International Criminal Law Archives - Page 5 of 29

The BiH High Representative’s Criminal Code Amendment’s Criminalization of Thought to Foster Reconciliation: dare we publicly question the infallibility of the ICTY’s findings of facts and conclusions of law?

“I disapprove of what you say, but I will defend to the death your right to say it.” –Voltaire

valentin inzko — Valentin Inzko, former High Representative (HR) of Bosnia and Herzegovina (BiH)

With a week left in his 12-year stint as the High Representative (HR) of Bosnia and Herzegovina (BiH), the Slovenian-born Austrian diplomat and honorary citizen of BiH, Valentin Inzko, exercised his omnipotent legislative authority granted to him by the Peace Implementation Council at its December 1997 meeting in Bonn, Germany or “Bonn powers”– the powers conferred to the HR to avoid obstruction by local authorities in implementing the Dayton Peace Accords (DPA) – to impose an amendment to the BiH Criminal Code. Effectively, he criminalized the denial or trivialization of genocide, crimes against humanity, or war crimes that have been found by the International Military Tribunal in Nuremberg, International Criminal Tribunal for the former Yugoslavia (ICTY), and other courts in BiH. With the War Crimes Section of the Court of BiH readily accepting adjudicated facts from ICTY final judgments as presumptively, though rebuttably, proven (thus reversing the burden of proof on the defense, as was the practice at the ICTY), the imposed amendment seemingly removes the rebuttable presumption, thus making any adopted adjudicated facts definitive and incontestable; ditto for conclusions of law. Continue reading “The BiH High Representative’s Criminal Code Amendment’s Criminalization of Thought to Foster Reconciliation: dare we publicly question the infallibility of the ICTY’s findings of facts and conclusions of law?”

Book Review: THE FUTURE OF WAR

THE FUTURE OF WAR, by Lawrence Freedman, Public Affairs, 2017, 376 pages, $18.99

Our regular assumption was that the odds of success might be shifted decisively as a result of some new technology. Gunpowder to musket, steam turbines to aircraft, missiles to digital networks, all changed the character of warfare, opening up new possibilities while closing off others. But the technology was rarely monopolized or else, if one side enjoyed superiority, adversaries found ways to limit their effects. Even for modern Western forces, technology encouraged a fantasy of a war that was fast, easy, and decisive: yet still they found themselves facing ‘slow, bitter, indecisive war.’

War has a future. It will remain a main staple for states large and small, for non-state actors fighting for an ideology, and for ethnic groups fighting over territory believed to be theirs. Continue reading “Book Review: THE FUTURE OF WAR”

Book Review: LAW AND MORALITY AT WAR

LAW AND MORALITY AT WAR, by Adil Ahmad Haque, Oxford University Press, 2017, 285pgs., $51.53

It is unfortunate that the moral theory of war is so often referred to as “just war theory.” This label suggests that just wars are real things that could be the subject of a theory – like politics, decisions, or music. In my view, moral theory should aim to identify and analyze the most serious injustices perpetrated in war. Many of these injustices – such as torture, rape, and enslavement – require little theoretical illumination. In contrast, launching indiscriminate attacks and inflicting disproportionate civilian losses are not, one might say, unjust clearly. What makes an attack “indiscriminate”? What makes civilian losses “disproportionate”? These are the sort of questions that moral theory of war should address. Perhaps a better name for the field would be “unjust war theory.” (p. 2)

I beg to differ.

Just wars are real things and subject to a theory reflected in the applicable laws. The “laws of war,” “law of armed conflict” (LOAC), and “international humanitarian law” (IHL), whichever of the interchangeable labels is your preference (I will use IHL), may at times fall short of the intended purpose, may be imprecise in providing exacting guidance or affording vague margins of discretion to what may seem, semantically, to be malleable standards, and may reflect over-permissiveness of conduct incongruous with moral philosophy’s meaning of justice and the nature of the good life (or the good war). But it is reflective of and in no small measure consistent with the realities faced by those who must apply them in the war theater, as opposed to paradigmatically in a classroom amphitheater. The facilitative aspect of IHL, i.e., that which it aims to achieve – whether viewed from a prohibitive lens or a permissive lens – carries the imprimatur of moral acceptability, however imperfect or unsatisfying. Continue reading “Book Review: LAW AND MORALITY AT WAR “

Book Review: THE WAR LAWYERS – The United States, Israel, and Juridical Warfare.

THE WAR LAWYERS – The United States, Israel, and Juridical Warfare, by Craig Jones, Oxford University Press, 2020, £80.00

Indeed, one of my central claims has been that ‘our’ use of law – from policy and national level interpretations of our rights and obligations under international law, to their operationalizations, to rules of engagement – does not generally proffer an alternative to military violence. In fact, the prosecution of US and Israeli warfare especially over the last thirty years suggests that the law is also a medium of violence and that a certain form of judicial violence has played no small part in enabling, legitimizing, and in some cases, even extending military violence. (p. 302)

“Are we clear to engage, yes or no? Come on, make a decision.” In the 2015 film Eye in the Sky, a British colonel (Helen Mirren) asks a military lawyer (Jeff Heffernan), as if it is up to him, to make the ultimate call. If he says no – which is not what the colonel wants to hear – then a righteous kill is sacrificed at the altar of legal technicalities, thus deliberately sanctioning the escape of a terrorist to wreak more terror another day. Of course, when called upon to give such legal advice, it is assumed (often wrongly) that the intelligence is right – that the target is what it is claimed to be. But even so, however accurate aerial strikes may have become, there is no avoiding collateral damage. The question often turns on how much collateral damage is acceptable, and moreover, what if the collateral damage ends up being much higher than predicted. Continue reading “Book Review: THE WAR LAWYERS – The United States, Israel, and Juridical Warfare.”

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?”

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?”