International & Transnational Criminal Law

ICC Prosecutor Shortlist Released

Yesterday, the search committee of the Assembly of States Parties to the Rome Statute of the International Criminal Court released its shortlist of candidates to replace the current prosecutor, Argentinian Luis Moreno-Ocampo. A press release with some details generated by the Coalition for the International Criminal Court can be found here.

Two points of interest. First, as explored in an article in the International Justice Tribune, there are two Africans on the short list. One of them appears to be the front runner: the current deputy prosecutor Fatou Bensouda, who is from Ghana. Bensouda is a former advisor and prosecutor at the ICTR and -- importantly, given the ICC's current docket -- she reportedly has the support of the African Union. The other African candidate is Justice Mohamed Chande Othman, the current Chief Justice of Tanzania who also has extensive experience as an international prosecutor.

Second, there is a Canadian on the list. Robert Petit, currently counsel with the Crimes Against Humanity and War Crimes Section at Justice Canada, has been a prosecutor at the ICTR, the SCSL, the ECCC and East Timor tribunal. Petit would do an excellent job, though it's highly unlikely that the ASP will be able to resist having a strong African lawyer take the job in the current political climate.

Antonio Cassese, 1937-2011

One of the giants of international criminal law, Professor Antonio Cassese, has died as a result of cancer he has been fighting for some time. The New York Times obituary can be read here.

It's difficult to overstate the impact Cassese had on this field, which simmered for decades following WWII and only truly emerged after the Cold War. His writings are legion and influential, including one of the leading texts in the field, International Criminal Law, 2nd edition (Oxford, 2008). Unusually among academics, he had the will and opportunity to put his knowledge into practice, serving as a judge for both the ICTY and the Special Tribunal for Lebanon (the latter post being one he left just weeks ago). He was a champion of humanity, always aware of the tension between state sovereignty and protection of the individual and adroitly pushing the balance in favour of the latter.

One of his fellow former ICTY judges, Patricia Wald, is quoted in the obit as saying “There are moments in history when one individual can make a great difference, and he was such a man.” This echoes something that Judge Ron Macdonald, former Dalhousie law dean and judge at the ECHR, told me years ago, that some great moments in history are not the product of "social forces" so much as they stem from the role and vision of exceptional individuals. This is particularly true, some might say, of international law, and Judge Cassese was certainly that kind of character.

Cassese was a progressivist, an inconoclast and an individual. He will be missed.

Bangladesh War Crimes Tribunal Starts Up

The BBC is reporting that the International Crimes Tribunal (ICT) in Bangladesh has begun its work by charging seven people, the most prominent of whom is Delawar Hossain Sayedee, the leader of one of the opposition parties. The Tribunal was set up by the government of Bangladesh to prosecute individuals for crimes committed during the war that led to the country's secession from Pakistan in 1971. Justice a long time coming, and all that. Human Rights Watch has suggested that some changes are needed to the ICT's founding statute and rules of procedure and evidence, in order to guarantee fair trials.

Sign of the times: the ICT doesn't appear to have a website, though it does have a Facebook page:

http://www.facebook.com/pages/International-Crimes-Tribunal-Bangladesh-ICTB/153315501365003

 

The Al-Awlaki Execution: More of the Same

Neil Macdonald has a good piece on the CBC website today regarding the execution of Anwar al-Awlaki, a US-born senior Al-Qaeda official, by way of a drone strike last week. He makes basically the same point I made earlier this year regarding the execution of Osama bin Laden: no one is weeping for the demise of people like this, but the undermining of the rule of law is profound. Macdonald's closing paragraphs are particularly effective:

"Would anyone want the Chinese leadership, or the Russian president, or the Venezuelan president carrying out strikes here or anywhere else they deem necessary, based on unreviewable secret intelligence?

Or, for that matter, as author Salman Rushdie said last week, would anyone want to see a President Michele Bachmann enjoy that sort of arbitrary power?"

 

On a more international legalistic point, this kind of thing has the strong potential to undermine the prohibition against the exercise of enforcement jurisdiction on the territory of other states, it making no difference whether it's an actual territorial incursion or just a drone strike. The situation regarding the bin Laden execution is still murky, as it remains unclear whether Pakistan authorized the attacks (either before or after the fact) so far as I can tell. In this situation, the target was killed in Yemen. While there have been some reports about cooperation between the Yemeni and American governments lately, I have yet to see any indication that any permission for this was forthcoming.

The strength of the norm is also undermined when other governments line up to cheer these executions, without taking the opportunity to protest -- even mildly -- the breach of territorial sovereignty which the act entails. The government of Canada was quick to do this regarding bin Laden, without any reflection on what it did to international law. This is not a government that always listens to its international legal advisers, who might tell them (if asked) that when one state takes illegal unilateral action and other states don't protest, that unilateral action is on the road to being less illegal.

Perhaps the next time the government of Canada is faced with an unlawful exercise of power by US officials on Canadian soil (which happens with disturbing frequency), they'll regret this lack of reflection. Or we will.