Expressive case selection at the ICC

(Delighted to welcome back alumna Margaret deGuzman, who contributes this guest post)

My draft article, Choosing to Prosecute: Expressive Selection at the International Criminal Court, tackles what I believe to be the most important challenge facing the ICC: how to allocate its extremely scarce resources.
The ICC has the mandate to “end impunity” for serious international crimes around the world but the resources to prosecute only a handful of cases each year. Unlike national courts, which are expected to prosecute most serious crimes in their jurisdictions, the ICC’s legitimacy is closely tied to perceptions of relevant audiences that it is choosing to prosecute the “right” crimes and the “right” defendants. Audiences who believe that the Court’s prosecutor, and to a lesser extent its judges, are focusing on the “wrong” cases tend therefore to challenge the legitimacy of the institution itself. Such challenges have been discouragingly common recently with African voices in particular speaking out against the ICC and one state – Kenya – threatening to withdraw from the regime.
The debate in academic and advocacy circles about how the ICC should select cases for prosecution currently centers on the role politics plays and should play in such decisions. Critics charge that the ICC operates as a tool of powerful states, while the Court’s Prosecutor, Luis Moreno-Ocampo (right), claims that his decisions are apolitical. Some scholars argue for greater recognition of the inevitable influence of politics on selection decisions, while others advocate selection procedures they believe will insulate the Court from such influence. Those who focus on process, including Moreno-Ocampo, suggest that selection decisions can enhance the Court’s legitimacy if they adhere to recognized principles of good process such as independence, impartiality, objectivity, and transparency. In particular, Moreno-Ocampo and others claim that cases can be selected according to an objective analysis of their relative gravity.
This focus on politics and process has obscured what I believe to be the chief threat to the ICC’s legitimacy: the absence of generally accepted goals and priorities for the institution’s work.
My article therefore seeks to reframe the debate about prosecutorial and judicial selection discretion at the ICC. The article demonstrates that the ICC’s selectivity threatens its legitimacy not merely because of the potential for improper political influence, but more centrally because the international community failed to endow the institution with clear objectives to guide its actions. To enhance the Court’s legitimacy, therefore, its supporters must engage in a constructive dialogue about the institution’s role in the global legal order.
In additional to highlighting the inadequate theoretical underpinnings of the Court’s work, the article proposes that the ICC adopt an expressive approach to selecting situations and cases to investigate and prosecute.
I do not dismiss the other dominant philosophies of international criminal law: retribution, deterrence, and restorative justice. Rather, I accept that each of these may help to justify particular prosecutions under particular circumstances.
At the same time, I argue that the primary basis for selecting one case or situation over another should not be the relative desert of perpetrators, which is extremely hard to measure, or the prospects for deterrence, which are virtually unknowable, or even the extent to which different individuals or communities are in need of restoration.
Rather, the best use of the ICC’s very limited resources is to focus on situations and cases that maximize the ICC’s expression of global norms. Such expression provides the best hope of contributing to crime prevention, not by deterring potential criminals, but by transforming the normative framework in which decision-makers operate.
My expressive prescription raises questions about what global norms the ICC should seek to express and in what order of priority – questions to which there are no clear answers, just as there is no international consensus about the goals of the Court more broadly. Nonetheless, I argue that by focusing explicitly on an expressive agenda, ICC selection decision makers can stimulate a dialogic process where norms are expressed, feedback received and, ideally, consensus builds over time.
To some extent this is already happening. When the ICC has pursued cases involving child soldiers or crimes against peacekeeper or election-related violence, it has sent a message that members of the international community – or at least the parties to the Rome Statute – feel strongly about condemning and preventing those types of crimes. In fact, as I posted, in a recent address at the American Society of International Law annual meeting, ICC Deputy Prosecutor Fatou Bensouda (left) highlighted this messaging function of the Court.
In my view, this focus on norm expression should be more explicitly adopted as a selection strategy, replacing the current pretense that selections are made based on objective assessments of relative gravity or the consistent application of other criteria.
An expressive agenda has at least the potential to enhance the ICC’s legitimacy by highlighting the value choices that undergird the Court’s selection decisions, inviting relevant audiences to react, and permitting the Court to adjust its choices to reflect the values of its constitutive communities.
The article is in draft form, and I welcome comments!

Whither now the United States & the ICC?

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

The relationship between the United States and the International Criminal Court has recently come full circle. The United States has transitioned from being an ICC supporter to opponent, and back again, in little more than a decade. The current climate -- of “positive and principled” U.S. engagement with the Court -- represents a dramatic change from the United States’ formerly hostile position. (credit for June 2010 photo of U.S. State Department briefing on ICC) The new reality includes:
► Active involvement with the Court’s Assembly of States Parties;
► U.S. promises to assist with ICC prosecutions; and
► An ICC President who is now “very optimistic and hopeful” about the prospect of the United States ultimately joining the Court.
How likely is the possibility of U.S. accession to the ICC Statute?
This is the question that I address in my new article, "The United States and the International Criminal Court Post-Bush: A Beautiful Courtship, but an Unlikely Marriage," forthcoming in the Berkeley Journal of International Law. My conclusion, evidenced in the article’s title, is unlikely to surprise. What may prove unexpected, however, is the reasoning behind it.
The crux of my argument does not turn upon any of the concerns historically raised by U.S. opponents of the Court. To the contrary, I first illustrate why much of the early anti-ICC rhetoric has been neutralized by the Court’s work to date. For example:
► The Prosecutor: The standard contention that the ICC Prosecutor is likely to target U.S. nationals is difficult to sustain when viewed through the lens of current practice. The reality is ICC investigations have thus far—and not coincidentally—aligned with U.S. foreign policy interests. ICC Prosecutor Luis Moreno-Ocampo (right) has likewise demonstrated a noticeable hesitancy to employ his power to trigger the Court’s jurisdiction, the would-be tool for those oft-anticipated “politicized prosecutions.”
Instead, the Prosecutor has embraced the sovereignty-friendly practice of self-referrals (referrals made by states of situations on their own territories). He has only once triggered the Court’s jurisdiction himself, and only then with the apparent support for this proprio motu exercise from both the territorial state (the Republic of Kenya) and the United States.
► Aggression: Another source of U.S. anxiety—the Court’s subject matter jurisdiction over the crime of aggression—was put to rest during this year’s Review Conference of the Rome Statute, about which many IntLawGrrls have posted. Noting U.S. dissatisfaction with the recently adopted definition of the crime (prior IntLawGrrls post), I explain why these perceived flaws are ultimately of little significance to U.S. interests. The Court’s ability to exercise its jurisdiction over alleged acts of aggression is the crucial factor.
In this respect, the United States has found a friend in new Article 15 bis. The provision both insulates nationals of non-member states from the Court’s aggression prosecutions and allows state parties to opt out of the Court’s aggression jurisdiction (which, presumably, the United States would do, should it ultimately ratify the Rome Statute). As such, a U.S. national can be tried for aggression at the ICC only through a U.N. Security Council referral, an unlikely possibility that would require at least tacit U.S. approval.
These and other developments help to account for the present U.S. position and illustrate why, assuming status quo, U.S. support for the Court will likely continue.
What, then, is the barrier to the burgeoning U.S.-ICC relationship?
Simply put, it is that the ICC does not appear poised to fulfill its intended and self avowed role as a “court of last resort.”
Contrary to the United States’ longstanding and clear preference for justice at the national level, the Court’s jurisprudence makes clear that the ICC is in no way limited to acting only when there is no alternative forum for investigation or prosecution.
At the heart of the cases I consider is the principle of complementarity, a fundamental aspect of the Court’s Statute commonly thought to mean that the ICC can intervene only if a state with jurisdiction is unwilling or unable to carry out an investigation or prosecution. This definition of complementarity is so prevalent it appears in the latest edition of Black’s Law Dictionary.
A 2009 ICC Appeals Chamber decision, however, definitively rejects this interpretation. According to this Appeals Chamber decision in the case of Prosecutor v. Katanga and Chui, the Court’s ability to act is limited by the principle of complementarity only if national proceedings are being (or have been) conducted. In the absence of any domestic activity, there is, in the Chamber's view simply no impediment to case admissibility.
As I explain in the article, “inaction admissibility” has many sides. Among them:
►The Good: Recalcitrant states cannot, by doing nothing, shield perpetrators of atrocities from ICC prosecutions.
►The Bad: As applied thus far, inaction admissibility may discourage otherwise “willing and able” states from fulfilling their responsibility to investigate and prosecute international crimes. States that prefer for the Court to do the heavy lifting can make this happen by simply referring a situation and then doing nothing.
►The Ugly: The Appeals Chamber in Katanga and Chui, a case arising out of the situation in the Democratic Republic of Congo, has given the ICC Prosecutor a veritable blank check to target individuals who are already the subject of relevant (perhaps even identical) national proceedings. Provided that the domestic proceedings are terminated in a timely fashion, and in favor of the ICC prosecution, a case is considered admissible due to “inaction.”
Quite obviously, the second and third points (combined with other factors discussed in the article) spell trouble for the prospect of U.S. ratification.
The absence of any limitations on inaction admissibility means that the Court may address, and perhaps is presently addressing, matters that could be prosecuted at the national level. As long as inaction admissibility remains ripe for abuse in this way, the United States will have a compelling reason not to assume the role of the Court’s leading funder.
Accordingly, the article concludes by isolating the factors that have brought this problem to the fore and discussing what can be done to remove this new impediment to U.S. accession.
The full paper is posted here. I welcome your comments!

Breaking News: ICC Kenya Indictments Announced

As expected, Prosecutor Luis Moreno Ocampo today requested under Article 58 that the International Criminal Court issue summons to appear to six Kenyans in connection with his proprio motu investigation into post-election violence in Kenya. We've blogged about this and other issues involving transitional justice in Kenya here, here, here, and here. The six individuals to be prosecuted in two cases are:
1. William Samoei Ruto (left) who is the suspended Minister of Higher Education, Science and Technology and a member of Parliament for Eldoret, one of the places hardest hit by the violence. He was a supporter of Raila Odinga, Kenya's Prime Minister.
2. Henry Kiprono Kosgey is the Minister of Industrialization and a MP for Tinderet Constituency. He is former chair of the orange Democratic Movement (ODM), Odinga's party.
3. Joshua Arap Sang (right) is currently Head of Operations of and a commentator on a Kenyan radio station. He was accused of inciting violence after the elections.
The highly-redacted Article 58 Applications for the Odinga supporters is available here.
4. Francis Kirimi Muthaura (below right, addressing Kofi Annan) is Head of the Public Service and Secretary to the Cabinet and Chairman of the National Security Advisory Committee and a Kibaki supporter. He is accused of authorizing the police to use excessive force against ODM supporters.
5. Uhuru Muigai Kenyatta is currently the Deputy Prime Minister and Minister of Finance and Chair of the KANU party. He is the son of Jomo Kenyatta, Kenya's first president.
6. Mohamed Hussein Ali is Chief Executive of the Postal Corporation of Kenya and was Commissioner of the Kenya Police in the post-election period.
The equally-redacted Article 58 Application for the Party of National Unity supporters is available here. The crimes against humanity to be charged include murder, torture, persecution, and deportation.
The full Press Release is here and a video of the press conference is here. All suspects have apparently been on television stating they would cooperate with the ICC, although many of have publicly discredited the investigation.
In response to the Applications, President Obama issued the following statement:

Today, as the International Criminal Court announces the names of six suspects alleged to have participated in the post-election violence that threatened to tear Kenya apart three years ago, I encourage all Kenyans take a moment to reflect on the tremendous progress their country has made since those dark days. Together, you have been working to reconcile your communities, to reform your institutions to better serve the public good, and to put your country on a path to lasting peace and prosperity. Kenya is turning a page in its history, moving away from impunity and divisionism toward an era of accountability and equal opportunity. The path ahead is not easy, but I believe that the Kenyan people have the courage and resolve to reject those who would drag the country back into the past and rob Kenyans of the singular opportunity that is before them to realize the country's vast potential.

In pursuit of these goals, I urge all of Kenya's leaders, and the people whom they serve, to cooperate fully with the ICC investigation and remain focused on implementation of the reform agenda and the future of your nation. Those found responsible will be held accountable for their crimes as individuals. No community should be singled out for shame or held collectively responsible. Let the accused carry their own burdens - and let us keep in mind that under the ICC process they are innocent until proven guilty. As you move forward, Kenyans can count on the United States as a friend and partner.

Hear, hear.

Kampala pix

(Another in IntLawGrrls' series of Kampala Conference posts)

Courtesy of IntLawGrrl Beth Van Schaack, the photo above of the All Africa Gala, part of the entertainment at the Review Conference of the Rome Statute of the International Criminal Court just concluded in Kampala, Uganda.
Beth also sends more photos: left, conference intervention by Stephen J. Rapp, U.S. Ambassador at Large for War Crimes Issues; left, press conference by ICC Prosecutor Luis Moreno-Ocampo;


right, screen depicting intervention by Harold Hongju Koh, U.S. State Department Legal Adviser.

ICC Review Conference Considers When International Criminal Adjudication Makes Sense

(Delighted to welcome back alumna Margaret deGuzman, who contributes this guest post to IntLawGrrls' series on the ICC Kampala Conference)

KAMPALA, Uganda – As others have noted in this series of posts, the Review Conference of the Rome Statute of the International Criminal Court under way in Kampala has devoted two days to a “stocktaking” exercise. The idea was to review key issues in international criminal justice with a view to enhancing the work of the ICC. These portions of the Review Conference felt a lot like law school panel discussions, except that after the panelists spoke they took questions and comments from representatives of states and NGOs rather than from faculty and students.

Two of the stocktaking topics – peace/justice and complementarity – raised important issues relevant to the advisability and legitimacy of ICC prosecutions in particular situations. The peace/justice discussion considered whether it is ever appropriate for justice to be sacrificed in the name of peace (a question on which IntLawGrrl Kathleen A. Doty yesterday posted with regard to Darfur). The complementarity session, meanwhile, concerned how the task of providing justice should be allocated between international and domestic courts. This post provides some details on those discussions, as well as a few thoughts about what was left out.

Peace/justice

Setting the stage for the peace/justice session was Human Rights Watch Executive Director Kenneth Roth session, who questioned the common assumption that peace and justice are in conflict. As evidence of a more harmonious relationship between these goals, Roth cited the claim by Richard Goldstone, the 1st Prosecutor of the ad hoc tribunals, that the Dayton peace accord would not have been possible without the issuance of arrest warrants of Bosnian Serb leaders Radovan Karadžić and Ratko Mladić. Roth also noted that many believe the peace process was assisted both by the indictments of Charles Taylor, then President of Liberia, by the Special Court for Sierra Leone and by the ICC’s pursuit of the leaders of the Lord's Resistance Army in Uganda. In contrast, Roth noted that amnesty agreements have often failed to secure lasting peace, citing Sierra Leone and Angola as examples.

David Tolbert, formerly Deputy Chief Prosecutor at the International Criminal Tribunal for the former Yugoslavia and now head of of the International Center for Transitional Justice, opined that amnesty is now entirely off the table in conflict resolution efforts. Tolbert noted, however, that prosecutors must be sensitive to the political situation on the ground – although politics can’t impact the decision to prosecute they might affect the timing of prosecutions.

Providing a somewhat different perspective was James LeMoyne, an experienced conflict mediator. LeMoyne emphasized the importance of stopping conflict to advance human rights. He recalled the threats of commanders with whom he negotiated in El Salvador that any talk of prosecution would lead directly to more killing. LeMoyne also pointed out that many of the people with whom he negotiates have not even heard of the ICC.

Barney Afako, a Ugandan human rights lawyer, cautioned that the LRA arrest warrants may have prevented an agreement to end the war, while Cambodian activist and Khmer Rouge survivor Youk Chhang asserted that victims always want justice. State representatives also expressed conflicting views on the peace/justice debate.

While many delegates, including representatives of Congo and the European Parliament, emphasized the importance of justice for peace, China expressed the view that the two sometimes conflict and that the ICC should be more careful about exercising jurisdiction in ongoing conflicts. Iran also spoke out in favor of amnesty in some circumstances.

In sum, the discussion surfaced many of the crucial and controversial elements of the peace/justice debate. At the same time, there was little concrete discussion of the ICC’s contributions thus far to peace or justice, and even less progress in resolving how the ICC should approach the selection of situations and cases in ongoing conflicts.

Complementarity
The complementarity discussion was kicked off by U.N. High Commissioner for Human Rights Navanethem Pillay (right) (prior posts), who raised concerns about the ICC’s policy of focusing on the most responsible perpetrators. Pillay worried that the policy may leave states with the impression that national prosecutorial obligations are also limited to high-level perpetrators. Pillay also expressed the hope that the ICC’s complementarity regime would promote respect for the ability of states to conduct trials for international crimes; in so doing, she stated that the ad hoc tribunals have not always shown such respect. She implicitly criticized decisions by which the International Criminal Tribunal for Rwanda (of which she previously served as President, before becoming an ICC Judge and, subsequently, the High Commissioner) refused to transfer cases to the domestic courts, refusals based on the ICTR's conclusion that domestic trials would not meet international standards.

Two national court judges involved in adjudicating international crimes provided interesting perspectives from the national justice side. Justice Dan Akiiki-Kiiza of Uganda, along with a Congolese counterpart, emphasized that their national systems are cooperating with the ICC. Interestingly, however, Justice Kiiza also stated that the Ugandan system is both willing and able to try all suspected criminals – in effect, saying that Uganda doesn’t really need the ICC.

The state interventions after the panel were mostly pledges of support for the notions that states must take primary responsibility for prosecuting international crimes and reiterations of the view that it is appropriate for both the ICC and states to assist one another in developing such capacity.

Some states, including Spain and Germany, seemed concerned about the ICC’s policy of “positive complementarity,” whereby it seeks to assist states in bolstering their ability to prosecute international crimes. These states were concerned that positive complementarity implies some additional bureaucracy outside the confines of the Rome Statute. The German representative noted that complementarity is a negative concept in Article 17 of the Rome Statute, which precludes the ICC from intervening when a relevant state is doing so genuinely.

At the end of the session, however, ICC Prosecutor Luis Moreno-Ocampo (near left) addressed the issue. (photo credit) In Moreno-Ocampo's view, the statutory basis for “positive complementarity” is not Article 17, but rather Article 93(10), which authorizes the Court to provide various kinds of assistance to states. Moreno-Ocampo assured the states that no additional bureaucracy is needed for such assistance, since the ICC already possesses the relevant information and materials by virtue of its regular activities.

Finally, the ICC President, Judge Sang-Hyun Song (above, far left), said that in his view, complementarity is either a rule of customary international law or close to attaining that status.

In all, the complementarity discussion was fairly uncontroversial – certainly less so than peace/justice. Like in the earlier session, though, there were little in the way of concrete suggestions concerning the appropriate relationship between the ICC and national courts. A number of difficult issues remained just under the surface of the conversation – including whether it is appropriate for the ICC to prosecute “self-referred” cases if the referring government is perfectly capable of doing the job itself.

Conclusion
In all, the Review Conference’s stocktaking on peace/justice and complementarity was more interesting for its tone than its content. Unlike at the 1998 Rome Conference, where many states expressed skepticism or even outright hostility toward the notion of international criminal justice, those that spoke in Kampala were overwhelmingly supportive of the enterprise. Even non-party states that have traditionally portrayed the ICC as an improper assault on sovereignty were careful to couch their comments as broadly supportive of international justice efforts.

Anyone who was hoping for a more substantive and introspective discussion of the legitimacy of ICC action was, however, disappointed.

ICC Update: The Spotlight Remains on Africa

The ICC Prosecutor, Luis Moreno Ocampo (left), is has announced developments with respect to two new situations in Africa.

1. Kenya

As we blogged before, the post-election violence in Kenya in 2007-8—which led to the deaths of 1,300 people and displaced 300,000 more—has been the subject of international scrutiny. A Commission if Inquiry, headed by Justice Phillip Waki, recommended the establishment of a special tribunal to prosecute individuals responsible for the violence and generated a list of suspects that allegedly includes cabinet ministers, MPs, and businessmen.

Ocampo (right, meeting with Kenyan officials) had indicated that if Kenya did not go forward with such a tribunal, he would seek authorization to open a formal investigation from the Pre-Trial Chamber. This has now come to pass. On November 7, 2009, Pre-Trial Chamber II was re-constituted to accept Ocampo’s filing, which will likely be made in early December, and consider whether to authorize an investigation pursuant to Article 15(4). This would be the first Article 15 proprio motu investigation by the Prosecutor. The Kenyan press has reported that the Government may seek to forestall an ICC investigation by establishing the proposed special tribunal to try suspects in Kenya through a bill originally introduced by human rights activist and Imenti Central MP Gitobu Imanyara (the Constitution of Kenya (Amendment) Bill, 2009).

The Press Release issued by Ocampo is available here.

2. Guinea

The Prosecutor also recently announced that he was opening a preliminary investigation into violence across the African continent in Guinea (map left), which joined the ICC in 2003. Over 150 people were reportedly killed when members of the military attacked anti-government protests in the capital of Conakry in September 2009 (photo right, credit). At the time, over 50,000 people were protesting the decision by President Moussa Dadis Camara, who assumed power in a military coup, to run in the next election. The attacks included acts of sexual violence.

Human Rights Watch has reported that the massacre was premeditated by the Presidential Guard; the government has claimed any injuries were the accidental result of a stampede.

These situations, while serious, implicate the principle of gravity, about which we’ve blogged before (see here and here). Stay tuned …

Look On! "Reckoning" on the ICC

(Look On! takes occasional note of noteworthy films.) Stay home for the national television premiere on Tuesday night, 14 July – or better yet, host a gathering. Or, if you're in Washington, D.C., go to the event sponsored by the American Society of International Law the night before. Whatever you do, do see “The Reckoning: The Battle for the International Criminal Court” on PBS. You can find the details for all these viewing options in Diane's post below. In this post, I'll focus on the film itself.
I’ve just previewed "The Reckoning" on DVD, courtesy of director Pamela Yates (below left) -- who contacted me after seeing my January Look On! post about another Sundance Film Festival selection, Lisa F. Jackson's "The Greatest Silence." So I can vouch for the impact of this new film.
It will have you on the edge of your seat, following two simultaneous dramas – the Court’s first investigations and prosecutions of unspeakable crimes, and the Court’s own struggle to survive. It opens with the unduckable question:

Does humanity have the possibility of doing better than this?

The film then moves back and forth between killing fields, Nuremberg, Rome, The Hague, Uganda, Congo, Colombia, Darfur. Ninety minutes goes very, very quickly.
In her Filmmaker’s Statement, after describing the Court itself as the protagonist in "The Reckoning," Yates tells us:

The title 'The Reckoning' has three meanings: the reckoning of a world trying to bring the worst perpetrators of massive crimes to justice; the reckoning of the International Criminal Court becoming an effective global arbiter of justice; and the reckoning with the international community – do we have the political will to carry out the arrest warrants and fulfill the mandate of this new Court?

You will see many familiar and not-so-familiar faces: Prosecutor Luis Moreno-Ocampo, Deputy Prosecutor Fatou Bensouda (on whom I've posted before), Benjamin B. Ferencz of Planethood Foundation (which helps fund the American Society of International Law’s Helton Fellows in human rights), former Bronx prosecutor Christine H. Chung, now back practicing law in the United States, and John Bolton, former U.S. Ambassador to the United Nations.
Kudos to the documentary filmmakers – director Yates, Producer Paco de Onís and editor Peter Kinoy, all of Skylight Pictures – as well as cinematographer Melle van Essen.

ICC Prosecutor’s Application for Arrest Warrant for President al-Bashir of Sudan Highlights Rape and Sexual Violence as Evidence of Genocidal Intent

Yesterday, the New York Times reported that judges of the International Criminal Court had decided to issue a warrant of arrest for President Omar Hassan Ahmad al-Bashir (right) of Sudan. Today, the Court issued a statement indicating that "[n]o decision has yet been taken by the judges." Despite the confusion, it appears that the Court is likely to make a decision on the ICC Prosecutor’s application for the issuance of an arrest warrant some time this month. (Prior IntLawGrrls posts.)
The application made by Chief Prosecutor Luis Moreno-Ocampo (below left) contains 10 counts:
► 3 of genocide,
► 5 of crimes against humanity, and
► 2 of war crimes.
Even if the Court issues the arrest warrant, it is not clear whether the warrant will include all 10 counts. The counts of genocide, in particular, have been the subject of much debate. Indeed, several commentators have questioned whether the application presents sufficient evidence to support the legal characterization of the crimes committed in Darfur as genocide (see, for instance, the recent article by Alex de Waal).
Genocide is notoriously difficult to prove. Proving genocidal intent demands a showing that perpetrators not only targeted members of a protected group, but also that they did so specifically seeking to destroy the group, in whole or in part. It is generally not enough to show that an accused is aware that his acts will result in the destruction of the group; the accused must seek to achieve the destruction, in whole or in part, of the protected group. Recognizing the difficulty of proving genocidal intent, the ad hoc tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) have determined that, in the absence of a confession, genocidal intent can be inferred from other facts and circumstances, such as speeches or statements against the targeted group, acts of violence against cultural symbols associated with the group, other policies of discrimination against members of the group, and the brutality, scale and/or systematic nature of the atrocities against the particular group. Of course, when inferential evidence is relied upon to prove genocidal intent, the tribunals have cautioned that the

inference must be the only reasonable inference available on the evidence.

Although there may be disagreement as to what inferences can be drawn from the evidence presented by the Prosecutor in support of the arrest warrant application, one of the remarkable aspects about the application is that -- unlike the analysis of genocidal intent conducted in 2005 by the United Nations Commission of Inquiry (COI) tasked with investigating violations of international human rights and humanitarian law in Darfur -- it explicitly makes reference to pattern evidence of sexual violence as one of several factors that the Court should look to in assessing whether genocidal intent can be inferred. Indeed, in his submissions to the Court, the Prosecutor clearly stated that

the magnitude of the rapes and sexual assaults carried out by forces and agents under the control of Al-Bashir during attacks on villages and around IDP settlements and camps . . . indicates an intent to destroy the target group as such.

Although the COI had suggested an inference of genocidal intent was not warranted because, among other things, persons forcibly dislodged from their villages were not exterminated but rather "collected" in camps for internally displaced persons and allowed to receive humanitarian assistance, the Prosecutor has indicated that the attacks against the targeted group —particularly the widespread rapes — have continued in the camps, and that this suggests an intent not just to forcibly displace the targeted groups but, in fact, to destroy them. As he noted,

In view of the social stigma associated with rape and other forms of sexual violence among the [targeted groups], these acts [have] caused significant and irreversible harm, [not only] to individual women, [but] also to their communities.

Additionally, while the COI also supported its conclusion that genocidal intent was lacking by pointing to the fact that not everyone who was targeted was killed, the Prosecutor has argued —and the jurisprudence of the ICTY supports his position — that the failure to kill every member of the group does not necessarily negate other evidence of genocidal intent. To the contrary, the Prosecutor has argued, attacking the surviving members of the targeted group via, among other means, the infliction of sexual violence, is actually an efficient strategy to achieve the eventual destruction of the group, given that the "slow death" and disintegration of the group via these means has given rise to more muted international outrage than outright killings of members of the group might have engendered.
Although it is ultimately up to the Pre-Trial Chamber of the Court to determine whether the evidence is sufficient to support the issuance of an arrest warrant for genocide, the Prosecutor’s consideration of pattern evidence of sexual violence as potential evidence of intent should be commended. Indeed, although sexual violence has been recognized as a means by which to destroy a particular group (see landmark ICTR case of Prosecutor v. Akayesu), it has rarely been recognized as one of the factors that should be considered in assessing whether genocidal intent can be inferred. For instance, as alluded to above, despite finding that rapes had been used to terrorize, demoralize, and humiliate the targeted population in Darfur, the COI essentially ignored this evidence when making its assessment as to whether the facts supported an inference of genocidal intent. In light of how difficult genocidal intent is to prove, ignoring potentially valuable evidence of intent does a disservice to all who suffered under the perpetrators' genocidal scheme, including, of course, the victims of sexual violence themselves.

ICC to go to Gaza?

The Los Angeles Times' Sebastian Rotella reports, from Madrid, that Luis Moreno Ocampo said yesterday the Office of the Prosecutor of the International Criminal Court "will examine requests to investigate alleged war crimes during the recent combat in the Gaza Strip," about which we've posted.
Report of such an inquiry -- no official statement yet appears at the ICC website -- provokes immediate questions of international law and practice, among them:

► Last week the Palestinian Authority accepted the ICC's jurisdiction, according to Rotella. Even so, is it, for purposes of the Rome Statute of the ICC, a "state" that may become a "party" and so refer a situation on its territory?

Israel's Foreign Ministry gave the Times this categorical "no" to the question:

'The ICC charter is adhered to by sovereign states, and the Palestinian Authority has not yet been recognized as one, so it cannot be a member. It doesn't mean anything except that it's a good propaganda stunt.'

Palestinian Authority's Justice Minister, Dr. Ali Khashan, begged to differ:

'We have the fundamentals of a state and we have met all conditions required from a state. We have been demanding these rights for a long time, but no one has paid attention to us. Now we have decided to go to the ICC with this matter as a first step toward getting our rights through legal means.'

The debate entails questions of ICC statutory interpretation, and promises much pondering of the declaratory and the constitutive theories of statehood.
► As a practical matter, one has to ask what this announcement will mean for U.S. attitudes about the ICC. Softening of opposition was apparent even in the Bush Administration. As a candidate now-President Barack Obama pledged to call together experts to explore whether the United States might join the court. Just Monday, a high-level Task Force of the American Society of International Law called for a U.S. "policy of positive engagement" with the ICC. Detailed recommendations were set out by the Task Force, chaired by Patricia Wald, former judge of the International Criminal Tribunal for the Former Yugoslavia and former Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit, and William Howard Taft IV, former State Department Legal Adviser; other members: former U.S. Supreme Court Justice Sandra Day O’Connor, Johns Hopkins School for Advanced International Studies Professor Ruth Wedgwood, former U.S. Rep. Mickey Edwards, Vanderbilt Law School Professor Michael A. Newton, former International Court of Justice President Stephen M. Schwebel, and former Deputy Prosecutor of the ICTY David Tolbert. Its report is welcome and timely -- and may prove an essential counterpoint criticism sure to come from some U.S. corners as a result of Moreno Ocampo's reported decision to examine conduct involving Israel.

Special Advisor on Gender Crimes

(In this post, guest blogger Amy Senier returns to the blog with an discussion of the recent appointment of a Special Advisor on Gender Crimes to the International Criminal Court)

A recent appointment by the Prosecutor of the International Criminal Court (ICC) promises a more focused strategy on the prosecution of gender-based violence at the supranational level. Last week, ICC Prosecutor Luis Moreno-Ocampo named Professor Catharine A MacKinnon as his Special Advisor on Gender Crimes. The appointment, announced on November 26, signals an intensified commitment on behalf of the Office of the Prosecutor (OTP) to address gender crimes, an area in which the Prosecutor has drawn mixed reviews for his response to cases and situations in the Democratic Republic of Congo and Central African Republic.
Professor MacKinnon has been at the forefront of feminist international legal thought for nearly 30 years. Her noted works include: Toward a Feminist Theory of the State (1989), Women's Lives, Men's Laws (2005) and Are Women Human?: And Other International Dialogues (2006). She is currently the Elizabeth A. Long Professor of Law at the University of Michigan Law School, where she teaches "Women's Human Rights," "Sexual Equality," and "Men, Women and Conflict." In 2000, Professor MacKinnon served as co-counsel in Kadic v. Karadzic, securing a $745 million damages award for Croat and Muslim rape survivors after successfully arguing that rape constitutes an act of genocide.
Professor MacKinnon's appointment is made pursuant to Article 42(9) of the Rome Statute, which authorizes the Prosecutor to appoint advisors "with legal expertise on specific issues, including, but not limited to, sexual and gender violence and violence against children." Under her new mandate, Professor MacKinnon will work closely with the Prosecutor and Deputy-Prosecutor Fatou Bensouda to "further develop the approach to Gender crimes" within the OTP. Professor MacKinnon is no stranger to the ICC. As recently as October 2008, she briefed the OTP on The Recognition of Rape as an Act of Genocide — Prosecutor v. Akeyesu." The appointment of a renowned scholar and practitioner such as Professor MacKinnon inspires hope of more consistent and proactive prosecutions of gender-based crimes at the ICC.

(cross-posted at International Law Observer blog)

Gravity, legitimacy & the ICC

Thank you to IntLawGrrls for inviting me to write this guest post about my work in progress, entitled "Gravity and the Legitimacy of the International Criminal Court."
The article seeks to unlock a puzzle concerning the appropriate demarcation of spheres of jurisdiction of national and international criminal courts. In particular, the work examines the concept of gravity of crimes and cases embedded in the Rome Statute of the International Criminal Court.

For the ICC regime, the gravity of the crimes and cases at issue represents the primary normative justification for international adjudication. The notion that the core international crimes are particularly grave or serious is not new. In fact, most international criminal law scholarship and jurisprudence simply assume the necessity of a gravity element. This article takes a critical look at the roles that gravity plays in the ICC regime, from both theoretical and doctrinal standpoints, as follows:

► In terms of theory, the article posits gravity as a key determinant of the ICC’s moral and sociological legitimacy. The Rome Statute’s gravity threshold for admissibility in Article 17 helps to ensure the Court’s minimal moral legitimacy by requiring a preliminary balancing of justice and sovereignty before the Court exercises jurisdiction.

► In a related but distinct role, the prosecution’s discretionary consideration of relative gravity, pursuant to Article 53 of the Rome Statute, helps to ensure the Court’s sociological legitimacy in relevant audiences.

The article’s prescriptive contribution seeks to assist the Court – not only the judges, but also Prosecutor Luis Moreno-Ocampo (above right) and his team, which must ensure the gravity of the cases it investigates and prosecutes – in developing a gravity doctrine and policies that comport with the theoretical roles that gravity plays in the ICC regime.

'Nuff said

(Occasional item taking context-optional note of thought-provoking quotes.)

Critics claim that Ocampo has imperiled peace negotiations -- but those negotiations were not progressing even before the ICC prosecutor named Bashir.

-- our colleague James C. O'Brien, a principal at The Albright Group, and Presidential Envoy for the Balkans during the Clinton Administration, in a Los Angeles Times op-ed comparing and contrasting this month's application for an arrest warrant against Sudanese President Omar al-Bashir (above left) by International Criminal Court Prosecutor Luis Moreno-Ocampo (IntLawGrrls posts above, here, here, and here) with the 1999 indictment of Serbian President Slobodan Milosevic (above right) by International Criminal Tribunal for the former Yugoslavia Prosecutor Louise Arbour.

Head of state in ICC sights? Indeed.

(UPDATE: As expected, the ICC Prosecutor asked for a warrant against Sudan's President today. The charges: "genocide and crimes against humanity committed during the last five years of bloodshed in his country's Darfur region." The theory of liability, command responsibility. According to the International Herald Tribune report of Marlise Simons and Lydia Polgreen, the Prosecutor declared at a press conference: "Al-Bashir organized the destitution, insecurity and harassment of the survivors. He did not need bullets. He used other weapons: rapes, hunger and fear. As efficient, but silent." ICC Press Release is here; summary of charges here.)

In a public filing at 1 p.m. Hague time today (7 a.m. Eastern time), International Criminal Court "Prosecutor Luis Moreno Ocampo will submit to the Judges of Pre-Trial Chamber I his evidence on crimes committed in the whole of Darfur over the last five years."
Rumors swirl that he'll be asking judges to issue what would be the 1st ICC arrest warrant against a head of state -- President Omar al-Bashir (left), who seized power in a 1989 coup d'état. Allegations that Sudan's President bears criminal responsibility for war crimes, crimes against humanity, and genocide are anticipated, so much so that yesterday "thousands of people rallied in the Sudanese capital Khartoum, in support of President Bashir and denouncing the anticipated charges."
As we've posted, the ICC already has indicted 2 other Sudanese on charges related to Darfur; however, both indictees remain at large.
(credit for Associated Press photo by Gregorio Borgia)

Forced Marriage Redux: Three Cheers for the Special Court for Sierra Leone

We blogged earlier on the decision of the Special Court for Sierra Leone (SCSL) (below) to drop charges of forced marriage against defendants Alex Timba Brima, Brima Bazzy Kamara, and Santigie Borbor Kanu (below), all members of the Armed Forces Revolutionary Council (AFRC).

The Prosecution had charged the crimes of forced marriage as crimes against humanity under the residual clause Article 2(i) penalizing “other inhumane acts.” The definition of crimes against humanity in the SCSL Statute also contains an open-ended list of sexual crimes at Article 2(g), which includes “[r]ape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence.” In dismissing the forced marriage charges for redundancy, the Trial Chamber ruled that the convictions for sexual slavery encompassed all the alleged conduct of the accused. As a matter of statutory construction, the Trial Chamber determined that all acts of a sexual nature were encompassed in Article 2(g). It saw no lacuna in the law that would merit the recognition of the novel crime of “forced marriage” separate and apart from the existing crime of sexual slavery. The Trial Chamber also indicated that any such crime would not be of comparable gravity to other, enumerated crimes against humanity and so could not be charged as an “other inhumane act.” The crime of forced marriage had also been charged as the war crime of committing “outrages upon personal dignity” (as prohibited by common Article 3 of the Geneva Conventions), but the Trial Chamber determined that the facts adduced by the Prosecution did not indicate the commission of a non-sexual crime of forced marriage that did not wholly overlap with the crime of “sexual slavery.”

As we advocated here, the Chief Prosecutor, American Stephen Rapp (below right), appealed. In a landmark opinion, the Appeals Chamber, with Justice George Gelaga King (below left) presiding, reversed in February of this year. The Chamber noted that the crime of forced marriage is not exclusively, or even predominantly, sexual and as such is not encompassed in the crime of sexual slavery. Rather, it noted, forced marriage involves the imposition of the status of marriage and a conjugal association by force, or threat of force. The gravamen of the offense is the assertion of a claim of right and ownership by the “husband” over the “wife,” which involves the right to demand a whole range of “conjugal duties” (including, but not at all limited to, non-consensual sex) in exchange for support and protection.

At trial, women testified that they were often placed in extreme danger as they were forced to “care for” their putative husbands in active war zones and risked severe punishment if they did not comply with their husbands’ orders. In this way, the crime encompasses a constellation of violations, including abduction, forced labor, deprivations of liberty, corporeal punishment and assault, as well as sexual violence. Indeed, a man’s motive in taking a so-called “bush wife” clearly went beyond the desire for sex, as the statistics on rape in Sierra Leone reveal that non-consensual sex was readily available to the warring parties. (Some studies suggest that upwards of 60,000 women were made victim to sexual violence in Sierra Leone (map, right) during the war). By being forced into this union with men involved in the commission of war crimes and crimes against humanity, women experienced severe physical and mental trauma. This harm is heightened by the fact that many women have been ostracized by their communities since the end of the war for being affiliated in such an intimate way with a member of one of the warring parties.

In reversing the Trial Chamber, the Appeals Chamber largely vindicated the dissent below by Justice Theresa Doherty (below right). The Appeals Chamber declined to enter a fresh conviction. Rather, the Chamber noted the expressive function of its judgment:

The Appeals Chamber is convinced that society’s disapproval of the forceful abduction and use of women and girls as forced conjugal partners as part of a widespread or systematic attack against the civilian population is adequately reflected by recognizing that such conduct is criminal and that it constitutes an “Other Inhumane Act” capable of incurring individual criminal responsibility in international law. (¶202).

The judgment paves the way for prosecutions for forced marriage before the International Criminal Court, which is considering crimes arising out of conflicts in Uganda and the Democratic Republic of Congo that involved the extensive practice of forced marriage. (In Northern Uganda, for example, studies suggest that one in six young girls were kidnapped by the Lord’s Resistance Army). Article 7(g) of the ICC Statute contains an expansive list of crime of sexual violence that includes

Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.

Its “Other Inhumane Acts” clause at Article 7(k) is formulated as

Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

These formulations lend themselves to the same reasoning employed by the SCSL. What matters now is prosecutorial priorities. Let's hope that Luis Moreno-Ocampo (Argentina), the Chief Prosecutor of the ICC, finds inspiration in his colleagues practising before the Special Court.

The ICC Prosecutor and Darfur

Provided with a public platform and his choice of topics, one might have expected the Prosecutor of the International Criminal Court to focus on the positive: the young institution (logo below right) has three Congolese defendants in the dock, and its first trial is scheduled to begin in June. But in his keynote address at the third annual Samuel Dash Conference on Human Rights held at Georgetown University Law Center last week, Luis Moreno-Ocampo (left) wanted to talk about Darfur.

Mr. Moreno-Ocampo called Darfur a “test” for the court, and decried the Security Council’s failure to press the Sudanese government to comply with the ICC’s arrest warrants. While calling the ICC “the court of last resort” and emphasizing that the primary responsibility to enforce the Rome Statute lies with states, Mr. Moreno-Ocampo also highlighted the Rome Statute’s call for prevention and deterrence of atrocities and expressed frustration at the ICC’s inability to protect the people of Darfur from ongoing attacks.

A few years ago, when the Security Council referred Darfur to the ICC, I wrote an op-ed for Jurist arguing that it was far from certain that the ICC would be able to obtain sufficient cooperation from Sudan to act effectively in Darfur. I had hoped to be proven wrong, but thus far the Security Council’s referral of the Darfur situation to the ICC -- over Sudan’s objection -- still presents a crucial challenge for the ICC in its quest for credibility.