other states. The reality is that recognition doesn’t follow satisfaction of the criteria for statehood; it is one of the criteria for statehood.

So this is bad news for the aspiring state of Azawad. The early responses have rejected the declaration of independence, and, given the commitment of African governments to border stability, this is unlikely to change. Meanwhile, the MNLA may face another challenge to their control of Azawad from al Qaeda-supported Islamist rebels Ansar Dine. Stay tuned…

*Map from Political Geography Now

Hot International Justice Action

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Now that the Kony 2012 furor has died down a bit, we can get back to the fun stuff: international law!

Here’s what’s gone on while we were all busy being self-righteous on the internet:

  • The ICC handed down its first-ever verdict in the Lubanga case. If you’re wondering why it took 10 years, take a look at the >600-page judgment, reflect on the fact that this was a comparatively simple prosecution (a single accused, only one war crime charged), and start wondering instead how many decades it will take them to get through the next trial.
  • Mauritania arrested former Libyan intelligence chief Abdullah al-Senussi, who is the subject of an ICC warrant for his role in crimes against humanity committed during the 2011 Libyan civil war. The ICC’s not the only court that wants him, though. Both Libya and France (which would like to try him for his role in an airplane bombing that killed 54 French nationals in 1989) have also requested his extradition. Step aside Kony, there’s a new contender for “World’s Most Eligible War Criminal.”