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

Posted on October 3, 2013 | 9 comments

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.
Continue reading →

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Posted in syria

Taylor Judgment: a "victory for justice"?

Posted on September 26, 2013 | 5 comments
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:

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.

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Posted in scsl, taylor

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

Posted on September 26, 2013 | 2 comments
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. Continue reading →

2 Comments

Posted in scsl, sentencing, taylor

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

Posted on September 18, 2013 | 2 comments
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 expressedby the Bureau of the Parliamentary Assembly of the Council of Europe. US President Obama also labelledchemical weapons “a crime against humanity, and a violation of the laws of war”.  The use of chemical weapons is prohibited under both conventionaland customaryinternational 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.
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Posted in chemical weapons, Crimes against Humanity, syria, war crimes

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

Posted on September 4, 2013 | 7 comments
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. Continue reading →

7 Comments

Posted in harhoff, icty