POSTSCRIPT: ELECTING THE NEXT ICC PROSECUTOR

Silence becomes cowardice when occasion demands speaking out the whole truth and acting accordingly.                                                                                                                                                                           Mahatma Gandhi

In The 26-year hunt for Africa’s most wanted man, reported by Tom Wilson in the Financial Times (accessible through google), Serge Brammertz comes across as a combination of John le Carré’s George Smiley (methodically and strategically using spycraft with the help of European security agencies, Interpol, and the Rwanda’s National Public Prosecution Authority) and Michael Connelly’s LAPD Detective Hieronymus “Harry” Bosch (diligently working a cold case with patience, perseverance, and precision in tracking Félicien Kabuga, accused of organizing the Rwandan genocide). Kabuga was arrested on 16 May 2020 in a Paris suburb. Continue reading “POSTSCRIPT: ELECTING THE NEXT ICC PROSECUTOR”

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Dawn over Midnight: a brighter future for international norms

O! say, can you see, by the dawn’s early light …


Francis Scott Key’s poem The Defence of Fort McHenry, later renamed The Star Spangled Banner, recounts the Battle of Baltimore during the War of 1812. Detained by the British, Key witnessed the bombardment of Fort McHenry on the night of 13-14 September 1814. As dawn was breaking, he feared he would see the dreadful sight of the Union Jack flying over Fort McHenry. Instead, elatedly, he saw the Star Spangled Banner, the American flag, proudly standing. The Americans had prevailed. The tumultuous Trump presidency, which, to half the nation and many others around the globe, has felt like an incessant bombardment of insults, venom, and ill-will, is coming to an end. The battle for the soul of America has yet to be won, the struggle for a more perfect union remains, but dawn is breaking. Continue reading “Dawn over Midnight: a brighter future for international norms”

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ELECTING THE NEXT ICC PROSECUTOR: politics v. pragmatism

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… 

                                                                                           Machiavelli, The Prince

In The Prince – a masterful manual on realpolitik – Machiavelli advises leaders to avoid unsolicited advice, and instead, frequently ask for advice from trusted people and to listen to the advice given. Naturally, Niccolò Machiavelli violates this rule by offering unsolicited advice by way of The Prince – written to curry favor and perhaps secure a position from Lorenzo de’ Medici, ruler of Florence, Duke of Urbino.

Neither having prosecuted nor coveting a position in the Office of the Prosecutor (OTP) of the International Criminal Court (ICC), and bearing no gifts, I offer these musings to the powers that be who will elect the next ICC Prosecutor.

On 20 October 2020, Reuters reported an exclusive: that according to a diplomat who wished to remain anonymous, the ICC’s oversight body sent the States Parties a letter to inform them that “none of the four nominees had enough support” and proposed to “widen[] the search to include all 14 of the original candidates.”

This should have come as no surprise. Continue reading “ELECTING THE NEXT ICC PROSECUTOR: politics v. pragmatism”

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The ICC Appeals Chamber’s Judgment in the Jordan Referral: Oh! What a tangled web it weaves when first it practices to conceive

There is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court. (para. 1)

Article 98(1) of the Statute does not itself stipulate, recognise or preserve any immunities. It is a procedural rule that determines how the Court is to proceed where any immunity exists such that it could stand in the way of a request for cooperation. (para. 5)

Resolution 1593 gives the Court power to exercise its jurisdiction over the situation in Darfur, Sudan, which it must exercise ‘in accordance with [the] Statute’. This includes article 27(2), which provides that immunities are not a bar to the exercise of jurisdiction. … Sudan cannot invoke Head of State immunity if a State Party is requested to arrest and surrender Mr Al-Bashir. … Accordingly, there was also no immunity that Jordan would have been required to ‘disregard’ by executing the Court’s arrest warrant. And there was no need for a waiver by Sudan of Head of State immunity. (para. 7)

Judgment in the Jordan Referral re Al-Bashir Appeal, 6 May 2019

Finally, the long-awaited International Criminal Court (ICC) Appeals Chamber Judgment on Head of State immunity arrived. Unsurprisingly, it contrives to bridge the disparate reasonings of the Pre-Trial Chambers’ decisions while, in no small measure, attempting to expand its international personality and jurisdictional reach. If the United States (US), Russia, and China did not get the Malawi memo – that by virtue of United Nations Security Council (SC) Resolution 1593 they endorse that Heads of States not party to the ICC Statute are not immune from ICC jurisdiction, then the Appeals Chamber’s Judgment in the Jordan Referral re Al-Bashir Appeal (Judgment) puts them on clear notice.

Some will rejoice; others (legal purists and sticklers for applying, as opposed to making, the law) will not. Based on the Judgment, Head of State immunity before international courts is virtually abolished. Continue reading “The ICC Appeals Chamber’s Judgment in the Jordan Referral: Oh! What a tangled web it weaves when first it practices to conceive”

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Invoking the Interests of Justice: self-preservation or self-destruction

In summary, the Chamber believes that, notwithstanding the fact all the relevant requirements are met as regards both jurisdiction and admissibility, the current circumstances of the situation in Afghanistan are such as to make the prospects for a successful investigation and prosecution extremely limited. Accordingly, it is unlikely that pursuing an investigation would result in meeting the objectives listed by the victims favouring the investigation, or otherwise positively contributing to it. It is worth recalling that only victims of specific cases brought before the Court could ever have the opportunity of playing a meaningful role in as participants in the relevant proceedings; in the absence of any such cases, this meaningful role will never materialise in spite of the investigation having been authorised; victims’ expectations will not go beyond little more than aspirations. This, far from honouring the victims’ wishes and aspiration that justice be done, would result in creating frustration and possibly hostility vis-a-vis the Court and therefore negatively impact its very ability to pursue credibly the objectives it was created to serve.

Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, 12 April 2019, para 96

Related imageBy now much has been written about the International Criminal Court (ICC) Pre-Trial Chamber’s (PTC) Decision on the Situation in the Islamic Republic of Afghanistan, in which it put the kibosh on the Office of the Prosecutor’s (OTP) efforts to investigate, among other things, crimes allegedly committed by US armed forces and the Central Intelligence Agency, including contractors and other persons under their effective control (see here and here for my earlier posts on the OTP’s efforts to pursue this situation). Invoking Article 53(1)(c) of the ICC Statute the PTC found:

Having determined that both the jurisdiction and the admissibility requirements are satisfied, it remains for the Chamber to determine, in accordance with article 53(1)(c) of the Statute, whether, taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice. (para 87) Continue reading “Invoking the Interests of Justice: self-preservation or self-destruction”

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The kitchen sink, needles in the haystack, spaghetti on the wall: how not to charge & why proofing charts work

Linking: Connecting or joining something to something else.

Linkage: The action of linking or the state of being linked.

Oxford Dictionary

In my previous post I drew a comparison between what little we know about the US Special Counsel Robert Mueller’s Report and what might be a useful lesson for ICC Prosecutor Fatou Bensouda, namely, that it is best not to charge unless there is reliable and relevant evidence for a conviction — not just when there is sufficient evidence to charge.

My advice may appear cheeky and self-serving as it is coming from a criminal defense lawyer – why trust someone with an obvious stake in the game? And if overreaching, overcharging, and overtrying a case leads to an acquittal, why would a defense lawyer get in the way by offering any advice that might yield more positive results for the prosecution? Continue reading “The kitchen sink, needles in the haystack, spaghetti on the wall: how not to charge & why proofing charts work”

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What can ICC Prosecutor Bensouda learn from Special Counsel Mueller: Just because you can doesn’t mean you should

“[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

“[W]hile this report does not conclude that the President committed a crime, it also does not exonerate him.”

From US Special Counsel Robert Mueller’s Report, as quoted by US Attorney General William Barr in a letter to the US Congress, 24 March 2019

After two years of hearing on the news and social media about the Russia probe, election interference, counterintelligence investigations, hacking of emails, WikiLeaks, potential obstruction of justice and so much more, the investigation led by US Special Counsel Robert Mueller came to an end. Some were elated, some were disappointed, and some were left wanting — not knowing what to make of the four page summary provided by US Attorney General William Barr, who in less than two days read, digested, and summarized Mueller’s nearly 400-page report (while also having time to look at the alleged million plus pages of evidence). Frankly, until the report is released — if and to the extent it is released — it is pure speculation to draw any reasonable and rational conclusions other than from the quoted text which, undeniably, establishes that President Donald Trump, the prime target of the investigation, will not be charged with any crimes. Nor will his son, son-in-law, and other associates — at least not by Mueller. Whether a sitting president can be charged is, in my mind, not even a close call: there is nothing unconstitutional about charging and prosecuting a sitting president — even if there is a Justice Department policy paper that says that it would not be cool to do so. Continue reading “What can ICC Prosecutor Bensouda learn from Special Counsel Mueller: Just because you can doesn’t mean you should”

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Philippinexit: Inevitable but inconsequential 

We have moved from the heady cosmopolitanism of the 1990s and its post-Cold War institution-building to a period of tribunal and law-making fatigue, along with resurgent nationalism and its emphasis on impermeable sovereignty. We should be slow to ask for the Court to be reshaped to reflect present realities, as such as a Court would likely be a hollowed-out, pointless shell. At the same time, it is dangerous for a legal institution to get too far ahead of the surrounding political environment. The ICC perhaps reflected the zeitgeist of its time – the idea that the promise of law is that power should always be accountable; nonetheless, that may make it the wrong court for these times.

Douglas Guilfoyle, This is Not Fine: The International Criminal Court in Trouble, Part I EJIL:Talk! 21 March 2019

It is hardly a revelation that political and accountability pressures are seducing heads of once enthusiastic ICC club-joining States (such as the Philippines) to reassess, reprove, and retreat — taking their toys and going home, or, as it were, putting their head in the sand and indulging in self-delusion: by withdrawing from the ICC so as to disappear allegations of crimes falling under the ICC’s jurisdiction. Hardly sound thinking. Crimes once committed no more disappear than does the need for accountability. Walking away from the ICC does not end the story. It may hamper the ICC in completing its investigation, it may frustrate it from making arrests and prosecuting those charged with crimes, and it might add more chinks in the ICC’s already battered armor, but un-signing the Rome Statute and exiting from the ICC’s Assembly of States Parties is not going to sound the ICC’s death knell. The way the ICC is carrying on, unless it mends its ways, that is a job it will do for itself.

Continue reading “Philippinexit: Inevitable but inconsequential “

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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.

Continue reading “Comment and Reply to Comment on Pompeo Post”

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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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