In 1788, Robert Burns, Scotland\u2019s prodigious poet who is universally loved for his simple yet penetrating versus, penned the words to Auld Lang Syne<\/em><\/a> \u2013 a song usually heard the world over on New Year\u2019s Eve. Hard to find a Scot who does not know the words to and meaning of Auld Lang Syne<\/em> (or the lines to most of Bobby Burns\u2019 poems for that matter). But in case you have ever wondered, it basically means \u201ca long time ago,\u201d \u201cdays gone by,\u201d or \u201cfor old times\u2019 sake.\u201d<\/p>\n The poem\/song is about looking back at old memories and friendships, reminding us to cling to these special moments and bonds as we are about to forge ahead into the New Year. But it is not so much about not letting go, as opposed to not forgetting \u2013 about cherishing past friendships and the past.<\/p>\n Caught in the moment of singing along (or trying like the devil to remember the lines we have mechanically mumbled through in previous years) as we celebrate the coming of the New Year and make our soon-to-be unkept resolutions, we tend to unconsciously ignore the biddings of Auld Lang Syne <\/em>to reflect on the year passed. Imprudently, we habitually delude ourselves into thinking that looking in the rearview mirror is a superfluous indulgence that risks impeding our desire (and perhaps necessity) of letting go of the past for the sake of moving on.<\/p>\n With time waiting for no one, we have already started pressing into 2018. Unquestionably, 2018 promises to be an interesting year \u2013 if for no other reason than because of 2017. Hard to predict what is in store over the next 12 months, though much like examining a treasure map or a crossword puzzle, reflecting on some of the events over the past 12 months provide us with abundant clues. Not intending to present a summary of world affairs (such as The Economist<\/em>, Time Magazine<\/em>, and others do every December), I will merely refer to some of the events I have posted on, primarily limited to international criminal law (ICL) matters. And for anyone interested in what I have posted in 2017, here is a chronological list<\/a>.\u00a0 You can also check the archives section of my blog.<\/p>\n The International Criminal Tribunal for the former Yugoslavia<\/em><\/strong><\/p>\n As 2017 came to an end, so did the International Criminal Tribunal for the former Yugoslavia<\/a> (ICTY), the first international criminal tribunal since the Nuremberg and Tokyo International Military Tribunals (IMTs). The last remaining cases (the Karad<\/em>\u017e<\/em>i<\/em>\u0107<\/em> and Mladi<\/em>\u0107<\/em> appeals) have been transferred to the Mechanism for International Criminal Tribunals<\/a> (MICT).<\/p>\n The ICTY\u2019s last proceeding was the public pronouncement of the appeals judgment in Prli<\/em>\u0107<\/em> et al<\/em>. What was no doubt planned by the ICTY President Carmel Agius as his last opportunity to enjoy the accolades of having upheld the conviction and sentences of the six accused (and perhaps dispel the negative claims that the ICTY had gone soft on convictions, being susceptible to political influences), turned into an international incident of shock and dismay. Appellant General Slobodan Praljak, prompted by his perceived (and in my opinion<\/a>, correct) view of an unfair trial that resulted in his conviction, which was followed by an equally unfair appeal, took his life by drinking poison after denouncing the judges (and the judicial institution) that had presided over his trial and appeal. And so, the ICTY came to an end.<\/p>\n During 2017, the ICTY staged numerous legacy events, designed by the ICTY President and Registry to exalt the ICTY\u2019s historic achievements, while conveniently minimizing or ignoring its shortcomings<\/a>. Nothing like controlling the message by selecting the legacy presenters in promoting the selected narrative. Truth be told, in the years to come, much will be drawn from ICTY jurisprudence by other chambers in other international(ized) criminal tribunals and courts. The ICTY in no small measure was a judicial trailblazer in the mold of the IMTs. The International Criminal Court (ICC) may be the permanent court and the one that was meant to capture the imagination in globally confronting impunity and bringing to book the architects and perpetrators of international crimes, but the ICTY was the first after the IMTs, and by all accounts, the most productive and successful of all international(ized) criminal tribunals and courts to date.<\/p>\n Granted, the ICTY has much to boast about. Understandably, the last ICTY President, as some of his predecessors, indulged in taking a few choreographed victory laps. But against this backdrop of self-aggrandizement, the ICTY (and its last President) also have much to account for. General Praljak\u2019s death, and more importantly his reasons for taking his life (see <\/em>here<\/a>, here<\/a>, and here<\/a>), are just as much a part of the ICTY\u2019s legacy as is its contributions to the development of ICL.<\/p>\n In my opinion (and consider the source \u2013 I represented Dr. Jadranko Prli\u0107 from 2005 to 2017 in the Prli<\/em>\u0107<\/em> et al.<\/em> case, so I may not be the most objective observer), the Prli<\/em>\u0107<\/em> et al.<\/em> case was the worst tried case in the history of the ICTY. Almost exclusively, the blame lies on the ineptitude and inexperience of the judges, who at times displayed a naked predisposition for a desired result based on personal fancies acquired well before hearing any evidence. To me, the Prli<\/em>\u0107<\/em> et al.<\/em> case represents the nadir of the ICTY\u2019s legacy \u2013 an indelible self-imposed stain that other international(ized) criminal tribunals and courts can and must avoid by being more responsible in the selection of judges, and in ensuring that they (the chambers) correctly and consistently apply the statutory provisions and rules of procedure and evidence as adopted. High time for all international(ized) criminal tribunals and courts to consider introducing an orientation\/training program for incoming judges before they are sworn in (lest they claim that their independence is being infringed), and adopting a bench book to ensure uniformity in the proceedings (see <\/em>here<\/a> and here<\/a>).<\/p>\n The Kosovo Specialist Chambers<\/em><\/strong><\/p>\n Just as the ICTY was wrapping up, another ad hoc<\/em> tribunal was getting set up in The Hague \u2013 the Kosovo Specialist Chambers & Specialist Prosecutor\u2019s Office<\/a> (KSC). It has been in the works for some time, though its snail-like pace in establishing itself may prove to be its undoing. The KSC is slated to hear only a limited number of cases dealing with war crimes, crimes against humanity, and other crimes under Kosovo law committed during the aftermath of the conflict in Kosovo (1998-2000). Specifically, the KSC will investigate and prosecute crimes allegedly committed against Serbs and Albanian Kosovars by members of the Kosovo Liberation Army, including murders, abductions, enforced disappearances, illegal detentions, sexual violence, and other forms of inhumane treatment<\/a>.<\/p>\n Having commented on the\u00a0Law on Specialist Chambers and Specialist Prosecutor\u2019s Office<\/a> and the Rules of Procedure and Evidence<\/a> (RPE) (see<\/em> here<\/a>, here<\/a>, here<\/a>, here<\/a>, here<\/a>, and here<\/a>), I can vouch that the KSC is structurally and procedurally sound, being the first of its kind to introduce a third instance of review \u2013 something that has proved to be a significant deficit in other international(ized) criminal tribunals and courts. Impressively, the RPE were screened<\/a> by a separate (fourth) chamber, the Specialist Chamber of the Constitutional Court, to ensure harmonization with the Kosovo Constitution.<\/p>\n Another pleasant surprise was the adoption of a Code of Judicial Ethics<\/a>. While it may have some weaknesses<\/a>, it is commendable that the judges of the KSC had the foresight and fortitude to draft a code of conduct for themselves. With a relatively impressive roster of judges<\/a>, it will be interesting to see how the KSC turns out. Now that the Defence Office has solicited counsel<\/a> to apply to the Defence and Victims Lists of Counsel, presumably the first set of indictments will come in the first quarter of 2018 \u2013 maybe within the next few weeks.<\/p>\n The Mechanism for International Criminal Tribunals<\/em><\/strong><\/p>\n The MICT will presumably follow in the ICTY\u2019s footsteps, even though, seemingly, it is attempting to carve its own path by constantly tinkering with the RPE and regulations it inherited from the ICTY. According to expectations, the MICT is supposed to be the model<\/a> for the next generation of ad hoc<\/em> international criminal tribunals. Rather than having permanent sitting judges, it has a roster of judges who will be called upon as needed. Since the MICT has limited jurisdiction over post-conviction matters arising from ICTY and International Criminal Tribunal for Rwanda<\/a> cases, this structure seems promising. It certainly is cost-efficient, if not penny-pinching, relying to some extent on the good-will and free legal services of qualified counsel. Anyone in need of post-conviction review must first engage a qualified counsel to work pro bono<\/em> in making an application; the MICT will only provide the applicant with counsel of choice from the MICT list if it finds that the applicant\u2019s claim has merit.<\/p>\n Thus far, the MICT seems to be functioning as envisaged, though in 2017, there was one incident that brought to fore just how vulnerable some of the judges are, and how little they can count on the MICT or its patron saint that set it up, the United Nations Security Council (UNSC). I am speaking of course of the jailing of Judge Ayd\u0131n Sefa Akay (see <\/em>here<\/a> and here<\/a>). His offense was having a book about Fethullah G\u00fclen \u2013 the supposed mastermind of the attempted coup d\u2019\u00e9tat in Turkey<\/a> on 15 July 2016 \u2013 and a smartphone messaging app (ByLock), which is claimed to have been used by the coup plotters. Shockingly, neither the MICT nor the UNSC did much to have Judge Akay released. His trial on charges of membership in a terrorist organization started in March. Judge Akay was convicted and sentenced<\/a> to seven-and-a-half years of imprisonment in June 2017. Having spent ten months in detention since his arrest in September 2016, Judge Akay was provisionally released<\/a> (subject to travel ban) and is now appealing his conviction and sentence. From what can be gleaned, the charges were trumped up, the trial proceedings were wanting of internationally recognized standards, and the conviction unsustainable, were this case to be reviewed by an objective higher instant court.<\/p>\n The Extraordinary Chambers in the Courts of Cambodia \u00a0<\/em><\/strong><\/p>\n Established in 2006 to try senior leaders of the Democratic Kampuchea (DK) regime and those most responsible for international and national crimes committed in Cambodia during the DK Rule (17 April 1975 to 6 January 1979), the Extraordinary Chambers in the Courts of Cambodia<\/a> (ECCC) has been marred by accusations of political interference, corruption, deliberate foot-dragging, and funding-shortages.<\/p>\n There is plenty of blame to go around. The second case to go to trial, Case 002, is soon to come to an end as the ECCC\u2019s Supreme Court Chamber reaches a verdict on the second part of the case, Case 002\/02 (Case 002 was severed into two mini-cases<\/a>, with a significant portion of the original case being discarded by the Trial Chamber). Cases 003 and 004 are still in the investigative stages, even though these cases were under investigation by the Office of the Co-Investigating Judges (OCIJ) since sometime around 2008 (the ECCC\u2019s procedure is based on the French civil law system, and thus investigations are conducted by the OCIJ<\/a>).<\/p>\n Two interesting events emerged in 2017.<\/p>\n The first was when the Co-Investigating Judges (CIJs) determined to dismiss the case against the accused in Case 004\/01, Ms. Im Chaem, because she did not meet the jurisdictional requirement of being a senior leader or one of the most responsible<\/em>. The investigative process is secret. Unless one is involved in that case or has access to the confidential case file, there is no telling what exactly the lengthy investigation unearthed. Yet, pundits and at least one donor country, the United States (US), were quick to draw negative inferences of the fix being in, of political interference by the Cambodian government. In my opinion, which I have voiced repeatedly (here<\/a>, here<\/a>, and here<\/a>), this is pure poppycock. Nothing proven, just innuendo. In fact, there is something to be said about political interference made by donors such as the US in the form of threats of de-funding unless certain conditions are met (for more on US interference at the ECCC, see <\/em>here<\/a>, here<\/a>, and here<\/a>). In any event, the Pre-Trial Chamber (PTC) is currently seized with the International Co-Prosecutor\u2019s appeal<\/a> of the Im Chaem<\/em> case.<\/p>\n The second was CIJs\u2019 confidential request for submissions from the parties and the ECCC Office of Administration on the budgetary situation of the ECCC and its impact on Cases 003, 004, and 004\/02. The CIJs considered issuing a permanent stay of proceedings of all three cases with prejudice, unless they were provided with reliable information that the funding situation of the ECCC would improve, considering that a future lack of funds and financial uncertainty would threaten judicial independence and the fairness and integrity of the proceedings \u2013 in particular, the fair trial rights of the charged persons. Leaked to the press, the request caused lots of drama in the media, including insinuations about political interference behind any stay of the proceedings, even from an ECCC Reserve Judge of the Trial Chamber<\/a>.<\/p>\n According to the CIJs\u2019 publicly redacted decision<\/a>, the International Co-Prosecutor argued that the CIJs have no authority to issue the stay, that there is no immanent budget crisis, that a stay would damage the rule of law and the ECCC\u2019s legacy, and that it would do nothing to protect the charged persons\u2019 reputations or shield them from future legal consequences. The UN, the Principal Donor Group (PDG), and the Special Expert of the Secretary General (SESG), David Scheffer, submitted their views through the ECCC Office of Administration, arguing that the CIJs do not have the authority to rule on financial aspects of the ECCC\u2019s funding (and should stick to ruling on the merits of the investigation), that there is no funding crisis, that there is no legal obligation to fund the ECCC, and that the budgetary frameworks of the UN and the PDG do not allow for a life-time guarantee of the ECCC\u2019s funding. But, as the CIJs pointed out, the PDG remained \u201cdeeply committed\u201d to securing funding for the ECCC.<\/p>\n After holding<\/a> that without \u201cany doubt\u201d they have the power to order a stay of the proceedings, the CIJs noted that they were not entirely convinced that with the current state of the ECCC\u2019s funding, the judicial independence, fairness, and integrity of the proceedings will not be under threat. The CIJs nonetheless decided to defer deciding on whether to stay the proceedings pending further funding developments. In their words<\/a>: \u201cThe depth of the PDG\u2019s renewed commitment will be easily monitored through the amount of further funding actually provided for the rest of 2017 and the nature of the impending budget negotiations for 2018\u2026.\u201d<\/p>\n The issue remains ripe and by all available information, the ECCC\u2019s budgetary situation has not measurably changed.<\/p>\n The International Criminal Court<\/em><\/strong><\/p>\n The anticipated exodus<\/a> that appeared on the horizon a couple of years ago did not occur, though Burundi\u2019s departure from the ICC<\/a> may just be the beginning, with other States Parties to soon follow.<\/p>\n In 2017, there was lots of huffing and puffing by countries such as South Africa, Burundi, and The Gambia about leaving the ICC, with some claiming it being \u201cthe International Caucasian Court for the persecution and humiliation of people of color, especially Africans.<\/a>\u201d South Africa made a move that was later rescinded<\/a> by the South African Supreme Court of Appeal, though there are indicators that South Africa will probably try again to leave the ICC. The perception that the ICC is solely targeting Africans is not without some justification, though it bears recalling that most of the situations have been referred<\/a> to by African States Parties. The bone of contention is not so much that only Africans are targeted, but that sitting heads of states are vulnerable to being indicted and tried.<\/p>\n Stemming the tide of discontent of some African States Parties will not be easy. The Ocampo affair, or \u201cOcampogate<\/a>\u201d as it has been dubbed, revealed the dark and ugly side of Luis Moreno Ocampo. The epicurean former and first Prosecutor of the ICC \u2013 whose insatiable appetite for the limelight, theatrics, and exorbitant fees for influence-peddling and fog-selling \u2013 severely damaged the reputation of the ICC. Moreno Ocampo\u2019s shady dealings with Libyan oil billionaire (and past\u00a0associate of Muammar Gaddafi<\/a>)\u00a0Hassan Tatanaki<\/a>, his use of insider influence to protect Tatanaki from investigation, and his questionable activities with Madame Fatou Bensouda, his successor and current ICC Prosecutor, have rocked the integrity of the ICC.<\/p>\n Madame Bensouda also has much to answer for and may have contributed to the impugning of her Office. From leaked documents<\/a> it seems she confabulated when she publicly announced<\/a> that she had no contact with Moreno Ocampo since he left the ICC. Madame Bensouda\u2019s admission to penning an article on behalf of Moreno Ocampo<\/a> seemed to further validate the suspicions that she was working behind the scenes with or relying on Moreno Ocampo, who, by all accounts, was a disastrous first Prosecutor<\/a>.\u00a0 These self-inflicted wounds have marred Madame Bensouda\u2019s integrity, calling into question, as I have done<\/a>, the timing of announcing the Office of the Prosecutor\u2019s (OTP) request to the PTC to pursue an investigation of war crimes related to the situation in Afghanistan<\/a>. The timing seems suspect<\/a>.<\/p>\n And what about the PTC\u2019s failure to submit South Africa<\/a>\u2019s non-compliance with its obligation to arrest Sudanese President Omar Ahmad Al-Bashir to the UNSC or the Assembly of States Parties (ASP)? After finding that South Africa had in fact been derelict of its obligation to arrest and turn over Al-Bashir to the ICC, the PTC decided to be pragmatic and not trouble the UNSC or the ASP with calls for action. After all, it is not as if the UNSC has been genuinely responsive or seriously engaged in the past. The UNSC did nothing on the non-compliance of its own Resolution that referred the Darfur situation to the ICC.<\/p>\n To now expect the UNSC (some of its permanent members) to grow a conscience and do the right thing is na\u00efve. In fact, considering how unresponsive the UNSC has been (not to mention the hostility shown towards the ICC by some of the its permanent members) it begs the question: why does Madame Bensouda bother reporting to the UNSC<\/em>, as she recently did<\/a>? Supplicating on bended knee has gotten her nowhere when her Office has called on the UNSC to do its bit. The three major permanent members of the UNSC (the US, China, and Russia) are not States Parties to the Rome Statute, make no financial contributions to the ICC, and are the most likely to block any initiatives requested of the UNSC. Just think of how refreshing it would be if the ICC Prosecutor just didn\u2019t bother reporting to the UNSC, seeing no reason to waste time briefing it due to its unresponsiveness and irresponsibility.<\/p>\n Be that as it may, 2017 has been a rather active year for the OTP, as can be gleaned from its annual Report on Preliminary Examination Activities<\/a>. Wisely, it determined that the Mavi Marmara<\/em> incident does meet the gravity threshold \u2013 despite the PTC\u2019s decision requiring the OTP to have another go at it<\/a>. Considering the facts, and assuming the situation in Gaza is not conflated with what happened on the Mavi Marmara<\/em> and the other vessels (as it should never have been factored into the equation), a cursory review of the evidence would lead to a swift conclusion that this situation had no business being before the ICC (see <\/em>here<\/a>, here<\/a>, and here<\/a>). But one need not boggle the mind in trying to find the ulterior motive \u2013 politics. So, kudos to Madame Bensouda and the OTP for not caving into politics and political pressure from some States Parties who have no compunction in using the ICC as a geo-political tool. Madame Bensouda deserves credit for her decision on the Mavi Marmara <\/em>incident. Or, is it too soon to tell? Maybe she is keeping her powder dry for another situation against Israel (Palestinian human rights groups have recently submitted a 700 page communication<\/a> to the ICC alleging war crimes and crimes against humanity by high-level Israeli officials).<\/p>\n But then there is Madame Bensouda\u2019s decision to investigate the situation in Afghanistan<\/a>. Going after the likes of the Taliban is a virtual impossibility; good luck in making arrests. And for the US, don\u2019t hold your breath in expecting cooperation. The Trump Administration\u2019s Statement to the ASP<\/a> makes an emphatic and an arguably plausible case (though some learned academics disagree, here<\/a> and here<\/a>) why the ICC lacks jurisdiction. The US\u2019s position<\/a> is that any attempts by the ICC to assert its jurisdiction over American citizens would be \u201cillegitimate.\u201d The US\u2019s position<\/a> assuredly is shared by at least two other permanent members of the UNSC (China and Russia) and others: the ICC has no jurisdiction \u201cover nationals of States that are not parties to the Rome Statute, absent a UN Security Council referral or the consent of that State.<\/em>\u201d And concerning the situation in Afghanistan, in my opinion, at least when it comes to the alleged crimes claimed to have been committed by US citizens, it is also questionable whether the gravity test is met. Not that the alleged crimes are not serious or that the OTP should not go after the likes of the US \u2013 even if beyond its reach. I am just not entirely convinced that the alleged crimes in this case rise to the level of severity to merit the ICC\u2019s involvement.<\/p>\n And while we\u2019re talking about gravity and impunity, how about reflecting on what is going on in the Philippines. President Rodrigo Duterte is openly engaged in widespread and <\/em>systematic extrajudicial killings<\/a>. There has been a communication<\/a> against President Duterte. There seems to be readily available evidence. There are admissions<\/a> of these killings by none other than President Duterte. And the number of deaths is exceptionally high (some human rights groups\u2019 estimates go as high as 13,000 deaths<\/a>). President Duterte has threatened<\/a> to leave the ICC if he is investigated; par for the course of the likes of President Duterte and his ilk. Where, however, is the OTP? Why has it not moved with all deliberate speed to investigate President Duterte and physical perpetrators? Here you have low hanging fruit for the plucking. Lots of good would come out of investigating and, if the evidence is there, prosecuting those responsible for all the extrajudicial killings in the Philippines.<\/p>\n Curiously, however, Madame Bensouda finds it more appealing to pursue an investigation against the US armed forces and operatives of the US Central Intelligence Agency involved in Afghanistan, where she has as much chance of doing anything concretely as she will in going after Russia for crimes committed in Crimea and eastern Ukraine. More pie in the sky. Should consideration not be given to the virtual inevitability that \u2013 after spending an enormous amount of time and resources \u2013 the OTP is unlikely to have arrested, and the ICC is unlikely to try and convict, American citizens for any alleged crimes claimed by the OTP? Does it make sense? I guess it all depends on perspective.<\/p>\n Darryl Robinson, in his excellent article Inescapable dyads: Why the International Criminal Court cannot win<\/em><\/a>, borrows from and deftly elucidates and builds on Martti Koskenniemi\u2019s argumentation<\/a> that international legal arguments are vulnerable to at least one of two criticisms: apologia<\/em> – challenging the status quo is useless; or utopia<\/em> \u2013 lacking social or political consent or support. Robinson makes the case that no matter what, the ICC is subject to Catch-22<\/em><\/a>: whatever action it takes it will be subject to criticism. So, with the situation in Afghanistan, for instance, if the OTP (with the blessings of the PTC<\/a>) pursues an investigation as it is now doing, it will suffer utopia<\/em> critique, whereas if it had declined to launch an investigation because of the inevitability of the US\u2019s non-cooperation, it would have suffered from apologia<\/em> critique. Robinson would agree that the same inescapable dyad applies to my comparison of the situation in Afghanistan with that of the communication against President Duterte, where I argue that there should be a preference for low hanging fruit situations. The counter-argument is arguably just as compelling: why should the ICC refrain from tackling peskier situations where the fruit may even be beyond reach simply because there is low hanging fruit for easy plucking? \u00a0\u00a0\u00a0\u00a0\u00a0<\/em><\/p>\n I tend to be pragmatic. Opting for going after the achievable, especially considering that the ICC\u2019s track record thus far has not been stellar, seems more prudent. In any event \u2013 setting aside apologia<\/em> versus utopia <\/em>arguments \u2013 my take on Madame Bensouda\u2019s decision on the situation in Afghanistan, at least timing-wise, is that it seems more of a diversionary <\/a>tactic than an operational and strategic decision designed to realistically yield tangible fruits.<\/p>\n Lastly, it would be remiss not to mention the ICC\u2019s activation of the crime of aggression. After twelve years in drafting the definition of the crime of aggression, on 14 December 2018, the ASP mastered the intestinal fortitude to sign on to it. The Resolution<\/a> adopted by the ASP precludes the ICC\u2019s jurisdiction over the crime of aggression when committed by a national or on the territory of a State Party that did not ratify the 2010 Kampala aggression amendments<\/a>. It resulted as a compromise between the \u201copt-out\u201d camp (led by Switzerland and Liechtenstein, which would have required States Parties to formally opt-out of the aggression amendments for the ICC not to have jurisdiction over the crime of aggression in the context contemplated in the Resolution) and the \u201copt-in\u201d camp (led by the United Kingdom and France, which argued that that the ICC should not have jurisdiction over the crime of aggression unless the concerned State Party opts-in to the amendments).<\/p>\n As I recently noted<\/a>, the compromise reached for the sake of moving forward created mechanisms for opting-in or opting-out of key pieces of the legislation. But more importantly, it has not added anything to the ICC\u2019s effectiveness in combating impunity. Only 35 States Parties have ratified the aggression amendments<\/a> (mostly states that are highly unlikely to commit the crime of aggression), showing that any enthusiasm that may have existed for adding the crime of aggression to the Rome Statute seems to be waning. Those in the \u201copt-out\u201d camp effectively signed a non-aggression pact, which is not binding on the States Parties that did not ratify the aggression amendments \u2013 not to mention powerful (and often aggressive) states such as the US, Russia, and China that have not acceded to jurisdiction of the ICC. By not \u201copting in\u201d those states have effectively reserved their right to commit crimes of aggression.<\/p>\n Syria <\/em><\/strong><\/p>\n As the killings go on unabated, any expectations of a tribunal to deal with some of the most horrific war crimes and crimes against humanity in recent history, is far beyond the horizon. A former ICTY Senior Legal Officer and Head of Chambers and ECCC Pre-Trial Chamber Judge, Catherine Marchi-Uhel, was appointed<\/a> to head the International Impartial and Independent Mechanism<\/a> to assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 (IIIM). Presumably, the expectations are to set up a tribunal at some point to try the individuals from the Assad government, rebel forces, and the Islamic State, responsible for the atrocities committed in Syria since 2011.<\/p>\n The establishment of the IIIM may be a first step in that direction. While evidence is already being gathered on the ground, arguably, the admission and reliability of this evidence will run up against strong headwinds. Who collects the evidence, how it is collected, how it is maintained, the chain of custody, the source of the information, etc. are likely issues of contention that later on may impact the admission of the evidence, if not the weight it should be afforded, were trials ever to be held.<\/p>\n The Rohingya <\/em><\/strong><\/p>\n A day hardly goes by without hearing about the plight of the Rohingya from Rakhine State in western Myanmar. Who would have thought that Aung San Suu Kyi, the Nobel Peace Prize laureate and Myanmar State Counsellor, would turn out to be an accommodating collaborator of crimes against humanity? The UN was slow in the uptake in calling Myanmar\u2019s military campaign against the Rohingya a classic case of ethnic cleansing<\/a>. Whether there are elements of genocide<\/a> as was recently reported<\/a> by the UN High Commissioner for Human Rights, remains an open question. Whether the Rohingya are being targeted in order to destroy them in whole or in part because of who they are \u2013 as opposed to trying to drive them out of Myanmar into to Bangladesh, where it is claimed they originally came from, is elusive. The later seems more plausible. In other words, the special genocidal intent may be lacking, though the crimes perpetrated by the Myanmar military may, to some degree, result in the destruction of part of the Rohingya. Of course, this is all academic. The fact remains that the Rohingya are being systematically attacked, killed, persecuted, and driven off their birthplace as the world sits by.<\/p>\n Aung San Suu Kyi is such a disappointment, such a fraud, such a co-conspirator. In a recent speech<\/a> she claimed not to know why some \u201cMuslims\u201d (code for Rohingya) are leaving in droves while others are staying. She invited members of the international community<\/a> to come and see for themselves. And when some expressed an interest, including a UN independent human rights investigator, the invitation was reneged<\/a>.\u00a0 The Lady, as she is known, has taken to confabulation with the sort of alacrity and aplomb normally employed by strongmen of illiberal democracies, where pseudo-legality is used both as a sword in striking down opponents and a fig leaf to hide behind.<\/p>\n In any event, for the time being, the military elite and Aung San Suu Kyi are unlikely to face accountability in an international(ized) criminal tribunal or court. China and Russia are likely to veto any attempts to create an ad hoc<\/em> tribunal. And forget about a referral to the ICC by the UNSC. The closest thing to a process to hold accountable those responsible for the atrocities against the Rohingya (Aung San Suu Kyi cannot escape being included among this sordid group) is the recent \u201ctrial<\/a>\u201d that took place before the Permanent Peoples\u2019 Tribunal<\/a> (PPT). Of course, the PPT is not a real tribunal. The judges were not real, and some<\/a> of them even lacked any legal or judicial training and experience. The outcome<\/a> was, as in many show trials, pre-determined. While it was not without some merit, the so-called trial by the PPT had more in common with a public reality show, than a legitimate tribunal. It would have been better to organize a seminar or a symposium, as opposed to a one-sided, make-believe show trial, which, by its very structure and participating members, was designed, organized, and held with a pre-determined outcome.<\/p>\n Looking forward to 2018 <\/em><\/strong><\/p>\n It will be interesting to look back a year from now and see how the KSC has fared, whether the MICT has been active in post-conviction matters, whether ad hoc<\/em> tribunals were established for Syria and Myanmar, whether the ICC has gotten its act a wee bit more together, whether Moreno Ocampo was seriously investigated (and if necessary, charged for his notorious Ocampogate<\/em> activities), whether the OTP\u2019s investigation into the situation in Afghanistan has yielded any fruit, whether the OTP got around to even a preliminary look into President Duterte\u2019s extrajudicial killings, and so on. As in 2017, I will continue to post on these and other issues of interest, sprinkled occasionally with a human-interest story or a book review.<\/p>\n \u00a0<\/em><\/strong>Happy 2018!<\/em><\/strong><\/span><\/p>\n![\"\"](\"https:\/\/i0.wp.com\/web.archive.org\/web\/20181213070109\/https%3A\/\/www.scotland.org\/images\/made\/images\/uploads\/general\/e2b35db126073bb066c08ed6b2fab01243aab3c7.jpg?resize=840%2C248&ssl=1\")
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