Monthly Archives: October 2013

The ICC and Africa: In defense of the African Union

The past few weeks have provided a lot interesting developments on the question of the relationship between the ICC and Africa, understandly linked to the trials of Kenyatta and Ruto at the ICC. At the Extraordinary Session of the Assembly of the African Union earlier this month, a decision was issued calling for, among other things, 1) the adoption of a policy at the ICC for not prosecuting sitting head of states and 2) more particularly in the Kenyan situation, for the cases against Kenyatta and Ruto to be deferred in application of Article 16 of the Rome Statute. Just a couple of days ago, a letter was sent to the President of the Security Council asking it to act accordingly.

These developments have received a lot of criticism from a number of organisations that see this as a step back in the move forward to fight impunity. However, I think that some perspective needs to be reinjected in the discussion.

  • Two preliminary points

Before commenting on this, two preliminary points. First of all, there is no doubt that, as a matter of law, the ICC can prosecute sitting heads of state in light of Article 27 of the Statute. This might be a contested issue for non-state parties such as Sudan, but is unquestionable for a state party who has accepted this when joining the Court. So the African Union suggestion for not prosecuting sitting heads of state would be a purely prosecutorial policy issue, not a legal issue.

Second of all, I’m not a big fan of the unsurprising anti-colonial rhetoric that follows discussions on the issue. Last May, the Ethiopian Prime Minister said that “the process has degenerated into some kind of race hunting”. More recently, the address from Kenyatta at the AU Summit was full of this kind of rhetoric. I’m personally not entirely convinced that this criticism is true. I wrote a couple of posts on the issue a few years back (here and here) which stress this point.

More importantly, I think this is not a very useful approach because it clouds the fact that the problems with the ICC, while revealing themselves in relation to Africa today, are actually more structural. Making this an African problem is in my view short-sighted. Indeed, the tension between peace and justice, the critical discussion of the poor prosecutorial record in building cases, the poor exercise of prosecutorial discretion or the legal ambiguities of the Rome Statute itself are of concern to everyone, not just Africa.

So after this long introduction, a short defense of the African Union position on the two points mentioned above: immunity for sitting heads of states and deferral of the Kenya cases.

  • Granting ICC immunity to sitting heads of State?

On the first point, I don’t see the argument as being so scandalous on principle. Any first year international law student will (or at least should) learn within a few weeks that the personal immunity of sitting heads of state (i.e, the immunity from arrest and prosecution for any act, whether official or private, committed while still in office) is absolute in foreign courts, even for international crimes, in order to allow them to properly exercise their functions in the international arena. There have been some developments on the functional immunity of state officials (i.e, immunity that covers certain acts even when having left office), but no such developments in relation to personal immunity.

Of course, this applies only to inter-state relations and protects the person from domestic prosecutions. International tribunals are arguably different, as the ICJ pointed out in the Arrest Warrant Case. Moreover, Kenya signed and ratified the Rome Statute, in full cognizance of Article 27. Nonetheless, I do think it is useful to recall that the position of the AU is the standard position of international law on this issue, and that international tribunals are the exception. This might make human rights activists cringe, but that is the reality of the law.

And it should be pointed out that this is exactly the logic behind the Pre-Trial Chamber’s recent excusal of Kenyatta from his trial, where the judges affirmed that:

Whenever a national trauma is inflicted upon a country, the eyes of the nation invariably turn to one person—the executive head of state or govemment—with questions and for answers and demands for solutions and hopes of future safety. It is so with natural disasters or massive accidents or intentional acts of terror. But there is much more that the executive head of state or govemment must do in good faith, often unsung and out of sight, to prevent national traumas. And, beyond the management and prevention of emergencies, he or she does so much more. Indeed, the functions of the executive head of state of the average nation will be too numerous to list here. In the outlines, the picture is usefully framed in the following words of Vattel, writing in his Law of Nations: ‘a faithful administrator, to watch for the nation, and take care to preserve it, and render it more perfect; to better its state, and to secure it, as far as possible, against everything that threatens its safety or its happiness.’ Hence, the sovereign functions of an executive head of state or govemment are significantly different from those of any other citizen—even of those who run the most important commercial enterprises within the state.

  • Deferring the cases of Ruto and Kenyatta

On the second point, that of the possible use of Article 16, I don’t see what is so shocking either. This article provides that:

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

It was a strongly contested provision during the negotiations and was perceived as an unacceptable intrusion of politics in the legal process. Ultimately, it was a compromise between those who wanted no Security Council involment at all, and those who argued that investigations should be approved by the Security Council before being able to proceed further (as Article 23 of the 1994 Draft Statute for the ICC actually proposed for situations already being dealt with by the UNSC).

However, we are not in Rome anymore and Article 16 does exists. Those saying that it should never be used because it would lead to impunity seem to be missing this simple point: apparently, for some people, it is sometimes preferable to delay prosecutions in order to favour other interests. You cannot just claim that it cannot be used and that’s it. For example, Richard Dicker from Human Rights Watch has claimed that: “This request comes from out of bounds; the Kenyan president seems determined to forestall his day in court”. This is not useful. Of course Kenyatta wants to “forestall his day in court”, that is the whole point of Article 16! The real question is when will it ever be considered to not be “out of bounds” ?

Given this fact, and following this logic, I don’t see what would be so wrong to use the article now. Isn’t that exactly what it was designed for, whether the human rights activists like it or not? Indeed, delaying the prosecution of a sitting head of state for a limited period of time, in a difficult political and social climate, who has been elected by the population despite his indictment at the ICC does not seem entirely unreasonable to me.

There is of course no easy answer to this tension between, to put it simply, Peace vs. Justice (or even any answer at all). But this is an important normative and philosophical debate on perceptions and approaches to (criminal) justice in the international sphere. This debate deserves more subtle debators than the human rights radicals on the one side and the anti-colonial preachers on the other.

Humanitarian Intervention and Use of Force: Thinking outside the box of the UN Charter (a short comment on Koh, Heller, Kaye and Stahn)

I’ve been following with much interest the debate initiated by Harold Koh on the legality of humanitarian intervention under international law over at the Just Security Blog and to which such esteemed scholars as Kevin Jon Heller, David Kaye and Carsten Stahn have responded, prompting a response by Harold Koh.

I resisted until now entering the fray of the discussion, because it seemed to me that, albeit very brilliantly, these authors were basically covering familiar ground and points of contention in the ongoing discussion on this issue. I tend to agree that one should be clear on the distinction between law and policy, and be clear on the fact that the latter having absolutely no obligation to abide by the current state of the former. In relation to policy, I personally have no opinion on what is preferable and will leave this to my colleagues, who actually have an influence in policy discussions…

What triggers this post is a small methodological point on the framing of the argumentation and possible confusion between the UN Charter and general international law. Indeed, the heart of the legal discussion seems to be how to interpret Article 2(4) of the UN Charter which relates to the prohibition of the threat or use or force, and whether this might be read to allow some limited forms of humanitarian intervention outside a UNSC Chapter VII authorization. The “textualists” (Heller, Kay, Stahn) say that cannot, while the “progressist” (Koh) thinks that it is, based both on a reading of the UN Charter and its objectives and examples of developing practice in that direction.

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Some Thoughts on Social Media and Academics: will all academics need to do it in the future?

It’s fitting, I think, that my first post on my the new site should be about the question of social media and academics. I was on a panel discussion organized by the School of Human Rights Research at the university of Utrecht on the issue today, along with Antoine Buyse from the prestigious ECHR Blog and Laura van Waas from the Statelessness Programme Blog of Tilburg University.

A number of issues were addressed, such as how to choose and use particular types of social media platforms (such as twitter, facebook and blogging) and how to valorize your work and reach out to different audiences. All this was addressed by a very good presentation by Jessica Dorsey, from the Asser Institute, who has truckloads of experience in this field already, particularly for her excellent work over at Opinio Juris.

More generally, the discussion brought to mind some thoughts, which I had already partly discussed here, and which are all linked to the basic idea that these new online forms of academic expression are here to stay. This has a number of consequences.

1) This phenomenon cannot be ignored by traditional actors in the field, who must acknowledge that there is no going back from the age of blogs and authors wanting their drafts on SSRN very quickly. Of course, this has consequences for the whole market structure and dynamics and it is a problem, in terms of copyright for example, but the issue must be tackled head on, if not everybody will lose from the situation.

2) One particular way in which I think blogs will have an impact on traditional publishing is on certain types of articles. For me, the casenote will be less and less valuable in a print edition of a journal that comes out every 3 months. By that time, dozens of blogs have produced extensive commentary on particular judgements or cases. Only more in-depth pieces which include the judgment in broader discussions will make sense on such a long publishing timescale.

3) Funnily enough, I see a lot of publications in a number of (even prestigious journals) which originated as blogpost and frankly don’t seem to have been changed much from their online publication to print, other than some footnotes being added. I don’t know if it is a good thing or not, but it is a point rarely made.

4) New forms of collaborations must be developed, even more than they have been in recent years. In that spirit, a number of journals, including the Leiden Journal of International Law, organize regular online symposiums on Opinio Juris on some of its articles which bring in some element of dynamic debate to the more in-depth process that goes into writing and understanding an article. Other forms of collaboration could include the possibility for allowing online responses to published articles, and rejoinders, as is done on EJIL Talk!.

And now for a wild prediction. I’m wondering if within a few years, this kind of skill will not become an essential part of the basic package that might be expected from academics, maybe not on the same level, but along with research skills, capacity to publish traditional articles and teaching. And I mean this both from a technical point of view and one the substance. From a technical point of view, there will come a point where not knowing how to use twitter or promote your work on internet might be just as much a handicap as not knowing how to use a computer. On the substance, writing for the internet requires certain skills which are not the same as traditional academic writing. In this sense, I think that the idea that some people have expressed in the past that any schmuck with a keyboard can write something online without the safeguards of peer-review or traditional codes of academic writing is somewhat misplaced. Indeed, ultimately, for all forms of expression, the litmus test of quality is always the same one: is your audience happy or not? On this, there is no difference between traditional academia and online blogging in answering the age-old question: are you good at what you do or not?

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.