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.
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?”
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
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?”
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”
On 6 September 2018, the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) reached a decision on whether the ICC has jurisdiction over the alleged deportation of the Rohingya from Myanmar (non-State Party to the Rome Statute) to Bangladesh (a State Party). The PTC by Majority held that the ICC has jurisdiction “if at least one legal element of a crime within the jurisdiction of the Court or part of such a crime is committed on a territory of a State Party.” (para. 64) While the outcome of the decision seems correct, the partially dissenting opinion raises concerns, mainly whether the issue was ripe for the PTC to entertain. In this post, I will revisit the Majority’s reasoning on its finding that the ICC has jurisdiction, whereas in the next post I will focus on Judge Marc Perrin de Brichambaut’s opinion. Continue reading “Revisiting the ICC’s Ruling on the OTP’s Rohingya Request over Jurisdiction: a more critical look. Part 1 – The Majority’s Decision”
Punishing Atrocities Through a Fair Trial: International Criminal Law from Nuremberg to the Age of Global Terrorism, by Jonathan Hafetz, Cambridge University Press, 2018, 191 pages, £ 85.00 ($ 90.00)
You must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proved guilty…the world yields no respect to courts that are merely organized to convict.
Justice Robert H. Jackson,
Speech to American Society of International Law cited in Henry T. King, Jr’s The Legacy of Nuremberg, Case Western Journal of International Law 34 (2002), 335, 336
If asked to recommend three books to a newly-minted judge at any of the international(ized) criminal tribunals or courts, but especially at the International Criminal Court (ICC), Jonathan Hafetz’s Punishing Atrocities Through a Fair Trial – International Criminal Law from Nuremberg to the Age of Global Terrorism (Punishing Atrocities) would be one of them. Indeed, I would suggest it as essential reading for judges, prosecutors, defense lawyers, and any judicial staff. I would also recommend Punishing Atrocities as obligatory reading for any introductory courses on International Criminal Law (ICL).
Jonathan Hafetz, a professor of law at Seton Hall University School of Law, admirably shows the tension between the need for establishing individual accountability for suspects and accused alleged to have committed or contributed to mass atrocities and the need to accord them fair trials based on recognized international principles and standards. Reconciling these two aims has been an ongoing process since the creation of the post-World War II International Military Tribunals at Nuremberg and for the Far East in Tokyo. While the divide remains, much progress has been made in affording greater due process to suspects and accused, in part, because of a higher recognition that acceptance of judicial results at the international(ized) criminal tribunals and courts is enhanced and fostered through fair trials and ensuing perceptions. Meanwhile, the experimentation of cobbling together procedural modalities from different legal systems for fairer procedural justice continues. Continue reading “Book Review – Punishing Atrocities Through a Fair Trial: International Criminal Law from Nuremberg to the Age of Global Terrorism”
Q: You probably saw also, Vice President Pence yesterday appealed to you and to Myanmar to let the two Reuters journalists out of jail. I think they got a sentence of seven years. What is your response to Vice President Pence?
A: Well, I think what I want to know is whether they feel that there has been a miscarriage of justice. And you know of course, that due process allows them to appeal the sentence.
Q: But that, I guess, you also as a democratic leader don’t feel comfortable with journalists being jailed?
A: It’s not a matter of… They were not jailed because they were journalists. They were jailed because the court has…. Well, sentence has been passed on them because the court has decided that they had broken the Official Secrets Act. So, if we believe in the rule of law, they have every right to appeal the judgment and to point out why the judgment is wrong, if they consider it wrong.
Interview of Aung San Suu Kyi, State Counsellor of Myanmar by Børge Brende, World Economic Forum in Hanoi, Vietnam
In December 2017, Reuters journalists Wa Lone and Kyaw Soe Oo came across reliable information (eye-witness accounts and photographs) leading to the uncovering of a mass grave of ten Rohingya civilians in Inn Din, Myanmar, killed during a clearance (ethnic-cleansing) operation carried out in the Northern Rakhine State by Myanmar’s security forces (military and police) and local Buddhists in August 2017. Given the location of the burial site, the ongoing events in that area, the equipment required to dig and cover-up the mass grave, the bulldozing over and destruction of any remaining evidence, and the eye-witness accounts and photographs, it was clear that this atrocity was committed and then covered up by Myanmar’s security forces. Reuters would later write a lengthy story on this and other events (see my post), implicating Myanmar’s security forces along with its proxies – local civilians. Continue reading “Daw Aung San Suu Kyi’s remarks in context: is she defending the convictions and imprisonment of the journalists?”
The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court.
John Bolton, US National Security Advisor
John Bolton’s “happiest moment” as the US Ambassador to the United Nations (UN), so he claims, was when he “personally ‘unsign[ed]’ the Rome Statute” that established the International Criminal Court (ICC).1 John Bolton, Surrender Is Not an Option: Defending America at the United Nations and Abroad, Threshold 2007, as cited by Brian Urquest, One Angry Man, New York Review of Books, March 6, 2008, pp. 12–15. This is the same John Bolton who once said that if the UN Secretariat building in New York “lost ten stories, it wouldn’t make a bit of difference.” And believe it or not, this statement would later bring hope to some of the accused (and some of their lawyers) at the International Criminal Tribunal for the former Yugoslavia (ICTY) when Bolton became US Ambassador to the UN; they naively thought that Bolton would lead the charge to dismantle the ICTY. I was flabbergasted hearing these ludicrous expectations, yet Bolton’s remarks had captured their imagination.
Footnotes [ + ]
|1.||↑||John Bolton, Surrender Is Not an Option: Defending America at the United Nations and Abroad, Threshold 2007, as cited by Brian Urquest, One Angry Man, New York Review of Books, March 6, 2008, pp. 12–15.|
On 6 September 2018, the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) held by Majority (Judge Marc Perrin de Brichambaut dissented in part) that the ICC has jurisdiction over some of the mass atrocity crimes allegedly committed (and, as some may argue, still being committed) in Myanmar against the Rohingya. This comes on the heels of the UN Human Rights Council’s conclusions that violations in Rakhine State (and elsewhere) in Myanmar amounted to the gravest crimes under international law, and, more alarmingly, that certain “clearance operations” conducted by the Myanmar Military (known as “Tatmadaw”) were not a response to a concrete threat from the Arakan Rohingya Salvation Army (ARSA), but the “unfinished job” of “solv(ing) the long-standing Bengali problem” thus warranting an investigation and prosecution of the senior officials in the Tatmadaw chain of command “so that a competent court can determine their liability for genocide in relation to the situation in Rakhine State.” (See Report of the Independent International Fact-Finding Mission on Myanmar, Advance Unedited Version, A/HRC/39/64, 24 August 2018, paras. 86-87.) Continue reading “The ICC’s Ruling on the OTP’s Rohingya Request over Jurisdiction: well-reasoned or a judicial overreach?”
THE CHAMBER HEREBY
a) ORDERS the Registry, to establish, as soon as practicable, a system of public information and outreach activities for the benefit of the victims and affected communities in the situation in Palestine and report back to the Chamber in compliance with the principles established in the present decision;
According to The Times of Israel, Israel has formally complained to the International Criminal Court (ICC) about the outreach program the ICC Registry is launching at the behest of the Pre-Trial Chamber (Judge Péter Kovács Presiding, Judge Marc Perrin de Brichambaut, and Judge Reine Adélaïde Sophie Alapini-Gansou) “for the Victims of the Situation” in Palestine, calling into question the ICC’s impartiality in treating Israel fairly. What took so long?
Israel has a point. And a predicament. Continue reading “The ICC’s Palestinian Outreach Campaign: an appearance of anti-Israel bias”