Tag Archives: icc

A brief comment on the Chui Appeals Judgment at the ICC

Posted on March 17, 2015 | 2 comments

Recent weeks have been quite busy and I’ve had no time to blog, despite some important decisions coming out, such as the Appeals Judgment in the Chui case or the Appeal Judgment on reparations in Lubanga.

In what promises to be my shortest post ever, I still wanted to put out there a couple of thoughts on the Chui Judgment.

It confirms the acquittal, but Judges Tarfusser and Trendafilova provide an interesting dissent with their take on the application of the standard of proof and the issue of the supposed violations of the fair trial rights of the Prosecution. They raise important issues which continue to spark debate in the practice of the Court.

On the question of the assessment of evidence, it is the classical question of what it means to assess the evidence “as a whole”, the Trial Chamber being criticised by the dissenters for having excluded some evidence in isolation of other evidence. It’s a difficult question, but personally I’ve always been skeptical of the “overall assessment” approach, which is a possible way for judges to avoid discussing the credibility of individual pieces of evidence and put forward a general impressionist understanding of the case, which is then difficult to challenges.

On the question of the fair trial rights of the Prosecution, I continue to think that the concept makes no sense. The Prosecution represents the institution and cannot technically have rights. Rights are there for the accused, not for the prosecuting authority. Ultimately, this might of course just be a question of semantics, in the sense that there exist procedural guarantees in-built in the trial process which can benefit both Prosecution and Defense. But I do think that conceptually, it is important to be very precise on the langage used.

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Posted in Chui, ICC

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Are all crimes committed in Palestine between 2002 and 2014 now beyond the reach of the ICC? Possibly.

Posted on January 6, 2015 | 8 comments

I wish all the readers of this blog a very happy New Year and thank you for your support over the years. Do not hesitate to spread the word about spreading the jam!

The new year started with a bang: Palestine has decided to join the International Criminal Court (ICC). It seems unavoidable to write about the issue and there have been a flurry of commentaries in the past week (more particularly see the great overviews from David Luban at Just Security and Amanda Taub at Vox) which comprehensively cover a number of legal issues that arise now and are likely to arise in the future. I won’t re-hash these issues now, as there will be ample time to do so when (if) the time comes.

The one point I want to focus on here is the question of Palestine’s retroactive acceptance of jurisdiction back to last summer.  Indeed, in addition to joining the ICC (which, on principle, only has prospective effect as per Article 11(2) of the Rome Statute), Palestine also lodged a declaration under Article 12(3) accepting the Court’s jurisdiction back to the 13 June 2014, in order to cover last summer’s war in Gaza.

This raises the interesting question of whether Palestine can actually do this and whether this falls within the parameters of both Article 12(3) and 11(2). Continue reading →

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Posted in ICC, palestine

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Guest Post: A Matter of Distinction Part II: participation of children in hostilities following the Lubanga Appeal Judgment

Posted on December 19, 2014 | Leave a comment

[I’m delighted to welcome Catherine Harwood again with her thoughts on the recent Lubanga Judgment’s take on active participation in hostilities]

  • Introduction

On 1 December 2014, the Appeals Chamber of the International Criminal Court dismissed Mr Lubanga’s appeals against conviction and sentence. Mr Lubanga had been convicted of the war crimes of enlisting and conscripting of children under the age of fifteen years and “using them to participate actively in hostilities” under Article 8(2)(e)(vii) of the Rome Statute, and was sentenced to 14 years imprisonment.

Mr Lubanga’s grounds of appeal included that the Trial Chamber had misconstrued the concept of ‘active participation in hostilities’ in Article 8(2)(e)(vii). In a previous post I discussed his appeal and supported the distinction made by the Chamber between ‘active participation’ in Article 8(2)(e)(vii) and other manifestations of ‘active’ or ‘direct’ participation in hostilities in international humanitarian law (IHL). I cautioned against the adoption of a unitary concept, writing that it was preferable to retain this distinction in light of the drafting history and purpose of Article 8(2)(e)(vii). I argued in favour of a bifurcated approach “in order to discourage the use of children in roles that place them in harm’s way, while also preserving their status as protected persons until they participate directly in hostilities.”

This contribution follows up on that post, after the delivery of the Appeal Judgment. In upholding the  conviction and sentence, the Appeals Chamber endorsed the distinction between ‘active participation’ in Article 8(2)(e)(vii) and the notion of ‘direct participation in hostilities’. However, it concluded that the Trial Chamber had erred in its interpretation of ‘active participation’. This contribution argues that despite some elements of ambiguity, the Appeals Chamber’s ‘link to combat’ approach is workable and appropriately connected to the underlying protective purpose of the prohibition. Continue reading →

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Posted in ICC, icl, IHL, lubanga

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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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