A Rose by Any Other Name: International Crimes or Crimes Against Humanity?

No matter what anyone may say, the names we give to concepts matter a great deal. They have an impact on the way we think about them. For example, in domestic American politics there is an ongoing debate over the value of the recent medical insurance overhaul. Those in favor of the modifications call it the “Affordable Care Act”, while those who are against the changes call it “Obama-care”. Both names apply to the exact same identical thing, but one brings forth a personal platform while the other implies a certain usefulness or characteristic. The name international law likewise has traditionally affected the way scholars and judges thought about the discipline. The name itself, “inter-national”, implies that its rules apply to and among nations, or in modern terms, States.[1]

A terminology that started as a description of this branch of law has become its definition. This contributed to the assertion that “inter-national” law does not apply to or recognize, inter alia, individuals as subjects of the law.[2] While the exclusion of the individual as a subject of international law is still asserted by some, it is now commonly accepted that the individual is a subject of international law as the beneficiary of rights and assignments of duties in human rights law and international criminal law.[3] This has lead some to suggest that international law has evolved into something more akin to a global law.[4] My scope is much more modest in that I will focus on only one branch of international law. I would like to suggest that the time has come to reevaluate the name given to what we currently call “international criminal law”. The basis for this reevaluation is two fold: (1) the name no longer reflects (if it ever truly did) the nature of the subject matter and (2) many national legal orders do not identify international crimes as “international”, but rather have more nuanced names for the discipline. I will conclude by suggesting more accurate names to describe this discipline.

The first reason to discard the moniker of international criminal law relates to what the term itself means. As mentioned, the word “inter-national” implies that the behavior or relationships to be regulated by this body of law occur between States. Criminal law, of course, references a body of law creating and punishing crimes. It is axiomatic that State crimes do not currently exist in modern international law. The International Law Commission’s Articles on State Responsibility do not include such a category of international violations even though such terminology was used in earlier drafts.[5] At the same time, international criminal tribunals do not have jurisdiction over States for the crimes within their jurisdiction even when those acts are attributable to a State.[6] The crimes themselves also do not envisage a State as the victim, but rather individuals or collectives of individuals.[7] Nothing about the perpetrator or the victim then is directly “inter-national”.

The origin of international crimes, however, helps explain the terminology currently used in diplomatic and academic discourse. The first modern international criminal prosecutions took place at the end of the Second World War and were based primarily on violations of treaties.[8] Treaties, by definition, are “inter-national” agreements.[9] The crimes were therefore acts in violation of “inter-national” law. Additionally, the crimes were perpetrated in the context of a conflict between States and by individuals associated with one of the parties to that conflict and in furtherance thereof.[10] Neither of these conditions still holds in regards to modern international criminal law.

It is generally accepted that the laws of armed conflict criminalizing, inter alia, the mistreatment of protected persons, apply equally during “inter-national” armed conflicts, intra-national armed conflicts and conflicts between two non-State groups within and between several States.[11] Under the last scenario, a conflict between two or more non-State groups, the consent of treaty law of a particular State is less relevant. Neither group necessarily has agreed to be bound by the laws of war. Consent however is not required because customary law criminalizes the behavior anyway. What we have under these conditions is a body of law that directly governs the acts of individuals working on behalf of non-State entities regardless of the consent or any specific State.

Outside of the arena of war crimes, it is also generally accepted that there is no need for State involvement for the commission of “crimes against humanity”, an autonomous branch of international criminal law.[12] Groups that are unaffiliated with a particular State can set the widespread or systematic attack against a civilian population in motion that is necessary for their commission. Private individuals without the involvement of a State, likewise, can commit genocide.[13] These crimes therefore do not carry any link with States, let alone a connection to acts between States, to require the moniker of “inter-national”.

As this brief description shows, the term “inter-national” does not reflect the nature of the crimes under consideration. They do not necessarily relate to actions between States, but rather to certain acts that for one reason or another have been criminalized by the international community at the supranational level.

The second reason that reevaluating the name of “international criminal law” is that the crimes normally associated with this name are often referred to under different names in national legal systems. I will list just a few here for the purpose of illustration. Cape Verde criminalized “inter-national” crimes in a section of its penal code called “Crimes Against the International Community”; Estonia refers to these crimes as “Offenses Against Humanity and International Security”; France refers to them as “Crimes Against Humanity and Against Persons”; Georgia calls them “Crimes Against Humanity”; Guatemala calls them “Crimes of International Transcendence”; and some former Soviet States refer to the crimes as “Crimes Against Peace and Safety of Mankind”. There is little if any continuity between these terms and even less with the idea of “inter-national” crimes.

The lack of any meaningful connection to the term “inter-national” and the diversified practice of naming the same discipline within national legal systems both suggest that the name “international criminal law” is on its way to being an anachronism if it is not already. There still remains the question of what the discipline should be called. One option would be to use the classic Latin phrase crimes hostis humani generis. Another option would be to invent a new term such as “crimes against global order” or “crimes of universal concern”. The better choice would be to adapt the term “Crimes Against Humanity” to describe the entire field of law instead of a single subset of crimes. This has already been done implicitly by some of the national systems listed above. The sub-branch of the field now referred to as crimes against humanity can be referred to as “human rights crimes” thereby further casting light on its relationship both to human rights law and its separation from war crimes and humanitarian law.[14] This kind of renaming scheme would better reflect the content of the law and its modern context.

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[1] The word “international” is an adjective defined as meaning “existing, occurring, or carried on between two or more nations.” Nation in turn is defined as “a large aggregate of people united by common descent, history, culture, or language, inhabiting a particular country or territory.” However, this second word in this context is best understood as the State, the modern version of which (at least in the European sense) is the Nation-state. A classic definition of international law is offered in Nuovo Diritto Internazionale Pubblico by Pasquale Fiore in 1888, at p. 20 as that which “regulates and directs the relations of and between nations”.

[2] L. Oppenheim, International Law (2nd Ed), p. 107 (1911).

[3] See, Malcolm Shaw, International Law (6th ed), p. 45 (2008).

[4] Giuliana Ziccardi Capaldo, Diritto Globale (2010).

[5] Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001), A/56/10, pp. 81-83 (“From the first it was recognized that these developments had implications for the

[6] See, inter alia, Articles 1, 25, Rome Statute of the International Criminal Court.

[7] See, Articles 6-8, Rome Statute of the International Criminal Court. There is the possible exception of the Crime of Aggression, however, no court currently can exercise jurisdiction over that crime.

[8] See, Article 6, IMT Charter; IMT Judgment (“To assert that it is unjust to punish those who in defiance of treaties […] attacked neighbouring (sic) States […] is obviously untrue […]. Occupying the positions they did in the Government of Germany, the defendants, or at least some of them, must have known of the treaties signed by Germany, outlawing recourse to war for the settlement of international disputes; they must have known that they were acting in defiance of all International Law when in complete deliberation they carried out their designs of invasion and aggression.”)

[9] Article 2, Vienna Convention on the Law of Treaties, 115 U.N.T.S. 331.

[10] Article 6, IMT Charter.

[11] See, Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994), S/1995/134, ¶¶ 11-12 (13 February 1995).

[12] Prosecutor v. Ruto, Kosgey & Sang, ICC-01/09-01/11, ¶ 184 (23 January 2012).

[13] Prosecutor v. Jelisić, IT-95-10-T, ¶ 100 (14 December 1999).

[14] I have made this argument at greater length in an article in the New England Journal of International and Comparative Law, vol. 18.1 (2012).

Review of International Tribunal Decisions for the week of May 21, 2012

This week the International Criminal Tribunal for the Former Yugoslavia (ICTY), Special Tribunal for Lebanon (STL) and the International Criminal Court (ICC) make a showing with important decisions on jurisdiction, delay in the start of trial and victim participation.

International Criminal Law

ICTY

Prosecutor v. Mladić[1]

Decision on Urgent Defence Motion of 14 May 2012 and Reasons for Decision on Two Defence Requests for Adjournment of the Start of Trial of 3 May 2012

Background

The defense filed three requests for a postponement of the trial for alleged disclosure violations.[2] The Chamber denied the first two and granted the third.

Reasoning

The Chamber denied the first request because it could not be certain which documents (if any) were not disclosed.[3] The Chamber decided that the allegedly non-disclosed material relating to the second request were in the possession of the defense.[4] The Chamber considered the reasons advanced in the third request by the defense and dismissed them as insufficient to require a postponement of the trial.[5] However, the Prosecution put forward the view that the delay in disclosure related to the third request could affect the ability of the defense to prepare its case.[6] The Chamber granted a postponement of the trial until 25 June 2012.[7]

STL

Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[8]

Decision on the Legal Representatives of Participating Victims’ Motion Regarding Defence Challenges to Jurisdiction

Background

The Legal Representative appointed to some victims granted the right to participate requested an extension of time to file his response to the Defense challenge to the jurisdiction of the tribunal based in part on his lack of direct communication with his clients and his not having access to certain case material.[9] The Chamber denied the motion.

Reasoning

The Chamber noted that motion challenging jurisdiction of the court is based on “readily available public material and principally concern questions of public international law” so that the Representative’s access to case material is not relevant to responding to the motions and that he will have enough time to file a response that “need not be lengthy”.[10]

ICC

Prosecutor v. Bemba[11]

Decision on 1400 Application by Victims to Participate in the Proceedings

Background

From November 2011 through January 2012 the Registry forwarded a total of 1400 applications of victims to participate in the proceedings in the Bemba case to which the parties responded.[12] The Chamber granted 1377 requests to participate, rejected 16 and deferred its decision as to one of the applications.

Reasoning

The Chamber set out that there was no reason to address the legal requirements for participation as the Chamber had done so in prior decisions and dismissed the defence requests for more information as having already been addressed in prior decisions.[13] The Chamber issued its decision with several annexes that are ex parte and for the Registry and designated counsel only containing the reasoning on each individual application.[14]

Prosecutor v. Ruto, Kosgey & Sang[15]

Decision on the appeals of Mr William Samoei Ruto and Mr Joshua Arap Sang against the decision of Pre-Trial Chamber II of 23 January 2012 entitled “Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute”

Background

The Accused filed a challenge to the interpretation of “organizational policy” used by the Pre-Trial Chamber in confirming the charges against them pursuant to article 7(2)(a) of the Rome Statute allowing appeals to issues of jurisdiction.[16] The Appeals Chamber denied the motion.

Reasoning

The Appeals Chamber held,

in the context of this case, treating the interpretation and existence of ‘organizational policy’ as jurisdictional matters conflates the separate concepts of jurisdiction and the confirmation process; yet it is the latter that is designed to consider the matters raised on these appeals and filter unmeritorious cases from progressing to trial. To find that the grounds that Mr Ruto and Mr Sang raise in these appeals relate to jurisdiction would duplicate what was covered by the confirmation process. If the Appeals Chamber were to address the merits of Mr Ruto and Mr Sang’s grounds of appeal any further, it would, in fact, be assessing the correctness of the decision to confirm the charges against them, insofar as it related to the existence of an ‘organizational policy’. Yet neither Mr Ruto nor Mr Sang sought leave from the Pre-Trial Chamber to appeal the interpretation of ‘organizational policy’, nor was leave granted in relation to certain evidential challenges that they sought to raise, pursuant to article 82 (1) (d) of the Statute.[17]

A challenge against the jurisdiction of the ICC was therefore not before the Appeals Chamber.[18]

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[1] IT-09-92-T, 24 May 2012.

[2] Ibid. at ¶¶ 1-8.

[3] Ibid. at ¶¶ 16, 18.

[4] Ibid. at ¶ 17.

[5] Ibid. at ¶¶ 20-23.

[6] Ibid. at ¶ 24.

[7] Ibid. at ¶ 26.

[8] STL-11/01/PT/TC, 25 May 2012.

[9] Ibid. at ¶¶ 1-2.

[10] Ibid. at ¶ 3.

[11] ICC-01/05-01/08, 21 May 2012.

[12] Ibid. at ¶¶ 1-8.

[13] Ibid. at ¶¶ 17-18.

[14] Ibid. at ¶ 19.

[15] ICC-01/09-01/11 OA3 OA4, 24 May 2012.

[16] Ibid. at ¶¶ 1, 3-5.

[17] Ibid. at ¶ 29.

[18] Ibid. at ¶¶ 33-34. An almost identical decision was also issued in the other Kenya case on the same day.

Review of International Tribunal Decisions for the week of May 14, 2012

This week’s review has decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), Special Tribunal for Lebanon (STL), Extraordinary Chambers in the Courts of Cambodia (ECCC), International Criminal Court (ICC) and the European Court of Human Rights (ECtHR). The decisions deal with issues ranging from disqualification of judges to victims participation.

International Criminal Law

ICTY

Prosecutor v. Mladić[1]

Order Denying Defence Motion Pursuant to Rule 15(B) Seeking Disqualification of Presiding Judge Alphonse Orie and for a Stay of Proceedings

The Accused filed an oversized motion seeking to remove the Presiding Judge of his trial alleging that he is biased.[2] The President of the Tribunal denied the motion after reading the Presiding Judge’s response to the allegations on the grounds that the Accused had failed to meet his high burden of demonstrating bias on the part of the judge.[3] The President of the Tribunal attached a copy of the Presiding Judge’s responses to the allegations to the order.

ICTR

Proseuctor v. Ngirabatware[4]

Decision on Defence Motion for Admission of Written Statements

Background

The Accused filed a motion for the admission of written statements into evidence arguing that the statements were certified and that they did not go directly to the acts of the accused.[5] The Chamber denied the motion.

Reasoning

The Chamber noted that in order to be admissible, they must be associated with a witness who testified before the Tribunal, something that these statements were not.[6] The statements must also not go to the acts or behavior of the Accused.[7] The statements must also have probative value.[8] The Chamber found that the individual statements failed to meet one or both of these criteria.[9]

STL

Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[10]

Decision on the VPU’s Access to Materials and the Modalities of Victims’ Participation in Proceedings Before the Pre-Trial Judge

Background

The Pre-Trial Judge issued a decision on how individuals granted the status of “victims participating in the proceedings” could do so and on the Registrar’s submission on confidential documents related to the victims.[11]

Reasoning

The Pre-Trial Judge noted that there is nothing in the Rules that entitles the victims to receive “disclosure” material, but only confidential and public filings of the parties.[12] However, Rule 87(A) gives the victims access to the case file which includes such disclosure evidence and materials relied on by the Prosecution in requesting the arrest warrant and indictment.[13] The question was left as to when this should occur, and the Pre-Trial Judge decided that it should happen as soon as practicable after the appointment of victims’’ counsel so that counsel could adequately prepare for the trial.[14] When it comes to materials not included in the case file, the Pre-Trial Judge held that the victims must have access to the information in the same format as it was disclosed to the receiving party, that is, that the victims are entitled to access to disclosure material even absent a Rule to such effect.[15] When it comes to the Victims Participation Unit receiving such material, the Pre-Trial Judge held that the VPU occupies a similar position to that of the Defense Office and so the regime for the later would apply mutatis mutandis to the former.[16] As such, the VPU was not given automatic access to the materials but only a list of materials to be able to make sure the material was received by the victims.[17]

ECCC

Case 002[18]

Decision on Rule 35 Applications for Summary Action

Background

The Accused filed two applications pursuant to Rule 35 of the internal rules to ask Prime Minister Samdech HUN Sen to refrain from making statements that the accused are guilty of the crimes with which they are charged before the conclusion of the trial.[19] The Accused claims that the statements by the Prime Minister violate his right to be presumed innocent.[20] The Trial Chamber dismissed his first motion as inadmissible and denied the second on the merits.

Reasoning

The Chamber held that the first request was simply an elaboration on prior similar objections that the Chamber had already ruled on and therefore declared it to be inadmissible.[21] However, the Chamber decided to clarify its prior rulings on the inadmissible motion. The Chamber noted that prejudicial statements by government officials about the Accused’s guilt would not influence the work of the Court “will not take into account any public comments on the guilt or innocence of the Accused in reaching its verdict.”[22] Because this fact means that there is no “reason to believe” that there will be interference with the administration of justice, there is no need to continue with Rule 35 proceedings/investigations.[23] The Chamber dismissed the second motion finding that the statements were about the defense team, and not the guilty of the Accused.[24]

ICC

Prosecutor v. Katanga & Chui[25]

Decision on the Defence Application for Leave to Appeal the ‘Décision relative à la requête de la Défense de Germain Katanga tendant à l’admission d’extraits du jugement prononcé dans l’affaire Lubanga”

Background

The Accused filed a motion for certification to appeal whether or not the Trial Chamber erred in not allowing the reopening of the evidentiary phase of the trial to admit passages from the Trial Judgment in the Lubanga case.[26] The Chamber denied the motion.

Reasoning

The Chamber considered the request for certification in light of three criteria: (1) whether the motion raised an “appealable issue”; (2) whether the issue would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial and; (3) whether the Chamber thought an immediate resolution by the Appeals Chamber would materially advance the proceedings.[27] The Chamber noted that the Accused did not impugn the legal test used by the Chamber in denying its request to reopen the evidentiary phase of the proceedings but only the determination itself.[28] The Chamber therefore found that there was no appealable issue.[29]

International Human Rights Law

ECtHR

Fernández Martínez v. Spain[30]

Chamber Judgment

Background

The applicant was a former religion teacher in the State public schools who while a priest had been a part of the “Movement for Optional Celibacy” and applied for a dispensation form celibacy, which was granted in 1997 on the terms that no one with such a dispensation should teach religion unless the local bishop approves. That same year, the bishop decided not to renew the applicant’s contract. The local employment tribunal found that this termination was a violation of his right not to be discriminated against and ordered his reinstatement. However, on appeal this decision was reversed. The ECtHR found no violation of the Convention.

Reasoning

The Court considered that the grounds on which Mr Fernández Martínez had not had his contract renewed were of a strictly religious nature. The requirements of the principles of religious freedom and neutrality precluded it from carrying out any further examination of the necessity and proportionality of the decision not to renew his teaching contract. The Court considered that in not renewing Mr Fernández Martínez’s contract, the ecclesiastical authorities had been discharging obligations associated with their religious autonomy. Lastly, since candidates were free to apply for posts as teachers of religious education, it would be unreasonable not to take their religious beliefs into account in the selection process, in order to preserve the right to religious freedom in its collective dimension.

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[1] IT-09-92-PT, 15 May 2012.

[2] Ibid. at p. 2.

[3] Ibid. at p. 3.

[4] ICTR-99-54-T, 14 May 2012.

[5] Ibid. at p. 1, ¶ 4.

[6] Ibid. at ¶ 13.

[7] Ibid. at ¶ 15.

[8] Ibid. at ¶ 18.

[9] Ibid. at ¶¶ 24-25, 27, 30-31.

[10] STL-11-01/PT/PTJ, 18 May 2012.

[11] Ibid. at ¶¶ 1-2.

[12] Ibid. at ¶ 70.

[13] Ibid. at ¶¶ 71-72.

[14] Ibid. at ¶¶ 76-78.

[15] Ibid. at ¶ 79.

[16] Ibid. at ¶¶ 89-92.

[17] Ibid. at ¶ 93.

[18] Case File No. 002/19-09-2007/ECCC/TC, 11 May 2012.

[19] Ibid. at ¶¶ 1-4, 23.

[20] Ibid. at ¶ 10.

[21] Ibid. at ¶ 23.

[22] Ibid. at ¶ 27.

[23] Ibid. at ¶¶ 28-32.

[24] Ibid. at ¶ 32.

[25] ICC-01/04-01/07, 14 May 2012.

[26] Ibid. at ¶ 11.

[27] Ibid. at ¶ 13.

[28] Ibid. at ¶¶ 15, 20.

[29] Ibid. at ¶ 21.

[30] Application No. 56030/07, 15 May 2012. All this information was taken from the press release.

Changes to the Regulations of the Registry of the ICC

The Registry of the International Criminal Court (ICC or Court) is proposing several amendments to the Regulations of the Registry, a set of rules that govern how the Registry functions and how individuals may interact with that organ of the Court.[1] Many issues arise from the additions proposed by the Registry. I will focus on two of the proposed Regulations. One has to do with the confidentiality of documents under a proposed amendment of Regulation 14. The second is a proposed supervision scheme under a new Regulation 119bis. I will set out some thoughts on these two proposals to show how their adoption may go counter to the best interests of the Court and the administration of international criminal justice.

Regulation 14 of the Regulations of the Registry currently sets out three levels of confidentiality for documents: public, confidential and under seal. The first is self-explanatory; the document is to be accessible to the public. A confidential document is one that is accessible to those participating in the proceedings but not to the public. A document under seal is excluded form the public and only available to some of those participating in the case. The new level, to be called “Secret”, is of questionable value as it appears to be redundant. Additionally, the name alone creates suspicion around its intended function.

The text of the Regulation as amended would be (proposed amendments are in red):

Chapter 2: Proceedings before the Court

[…]

Section 1: Provisions related to all stages of the proceedings

Subsection 1: General provisions

[…]

Regulation 14 Levels of confidentiality

Documents, material, orders and decisions may be classified as follows:

(a) Public: available to the public;

(b) Confidential: not to be disclosed to the public; or

(c) Under seal: confidential; accessible and known only to a limited number of persons. Each organ and/or participant shall compile and maintain a list of persons who have had access to each document, material, order or decision under seal.

(d) Secret: accessible and known to a very limited amount of persons. Each organ and/or participant shall compile and maintain a list of persons who have had access to each document, material, order or decision classified as secret. With this classification the distribution is limited, downloading, forwarding and printing prevented. Only one person in the Registry can print on request.

As is readily observable, there is only a slight difference in the text between “Under seal” and “Secret”. The “Secret” heading does not have the word “confidential” at the start and reference to “under seal” is replaced with “classified as secret”. The only substantive difference is that methods of reproduction of a “Secret” document are prohibited and only “one” person at the Registry can make copies.

My first concern with this “new” level of confidentiality is that it appears to be mostly redundant. In both “under seal” and “secret” access to the document is limited to those that have need of it. It would not mean very much at all if a document “under seal” were readily given to those that were not specifically authorized to have it. There must be a reason for the circulation of a document to be limited. Such a statement should be uncontroversial as the proceedings of the ICC are to be public to the greatest extent possible.[2] The distinction between the old category of “limited” and the new category of “very limited” is therefore illusory. In either case only those who have a legitimate reason to access the document will be given said access once it is placed under seal.

There is a second issue with the proposed modification. While it is entirely legitimate for an international criminal tribunal to maintain control over the circulation of confidential documents, the new procedure of prohibiting download, forwarding or printing appears to be quite excessive. There are legitimate reasons a person might want to forward, print or download a confidential document. Maybe there is a tight schedule and/or conditions requiring that the work be completed in another location. There are a myriad of other possible reasons. Limiting access in this way (which prevents, among other things, copy and paste for the purposes for drafting a motion), and the ability to print to one person from the Registry is extreme. It essentially gives one member of the Registry staff sole power to grant or deny access to a confidential document that the person requesting the document has a right to access. Such access may be impaired by the availability of the designated Registry staff person, thereby inhibiting the work of the Court. This is not to imply access would intentionally be withheld, only that the designated person being unreachable in a particular instance will prevent access. Registry officials are already aware of who has access to confidential material and the parties are already required to keep a log of who has seen the confidential document. The goal of limiting access and keeping track of that access is already achieved by the status of “under seal”. Furthermore, this regulation makes no exceptions on modes of granting access should the need arise. This means that any dispute will find its way either to the Presidency or to the Chamber hearing a particular case, depending on how the issue is framed. The better choice would be to leave the regulation substantively as it is and to keep precise records on who has access to confidential material.

The third issue is purely terminological. The proposal is for a level of confidentiality called “Secret”. Proceedings at the ICC are by definition not “secret”. The right to a fair open and transparent justice system is enshrined in numerous international human rights instruments. Secrecy is the absolute antithesis of an open and functioning judiciary and criminal justice system. As I explained above, I do not believe that the addition of another level of confidentiality is necessary. Calling it “Secret” gives the impression that the Registry (or the Court in general) is trying to hide information from the public. This impression alone is something that should be avoided.

For these reasons I would recommend that the Registry not adopt the proposed amendment to Regulation 14.

The proposed amendments to the Regulations of the Registry also contain a new Regulation 119bis directed at the monitoring and regulation of counsel that appear before the ICC. As with the proposed addition to Regulation 14, this new provision is redundant of already existing procedures at the Court. The very nature of the provision, and the regime it would create, also raises some important questions not clarified by the text of the proposed Regulation. As it currently stands, the proposal reads,

Chapter 4 Counsel Issues and legal assistance

Section 1: General provisions

[…]

Regulation 119 bis Monitoring of performance by counsel

1. The Registrar shall establish, after consultation in accordance with regulations 120 and 121, a mechanism to monitor the quality of performance by counsel. Such mechanism shall be respectful of the independence of counsel.

2. The Registrar, as appropriate, may make recommendations if it appears that the counsel does not show due regards to ethic in his dealings with the persons referred to in regulation 124.

The first part of the proposed regulation requires consultation with what are essentially bar associations to determine the content of the monitoring mechanism, which presumably includes standards of conduct. The second part refers to the relationship between counsel and assistants to counsel.

Behind this proposed regulation appears to be a desire to guarantee quality representation by counsel appointed to represent a participant before the ICC. As a starting point it must be noted that this regulation would apply only to defense counsel and victims’ counsel. Attorneys representing the Office of the Prosecutor are not subject to this Registry regulation. The result of this amendment would be the creation of a mechanism to monitor the performance of defense and victims’ counsel. At least as far as defense counsel is concerned this would be functionally redundant.

The Code of Professional Conduct for Counsel already creates a review board to adjudicate complaints of ineffective assistance of counsel and other related allegations of inadequate representation by counsel appointed at the ICC. This is a passive system that is triggered by a complaint. The one proposed by the Registry that would involve active monitoring. However, active monitoring is not necessary for defense counsel and therefore any mechanism to review defense counsel would be redundant. Accused before the ICC have numerous opportunities to complain about the quality of their legal counsel. When the accused are in court they can bring any complaint directly to the attention of the judges. At other times when they are at the detention unit (or free on release), they can request access to Registry officials and the ability to file a complaint pursuant to the Code of Professional Conduct. The only person who is in a position to complain or applaud the quality of defense counsel is the accused and he or she has every opportunity to do so without an active monitoring system by the Registry.

The proposed regulation provides that the standards to be adopted by the Registry should be drafted in consultation with legal associations such as bar associations.[3] This is exactly the kind of consultations (held by the Registry) conducted during the drafting of the Code of Professional Conduct for Counsel.[4] Any guidelines are therefore likely to be substantively the same as those in the Code. Additionally, the Disciplinary Board hears complaints for the violation of the Code, which can be made by the Registry.[5] The Board in turn is vested with the authority to, inter alia, “disbar” counsel from practice before the ICC.[6] The Registry in running its own parallel mechanism would be duplicating the work of the Board if it were to enforce any kind of sanction.

Furthermore, in order to completely monitor the quality of counsel, the Registry would need to monitor communications between counsel and the accused. Any such monitoring would be a gross violation of the attorney/client privilege. And if there were such monitoring, what would be the Registry response to perceived inadequacies? Recommendations on how to conduct the case would infringe upon the independence of counsel and moving for dismissal/”disbarment” of the attorney would infringe on the right of the accused to choose counsel. Simply put, there is no need for an active monitoring mechanism of defense counsel and any such mechanism would necessarily interfere with the independence of counsel.

The picture is slightly different when it comes to counsel for victims authorized to participate in the proceedings. Many victims are not present at the seat of the tribunal and have very little (if any) direct contact with victims’ counsel. Many also live in places where there is little access to information about what is happening at the court and there are few methods to communicate directly with counsel or the court. These victims are therefore not in a position to file a complaint pursuant to the Code of Professional Conduct for Counsel should there be concerns about an attorney’s professional services or conduct. In this kind of case, the Registry could act as a proxy to safeguard the rights of distant victims by bringing allegations to the attention of the Board. Limiting the proposed regulation to counsel for victims who are far removed from the actual proceedings would vitiate many of the potential problems with any potential monitoring mechanism.

I would therefore recommend that if the proposed Regulation 119bis were adopted, that it be limited to counsel for victims who do not have the means to directly interact with the Court or personally monitor the conduct of counsel.

By putting out the call for public comment on its proposed amendments, the Registry has taken an important step toward transparency and accountability. A meeting between experts and the Registry will be held after the close of public comments to further discuss the proposed amendments. Who the Registry invites to participate, and how many of the public comments are discussed will test the extent to which the Registry is dedicated to this public process. As I have tried to set out above, some of the proposed amendments have the potential to seriously undermine the transparency and fairness of the workings of the ICC. There is no reason to believe that these amendments were designed with mal-intent. However, if they are adopted in their present form there is an unnecessary possibility of abuse. In my opinion, Regulation 14 should be left in its present form and the proposed Regulation 119 bis, if adopted, should be limited only to victims’ counsel.

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[1] http://www.icc-cpi.int/NR/exeres/30F96553-7B1D-43B4-9A73-820485F7B847.htm

[2] Prosecutor v. Gaddafi & Al-Senussi, Case No. ICC-01/11-01/11, Order in relation to Reclassification of Documents, ¶ 7 (26 March 2012).

[3] This is the reference to Regulation 120.

[4] See the preamble of this second document.

[5] See, Articles 34, 36 – 42 of the Code.

[6] Ibid. at Article 42.

Review of International Tribunal Decisions for the week of May 7, 2012

This week’s review has decisions and judgments from the International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), Special Tribunal for Lebanon (STL), International Criminal Court (ICC) and The European Court of Human Rights (ECtHR). The ICTY issued a decision on administrative review (a rather terse rebuke of the Registrar), the ICTR issued an appeal judgment in the case against Mr. Ntabakuz, the STL issued a ruling on word limits and the ICC issued a decision on the temporary disqualification of the Prosecutor in the case against Saif Al-Islam Gaddafi. The ECtHR issued a decision against Russia stemming from the unnecessary use of force in preventing a soldier from deserting.

International Criminal Law

ICTY

Prosecutor v. Karadžić[1]

Decision on the Request for Review of Registrar Decision and for Summary Reversal

Background

The Accused filed a request to have two individuals appointed to his defense team as investigators which were denied by the Registry in single sentences because of their “role during the time relevant to the indictment against you”.[2] The Accused appealed to the Presidency on the grounds that the decision was too vague to satisfy due process.[3] The President of the Tribunal agreed.

Reasoning

The President found that the “failure to explain risks appearing arbitrary, [violated] Karadžić’s right to procedural fairness.”[4] While the Registrar provided further detail in his response to the appeal, “post hoc rationalization is insufficient to demonstrate the propriety of the initial decision. […] As [the President] noted, the two sentences devoted to explaining the Impugned Decision are so general that it is not possible to identify specifically any underlying rationales. […] Administrative decisions are pronouncements of Delphic oracles, and should be comprehensible on their face.”[5] The President also expressed concern about the Registrar attempting to determine the role of particular members of the defense team, especially those with “ancillary” positions such as investigators.[6]

ICTR

Ntabakuze v. Prosecutor[7]

Judgment

Background

The Accused was found guilty by the Trial Chamber as a “superior of genocide, crimes against humanity, and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II for the killings of Tutsi civilians” and sentenced to life imprisonment.[8] On Appeal, he challenged several of the Trial Chamber’s findings and in some cases the Appeals Chamber sustained his appeal and reduced his sentence.

Reasoning

The Accused appealed his conviction arising out of a particular incident claiming that the Trial Chamber erred in determining that his subordinates committed the crimes.[9] The Appeals Chamber found, by majority, that the evidence supported two separate conclusions: that the physical perpetrators were subordinates of the Accused and that they belonged to a different unit.[10] The Appeals Chamber therefore granted the appeal on this point. In his 15^th ground of appeal, the Accused complained that the Trial Chamber had convicted him both for “murder” and “extermination” as crimes against humanity because such a conviction is “cumulative”, the Appeals Chamber agreed.[11] As a consequence of granting these grounds of appeal, the Accused’s sentence was reduced to a term of 35 years.

STL

Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[12]

Decision on Extension of Word Limits for the Filing of Preliminary Motions Challenging Jurisdiction

Background

The several defense teams filed preliminary motions challenging the jurisdiction of the Tribunal, some of which were over the page and word limits proscribed in the Practice Direction on Filing of Documents and containing motions for an extension thereof, leading to their rejection and return by the Registry with instructions to file motions in compliance with the Direction or, alternatively, separate motions for an extension of the page and word limits.[13] The Defense filed said motions and complained about the need to file extension requests separately as inconsistent with the practice at other tribunals.[14] The requests for extension on the jurisdictional challenges were granted.

Reasoning

The Trial Chamber rejected the argument that practice at the ad hoc Tribunals allows for simultaneous filing of an oversize motion and the request for an extension of the word limit as, while it has been allowed, it is a disfavored practice at those institutions.[15] The Chamber went on to say that presenting to oversize motion and the extension request together presents the “Judge or Chamber with a fait accompli” and that filing the request before the deadline “achieves fairness to the opposing parties by allowing them to respond to the application in advance.”[16] The Chamber however, considered that the importance of the motion challenging jurisdiction is important and that more detailed briefs would be of assistance.[17] The Chamber therefore granted, for the most part, the word, page and time limit extensions requested by the Defense.[18]

ICC

Prosecutor v. Gaddafi & Al-Senussi[19]

Decision on the request to temporarily suspend the Prosecutor from conducting any prosecutorial activities related to the case pending the determination of the request for disqualification

The appointed defense counsel requested that the Prosecutor be prevented from conducting any investigations and that he be removed from the case for misconduct. The Appeals Chamber summarily dismissed the request for an injunction pending its decision on the substance of the disqualification motion, in which its reasons for denying the injunction will be explained. The Appeals Chamber said that this decision is “without prejudice to the Appeals Chamber’s consideration of the request to disqualify the Prosecutor from participating in the case.” But I bet it is not a good sign.

International Human Rights Law

ECtHR

Putintseva v. Russia[20]

Chamber Judgment

Background

While performing his mandatory military service, Valeriy Putintsev, left the military unit without permission in February 2002. Arrested three days later, he was placed in a disciplinary cell in punishment for absence without leave. During his detention, Mr Putintsev hit a junior sergeant on the head when the sergeant attempted to search him. Following the incident, a medical examination of both men was ordered. While escorting Mr Putintsev from the military hospital back to the detention unit on 15 February 2002, the junior sergeant, in an attempt to prevent him from escaping, fired at Mr Putintsev and wounded him in the buttock. On 27 February 2002, Mr Putintsev died from the gunshot wound. The Court found a violation of the right to life resulting from the killing, but not the insufficiency of the investigation.

Reasoning

The Court was satisfied that the Russian authorities conducted an independent, expeditious and thorough investigation into the incident. However, it found that the legal framework on the use of force to prevent the escape of a soldier had been deficient and that the authorities had failed to minimize recourse to lethal force.

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[1] IT-95-5/18-T, 7 May 2012.

[2] Ibid. at ¶ 2.

[3] Ibid.

[4] Ibid. at ¶ 9

[5] Ibid. at ¶ 10.

[6] Ibid. at ¶ 12.

[7] ICTR-98-41A-A, 8 May 2012. All information is taken from the press release.

[8] Ibid. at ¶ 3.

[9] Ibid. at ¶ 14.

[10] Ibid. at ¶ 15.

[11] Ibid. at ¶¶ 23 – 24.

[12] STL-11-01/PT/TC, 8 May 2012.

[13] Ibid. at ¶¶ 2-3.

[14] Ibid. at ¶¶ 4 – 6, 8.

[15] Ibid. at ¶ 11.

[16] Ibid. at ¶ 12.

[17] Ibid. at ¶ 13.

[18] Ibid. at ¶¶ 14 – 17.

[19] ICC-01/11-01/11 OA 3, 11 May 2012.

[20] Application No. 33498/04. All information is taken from the press release.

The Summit of the Americas and the Half-Hearted Debate on Drug Legalization in the Hemisphere

The 6^th Summit of the Americas, held in Cartagena, Colombia, came to a close on April 15^th, 2012 after having brought together 33 heads of state from various nations throughout the Americas with the aim of establishing a “hemispheric agenda” by consensus.  Such an agenda, it was hoped, would be capable of addressing the pressing issues of poverty and inequality, citizen security, access to technology, and responses to natural disasters that affect all nations irrespective of wealth or political systems. The very nature of international gatherings of this sort practically guarantees the desire to claim progress in a particular area is always present.  That is especially the case with the Summit, held as it is only once every three years.  However, it is seldom that these events bear witness to truly controversial proposals that do not have the stamp of approval of the most powerful member nations, even when those proposals directly affect the human rights of the populations in question.  The debut of the issue of drug legalization made sure that this was an exceptional year.

Much talk preceded this Summit not least because some of the most outspoken leaders were not in attendance.  The issue of Cuba’s exclusion appeared to be a factor in all of the decisions.  Venezuelan President Hugo Chavez’s conspicuous absence was officially owed to his ongoing bout with cancer, but he sent his foreign minister in his stead to press the case for overturning Cuba’s fifty-year exclusion from the Organization of American States (under whose auspices the Summit is held).  Daniel Ortega of Nicaragua decided to bail in favor of a last-minute show of solidarity with Cuba, and Rafael Correa of Ecuador did the same in typical grandiose fashion.  This hand-wringing left host and Colombian President Juan Manuel Santos in a tight spot, publicly encouraging discussion of the issue but not going so far as to secure final agreement on Cuba’s eventual inclusion in the 2015 Summit to be held in Panama.  In fact, final agreement proved elusive on most big-ticket issues, with the U.S. and Canada opposing Cuba’s inclusion, and Argentine President Cristina Fernández de Kirchner taking a predictably hard line on her country’s sovereignty over the Falkland Islands – otherwise known as the Malvinas – which have belonged to Britain since 1833.

President Santos projected an equanimous posture in the face of suspicions that the Summit was a failure.  He said with respect to Cuba and the Falklands that “[w]e all knew there would be no agreements here, we knew it from before, so there are no negative surprises here.”[1]  Though true, the contentious nature of this Summit was clear from the lack of a joint declaration upon its conclusion.  This division of opinion was no less evident on the issue of drug legalization.  Recently-elected Guatemalan President Otto Pérez Molina, a former general with ties to the late despotic figure Efraín Ríos Montt, has proven to be an unlikely and outspoken critic of the status quo “war on drugs” led by the United States.  President Pérez stated that “[t]here must be a dialogue over whether we should continue doing the same that we have been doing for the past fifty years to combat drug consumption, production and trafficking, even though we have been unable to eradicate this market.”[2]   A seemingly innocuous proposal – debating a policy that’s a half-century old – the implications for changing the current course are huge.

The degree to which Guatemala and its neighbor to the north, Mexico, have seen their societies torn apart by the scourge of drug trafficking and organized crime almost defies belief.  Since December 2006, when President George W. Bush began exerting pressure on his counterpart Felipe Calderón to employ the Mexican military in the fight against the cartels, an estimated 47,500 people have lost their lives in Mexico alone, a figure (directly from the Mexican government) that only occasionally appears in reports from mainstream U.S. news networks and, when it does, is noticeably devoid of context or any suggestion of U.S. responsibility.[3]  The same can easily be said for other countries.  Incidents of murder in Honduras began to increase in 2005 leading up to the ouster of former President Manuel Zelaya in 2009.  Today Honduras, following the recent withdrawal of the Peace Corps, tops the list of the world’s most dangerous countries.[4]

The United States has been largely shielded from the blowback occasioned by the war on drugs.  When violence does happen, it is almost entirely confined to the southern side of the border, converting Ciudad Juárez (just across from El Paso, Texas) into one of the most dangerous cities in the world.  Legally speaking, the U.S. has, in effect, “externalized” the incredible human cost of its prohibition regime onto its neighbors to the south, whose weak institutions are incapable of confronting the infinite resources of the cartels in their midst.  Where Latin American politicians cannot be bought, they can often be assassinated with ease, to say nothing of the plight of journalists.[5]  This situation, coupled with widespread geographic ignorance on the part of American society, ensures that American politicians never really have to grapple with the effects of their policies on this issue.  Accountability is absent to such an extent that perhaps only tragedy will result in a true reassessment of priorities.  Mexico and Central America have certainly seen more than their fair share of that and at a level most Americans could never tolerate.

No doubt aware of all of this, U.S. President Barack Obama was nonetheless forced to confront the reality that drug policy discussions broaching the issue of legalization are still taboo in the United States.  This is the case despite the June 2011 report released by the Global Commission on Drug Policy, a group made up of former U.N. Secretary General Kofi Annan as well as the former leaders of Mexico, Brazil, and Colombia, among other distinguished statesmen and intellectuals.  The report began thusly: “The global war on drugs has failed, with devastating consequences for individuals and societies around the world.”[6]  Indeed, only in the fossilized universe of drug policy could such a bold statement be seen as anything other than a clear indication a change in course is welcome and near.  Among the Report’s many recommendations, one is that countries target large-scale traffickers in favor of petty dealers and users.[7]  After all, groups like the FARC in Colombia – who began as “revolutionary” outfits but have become little more than mafias with a penchant for exporting cocaine and inflicting human suffering (à la Ingrid Betancourt) – bear the lion’s share of the culpability for the innumerable national and transnational social problems that arise from the basic fact of their existence.   The Report ultimately went on to conclude that prohibition has caused more harm than good, but it did praise the implementation of alternative sentencing avenues, such as drug courts, for dealing with drug offenses in a manner more consistent with public health imperatives rather than criminal ones.[8]  It is noteworthy that all U.S. states currently follow some variation of that approach.[9]

Most interestingly, though, is that this Report represents the Commission’s high-profile about-face from the ideologies that spawned our earliest international agreements on drug policy.   Beginning with the 1961 Single Convention on Narcotic Drugs and the 1971 Convention on Psychotropic Substances, the groundwork was firmly in place for an international prohibition regime.  The 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances went further to include provisions aimed at critical aspects of organized crime including asset seizure[10] and extraditions.[11]  Surely no one is rethinking these protections against the more nefarious features of organized criminality, but the basic assumption that prohibition is the answer to worldwide drug-induced woes is clearly no longer the subject of unanimous agreement.  Accordingly, the Report’s authors sought a conspicuous break with what they termed “drug control imperialism” as practiced by the United States and other powerful, consumer countries when they noted that “[t]he idea that the international drug control system is immutable, and that any amendment – however reasonable or slight – is a threat to the integrity of the entire system, is short-sighted.”[12]  It is quite evident from the Report that flexibility (even “experimentation”) in crafting substance abuse policies across national and cultural borders should be the rule, rather than the exception.[13]

For all the hype, this wisdom has yet to “trickle down,” and the current impasse on drug policy is not yet – strictly speaking – a debate about legalization.  President Pérez and his Central American counterparts, unable to act unilaterally given that they would almost certainly then become narco-states in the tragic mold of Guinea-Bissau, are only left with the option to continue pressing their objections in whatever international fora and media outlets remain available to them.  However, the true irony inherent in this dispute is that the country responsible for creating most of the demand for drugs – the United States – is also saddled with a corporate media superstructure that appears to have abdicated its duty to bring such critical matters to public attention.[14]

In other words, mainstream U.S. media might be a large part of the problem.  For an example of this tendency, one need look no further than the coverage surrounding the Summit itself.  While the American public was mostly oblivious to the Summit’s existence, they couldn’t help but discover that a few ill-fated Secret Service agents cavorted with prostitutes during the trip to Cartagena.[15]   Such a discovery on the part of the media-consuming public was inevitable because the story became the darling of the 24/7 news cycle, and coverage was ubiquitous no matter how rote.  To some extent, regular folks simply prefer sex scandals to policy discussions, but the fact remains that the media, in its functional role as information gatekeeper for the large numbers of Americans who get their news exclusively from television sources, had no interest in taking part in or even facilitating the ongoing substantive debate on drug policy that the Summit laid bare.

The corporate media’s interest, writ large, is to publicize exciting, sensational news in order to sell ad space.  But, by foregoing the opportunity to explore the dramatic repercussions of our war on drugs on our neighbors to the south, the shareholder-driven media likewise gave up the chance to inform the American public that a panoply of voices does in fact exist on this issue.  Perhaps like none other, this policy is not a monolith.  Rather, like any policy, it depends on reliable support and financing to continue.  With polls showing that more than 50% of the U.S. population supports marijuana legalization and even higher numbers consistently decry the failure of the war on drugs, this was a message that deserved to be heard.[16]

Students of politics may marvel at the staying power of certain expensive, destructive, and contradictory policies despite their obvious weaknesses.  Those same cognoscenti will also note that, in the absence of a free and effective media apparatus, the public is essentially deprived of its democratic duty to make critical policy decisions on its own behalf.  Considering the splintering effect occasioned by left-wing demagogues in the U.S.’s own back yard and its corrupting corporate influence at home, we may have to look at the frozen-in-time nature of this debate as symptomatic of a larger malaise afflicting American society (perhaps also seen in widespread voter apathy).  In legal terms, there is no push whatsoever to rescind the weighty provisions of earlier international agreements on narcotic drugs, but this is not a condition sine qua non of success.  What we are instead witnessing is a hemispheric shift in opinion in which North-South agreement is tending to forge ahead despite an unsympathetic media climate.  The desires of eager publics throughout the hemisphere have been excluded from the larger debate just as they have effectively been prevented from knowing how much North-South commonality of viewpoints actually exists on these issues.  The project of furthering this awareness still has quite a ways to go, but the establishment of a legal order aimed at accommodating the full spectrum of voices in the legalization debate would be an ideal development.

Drug cartels are a mortal threat to Latin American democracy, which is to say, American democracy.[17]  And responsible media professionals everywhere are faced with a choice:  honest coverage or the continuation of a 50-year legacy of staying on message.  Our politicians face the same choice.  For its part, the American public also has a critical role to play, but it may not even know it.  Ironically, that was the message this Summit was supposed to communicate to us.

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[1] http://m.bbc.co.uk/news/world-latin-america-17723555

[2] http://www.pulsamerica.co.uk/2012/04/16/summit-of-the-americas-otto-perez-drug-decriminalization-un-women-domestic-violence-sexual-violence/

[3] http://www.telegraph.co.uk/news/worldnews/centralamericaandthecaribbean/mexico/9009574/Mexico-drug-war-has-claimed-47500-victims-in-five-years.html

[4] http://www.usatoday.com/news/world/story/2012-01-16/peace-corps-Honduras/52605494/1

[5] See, e.g., Ret. Gen. Mario Arturo Acosta’s recent killing on April 21, 2012, http://www.reuters.com/article/2012/04/21/us-mexico-general-idUSBRE83K03N20120421.  See also the murder of the prospective governor of Tamaulipas, Rodolfo Torre, in late June 2010, http://online.wsj.com/article/SB10001424052748703964104575334942693439322.html and only a few days later, the killings of Mayor Nicolas Garcia Ambrosio, Council Member Angel Perez Garcia, and Chihuahua Deputy Attorney General Sandra Ivonne Salas Garcia, http://articles.cnn.com/2010-07-01/world/mexico.mayor.killed_1_juarez-cartel-mexican-state-border-state?_s=PM:WORLD

[6] Report of the Global Commission on Drug Policy (2011), pg. 2.  Available at:  http://www.globalcommissionondrugs.org/wp-content/themes/gcdp_v1/pdf/Global_Commission_Report_English.pdf

[7] Id. at 14.

[8] Id. at 16.

[9] National Association of Drug Court Professionals.  http://www.nadcp.org/learn/about-nadcp

[10] Article 5

[11] Article 6

[12] Report of the Global Commission on Drug Policy at 8.

[13] See id. at 11.

[14] For more information on the concentration of media ownership in the United States, see, e.g., The Columbia Journalism Review, “Who Owns What?”, at http://www.cjr.org/resources/, and Free Press, “Who Owns the Media?” at http://www.freepress.net/ownership/chart

[15] http://abcnews.go.com/blogs/politics/2012/04/secret-service-partied-at-cartagenas-pley-club-brothel/

[16] See, e.g., http://www.gallup.com/poll/150149/record-high-americans-favor-legalizing-marijuana.aspx; and http://www.cbsnews.com/8301-503544_162-20084203-503544.html

[17] http://www.bbc.co.uk/news/world-latin-america-17228660

Participation of Victims in the International Criminal Court

Pre-Trial Chamber I made the first decision relating to victims’ participation in proceedings before the International Criminal Court (ICC) on the 17^th of January 2006 concerning the Situation of the Democratic Republic of Congo. At that moment, the Chamber, while clarifying the difference between the victims of a situation and the victims of a case, held that the status of victims must be in accordance with the definition set out in Rule 85 of the Rules of Procedure and Evidence. In accordance with the Rule a victim has to be a natural person that has suffered harm as a result of a crime that falls under the jurisdiction of the ICC. Subsequently, while observing issues of identity, personal interest, reparation and protective measures, the Chamber declared the role of victims was to be limited to making statements before and after the confirmation of charges, they would not generally speaking have the capacity to present evidence.[1]

The different views between and within the parties on the role and capacity of the victims during the trial (and the relationship of such capacity to the right to a fair trial) led Trial Chamber I to invite the parties and participants of the case of The Prosecutor v. Thomas Lubanga Dyilo to submit their views on the “role of victims in the proceedings leading up to, and during, the trial”.[2] The Trial Chamber requested the filing of submissions from the defense, the Office of the Prosecutor, the legal representatives of the victims, and the Office of Public Council for Victims, as well as requesting the Registry to report on consultations carried out for these filings. The resulting decision of the Trial Chamber on victims’ participation took into account and was based on the parties’ views relating to the status of victims and witnesses and their relation to an expeditious trial. The Trial Chamber further interpreted these views in light of the relevant provisions of the Statute,[3] the Rules of Procedure and Evidence,[4] the Regulations of the Court,[5] and the Basic Principles and Guidelines on the Right to a Remedy, together with Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, [6] and the Convention on the Rights of the Child.[7]

In order to set the distinction between a natural and a legal person, the Trial Chamber recalled the necessity of bearing in mind the context of the situation in the Congo and thus to consider the difficulties of applicants to acquire or produce official identity documents. Furthermore, to ensure that victims are not unfairly deprived of an opportunity to participate for reasons beyond their control, the Trial Chamber held official identification documents, non-official documents, and other relevant documents and valid relationships to establish the identity of a ‘natural person’. Additionally, the Trial Chamber held that it would consider any information that the Victims Participation and Reparation Section that it considers relevant. On evidence that the applicant suffered harm as a result of a crime committed within the jurisdiction of the ICC, the Trial Chamber once it has established that the applicant is a natural or legal person, is to decide if this is a case of ‘sustained direct harm’. The Rome Statute does not establish a definition of the concept of harm. However, the Basic Principles the Chamber set out defined harm as the victim’s suffering, either individual or collective in a variety of different ways which include physical or mental injury, emotional suffering, economic loss or substantial impairment of his or her fundamental rights.[8]

As such, the Trial Chamber determined that such participation is not restricted to those who are victims of the crimes contained in the charges confirmed by the Pre-Trial Chamber, and that such a restriction is not provided for in the framework of the Rome Statute. On the other hand, the Trial Chamber, recalling its jurisdiction ratione materia and ratione temporis, defined its jurisdiction on any crime committed in the territory of a State Party or by a national of a State Party, and hence it is necessary that the harm was suffered as a result of the crime committed in the territory of a State Party of by national of a State Party. [9]

It follows that a victim of any crime which is within the jurisdiction of the ICC can potentially participate in international proceedings before the ICC. Nevertheless, it would not be in the interest of justice for all such victims that they be permitted to participate, given that evidence and issues would frequently be wholly unrelated. In consequence, and in the light of Article 68 (3) of the Statute, granting participation rights to many victims “would not serve any useful purpose” and the Chamber will decide proprio motu whether there should be joint representation.

The report to the Chamber of the Registry’s Victims Participation and Reparation Section declared that the matter at issue is the substantive evidential link between the victim and the evidence, as well as considering the background of the personal interest and affection of the trial towards the victim. For this purpose, the Chamber has to determine whether to authorize a victim to participate in the proceedings. This involves an initial determination using the standard of proof, and the examination of a discrete written application stating the reasons why the interests of the victim are affected by the case before the Chamber. These documents are thus examined on a case-by-case basis.

The interests of the victim must relate to the evidence of alleged crimes and the issues the Chamber will be considering in its deliberations on the charges. On the other hand, the interest of victims are multiple and dependent, but nevertheless with a shared interest for access to justice, that the Chamber must ensure. Therefore, participation may be decided on the basis of evidence, requested in an appropriate manner and consistent with the rights of the defense to a fair and expeditious trial.

In Lubanga, the Trial Chamber recalled the victims’ right of consultation, subject to the restrictions of confidentiality and protection of national security information, and consequently the presumption for the legal representative to be granted access to all public filings, and opportunely other confidential material upon request and without protective measures.

With regard to evidence, the Lubanga Trial Chamber defined that victims during trials may be requested pursuant the mission of the Court to establish the truth and evidence, and in accordance to the Statute and the Rules of Procedure and Evidence.[10] It is the discretion of the Trial Chamber to rule on the admissibility and relevance of evidence, taking into account the victims and in accordance with the Statute, and to permit victims to participate in closed and ex parte hearings and through written submissions.[11] Despite the defense arguments, the consideration of evidence at different stages was held to be without prejudice to the rights of the accused and the maintenance of the presumption of innocence, and thus in accordance with Regulation 56 of the Regulations.

Furthermore, the Lubanga Chamber rejected the notion that anonymous victims should not be permitted to participate in the proceedings, and recognized in accordance with the Rules the special needs for children and elderly victims, victims with disabilities, and victims of sexual and gender violence participating in the proceedings, when it is a matter of safeguarding their integrity, physical and psychological well-being, dignity and private life, protective and special measures defined in the Statute. [12]

In conclusion, the Lubanga Trial Chamber rejected the characterization of victims and witnesses urged by the defense, and took into account the special needs arising from this dual status and balanced possible impacts on the rights of the defense.

It follows that the victims are allowed to participate through application to the Chamber at any stage provided their relevance and interest to the evidence, and the participants are provided access to the entire public record and index of the case. However, it should be mentioned that Judge Rene Blattman in his Separate and Dissenting Opinion defended an imprecise definition of victim that does not allow effective rights of participation and may threaten the rights of the accused. He contended that it is against the general principles of criminal law, such as the principle of legality, not to link the status of victim and consequent rights of participation to the charges confirmed against the accused. Such a situation may not be in accordance with the procedural assertions and the adjudication that the Statute does not limit the Chamber’s jurisdiction.

All in all, the decision of the Trial Chamber was intended to provide the parties and participants with the general guidelines related to the participation of victims throughout the proceedings in general terms, to be complemented by the Trial Chamber on an applicant-by-applicant basis. Victim participation must enjoy meaningful effect and always ensure that its application does not result in an unfair trial. The evidence given by the victims, acquired through filtration and relevance, and its relation throughout the stages of the trial, it is not only respectful to the parties but also substantial in the acquisition of truth.[13]

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[1] In exception of a/001/06 and a/0003/06 which were granted on a sole question to the Prosecutor’s witness.

[2] Order setting out schedule for submissions and hearing regarding the subjects that require early determination. ICC-01/04-01/06-947 and ICC-01/04-01/06-985.

[3] Article 21(1), Article 21(3), Article 68(1) – (3) and Article 69(3).

[4] Rule 85, Rule 86, Rule 87, Rule 88(1), Rule 89(1), Rule 90, Rule 91, Rule 92 and Rule 131(2).

[5] Regulation 79(2) and Regulation 56.

[6] Principle 8 and Principle 9.

[7] Article 3(1) and Article 12(2).

[8] 8^th Principle.

[9] Article12 of the Statute

[10] Article 69(3) and Rule 91(3).

[11] Article 68(3) and 69(4).

[12] Article 68(1).

[13] Cassese, Antonio, International Criminal Law, Oxford (2008); Cryer, Robert: International Criminal Law, Cambridge (2007); Decision of the International Criminal Court Trial Chamber I: Prosecutor v. Thomas Lubanga Dyilo, 18 January 2008; Baumgartner, Elisabeth: Aspects of Victim Participation in the Proceedings of the International Criminal Court, International Review of the Red Cross, Vol. 90 (2008); Boyle, David: The Rights of Victims: Participation, Representation, Protection, Reparation, Journal of Criminal Justice 4 (2006) 307 et seq; De Hemptinne, Jerome & Rindi, Francesco: ICC Pre-Trail Chamber Allows Victims to Participate in the Investigation Phase of the Proceedings, Journal of Criminal Justice 4 (2006) 342 et seq; Stahn, Carsten & Olasolo, Hector & Gibson, Kate: Participation of Victims I Pre-Trial Proceedings of the ICC, Journal of Criminal Justice 4 (2006) 219 et seq.

Review of International Tribunal Decisions for the week of April 30, 2012

This week has international criminal law decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the International Criminal Court (ICC). The European Court of Human Rights (ECtHR) is as always our faithful representative in the in the international human rights field. This week, we have a special showing from the New York State Supreme Court in Bronx County which issued a decision dealing with immunity for those who head specialized international organizations.

International Criminal Law

ICTY

Prosecutor v. Mladić[1]

Fourth Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts Concerning the Rebuttal Evidence Procedure

Background

The Prosecution filed a motion, inter alia, requesting that the Chamber adopt a specified five-part procedure for the admission of adjudicated facts, their challenge and the Prosecution’s ability to respond to any defense challenge to those facts.[2] The Chamber denied the motion.

Reasoning

The Chamber noted that if the Prosecution were allowed to offer “rebuttal” evidence to a potential defense challenge to an adjudicated fact, the rule allowing the admission of adjudicated facts would lose its purpose.[3] However, where an adjudicated fact is admitted and the defense challenges it, the Chamber is then in the position of weighing a “fact” and evidence, something that is not conducive to finding the truth.[4] The Chamber found that once a fact has been judicially “noticed”, the standard procedure for the introduction of evidence will be sufficient by allowing the Accused to challenge the fact on cross-examination and the Prosecution to offer additional evidence thereafter, or to undermine the Accused’s evidence on its own cross.[5] Since the rules already provide for a workable procedure, the Chamber did not discuss the Prosecution’s proposal.[6]

Prosecutor v. Karadžić[7]

Order to France

Background

The Accused filed a request for the Chamber to issue a letter inviting France to make Milomir Stakić available for a defense interview at the prison facility where he is currently serving out his sentence.[8] France responded by informing the Chamber that the request was being executed, but that national law only requires the State to cooperate with the Tribunal and its organs, not the defense.[9] The Accused responded by requesting the Chamber to issue a binding order to France to cooperate with his defense team and facilitate the interview. The Chamber granted the motion.

Reasoning

The Chamber started by saying that it was in the interests of all involved to resolve these types of issues without getting the Chambers or the Registry involved.[10] But that nevertheless, the Chamber would issue a binding order to resolve the impasse in which the Accused and France seem to find themselves.[11] The Chamber concluded by noting that France has a duty to cooperate with the Accused in his investigations as well as with the organs of the court.[12]

ECCC

Case No. 003

Decision on Personal Jurisdiction and Investigative Policy Regarding Suspect

&

Case No. 003

Decision on Personal Jurisdiction and Investigative Policy Regarding Suspect [Redacted]

The International Reserve Co-Investigating Judge issued these two decisions as to the personal jurisdiction and investigate-ability of two publically un-named suspects. In each he sets out that it is a jurisdictional requirement that the suspects were officials of the Khmer Rouge, however, it is not jurisdictional that they be the most responsible or high ranking, both of which refer to the policy of investigation and prosecution. In the end, the Judge found that both suspects fell within the jurisdiction of the Court and that they should be investigated. He also ordered the decisions be made public “in view of the victims’ right to information”.

ICC

Prosecutor v. Gbagbo[13]

Second Decision on the Prosecutor’s requests for redactions

Background

On 19 April 2012, the Prosecution filed a request for redactions to several documents to which the defense did not respond.[14] He requested redactions of all Prosecution staff names, identity of translators, the date and time of interviews and information identifying prosecution sources.[15] The Single Judge partially granted the motion.

Reasoning

The Single Judge noted that the Prosecution request to redact by type and situation is not consistent with the role of the Chamber to review all redactions on a case-by-case basis.[16] However, in view of the interests “at stake”, the Single Judge will allow the redactions to be filed as proposed with individual reasons to be submitted to the Chamber, preferably at the same time as the redactions are filed.[17]

Prosecutor v. Muthaura, Kenyatta and Ali[18]

Decision on the “Request to Make Oral Submissions on Jurisdiction under Rule 156(3)”

Background

The Accused filed an appeal of the confirmation of charges decision challenging, inter alia, the jurisdiction of the Court and after the other participants filed their replies, the Accused requested permission to make oral submissions on jurisdiction.[19] The Appeals Chamber rejected the request.

Reasoning

The Chamber noted that Rule 156 says that appeals from the confirmation of charges shall be in writing unless the Appeals Chamber decides to convene a hearing.[20] It was noted that the Chamber does not need to give deference to the national legal systems where the case could otherwise be heard that would require such a hearing.[21] The Chamber found that no good reasons had been advanced for such a hearing.[22]

Prosecution v. Gaddafi & Al-Senussi[23]

Decision on the Conduct of the Proceedings Following the “Application on behalf of the Government of Libya pursuant to Article 19 of the Statute”

On 2 May 2012, Libya filed a motion challenging the admissibility of the case against Saif Al-Islam Gaddafi before the ICC.[24] The Chamber therefore had to decide on some procedural issues. The Chamber decided that the postponement request contained in the admissibility challenge and the challenge itself were two different issues that would have to be decided separately.[25] The Chamber then decided that even though Mr. Gaddafi had not been surrendered to court or appeared voluntarily, that his procedural rights must be honored by allowing his as-of-present court appointed counsel the right to submit observations during the admissibility challenge.[26] The Chamber also appointed counsel for the victims that had so far communicated with the Court.[27]

Public International Law

Supreme Court of the State of New York, Bronx County Civil Court

Nafissatou Diallo v. Dominque Strauss-Kahn[28]

(Decision on Motion to Dismiss)

Background

On 14 May 2011, an incident occurred at the Sofitel Hotel in New York City that gave rise to allegations of sexual assault against Mr. Strauss-Kahn, who at the time was the Managing Director of the International Monetary Fund. The criminal charges were subsequently dismissed, but a civil suit was filed by the alleged victim Ms. Diallo. Mr. Strauss-Kahn filed a pre-answer motion to dismiss based on absolute immunity. The Trial Judge denied his motion.

Reasoning and Comment

The case was decided on national law grounds, essentially, that the United States Congress had passed a statute that limited persons such as Mr. Strauss-Kahn’s immunity to that of “functional” immunity. As such, he had no defence of “absolute” immunity.[29] The Court also invoked an “esptoppel” theory of sorts. It held, “If Mr. Strauss-Kahn was entitled to absolute immunity […] there was ample opportunity before now to assert it. If he is correct […] the need for a criminal prosecution would have been obviated […] But his explanation for not raising immunity during the criminal proceedings […] concerned his desire to clear his name. […] however, Mr. Strauss-Kahn’s decision to deliberately forebear from asserting available immunities should not, as a matter of customary international law or fundamental fairness, be used to prevent another from exercising legal rights otherwise available. In other words, Mr. Strauss-Kahn cannot eschew immunity in an effort to clear his name only to embrace it now in an effort to deny Ms. Diallo the opportunity to clear hers.”[30]

However, there is a disturbing stream of thought in the decision, at least from the perspective of an international lawyer. The Court declares that “[t]he United States of America, through its political processes can make laws, ratify treaties or issue judicial pronouncements which require a non-citizen employee of a specialized agency, here on our soil as part of the fabric of international governance, to behave, in their private conduct, in a lawful way failing which to be answerable in courts of law or other tribunals under the same standards as their next door American neighbors. At a time when issues concerning human rights significantly shape today’s international law, customary or otherwise, it is hardly an assault on long standing principles of comity among nations to require those working in this country to respect our laws as American working elsewhere must respect theirs.”[31] This paragraph opens up the legal possibility of legislating away diplomatic immunity for other types of envoys. It also refers to international law and comity in the same breath, implying similarity in function and principle and failing to recognize the difference between the two. After all, if human rights is what matters, and the United States has legislative authority, why should ambassadors be allowed to commit crimes and benefit from immunity?

International Human Rights Law

ECtHR

Ilker Ensar Uyanik v. Turkey[32]

Chamber Judgment

Background

This case concerned the proceedings brought in Turkey by the applicant to obtain the return of his child to the United States, where he lived with his wife. She had remained in Turkey with their daughter following a holiday in that country. The Court found a violation of Article 8 (right to respect for private and family life).

Reasoning

In particular, the Court found that the Turkish courts had failed to carry out a thorough assessment of the entirety of the applicant’s family situation, omitting, among other things, to examine it in the light of the principles set out in the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”).

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[1] IT-09-92-PT, 2 May 2012.

[2] Ibid. at ¶¶ 5-6.

[3] Ibid. at ¶ 17.

[4] Ibid. at ¶ 15.

[5] Ibid. at ¶ 19.

[6] Ibid. at ¶ 21.

[7] IT-95-5/18-T, 4 May 2012.

[8] Ibid. at p. 1.

[9] Ibid.

[10] Ibid. at p. 3.

[11] Ibid.

[12] Ibid.

[13] ICC-02/11-01/11, 2 May 2012.

[14] Ibid. at ¶¶ 5-6.

[15] Ibid. at ¶ 7.

[16] Ibid. at ¶ 16.

[17] Ibid. at ¶ 17.

[18] ICC-01/09-02/11 OA 4, 1 May 2012.

[19] Ibid. at ¶¶ 1-5.

[20] Ibid. at ¶¶ 9-10.

[21] Ibid. at ¶ 11.

[22] Ibid. at ¶¶ 12-13.

[23] ICC-01/11-01/11, 4 May 2012.

[24] Ibid. at ¶ 6.

[25] Ibid. at ¶ 9.

[26] Ibid. at ¶ 11.

[27] Ibid. at ¶ 13.

[28] Memorandum Decision, 1 May 2012.

[29] Ibid. at p. 9.

[30] Ibid. at p. 12.

[31] Ibid. at pp. 9 – 10.

[32] Application no.60328/09. All information is taken directly from the press release.

Russia: RIP R2P?

Last week, former US Senator Chuck Hagel hosted current Russian Ambassador to the US Sergey Kislyak at a forum on US-Russia relations in Omaha, Nebraska, USA.  While the Russian Ambassador addressed several issues relevant to US-Russia relations at the forum, the most important issue that the capacity-audience raised, and that the Ambassador addressed, related to “the responsibility to protect.”

“The responsibility to protect,” or “R2P,” stands for the proposition that State sovereignty is not an absolute privilege; it is a qualified responsibility.  R2P requires, first and foremost, that each State has the responsibility to protect its civilian populations from genocide, war crimes, ethnic cleansing, and crimes against humanity.  If a State is unable to protect its civilian population from these mass atrocity crimes, then R2P requires that the international community must (through the United Nations) peacefully assist the State in observing this responsibility by providing various “soft” measures, such as foreign aid and investment, economic incentives, and capacity building.  If that fails, or if a State is “manifestly” unwilling to avoid (or is actively committing) such mass atrocity crimes, then R2P requires that the international community must (through the United Nations) coercively protect the civilian population of that State from genocide, war crimes, ethnic cleansing, and crimes against humanity on its own.  These coercive measures may include everything from economic sanctions to military intervention.

When asked about Russia’s view on R2P – especially as it related to Syria – the Russian Ambassador appeared to completely reject the doctrine out of hand: “Countries must solve their own problems.  The factions within Syria must solve their own issues.  Both sides in Syria need to stop the violence.  If Bashar Al-Assad is to go, then it is up to the Syrian people to decide whether he should go, not outsiders.  This is a matter of principle.  The Russian Federation does not believe that anyone should impose their views on a sovereign State.”

However, when the Ambassador was asked about Russia’s actions in 2008 in Georgia, the Ambassador adopted, perhaps unconsciously, the language of R2P when he attempted to justify Russia’s intervention: “The Georgian government was attacking its own citizens and we [Russia] had an obligation to intervene for the safety of the [Georgian] people.”

Thus, while many naysayers may contend that Russia is a consistent opponent (perhaps persistent objector?) to R2P, the facts demonstrate that Russia’s position towards civilian protection, whatever the semantics, depends not upon its view of international law, but upon its aim in geopolitics.  As a result, it is too early for critics to say, “RIP R2P” when it comes to Russia, because, as it turns out, “R2P” may be the only legal justification for Russia’s geopolitical aims – with respect to Georgia or otherwise – in the future.

What Makes a State?

The issue of Statehood has been the focus, or at least central to, a series of posts here on TNIL over the past month or so. The subject of Statehood was the focus of a panel we covered at the American Society of International Law’s Annual Meeting. The issue of Statehood also played a central role in the decisionof the Prosecutor at the International Criminal Court to not open an investigation into allegations of crimes in the Palestinian Territories. I will try to briefly frame the issue in this post and suggest a way to view the legal criteria for the creation of a new State.

The Montevideo Convention on Statehood of 1933 sets out several requirements for Statehood. The criteria of the convention are: (1) a permanent population, (2) a defined territory, (3) government and (4) the capacity to entire into relations with other States.[1] The Convention, and prevailing law at the time, viewed States as a kind of sui generis legal entity operating and existing under its own authority and power. Article 3 provides,

The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.

Article 6 then goes on to state,

The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.

The criteria of the Montevideo convention are for the most part good black letter law. Modern debate looks more to the pronouncements of Articles 3 and 6.

There is a debate taking place in the international legal world over whether or not satisfying the Montevideo criteria alone is enough to be a State or if recognition is also necessary. The two main doctrinal views are known as the declaratory and constitutive theories of Statehood.

The declaratory theory provides that the moment in which an entity satisfies all the conditions set out in the Montevideo convention the entity is a State.[2] This theory is close in line with the convention itself and the pronouncements of Articles 3 and 6. It however fails to adequately describe the creation of “States” in international practice. There are entities in the world that de facto satisfy the criteria of the Montevideo convention but do not as a general matter benefit from being “States” and do not receive or benefit form the rights that come with such a status. One example that comes to mind is the nominally Moldovan territory of “Transnistria”.[3] This non-State entity has essentially been independent since the collapse of the Soviet Union. It has a territory, a permanent population, a government and has engaged in relations with other States.[4] Notwithstanding its meeting the Montevideo criteria, it does not participate in international affairs as such because it lacks recognition. The lack of empirical validity to the declaratory theory might lead one to believe that the constitutive theory explains State formation, however, like the declaratory theory, it fails to explain the actual formation of States.

The constitutive theory sets out that it is the recognition of an entity as a State that makes it so. This theory would explain why “Transnistria” and other similarly situated entities[5] are not considered to be States. This theory, however, fails to explain why certain entities that have received numerous recognitions as such are not in fact States. It also raises the question of how many recognitions are necessary in order for an entity to become a State. One clear example of this problem is the “State of Palestine”. As of July 2011, the Palestinian Liberation Organization (PLO) was reporting that it had received at least 122 recognitions of its “Statehood”.[6] To put things in perspective, there are currently 193 members of the UN.[7] That means over half, 63%, of the United Nations recognizes Palestine as a State. However, not even the PLO’s negotiator’s website discusses Palestine as if it were already a State.[8] One simple reason for this might be that States serve a regulatory function in the world. Their function is to administer a portion of the planet where people live. If they cannot serve that function because they lack authority over a territory or people on the territory, no matter what you call them, they are not States. This is the case of Palestine: it has no effective control[9] of which to speak and therefore cannot, even with recognition, be a new State. The constitutive theory, like the declaratory theory, therefore would seem to provide little useful information standing alone on whether an entity is or is not a State.

Arguments can go round and around about the importance of recognition over fulfilling the Montevideo elements. The question still remains: what is it that makes a State? Articles 3 and 6 of the Montevideo convention make it clear that the recognition of an entity of as a State is not what makes it a State. However, even that convention makes room for recognition as an element in its requirement that the new State be able to enter into international relations. I propose that “Statehood” is the product of a balance between the Montevideo criteria and recognition. The more you have of one (criteria or recognition) the less you need of the other. However, in all cases, you need a little of both to be a State.

One example of the curative effect of recognition is the Vatican City State. This State was created in 1929 as a result of the Lateran Pacts between the Catholic Church and the Kingdom of Italy. The State is exceedingly small, only about 110 acres, and has a population just over 800, which is not permanent as it is not self-replenishing.[10] The recognition of the Vatican City State as a State, especially by Italy that surrounds it, allows it to operate as such even though it does not completely satisfy the Montevideo criteria. In other words, an entity with a government and a territory that can interact with other States does not need a permanent self-perpetuating population (as long as it has some form of population) in order to be a State if it is recognized as such.

Another example of slight deficiency in the Montevideo criteria that has been cured by recognition is the State of Israel. It would be hard to argue that Israel does not have a government or a population. However, its territory has been in dispute since the country declared its existence in 1948. International recognition of the State as such though has “cured” this defect in the criteria for Statehood and Israel has been allowed to join the United Nations and participate in other international institutions.

Where does all this leave us? Quite simply, it is necessary that a State have certain characteristics. It must have a territory, population, government and the ability to interact with other States. In addition, because the State is an entity that belongs to a wider community, it must be accepted, recognized at least to some extent, by that community. Recognition can also cure certain defects in the characteristics of a State as long as they are not too serious to prevent that entity from fulfilling its purpose. Having a two-tier system like this is to the benefit of the international community. If all that mattered were the Montevideo criteria, any warlord or group that could assemble enough force could carve out a new State simply by controlling a territory and nothing else. This would encourage any group that wanted their own State to simply take up arms instead of encouraging democratic compromise by requiring individuals and groups to work within the States they find themselves. On the other hand, if all that was required were recognition, the politics of State creation could easily leave the world of reality behind. States would be able to preclude new States from forming not because they are insufficient in some manner, but based entirely on politics without regard for how things are actually on the ground. By requiring a mixture of both the constitutive and declaratory theories, the international community created a system for membership that is self-regulating in the absence of a non-partisan/apolitical administrative body.

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[1] Article 1, Montevideo Convention.

[2] One of the most prominent examples of this theory being accepted in practice comes from the Badinter Commission opinion number 1 dealing with the formation of States out of the disintegration of the Former Yugoslavia.

[3] See, http://en.wikipedia.org/wiki/Transnistria, citing, Jos Boonstra, Senior Researcher, Democratisation Programme, FRIDE. Moldova, Transnistria and European Democracy Policies, 2007; Gerald Hinteregger, Hans-Georg Heinrich (editors), Russia — Continuity and Change, Hinteregger, Gerald; Heinrich Hans-Georg (2004). Russia — Continuity and Change. (editors). Springer. p. 174; Rosenstiel, Francis; Edith Lejard, Jean Boutsavath, Jacques Martz (2002). Annuaire Europeen 2000/European Yearbook 2000. Martinus Nijhoff Publishers.

[4] By “States”, we essentially mean Russia in this specific case.

[5] A brief list includes, the Republic of Abkhazia, The Independent State of Azawad, Nagorno-Karabakh Republic, Turkish Republic of Northern Cyprus and the Republic of Somaliland. They are also all claimed by one or more other States.

[6] http://en.wikipedia.org/wiki/International_recognition_of_the_State_of_Palestine#cite_note-roadmap-19.

[7] http://www.un.org/News/Press/docs/2006/org1469.doc.htm lists 192, but does not include South Sudan which joined in 2011.

[8] http://www.nad-plo.org/etemplate.php?id=119&more=1#1, accessed 29 April 2012.

[9] Effective control in this sense means, inter alia, the ability to exclude others from using coercion on its territory.

[10] The population is made up of celibate church figures all of whom are from somewhere else.