Commentary on John Bolton’s Speech Regarding New American Policy on the International Criminal Court

National Security Advisor, John Bolton, delivered remarks today on “Protecting American Constitutionalism and Sovereignty from International Threats.”  In his remarks, Bolton announced a new American policy vis-a-vis the International Criminal Court (ICC or Court).  According to Bolton, the ICC “has been ineffective, unaccountable, and indeed, outright dangerous.”  While Bolton, and others in the Trump Administration, are certainly allowed to express their opinion and to craft new policies, it is important that such policies be based on accurate (and not alternative) facts.  The purpose of this post is to highlight some of the most egregious factual errors from Bolton’s remarks.  Any government policy based on inaccurate information and “advertised” through reliance on misleading and inaccurate claims is “ineffective, unaccountable… and outright dangerous.”  In addition, this post will criticize some of Bolton’s arguments as misguided and contrary to the United States’ interests.

Bolton argues in his speech that “[t]he ICC and its Prosecutor had been granted potentially enormous, essentially unaccountable powers, and alongside numerous other glaring and significant flaws, the International Criminal Court constituted an assault on the constitutional rights of the American People and the sovereignty of the United States.”  It is incorrect that the ICC and its Prosecutor have “enormous” or “unaccountable powers.”  The ICC’s jurisdiction is limited temporally as well as rationae materiae (the court can only exercise jurisdiction over genocide, crimes against humanity and war crimes – and in very limited instances, aggression); the court is also constrained by the application of principles of gravity and complementarity.  Moreover, the Assembly of States Parties is an important accountability mechanism over the court – as many readers know, judges can be removed by a two-thirds vote of states parties to the Rome Statute, and a prosecutor can be removed by a majority vote of states parties. Thus, to claim that the ICC somehow wields Harry Potter-like powers which transcend any accountability is simply false.  And, it is unclear why the establishment of the ICC constitutes a constitutional and sovereignty assault against the United States.  The ICC is a treaty-based body; any state, including the United States,  is free to join or not to join this treaty.  If the United States chooses to join the ICC, or any other treaty, potential conflicts with the U.S. Constitution would be resolved through the Supremacy Clause, which establishes the primacy of the Constitution over any inconsistent treaty obligations.  Thus, it is surprising and misleading to claim that the negotiation of a new treaty, like the ICC, is somehow a threat to the United States’ sovereignty or the role of its Constitution.

In addition, Bolton argues that “the Court’s structure is contrary to fundamental American principles, including checks and balances on authority and the separation of powers…..The International Criminal Court, however, melds two of these branches together: the judicial and the executive. In the ICC structure, the executive branch—the Office of the Prosecutor—is an organ of the Court. The Framers of our Constitution considered such a melding of powers unacceptable for our own government, and we should certainly not accept it in the ICC. ”  This is a curious argument: while it may be true that the ICC does not espouse the same separation of powers structure that the United States government does, the United States cannot possibly expect that every treaty-based organization adopt American governance principles.  Multilateral treaties bind multiple nations together and often adopt compromise positions and the “lowest common denominator” of norms; it is not reasonable to expect that treaties would replicate Unites States’ constitutional structures.  And, such replication is not constitutionally mandated.  The United States can become a member of various treaty-based bodies, so long as its obligations under such treaty mechanisms do not directly conflict with the Constitution.  Nothing in the ICC Statute would create such a constitutional conflict.  Thus, Bolton’s argument here is both surprising and unsupported by the Constitution.

Bolton also argues that the ICC “claims ‘automatic jurisdiction,’ meaning that it can prosecute individuals even if their own governments have not recognized, signed, or ratified the treaty.”  This is not true either: the ICC does not have automatic jurisdiction, and Article 12 of its Rome Statute posits that a precondition to the court’s exercise of jurisdiction is that the alleged crimes be committed by a national of a state party, or on the territory of a state party (or if a state accepts the court’s jurisdiction).  Thus, while the ICC may be able to prosecute nationals of a non-party state, this situation is far from automatic, and may only occur if such nationals commit crimes on the territory of a state party.

Bolton claims that the ICC Prosecutor’s request  to investigate Americans for alleged detainee abuse in Afghanistan is “an utterly unfounded, unjustifiable investigation.”  This investigation is not unfounded in and of itself; the investigation will permit the Prosecutor to ascertain enough facts to decide whether to go forward with any possible prosecutions.  Moreover, the investigation is not unjustifiable, as it falls within the Court’s mandate, and as potential prosecutions would satisfy the Court’s temporal and subject-matter jurisdiction.

Bolton proceeds to criticize the ICC because it “claims jurisdiction over crimes that have disputed and ambiguous definitions, exacerbating the Court’s unfettered powers.  The definitions of crimes, especially crimes of aggression, are vague and subject to wide-ranging interpretation by the ICC.”  This claim is inaccurate: the ICC Statute specifically defines the crimes over which the Court has jurisdiction, and the interpretation and application of these definitions is appropriately left in the hands of the Court’s judiciary, in the same manner that the interpretation and application of domestic statutes is bestowed upon domestic judiciaries.  In addition, Bolton then argues that the ICC would somehow claim universal jurisdiction.  “The next obvious step is to claim complete, universal jurisdiction: the ability to prosecute anyone, anywhere for vague crimes identified by The Hague’s bureaucrats.”  There is nothing in the ICC’s Statute to support this conclusion, and while the Rome Statute negotiating record reveals that different states held different views regarding the Court’s reach and structure, it is false to claim that any serious intentions existed to provide the Court with universal jurisdiction over “anyone” or over “vague crimes.”

Finally, some of Bolton’s claims are, while not completely factually inaccurate, misguided and contrary to United States’ interests.  First, Bolton claims that the ICC is ineffective, as it has spent too much money, has prosecuted few individuals, and has not deterred the commission of atrocities in places such as the DRC, Sudan, Libya, or Syria.  This may be a fair criticism of the Court, but accepting such criticism could lead one to adopt a pro-ICC policy, to support the Court, and to ensure that the Court has better funding and better opportunities to truly deter the commission of atrocities, through its investigative and prosecutorial mechanisms.  This approach would benefit both the Court and all states which are committed to principles of accountability and individual criminal responsibility (United States should be positioned as a leader within this group of countries).  Second, Bolton believes that the ICC is superfluous, because of superior United States’ judicial and ethical standards.  According to Bolton, we do not need the ICC because the United States can handle its own investigations much better.  Bolton argues that the ICC’s application of the complementarity principle is “farcical” and  that the Prosecutor will decide which investigation to pursue based on political motives.  While the ICC has been criticized on complementarity grounds (in the Libya case in particular), there is nothing to suggest that the Prosecutor does not consider complementarity issues seriously, in each case that has been initiated with the Court.  And, even accepting that the United States’ judicial system is superior to the ICC, one could imagine a situation where the United States is unwilling to investigate its own wrongdoing; the ICC’s role is to act in such situations and to provide justice and accountability against perpetrators whose home countries choose to shield them.

Last but not least, most troubling is Bolton’s threat against those who cooperate with the ICC.  “We will respond against the ICC and its personnel to the extent permitted by U.S. law.  We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.”  It is absolutely within the United States’ sovereignty to refuse to issue visas/entry to ICC officials who may be foreign nationals (although this would be terrible policy).  However, it is simply unbelievable to announce that the United States would prosecute ICC officials, and other companies or states who assist the ICC, in the U.S. domestic system.  ICC officials are highly respected experts in international criminal law; judges, prosecutors, investigators, and other individuals who have committed their careers to the pursuit of international justice.  Those who assist or have assisted the ICC include our colleagues – the most prominent experts in international criminal law, who have provided advice and expertise to the Court.  What crimes have such individuals committed under United States law? And, how would such prosecutions (even if grounded in U.S. law) affect the United States’ role in international relations and in the world community? John Bolton’s speech is both factually inaccurate as well as misguided, and a new American policy vis-a-vis the ICC, built on Bolton’s remarks, will be detrimental to our own interests and our position in the global community.

For other commentary regarding Bolton’s speech, see here and here.

 

New supplements to the International Protocol on documentation and investigation of sexual violence in conflict for Iraq, Myanmar and Sri Lanka

Cover_Myanmar_Burmese supplement.jpgOnce hidden and unspoken, reports of sexual violence now feature prominently in daily media dispatches from conflict zones around the world. This visibility has contributed to a new emphasis on preventing and addressing such violence at the international level.

Promoting the investigation and documentation of these crimes is a key component of the international community’s response. However, this response requires thoughtful and skilled documenters.  Poor documentation may do more harm than good, retraumatising survivors, and undermining future accountability efforts.

Recently, the Institute for International Criminal Investigations (IICI) and international anti-torture organisation REDRESS, with the funding support of the United Kingdom’s Foreign and Commonwealth Office (FCO), have launched a series of country-specific guides to assist those documenting and investigating conflict-related sexual violence in Myanmar, Sri Lanka and Iraq.

The guides (available in English, Burmese, Tamil, Sinhalese, Arabic and Kurdish on the REDRESS and IICI websites) complement the second edition of the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict, published in March 2017 by the FCO.

The Protocol aims to support practitioners to document appropriately by providing a “set of guidelines setting out best practice on how to document, or investigate, sexual violence as a war crime, crime against humanity, act of genocide or other serious violation of international criminal, human rights or humanitarian law”. It is a tremendous resource for practitioners, covering theoretical, legal and practical aspects of documentation.

However, as the Protocol itself makes clear, documentation of conflict-related sexual violence is highly context-specific. Each conflict situation and country has individual legal and practical aspects that must be considered alongside the Protocol’s guidelines.

The guides aim to fill this gap by addressing the context for and characteristics of conflict-related sexual violence in the three countries. They address legal avenues for justice domestically and at the international level, specific evidential and procedural requirements and practical issues that may arise when documenting such crimes.

The publication of these guides on the three different countries highlights some interesting comparisons and contrasts.  Although the background to and most common forms of sexual violence differ from country to country, the motivations for the violence have parallels. Similarly, the stigmatisation of survivors is a grave concern in each country, influencing all aspects of daily life for them and the way that institutions and individuals respond to the crimes committed against them.

In all three countries, a landscape of almost complete impunity prevails, and in many situations survivors, their families and practitioners face significant threats to their security – often from state actors (e.g. police, military, state security). This harsh reality is borne out by the fact that although the drafting of the supplements relied heavily on the experience and input of local practitioners, due to security concerns, very few were able to be individually acknowledged for their contributions.  Continue reading

Children Born of Rape in Bemba: Can the ICC Close the Accountability Gap?

BembaChildren born of sexual and gender-based violence in situations of conflict and mass violence have, until recently, been neglected in international criminal law. These children exist in what the Secretary-General on Sexual Violence in Conflict has previously termed an “accountability gap” as the “punishment against or redress by the perpetrator rarely includes reparations for the women who were victimized or the children who were born as a result of rape”.

Such children have, however, featured in recent cases at the International Criminal Court (ICC). For instance, in the case against Jean-Pierre Bemba Gombo, leader of the Congolese Movement of Liberation of the Congo (MLC), convicted in March 2016 of war crimes and crimes against humanity for crimes committed by his troops in the Central African Republic (CAR) between 2002 and 2003, unwanted pregnancies and the birth of children were identified during sentencing as a harm of rape. This case represents the first time the ICC will have the opportunity to provide reparations to victims of rape and a recent Expert Report on reparations suggested that children born of rape should be included within this process.

Children Born of Rape in Bemba

It is unclear how many children were born of rape as a result of Bemba’s MLC crimes. Expert testimony provided during the Trial, however, identified at least four women who suffered unwanted pregnancies as a result of rape, noting that:

One victim did accept the child as being her own, so took on, shouldered that. There was another one who didn’t want to have anything to do with the child she had given birth to, and there was a third one who had an abortion. Actually, she had to do this in hiding, and that meant that there were medical consequences to that abortion. And a fourth, well, we lost track of her. We do not know what the outcome in terms of this pregnancy was.

These children, who are about 13 years old now, are in a precarious situation in terms of their own identity and family relations, as explained by the mother of one of the children during the sentencing hearing:

She doesn’t know who her father is. She doesn’t know where he is. She has no news of him. And I wonder how things will develop. I ask God if I die, what will happen to that child? The three others which I had, I know that their father’s families are there, and if something happened to me, those children could go and live with the family of their father. But when it comes to this child, what will her fate be if anything happens to me? Continue reading

Important essays on myriad international law subfields in our new OUP book, “Arcs of Global Justice: Essays in Honour of William A. Schabas”

LONDON – Building on yesterday’s post about the magical London conference launching Arcs of Global Justice: Essays in Honour of William A. Schabas (Margaret M. deGuzman and Diane Marie Amann eds.), today’s post profiles the book itself, which, thanks to excellent assistance from John Louth, Blake Ratcliff, and their staff, has just been published by Oxford University Press. (The hardback may be ordered via OUP or Amazon, and the book’s also available on Kindle.)

Very pleased to have coedited this volume with my colleague Meg, another longtime IntLawGrrls contributr. The concept, in our words:

Martin Luther King, Jr. once said ‘the arc of the moral universe is long, but it bends toward justice.’ Testing the optimism of that claim were the many fits and starts in the struggle for human rights that King helped to catalyze. The same is true of other events in the last half-century, from resistance to apartheid and genocide to equal and fair treatment in domestic criminal justice systems, to the formation of entities to prevent atrocities and to bring their perpetrators to justice. Within this display of myriad arcs may be found the many persons who helped shape this half-century of global justice-and prominent among them is William A. Schabas. His panoramic scholarship includes dozens of books and hundreds of articles, and he also has served as an influential policymaker, advocate, and mentor.”

“This work honours William A. Schabas and his career with essays by luminary scholars and jurists from Africa, Asia, Europe, and the Americas. The essays examine contemporary, historical, cultural, and theoretical aspects of the many arcs of global justice with which Professor Schabas has engaged, in fields including public international law, human rights, transitional justice, international criminal law, and capital punishment.

In all, the book includes 29 contributions by 35 academics, advocates, and jurists, as detailed in the table of contents below (the several who also have contributed to IntLawGrrls are marked by asterisk). Providing jacket-cover testimonials were Steven Kay QC, Philippe Sands QC, Professor and former Ambassador David Scheffer, and Judge Christine Van den Wyngaert. We hope that you’ll follow their recommendations and give these important, substantive essays a very good read.

Arcs of Global Justice:
Essays in Honour of William A. Schabas

Foreword by Diane Marie Amann* and Margaret M. deGuzman,* coeditors
Introduction: William Schabas: Portrait of a Scholar/Activist Extraordinaire by Roger S. Clark, Board of Governors Professor of Law, Rutgers University School of Law

Human Rights
Human Rights and International Criminal Justice in the Twenty First Century: The End of the Post-WWII Phase and the Beginning of an Uncertain New Era by M. Cherif Bassiouni (He died at age 79 in September, just weeks after he completed final changes on this essay; as posted, our conference included a memorial to him. At the time of his death, he was Emeritus Professor of Law, DePaul University College of Law; Honorary President, Siracusa Institute for Criminal Justice and Human Rights; and Honorary President, L’Association internationale de droit pénal.)
William Schabas, the Canadian Charter of Rights and Freedoms and International Human Rights Law by Justice Thomas A. Cromwell, Supreme Court of Canada, and Bruno Gélinas-Faucher, formerly a law clerk on that court and now a Cambridge PhD candidate
The International Convention on the Protection of All Persons from Enforced Disappearance, as a Victim-Oriented Treaty by Emmanuel Decaux, Professor Emeritus, Université Paris 2 (Panthéon-Assas), and former President, Committee on Enforced Disappearances
The Politics of Sectarianism and its Reflection in Questions of International Law & State Formation in The Middle East by Kathleen Cavanaugh, Senior Lecturer at the Irish Centre for Human Rights, National University of Ireland Galway, and  Joshua Castellino, Professor of Law & Dean of the School of Law, as well as the Business School, at Middlesex University, London

Capital Punishment
International Law and the Death Penalty: A Toothless Tiger, or a Meaningful Force for Change? by Sandra L. Babcock,* Clinical Professor of Law at Cornell Law School and Faculty Director of the Cornell Center on the Death Penalty Worldwide
The UN Optional Protocol on the Abolition of the Death Penalty by Marc Bossuyt, Fellow at the Stellenbosch Institute for Advanced Study, Emeritus Professor of the University of Antwerp, Emeritus President of the Constitutional Court of Belgium, and former Chairman of the UN Commission on Human Rights
The Right to Life and the Progressive Abolition of the Death Penalty by Christof Heyns, formerly the UN Special Rapporteur on extrajudicial, summary or arbitrary executions from 2010 through 2016, and now a member of the UN Human Rights Committee and Professor of Human Rights Law at the University of Pretoria, Thomas Probert, Research Associate, Centre of Governance & Human Rights, University of Cambridge, and Tess Borden, Aryeh Neier Fellow at Human Rights Watch and the American Civil Liberties Union, and former researcher for the UN Special Rapporteur on extrajudicial, summary or arbitrary execution
Progress and Trend of the Reform of the Death Penalty in China by Zhao Bingzhi, Dean of the College for Criminal Law Science of Beijing Normal University, President of the Criminal Law Research Association of China, Vice-President of the International Association of Penal Law, and President of that association’s Chinese National Group

International Criminal Law
Criminal Law Philosophy in William Schabas’ Scholarship by Margaret M. deGuzman,* Professor of Law at Temple University’s Beasley School of Law
Is the ICC Focusing too Much on Non-State Actors? by Frédéric Mégret, Associate Professor and Dawson Scholar, Faculty of Law, McGill University
The Principle of Legality at the Crossroads of Human Rights and International Criminal Law by Shane Darcy, Senior Lecturer at the Irish Centre for Human Rights, National University of Ireland Galway
Revisiting the Sources of Applicable Law Before the ICC by Alain Pellet, Emeritus Professor at the University of Paris Nanterre, former Chairperson of the UN International Law Commission, President of the French Society for International Law, Member of the Institut de droit international, as well as Counsel and Advocate before the International Court of Justice, the International Tribunal for the Law of the Sea, and other forums
The ICC as a Work in Progress, for a World in Process by Mireille Delmas-Marty,* Member, Institut de France, and Professor Emerita, Collège de France de Paris
Legacy in International Criminal Justice by Carsten Stahn, Professor of International Criminal Law and Global Justice, Leiden University
Torture by Private Actors and ‘Gold Plating’ the Offence in National Law: An Exchange of Emails in Honour of William Schabas by Andrew Clapham, Professor of Public International Law at the Graduate Institute of International and Development Studies in Geneva, and Paola Gaeta, Professor of International Law and International Criminal Law at the Graduate Institute of International and Development Studies, Geneva

Genocide and Crimes Against Humanity
Secrets and Surprises in the Travaux Préparatoires of the Genocide Convention by Hirad Abtahi, First Legal Adviser, Head of the Legal and Enforcement Unit, at the Presidency of the International Criminal Court, and Philippa Webb, Reader (Associate Professor) in Public International Law at King’s College London and a barrister at 20 Essex Street Chambers
Perspectives on Cultural Genocide: From Criminal Law to Cultural Diversity by Jérémie Gilbert, Professor of International and Comparative Law, University of East London
Crimes Against Humanity: Repairing Title 18’s Blind Spots by Beth Van Schaack,* Leah Kaplan Visiting Professor in Human Rights at Stanford Law School and Visiting Scholar at the Center for International Security & Cooperation at Stanford University
A New Global Treaty on Crimes Against Humanity: Future Prospects by Leila Nadya Sadat,* James Carr Professor of International Criminal Law and Director of the Whitney R. Harris World Law Institute at Washington University School of Law, Special Adviser to the ICC Prosecutor on Crimes Against Humanity, and Director of the Crimes Against Humanity Initiative

Transitional Justice and Atrocity Prevention
Justice Outside of Criminal Courtrooms and Jailhouses by Mark A. Drumbl,* Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington and Lee University School of Law
Toward Greater Synergy between Courts and Truth Commissions in Post-Conflict Contexts: Lessons from Sierra Leone by Charles Chernor Jalloh, Professor of Law, Florida International University, and a member of the International Law Commission
International Criminal Tribunals and Cooperation with States: Serbia and the provision of evidence for the Slobodan Milosevic Trial at the ICTY by Geoffrey Nice QC, a barrister since 1971, formerly at the International Criminal Tribunal for the Former Yugoslavia, and Nevenka Tromp, Lecturer in East European Studies at the University of Amsterdam and former member of the ICTY Leadership Research Team
The Arc toward Justice and Peace by Mary Ellen O’Connell,* the Robert and Marion Short Chair in Law at the University of Notre Dame Law School
The Maintenance of International Peace and Security through Prevention of Atrocity Crimes: The Question of Co-operation between the UN and regional Arrangements by Adama Dieng, UN Under-Secretary-General and Special Adviser on the Prevention of Genocide, as well as former Registrar of the International Criminal Tribunal for Rwanda and former Secretary-General of the International Commission of Jurists

Justice in Culture and Practice
Law and Film: Curating Rights Cinema by Emma Sandon, Senior Lecturer in Film and Television at Birkbeck, University of London, and a Research Fellow to the Chair for Social Change, University of Johannesburg
The Role of Advocates in Developing International Law by Wayne Jordash QC, international human rights and humanitarian lawyer and founding partner of Global Rights Compliance
Bill the Blogger by Diane Marie Amann,* Emily and Ernest Woodruff Chair in International Law and Faculty Co-Director of the Dean Rusk International Law Center at the University of Georgia School of Law

(Cross-posted from Diane Marie Amann)

Corporate accountability: Dutch court convicts former “Timber baron” of war crimes in Liberia

On 21 April 2017, the Dutch Court of Appeal in ‘s-Hertogenbosch issued a decision holding Mr Guus Kouwenhoven, a Dutch national, responsible as an accessory to war crimes committed in Liberia and parts of Guinea between August 2000 and December 2002. The decision is one of few to address corporate accountability for war crimes. As the president of the Oriental Timber Company (OTC) and director of the Royal Timber Company (RTC), Mr Kouwenhoven supplied weapons, and material, personnel and other resources to former Liberian President Charles Taylor and his armed forces, which were used to fuel their fight against a rebel group, the Liberians United for Reconciliation and Democracy (LURD). The court held Mr Kouwenhoven liable not only for directly violating a UN arms embargo in place at the time, but equally as an aider and abettor to war crimes that were committed using the resources he provided, including rape, pillage, murder, and inhumane treatment. Here are a few highlights.

The case against Guus Kouwenhoven

The crimes for which Mr Kouwenhoven stood trial were alleged to have been committed during the second Liberian Civil War between 2000 and 2002, when Former Liberian President Charles Taylor was fighting a brutal war against LURD. The specific charges related to crimes committed in Voinjama and Kolahun in Lofa County in Liberia, as well as in Guéckédou, across the border in Guinea. Although the charges against Mr Kouwenhoven related to his having been “complicit in repeated violations of the laws and customs of war, to wit murder or rape”, the allegations covered a range of different crimes. The court noted that unnamed (co-)perpetrators, members of Charles Taylor’s armed forces, indiscriminately fired at civilians and military targets, burned houses with civilians trapped inside, cut off people’s heads, smashed babies against walls to kill them, forced civilians to undress before shooting them, and raped women and children.

As director and president of two of the largest timber companies in Liberia, Mr Kouwenhoven’s business interests were closely tied to former President Charles Taylor’s political, financial, and personal interests. Mr Kouwenhoven maintained frequent contact with Charles Taylor, who had financial interests in his two companies and frequently received payments and other resources. In exchange, Mr Kouwenhoven gained access to large swathes of territory for the exploitation of timber and was given de facto control over the Buchanan port.

The court noted that Mr Kouwenhoven used his companies to import, store, and distribute weapons in Liberia, in clear violation of the UN arms embargo. He provided trucks for the transportation of armed forces, weapons and ammunition, and facilitated the import of weapons and ammunition. He also actively encouraged his employees to support Charles Taylor, such as by unloading weapons from his ships in Buchanan and transporting them to various places in Liberia or participating actively in the fighting, and threatened those who refused with dismissal. He also allowed the armed forces access to an RTC camp, effectively used as a meeting place and a mechanism for storage and resupply of weapons to the frontline.

Corporate accountability for international crimes

Importantly, Mr Kouwenhoven is not convicted of directly perpetrating international crimes himself. Rather, the court held that he made an “active and conscious” contribution to the commission of serious violations of international humanitarian law, by the provision of material, personnel, and other resources through his businesses in Liberia. Although he had been charged in the alternative as (co-)perpetrator and as an accessory to the crime, he was ultimately convicted as an aider or abettor.

Continue reading

Gender-based persecution on the International Criminal Court’s radar

Sexual and gender-based crimes were high on the ICC’s agenda in 2016 – a trend which looks set to continue this year. In March 2016, the Court handed down its first conviction for rape, and in December, its first trial to feature charges of forced pregnancy and forced marriage began.

There was also a focus on sexual and gender-based crimes in situations under preliminary examination, including the crime against humanity of ‘gender-based persecution’, which has never before been prosecuted by an international criminal tribunal.

burkas

Women in Afghanistan, one of the two preliminary examinations where the ICC Office of the Prosecutor is reviewing information on gender-based persecution (Photo credit: Shah Marai / AFP).

This focus on gender-based persecution can be seen in the ICC Office of the Prosecutor’s most recent Preliminary Examinations Report, which gives an update on the ten situations currently under ‘preliminary examination’ (an initial filtering process, in which the ICC Prosecutor reviews information on alleged crimes and decides whether a full-scale investigation is warranted).

The report confirms that the Prosecutor is on the brink of deciding whether to open an investigation into the situation in Afghanistan, which has been under preliminary examination in the since at least 2007.

This investigation, if it goes ahead, will be historic. It will be the first time that any international criminal tribunal, past or present, has looked into war crimes by US nationals. It will also be the first investigation to specifically contemplate the crime against humanity of gender-based persecution – or the first one on public record, at least.  Continue reading

Call for Papers-International Criminal Justice: Theory, Policy and Practice April 2014

Socio-Legal Studies Association Annual Conference (Newcastle University) 5-7 April 2017

http://www.slsa2017.com

The international criminal justice stream a the SLSA Annual Conference contains four panel sessions and invites submission on all areas of substantive international criminal justice, whether on theory, policy or practice. Empirical work would be particularly welcomed and papers based on “works in progress” will be considered so long as the work is sufficiently developed. Both individual papers and panel submission (of three related papers) can be submitted for consideration. Postgraduate students are also encourage to submit abstracts.

Selected papers from the conference will be published in a forthcoming edition of The Hague Justice Journal.

 

For an informal discussion please email the convenor, Anna Marie Brennan at Anna.Marie.Brennan@liverpool.ac.uk

 

Abstracts must be no longer than 300 words and must include your title, name and institutional affiliation and your email address for correspondence. 

Call for Papers: Transnational Criminal Law in America

  • What are the most pressing transnational criminal law issues facing the Americas today and how are these issues evolving and shifting?
  • Should greater emphasis be placed on regional responses to transnational criminal law and how should such regional responses be structured?
  • What assumptions underlie the current legal regimes addressing transnational crime and do they adequately reflect the reality of transnational criminality today?

Interested in answering these questions, or those similar to it? The University of Windsor (curated by Professor Sara Wharton) invites you to submit a your answers! Individuals chosen will have the opportunity to present their ideas at the Transnational Criminal Law in the Americas Conference May 4-5, 2017 at the University of Windsor Ontario, Canada.

Those interested in presenting at the conference are invited to apply by email to tljnconference2017@uwindsor.ca no later than January 20, 2017.

Applications should include:

  • an abstract of 300 words maximum
  • your name(s), affiliation(s) and contact information
  • a short biography

For more information click here!

Two Steps Forward, One Step Back

one-step-forward

Book cover, courtesy International Nuremberg Principles Academy. (Original: Montana Historical Society)

On 4 November 2016 in Nuremberg, at its annual forum commemorating the 70th anniversary of the adoption of the Nuremberg Principles by the UN General Assembly, the International Nuremberg Principles Academy launched its first book, a volume of deterrence studies titled, Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals. This volume comprises ten country studies (Serbia, Kosovo, Rwanda, Sierra Leone, DRC, Uganda, Darfur, Kenya, Cote d’Ivoire and Mali), as well as a chapter on methodology, and conclusions drawing from all the country studies, with recommendations for further action.

Two Steps Forward is notable in a number of respects. While various articles have addressed deterrence in international criminal law in some fashion, it is apparently the first volume that addresses the issue so comprehensively. It also ventures to offer conclusions on the question of deterrence based on quantitative and qualitative research, noting that nearly 20 years have passed since the ICTY and ICTR’s establishment, and nearly 15 since the ICC and Sierra Leone Special Court’s establishment. While the Nuremberg trials themselves arguably took several generations for their effects to be fully felt, enough time has passed that it is fair to begin to examine what has been the deterrent effect so far of international tribunals, and how that effect can be enhanced or improved.

The good news is that in all of the country situations surveyed, at least some deterrent effect was reported. The authors draw on quantitative factors first to assess whether overall criminality has risen or fallen, a fundamental baseline for asking whether crimes have thereafter been deterred. The authors draw on qualitative factors to assess perceptions of deterrence, in particular amongst perpetrators and potentially like-minded individuals, including members of militaries and rebel groups, political actors, diplomats and politicians, as well as academics, civil society members and victims. Perceptions of deterrence are as significant as objectively measurable deterrence; people act on their perceptions, for good or bad, and these actions can help determine whether further crimes will be committed. In all the situation countries surveyed, the authors found that while the international court or tribunal concerned had a deterrent effect, both objective and perceived, it proved difficult to sustain because the factors supporting it often fell apart. This is an important starting point for examining how to ensure that any hard-won deterrent effect is not ultimately lost. Continue reading