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”

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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”

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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”

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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.

Attribution: FreePics and Fotor

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?”

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PRIME TAKEAWAY ON ICC PROSECUTOR KHAN SEEKING GAZA RELATED ARREST WARRANTS: a bold, calculated, and inevitable move

Comply now, don’t complain later.


ICC Prosecutor Karim A. A. Khan KC

ICC Prosecutor Karim A. A. Khan KC

It came as no surprise. Yet surprised many were. After being “warned” by US Senator Tom Cotton et al. of the consequences that would follow were the ICC Office of the Prosecutor to seek arrest warrants against Benjamin Netanyahu and other top Israeli Government and military officials, Prosecutor Karim A. A. Khan KC lowered the boom and went ahead anyway. Yesterday, he submitted applications for arrest warrants against Israeli Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant as well as Hamas Head Yahya Sinwar, Commander-in-Chief of the Al-Qassam Brigades Mohammed Diab Ibrahim Al-Masri, and Head of Hamas Political Bureau Ismail Haniyeh.

Was it a response to Cotton’s silly and school-yard bully / Dirty Harryish “Go ahead, make my day” threat?  Or is it more like “a tailgate done dropped”, to borrow Charlie Crocker’s aphorism in A Man in Full? Conspiracy theorists will try to read things into the timing of this high-risk maneuver by Khan. I’ve already heard a few – some plausible, some farfetched. Continue reading “PRIME TAKEAWAY ON ICC PROSECUTOR KHAN SEEKING GAZA RELATED ARREST WARRANTS: a bold, calculated, and inevitable move”

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RUMORS OF PENDING ICC ARREST WARRANTS FOR ISRAEL AND HAMAS OFFICIALS: Conflating self-defence with accountability for crimes, and why “in the interests of justice” (in)action is a viable non-interfering option to the ongoing negotiations  

There is nothing more distorted than attempting to prevent Israel from defending itself against a murderous enemy openly calling for the destruction of the state of Israel. If the warrants are issued, they will harm the commanders and soldiers of the IDF and provide a morale boost to the terrorist organisation Hamas and the axis of radical Islam led by Iran against which we are fighting.


Israel Katz, Israel’s Foreign Minister

Such a lawless action by the ICC would directly undermine US national security interests. If unchallenged by the Biden administration, the ICC could create and assume unprecedented power to issue arrest warrants against American political leaders, American diplomats, and American military personnel, thereby endangering our country’s sovereign authority.


Mike Johnson, Speaker of US House of Representatives

We’ve been really clear about the ICC investigation. We don’t support it; we don’t believe that they have the jurisdiction.


Karine Jean-Pierre, White House spokesperson

It would be a fatal blow to the judicial and moral standing of ICC to pursue this path against Israel.


John Fetterman, US Senator

The fact that innocent civilians are trapped under the weight of a war they cannot escape and which is not their fault is not tenable.


Karim Khan KC, ICC Prosecutor

The above quotes are from The Guardian. A mere sampling. Aside from the obvious hypocrisy of US President Biden and his administration of supporting the International Criminal Court (ICC) when it comes to investigating alleged Russian atrocities in Ukraine while not recognizing the ICC’s jurisdiction to investigate and prosecute crimes alleged to have been committed by Israeli officials and the Israel Defense Forces (IDF), these quotes are as illuminating as they are alarming.

Auditions for RUMORS — Tacoma Little TheatreRumors abound. Potential arrest warrants for Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, and IDF chief of staff Herzi Halevi may be in the offing. According to Axios, Netanyahu has asked US President Biden to intervene. Netanyahu wants the US to assist in preventing the ICC from exercising its jurisdiction and carrying out its mandate – to prevent arrest warrants from being issued against senior Israeli officials and IDF members in connection with the war in Gaza. Continue reading “RUMORS OF PENDING ICC ARREST WARRANTS FOR ISRAEL AND HAMAS OFFICIALS: Conflating self-defence with accountability for crimes, and why “in the interests of justice” (in)action is a viable non-interfering option to the ongoing negotiations  “

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MUSINGS WITH PROF. ANDRÉ KLIP ON THE LEGACY OF INTERNATIONAL CRIMINAL TRIBUNALS: Have expectations been met or were they (and remain) overly aspirational?

Reflection… Looking back so the view looking forward is clearer.


Unknown

Unrealistic expectations often lead to disappointment while simple unbiased attention and detachment to outcome lead to pleasant surprises.


Gary Hopkins

While the Nuremberg trial has come to symbolize a grand moment of moral clarity, the Tokyo trial is engrossing precisely because it remains so controversial. Nuremberg is exalted precisely by lawyers and human rights activists as a template for recent efforts at international justice from Bosnia to Rwanda to the permanent International Criminal Court, while Tokyo is seen as an embarrassment best forgotten. The suffering of Asians gets little attention in the United States and Western Europe. If Nuremberg stands as a metaphor for ethical purity, then Tokyo represents a dive into murk.


Gary J Bass, Judgement at Tokyo: World War II on Trial and the Making of Modern Asia, p. 12

It seems inconceivable that prior to the early 1990s, there were no functioning international(ized) criminal tribunals/courts (ICTs). Since the establishment of the initial ad hocs – the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) – a slew of ICTs have come and gone or morphed into mechanisms. More are expected. Regional tribunals have emerged, filling in some of the gaps and picking up the slack. The application of universal jurisdiction in domestic courts is on the rise, though, only few states with highly developed prosecutorial and judicial systems are genuinely capable of handling cases of mass atrocities with due regard for international procedural and substantive justice standards.

And then there is the International Criminal Court (ICC). Established in 2002, it is a permanent fixture, ushered in with great fanfare and enthusiasm and hope, as the bulwark against impunity – the vanguard that would lead the charge, set the standards, and cast its shadow to presage and prompt. But after more than two decades in existence, with scant trials and even scanter convictions, the jury is still out. Permanence and relevance are not mutually inclusive. Nor does calling something permanent immunize it from withering to defunction. Even the most ardent devotees of the ICC (I am an unsentimentally strong, but clear-eyed and guarded supporter) must admit that thus far the ICC has underperformed.

Continue reading “MUSINGS WITH PROF. ANDRÉ KLIP ON THE LEGACY OF INTERNATIONAL CRIMINAL TRIBUNALS: Have expectations been met or were they (and remain) overly aspirational?”

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THE IILAT ETHICS SYMPOSIUM AT THE ICC: Sharing views on professional responsibilities and working through ethical dilemmas

[I]f we have to find our way over difficult seas and under murky skies without a compass or chronometer, we need not on that account allow the ship to drive at random.


A. Balfour, The Foundations of Belief, Being Notes Introductory to the Study of Theology (Longman, Green & Co., New York, 1902), p. 244.

You need to know what you don’t know, to know what you need to know.


Michael G. Karnavas, Training Aphorism

On 13-14 March 2024, I was privileged to have been invited as a panelist to an ethics symposium held at the International Criminal Court (ICC), organized by the Institute for International Legal and Advocacy Training (IILAT).

Founded in 2013 in The Hague, IILAT’s mission over the years has been “to address the growing need for courtroom advocacy training at international courts and tribunals.” Training, which might I add, is practical, relevant, and qualitatively excellent – and badly needed, considering the importance of adversarial skills required in virtually all international(ized) criminal tribunals and courts (ICTs). As for this symposium, I found it exceptionally useful and insightful. Continue reading “THE IILAT ETHICS SYMPOSIUM AT THE ICC: Sharing views on professional responsibilities and working through ethical dilemmas”

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THE DELAY IN PRONOUNCING THE AL-HASSAN TRIAL JUDGMENT – Inquiring minds want to know more!!!

Justice delayed is justice denied.


William E. Gladstone


Sunlight is said to be the best of disinfectants.


Louis Brandeis


The written decision under Article 74 of the Statute shall be delivered within 10 months from the date the closing statements end.


ICC Chambers Practice Manual, Seventh Edition (2023), para. 88.

On 6 December 2023, Trial Chamber X of the International Criminal Court (ICC) issued an order scheduling the pronouncement of its trial judgment in the Al Hassan case for 14:00 on Thursday, 18 January 2024 — over a month ago. Closing arguments had ended on 25 May 2023. With plenty of recesses during the trial proceedings, 10 months to render a decision (as required by the Chambers Practice Manual) is more than reasonable – assuming the Chamber is organized and efficient. Not being rocket science, and with plenty of best practices developed over the decades since the first ad hoc and successive international(ized) criminal tribunals and courts (ICTs) were established, drafting a judgment within this period should be no challenge. Continue reading “THE DELAY IN PRONOUNCING THE AL-HASSAN TRIAL JUDGMENT – Inquiring minds want to know more!!!”

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REASONABLE DOUBT FOR A REASONABLE PRICE: Just how reasonable is the ICC’s draft Legal Aid Policy? 

There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.


US Supreme Court Justice Hugo Black


A fair trial is one in which the rules of evidence are honored, the accused has competent counsel, and the judge enforces the proper courtroom procedures – a trial in which every assumption can be challenged.


Harry Browne

 There is much to be said about money buying a good defence. By this I mean a suspect or accused being able to have highly qualified and experienced counsel, to have a defence team that is both ideally suited and diligent, and to have sufficient resources to hire discrete investigators and experts essential in challenging every assumption.

Money does not necessarily guarantee quality, no more than being on the List of Counsel guarantees that counsel has the relevant experience and competence to lead a case before the ICC. But money does generally help when not dependent on legal aid for the quality of lead counsel and the resources in mounting a defence. Don’t get me wrong, there are plenty of top shelf advocates on the ICC List of Counsel. Truth be told, however, the vast majority of suspects and accused are not sophisticated enough to distinguish the excellent from the good, the mediocre, or  the inadequate. Generally, they will rely on others (rumors abound on who some of them are and of their methods) to help them out in picking a name off the list of 600-700 names. But this is an issue for another time. Here I want to focus on the draft Legal Aid Policy that the Assembly of State Parties will consider, and most likely adopt – though I would not be surprised if it balks at the modest remuneration increases being offered.  Continue reading “REASONABLE DOUBT FOR A REASONABLE PRICE: Just how reasonable is the ICC’s draft Legal Aid Policy? “

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