Comment and Reply to Comment on Pompeo Post

Attorney Bryan Miller, recently commented on my post Pompeo’s thuggish threats against the ICC: a Trumpian call or electioneering hyperbolic fodder?   Occasionally, a comment comes along that demands more than just a brief response. This is one of them. For convenience, Bryan’s comment and my response appear back to back.

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Pompeo’s thuggish threats against the ICC: a Trumpian call or electioneering hyperbolic fodder?

I’m announcing a policy of U.S. visa restrictions on those individuals directly responsible for any ICC investigation of U.S. personnel. … These visa restrictions may also be used to deter ICC efforts to pursue allied personnel, including Israelis, without allies’ consent. … We’re prepared to take additional steps, including economic sanctions, if the ICC does not change its course.

US Secretary of State Mike Pompeo, 15 March 2019

It’s like déjà vu, all over again — to quote legendary US baseball manager and pulp philosopher Yogi Berra. Many chuckle at this quaint paradoxical observation, but on occasion it is fitting. While something may not quite be déjà vu, seemingly or virtually, it just may be. And that is what we can say of US Secretary of State Mike Pompeo’s speech on 15 March 2019: same same as what we heard from US National Security Adviser John Bolton, but different. Déjà vu, all over again. Continue reading “Pompeo’s thuggish threats against the ICC: a Trumpian call or electioneering hyperbolic fodder?”

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Book Review – The Elgar Companion to THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA

The Elgar Companion to the Extraordinary Chambers in the Courts of Cambodia, by Nina H.B. Jørgensen, Edward Elgar Publishing, 2018, 404 pages, £ 144.00

With the benefit of hindsight, would the Cambodian government and the international community have joined hands and built the Extraordinary Chambers in the Courts of Cambodia (ECCC)? Possibly not. The Court has received more criticism than acclaim and is generally touted as a model not to be followed.

Nina H.B. Jørgensen, p. 359  

The Elgar Companion to the Extraordinary Chambers in the Courts of CambodiaAnyone interested in the trials, tribulations, and contributions of the Extraordinary Chambers in the Courts of Cambodia (ECCC) to the development of international criminal law and justice, look no further than Professor Nina H.B. Jørgensen’s outstanding primer, The Elgar Companion TO THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA (The Companion to the ECCC)If there are any doubts about the ECCC’s legacy, particularly its positive contribution to international criminal jurisprudence, Professor Jørgensen has put them to rest. Thanks to her critical analysis of the ECCC’s procedures, of the cases tried and currently under investigation, and of the jurisprudence the ECCC has produced over the past decade – especially considering the general environment and context in which the ECCC operates – it is hard not to be impressed with the accomplishments of the ECCC, despite its numerous shortcomings and disappointing failures. Continue reading “Book Review – The Elgar Companion to THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA”

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Taking Trump literally: a lethal consequence

Anybody throwing stones, rocks — like they did to Mexico and the Mexican military, Mexican police, where they badly hurt police and soldiers of Mexico — we will consider that a firearm, because there’s not much difference…. Because there’s not much difference when you get hit in the face with a rock. 

President Donald J. Trump, 1 November 2018

For the past few weeks, we have witnessed scenes of a caravan of Central Americans, mainly from Honduras, heading toward the US. They are asylum seekers and migrants, escaping extreme violence and poverty. Laden with despair yet armed with hope, they are seeking a better life for themselves, their children, their grandchildren – they are seeking a shot at the American dream. Continue reading “Taking Trump literally: a lethal consequence”

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The ICC is not a usurper: but is it inching towards being one?

But, Excellencies, Ladies and Gentlemen: any fear that the ICC is a usurper of national sovereignty proceeds from a clear misunderstanding of the nature of the ICC’s jurisdiction. That fear may indeed be implicated in the reluctance of some States to ratify the Rome Statute, as has been expressed around the world, where ratification has not yet taken hold.

….

But, even for the more able States, the ICC remains valuable – not as a usurper of sovereignty – but as a mirror of conscience. Such is the case where political will appears a little shy to address the needs of justice, behind the veil of sovereignty. It is noted in this connection that war crimes do occur in almost every war. And the culprits can come from the rank and file of the most disciplined and professional armed forces in the world, in spite of the best efforts of their commanders acting with unimpeachable good faith.

ICC President Judge Chile Eboe-Osuji, Speech to the United Nations General Assembly

ICC President Judge Chile Eboe-Osuji

International Criminal Court (ICC) President Judge Chile Eboe-Osuji addressed the United Nations (UN) General Assembly on 29 October 2018 with one overarching aim – to assuage the fears of many States and non-States Parties who view the ICC with alarm and skepticism as an organic international judicial institution that aspires to exercise jurisdiction well beyond the narrow contours of what the States Parties had agreed to when signing on to the Rome Statute. Measured, with generous usage of memorable quotes (one of his characteristic trademarks) and a whiff of thou doth protest too much, President Eboe-Osuji’s speech reads like an oblique response to US National Security Advisor John R. Bolton’s criticism of the ICC (see here).

As optimistic as one can be about the potential of the ICC, it is hard not to be a cynic, and even harder not to take with a grain of cynicism President Eboe-Osuji’s representations of the ICC’s abiding caution in exercising its jurisdiction narrowly, conservatively, and judicially. Not that he spoke with forked tongue, but when one looks at the recent Pre-Trial Chamber’s (PTC) Decision concerning the Rohingya, jurisdictional adventurism (mission creep) seems discretely afoot. Continue reading “The ICC is not a usurper: but is it inching towards being one?”

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A Call for an Independent Representative Body for KSC Counsel: structure and suggestions – Part 2

Structuring KSC Counsel’s Independent Representative Body: a template

In Part 1 I shared some thoughts and offered suggestions for the working-group and Counsel qualified to appear before the Kosovo Specialist Chambers (KSC) to consider on whether to form an Independent Representative Body (IRB) tailored to their needs and expectations. In this post I will suggest a possible structure for the IRB and will provide a template for the Constitution. Suffice it to say, I am immeasurably grateful to many colleagues who over the years have enriched me with ideas on the structuring and functioning of professional associations. Continue reading “A Call for an Independent Representative Body for KSC Counsel: structure and suggestions – Part 2”

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A Call for an Independent Representative Body for KSC Counsel: thoughts and suggestions – Part 1

A prince should always seek advice, but only when he wishes and not when others wish. He must discourage everyone from offering advice unless he asks for it. However, he should inquire constantly, and listen patiently about those things of which he inquired…

Niccolò Machiavelli, The Prince

To paraphrase the Virginia Slims marketing slogan, we’ve come a long way, baby.

For some time, the Kosovo Specialist Chambers’ (KSC) Registrar (assuredly with the blessings of the President) has reached out, repeatedly, to Counsel on the List to represent to suspects, accused, and/or a group of victims before the KSC, encouraging them to establish an association. This is consistent with the intent of the KSC Statute, even though Article 19(4) makes references to an “independent representative body of Specialist Counsel,” with Article 34(7) defining “Specialist Counsel” as Defence Counsel, as distinct from Counsel representing a group of victims, which under Article 34(6) are labeled as Victim’s Counsel. Obviously, the KSC Statute (and the spirit of the drafters) envisages one association for all Counsel (see generally Part 2 of my series on the KSC), as clearly reflected in the Registrar’s letter of 29 May 2018 calling for the establishment of an “Independent Representative Body” by “Counsel”. To suggest otherwise would be to assume that the drafter intended to disenfranchise Victim’s Counsel from providing their input on matters that, among others thing, directly impact their clients, despite Article 22(5) which provides that victims’ groups are assisted and represented by a Victims’ Counsel as provided by the Registry’s Victims’ Participation Office. Moreover, it would not make sense to have two associations, and as briefly noted below and more expansively in the next post, one association, properly structured, can accommodate all Counsel, including in matters when Specialist Counsel’s and Victims’ Counsel’s interests diverge. Continue reading “A Call for an Independent Representative Body for KSC Counsel: thoughts and suggestions – Part 1”

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Book Review: Seeking Accountability for the Unlawful Use of Force

Seeking Accountability for the Unlawful Use of Force, Leila Nadya Sadat ed., Cambridge University Press, 2018, 612 pages, £ 26.99

Classic understandings about the demarcation between war and peace are not just quixotic remnants of a bygone era, but core underpinnings of the international legal system that are eroded at the peril of the entire world.

Leila Nadya Sadat, p. 556

Professor Leila Nadya Sadat

Had it been up to me I would have retitled Seeking Accountability for the Unlawful Use of Force (Seeking Accountability) to something like: The International Crime of Aggression: past failures, present shortcomings, and future possibilities. Even if you think you know all there is to know about criminalizing aggression as an international crime, you are bound to find this collection of articles exceptionally rewarding. And if you really want to treat yourself, read it cover to cover as it has been smartly organized and edited by Washington University Law School Professor Leila Nadya Sadat. Spoiler alert: Seeking Accountability is dense, packed with information and source material that provokes and stimulates – not a quick or effortless read. Continue reading “Book Review: Seeking Accountability for the Unlawful Use of Force”

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Book Review – The Internationalists: How a Radical Plan to Outlaw War Remade the World

The Internationalists: How a Radical Plan to Outlaw War Remade the World, by Oona A. Hathaway and Scott J. Shapiro, New York, New York: Simon and Schuster, 2017, 578 pages, $30

In short, the Peace Pact formed the background of rules and assumptions against which the rest of the new system operated. As states adapted to the transformed legal order, their adaptations helped reinforce those new rules and become reasons of their own for playing by them. The Pact did not bring about the end of conquest and interstate war on its own; no treaty, no law could have. But it was a necessary start, the beginning of the end of the Old World Order.

The Internationalists, p. 335

Tensions around the world seemed to have heightened with the election of U.S. President Donald J. Trump. Maybe it has nothing to do with him; maybe it is just his in-your-face style that tends to make us more aware of how dangerous and volatile the world has become. It is hard to point to a region on the global map and not find a conflict that has just ended, is raging on, or about to start. The most eye-popping conflict started as a civil war in Syria in 2011. The end is not in sight despite the use of an inordinate amount of hard and soft power by regional state players and their proxies, permanent members of the United Nations Security Council, the United Nations (UN), the European Union, and so on. Red lines have been drawn and crossed, chemical weapons used against combatants and non-combatants, indiscriminate bombings of civilian-populated areas, acts of terror committed with an aim to make life so unbearable so as to bring about death or forced dislocation. All of this and much more in the name of sovereign rights, self-defense, security (national, regional, international), reprisals, deterrence (sending messages), and, of course, peace. Continue reading “Book Review – The Internationalists: How a Radical Plan to Outlaw War Remade the World”

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Revisiting the ICC’s Ruling on the OTP’s Rohingya Request over Jurisdiction: a more critical look. Part 2 – The Dissent

Following the previous post on the Majority’s reasoning in finding that the ICC has jurisdiction over the alleged deportation of the Rohingya from Myanmar to Bangladesh, let’s look at Judge Marc Perrin de Brichambaut’s Partially Dissenting Opinion. It exclusively deals with the Majority’s analysis of its legal basis for entertaining the Office of the Prosecutor’s (OTP) Request.

According to Judge de Brichambaut, the Majority issued a de facto advisory opinion, which is not permitted under the ICC’s statutory regime. My take is that the Majority’s expansive, imaginative, statutory provision-shopping, and creative (if not tortuous) interpretation of the Rome Statute gives pause to many States Parties and non-States Parties (already suspicious of the ICC), who view such conduct as judicial adventurism and result-determinative bench-legislating. Continue reading “Revisiting the ICC’s Ruling on the OTP’s Rohingya Request over Jurisdiction: a more critical look. Part 2 – The Dissent”

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