Opinio Juris http://www.opiniojuris.org/ en-us 2008-07-11T10:07+00:00 ICC Prosecutor To Charge Sudan's President with Genocide http://www.opiniojuris.org/posts/1215767251.shtml I mentioned last month that the ICC Prosecutor, Luis Moreno-Ocampo, was considering bringing genocide charges against Sudanese officials far more senior than Ahmed Haroun, the country's "humanitarian affairs" minister. Well,... Kevin Jon Heller 2008-07-11T09:07+00:00 last month that the ICC Prosecutor, Luis Moreno-Ocampo, was considering bringing genocide charges against Sudanese officials far more senior than Ahmed Haroun, the country's "humanitarian affairs" minister. Well, he's now decided to do exactly that — and his target is no other than Omar Hassan al-Bashir, the President of Sudan himself:
The chief prosecutor of the Internationals Criminal Court will seek an arrest warrant Monday for Sudanese President Omar Hassan al-Bashir, charging him with genocide and crimes against humanity in the orchestration of a campaign of violence that led to the deaths of hundreds of thousands of civilians in the nation's Darfur region during the past five years, according to U.N. officials and diplomats.

The action by the prosecutor, Luis Moreno-Ocampo of Argentina, will mark the first time that the tribunal in The Hague charges a sitting head of state with such crimes, and represents a major step by the court to implicate the highest levels of the Sudanese government for the atrocities in Darfur.

[snip]

"I will present my case and my evidence to the [ICC] judges, and they will take two to three months to decide," Moreno-Ocampo said in an interview Wednesday, referring to a pretrial panel made up of judges from Brazil, Ghana and Latvia. "We will request a warrant of arrest, and the judges have to evaluate the evidence." On Thursday, Moreno-Ocampo's office said in a statement that the prosecutor will "summarize the evidence, the crimes and name individual(s) charged" at a news conference Monday in The Hague.
Wow. To say this is a bold move — and one fraught with danger — is an understatement. I've long disagreed with Julian about whether the ICC's involvement in Darfur undermines the peace process (which is better referred to as the "peace process," because the Sudanese government has never been committed to it). But this time I think Julian's concerns have to be taken very seriously. The UN is certainly worried:
Some U.N. officials raised concerns Thursday that the decision would complicate the peace process in Darfur, possibly triggering a military response by Sudanese forces or proxies against the nearly 10,000 U.N. and African Union peacekeepers located there. At least seven peacekeepers were killed and 22 were injured Tuesday during an ambush by a well-organized and unidentified armed group.

[snip]

Representatives from the five permanent members of the U.N. Security Council — Britain, China, France, Russia and the United States — met with U.N. officials Thursday to discuss the safety of peacekeepers in Darfur. U.N. military planners have begun moving peacekeepers to safer locations and are distributing food and equipment in case the Sudanese government cuts off supplies.

"All bets are off; anything could happen," said one U.N. official, adding that circumstantial evidence shows that the government of Sudan orchestrated this week's ambush. "The mission is so fragile, it would not take much for the whole thing to come crashing down."
If there was a reasonable chance that indicting Bashir would convince China and Russia to discontinue their economic, political, and military support for Khartoum, these risks might be worth it. But that is obviously unlikely to happen — both countries have consistently opposed the ICC's efforts in Darfur and will no doubt oppose this new move, as well.

As a side note, I am very anxious to find out what evidence the Prosecutor has that ostensibly proves Bashir is guilty of genocide. As I pointed out in my previous post, the Security Council-sponsored International Commission of Inquiry on Darfur specifically — and controversially, to be sure — recommended that the ICC not pursue genocide charges against the Sudanese government:
The Commission concluded that the Government of the Sudan has not pursued a policy of genocide. Arguably, two elements of genocide might be deduced from the gross violations of human rights perpetrated by Government forces and the militias under their control. These two elements are, first, the actus reus consisting of killing, or causing serious bodily or mental harm, or deliberately inflicting conditions of life likely to bring about physical destruction; and, second, on the basis of a subjective standard, the existence of a protected group being targeted by the authors of criminal conduct. However, the crucial element of genocidal intent appears to be missing, at least as far as the central Government authorities are concerned. Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. Rather, it would seem that those who planned and organized attacks on villages pursued the intent to drive the victims from their homes, primarily for purposes of counter-insurgency warfare.
Though I'm sympathetic to those who want to call the atrocities in Darfur "genocide," I've always found the Commission's legal analysis of the situation quite persuasive. So I hope that the Prosecutor's subsequent investigations have uncovered new evidence that the Sudanese government was not simply — if murderously — trying to maintain its power in the face of a concerted rebel threat. If they haven't, it will look like Moreno-Ocampo is simply giving into political pressure.

Once again — wow. I don't know what else to say. First the Court stays the Lubanga trial. Now the Prosecutor seeks to indict and arrest the President of the Sudan. This is turning out to be quite a week for the ICC...

More on the story as it develops.]]> Problems in Lubanga Resolved? http://www.opiniojuris.org/posts/1215242585.shtml According to the ICC President and Prosecutor, Lubanga's trial can now continue, because the UN has agreed to turn over the disputed evidence to the Trial Chamber and the defense:... Kevin Jon Heller 2008-07-05T07:07+00:00 has agreed to turn over the disputed evidence to the Trial Chamber and the defense:
"The obstacles have been lifted," chief prosecutor Luis Moreno-Ocampo told journalists on the sidelines of a ceremony in The Hague to mark the 10th anniversary of the Rome Treaty that led to the court's creation.

Lubanga's trial would be the ICC's first.

Court president Philippe Kirsch said the main point of contention, over the prosecution's alleged abuse of a confidentiality allowances, should be resolved "shortly".

On June 13, judges imposed an indefinite stay on proceedings, due to have started last Monday, after finding that prosecutors had wrongly withheld evidence, notably from the United Nations, from Lubanga's lawyers.

This "misuse" inhibited Lubanga's ability to prepare a proper defence, they said.

Lubanga subsequently applied for release, and on Wednesday the ICC ordered him to be freed from detention. But the prosecution lodged an immediate appeal that suspended Lubanga's release.

"The UN has sent a letter authorising the other parties to have access to the documents," Moreno-Ocampo said Thursday, reiterating that he was confident the trial would kick off by autumn.
If true, this is good news indeed. It would have been very unfortunate if the ICC's first trial had been derailed by the Prosecutor's overbroad use of confidentiality agreements. But at the same time, a Gitmo-style show trial involving secret evidence would have done lasting damage to the Court's legitimacy. The Trial Chamber's decision to stay the trial was thus the right move, because it forced the UN, which is obviously deeply invested in the success of the ICC, to do the right thing and release the evidence.

The judges of the Trial Chamber deserve praise for their willingness to defend the integrity of the system at all costs. I can only imagine the political pressure that was being exerted on them behind the scenes to permit Lubanga's trial to continue. Their bravery led to the only satisfactory resolution of the problem — and helps establishes the critical judicial independence of the Court.]]> Permissible Ruse or Perfidy -- the Colombian Hostage Rescue http://www.opiniojuris.org/posts/1215111892.shtml The media is awash in stories about the stunningly successful rescue operation mounted by the Colombian military that freed 15 long-held hostages from FARC forces. A key part of the... Duncan Hollis 2008-07-03T19:07+00:00 stories about the stunningly successful rescue operation mounted by the Colombian military that freed 15 long-held hostages from FARC forces. A key part of the operation apparently involved convincing FARC rebels to move the hostages to meet with an "international mission" as the set-up for getting the hostages aboard a Colombian military helicopter and flown to safety. Here's how CNN describes it:


The agents told their FARC comrades that an "international mission" -- such as the Red Cross or a U.N. delegation -- was coming to visit the hostages . . . At the appointed hour, an unmarked white helicopter set down in the jungle along the trekkers' path. Colombian security forces posing as FARC rebels jumped out, some wearing shirts emblazoned with the likeness of revolutionary icon Che Guevara. The helicopter crew told the 60 or so real rebels that the chopper was going to ferry the hostages to the meeting with the "international mission" . . .

All 15 hostages were handcuffed and placed aboard the helicopter, along with two of their guards, leaving the rest of the FARC detachment on the ground. Once the chopper was up and safely away from the landing zone, the fake rebels persuaded the real ones aboard to hand them their weapons. Moments later, both rebels were on the floor of the aircraft, cuffed and blindfolded by their erstwhile comrades . . . A crew member turned and spoke to the hostages. "We are the national military," he said . . . "You are free."



From a legal standpoint, I wonder whether (and how) Colombia's operation complied with its obligations under international law. In an international armed conflict, Colombian forces would be prohibited from committing perfidy—the killing, injuring, or capturing of adversaries by inviting them to believe that they are entitled to, or obliged to accord, protection under the rules of international law applicable in armed conflict, with an intent to betray that confidence. According to Article 37 of Additional Protocol I to the Geneva Conventions (AP I), perfidious acts include feigning civilian/noncombatant status or feigning “protected status” by using signs, emblems or uniforms affiliated with groups such as the Red Cross or the UN. Article 39 also prohibits states from using an adversary's own "emblems, insignia or uniforms . . . while engaging in attacks or in order to shield, favour, protect or impede military operations." In contrast, Article 37 does not prohibit states from using "ruses" — acts that do not feign protected status, but which seek to mislead adversaries and cause them to act recklessly, such as by using misinformation or decoys.

A threshold question, of course, is to what extent the perfidy/ruse distinction applies to the Colombian-FARC conflict. I assume (subject to correction by those more expert in IHL) that AP I itself does not apply. Although Colombia is a party, the FARC conflict appears to fall outside the treaty's scope. AP I applies to international armed conflicts covered by common article 2 of the Geneva Conventions and those armed conflicts "in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations." None of those scenarios seem applicable to the FARC's fight with the Colombian government (nor do I believe U.S. financial or logistical support to the Colombian government somehow converts this conflict into an international one). In contrast, Additional Protocol II to the Geneva Conventions may apply as it governs classic civil wars (although the tendency of the United States and Colombia to label the FARC as terrorists suggests there's resistance to the civil war label itself). That treaty, however, contains no prohibitions on perfidy.

That leaves the perfidy question to rest on customary international humanitarian law. The International Committee of the Red Cross's lengthy study of customary IHL found perfidy to apply to both international and non-international armed conflicts, suggesting Colombia could not commit perfidy even against the FARC. I'd note, however, that if Colombia follows the U.S. approach, they could challenge whether the ICRC's findings actually reflect the customary rules.

But assuming Colombia was prohibited from perfidy (but allowed ruses) in its rescue mission, did its operation comply with those rules? On the surface, it seems that they did. Perfidy only prohibits the killing, injuring, or capturing of adversary forces, so the use of deception in actually freeing the hostages does not seem to fall within the prohibition. In contrast, where the operation involved the capture of two FARC members, that would implicate the perfidy ban. To figure out if their capture came about because of a ruse or perfidy, however, requires us to know more about the conduct of the operation itself. The media has been careful to emphasize the Colombian military helicopter that made the rescue was "unmarked," suggesting Colombia did not use any protected emblems like those of the UN or the ICRC that are explicitly prohibited. Similarly, the media has not reported Colombian forces using any distinctive FARC emblems or uniforms—they emphasize Colombian agents donning "Che Guevara" shirts, but I'd doubt those qualify as a FARC "emblem, insignia or uniform." (I'm assuming here that the AP I Art. 39 prohibition on posing as the enemy extends to internal armed conflicts such as this, but I'll concede that assumption might not hold up under closer analysis). Similarly, there's no evidence that Colombian forces feigned civilian or non-combatant status at any point, but that might be a function of the relative lack of detail over what happened at this point.

The Colombian military did, however, apparently take advantage of the "international mission" moniker to lure the FARC forces into unwittingly transferring the hostages to the Colombian military. If I were the UN or the ICRC, I'd want to know how specific Colombia was with its story. After all, the point behind the perfidy prohibition is to protect the neutrality of certain actors (and actions) to minimize human suffering in armed conflicts. If folks like the FARC will no longer trust or use the Red Cross as an intermediary for releasing hostages (as they apparently have in the past), what does the future hold for the hundreds of lower-profile hostages still in FARC hands? On the other hand, if it turns out that Colombia conducted its operation with an eye towards IHL and can explain how it avoided perfidy in its actions, that fact might provide welcome evidence that customary rules do operate in internal conflicts and, more generally, support the notion that IHL impacts state behavior. Either way, though, I’m left looking for more information. I'd welcome reader in-put with further facts or analysis.]]> Lubanga Released -- In Theory http://www.opiniojuris.org/posts/1215026433.shtml As I anticipated a few days ago following the UN's refusal to provide the judges with meaningful access to the disputed evidence, Trial Chamber I has ordered Thomas Lubanga... Kevin Jon Heller 2008-07-02T19:07+00:00 a few days ago following the UN's refusal to provide the judges with meaningful access to the disputed evidence, Trial Chamber I has ordered Thomas Lubanga Dyilo's unconditional and immediate release:
30. As just set out, the Chamber's Decision stayed the proceedings sine die because of the present impossibility of trying the accused fairly. It follows that the detention of the accused cannot be justified in order to ensure his appearance at trial or to safeguard the investigation, because the trial (which was the result of the investigation) has been stayed. Furthermore, in the absence of the prospect of a trial, the accused cannot be held in custody or subjected to provisional release as purely preventative measures to deter him from committing further crimes.
The Trial Chamber's decision, however, does not mean that Lubanga will walk out of the Hague anytime soon. First, despite releasing him "unconditionally" and "immediately," the Court stayed his actual release pending appeal of its order by the Prosecutor:
35. Trial Chamber I orders the release of the accused, but since by Rule 154 of the Rules an appeal may be filed no later than 5 days from the date upon which the party filing the appeal is notified of the decision, this order shall not be enforced until the expiry of the 5 day time limit, and, furthermore, if an appeal is filed within the 5 day time-limit against the order granting release and if a request is made in the appeal for suspensive effect, the accused shall not leave detention until the Appeals Chamber has resolved whether or not the effect of the order granting release is to be suspended.
The Prosecutor will no doubt ask the Appeals Chamber to suspend the release order, which means that Lubanga will remain in detention until the Chamber resolves the appeal, however long that takes.

Second — and I doubt this aspect of the order will receive much media attention — the Trial Chamber indicated that Lubanga will be released only if a State is willing to take him:
36. It is to be noted, finally, that by Rule 185 of the Rules, an order releasing the accused shall only be put into effect after arrangements have been made for his transfer to a State that is obliged to receive him. It follows that these arrangements should not be implemented until the 5 day time-limit, set out above, has expired.
That requirement could be a serious problem for Lubanga. I predicted in my forthcoming article "What Happens to the Acquitted?" that ICC acquittees will find it no less difficult to find new homes than ICTR acquittees like Ntagerura and Rwamakuba, and I am confident — sadly — that Lubanga's "release" will prove me right. There is no way the DRC will take him; he is, after all, a rebel. And it is very unlikely that any other State will be enthusiastic about having an accused war criminal walking free on its territory. So I fear that Lubanga may end up sharing the same fate as Ntagerura and Rwamakuba: being "free" to enjoy living as a virtual prisoner in a UN safehouse. ]]> Does Cambodia's Amnesty Have To Be Honored? http://www.opiniojuris.org/posts/1214793389.shtml This report suggests that this question will soon be considered by the awkwardly named Extraordinary Chambers in the Courts of Cambodia. The question arises in one of the ECCC's... Julian Ku 2008-06-30T04:06+00:00 report suggests that this question will soon be considered by the awkwardly named Extraordinary Chambers in the Courts of Cambodia. The question arises in one of the ECCC's first cases where the defendant was allegedly given a royal pardon from an earlier domestic conviction for genocide.

On the face of it, this doesn't seem a hard question since the ECCC is authorized to punish individuals for violations of the Convention Against Genocide, which was probably not the source of law for the earliest conviction. Still, the ECCC is operating under Cambodian, not international, law and this question might be governed by a Cambodian law rule concerning the scope and effect of a royal pardon. A tricky question worth keeping an eye on. ]]> No Progress in the Lubanga Trial http://www.opiniojuris.org/posts/1214796583.shtml I recently blogged about Trial Chamber I's stunning decision to stay Thomas Lubanga Dyilo's trial because of the Prosecutor's failure to disclose exculpatory evidence to the defense. The Court held... Kevin Jon Heller 2008-06-30T03:06+00:00 recently blogged about Trial Chamber I's stunning decision to stay Thomas Lubanga Dyilo's trial because of the Prosecutor's failure to disclose exculpatory evidence to the defense. The Court held a hearing on the 24th to determine whether, in light of its decision, Lubanga should be released. It has yet to reach a conclusion — but if the "compromise" the UN offered at the hearing is any indication, he might not be in custody too much longer:
In a correspondence from Nicolas Michel, the UN Under-Secretary-General for Legal Affairs, the United Nations proposed that the judges go to the Peace Palace in The Hague, therefore on "UN territory", to consult the documents.

They would not be allowed to take notes, or to record information during their consultation. Thereafter, they could indicate certain pieces of evidence for which the prosecutor would be invited to make a summary. The judges could then compare the summary with the original evidence and decide to reveal these summaries to the defence.

During the hearing of 24 June, Catherine Mabille, the lawyer for Lubanga, has from the start specified that "the defence will not accept summaries, which cannot be evidence".

"If you accept", she declared, that means that the prosecutor signs agreements with the United Nations, and that the UN will dictate to the judges, to justice, what it can hear, what can be said or not."
The judges seem to agree with Mabille: Justice Adrian Fulford told the Prosecutor that the court was "unlikely to approve a system that depends on its ability to memorize large quantities of information which it is unable to retain and study, and compare it with other evidence in the case so as to assess its relevance." His position is sound: the last thing the Court needs is a trial that resembles a Guantanamo military commission. This trial will create the blueprint for future trials; it is thus imperative for the Court to do everything in its power to protect the defendant's rights — even if that ultimately means letting Lubanga walk.]]> Is the ICC Overreaching in Darfur? http://www.opiniojuris.org/posts/1214623970.shtml Well, two experts on the Darfur conflict in Sudan think so. More evidence for my argument with Kevin (and Angelina Jolie) about the downside of the ICC actions in... Julian Ku 2008-06-28T03:06+00:00 think so. More evidence for my argument with Kevin (and Angelina Jolie) about the downside of the ICC actions in Sudan.

Is the International Criminal Court losing its way in Darfur? We fear it is. Chief prosecutor Luis Moreno-Ocampo's approach is fraught with risk -- for the victims of the atrocities in Darfur, for the prospects for peace in Sudan and for the prosecution itself.

We are worried by two aspects of Ocampo's approach, as presented to the U.N. Security Council early this month. One concerns fact: Sudan's government has committed heinous crimes, but Ocampo's comparison of it with Nazi Germany is an exaggeration. The other concerns political consequences: Indicting a senior government figure would be an immense symbolic victory for Darfurians. But Darfur residents need peace, security and deliverable justice more than they need a moment of jubilation. And with President Omar Hassan al-Bashir and his men still in power, a high-level indictment would probably damage all these objectives.



]]> Should the U.S. Enact Laws Punishing Crimes Against Humanity? Sure, But It Still Won't Save Darfur http://www.opiniojuris.org/posts/1214361066.shtml It seems like a no brainer that the U.S. should enact into domestic law punishments for "crimes against humanity." The recently created subcommittee on Human Rights and the Law... Julian Ku 2008-06-25T04:06+00:00 a no brainer that the U.S. should enact into domestic law punishments for "crimes against humanity." The recently created subcommittee on Human Rights and the Law of the U.S. Senate Judiciary Committee held a hearing yesterday to hear one-sided testimony on this question.

And really, is there any objection to enacting a statute making a crime under U.S. law to commit a crime against humanity? It goes without saying that such a criminal statute, to be truly useful, would require the U.S. to assert some pretty expansive theories of jurisdiction, maybe even universal jurisdiction. (The recent amendments to the statute punishing genocide have arguably done that). But this is probably not a real objection. If any crime supports the assertion of universal jurisdiction, I would think "crimes against humanity" would suffice.

As some of the testimony at the hearing suggested, the practical need for such a law is driven by the difficulty in proving the crime of genocide, especially the specific intent component of genocide (See Prof. Diane Orentlicher's testimony here for this argument).

Interestingly, none of the testimony (as far as I know) pointed out that while there is no criminal punishment in U.S. law for crimes against humanity, there is a civil sanction: a civil lawsuit under the Alien Tort Statute. As a longstanding critic of the ATS, I would prefer the criminal punishment, of course, but given the higher standards of proof required for a criminal prosecution, I don't really buy the claim that folks committing crimes against humanity can wander the U.S. in impunity. In other words, I highly doubt there will be any additional deterrence effect created by adding a criminal sanction to the civil sanction. To some degree, therefore, this whole hearing was grandstanding by the Senators so they could tell themselves that they are doing something about Darfur (when in fact they are pretty much doing nothing to help prevent further deaths in Sudan).

Still, I have to applaud the Senate's interest and the signs of congressional leadership on the incorporation of international law norms into U.S. law. Congress, I have argued elsewhere, is the proper institution for incorporating such norms (and not the courts) so it is nice to see Congress stepping up to its responsibilities here to develop international law, even if they aren't doing much at this point to protect international human rights in Sudan. ]]>