Tag Archives: Crimes Against Humanity

The Temptations of International Criminal Justice: Part One – Ukraine

ICCThe International Criminal Court (ICC) – to date the only permanent, multi-lateral institution created to prosecute cases of international crimes – has not had the easiest time of it. In fact, the Court has been plagued by many different accusations regarding its operations. One of the most persistent critiques it that the ICC has an anti-Africa bias.[1]

Since the entry into force of the Rome Statute – the Court’s founding document – on 1 July 2002, the ICC has opened 21 cases arising from 8 situations.[2] All of the accused are from African countries, only two of which not being from sub-Saharan Africa. Further supporting claims of an anti-Africa bias is the fact that the Office of the Prosecutor (OTP) has declined to open investigations into alleged crimes in Venezuela and Palestine – two of the few situations brought to the Court’s attention that are outside of Africa.[3] In the last weeks the Court has received, and the OTP opened preliminary examinations into, two additional referrals[4] – one referring to Iraq and the other to Ukraine.

UN Security CouncilThese two situations provide a tempting opportunity for the ICC to show that it is willing not only to take on cases outside of Africa, but also cases that involve potential allegations against government officials of the great powers – States with permanent seats on the United Nations Security Council (UNSC). Notwithstanding the need for the ICC to branch out and take on cases arising from events in locations other than Africa, and to challenge the great powers, the Court would do well to steer clear of both these situations. In the coming weeks I will write more about this subject. For now, this first post will discuss the situation in Ukraine.

The Situation in Ukraine

Recent events in Ukraine have been making international news for some time. The current round of troubles began with the street protests leading to the occupation of Maidan square by “pro-western” protestors in November of last year. The protests, at times violent, arose from the refusal of then president Yanukovych to sign an agreement with the European Union that would have led to greater ties between the regional block and Ukraine. He chose instead to pursue closer ties with Russia.[5] The protests escalated until February of this year with the overthrow of the Yanukovych government and his subsequent flight to Russia. The new regime in Kiev immediately began to have problems in the east of the country where there is a majority of ethnic Russians. These troubles have led to the annexation of Crimea by Russia and violent unrest in eastern Ukraine that has seen claims of criminal behavior by both sides.[6] While the new government in Kiev is supported by the West, Russia has supported – to an extent that is not entirely clear – separatists in the East.

Allegations have been made that the Yanukovych government illegally targeted civilians during the protests leading to his ouster in a way that amounts to the commission of international crimes. After the fall of his government, there have been allegations of crimes being committed against Russian speakers by those associated with the new regime that could in turn amount to international crimes.

This context is important in order to understand the scope of the referral by the new regime in Kiev, regardless of the veracity of either side’s claims of crimes by their opponents.

Ukraine’s Acceptance of Jurisdiction

The authorities in Kiev referred the situation in Ukraine from 21 November 2013 to 22 February 2014, covering only the period of the street protests in the capital that led to the overthrow of the Yanukovych government.[7] In effect, the authorities in Kiev have made a referral (technically an acceptance of jurisdiction pursuant to Article 12(3) of the Rome Statute) that would de facto only expose their political rivals to prosecution – a mighty tool in the continuing conflict ravaging that country. The OTP has since announced that it is conducting a preliminary evaluation of the situation.[8]

A One-Sided Referral

Kiev’s clever limitation of their referral would not be the first time that the ICC had to deal with a situation where the referring government wanted to encourage the Court to move against its opponents without risking prosecution of regime members. In the situation concerning the Lord’s Resistance Army (LRA), Uganda tried to refer only the crimes of the insurgent group and not those allegedly committed by government militias and armed forces. The OTP however decided that a referral of a situation to the ICC is ipso facto a referral of all crimes committed by either side of the conflict in question. In other words, States cannot just refer the crimes of their opponents. However, this was a case of the government trying to exclude liability arising out of contemporaneous acts to those that they were trying to refer to the Court. The situation in Uganda was an ongoing insurgency that saw attacks by the LRA and reprisals by government forces over a period of time.

The situation in Ukraine is different in at least one fundamental way. Here, the crimes allegedly committed by one side predominately occurred during the timeframe of the referral to the Court, while the crimes allegedly committed by the new government would have occurred after that time period. Kiev’s acceptance of jurisdiction poses the same dilemma as that of Uganda’s referral as to the one-sidedness of the prosecutions sought by the Court. Of course there are crucial differences, not the least of which is the fact that Uganda is a State party to the Rome Statute, so that there is no question of jurisdiction over crimes outside the scope of the referral in that case. Ukraine of course is not a State party so the ICC would lack jurisdiction outside of any acceptance thereof. In the face of this limitation the ICC should not simply mechanically proceed based on the scope of the referral by Ukraine as doing so would risk irreparable harm to the Court and the nascent permanent system of international criminal justice.[9]

Allowing the new authorities in Kiev to avoid responsibility through the use of a clever temporal limitation of their referral would undermine the message sent by the Court in the situation in Uganda – all sides are equal before the ICC and States cannot use the Court as a weapon against their political and military adversaries. It would send the wrong message about the purpose of international criminal justice if the Court (either the OTP or the chambers when they hear the issue) were to proceed with investigations and/or prosecutions based on such a limited referral or acceptance of jurisdiction. The message would be that if you are able to seize the government of a State, you could refer the crimes of your predecessors to the Court without risking prosecutions for the crimes you commit after taking power. State power as protection from prosecution, one of the central evils that international criminal justice was designed to remove.

Conclusion

Ukraine’s acceptance – or granting – of jurisdiction to the ICC is an attractive opportunity of the Court to show that it is not “anti-African” and to take on one of the great powers, Russia. However, while this may be true, the referral is also dangerous in that it could set a precedent on how to arrange the prosecution of political enemies before an international body thereby rendering the ICC nothing more than a pawn in the game of international Real Politick. The OTP and the Court as a whole must be careful not to allow this important institution to become anything other than an agent of justice by investigating and prosecuting crimes committed by all sides to a conflict, not just those that may have committed crimes first (or last). The failure of the ICC to successfully deal with this referral is nothing less than a mortal threat to the credibility of international criminal justice.

[1] See, e.g., http://iccforum.com/africa; http://www.gulf-times.com/opinion/189/details/367879/international-criminal-court-is-accused-of-anti-africa-bias; http://sites.thehagueuniversity.com/africans-and-hague-justice/home.

[2] Of the 30 accused before the court of committing international crimes, 8 remain at large (4 in one case alone from 2005), 3 have died before being taken into custody for trial, the charges against 4 were not confirmed, 3 have not been transferred for trial at the Court even though in custody of local authorities, the arrest of 2 was not confirmed, 1 has been acquitted, 7 are on trial or waiting for the confirmation of charges and 2 have been convicted. This is my count based on the current (17 May 2014) list on the ICC website. It may be that some names are no longer listed and my total count is therefore off. Also, I did not count those on trial for offenses against the administration of justice.

[3] See, http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/comm%20and%20ref/Pages/communications%20and%20referrals.aspx.

[4] I am using the term her in a broader sense then the technical one used at the ICC. I mean simply that two new situations have been brought to the attention of the Court.

[5] In the background of this conflict are the divisions in Ukraine between ethnic Ukrainians and ethnic Russians.

[6] See, e.g., http://en.wikipedia.org/wiki/Euromaidan; http://online.wsj.com/news/articles/SB10001424052702303948104579533341029784038.

[7] See, http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr997.aspx.

[8] See, http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr999.aspx.

[9] The Court’s current problems have in no small part led to suggestions of creation another ad hoc court for South Sudan instead of referring the situation to the Court. See,

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Preliminary Examinations at the ICC in 2013

Yesterday, 25 November 2013, the Office of the Prosecutor (OTP) at the International Criminal Court (ICC) released its annual report on preliminary investigations. This document sets out what actions were taken by the OTP in the consideration of potential situations that have been brought to the attention of the office. The report sets out the state of the examinations, whether the OTP believes there is jurisdiction, reasonable basis to believe crimes have been committed, whether there is an admissibility issue and whether the crimes are serious enough to be tried by the ICC.

10 potential situations were under examination by the OTP during this reporting period. They were:

Afghanistan – relating to the non-international armed conflict in that country;

Honduras – allegations of crimes committed following the ouster of former President Zelaya in 2009;

The Mavi Marmara Incident – relating to the Gaza Freedom Flotilla;

Republic of Korea – relating to alleged attacks by North Korea;

Colombia – relating to the drug war;

Georgia – relating to the 2008 war with Russia;

Guinea – relating to the 28 September Massacre;

Nigeria – relating to Boko Haram;

Mali – relating to the recent violence in that country; and

Palestine – relating to crimes allegedly committed during Israel’s occupation.

Of these potential situations, 3 are in Africa, 2 are in Asia, 2 are in Latin America, 1 involves the States of the former Soviet Union and 2 derive from the Israeli/Palestinian conflict. The only situation to progress to the opening of official investigations, Mali, is from Africa.

All the preliminary examinations are still pending except for Mali (as noted an investigation was opened) and Palestine, where the OTP stood by an earlier decision about the invalidity of the referral. However, the OTP indicated a road that may lead to a different determination in the future.

Of the preliminary examinations, four of them included interesting pronouncements of law by the OTP: Honduras, Mavi Marmara, Korea and Palestine. I would like to address each briefly, in turn.

Honduras

In 2009, then president of the Republic of Honduras was arrested and removed from the country by members of the armed forces. This event triggered large-scale protests and allegations of severe human rights abuses against protestors by the newly installed authorities. Information was sent to the OTP alleging that these violations amounted to Crimes Against Humanity (CAH). In the end the OTP determined – at least at this stage – that the reported violations of Human Rights Law while severe, there was insufficient grounds to believe that they were CAH due to the apparent lack of a governmental plan or policy to commit them and/or nexus with that plan should it exist.

The most interesting part of this document is that it takes for granted that the removal of Zelaya was a coup. I have written about these events before, and it seems to me that the issue has not been analyzed enough. In any case, the characterization of the events is not relevant to the determination of whether crimes within the jurisdiction of the court were in fact committed.

Mavi Marmara

The Mavi Marmara incident relates to the “Gaza Freedom Flotilla” and the Israeli raid that prevented it from reach Gaza. The OTP underwent an analysis very similar to that in a prior post on this blog. So far, review has only been conducted as to the jurisdiction of the court. The next step is for the OTP to determine whether there are reasonable grounds to believe crimes within that jurisdiction have been committed. Then it will be necessary to determine if the cases are admissible.

This decision is notable for its direct application of the rule that a ship is a “floating territory” of the flag State, and therefore sufficient for founding the court’s jurisdiction.

Korea

The OTP determined that there is jurisdiction over alleged crimes committed by the North Korean military in South Korea (a shelling incident and an attack on a military vessel). The next step in the process is to determine whether there are grounds to believe specific crimes were committed.

The interesting part of this decision is that jurisdiction is based on the simple fact that the specific incidents in question were uses of military force between States. The OTP found that the simple recourse to the use of armed force between States, even if not in a continual fashion, is sufficient to create an international armed conflict.[1] This reading of the law is not out of line with international pronouncements on the nature of international armed conflict. However, it does beg reason to say that a single incident of military to military force is enough give rise to an international armed conflict. Border incidents, for example, have long been recognized as not meeting the threshold of the beginning of an armed conflict.[2] I do not mean to say that the events in question are insufficient, only that the OTP analysis leaves much to be desired.

Palestine

In 2012 the OTP announced that it would not initiate an investigation in to allegations of crimes in Palestine as there was no consensus that Palestine was a State capable of granting the court jurisdiction.[3] Since that decision, Palestine has been recognized as a non-member Observer State at the UN, that is, it has been recognized as a State by the General Assembly. However, the OTP found that since the “referral” was made in 2009, before Palestine was recognized by the General Assembly, it could not grant the court jurisdiction. The implicit logic leads one to believe that the OTP would accept a new referral from Palestine as being valid.

This is perhaps the most interesting decision in the whole OTP annual report. If I have interpreted it correctly, and the authorities in Palestine so choose, we could see the ICC with jurisdiction (at least in the view of the OTP) over alleged crimes in the occupied territories. If there have been accusations that the ICC has been politicized in the past, they will be nothing compared to what is said if the court finds it has jurisdiction. The political arena in the Middle East may be getting ready for an earthquake.


[1] ¶ 111 of the OTP report.

[2] Nicaragua v. United States, ICJ at ¶¶ 164, 211, 249.

[3] See my earlier post here.

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The Nairobi Mall Attack: Was it a Crime Against Humanity or War Crime?

On 21 September 2013, a group of armed individuals entered the Westgate mall in Nairobi, Kenya and began what would become a three-day hostage stand-off and shootout with the authorities. At most recent count, the death toll is 72 with over 200 hundred injured. The perpetrators have been identified as being associated with Al-Shabaab, an Islamist group that controls large swaths of southern Somalia. Kenya’s President, Uhuru Kenyatta, announced three days of national mourning and vowed that the perpetrators would face justice.[1]

On 24 September 2013, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, issued a press release which read,

The Prosecutor of the International Criminal Court, Fatou Bensouda, expresses her deep sympathy to the victims of the appalling attack on the Westgate Mall in Nairobi and to their families and the people of the Republic of Kenya.  She prays that the hostages held in the mall have been safely delivered and for a swift end to this dire situation.

Such attacks by armed groups upon innocent civilians are contrary to international law and may constitute a crime under the Rome Statute, to which Kenya is a State Party.  In expressing her solidarity with the victims, their families and the people of Kenya, and with full respect for the primacy of jurisdiction of the Republic of Kenya, the Prosecutor stands ready to work with the international community and the Government of Kenya to ensure that those responsible for these crimes are brought to justice.

This press release sets out the possibility of classifying the tragedy which took place at the Westgate mall as an international crime by stating that “[s]uch attacks by armed groups upon innocent civilians are contrary to international law.” She then goes on to say that these are crimes within the jurisdiction of the ICC.[2] The court has jurisdiction over war crimes, crimes against humanity and genocide.[3] Therefore, in order for the ICC to have jurisdiction over crimes committed at the Westgate mall, they will have to fall into at least one of these three categories.

Each category of international crimes has its own detailed doctrines and elements that distinguish them from ordinary “national” crimes that are not punishable under international law. These elements are often referred to as “chapeau” elements or situational elements for the crimes. These can come in the form of objective elements, (such as the widespread or systematic attack or connection with an armed conflict for crimes against humanity and war crimes, respectively) or as a subjective element (such as the specific intent need for genocide).[4] The question therefore is whether or not these contextual elements can be said to have been satisfied in the case of the crimes committed at the Westgate mall.

Considering that Al-Shabaab appeared to be targeting civilians at the mall, and the absence of an armed conflict in Kenya, the appropriate place to begin our analysis seems to be with Crimes Against Humanity.

Crimes Against Humanity

The precondition for classifying an act as a “Crime Against Humanity” as opposed to a domestic crime is that it must have been “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”[5] The concept of attack is then defined to be “a course of conduct involving the multiple commission of acts referred to in paragraph 1 [individual crimes, e.g., murder, rape etc] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.”[6] The statute itself does not define the terms “widespread” or “systematic.” Nor are these terms defined in the Elements of Crimes, a supplementary interpretative tool for understanding the meaning of the Rome Statute’s provisions.

The definition of “widespread” as used in international jurisprudence is not 100% clear. It is undisputed that “widespread” character of the attack is in reference to the number of victims (as opposed to the territorial scope of the crime), but the language in the jurisprudence has been less broad in its interpretation of the threshold for making this determination.[7]  It is not clear what the numerical inquiry should be when faced with a new situation involving potential Crimes Against Humanity, but it is undisputed that the scale of the attack and number of victims must be considered when making the determination that a widespread or systematic attack has occurred. “Systematic” has been defined as a qualitative element relating to “the organized nature of the acts of violence and the improbability of their random occurrence.”[8]

An individual crime can therefore be prosecuted as a Crime Against Humanity before the ICC when it is committed in connection with a high casualty event or organized act(s) of violence and with knowledge of that event, in furtherance of an organizational policy.[9]

Do the events at the Westgate mall fall into this category?

Before turning to a more statutory analysis, I would like to make a teleological observation on international criminal law, that is, I would like to discuss the purpose of criminalizing behavior at the international level. The thing that separates ICL from municipal criminal law is the interest that it protects, that is, the interests of the international community as a whole. After all, the underlying crimes (murder, rape, enslavement, torture etc) are criminalized by national legislatures all over the world, independent from their status as components of internationally punishable activity. The international community (and therefore each individual State) does not have an interest in punishing every murder or rape in the world. If they did, there would universal jurisdiction for every State to punish every crime committed anywhere in the world according to its own laws regardless of the identity of the perpetrator(s) or the victim(s). However, this is not the case. States must have some form of connection to an event to criminalize and punish it.[10] Similarly, the heinousness of the crime is not enough otherwise every serial killer, torturer or cannibal would be subject to universal jurisdiction, which of course they are not. The same is true of gangland shootouts or systemic violence against the members of minority groups (think of the Klu Klux Klan).

This leads me to believe, based on the purpose of ICL as a protector of international interests, that for an act to be a “widespread or systematic attack against a civilian population” that “attack,” in whatever form it may take, must be something that threatens interests at the international level. I have written elsewhere that the creation of Crimes Against Humanity has seen a continual evolution toward an equation with gross violations of internationally protected human rights. In this light, if the “attack” is not related to gross violations of these internationally protected interests, it cannot be an “attack” within the meaning of Crimes Against Humanity.

The question to answer is then, what international interest was threatened by the events in Nairobi?

I struggle to see what that international interest could be. This event – tragic and hateful, for which the perpetrators must be punished – is a crime of national import. Otherwise, any hostage situation or horrible crime of violence could be characterized as a Crime Against Humanity. The Oklahoma City bombing might qualify (hundreds of people were killed)[11] and the same could be said about the Boston Marathon Bombing (while 3 people died, over 200 were injured – this could otherwise be considered as 200 counts of attempted murder as a crime against humanity). However, both of these acts feel like national crimes – not international crimes, and this seems correct.[12] International crimes and the international justice system should be reserved for those acts that threaten the international system, that are on such a scale that they destabilize a region or a country as a whole.[13] The events of the Westgate mall just fail to reach that level. While an argument can be made that the attack was widespread (there were many victims) or systematic (it was well planned and effectively carried out) – and it is clear they targeted civilians – the event fails to satisfy a teleological analysis of what it means for there to be a widespread or systematic attack against a civilian population as a contextual element for the commission of an international crime. For this reason, the ICC should not consider charging those allegedly responsible for the events at the Westgate for Crimes Against Humanity.

But wait, the Prosecutor’s press release states that “[s]uch attacks by armed groups upon innocent civilians are contrary to international law.” This could mean that the charges could be for War Crimes having been carried out by armed groups.

Let’s test that hypothesis.

War Crimes

The precondition for qualifying as a War Crime is that the underlying crime be “closely related to hostilities occurring in territories controlled by [the] parties” to an armed conflict, but not necessarily in a conflict zone.[14] An armed conflict is then defined as occurring whenever “there is a resort to armed force between States or protracted violence between governmental authorities and organized armed groups or between such groups within a State.”[15]

Without a doubt there is a war going on in Somalia. Al-Shabaab, the group who claimed responsibility for the events at the Westgate, is an active participant in that war, and at times has been on the winning side of major confrontations with Somali national forces.[16] Kenya has at times participated in this conflict on the side of the national forces fighting Al-Shabaab. Could this provide the link to the armed conflict in Somalia so as to qualify the crimes at Westgate as being of international concern?

I think that it can, but not because Al-Shabaab is an “armed group” that killed “innocent civilians.” If this were the case any armed street gang that took actions that resulted in the deaths of innocent bystanders would qualify. And not because Al-Shabaab is fighting in a conflict in Somalia, but because Al-Shabaab is fighting a conflict in Somalia in which Kenya is a participant. Furthermore, and this is necessary, because Al-Shabaab specifically characterized the Westgate events as a reprisal for Kenya’s aiding the Somali government as the reason for its actions. Should any one of these elements (the existence of an armed conflict, both sides participation in that armed conflict and the connection of the events at the Westgate mall to that conflict) fail to be proved before an international criminal tribunal (such as the ICC) it would mean that charges of international crimes would have to fail, the defendants acquitted and the events at the Westgate mall would be chargeable only as municipal crimes.

Conclusion

The statement by the Prosecutor of the ICC about the actions of Al-Shabaab at the Westgate mall as being contrary to international law is most likely an accurate statement. However, her statement failed to clearly set out on what basis the assertion was made. Each category of international crimes has its own detailed doctrines and elements that distinguish them from ordinary “national” crimes that are not punishable under international law. These elements are often referred to as “chapeau” elements or situational elements for the crimes. These can come in the form of objective elements, (such as the widespread or systematic attack or connection with an armed conflict for crimes against humanity and war crimes, respectively) or as a subjective element (such as the specific intent need for genocide). This brief analysis has shown that the crimes at the mall are most likely not chargeable as Crimes Against Humanity, which might have at first glance seemed to be the most appropriate way to charge them. However, a more expansive view shows that they are most likely punishable as War Crimes.

The choice of whether or not to move ahead with international trials for those responsible for the horrors of those three days in Nairobi will be, for lack of a better enforcement mechanism, a political decision. As it is, the Kenyan government has voted to leave the ICC system. This would greatly reduce the likelihood of an international trial leaving any trial to States that can gain custody of the accused and is interested to prosecute them.


[2] It is worth noting that while Kenya is a member of the court, its parliament recently voted to leave that organization. The consequences of this will need to be reviewed in another setting. See, http://www.bbc.co.uk/news/world-africa-23969316.

[3] There will also be jurisdiction over the crime of aggression in the future.

[4] See, Joseph William Davids, The Tenth Anniversary of the International Criminal Court: From Crimes Against Humanity to Human Rights Crimes, 18 New Eng. J. Int’l & Comp. L. 225 (2012). There is no indication that this was a genocidal attack, so there will be no further discussion of this crime.

[5] See, Article 7(2), Rome Statute of the International Criminal Court. See also, Davids at 233.

[6] Ibid. at Article 7(2)(a).

[7] For example, the ICTR in the Akayesu case articulated that the “concept of ‘widespread’ may be defined as a massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims.” Akayesu para. 580.  Subsequent decisions of the ICTR have echoed this definition, more succinctly, interpreting “widespread” as follows: “scale of the attacks and the multiplicity of victims”, see Muhimana para 257, “large scale, involving many victims” Kajalijeli para. 871. The ICTY has been somewhat looser with its definition of “widespread”, stating that the widespread requirement refers to “the large-scale nature of the attack and the number of targeted persons.” See Dixon p, 178, quoting Kordic Dec. 17 2004 para 94.

[8] Kunarac, appeals, 12 June 2002, para 94.

[9] There is an interesting debate about whether the “plan or policy” requirement of the ICC statute should be restricted to States. However, for the time being this seems to have been settled in favor of including non-State actors. See, e.g., Prosecutor v. Ruto & Sang, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-01/11-373 (23 January 2013).

[10] This is a very long and complex discussion for which there is unfortunately not enough room here. For summaries purpose, States have jurisdiction over their territory, their nationals and those acts that threaten their national security. I will attempt to address this subject in more detail at a later date.

[11] A single event may constitute an attack against a civilian population and “widespread” means number of those killed.

[12] It is worth noting that the Special Tribunal for Lebanon has jurisdiction over a terrorist bombing incident. However, this is not an international tribunal in the strictest sense. It was formed by an agreement with a national government and applies – in addition to international law – the national law of that State. The nature of the STL is a wonderfully interesting subject, but far outside the scope of this humble post.

[13] This would be the case with the unrest in Syria and Libya in recent memory and Yugoslavia and Rwanda in the 1990’s.

[14] See, ICTY, Prosecutor v. Gotovina et. al., Trial Judgment, ¶ 1677 (15 April 2011). See also, ICC, Prosecutor v. Lubanga, Trial Judgment, ¶ 504 (14 March 2012).

[15] ICTY, Prosecutor v. Tadic, Trial Judgment (2 October 1995), cited by Gotovina and Lubanga.

[16] The history of the collapse of Somali is another fascinating and tragic subject of inquiry that this post cannot hope to cover in a way that even remotely pays these events the respect that they are due.

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A Former Pope and the Issue of Immunity

Today at 8 p.m. Pope Benedict XVI will step down after announcing that he would be the first Pope in 600 years leave the papacy by a means other than natural expiration. This decision is history making in many ways and a momentous opportunity for the Church to remake itself. Unfortunately, there are those out there who have taken this opportunity to target the Church for their own purposes. One group in particular, albeit quite on the fringe, has called for the prosecution of the Pope Emeritus for his handling of, among other things, the sexual abuse scandal around the world, in particular Canada, as well as other alleged abuses committed by the Church over the last hundred years or so.

The prospect, no matter how far fetched, of criminal charges (or even a civil case) against a former pontiff is an excellent opportunity to discuss sovereign immunity and its application to acting and former heads of State. The Pope is head of State of the Vatican State after all, so the legal framework applied to State immunity is the proper one for considering the issue.[1]

The Law

The basic text on the issue of immunity, at least when referring to diplomatic agents, is the Vienna Convention on Diplomatic Relations of 1961. This is a good place to start our analysis even though heads of State are not strictly speaking diplomatic agents. Article 31 reads in pertinent part:

1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(a)         A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

(c)        An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

This provision clearly provides for the immunity from suit, including criminal charges, of the members of the diplomatic staff of a consular mission sent from one State to another. A similar rule governs in the case of United Nations Personnel. Sections 18 and 19 of the Convention on Privileges and Immunities of the United Nations of 1946 reads in pertinent part:

Officials of the United Nations shall :

(a)         be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity; […]

In addition to the immunities and privileges specified in section 18, the Secretary-General and all Assistant Secretaries-General shall be accorded in respect of themselves, their spouses and minor children, the privileges and immunities exemptions and facilities accorded to diplomatic envoys, in accordance with international law.

Like the envoys of States, the envoys of the United Nations cannot be subject to legal process (as regulated by the particular regime of the treaty). This second treaty, however, highlights something that is not mentioned in the Vienna Convention, that the immunity comes in two guises. One is the prohibition on legal action against a person holding a diplomatic/UN office and the other is action against the person for their official acts: personal and functional immunity respectively. These rules also apply to high-ranking State officials such as the head of State.[2]

Article 18(a) makes explicit the otherwise general rule that a person working for a State or organization may not be held liable for their official acts that are attributable to that State or organization. The International Court of Justice in the Arrest Warrant case recognized this rule observing:

after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy al1 of the immunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity.[3] (emphasis added)

The language makes clear that the “private” capacity means that official acts are outside the reach of other States’ jurisdiction. In other words, when a person leaves office he or she gives up their personal immunity but retain their functional immunity.

An exception exists for the rule regarding functional immunity once a person leaves office: the commission of international crimes subject to universal jurisdiction. This is not the place to enter into a detailed discussion of what crimes are “international”. It should be enough for present purposes to note that the crimes universally recognized as “international” are genocide, war crimes and crimes against humanity.[4]

The Charges

The charges leveled at Benedict are that he, as head of the Church, did not take sufficient care to protect children from abuse by members of the clergy. He is not accused of personally abusing any children or committing or being an accessory to any other abuse related crime. The charges are essentially that he did not do enough as Pope to prevent abuse or make reparations for harm allegedly caused by the Church. If he is to be liable to legal action it must be shown either that the alleged crimes were private acts by the Pontiff or that they amount to international crimes.

Private Acts

The first step in the analysis is to determine whether the alleged acts constituting crimes were taken by Pope Benedict XVI as part of his official duties, or rather, if they were private acts. It should be clear from the nature of the charges that the alleged criminal acts were not private in nature. Benedict is not accused of having personally harmed anyone, but rather of having been a poor leader thereby allowing harm.

Administration of a Sate or public organization is not a private act for which an individual enjoying functional immunity can be prosecuted. To hold otherwise would mean that functional immunity has no effect as any action taken in favor of the State or organization would be private. This is not to say that if there were proof of collusion between the administrator and the direct perpetrators of a crime that no action would lie, only that in the absence of such direct involvement functional immunity bars prosecution.

Therefore, as Pope Emeritus, Benedict will enjoy function immunity preventing legal action on allegations relating to his alleged mismanagement of the Church.

International Crimes

Does institutional child abuse amount to an international crime? The clear answer is no, it does not.

International crimes are those that threaten the international community as a whole and they are comprised of particular elements. Genocide requires the specific intent to destroy a group in whole or in part. War crimes require the existence of an armed conflict. Crimes against humanity require a widespread and systematic attack against a civilian population as such. The allegations, while serious and grave, do not fit these definitions.

What we have, instead, is individual instances (albeit a great number of them) of abuse spread around the world in a sporadic and unconnected manner. Many members of the clergy and hierarchy failed in their duties to protect innocent individuals, and they should be held to account for their actions. However, that does not mean that the crimes, no matter how horrible, are international crimes. This is not to say that the Church is not in any way responsible, only that the invocation of jurisdiction over an ex-Pontiff is not the proper and legal way to search for justice.


[1] Some might say that the Pope gets immunity as the leader of the Church, a religious institution. This is not the case.

[2] Arrest Warrant Case, ¶ 51 (2002).

[3] Ibid., at ¶ 61.

[4] These crimes can be found in the statutes of the UN international criminal tribunals and the International Criminal Court.

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Review of International Tribunal Decisions for the weeks of October 15 & 23, 2012

This week’s review has decisions form the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Special Tribunal for Lebanon (STL) and the European Court of Human Rights (ECtHR). The range from the legality of the tribunals, protective measures to extradition.

International Criminal Law

ICTY

Prosecutor v. Stanišić & Simoatović[1]

Decision on Serbia’s Requests for Provisional Protective Measures In Relation to Defence Documents

Background

Serbia requested provisional protective measures for several documents in the possession of the defense.[2] Some of the documents were voluntarily provided by Serbia to the defense and some were Serbian documents independently acquitted by the Defense.[3] The Prosecution objected to the request for protective measures for the documents not provided by Serbia on the grounds that the State lacked standing to make the request.[4] The Chamber granted the request for provisional protective measures.

Reasoning

The Chamber noted that neither the rule nor the Appeals Chamber jurisprudence provided for, nor denied, the granting of protective measures for material not supplied by a State but otherwise originating from its official documents.[5] The Chamber then noted that the purpose for the relevant rule was to protect the national security interests of a State and thereby promote cooperation with the Tribunal.[6] However, such an order would apply on to use at the Tribunal and not to the source of material, which could do as it so pleases.[7] With these limits in mind, the Chamber granted the provisional protective measures.

STL

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

Decision on the Defence Appeals Against the Trial Chamber’s “Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal”

Background

The Defense challenged the legality of the Tribunal before the Trial Chamber and lost, this is the resulting appeal. The Appeals Chamber also rejected the Defense challenge.

Reasoning

The Appeals Chamber rejected the Defense challenge finding that the UN Security Council created the Tribunal and that such decisions were not reviewable by the Tribunal. This is because the decision was based on “a plethora of complex legal, political, and other considerations” for which no “meaningful standard of review” existed. Furthermore, the existence and means for dealing with a threat to international peace and security “lies in [the Security Council’s] discreation”.

International Human Rights Law

ECtHR

Makhmudzhan Ergashev v. Russia[9]

Chamber Judgment

Background

The case concerned the Russian authorities’ decision to extradite a Kyrgyzstani national, who is an ethnic Uzbek, to Kyrgyzstan. The Court found a violation of the European Convention.

Reasoning

The Court held that, at present, there was a real risk Mr Ergashev would be ill-treated if extradited, in particular in view of the widespread use of torture against members of the Uzbek minority in the southern part of Kyrgyzstan. Given the current situation, it was doubtful that the local authorities could be expected to abide by the central government’s assurances that he would not be ill-treated.

It was the first time the Court examined on the merits the risk of treatment proscribed by Article 3 in Kyrgyzstan, where clashes between ethnic Kyrgyz and ethnic Uzbeks had erupted in 2010.

Smolorz v. Poland[10]

Chamber Judgment

Background

The case concerned a journalist who published a highly critical article on the subject of communist-era architecture in the city of Katowice, Poland. He received a civil penalty for having damaged the good reputation of one of the architects named in the article. The Court found a violation of the applicant’s right to the freedom of expression

Reasoning

The Court held, in particular, that Mr Smolorz and his opponent were public figures who had been engaged in a public debate concerning an issue that could be described as “historical”. The Court found that the Polish courts had demonstrated rigidity and had given insufficient consideration to the context and nature of the disputed article. It also reiterated that the registers of sarcasm and irony were perfectly compatible with journalistic freedom of expression.


[1] IT-03-69-T, 19 October 2012.

[2] Ibid. at ¶¶ 1, 5.

[3] Ibid. at ¶¶ 2-4.

[4] Ibid. at ¶¶ 2, 4.

[5] Ibid. at ¶¶ 13-14.

[6] Ibid. at ¶ 15.

[7] Ibid. at ¶ 16.

[8] STL-11-01/PT/AC/AR90.1, 24 October 2012. These notes are taken from the Headnote of the decision, a more detailed discussion will follow at a later date.

[9] Application no. 49747/11, 16 October 2012. All text is taken from the press release.

[10] Application no.17446/07, 16 October 2012. All text is taken from the press release.

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Reply to Comments on Syria Part 2

There have been a few comments on our last post on Syria dealing with the possibility of intervention based on an assertion of self-defense by Turkey. I thought it might be best to address them together in a separate post.

The first issue that came up was the possibility that the international community could intervene if Syria were to be suspended or expelled from the United Nations. The underlying legal assertion being that the prohibition on the use of force contained in the UN Charter is a contractual obligation flowing only between the States party/member of the United Nations. The wording of Article 2(4) of the Charter would seem to indicate otherwise. It reads,

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations

Members agree not to use force in their international relations, full stop. It does not provide, as argued, that this prohibition applies against only other members of the UN. In any case, it is now generally recognized that the prohibition on the use of force is a binding norm of customary international law (See, Antonio Cassese, Diritto Internazionale, Bologna 2005). Member or not of the United Nations, Syria benefits from the prohibition on the use of force absent United Nations Security Council authorization.

A second point raised what that the events in Syria amount to genocide and crimes against humanity and therefore the ICC is competent to act. This is undoubtedly true; a UN report has classified the events in Syria in these terms. However, this fact alone does not found jurisdiction for the ICC, which is instead governed by Articles 12 and 13 of the Rome Statute. These articles set out that there is jurisdiction only in cases where the territorial State (where the crimes took place) or the State of which the accused is a national have accepted the competence of the Court or when the United Nations Security Council has referred the given situation to the Court. None of these circumstances exists in the case of the ongoing events in Syria. Ergo, the ICC does not have jurisdiction to act regarding alleged crimes in that country.

The last legal point raised was the alleged consensus of the United Nations Security Council regarding action in Syria. The view noted that neither Russia nor China shared this view and had prevented any formal adoption on intervention. The view appears to be that if the majority of the Security Council is in favor of action then this is tantamount to authorization by the Council. This is however in error. The Security Council cannot act without the affirmative votes or abstention of all five permanent members of the Council, including Russia and China. This is the so-called “veto power”. For better or for worse, all permanent members must agree (or abstain) to avoid deadlock.

Finally, a moral obligation to act in the face of allegations of international crimes was raised. I will abstain from this argument as it is extra-legal and raises many issues (worthy of discussion) that are outside the scope of the original post.

Thank you very much for the comments; they were very thoughtful and insightful.

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New Publicactions by Members of T{N}IL

A new issue of the New England Journal of International and Comparative Law is out (volument eighteen). This issue has an article by our own Joseph Davids on the evolution of crimes against humanity into something more akin to human rights crimes.

Also by Joseph is a contribution in the recently released vol. 28 of Kip & Sluiter’s Annotated Leading Cases of the International Criminal Tribunals dealing with the issue of the contempt jurisdiction of the International Criminal Tribunal for the Former Yugoslavia. More informaiton on this volume can be found here.

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