Post Conflict Justice and the ICC: some thoughts on false expectations and the illusion of staying together “for the kids”

Posted on December 15, 2014 | 4 comments

At the end of last week, I attended a very interesting conference organised by the Grotius Centre of Leiden University on the “Impact and Effectiveness of the International Criminal Court”, the final conference of a several year project on post conflict justice and local ownership. The wide-ranging list of speakers covered a large number of topics, such as the question of legacy of the ICC, the insertion of the ICC in the restorative justice and peace debates or the operation and impact of the principle of complementarity.

I was privileged to be able to present my thoughts on complementarity which I called “a tale of false promises and mixed up chameleons”. You can read an extended version of my speaking notes here, on the excellent new website on post conflict justice (postconflictjustice.com) launched at the conference. In them, I analyse the current case-law on the issue and suggest that it does not allow the principle to realize the broader goals assigned to the ICC of promoting the rule of law and local ownership.

Ultimately, however, I question whether these goals should be assigned to the ICC as a function in the first place in the following way: Continue reading →

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Posted in Complementarity, ICC

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BREAKING NEWS: Charges Dropped by the ICC Prosecutor in the Kenyatta Case

Posted on December 5, 2014 | 2 comments

Earlier this week, the Trial Chamber in the Kenyatta case at that ICC told the Prosecutor to either bring new evidence or drop the charges. I predicted without to much doubt that the charges would indeed be dropped. Just this morning, the OTP promptly confirmed this in a press release and in a notice of withdrawal filed with the Trial Chamber.

As I said, this was the only possible outcome, given that the Prosecutor herself had acknowledged that, as things stood, there was not enough evidence to prove the case beyond a reasonable doubt. I will not repeat here what I think are the consequences of this turn of events for Kenyatta, the Court and the OTP. I just want to add three extra points. Continue reading →

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Posted in ICC, Kenya, Kenyatta

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An ICC Trial Chamber brings the Kenyatta case closer to an end

Posted on December 3, 2014 | 3 comments

[Cross-posted on Invisible College]

Today, a Trial Chamber at the International Criminal Court (ICC) issued two decisions in the case against President Kenyatta of Kenya. Together, these decisions bring the case yet closer to a close, even before the trial even started. As you might know, a few weeks ago, the Trial Chamber held two status conferences at which was discussed the question of Kenya’s alleged lack of cooperation with the Prosecutor’s investigation, the OTP request for another adjournment of the trial and the Defense’s corresponding request for a termination of the proceedings.

Today’s decisions when read together can only be read as an unmitigated disaster for the Office of the Prosecutor (OTP). In the cooperation decision, the Trial Chamber, while recognizing some elements of bad faith and finding overall non-compliance (§78) on the part of Kenya, ultimately considers that it would be inappropriate to make a referral of non-compliance to the ASP because ultimately “while cooperation by State Parties is crucial for the functioning of the Court, the primary responsibility for investigation lies with the Prosecution” (§85). In light of this, the Chamber considered that the OTP did not do all it could to follow through on its own request for cooperation. Continue reading →

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Posted in ICC, Kenya, OTP

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The Lubanga Appeals Judgment: another nail in the coffin of the Confirmation of Charges Procedure?

Posted on December 2, 2014 | 1 comment

On the 1 December 2014, The Appeals Chamber of the International Criminal Court (ICC) issued its Judgments on the Lubanga Trial Judgment and Sentencing Judgment. These judgments bring to a final close the first trial of the Court, nearly 9 years after Lubanga was transferred to the Court and nearly 3 years after the Trial Judgment. The Appeals Chamber confirmed everything, both the judgment and the sentence, with a partially dissenting opinion from Judge Song and a very strong dissent from Judge Usacka.

This trial has been a regular feature of this blog (see more particularly discussion of the Trial Judgment here, here and here and of the sentencing Judgment here and here). If you go through past commentaries of the trial, you will note that a number of issues have created controversy over the years: Prosecutorial miscond… sorry, negligence in relation to the use of intermediaries, the relevancy of evidence of sexual violence or whether the definition of co-perpetration includes a “control over the crime” criteria as imported out of thin air (or rather German criminal law doctrine) by a number of Chambers at the Court. More generally, this was a first opportunity to test the “Ocampo Legacy” at the appeals level. So, how did the Appeals Chamber do? Continue reading →

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Posted in ICC, lubanga

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The Gaza Flotilla, Israel and the ICC: Some thoughts on Gravity and the Relevant Armed Conflict

Posted on November 11, 2014 | 5 comments

As I briefly mentioned last week, the Office of the Prosecutor at the ICC has declined to open an investigation into the incidents that surrounded Israel’s dealing with the flotilla of boats that attempted to break the blockade of Gaza in 2010. The general context has been largely documented, both in the press and in reports issued since the incidents. In fact, few single incidents have led to the production of so many reports, both domestic and international, in recent times.

The OTP’s analysis relies heavily on these reports to come to its conclusion that, while there may be some reasons to believe that war crimes have been committed, the situation is not of sufficient gravity to warrant the opening of an investigation. As noted by Kevin Jon Heller,  the Comoros, who referred the situation in the first place, can “appeal” the decision, but the best that it could obtain is that a Chamber simply asks the OTP to reconsider its decision,  without any power to force it to actually open an investigation.

There is a lot to say about the document produced by the OTP, I just wanted to comment on two points: gravity and the nature of the armed conflict (for very interesting early reflections on the OTP’s reasoning, see Michael Kearney’s points over at Opinio Juris).

Continue reading →

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Posted in gaza, gravity, ICC, Israel