Author: Joanna Nicholson

Call for papers: Ensuring and Balancing the Rights of Defendants and Victims at International and Hybrid Criminal Courts

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Pluricourts, University of Oslo, 30-31 August 2018

International and hybrid criminal tribunals (ICTs) are by definition not human rights courts or bodies. Nevertheless, human rights are firmly embedded within the legal framework and practice of ICTs. This is particularly so regarding the rights of defendants and victims. Human rights approaches to international criminal justice can be decisive in achieving a balance between defendants and victim rights at ICTs.

At an institutional level, human rights function as important standards that help both to assess and enhance the legitimacy and effectiveness of ICTs. That a defendant has received, and is perceived as having received, a fair trial is vital to the legitimacy, both of the ICT concerned and of the international criminal justice project as a whole. Assuring the human rights of defendants at an international level is not simply a case of transposing domestic standards; rather, a host of complex considerations come into play.

In turn, ICTs initially relegated victims to the role of witnesses. However, the International Criminal Court and subsequent ICTs have expanded their role to include victim participation and/or reparations. Despite the (potential) benefits for victims, critical voices have pointed out that this expansion may compromise defence rights and effective and efficient proceedings.

At the procedural level, the instruments and case law of ICTs detail the rights of the defendant at different procedural stages: as suspect, accused, and convict. This is also mutatis mutandis the situation concerning victims in their different roles: as witnesses, participants, civil parties and/or reparation claimants. These rights are often adapted from those provided for in major international and regional human rights treaties and other sources of international human rights law. However, the particular context and mandate of ICTs require that a mechanical application of human rights standards should be avoided.

This conference will comprehensively and critically evaluate the rights of defendants and victims before ICTs. It will bring together a mix of practitioners from the field of international criminal justice and scholars to exchange perspectives and to debate and discuss the issues. We seek papers pursuing empirical, normative, comparative or theoretical approaches, and encourage papers applying alternative theories such as feminist theory, critical legal theory and TWAIL perspectives. We welcome contributions from law and the social sciences, including philosophy, sociology, criminology, psychology and history. Authors may focus on one particular ICT, a sub-group of ICTs or ICTs as a whole. Topics can also examine a specific procedural stage, e.g., appeals, or provide an analytical overview of all proceedings. Conference papers will be selected for publication either in a special edition of a journal or in an anthology.

 Papers are requested on the following topics

1.The rights of the defendant and victims as standards to assess or improve the legitimacy or effectiveness of ICTs

  • Notion of rights as applied in the context of ICTs.
  • Normative legitimacy and the rights of the defendant and victims at ICTs.
  • Sociological (empirical) legitimacy and the rights of the defendant and victims at ICTs.
  • Goal-based approaches; global justice approaches; feminist approaches; TWAIL approaches and the rights of the defendants and victims at ICTs.
  • Rights of the defendant and victims at ICTs in the light of global constitutionalism and/or constitutionalisation of international law.
  • Rights of the defendant and victims at ICTs and retributive, deterrent, restorative, transformative and/or transitional justice.

2.The rights of the defendant at ICTs

  • Judicial interpretation of clauses on the rights of the defendant in the law of ICTs.
  • Ensuring the rights of the defendant at different stages of the process.
  • Using and adapting international human rights law at ICTs.
  • The rights of the defendant at ICTs: ICTs as ‘quasi’-human rights bodies.
  • The legacy of ICTs on the rights of defendants.
  • Practical challenges/considerations in ensuring the rights of the defendant.
  • Impact of the rights of the defendant on the rights of victims at ICTs.
  • Balancing the rights of the defendant and victims: Defence perspectives.

3.The rights of victims at ICTs  

  • Judicial interpretation of clauses on the rights of victims in the law of ICTs.
  • Using and adapting international human rights law at ICTs.
  • The rights of victims at ICTs: ICTs as ‘quasi’-human rights bodies?
  • Protective measures for victims as witnesses.
  • Procedural rights or modalities of participation of victims as participants and/or civil parties.
  • Procedural rights or modalities of participation of victims when claiming reparations.
  • Impact of the rights of victims on the rights of the defendant at ICTs.
  • Balancing the rights of the defendant and victims: Victim-oriented or centred- perspectives.

Abstracts no longer than 500 words together with a short CV should be submitted using the online form by 19 March 2018.

Financial assistance is available to support the travel and/or accommodation costs of a limited number of speakers with financial hardship. Due to funding regulations, reimbursements can only be transferred once the applicant has submitted her/his final paper for publication. Please indicate your intention to apply for this in the comments section of the application form.

All proposals will be answered by 9 April 2018.

The deadline for draft papers is 10 August 2018.

Read on! Fighting and victimhood in international criminal law

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The celebrated military historian, John Keegan, once wrote that ‘Soldiers are not as other men’. This sentiment certainly holds true in international law.  The foundations of international humanitarian law rest on the premise that there is a distinction between combatants and civilians, with the former being liable to attack (unless hors de combat) and the latter being protected (unless directly participating in hostilities).

In human rights law, the European Court of Human Rights has held that the interpretation and application of the European Convention of Human Rights can be different when being applied to members of state armed forces than to civilians (Engel v The Netherlands (No 1) (1976) 1 ECtHR 647).

In international criminal law too, the fact that someone has been fighting has implications. In the Erdemović case, for example, Judges McDonald and Vohrah found that a soldier who had taken part in a firing squad under threat to his own life could not plead duress because ‘soldiers or combatants are expected to exercise fortitude and a greater degree of resistance to a threat than civilians, at least when it is their own lives that are being threatened.’

In my new book, Fighting and Victimhood in International Criminal Law (Routledge, 2018), I explore how the act of fighting, or having been involved in fighting, makes a difference in the context of when an individual can qualify as a victim of an international crime.

Issues explored include: how have international criminal courts and tribunals untangled lawful casualties of war from victims of war crimes? How have they determined who is a member of a non-state armed group and who is not? What crimes can those who fight be victims of during hostilities? When does it become relevant in international criminal law that an alleged victim of crime was a person hors de combat rather than a civilian? Can war crimes be committed against members of non-opposing forces? Can persons hors de combat be victims of crimes against humanity? Can those who fight be victims of genocide? What special considerations surround peacekeepers and child soldiers as victims of international crimes?

I argue that while those who fight can be victims of war crimes, crimes against humanity and genocide, the fact that they have been fighting can have implications concerning their victimhood, and these implications have not always been adequately taken into account by international criminal courts and tribunals.

Reflections on the Strengthening the Validity of International Criminal Tribunals Conference- Part II

/ Joanna Nicholson / 2 Comments

This post is the second part of a post describing a conference hosted by Pluricourts which took place in Oslo earlier this week.

 

Group photo

The fifth panel of the conference began with Viviane Dittrich (London School of Economics) talking about the legacies of international criminal tribunals (ICTs). She argued that the common conception of legacy is too simplistic, and that, based upon her own comparative, empirical research, no uniform definition of legacy exists across the tribunals. She outlined a new theoretical framework depicting a notional legacy process, arguing that legacy-making at both a local and global level is essential to the effectiveness and legitimacy of past, present and future ICTs.

Hemi Mistry (University of Nottingham) then discussed the concept of collegiality, which, she argues, goes to the heart of the legitimacy and validity of courts. Her research indicates a weak, even absent, institutional culture of collegiality among the judges of ICTs. She looked to other courts, particularly the International Court of Justice, to see whether any lessons can be learnt which could help promote collegiality in ICTs, noting that while these institutions often face the same challenges, there are means of surmounting them that ICTs could adopt.Judge

The second day of the conference began with the key note speech given by Mandiaye Niang, former Judge of the Appeals Chamber of the ICTY and the ICTR, entitled ‘Africa and the Legitimacy of the ICC in Question’. He outlined the current challenges facing the ICC concerning Africa, and accepted that there are legitimate concerns from all sides involved in the controversy. He made some suggestions as to how to move forward, one such suggestion being that Africans should be able to feel that the court is theirs, for example, by including more African judges and by conducting trials on African soil. Ultimately, his view was that the ICC has been a positive thing for Africa, and that while the legitimacy of the court is being tested, this is part of its growth and it can overcome these challenges.

The final session of the conference addressed whether more crimes or more courts might help in strengthening the validity of ICL.

Kerstin Carlson (iCourts) spoke about the Hissène Habré trial before the Chambres Africaines Extraordinaires (CAE) in Senegal. The court employed a very different model to previous hybrid models, in that it was an almost entirely local process incorporating elements of ICL and using primarily local staff and defence agents. She explored the innovations of the court to see whether elements of the process might be transferred to other hybrid courts, or whether the CAE was simply a unique event that cannot be repeated elsewhere.

The second panelist was René Provost (McGill University) who discussed whether the ICC could recognise judicial decisions issued by tribunals created by insurgent groups. He focused on tribunals created by Kurdish armed groups in Syria, Iraq and Turkey, and explored the degree to which the prosecution of, for example, a Daesh commander by one of the insurgent courts for genocide ought to be recognised by the ICC. His view was that there might be some room within the Rome Statute to allow the ICC to take such judicial decisions into account when considering the principle of complementarity.

Franziska Oehm’s (University of Erlangen-Nürnberg) presentation addressed the matter of prosecuting economic actors for international crimes. She outlined how such crimes were prosecuted historically, before discussing the possibilities of prosecuting such crimes today. She pointed particularly to the Malabo Protocol adopted by the African Union General Assembly in 2014, which foresees the creation of an integrated African Court of Justice of Human Rights that would have jurisdiction over both natural and legal persons. She argued that further development of this category of crimes is sorely needed.

The final panel began with Dorothy Makaza (University of Hamburg) who talked about the ineffectiveness of the ICL system in Africa. She argued that the impact of certain historical events upon African state compliance with ICL is underappreciated. She suggested different models for re-moulding ICL on the African continent, including incorporating new crimes into the ICC Statute and the possibilities offered by universal jurisdiction. She concluded that, while there is no one single answer to the problem, it might be that a healthy dose of each of the different models injected into the ICL system could help.

Marieke de Hoon (VU University) tried to pull the different threads of the conference together in her presentation concerning why the international criminal justice cannot succeed and what choices are available to turn it around. She argued that we expect too much from international criminal justice, and that we need to adjust our expectations as to what it can realistically achieve. There are unavoidable tensions within ICL. We need to have a better understanding of these and a better understanding of what international criminal trials can do, and manage and match our expectations accordingly.

The final presenter of the conference was Marina Aksenova (iCourts). She also referred to the fact that ICL is being pulled in different directions by different considerations- deterrence, retribution, justice for victims – which erodes its legitimacy. She argued that this could be countered somewhat if there was greater acknowledgment of the symbolic role of ICL. This would help to constrain over ambition and help to prevent unachievable expectations regarding what ICL can realistically achieve.

Should this small taster of the contents of the different presentations at the conference have whetted your appetite, there are plans to publish the conference papers which should come to fruition sometime next year.

Many thanks to all participants for such an interesting and fruitful two days.

Reflections on the Strengthening the Validity of International Criminal Tribunals Conference – Part I

/ Joanna Nicholson / 1 Comment

This week, Pluricourts, University of Oslo, hosted a two-day conference entitled ‘Strengthening the Validity of International Criminal Tribunals.’ The purpose of the conference was to explore ways in which the field of international criminal law (ICL) can improve, and lessons that can be learnt, as ICL enters a more mature phase in its development.

The conference aimed to build upon work previously undertaken within other fora, by bringing together a range of experts from a wide variety of backgrounds and perspectives to discuss how the field of international criminal justice can be made more valid, effective and, ultimately, legitimate, as it moves into the future.

The first session of the conference addressed the processes of international criminal justice and how they can be made more effective.

Mikkel Jarle Christensen’s (iCourts) contribution encouraged a degree of self-reflection among conference participants. He spoke about the role of scholarly expertise in and around the international criminal courts (ICTs). He has tracked ICL scholarship, investigating who publishes in ICL and which topics and research interests preoccupy them. He wondered whether the overlap that can occur in ICL between academics and practitioners prevents those involved from being as critical of the field as they perhaps should be.

Jamie Trinidad (Lauterpacht Centre for International Law) discussed work he has undertaken with Avidan Kent (University of East Anglia) concerning the role played by third-party amicus participation in ICL. He noted that ICTs invite and utilise third party interveners in different ways, for example, some ICTs have paid more attention to submissions from academics than those from NGOs. He suggested ways of improving the system and making it more cohesive, such as only calling for amicus participation when it is actually required.

The panel concluded with a presentation from Jenia Turner (Dedman School of Law), who discussed her research exploring whether the increasing focus on managerialism and expediting proceedings in ICL has impacted upon the rights of the defence. On the basis of interviews she has conducted with defence agents, she has found that the widely held assumption that emphasising efficiency in the court process hurts the defence, is not necessarily so. Defence attorneys do not in general perceive judicial managerialism as being driven by efficiency, but rather by other considerations.

 

iclconfpic

Does the conference brochure picture depict a sunrise or a sunset for ICL?

 

The second panel began with Yvonne McDermott (Bangor University). She addressed an under-explored aspect of fact-finding in international criminal trials, whereby judges when assessing the evidential record have differences of opinion as to how the evidence should be weighed and evaluated. She explained that this poses important challenges to reliable fact-finding, arguing that there is a need to raise awareness of the issue. She suggested alternative tools which could help remedy the problem.

Sergey Vasiliev (Leiden University) then addressed the role played by international judicial governance institutions, such as the ICC’s Assembly of States Parties (ASP), in international criminal justice. He critiqued the amount of structure devoted to, and the resources used by, for example, the ICC in attending to the needs of the ASP, and asked who is it that ensures that such institutions that are involved with ensuring accountability of individuals, are held accountable themselves. He argued that there is a need to pay greater attention to this issue, and that there is a need to develop good governance standards in the future.

Finally, Geoff Dancy (Tulane University) discussed his work undertaken with Florencia Montal (University of Minnesota), exploring the impact of the ICC, particularly as regards its impact upon the prevention of conflict and upon domestic legal change. Based upon analysis of qualitative and quantitative data, they have found that the ICC does not compel the end of conflict and has almost no effect on deterrence. It is not all bad news however; Dancy explained that the ICC is almost-undoubtedly associated with improved conditions in the world due to the social and legal functions it performs in international politics.

In the third panel, yours truly discussed whether the principle of legality can help to strengthen the effectiveness and validity of ICL. I argued that ICL has had a notoriously lax approach to legality in the past. It is a vital component in ensuring certainty and predictability in the law and in protecting the rights of the accused. The claim that legality applies differently somehow in ICL than it does in domestic law no longer holds water, if it ever did. This soft approach to legality needs to harden as ICL moves into the future, and ICL needs to set an example for domestic jurisdictions in this regard.

Carola Lingaas then presented her paper, concerning how the effectiveness of the crime of genocide can be enhanced. She explained that today, race is a highly disputed concept and has been found to be scientifically inaccurate. This does not mean that it should be disregarded as a category of protected group for the crime of genocide, however. Rather the concept should be interpreted in a contemporary, legally sound manner, using a perpetrator-based subjective approach, requiring an assessment as to whether the perpetrator perceives the victim to be from a certain racial group. This would ensure that the category of race remains relevant for the crime of genocide.

The panel concluded with a presentation from Shehzad Charania (British Foreign and Commonwealth Office) who considered the role of states parties to the ICC in amending the Rules of Procedure and Evidence for the court.  He talked about the amendment proposals of 2013 and 2014 put forward by the ICC and states, and outlined some of the political and legal reasons why they were either adopted or rejected. He explained that there is little prospect of new amendments being made in the short to medium term, and suggested solutions which could help expedite the situation.

The conference then turned to ways in which ICL could learn from and rely upon other courts and institutions. It began with human rights.

Nobuo Hayashi, International Law and Policy Institute, and Tamas Vince Adany, Pázmány Péter Catholic University, compared some human rights standards with those from ICL, explaining that while certain elements are different, there are also overlaps. They explored this in the context of complementarity, arguing that by virtue of Article 17 of the ICC Statute, the ICC must pass some sort of judgment on thequality of national investigations and prosecutions. They argued that it seems imperative that we distinguish the sense of encouragement implied in positive complementarity from a licence to do as one pleases, and that we give proper consequences to the principle’s abuses.

Marialejandra Moreno Mantilla (Legal Intern, International Criminal Court) concluded the panel by proposing that a joint strategy between the ICC Office of the Prosecutor and the Inter-American Commission on Human Rights be adopted over the selection and prioritisation of cases. She argued that there is an overlap of jurisdiction, and that the bodies should work together which would have the effect of improving the efficiency and legitimacy of both institutions. Based upon previous co-operation efforts and agreements there is already a basis for this co-operation.

I will discuss the second part of the conference, which was also fascinating, in my next post….

Write On! Strengthening the Validity of International Criminal Tribunals Conference

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Conference hosted by PluriCourts, University of Oslo

29- 30 August 2016

CALL FOR PAPERS

International criminal law (ICL) re-emerged onto the global stage in the 1990s in a flood of good will and optimism. Two decades later, with its honeymoon stage well behind it, states, practitioners, scholars and others are asking where we go from here. The ad hoc tribunals are in the process of winding down amid mixed reviews. The creation of the International Criminal Court (ICC) has failed to live up to many of the optimistic expectations that were imposed upon it, with some African states such as Namibia and South Africa taking steps to withdraw from the Rome Statute. At the same time, calls are being made for new courts and ad hoc jurisdictions to be created as a solution to atrocities and for new crimes to be added to the list of core international crimes. The processes of international criminal justice are also under scrutiny, with some asking whether international criminal courts are trying to do too much. Some see an answer in complementarity- that national courts should assume the responsibility for trying those responsible for the worst atrocities, but this too may not be the panacea it appears to be. This conference seeks to explore these controversies. It seeks practical solutions to make international criminal justice more effective and relevant as it enters a more mature stage in its development.

The conference will bring together a mix of practitioners and scholars from the field of international criminal justice to exchange perspectives and to suggest solutions. We are particularly interested in the experiences of those who work in the field- fact finders, prosecution and defence lawyers, judges, NGO representatives and those involved in the post-trial stage such as members of the prison service. What challenges do they face? What works? What does not work?

We seek papers pursuing empirical, normative, comparative or theoretical approaches, and encourage papers applying alternative theories such as feminist theory, critical legal theory and TWAIL perspectives. We welcome contributions from law and the social sciences, including philosophy, sociology, criminology, psychology and history.

Papers are requested on the following topics:

  1. More Courts? More Crimes?

Despite the existence of the permanent ICC, there continue to be calls for new jurisdictions to be created as a solution to atrocities- an ad hoc court for Syria, an International Court against Terrorism, an EU sponsored tribunal for the prosecution of war crimes and alleged human trafficking in Kosovo, a special tribunal for South Sudan. Is there a need for new courts? What does this say about the ICC itself, the political realities of ICL institutionalisation, the realities of contemporary violence and our imagination as responders to large-scale human suffering?

There are several challenging issues of global importance that ICL does not address at present, is it time for this to change? Are there other crimes which should be included within the remit of international criminal law, such as ecocide, terrorism, narcotics, piracy, human trafficking, money-laundering and corruption, that would make international criminal law more relevant and would increase its effectiveness?

  1. Making the processes of international criminal justice more effective

What can be done to streamline international criminal procedure without undercutting the legitimate interests of key constituencies, such as states, victims and communities affected by violence, or the need to safeguard fair trial guarantees? Are we being overambitious in our expectations of ICL and its institutions? What role does the judiciary play in increasing the effectiveness of ICL procedure? Does the way that common and civil law traditions intermingle in ICL enhance the system or confuse it?

How are the various functions and responsibilities of a fully-fledged criminal justice system distributed within and across international criminal courts and tribunals? Does the particular way in which they are formulated leave any of these functions and responsibilities inadequately covered? Should that affect how we critique the courts and tribunals? For example, does the fact that each international criminal court or tribunal has its own office of the prosecutor, rather than, say, an independent international prosecutor’s office with standing to appear in multiple jurisdictions, colour the way in which we debate issues such as prosecutorial independence, accountability and selectivity? Should there be an international criminal defence bar? An international public defender’s office? Might the accountability of child soldiers be better addressed if more international courts were like the Special Court for Sierra Leone, with jurisdiction and special provisions over juvenile offenders? What would make the presidents of international criminal courts and tribunals more suitable as authorities responsible for overseeing the enforcement of sentences and other penitentiary matters for international convicts? How can reparations for victims of international crimes be awarded equitably across institutions and regions? How can we make our critiques pertinent, on point and meaningful in general?

In what way do different actors, such as states, various organs of international criminal courts and tribunals, states, NGOs and others interact with each other? Does this relationship function in a way which makes international criminal justice more effective? Do their expectations and actions really converge around international criminal justice institutions in a way that strengthens the system? How can this be improved?

  1. Learning from and relying upon other courts

Some see complementarity as providing at least one answer to making international criminal justice more effective and relevant. However, what is the reality? What are the dilemmas of complementarity? How well is complementarity working in different countries, such as the Balkans, Bangladesh and Sri Lanka? Does Libya give us reason to pause over what consequences we are prepared to accept under the banner of positive complementarity? What regional approaches are being taken? Should regional criminal courts (e.g. the new jurisdiction envisaged in Africa) be encouraged as an intermediate layer in the ICC’s complementarity regime and, if so, what adjustments and safeguards would be needed? What problems are there? How can these problems be solved?

International criminal courts and tribunals are not the first kind of international institutions to have experienced similar challenges- the European Court of Human Rights and the WTO for example. How have these institutions responded? Are there lessons that international criminal institutions can learn?

Paper proposals should be emailed to c.m.bailliet@jus.uio.no by 29 February 2016 with an abstract no longer than 500 words. Please include your CV. All proposals will be answered by 15 April 2016. Draft papers should be submitted by 30 June 2016. Conference papers will be selected for publication either in a special edition of a journal or in an Anthology.

 

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Report on the ‘Pluralist Approaches to International Criminal Justice Conference’ Amsterdam, 7-8 January

/ Joanna Nicholson / 1 Comment

Last week I was privileged to attend a conference arranged by the Center for International Criminal Justice at the University of Amsterdam entitled ‘Pluralist Approaches to International Criminal Justice’. The conference proved to be a fascinating and inspiring experience. As its title indicates, the concern of the conference was legal pluralism, a notion that lies at the centre of many of the key debates taking place within international criminal justice (ICJ) today.

There were six panels in all, spread over one and a half days. The first panel explored the interfaces between international criminal law (ICL) and different theories of pluralism. James Stewart presented a new paper, co-authored with Asad Kiyani, entitled ‘The Ahistoricism of Legal Pluralism in International Criminal Law’. He discussed the implications that can arise in ICL when the historical reality of the international or national criminal laws that inform ICL – which have often been created by colonial imposition or by way of an ‘unsuccessful’ legal transplant- is neglected. Cassandra Steer asked what we mean by legal pluralism. She distinguished between strong pluralism, which challenges the notion of the state being the sole lawmaker, and weak pluralism, that accepts that law can have multiple sources. ICL is formed by a patchwork of different traditions and there is a tendency to pluck notions that fit within one’s own legal tradition, when a better approach would be to seek the most appropriate solution for a particular context. Sergey Vasiliev concluded the panel by discussing different types of legal pluralism and explaining why this is a worthwhile project and the value of this discussion in ICL.

The second panel considered the institutional aspects of pluralism in ICL. Alex Whiting asked whether the ICC is threatened by a proliferation of criminal courts, focusing particularly on the pros and cons of an ad hoc court for Syria. Robert Cryer discussed whether complementarity is working; reaching the very lawyerly conclusion that the answer depends upon what one is looking for in the first place. Phil Clark then sought to debunk some assumptions made of complementarity by focusing on the reality of complementarity in Central Africa.

The third panel discussed ICL as a legal-cultural hybrid. Megan Fairlie discussed how the ICC Prosecutor’s obligation under the ICC Statute to ‘establish the truth’ and ‘investigate incriminating and exonerating circumstances equally’ has been fulfilled in practice. Her research shows that the tendency of the OTP has been towards adversality rather than impartiality, rendering imperative the accused’s ability to wage a vigorous defence at trial. Elinor Fry then explored indictments in ICL. She explained that while international criminal courts and tribunals have developed relatively sound pleading principles, they have ignored evidentiary precision in the sense of distinguishing between different types of evidence and facts.

Panel four examined the multiple identities ICJ claims and how ‘normative pluralism’ translates into ideological tensions at the heart of ICL. Darryl Robinson began by asking the audience for help in addressing two troublesome questions: where should he look to find the parameters of the fundamental principles of legality and culpability; and what can be done to counter the objection that these principles are ‘Western’? Carsten Stahn addressed the normative identities of the ICC, discussing different paradigms of post-colonial discourse, such as elitism, whereby ICJ becomes the preserve of a few; social engineering, whereby ICJ is viewed as patronising; and orientalisation, for example in the way in which ICJ creates social categories, such as child soldiers. Emily Haslam then discussed victim representation at the ICC and how victims are portrayed by different legal ‘tribes’- different institutional or non-institutional actors who claim, whether explicitly or implicitly, to act in their name. This pluralism can lead to tensions and challenges for the implementation of victim representation at the ICC.

The penultimate panel explored the role of courts in furthering the convergence (or fragmentation) of ICL. Marjolein Cupido suggested that the use of the casuistic method- which provides that the law is not controlled by abstract rules alone, and that attention should be paid to how judges apply these rules to the facts of individual cases- should be used by scholars in ICL to develop a more complete understanding of international crimes and liability theories. Lachezar Yanev discussed judicial dialogue in ICL, focusing on the ‘common plan or agreement’ element in competing theories of co-perpetration. Finally, Harmen van der Wilt addressed legal reactions to terrorism- whether rules of criminal law enforcement or the law of war should apply, and whether international courts and tribunals can assist states in formulating a coherent approach.

The final panel focused on the challenges to ICL’s hegemonic claims and the resistance faced by ICJ when seeking to order and impact equally on incommensurable socio-cultural environments. Nicola Palmer discussed Rwanda and the intermix between international, national and local responses to justice.  She suggested that the conflicts between these three different regimes are more subtle than we imagine, and that pluralism could provide a useful method to show when ICJ is justified and when it should be limited. Sarah Nouwen explored pluralism as both a justification and limit for ICJ, arguing that ICL has become so successful that it has marginalised other alternative conceptions of justice and risks becoming a threat to justice itself. Finally, Asad Kiyani outlined four challenges for pluralists in ICL- firstly, the hegemony of colonial criminal law; secondly, the hegemony of sources- that turning to national laws enforces the predominance of European law; thirdly, the hegemony of state law, that excludes recourse to non-state legal ordering; and finally, the hegemony of ICL- that the ICC model of ICJ prevents alternative modes of response being used.

Each of the panels culminated in fascinating Q and A sessions, with the panellists responding to insightful questions from an engaged and well-informed audience. The conference’s principal organisers, Elies van Sliedregt and Sergey Vasiliev, are to be congratulated on having arranged such a successful, informative and timely event.

The ICC Statute and War Crimes Committed against Members of Non-Opposing Military Forces

/ Joanna Nicholson / 1 Comment

Traditionally, the view has been that military personnel cannot commit war crimes against other military personnel fighting for the same side. This was the conclusion reached in a handful of cases following the Second World War and, more recently, by the Special Court for Sierra Leone (SCSL) in the RUF case. However, was the Trial Chamber of the SCSL correct in holding that ‘the law of armed conflict does not protect members of armed groups from acts of violence directed against them by their own forces’ (para. 1451)?

Certainly, some key IHL treaty provisions only apply as regards members of opposing forces, the most obvious example being that only those persons who ‘have fallen into the power of the enemy’ qualify for prisoner of war status (Article 4A, Geneva Convention III). However, there are several important IHL treaty provisions which apply regardless of affiliation: the protections for the wounded, sick and shipwrecked granted in Geneva Conventions I and II apply to members ‘belonging to a Party to the conflict’ and in Additional Protocol I ‘to whichever Party they belong’. The fundamental guarantees granted in Article 75 of Additional Protocol I apply to ‘persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or this Protocol’. Common Article 3 of the Geneva Conventions applies to ‘persons taking no active part in hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause’. The fundamental guarantees provided by Article 4(1) of Additional Protocol II apply to ‘all persons who do not take part or who have ceased to take part in hostilities’.

There is, therefore, a strong argument to be made that IHL imposes some obligations on a party to a conflict to protect members of non-opposing forces and, as a corollary to that, that violations of these obligations constitute war crimes.

A surprise awaits when one considers the provisions of the Statute of the International Criminal Court from the perspective of when the Court has jurisdiction over war crimes committed against members of non-opposing forces.

In international armed conflicts (IACs), Article 8(2)(a) of the Statute gives the Court jurisdiction over grave breaches of the Geneva Conventions. As members of non- opposing forces are not POWs under Geneva Convention III, or civilians under Geneva Convention IV, the only grave breach provisions which apply are grave breaches of Geneva Conventions I and II- if they are wounded, sick or shipwrecked at the time of the alleged offence.

Article 8(2)(b) of the Statute gives the Court jurisdiction over other serious violations of the laws and customs of war applicable in international armed conflicts (IACs). Some of these provisions apply only to enemy military personnel, such as Article 8(2)(b)(vi) ‘[k]illing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion’ and Article 8(2)(b)(xi), [k]illing or wounding treacherously individuals belonging to the hostile nation or army’. In fact, only three war crimes listed in Article 8(2)(b) appear to allow for the victims of the crime to be members of non-opposing forces- committing outrages upon personal dignity (Article 8(2)(b)(xxi)); crimes of sexual violence (Article 8(2)(b)(xxii)) and the recruitment and use of children under 15 to participate actively in hostilities (Article 8(2)(b)(xxvi)).

This means that in IACs the Court lacks jurisdiction over war crimes committed against members of non-opposing forces who have been detained- while such cases involving war crimes involving sexual violence, the recruitment and use of child soldiers and outrages upon personal dignity may be brought before it, the war crime of murdering a detained victim who was a member of a non-opposing force may not be.

In contrast, in non-international armed conflicts (NIACs) the ICC Statute gives the Court a wider scope in these types of cases. Under Article 8(2)(c) it has jurisdiction over serious violations of Common Article 3 of the Geneva Conventions. Thus, providing it can be shown that the alleged victim was taking no active part in hostilities at the time of the alleged crime – which arguably includes members of non-opposing forces who have been detained, as well as those who are wounded, sick or shipwrecked – the provision contains a wider variety of war crimes than those available to the Court in IACs, including ‘murder of all kinds’. In addition, the Court has jurisdiction over crimes of serious sexual violence (Article 8(2)(e)(vi)) and the recruitment and use of children under fifteen to participate actively in hostilities (Article 8(2)(e)(vii)) in NIACs.

Thus, in an unusual turn of affairs, the ICC Statute gives the Court jurisdiction over a wider range of war crimes in cases involving alleged victims who were members of non-opposing forces in NIACs than in IACs. This state of affairs is unsatisfactory. It is not unusual for atrocities to be perpetrated against members of non-opposing armed forces, sometimes in situations where the victims have shown real bravery – for example when military personnel are executed for refusing to obey an order to attack civilians. In such cases, the ICC should have a full range of options available to it, regardless of the affiliation of the victim.

This is an abbreviated version of a Brief prepared for the International Crimes Database.

Investigating Crimes against Peacekeepers in the Situation in Georgia

/ Joanna Nicholson / 1 Comment

The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) has officially requested authorisation from the court to initiate an investigation into alleged war crimes and crimes against humanity committed during the armed conflict in Georgia between the breakaway region of South Ossetia and Georgia (also involving the Russian Federation) in August 2008. A key strand of the investigation concerns alleged attacks against peacekeepers, in this case, the Joint Peacekeeping Forces Group or JPKF, created in 1992 to monitor the Sochi agreement between Georgia and Russia, and comprised of peacekeepers from Russia, Georgia and North Ossetia.

In its request, the OTP argues that there is reasonable basis to believe that both South Ossetian (potentially with Russian armed forces exercising overall control) and Georgian armed forces committed the war crime of attacking personnel or objects involved in a peacekeeping mission. Georgian peacekeepers were reportedly heavily shelled from South Ossetian positions, killing two Georgian peacekeepers and injuring five more, while, in a separate incident, ten Russian peacekeepers were reportedly killed and thirty wounded as a result of an alleged attack by Georgian forces against their base, which was also, reportedly, destroyed. While the OTP faces many challenges in this case (for discussions see here, here and here), from the perspective of sufficiency of evidence for substantive crimes, these allegations may be the most difficult to prove.

The ICC Statute gives the Court jurisdiction over the crime of intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian or peacekeeping missions in accordance with the UN Charter, as long as they are entitled to the protection given to civilians or civilian objects under international humanitarian law (Articles 8(2)(b)(iii) and 8(2)(e)(iii)). Proving that an attack against peacekeepers has occurred is a two stage test. Firstly, it must be shown that the force in question was ‘a peacekeeping mission established in accordance with the UN Charter’, a concept that is open to different interpretations. The ICC has already considered this matter in some detail in its Abu Garda Decision on the Confirmation of Charges, where the Pre-Trial Chamber relied upon three basic principles when determining whether or not a peacekeeping mission was constituted, namely: (i) whether the consent of the parties to the mission has been obtained; (ii) that the mission is impartial; and (iii) that the mission did not use force other than in self-defence. If these principles are fulfilled, the mission constitutes a peacekeeping mission, and its personnel are entitled to civilian status and consequent protection under international humanitarian law (IHL).

The OTP acknowledges that there are difficulties surrounding whether the JPKF in fact fulfilled these criteria. This is particularly so regarding whether the mission was impartial (paras. 151-155). For example, the submission refers to sources cited by the Government of Georgia arguing that Russian peacekeeping sources were not impartial, but were supporting the South Ossetian de facto authorities (para. 152), there are also suggestions that infrastructure connected with Russian peacekeeping forces was being used to make an effective contribution to the military action of a party to the conflict (para. 172). Thus, the OTP’s conclusion that the ‘JPKF fulfilled the criteria of a peacekeeping mission in accordance with the UN Charter and so was entitled to protected civilian status’ (para. 160) is open to question. Continue reading →