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SANCTIONS AS STIMULATIVE MEASURES: a sovereign prerogative untethered from moral discernment

Little Bill Daggett: I don’t deserve this… to die like this. I was building a house.

Bill Munny: Deserve’s got nothin’ to do with it.

Little Bill Daggett: I’ll see you in hell, William Munny.

Bill Munny: Yeah.

Unforgiven (1992)[/otw_shortcode_quote]

It is what it is. Don’t shoot the messenger.

Bending another state or institution (such as the International Criminal Court (ICC)) to the will of a more powerful sanctioning state may be distasteful, distressing, disadvantageous (depending on the side of the cause for the sanctions one is aligned with) but the harsh reality is that the use of sanctions is a sovereign prerogative. The sooner this reality is accepted and embraced, the sooner the sanctioned state or institution, along with their cast of supporting states, international and regional organizations, civil society, concerned global citizens can accept the need to explore realizable off-ramps or condition themselves to endure the consequences of the sanctions.

Why it is what it is

Reality is harsh. Powerful and well-positioned states resort to sanctions when it suits their interests. Imposing them may leave a might makes right stench in the nostrils, but it is what it is. Getting emotional, crying foul, engaging in hyperbolic condemnations, calling out the hypocritical and inconsistent use of sanctions against foes for conduct and causes that the sanctioning state engages in or tolerates and even supports when friends and allies do likewise, is not a strategy. It is a reaction. Continue reading “SANCTIONS AS STIMULATIVE MEASURES: a sovereign prerogative untethered from moral discernment”

Workplace Harassment at the ICC Stubbornly Persistent — Part 2: willful blindness, callous indifference, blissful incompetence or institutional protectiveness?

Part 2

The Disciplinary Committee takes into consideration, however, that the investigations carried out were not sufficiently thorough, particularly with regard to the role played by Mr. Emmanuel Altit in the management methods that led to the inappropriate behavior denounced by the complainants … nevertheless noted the particular seriousness of the alleged offences, repeated over several years and resulting in deep-seated trauma from which some of the complainants are still suffering today, as evidenced by the tears and clear signs of suffering observed at the hearing.

The International Criminal Court’s award [fine] of costs is justified by the fact that Ms. Jennifer Naouri’s actions were reported by the plaintiffs to both the Registry and the CSS prior to the filing of the complaints, without the Court’s bodies having taken adequate measures (instructions, investigation, control, call to order) to stop or prevent them.

Disciplinary Committee Decision, Disciplinary proceedings against Ms Jennifer Naouri

Part 1 dealt with general context and why the Registry in no small measure is responsible for much of the persistent workplace harassment as it relates to the defence. Part 2 will focus on the Disciplinary Board’s (Board) findings against ICC Defence Counsel Jennifer Naouri. Without reading too much into the tea leaves and mainly relying on what was reported by the complainants/victims and now proven by the Board, as well as what I have heard and observed and surmised for nearly a decade, I will offer my take on why Naouri behaved as she did, and why others in like circumstances are susceptible to behaving likewise. My aim is neither to demean nor moralize. Rather, in examining the findings, I aim to see what lessons can be learned for improving workplace conditions for all members of defence teams. For this it will be necessary to examine how the Registry, Naouri, and all of us in the ICC List of Counsel might improve in providing the best possible representation to suspects and accused during pre-trial and trial and convicted persons on appeal.

Before turning to the Decision, it is important to consider three preliminary points and one key caveat. Continue reading “Workplace Harassment at the ICC Stubbornly Persistent — Part 2: willful blindness, callous indifference, blissful incompetence or institutional protectiveness? “

Workplace Harassment at the ICC Stubbornly Persistent — Part 1: willful blindness, callous indifference, blissful incompetence or institutional protectiveness?

The Disciplinary Committee also notes that all of them [complainants] report after-effects resulting from Ms. Jennifer Naouri’s behavior and management style: diagnosis of post-traumatic stress disorder (Exhibit PL138), anxiety attacks, loss of confidence, feelings of fear and intense stress, burnout, taking medication, even suicidal thoughts.

Disciplinary proceedings against Ms Jennifer Naouri, Decision, p.6.

This made me most angry. Young women come to the ICC with great enthusiasm and dreams, and what happens? They are psychologically mutilated, harassed, they are told that they cannot understand the dossier and cannot analyse all the dangers, so they can only obey.

Catherine Mabille, ICC Disciplinary Commissioner, quoted in Justice Info

Prolegomena

The ICC is yet again at a crossroad. This time the Registry faces a self-inflicted conundrum. The recent Disciplinary Board decision against Defence Counsel Jennifer Naouri exposed numerous systemic weaknesses known to the Registry for years. Sadly, the Registry has been listless and lazy. When it opts to act, it’s too little, too late. And even then, it embraces opaqueness and obfuscation. Query: will the Registry take the path that fosters a workplace free of abusive behavior inflicted on subordinate staff across all organs and independent actors in the court, or will it continue down the path of business as usual.

Harsh but well-earned criticism. The Registry has been too lax and too indisposed to bother with providing the necessary training, upholding high standards, affording adequate remuneration for qualified personnel, and monitoring the working conditions of the Defence. If there is an existing standard, it is one of marginal competence, marginal remuneration, marginal resources, marginal training, and marginal workplace oversight. Quality of representation, quality of competence, quality of skill level, quality of training, quality of the working environment has been of little concern to the Registry. Some have suggested that this is purposeful to give the Office of the Prosecutor (OTP) a winning chance. Cynical as it sounds, subliminally, such intentions may be a factor when considering the OTP’s modest successes in the trial and appeal trenches. Continue reading “Workplace Harassment at the ICC Stubbornly Persistent — Part 1: willful blindness, callous indifference, blissful incompetence or institutional protectiveness? “

ALLEGATIONS OF SERIAL SEXUAL ASSAULT REVEALED: ICC Prosecutor Khan should step aside while the investigation is pending

He always holds on to me and leads me to the bed. It’s the feeling of being trapped. People have told me to stand up against this man, yet everyone, including elected officials, seem to be very scared of him and says there is nothing we can do [about making him step aside] because he refuses.

Prosecutor Karim A. A. Khan’s accuser, as quoted in the WSJ

In my last post, I warned of the International Criminal Court’s (ICC) self-inflicted quandary: being at a credibility and sustainability crossroads. I referred to two imminent tests. The first test dealt with jurisdiction in the Rodrigo Duterte case. With some Judges/Chambers indulging enthusiastically in creative judicial activism on jurisdictional issues in general, I warned that reversing course will take judicial courage and restraint. Both are in short supply if past is prologue. The second test dealt with the Khan affair.

For months it had been reported that ICC Prosecutor Karim A.A. Khan was accused by his female assistant of sexual harassment, and that with the help of others, he obstructed the investigation by intimidating witnesses or pressuring them to recant. I warned against dragging out the investigation or sweeping the matter under the proverbial rug. When I posted, Khan had yet to be interviewed. Optically, the process seemed as quick as a snail and as transparent as my grandmother’s thick velvety-green pea soup. Then last week it was reported in the conservative but respected US newspaper, The Wall Street Journal (WSJ), that Khan had finally been interviewed. The article is a bombshell. What was initially reported as alleged sexual harassment is much more serious. As reported in the WSJ, the lurid details of what the accuser is claimed to have stated when interviewed as part of the investigative process into her allegations, amount to Khan sexually assaulting her on multiple occasions in multiple locations, including in the residence of Khan’s wife in The Hague, where Khan resides.

Presumption of innocence and due process aside, has the time come for Khan to take a leave of absence from his position at the ICC while this sordid saga runs its procedural course? I think so; probably long overdue. Continue reading “ALLEGATIONS OF SERIAL SEXUAL ASSAULT REVEALED: ICC Prosecutor Khan should step aside while the investigation is pending”

THE ICC’s SELF-INFLICTED QUANDARY: stick to the terms of the treaty, avoid judicial activism and jurisdictional overreach, and reign in hubristic impulses, or wither from abandonment, irrelevancy and disrepute

Wherever law ends, tyranny begins.

John Locke

The last couple of weeks have been particularly disquieting for the International Criminal Court (ICC). Prime Minister of Hungary, Victor Orbán, not only hosted Israeli Prime Minister Benjamin Netanyahu (who is subject to an ICC arrest warrant) but also announced his intent to withdraw Hungary from the ICC. Then came the news that Belgium would not comply with its ICC obligation to arrest Netanyahu were he to visit. And then came the Reuters news “exclusive” on the ongoing investigation of ICC Prosecutor Karim A.A. Khan KC for sexual harassment, obstruction of justice, and intimidation of witnesses. Old news, but if any of the reported damning details are proven, Mr. Khan will have disgraced himself and the Office of the Prosecution (OTP). More on this below. Continue reading “THE ICC’s SELF-INFLICTED QUANDARY: stick to the terms of the treaty, avoid judicial activism and jurisdictional overreach, and reign in hubristic impulses, or wither from abandonment, irrelevancy and disrepute”

Does the ICC have Jurisdiction over Duterte? No, its jurisdiction has lapsed!

Based on a holistic reading of the relevant provisions, as set out above, we consider that there is a distinction between the existence of jurisdiction and the Court’s ability to exercise the jurisdiction, and that the preconditions to the exercise of the Court’s jurisdiction set out in article 12 of the Statute must exist at the time that the exercise of the jurisdiction is triggered pursuant to article 13 of the Statute.

Dissenting Opinion of Judge Perrin de Brichambaut and Judge Lordkipanidze, para. 23.

In the past I have posted about former Philippine President Rodrigo Duterte, cautioning against making public pronouncements and statements that would assuredly be considered self-incriminating by the ICC. I’ve also stressed that he should not be prejudged; his case must be considered with full regard to the ICC framework and his fair trial / human rights.

Over the years Duterte has made damning and self-inflicting statements. Taken at face value they can and no doubt it will be argued that these are admissions and proof of guilt. There is also the reported body-count alleged to be directly linked to Duterte’s war on drugs. Continue reading “Does the ICC have Jurisdiction over Duterte? No, its jurisdiction has lapsed!”

BOOK REVIEW: Prosecuting Environmental Harm before the International Criminal Court, by Matthew Gillett

Prosecuting Environmental Harm before the International Criminal Court, Matthew Gillett, CUP 2022, €110.87

… major adjustments to address environmental harm would provoke the fundamental question whether they constitute too great a departure from the Court’s conception, which is distinctly anthropocentric in orientation. Balancing human interests against environmental interests is a fraught exercise, particularly given that these interests frequently overlap and are inter-connected depending on the point of view of the person making the assessment. Nonetheless, the risk of environmental harm being ultimately de-prioritized in ICC proceedings would remain, even if amendments were made to the Rome Statute to add a form of environmental crime to the arsenal of prohibitions. (p. 337)

Sobering.

Tinkering with the Rome Statute to add more arrows in the International Criminal Court’s (ICC) prosecutorial quiver to combat serious environmental destruction seems simple, an elegantly attractive solution to an obvious although not entirely unintended lacuna. Also, query whether the tinkering could plausibly result in an ecocentric framework which would include, among other things, prosecuting corporations (not just individuals) and affording victim reparations beyond the expressed contours of the Rome Statute.

Considering what it took to include the crime of aggression, not to mention its lack of acceptance by all States Parties (opt-in /opt-out permutations), this is a virtual non-starter. And good luck finding consensus on defining ecocide and amending the Rome Statute to include lower standards of proof as argued by the proponents who find proof beyond reasonable excessively high for achieving desired convictions. Continue reading “BOOK REVIEW: Prosecuting Environmental Harm before the International Criminal Court, by Matthew Gillett”

THE ICC-OTP DRAFT POLICY ON ENVIRONMENTAL CRIMES: more circumlocutory huffing and puffing

This Tribunal will not be judged by the number of convictions which it enters, or by the speed with which it concludes the Completion Strategy which the Security Council has endorsed, but by the fairness of its trials.

ICTY Judge David Hunt

Nor will the International Criminal Court (ICC) be judged by the number of policies issued by its Office of the Prosecution (OTP), but by the quality and quantity of cases it resolves fairly and justly. Policy papers without tangible efforts and results are a pretense, a veneer, a charade that unrealistically raise expectations and inevitably disappoint.

Not to sound even more curmudgeonly than usual but I find little to nothing of substance in the OTP’s 18 December 2024 Draft Policy on Environmental Crime Under the Rome Statute that is not already baked into the cake: the Rome Statute, the OTP’s overarching remit, prosecutorial best practices, and dust-collecting idle policy papers spawning the past couple of decades. Continue reading “THE ICC-OTP DRAFT POLICY ON ENVIRONMENTAL CRIMES: more circumlocutory huffing and puffing”

BOOK REVIEW: Proving International Crimes, by Yvonne McDermott

Proving International Crimes, Yvonne McDermott, Oxford University Press 2024, 207 pages, £100.00

Fact-finding in the international criminal tribunals will always be probabilistic in nature, because the evidence is invariably incomplete, rarely conclusive, often ambiguous, frequently dissonant, and always with varying degrees of credibility and reliability.… Probabilistic reasoning often involves updating one’s prior beliefs in light of each new piece of information as it is presented. Under what is commonly called ‘relative plausibility theory’ or ‘inference to the best explanation,’ a fact-finder evaluates the different likely explanations of the evidence, and considers which of these explanations is most likely. (pp. 128-129)

If international criminal judgements cannot rigorously demonstrate the evidence and inference that led to particular conclusions … this could jeopardize their legitimacy and claim to authority to try and punish alleged perpetrators of international crimes. (p. 67)

A trial – reduced to its essence in so far as what a prosecutor or counsel can influence – is about having evidence admitted or excluded: getting good/favorable stuff in and keeping bad/unfavorable stuff out. The outcome rests on the evidence: what it is and how it was admitted, screened, assessed, connected, weighed, and applied to the law.

In national jurisdictions, how evidence is treated is ordinarily settled law and practice. All involved (judges, prosecutors, defence counsel, victims’ representatives) sing from the same music sheet. This cultivates uniform, consistent, and predictable procedure. Save for occasional deviations or lapses, criminal case resolutions at the appellate level are largely deemed just and accepted. If only judges at international criminal tribunals were as uniform and consistent and mindful and experienced and receptive to a set approach in admitting and assessing evidence.

With judges of different systems and disparate judicial experience (some don the judicial robe having no relevant experience), and with no detailed rules of evidence such as those found in common law traditions, and with no set approach on how evidence should be admitted, let alone assessed, how international criminal trials are conducted vary perceptibly, both procedurally and substantively. As such, it should come as no surprise that outcomes of trials at any of the international criminal tribunals are not always embraced as fair and just. Looking at some trial and appeal judgments and the attendant separate and dissenting opinion, one gets the sense that among the judges, to paraphrase from the classic film Cool Hand Luke: What we’ve got here is failure to communicate. Continue reading “BOOK REVIEW: Proving International Crimes, by Yvonne McDermott”

THE ICC’S ACHILLES HEEL IS BARE: will Netanyahu arrest warrant be the poison arrow that devastates the ICC?

The Court has been subjected to attacks seeking to undermine its legitimacy and ability to administer justice and realise international law and fundamental rights; coercive measures, threats, pressure and acts of sabotage. Several elected officials are being severely threatened and are subjected to arrest warrants from a permanent member of the UN Security Council, merely for having faithfully and diligently carried out their judicial mandate per the statutory framework and international law. Two other warrants have been newly issued, as in the Presidency’s recent public statement. The Court is being threatened with draconian economic sanctions from institutions of another permanent member of the Security Council as if it was a terrorist organisation. These measures would rapidly undermine the Court’s operations in all situations and cases and jeopardise its very existence. We firmly reject any attempt to influence the independence and the impartiality of the Court. We resolutely dismiss efforts to politicise our function. We have and always will comply only with the law, under all circumstances.

Judge Tomoko Akane, ICC President, 2 December 2024

ICC President Akane’s remarks at the 23rd session of the International Criminal Court’s (ICC) Assembly of States Parties are as alarming as they are Cassandraesque.

The ICC is at a watershed moment. Since its inception, it overpromises and underperforms, trying to be all things, all places, all at once. The unfolding drama and panic over the arrest warrants against Israeli Prime Minister Benjamin Netanyahu and former Israeli Defence Minister Yoav Gallant may prove the ICC’s critics right: that is more of an African court, willing and able to prosecute Africans, but unwilling or unable to prosecute Westerners and their friends. Continue reading “THE ICC’S ACHILLES HEEL IS BARE: will Netanyahu arrest warrant be the poison arrow that devastates the ICC?”