Important Notice: Spreading the Jam moving to WordPress

Dear Readers, after over four years (already) with blogger, I've decided to make the somewhat messy move to Wordpress.

I therefore invite you to access Spreading the Jam at the brand new site: www.dovjacobs.com (Yes, I also got a domain name).

I invite you to update your RSS feed, for those who use some RSS reader.

This site will continue running for a few days, and then I'm going to try and do some redirect from here to wordpress. Apparently, it's not straightforward, but I hope I don't lose too many of you along the way!

See you all soon on Spreading the Jam. 

Draft Statute for Syria War Crimes Tribunal: A first commentary on a disappointing effort

Cross posted on Invisible College

Today, a prestigious group of experts publicly “unveiled” a draft statute for a Syrian Tribunal. The list of contributors is quite impressive, including leading scholars in the field (Scharf, Bassiouni, Schabas, Newton), former international Prosecutors (Crane, Desmond da Silva, Goldstone) and such prestigious personalities as David Scheffer (whose influence is obvious from the expression "atrocity crimes" in the proposed name of the tribunal) and Patricia Wild.

The text of the draft statute, including commentary, was made available to interested readers, and warrants some commentary of itself.

CAVEAT: It should be noted that the following commentary is based on a publicly available version of the text that is dated 27 August 2013. I have not been able to find any new version that might have been unveiled this morning. Should there be any new version which might include any changes relating to the points I discuss below, I’d be happy to amend my views accordingly.

• On the context of the setting up of the Tribunal

From a technical perspective, the draft statute seems to only consider and prefers the option of domestic enactment of the law (Introduction and footnote 1). This has been a debated issue for all hybrid tribunals, which have been set up through a diversity of mechanisms (Treaty for Sierra Leone, UN Territorial Administration regulations for East Timor and Kosovo, UNSC Resolution for Lebanon, Treaty and national legislation for Cambodia, Provisional authority then national law for Iraq). Technically, this should lead to different situations in terms of relationship with national authorities and application of international law, but generally, these issues have tended to be ignored by all hybrid courts in favor of a common “we’re just different” approach. The current draft is no different, as there seems to be no notable impact on the language used in discussing the tribunal framework, other than the suggestions to "import" domestic procedural provisions (see below).

More generally, the introduction to the draft statute illustrates the form of illusionary neutrality of some promoters of international criminal law by suggesting on the one hand that all sides of the conflict would be prosecuted, but suggesting that the tribunal would be set up “presumably following a change of regime”. This is problematic because it seems to suggest that international justice mechanisms are compatible with political transitions. I’m not entirely sure that is true, or at least believe that this assumption needs to be questioned. Calling for accountability on all sides of the conflict might be a nice slogan, but it then leads to the question of who will then be in charge, given the fact that there is probably no one in this kind of situation with clean hands? I raised the same question a few years ago on Ivory Coast and have since then gotten my answer: only one side of the conflict is effectively being prosecuted, whether in Ivory Coast or at the ICC. The same would undoubtedly happen here, to a more or less big extent.

This in turn raises the question of adopting a more comprehensive approach to justice and peace-building that does not impose pre-conceived models of international justice on a given situation, as suggested by Carsten Stahn over at EJIL Tallk!.

• On the relationship with the ICC

Discussions on the setting up of accountability mechanisms for Syria generally present things in a binary way. It’s either the ICC, or a special tribunal for Syria. Interestingly the draft statute considers that the two are not mutually exclusive. Indeed, in discussing the proposed personal jurisdiction of the tribunal, it mentions the fact that Syria could join the ICC and give retroactive jurisdiction to cover the civil war, but concludes that “the ICC traditionally takes jurisdiction over only a handful of highest level defendants, so there would still be a need for the Syria Tribunal to prosecute the next level of culpable civilian and military leaders” (footnote 4). 

This hypothetical scenario would be interesting in relation to how complementarity would work when a hybrid tribunal is involved, given that Article 17 only explicitly considers the situation where a “state” is exercising jurisdiction as a trigger for complementarity.

• On some procedural aspects of the proposed tribunal

There are a number of open questions in the draft statute on the procedural framework of the proposed tribunal, which revisit traditional debates of the past few years, such as the issue of whether defendants can represent themselves, whether victims should be allowed to participate, whether trials in absentia should be authorized and the existence of an investigative judge. These questions bring in a number of cross-cutting considerations, from the past practice of other international tribunals to the need to give due consideration to Syrian legal traditions.

I feel the suggested flexibility in this respect welcome. I personally think that trials in absentia if obviously not ideal, should be a judicial policy option and I appreciate the fact that the document very clearly acknowledges, even if not referring directly to the ICC, that victim participation has revealed itself to be a problem (footnote 18):

Allowing victims and their counsel to participate in trials may present a myriad of logistical and legal challenges for this new court. This is particularly true in an extremely volatile and dangerous environment as exists, and will continue to exist, in Syria. The focus for the new court should be on ensuring that victims have a meaningful and constructive way to address the court in the post-trial stage of the proceedings and obtain restitution when feasible. Further, defendants will potentially be deprived of the right to an expeditious trial when victims participate. The cases heard by the new court will be extraordinarily complex, necessitating lengthy trials. Victim participation lengthens the trials even further, often presenting repetitious questioning of witnesses and additional filings for the court to address and decide upon, and for the defense to spend time refuting. Regarding equality of arms, victim participation and the ability of victims “to lead and challenge evidence” can create procedural disadvantage for the defense. When victims have the ability to lead evidence, allocation of the burden of proof becomes murky and defendants have a greater burden to contend with all of the additional information presented against them by victim participants. Although Syria has civil party participation in its courts, for the reasons stated above, the experts believe that a different approach may be more desirable for this Tribunal. 

I perfectly agree with this statement and hope that any final statute would mirror this feeling. However, I wonder if, in prevision of a more than likely outcry from victim-orientied human rights organisations, the drafters should not have more explicitely laid out a detailed alternative where, even if victims could participate, the level and manner of such participation would be strictly delineated to avoid the ad hoc unpredictable approach at the ICC which ends up, in most cases, being detrimental to the rights of the defense.

• On the applicable law of the proposed tribunal

Before going into more detail, just a word on what I think is one of most disturbing comments in the draft statute (footnote 30):

The crimes in this Statute are defined as they are in the Rome Statute establishing the  International Criminal Court. The crimes in the Rome Statute are further defined in an  instrument known as the “Elements of Crimes,” on which the Syrian Delegation joined  consensus in Rome. According to Article 15 of the International Covenant on Civil and Political Rights, a treaty that Syria has ratified, international crimes are lawfully  punishable even where there is no domestic law criminalizing them at the time of their  commission. International crimes, including those defined in the Rome Statute, are not subject to the prohibition on ex post facto application of criminal law

I think the authors make a vastly exaggerated reading of Article 15 of the ICCPR which states that:

“2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.”

For me, this provision was a kind of ex post facto saving clause for the Nuremberg trials and should be used with care. In this sense, this provision does not say that ex post facto application of international criminal law is never a problem, it just applies a more flexible (if debatable) definition of what does not constitute ex post facto criminalization. Second of all, it remains to be seen whether all crimes within the ICC statutes fall within the ambit of Article 15 of the ICCPR, which is far from clear.

More generally, I am always amazed at the carelessness with which some international criminal lawyers approach the fundamental issue of the principle of legality. I’ve argued against this elsewhere and think that there are in fact very few (if any) valid reasons to apply a less stringent approach to the principle of legality to international crimes and in international criminal courts than in any domestic system.

Moving on to the actual applicable law, on the face of it, there is nothing that notable in the draft statute, which seems to import definitions from the Rome Statute in relation to genocide, crimes against humanity and war crimes. One omission did strike me: in the provision on war crimes, the drafters did not reproduce Article 8(2)(f) of the Rome Statute on the minimum threshold of what constitutes an armed conflict as opposed to internal disturbances. This might not in fact make any difference in practice, as the judges of the tribunal would still be able to discuss this dimension, but I think it shows, once again, the ideological bias of the authors in trying to remove any obstacle for the march forward of ICL.

• On the modes of liability of the proposed tribunal

Nowhere is this ideological bias more apparent than in the modes of liability. Indeed, while the draft seems to mostly adopt the ICC modes of liability, there are a couple of notable differences.

First of all, the provision on aiding and abetting is changed from the ICC Statute. While the Rome Statute reads as follows (Article 25(3)(c)):

For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

The draft statute removes the “for the purpose of facilitating the commission of such a crime” part. There is a footnote that is very explicit on the reason for that:

This revision avoids the problem that has surfaced in recent ICTY cases, that have interpreted “for the purpose of facilitating the commission of such a crime” as a substantial restriction.

In other words, the drafters do not like Perisic, which they see as a “problem” and want to make sure that it does not have a future. Whatever one thinks of the “specific direction” question, I think this way of using the statute for a Syria tribunal to push forward ideological agendas is slightly dishonest. It is not for this group of individuals to decide what is a “problem”, nor do they actually explain why it is a problem. Modes of liability, by definition, set “substantial restrictions” on what kind of conduct leads to responsibility and what kind of conduct does not. This cannot be a reason in itself to change the wording of the Rome Statute on this point.  Finally, this is a live current debate in international criminal law today, which cannot be just brushed aside casually by removing words from a statute.

I also note that such "choice" does not extend to other modes of liability, despite strong discussions and debates. For example, Article 25(3)(a) of the Rome Statute, which was interpreted in a rather novel way by the judges to create the much contested new mode of "indirect co-perpretation", is imported without further commentary or clarification. This is probably due to the fact that it is not a "problem" because it expands individual responsibility, rather than create a "substantial restriction" on it...

The same holds true of the draft provision on superior responsibility, which removes the different mens rea thresholds contained in Article 28 of the Rome Statute between military commanders and civilian leaders. In essence, while at the ICC, they is no negligence mens rea for civilians, the draft statute has the same low threshold for both civilians and commanders. And the document does not even acknowledge this difference, or suggest a choice for the authority that would ultimately decide on the creation of the tribunal.

This is particularly dishonest in the present case, given that earlier in the document, the drafters refer to Syria being part of the consensus in Rome to justify importing the ICC crimes, only to ignore this aspect now in relation to the modes of liability.


UPDATE: I have deleted the paragraph on the "legal burden of proof".

• Conclusions

I’m not convinced by this draft. I would expect such accumulation of expertise to produce something more convincing and less sloppy (see for example, the “general principals of criminal law”, or the inclusion of the witness protection provision under the heading of "rights of the accused"…). 

I also think that the attempts at pushing forward ideological agendas, particularly in relation to modes of liability is disturbing, in their systematic desire to make convictions more likely. This is possibly due to the fact that former prosecutors of international criminal tribunals appear so prominently in the list of contributors.

What this illustrates is more broadly what for me is a somewhat disturbing conflation between academia, policy, and legal and political activism. Indeed, this is not just a random academic exercise. The group of people that presented this draft are powerful and listened to academics and professionals in the field of international criminal law. With this, I think should come a responsibility to caution and a clear commitment to intellectual honesty in their assessment of the law, especially in delineating the law as it is and the law how they would prefer it to be. In other words, and to be clear, the drafters of the statute are perfectly free to propose any text they want, but they should be crystal clear on the fact that they are making normative claims in relation to debated issues in international criminal law today, rather than pretend that things are settled.

This “positivist” plea is not merely conceptual, it is (some would say ironically) a moral imperative. Indeed, such practice means that those who do it would no longer be justified in taking the moral high ground when others, such as government officials, for example, twist international law into authorizing torture or allowing the invasion of other countries without security council approval. This might appear as an extreme comparison, but what’s the difference between the two, other than the allegedly better intentions of some? And we all know where the road paved with good intentions generally lead us…

Taylor Judgment: a "victory for justice"?

Following the confirmation of the 50 year sentence of Charles Taylor, there is a tone of celebration from a number of human rights organisations. One expression that has struck me as problematic is that of this verdict being a "victory for justice", as seen for example in this tweet by Human Rights Watch executive director:

A major victory for justice--and his many victims--that Charles Taylor conviction upheld. http://t.co/UzriokJFrI"
— Kenneth Roth (@KenRoth) September 26, 2013

On a certain level, I of course understand what he means. This verdict is seen as vindication for some of the victims of the Sierra Leone conflict and in this sense constitutes "justice". However, I think that the expression is disturbing in what it says on the state of mind of those who use it.

Indeed, technically, if you trust the legal system, a conviction is no more a "victory for justice" than an acquittal would be. It is the system that must be seen as just, irrespective of the particular outcome in a given case. If we do not accept that acquittals are an option, then there is no point in pretending to want a system of international criminal justice, with a strong protection of the rights of the defense. We might as well reintroduce summary executions, which, I'm sure would satisfy some victims just as much.

On the substance, I'm not entirely sure how much of a "victory for justice" it is, when you see the systematic violations of the rights of the defense in international criminal proceedings. The acts that are being prosecuted are the most heinous crimes that affect the "conscience of humanity", and the highest standards of evidence should be imposed, rather than the lowest ones, as is sometimes the case.

Attachment to these high standards of justice in the respect of the rights of the defense should be the first concern of all people involved in this field, because it is at the heart of the international criminal justice project. Without a fair trial, there cannot be, on the long run, any victory for justice.

First thoughts on the Taylor Appeal Judgment: Sentence upheld and Perisic blasted

As I logged on to the livestream of the SCSL this morning at 10.30, there was a song playing on a loop with the most extraordinary lyrics: "i just can't stand to see you go, i don't understand where we went wrong" (it's a song by Bonnie James called Happy Home). For a second I thought this was a subliminal way for the Court to announce an acquittal... But it turned out not to be the case, as the Appeals Chamber of the Special Court for Sierra Leone has confirmed the 50 year sentence against Charles Taylor. Having followed the reading out of the summary, there is mostly nothing very surprising about the Appeals Judgment. They confirm that crimes against the civilian population were committed by the RUF-AFRC and that Taylor had some role in the events. There are a few points that deserve some comments in my view, until we actually get the judgement.

First of all, the AC discussed the question of evidence. It essentially approved of the Trial Chamber's approach to evidence, specifically rejecting the claim from the defense that uncorroborated hearsay evidence as a sole basis for conviction should not be allowed. I find that quite appalling frankly, but thus is the nature of the international criminal procedure. 

Of course, everybody was waiting for the discussion on aiding and abetting after the Perisic appeal judgement at the ICTY on the question of "specific direction". As discussed by Manuel Ventura here, there could have been an impact on the Taylor appeal judgement. It turns out that there wasn't because the Appeals Chamber upheld the Trial Judgment on the fact that you need a "substantial contribution" to the crime for the actus reus of aiding and abetting to be constituted, and that knowledge is sufficient mens rea. The Appeals Chamber seems to have gone out of its way to not just ignore Perisic, but actually blast it. In a separate development of the summary, the judge said that the AC was not convinced by the Perisic judgment which "does not contain a clear and detailed analysis". I'm not sure I see the point of doing that. This little ego contest between international judges has no place in what is arguably one of the most important judgements in ICL. The SCSL is not bound by ICTY case law. If you're not going to use it, just don't use it. Judges should keep this kind of ultimately irrelevant discussion for the cafeterias of their respective tribunals, the problem being of course, that they wouldn't get as much attention if they did... In any case, given the historically low quality of legal reasoning in the SCSL case law, if I were a supporter of the Perisic approach, I would be happy for the SCSL to disagree with me, rather than the opposite...

While we're on modes of liability, I found the way the judge discussed the distinction between the various modes (ordering, planning, instigating, aiding and abetting...) indicative of a certain sloppiness in the way these modes have been approached. Indeed, in rejecting the Prosecution ground of appeal relating to the fact that Taylor was not found guilty under ordering and instigating, the AC found that aiding and abetting and planning were more "fitting" in relation to the conduct of Taylor. However, it's not a question of more "fitting" or not, it's a question of satisfying a legal definition or not. The mode of liability should not depend on the judges' impression of the narrative of the case. It should depend on whether the Prosecutor has proven beyond reasonable doubt that certain necessary criteria are met.

The AC also addressed the question raised by alternate Judge Sow at the end of the Trial Judgment on whether there were adequate deliberations. The judges, taking the opportunity to remind the world that Sow should never have spoken, found that there had in fact been adequate deliberations. I also seem to have understood that the defense claimed that the absence of Sow's name on the cover page of the Trial Judgment is a violation of the rights of the defense... Not their strongest point.

Finally, on sentencing, the Appeals Chamber found that the Trial Chamber had erred in considering that aiding and abetting should carry a lower sentence. The reasoning was a little circumvoluted, but it seemed to have several dimensions, 2 of them striking me as unconvincing. One of them is that the Statute does not distinguish the different levels of commission. That's true, but the statute does not distinguish much of anything. It does not contain Joint Criminal Entreprise, nor does it discuss the criteria for aiding and abetting, so it's not in my view a real argument. The second argument that struck me, is that creating a hierarchy between modes of liability would somewhat be unfair for the defense. I can't even start imagining how that argument works, so I'll just leave it at that.

More generally on sentencing, this confirms my impressions from the Trial Judgment: I really don't see the point of all those discussions on sentencing in international law, when all the practice shows that it is essentially a random guessing game. There is no indication of what crime or count carries what sentence, so we are left with a lump sum assessment that cannot be analyzed. For example, some municipalities were removed from the conviction in Taylor, without any impact on his sentence. I think this is probably contrary to the nulla poena sine lege principle, but in any case, we should stop commenting on sentencing criteria in the abstract until judges are required to specifically explain what sentence is given for what crime and what reduction or increase comes from mitigating and aggravating circumstances.

Possibly more to come when I see the actual judgment. Stay tuned...

Guest Post: The Use of Chemical Weapons is not a Crime against Humanity

By Catherine Harwood, Grotius Centre for International Legal Studies

The use of chemical weapons in Syria in August 2013 has generated widespread international outrage. International actors have condemned the use of chemical weapons and have employed the language of international criminal law to convey the severity of the violation. The UN Secretary-General stated that “[a]ny use of chemical weapons anywhere, by anybody, under any circumstances, would violate international law. Such a crime against humanity should result in serious consequences for the perpetrator.” Similar sentiments were expressed by the Bureau of the Parliamentary Assembly of the Council of Europe. US President Obama also labelled chemical weapons “a crime against humanity, and a violation of the laws of war”.  The use of chemical weapons is prohibited under both conventional and customary international law and may be prosecuted as a war crime. But does the prohibition extend to liability under international criminal law as a crime against humanity?

Many voices have called on the Security Council to refer Syria to the ICC.  Although practical prospects of referral remain doubtful, the ICC is in principle an appropriate institution to conduct international prosecutions regarding the situation in Syria. If a prosecution is initiated, many may expect to see the use of chemical weapons reflected in the charge sheet.  In light of this, the question whether the use of chemical weapons could amount to a crime against humanity is explored by reference to the Rome Statute. This inquiry explores the statements by the UN Secretary-General and others that any and all uses of chemical weapons amount to crimes against humanity.

• The use of chemical weapons as a war crime

Despite the wide prohibition of the use of chemical weapons in international law, the Rome Statute does not expressly prohibit ‘chemical’ weapons.  However, several provisions indirectly prohibit their use in international and non-international armed conflicts. At first glance, article 8(2)(c)(xx), which prohibits the use of weapons “of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate”, appears most applicable. However, this provision only prohibits weapons listed in an annex to the Statute, which has never been created.  In addition, it only applies to international armed conflicts, which would exclude the conflict in Syria. 

The Rome Statute also prohibits the use of employing “poison or poisoned weapons” under articles 8(2)(b)(xvii) and 8(2)(e)(xiii); and “asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices” in articles 8(2)(b)(xviii) and 8(2)(e)(xiv). These broad provisions arguably include chemical weapons, but they have not yet been applied in practice. Some controversy surrounds the interpretation of these provisions, as noted by Dapo Akande and Bill Schabas, who both consider that the Statute can and should be read as prohibiting chemical weapons.

The use of chemical weapons could also be prosecuted when used in prohibited circumstances or when their use leads to prohibited results. The use of chemical weapons could be prosecuted where it amounts to an attack that is directed against civilians under arts. 8(2)(b)(i) and 8(2)(e)(i); or is an intentionally disproportionate attack under art. 8(2)(b)(iv).  Curiously, the  latter prohibition does not apply to non-international armed conflicts. Prosecutions could also result when the use of chemical weapons results in death or great suffering or injury to protected persons under the Geneva Conventions under arts. 8(2)(a)(i) and (iii) and 8(2)(c)(i). In short, both the use and consequences of chemical weapons may be prosecuted as war crimes. More extensive prohibition against their use would be possible if chemical agents were listed in the annex referred to in article (2)(c)(xx), and if this provision also applied to non-international armed conflicts.

• The use of chemical weapons as a crime against humanity

Under articles 7(1) and 7(2)(a) of the Rome Statute, crimes against humanity are prohibited acts listed in article 7(1) when committed in the context of a “widespread or systematic attack directed against any civilian population, with knowledge of the attack”,  “pursuant to or in furtherance of a State or organizational policy to commit such attack.” The Elements of Crimes provide that a relevant attack is a “course of conduct involving the multiple commission of acts referred to in [article 7(1)] against any civilian population […] The acts need not constitute a military attack. It is understood that ‘policy to commit such attack’ requires that the State or organization actively promote or encourage such an attack against a civilian population”.  ICC Pre-Trial Chamber II interpreted the contextual elements of crimes against humanity in the Bemba confirmation of charges decision. The PTC held that “[t]he commission of the acts referred to in article 7(1) of the Statute constitute the ‘attack’ itself” (para. 75). The attack must be either widespread or systematic. A widespread attack is “large-scale”; “over a large geographical area or an attack in a small geographical area directed against a large number of civilians” (para. 83). The civilian population “must be the primary object of the attack and not just an incidental victim of the attack” (para. 76). The state or organisational policy may be “made by groups of persons who govern a specific territory or by any organization with the capability to commit a widespread or systematic attack against a civilian population”. An attack that is “planned, directed or organized - as opposed to spontaneous or isolated acts of violence” (para. 81) is sufficient to satisfy this requirement.

The list of prohibited acts in article 7(1) strikes twice against the statement ‘the use of chemical weapons is a crime against humanity’: first, at the level of contextual elements; and secondly, in respect of the prohibited acts. An ‘attack’ is comprised of prohibited acts referred to in article 7(1); and only those acts listed in article 7(1) may amount to crimes against humanity. The use of chemical weapons is not listed in article 7(1). Rather,  potential consequences of the use of chemical weapons are relevant, such as murder (article 7(1)(a)) and “other inhumane acts of a similar character intentionally causing great suffering, or serious injury” (article 7(1)(k)).  Thus, the consequences of chemical weapons, not their use per se, could amount to an attack as well as the prohibited acts. Although the use of chemical weapons and their terrible consequences often go together, they are distinguishable.

Assuming that the use of chemical weapons results in prohibited acts listed in article 7(1), several other criteria must be met before these consequences may amount to crimes against humanity. The attack must be widespread or systematic. The civilian population must also be the primary object of the attack. This element may be difficult to prove in an armed conflict, as it might be argued that chemical weapons were intended to be used against combatants and that the civilian population was an incidental victim.  However, it could be contended that the indiscriminate nature of these weapons means that any use must be regarded as making the civilian population the primary object of attack, despite any military motive. The attack must also be pursuant to a state or organisational policy. There are many possible scenarios in which this criterion would not be met. Chemical weapons might be deployed in violation of military orders; used in an unplanned or unorganised way; or used without the organisation’s active encouragement. Thus, even if the ‘use of chemical weapons’ is interpreted widely to include the consequences of use, only those consequences that are planned and sufficiently serious may amount to crimes against humanity.

• Concluding thoughts

The prohibition on the use of chemical weapons has more recognition as a war crime, rather than as a crime against humanity.  While the ‘mere’ use of chemical weapons can amount to a war crime, only the consequences of chemical weapons, not their use per se, may be crimes against humanity.  Why then is there such an emphasis in political rhetoric that any and all use of chemical weapons is a crime against humanity?  A cynic may suggest that the label ‘crime against humanity’ has more political currency than ‘war crime’, so that its use could encourage compliance and enforcement action. Whether or not the emphasis is strategic, what is clear is that international political actors, the media and the public are engaging with concepts of international criminal law in connection with the conflict in Syria. While there is arguably greater public awareness  of international criminal law as a result of this discourse, it would be ultimately detrimental if key legal concepts are confused.  While situations of mass atrocity may amount to crimes against humanity,  ‘crimes against humanity’ is not a byword for atrocity. In the interests of clarity, public education and with an eye to expectations of victims in any eventual prosecutions, concepts of international criminal law deserve more careful  treatment.

Saving Private Harhoff: Report by Judge Antonetti made public and more conspiracy theories

There doesn't seem to be a day that something new does not arise in the Harhoff saga. Today, the Presiding Judge of the Chamber, Judge Antonetti, has decided to make public the report that he wrote in the context of the disqualification procedure. The decision, in French, explains the recent behind this, and annexes the report itself.

I'll start with the only thing I agree with in the decision: Rule 15bis does not apply to the current situation, as I explained in my previous post.

More importantly, this decision in my view confirms what I mentioned yesterday in relation to there clearly being a problem at the tribunal between the judges, as Judge Antonetti obviously comes out in favor of Judge Harhoff. I also don't know what Judge Antonetti is suggesting when he says in his decision that both Judges Moloto and Hall had sat on benches with Harhoff. Why is that relevant? Is Judge Antonetti suggesting that they were biased against Judge Harhoff? if so, then he should be more explicit. If not, then he should not have made this comment at all.

Both the decision and the report are interesting in showing the state of mind of Judge Antonetti, which echoes what was in the requests for clarification: Judge Harhoff did nothing wrong. Both documents explicitly refuse to discuss the content of the letter, claiming that it is private correspondence that is protected under international human rights. I find that a little unconvincing. The content of the letter and what it might illustrate is one thing, its public or private nature is another. Can Judge Antonetti really claim that he would ignore the content of a private email by which a Judge would be telling friends that he had received a bribe to convict someone? it doesn't make sense.

In any case, Judge Antonetti puts forward a conspiracy theory of his own by focusing on the source of the leak of the letter. The decision says:

Il n'est pas à exclure qu'une entreprise de déstabilisation ait été ourdie par un tiers ou une entité disposant de moyens importants pour aboutir à cet effet. Seule une enquête sérieuse pourra permettre l'identification de !'auteur de la transmission des réflexions personnelles du Juge Harhoff au journal danois et de connaître les motivations réelles de cette transmission.

The Report goes into more detail:

En l'état des hypothèses à envisager, soit il s'agit d'un des destinataires de la correspondance, soit d'une autre personne ou entité qui aurait pénétré l'ordinateur ou le réseau de communications du Juge Harhoff pour transmettre à ce journal ledit document. Le résultat a été évident : il y a eu la volonté manifeste de déstabiliser à titre principal notre Tribunal et de porter atteinte à la réputation du Juge Meron et à titre secondaire d'attenter à l'honneur du Juge Harhoff sur le terrain de l'impartialité et à titre accessoire, de porter atteinte le cas échéant à l' Accusé Vojislav Seselj lui-même pour le cas où il y aurait in fine un changement de Juge

 In a nutshell, for those who don't read French, according to Judge Antonetti, the person who leaked the letter was trying to destablize the tribunal, affect the reputation of Judges Meron and Harhoff and cause prejudice to Seselj. I find the reasoning quite extraordinary. For one, as I said before, the content of the letter is what is relevant, not how it was made public.

Second of all, I'm happy to be able to be of help to Judge Antonetti on this blog: I know the culprit. I know who tried to destabilize the tribunal and smear Judge Meron's reputation through publicizing these comments. It was Judge Harhoff. He did not write this letter to his wife and close childhood friend. He wrote this letter to over 50 people. I might be a sociopath, but I cannot think of 5 people I would trust with such comments, let alone 50. Trying to move the spotlight away from Judge Harhoff's own responsibility in this matter will just not work.

The decision even suggests that contempt proceedings could be initiated against the person who leaked the letter! Which is thoroughly ridiculous in my opinion. Already, the contempt procedure at the tribunal is subject to criticism on a number of levels, if it were to be used on such an issue, then it would be simply a mockery. If any legal action should be taken in relation to the letter, it could be by Judge Meron for defamation...

The other quite extraordinary claim in the documents is that this whole disqualification process would be affecting Seselj's rights, despite the fact that he filed the motion in the first place! Apparently, this argument also appeared his the Prosecution motion for reconsideration, as pointed out by Kevin Jon Heller on twitter yesterday:

@dovjacobs @Rachel_IWPR Most offensive in Pros motion is claim that reconsideration is necessary to protect #Seselj rights! (Para. 5.) #ICTY
— Kevin Jon Heller (@kevinjonheller) September 3, 2013

The only basis for making this claim is that for Judge Antonetti, as for Judge Agius in the order on the follow up to the disqualification that I discussed in my previous post, the option of pronouncing a mistrial and freeing Seselj is just not on the table. This is for me the real threat to Seselj's rights, not the disqualification of Judge Harhoff.

Ultimately, what Judge Antonetti is saying is that he trusts Judge Harhoff and doesn't think that he is lacking in impartiality. In order to make that feeling known, Judge Antonetti refers to his impressions during deliberations, while saying that these are of course confidential. Which essentially means that this feeling is unsubstantiated for the outside world and has to be put in balance with the content of the letter, which is available to the outside world. The Panel decided that the letter was evidence of appearance of bias, irrespective of Judge Antonetti's feelings, and that is the end of the matter.

What these documents show is that Judge Harhoff still has a lot of support at the tribunal, who are trying to save Private Harhoff. However, I think this only works in Spielberg movies and I would be very surprised, and thoroughly dissapointed, should the disqualification decision be reversed. The bottom line is that, whatever the means chosen, and I would arguably agree with those who say that the disqualification route was not necessarily the most convincing, the end result of removing Judge Harhoff from any activities at the tribunal is the correct one. The rest is just commentary.

Movement on the Harhoff Saga at the ICTY: an institution grasping at straws and a delusional judge

Today has seen a sudden flurry of activity in response to the disqualification of Judge Harhoff last week (see here and here). The Vice President has issued an order on the follow up to the decision, Judge Harhoff has filed a request for clarification and so have the two remaining judges on the trial chamber (Judges Lattanzi and Antonetti) and the Prosecutor has filed a motion for reconsideration.

This is a lot of information to digest, but just a couple of preliminary thoughts. I don't have much to say on the motion for reconsideration by the Prosecution. It essentially considers that the Panel made a misapplication of the standard for disqualification and erred in fact by making findings without evidence. I'm not sure this will go anywhere, but we will have to see.

• The Order from Judge Agius (acting President of the Tribunal)

The order considers that Rule 15, while providing for the nomination of a new judge, does not address the impact on a case. The decision is therefore taken to apply Rule 15bis which relates to the procedure to be followed in the absence of a judge for a long period of time. The choice is made because "in the interests of fairness and transparency, the procedures applicable under Rules 15bis(C) and 15bis(D) of the Rules ought to be applied to it mutatis mutandis", without much further explanation.

The relevant parts of this rule are the following:

(C) If a Judge is, for any reason, unable to continue sitting in a part-heard case for  a period which is likely to be longer than of a short duration, the remaining  Judges of the Chamber shall report to the President who may assign another  Judge to the case and order either a rehearing or continuation of the  proceedings from that point. However, after the opening statements provided  for in Rule 84, or the beginning of the presentation of evidence pursuant to  Rule 85, the continuation of the proceedings can only be ordered with the  consent of all the accused, except as provided for in paragraphs (D) and (G). 

(D) If, in the circumstances mentioned in the last sentence of paragraph (C), an  accused withholds his consent, the remaining Judges may nonetheless decide  whether or not to continue the proceedings before a Trial Chamber with a  substitute Judge if, taking all the circumstances into account, they determine  unanimously that doing so would serve the interests of justice. This decision  is subject to appeal directly to a full bench of the Appeals Chamber by either  party. If no appeal is taken from the decision to continue proceedings with a  substitute Judge or the Appeals Chamber affirms that decision, the President  shall assign to the existing bench a Judge, who, however, can join the bench  only after he or she has certified that he or she has familiarised himself or  herself with the record of the proceedings. Only one substitution under this paragraph may be made.

I'm not entirely convinced by the application of this rule to the current situation. For one, it's obviously not applicable. As Judge Agius acknowledges, this cannot be "strictly speaking be described as part-heard". This is an understatement, as the closing arguments concluded 18 months ago! Second of all, the situation here is very different because it is the result of a finding of partiality, so it cannot be business as usual. One has to consider whether the whole process is not viciated from the outset and whether an end of the proceedings is not the fairest solution for the accused. In this sense, I think it could have been perfectly possible for Rule 15 to apply, and for the newly constituted bench to decide proprio motu to put an end to the proceedings, or declare a mistrial, without needing 15bis.

This is in fact the most scandalous effect of the use of Rule 15bis: it takes off the table the possibility of just ending the proceedings as an abuse of process!

Harhoff disqualification: no impact on the Seselj Case? Possibly...

I suggested in my previous post that the disqualification of Judge Harhoff from the Seselj case could mean that the trial would have to start over from scratch, or be terminated because a retrial would violate Seselj's rights.

The decision to disqualify says nothing on this point, and my analysis was based on what I thought was a common sense assessment of the situation, but it does not seem to be borne out by the legal provisions on this issue.

Indeed, Rule 15 of the Rules of Procedure and Evidence provides that:

A Judge may not sit on a trial or appeal in any case in which the Judge has a  personal interest or concerning which the Judge has or has had any association  which might affect his or her impartiality. The Judge shall in any such  circumstance withdraw, and the President shall assign another Judge to the case. 

The last sentence would seem to indicate that a new judge can be assigned, and that things could therefore proceed as planned. I could not find any example of disqualifications at the ICTY (I'm happy for readers to direct me to such cases), nor do I find any help in the ICC legal framework on this matter, so for all intent and purposes, Rule 15 is all I have to go by, and I don't particularly like it.

First of all, a couple of months before the issuance of the judgement, I don't see how a new judge could familiarize himself sufficiently with the case to provide informed opinions on the evidence and the applicable law. If anything, this would most certainly push back the judgement to far ahead in the future so that any findings made in deliberations be revisited with the new judge.

Second of all, Harhoff's lack of impartiality (UPDATE: changed from 'bias') should not just seen in relation to the formal issuance of the judgement on guilt or innocence. It possibly pervaded every step of the proceedings since the beginning, be it in various kinds of decisions, or the way witnesses were asked questions, for example. I don't see how one can consider that the whole process is not tainted. If we were a couple of weeks into the trial, then a case could be made that the bias did not affect the fairness of the proceedings, but so close to the end? I don't find this convincing.

In addition, if that is indeed the solution, then I don't see the point of having the reserve judge procedure (Rule 15ter ICTY RPE). Isn't that to avoid that a trial start from scratch should something happen to one of the judges? Surely, if one could judge appoint a new judge and continue without interruption, then the reserve judge would never be necessary.

All in all, I would therefore be quite dissatisfied should there be no consequences on the actual proceedings of this disqualification. Should the trial chamber proceed in this fashion, it would add a mockery of justice to a mockery of justice.

Nightmare scenario at the ICTY: Judge Harhoff disqualified

The news broke an hour ago: Seselj's long-winded motion to disqualify Judge Harhoff from his case has been successful. His motion was based on the letter that Judge Harhoff sent  in the spring to a number of his friends, and that I commented on extensively on this blog (here and here). Basically, the panel found in its decision that 

In the Letter Judge Harhoff has demonstrated a bias in favour of conviction such that a reasonable observer properly informed would reasonably apprehend bias

This is quite big news and the first public sign, to put it mildly, that someone at the ICTY is unhappy with Harhoff's conduct. The question now is of course what the consequences of this decision, given that the decision considers that Judge Harhoff's bias is general, not specific to the Seselj case. 

In the Seselj case, first of all, does this now mean that the trial has to start over from scratch? Given the tortured history of this trial, it's difficult to imagine that the ICTY wants this, and Seselj would have a good claim to being released because a new trial would constitute an abuse of process. 

In the Stanisic case on appeal, there is a pending motion to admit Harhoff letter as new evidence. I don't see how the Appeals Chamber can decently refuse that motion now. And more, I think this could be a strong basis for a new motion in review of the Trial Judgement. 

Finally, in the Delic case, his lawyer filed a motion for revision, with the added difficulty of the defendant being deceased (i commented on that point here). Again, this new decision strenghtens the motion. 

More generally, does it mean that every case that Judge Harhoff was on is now subject to revision? I haven't done a list of those cases yet, but given that he has been at the ICTY for some years now, this could have serious consequences. UPDATE: there is only the Dragomir Milosevic case, but there hasn't been any movement from there yet, that I know of.

Judge Harhoff was also Senior Legal Officer in Chambers for 10 years, so, to stretch things a bit, the cases he worked on could theoretically be affected. 

What is clear is that this most certainly puts an end to Judge Harhoff career at the ICTY. It was already surprising that he had not resigned before and this decision means that he cannot decently work there anymore. He probably should have resigned before being fired. 

A final thought: there is of course a certain level of hypocrisy here. I, like many, have always thought that the ICTY, and international criminal justice in general, is biased in favour of convictions, and has developed tools to make these easier, in terms of rules of evidence or modes of liability, such as JCE. It seems slightly unfair that Judge Harhoff should pay for saying publicly what a lot of people at the ICTY think, including among the judges. Therefore, this decision should not be taken as a reason to continue to reflect on the biases of the system that go well beyond the fate of just Judge Harhoff. 

Why the Vienna Convention should not be applied to the ICC Rome Statute: a plea for respecting the principle of legality

Dapo Akande and Kevin John Heller are engaging in a really interesting discussion on how the application of the Vienna Convention on the Law of Treaties (VCLT) might allow us to interpret the Rome Statute to include the use of chemical weapons as a discrete war crime. Dapo argues that it can and Kevin, while agreeing with Dapo, regrets that this result would be attained at the expense of states’ consent and explicit desire to exclude such a provision in the statute.

What I find interesting in those posts is that they both take for granted that the VCLT in fact can be applied to the Rome Statute. Of course, any first year international law student will tell me that this is obvious and unquestionable: the Rome Statute is a treaty and therefore, the VCLT applies. However, I’m not entirely sure I agree.

I've always found the question of the applicable rules of interpretation to international criminal law statutes to be an underdeveloped aspect of the literature on the work of the tribunals. The applicability to the statutes of the VCLT, or at least the rules contained in it, has rarely really been questioned. The case law of the ad hoc tribunals is full of judgments and decisions, which either explicitly or implicitly refer to those rules, despite the fact that as UNSC Resolutions, the Statutes of these institutions should not necessarily be looked through that lens. In a recent decision, the Appeals Chamber of the Special Tribunal for Lebanon even went as far as to claim that the VCLT applies to “any internationally binding instrument, whatever its normative source". As for the ICC, Judges have, most would say logically, applied the VCLT to the Rome Statute as a treaty.

This situation is understandable. As international lawyers, the VCLT is our default go-to document to look for rules of interpretation of international documents. But I believe this fundamentally ignores the specific nature of international criminal law and the central role of the principle of legality. This is why, in an upcoming book chapter, the first draft of which can be found here, I suggest my own, somewhat unorthodox (according to everyone I've spoken to about them) views on the applicability of the VCLT to the Rome Statute in the first place. In a nutshell, what I argue in my Chapter is that the requirements of the principle of legality in ICL would warrant against the application of the broad and ultimately discretionary rules of interpretation of the VCLT.

For one, they have been thoroughly been misused in the past, with unacceptable references to the "object and purpose" approach to essentially introduce morality as a way to circumvent strict legality. Indeed, you often see broad references to the “end of impunity” or various variations on the protection of human dignity as part of the “object and purpose” of the Rome Statute to justify expansive (some say progressive) interpretations of the applicable law. Also, I think that a rule such as that of subsequent practice of States (article 31(3)(b), VCLT) would often not be compatible with the non-retroactivity of criminal law. 

Second of all, and more technically, I put forward 2 series of arguments against the application of the VCLT to the Rome Statute.

The first one relates to the clear existence in Statute (compared to other international criminal tribunals so far) of lex specialis rules of interpretation, in terms of in dubio pro reo, strict intepretation and the prohibition of analogy (article 22). This therefore would exclude the lex generalis rules of the Vienna Convention. 

The second argument is a bit different. I think that the "nature" of a document depends not on the document itself, in an absolute and abstract way, but on the entity applying it and the entities it is applied to. In other words, the Rome Statute might sometimes be considered as a treaty and sometimes not. When it is applied by the judges of the ICC, it is an internal application of the Statute and it is therefore not applied qua treaty, but rather as internal rules of the organization. On the other hand, if two States were to engage in a dispute on the interpretation of the Rome Statute (for example in relation to duties to cooperation or duties to surrender accused), then the Rome Statute would apply qua treaty between them, and the VCLT would arguably be a valid point of reference.

This second approach, of the possible dual nature of an international document, is not unheard of. For example, the question arose in the the Kosovo Advisory Opinion, which I think completely fumbled the question of whether the constitutional framework was relevant international law for the dispute. The ICJ said that it was, based on the fact that it was formally an UNMIK Regulation, adopted pursuant to powers granted by the UNSC. I must admit I initially agreed with the ICJ, but on further reflection I do believe that because in that context it was meant to be an internal legal document not aiming at having international legal effect, it was not relevant international law at all (see my LJIL article for further discussion on this point).

To clarify, I don’t suggest that my proposal removes by magic any difficulty in interpreting the Rome Statute. There will always be cases of ambiguity, real of perceived, that will probably require a balance of interests between different possible interpretations. I just want to reintroduce one interest that is somewhat often forgotten in these debates: that of the accused and more generally, the application of the principle of legality. These interests should come first in the discussion, not last as is often the case. For example, in the above mentioned STL Appeals Chamber decision, there is a lengthy discussion of all the different rules of interpretation contained in the VCLT, and only at the very end is it mentioned that, if nothing else works to solve an ambiguity, then the interpretation most favourable to the accused should be adopted. This, for me, is the wrong logic. The first rules to go to are the ones which favor the defendant.

Applied to Kevin and Dapo’s conversation, this doesn’t mean that I would necessarily disagree with them, just that I would approach things differently.

For me, Dapo’s excellent interpretation needs to pass an additional test, that of being foreseeable by the defendant. I’m also not sure it is not in violation of the prohibition of expansion by analogy.

As for Kevin’s points about the importance of State consent, I think that it is not always a good starting point. Indeed, I don’t care what States wanted. If they drafted an ambiguous provision, the interpretation most favorable to the accused must be adopted, even if the travaux préparatoires indicate that the other interpretation was favored. Drafters should do their homework. If they plan to send someone to jail for a considerable period of time based on the Statute, the least they can do is make this crystal clear in the wording of the provisions. On the other hand, in the specific case of chemical weapons, if there is wide public knowledge of States wanting to exclude from the Statute, then it can be relevant in going to show that prosecution specifically for such conduct was not foreseeable.

All in all, given the regular violations of the principle of legality in international criminal case law, my proposal therefore aims, beyond a change in the applicable rules of interpretation, at a change in the state of mind of those applying those rules, be they judges or academics.