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”

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”

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 “

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”

BORIS JOHNSON’S IMPRUDENT LETTER: irresponsibly fostering misperceptions

The election of two highly qualified UK nationals, Judge Joanna Korner QC and Karim Khan QC, to the roles of Judge and Prosecutor to the ICC respectively, will help serve reform. … As a founder member of the ICC, we have been one of its strongest supporters and continue to respect the independence of the institutions. We oppose the ICC’s investigation into war crimes in Palestine. We do not accept that the ICC has jurisdiction in this instance, given that Israel is not a party to the Statute of Rome and Palestine is not a sovereign state.

Beneath his frat-boy antics, disheveled looks, and bumbling affectations, lies a cunning, calculating, consummate political operator par excellence – even if many of his policies and positions reflect short-term, myopic, tactical jockeying and half-baked ideas. Boris Johnson may have written a (mediocre at best) biography of Winston Churchill, but Winston Churchill he is not. He also seems without a clue as to the concepts of judicial and prosecutorial independence, and that words coming from a Head of State, when imprudent, ill-conceived, and injudicious, create perceptions. Negative ones.

On 9 April 2021, the UK Prime Minister sent a letter to the Conservative Friends of Israel, noting its concerns about the International Criminal Court’s (ICC) recent ruling on the Palestine situation where the Pre-Trial Chamber found that the ICC has jurisdiction to investigate crimes committed in Palestine (see my recent review here). Understandably, the ruling on the Palestine situation has caused a fair amount of consternation or euphoria, depending on where one lines up on the issues involved. The UK had its chance to make amici submissions before the Pre-Trial Chamber. A ruling was issued. To now publicly pressurize the ICC to reverse course (no other way to view Johnson’s remarks), is pure, naked, crude political interference. Continue reading “BORIS JOHNSON’S IMPRUDENT LETTER: irresponsibly fostering misperceptions”

Book Review: Imagining Justice for Syria

Imagining Justice for Syria, by Beth Van Schaack, Oxford University Press, 2020, 476 pages, £64

It is tempting to conclude that our multilateral institutions do not have the capacity to address tragedies like Syria. However, the fault is not necessarily in the institutions themselves but with those who have the power to act. The law exists, as does a cadre of professionals with the necessary skills and a ready set of justice models; what is lacking is the ability to achieve a political consensus on a path forward, or a willingness to proceed without such a consensus, with respect to situations like Syria, where there has been no regime change, where atrocities are ongoing, and – most importantly – where the great powers find themselves at odds with each other. The long-standing weakness in our system of international justice is made all more pronounced by the situation in Syria.

It has been over a decade since we last went about our daily lives without having to hear about, or see on the news or social media, atrocities being committed in Syria. Just reflect on all that has happened to you since 2011 (what you accomplished at university or work, the events in your personal life, your travels, your joys and your losses), and just imagine what your life would have been like were you to trade all of those memories and experiences for a decade of living in Syria, under or in flight from the Assad Regime, gassed and poisoned, terrorized by the Islamic State of Iraq and the Levant (ISIL), deprived of virtually every human right and human dignity, constantly under fear or on the run, watching loved ones and friends being tortured, maimed, killed, living in refugee camps, crossing dangerous lands and waters in search for safety only to find closed border-crossings by hostile governments, and so on. Continue reading “Book Review: Imagining Justice for Syria”

THE ICC PROSECUTOR’S GUIDELINES ON PLEA AGREEMENTS – let’s make a deal

The Prosecutor should exercise particular caution before agreeing to seek the withdrawal or amendment of charges which have been traditionally under-prosecuted, such as crimes against or affecting children, sexual and gender-based crimes, attacks against cultural, religious, historical and other protected objects, as well as attacks against humanitarian and peacekeeping personnel.

Guidelines for Agreements Regarding Admission of Guilt, October 2020, para. 20

Some four years after Al Mahdi’s guilty plea was accepted based on an agreement reached with the Prosecutor for a nine-year sentence for one count of destruction of cultural heritage (mausoleums and mosques in Timbuktu) – and no other charges such as killings for which there seemed to be sufficient evidence to charge (see my prior posts here and here) – the Office of the Prosecutor (OTP) issued its Guidelines for Agreements Regarding Admission of Guilt (Guidelines) on 12 November 2020. Why now? It is not as if plea agreements have been a much sought-after commodity by the OTP. Lamentably.

The Guidelines are somewhat wanting. More of a basic policy paper for internal use and a PR piece for external purposes, the Guidelines provide vague “guidance” on whether, when, under what circumstances and subject to which terms the OTP will enter into plea agreements. Rather than drilling down on the specifics of the Guidelines (a pithy seven-pages), I will be providing some practical considerations and guidance for a more robust practice in negotiating plea agreements. But first, some prefatory remarks on why “plea bargaining” is misunderstood and gets a bad rap at the international(ized) criminal tribunals and courts. Continue reading “THE ICC PROSECUTOR’S GUIDELINES ON PLEA AGREEMENTS – let’s make a deal “

A Pragmatic Assessment of the Pre-Trial Chamber’s Ruling on the ICC’s Territorial Jurisdiction in Palestine: membership comes with privileges, not just responsibilities

The Chamber notes that Palestine acceded to the Statute in accordance with the procedure defined in article 125(3) of the Statute. On 2 January 2015, Palestine submitted its instrument of accession to the Statute, and became a State Party to the ICC on 1 April 2015, following the entry into force of the Statute in its territory. The United Nations Secretary-General circulated Palestine’s instrument of accession among the States Parties before accepting it and no State Party, except for Canada, manifested any opposition at the time. Palestine’s accession was subsequently accepted by the United Nations Secretary-General on 6 January 2015 and, on 1 April 2015, the then President of the Assembly of States Parties to the Rome Statute (the ‘Assembly of State Parties’) greeted Palestine in a welcoming ceremony, which ‘marked the entry into force of the Rome Statute for the State of Palestine […] thereby becoming the 123rd State Party’…. Moreover, since its accession, Palestine has contributed to the Court’s budget and has participated in the adoption of resolutions by the Assembly of State Parties.(( Situation in the State of Palestine, ICC-01/18-143, Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine,’ 5 February 2021, para. 100 (footnotes omitted). ))

Stripped from the politics, the lobbying, the bellicose threats, and the doomsday rhetoric surrounding the Prosecutor’s request pursuant to Article 19(3) of the Rome Statute for a ruling on the Court’s territorial jurisdiction in Palestine, the ruling by Pre-Trial Chamber I should not have come as a surprise. If considered pragmatically.

Anyone interested in the nitty-gritty of the Pre-Trial Chamber’s ruling should carefully pour over the majority and minority views spanning over 230 pages. There are also hundreds of pages of submissions and amici curiae briefs for anyone wishing to chase this ruling down the rabbit hole. As for further elucidation of this ruling and its significance, there are plenty of press releases, cautionary statements, and outright threats by the former Trump Administration in the US (as well as the Biden Administration’s objection to the ruling), easily found by surfing the internet. Continue reading “A Pragmatic Assessment of the Pre-Trial Chamber’s Ruling on the ICC’s Territorial Jurisdiction in Palestine: membership comes with privileges, not just responsibilities”

Peering through snow in The Hague

This weekend I found myself shoveling more snow than I have since my public defender days in Alaska. As I put my feet up and warmed my weary bones, I re-read a piece my friend Alan Yatvin wrote after getting caught in the snow here in The Hague three years ago. I was reminded of the vivid picture he painted of that experience, and his ruminations on the legacy of the ICTY. I also longingly recalled that which Alan kindly omitted — that I had abandoned him and was then enjoying much more salubrious weather in Phnom Penh. So for those of you, like me, trudging through the snow this weekend, here is a taste of an earlier storm, with a link to the whole essay. Stay warm.

A snowy December night in The Hague

I was in The Hague for a meeting of the Association of Defense Counsel at the International Courts (ADC-ICT). This was my last day in The Netherlands before heading home and it was snowing.

Winter Landscape with Skaters by Hendrick Avercamp

With images of Hendrick Avercamp’s impish 17th century paintings and childhood memories of Hans Brinker, or the Silver Skates (book and movie) dancing in my head, I set out for the “centrum” to fill the last afternoon of my vacation. However, that snowy, frozen canal climate is long gone from this country. Unused to so much snow in a short period of time the Dutch city was, if not paralyzed, substantially slowed down.

After wandering around mostly deserted streets, I headed for the oh-so-convenient bus whose route dropped me practically at the door of the home of my friend Michael Karnavas, where I was staying. Over the next hour, it finally dawned on me that despite the illuminated boards assuring that the bus was 9 minutes, then 4 minutes, then 1 minute away, before disappearing from the board altogether, the buses had ceased running. So, I caught the tram to the beach, which I knew stopped behind the building housing the United Nations International Criminal Tribunal for the Former Yugoslavia (ICTY) a 10 minute walk from my lodgings.

As I walked back, I stopped by the Churchillplein fountain, in front of the Tribunal, to reminisce and contemplate its impending closing.

Click here to read the rest.

ICC Judges Yield to the Experts’ Recommendations in Amending the Code of Judicial Ethics: a welcomed but modest tinkering to an otherwise impressionistic code of conduct

From the Experts’ consultation process, this lack of collegiality is said to have manifested itself in a variety of ways: poisonous relations, both judicial and personal, following the elections of the Presidency; public expressions of the lack of respect by a Judge towards other Judges; limited Chamber deliberations; excessive adherence and devotion to a Judge’s own legal system; very late circulation of draft written decisions; infrequent intra-Chamber and Intra-Division communications; existence of cliques, factions or open friction among Judges; lashing of disparaging comments on colleagues on the issuance of decisions; deliberate snubbing of associates; persistent failure to reach unanimity; and non-communication.

Independent Expert Review of the International Criminal Court and the Rome Statute System Final Report, 30 September 2020, para. 463.

In 2005, the ICC Judges adopted what may have been considered back then a groundbreaking Code of Judicial Ethics. Groundbreaking not for its contents, but rather for drafting and adopting a code that was to be “advisory in nature and have the object of assisting judges with respect to ethical and professional issues with which they are confronted” (Art. 11.1). Perhaps because the code was merely seen as advisory, its significance, or better yet, its obligatory nature was unacknowledged – at least by some of the judges.Codes of judicial ethics regulate the judiciary by providing guidance on the judges’ duties, responsibilities, and conduct towards other judges, the parties, witnesses, staff, and the judicial institutions – courts and tribunals. When providing clear and definitive rules governing the judges’ behavior, codes of judicial ethics effectively legislate, whereas when merely providing vague guidance with nebulous and undefined terms, they tend to be susceptible to mailable interpretations, equivocation, inconclusiveness, and ill-compliance. Of course, devising detailed rules for every ethical eventuality a judge is likely to encounter is unrealistic. Judicial canons should be pithy, expressing general principles. Preferably, they should also be accompanied by detailed prescriptive and proscriptive provisions that flush out the canons, and a commentary informing the object and purpose of the canons.

The ICC Code of Judicial Ethics provides no commentary but does merge canonical principles with more fleshed out provisions. Overall, it is a useful Code – at least to career judges and experienced litigators (prosecutors and lawyers) who arrive at the ICC to don the judicial two-toned blue robe. Even for those with prior national experience (who far too often are prisoners of their own legal system), a code that is scant in guidance, inexact in the meaning of terms, and lacking explanatory comments, will be appreciated and applied through their provincially narrow perspective. And it is not just the Code that is interpreted in this fashion – it cuts across all aspects of judges’ interpretation and application of statutory provisions, rules, and regulations. Not to mention their interactions with their colleagues and others. That’s where collegiality comes in. Continue reading “ICC Judges Yield to the Experts’ Recommendations in Amending the Code of Judicial Ethics: a welcomed but modest tinkering to an otherwise impressionistic code of conduct”