Charles Taylor Judgment Suggests a More Modest Level of Participation in the Sierra Leone Conflict

To much general rejoicing, Charles Taylor was convicted by the Special Court for Sierra Leone in a long-awaited judgment delivered on 26 April 2012. The delays in issuing the judgment are inexcusable. And we are in fact still waiting for the real judgment. Instead, the judges have given us a 44-page summary.

The Court’s press release on the judgment makes the simplistic assertion that ‘Charles Taylor was convicted on all 11 counts‘. This somewhat distorts the reality, because much of the Prosecutor’s case was not in fact upheld in the decision.

The press release also boasts that ‘Charles Taylor is the first head of state to be indicted, tried and convicted by an international tribunal.’ This is not accurate. Admiral Doenitz, who succeeded Hitler as head of state of the Third Reich in April 1945, was indicted, tried and convicted by the International Military Tribunal.

Many Prosecution Charges were Unproven

The summary of the judgment begins by reviewing various atrocities perpetrated in Sierra Leone during 1998 and 1999 associated with the civil war. As a general rule, it concludes that they were indeed committed. This is hardly surprising. It is consistent with the earlier decisions of the Court as well as the findings of the Truth and Reconciliation Commission. The issue was not of course whether the atrocities were committed but the role played in them by Taylor.

It has long been part of the lore about the Sierra Leone conflict that Charles Taylor was its mastermind behind. But this is not what the judgment finds:

62. … Contrary to the Prosecution’s submissions, the evidence did not establish that prior to 1996, Taylor, Sankoh [leader of the Revolutionary United Front]  and Dr. Manneh [of The Gambia] participated in any common plan involving the crimes alleged in the Indictment, nor in fact, that the three men even met together. Furthermore, the evidence was that during the pre-indictment period Sankoh operated independently of the Accused, and that while he relied at times on Taylor’s guidance and support, Sankoh did not take orders from the Accused.

63. During the pre-Indictment period the Accused provided the RUF with a training camp in Liberia, instructors, recruits and material support, including food and other supplies. However, again contrary to the Prosecution’s submissions, the evidence did not establish that the RUF were under the superior authority of the Accused or the NPFL chain of command, or that they were instructed in NPFL terror tactics.

64. The Accused supported the invasion of Sierra Leone in March 1991. NPFL troops actively participated in the invasion, but the Prosecution failed to prove that the Accused participated in the planning of the invasion. The Prosecution also failed to prove that the support of the Accused for the invasion of Sierra Leone was undertaken pursuant to a common purpose to terrorize the civilian population of Sierra Leone. Rather, the evidence shows that the Accused and Sankoh had a common interest in fighting common enemies, namely ULIMO, a Liberian insurgency group in Sierra Leone, and the Sierra Leonean Government forces, which supported ULIMO.

By the time of the attacks on Freetown and elsewhere in Sierra Leone during 1998 and early 1999, Charles Taylor’s alliance with the RUF and the AFRC seems to be beyond dispute. The judgment reviews how he provided assistance in various forms, including small numbers of soldiers as well as sometimes substantial quantities of weapons and ammunition. Some of this was paid for in diamonds. Again, nothing really surprising here. The big question – and the Trial Chamber only really begins to consider this at page 31 - is ‘Knowledge of the Accused of Crimes Committed in Sierra Leone’. The issue, for the Trial Chamber, is not whether Taylor ordered, directed or commanded the atrocities perpetrated in Sierra Leone - this is not established by the judgment - but rather whether he knew that they were taking place.

As the Chamber notes, public reports indicated that the rebel forces with which Taylor was aligned were committing various atrocities, including unlawful killings, sexual violence, physical violence, looting, conscription and use of child soldiers, abduction, terrorism, and other atrocities. It was ‘public knowledge’, says the Trial Chamber, so it is not a difficult leap to concluded that Charles Taylor also knew.

The Prosecutor failed to prove that Charles Taylor was the guiding spirit behind the rebel groups in Sierra Leone. It even failed to prove that the troops from Liberia that joined the insurgents in Sierra Leone were under his control: ‘the Trial Chamber finds that even if they were sent to Sierra Leone by the Accused, there is insufficient evidence to find beyond a reasonable doubt that they remained under the effective command and control of the Accused once in Sierra Leone’ (para. 140).

The Prosecutor had also alleged that Taylor was part of a ‘joint criminal enterprise’ whose purpose was ‘to take any actions necessary to gain and exercise political power and control over the territory of Sierra Leone, in particular the diamond mining areas. The natural resources of Sierra Leone, in particular the diamonds, were to be provided to persons outside Sierra Leone in return for assistance in carrying out the joint criminal enterprise.’ (para. 23 of the indictment of 7 March 2003).

The summary of the judgment says the Prosecutor failed to prove this. (para. 144).

Taylor stands convicted because he provided significant assistance to the various rebel groups within Sierra Leone, knowing that they were perpetrating atrocities in the course of their campaigns. Consequently, he is found guilty of ‘aiding and abetting’.

What did Taylor Know?

What emerges from the judgment of 26 April 2010 is a more modest vision of Taylor’s involvement in the Sierra Leone conflict. He was assisting combatant factions in full knowledge that they were perpetrating atrocities. But the claim that he was the evil genius who manipulated the war throughout the 1990s stands unproven.

This assessment by the Trial Chamber is more consistent with the findings of the Truth and Reconciliation Commission. One of the intriguing features of the transitional justice mechanisms in Sierra Leone is that the two main bodies, the Special Court and the Truth Commission, have not necessarily shared the same vision of the conflict. The Court has focused on external factors, blaming Taylor, Ghaddafy and others for the civil war. The Truth Commission, on the other hand, tended to downplay the role of external actors like Taylor and proposed an analysis that found the main cause of the conflict to be the decades of tyranny and corruption within Sierra Leone. With its more modest perspective on the involvement of Taylor, the 26 April 2012 judgment confirms the narrative of the Truth and Reconciliation Commission.

The Trial Chamber rejects the joint criminal enterprise thesis. We shall have to await the full judgment to assess properly the reasoning of the Chamber. From the summary, it seems this was mainly based upon the facts of Taylor’s own personal role rather than the existence of the joint criminal enterprise. Elsewhere, including earlier posts on this blog, I have expressed concern about the breadth of a joint criminal enterprise notion that is ultimately premised on an enterprise that is not in fact criminal. Trying to overthrow a government and take power is not an offence under international criminal law. Facilitating the job of the Prosecutor by convicting individuals for acts that may have been a foreseeable consequence of such an enterprise – where the enterprise is not unlawful in itself – and in the absence of evidence that the accused actually knew of the crimes or intended that they be committed is a bridge too far. It unacceptably stretches first principles about guilt in criminal law.

The conclusion of the Trial Chamber in Charles Taylor seems based on uncontroversial principles. He or she who provides significant assistance to a participant in a conflict knowing that the participant is perpetrating atrocities against civilians is guilty of aiding and abetting such crimes. This is straightforward. And it leads in an interesting direction.

Atrocities were perpetrated on all sides in the Sierra Leone conflict. This emerges from the case law of the Special Court, as well as from the Report of the Truth and Reconciliation Commission. It was notorious at the time, in 1998 and 1999. So what are we to make of those who supported the other side in the conflict? For example, the Blair government and the United Kingdom provided assistance and support to the pro-government forces. The pro-government forces had their own sinister militias, involved in rapes, recruitment of child soldiers, amputations, cannibalism and other atrocities. Two of those involved were convicted by the Court and a third, who was a minister in the government supported by the UK, died before the trial completed. What is the difference between Blair and Taylor in this respect?

Moving beyond Sierra Leone, can we not blame the French government for aiding and abetting genocide, given its support for the racist Rwandan regime in 1993 and 1994? The crimes of the regime were well-publicised, not only by an NGO commission of inquiry but also by Special Rapporteurs of the United Nations. And yet the French continued to provide assistance, in personnel, arms and ammunition, to the Habyarimana regime.

What about those who supported the various sides in the war in Bosnia? Or in Sri Lanka? Are American officials who backed Saddam Hussein when he perpetrated atrocities in Iran during the 1980s also guilty of aiding and abetting in war crimes and crimes against humanity? What of those western states that continued to bolster the apartheid regime in South Africa during the 1970s and 1980s, when they were fully aware of the racist system that has been characterised as a crime against humanity.

It takes little imagination to appreciate the ramifications of the conviction of Charles Taylor for aiding and abetting.

The future of ‘joint criminal enterprise’

It may well be that the Appeals Chamber will restore the joint criminal enterprise charge against Charles Taylor. Only time will tell. When the theory first emerged in 1999, in a ruling of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, many were concerned that it stretched the net of criminal guilt too far. Under the so-called 'third form' of joint criminal enterprise (or JCE III), individuals would be convicted not only for serious crimes that they knew of or intended but for those that were objectively foreseeable, to the extent that they belonged to a ‘joint criminal enterprise’ with others. In Bosnia, this ‘joint criminal enterprise’ involve ethnic cleansing, an international crime in its own right.

But the indictments of the Special Court for Sierra Leone took this a step further by charging an ‘enterprise’ that was not even criminal. So what had been known in the jargon as JCE III mutated into JE III. Then the disease spread to the International Criminal Court, where it has reemerged as the doctrine of co-perpetration. There is a manifestation of this in the recent judgment of the Trial Chamber of the International Criminal Court in Lubanga.

The majority of the Trial Chamber concluded that Lubanga had been part of a ‘plan’, and that as a result he could be convicted of crimes perpetrated by others even in the absence of evidence that he actually knew of them or intended them. Because he was part of a ‘plan’, he could be convicted of acts perpetrated by others to the extent that there was ‘a sufficient risk that, if events follow the ordinary course’ they would take place. Accordingly,

984. In the view of the Majority of the Chamber, the prosecution is not required to prove that the plan was specifically directed at committing the crime in question (the conscription, enlistment or use of children), nor does the plan need to have been intrinsically criminal as suggested by the defence. However, it is necessary, as a minimum, for the prosecution to establish the common plan included a critical element of criminality, namely that, its implementation embodied a sufficient risk that, if events follow the ordinary course, a crime will be committed.

The reference to a 'critical element of criminality' is important, but the scope of a 'plan' that is not in itself criminal but that has a 'critical element of criminality' is simply too nebulous. Judge Fulford dissented from the Majority. While his views have been presented as being more friendly to the Prosecutor, I do not find this to be the case. In particular, he does not endorse the inquiry about ‘sufficient risk’, which he notes is not in the Statute and has only been added by some of the decisions.

Drama in the Courtroom

Delivery of the decision in Charles Taylor was associated with a most unprecedented development. It seems that when the reading of the judgment concluded, the reserve or stand-by judge, Malick Sow, began to express his dissent, and his view that Taylor should be acquitted. Here is the account provided by Kirsty Sutherland of the International Criminal Law Bureau:

In an unexpected turn of events, as Justice Lussick (Presiding), Justice Doherty and Justice Sebutinde rose to leave the courtroom after delivering the verdict, Justice Sow addressed the Court:

“The only moment where a Judge can express his opinion is during the deliberations or in the courtroom, and, pursuant to the Rules, when there are no serious deliberations, the only place left for me is the courtroom. I won’t get — because I think we have been sitting for too long but for me I have my dissenting opinion and I disagree with the findings and conclusions of the other Judges, because for me under any mode of liability, under any accepted standard of proof, the guilt of the accused from the evidence provided in this trial is not proved beyond reasonable doubt by the Prosecution. And my only worry is that the whole system is not consistent with all the principles we know and love, and the system is not consistent with all the values of international criminal justice, and I’m afraid the whole system is under grave danger of just losing all credibility, and I’m afraid this whole thing is headed for failure.”

Hearing the voice of their counterpart did not deter Justices Lussick, Doherty and Sebutinde from walking out. Justice Sow’s microphone immediately cut out and a curtain was drawn across the public gallery. Nonetheless, he persisted to air his views to those present, unaided by a microphone.

There is obviously more to this story. Perhaps readers of the blog can contribute.

Since writing these words, Diane Amann has referred me to a more thorough description of the events on IntLawGrrls.

Thanks to Jean Allain and Yvonne McDermott.

Put North Korea on Trial

See the op-ed in Thursday's International Herald Tribune by Sir Geoffrey Nice QC and myself.

Katyn at Strasbourg and Nuremberg

In what is known as the Katyn forest massacre, perhaps as many as 20,000 Polish officers and other officials were summarily executed by the Soviets, then buried in mass graves in what is today Belarus.

An application by several relatives of those who were murdered was granted in part by a chamber of the European Court of Human Rights in a decision released last week, in the case of Janowiec et al. v. Russia. The seven-judge chamber was quite divided, as can be seen in the various dissenting opinions. Typically, this sort of case works its way to the Grand Chamber, where 17 judges will re-consider it.

The Court described the massacre as follows:

140. The Court accepts that the mass murder of Polish prisoners by the Soviet secret police had the features of a war crime. Both the Hague Convention IV of 1907 and the Geneva Convention of 1929 prohibited acts of violence and cruelty against war prisoners and the murder of prisoners of war constituted a “war crime” within the meaning of Article 6 (b) of the Nuremberg Charter of 1945. Although the USSR was not a party to the Hague or Geneva Conventions, the obligation to treat prisoners humanely and abstain from killing them clearly formed part of the international customary law which it had a duty to respect. In its declaration of 26 November 2010, the Russian Parliament recognised that the mass extermination of Polish citizens had been “an arbitrary act by the totalitarian State”. It is further noted that war crimes are imprescriptible in accordance with Article I (a) of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, to which Russia is a party.

The Court found a violation of article 3 of the European Convention, which prohibits torture and inhuman or degrading treatment or punishment. The violation  concerned the anxiety and frustration suffered by the family members of the victims because of  ‘the Russian authorities’ flagrant, continuous and callous disregard for their enquiries’.

The Court noted that ‘Article 3 requires it to exhibit a compassionate and respectful approach to the anxiety of the relatives of the deceased or disappeared person and to assist the relatives in obtaining information and uncovering relevant facts’ (para. 163). In itself, this was not a novel finding, but never has the Court applied Article 3 to facts that took place so long ago.

Here are the core paragraphs:

164. In conclusion, the applicants suffered a long ordeal during the entire post-war Communist era in which political factors put insurmountable obstacles to their quest for information. The institution of Katyn proceedings gave them a spark of hope in the early 1990s but it was gradually extinguished, in the post-ratification period, when the applicants were confronted with the attitude of official denial and indifference in face of their acute anxiety to know the circumstances of the death of their close family members and their burial sites. They were excluded from the proceedings on the pretence of their foreign nationality and barred from studying the materials that had been collected. They received curt and uninformative replies from Russian authorities and the findings that had been made in the judicial proceedings were not only contradictory and ambiguous but also contrary to the historic facts which, nonetheless, were officially acknowledged at the highest political level. The Russian authorities did not provide the applicants with any official information about the circumstances surrounding the death of their relatives or made any earnest attempts to locate their burial sites.

165. Furthermore, the Court reiterates its constant position that a denial of crimes against humanity, such as the Holocaust, runs counter to the fundamental values of the Convention and of democracy, namely justice and peace (see Lehideux and Isorni v. France, 23 September 1998, § 53, Reports 1998-VII, and Garaudy (dec.), cited above), and that the same is true of statements pursuing the aim of justifying war crimes such as torture or summary executions (see Orban and Others, cited above, § 35). By acknowledging that the applicants’ relatives had been held prisoners in the Soviet camps but declaring that their subsequent fate could not be elucidated, the Russian courts denied the reality of summary executions that had been carried out in the Katyn forest and at other mass murder sites. The Court considers that such approach chosen by the Russian authorities has been contrary to the fundamental values of the Convention and must have exacerbated the applicants’ suffering.

The question now is how much further beyond 1940 it may go following the approach it has taken in Janowiec. Could the Court consider in a similar fashion the repeated denials of Turkey with respect to massacres perpetrated against the Armenians in 1915, an event that we today describe as the Armenian genocide? Readers of the blog will no doubt be able to cite other examples prior to 1940 when European states were responsible for atrocities that they have either denied or whose importance they have dismissed.

In Janowiec, the Court rejected the portion of the application based upon article 2 (‘right to life’). Of course, the actual violation of the right to life took place in 1940, more than half a century before Russia had ratified the European Convention on Human Rights. But the Court has already held that it can exercise jurisdiction with respect to a failure to investigate violations of the right to life, even if it cannot consider the actual killing as such. This is known as the ‘procedural obligation’ associated with article 2. But the Court decided that even that issue was outside its temporal jurisdiction.

The operative date is 5 May 1998, when Russia ratified the European Convention. The Court noted that while there had been investigative steps in the years immediately following the break-up of the Soviet Union, in the early 1990s, ‘no piece of evidence of a character or substance which could revive a procedural obligation of investigation or raise new or wider issues has been produced or uncovered. The Court is therefore bound to conclude that there were no elements capable of providing a bridge from the distant past into the recent post-ratification period and that the special circumstances justifying a connection between the death and the ratification have not been shown to exist.’ (para. 140).

The decision incorrectly describes the treatment of the Katyn case during the Nuremberg Trial (para. 19). The Soviet prosecutors had insisted that the Nazi defendants be charged with responsibility for the massacre. According to the European Court of Human Rights, ‘[t]he charge was dismissed by the US and British judges for lack of evidence’. That’s not quite right. There is no reference whatsoever to the charge in the final judgment. It would be better, perhaps, to say that it was simply ignored. The Chamber of the European Court of Human Rights seems to have entirely forgotten about the French judges, who also signed the final judgement, and about the Soviet judge, who wrote a dissenting opinion but who also chose to say nothing about Katyn.

Prompted by a conference on the subject organised by Michael Scharf at Case Western University last year, I spent some effort researching the treatment of Katyn at Nuremberg and write about this in my new book Unimaginable Atrocities. Critics of Nuremberg often point to the inclusion of the Katyn massacre in the indictment as evidence that the trial was ‘victors’ justice’. But evidence was led by both sides, the Germans and the Soviets, and if the judges found it to be inconclusive that makes perfect sense. Ignoring the whole business was the best they could do at the time. Nuremberg would be vulnerable to legitimate criticism had the judges, or even one of them, blamed the Nazis for Katyn, but that is not what they did.

More Small Steps towards Abolition in the United States

Yesterday, the Connecticut State Legislature voted to repeal legislation authorizing imposition of the death penalty. The bill now goes to the Governor, who has said that he will sign the measure into law.
Connecticut becomes the fifth state in the United States in recent years to have put an end to capital punishment. Some other states have also come very close to repeal of capital punishment provisions.
It may seem like a very small step, and cynics will note that Connecticut has not used the death penalty in recent times. But the importance of such developments will be felt at the Supreme Court, which has developed a doctrine by which the interpretation of the eighth amendment ("cruel and unusual punishment") is informed by legislative developments in the states. For example, in Roper v. Simmonds, decided in 2005, the Supreme Court put an end to the death penalty for juvenile offenders noting a trend in this direction within the legislation of states. It says that this is a strong indicator of "evolving standards of decency" that direct the interpretation of the eighth amendment.
Such developments are totally consistent with what is happening at the global level. With a few notable exceptions (Iran, Iraq, Saudi Arabia), the dwindling group of states that employ the death penalty is using it less and less.
There are likely to be more such abolitionist moves within the states of the United States. At some point, probably sooner rather than later, this will reach a tipping point that will then drive a challenge in the Supreme Court to the constitutionality of capital punishment. Something else is also essential: a few of the dinosaurs on the Supreme Court need to take early retirement, paving the way for President Obama to make progressive appointments. I'd bet that the death penalty will be through in the United States before this decade is over.

Harsh Sentencing Judgment from the European Court of Human Rights

A Chamber of the European Court of Human Rights today rejected an application by a number of prisoners being held in the United Kingdom who challenged their extradition to the United States. Several important issues are addressed in the decision, which concerns article 3 of the European Convention on Human Rights: the prohibition of torture and inhuman or degrading treatment or punishment. The decision, in Babar Ahmad et al. v. UK, is the latest in a series of decisions on the principle of non-refoulement, which prevents a party to the European Convention on Human Rights from sending an individual to another state where there is a real risk of torture or inhuman or degrading treatment or punishment being inflicted. In perhaps the Court’s most celebrated judgment, Soering v. UK, of 7 July 1989, the Court refused to extradite an individual to the United States because of concerns he would be subject to the “death row phenomenon”, defined as a protracted wait in dire prison conditions prior to execution.

            Today’s judgment seems to be a retreat from that great day. For the moment, I will comment on only one aspect of the ruling concerning mandatory sentences of life imprisonment without the possibility of parole. Some of the applicants had argued that if extradited to the United States and convicted, they would be subject to a mandatory term of life imprisonment without any possibility of parole. The Court did not think this was necessarily a breach of the European Convention:

242. For the third sentence, a mandatory sentence of life imprisonment without the possibility of parole, the Court considers that greater scrutiny is required. The vice of any mandatory sentence is that it deprives the defendant of any possibility to put any mitigating factors or special circumstances before the sentencing court (see, for instance, Reyes and de Boucherville at paragraphs 151 and 152 above). This is no truer than for a mandatory sentence of life imprisonment without the possibility of parole, a sentence which, in effect, condemns a defendant to spend the rest of his days in prison, irrespective of his level of culpability and irrespective of whether the sentencing court considers the sentence to be justified.

However, in the Court’s view, these considerations do not mean that a mandatory sentence of life imprisonment without the possibility of parole is per se incompatible with the Convention, although the trend in Europe is clearly against such sentences (see, for example, the comparative study summarised at paragraph 138 above). Instead, these considerations mean that such a sentence is much more likely to be grossly disproportionate than any of the other types of life sentence, especially if it requires the sentencing court to disregard mitigating factors which are generally understood as indicating a significantly lower level of culpability on the part of the defendant, such as youth or severe mental health problems (see, for instance, Hussain v. the United Kingdom and Prem Singh v. the United Kingdom, judgments of 21 February 1996, Reports 1996-I at paragraphs 53 and 61 respectively and the Canadian case of Burns, at paragraph 93, quoted at paragraph 74 above).

The Court concludes therefore that, in the absence of any such gross disproportionality, an Article 3 issue will arise for a mandatory sentence of life imprisonment without the possibility of parole in the same way as for a discretionary life sentence, that is when it can be shown: (i) that the applicant’s continued imprisonment can no longer be justified on any legitimate penological grounds; and (ii) that the sentence is irreducible de facto and de iure (Kafkaris, cited above).

            The study to which the Court referred, by South African academic Dirk Van Zyl Smit, considered the sentencing practice within Europe. It summarized his study as follows:

138.  In his comparative study entitled “Outlawing Irreducible Life Sentences: Europe on the Brink?”, 23: 1 Federal Sentencing Reporter Vol 23, No 1 (October 2010), Professor Van Zyl Smit concluded that the majority of European countries do not have irreducible life sentences, and some, including Portugal, Norway and Spain, do not have life sentences at all. In Austria, Belgium, Czech Republic, Estonia, Germany, Lithuania, Luxembourg, Poland, Romania, Russia, Slovakia, Slovenia, Switzerland and Turkey, prisoners sentenced to life imprisonment have fixed periods after which release is considered. In France three such prisoners have no minimum period but it appears they can be considered for release after 30 years. In Switzerland there are provisions for indeterminate sentences for dangerous offenders where release can only follow new scientific evidence that the prisoner was not dangerous, although the provisions have not been used. The study concludes that only the Netherlands and England and Wales have irreducible life sentences. 

Today’s judgment sends a fearful signal to extremists in national legislatures throughout Europe, who may take it as a blessing for harsher sentencing policies.

            Of note is a reference by the Court to article 77 of the Rome Statute of the International Criminal Court (see para. 140), which allows a life sentence in exceptional cases, but with a requirement of review for parole after 25 years’ detention.

Jus-Post-Bellum Launch Conference

The launch conference of the Jus-Post-Bellum project, entitled “‘Jus - Post - Bellum’: Mapping the normative foundations”, will be held 31 May and 1 June 1 2012 at the Peace Palace in The Hague.  The first of several project seminars, this conference will seek to clarify the meaning and content of the concept (including, e.g., its relationship to and distinction from the field of transitional justice), including contemporary understandings and criticisms of the concept, and historical and modern approaches towards the definitions of key notions, such as “jus”, “post” and “bellum”.

The launch conference will include five panels: Situating the Concept, Mapping the Normative Framework(s), the Politics and Practice of Jus Post Bellum, Temporal Dimensions of Jus Post Bellum, and The ‘Jus’ in ‘Jus Post Bellum.’  There will also be a roundtable discussion on ‘At War’s End,’ by Larry May.

Conference speakers and participants include Freya Baetens, Rogier Bartels, Christine Bell, Eric de Brabandere, Robert Cryer, Jennifer Easterday, Mark Evans, Dieter Fleck, Gregory Fox, James Gallen, Terry Gill, Jens Iverson, Dov Jacobs, Jann Kleffner, Claus Kress, Randall Lesaffer, Larry May, Larry May, Jens Meierhenrich, Nneka Okechukwu, Inger Osterdahl, Cymie Payne, Yael Ronen, Aurel Sari, Matthew Saul, Carsten Stahn, Astri Suhrke, Ruti Teitel, Roxana Vatanparast, Martin Wahlisch, and Dominik Zaum.

Please fill out the linked form to apply to attend the Jus Post Bellum Project launch conference. 
For more information, please see the draft programme and the call for papers.

The Prosecutor and Palestine: Deference to the Security Council

The Office of the Prosecutor has finally issued a statement responding to the declaration formulated by the Palestinian authority in January 2009 giving jurisdiction to the International Criminal Court over the ‘situation in Palestine since 1 July 2002’. The Declaration was provoked by Operation Cast Lead, when Israeli troops caused great destruction and loss of life in Gaza. Some of these actions were subsequently characterized by the international commission of inquiry presided over by Richard Goldstone as war crimes and crimes against humanity.

For more than three years, the Office of the Prosecutor has dawdled over its response to the one-page declaration. That’s longer than it took most lawyers to earn their law degrees!

The Office considered the question that lies at the heart of this issue, which is whether or not Palestine can be considered a State for the purposes of the application of article 12(3) of the Rome Statute. Many submissions were made, in writing and in person, on this issue. The recent decision seems to avoid the core issue entirely. The Office of the Prosecutor says that it is not the competent body to make such a determination. This is a matter, according to the Office, for the Secretary-General of the United Nations or the Court’s own Assembly of States Parties.

Article 12(3) of the Statute authorizes ‘a State which is not a Party to this Statute’ to make a declaration accepting the jurisdiction of the Court. Thereby, the State authorizes the Court to exercise jurisdiction over crimes committed on its territory or by its nationals. Without any dispute, Uganda and Côte d’Ivoire have made such declarations (Uganda became a State party, but several months after 1 July 2002), and the Prosecutor has proceeded with investigations concerning both of these States. Judges of the Pre-Trial Chambers have not questioned the validity of the declarations. Of course, Uganda and Côte d’Ivoire are Member States of the United Nations. In the case of Palestine, however, its status as ‘a State which is not a Party to this Statute’ is in dispute.

The Rome Statute does not expressly provide a mechanism for determining whether or not an entity like Palestine constitutes ‘a State which is not a Party to this Statute’. However, the Statute provides a mechanism for determining whether or not an entity like Palestine constitutes ‘a State Party’. That is because ‘a State which is not a Party to this Statute’ can become ‘a State Party’ by depositing an instrument of ratification or accession with the United Nations Secretary-General, who is the depositary of the Rome Statute. It is then for the Secretary-General to determine whether or not an entity like Palestine can become ‘a State Party’. Of course, Palestine has not yet asked to become ‘a State Party’. It would be very desirable that it does.

The Prosecutor has decided that the two issues – whether or not an entity can become ‘a State Party’ and whether or not it is ‘a State which is not a Party to this Statute’ - are in fact much the same issue and are to be decided in the same way.

Here is the core of the Prosecutor’s statement:

5. The issue that arises, therefore, is who defines what is a ‘State’ for the purpose of article 12 of the Statute? In accordance with article 125, the Rome Statute is open to accession by ‘all States’, and any State seeking to become a Party to the Statute must deposit an instrument of accession with the Secretary‐General of the United Nations. In instances where it is controversial or unclear whether an applicant constitutes a ‘State’, it is the practice of the Secretary‐General to follow or seek the General Assembly’s directives on the matter. This is reflected in General Assembly resolutions which provide indications of whether an applicant is a ‘State’. Thus, competence for determining the term ‘State’ within the meaning of article 12 rests, in the first instance, with the United Nations Secretary General who, in case of doubt, will defer to the guidance of General Assembly. The Assembly of States Parties of the Rome Statute could also in due course decide to address the matter in accordance with article 112(2)(g) of the Statute.”

A footnote refers to the manual of practice of the Secretary-General, which states:

82. This practice of the Secretary-General became fully established and was clearly set out in the understanding adopted by the General Assembly without objection at its 2202nd plenary meeting, on 14 December 1973, whereby 'the Secretary-General, in discharging his functions as a depositary of a convention with an "all States" clause, will follow the practice of the Assembly in implementing such a clause and, whenever advisable, will request the opinion of the Assembly before receiving a signature or an instrument of ratification or accession”.

The flaw in the Prosecutor’s analysis

The Prosecutor ducks the issue and misinterprets the Rome Statute. The absence of a mechanism in the Statute to identify ‘a State which is not a Party to this Statute’ does not mean that the matter is to be resolved elsewhere. The question is different from that of whether an entity can join the Court, which is clearly delegated to the Secretary-General by article 125 of the Statute. Rather, the question posed by article 12(3) is simply a question of fact, like so many other questions of fact that must be determined, in the first place, by the Prosecutor and, in the second place, by the judges.

Article 12 gives the Court jurisdiction over the territory and over the nationals of a State party (or a State making a declaration under article 12(3)). Who is to decide what constitutes such territory? Who is to determine whether or not an individual really is a national of a given State? This is not something to be delegated elsewhere. Rather, these are factual issues to be assessed by the Prosecutor in determining whether to initiate an investigation, and subsequently by the judges at various stages of the proceedings. For example, the Prosecutor might choose to proceed in a specific case, obtain an arrest warrant, bring the accused into custody, and begin a trial, only to have the accused person argue that he or she is not in fact a national of a State Party, or that the act was not perpetrated on the territory of a State Party. Would the trial stop, while inquiries were made with other bodies outside the Court to determine issues of nationality and territory? Of course not. It would be an issue of fact to be decided by the Court. And the same is true as to whether an entity constitutes ‘a State which is not a Party to this Statute’.

Neither the Secretary-General nor the General Assembly (nor for that matter the Assembly of States Parties), has ever prepared a list of ‘States which are not a Party to the Statute’. Under their legislative frameworks, they have no authority to do this. Why would they? They have never been asked. If the question were posed directly of the Secretary-General, the response would be that this is not within his remit, and that it certainly does not fall within the functions of a treaty depository.

So, the Prosecutor must reach a decision as to whether Palestine belongs to the class of ‘States which are not a Party to the Statute’, and then, should he so elect, elect to request permission of the Pre-Trial Chamber to begin an investigation. Although he claimed, the ‘competence’ for determining this lies elsewhere, in reality he has actually made the determination himself. In fact, all that the Prosecutor does, in his statement of a few days ago, is interpret various acts of the Secretary-General and the General Assembly in reaching his own factual conclusion that Palestine is not ‘a State which is not a Party to this Statute’.

In reaching his conclusion that Palestine is not a not ‘a State which is not a Party to this Statute’ (although the Prosecutor says he has in fact declined to make such a determination), he cites three factors (see para. 7):

1.     Palestine has been recognized by more than 130 governments and ‘certain international organizations, including United Nation [sic] bodies’

2.     ‘the current status granted to Palestine by the United Nations General Assembly is that of “observer”, not as a “Non‐member State”’

3.     Palestine submitted an application for admission to the United Nations, but the Security Council has not yet made a recommendation in this regard.

With respect to the application for membership in the United Nations (point 3), the Prosecutor states that ‘[w]hile this process has no direct link with the declaration lodged by Palestine, it informs the current legal status of Palestine for the interpretation and application of article 12’. I think this final statement confirms my analysis, namely that the Prosecutor is indeed interpreting various acts and statements in reaching how own conclusion about the application of article 12 rather than declining to do so and deferring the matter to the Secretary-General.

Did the Prosecutor analyse the facts correctly?

            The first fact considered by the Prosecutor, which is the widespread recognition of Palestine and its membership in international organizations, including United Nations bodies, is obviously favourable to the claim that Palestine is a State. The third fact – the refusal of the Security Council to authorize Palestine’s membership in the United Nations – should be of very limited relevance, because it tends to conflate United Nations membership with the existence of a State. The entire debate would be simple enough if the way to assess whether an entity was a “State” was to check whether it was a member of the United Nations.

But very clearly, the Rome Statute was drafted quite specifically in order to accommodate States that are not members of the United Nations. There was one very important State on everybody’s mind in 1998: Switzerland, which only joined the United Nations some years later. The Rome Statute might have been drafted to apply to United Nations Member States as well as to Switzerland, on an exceptional basis, but that is not in fact what it does. It applies to all States, whether or not they are members of the United Nations. So determining whether something is “a State which is not a Party to this Statute” by asking whether it is a member of the United Nations is purely tautological. It is the dog chasing its tail.

It is the second point that is central to the Prosecutor’s analysis, namely, that the General Assembly has admitted Palestine as an “observer”, and not as a “Non‐member State”. It is an interesting distinction, although perhaps a bit too technical. The website of the General Assembly lists two “Permanent Observers”, and then describes them as either ‘Non-member States’ or ‘Entities”. The Holy See is the sole ‘Non-member State’ whereas Palestine is listed as an ‘Other entity’.

The website of the General Assembly describes Permanent Observers: ‘Non-Member States of the United Nations, which are members of one or more specialized agencies, can apply for the status of Permanent Observer.’ This seems to suggest that a ‘Permanent Observer” is a ‘Non-Member State’. So perhaps by admitting Palestine as a Permanent Observer, the General Assembly was in fact confirming that Palestine is a State.

            It is difficult to distill legal principles from the practice of the General Assembly in this regard, which seems inconsistent in any case. For example, the Cook Islands is not a Permanent Observer, and that means it is neither a Non-member State nor an Entity. As for the Holy See, which is the only ‘Non-member State’, its claim to statehood seems quite shaky when compared to Palestine. It is more of a pseudo-state, without genuine citizens or a national identity, something created as part of a compromise with Mussolini, as Geoffrey Robertson points out so well in his book The Case Against the Pope. The Holy See isn’t even recognized by one of the Permanent Members of the Security Council, China. The United Kingdom describes it as an ‘entity’ rather than as a ‘State’.

            Exclusion of the Cook Islands from the list of ‘Non-member States’ did not prevent the Secretary-General from accepting its accession to the Rome Statute, on 18 July 2008. So it would seem that even the Secretary-General, in determining whether an entity is a State for the purposes of applying article 125, is not bound by whether a State appears on the list of ‘Non-member States’ set by the General Assembly.

            Actually, the Secretary-General has already indicated the rationale for admitting the Cook Islands as a State Party to the Rome Statute. This appears in a paragraph of the Manual of Practice cited by the Prosecutor in last week’s declaration, but not a paragraph to which the Prosecutor makes reference. The Prosecutor’s statement of 3 April 2012 refers to paragraph 82 of the Manual of Practice. It does not, however, consider the discussion in the Manual that follows concerning the determination of this matter when the General Assembly has not pronounced on the question. The Secretary-General refers to the case of the Cook Islands:

86. However, in 1984, an application by the Cook Islands for membership in the World Health Organization was approved by the World Health Assembly in accordance with its article 6, and the Cook Islands, in accordance with 
article 79, became a member upon deposit of an instrument of acceptance with the Secretary-General.... In the circumstances, the Secretary-General felt that the question of the status, as a State, of the Cook Islands, had been duly decided in the affirmative by the World Health Assembly, whose membership was fully representative of the international community. The guidance the Secretary-General might have obtained from the General Assembly, had he requested it, would evidently have been substantially identical to the decision of the World Health Assembly. The same solution was adopted by the Secretary-General when Niue, in 1994, applied for membership in the World Health Organization. Moreover, on the basis of the Cook Islands' membership in the World Health Organization, and of its subsequent admittance to other specialized agencies (Food and Agriculture Organization of the United Nations, United Nations Educational, Scientific and Cultural Organization and International Civil Aviation Organization) as a full member without any specifications or limitations, the Secretary-General considered that the Cook Islands could henceforth be included in the "all States" formula, were it to wish to participate in treaties deposited with the Secretary-General.

The Secretary-General indicates that admission for membership in a specialized agency of the United Nations may be taken as appropriate guidance to be followed, because it is in a sense analogous to the guidance that would be received from the General Assembly. Late in 2011, Palestine was admitted as a Member State of UNESCO. The Prosecutor might have considered this in his interpretation of relevant facts for the purpose of making his determination under article 12(3) of the Statute.

Two facts are of interest here: the Cook Islands has become a State Party to the Rome Statute. Palestine has been admitted as a Member State in UNESCO.

Thus, even assuming that the Prosecutor is correct in stating that it is for the Secretary-General or the General Assembly to make the determination as to whether an entity should be a ‘State’ for the purposes of article 12(3) of the Rome Statute, a more generous and inspired interpretation would have much to rely upon in concluding that Palestine already has a sufficient degree of recognition.

The Prosecutor has spoken very eloquently about dealing with impunity in Africa. But when it comes to the Middle East, given the chance to address one of the world’s major conflicts, and following direction given by the Commission of Inquiry chaired by Richard Goldstone, he has chosen a dramatically more conservative approach. Clearly, he has no taste for wading into a conflict that would anger the United States and some of its close allies.

This should not come as a great surprise. The Prosecutor has always been cautious when his selection of priorities might risk encroaching upon matters of sensitivity to permanent members of the Security Council and one of them in particular.

Finally, point 2 above is not really a good argument favouring the rejection of the Palestinian declaration. At best, it is an uncertain and neutral point. As already explained, point 1 is favourable to Palestine. That leaves point 3: the Security Council. It seems that this rather irrelevant matter weighed heavily in the Prosecutor’s determination.

In my recent book Unimaginable Atrocities, the political nature of the selection of situations by the Prosecutor is discussed. The contention that the Prosecutor exercises a judicial function, independent of political concerns, is dismissed as a myth, despite his repeated claims to the contrary. When it comes to the Security Council and especially the interests of its Permanent Members, the Prosecutor is on his best behavior. He is extremely deferential, in contrast with the attitude taken to other international organizations like the African Union. Last week’s declaration about Palestine is further confirmation of this.

Free Education Under Attack in US Supreme Court

I spent much of last week in Washington, attending the Annual Meeting of the American Society of International Law. But the talk of the town was the hearing at the United States Supreme Court on the challenge to President Obama’s health care legislation. It seems incredible, but quite possibly the Supreme Court will strike down a system providing for universal health care that the rest of the developed world takes for granted.

An aspect of the hearings that has not received much attention in the media is the threat to universal education in the United States. It seems that a consequence of the Supreme Court’s latest rightward tack is a challenge to public education. If the United States government won’t provide its residents with a minimum level of health care, why should it provide them with free education for their children?

Yet, in argument before the Court last week, some of the lawyers attacking the health care legislation hinted at the next stage in the attack on entitlements that most of us take for granted. The conservative judges on the Court indicated their openness to such a challenge. The claim will be that if the government isn’t required to ensure health care, why should it provide education, even at the primary school level.

One of them alluded to the famous pronouncement of Justice Oliver Wendell Holmes in the 1928 decision in Bell v. Bell, saying "Three generations of imbeciles are enough". Answering government lawyers, who said that if the education system were privatised, the parents of some 40 million children would not be able to afford to teach them to read and write, the Justice said that there were many jobs in the United States that did not require literacy, and that no harm would be done to the economy if certain children grew up without being able to read and right. The free market would ensure that those who actually needed to be literate would get the necessary training.

When reference was made to article 26 of the Universal Declaration of Human Rights, which says “Education shall be free, at least in the elementary and fundamental stages”, Justice Scalia dismissed any role of international law and said that, in any event, the Universal Declaration was “not binding” and that Eleanor Roosevelt had exceeded her authority when she voted in favour of it in the United Nations General Assembly in 1948.

Mad as this sounds, a right-wing think tank that has had a lot of influence on conservative American judges, the Free Liberty Foundation, has been campaigning for the abolition of public education for several years. The idea has also been picked up by some Republican candidates for the Presidency. They contend that home schooling by parents can very adequately replace public schools, the abolition of which will permit a reduction in income taxes at the higher brackets and enable some of the savings to be devoted to increased spending on a military that is strapped for resources. A detailed position paper, authored by two distinguished legal academics, is available here.