Bolton threatens the International Criminal Court: gunboat diplomacy by other means

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, 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.

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Footnotes   [ + ]

The ICC’s Ruling on the OTP’s Rohingya Request over Jurisdiction:  well-reasoned or a judicial overreach?

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?”

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The ICC’s Palestinian Outreach Campaign: an appearance of anti-Israel bias

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;


ICC, Decision on Information and Outreach for the Victims of the Situation, 13 July 2018

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”

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ICC-OTP to Interveners on its Rohingya Request: thanks but you’re putting the cart before the horse

ICC Prosecutor Fatou Bensouda

Prompted by ongoing reports of mass-scale atrocities being committed against the Rohingya in Myanmar, resulting in at least 700,000 Rohingya fleeing across the border to Bangladesh (what UN High Commissioner for Human Rights characterized as “a textbook example of ethnic cleansing”), the Office of the Prosecutor (“OTP”) of the International Criminal Court (“ICC”) filed a Request with the Pre-Trial Chamber (“PTC”) under Article 19(3) of the Rome Statute.  The Request seeks a binding decision on whether the ICC has jurisdiction over the alleged deportation of the Rohingya from Myanmar (a non-State Party) to Bangladesh (a State Party). The Request set out in detail the events in Myanmar as they have been reported over the past year or so (see my previous posts hereherehere, and here), that Myanmar security forces have directly and indirectly been involved in the killing, rape, torture, and enforced disappearances of the Rohingya, as well as destruction and looting of their villages. Continue reading “ICC-OTP to Interveners on its Rohingya Request: thanks but you’re putting the cart before the horse”

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The Reversal of Bemba’s Conviction: what went wrong or right?

Jean-Pierre Bemba Gombo

On 8 June 2018, after a 10-year odyssey of proceedings, hundreds of submissions (oral and written), roughly 48 months of trial, 77 witnesses, 733 admitted items of evidence, 1219 written trial decisions and orders, and at the expense of an incredible amount of human and financial resources, Jean-Pierre Bemba Gombo was acquitted by the International Criminal Court (ICC) Appeals Chamber of all charges (murder and rape as crimes against humanity, murder and rape as war crimes, and pillaging as a war crime) that he was unanimously convicted of by Trial Chamber III (Presiding Judge Sylvia Steiner, Judge Joyce Aluoch, and Judge Kuniko Ozaki).

It was as close of a call as could be: a 3-2 split. One member of the Majority (now President of the ICC, Judge Chile Eboe-Osuji) was initially inclined to order a retrial, although the “balance of justice impel[led]” him to join the Majority’s decision to acquit Mr. Bemba. Continue reading “The Reversal of Bemba’s Conviction: what went wrong or right?”

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Will do Mr. Prime Minister – An imagined dialogue between the Prime Minister and the Head of the Ministry of Foreign Affairs on the Palestinian Authority’s ICC referral

On 22 May 2018, the Palestinian Authority (PA) filed a referral to the International Criminal Court’s (ICC) Office of the Prosecutor (OTP), requesting it “to investigate, in accordance with the temporal jurisdiction of the Court, past, ongoing and future crimes within the court’s jurisdiction, committed in all parts of the territory of the State of Palestine.”

ICC Prosecutor, Mrs Fatou Bensouda and her team meet the Minister of Foreign Affairs and Expatriates of Palestine, H.E. Dr Riad Malki and delegation at the Court’s Headquarters

After learning of the referral and after seeing what was being reported by the major news outlets, Prime Minister of Israel Benjamin Netanyahu (PM) may have contacted Legal (referred to as “L.”) from the legal office of the Ministry of Foreign Affairs, asking to be briefed on the legal ramifications of the referral. Their meeting might have gone something like this: Continue reading “Will do Mr. Prime Minister – An imagined dialogue between the Prime Minister and the Head of the Ministry of Foreign Affairs on the Palestinian Authority’s ICC referral”

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Part II – Panel Discussion on The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict

Prosecutorial Discretion & The Interests of Justice: what, when, how

In my previous post I reviewed Priscilla Hayner’s The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict, giving it a superb rating and recommending it to anyone working in the field of transitional justice – from mediators to civil society and human rights advocates. As I noted, Hayner draws from her wealth of experience and from her in-depth and critical examination of past efforts by various actors in the peacemaking and transitional justice chain, including international(ized) criminal tribunals and courts – most notably the International Criminal Court (ICC) – to see what has worked or failed in peacemaking. Presenting a clinical analysis of the what, how, and why of these past examples, Hayner shows that during peacemaking efforts, process matters, intrinsic to which are timing, strategy, and context. This is particularly relevant when the ICC Prosecutor exercises her authority: depending on the strategy and tactics adopted, she can be instrumental or detrimental to the peacemaking process. Continue reading “Part II – Panel Discussion on The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict”

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Book Review – The PEACEMAKER’S PARADOX: Pursuing Justice in the Shadows of Conflict

There is no peace without justice; there is no justice without truth.


Professor Mahmoud Cherif Bassiouni

Recently, I participated in a Flash-Colloquium titled: Justice, Truth and Peace. The topic was inspired by the sage Professor Bassiouni – a giant in the field of international humanitarian and human rights law. Sadly, he left us on 25 September 2017.

The presenters were given a maximum of three minutes to speak on one of the six permutations of these three words: Truth, Justice, Peace, Peace-Justice, Justice-Truth, and Truth-Justice-Peace.

About three minutes before the start of the colloquium, I was asked to make a presentation on peace within the context of Professor Bassiouni’s refrain. I agreed, though I knew I would have to speak off-the-cuff. I began feeling uneasy when I started hearing the presentations, which ranged from the philosophical to the theoretical to the sublime (poetry). What did I really know about peace? Continue reading “Book Review – The PEACEMAKER’S PARADOX: Pursuing Justice in the Shadows of Conflict”

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THE ICC-OTP’S REQUEST FOR A JURISDICTIONAL RULING: bold move or timid half-step?

Two weeks ago the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) filed a request to the Pre-Trial Chamber (PTC) seeking, for all intents and purposes, an advisory opinion on whether the ICC may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

Some of the commentaries on this have been interesting and insightful (see Kevin Jon Heller’s Three Cautionary Thoughts on the OTP’s Rohingya Request and Implications of the Rohingya Argument for Libya and Syria (and Jordan) in Opinio Juris, Andrea Raab’s and Siobhan Hobbs’s The Prosecutor’s Request for a Ruling on the ICC’s Jurisdiction over the Deportation of Rohingya from Myanmar to Bangladesh: A Gender Perspective in EJIL: Talk!, and Geoff Curfman’s ICC Jurisdiction and the Rohingya Crisis in Myanmar in Just Security). For the most part, I agree with these analyses. Continue reading “THE ICC-OTP’S REQUEST FOR A JURISDICTIONAL RULING: bold move or timid half-step?”

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Attorney-Client Privilege — The Crime-Fraud Exception

Recently there has been a sharp uptick in traffic to an October 2015 post I wrote on the crime-fraud exception to attorney-client privilege (reproduced below).  This post was part of a four-part series on attorney client-privilege issues in domestic and international(ized) courts.  I can only assume that the renewed interest in this subject is fueled by last week’s FBI execution of a search warrant on the office, home and hotel room of Michael Cohen, lawyer (some say “fixer”) for President Donald Trump.  As I write, the issue is playing out in a United States District Court in New York, where Cohen, supported by Mr. Trump’s lawyers, is seeking an injunction to prevent the prosecutor from examining seized materials, based on attorney-client privilege.

Before this litigation is over we are likely to see a very high-profile addition to the canon of law on the crime-fraud exception to attorney-client privilege.


Attorney-Client Privilege — Part IV: The Crime-Fraud Exception

This post follows up on the discussion of the attorney-client privilege and the crime-fraud exception raised in image3Prosecutor v. Bemba et al. (“Bemba”) before the International Criminal Court (“ICC”). In my previous post, I presented an overview of the attorney-client privilege (otherwise known as “lawyer-client privilege” or “legal professional privilege”) in the international criminal tribunals. As previously discussed, one of the exceptions to the attorney-client privilege is the crime-fraud exception. This exception applies when communications are made in furtherance of a crime or fraud. In other words, the attorney-client privilege is not a shield to be used by either the attorney or the client to pursue or cover up criminal activity, including acts contributing to the obstruction or perversion of justice. The ICC Pre-Trial and Trial Chamber decisions in Bemba raise several questions concerning the scope of this exception. Before I get into those questions, let’s briefly review the history of the case. Continue reading “Attorney-Client Privilege — The Crime-Fraud Exception”

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