ICC Prosecutor Fatou Bensouda decides to investigate the situation in the Philippines: was it appropriate to do so two days before the end of her tenure?

As I stated many times before, the Court today stands at a cross-roads in several concurrent situations, where the basis to proceed is legally and factually clear, but the operational means to do so are severely lacking. It is a situation that requires not only prioritization by the Office, which is constantly being undertaken, but also open and frank discussions with the Assembly of States Parties, and other stakeholders of the Rome Statute system, on the real resource needs of the Court that will allow it effectively to execute its statutory mandate. There is a serious mismatch between situations where the Rome Statute demands action by the Prosecutor and the resources made available to the Office. As the end of my term approaches, I reiterate my call for a broader strategic and operational reflection on the needs of the institution, and what it is intended to achieve – in short, an honest reflection on our collective responsibility under the Rome Statute to advance the fight against impunity for atrocity crimes. The victims of these egregious crimes deserve nothing less.  —  Prosecutor Fatou Bensouda, 14 June 2021

Former ICC Prosecutor Fatou Bensouda

Before the virtual ink was dry on the press release, questions were being raised as to whether it was appropriate for ICC Prosecutor Fatou Bensouda to forward a request to investigate the situation in the Philippines pursuant to Article 15 of the Rome Statute just two days before the end of her tenure. The request was actually filed on 24 May 2021, but for some, even that was too close for comfort – believing that such a momentous decision (making a request to investigate a situation) should be left for her successor, Mr. Karim A. Khan, QC. The short answer is yes, Prosecutor Bensouda acted appropriately. Here is why. Continue reading “ICC Prosecutor Fatou Bensouda decides to investigate the situation in the Philippines: was it appropriate to do so two days before the end of her tenure?”

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Book Review: ADAPTING INTERNATIONAL CRIMINAL JUSTICE IN SOUTHEAST ASIA – Beyond the International Criminal Court

ADAPTING INTERNATIONAL CRIMINAL JUSTICE IN SOUTHEAST ASIA – Beyond the International Criminal Court, by Emma Palmer, Cambridge University Press, 2020, 325 pages, $85.00

Principles of sovereignty, related fears of international interference or selective prosecutions, a preference for domestic proceedings, the influence of other states such as the United States, and the existence of other priorities – including development and threats to stability arising from armed conflict – are all features of the debate about international criminal justice in Southeast Asia, although they may also be relevant beyond the region. (p. 237)

When I first arrived in Cambodia in 1994 to train human rights advocates to act as public defenders for the Cambodia Defenders Project, followed by a year of training judges and prosecutors (1995-1996), foreigners working at NGOs and international organizations were beating the drums of accountability – raising the prospect of bringing to trial those responsible for the atrocities that had occurred before, during, and after the Democratic Kampuchea (DK) period. The NGO industry was flourishing. It was like the wild West with experts, much like out-of-town hired guns, offering their services – much of which I would say was half-baked at best. I rarely heard local Cambodians calling for trials or justice; the primary, if not exclusive, preoccupation was having a roof over one’s head, food on the table, and schooling for the children.

Back then Cambodia was much different, though some things, as in the rule of law, have remained the same. There were only a handful of Cambodian lawyers (mainly from abroad), no bar association, a medley of applicable criminal codes and procedures, an untrained and unsophisticated judiciary (ditto for prosecutors), ethically challenged police (highly corrupt), and an exhausted yet hopeful population looking to promising days ahead. Continue reading “Book Review: ADAPTING INTERNATIONAL CRIMINAL JUSTICE IN SOUTHEAST ASIA – Beyond the International Criminal Court”

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THE STL BILLION DOLLAR RULE 61 PROCEEDING: a charade of consequence to ICL 

Even if your goose habitually lays golden eggs, it will still be cooked. — Neil Gaiman

It was not curiosity that killed the goose who laid the golden egg, but an insatiable greed that devoured common sense. — E.A. Bucchianeri

In my previous post I discussed how the Special Tribunal for Lebanon (STL) has squandered not just time and money, but also the good will of its funders who bought into the idea of establishing an international(ized) ad hoc tribunal to effectively prosecute domestic crimes, and in so doing, benefit International Criminal Law (ICL) by adding to its list of crimes under Customary International Law (CIL), the crime of terrorism.

I may be oversimplifying things. But when you cut through the fog of how and why the STL was established (aside from expected knee-jerk reactions at the domestic level by interested/subjective parties such as the victims’ family, friends, and political allies) it is what it is. Less charitably, it would appear to have been a vanity/ego project of the late professor, turned judge, Antonio Cassese, who aside from trying to solidify into ICL his concoction of Joint Criminal Enterprise (JCE) – now discredited, in part, due to his (and his colleagues’ who went along) reliance on bogus supporting jurisprudence – wished to further place his mark in ICL history by heralding a new crime in CIL, to wit: terrorism. I’m calling it bluntly as I see it. Continue reading “THE STL BILLION DOLLAR RULE 61 PROCEEDING: a charade of consequence to ICL “

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Happy STL Begging Games! And may the odds be in justice’s favor

‘Mr. Limbkins, I beg your pardon, sir! Oliver Twist has asked for more!’


‘FOR MORE’ said Mr. Limbkins. ‘Compose yourself, Bumble, and answer me distinctly. Do I understand that he asked for more, after he had eaten the supper allotted by the dietary?’


‘He did, sir,’ replied Bumble.


‘That boy will be hung’ said the gentleman in the white waistcoat. ‘I know that boy will be hung.’


Oliver Twist, Charles Dickens

Due to the severe financial situation currently facing the Special Tribunal for Lebanon (STL), on 3 June 2021, Trial Chamber II canceled the commencement of the Ayyash trial scheduled for 16 June 2021. It also suspended all decisions on filings presently before it, and any future filings, until further notice. Mr. Salim Jamil Ayyash is charged with five counts, including acts of terrorism in relation to three attacks against prominent Lebanese political figures, Mr. Marwan Hamade, Mr. Georges Hawi, and Mr. Elias El-Murr, carried out on 1 October 2004, 21 June 2005, and 12 July 2005 respectively, connected with the terrorist attack that killed former Lebanese Prime Minister Rafik Hariri.

Poor thing, the STL. The inevitable has arrived. After years of being on an extravagantly gluttonous diet, the STL, with cap in one hand and bowl in the other, is forced to beg for more funds so it can carry on. Whether the STL should have been set up in the first place (I think not) is debatable, though it cannot complain that it has not had sufficient time and resources to carry out its mandate.

What does not seem debatable, however, is its failure to live up to the hype of those who promoted its creation and the expectations of those funding it. With the deepest of sympathies to the victims, the STL has proved to be an expensive, unrewarding, and ill-conceived boondoggle. Perhaps this is a watershed moment, an exquisite time to re-think whether the STL should declare victory and close its doors (revisionist legacy narrative to follow). Continue reading “Happy STL Begging Games! And may the odds be in justice’s favor”

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Book Review: JUSTICE IN EXTREME CASES – Criminal Law Theory Meets International Criminal Law

JUSTICE IN EXTREME CASES – Criminal Law Theory Meets International Criminal Law, by Darryl Robinson, Cambridge University Press, 2020, 304 pages, £85.00

Law is an enterprise of reasoning, and thus I believe that we must pay careful attention not only to the legal conclusions reached, but also to the structure of arguments employed. A judgement might employ problematic reasoning and still reach a defensible result. Nonetheless, the reasoning matters, because replication of faulty structure of arguments will eventually produce faulty outcomes. Our reasoning is our “math,” and systemic distortions in our math will eventually throw off our calculations in significant ways. (p. 54)

Some twenty years ago when I found myself at the International Criminal Tribunal for the former Yugoslavia (ICTY), I was rather puzzled. I expected (not sure why) to have judges on the bench who, like myself, had cut their teeth in criminal courts, and who, of course, would also have a deep appreciation of international criminal law (ICL) as well as human rights and humanitarian law. I say this because in some of the legal reasonings I noticed how certain fundamental principles were being loosely interpreted to achieve or explain a pre-ordained decision. Eventually it dawned on me. A judge’s understanding of and experience with criminal law (or lack thereof) prior to donning the crimson robe informed their approach to applying fundamental principles intrinsic to criminal law and ICL.  Continue reading “Book Review: JUSTICE IN EXTREME CASES – Criminal Law Theory Meets International Criminal Law”

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The ICC OTP’s Draft Policy on Situation Completion: rounding out the policy trilogy

The Prosecutor’s decision whether to prosecute a case, or otherwise how to manage it, will be informed by a rigorous process of internal peer review of the evidence, including the participation of senior members of the Office assigned to other situations as well as relevant subject-matter specialists (law, analysis, sexual and gender-based crimes, children, etc.).  (para. 28)

Nearly two decades after the International Criminal Court (ICC) was founded, the Office of the Prosecutor (OTP) circulated its Draft Policy on Situation Completion. It “completes a trilogy of policy papers describing the life cycle of the Office’s operations in a situation,” to be read along with the other two policy papers, the Policy Paper on Preliminary Examinations (2013) and the Policy paper on case selection and prioritisation (2016). It runs just over 21 pages. Less is generally more, but in this case, less is because more (as in substance) is wanting.

Some initial observations. Continue reading “The ICC OTP’s Draft Policy on Situation Completion: rounding out the policy trilogy”

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The ICC OTP’s Draft Policy on Cultural Heritage: think boldly, worry about specifics later

The Office applies a holistic approach to the consideration of crimes against or affecting cultural heritage at all stages of its operations. They may constitute crimes under the Statute or otherwise be relevant, for example, in the assessment of gravity, which takes into account the scale, nature, manner of commission and impact of the crimes; in the assessment of the contextual elements of the crimes; as evidence in establishing the intent or motivation of the perpetrators; and during sentencing. The Office aims at considering the broadest scope of criminality, taking guidance from both the specific and general provisions of the Statute while recalling the principle of legality requirements. This will enable it to present the multifaceted nature and impact of crimes against or affecting criminal heritage, both tangible and intangible. (para. 30)

A policy, like a compass, helps set the course of direction. Unlike a GPS navigation system, however, a compass offers no guidance on available routes in reaching a desired destination. Neither guarantee an arrival.

So just how much stock should be given to a policy? It depends. As they say, the proof of the pudding is in the eating. Meaning, what is the genuine level of commitment in pursuing the policy, and even if the level of commitment is high, how implementable is it? Can and will the goods be delivered? Continue reading “The ICC OTP’s Draft Policy on Cultural Heritage: think boldly, worry about specifics later”

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Book Review: SHOCKING THE CONSCIENCE OF HUMANITY

SHOCKING THE CONSCIENCE OF HUMANITY – Gravity and the Legitimacy of International Criminal Law, by Margaret M. deGuzman, Oxford University Press, 2020, 217 pages, £80.00/$90.00

Global adjudicative authority is the authority that national and supranational institutions exercise when they adjudicate crimes on behalf of the global community…. [T]he moral justification for global prescription is the global community’s interest in preventing harm to human dignity. Global prescription is thus justified for all non-minimal harms to human dignity, and is most strongly legitimate for those in which the global community has the greatest interest. In contrast, the legitimacy of global adjudication depends not only on the strength of the global community’s interest in adjudication, but also on whether that interest outweighs any countervailing interests. (p. 98)

Prosecutors in national jurisdictions exercise their authority on what to charge or not charge, based on several variables, with gravity not playing much of a role – at least not in the context understood and applied in charging international crimes. Gravity is more likely to come to the fore at sentencing. It makes sense. The legislature criminalizes conduct based on societal/community norms. Thus, whether a particular set of circumstances should be prosecuted generally does not factor gravity into the mix, as such, when the evidence supports a reasonable assessment that the requisite elements in establishing the commission of a crime are met. Put differently, if in the prosecutor’s opinion, the evidence is qualitatively sufficient to meet his or her burden of proof in establishing that a particular individual committed crimes, save for ancillary factors that militate against prosecution, the prosecutor is expected to charge and prosecute that individual. I am oversimplifying for the sake of brevity, but the point is that in national prosecutions, “gravity” plays a lesser role on whether to charge or not. Even then, usually, there are criteria that guide prosecutors and judges – as readily apparent when fashioning sentences. Continue reading “Book Review: SHOCKING THE CONSCIENCE OF HUMANITY”

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MISAPPREHENDING THE ESSENCE OF NO CASE TO ANSWER & WHY IT IS INTRINSIC TO ICC TRIAL PROCEEDINGS: interpreting an accused’s fair trial rights through an inquisitorial victim-oriented humanitarian-centered prism  

In my view, the rights of these 700 plus victims to express their views and concerns, as well as their rights to truth, justice and reparations, and to have an effective remedy, were at stake in this case. Having placed emphasis only on the rights of the accused, Judges Henderson and Tarfusser prematurely terminated the proceedings, without providing reasons. In doing so, they did not seem to have considered the rights of the victims. I recall the human rights are interconnected and indivisible, and there is no one human right that is more important than another. In my view, in no case can the rights of two accused be preferred over the rights of more than 700 victims without more, especially through a procedure that is not envisioned in the Statute, while the rights of the victims are duly established under the Statute.… [E]ven if Judges Henderson and Tarfusser, being minded to acquit, had concerns as to the liberty of the accused, there was no need to terminate the trial prematurely as the Trial Chamber had been seized of submissions on the continued detention of the accused and the judges could have granted provisional release. Instead, Judges Henderson and Tarfusser decided not to entertain such submissions and rather acquit the accused, halfway through the trial, under the no case to answer motions.

Dissenting Opinion of Judge Luz del Carmen Ibáñez Carranza

 

Occasionally a circumstance comes along when not correcting the record, when not speaking truth to power, when remaining silent out of fear of ruffling powerful feathers, is as uncomfortable as trekking in shoes a half-size too small, with a stone, or worse yet, a sharp thorn, in them. Here is one of those occasions. Aside from finding Judge Luz del Carmen Ibáñez Carranza’s understanding of no case to answer procedure at the ICC flawed and ill-conceived, as a defence lawyer I find her above quoted dissenting remarks shocking, even scandalous. So, let me bring some clarity on the seemingly pesky no case to answer procedure by discussing its purpose and why under the adopted ICC regime it is not only appropriate, but indispensable. I will then deal with Judge Ibáñez Carranza’s comments which seemingly suggest that judges should, in some instances, apply a utilitarianism test when deciding to what extent they should afford an accused their right to the presumption of innocence and whether, for the sake of the victims, the prosecution should be given a pass when unable to meet its burden of proof. Continue reading “MISAPPREHENDING THE ESSENCE OF NO CASE TO ANSWER & WHY IT IS INTRINSIC TO ICC TRIAL PROCEEDINGS: interpreting an accused’s fair trial rights through an inquisitorial victim-oriented humanitarian-centered prism  “

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Book Review: THE OXFORD GUIDE TO INTERNATIONAL HUMANITARIAN LAW

The Oxford Guide to International Humanitarian Law, edited by Ben Saul & Dapo Akande, Oxford University Press, 2020, 442 pages, $ 49,95

You wasted $150,000 on an education you coulda got for $1.50 in late fees at the public library.

Matt Damon from Good Will Hunting 

One of the most memorable scenes in the film Good Will Hunting is when Matt Damon – playing the exceptionally brilliant, success-shunning Will Hunting, who does construction day labor when not moonlighting as a janitor at the Massachusetts Institute of Technology, irreverently solving mind-twisting mathematical problems left on the blackboards by the professors for the students to solve – takes down an elitist, arrogant, and pretentious Harvard student who is toying with one of Will’s friends. I particularly liked the quote in this scene because of the truism of Will’s putdown: you can learn just as much by going to the books as you can by attending a top-flight university – and for a fraction of the cost.

Whenever I think of this scene, I am reminded of my torts professor who, upon entering the classroom the first day, dispensed with all expected formalities, and disabused many of us from thinking that we were in law school to stuff as much law into our heads as possible, saying: Those of you who want to learn the law go to the library, you will find it in the books. Those of you who wish to learn to think like lawyers and know what to do with the law once you find it in the library, stay. Continue reading “Book Review: THE OXFORD GUIDE TO INTERNATIONAL HUMANITARIAN LAW”

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