Breaking News from the ICC

The ICC recently released three important decisions in the last two days:

1. The first two are decisions by Pre-Trial Chamber II, by a majority, to issue summons to the six Kenyan suspects (about which we've blogged before) to appear before the ICC on April 4, 2011:

• William Samoei Ruto (Ruto),
• Henry Kiprono Kosgey (Kosgey),
• Joshua Arap Sang (Sang),
• Francis Kirimi Muthaura (Muthaura),
• Uhuru Muigai Kenyatta (Kenyatta) and
• Mohammed Hussein Ali (Ali).

The Chamber found reasonable grounds to believe that Ruto, Kosgey and Sang (the Odinga defendants) can be prosecute for specified crimes against humanity (murder, forcible transfer and persecution). (The Chamber rejected efforts to prosecute the three for torture). The cases against Ruto and Kosgey will proceed under a theory of indirect co-perpetration (i.e., committing crimes through another person(s)) in accordance with article 25(3)(a) of the Rome Statute. The case against Sang, by contrast, will proceed under a theory of complicity rather than co-perpetration, because the PTC determined that no reasonable grounds existed to believe that Sang's contribution to the commission of the crimes was essential.

Maintaining almost perfect symmetry, the PTC determined Muthaura and Kenyatta (the Kibaki defendants) will be prosecuted as co-perpetrators of the crimes against humanity of murder, forcible transfer, rape, persecution and other inhumane acts. Likewise, the case against Ali will proceed under a theory of complicity based on the finding that there were reasonable grounds to believe that Ali otherwise contributed to the commission of the crimes in accordance with article 25(3)(d) of the Rome Statute.

Unsurprisingly (see prior post), Judge Hans-Peter Kaul dissented (opinion as yet unavailable), arguing that the Prosecutor had failed to establish reasonable grounds to believe that the crimes were committed pursuant to or in furtherance of the policy of an organization as required by the definition of crimes against humanity in the ICC Statute.

2. In the Darfur situation, PTC I confirmed charges against two rebel leaders (Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus) based upon alleged attacks on the compound of the African Union peacekeeping mission in Sudan on the evening of September 29, 2007. The two will be prosecuted for the war crimes of:

•violence to life and attempted violence to life;
•intentionally directing attacks against personnel, installations, material, units and vehicles involved in a peacekeeping mission; and
•pillaging.

Stay tuned...

On August 24

On this day in ...
... 2004, reversing a decision by the intermediate court of appeals, the Supreme Court of Argentina ruled 5-3 that statutes of limitation do not apply to charges of crimes against humanity. The ruling in Arancibia Clavel, Enrique Lautaro s/ homicidio calificado y asociación ilícita y otros arose out of an appeal of a trial court's judgment convicting an agent of DINA, the secret police that operated in Argentine and Chile during the regime of former Chilean President Augusto Pinochet, with having committed homicide by use of explosives and for participation in a criminal association. Among the instruments that the Argentinian high court (above right) cited in its ruling were the 1948 Universal Declaration of Human Rights, the 1998 Rome Statute of the International Criminal Court, and the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. (photo credit)

(Prior August 24 posts are here, here, and here.)

Dueling Truths in Sri Lanka

The struggle to account for war crimes committed during the civil conflict in Sri Lanka (prior posts here and here) has taken several interesting turns of late. Let's start by scrolling back to June, when Secretary-General Ban Ki-moon appointed a U.N. Panel of Experts to investigate violations of human rights and humanitarian law during the conflict in Sri Lanka. President Mahindra Rajapaksa's administration called the appointment of the panel a violation of its sovereignty, accusing the West of applying double standards. Hundreds of Sri Lankans, including Buddhist monks, responded to the creation of the panel by protesting outside the U.N.'s offices in Colombo, burning an effigy of Ban Ki-Moon and staging a five-day hunger strike. When police arrived to break the siege and escort U.N. officials out of their compound, the Sri Lankan Defense Secretary (and brother of the President) Gotabaya Rajapaksa ordered the police to leave.

In response to the panel, President Rajapaksa created an eight-member Commission on Lessons Learnt and Reconciliation charged with investigating events occurring between February 2002 and May 2009 -- a vague mandate that requires neither analysis of violations of international law nor identification of those responsible for such violations. The Commission held its first public hearings in Colombo, the capital, last week, and held two more hearings this week in the northern, predominantly Tamil town of Vavuniya.
Last week, the U.S. State Department's Office of War Crimes Issues submitted a report to Congress raising concerns about the Commission's ambiguous mandate and questioning the independence and impartiality of its members, its failure to establish a witness protection program, its lack of consultations with the Tamil community, and potential government limitations on the scope of the inquiry.
Despite these flaws, many Tamils came forward and testified before the Commission over the weekend, bearing witness to the disappearance of loved ones at the hands of the military and unidentified militia. On the other side of Alice's looking glass, Defense Secretary Rajapaksa testified before the Commission on Tuesday that the Sri Lankan army did everything possible to avoid civilian casualties during the war, and blamed the United Nations for failing to prevent the rebel Liberation Tigers of Tamil Eelam from using civilians as shields.
Though the UN Panel of Experts has yet to finalize its report, it's quite unlikely that it will share either Rajapaksa's view of responsibility for the war crimes in Sri Lanka. The situation presents quite a puzzle for theorists of transitional justice, with sharply contested versions of the "truth" and seemingly little space for common ground. The widespread resentment of the U.N. suggests that a regional body might be a more effective sponsor of investigations, though Asia's regional human rights mechanisms are hardly up to the task. With Buddhist monks siding with the government's position, it will be difficult to find a relatively neutral moral authority, though the question is surely worth careful study. The EU's decision to withdraw trade concessions worth $150 million in response to the Sri Lankan government's human rights record is an interesting one; time will tell whether this will prove an effective stick or a provocation to further anti-Western tirades. An approach that engages with the government's perspective may be more successful in extracting concessions, but would require quite a delicate balancing act. After 25 years of war, shared truths will take time and care to construct.

The torture ban & cultural relativism

At the XVIIIth International Congress of Comparative Law held here in Washington, D.C., last week (about which others have blogged here and here), I was asked to participate in a plenary session.
The session was entitled The Prohibition Against Torture and Cultural Relativism. Specifically, I was asked to speak about this issue from an international criminal law perspective, addressing in particular whether different notions of how to evaluate allegations of torture emerge in the jurisprudence of the ad hoc international criminal tribunals. Interestingly, I found that the way in which the tribunals dealt with this question had a gender dimension.
A summary of my thoughts follows.
Consistent with human rights law, torture under the jurisprudence of the international criminal tribunals consists of an act or omission giving rise to severe physical or mental pain or suffering. Notably, the tribunals have held that permanent injury is not a requirement for torture; moreover, evidence of the suffering need not even be visible after the commission of the crime.
Nevertheless, in some cases, the tribunals have highlighted that certain forms of torture have long-lasting effects on the victim, particularly in cases involving sexual violence.
In those cases, it appears that social and cultural context may be relevant to an assessment of whether the pain is severe enough to constitute torture. For instance, while the tribunals have recognized that rape qualifies as torture because it causes severe pain and suffering, both physical and psychological, an early judgment of the International Criminal Tribunal for the former Yugoslavia -- Prosecutor v. Delalic, Mucic, Delic and Landzo (the Celibici Case) (1998)-- explicitly pointed out:

The psychological suffering of persons upon whom rape has been inflicted may be exacerbated by social and cultural conditions and can be particularly acute and long-lasting.

A later judgment, Prosecutor v. Limaj (2005), agreed with this finding, noting that

in certain circumstances the suffering can be exacerbated by social and cultural conditions [and that] the evaluation should[, therefore,] take into account the specific social, cultural and religious background of the victims when assessing the severity of the alleged conduct.

Curiously, this later judgment highlighted the fact that this finding was

made specifically in the context of rape.

Perhaps this is not surprising, since harm from sexual violence is often long-lasting, in part because of the cultural and social norms prevalent in many of the victims’ communities.

Indeed, as commentators have noted, women and girls continue to suffer from the consequences of sexual violence long after a conflict or attack against the civilian population has ended, often because of the social and cultural values of the community to which the victim belongs. For instance,

the birth of children from rape [by a member of a group to which the victim does not belong] ... is likely to cause significant [and long-term] ... mental harm, especially in patriarchal societies where the ethnicity of the child is [considered to be] that of the father, thus the rapist.

(See the 2005 book by Professor Anne-Marie L.M. de Brouwer (left), Tilburg Law School, the Netherlands, entitled Supranational Criminal Prosecution of Sexual Violence: the ICC and the Practice of the ICTY and ICTR.) Similarly, long-term consequences such as isolation and ostracism are particularly common in social, cultural , or religious communities which attach stigma to the victim rather than the perpetrator of rape; indeed, victims of rape in these communities are sometimes cast as “unmarriageable” or abandoned by their spouse and/or family members.

Interestingly, the idea that cultural conditions should be considered in the analysis of whether particular conduct rises to the level of torture does not seem to appear in the discussion of other types of acts alleged to constitute torture.

In fact, acts such as:

► being forced to watch severe mistreatment inflicted on a relative;

► falsely informing a victim that his parent has been killed; and

► forcing victims to collect the dead bodies of other members of their ethnic group

have all been recognized as amounting to torture by the ad hoc tribunals without recourse to an analysis of the victims’ cultural or social background.

Consistent with this, consideration of cultural or social conditions is absent from the elements of torture, as enumerated in the Elements of Crimes that the Assembly of States Parties adopted to assist the judges of the International Criminal Court in interpreting the crimes within the jurisdiction of the Court. In fact, consideration of such factors is absent from the elements of all other crimes subject to the jurisdiction of the ICC, save one: the war crime, set forth in Article 8(b)(xxi) of the Rome Statute of the ICC, of commission of outrages upon personal dignity.

This crime requires that the

perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons [to a] degree ... generally recognized as an outrage upon personal dignity.

A footnote to the definition states that it “takes into account relevant aspects of the cultural background of the victim.”

It may, perhaps, be appropriate to consider the broader circumstances in which the accused’s conduct occurred – including the cultural background of the victim – when assessing whether that conduct “humiliated, degraded or otherwise violated the dignity of” the victim, as what is considered to violate one’s dignity is often culturally dependent. Curiously, however, there is little discussion of victims’ cultural backgrounds in the jurisprudence of the ad hocs dealing with the war crime of outrages upon personal dignity. Indeed, while the tribunals have found, for instance, that:

► the use of detainees as human shields or trench-diggers;

► inappropriate conditions of confinement;

► performing subservient acts;

► being forced to relieve bodily functions in one’s clothing; or

► enduring the constant fear of being subjected to physical, mental or sexual violence

all qualify as outrages upon personal dignity, none of these findings were contingent upon an analysis of the victims’ social or cultural circumstances.

Thus, even in the context of assessing whether a person’s dignity has been violated – where the social, cultural or religious context may be relevant to understanding how a perpetrator’s conduct would be experienced by the victim as violating his or her dignity – a victim’s cultural heritage seems to have had little bearing on the tribunal’s analyses.

The tribunals’ lack of attention to cultural context may, perhaps, be explained by a shift in their jurisprudence with respect to how long the victim must have suffered as a result of the accused’s humiliating or degrading conduct – a factor that, as the ICTY indicated in its discussion of rape as torture, can be exacerbated by the social and cultural values of the community to which the victim belongs.

While an early case, Prosecutor v. Aleksovski (1999), suggested that the humiliating or degrading treatment must have caused “lasting suffering” to the victim, the trial chamber decision in a later case, Prosecutor v. Kunarac et al. (2001), found:

So long as the humilitation or degradation is real and serious, the Trial Chamber can see no reason why it would also have to be "lasting" .... Obviously, if the humiliation and suffering caused is only fleeting in nature, it may be difficult to accept that it is real and serious. However this does not suggest that any sort of minimum temporal requirement of the effects of an outrage upon personal dignity is an element of the offence.

I would submit that this is probably the right approach, not only in the context of prosecuting sexual violence as an outrage upon personal dignity, but also when prosecuting it as the war crime or crime against humanity of torture.

Indeed, not all women who suffered sexual violence in conflict situations are permanently shamed, ostracized, or rejected by their communities. In fact, one commentator writing on wartime rape in Bosnia-Herzegovina notes that when one rape survivor was asked whether she felt shame or guilt because of what happened to her, she responded:

'The shame is theirs, not mine.'

(See Feminism and its (Dis)contents: Criminalizing Wartime Rape in Bosnia and Herzegovina, a 2005 article by Karen L. Engle (right), Cecil D. Redford Professor in Law and Director of the Bernard and Audre Rapoport Center for Human Rights and Justice at the University of Texas School of Law.)

Opening the door to consideration of social and cultural conditions in assessing whether conduct was severe or serious enough to warrant characterization as an outrage upon personal dignity or an act of torture may lead to overlooking conduct that might not result in long-lasting suffering but would otherwise qualify as humiliating or degrading, or even as an act of torture.

More significantly, it may tempt the court to evaluate the circumstances of a case by reference to the judges’ own social or cultural norms.

The Sentencing Judgement in Prosecutor v. Zelenović case illustrates this point. The judgment in that case was confined to sentencing, as the accused there pleaded guilty to torture and rape as crimes against humanity. Noting that

[t]he gravity of the offences is the primary consideration in imposing a sentence,

the trial chamber first emphasized that

torture by means of rape is a particularly grave form of torture.

It then went on to point out that what makes rape a particularly serious crimes is

[t]he violation of the moral and physical integrity of the victims.

Although the accused’s conduct no doubt caused physical, and perhaps psychological, harm to the victims, it is unclear what the Chamber meant by stating that the rape also violated the victims’ “moral integrity.” The point here is that the Chamber’s use of the term “moral” seems to imply a value judgment about the nature of sexual violence which the victims may or may not have shared.

Notably, the ICTY Appeals Chamber's 2002 decision in Kunarac took an arguably more objective approach in analyzing the question of whether rape amounts to torture. Rather than considering the victims’ social or cultural background in assessing whether the harm was severe enough to qualify as torture, the Appeals Chamber held:

Generally speaking, some acts establish per se the suffering of those upon whom they were inflicted. Rape is obviously such an act .... Sexual violence necessarily gives rise to severe pain or suffering, whether physical or mental, and in this way justifies its characterisation as an act of torture.

In light of the circumstances in which victims find themselves in these cases – that is, in the midst of an armed conflict or a widespread or systematic attack against a civilian population – it is perhaps understandable that cultural conditions need not be considered when evaluating whether the harm suffered was serious or severe enough to qualify as torture. Indeed, as explained by the ICTY in Prosecutor v. Kvocka et al. (2001):

In considering whether severe pain and suffering was also inflicted upon the other victims of sexual violence, the Trial Chamber takes into consideration the extraordinary vulnerability of the victims [in this context] and the fact that they were held imprisoned in a facility in which violence against detainees was the rule, not the exception. The detainees knew that Radic [the accused] held a position of authority in the camp, that he could roam the camp at will, and order their presence before him at any time. The women also knew or suspected that other women were being raped or otherwise subjected to sexual violence in the camp. The fear was pervasive and the threat was always real that they could be subjected to sexual violence at the whim of Radic. Under these circumstances, the Trial Chamber finds that threat of rape or other forms of sexual violence undoubtedly caused severe pain and suffering to [the witnesses] and thus, the elements of torture are also satisfied in relation to these survivors.

In sum, I think that in this context there is little room for a cultural relativism approach.

On July 29

On this day in ...
... 2003, the most notorious of those who led rebels during the 1990s civil war in Sierra Leone, 65-year-old Foday Sankoh, died in custody while awaiting trial before the Special Court for Sierra Leone (logo at right). On March 7 of the same year, that court had issued against the Revolutionary United Front leader an indictment on 17 counts of crimes against humanity, violations of Article 3 common to the Geneva Conventions and of Additional Protocol II, and other serious violations of international humanitarian law. The indictment would be withdrawn on December 8, 2003.

(Prior July 29 posts are here, here, and here.)

On Art! U.S. executive policy on looted art

(Today alumna Jennifer Kreder contributes another On Art! guest post, prompted by her work in a pending looted-art case; her 1st, related post is here)

The Executive Branch of the United States long has carried out a consistent policy respecting art looted by Nazi Germany. This policy bears on the lawsuit in which heirs lay claim to certain paintings now in the George Grosz collection of the Museum of Modern Art in New York.

In January, a trial court dismissed the lawsuit as time-barred without reference to the complex historical factors delaying the heirs' assertion of their claims. In so doing, the court contravened foreign policy goals that the United States and the Allies pursued during and immediately after World War II and that a broad coalition of states pursued, via diplomatic breakthroughs, in 1998, 2000, and 2009. I detail the history in this post, which derives from the amicus brief that I co-authored in support of the heirs' pending appeal to the U.S. Court of Appeals for the 2d Circuit in Manhattan (courthouse at right).

In the normal course of judicial administration touching on foreign policy, federal judges typically defer to determinations of policy matters by the executive branch.

One example of this rule unfolded in mid-20th C. litigation of Bernstein v. N. V. Nederlansche-Amerikaansche Stoomvaart-Maatschappij. In a 1949 decision in Bernstein, 173 F.2d 71, the 2d Circuit ruled inadmissible statements in which a Jewish victim of persecution described the brutal Nazi imprisonment that led him to “transfer” major assets under duress. To admit such evidence, the court reasoned, would denigrate a foreign country. Then, however, with regard to the same litigation, Jack B. Tate (below left), Acting Legal Adviser in the U.S. Department of State, wrote, as quoted here, of his

Government’s opposition to forcible acts of dispossession of a discriminatory and confiscatory nature practiced by the Germans on the countries or peoples subject to their controls . . . [and that] the policy of the Executive, with respect to claims asserted in the United States for restitution of such property, is to relieve American courts from any restraint upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi officials.

Having thus been informed of the government’s views of coerced “transactions” during the Nazi era in Germany, the 2d Circuit's 1954 judgment in Bernstein reversed its previous ruling in the same case.

This Tate letter was in no means the only exemplar of U.S. executive policy.

U.S. diplomats led efforts to warn other countries against looting in the landmark London Declaration of January 5, 1943, which

declare[d] invalid any [coerced] transfers of, or dealings with, property . . . whether such transfers or dealings have taken the form of open looting or plunder, or of transactions apparently legal in form, even when they purport to be voluntarily effected.

Immediately after the war, moreover, the International Military Tribunal at Nuremberg (right) -- convened by the United States along with Britain, France, and the Soviet Union -- had evaluated detailed evidence of coerced sales. (photo credit) The plunder of art was declared a war crime, and is so recognized today. At Nuremberg, it was perfectly clear to the factfinders who had done what and to whom. Thus the Tribunal convicted Alfred Rosenberg, head of the Einsatzstab Reichsleiter Rosenberg art-looting unit, and sentenced him to death by hanging.

Shortly thereafter in Bonn and Vienna it was made clear in, for example, Military Government Law 59, that Germany and Austria had to repudiate all spurious “transactions” of the entire Nazi era, including art “deals” that were really seizures.

Thus, the model chosen was a restitution model for individual claims, and these claims were not subsumed in reparations paid after the war -- reparations that became limited as the United States implemented the Marshall Plan.

The amicus brief that I co-authored argues that the 2d Circuit must, as it did in its 1954 Bernstein ruling, accord to the Executive the deference described in the Tate letter.

Diplomats from the State Department, particularly Ambassador Stuart E. Eizenstat, played a leading role in securing multilateral public commitments, by scores of countries, to effective, fact-based resolution of Nazi-looted art claims. For example:

► The 1998 Washington Conference Principles on Nazi-Confiscated Art encourage countries

to develop national processes to implement these principles, particularly as they relate to alternative dispute resolution mechanisms for resolving ownership issues.

(credit for 1945 photo, republished during the 1999 Washington Conference, of U.S. soldier examining "paintings, part of the loot gathered from all parts of Europe by Hermann Goering, in 1945 in Germany")

► The 2009 Terezín Declaration similarly calls on countries to secure

just and fair solutions with regard to Nazi-confiscated and looted art, and to make certain that claims to recover such art are resolved expeditiously and based on the facts and merits of the claims and all the relevant documents submitted by all parties.

The Declaration further stresses that

Governments should consider all relevant issues when applying various legal provisions that may impede the restitution of art and cultural property, in order to achieve just and fair solutions, as well as alternative dispute resolution, where appropriate under law.

To give credit when due, this development in foreign policy was sparked in no small measure by Guidelines that the Association of American Museum Directors. Thus, it is quite shocking that some U.S. museums -- MoMA is one -- have interposed defenses like statute of limitations and laches. As demonstrated in this case-law chart that I've compiled, and as I've discussed further here, their efforts are all too often successful. This result thwarts the policy set forth above, distorting the historical record and law in the process.

(A version of this post appeared at PrawfsBlawg, where I'm guesting this month)

Against aggression

(1 in a series of IntLawGrrls' Kampala Conference posts)

Serendipity led me this month finally to read Victors' Justice.
Over the years I'd often given it the Washington read -- the flip through the index to pinpoint selected passages -- and cited it accordingly (e.g., here and here). After all, this 1971 work by Amherst History Professor Richard H. Minear stands as a landmark critique of the post-World War II trial of Japanese leaders before the International Military Tribunal for the Far East (above left).
The serendipity of my close read this month surfaced as early as page xi.
In the preface penned in May 1971 -- when controversy over the Vietnam War was seething -- Minear endorsed prosecution for "conventional war crimes" like those committed 3 years earlier at My Lai (additional post). Minear also supported holding "at least two American presidents and their civilian and military advisors" accountable for tactics deemed "of highly dubious legal character" by no less a figure than retired Brigadier General Telford Taylor (right), a former top U.S. Prosecutor before the International Military Tribunal at Nuremberg and author of Nuremberg and Vietnam: An American Tragedy (1970). Yet Minear warned against any court going any further:

But when the issue is not conventional war crimes but aggression, when it is the whole course of American policy and indeed the history of Indochina and East and Southeast Asia, then I must demur.

Hence the serendipity.
Minear's demurrer brought immediately to mind the 2-week International Criminal Court Review Conference set to begin tomorrow in Kampala, Uganda. As detailed in the superb series that IntLawGrrl Beth Van Schaack launched last year, among the key action items that the ICC Assembly of State Parties will take up at Kampala are, 1st, whether to define the "crime of aggression" enumerated in Article 5 of the ICC Statute and, 2d, whether to make that definition operational, thus authorizing the ICC to punish individuals found guilty of the offense.
Supporters of international criminal justice have divided on these questions.
► Among the staunchest advocates of a "Yes" approach is another U.S. prosecutor at Nuremberg, Benjamin B. Ferencz (below right), who wrote in a March 2010 letter published online:

[T]he lock which now exists preventing aggressors from being tried must be removed from the courthouse door. Failure to make 'the supreme international crime' punishable by the ICC would, in fact, be a repudiation of the Nuremberg Principles and the rule of law. It would be a step backward instead of forward.

► Among several experts who answer "No" is former South Africa Constitutional Court Justice Richard Goldstone (below left), who served as the 1st Prosecutor at the International Criminal Tribunals for Rwanda and for the former Yugoslavia. In an International Herald Tribune op-ed published last week (hat tip), Goldstone wrote:

Grappling with aggression now also threatens to open rifts among members of the Court. Despite years of complex negotiations, deep disagreements persist over key issues related to amending the statute on aggression, such as state consent and how cases would be initiated. Attempting to force a decision absent consensus would vitiate one of the strongest assets the Court has had — the solidarity of it members in the face of efforts to undermine the project.

In Victors' Justice -- self-avowed "political scholarship" (p. xiii) written decades ago -- Minear cited other considerations that counsel an ICC "No" vote this year.

► Minear doubted that any criminal tribunal could make a record sufficiently close to the truth about responsibility for starting a war, even as he allowed that for a court to "come closer to the truth" than the Tokyo Tribunal did in its 1948 judgment "would be child's play." (p. xi) (Skepticism about the assignment to international criminal tribunals of a truth-telling function has inspired my own scholarship; see, e.g., pp. 132-33 here.)

► Minear further contended that the pursuit of convictions for aggression -- not for atrocities committed during conflict, but rather for "the war itself" -- would have little utility beyond being "politically convenient and satisfying." (p. xi) He expanded on the political aspects of proceeding against persons who lost World War II:

The reverse of the coin of enemy criminality was the rightness of the course pursued by the Allies in the same years. The trials were designed not only to punish wrongdoers but also to justify the right side, our side.

(p. 13) The distance between those designs and the traditional goals of criminal justice reveals the condemnation implicit in Minear's contention.
What's more, the villainization of 1 side via an aggression prosecution could diminish a prosecutor's appetite to pursue perpetrators of atrocities on all sides. (Any such risk simply compounds the problems of randomness and selectivity, discussed here at pp. 116-17, that are endemic to international criminal justice.) Post-World War II examples of this risk may be found in -- to cite Taylor's 1992 memoir, The Anatomy of the Nuremberg Trial -- the Nuremberg indictment of Germans for atrocities at Katyn that in fact were committed by troops of an Allied country, as well as the absence of judicial scrutiny of Allied bombing efforts in Europe and Japan alike. (Minear too treated the latter; see pp. 99-102.) More recent are allegations that ad hoc tribunals have concentrated overmuch on crimes by members of disfavored groups, such as the Serbs and the Hutu, and not enough on the crimes of those groups' rivals.

► Minear detailed concerns like these throughout the couple-hundred pages of his book. His litany supported the policy conclusion that he articulated as early as p. xi:

The Tokyo trial is a bad precedent, bad enough, I suggest, to cast doubt on the Nuremberg precedent as well. The wiser course would be to return to the international law of the period before 1945, when atrocities were considered justiciable but the issue of aggression was not.

Minear's arguments retain force today, 39 years to the month after they were written. Still valid too are concerns underlying Minear's work: revulsion against the evils of warfare, coupled with distaste for the threat that the reality of politicization poses to the meaning of justice. It shows that one may be against aggression in a double sense; that is, against individual criminal prosecution of aggression even while remaining steadfastly against the commission, by individual, state, or nonstate entity, of aggression.

Thus does Minear's conclusion back then suggest a "wiser course" for the ICC right now:

Focus not on assessing the criminality-or-not of a given conflict, but rather on assuring the proper criminal punishment of persons responsible for the world's worst offenses.

(Cross-posted at ASIL Blog - International Criminal Court Review Conference)

Article 124: To Be Or Not To Be?

One item on the agenda of the International Criminal Court (ICC) Review Conference that has received less attention than the aggression negotiations concerns the potential deletion of Article 124 of the Rome Statute, the so-called Transitional Provision. This Article operates as an exception to the Court’s otherwise mandatory jurisdiction and to Article 120’s prohibition on reservations. It reads:

Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.

The idea behind this Article was to give states that considered themselves to be disproportionally vulnerable to war crimes charges (due, for example, to their high overseas troop commitments or regular involvement in ameliorating humanitarian crises) time to assess the performance of the Court before opening themselves up to potential prosecution.
The consideration of Article 124 is the only mandatory agenda item for the 2-week Review Conference, set to begin May 31 in Kampala, Uganda.


By way of background, Article 124 was essentially the price paid to have France accept the final package of provisions revealed at the close of the Rome (right) Conference in 1998. During the negotiations, France — along with the United States and other delegations — sought a consent-based approach to jurisdiction over war crimes and crimes against humanity that would allow the ICC to prosecute these crimes only with the consent of the nationality and territorial state, absent a referral by the U.N. Security Council. As an alternative proposal, the United Kingdom, with support from the other P-5, proposed an Optional Protocol that states could ratify to exempt their nationals from war crimes or crimes against humanity prosecutions. Germany proposed an alternative solution that addressed only war crimes, was non-renewable, and allowed states to consent to jurisdiction a la carte over particular war crimes. In the waning days of the Rome Conference, the Bureau released a carefully balanced package of compromises that included Article 124.

The provision was immediately denounced by human rights groups, though their concerns turned out to be unfounded. In the end, only two countries — France and Colombia — have availed themselves of the opt out option to date. France (flag at right), without explanation, withdrew its opt out declaration in August 2008. Colombia’s declaration expired by its own terms in October 2009.

The prosecution of war crimes committed by French nationals or on French territory may seem remote. But the armed conflict in Colombia (flag at left above) — which pits multiple rebel groups against the national armed forces (left) and paramilitaries with ties to the central authorities — has been the subject of a preliminary investigation by the ICC Prosecutor since 2007, as featured in the documentary The Reckoning. (Prior posts here, here, and here.) In the event that the Prosecutor seeks to commence a formal investigation proprio motu, any war crimes committed prior to October 2009 will escape prosecution as such, although such acts may be prosecutable as crimes against humanity if committed within the context of a widespread or systematic attack against a civilian population.
Other states, such as Burundi, contemplated lodging an Article 124 declaration, but declined to take advantage of this option due to internal political dynamics and/or pressure from civil society organizations.
Article 124, it appeared, had more impact at Rome in getting the final package accepted than it did in securing more widespread ratification of the Statute post-Rome.
Although Article 124 has been little used, its potential deletion remains controversial. France, for one, has argued in favor of its retention as a means to assist other hesitant states to join the Court.
Article 124 will no doubt be a topic of intense negotiation in Kampala (left), for a reason related to prior posts available here: Similar solutions are being considered for the jurisdictional regime that may eventually govern the still highly contentious crime of aggression.

Write On! Untold war crime trial stories

(Write On! is an occasional item about notable calls for papers.) From our Opinio Juris colleague Kevin Jon Heller, news that papers are being sought for what promises to be a fascinating event:
The conference, entitled Untold Stories: Hidden Histories of War Crimes Trials, will be held October 15-16, 2010, at the University of Melbourne Law School in Australia. Sponsoring the conference is the law school's Asia Pacific Centre for Military Law (logo below left). Organizers are Kevin, who's a Senior Lecturer at the law school, along with Dr. Gerry Simpson, Centre Director and a law professor both at Melbourne and the London School of Economics; Dr. Tim McCormack, Melbourne law professor and the Centre's Foundation Director, whom the Office of the Prosecutor of the International Criminal Court has named its Special Adviser on International Humanitarian Law; and Dr. Jennifer Balint (right), an expert on genocide and state crime at Melbourne's School of Social and Political Sciences. Confirmed speakers for this effort to examine less well-known aspects of war crimes trials, with an eye to publication of a conference volume, include our colleagues Mark Drumbl (Washington & Lee) and Larry May (Vanderbilt).
Organizers explain:

As international criminal law matures, there has been a return to history. Intriguing research agendas have focused on the origins of international criminal law in the repression of piracy or slave-trading and on the institutional innovations found at Versailles and The Hague. Meanwhile, familiar landmarks are being revisited in order to clarify ongoing doctrinal debates (aggression at Nuremberg, conspiracy at Tokyo, and so on). Alongside all of this is increased interest in less familiar war crimes trials, both international and domestic.
The idea behind this symposium is to uncover and explore some of the less well-known – perhaps even obscure – war crimes trials. As an example, Kevin Heller, one of the organizers, will be presenting a paper on the twelve Nuremberg Military Tribunals held under Control Council Law No. 10. There will also likely be papers on the war crimes trials held in Bangladesh after the secession, on the recent genocide trial in Ethiopia, and on the post-war trials under Australian jurisdiction in the Far East.

An abstract of 300 to 500 words, plus a short CV, should be submitted no later than the deadline of May 30, 2010, to Professor Simpson c/o Centre Administrator Cathy Hutton at c.hutton@unimelb.edu.au. Questions should be directed to Kevin at kheller@unimelb.edu.au.

On April 15

On this day in ...
... 1945 (65 years ago today), "horrified soldiers found piles of dead and rotting corpses and thousands of sick and starving prisoners kept in severely overcrowded and dirty compounds" when British troops liberated Bergen-Belsen concentration camp, located near Hanover, Germany. The camp commandant, Josef Kramer, "who was described as 'unashamed,'" was arrested. By year's end he would be found guilty by a British military court sitting at Lüneburg, Germany, and executed by hanging.


(Prior April 15 posts are here, here, and here)

Closing Statements: Prosecutor v. Duch

Part 1 of a 2-part series on the Closing Arguments in the Duch case.

After 73 days of trial, the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) recently heard the Closing Statements in the trial of Kaing Guek Eav (alias Duch), the former head of Tuol Sleng prison (a.k.a. S-21). The statements were a moving, intense, and at times baffling exercise. (A more detailed and fascinating account of the proceedings written by former Ambassador-At-large for War Crimes David Scheffer is available at the Cambodia Tribunal Monitor.)
The public gallery was full the entire week with members of the public, NGO representatives, VIPs representing various foreign embassies, monks in saffron robes (left) and nuns in white robes, uniformed school children, the head of security of the Special Court for Lebanon with his own security detail, and journalists. Hundreds of people were bused in from all over the country by DC-Cam and other organizations. As an advisor for DC-Cam, I was invited to observe the proceedings and was treated to a vast array of forensic styles and arguments—both legal and extra-legal. I’ll recount some of the more interesting arguments of the Civil Parties and Prosecution today and the amazing presentation of the Defense tomorrow.

Counsel for the 90 Civil Parties were invited to speak first. French counsel Philippe Cannone acknowledged that the Civil Parties had been disorganized at trial, but considered it a mistake to criticize those for whom the trial was convened and warned of efforts to silence the victims and render them, once again, “voiceless icons.” Counsel for the Civil Parties also accentuated the unique perspectives and contributions of the Civil Parties to the proceedings in terms of testifying about the impact of the defendant’s actions on direct and secondary victims, offering a fuller truth about the crimes committed, and providing insights into reparations.
Many of the Civil Parties argued that Duch’s claims of contrition over the course of the proceedings were equivocal and not genuine. They argued that the evidence demonstrated that Duch was ideologically loyal to the Khmer Rouge enterprise, sought to ingratiate himself with his superiors, and used his substantial autonomy to increase, rather than alleviate, the suffering of the detainees. Karim Kahn (left), representing 37 Civil Parties, at one point observed that Duch was no Schindler. Potentially undermining the Co-Prosecutors’ theory in Case 002 involving the regime leaders, Khan emphasized the lack of documentation in the record from the Standing Committee concerning the types and severity of torture, implying that Duch took it upon himself to design and implement the horrific torture practices employed at Toul Sleng. In addition, Khan highlighted the larger impact of Duch’s work, arguing that Duch’s unearthing of supposed CIA and KGB spies actually fueled the Khmer Rouge paranoia and led to additional abuses and purges around the country as the Khmer Rouge sought to exterminate real or perceived enemies of the revolution.

Silke Studzinsky of Germany and her Cambodian counterpart, Kong Pisey (below right on the right), presented evidence of sexual assault and abuse that occurred in Tuol Sleng. Both counsel implicitly critiqued the Co-Prosecutors for not focusing on sexual violence crimes committed at Toul Sleng. At one point, Studzinsky launched into a bizarre and potentially alienating invective on how the victims felt unwelcome before the ECCC because the judges:

• were not receptive to the victims’ suffering,
• insensitively asked the victims to show their scars in open court,
• interrupted the civil parties lawyers, and
• did not thank the victims for their appearance before the Court.

Several of the Cambodian lawyers spent considerable time recounting the basic biographical details of his clients; it is unclear if these were efforts to honor the memory of each of the clients or just examples of poor time management.

Several teams gave arguments on reparations, even though the provisions in the ECCC Statute are ambiguous on this point. One team argued that the ECCC had already provided the victims with most valuable reparations of all: the right to be present, the right to participate, and an opportunity for solidarity. Other suggestions include

• Having the defendant could write his autobiography and provide the proceeds to the victims (sort of a reverse Son-of-Sam rule),
• Donating some portion of the proceeds from the Tuol Sleng museum to the victims,
• Having Duch ask the Cambodian government to issue a formal apology,
• Posting a list of names at S-21,
• Ensuring the preservation of crime scenes, documents and graves,
• Establishing plaques and contemplative sites for the victims around the country,
• Providing for the rehabilitation of victims through medical care.

Many of the proposed reparations do not involve the accused or his resources, but rather require governmental involvement beyond what the ECCC can order.

The Co-Prosecutors—acting prosecutor William Smith of the U.K. and Chea Leang of Cambodia (left)—delivered the most traditional closing statement of the proceedings from prepared remarks. Leang emphasized that Duch could be considered both a senior leader, even though he was not a member of the Khmer Rouge Standing Committee and did not have a policy-making role, as well as someone “most responsible” for crimes within the ECCC’s jurisdiction. Leang acknowledged Duch’s claims that he is a scapegoat, facing prosecution when other security chiefs are not, and will not likely be, before the Court. In response, Leang emphasized that S-21 was in many ways at the apex of the Khmer Rouge extermination regime. Duch had unique access to, and influence over, senior leaders. His prison—which, Leang argued, should be considered a death chamber since there was no realistic chance of release—received high value prisoners from all over the country, including purged Khmer Rouge cadre. Leang’s impassioned account in the Khmer language of how prisoners arrived, were processed, were forced to give nonsensical confessions, and ultimately expired at S-21 drew tears from Khmer observers in the courtroom (below right).

Addressing the question of why the Co-Prosecutors sought to charge Duch with war crimes in addition to crimes against humanity, Leang explained that the rule of law requires that the Co-Prosecutors apply the terms of the ECCC Statute and international law. In addition, she noted the importance of enforcing the grave breaches regime of the Geneva Conventions to ensure that those provisions are not mere words on paper, of accurately reflecting the criminality of the accused, and of telling a fuller story of the crimes committed at Toul Sleng, particularly against Vietnamese civilians and prisoners of war. (Leang admitted, however, that there was no specific evidence that Vietnamese detainees were tortured; she argued that it could be inferred that they would have received equal—if not worse—treatment than Khmer detainees). Leang argued that the evidence in the record—including media reports, Khmer Rouge internal documents, and the expert testimony of Nayan Chanda (a former editor of the Far Eastern Economic Review and co-author of several books on Asia)—an international armed conflict commenced in Cambodia in April 1975, several months after the Khmer Rouge invaded Cambodia. (We've blogged about this open question here.)

Acting Co-Prosecutor Smith took charge of elucidating Duch’s individual responsibility for the crimes committed at Tuol Sleng, Smith emphasized that Duch manifested all forms of responsibility—as a planner; a giver of orders; an instigator, aider, and abettor; and a direct perpetrator. Smith also argued that the doctrine of joint criminal enterprise (JCE) perfectly captures the essence of the accused’s liability. He noted that other tribunals have found JCE to be a form of commission and that the drafters of the ECCC Statute chose language identical to that of the other ad hoc tribunals in order to import the JCE doctrine as well. As we’ve discussed previously, the Trial Chamber reserved ruling on the applicability of the JCE doctrine until the judgment.

Smith noted that Duch has admitted his “absolute authority” over S-21 and his general responsibility for the crimes committed and that he assented to a list of agreed facts concerning the structure of S-21 and its staff. Smith noted, however, that there were omissions and gaps in Duch’s testimony. Duch also advanced a superior orders defense and did not admit to undertaking his functions willingly, claiming instead to be a “hostage to the regime.” Although Duch tried to portray himself as ignorant of the details of the day-to-day operations in Toul Sleng, or as dependent on orders from his superiors, these claims are not borne out by the evidence. Smith reminded the Court that 155 individuals executed at Toul Sleng were former prison staff members—Duch’s direct subordinates. Smith described Duch and his superiors, one of whom will be on trial next year, as “brothers in arms.”

Turning to the appropriate sentence, Smith emphasized that given the magnitude and gravity of Duch’s crimes, it was inconceivable that Duch (right) would receive less than a lengthy imprisonment. Smith emphasized the impact of the crimes on the victims and their network of traumatized friends and relatives around the globe, the degree of direct participation of the accused, and his zealous participation in the crimes. As additional aggravating factors, Smith highlighted Duch’s abuse of power, the unusual cruelty of his actions, and the defenselessness of the victims. Smith then discounted mitigating factors he anticipated from the accused, such as that Duch was acting under duress or pursuant to superior orders. Smith argued that Duch believed in the validity of any orders he received and implemented them willingly. Although he provided some cooperation after his arrest, Duch lived under an assumed name and remained with his former Khmer Rouge colleagues for years prior to his detention. He only started cooperating when Irish photographer Nic Dunlop discovered his whereabouts in 1999, as recounted in Dunlap’s book, The Lost Executioner. Duch also fought the admission of certain evidence and resisted the introduction of reserve witness lists or even witness statements in lieu of live testimony. These acts, in Smith’s estimation, attested to Duch’s unwillingness to accept full responsibility for his actions or allow the truth to flow freely. Smith emphasized that opposing the introduction of inculpatory evidence is within Duch’s right as a defendant, but is inherently inconsistent with his claims of cooperation and admissions of responsibility.

Turning to concrete issues of sentencing, Smith conceded that Duch should receive credit for time already served in military custody prior to his transfer to the ECCC. Given that Duch was unlawfully detained for a period of time and subjected to other legal irregularities, Smith argued that a sentence of life imprisonment—which would otherwise have been appropriate—should be commuted to a determinate sentence of 45 years. Smith suggested that the Court should carve off another 5 years to reflect Duch’s limited cooperation with the tribunal and conditional expressions of remorse.

(Photos from the Duch Closing Arguments have been uploaded here. All photos are courtesy of the Extraordinary Chambers in the Courts of Cambodia.)

Call for Papers: Women & International Criminal Law

(Write On! is an occasional item about notable calls for papers.)

Call for Papers: Women & International Criminal Law
Special Issue of the International Criminal Law Review
Dedicated to Judge Patricia M. Wald

The International Criminal Law Review invites submissions for its 2010 special issue entitled "Women and International Criminal Law," to be guest-edited by IntLawGrrls Diane Marie Amann, University of California, Davis, School of Law; Jaya Ramji-Nogales, Temple University Beasley School of Law; and Beth Van Schaack, University of Santa Clara School of Law (bios below). This is the second event on international criminal law co-sponsored by IntLawGrrls, the first being the IHL Dialogue at Chautauqua last fall.

The Special Issue is dedicated to Judge Patricia M. Wald (right), a pathbreaker in international criminal law who has served as

• Chief Judge for the U.S. Court of Appeals for the District of Columbia Circuit,
• a Judge on the International Criminal Tribunal for the Former Yugoslavia,
• a member of the Iraq Intelligence Commission,
• Co-Chair of the American Society of International Law Task Force on the International Criminal Court, and
• Chair of the Board of Directors of the Open Society Justice Initiative.

(Bios of Judge Wald, an IntLawGrrls guest/alumna, are available here and here. All IntLawGrrls posts by and about her are here.)

This special issue is devoted to the topic of women and international criminal law. The majority of the articles have been solicited from prominent academics and practitioners in the field of international criminal law and feminist jurisprudence, such as Justice Ruth Bader Ginsburg, Prof. Jenny Martinez, Dean Martha Minow, Prof. David Luban, Prof. Naomi Cahn, Prof. Leila Nadya Sadat, and Lucy Reed. The editors have also reserved several slots for submissions in response to this call to papers. Submissions should be inspired by this theme statement:

Special Issue Theme: Women & International Criminal Law

The law, it has been noted, “has not always served women well.” The critique extends readily to international law. Until very recently, women were absent from the processes of international law formation and enforcement, and invisible within substantive law reflective of the male experience. Mirroring the public/private divide running through much of law and society, the law, and those with the power to use it, tended to treat all forms of gender violence as opportunistic, peripheral, or private crimes reflecting personal motives and desires unconnected to issues of international importance. Thanks to the tireless work of committed advocates, jurists, and diplomats, international criminal law now treats many forms of gender violence as prosecutable offences against the physical and mental integrity of the victim. With the promulgation of the Statute of the International Criminal Court and the voluminous jurisprudence of the ad hoc criminal tribunals, the law now sanctions the prosecution of gender crimes as war crimes, crimes against humanity, torture, and the predicate acts of genocide.

Women have stood front and center to push these developments. Other international institutions often are dominated by men. Yet women have served in top posts in all of the modern tribunals, as

• Presidents (Gabrielle Kirk McDonald, Navanethem Pillay, and Renate Winter),
• Registrar (Dorothée de Sampayo Garrido-Nijgh),
• Chief Prosecutors (Louise Arbour and Carla Del Ponte),
• Deputy Prosecutors (Fatou Bensouda),
• Gender Advisors (Patricia Viseur Sellers and Catharine MacKinnon),
• Chefs de Cabinet (Susan Lamb), and
• in many other judicial, prosecution, defense, and administrative capacities.

The tribunals are approaching gender parity in staffing, although women remain concentrated in the lower professional grades. International criminal law is thus one area of international law in which women have made headway in terms of substantive law and institutional access; still, significant obstacles remain to ensure a robust system of gender justice in the face of continued violations.

The field of international criminal law nears a watershed moment, as ad hoc tribunals wind down and the International Criminal Court becomes fully operational. This opportune time invites reflection on whether international criminal law should be considered a feminist project. Accordingly, this volume offers sustained study of how international criminal law affects women and how women have affected international criminal law.

We welcome submissions on the following topics:

• Can, and has, international criminal law improved the material conditions of women’s lives and promoted the dignity of women?
• Is participation in international criminal justice liberating and transformative, or alienating and regressive?
• What legal reforms, procedural devices, advocacy strategies, and institutional arrangements can be employed to ensure that women experience the former and not the latter?
• Does fixation on criminal penalties constrain imagination and implementation of other ways to respond to the needs, demands, and aspirations of women in situations of armed conflict, mass violence, abuse, and repression?
• How have women – as activists, victims, lawyers, and perpetrators – changed the field?
• How has the gender jurisprudence advanced, or impeded, the development of international criminal law?
• Has international criminal law changed the way we think about violence against women?

This volume looks beyond sex crimes to consider multiple ways that women experience war and repression, as agents of change, peacemakers, as victims, and as perpetrators. The study adopts critical perspectives to challenge conceptual boundaries – between and within public international law, international criminal law, international humanitarian law, and international human rights – that tend to eclipse the intersectionalities of women’s identities and to fragment women’s experiences with violence, based upon whether violence occurs in a time of war or peace, whether it occurs at home or in a detention center, or whether the perpetrator is a state actor or a private person.

Our hope is that the new perspectives presented in this collection will advance our thinking about gender and international law across a number of disciplines. We welcome your participation in this historic effort to examine the impact of international criminal law on women, and vice versa.

Special Issue Logistics

The volume will be published in spring 2011. Judge Wald and other contributors will present their works at a roundtable hosted at the American Society of International Law’s Tillar House in Washington, D.C., on October 29, 2010 – days before the tenth anniversary of the first U.N. Security Council resolution (1325) on Women, Peace and Security.

To ensure anonymity in the selection phase, please submit a solid draft essay or article, in the range of 5,000 to 10,000 words, with all identifying information redacted, to Kathleen A. Doty, by way of an e-mail attachment in Word format (kadoty@ucdavis.edu), by April 15, 2010. Please note the paper’s title (which should match exactly the title of the redacted paper) and your name and contact information in the body of the e-mail.

Once papers have been selected, they will be subject to a full edit and peer review in advance of the October roundtable. The final draft of the paper will be due no later than March 1, 2011, and should adhere to the International Criminal Law Review style sheet, which is available here.

About the Editors

Diane Marie Amann (right) is Professor of Law and Director of the California International Law Center at King Hall, University of California, Davis, School of Law; a founding contributor to the IntLawGrrls blog; and a Vice President of the American Society of International Law. Her scholarship examines the interaction of national and international legal regimes in efforts to combat atrocity and cross-border crime.

Jaya Ramji-Nogales (left) is Assistant Professor of Law at Temple University's Beasley School of Law; a regular contributor to IntLawGrrls blog; and a member of the Board of Legal Advisors to the Documentation Center of Cambodia. Her scholarship examines transitional justice mechanisms, and includes the volume Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence Before the Cambodian Courts (2005), co-edited with Beth Van Schaack.

Beth Van Schaack (right) is Associate Professor of Law at Santa Clara University School of Law and Visiting Scholar (2009-2010) at the Center on Democracy, Development & The Rule of Law, Stanford University, as well as a regular contributor to IntLawGrrls blog. Prior to joining the law faculty, she was Acting Executive Director and Staff Attorney with The Center for Justice & Accountability, San Francisco, and a law clerk with the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia. Her scholarship is in the area of international criminal law, and she is the co-author with Ron Slye of a leading casebook and hornbook on the topic.