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

WTF Friday, 7/15/11

In non-coltan/Congo/rape related telephone news, South Sudan will have 211 as its international dialing code, which also happens to be police “hundred code” for robbery in the great state of California. (A tenuous connection, get it?).

Shout out to Thomas E. Ricks for shouting out the Karzai family restaurant in Baltimore (I’ve eaten there too!). Negative points for linking to this. The Wire + John Waters ≠ Baltimore, guys. I guess the Karzai family restaurant isn’t exactly a fantastic claim to fame, though…

Puns, cursing, and democracy. This one’s got it all!

It’s a… Country!

In 5 minutes (midnight, July 9th, local time in Juba), the newly independent South Sudan will join the family of nations.

So let’s all say a big hello and also refrain from involving them in any international conflicts for a bit (looking at you, not-South Sudan). And, in case you’re wondering what to buy your loved ones (or, say, your favorite atrocity humor bloggers) to celebrate South Sudan Day, may we recommend one of these:

WTF Friday, 7/8/11

This sounds inspiring as shit. “Described by the official announcer as ‘birds of peace and progress’, Russian-made military jets made a flypast, leaving in their wake trails of smoke in the red, yellow and blue of the Venezuelan flag.”

South Sudan officially becomes a new nation tomorrow. Various folks have weighed in on what they’ll need to be successful. How did you guys forget cigarettes!?

A mayoral candidate in Guatemala has been charged with the murder of two rivals and faking his own murder to allay suspicion. Someone did not pay attention in physics: “The candidate claimed he was saved by a bulletproof vest he was wearing. But an investigation of the vehicle showed that at least three bullets had entered the driver’s seat, meaning that if Marroquin was there, they would have gone through him and his vest”

WTF Friday 6/24/11

Thanks to Nathan Yaffe of the Haiti Justice Alliance for this submission about a foolish and harmful USAID agricultural program in Haiti. “Monsanto’s seeds are treated with extremely dangerous chemicals…Because of this, Monsanto and Chemonics have a moral responsibility to educate farmers about health precautions. Yet they not only failed to do so, they even distributed seeds in unmarked bags – thus endangering people and the environment without their knowledge.” Good looking out, a-holes.

Sarah Palin bailed on her planned Sudan trip with Franklin Graham. Here’s what Franklin had to say: “She would be a very good person to help draw attention to the plight of the Christians in South Sudan,” Graham told The Post. “We’ve got George Clooney, we’ve got some Hollywood-type people. I’m very grateful for what Mr. Clooney has done. But we need everybody we can find.” That is everybody you can find? Well apparently he only found Christians with a plight in South Sudan so maybe this guy needs some LASEK.

In honor of the acquittal of Geert Wilder in his hate speech trial, here are some of his greatest hits!

Unwarranted Advice That South Sudan Should Probably Ignore

A few days ago, David Leonhardt interviewed Esther Duflo and Abhijit Banerjee about their new book, and asked them what advice they would give the new government of South Sudan if they had only a few minutes to speak to them. Duflo’s suggestions were quite general:

First of all, I would try to convince them that a key priority would be to invest enough money and talent in running good quality social services for the poor, including free access to good schools, preventive medical care, and hospitals. [...]

Second, I think I would try to convince them to run anti-poverty policy in a more intelligent way than what we see in most countries. [...] [T]hey will still have a lot more to learn about the best ways to achieve their objectives. So I would like to advise them to always keep some margin to experiment, in order to find the best programs to reach those goals.

Banerjee was a bit more specific:

[H]ere are two policies that I think every poor country should implement. A small universal cash grant to everyone over 12, based on biometric identification. This guarantees that no one has to face the humiliation of being totally indigent, and from our evidence, makes people more productive as well. Making it universal is important, so that they do not attempt to identify the poor (which is very difficult to do effectively in poor countries).

Second, a free universal health insurance policy that covers catastrophic health events, which allows people to go to private or public hospitals.

Chris Blattman declaring an intention to “be provocative,” argues that those should be the last priorities to implement. Rather, he says, the new government should focus on seven key goals:

1. Build compacts, possibly unequal and unsavory ones, with warlords and other big men, giving them a stake in continued peace, even if it means they control crucial ministries or development organs.

2. But for goodness sake try not to give up the ministries or development organs. There are non-pecuniary ways to buy people off. And spread it out so you get petty barons rather than oligarchs. They’ll be easier to deal with in 20 years when you have the strength.

3. Next, give every incentive for elites, especially the ones apt to war, to invest in fixed assets whose value depends on stability and growth. Make them entrepreneurs. Oil rigs don’t count. Property in Juba does. So do plantations and small factories, even if they need subsidies to operate at first. This is hard, and will require attention and dedication.

4. Aim for minimal corruption in twenty years, not two.

5. Create a minimally competent police force, one that is less criminal than the criminals. And a court system, with particular attention to the places where ethnic groups repeatedly clash over land or rights or respect. Target programs to these hotspots to buy some measure of content.

6. Train and educate the military like the bejeezus, and at all costs do not let it slip into factions.

7. Roads, roads, roads. Not only are they good for growth, they are good for exerting state control and building a sense of nation.

On balance, I think I’m more with Chris on this one. Of course, my first piece advice for the new government of South Sudan would be “don’t take advice from some random lawyer in New York who’s never set foot in your country or, come to think of it, even seen very many photos.” If they stuck around, I’d probably try my one-size-fits-all advice for all situations, which is “hydrate, and don’t let anyone boss you around.”

However, if for some reason I had to give governance recommendations – which I can only imagine would occur during some sort of state-building drinking game at South Sudan’s statehood shower – I would probably explain that as far as I’m concerned, states are supposed to do these four things:

  1. Deal with the problem of poop. Humans poop a lot, and unfortunately human poop also makes us very sick if we don’t dispose of it properly. Animal poop is also a problem. This is a hard problem for people to handle without central coordination. So, states should make sure that they have some sort of system in place to keep poop separate from people’s drinking water, food, etc. This is not a particularly simple problem to solve (you probably need a water system in addition to a poop-disposal system) but it also doesn’t necessarily require a modern sewer system.
  2. Make disputes resolvable by means other than violence. Without doing this, the state cannot have a monopoly on violence. If people have to use violence to get what they are promised, then they will spend a lot of energy trumping each others’ violent capabilities. A recipe for stability this is not – it’s likely to harden divisions between ethnic groups, families, religions, and any other societal divisions people can find lying around, because “us vs. them” is a good way to kick the amount of hell you can unleash up a notch from “me vs. you.” A recipe for stability that is not. This is a hard one to fix, and it will take a while, but it’s worth it.
  3. Ensure that people can feed themselves without having to actually grow their own food. Okay, that’s hyperbole. I really mean “make sure there are reliable enough roads that no part of your country becomes physically cut off from the rest of the world for any meaningful amount of time.” Reliability in this context means both that there is a physical, traverse-able road, and that it is safe to traverse it. Checkpoints at which merchants are extorted by bandits, (roving or otherwise), will cause you to lose points. Again, this is hard. I get that. But you’re forming a new state, what made you think it would be easy?
  4. Make citizenship meaningful. A state doesn’t exist in the absence of its citizenry. Define citizenship. Identify your citizens. Count them. Give them an ID or a certificate or something that they can use to prove their citizenship. Make it easy to register babies and marriages. Be clear about what rights non-citizens have. (I recommend “basically all of them.”) This is step 1 of the “you give me taxes, I give you state services” process. Don’t forget steps 2 and 3.

This is quite general advice, and I’m definitely not saying that South Sudan is winning or losing on any of those points. It’s not as if they’re solved problems for any nation – I can think of substantial ways in which the United States fails in all four areas, even though things here work quite well for the most part. However, they’re good goals to work towards.

Education and health care aren’t on this list. That’s not because I don’t think they’re important. On the contrary, I love that stuff! It’s just that education and health care are easier for people to get from the private sector or NGOs than the stuff on my list. However, if South Sudan have the means, they should definitely take education and health care out for a spin. They are so choice.

My expertise is primarily in the area of #2, but this post is extremely long already, so I don’t want to go into too much detail about that. In a nutshell, though: build your court system from the bottom up. Small claims courts are important. Don’t assume that you need career lawyers or judges to resolve disputes; we’re expensive and kind of annoying. Consider training paralegals and people who already occupy positions of authority in the community instead. Don’t let your police officers rape, rob, or kill with impunity. (Again, not really a solved problem elsewhere, but an important goal nevertheless.)

For the love of god, isn’t this drinking game over yet?

(via MR and Chris Blattman)