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The Criminal Responsibility of Those Suspected of Torture

On 3 December 2014, the Senate Select Committee on Intelligence’s Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program was declassified thereby providing the world for the first time with an “official” version of the United State’s anti-terrorism program run by the CIA. A lot has already been written about what techniques were used by the American intelligence community, whether they led to any actionable intelligence (in particular if the information gathered played any part at all in locating Osama bin Laden), and whether the particular techniques amounted to torture. A lot has also been said about whether or not the United States should prosecute those responsible for authorizing CIA interrogation techniques that amounted to torture. However, one part of this situation has not been fully analyzed – other than the individual who carried out the interrogation (and possibly their immediate supervisor), who else would be liable for prosecution?

Put plainly, where does the buck stop?

The only way to answer this question, as a matter of law, is to take the generally accepted facts about the program, and apply potentially applicable laws of criminal responsibility. I say potentially as there is no set law on criminal responsibility at the international level – and torture is an international crime.

At the moment, there are two potentially applicable doctrines of criminal responsibility at the international level. The first is that applied by the United Nations ad-hoc International Criminal Tribunals created in the 1990’s. The second is the doctrine adopted by the International Criminal Court. Both doctrines are potentially applicable in that the case could (eventually) go before the ICC – an albeit unlikely event – should the United States join the court. Likewise, the issue could wind up before an ad hoc internationalized or international tribunal should the political winds move in that direction. In any case, the question remains academic for the time being.

Before turning to the doctrines of responsibility, it will be necessary to set out some basic and generally accepted facts of the program so that the doctrines can be applied. For the sake of this article, I will assume that at least some of the interrogation techniques used by the CIA amount to torture. That question has been debated enough elsewhere.

The doctrine adopted by the United Nations International Criminal Tribunals is generally referred to as Joint Criminal Enterprise, or JCE. It comes in three different versions, however, only the third version – the most expansive – will be of interest here as it would be able to reach the greatest number of individuals. This doctrine states that,

With regard to the third category, what is required is the intention to participate in and further the criminal activity or the criminal purpose of a group and to contribute to the joint criminal enterprise or in any event to the commission of a crime by the group. In addition, responsibility for a crime other than the one agreed upon in the common plan arises only if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk.[1]

While the quote sets out two different requisites, there are in fact three: that the accused participate in a criminal plan, that the crime was foreseeable even though it was not the object of the criminal plan, and that the accused willingly took the risk that the crime would be committed. The additional factor is required because it would be too expansive to hold an individual for crimes committed in the furtherance of a legal plan in the same way which is allowed when the underlying scheme is already illegal.[2]

The question arises as to what the criminal enterprise in question would be regarding the CIA interrogation program. All responses to this question will themselves be controversial, and would detract from the overall discussion here, much like the issue of whether or not the CIA techniques amounted to torture. For the sake of argument, let us assume that the interrogation program itself – regardless of the techniques used – would constitute an illegal act.[3] If this were the case, any individual within the administration that formulated or actively participated in the implementation of the interrogation program could potentially be held liable for acts of torture carried out during the implementation of said program. This could include those who designed the program, authorized the program or knowingly implemented the program. This may seem broad, and it is, but it is also an accepted reach for the law in order to hold those who lead criminal groups accountable for the actions of their collaborators.

The view would be slightly different if the matter were to be brought before the International Criminal Court due to the fact that the doctrine of JCE is not applied by the court. At the ICC it is sufficient that a crime is committed during the implementation of a common plan between the accused and another, under the following circumstances:

(i) that the co-perpetrators have agreed: (a) to start the implementation of the common plan to achieve a non-criminal goal, and (b) to only commit the crime if certain conditions are met; or

(ii) that the co-perpetrators (a) are aware of the risk that implementing the common plan (which is specifically directed at the achievement of a non-criminal goal) will result in the commission of the crime, and (b) accept such outcome.[4]

Under this doctrine, there is no need to determine if the underlying plan was criminal in nature. It is sufficient that a criminal act was a reasonable possibility in achieving their goal.

The significance of the difference between the ICC and UN doctrines of responsibility is that an individual can be tried for a crime even if they did not actively participate in a crime, but that they knew one could occur in the course of an otherwise legal endeavor. This knowledge could simply be that the accused knew one of their associates commonly committed crimes of a specific type under the given circumstances.[5]

For there to be criminal responsibility under this doctrine of responsibility, it would need to be shown that the member of the administration engaged in a common agreement to allow certain types of activity (say, enhanced interrogation techniques) and that they should have known that this could lead to torture, and accepted that risk. Responsibility under this doctrine is potentially much more expansive due to the fact that there is not need for voluntary or knowing participation in a criminal plot, but only the intentional engagement in activity with others while knowing that it is possible that a crime could be committed in the normal course of events: something that is extremely likely in a war setting.

The bottom line is that a colorable argument could be made that high-level American officials are criminally responsible for crimes committed as part of the CIA interrogation program. This means that they could be indicted and prosecuted under generally recognized principles of international criminal law, in particular universal jurisdiction for torture.[6] Under no circumstances should the United States permit its officials to be tried abroad, this would simply be a political blunder of unprecedented proportions. The only way to avoid this possibility entirely is to prosecute those who could be responsible under the above theories of criminal responsibility within the United States justice system.


[1] ICTY, Prosecutor v. Tadic, Judgment, 15 July 1999, IT-94-1-A, ¶ 228.

[2] This is the theory of responsibility if the accused did not order or otherwise aid and abet in the commission of the torture.

[3] One aspect of the program was the unwilling removal of individuals from one country to a “black site” where they were not allowed contact with the outside world without court process. This could be viewed as “illegal,” regardless of whether or not the country of origin permitted the removal. See, International Covenant on Civil and Political Rights, Article 9 (“1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement [sic]. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”)

[4] ICC, Prosecutor v. Lubanga, 14 March 2012, ICC-01/04-01/06, Judgment Pursuant to Article 74 of the Statute, ¶¶ 982, 984 (requiring that implementation embodied a sufficient risk that, if events follow the ordinary course, a crime will be committed.

[5] See, for example, Ibid. at ¶¶ 1072 – 1083, 1109, 1111-1112.

[6] There are debates as to whether this is perfect universal jurisdiction, or an imperfect jurisdiction that requires the presence of the accused on the national territory, however, this is a debate for a different place and time.

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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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More Contempt at the ICC

Yesterday, the ICC announced four arrest warrants have been issued on contempt charges arising out of the case against Jean-Pier Bemba Gombo. The charges are against Bemba himself, his attorney, a member of the DRC parliament and another member of his defense team. Alleged crimes include presenting false evidence and witness tampering.

The press release is available here.

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Contempt Jurisdiction of the Residual Mechanism

As many know the United Nations ad hoc international criminal tribunals that were created in the 1990’s to prosecute international crimes committed during the Yugoslav wars and the Rwandan genocide are scheduled to complete their work in the near future. However, the judicial work of the tribunals is not finished just because the courts have completed the task of adjudicating allegations of international crimes.[1] There will still be outstanding protective measures for victims and witnesses that will need enforcing. At the same time, it will be necessary for a forum to exist to authorize the publication of information from the trials (confidential exhibits) and the modification of the above-mentioned protective measures. Judges will need to sworn and authorized to rule on these issues and enforce them where necessary. For this reason, the United Nations created the Residual Mechanism on 22 December 2010 and judges were sworn thereafter to hear issues that arise in the future.[2]

The scope of the Residual Mechanism’s jurisdiction on work has already been the subject of argument and decision at the International Criminal Tribunal for the former Yugoslavia (ICTY). On 27 September 2013, Radovan Karadžić (on trial before the tribunal) filed a request with the Tribunal’s president, Judge Theodor Meron, for a special chamber to be formed to consider to appointment of a special prosecutor to investigate the filing of contempt charges against former prosecutor Carla Del Ponte.[3]

The special chamber, consisting of Judges Flügge, Moloto and Hall, noted that the Residual Mechanism’s statute provides that it has jurisdiction over “any person who knowingly and wilfully (sic) interferes or has interfered with the administration of Justice by the Mechanism or the Tribunals, and to hold such person in contempt.”[4] They also noted that according to the transitional arrangements, the Mechanism is the proper forum for contempt proceedings where the indictment is confirmed after the effective date of the mechanism. Considering that The Hague branch of the mechanism is already active, the chamber held that the Mechanism, and not the ICTY, has jurisdiction to entertain the issue of the appointment of a special prosecutor.[5]

This decision is problematic for several reasons, some legal and some based merely in common sense. I shall turn to the latter first.

Common sense dictates that Karadžić’s motion be filed with the appropriate person, whether that be the president of the ICTY or that of the Mechanism. However, in this specific case, Judge Meron is both the president of the ICTY and the Mechanism. Furthermore, the current Registrar of the ICTY also holds the same position at the Mechanism. The proper person received the request and assuming for the moment that the special chamber is correct – and the Mechanism is the proper forum – it should have been within the purview of the Judge Meron to sua sponte correct that error. He did not consider that there was an error and so the matter should have been considered as already decided. Alternatively, as president of the Mechanism, Judge Meron’s choice to appoint those currently sitting international judges to consider the issue should have been valid, especially considering that all the judges on the panel are also serving judges of the residual mechanism. The decision as written does nothing more than unnecessarily prolong the matter by passing the buck back and forth based on a presumed procedural anomaly.

From a legal point of view, the reasons for the special chamber’s decision also show that it is not necessarily correct. It is true that the Mechanism is to have jurisdiction to try those who are on trial for contempt of the tribunal based on indictments confirmed after the start date of the Mechanism.[6] However, no indictment has yet been issued so that the Mechanism does not yet have the competence to hear the issue – outside of independently considering the issuance of an indictment itself.

Furthermore, and here assuming that the Mechanism would have jurisdiction to consider the issuing of a contempt indictment at this point, the jurisdiction of this institution does not itself preclude the jurisdiction of the ICTY to issue the indictment that will result in a trial before the Mechanism. The ICTY is just prevented from carrying out the contempt trial. This could simply be a case of concurrent jurisdiction on the matter. It is proper that the tribunal whose orders were allegedly violated is a better forum to consider the issuance of an indictment for contempt – especially when such power is not statutory but an inherent component of the judicial function.

This, however, is not the understanding of the Mechanism itself. Both the appeals chamber and a single judge have ruled that the Mechanism has the sole authority to consider accusations of contempt before the two ad hoc tribunals.[7] These decisions effectively subtracted from the tribunals the ability to enforce their decisions and order and for reasons not required by the text of the statute and rules.

Given the legal and common sense possibilities of considering the issue of an indictment at the ICTY, there was no reason for the special chamber to decline jurisdiction. By deciding not to decide the substantive issue, the judges of the chamber have done nothing more than delay the issue.


[1] When the tribunals close, the ICTY will no longer have any outstanding indictments. This is not so of the ICTR.

[2] Cite to UNSC Res. 1966 (2010).

[3] ICTY, Prosecutor v. Karadžić, Decision on Jurisdiction Following the Assignment of a Specially Appointed Chamber, IT-95-5/18-T, IT-02-54-T, p. 2 (18 October 2013).

[4] Ibid. citing, article 1(4)(a) of the Statute of the Residual Mechanism.

[5] Ibid.

[6] See, Article 4(2) of the transitional provisions annexed to the statute of the Residual Mechanism.

[7] In re. Deogratias Sebureze & Maximmilien Turinabo, MICT-13-40-A R90 & MICT-13-41-AR90, Decision on Deogratias Sebureze and Miximilien Turinabo’s Motions on the Legal Effect of the Contempt Decision and Order Issued by the ICTR Trial Chamber (20 March 2013) and its subsequent tacit approval on appeal.

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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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ICC Unseals New Arrest Warrant

ICCOn 30 September 2013, Pre-Trial Chamber I of the International Criminal Court (ICC) unsealed an arrest warrant against Charles Blé Goudé, initially issued on 21 December 2011.
Charles Blé Goudé, allegedly bears individual criminal responsibility, as indirect co-perpetrator, for four counts of crimes against humanity, namely murder, rape and other forms of sexual violence, persecution, and other inhuman acts, allegedly committed in the territory of Côte d’Ivoire between 16 December 2010 and 12 April 2011. It is alleged that Mr. Goudé formed part of former President Gbagbo’s inner circle and participated in the crimes allegedly committed by pro-Gbagbo forces following the disputed election in that country.

For more, you can find the arrest warrant here.

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