The number of convictions at the ICC — a fair performance indicator?

In yesterday’s post on the Atlantic Council website, several prominent individuals argued that the International Criminal Court (“ICC”, “Court”) needs fixing. Citing the Afghanistan decision as an example of the Court’s inability to operate as it should, they argued that there is a “growing gap between the unique vision captured in the Rome Statute, the Court’s founding document, and some of the daily work of the Court” and that an independent assessment is needed. Elsewhere, it has been argued that the Court has produced a “paucity of concrete results”, as there have not been many convictions, which has also been cited as a challenge to its legitimacy. However, is the ICC’s track record in convicting people really a fair indicator of its weakness? Or even of its strength? While it is clear that there should be an independent assessment, the indicators must be clearly evaluated for their fairness, especially in a highly politicized context such as that in which the ICC operates.

Former ICTY and ICTR prosecutor Richard Goldstone has previously addressed this point, arguing that using the number of convictions at the ICC as an indicator of its success or failure is not fair. Mr. Goldstone makes a critical point: “I have often cavilled at criticisms of acquittals in international criminal courts. I have said on many occasions that the fairness of any criminal justice system must be judged by its acquittals and not by convictions. As a former chief prosecutor of the ICTY and ICTR, I welcomed acquittals that helped establish the credibility of those courts.” Mr. Goldstone is right: a court – especially an international criminal court – cannot and should not be judged to be a failure or inept because of its number of convictions. This is not to say that the ICC has not stumbled or made mistakes along the path, but it is neither fair nor appropriate to level criticisms of failure or illegitimacy against the Court because it has not convicted more people. It is worth remembering that the Court’s job is not to deliver convictions to the public or to anyone else, but to deliver fair and impartial trials. If it were to fail in this respect, it should be held to account, and it should be constantly monitored and scrutinized to ensure that this does not happen. However, monitoring and scrutinizing the fairness of Court proceedings is fundamentally different from using its attempts to uphold fair trial rights and the consequently low number of convictions as evidence of its failure or weakness as an institution. To this end, it is unequivocally preferable to have a Court that acquits rather than convicts when in doubt.

If there is an independent assessment of the Court’s structures, it is important to contextualize the analysis and to make the political context in which the Court operates and its limitations a central feature, rather than honing in on conviction rates. The political problems that are and have been hindering the ICC’s performance are macro issues, and the micro issues that are symptomatic of deeper problems should not be confused with foundational weaknesses. It is undeniable that the Court needs more political support, and allowing it to function – even when it does not suit state political or financial goals – is imperative for its long-term survival, especially considering that in some cases the Court cannot act due to political and structural limitations that have been in place from the beginning. This was perfectly illustrated in 2014, when Russia and China blocked a Security Council referral of Syria to the ICC, displaying the Court’s utter reliance on international political will. Independent, impartial judicial action has been the aim and objective of international justice from the beginning, but the international community has not yet succeeded in achieving this goal. When will it?

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The ICC’s Afghanistan Decision and the Interests of Justice

A week has passed since the International Criminal Court’s (“ICC”, “Court”) Afghanistan decision (“Afghanistan decision”, “decision”) dropped. The internet has been aflame with commentary on Pre-Trial Chamber II’s (“PTC”) complete rejection of the Prosecutor’s request for the authorization of an investigation into the Situation in Afghanistan, a decision it reached after concluding that proceeding with the investigation would not be in the interests of justice. The PTC’s interests of justice argument and analysis are astounding in their shallowness, especially as the consequence will be to deny the Afghan people the chance at international justice. Given the argument’s weakness, and the amount of suffering endured by the people in Afghanistan, this argument is unacceptable.

According to the request, “The information available provides a reasonable basis to believe that members of the Taliban and affiliated armed groups are responsible for alleged crimes committed within the context of the situation [… against] civilians perceived to support the Afghan Government and/or foreign entities or to oppose Taliban rule and ideology.” (para. 4) This implies that the investigation would not only be focused on crimes against those who challenge the U.S.-led invasion of 2001; the alleged crimes that constitute part of the reason and justification for opening an investigation befell those who may have been perceived as opposing the Taliban and its ideology. For the purpose of examining state interests and cooperation, the statement above does not appear to support a conclusion that the Prosecutor’s intent was to single out or focus on the United States or one of its allies.

In the decision, the PTC defines the interests of justice as: “the effective prosecution of the most serious international crimes, the fight against impunity and the prevention of mass atrocities. […] an investigation would only be in the interests of justice if prospectively it appears suitable to result in the effective investigation and subsequent prosecution of cases within a reasonable time frame.” (para. 89) It concludes by arguing that granting the Prosecution’s request would not be in the interests of justice, (para. 96) due to the amount of time that has passed since the conflict’s beginning, (paras. 92-93) political changes in Afghanistan and important states, (para. 94) and the Court’s limited resources. (para. 95) It is true that the Court’s limited resources may be an obstacle to future investigative and prosecutorial attempts. It is also true that the security situation in Afghanistan has deteriorated since 2015, that the United States has not supported the ICC’s efforts, and that a great amount of time has passed since the invasion. However, these reasons do not justify slamming the door on the entirety of the Prosecutor’s efforts to fight impunity for alleged crimes committed in Afghanistan, and it is especially tenuous an argument when based on the interests of justice criterion. A more nuanced, specific consideration of the current context in Afghanistan in relation to the interests of justice criterion may have resulted in a different outcome.

The April 12th decision is notable in the brevity of its interests of justice analysis, which is limited to ten paragraphs, considering that the request is 181 pages. This is also notable considering that much has happened since Operation Enduring Freedom began in October 2001, that the scale of the crimes alleged is enormous, (See Request, VII, etc.) and that the ramifications of the decision will reverberate in political, legal, and academic echo chambers.

It is clear that after decades of foreign invasion, occupation, life under the Taliban, and de facto lawlessness, the international community has not yet succeeded in meeting Afghanistan’s need for justice and accountability for alleged heinous acts that may have been committed within its borders. It is necessary to ponder the following question: was the decision fair to the most important people affected, the Afghan people?

The Arms Trade and the US-Iran Standoff – a Lucrative Deal for the US, Saudi Arabia, and other Regional Allies?

  1. Introduction

On May 9, President Donald Trump backed out of the Joint Comprehensive Plan of Action, more commonly known as the “Iran deal”, much to the dismay of America’s allies, Iranians, and members of the Iranian diaspora around the world. Those who supported the destruction of the Iran deal, such as Saudi Arabia, are those who have the most to gain by the demise of what was a historic victory of diplomacy and, indirectly, peacekeeping. However, it is undeniable that this move will have dire consequences for the region and will cause suffering among the most vulnerable people in the region. The main questions are: who is profiting from this heinous move, financially and/or politically? And what is being done to stop such behavior?

  1. Arms Sales and Military Profiteering Fueling Conflict in the Middle East

It is no secret that the United States earns a great deal of revenue from the global arms trade. According to a recent report from the Stockholm International Peace Research Institute (Sipri), the US exported more arms than any other nation between 2008 and 2013. (p. 3) The report also finds that Saudi Arabia and the United Arab Emirates are among the world’s largest importers of weapons (p. 1), with Saudi Arabia being the world’s second largest importer of arms between 2013 and 2017. (p. 11)

Since 2013, the US has supplied 52% of weapons to the Middle East, which has been fraught with conflict. (p. 10) Further, in 2017, the State Department approved a lucrative arms deal between the US and Saudi Arabia that would allow the latter to buy $1.4 billion in military training and equipment. It is possible that this deal, along with other such deals, allows the US and its allies to curb the spread of Iranian influence in the region, while ignoring the resultant and related human rights crises and profiting from the suffering of millions.

Indeed, arms sales from the United States and other countries, such as Russia, France, and Germany, have fueled conflict in the region. Arms sales to Saudi Arabia, for instance, may have contributed to the country’s military intervention in Yemen. While the fact that Iran is under an arms embargo may impact its ability to act as a regional power, supplying arms to Saudi Arabia and other countries embroiled in military activities continues to add fire to conflicts in which they are actors.

  1. Attempts to Check the Arms Trade

In Canada, law professor Daniel Turp attempted to bring an action for judicial review in federal court against the Minister of Foreign Affairs for approving permits to provide light armored vehicles produced by General Dynamics Land Systems Canada to Saudi Arabia. (paras. 1, 2-7) In January 2017, Judge Danièle Tremblay-Lamer dismissed the application, stating that “[t]he role of the Court is not to pass moral judgment on the Minister’s decision to issue the export permits but only to make sure of the legality of such a decision”. (paras. 76, 77) The decision is under appeal. However, in January 2018, a federal court ruled that a new challenge could proceed, as new evidence linked Canadian vehicles to violent conduct directed by the Saudi government against the Shiite minority in Awamiyah, Saudi Arabia.

Also in 2017, the NGO Campaign Against Arms Trade attempted to bring a claim for judicial review against the United Kingdom Secretary of State for International Trade in the Royal Courts of Justice. The main question focused on whether possible violations of international humanitarian law in Yemen mandated the Secretary “to suspend extant export licences to the Kingdom of Saudi Arabia and to cease granting new licenses, to conform with Government policy to deny such licences where there is a ‘clear risk that the arms might be used in the commission of a serious violation of international humanitarian law’”. (para. 1) The High Court dismissed the claim, (paras. 3, 214) although on appeal, the Court of Appeal granted permission to appeal grounds 1, 2, and 4. It is unlikely that there would be the political will necessary to bring a court claim in a Western country against a company for profiteering on the suffering of Iranian citizens.

Despite these setbacks in national courts, the historical record shows that business activities can raise issues of international liability. In the context of armed conflict, Philipp Ambach argues that “investor protection […] highlights only one set of interests that are worth protecting. At least equally important is the protection of the interests of the civil communities affected by armed conflict […] The vast majority of armed conflicts of our times are, if not based on, at least closely tied in with the economic interests of the belligerent parties or stakeholders behind the scenes.” (See Ambach, p. 51, in Investment Law Within International Law: Integrationist Perspectives, CUP, 2013) Actors – individuals and legal persons – should be held accountable in national and international courts and tribunals. (Ambach, pp. 64-81)

  1. The Human Consequences of the Arms Trade and Sanctions

Going forward, the people who will be hurt by the United States’ destruction of the Iran deal and its enthusiasm for the arms trade are the most vulnerable people inside Iran and in affected countries: ordinary citizens. The arms trade does not serve the purpose of peace, nor does it positively impact sustainable economic, social, and political development of any party involved therein. Additionally, past experience shows that sanctions are not designed to target the government apparatus. They are designed to punish and humiliate ordinary people by robbing them of their dignity, their livelihoods, their health, and their self-esteem.

I hope that in the coming months and years, the United States will not forget that Iranians also deserve all the good things in the world that many Americans take for granted, and that Americans will choose to see their Iranian counterparts as friends rather than enemies. Iranian (and all) lives matter.

 

 

Croatia v. Serbia: Genocide and the Dolus Specialis Question

In today’s International Court of Justice judgment in the case of Croatia v. Serbia, the question of what constitutes specific intent, or dolus specialis, arose in relation to the issue of “the meaning and scope of a destruction of a group”. (paras 132-148)  The case centers on Croatia accusing Serbia of “breach[ing] the Genocide Convention […] between 1991 and 1995[,] and Serbia contend[ing] that Croatia is itself responsible for breaches of the Convention committed in 1995[.]” (para. 52)

Regarding Croatia’s claim, the Court found that the “dolus specialis has not been established by Croatia, [and therefore] its claims of conspiracy to commit genocide, direct and public incitement to commit genocide, and attempt to commit genocide also necessarily fail”, (para. 414) and therefore the claim was dismissed in its entirety. (para. 441) The Court dismissed Serbia’s counter-claim in its entirety, (para 521) on the basis of “the Court[’s finding] that it has not been proved that genocide was committed during and after Operation “Storm” against the Serb population of Croatia”, (para. 515) as “ the existence of the dolus specialis has not been established.” (para. 515)

In considering whether genocide occurred, the Court determined whether the intent to destroy, in whole or in part, was “the only reasonable inference” that could be drawn from the evidence of instances of violence and forced displacement. (para. 147) However, considering the number of people who died and were targeted, and the range of possible motivations for the wartime conduct in question, it is possible that the ICJ set too high of a standard in determining genocidal intent. It is also possible that the question should not have been did a genocide occur, but did acts of genocide occur, and was the ICJ equipped to effectively handle this question in a case between two States.

  1. The Central Question: Dolus Specialis and Group Destruction

The question that the judgment rests on is whether the dolus specialis of genocide had been shown by Croatia and Serbia, respectively. Recalling that “‘the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such’ is the essential characteristic of genocide, which distinguishes it from other crimes[,] dolus specialis […] must be present in addition to the intent required for each of the individual acts involved[.]” (para. 132) Other central issues are “[(1)] the meaning and scope of ‘destruction of a group’, (2) on the meaning and destruction of a group ‘in part’, and finally (3) on what constitutes the evidence of the dolus specialis.” (para. 133)

The parties differed in their interpretation of what it means to physically or biologically destroy a group, with Croatia’s view summarized as following: “the required intent is not limited to the intent to physically destroy the group, but includes also the intent to stop it from functioning as a unit.” (para. 134) Serbia’s theory of destruction is summarized as following: “what counts is the intent to destroy the group in a physical sense, even if the acts listed in Article II [of the Genocide Convention of 1948] may sometimes appear to fall short of causing such physical destruction.” (para. 135)

2. The Scale of Destruction, in Whole or in Part

The Court noted that the Convention was designed only to cover physical or biological genocide, and not cultural genocide, (para. 136) and that the scale of destruction of a group is not necessarily tied to the number of victims, (para. 142), but reaffirmed the “‘substantial part’” requirement, which was articulated in the Prosecutor v. Krstić Appeal Judgment. (para. 142) It is worth remembering that in Krstić, the Appeals Chamber considered the thoughts of Raphael Lemkin, particularly his statement that “‘the destruction in part must be of a substantial nature so as to affect the entirety.’” (Appeal Judgment, para. 10) Significantly, the Court decided “[to] take into account the quantitative element as well as evidence regarding the geographic location and prominence of the alleged targeted part of the group.” (para. 142; see also paras 402-437)

3. Destruction as Evidence of Dolus Specialis, and What Constitutes Destruction?

a. The Actus Reus of Genocide against Croats

Serbia and Croatia agreed that in the absence of direct evidence outlining a State’s genocidal policy, indirect evidence, or in this case evidence of destruction, could constitute evidence of dolus specialis. (para. 143)  In considering the merits of the case, the Court considered the many instances of violence and attacks during the war, such as the siege of Vukovar, noting that this was an attack that was “directed at the then predominantly Croat civilian population”. (para. 218, see also para 219, 224) Overall, the Court found that the actus reus of genocide had occurred under Article II (a), killing members of the protected group (para. 295); Article II (b), causing serious bodily or mental harm to members of the group (para. 360); and Article II (d), measures intended to prevent births within the group (para. 401); but not for Article II (c), deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. (para. 394)

b. Attempting to Establish Dolus Specialis

One of the arguments that Croatia submitted was that the presence of “systematic policy of targeting Croats with a view to their elimination from the regions concerned” indicated dolus specialis, (para. 408) listing 17 factors, such as “Serbian expansion”, (para. 408) arguing that “[a]ll these elements indicate […] the existence of a pattern of conduct from which the only reasonable inference is an intent to destroy, in whole or in part, the Croat group.” (para. 409)

The Court considered many attacks, such as at Vukovar, “the purpose [of which] was also to punish the town’s Croat population, but not to destroy it.” (para. 412) In relation to the dolus specialis requirement, the Court distinguished between attacking a group considered to be an enemy with the intent of punishing it, and attacking a group with the intent of destroying it, in whole or in part. (para. 430) It is difficult to accept that in each of the situations of violence described in the judgment, the perpetrators did not at least possess the knowledge that their acts would amount to destruction of a group, in whole or in part.

c. “Only Reasonable Inference” – Too High of a Threshold?

The Court essentially dismissed Croatia’s claim on the basis of lack of dolus specialis. (para. 440) In establishing that dolus specialis did not exist, the Court considered many instances of violence and forced displacement, in some cases finding that the actus reus of genocide was present. However, the Court’s argument that the intent to destroy, in whole or in part, must be “the only reasonable inference” (para. 146) that may be determined from considering wartime conduct is perhaps setting too high of a bar for the mental element of genocide. Wartime generates many behaviors, and the motivation for genocidal acts, or destructive acts, may have been drawn from other sources, such as the desire to create “an ethnically homogenous Serb State”. (para. 426) It is possible that  in this instance, the Court did not adequately consider that the intent to commit genocide existed alongside other aims in the conduct of hostilities and that genocidal acts occurred.

The Ntaganda Case, Prosecutorial Discretion at the ICC, and the Recognition of Sexual Violence against Males

I. Introduction

As the International Criminal Court (“ICC”) sends Bosco Ntaganda to trial, there has been a resurgence in the focus on sexual violence in war. This also coincides with the timing of the Global Summit to End Sexual Violence in Conflict. However, the focus of this discussion has been largely on sexual violence against women, with scant attention to sexual violence that is perpetrated against men and boys. The Office of the Prosecutor and the Prosecutor, Fatou Bensouda, have issued a Policy Paper on Sexual and Gender Based Crimes (“Policy Paper”), which represents some progress on the part of international criminal law’s (“ICL”) fight to end impunity for sexual crimes against women and girls, and men and boys, as the focus of ending and punishing sexual violence has in ICL’s recent history neglected to address the issue of sexual violence against men and boys.

II. The ICC’s Perspective on Gender-based Crimes
a. Increased Focus on Sexual Violence against Men and Boys

The Policy Paper defines gender-based crimes as “those committed against persons, whether male or female, because of their sex and/or socially constructed gender roles. Gender-based crimes are not always manifested as a form of sexual violence. They may include non-sexual attacks on women and girls, and men and boys, because of their gender.” (p. 3) This is a departure from the focus of sex crimes that has developed at the International Criminal Tribunal for the former Yugoslavia (“ICTY”), as the Tadić case provided some analysis of sexual violence against men in the Omarska prison camp. However, there has not been a comprehensive prosecutorial focus on the abuse of males in the indictments submitted to the tribunals, or in the prosecutorial strategy that is available for public discernment. Hopefully, the Policy Paper will direct the ICC’s Prosecution to increased focus on sexual violence against men and boys, along with a focused and unrelenting drive to end sexual violence against all victims.

b. The “Gender [P]erspective”

What may become an important tool in directing the jurisprudential analysis of sexual violence is the “gender perspective” of the Policy Paper. (p. 3) This perspective, through its inclusion of males, is a positive step forward in the fight to end impunity for sexual violence, as sexual violence against males has traditionally been ignored and therefore unpunished. A question that is raised by the term “gender perspective” is how it will impact the definitional characteristics of sexual crimes at the ICC, and possibly elsewhere. The perspective states that it “requires an understanding of differences in status, power, roles, and needs between males and females, and the impact of gender on people’s opportunities and interactions.” (p. 3) Whether this means that the definition of rape, for example, will apply to both males and females in a gender-neutral application is a possibility, though it is also possible that there will be a departure from the analysis that has been developed at the ICTY and the International Criminal Tribunal for Rwanda (“ICTR”) starting with the Akayesu trial judgment, to apply the elements of sexual violence against males and females with a different rubric. It is also unclear what role the “[g]ender analysis” component will play in the future exercise of prosecutorial discretion of the ICC (p. 4), though it is clear that the Prosecution will as a matter of policy include men and boys in their future indictments and strategy. (p. 12, paras 16, 20, 27, 28)

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