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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”

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 “

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”

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?”

Book Review – The Elgar Companion to THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA

The Elgar Companion to the Extraordinary Chambers in the Courts of Cambodia, by Nina H.B. Jørgensen, Edward Elgar Publishing, 2018, 404 pages, £ 144.00

With the benefit of hindsight, would the Cambodian government and the international community have joined hands and built the Extraordinary Chambers in the Courts of Cambodia (ECCC)? Possibly not. The Court has received more criticism than acclaim and is generally touted as a model not to be followed.

Nina H.B. Jørgensen, p. 359

The Elgar Companion to the Extraordinary Chambers in the Courts of Cambodia Anyone interested in the trials, tribulations, and contributions of the Extraordinary Chambers in the Courts of Cambodia (ECCC) to the development of international criminal law and justice, look no further than Professor Nina H.B. Jørgensen’s outstanding primer, The Elgar Companion TO THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA (The Companion to the ECCC). If there are any doubts about the ECCC’s legacy, particularly its positive contribution to international criminal jurisprudence, Professor Jørgensen has put them to rest. Thanks to her critical analysis of the ECCC’s procedures, of the cases tried and currently under investigation, and of the jurisprudence the ECCC has produced over the past decade – especially considering the general environment and context in which the ECCC operates – it is hard not to be impressed with the accomplishments of the ECCC, despite its numerous shortcomings and disappointing failures. Continue reading “Book Review – The Elgar Companion to THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA”

Taking Trump literally: a lethal consequence

Anybody throwing stones, rocks — like they did to Mexico and the Mexican military, Mexican police, where they badly hurt police and soldiers of Mexico — we will consider that a firearm, because there’s not much difference…. Because there’s not much difference when you get hit in the face with a rock.

President Donald J. Trump, 1 November 2018

For the past few weeks, we have witnessed scenes of a caravan of Central Americans, mainly from Honduras, heading toward the US. They are asylum seekers and migrants, escaping extreme violence and poverty. Laden with despair yet armed with hope, they are seeking a better life for themselves, their children, their grandchildren – they are seeking a shot at the American dream. Continue reading “Taking Trump literally: a lethal consequence”

The ICC is not a usurper: but is it inching towards being one?

But, Excellencies, Ladies and Gentlemen: any fear that the ICC is a usurper of national sovereignty proceeds from a clear misunderstanding of the nature of the ICC’s jurisdiction. That fear may indeed be implicated in the reluctance of some States to ratify the Rome Statute, as has been expressed around the world, where ratification has not yet taken hold.

….

But, even for the more able States, the ICC remains valuable – not as a usurper of sovereignty – but as a mirror of conscience. Such is the case where political will appears a little shy to address the needs of justice, behind the veil of sovereignty. It is noted in this connection that war crimes do occur in almost every war. And the culprits can come from the rank and file of the most disciplined and professional armed forces in the world, in spite of the best efforts of their commanders acting with unimpeachable good faith.

ICC President Judge Chile Eboe-Osuji, Speech to the United Nations General Assembly

International Criminal Court (ICC) President Judge Chile Eboe-Osuji addressed the United Nations (UN) General Assembly on 29 October 2018 with one overarching aim – to assuage the fears of many States and non-States Parties who view the ICC with alarm and skepticism as an organic international judicial institution that aspires to exercise jurisdiction well beyond the narrow contours of what the States Parties had agreed to when signing on to the Rome Statute. Measured, with generous usage of memorable quotes (one of his characteristic trademarks) and a whiff of thou doth protest too much, President Eboe-Osuji’s speech reads like an oblique response to US National Security Advisor John R. Bolton’s criticism of the ICC (see here).

As optimistic as one can be about the potential of the ICC, it is hard not to be a cynic, and even harder not to take with a grain of cynicism President Eboe-Osuji’s representations of the ICC’s abiding caution in exercising its jurisdiction narrowly, conservatively, and judicially. Not that he spoke with forked tongue, but when one looks at the recent Pre-Trial Chamber’s (PTC) Decision concerning the Rohingya, jurisdictional adventurism (mission creep) seems discretely afoot. Continue reading “The ICC is not a usurper: but is it inching towards being one?”

A Call for an Independent Representative Body for KSC Counsel: structure and suggestions – Part 2

Structuring KSC Counsel’s Independent Representative Body: a template

In Part 1 I shared some thoughts and offered suggestions for the working-group and Counsel qualified to appear before the Kosovo Specialist Chambers (KSC) to consider on whether to form an Independent Representative Body (IRB) tailored to their needs and expectations. In this post I will suggest a possible structure for the IRB and will provide a template for the Constitution. Suffice it to say, I am immeasurably grateful to many colleagues who over the years have enriched me with ideas on the structuring and functioning of professional associations. Continue reading “A Call for an Independent Representative Body for KSC Counsel: structure and suggestions – Part 2”

A Call for an Independent Representative Body for KSC Counsel: thoughts and suggestions – Part 1

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…

Niccolò Machiavelli, The Prince

To paraphrase the Virginia Slims marketing slogan, we’ve come a long way, baby.

For some time, the Kosovo Specialist Chambers’ (KSC) Registrar (assuredly with the blessings of the President) has reached out, repeatedly, to Counsel on the List to represent to suspects, accused, and/or a group of victims before the KSC, encouraging them to establish an association. This is consistent with the intent of the KSC Statute, even though Article 19(4) makes references to an “independent representative body of Specialist Counsel,” with Article 34(7) defining “Specialist Counsel” as Defence Counsel, as distinct from Counsel representing a group of victims, which under Article 34(6) are labeled as Victim’s Counsel. Obviously, the KSC Statute (and the spirit of the drafters) envisages one association for all Counsel (see generally Part 2 of my series on the KSC), as clearly reflected in the Registrar’s letter of 29 May 2018 calling for the establishment of an “Independent Representative Body” by “Counsel”. To suggest otherwise would be to assume that the drafter intended to disenfranchise Victim’s Counsel from providing their input on matters that, among others thing, directly impact their clients, despite Article 22(5) which provides that victims’ groups are assisted and represented by a Victims’ Counsel as provided by the Registry’s Victims’ Participation Office. Moreover, it would not make sense to have two associations, and as briefly noted below and more expansively in the next post, one association, properly structured, can accommodate all Counsel, including in matters when Specialist Counsel’s and Victims’ Counsel’s interests diverge. Continue reading “A Call for an Independent Representative Body for KSC Counsel: thoughts and suggestions – Part 1”

Book Review: Seeking Accountability for the Unlawful Use of Force

Seeking Accountability for the Unlawful Use of Force, Leila Nadya Sadat ed., Cambridge University Press, 2018, 612 pages, £ 26.99

Classic understandings about the demarcation between war and peace are not just quixotic remnants of a bygone era, but core underpinnings of the international legal system that are eroded at the peril of the entire world.

Leila Nadya Sadat, p. 556

Had it been up to me I would have retitled Seeking Accountability for the Unlawful Use of Force (Seeking Accountability) to something like: The International Crime of Aggression: past failures, present shortcomings, and future possibilities. Even if you think you know all there is to know about criminalizing aggression as an international crime, you are bound to find this collection of articles exceptionally rewarding. And if you really want to treat yourself, read it cover to cover as it has been smartly organized and edited by Washington University Law School Professor Leila Nadya Sadat. Spoiler alert: Seeking Accountability is dense, packed with information and source material that provokes and stimulates – not a quick or effortless read. Continue reading “Book Review: Seeking Accountability for the Unlawful Use of Force”