April 18 – Ukraine Panel

Please join us for this upcoming panel on the conflict in Ukraine – organized by the American Society of International Law, Transitional Justice and the Rule of Law Interest Group, and co-sponsored by the AALS International Law and International Human Rights Law Sections.

April 18, 2022

12:00 p.m. – 1:00 p.m. EST

The Ukraine Conflict: Expert Roundtable on Transitional Justice and International Criminal Law Issues

Organized by the Transitional Justice and Rule of Law Interest Group, American Society of International Law; co-sponsored by the AALS International Law and International Human Rights Law Sections

Panelists:

Milena Sterio, The Charles R. Emrick Jr. – Calfee Halter & Griswold Professor of Law, Cleveland-Marshall College of Law (moderator)

Vladyslav Lanovoy, Professor, Law Faculty, Universite Laval (Canada)

Pavlo Pushkar, Head of Division, Department for the Execution of Judgments, European Court of Human Rights

Margaret deGuzman, James E. Beasley Professor of Law, Temple University Beasley School of Law and Judge of the Residual Mechanism for International Criminal Tribunals

Rebecca Hamilton, Associate Professor, Washington College of Law, American University

Leila Sadat, James Carr Professor of International Criminal Law, Washington University School of Law and  Special Advisor on Crimes Against Humanity to the ICC Prosecutor

Milena Sterio is inviting you to a scheduled Zoom meeting.

Zoom Information:

Join Zoom Meeting

https://csuohio.zoom.us/j/84851000100

Meeting ID: 848 5100 0100

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Temple Law School Symposium – Cyber Attacks

Temple University Beasley School of Law, Institute for International Law and Public Policy, will hold an online Symposium on “Holding Private Companies Accountable for Cyber Attacks” on Friday, March 24, from 12- 1 p.m. EST. The Symposium will take place virtually, on Zoom (Zoom Meeting ID: 974 5383 8211). Speakers include: Professor Duncan Hollis (moderator); Harvey Rishikof, Professor and Former FBI Counsel; Laura Bate, Senior Advisor, Cyberspace Solarium; and Tim Maurer, Legal Counsel, DHS. Topics to be covered at this Symposium include preventing ransomware hacks, U.S. and foreign practices, and the Cyberspace Solarium Report.

Russia v. Ukraine: The Limits of International Law

Several of my esteemed colleagues and experts have analyzed various international law issues related to the escalating Russia-Ukraine conflict (for example, see here and here and here).  The purpose of this post is not to reiterate some of such excellent analyses already published but rather to focus on the limitations of international law in this type of a conflict situation, implicating a Great Power such as Russia.

First, this conflict clearly implicates use of force issues in international law.  It is abundantly clear that Russia has violated Article 2(4) of the United Nations’ Charter when it used military force against the territorial integrity and political independence of Ukraine.  The international law prohibition on the use of force is also part of customary law and a jus cogens norm; international law is more than unequivocal that this type of behavior by Russia is a flagrant violation of one of international law’s fundamental norms.  Yet, despite this, international law remains limited in its ability to respond to Russian actions because of the fact that collective decision-making regarding authorizations to use force against a sovereign nation is tied to the Security Council, where Great Powers, such as Russia, have veto power.  Thus, although international law provides a clear answer about Russia’s violations of international legal norms, international law lacks appropriate legal mechanisms through which such violations can be adequately addressed.  Scholars have already written about possible limitations to the use of the veto power within the Security Council; such changes and perhaps broader reforms of the Council are desperately needed in situations as this one, where a veto-wielding member is in clear violation of the Charter’s fundamental norms.  For now, the international law system remains blocked when attempting to address violations by a Great Power, which happens to have veto powers within the Security Council. 

It is important to acknowledge that international law does leave open the possibility of a defensive use of force by Ukraine, through self-defense, and of collective self-defense, where Ukraine could request the assistance of another state in order to fend off Russian troops.  It is also important to note that NATO countries could decide to use force against Russia in order to defend Ukraine.  Precedent already exists for this type of use of force by NATO countries, to intervene militarily on the territory of a non-member state.  In fact, in 1999, NATO countries launched a series of air strikes against the Federal Republic of Yugoslavia, in order to force then-President Slobodan Milosevic to halt committing abuses against Kosovar Albanians.  Yet, these potential uses of force remain unlikely and would not be equivalent to a United Nations Security Council-approved collective use of force against Russia.  Most states are unlikely to agree to use their military troops in Ukraine, under the paradigm of collective self-defense, as this would most certainly provoke an attack by Russia against those states and expose those states to serious military and political risks.  Moreover, a NATO-led use of force to defend a non-member state remains illegal under international law, so long as such use of force remains unauthorized by the Security Council.  Although many have defended the 1999 NATO air strikes against the FRY as legitimate or morally authorized, or on humanitarian grounds, these air strikes were illegal under international law.  It is unlikely, as of now, that NATO countries would be willing to launch a military operation, illegal under international law, against a Great Power like Russia.  Thus, the only plausible use of military force against Russia would be through a Security Council-authorized, collective military coalition, both legal under international law and more likely to succeed militarily against a mighty opponent as Russia.  Yet, as explained above, this is not going to happen because Russia has veto power within the Security Council. 

Second, this conflict also underscores the limitations of international law in terms of accountability.  In theory, political and military leaders who order the commission of atrocity crimes ought to be held accountable.  Article 8bis of the ICC Rome Statute defines an act of  aggression as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.”  In this instance, it is clear that Russia’s President Putin has committed an act of aggression vis-à-vis Ukraine.  Yet, although the ICC can exercise jurisdiction over genocide, crimes against humanity, and war crimes in situations involving non-state parties (if the crimes are committed by a national of a state party on the territory of a non-state party), the jurisdictional regime over the crime of aggression is significantly more limited.  In fact, the ICC can only exercise jurisdiction over the crime of aggression in situations where both the victim and the aggressor state are members of the ICC; in this instance, because Russia is not a member, the court cannot exercise jurisdiction over the crime of aggression.  Thus, although it is certain that Putin has committed the act of aggression in Ukraine, it is almost equally certain that he will not face accountability at the ICC.  It is relevant to note here that the ICC can potentially exercise jurisdiction over the three other ICC crimes in Ukraine.  In fact, Ukraine accepted ICC jurisdiction over crimes allegedly committed there by Russian forces starting in 2013.  The ICC Office of the Prosecutor launched a preliminary investigation into Ukraine and concluded that reasonable basis existed to conclude that crimes against humanity and war crimes were indeed committed in Ukraine.  Thus, the ICC could continue to investigate and possibly prosecute those responsible for crimes against humanity and war crimes in Ukraine. However, as the current ICC Prosecutor, Karim Khan has confirmed, the ICC remains unable to investigate and prosecute the most important crime committed by Putin against Ukraine, aggression.

Third, the conflict also highlights the limited efficacy of the International Court of Justice (ICJ).  The ICJ is the primary judicial organ of the United Nations and a forum where states can in theory settle their disputes. Because the court’s jurisdiction is voluntary, states must either agree to litigate in the ICJ on an ad hoc basis or through a treaty’s dispute resolution clause.  In this case, Ukraine has sued Russia in the ICJ, basing jurisdiction on the Genocide Convention, to which both states are parties.  However, although the ICJ has jurisdiction over this dispute, the court’s reach is limited to genocidal offenses only (because jurisdiction is based on the Genocide Convention), and, most importantly, the court has no enforcement mechanisms.  Thus, although the ICJ could order Russia to cease using military force in Ukraine, the court has no direct ways to enforce its own judgment.  It is very likely that a Great Power such as Russia would simply ignore the ICJ’s judgment.  Thus, the power of the ICJ to contribute to the actual resolution of this conflict remains limited.

In sum, international law contains clear legal norms which condemn Russia’s invasion of Ukraine and which, on a theoretical level, impute state responsibility onto Russia and individual criminal responsibility on its leader, Vladimir Putin.  However, as this post discusses, international law remains limited in its ability to address the conflict.  Authorization for the use of force against Russia remains deadlocked in the veto-blocked Security Council; the crime of aggression’s restricted jurisdictional regime effectively shields Russian leaders from accountability at the ICC; the ICJ has no prospects of enforcing a judgment which would condemn Russia.  It may be argued that this relative inefficacy of international law is linked to the super-sovereign status of Great Powers, like Russia, which benefit from international law’s institutional design.  To illustrate this point, imagine a scenario where a non-super power, a state with an average size military and without a permanent seat on the Security Council, invaded a neighboring country.  In such a situation, the Security Council could act (assuming that this country was not directly allied with one of the Council’s five permanent members) and order collective force to be used against the aggressor state.  The country’s leaders could possibly face accountability in the ICC (there is a higher likelihood that a smaller, non-super power country would be a member of the ICC).  And a smaller, weaker state would be more likely to abide by an ICJ ruling.  International law, because of its general lack of enforcement mechanisms and because of its institutional design such as the veto power in the Security Council, contributes to an unequal order of states, where those with super-sovereign powers seem able to get away with breaches of fundamental norms with virtually no consequences. Russia, because of its status as a Great Power, has violated fundamental international law norms but may remain insulated from international law’s reach. 

Where Are the Women? Breaking International Law’s Glass Ceiling

Just a few days ago, we received the happy news that Australian law professor Hilary Charlesworth has been elected as a judge to the International Court of Justice (ICJ).  Almost in parallel, at the same time, the University of Chicago Law Review published an essay by Fred Shapiro, containing the list of most cited legal scholars of all time.  The top 25 such scholars are all men.  In other words, despite the seeming prominence of some of our notable female colleagues, not a single one of them has amassed a sufficiently high number of citations to be included on this list.  While the citation list is not focused on our field, International Law (a separate list of top ten most-cited International Law scholars includes one female scholar only), and while some notable scholars included on the list worked in a different historical era when most scholars indeed were men, this list is indicative of the general phenomenon that women are under-represented and under-valued across the legal profession, including in International Law.  Professor Charlesworth’s election to the ICJ, as only the fifth female judge to be elected to this prestigious court, underscores this point further.  The purpose of this post is to highlight some of the recent discussion regarding the issue of under-representation of women at prominent international law institutions, as well as to suggest that an additional way which would help women to break international law’s glass ceiling is through citations.  Amassing a high number of citations would enable female scholars to put their names forward and gain a seat at the table. 

Several of my (I can’t help but notice, mostly female) colleagues have already begun to raise awareness and have written about the inadequate representation of women at prominent International Law institutions.  Priya Pillay recently wrote, as part of Opinio Juris’ excellent Symposium on Gender Representation, about the International Law Commission (ILC) and its members: of the two hundred and twenty-nine members since 1947, there have been only seven women.  In fact, the first female member of the ILC was not elected until 2002.  Because the ILC is tasked with codifying existing international rules as well as with contributing to the development of new international legal norms, the absence of women therefrom is particularly troubling as it signals that female voices are excluded from the making of international law.  Angela Mudukuti has written, in the context of the same Symposium, about the “Boys Club” problem at the International Criminal Court (ICC), where women occupy only 23.5 % of professional posts at the P-5 level.  The absence of women in key management and other high-level roles at the ICC has caused a work culture that is discriminatory toward women, according to the ICC Independent Expert Review.  Moreover, the under-representation of women in judicial roles may be contributing to the lack of prosecution of gender crimes and to the lack of development of appropriate jurisprudence in this area.  Finally, Viviana Krsticevic, as another contributor to this Symposium, has highlighted the fact that women are under-represented at international courts and tribunals as well as at other monitoring bodies. According to Krsticevic, because “international courts and monitoring bodies shape international and domestic dynamics” and are “the public face of international organizations and of international justice,” their legitimacy stems not just from their decisions but also from their composition.  The lack of gender diversity at such international institutions undermines their own legitimacy. 

In addition to the writing of prominent academics and lawyers  which have contributed toward the raising of awareness regarding the issue of female under-representation in international law, several other initiatives are important to mention and emphasize  Six years ago, a group of human rights lawyers launched the GQUAL Campaign in order to raise awareness about the absence of women in international justice as well as to promote solutions which would contribute toward inclusion of women.  The GQUAL Campaign was launched, in part, in response to the fact that the Inter-American Court of Human Rights bench was entirely male. In addition, and most recently, the Advisory Committee of the Human Rights Council issued a ground-breaking Report in June 2021.  The Report reviewed the historical and current data of several organs and human rights mechanisms, confirmed the underrepresentation of women therein, and suggested multi-level and multi-actor paths forward.  In particular, the Report highlighted the following five areas where improvements could be made in order to promote the advancement of women at international legal institutions. 

First, the Report includes crucial information about the under-representation of women at various UN bodies and mechanisms.  The Report then calls on States to disseminate such information domestically in order to highlight the importance of this issue, and in order to increase States’ commitment to gender diversity through better recruitment and selection processes.  Second, the Report makes it clear that several of its goals would be best achieved through the informal and formal work of professional networks, which can reach women from under-represented backgrounds and adopt a proactive advocacy agenda.  Networks can facilitate outreach to women across the globe, as well as develop information-sharing where potential candidates may learn from each other’s experiences.  Examples of such networks include the International Association of Women Judges, the GQUAL Campaign mentioned above, the ATLAS network, as well as this very blog.  Third, the Report makes clear that it is necessary to explicitly include gender parity or balance as a criterion in the selection and nomination procedures, and that it is therefore crucial to obtain personal and institutional commitments and pledges toward this goal.  Fourth, the Report underscores the need for women to break the glass ceiling as a right to gender equality and non-discrimination.  The Report discusses the possible development of domestic and international legal standards which would strengthen these rights, enable litigation over such rights to equality and non-discrimination, and thereby contribute toward a more equitable representation of women at prestigious international law institutions.  And, fifth, the Report recognizes that the fundamental problem regarding women’s under-representation at international institutions is the lack of appropriate domestic nomination processes, which, coupled with the lack of institutional mechanisms to remedy the issue at the international level, lead toward a perpetual absence of gender parity.  As Krsticevic has written in her Symposium post, “In short, a critical problem is that not enough women are nominated to fill less than 500 positions worldwide. This happens because not enough women are put forward as candidates by States, States do not take gender into account when voting, and international selection processes are not built to guarantee that women are fairly represented.” 

In addition to the various ways in which women’s representation in international law could be improved, as highlighted above, ensuring that scholarship by prominent female authors is adequately disseminated and cited is another important step toward breaking international law’s glass ceiling.  Citations matter. A scholar who is frequently cited, whose work is published by prominent editors and included in treatises and encyclopedias becomes viewed as an expert and authority in their field.  Studies have already suggested that male authors tend to be cited more frequently – either because male authors might tend to cite other male authors or because male authors seem to be inherently perceived with both authority and legitimacy.  The same way that women are under-represented as judges and lawyers at international institutions, courts, and mechanisms, women are under-cited in prestigious publications.  The list of top-cited legal scholars should include more women.  Some of the ways which could contribute toward a more equitable representation of women at international institutions discussed above and highlighted by the Report, such as information-sharing, networks, and personal and institutional pledges and commitments, apply equally to the issue of under-citation of female scholars.  It is thus important to continue to collect and disseminate information regarding the under-citation of female scholars; it is useful to have networks which can promote the published work of female scholars; it is crucial to work toward obtaining personal pledges by individual publishers and editors and by their respective institutions to publish and cite more women.  Once international law’s ceiling is hopefully broken, not only will women occupy a respectable number of positions at prominent institutions, but in addition female scholars will be cited equally as their male counterparts.  Let’s hope that, in the near future, Judge Charlesworth is in mostly female company at the ICJ and that the list of top-cited legal scholars includes the names of our distinguished female colleagues. 

ICC Experts’ Seminar- June 30th

American Branch of the International Law Association ICC Committee, with the N.Y.U. Center for Global Affairs, Washington University in St. Louis School of Law, and the University of Illinois College of Law, is co-sponsoring the ICC Experts’ Seminar on Wednesday, June 30th, from 10:00 a.m. to 3:00 p.m. For registration information, please see the conference website. The conference agenda is included below:

AGENDA

10:00 – 10:30 a.m.  Welcome and Opening Keynote Address

  • Ambassador David J. Scheffer, Northwestern University Pritzker School of Law

10:30 – 10:45 a.m.  Break

10:45 a.m. – 12:15 p.m.  Teaching International Law in a Sometimes Challenging Environment

  • Moderator: Leila Sadat, Washington University in St. Louis School of Law
  • Patrick Keenan, University of Illinois College of Law
  • Saira Mohamed, University of California Berkeley School of Law
  • Milena Sterio, Cleveland-Marshall College of Law

12:15 – 12:45 p.m.  Break

12:45 – 1:00 p.m.  ICC Outreach Materials

  • Violeta Willemsen-Curic, Outreach Unit, International Criminal Court

1:00 – 2:30 p.m.  US/ICC Advocacy in a Sometimes Challenging Environment

  • Moderator: Jennifer Trahan, N.Y.U. Center for Global Affairs
  • Elizabeth Evenson, Human Rights Watch
  • Katie Gallagher, Center for Constitutional Rights
  • Rebecca Shoot, Washington Working Group on the ICC
  • Kristin Smith, Atrocity Crimes Initiative, ABA Criminal Justice Section & Center for Human Rights

2:30 – 2:40 p.m.  Break

2:40 – 3:00 p.m.  Concluding Keynote Address

  • Beth Van Schaack, Stanford University

ICC Ongwen Case Event

For our readers interested in the International Criminal Court, I am posting information about an upcoming event on the ICC Ongwen case, on Wednesday, March 24, from noon – 1:00 p.m. EST.  The event will be co-hosted by Dr. Julie Fraser (Utrecht University, Netherlands) and yours truly, and it will feature Sarah Kihika Kasande, International Centre for Transitional Justice, Kjell Anderson, University of Manitoba, Grace Acan, Co-Founder of Women’s Survivors’ Group in Northern Uganda, Adina Nistor, University of Groningen, and Dov Jacobs, Leiden University.  

The event will be formally hosted by the Public International Law and Policy Group and Utrecht University Centre for Global Challenges.Event information and the registration link are available here:
https://www.publicinternationallawandpolicygroup.org/ongwen-case-roundtable

Rohingya Genocide Expert Roundtable

The following event will take place this Friday, Jan. 29th, from noon -1 p.m. EST: Expert Roundtable: The Rohingya Genocide. The event is hosted by the Public International Law and Policy Group and sponsored by Orrick. Panelists include: Dr. Greg Noone, Dean Michael Scharf, Drew Mann (former U.S. Government official), Sandra Hodgkinson (former U.S. Government official), Yasmin Ullah (local Rohingya activist), and Prof. Milena Sterio (moderator).

The event link and registration are available here: Expert Roundtable: The Rohingya Genocide — PILPG (publicinternationallawandpolicygroup.org)

Webinar on U.S. Government Sanctions Against the ICC

I am posting information about an exciting webinar that will take place this Wednesday, Jan. 27th, at noon EST, on the topic of “Sanctions Against the International Criminal Court: Constitutional and International Law Issues.”  The webinar will feature Prof. Gregory Magarian, Washington University School of Law, as moderator, and Prof. Leila Sadat, Washington University School of Law, Prof. Gabor Rona, Cardozo Law School, Stephen Rapp, former Ambassador-at-Large, Office of Global Criminal Justice, Scarlet Kim, ACLU, and Prof. Milena Sterio, Cleveland-Marshall College of Law as speakers.  Panelists will address the ongoing litigation against the U.S. government – two lawsuits are now pending, one in New York and one in California – challenging the legality of the underlying Executive Order (through which the sanctions regime was established) on constitutional law grounds (Professors Rona and Sterio are co-plaintiffs in the New York lawsuit, and Prof. Sadat and the ACLU are co-plaintiffs in the California lawsuit). The panel is co-sponsored by the AALS National Security Law Section, the ABILA ICC Committee, and the ASIL International Courts and Tribunals Interest Group. 

The event link (registration required) is available here: https://www.law.csuohio.edu/newsevents/events/2021012712006019

The ICC Prosecutor’s Final Report on the Iraq/UK Investigation: Concerns Over Complementarity and the Court’s Future Legitimacy

Earlier today, the International Criminal Court (ICC) Prosecutor released the Final Report regarding the status of the preliminary investigation into Iraq/United Kingdom (UK).  In this Report, the Prosecutor concluded that 

on the basis of the information available, there is a reasonable basis to believe that, at a minimum, the following war crimes have been committed by members of UK armed forces: wilful killing/murder under article 8(2)(a)(i)) or article 8(2)(c)(i)); torture and inhuman/cruel treatment under article 8(2)(a)(ii) or article 8(2)(c)(i)); outrages upon personal dignity under article 8(2)(b)(xxi) or article 8(2)(c)(ii)); rape and/or other forms of sexual violence under article 8(2)(b)(xxii) or article 8(2)(e)(vi)) (para. 69).  

Despite the above-mentioned finding, and despite the fact that over 3,000 cases of alleged abuse and atrocities by UK troops in Iraq had been referred to the UK national authorities, that many such cases had resulted in favorable settlements in UK civil courts, and that some such cases had been successfully litigated in the European Court of Human Rights (ECHR), the ICC Prosecutor decided to close this investigation. In this post, I will discuss the procedural history of the Iraq investigation, as well as analyze the Prosecutor’s findings in this Report.  In addition, I will discuss the potential impact of this decision on the future of the ICC.  

Procedural History

The Prosecutor initially opened a brief preliminary investigation into Iraq/ UK, but this investigation was closed in 2006. In January 2014, the European Center for Constitutional and Human Rights (ECCHR) together with Public Interest Lawyers (PIL) submitted an Article 15 communication to the Prosecutor, alleging the responsibility of UK armed forces and other UK officials for war crimes involving systematic detainee abuse in Iraq from 2003 until 2008. In light of this new information, the Prosecutor re-opened a preliminary investigation into this situation in May 2014.  In a 2017 Report, the Prosecutor announced that, following a thorough factual and legal assessment of the information available, it had reached the conclusion that there was a reasonable basis to believe that members of UK armed forces committed war crimes within the jurisdiction of the ICC against persons in their custody. This second Iraq/UK investigation was just closed today; the Prosecutor’s rationale for reaching this decision was published in the Final Report.

Prosecutor’s 2020 Final Report

In today’s Final Report, the Prosecutor concluded “that the only appropriate decision is to close the preliminary examination without seeking authorisation to initiate an investigation” (para. 1). The Prosecutor reached this decision on admissibility grounds under Article 17 of the Rome Statute.  The Prosecutor focused both on gravity and complementarity under Article 17; this post will focus on the Prosecutor’s analysis of complementarity, which occupied most of the Report (I note that the Prosecutor determined to perform an admissibility analysis in this case, despite the fact that admissibility determinations do not normally form part of Article 15 Pre-Trial Chamber determinations; according to the Prosecutor, “[a]lthough the Appeals Chamber has recently held that admissibility does not form part of the Pre-Trial Chamber’s determination under article 15(4), it nonetheless stressed the persisting duty of the Prosecutor, under rule 48, to be satisfied that all of the factors relevant to the opening an investigation, including admissibility, are met before proceeding with an article 15 application” (para. 156)).

The Prosecutor explained in the Final Report that the complementarity test under article 17 involves a two-step inquiry, “involving a determination of whether the national authorities are active in relation to the same case (first step), and only if so, whether this activity is vitiated by unwillingness or inability of the authorities concerned to carry out the proceeding genuinely (second step)” (para. 154). According to the Prosecutor, the UK authorities had both acted to investigate these alleged abuses and had shown a genuine willingness to investigate.  

First, the Prosecutor detailed in this Report how the UK authorities had shown action regarding the investigation of their troops’ alleged abuses in Iraq.  The Report explained that the UK authorities established the Iraq Historic Allegations Team (IHAT), whose original mandate was to investigate cases of alleged death or ill-treatment of Iraqis in British custody.  IHAT had an initial caseload of 165 cases, and it was supposed to conclude its work by November 2012. Over time, IHAT’s caseload expanded dramatically,  as new allegations of death or ill-treatment were received and its mandate was extended first to December 2016 and then to December 2019 (as the Report explained, IHAT was deemed necessary both to discharge the UK’s duty to investigate under British law, as well as under the European Convention on Human Rights; in addition, subsequent proceedings before the ECHR in Al Skeini and others v United Kingdom confirmed that the UK Government had a duty under the European Convention to carry out an adequate and effective investigation into allegations involving British service personnel in Iraq ).  The UK considered the IHAT investigations, and potential prosecutions, as necessary to satisfy the admissibility requirements of the Rome Statute.  In early 2017, following complaints over IHAT’s duration and expense, the UK Secretary of State for Defence announced that IHAT would be closed.  Remaining investigations were taken over by a new investigative unit, known as Service Police Legacy Investigations (SPLI).  IHAT and the SPLI referred a total of nine cases to the so-called Service Prosecuting Authority (SPA), the body which had become charged with determining whether a prosecution will take place.  In all nine cases, the SPA recommended that no charges be brought against the accused individuals.  In February 2020, UK authorities explained to the ICC Prosecutor that the SPA had most likely determined not to proceed with these prosecutions because the SPA applies a higher evidentiary threshold than IHAT/SPLI, and that it was likely that lawyers at the latter “might have considered cases were ready to proceed, whereas the SPA found they were not” (para. 200). In light of all of the steps taken by the UK authorities, and despite the fact that no cases resulted in actual prosecutions, the Prosecutor concluded in this Final Report that the UK authorities had acted for the purposes of the Article 17 complementarity analysis. 

Although the initial assessment of a claim might not lead to a fully-fledged investigation being undertaken (based on the screening criteria), or an investigation or prosecution might be abandoned after a subsequent assessment, the Office considers that it is difficult to argue that the State had remained inactive in relation to such a claim, since such assessments form part of the investigative and prosecutorial process (para. 276)

Second, the Prosecutor determined in the Final Report that the UK authorities had shown a genuine willingness to investigate alleged crimes committed by their forces in Iraq. As the Prosecutor explained, the determination of unwillingness requires, “having regard to the principles of due process recognized by international law”, that “[t]he proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5” (para. 294). The Prosecutor further emphasized that the concept of being “unwilling” genuinely to investigate is “concerned with a situation in which proceedings are conducted in a manner which would lead to a suspect evading justice as a result of a State not being willing genuinely to investigate or prosecute” (para. 284). The Prosecutor thus reviewed various UK authorities’ actions in this case through the lens of willingness. Serious concerns had been raised against UK authorities, alleging that they did not genuinely intend to pursue prosecutions against their own service members and higher-level officials.  As the Final Report described, despite the fact that over 3,000 potential cases had been referred to UK authorities, the latter failed to initiate a single prosecution.  In addition, former IHAT staff members had raised concerns that this mechanism lacked proper access to evidence and to witnesses, due to UK government interference.  Finally, concerns over undue delays in the proceedings had been flagged as a potential violation of the victims’ rights; such delays, according to some allegations, were the result of the UK authorities’ purposeful policy not to seriously investigate and/or prosecute cases.  Despite such serious concerns regarding the UK government’s “willingness” to genuinely prosecute, the Prosecutor concluded that “the information available does not demonstrate a lack of willingness to genuinely carry out the proceedings, pursuant to article 17(2)(b)” (para. 433).  In fact, the Final Report emphasized that it was not sufficient for the Prosecutor to have concerns over the genuineness of a national authority’s willingness to investigate and prosecute, but that instead it must be demonstrated that such authorities acted in bad faith. According to the Prosecutor,

The primary task of the Office is not to express its view on how it might have proceeded differently in the circumstances, nor to identify areas of disagreement with IHAT/SPLI and SPA’s decision-making and operational assessments of whether cases presented a realistic prospect of obtaining sufficient evidence at the investigative stage or a realistic prospect of conviction to support a prosecution. Nor is it the Office or the Court’s mandate to pronounce on whether a State complied with its duties to provide an effective remedy and fulfilled its procedural obligation to give effect to fundamental human rights enshrined in instruments such as the ECHR. The question is whether there is evidence to establish that the State concerned was unwilling to investigate or prosecute (para. 458).  

In sum, the Prosecutor concluded that the case of Iraq/UK was inadmissible under Article 17’s complementarity requirement, because the UK authorities had sufficiently demonstrated that they had acted to investigate and that they were genuinely willing to investigate.

Potential Impact of the Final Report on the ICC’s Legitimacy

It is possible, and relatively easy, to criticize some of the Prosecutor’s findings, particularly on “willingness” grounds.  It could be argued that the record established sufficient evidence that the UK authorities had reluctantly established IHAT and subsequent mechanisms; that they interfered with the mechanisms’ access to evidence; that they caused undue delays and demonstrated a significant bias against initiating any prosecutions – in sum, that they acted purposefully to shield their own service members and officials from any possibility of prosecution.   Yet, while such concerns are serious, the more fundamental issues raised by this decision to close the Iraq/UK investigation involve future cases and the ICC’s legitimacy.

In light of this decision, it may become relatively easy for other powerful states to evade the ICC’s reach by launching their own “genuine” investigations which result in zero prosecutions.  States such as the United States and Israel may welcome the court’s analysis of complementarity in this Final Report and its conclusion that the UK has been “willing” to prosecute its own soldiers and officials, despite a decade-long investigation which has yielded no cases. Complementarity may become a shield in and of itself, despite the fact that complementarity is actually supposed to ensure that perpetrators aren’t shielded from ICC’s prosecutorial reach. If states are able to avoid the ICC on complementarity grounds in the future, this could seriously undermine the court’s legitimacy. The ICC was established in order to ensure that accountability is imposed on perpetrators of atrocities; despite its relatively weak prosecutorial record, judicial squabbles on its bench, several state withdrawals from its jurisdiction, and some powerful states’ open hostility, the Court could be objectively defended in light of the importance of its fundamental mission.  The imposition of accountability on those who commit genocide, crimes against humanity, or war crimes is objectively one of the most important goals of international criminal justice; an imperfect institution which nonetheless contributes to this goal remains important and legitimate.  If the ICC were to become an easily-avoided forum, which states can bypass by launching sham but “genuinely willing” investigations, then the Court’s fundamental purpose comes into question.  In such circumstances, it becomes difficult to continue to defend the ICC.  For those of us who believe in the pursuit of international justice and in its institutions, including the ICC, the possibility of this type of a complementarity-based challenge to the court’s legitimacy is troubling.

Panel on Teaching International Law

If interested, please consider zooming in for this exciting panel on the topic of teaching International Law.

Teaching International Law During Challenging Times

(sponsored by the American Branch of the International Law Association & the American Society of International Law, Teaching International Law Interest Group)

Friday, October 2, Noon – 1:30 p.m. EST

Register in advance for this webinar:

https://csuohio.zoom.us/webinar/register/WN_ImR3EKZ1STWWfHiRRHGvMQ

After registering, you will receive a confirmation email containing information about joining the webinar.

Moderator: Milena Sterio, The Charles R. Emrick Jr. – Calfee Halter & Griswold Professor of Law, Cleveland-Marshall College of Law

Panelists: Mark Wojcik, Professor of Law, UIC John Marshall Law School; Cindy Buys, Professor of Law, Southern Illinois University School of Law; Jennifer Trahan, Clinical Professor, Center for Global Affairs, New York University; Darin Johnson, Associate Professor of Law, Howard University School of Law

Panel Description:

This panel will address the very important topic of teaching International Law during challenging times, such as the ongoing Covid-19 pandemic. International Law has occupied a less central role within American law schools’ curricula. At many law schools, International Law is taught as an upper-level elective course; thus, numerous American law school students graduate without ever having had exposure to International Law. It is this panel’s starting premise that International Law is a crucial course of study for every law school student; that International Law occupies a very important place in every lawyer’s practice; that International Law should be taught more frequently at all law schools in the U.S.; and that during the Covid-19 pandemic – a challenging time for all – the role of International Law should be re-emphasized and the course taught to all students. This panel will thus focus on exchanging best practices in terms of teaching International Law, with a particular emphasis on best practices regarding remote/online and/or hybrid teaching of International Law. The panelists will engage in an exchange of teaching practices and ideas, and they will share sources and tips regarding remote/online teaching of International Law. What are the best ways of “transferring” a traditional International Law course to an online/hybrid model? What teaching sources are best in an online/hybrid format? What video/audio/graphic sources may help to enhance the online/hybrid delivery of an International Law course? What challenges may teachers and students experience when enrolled in a non-traditional International Law course?