International Criminal Law Archives - Page 17 of 33

To opt-out or to opt-in, that is the crime of aggression

Confirms that … in the case of a state referral or proprio motu investigation the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments.

Draft Resolution proposed by the Vice-Presidents of the Assembly Activation of the jurisdiction of the Court over the crime of aggression, ICC-ASP/16/L.10, 14 December 2017

On 14 December 2017, the Assembly of States Parties (ASP) activated by consensus the crime of aggression amendments adopted during the Kampala Review Conference in 2010. It had been agreed that the amendments would not be activated until at least 30 States Parties ratified the amendments and until the ASP decided to activate them.

The crime of aggression was already listed in the Rome Statute as the fourth crime when the States Parties signed on to it, but the International Criminal Court (ICC) would only exercise jurisdiction over this crime once a provision would be “adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime.” So, while the crime of aggression has been on the books, as it were, it was not defined, and the States Parties effectively provided themselves (their political leaders and military elite – the usual suspects in waging war) an escape clause. The adopted Draft Resolution is a manifestation of this escape clause. Continue reading “To opt-out or to opt-in, that is the crime of aggression “

The Legacy Game: embroidering achievement while concealing failures

No sooner than an international(ized) criminal tribunal or court is established, it begins thinking of its legacy: what sort of bragging rights it can hope to claim as its contribution to the development of international criminal law and justice. This term is rarely heard in domestic settings, unless discussing some dark past in a State’s judicial affairs, such as the Inquisition or Star Chamber, or when the US Supreme Court ruled that it was constitutional for the US government to intern a segment of its citizens based on race, or imprison indefinitely so-called enemy combatants on an offshore military base. The negative connotation of legacy in these situations is seen as the aberrations in the life span of a nation’s history – something to remember and learn from, and to avoid.

At the international(ized) criminal tribunals and courts, however, legacy seems to mean something else – at least to the Presidents, Prosecutors, and Registrars. To them, legacy seems to be something that reflects only the positive, the achievements, the favorable statistics: how many trials were conducted, how many convictions resulted, what positive jurisprudence was generated, and of course, why other courts should be so lucky as to have such a successful track-record. Continue reading “The Legacy Game: embroidering achievement while concealing failures”

Karnavas Responds to John Doe’s Comment on Post: General Slobodan Praljak’s honorable defiance

I greatly appreciate that many colleagues and interested persons have taken the time to comment on my recent post: General Slobodan Praljak’s honorable defiance. One comment in particular, posted by “John Doe”, warrants a response. Below the comment is reproduced, followed by my response. Continue reading “Karnavas Responds to John Doe’s Comment on Post: General Slobodan Praljak’s honorable defiance”

General Slobodan Praljak’s honorable defiance

Ukoliko želite pročitati ovaj tekst na hrvatskom jeziku kliknite ovdje.

Having listened to the summary of the Appeal Judgment and having stood up to hear the litany of crimes affirmed by the Appeals Chamber before his sentence of 20 years was upheld, General Slobodan Praljak took his own life by drinking poison – but not before expressing his utter contempt for the Judgment, and by extension, his contempt for the Judges and the ICTY as a judicial institution.

Questions abound. How did General Praljak smuggle the vial of poison into the courtroom? How could he have gotten it through the numerous check-points where he would have been searched? Did he have it on him when he arrived at the ICTY? Did someone smuggle it to him there? Or, was it waiting for him at the ICTY, secretly planted in his cell or in the toilet?

Relevant as these questions are, few are asking what I think is perhaps the more important question: why did General Praljak take his life? Continue reading “General Slobodan Praljak’s honorable defiance”

Časni prkos generala Slobodana Praljka

Odslušavši sažetak presude u žalbenom postupku i ustavši da čuje litaniju zločina koje je utvrdilo Žalbeno vijeće prije nego mu je potvrđena presuda na 20 godina zatvora, general Slobodan Praljak uzeo si je vlastiti život popivši otrov – ali tek nakon što je izrazio svoj krajnji prijezir prema presudi, a dalje i prijezir prema sudcima i Međunarodnom kaznenom sudu za bivšu Jugoslaviju (MKSJ) kao sudskoj instituciji.

Sve vrvi pitanjima. Kako je general Praljak prokrijumčario bočicu s otrovom u sudnicu? Kako ju je prokrijumčario kroz brojne kontrole? Je li je imao kada je stigao na MKSJ? Je li mu je netko tamo prokrijumčario? Ili, je li ga otrov čekao na MKSJ, sakriven u njegovoj ćeliji ili u zahodu?

Kolikogod da su ova pitanja relevantna, malo ljudi postavlja pitanje koje smatram jednako važnim: zašto si je general Praljak oduzeo život? Continue reading “Časni prkos generala Slobodana Praljka”

Book Review – HOLODOMOR: Genocide or Extermination, or Does it Really Matter?

RED FAMINE – Stalin’s War on Ukraine, By Anne Applebaum, Allen Lane, 2017, 512 pages, £25.

First, they took everything from the collective farm storehouse – everything that farmers earned for their “work days” (trudodni). Then they took forage, seeds, and then they went to the huts and took the last grain from the peasants that they received in advance,… They knew that the area sown was smaller, the amount of grain harvested was lower in 1932 in Ukraine. However, the grain procurement plan was extremely high. Isn’t this the first step towards the organization of famine? During the procurement, Bolsheviks saw there was extremely little grain remaining, yet they carried on and took everything away – this is indeed the way to organize a famine.

Sosnovyi, Nova Ukraina 1942 (p. 333)

In 1929, Joseph Stalin, the General Secretary of the Soviet Communist Party, embarked on an agricultural collectivization policy that mutated into the deliberate and determined famine that killed over five million people in 1932-33 in the USSR, nearly four million of whom were Ukrainian peasants. The Holodomor, as it is known, “a term derived from the Ukrainian words for hunger – holod – and extermination – mor” (p. xxiv), is the subject of RED FAMINE – Stalin’s War on Ukraine, the latest book by Anne Applebaum, Pulitzer-Prize winning author of Gulag and National Book Award finalist for Iron Curtain.

RED FAMINE is a disturbing and compelling read for anyone interested in understanding the evils orchestrated by Stalin and implemented by his close associates, apparatchiks, enforcers, and, sadly, Ukrainian collaborators, against Ukrainian peasants, intellectuals, and political elites. The horrors Applebaum chronicles in page after page from official documents, private communications, secret speeches, diaries, personal accounts, letters, and even poetry, are mind-numbing. Continue reading “Book Review – HOLODOMOR: Genocide or Extermination, or Does it Really Matter?”

The Common Code of Professional Conduct: flawed and hubristic – Part II

This is the second and last post on the Common Code of Professional Conduct for all Counsel appearing before the International Criminal Tribunals (Common Code), launched in Nuremberg on 10 November 2017 at The Fifth International Meetings of the Defence. Continue reading “The Common Code of Professional Conduct: flawed and hubristic – Part II”

The Common Code of Professional Conduct: flawed and hubristic – Part II

The Common Code of Professional Conduct: flawed and hubristic – Part I

On Friday 10 November 2017, The Fifth International Meetings of the Defence adopted the so-called Common Code of Professional Conduct for all Counsel appearing before the International Criminal Tribunals (Common Code). Aside from being a non-binding document (I hesitate to call it a code since it is nothing of the kind), it is flawed and hubristic. Indeed, it may be that everything you need to know about the arrogance of the document and its creators can be divined from the declaration that it is to be “referred to as the 2017 Nuremberg Code.”

By happenstance, I heard that the Association of Defence Counsel practising before the International Courts and Tribunals (ADC) was consulted on this initiative. Having a particular interest in professional responsibility and ethics, I reached out to get a copy of the Common Code.

The ADC – the first and without a doubt the most accomplished association of its kind – was not involved in the drafting of the Common Code. The ADC sent its members a copy of the “Proposed Code,” informing them that it received the draft relatively late in the process. After the ADC Executive Committee and Disciplinary Council made an initial assessment of the Proposed Code, and without circulating it to the ADC membership (for reasons that become obvious from the available correspondence and discussed below), it decided that the ADC could not sign the Proposed Code as presented. Continue reading “The Common Code of Professional Conduct: flawed and hubristic – Part I”

Burundi’s withdrawal from the ICC nixes ongoing OTP investigations: coming to grips with reality

A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.

Rome Statute, Article 127(2)

It was coming for some time. On 27 October 2017, Burundi became the first State Party to withdraw from the International Criminal Court (ICC). The reasons for Burundi’s withdrawal are not important, though not a mystery. Motivated by a desire to shut down an investigation and to avoid the potential of having the powerful and elite charged and dragged to The Hague to be tried, Burundi bid farewell to ceding its jurisdiction to the ICC to investigate and prosecute crimes falling under the Rome Statute – whenever Burundi (as other States Parties) refused or was incapable of doing so. Continue reading “Burundi’s withdrawal from the ICC nixes ongoing OTP investigations: coming to grips with reality”