International & Transnational Criminal Law

Mladic in Custody

 

ITCL Update: Chapter 4, Section (C)(1)

 

I'm delighted to pass along reports that Serbian general Ratko Mladic has been arrested in Serbia, apparently by that state's intelligence forces, and is in the process of being surrendered to the ICTY. Since the capture of former Bosnian Serb President Radovan Karadzic, Mladic has been the ICTY's "most-wanted" indictee. The text of his indictment can be found here. He is, of course, most famous for having led his troops during the slaughter of Bosnian Muslims in Srebrenica during the Yugoslav conflict, and is charged with genocide among other crimes.

This arrest will likely give further impetus (of a positive sort) to the ICTY's completion strategy, and -- without being too dramatic about it -- does represent one more chink in the armor of impunity for war criminals.

Côte d’Ivoire and the ICC: A New Kind of "Self-Referral"?

 

ITCL Update: Chapter 4

 

On 3 May 2011, the President of Côte d’Ivoire, Alassane Ouattara, wrote to the Prosecutor of the ICC and indicated that he wished the Prosecutor to initiate an investigation into core crimes taking place in that country since 19 September 2002. The Prosecutor's press briefing can be found here.

There are a couple of unique aspects to this. First, Côte d’Ivoire is not actually a party state to the Rome Statute, but has acceded to the Court's jurisdiction pursuant to article 12(3). So that was anticipated, but I think it's still the only state to have done so thus far (except for Uganda's use of the article to cover a 2-month lapse between the coming into force of the Statute generally and its coming into force for Uganda).

More unusual here is the way the President has framed the matter: this is not a situation where the state is doing a "self-referral" under article 13(a), as was the case with Uganda, the Democratic Republic of the Congo and the Central African Republic. Rather, President Ouattara has asked the Prosecutor to initiate a proprio motu investigation, provided for in article 13(c); his letter invokes article 15, which sets out the Prosecutor's powers in such a situation.

However, on a close reading, this makes sense. Articles 13 and 14 provide explicitly that a "state party" can refer a situation to the Court, whether it's in another state or (as we now know) in the referring state itself. As Côte d’Ivoire is not a "state party" strictly speaking, this mechanism was likely not available to it. What this amounts to, it seems to me, is the President throwing up a red flag for the Prosecutor as to the crimes having been committed and indicating (as the letter does) that the government will cooperate fully (which it is bound to do under article 13(3), anyway).

The President's letter also indicates that the Ivoirien courts are not up to the task of prosecuting these crimes, which is designed to satisfy the admissiblity requirement in article 17(1), i.e. that the state is "unable" to conduct the prosecutions. The Prosecutor is currently drafting its application materials to seek authorization from the Pre-Trial Chamber to pursue the investigation proprio motu. If it's granted, it will be the next proprio motu investigation after the Kenya situation, albeit a much less controversial one.

ICC Prosecutor Seeks Warrant for Gadhafi

 

ITCL Update: Chapter 4

As is being reported, the Prosecutor of the International Criminal Court has applied to Pre-Trial Chamber I for the issuance of arrest warrants for three people arising from the Libyan conflict. They are: Muammar Gadhafi, his son Saif al-Islam Gadhafi (who is a "Libyan government spokesman") and Abdullah al-Sanusi, head of Libyan intelligence. The Prosecutor's statement to the press yesterday can be found here.

Two thoughts. First, recall that the Libya situation came to the Court by way of a referral from the Security Council. Since Libya is not a party to the Rome Statute, this is the only way the case could be brought. It indicated a certain amount of unity on the SC on the view that it would be worthwhile bringing criminal process to bear against Gadhafi. However, the SC's resolve on that point is open to question. It is also empowered to order the Court to suspend its process against the Libyans if it sees fit, and it may very well do that if it comes down to the nitty-gritty of a "safe exile for Gadhafi in exchange for peace" kind of deal.

So this might be a, shall we say, "p0liticized" use of the Court as a means to squeeze Gadhafi out rather than a chance to further the cause of international criminal justice. It's not exactly the kind of "politicized" activity by the Court that some of its most ardent critics predicted from the beginning, but it may ultimately serve to undermine the Court's legitimacy.

Second point is whether there will be African push-back. We have seen with the Al-Bashir warrant that, the ICC notwithstanding, some African states *which are ICC parties* have allowed Bashir to travel to their territories without arresting him, as they're obliged to. That warrant also arises from a Security Council referral to the Court, in that case Sudan. The Council itself has not done anything about this impunity promotion as yet, preferring to let the Court itself shoulder the load of criticizing member states for non-compliance. If Gadhafi ends up enjoying the kind of relative freedom Bashir has, this too will not help the Court's legitimacy or at least the overall view of its efficacy. On the other hand, Africa is complicated, so perhaps slow and steady is the only sensible policy.

Bin Laden Update

Some more developments on the Bin Laden execution front, though nothing completely startling. Pakistan, which initially expressed surprise over the mission and then purported to be a supporter of it, has now publicly declared that it considers the operation a violation of Pakistani sovereignty. It has protested it formally to the American government, which nominally makes the mission an illegal exercise of enforcement jurisdiction (and thus, indeed, a sovereignty violation) by the U.S.

Of course, Pakistan is also denying that any state officials knew that bin Laden was in Pakistan to begin with, which seems unlikely. And if they were sheltering him, that would in and of itself violate both legal and informal commitments which Pakistan owed to the U.S. and the international community as a whole.

However, in another twist, a British journalist is reporting that there was a secret deal struck between the U.S. and Pakistan (under former President Musharraf) in 2001. The alleged agreement was to the effect that, if the U.S. found bin Laden or other top Al-Quaeda figures in Pakistan, they would be permitted to conduct a unilateral operation to remove them. Pakistan's permission would remain secret, and Pakistan would publicly protest the move even though they had actually allowed it. If true, this makes it legal again, at least from a sovereignty point of view.

Bit of a football match, this. And we'll never see any resolution of it, since this kind of international law is all about realpolitik and no one will be trotting off to the ICJ any time soon. That said, if the story about the secret deal is true, it has the interesting effect of providing state practice that supports the legal regime about extraterritorial enforcement--since the U.S. actually received permission before making the move.

In the meantime, opinions are still mixed about whether execution was the best option, or whether bin Laden should have been tried. At this link is an article by Goran Sluiter, a distinguished international law professor, who points out in a balanced way what the logistical and political problems would have been with trying bin Laden but regrets that the legitimacy of international criminal justice is damaged by this kind of unilateral action.

My own thought at the moment is that there was never any chance that he was going to be tried; not because of international factors, but because President Obama would have gone down in infamy in U.S. history had he not taken the opportunity to make as decisive a move as possible. He has his 2012 re-election bid to consider, after all.

The Bin Laden Execution

As the whole world now knows, Osama bin Laden was killed by U.S. special forces yesterday, in a raid on his compound in Pakistan. Let me be clear at the outset of this post: I am not weeping for Osama bin Laden. bin Laden was a vicious terrorist mastermind and the leader of an evil organization that has wreaked havoc throughout the world, not least upon the Western psyche. As many have already said, the world is indeed a safer place now that he is dead.

That said, what international law issues arise? States are not normally permitted to exercise enforcement jurisdiction on the territories of other states, which is generally regarded as a serious sovereignty violation. In this case, while some initial reports I read last night suggested that Pakistan had been unaware of the operation, the Pakistani government has since stated that it was fully cooperative with what it now calls a joint effort. So no problems there.

How to characterize this act? I expect there will be some linking of it to the development of the notion of "targeted killing" as an instrument of international humanitarian law. However, to the extent that practice has any legitimacy (and it is highly controversial), it is only within the scope of the law of armed conflict. Osama bin Laden was not a participant or "combatant" in an armed conflict of the type known to the law. He was simply a criminal, albeit probably the most wanted criminal in the history of the world.

Accordingly, I'm drawn to the conclusion that this was simply an extra-judicial killing: state agents (including President Obama and Pakistani authorities) murdering an individual whom they regard as dangerous. Naturally, it is a blatant violation of international human rights law, which forbids governments killing civilians (even criminals) outside the lawful imposition of the death penalty (i.e. after a trial). Of course, neither the U.S. nor Pakistan has ever let international human rights law get in the way of accomplishing important foreign policy objectives.

And it's important not to be Pollyanna-ish about this; this kind of thing goes on all the time, though usually in secret and not trumpeted to the world. Moreover, given the fact that it's bin Laden, it's highly unlikely that any significant numbers of states will want to call either the U.S. or Pakistan to account, outside those with jihadist constituencies they wish to appease.

And perhaps, if there's a worry, that is it. We can be happy that bin Laden is out of the picture, but perhaps we should be concerned about powerful states being able to kill a person they deem to be really, really dangerous, publicly and without accountability. Is this a power we want to see other states exercising, such as China, Russia, Yemen, Pakistan itself? While most of us agree about how dangerous bin Laden was, perhaps many would not agree with China's assessment of why some particular dangerous person (say, a human rights activist?) had to be killed. Yet now, China can point to President Obama and say, if he can do it, why not us? Possibly, just possibly, a dangerous precedent.