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THINKING OF WAR WHILE VACATING: a book review series

The Drum

I hate that drum’s discordant sound,
Parading round, and round, and round:
To thoughtless youth it pleasure yields,
And lures from cities and from fields,
To sell their liberty for charms
Of tawdry lace, and glittering arms;
And when Ambition’s voice commands,
To March, and fight, and fall, in foreign lands.

I hate that drum’s discordant sound,
Parading round, and round, and round:
To me it talks of ravaged plains,
And burning towns, and ruined swains,
And mangled limbs, and dying groans,
And widows’ tears, and orphans’ moans;
And all the Misery’s hand bestows,
To fill the catalogue of human woes.

John Scott of Amwell (1730-1793)

Four years ago this month, when we were heading to the beaches or mountains, or just chilling at home, as is the norm during August in Europe, I wrote a post Vacationing Without Vacating: an imperative for reflecting on the Blood Telegram. My point was to remind us that even while vacationing, we should be mindful of the plight of others less fortunate. Back then the events against the Rohingya in the Rakhine State of Myanmar were headline news, but so were the events in Syria and elsewhere.

We look forward (and deservedly so) to a bit of respite from thinking of such events as we try to recharge our batteries with some of our favorite pastimes – be it visiting places, exploring new hobbies, or simply indulging in reading a good book, preferably one that entertains – and to a vacation that affords the mind a leave of absence from the grind at work, from the daily chores, and from the pressures that come with being responsible adults. Who wants to think about killings, rapes, forcible transfers, deportations, ethnic cleansing, and all the human misery that wars, conflicts, and acts of terror bring? We are not asking for much – just to vacate while vacationing.

Yet war, conflict, terror, and human atrocities don’t take a holiday. Continue reading “THINKING OF WAR WHILE VACATING: a book review series “

Ecocide: the environmental crime of crimes or ill-conceived concept?

… man has consciously and unconsciously inflicted irreparable damage to the environment in times of war and peace. — Richard A. Falk, 1973

And will continue to inflict irreparable harm. Environmental degradation and climate change are coming to the forefront of global anxieties with reports of CO₂ emissions hitting record levels in 2020 (with a minor dip thanks to COVID), 178 million hectares of forest – an area the size of Libya – being deforested since 1990 (and continuing with impunity), and oil pipelines bursting, leaking into the sea, and causing massive damage to coastal communities (while underneath, 70% of the earth’s coral reefs are at risk due to long-term threats). More desertification, drought, fires, and floods are only expected – at least by the majority of 1.2 million people surveyed worldwide by the United Nations Development Programme who consider that climate change is a global emergency. And this is just peace time pollution. Aside from the obvious environmental damage caused during conflicts, War Junk – weapons and military materials such as landmines, cluster munitions, chemical and radiological weapons – also leaves environmental legacies post-conflict, restricting the use of agricultural land and polluting soil and water sources with explosives and deadly chemicals such as TNT, adamsite, Clark I and Clark II, tabun, and mustard gas, just to name a few.

Claiming that “scientific evidence points to the conclusion that the emission of greenhouse gasses and the destruction of ecosystems at their current rates will have catastrophic consequences for our common environment,” the Independent Expert Panel for the Legal Definition of Ecocide (IEP) assembled by the Stop Ecocide Foundation proposes that the Rome Statute be amended to include the crime of ecocide. Bold, impressive, even alluring. But is the proposed crime necessary, is the definition of it sound, and more pragmatically, how realistic is it that the Assembly of States Parties (ASP) will adopt a fifth international core crime – even if the proposed Article 8 ter crime of ecocide is considered necessary and sound? Continue reading “Ecocide: the environmental crime of crimes or ill-conceived concept?”

Book Review: THE LAST TRIAL

THE LAST TRIAL, by Scott Turow, Pan Books, 2020, 449 pages, $12.82

The law is humanity’s sanctuary, where we retreat from unreason. And humans need the law, because they need to believe there is some justice to their interactions, a justice that God or Fate or the Universe, call it what you like, will never provide on their own.

Reviewing Turow’s Testimony (2017) here, I completely panned it, recommending that you opt for John Grisham’s Camino Island, which had just come out (incidentally, the sequel Camino Winds which recently came out is also a recommended beach read). Turow had never disappointed before; I first came across him when I read One L when thinking of going to law school. But in Testimony, I found the plot absurd and unrealistic, his courtroom scenes laughable (he was on unfamiliar ground at the ICC), his stereotyping distasteful (though he is unquestionably tolerant and unbiased), his historical narrative lazy and misleading (conflicts are complex with no one side having a monopoly on badness). Worst of all it is a “gratuitous Serb-bashing, primarily resulting from ignorance and insensitivity; using them as a punching bag, stereotyping them, and generalizing about their character or activities.”

Not so in The Last Trial.

Continue reading “Book Review: THE LAST TRIAL”

EARLY RELEASE: Has IRMCT President Carmel Agius moved the goalposts? (Part 3)

Rehabilitation is a process rather than a definite result, and it is just one factor that I will consider alongside other factors when deciding on the early release of a convicted person who is eligible to be considered for such relief. – President Agius in Kunarac, para. 45

[A]t the ICTR and the ICTY, rehabilitation has been, on occasion, referred to as an additional sentencing goal, but it has not been defined… There is, however, no settled definition of the exact contours of the concept of rehabilitation in the context of genocide, crimes against humanity, or war crimes. In this regard, I observe that until recently the assessment of rehabilitation focused mostly on whether the convicted person had demonstrated good behaviour in prison. – President Agius in Bralo, para. 37

Having discussed in Part 2 the statutory provisions, rules, and practice directions for early release at the International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), and International Residual Mechanism for Criminal Tribunals (IRMCT), let’s now look at the case law in answering the question I have set out to settle: Has IRMCT President Carmel Agius moved the goalposts? But first, some prefatory remarks.

As with all international(ized) tribunals and courts, the convicted persons under IRMCT supervision are serving their time in prisons of States that have agreed to accept them. Where one ends up serving his or her time can make a difference not just in the quality of life behind bars, but also when it comes to early release – at least in theory. Continue reading “EARLY RELEASE: Has IRMCT President Carmel Agius moved the goalposts? (Part 3)”

EARLY RELEASE: Has IRMCT President Carmel Agius moved the goalposts? (Part 2)

[W]hile it has been consistently emphasized that the two-thirds point is a mark of eligibility and not an automatic right to release, the Mechanism has inherited a long standing practice of granting requests for early release upon completion of two-thirds of a sentence absent particular circumstances that warrant against it. This practice was initiated by Judge Claude Jorda, during his tenure as President of the ICTY, and continued by subsequent Presidents of the ICTY thereafter.

President Meron in Corić, para. 38

In Part 1 I promised to settle the question of whether International Residual Mechanism for Criminal Tribunals (IRMCT) President Carmel Agius has moved the goalposts and perhaps even demanded confessions of guilt from convicted persons by adopting additional factors for early release. To answer this question, we must first look at the history of early release at the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the IRMCT, and how the jurisprudence has evolved over the past 20 plus years. In this post I will deal with the practice directions. I will then end the series in the next post by examining a number of cases, which should provide a good basis to draw some conclusions and some best practices. Continue reading “EARLY RELEASE: Has IRMCT President Carmel Agius moved the goalposts? (Part 2)”

EARLY RELEASE: Has IRMCT President Carmel Agius moved the goalposts? (Part 1)

1967 Parole Hearings Man: Ellis Boyd Redding, your files say you’ve served 40 years of a life sentence. Do you feel you’ve been rehabilitated?

Red: Rehabilitated? Well, now let me see. You know, I don’t have any idea what that means.

1967 Parole Hearings Man: Well, it means that you’re ready to rejoin society…

Red: I know what you think it means, sonny. To me it’s just a made up word. A politician’s word, so young fellas like yourself can wear a suit and a tie, and have a job. What do you really want to know? Am I sorry for what I did?

1967 Parole Hearings Man: Well, are you?

Red: There’s not a day goes by I don’t feel regret. Not because I’m in here, or because you think I should. I look back on the way I was then: a young, stupid kid who committed that terrible crime. I want to talk to him. I want to try and talk some sense to him, tell him the way things are. But I can’t. That kid’s long gone and this old man is all that’s left. I got to live with that. Rehabilitated? It’s just a bullshit word. So you go on and stamp your form, sonny, and stop wasting my time. Because to tell you the truth, I don’t give a shit.

The Shawshank Redemption (1994)

A sentence imposed by some of the international(ized) criminal tribunals or courts, including the International Residual Mechanism for Criminal Tribunals (IRMCT), rarely reflects the years a convicted person will end up serving, just as eligibility for early release rarely corresponds with early release. Yet convicted persons, confusingly, consider early release upon eligibility as a given – an entitlement, as if it were a right. You cannot blame them. As they see it (as do many of us on the defense), baked into the sentence is the factor of eligibility for early release after serving the mandatory portion of the sentence, which, at the IRMCT, is 2/3 of the sentence imposed.

Early release is neither novel nor unique practice at the IRMCT. First adopted by the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) despite the absence of an express statutory provision, it is a time-tested and well-established practice in domestic penal systems. Continue reading “EARLY RELEASE: Has IRMCT President Carmel Agius moved the goalposts? (Part 1)”

Book Review: EXTRAORDINARY JUSTICE – Law, Politics, and the Khmer Rouge Tribunals

EXTRAORDINARY JUSTICE – Law, Politics, and the Khmer Rouge Tribunals, by Craig Etcheson, Columbia University Press, 2020, 488 pages, $65.00

My central thesis in this work is that the law is at base an ideological enterprise, an ideology we can generally label as “legalism.” But – and this is crucial – the law is not a single, unified ideology. Rather, there are several different approaches to the concept of law, and we can see the animating principles underlying those different approaches in the way that war crimes tribunals are negotiated, operated, and concluded. I call these three approaches to law classical legalism, strategic legalism, and instrumental legalism. All three are long-standing, widespread, potent, and enduring. And the outcome of struggles among proponents of these different approaches determine much about how any particular war crimes tribunal ultimately unfolds.

The establishment of the Extraordinary Chambers in the Courts of Cambodia (ECCC) is a complex story, beginning in the late 1970s and early 1980s as the atrocities taking place during the Democratic Kampuchea (DK) regime (1975-1979) became known. A show trial took place in August 1979. Pol Pot and my client, Ieng Sary, were held to account for all that had occurred. After the 1991 Paris Peace Agreement – which led to probably the fairest election in Cambodia’s history in 1993 – bringing to book the leaders of the DK regime and other responsible high-level Khmer Rouge cadre started to gain some momentum. Eventually, on 6 June 2003, an Agreement was hammered out between the Cambodian government, controlled by the Cambodian People’s Party (CPP), and the United Nations (UN).

Getting to this Agreement, what the parties (purportedly) understood to have agreed to, what emerged from this Agreement – i.e., the procedural framework of an international(ized) criminal tribunal or specialized chamber within a national court system, its jurisdictional contours and applicable law, its hybridity of personnel, personality, and their interactions (national and international) in making the ECCC happen, and how it has operated – is what EXTRAORDINARY JUSTICE – Law, Politics, and the Khmer Rouge Tribunals is all about. Continue reading “Book Review: EXTRAORDINARY JUSTICE – Law, Politics, and the Khmer Rouge Tribunals”

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

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?”

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”

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 “