Non-international armed conflict in Syria

The International Committee of the Red Cross is now describing Syria as a non-international armed conflict. For a short course on the legal issues, listen to this brief interview with Prof. Andrew Clapham of the Geneva Academy of International Humanitarian Law and Human Rights. Click here.

Senegal ordered to try Hissène Habré by International Court of Justice

The International Court of Justice ruled this afternoon, by a crushing majority, in favour of Belgium in its application against Senegal concerning the Hissène Habré case. The vote was 14 to 2 for a violation of the Torture Convention, with the two negative votes being case by the Judge Xue of China and ad hoc Judge Sur of Senegal. The vote was unanimous that 'the Republic of Senegal must, without further delay, submit the case of Mr. Hissène Habré to its competent authorities for the purpose of prosecution, if it does not extradite him'.

Habré stands accused of torture (as well as other crimes) in Chad. Years ago he sought refuge in Senegal. Belgium insisted that Senegal live up to its obligations under the Conventions Against Torture.

Senegal is reported to be planning to begin the trial of Habré before the end of the year. It has a new government that is expected to be more respectful of its international obligations than the previous regime.

As is generally the case, today's judgment is accompanied by a raft of separate opinions as well as statements by the two dissenters. We are treated to yet another lengthy consideration of the broader issues by Judge Cançado Trindade.

Mali Referral Poses Challenge for International Criminal Court

Mali has referred 'the situation in Mali since January 2012' to the International Criminal Court, in accordance with article 14 of the Rome Statute. It is the fourth such 'self-referral' by a State. Like the three other 'self-referrals', the States in question were asking the Court to prosecute rebel groups rather than themselves. It is noteworthy that this is the first such referral by a State Party in seven and a half years.
The referral by Mali does not mean that the Court will proceed with prosecutions. An additional step is required. The Prosecutor must determine that there is a reasonable basis for an investigation. She has announced that she is proceeding with a 'preliminary investigation' but has not confirmed whether or not she will actually prosecute cases arising from the situation. This is a decision to be taken very cautiously.
It seems that there is very compelling evidence that a number of crimes within the jurisdiction of the Court have been committed in Mali in recent months. From the standpoint of jurisdiction and admissibility, the Prosecutor will probably not have much difficulty reaching a conclusion that the basics for a full-blown investigation followed by prosecution are present.
The enormous challenge is to weigh the political factors that are involved in deciding to proceed the situation in Mali.
First, the Court is quickly reaching the saturation point in terms of the number of prosecutions it can sustain. There must be concerns that it will find itself so burdened with existing situations that it cannot then take on something new and, perhaps, more deserving of attention.
Second, does the Court really need yet another situation in Africa? When the situation is looked at in isolation there may be compelling reasons to proceed with Mali. Yet the optics of enhancing still further the Court's distorted focus on Africa should be considered.
Years ago, when the first Prosecutor was launching the initial cases at the Court, neither of these challenges were really present.  The task of selecting situations for prosecution is more complex now because it involves ensuring that the Court is viewed as being truly global. In addition, resources must be conserved to ensure that the Court can respond to the most important cases, should they arise. For example, if Syria were referred to the Court, would it have the resources to respond adequately?
When the first Prosecutor launched the 'self-referral' cases in 2004 and 2005, there was much concern about the danger of directing the Court towards rebel groups. In reply, it was argued then that this would ensure cooperation by the State Party and thereby contribute to the effectiveness of the Court. Eight years of practice have shown that State Party cooperation adds very little to the process. The Ugandan arrest warrants remain unenforced. Bosco Ntaganda is still at large in the Democratic Republic of the Congo. A single prosecution has resulted from the Central African Republic, of an individual who miscalculated by travelling to Belgium.
In other words, some of the compelling arguments invoked several years ago in support of self-referrals have proven to be rather hollow.
The profound flaw in the 'self-referral' model is that it flies in the face of 'positive complementarity'. If Mali wants to ensure that its rebels are prosecuted, the Court should encourage it to do so by itself. Referring the situation to the Court doesn't do anything to bring the rebels into custody. And if perchance they are captured, why can't Mali prosecute the cases?

Dr Fatou Bensouda

Fatou Bensouda, the new Prosecutor of the International Criminal Court, was awarded an honorary doctorate today at Middlesex University. Prof. Joshua Castellino, the dean of the School of Law at Middlesex, spoke eloquently about her distinguished career and about the challenges she faces as the International Criminal Court enters its second decade. Prior to the ceremony, she met with our doctoral students and faculty to chat about issues confronting the Court. We are all proud that she is associated with our University and wish her the warmest congratulations.

Prof. Castellino, Dr. Nadia Bernaz and Dr. Fatou Bensouda

Don Ferencz, Fatou Bensouda and myself.

Thanks to Don Ferencz, who took the photos.

Lubanga Sentenced to Fourteen Years

The first sentence of the International Criminal Court was handed down earlier this week. Thomas Lubanga was sentenced to fourteen years’ detention for child soldier offences. Judge Odio Benito, dissenting, would have imposed a sentence of fifteen years.

Service of the sentence is governed by article 110 of the Statute and Rules 223 and 224 of the Rules of Procedure and Evidence. Lubanga will be eligible for a reduction of his sentence once two-thirds of the term have been served. The Trial Chamber made very complimentary remarks about Lubanga’s behaviour during the trial, and everything would suggest him to be a model prisoner who will indeed be a fine case for release after two-thirds of the sentence is served. Accordingly, he would be released on or about 12 July 2015, that is, exactly three years from now.

Given that the judges at the ad hoc tribunals have fairly consistently rejected the notion that there is a hierarchy of offences in their statutes, it is interesting that the approach in this week’s decision is somewhat different. The judges seem to take the view that in the absence of significant mitigating or aggravating factors, a fourteen-year sentence is the appropriate term for such a crime. The Prosecutor, by the way, had asked for the maximum sentence of thirty years.

The Lubanga case is the first prosecution before a Court whose mission is to address ‘the most serious crimes of concern to the international community as a whole’. Imposition of the sort of sentence that domestic courts might give to a mid-level drug trafficker questions raise questions as to whether the case itself ever belonged before the Court at all. Here are some initial reflections:

1. Complementarity

As everyone knows, the International Criminal Court is to be complementary to national jurisdictions. When the arrest warrant was issued in February 2006, the Pre-Trial Chamber considered whether the Democratic Republic of the Congo was indeed willing and able to prosecute Lubanga. It concluded this to be the case. Lubanga had been in custody for many months in the Congo on charges of genocide and crimes against humanity. But then the Pre-Trial Chamber noted that he was not charged with child soldier offences, and concluded that the case was admissible.

This always seemed to be a rather artificial and mechanistic application of the Statute. After all, if the purpose of the exercise is to address impunity, why did the Court need to intervene if domestic courts were already pursuing a prosecution for serious international crimes. Indeed, genocide and crimes against humanity are arguably more serious than enlisting child soldiers. Is it really conceivable that a conviction for genocide would result in a fourteen-year sentence?

Lubanga did not contest his transfer to The Hague on grounds of inadmissibility. That has proven to be a rather wise decision. He avoided prosecution for genocide and crimes against humanity in the Democratic Republic of the Congo. Three years from now, he’ll be enjoying a rijstaffel and a Heinekin at a beachfront café in Scheviningen.

2. Gravity

At the same time as the Prosecutor was seeking the arrest warrant for Lubanga, on the child soldier charges, he issued a statement explaining why he did not think it appropriate to proceed with an investigation into atrocities committed by British troops in Iraq. Here is what he wrote:

After analyzing all the available information, it was concluded that there was a reasonable basis to believe that crimes within the jurisdiction of the Court had been committed, namely wilful killing and inhuman treatment. The information available at this time supports a reasonable basis for an estimated 4 to 12 victims of wilful killing and a limited number of victims of inhuman treatment, totaling in all less than 20 persons…

The number of potential victims of crimes within the jurisdiction of the Court in this situation – 4 to 12 victims of wilful killing and a limited number of victims of inhuman treatment – was of a different order than the number of victims found in other situations under investigation or analysis by the Office. It is worth bearing in mind that the OTP is currently investigating three situations involving long-running conflicts in Northern Uganda, the Democratic Republic of Congo and Darfur. Each of the three situations under investigation involves thousands of wilful killings as well as intentional and large-scale sexual violence and abductions. Collectively, they have resulted in the displacement of more than 5 million people. Other situations under analysis also feature hundreds or thousands of such crimes.

Taking into account all the considerations, the situation did not appear to meet the required [gravity] threshold of the Statute…

And child soldier offences warranting a sentence of fourteen years did meet this fabled gravity threshold? A single conviction of a single British soldier for a single wilful killing would have warranted sentence heavier than fourteen years.

The Lubanga sentence confirms the mythology of the International Criminal Court, whereby prosecutions in situations that threaten major powers are avoided while relatively insignificant cases in soft African targets attract the considerable resources of the institution.

3. Sexual assaults

There is a widespread view circulating by which the Lubanga trial did not deal with the real issue, which is sexual assault. Some critics will say Lubanga got off easily because of the Prosecutor’s reluctance to charge him with crimes of sexual violence. For the record, here is what this week’s decision says on the subject.

73. On the basis of the totality of the evidence introduced during the trial on this issue, the Majority is unable to conclude that sexual violence against the children who were recruited was sufficiently widespread that it could be characterised as occurring in the ordinary course of the implementation of the common plan for which Mr Lubanga is responsible. Moreover, nothing suggests that Mr Lubanga ordered or encouraged sexual violence, that he was aware of it or that it could otherwise be attributed to him in a way that reflects his culpability.

74. Although the former Prosecutor was entitled to introduce evidence on this issue during the sentencing hearing, he failed to take this step or to refer to any relevant evidence that had been given during the trial. As a result, in the view of the Majority, the link between Mr Lubanga and sexual violence, in the context of the charges, has not been established beyond reasonable doubt. Therefore, this factor cannot properly form part of the assessment of his culpability for the purposes of sentence.

4. The nature of child soldier offences

In determining the sentence, the Trial Chamber discusses the consequences on the lives of child soldiers in terms of disruption of family life, psychological damage and proneness to drug and alcohol addiction. It heard evidence from specialists who explained the harm done to children by their involvement in armed conflict.

This is a sensitive topic, and some may find the remarks that follow to be ‘politically incorrect’.

Don’t adult soldiers also suffer terribly from disruption of family life, psychological damage and proneness to drug and alcohol addiction? Is it really true that children suffer more, or in a special and unique manner, from being participants in armed conflict? I would like to know the answer to this based upon scientific research rather than clichés about vulnerable children.

In reality, it may well be that adult soldiers suffer more. Children are notoriously resilient. They can recover from abuse and transform their lives in behaviour in ways that adults cannot. Perhaps we are too uncritical in listening to experts, who are in fact child rights advocates, and their claims about the impact of war on child psychology.

To avoid misunderstanding, I am not suggesting that conscription and enlistment of children shouldn’t be prohibited. But I am inclined to think that conscription and enlistment of adults should also be a crime. Isn’t the logic the same?

5. Prosecutorial misconduct

The sentencing decision takes a bit of a gratuitous swipe at the Prosecutor, noting several instances of misconduct during the proceedings, including the famous interview by a senior official of the Office that was ‘misleading and inaccurate’. This is quite unique in criminal justice, to my knowledge. There is already considerable practice at the ad hoc tribunals where prejudice to the defendant by Prosecutorial behavior is taken into account in reducing sentence. But I am not aware of any situation where an inappropriate statement by the Prosecutor was considered a relevant factor in the reduction of the sentence.

6. Dissenting judgments in sentencing matters

Judge Odio Benito would have given Lubanga an extra year in prison. I suppose she was trying to make a point, but it seems rather silly to dissent on the quantum of such a sentence when only one year is concerned.

Sentencing dissents have always been a matter of some mystery. Dissents make sense on issues like guilt or innocence, or application of a legal norm, because there is an easy way to resolve a dispute in a three-judge panel. The majority prevails. And since the issue is always one of black or white, yes or no, there is inevitably a majority of two and a dissent of one.

But when sentence is concerned, what happens if the three judges each have different views? Suppose Judge Fulford had suggested Lubanga should get thirteen years, instead of fourteen. What then would have been the conclusion?

By insisting on her dissent, perhaps Judge Odio Benito effectively forced the other two judges to reach a consensus and thereby deprived them of the right to an individual opinion.

I’ve asked judges about this issue over the years, and they generally shrug their shoulders and say it is not a problem because two of the three always manage to agree. But if by some uncodified rule or practice two of the three judges must always reach consensus, why can’t we have an uncodified rule or practice by which all three have to agree?

Tokyo Tribunal Archives

The University of Virginia Law Library has created a portal for documents of the International Miltiary Tribunal for the Far East (the 'Tokyo Tribunal'). It consists of more than 20,000 pages of materials from the Tribunal's International Prosecution Sction. They come from the personal papers of Frank S. Tavenner, Jr., who served as Acting Chief Prosecutor when the Prosecutor, Joseph B. Keenan, was absent.

Prosecuting International Crimes in Canadian Courts

Unlike most of the allied countries at the end of the Second World War, Canada never ratified the Agreement that established the Nuremberg Tribunal. Nor was it particularly interested in domestic war crimes prosecutions. Decades later, stung by an important report that suggested the country had become a haven for Nazi war criminals, Canada's Parliament enacted bold legislation enabling the exercise of universal jurisdiction. Since then, Canada has been a major player in international criminal law. Its courts have developed a significant body of case law.
Dr Fannie Lafontaine of Laval University has just published Prosecuting Genocide, Crimes Against Humanity and War Crimes in Canadian Courts with Carswell in Toronto. Her book immediately becomes the leading authority. This is a great addition to the library of any professional interested in domestic prosecution of atrocity crimes. It exhaustively analyses legislation implementing the Rome Statute that has become a model for many jurisdictions. Hopefully this book will circulate widely, well beyond Canada's borders.
The book is based on Dr Lafontaine's PhD thesis which she defended successfully last year at the National University of Ireland Galway.

Five years of blogging

Today marks the fifth anniversary of the day I accessed the Google blog website and figured out how to set up a rather primitive and rudimentary website. I had just begun my most recent sabbatical leave, and was at Oxford University at the time, if I recall correctly. Later, I spent parts of the year at Cardozo Law School in New York, LUISS University in Rome and All Souls College at Oxford. My idea was to use the blog to stay in touch with my doctoral students at the Irish Centre for Human Rights of the National University of Ireland Galway. I had inquired with the tech people at my University about how to do this efficiently and was told that I should simply set up a blog. That is what I did. When the time came to tick the box where readers could access the blog by invitation only, I decided that there was nothing private and no need to keep it confidential.
Doctoral Studies in Human Rights now has thousands of readers around the world. Many of them are not doctoral students and perhaps never will be, although one can always hope! Many people have contributed items and information to the blog over the years. It has even been cited in a judicial decision or two, as well as in academic journal articles and at conferences. Some have been upset by my frankness and iconoclasm, and a few have been offended. Sorry about that. It's nothing personal.
In 2010, I launched a spinoff blog to provide coverage of the Review Conference of the International Criminal Court. There is a mischievous tradition of an entry on 1 April that a few people continue to fall for. I can only do this once a year because good ideas are in short supply.
More than 1,000 separate items have been published on the blog. Some of them are rather lengthy analyses of important developments, while other items simply inform about coming events of interest, or of useful documents and publications, and of successful doctoral graduates. I've made no secret of my own obsessions, especially the abolition of capital punishment and the challenges of international justice. But over the years, a huge range of human rights issues have been discussed.
The posts on the blog are fairly regular. A month has never passed without a few items being published. I've written and posted from every continent and from more than sixty countries. In a few, I have been blacked out by reactionary government policies. My posts on China and Iran were written on site but had to wait until I left the country before they could appear. I suspect that if I had greater computer skills, I would have been able to get around this. I know that readers of my blog in these countries have found such a way.
Technology changes quickly, and there's no assurance we'll still be blogging five years from now. So far, I've resisted expanding into related areas like Twitter and Facebook. I've also batted off approaches aimed at commercializing the blog and using it to generate income.
A few years ago, I began identifying the blog with a French postage stamp that was first issued in 1900. Known as the 'Mouchon' in honour of its designer, bears the inscription 'Droits de l'homme' - that is, Human Rights. I cannot be sure, but probably there was a connection with the Dreyfus Affair, and with the French Ligue des droits de l'homme, which flourished at the time. The French also issued the stamp in some of their overseas territories and post office, where it sent an interesting message.

Transcript of Karadzic Hearing

I've obtained a copy of the transcript of yesterday's decision in the Karadzic hearing. The discussion of the genocide charge that is dropped by the Tribunal can be found starting at p. 28762.

Thanks to Peter Robinson.

Individual Obtains Reparation at the International Court of Justice for breach of the International Covenant on Civil and Political Rights

Lecturers on international human rights law often explain that individuals can only make claims before bodies like the Human Rights Committee for breaches of their rights. But a few weeks ago, in a judgment described as unprecedented, the International Court of Justice awarded reparations to Mr. Ahmadou Sadio Diallo for a breach of provisions of the International Covenant on Civil and Political Rights.
Diallo is a businessman who had lived and worked in the Democratic Republic of the Congo for many years although he was a national of Guinea. In 1995, he came into conflict with the Congolese government which reacted by imprisoning him and then expelling him from the country. In its November 2010 ruling on the merits of the case, the International Court of Justice held that the expulsion of Diallo was not conducted in accordance with Congolese law, and that as a result article 13 of the International Covenant (‘An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law…’) was breached. Prior to his expulsion, Diallo had been detained for more than two months, a period that the Court held was manifestly excessive and not warranted by circumstances or allowed by the laws of the country. Consequently, there was also a violation of article 9(1) of the Covenant on arbitrary detention.
The Court relied not only upon the Covenant but also on the equivalent provisions of the African Charter of Human and Peoples’ Rights. The Court also showed great deference for the case law of international human rights tribunals and treaty bodies in its interpretation of the relevant human rights treaties. At para. 66 of its ruling on the merits, we read:

Although the Court is in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of the Committee, it believes that it should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty. The point here is to achieve the necessary clarity and the essential consistency of international law, as well as legal security, to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled.

Last month’s ruling, which awards reparations to Mr. Diallo, completes a decision on the merits issued in November 2010.
Technically, of course, Diallo was not himself the applicant in this case. It was filed against the Congo by his state of nationality, Guinea, exercising its right of diplomatic protection. The decision of last week includes a fascinating separate opinion by Judge Cançado where issues concerning the right to reparation of victims of human rights abuses are discussed. Underscoring the significance of this case, Judge Cançado writes:

12. In effect, in the present case A.S. Diallo, the Court’s Judgments on the merits (2010) and now on reparations clearly show that its findings and reasoning have rightly gone well beyond the straight-jacket of the strict inter-State dimension. There are circumstances wherein the Court is bound to do so, in the faithful exercise of its judicial function, in cases concerning distinct aspects of the condition of individuals. After all, breaches of international law are perpetrated not only to the detriment of States, but also to the detriment of human beings, subjects of rights ? and bearers of obligations ? emanating directly from international law itself. States have lost the monopoly of international legal personality a long time ago.

He continues:

48. As disclosed by the present case of A.S. Diallo, one is, in sum, faced with a damage done to an individual. He (and not his State of origin) is the subject of the rights breached, he suffered unlawful detention and arbitrary expulsion (from the State of residence), he is the subject of the corresponding right to reparation, and the beneficiary thereof. His case was originally brought before this Court by his State of nationality (in the exercise of diplomatic protection), but, in its decision on the merits (Judgment of 30.11.2010), the Court made clear that the applicable law was the International Law of Human Rights, concerned with the rights of human beings and not at all of States.

Citing the U.N. Basic Principles and Guidelines on the Right to a Remedy and Reparations, Judge Cançado concludes:

101. This understanding is well in accordance with the basic postulates of the International Law of Human Rights (the applicable law in the present case), and bears witness of the international legal personality of the individual as subject of contemporary international law. This is clearly so, even if, out of a surpassed dogmatism, individuals remain deprived of their international legal capacity, of their locus standi in judicio, that would otherwise have enabled them - as it should happen, in the light of all the aforementioned, - to appear directly in legal proceedings before this Court.

All of this comes as we await a decision of the Trial Chamber of the International Criminal Court on the reparations to be awarded to the victims of Charles Lubanga, who was convicted of recruiting child soldiers earlier this year.