Say What, Mittens?

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

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

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

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

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

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

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.”

 

Book Review: All the Missing Souls

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…

In Which I Learn Something New: Immunities Edition

While reading the Sudan Tribune the other day (what, you don’t read it?) I came across the  statement, attributed to Sudan’s Justice Minister Mohamed Bushara Dousa, that “25% of people in Sudan have some form of immunity.”

This sounded beyond crazy, but Amanda and I did some asking around and discovered that, in fact, widespread immunity from criminal prosecution is a serious human rights issue in Sudan. While 25% of the population might be an overstatement, it appears that most government officials, including the entire security sector, enjoy functional immunity (also known as “act immunity”), which protects them from prosecution for crimes committed in the course of their official duties. This means that victims of torture by members of the police or armed forces have no legal recourse.

Obviously, this bums me out hard, but it also makes me wonder whether this is a common problem worldwide that I’ve somehow missed. So, internets, learn me a thing: Do these sorts of broad immunities exist in your countries / regions of expertise?

 

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