The Dark Art of Trial Observation

So, this is a thing that happened: “UN observer at Gaddafi trial held on suspicion of ‘black magic’.”

Ahmed Ghanem is one of three trial monitors sent by the UN to observe the prosecution of former Gaddafi regime officials. He was briefly detained by judicial police, who claimed that he was carrying documents “indicating possible ‘sorcery’ or improper communications”.

Personally, if I were a relatively new regime trying to convince the world that I could run a country and do normal government stuff like holding criminal trials and recognizing immunity, I would maybe not arrest UN officials on insane, made up charges. But that’s just me.

 

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?

WTF Friday, 3/23/2012

Tell me this fool did not study marine navigation just so he could do this.

You know us folks at WR always get excited for a coup. Jk this is no good.

“Sirleaf came under fire after the Guardian published a video interview in which she is asked about decriminalising homosexuality and replies: ‘We like ourselves the way we are.'” I assume I’m not the only one who sees the irony of this statement.

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…

WTF Friday, 10/28/11

This is just all sorts of fucked up. Depressing that al-Shabab dressing up its own dead soldiers in AU uniforms, decapatating some of them, and displaying their bodies is the best case scenario here. Wow.
From Eric Margolis: “If Gaddafi was indeed behind the aircraft bombings, as most of the world believes, then he deserves not one bit of sympathy from us. If not, then we should at least acknowledge him for building modern Libya.” Right. So if he didn’t do these two bad things, we should forget all the other bad things, and, logically, give him credit for “building modern Libya.” Guess that’s the only available option. I wish I had met the guy like you so I could have figured all that out sooner. There are some other gems in here like “I still can’t figure out whether Gaddafi was really hearing voices that guided him, or just having adolescent fun scandalizing and frightening the world.” Again, I don’t really think those have to be the only options I get to pick from. You guys at home can parse through this drivel for some of the other astounding inconsistencies, but really, the point I would like to make is that you can oppose the foreign military intervention in Libya, criticize the NTC, and even recognize the good things Gaddafi did without resorting to a complete character revision of a fairly shitty dictator. Criminalizing homosexuality, executing political opponents, and suppressing freedom of speech are not actions of a man who was simply “eccentric,” “odd,” or least of all naive. They are actions of someone who was probably psychotic and definitely strategic in his efforts to remain in power and enrich himself and his family. I’m not gonna accuse you of forgetting that, Eric, just of pretending to. Also, for someone who knew him so well, you spelled his name wrong.

WTF Friday, 10/21/11

You guys blew it. Day of Gaddafi’s death was the perfect chance to push this through without anyone noticing.

“And Dutch Prime Minister Mark Rutte said he was ‘glad’ that Gaddafi had been captured.” Truly moving stuff.

The third comment down from “Atrawick” attempts to eviscerate an argument I’ve made and heard many times. Figure I could get some input from our readers?

WTF Friday, 10/14/11

“The third place winner is the retired General Prince Yormie Johnson with 13.5 per cent.” Biggest campaign mistake: not marrying someone named “Sirleaf.”

“Suddenly, Paloma finds herself involved in human trafficking and art theft in a thrilling new novel.” Boy, that does sound thrilling.

Props for highlighting the plight of Nigeriens and other black Africans in Libya at the moment in relation to detention, deportation, abuse, and execution. Further props for mentioning the remittance income lost to families of migrant workers. That said, let’s not pretend life under Gaddafi was/is rosy for migrants.

WTF Friday, 10/7/11

MSF leaves Thailand after negotiations to provide care to migrant workers and undocumented foreigners fails. It’s cool. They have a really awesome registration scheme.

“With Gaddafi and his sons gone, Al Alem is optimistic Libya’s new leaders, the National Transitional Council, will pay more attention to sport..” Dude, take it from me, that’s a slippery slope.

Oh, by the way this exists.

WTF Friday, 9/16/11

Dang I can get this classic on Amazon for $0.99 new, $0.27 used. A steal for a book on human rights co-authored by a guy who appeared in all three Ocean’s movies.

I do not have a good feeling about this.
Is this Reuters headline meant to be a pun? If so I’m conflicted between feelings of admiration and repulsion.

WTF Friday, 9/9/11 (Actually 9/10/11)

So the racially motivated attacks by the Libyan rebels have been (sort of) well reported, but this is troubling to say the least.

You really shouldn’t be surprised when you name a place “Christmas Island” and a bunch of kids show up.

New York Fashion Week cancels the show of Gulnara Karimova, daughter of Uzbek dictator, Islam Karimov, giving a HRW researcher the opportunity to point out that “Enslaving children and torturing dissidents is never chic.” Thank you for that one.