Monthly Archives: January 2017

The Policy Paper on Case Selection and Prioritisation: a (Vain?) Effort to Address Issues of Bias and Inefficiency

In September 2016, the Office of the Prosecutor (OTP) of the International Criminal Court (hereinafter, the ICC or “the Court”) published a Policy Paper on Case Selection and Prioritisation (“the Policy Paper” or “the document”).

The document follows a long series of papers on policy and strategy of the ICC Prosecution. By delivering such documents, the OTP aims to clarify some aspects of its work. This effort of transparency has the purpose of dissipating allegations of bias and managing public expectations towards the Court. The document was awaited to respond to criticisms commonly raised by observers. First, the lack of objectivity in the selection of cases, often targeting only one side within a situation, as detailed below. Second, the lack of efficiency in terms of quantitative results, with five completed trials in the Court’s first 15 years of work.

This post will argue that, despite the efforts of transparency of the OTP, the Policy Paper does neither fulfill expectations concerning the bias critique, nor does it offer valuable solutions to the problem of efficiency.

Selectivity – on the impossibility to reach impartiality through objective criteria

 The Policy Paper broadly reiterates the principles affirmed in the Rome Statute and confirmed by the practice of the Court: impartiality and objectivity, to avoid one-sided or biased case selection. Paragraph of the document 20 quotes:

“The Office will examine allegations against all groups or parties within a particular situation to assess whether persons belonging to those groups or parties bear criminal responsibility under the Statute. However, impartiality does not mean “equivalence of blame” within a situation. It means that the Office will apply the same processes, methods, criteria and thresholds for members of all groups to determine whether the crimes allegedly committed by them warrant investigation and prosecution.”

Although this principle is uncontroversial, the statement fails to address the issue of prosecutions and investigations targeting only one side within a situation, which appears to be an unfortunate pattern in the action of the Court. In cases where the Court’s jurisdiction was triggered through a self-referral (e.g. Uganda, the Democratic Republic of Congo, the Central African Republic, Ivory Coast and Mali), the OTP did not target any state official. To the contrary, it focused solely on the rebels, i.e. the non-state actors adversaries of the referring Government. Conversely, in the Darfur and Libya situations, referred by the UN Security Council, prosecutions disregarded crimes perpetrated against government officials. In Darfur, no charges were made for crimes committed against Sudanese troops; the only rebels who were indicted faced charges for attacking Peacekeepers. In Libya, prosecutions targeted only officials of the then Libyan Arab Jamahiriya.

From a legal point of view, the ICC Prosecutor has consistently proclaimed the duty to deal with all the groups and parties within a situation. This position has been clear since in the context of the first self-referral by the Government of Uganda in 2004. Under the principle of ‘‘symmetric interpretation’ of a referral enshrined in Rule 44(2) of the Rules of Procedure and Evidence, the Prosecutor clarified his mandate to impartially prosecute international crimes within the situation referred regardless of possible selectivity in the text of the referral. Yet, in practice, not only was the referral jointly announced in January 2004 by then Prosecutor Luis-Moreno Ocampo and Ugandan President Yoweri Museveni, but prosecutions have only targeted rebel leaders so far.

Beyond the Ugandan situation, it appears that the Court regularly joins the side of the subject referring the situation (i.e. the local Government or the Security Council; the Kenyan situation, triggered by the proprio motu initiative of the Prosecutor, makes exception). The reiteration of the OTP position on impartiality in the policy paper does not change the matter. Indeed, the bias issues of the ICC seem to have deeper institutional roots, which cannot be properly addressed by stating objective criteria in a policy paper.

 Efficiency – Lowering Ambitions to Meet Expectations?

The lack of efficiency in the first 15 years of the Court’s work can be assessed from a mere quantitative point of view, given the scarce number of completed trials, but also from a qualitative perspective. The most ambitious prosecutions have targeted high-profile individuals identified as the most responsible for the crimes investigated. Joseph Kony, Omar al Bashir, Uhuru Kenyatta and Muammar Gaddafi are distinct examples of senior figures that the ICC indicted, but could not apprehend and prosecute.

The main obstacle lies in the failure of States to cooperate with the Court on the field, to implement the arrest warrants and the decisions of the ICC. The discretionary power of the Prosecutor, still, allows her to focus on cases with a reasonable prospect of conviction. In particular, the Policy Paper states that:

“The Office may also decide to prosecute lower level-perpetrators where their conduct has been particularly grave or notorious.  The notion of the most responsible does not necessarily equate with the de jure hierarchical status of an individual within a structure, but will be assessed on a case-by-case basis depending on the evidence.”

This confirms a shift from the previous prosecutorial strategy, which implied to “investigate and prosecute those who bear the greatest responsibility” and was already mentioned in the Prosecutorial Strategy paper published in February 2010.

The purpose of the new strategy is clearly to privilege targeting individuals who are likely to appear on trial before the Court. This approach appears grounded from a legal point of view, as it does not contrast with the Rome Statute; and it seems desirable from a policy point of view, given the failures in the more ambitious prosecutions mentioned above.

However, this prosecutorial strategy has been the object of controversy within other international tribunals. At the ICTY, Prosecutor Goldstone decided to start prosecuting low-level perpetrators. His aim was both to respond to public pressure, which asked for prompt indictments, and to build stronger cases for future prosecutions against higher-level individuals. The ICTY Judges, nevertheless, explicitly objected to the strategy in a public statement and requested the Prosecutor to target high-level perpetrators. Judge Cassese defended the action as a means to safeguard respect  for the ICTY Statute[1]. The Prosecutorial strategy then shifted to focus on higher-level perpetrators.

At the ICC, the first trial seeming to implement the new strategy, against al Mahdi in the situation of Mali, has been criticised by scholars on various grounds. The strategy also reminds of the criticisms levelled against the low-level charges that the Prosecutor brought in the Lubanga case. Thomas Lubanga received the arrest warrant while he was detained, inter alia, for torture, and was convicted before the ICC to 14 years for the war crimes of enlisting and conscripting children.

Conclusions

The first independent permanent international criminal court has been surrounded by pressures and expectations since before its entry into force in 2002. The Court is often expected to achieve results beyond the scope of its mandate, for instance, when its action is invoked in the middle of an armed conflict, or to solve an international crisis. The efforts of the OTP to deliver information on its policy and strategy may indicate attention on outreach, to improve the public image of the Court.

The Policy Paper on Case Selection and Prioritisation appears as an attempt to justify the selectivity of cases through the introduction of an objective legal criteria. However, this does not respond to the problem of political interference with the Court, which still depends on the support of States and international organisations – and consequently on their political will –  to fulfill its mandate. Basically, the new prosecutorial strategy appears to be aimed at collecting a major number of convictions in a shorter time, at the detriment of the relevance and of the quality of the prosecution. This could betray a further lack of independence, this time from the pressure of international public opinion.

[1] “the Statutes of the international tribunals do set out some general guidelines, if only implicitly, by suggesting that they must prosecute the most serious international crimes. However, such guidelines are rather loose. It falls to the prosecutor, who enjoys immense discretion and total independence, to decide upon his or her strategy and to set the priorities and the main targets of prosecutorial action. […] the Judges as a whole are the only body that can try to reorient prosecutorial action so as to keep it within the Statute’s explicit or implied objectives.” A. Cassese, ‘The ICTY: A Living and Vital Reality’, (2004) 2(2) JICJ 585, at 587. A. Cassese, ‘The ICTY: A Living and Vital Reality’, (2004) 2(2) JICJ 585, at 587.

 

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Trump, torture and the United States’ obligations under international law

Caleb Wheeler, PhD Student in International Law, Middlesex University, London

Introduction

            Donald Trump’s election as the next president of the United States has cast doubt on whether the United States will continue to comply with a variety of its different international human rights obligations. One issue in particular, Trump’s attitude towards the use of torture, could significantly diminish the United States’ compliance with its international treaty obligations.  This blog post examines the United States’ international obligations with regard to torture, and whether Trump’s policies as proposed through his campaign statements conform to those obligations.  It concludes that they do not and that if the United States reauthorises the use of torture it will be in violation of its international commitments.

Trump’s statements on torture

Donald Trump’s election as the next president of the United States has cast doubt on whether the United States will continue to comply with a variety of its different international human rights obligations. While significant post-election attention has been paid to how Trump’s proposed policies comport with domestic human rights law, it is also important to analyse whether his positions comply with international law.  One issue in particular, Trump’s position on the use of torture, could significantly diminish the United States’ compliance with its international (treaty) obligations.

Trump’s campaign rhetoric was fraught with contradictory and troubling statements regarding the use of torture. His initial statement on torture came on 25 November 2015, when, at a campaign rally he stated “[w]ould I approve waterboarding? You bet your ass I would. In a heartbeat. I would approve more than that.”On 17 February 2016, Trump asserted that “torture works”, that he believed in the efficacy of waterboarding and that the United States should employ “much stronger” types of torture than waterboarding when questioning suspected terrorists. On 4 March, Trump appeared to back away from that statement when he told the Wall Street Journal that, if elected, he would not order members of the military to violate international law. He almost immediately changed course again indicating on 6 March 2016 that the United States should expand its laws to authorise the use of greater forms of torture. Trump returned to the topic of torture at the end of June when he reaffirmed his affection for waterboarding as an interrogation technique and suggested that he “[doesn’t] think it is tough enough.”

Trump’s declaration that as president he would not ask American troops to violate international law appears anomalous when placed in the context of his other assertions on the issue of torture.  This is particularly true when one considers that he repeatedly advocated in favour of changing domestic law so as to permit a more expansive use of torture as an interrogation technique. However, United States’ law comprehensively bans the use of torture and it would be difficult for Trump to unilaterally alter those provisions.

The United States’ obligations

The prohibition against torture has its roots in the Eighth Amendment of the United States Constitution, which bans the use of cruel and unusual punishment, although there is an ongoing debate as to whether the Eighth Amendment is applicable in all situations involving torture. United States’ law also contains several different explicit prohibitions against torture. 18 U.S.C. §2340A forbids torture if it occurs outside of the United States and the perpetrator is either an American national or can be found in the United States following the alleged criminal act. Additionally, one of Barack Obama’s first acts after becoming president was to issue an executive order in which he specified that individuals detained in an armed conflict were to be treated humanely, were not to be subjected to torture and restricted all interrogation techniques to those discussed in the Army Field Manual 2-22.3. That executive order was reinforced by the McCain-Feinstein Amendment to the National Defense Authorization Act for FY 2016 which made the Army Field Manual 2-22.3 the single and standard guide for all interrogations conducted by American personnel or at American facilities of individuals detained during armed combat. The passage of this Amendment is significant as it eliminates the possibility of Trump unilaterally overruling President Obama’s Executive Order, necessitating Congressional action before torture could be authorised. These protections, together with the 2005 Detainee Treatment Act, which forbids the use of cruel, inhumane or degrading treatment or punishment against detainees, but stops short of banning torture outright, will make it difficult for Trump to permit the renewed use torture.

If Trump were to somehow re-authorise the use of torture under domestic law, those actions would violate the United States’ international obligations under the International Covenant on Civil and Political Rights and the Convention Against Torture.  Article 7 of 1966 the International Covenant, which the United States ratified in 1992, unequivocally states “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” This prohibition against torture was strengthened and made specific through the 1984 Convention Against Torture.  Signed by the United States in 1988 and ratified in 1994, the Convention Against Torture was introduced to combat the use of torture and inhuman or degrading treatment in recognition of the inherent dignity of human beings and the obligation to promote universal respect for human rights found in Article 55 of the Charter of the United Nations.

If taken at face value, always a danger when considering Trump’s statements, his policy regarding the use of torture would conflict with all three subsections of Article 2 of the Convention Against Torture.  Article 2(1) requires each State Party to the Convention to enact effective legislation, laws and administrative rules to prevent acts of torture from occurring in territory under its control. Trump’s statements propose just the opposite as he advocates in favour of laws designed to accommodate and encourage harsher forms of torture. Therefore, not only would Trump’s suggested policies not comply with Article 2(1), they would be directly contradictory to it as they would involve enacting laws and legislation designed to facilitate acts of torture.

Article 2(2) does not allow assertions of exceptional circumstances, including war, threat of war, public emergency or domestic political instability, to justify the use of torture. Trump’s statements make clear that he believes that expanding the laws relating to torture are justified to the extent that doing so is necessary in the context of the United States’ conflict with Islamic State. This is akin to invoking exceptional circumstances based on a state of war as Trump has essentially argued that the vicious tactics employed by Islamic State justify similar brutality on the part of the United States.  Therefore, his position does not comply with Article 2(2).

Article 2(3) of the Convention Against Torture forbids the invocation of orders from a superior officer as a justification for committing acts of torture. If Trump were to enact his stated policies regarding torture, the laws of the United States would not correspond to international law and the United States would find itself in breach of Article 2(3). That is because American service members are subject to the United States’ Uniform Code of Military Justice, Article 90 of which makes it a crime, sometimes punishable by death, to disobey the lawful command of a superior officer. If torture were legal under the laws of the United States, an order to commit torture would be a lawful command as it would be an order that is consistent with the law.  By making torture legal the United States will also legitimise superior orders as a justification for committing torture as the a member of the military will be required to carry out the commanded act as part of his her obligation under Article 90 of the Uniform Code of Military Justice.

To the extent that the United States is engaged in an armed conflict with Islamic State, any change to the United States’ practices regarding torture would also result in the violation of numerous provisions of the Geneva Conventions. The Geneva Conventions and their Additional Protocols outlaw torture in most instances involving armed combat.  Further, acts of torture as described in the Geneva Conventions and the Additional Protocols are considered grave breaches of each convention and, under Article 85 of the First Additional Protocol, those grave breaches can become war crimes. As a result, the decision to commit torture under any of these circumstances would violate the respective convention and might also be considered a war crime.

Above and beyond the United States’ treaty obligations is the fact that the prohibition against torture is considered jus cogens. As such, it is non-derogable and assumes a rank above treaty law and rules of ordinary customary international law. The classification of the prohibition against torture would have a two-fold effect on the United States.  First, it would serve to delegitimise any judicial, legislative or administrative act authorising torture on a national level. Second, those engaging in torture under relevant domestic laws would be exposed to prosecution in international jurisdictions or by a subsequent regime in the United States. This could result in potential repercussions against citizens of the United States that authorise or commit acts of torture, even if done under the pretext of positive national law.

Conclusions

Any change to American policy expanding the use of torture would be in direct contravention of jus cogens and its international treaty obligations.  Unfortunately, Trump has signaled a willingness to modify or opt out of treaty commitments that he believes do not directly benefit the United States and it is unlikely that he would allow the jus cogens nature of the prohibition against torture to constrain his actions as president. Although Trump has stated that he would not direct American troops to violate international law if elected president, his oft-repeated desire to expand the use of torture under domestic law weakens any argument suggesting that he might comply with international law on this issue.  Hopefully, Congress will resist any attempt by Trump to re-authorise the use of torture and the United States will continue to comply with the applicable international human rights standards.

Khalid Sheik Mohammed

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FINALLY, THE FINAL AGREEMENT. A comparative perspective on the Colombian Peace Agreement

After a long and tortuous journey, the final Agreement between the Colombian Government and the FARC-EP[1] has been ratified. The previous version of the agreement, which was announced on past 24th August, was rejected in the referendum held on 2nd October by an unexpected and narrow majority of Colombian citizens. Yet, a process to revise the agreement was held shortly after.

The revised agreement was signed on 24th November and, instead of being submitted to a new referendum, it has been ratified by the Parliament, thereby reaching its final status. Now the time has come for implementation, and both the legislative and the executive branches of the Colombian State are struggling to pass the required laws and reforms in a short time.

Although it is difficult to make a thorough analysis of a transitional project that has not been put into practice yet, an analysis of the Agreement itself from a comparative perspective offers some very interesting insights. The Special Jurisdiction for Peace (SJP hereafter), particularly, shows the results of lessons learnt from other transitional experiences, but it combines them with some quite original features that turns it into a novel and interesting case study.

1) The creation of a special jurisdiction

The decision to create an ad hoc judicial body to deal with the offences committed during a conflict or under a repressive regime is rather common in transitional contexts. One might recall, in addition to the International Tribunals for the former Yugoslavia and Rwanda, the many hybrid or internationalised Tribunals, such as the Extraordinary Chambers in the Courts of Cambodia or the Special Court for Sierra Leona.

All those bodies were created by virtue of an agreement between the State concerned and the United Nations and they always have an international component, either fixed or changing over time (this is the case for the War Crimes Chamber in Bosnia Herzegovina, in which the initial number of 2 foreign judges was gradually reduced until their elimination in 2012).[2]

On the contrary, the Colombian SJP is the outcome of a national decision, and the international community only plays a role as an external observer and guarantor of its implementation. Additionally, whereas the first version of the final Agreement envisaged the presence of a minority of international members within the judicial bodies, this provision has been eliminated in the revised agreement. There is still room for foreign experts, but they act as amici curiae, that is, with a merely consultative role. Just like in the original agreement, their participation is optional, insofar as it occurs only when the accused requires it.[3] Therefore, even if their participation in the processes might have a (positive) impact, the concrete resolutions and judgments will be delivered by Colombian judges.

2) Amnesty, pardon and political crimes

In the special justice system the category of political crimes plays a pivotal role. The Agreement expressly states that people who have been convicted or who face an investigation for a number of political and related crimes shall benefit from an amnesty or pardon. Such possibility was already provided in the Constitutional reform known as “Marco jurídico para la paz”, which granted constitutional status to the transitional principles and mechanisms that were later developed in the negotiation between the Government and FARC.

The same option was taken by South Africa in its transitional process after the fall of the apartheid regime. There, the Truth and Reconciliation Commission (TRC) had the power to grant an amnesty to people who had committed crimes for political reasons.[4] The Act creating the TRC provided a minimum guidance on which offences fell into this category,[5] but it was the Amnesty Committee within the TRC that developed a set of criteria to determine whether a crime fitted in the definition, based on a case by case approach.[6]

The Colombian project has taken a step forward in this regard, since the final Agreement sets out a list of offences that amount to political crimes per se (rebellion, sedition, mutiny, and so on) as well as a number of interpretive criteria to define the related crimes.[7] According to the Amnesty Act, which was passed on 28th December, the former category shall be granted a de jure amnesty, whereas the latter qualification shall be established by the Amnesty Chamber case by case and according to the criteria envisaged in the final Agreement and in the Act. This feature improves the legal certainty and helps preventing inconsistencies and arbitrariness in the relevant decisions.

3) Beneficial measures as an incentive

Another point in common with the transitional experience in South Africa is the application of an incentive mechanism based on the exclusion/limitation of criminal punishment. The South African TRC could only grant an amnesty after the offender made a full disclosure of all relevant facts .[8] In a similar vein, the Colombian SJP may grant beneficial sanctions to those offenders who voluntarily recognise their responsibility. It may exempt them from imprisonment and subject them to restrictions on freedom and to reparation programs, or, in case of a belated recognition, it may impose them a reduced prison term.[9]

Both mechanisms are based on an exchange between the offenders’ contribution to the discovering of the facts and the imposition of beneficial measures. This strategy provides a strong incentive for perpetrators to take part in the procedures aimed at clarifying and declaring the offences and providing reparation to the victims. The contribution thus given by the perpetrators fosters the fulfilment of two key transitional goals, namely, truth and reparation.

The main difference lies in that the South African measure envisaged a total exclusion of criminal punishment, whereas the Colombian system provides for alternative and reduced criminal sanctions under this exchange dynamic. Accordingly, the competent body to grant the beneficial measure in the Colombian project is a tribunal, whereas in South Africa it was a non-judicial body.

 As we have seen in the previous section, amnesty is also envisaged as a tool, but outside this exchange mechanism and only for political and related crimes. This is another difference with the South African experiment, where  the exchange mechanism applied to a wider number of offences, including international crimes, which are expressly excluded from the Colombian amnesty.

4) Alternative sanctions with a restorative content

Among the different sanctions that the Special Jurisdiction for Peace envisages, the most novel ones are the alternative sanctions (which the Agreement calls “sanciones propias”, i.e., “own sanctions”). They shall be imposed if the offenders recognise their responsibility before having been formally charged before the tribunal and are accordingly the most beneficial ones. They encompass the limitation of the offenders’ freedom of movement together with the obligation to perform activities such as environmental protection, substitution of illicit crops, and programs to build infrastructures.

These sanctions have a clear restorative focus, in that they aim at repairing the harm done to victims and communities that were affected by the crimes committed during the conflict. Moreover, they shall be executed at a local level and beneficiaries may have a say in the definition of programs and their execution.

These two features remind of a mechanism that was put into practice in the transitional process in East Timor. There, the Community Reconciliation Procedure, which was a complement of the Comissão de Acolhimento, Verdade e Reconciliação,[10] may impose on the offenders a restorative measure, such as community service (an example was cleaning the community church once a week).[11] The aim of this mechanism was to both grant victims’ reparation and foster offenders’ reintegration into their communities.[12]

The same idea lies under the Colombian “own sanctions”, which are anyway more burdensome insofar as they also imply a restriction on freedom of movement. Nonetheless, the East Timorese mechanism only applied to less serious offences, for example, bodily harm and offences against property, while the serious offences were prosecuted before the Special Panels for Serious Crimes in the Courts of Dili[13] and entailed ordinary prison sentences.

The Colombian proposal is much more ambitious in this regard, since it provides that the “own sanctions” shall apply to very serious offences, including international crimes, under the condition that the offenders recognise their responsibility.

5) Final remarks

These features show that the complex transitional design envisaged in the Agreement between the Colombian Government and FARC-EP has treasured the lessons learnt from many other transitional experiences. But this scheme contains some original features that might offer new models and ideas for Transitional Justice. The creation of a national special jurisdiction, the use of amnesties, pardons and alternative penalties as tools under an exchange mechanism, the imposition of alternative sanctions with a restorative content (even for serious offences), may be interesting mechanisms for future transitional experiences.

Now, the world has its eye on the implementation of this design.

[1] The Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo are the main guerrilla group in the Colombian armed conflict.

[2] G. Werle, F. Jessberger (2014), Principles of International Criminal Law, 3rd ed., 128.

[3] Para. 65, Point 5 (”Victims”) of the Final Agreement.

[4] A. Lollini (2011), “Constitutionalism and Transitional Justice in South Africa” (Oxford – New York: Berghahn Books).

[6] A. Du Bois-Pedain (2007), “Transitional Amnesty in South Africa” (Cambridge: CUP). Political crimes included gross human rights violations, as set out in s 19(3) (b) of the Act. When these offences were concerned, the Committee may not grant amnesty without holding a hearing.

[7] Paras. 39-40, Point 5 (“Victims”) of the Final Agreement.

[8] Section 20(1)(c) of the TRC Act. See also: J. Sarkin-Hughes (2004), “Carrots and Sticks: The TRC and the South African Amnesty Process” (Cambridge: Intersentia).

[9] See the following Section of the post.

[10] Created by UNTAET Regulation 2001/10, “On the establishment of a Commission for Reception, Truth and Reconciliation in East Timor”, 13.07.2001.

[11] W. Lambourne (2012), “Commission for Reception, Truth and Reconciliation (East Timor)”. In L. Stan, & N. Nedelsky (eds.), Encyclopedia of Transitional Justice (Vol. 3, Cambridge: CUP), 46.

[12] Burgess (2005), “Justice and reconciliation in East Timor”. 15 Criminal Law Forum, 135-158.

[13] Created by UNTAET Regulation 2000/15, “On the establishment of Panels with exclusive jurisdiction over serious criminal offences”, 6.6.2000.

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