Author Archives: Veronique Caruana

‘Retroactivity’ and ‘detriment’ in Article 51(4) of the Rome Statute: The divergent approach between the Trial and Appeals Chambers in the Kenya prior-recorded testimony proceedings

On 12 February, the Appeals Chamber at the International Criminal Court (ICC) unanimously reversed Trial Chamber V(a)’s Decision on the Prosecution’s Request for Admission of Prior Recorded Testimony in the case against Kenyan deputy President William Ruto and former radio journalist and Head of Operations at Kenyan radio station Kass FM, Joshua Arap Sang. While the proceedings raised a number of interesting legal questions, the determining factor on Appeal was the interpretation of Article 51(4) of the Rome Statute, which prohibits the retroactive application of amendments to the Rules of Procedure and Evidence (RPEs) where such application would be detrimental to the accused.

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Trial Chamber V(a) hears submissions in the first ‘no case to answer’ motion before the International Criminal Court

This week, Trial Chamber V(A) at the International Criminal Court has been hearing the oral submissions on William Ruto and Joshua Arap Sang’s ‘no case to answer’ motions. Mr Ruto and Mr Sang are charged with three counts of Crimes Against Humanity (murder, deportation or forcible transfer of a population and persecution)[1] for their alleged role in Kenya’s post-election violence in 2007.[2] Following the formal closure of the prosecution’s case on 10 September 2015, the accused requested the dismissal of all the charges against them on the basis that the prosecution has failed to adduce evidence which, even taken at its highest, could be sufficient to support a conviction.[3]

 

This is the first time that a motion for acquittal at the halfway stage has been submitted at the International Criminal Court. While provisions for ‘no case to answer’ motions were introduced in the Rules of Procedure and Evidence (RPE) of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda in 1998,[4] and in the first RPE of the Special Court for Sierra Leone in 2002, there is no similar provision in the statutory framework of the ICC.  Nevertheless, in June 2013,in its Order requesting submissions on the conduct of the proceedings, Trial Chamber V(A) invited the parties and the Legal Representative for Victims (LRV), to submit their positions on whether ‘no case to answer’ motions should be allowed in the case.[5] All parties[6] and the LRV submitted that, despite the absence of an express statutory provision, the Trial Chamber was vested with the necessary powers to consider such motions. On 9 August 2013, the Chamber decided that a ‘no case to answer motion’ would, in principle, be permissible in this case.[7]

 

In its 2014 Decision No. 5 on the Conduct of Trial Proceedings (Principles and Procedure on ‘No Case to Answer’ Motions) (Decision no. 5),[8] the Chamber elaborated on the legal basis for its determination. The Judges noted that, while the statutory framework of the Court did not expressly regulate ‘no case to answer’ motions, a number of Statutory provisions could be relied upon which would enable the Chamber to consider them, namely: Article 64(3) which empowers the Chamber to ‘[c]onfer with the parties and adopt such procedures as are necessary to facilitate the fair and expeditious conduct of the proceedings’; Article 64(6)(f) which vests the Chamber with the authority to ‘rule on any other relevant matter’; and Rule 134(1) and (2) which permit the Chamber to rule on other issues prior to and during the course of the trial.[9] The Chamber further noted that it was concomitant to its obligation under Article 64(2) to ensure a fair and expeditious trial, the rights of the accused and the regard for the protection of victims and witnesses.

 

While some scholars had previously suggested that the lack of an express provision would not preclude ‘no case to answer’ motions,[10] the Chamber’s Decision has been cited as one of the examples of Trial Chambers at the ICC “adopt[ing] proceedings clearly not foreseen by the Statute and the Rules”.[11] It has been submitted that this seems to indicate a shift away from “the original principled approach for a strict respect of the Statute and Rules […] in favour of a more ‘flexible approach’” which might afford the parties less procedural certainty.[12]

 

At the same time it has been suggested that the absence of a provision regulating ‘no case to answer’ motions stems from the inability of the drafters of the Rome Statute to agree upon which form of trial proceedings to adopt,[13] leaving the individual Trial Chambers with significant discretion in this regard.[14] Since ‘no case to answer’ motions apply within the context of an adversarial structure,[15] where the case for the prosecution is followed by the defence case, it would be difficult to apply in a situation where the Trial Chamber chooses to adopt an alternative structure of proceedings. At the same time, the consistent trend at the ICC is that the order of presentation of evidence has followed what the Chamber referred to as the “general practice in the administration of international justice”,[16] which follows the adversarial model.[17]

 

In Decision No. 5, Trial Chamber V(a) also laid out the applicable legal standards. In order for the Prosecution to successfully challenge a ‘no case to answer’ motion, the evidence is required to support “(i) both the legal and factual component of the crime and (ii) the individual criminal conviction of the accused”.[18] To be sufficient, the evidence does not need to support all the incidents related to a charge; it is enough that the evidence supports at least one of the incidents in a specific count, together with one mode of liability in respect of each count.[19] Because the Chamber can change the legal characterisation of the facts from those established in the Documents Containing the Charges, pursuant to Regulation 55 of Regulations of the Court, the Chamber can also consider the legal characterisation upon which such notice has been issued. In this case, , although the Chamber has not changed the legal characterisation of the facts, the Judges have, the Court has provided notice to Mr Ruto under article 55(2) that they may be subject to change to include other possible modes of liability.[20] A Prosecution request for a Regulation 55(2) notice is currently pending in respect of Mr Sang.[21]

 

In assessing the evidence, the applicable standard of proof is distinct from that applicable at the final determination of the case (where the beyond reasonable doubt standard applies). A ‘no case to answer’ motion aims to determine whether a defence case is at all necessary, therefore, the standard is “whether there is sufficient evidence introduced on which, if accepted, a reasonable Trial Chamber could convict the accused.”[22]  Relying upon the assessment standard that was developed at the ad hoc tribunals, the Trial Chamber noted that this entailed the evidence being taken “at its highest”, that is, that the evidence will be presumed to be credible “‘unless it is incapable of belief’ on any reasonable view”.[23] Therefore, the Chamber will only consider issues of credibility and reliability where the evidence is “incapable of belief by any reasonable Trial Chamber”.[24]

 

The Defence have submitted[25] that the Prosecutor’s case is fatally flawed on various substantive and evidentiary levels, and that it fails to establish the basic components of the crimes charged and the liability of the accused. The Prosecution, on the other hand, has submitted that the Defence motions “essentially amount to a series of speculative arguments and credibility challenges, which […] fail to provide adequate grounds to dismiss any of the charges at this juncture”.[26]

The Chamber is now required to decide whether or not to render a full or partial judgment of acquittal at this stage of the proceedings. Continue reading

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Killer Robots: The future of Lethal Autonomous Weapons Systems

The exponential advancement in technology since the second part of the 20th Century has had a significant impact on warfare. One of the most notable developments has been the increasing autonomy of weapon functions. To date, a variety of weapons with some autonomous functions have been developed, but these largely operate within fairly restricted temporal and spatial contexts. Moreover, they are often used for defensive purposes.[1]  As the technology continues to advance, however, further autonomy could lead to the continued development of a “class of systems capable of selecting targets and initiating the use of potentially lethal force without the deliberate and specific consideration of humans”, known as Lethal Autonomous Weapons Systems (LAWS).[2]

While the use of autonomous robots in war has notable strategic, operational and tactical military advantages, it can have profound consequences on international peace and security, the nature of warfare and the protection of human lives. Between 13th and 17th April 2015, a group of States, civil society members, and experts convened at the second informal meeting on LAWS that was held under the auspices of the Convention on Certain Conventional Weapons (CCW). The meeting addressed some of the most serious legal, technical, security and ethical concerns relating to the use of LAWS, including the implications for international humanitarian law (IHL) and international human rights law (IHRL).

While, currently, States express a clear preference for maintaining humans-in-the-loop, increased research in the field has sparked concerns about the development and future use of LAWS. In the meantime, there is a strong call from parts of civil society to pre-emptively ban Killer Robots due to concerns about their incompatibility with international law and their potential impact on global peace and security. Opponents of a ban, however, argue that it is too early to rule out the possibility that future technological advancements might not only overcome these problems, but could also limit the extent of civilian casualties in conflict. They hold that the existing international legal framework provides adequate safeguards to ensure that weapons systems that would breach international law do not make it onto the battlefield.

In relation to IHL, one of the main questions is whether the use of LAWS could ever comply with the principles of distinction, proportionality, and necessity. The application of IHL on the battlefield is so complex, and the decision-making process so nuanced and situation-dependent, that it would be very difficult for the machines to comply with the law, particularly based upon an algorithm that is necessarily programmed ex-ante.

The difficulty stems from the fact that IHL rules are “unlike the rules of chess in that they require a great deal of interpretative judgement in order to be applied appropriately.” Therefore, for instance, the principle of proportionality “requires a distinctively human judgement (“common sense”, “reasonable military commander standard)”; the realities of a rapidly-changing situation render weighing up military advantages against collateral harm complex. LAWS “lack discrimination, empathy, and the capacity to make the proportional judgments necessary”. The same applies to the assessment on necessity.

Similarly, in relation to the principle of distinction, while “[w]e might like to believe that the principle […] is like a sorting rule […] however complex, that can definitively sort each individual into one category or the other”, in practice, determining whether a person is actively participating in hostilities, thereby rendering them a legitimate target, is far from straightforward. Delegating this assessment to a machine is difficult, if not impossible.

Nevertheless, supporters of continued research into LAWS suggest that future technological advancements might lead to the development of weapons systems capable of compliance with IHL and, additionally, of offering superior civilian protection by relying upon: the advanced technical and sensory capabilities of machines; speed in decision making and action; and clarity of judgment that is not swayed by emotions such as fear or anger. For instance, roboticist Prof. Ronald Arkin argues that “being human is the weakest point in the kill chain, i.e., our biology works against us in complying with IHL”. Subject to future technological advancements, Prof. Eric Talbon Jensen has illustrated the following possible scenario:

Instead of putting a soldier on the ground, subject to emotions and limited by human perceptions, we can put an autonomous weapon which […] tied to multiple layers of sensors [is] able to determine which civilian in the crowd has a metal object that might be a weapon, able to sense an increased pulse and breathing rate amongst the many civilians in the crowd, able to have a 360 degree view of the situation, able to process all that data in milliseconds, detect who the shooter is, and take the appropriate action based on pre-programmed algorithms that would invariably include contacting some human if the potential response to the attack was not sufficiently clear.

Despite the potential benefits that future technologies may bring, however, they are still hypothetical. As the International Committee of the Red Cross (ICRC) has observed, “[b]ased on current and foreseeable robotics technology, it is clear that compliance with the core rules of IHL poses a formidable technological challenge […] there are serious doubts about the ability […] to comply with IHL in all but the narrowest of scenarios and the simplest of environments”. Therefore, while the utopian prospect of LAWS that operate in the best interests of civilians is a possibility, it is by no means a certainty. What is certain is the development of weapons systems with very concerning autonomous functions.

Even in the event of significant technological advancements, delegating life and death decisions to an autonomous machine can create a serious criminal and civil accountability gap.[3]  This would run counter to the preventative and retributive functions of criminal justice; breach the right to an effective remedy; and, in the light of the very serious crimes that can be perpetrated by the machines, it would, arguably, be immoral. It has been aptly observed that  “[t]he least we owe our enemies is allowing that their lives are of sufficient worth that someone should accept responsibility for their deaths”. This poignant reflection holds equally true in relation to civilians and friendly casualties.

For these reasons, there has been a strong drive towards regulating the further development and eventual use of these machines.  Some are advocating a ban on killer robots while others, like the ICRC, are “urging States to consider the fundamental legal and ethical issues raised by autonomy in the ‘critical functions’ of weapon systems before these weapons are further developed or deployed”.

Still, opponents of a ban deem it unnecessary since IHL is “sufficiently robust to safeguard humanitarian values during the use of autonomous weapon systems”.  They argue, for instance that an adequate safeguard against the use of weapons that violate IHL is contained in Article 36 of Additional Protocol I (API) of the 1949 Geneva Conventions which obliges States to determine in the “study, development, acquisition or adoption of a new weapon, means or method of warfare… whether its employment would in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable”.

However, proponents of the ban have argued that this is insufficient. Some have suggested that opinion regarding whether Article 36 assessments form part of customary international law may still be divided. Other experts, however, disagree. They argue that customary international law does indeed create an obligation upon all states to carry out the assessment  in relation to new means of warfare acquired, and that a question mainly arises in relation to new methods of warfare. Therefore, they maintain that weapons reviews provide sufficient protection. In any case, it has been argued that an assessment is a corollary of the obligation to ensure compliance with IHL; if the machines cannot comply, they will inevitably breach other provisions of the law when they are deployed .

Nevertheless, from a practical perspective, it is questionable whether Article 36 reviews, which depend on the transparency, openness, and uniform application of IHL to LAWS in such a nebulous context, are sufficient. Moreover, as computer scientist and robotics expert Prof. Noel Sharkey notes, there are serious questions about future consequences on IHL if LAWS continue to be developed while efforts at making them compliant with the laws of war fail.

Furthermore, Article 36 does not sufficiently consider the IHRL implications of LAWS.  In particular, the use of LAWS might lead to a violation of IHRL norms including: the right to life; the prohibition of torture and other cruel, inhuman or degrading treatment or punishment; the right to security of person; and, in view of the fact that a weapons review will not necessarily close the accountability gap, the right to an adequate legal remedy. Finally, proponents of the ban argue that delegating life and death decisions to a machine, effectively “death by algorithm”, violates the basic tenets of human dignity, the principle of humanity and the dictates of public consciousness, therefore, contrary to the Martens Clause.[4]

Discussions on the way forward have centered round the possibility of necessitating ‘meaningful human control’ over the operation of weapons systems.   However, as William Boothby has observed, a machine requiring meaningful human control is not fully autonomous; while useful from a policy perspective, he advised refraining from elevating the concept to ‘some sort of legal criterion’ and suggested focusing on Article 36 weapons reviews. Conversely, supporters of the ban have argued that it is precisely because ‘meaningful human control’ implies that machines are not fully autonomous, and in light of the significant State support for maintaining  such control, that a ban is the most obvious course of action.

At this stage, a consolidated way forward needs to be established before States and private contractors invest too much public and private money, time and energy, in the further development of LAWS, thereby rendering future regulation much more complex. Time is of the essence; the “opportunity will disappear […] as soon as many arms manufacturers and countries perceive short-term advantages that could accrue to them from a robot arms race”. The consequences on civilians, combatants, and international peace and security generally, could be devastating.


[1] For an overview see this 2012 Human Rights Watch report and P.W. Singer’s Wired for War

[2] Although a precise definition of LAWS has not yet been agreed upon, see here and here for their general characteristics

[3] see Human Rights Watch and Harvard Law School’s International Human Rights Clinic’s report Mind the Gap: The Lack of Accountability for Killer Robots

[4] See here for a discussion on some of the challenges  T-1

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The Arms Trade Treaty: the role of legal interpretation and State policy in giving effect to the human rights-based provisions

Between 23rd and 25th February, Trinidad and Tobago hosted the initial preparatory meeting ahead of the first Conference of States Parties to the Arms Trade Treaty which will be held in Mexico later in 2015. Following 20 years of campaigns and negotiations and the failure to reach an agreement at the Final UN Diplomatic Conference, the Arms Trade Treaty  (ATT) was adopted by an overwhelming majority at the UN General Assembly on 2nd April 2013. It entered into force on 24th December 2014, 90 days after ratification by the 50th State. To date, the Treaty has been signed by 130 States and ratified by 63.

As the first treaty to regulate the trading in conventional weapons, the Arms Trade Treaty was not only ground-breaking but long overdue. The most recent impetus towards an internationally binding instrument started to gain traction following the gulf war when it was discovered that Iraq was “awash with arms supplied by all five Permanent Members of the United Nations Security Council”. In December 1991, the UN General Assembly called for increased openness and transparency in the field. Since then, numerous reports by UN bodies, NGOs and IGOs have documented the extent and consequences of weapon proliferation and stockpiling. For instance, a 1999 International Committee of the Red Cross (ICRC) study on arms availability and civilians in armed conflict highlighted the fact that “a vast number of actors have increasingly easy access to lethal weaponry”; the UNDP has documented over 8 million illicit weapons in West Africa alone, and has noted that the weaponisation of societies has contributed to the emergence of child soldiers and non-state armed fighters. It is against this background that the Arms Trade Treaty was negotiated and finally adopted.

Following its adoption, UN Secretary-General Ban Ki-moon noted that the Treaty “will be a powerful new tool in our efforts to prevent grave human rights abuses or violations of international humanitarian law”. In reality, however, it could be a powerful tool, depending on how States choose to interpret and apply its provisions. Undoubtedly, the purpose of the Treaty to contribute not only to the maintenance of international peace and security but also to the furtherance of human rights and humanitarian law bears testament to the remarkable role played by organisations, including Amnesty International, the ICRC and Oxfam in spearheading and campaigning for its introduction. Unsurprisingly, however, the attempt to regulate the multi-billion pound arms industry was a struggle and the underlying principles of the Treaty can only be upheld through continued political commitment.

The Treaty operates a three-tier system to regulate arms export. Primarily, Article 6 contains an absolute prohibition on the authorisation of the transfer of arms: (1) in violation of  States’ obligations stemming from  UN Security Council measures adopted under Chapter VII of the UN Charter, “in particular arms embargoes”; (2) in violation of obligations under international agreements to which States are Party, in particular those relating to the transfer of, or illicit trafficking in, conventional arms; (3) where a State “has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party”.

While all States are bound, under the UN Charter, to implement UN Security Council Chapter VII measures, therefore, the stipulation that arms cannot be transferred in violation of arms embargoes is not particularly remarkable, the provisions relating to genocide, war crimes and crimes against humanity represent “potentially one of the most important provisions in the ATT”. However, regrettably, the requirement that a State explicitly “has knowledge” that arms will be used in a particular manner arguably leaves a fair degree of wiggle room in the authorisation assessment.

The second tier of protection is established under Article 7, sub-Articles 1 – 3 which provide that, in considering whether to authorise an export that is not expressly prohibited under Article 6, a State is required to assess whether the export or transfer: (a) would contribute to or undermine peace and security; or (b) could be used to commit or facilitate: (i) a serious violation of international humanitarian law; (ii) a serious violation of international human rights law; (iii) a terrorism offence (under international conventions or protocols to which the exporting State is a Party); or (iv) an offence under international conventions or protocols relating to transnational organized crime to which the exporting State is a Party.

Where the risks cannot be mitigated and if the exporting State determines that there is an “overriding risk” of the consequences actually occurring, Article 7(3) provides that the State “shall not authorize the export”. The substantial interpretative latitude allowed by these provisions may ultimately significantly affect its effectiveness. Primarily, a State will need to interpret what would qualify as: “undermining the peace”; violations of IHL (that are not already covered under Article 6); serious violations of international human rights law (on which the Geneva Academy of International Humanitarian Law and Human Rights has produced an excellent, detailed legal analysis); and transnational organized crime. Moreover, under Article 7(2) States will need to make a value judgement on whether the risks can be mitigated and whether or not there is an “overriding risk”, a term that is also subject to various, conflicting, interpretations.

This complexity is further compounded by the tensions stemming from economic considerations, particularly in major exporting States. For instance, following an extensive review of the UK’s policies on arms export control, the UK Parliamentary Committees on Arms Export Control (CAEC) observed that

“whilst the promotion of arms exports and the upholding of human rights are both legitimate Government policies, the Government would do well to acknowledge that there is an inherent conflict between strongly promoting arms exports to authoritarian regimes whilst strongly criticising their lack of human rights at the same time rather than claiming, as the Government continues to do, that these two policies “are mutually reinforcing”.

A third tier of protection is introduced in Article 7(4) which provides that, in making their assessment under Article 7(3), State Parties are “to take into account the risk of […] (arms) being used to commit or facilitate serious acts of gender-based violence or serious acts of violence against women”. While it was hoped that the gender-based violence criteria would be placed at par with violations of human rights and international law and States were called upon to prohibit the transfer of arms where there was a substantial risk that they would be use used to perpetrate or facilitate gender-based violence,  the Treaty provision is notably less forceful;  unlike Article 7(1) which, read together with Article 7(3), is proscriptive in nature, Article 7(4) only requires that States take the risks of serious gender-based violence into account. Moreover, the provision is, again, subject to significant interpretation.

However, even if it is not as robust as it could have been, the introduction of the provision is significant. While UN Security Council Resolution 1325(2000) acknowledged the gendered effects of conflicts fifteen years ago, this is the first international treaty that “explicitly links gender-based violence with [the] international arms trade” and, notably, it also applies to non-conflict-related violence.   It comes following various studies that have highlighted the relationship between guns, expressions of masculinity, power and the resultant normalisation of violence against women in conflict, non-conflict and post-conflict situations.   Studies have shown that arms facilitate the commission of gender-based violence, for instance, because “it would not be possible to rape women, in front of their communities and families, on such a large scale […] if there weren’t such a wide availability of small arms”.  Moreover, it has been noted that while the number of men who have died from gun violence significantly outweighs the number of women killed, the fact that a smaller proportion of women own guns means that they are “disproportionately the victims of gun violence, including non-lethal violence”. Of course this does not imply that women are affected in a uniform manner, or that they universally lack agency (for an interesting discussion on the complex, multi-faceted relationship between women, armed violence and the small arms trade see  The Small Arms Survey 2014 Yearbook that focuses on Women and Guns). However, it is significant that by the time that the Arms Trade Treaty was being finalised, the importance of representing the gendered implications of the arms trade, not just as a matter of policy but also as a legal obligation, was considered essential. Indeed, the link between the arms trade and gender based-violence was not only recognised by NGOs and leading academics, but by various UN bodies including the Security Council, the Committee on the Elimination of Discrimination against Women  and the Commission on the Status of Women.

This recognition is crucial; despite increasing legal and political efforts to curb violence against women, the scale of violence, both within conflict zones and outside them remains extraordinarily high. In January this year, the Security Council received reports about “alarming […] unacceptable armed violence committed against women around the world”.

The negotiations leading up to the Arms Trade Treaty have revolutionised the discourse surrounding the relationship between the multi-billion pound arms industry and immense human suffering. It has also put into place a strong legal foundation for its regulation. Nevertheless, the Treaty’s effectiveness in protecting human life is highly dependent on the willingness of States to give the human rights and humanitarian law-based provisions their full effect in the face of immeasurable pressure from the industry. States will need to react quickly and effectively to rapidly-changing crises. Moreover, a uniform application of the Treaty is necessary if the provisions are to have any effect. Disregard for the Treaty’s principles by some States might lead to a race to the bottom; States may be unwilling and politically dissuaded from applying the provisions to their full potential because of pressure from the industry, especially where the regulated items can easily be procured through another State Party.

Non-Violence

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The Lubanga Appeals Judgment and  the ‘active use’ of children in hostilities  

On 1 December 2014, the Appeals Chamber at the International Criminal Court (ICC) upheld the conviction of Thomas Lubanga as a co-perpetrator for the crime(s) of conscripting and enlisting children into an armed group and using them to participate actively in hostilities. The Judgment and its dissenting opinions provide an interesting reflection on various legal and evidentiary issues. Among them is the problematic definition of actively using children in hostilities. While the Appeals Chamber confirmed the conviction of Mr Lubanga on this ground, it rejected Trial Chamber I’s interpretation of active use. Primarily the Appeals Chamber determined that the interpretation of the concept of active use in Article 8(2)(e)(vii) is distinct from the concept of direct or active participation for the purposes of the principle of distinction;[1] the Court held that the provision needs to be examined independently in the light of its purpose to protect children. Secondly, while the Appeals Chamber confirmed that it is appropriate to conduct a case-by-case assessment to determine what acts fall within the definition of active use, it rejected the Trial Chamber’s risk-based approach.

Although the popular portrayal of a young child wielding a menacing weapon is a prevalent representation of child soldiers, the reality is much more complex; it has been suggested that “[c]ontrary to popular conceptions, many child soldiers never fight, […]carry their own weapon [or] know how to use one. Children’s roles vary according to the context and children’s characteristics”.[2]  Therefore, since a child can be involved in hostilities in ways other than through active combat, defining the scope of active use can be difficult.

Under Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute the “child soldiers” crime[s] consist[s][3] of “[c]onscripting or enlisting children under the age of fifteen […] or using them to participate actively in hostilities”. Neither the Statute nor the Rules of Procedure and Evidence provide much guidance about the activities which might constitute active use. Restricting the definition of active use to children who are engaged in combat insufficiently reflects the role of children in armed conflict. At the same time, drawing the line between, on the one hand, indirect active use and, on the other hand, participation which is not actively linked to the armed conflict is not straightforward.

The direct and active use conundrum in IHL and ICL

Under International Humanitarian Law (IHL), the participation of children in hostilities was first regulated under the Additional Protocols to the Geneva Conventions. Article 77(2)  of Additional Protocol I (AP I) obliges States to take “all feasible measures” to ensure that children under 15 are not recruited into the armed forces and “do not take a direct part in hostilities”, while Article 4(3)(c) of Additional Protocol II (AP II) prohibited the recruitment of children and provided that they “shall […][not be] allowed to take part in hostilities”.

Under International Human Rights Law (IHRL), Article 38 of the Convention on the Rights of the Child echoes the provision in API on children’s direct participation in hostilities. The Optional Protocol  to the Convention on the Rights of the Child on the involvement of children in armed conflict has a similar provision and also stipulates that non-state armed groups “should not[…]use in hostilities persons under the age of 18 years.

Under Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute, and the Article 4(c) of the Statute for the Special Court of Sierra Leone, reference is made to the active use of children in hostilities rather than their direct participation or participation/use (generally) referred to under IHL and IHRL instruments.

The divergence in the language has created some confusion regarding whether there is a distinction between direct use and active use of children. Since the Rome Statute does not provide any guidance, the Trial Chamber in Lubanga, echoing an earlier decision of the SCSL in the AFRC case, turned, inter alia, to the travaux préparatoires. In particular, it referred to a footnote in the Zutphen Draft which noted that:

“[t]he words “using” and “participate” have been adopted in order to cover both direct participation in combat and also active participation in military activities linked to combat such as scouting, spying, sabotage and the use of children as decoys, couriers or at military checkpoints. It would not cover activities clearly unrelated to the hostilities such as food deliveries to an airbase or the use of domestic staff in an officer’s married accommodation”

The Chamber, therefore, held that active participation was “clearly intended” to be wider than direct use and would include using children “in a myriad of roles that support the combatants”.[4] The Trial Chamber in Katanga and the Pre-Trial Chamber in Ntaganda followed this approach.[5]

Trial Chamber I was strongly criticised for its juxtaposition of “active participation” under Article 8 of the Statute and “direct participation” under AP I. The concept of direct and active participation is not only found in the provisions of child soldiers; it is a crucial element of the principle of distinction. In particular, Article 51(2) of AP I and Article 13(3) of AP II provide for the protection of civilians who are not taking direct part in hostilities, while Common Article 3 to the Geneva Conventions protects those “taking no active part in the hostilities”. It has been argued that both terms are used interchangeably in IHL and the Trial Chamber’s distinction between active and direct participation was incorrect. Moreover, it was argued that a wide interpretation of active participation might negatively impact the protection of civilians under Common Article 3 of the Geneva Conventions and Article 8(c) of the Rome Statute. In a similar vein, it was argued that if under the Rome Statute, direct participation is construed very narrowly, an attack on persons who are directly participating (in the broader sense under the IHL definition) could be considered legal under IHL but illegal under the definition adopted at the ICC.[6]

The Appeals Chamber disagreed with Trial Chamber I’s distinction and observed that, under Common Article 3 of the Geneva Conventions, the terms active and direct are interchangeable.[7] At the same time, the Appeal’s Chamber held that the Court is not bound to apply the same definitions of active or direct participation in the context of the principle of distinction for the purposes of determining whether children’s contribution to an armed conflict constitutes active participation.[8]

The Appeals Chamber held that despite the difference in terminology, the provisions in AP I and the CRC, which prohibit the direct use of children, and that under APII, which prohibits the use of children, are all clearly aimed at ensuring that children are not involved in the conflict.[9] While the terminology related to the principle of distinction is similar, the context is different; therefore, the interpretation of the “active use” of children in hostilities should reflect this specific purpose in its own right.[10] In taking this approach, the Appeals Chamber has severed the interdependence of the interpretation of direct/active participation in the context of child soldiers from that associated with the principle of distinction. While it might be argued that this may lead to a fragmentation of the notion of active and direct participation within the Statute, it could be suggested that this approach manages to strike the right balance between the interests of the child (which are best protected under a wider interpretation of active participation), the protection of civilians (who benefit from a more restrictive interpretation of active/direct participation), and the rights of the accused (whose liability might be extended, if the Trial Chamber’s restrictive interpretation of direct participation were applied to the principle of distinction).

Reversal of the risk-based approach to indirect participation

In identifying whether children are being used actively in hostilities, the difficulty lies in determining what acts, beyond direct engagement in combat, are prohibited. The Trial Chamber deviated from the approach at the SCSL of listing specific acts which might constitute active use, relying instead on a case-by-case assessment.

While the Trial Chamber nodded to the requirement in the Rules of Procedure and Evidence that a link with the conflict is required,[11] it established that “the decisive factor […]in deciding if an “indirect” role is to be treated as active participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger as a potential target”.[12] The Trial Chamber, therefore, determined that it was a combination of the “child’s support” and the “level of consequential risk” that rendered them actively, if indirectly, involved in the hostilities.

Following the Judgment, this approach did find some support because of the wide safety net it provided for children. However, the Appeals Chamber rejected the risk-based approach, stating that neither provisions in the Statute, nor the corresponding IHL principles link the determination of active participation of children to the element of risk.[13] Instead, the Appeals Chamber focused exclusively on the nexus between the hostilities and the activities performed by the child. It maintained that although the level of risk a child is exposed to might be indicative of the relationship between the activity and the conflict, it could not replace the determination based on the nexus to the conflict itself.[14]

It is noteworthy that although the Appeals Chamber disagreed with the Trial Chamber’s theoretical approach, it did find that, in most of the activities upon which the Trial Chamber based its conviction, the nexus requirement was actually fulfilled. In the light of “the complex and unforeseeable scenarios presented by the rapidly changing face of warfare”, the Appeals Chamber also confirmed the case-by-case determination favoured by the majority in the Trial Chamber.[15]

In conclusion, while the Appeals Chamber has reframed the definition of “active use” in relation to child soldiers, it did not overturn the Trial Chamber’s findings of guilt. Its views will, however, undoubtedly shape the normative development of the crime. The Trial Chamber will have the opportunity to consider Article 8(2)(e)(vii) again in the case against Bosco Ntaganda which is set to start in June 2015.


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The contribution of the Appeals Chamber’s Judgment on witness summons to the debate on the compellability of witnesses before the International Criminal Court

Following a brief recess, today Trial Chamber V (A) at the International Criminal Court will continue to hear the testimony, by video link, of witnesses summoned by the Court in the case against William Samoei Ruto and Joshua Arap Sang. Just over a month ago, the Appeals Chamber unanimously confirmed that unwilling witnesses can be compelled to testify before the Court sitting in situ or by way of video-link.[1] In particular, the Appeals Chamber affirmed that the Court’s prerogative to “[r]equire the attendance and testimony of witnesses” under Article 64(6)(b) of the Rome Statute creates a legal obligation upon individuals which is complemented by a correlative obligation incumbent upon States, under Article 93(1)(b), to compel witnesses to appear on the territory of the State Party.

The question arose in 2013 when, shortly after the commencement of the trial, a number of witnesses who had previously provided the Prosecutor with crucial information about the role of the accused in the planning of the 2007 Post Election Violence in Kenya became unwilling to testify.[2] In April this year, in what was hailed as “a dramatic example of judicial activism[3] the majority in Trial Chamber V (A) decided that the Court had the power to compel the testimony of witnesses and that Kenya was obliged to serve the summonses and assist in compelling witnesses to appear before the Court in situ or by video link.  On that basis, Trial Chamber V(A) directed the Registry to prepare and submit “the necessary subpoenas”.[4] Judge Herrera Carbuccia dissented, noting, in particular, that “the Court has no mechanism to make an individual liable for refusing to testify in contravention of a Court order […] [c]onsequently, a fundamental element of subpoena powers is absent”.[5] Moreover, she held that “[p]ursuant to Article 93 of the Statute, read in its integrity, the Government of Kenya is under no legal obligation to compel a witness to appear before the court, either in The Hague or in situ”.[6]

The ambiguity stems from the arguably incongruous provisions of the Rome Statute, which have raised some doubts about the precise parameters of the Court’s power to summon witnesses and the concomitant enforcement obligations of States Parties. The first question is whether the Court’s power, under Article 64(6)(b), creates a binding obligation upon individuals. The word “require” has, in itself, cast a doubt upon the intended force of the provision,[7] particularly since failure to follow such an order is not listed as an offence against the administration of justice under Article 70.[8]  Trial Chamber V (A) and the Appeals Chamber determined, however, that any order issued under this article has the effect of creating a legal obligation on individuals; this is supported by various translations of the Statute which use the term “order” instead of “require”.[9] Although both Chambers ultimately relied squarely upon the letter of the Statute, in its analysis the Trial Chamber referred extensively to the Court’s implied powers, as well as general and customary principles of international law, and good faith;[10] the Appeals Chamber relied solely on the “plain wording” of the Statute.[11]

The greater difficulty, however, arises less from Article 64(6)(b) taken in isolation and more from the fact that the power it creates appears to be rendered largely ineffective by the absence of any specific provision in the Statute obliging States Parties to compel witnesses to appear before the Court. This is particularly problematic in view of the express provision, under Article 93(1)(e) requiring States to facilitate “the voluntary appearance of persons as witnesses […] before the Court”. This would suggest that witnesses can only appear before the Court voluntarily. The situation is rendered more complex by Article 93(7), which entitles a person already detained on the territory of a State Party to refuse to be temporarily transferred to the seat of the Court for the purpose of testifying.

The apparently conflicting statutory provisions have evoked different responses from commentators.[12] One interpretation suggests that while the Court can order the appearance of a witness, States cannot be required to deliver witnesses who are not willing to testify.[13] Some argue that this does not prevent willing States from adopting enhanced forms of cooperation which would compel witnesses to appear to testify,[14] although there is some disagreement regarding whether they can be compelled to travel to do so.  Others have suggested that the principle of voluntariness applies only to international transfers; that is, while witnesses cannot be forced to travel across borders to testify, they could well be compelled to testify before the Court without travelling. This would mean that Article 93 (1)(e) only applies to the international transfers of witnesses; States could still be obliged to compel witnesses to appear before the Court sitting in situ or by way of video link under the catch-all provision in Article 93(1)(l) which allows the Court to request other forms of cooperation, so long as these do not contravene States Parties’ national laws.

Although this interpretation finds significant support and appears to be consistent with the traveaux preparatoires[15] it might not be the most obvious one from a plain reading of the Statute. Article 93(1)(e) refers to the voluntary appearance of witnesses “before the Court”, not “at the seat of the Court”. While it could be argued that a video-link between a witness summoned before a national court and the Trial Chamber might not be covered by this restriction, it is not clear that this holds true where the Court is, itself, in control of the proceedings, whether on the territory of a State party or remotely. Would this understanding somehow imply that witnesses appearing directly before the Court, in situ or by video link, are not actually appearing ‘before the Court’?

Divergence is not only limited to the academic commentary on the topic; a questionnaire carried out by the International Law Association’s Committee on the International Criminal Court, prior to the 2010 review conference in Kampala, shows that States Parties not only hold different views on any possible future provisions to directly include subpoena powers in the statute but, more importantly, they appear to have different understandings of the precise parameters of the current provisions.[16]

Ultimately, both Trial Chamber V (A) and the Appeals Chamber have categorically rejected the notion that under the terms of the Rome Statute, testimonial evidence is governed by a principle of voluntary appearance. Trial Chamber V (A), again broadly relying, inter alia, on implied powers, good faith and complementarity, held that the Court can oblige Kenya to enforce a summons on the basis of Article 93(1)(l).[17] In its decision, the Trial Chamber also repeatedly referred specifically to the Court’s subpoena powers.

The Appeals Chamber adopted a different, if more cautious, approach. The Appeals Chamber determined that the power of the Court to oblige Kenya to enforce the summons stems directly from Article 93(1)(b) which, inter alia, empowers the Court to oblige States to assist in “the taking of evidence, including testimony under oath” and the production of evidence before the Court. This interpretation of the provision, while not a radical innovation,[18] requires a fairly creative reading of the Statute. Indeed, the wording of Article 93(1)(b) which refers to assistance in “the taking of evidence” seems to refer to the collection of evidence by States themselves.[19] That being said, it would appear that some States do, indeed, consider that this interpretation is consistent with their implementing legislation.[20]

By relying upon Article 93(1)(b), the Appeals Chamber appears to have strengthened the position of the Court. While the chapeau of Article 93 provides that States Parties are to give effect to the requests under the procedures of their national laws, a State is only permitted to refuse compliance in the interests of national security;[21] on the other hand, under Article 93(1)(l) whenever a State cannot comply with a request due to a “fundamental principal of general application”,[22] it is entitled to attempt to resolve the matter with the Court. Therefore, by determining that the relevant provision is Article 93(1)(b), and not Article 93(1)(l) as suggested by Trial Chamber V (A), the Appeals Chamber has curbed recourse to national provisions as a way to bypass a summons request which is effectible on the territory of the State.

At the same time, however, the Appeals Chamber deliberately stopped short of declaring that the Statute creates an absolute obligation upon States to compel witnesses to appear at the seat of the Court, limiting its observations to the matter under Appeal, namely the compellability of witnesses appearing before the Trial Chamber sitting in situ or by way of video link.[23] Moreover, unlike the Trial Chamber, the Appeals Chamber appears to have purposefully avoided using the term subpoena.

In short, while the Appeals Chamber has intentionally shied away from some of the more radical positions taken by the Trial Chamber, it has, nevertheless shaped the interpretation of witness compellability within the Statute’s framework, possibly overstepping the boundaries of mere interpretation. However, it has avoided any pronouncement on a broad, general power to ‘subpoena’ witnesses, thereby steering clear of the the more controversial, unresolved issues related to the involuntary international transfer of witnesses and the absence of any direct coercive powers.

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