'Nuff said

(Taking context-optional note of thought-provoking quotes)

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'On this first International Day of the Girl, and for the sake of all victims of international crimes, I call again on the international community to execute these outstanding arrest warrants to put an end to their victims’ plight.'

– International Criminal Court Prosecutor Fatou Bensouda, in a statement calling for the capture of certain ICC fugitives – Omar al-Bashir, President of Sudan, and Joseph Kony and Bosco Ntaganda, warlords in, respectively, Uganda and the Democratic Republic of Congo – as a tangible means to advance justice on this 1st-ever, U.N.-declared International Day of the Girl Child.

Look On! Carte Blanche, on ICC's Bemba case

(Look On! takes occasional note of noteworthy productions)

The Office of the Prosecutor of the International Criminal Court has its own Public Information Officer, who deals with external media relations and liaises with external actors interested in the work of the Prosecutor. This officer is also responsible for relations with filmmakers who wish to make documentaries on the work of the Office of the Prosecutor.

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Under the former Chief Prosecutor of the ICC, Luis Moreno-Ocampo, a number of documentaries were made featuring Moreno Ocampo and the work of the Office of the Prosecutor. For example, the making of The Reckoning (2009), about which filmmaker Pamela Yates and other IntLawGrrls contributors have posted, required the crew to follow the former Prosecutor around for approximately three years. Other such documentaries that I plan to review in the course of my ongoing research on human rights and film include The Prosecutor (2011), a Peter Raymont film that focused on Moreno-Ocampo, Darfur Now (2007), and, in this post, Carte Blanche (2011).
Made by Swiss director Heidi Specogna (right), Carte Blanche is set in the locations of The Hague, the Netherlands, and Bangui, Central African Republic (CAR).
The film examines the work of the ICC and Office of the Prosecutor concerning the Jean Pierre Bemba case. Bemba has been the subject of prior IntLawGrrls posts. For nearly 2 years Bemba, the  former Vice President of the Democratic Republic of the Congo and leader of the Congo Liberation Movement, has been on trial in the ICC on 8 counts of war crimes and crimes against humanity, alleged to have been committed in the CAR between 2002 and 2003.
Carte Blanche takes us through the confirmation hearings (under the Rome Statute of the ICC. The purpose of these hearings is to act as a filter, determining whether there is sufficient evidence for a case to go to trial at The Hague. The film also brings us to Bangui, on an ICC mission with Gloria Atiba-Davies, victims' expert, and Dr Eric Baccard, forensic pathologist. In this way, we are given a holistic snapshot of the workings of the Office of the Prosecutor. The trial stage plays a minor part in the film with the investigations forming the main focus of the film which aims to show the ground work which goes into bringing a case and prosecuting those responsible for crimes against humanity and war crimes. (A running blog of the trial proceedings, maintained by the Open Society Justice Initiative, is here.)
The film constantly reminds us of the human elements to the prosecutions.  The filmmakers  interview some of the witnesses and survivors of the attacks on Bangui. These voices give personal testimony to the crimes for which Bemba has been indicted with special emphasis on the rapes and other sexual violence suffered by men, women, and girls.
Aesthetically, the film features beautiful landscape shots, interspersed with black and white photographs of the victims. Water and the rain also play important roles in the beginning and end of the documentary.

(Cross-posted at Human Rights Film Diary blog)

Security Council moves to action on child-soldiering

U.N. Security Council

The U.N. Security Council took a step toward stepping up international efforts to combat the harming of children in armed conflict – among other harms, recruiting children as soldiers.
The step came just months after a trial chamber of the International Criminal Court entered convictions for the war crimes of enlisting and conscripting child soldiers, as well as the war crime of using children to participate actively in hostilities.
Security Council Resolution 2068 (Sept. 19, 2012) thus made specific reference to "relevant provisions of the Rome Statute" of the ICC, and speakers at the debate referred specifically to the ICC decision in Prosecutor v. Lubanga. (prior posts) For example, a Security Council press release reported that David Tolbert, President of the International Center for Transitional Justice, a New York-based nongovernmental organization, urged the Council "to leverage the verdict to strengthen national processes in the Democratic Republic of Congo," the state out of which the Lubanga case arose.
Resolution 2068 stated further, in part, that the Council:

'2. Strongly condemns all violations of applicable international law involving the recruitment and use of children by parties to armed conflict as well as their re-recruitment, killing and maiming, rape and other sexual violence, abductions, attacks on schools and/or hospitals as well as denial of humanitarian access by parties to armed conflict and demands that all relevant parties immediately put an end to such practices and take special measures to protect children;
'3. Expresses deep concern that certain perpetrators persist in committing violations and abuses against children in situations of armed conflict in open disregard of its resolutions on the matter, and in this regard:
'(a) Calls upon Member States concerned to bring to justice those responsible for such violations through national justice systems, and where applicable, international justice mechanisms;
'(b) Reiterates its readiness to adopt targeted and graduated measures against persistent perpetrators, taking into account relevant provisions of its resolutions 1539 (2004), 1612 (2005), 1882 (2009) and 1998 (2011); ...
'5. Reiterates its call upon the Working Group on Children and Armed Conflict to consider, with the support of the Special Representative for Children and Armed Conflict, within one year, a broad range of options for increasing pressure on persistent perpetrators of violations and abuses committed against children in situations of armed conflict; ...'

Leila Zerrougi

The vote – which came after presentations by Leila Zerrougi of Algeria, the new Special Representative on this issue, and some 60 others – was 11-0-4. The abstainers were Azerbaijan, China, Pakistan, and the Russian Federation.

'[M]any speakers expressed disappointment that the Council had been unable to reach consensus on the resolution,"

according to the Council's release regarding the debate. (above left, photo in memory of Mamusu, a onetime girl soldier in Sierra Leone who died at 17 and is honored as an IntLawGrrls foremother)
Among the "measures" contemplated for "persistent perpetrators" – states and nonstate actors alike – were "tailored political engagement" by the Council, "strengthened accountability measures and targeted measures."
U.S.Ambassador Jeffrey DeLaurentis, however, expressed in his remarks concern that "free-standing" sanctions – related only to children and armed conflict – "would not seem to address the need for better tools to deal with persistent perpetrators." He urged exploration of additional possibilities.
The Council's release quoted Zerrougi with respect to such action:

'It would send a strong signal that the resolutions of this Council are not only words on paper, and that vigorous action can be taken when they are not implemented.'

Keep watch to see whether that stronger signal in fact issues.

Thomas Lubanga Sentenced to 14-Year Term

Today, Trial Chamber I of the International Criminal Court sentenced Thomas Lubanga Dyilo to 14 years of imprisonment. Unless appealed, he will serve eight years in prison. (photo courtesy of the ICC's webpage) The full judgment is available here.
In March, Lubanga was found guilty (post on that here) of the war crimes of conscripting and enlisting children under the age of 15 and using them to actively participate in military hostilities in the Democratic Republic of the Congo. Heralded as a milestone, the judgment also inspired commentary over issues such as the reception of the judgment in the DRC and how long Mr. Lubanga’s sentence should be for a relatively narrow conviction.
Another major source of debate arose regarding the appropriate extent of victim reparations (see, e.g., here and here, as this trial is seen as a test case for the ICC’s reparations scheme. This debate will continue, however, as the Court did not render a decision on reparations today. Although it was originally scheduled for today, the Chambers indicated late last week that the reparations decision would be delivered “in due course.”
This marks the first sentence handed down by the ICC. According to Article 78 of the Rome Statute:

1. In determining the sentence, the Court shall, in accordance with the Rules of Procedure and Evidence, take into account such factors as the gravity of the crime and the individual circumstances of the convicted person.
2. In imposing a sentence of imprisonment, the Court shall deduct the time, if any, previously spent in detention in accordance with an order of the Court. The Court may deduct any time otherwise spent in detention in connection with conduct underlying the crime. 

The sentence must be proportionate to the crime committed and must reflect Mr. Lubanga’s culpability (ICC RPE, Rule 145(1)(a)). In deciding the appropriate sentence, the Trial Chamber had to consider aggravating and mitigating circumstances (ICC RPE, Rule 145(1)(b)), the circumstances of Mr. Lubanga and the gravity of the crime.

During the sentencing hearing, Mr. Lubanga told the judges that he acted in the interests of peace, not power or money. His defense counsel, noting that he’d been in detention by the ICC for six years, argued that the exact number of children in his militia was unknown, which would impact the judges’ deliberation of the “extent of the crime.” Moreover, the defense spread the blame for atrocities in the DRC to regional presidents, who, the defense contended, should have been prosecuted instead of Mr. Lubanga. The prosecution, however, argued that Mr. Lubanga bears the greatest responsibility for the crimes and should be sentenced to 30 years imprisonment—or less, if he gave a genuine apology to his victims. (photo courtesy of the ICC's webpage on the case)

Lubanga sentence, reparations tomorrow

The delivery of sentence and reparations order will be tomorrow for Thomas Lubanga Dyilo (left), erstwhile militia leader from the Democratic Republic of Congo, about whose International Criminal Court prosecution we've frequently posted. On March 14, Lubanga was found guilty of conscripting and enlisting children under the age of 15 and using them to participate in hostilities. (photo courtesy of the ICC's webpage on the case)
The open-court hearing before Trial Chamber I will begin at 9:30 a.m. Hague time (3:30 a.m. New York time).
You can watch the session live, in English or French, here.

Telling the Truth for Victims of the Conflict?

Trial Chamber II at the International Criminal Court (ICC) recently concluded hearings in the trial of Germain Katanga and Mathieu Ngudjolo Chui. Katanga and Ngudjolo are charged with war crimes and crimes against humanity that were allegedly committed during an attack on Bogoro, a village in Ituri, eastern Democratic Republic of the Congo. The two allegedly commanded armed militias that fought against Thomas Lubanga’s Union of Congolese Patriots (UPC), which had a military base in Bogoro.
While recent attention has been focused on the drama that unfolded in the Lubanga trial, the Katanga/Ngudjolo trial quietly progressed, touching on what could be some of the most important ICC jurisprudence to date. Novel legal issues, amongst others, include the characterization of the conflict in Ituri, whether the judges can alter it under Regulation 55, and the application by four defense witnesses for asylum in the Netherlands (discussed on IntLawGrrls here). This will also be the first judgment involving charges of crimes against humanity and the indirect co-perpetration mode of liability, both unique features of the ICC. Equally important, the Katanga/Ngudjolo trial also highlights debate about policies of the ICC Office of the Prosecutor on positive complementarity (see IntLawGrrls post here), charging those most responsible for the crimes committed in the DRC, and local impact of ICC trials (as discussed by IntLawGrrls here and Human Rights Watch in this report.
In this post, I will elaborate briefly on the classification of the conflict, as it reflects consequences of OTP decisions and potential incoherence between Trial Chambers I and II on a key legal distinction—critical issues as the Court moves towards its second trial judgment.
A key issue raised during the recent closing arguments was whether, pursuant to ICC Regulation 55, the Trial Chamber could re-characterize the conflict in Ituri as a non-international armed conflict. The issue first arose in the recent Lubanga verdict. There, Trial Chamber I used Regulation 55 to change the legal characterization of the same conflict to a non-international armed conflict. In that case, Pre-Trial Chamber I had found in the confirmation of charges decision that in February 2003, the relevant time for the Katanga/Ngudjolo trial, the conflict was an international armed conflict, even though the prosecution had argued it was non-international (paras 227 – 237).
Possibly as a result of that decision, the prosecution argued in Katanga/Ngudjolo that the conflict was an international armed conflict and charged the accused accordingly. Pre-Trial Chamber I in Katanga/Ngudjolo confirmed the prosecution’s charges of war crimes committed during an international armed conflict. These are the charges the accused responded to during the course of the two-and-a-half year trial.
However, in its final trial brief and during closing arguments, the prosecution changed tracks and argued that the conflict was in fact a non-international armed conflict, but that the distinction made no difference to the crimes charged. The prosecution acknowledged evidence of Ugandan involvement, but claimed “its involvement in these battles did not internationalize the conflict as those battles didn’t involve two States fighting against one another but involved Uganda against local armed groups.” It did not address evidence relating to Kinshasa having proxy-militias, except to insinuate that the FRPI was “bent towards” Kinshasa, whereas the FNI was “more tilted to Uganda.” However, the other parties and participants disagreed, all arguing that the conflict was international and involved the governments of Uganda, Rwanda and the DRC, who were fighting for territorial control over eastern DRC through proxy militias.

Bensouda on Bashir & Bosco (& Barack)

A lot of "B"s in one interview playing today at the Beeb.
Interviewed was Fatou Bensouda, who will become Chief Prosecutor of the International Criminal Court on July 1.
Karen Allen of the BBC  talked with Bensouda on the fringes of a conference in Cape Town, South Africa. Africa and the ICC, a theme on which we've frequently posted, thus was at the core of the interview. (Video, from which above image of Bensouda was made, is available here.)
The name of Bashir of course came up. That would be Omar al-Bashir, who has remained President of Sudan despite the years-old ICC warrant for his arrest. Some countries that belong both to the ICC and the African Union have allowed him safe passage; recently, one of them, Malawi, has reversed course and sought to ban Bashir.
On this, Bensouda said:

'[T]he step that Malawi has taken is very encouraging. We have of course had other African countries that have done similar things. I think Botswana has been very consistent in the position of arresting Bashir if he were to go to Botswana.
'But I also want to make one thing clear. What is out there in the media, mostly, is that African Union is not cooperating with the ICC. And of course there are certain examples why this is said. But I want to say that we have had tremendously good cooperation with individual African states.'

This comment moved conversation to another name, Bosco – Bosco Ntaganda, charged with war crimes when he, like his then-co-accused, Thomas Lubanga, was a Congolese rebel leader. Lubanga awaits ICC sentencing, having been convicted of recruiting child soldiers. Ntaganda managed not just to escape arrest, but also to become a general in the government's army, and so to wield much power. Earlier this month, the ICC added charges against Ntaganda, who reportedly "mutinied" in April and is now forcing children to join his new combat against the government.
On this, Bensouda said:

'[T]hose who have warrants out for them, for their arrest, should be arrested and surrendered to the ICC. This level of "blackmail," which I call it, in which perpetrators are saying that "If you do not drop warrants against me, or if you issue warrants against me, I continue to kill people," I think this is what the international community, especially those who are directly responsible for the arrest of Bosco, should take into account.'

Finally the BBC interview of Bensouda evoked the name Barack – President Barack Obama, who's deployed U.S. troops to Uganda to aid "the removal of Joseph Kony from the battlefield." On this, Bensouda reminded that the ICC relies on states to execute its warrants, including the years-old one for Lord's Resistance Army leader Kony, subject of a NGO-issued viral video, about IntLawGrrls have posted.
On the U.S. role, Bensouda said:

'It is not directly an assistance to the ICC as such, if I may put it that way. It is a request from Uganda, not from the ICC, from Uganda as a state. And also it is a push by Invisible Children on the United States government to do something. ... [T]he Kony 2012 video has done a lot to bring attention to this.'

Asked by the BBC if she thought the United States would ratify the ICC Statute should Obama win re-election this November, Bensouda gave a most politic reply:

'I have refrained from commenting on any state that is not party to the Rome Statute. But I do know that the universality of the court is a good thing for international criminal justice.'

Executive action at the United Nations, a basis for the concept of responsibility to protect

(My thanks to IntLawGrrls for the opportunity to contribute this introductory post, part of a 2-part series based on a paper that will appear in the 2012 American Society of International Law Annual Meeting Proceedings)

According to UN Secretary-General Ban Ki-moon (right), while the responsibility to protect concept came of age in 2011, the challenge facing the international community remains that of transforming the concept from ‘promise to practice’ or from ‘words into deeds’. In my view, the significance of the concept lies in its capacity to do the reverse – that is, to transform practice into promise, or deeds into words.
More specifically, the responsibility to protect concept offers a framework for rationalising and consolidating practices of international executive rule, many of which were developed by Dag Hammarskjöld (below left), the second Secretary-General of the United Nations, in the early years of decolonisation. (UN photo credits here and here)

Practices of protection: Executive action & the UN Charter

The idea that the UN has a responsibility to protect life in the decolonised world began to take shape with two operations that were undertaken while Hammarskjöld was in office:
► UNEF, the UN Emergency Force in response to the Suez crisis of 1956; and
► ONUC, the UN Operation in the Congo in 1960.
The techniques of executive rule developed under Hammarskjöld’s auspices during those early crises of decolonisation – fact-finding, peacekeeping, strategic forms of technical assistance, and civilian administration – have, of course, since expanded dramatically. Yet as Hammarskjöld recognised, little in the UN Charter suggests its authors envisaged the creation of an international executive that could undertake such wide-ranging forms of action.
In the Introduction to his 1961 Annual Report to the General Assembly (accessible here), Hammarskjöld noted that although ‘great attention is given’ in the UN Charter to elaborating ‘the parliamentary aspects of the Organization, little is said about executive arrangements’. To the extent that there exists an explicit legal basis for these forms of executive action, Hammarskjöld found it in the provisions of the Charter entrusting the Secretary-General with the execution of political decisions at the request of the political organs, and in Article 99, which provides that the Secretary-General

'may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.'

Hammarskjöld (prior IntLawGrrls posts) interpreted these provisions as giving the Secretary-General a position of full political independence and a broad discretionary mandate to engage in fact-finding, preventive diplomacy, and other behind-the-scenes activity necessary to carry out his functions. He thus did not interpret the limited attention in the Charter as a constraint on executive action. Rather, he considered that ‘the executive functions and their form have been left largely to practice’. He argued forcefully that it was necessary to stop thinking of the UN merely as a forum for ‘static conference diplomacy’ and instead reimagine it as a ‘dynamic instrument’ for ‘executive action, undertaken on behalf of all members’. And he emphasised the ‘margin of confidence’ that ‘must be left to those who will carry the responsibility for putting the decisions’ of the political organs ‘into effect’.
International lawyers in the 1950s and ’60s were well aware of the potentially radical effect of this expansion of international executive action. For example, Stephen Schwebel presciently commented in his 1961 book The Origins and Development of Article 99 (p. 382):

Kony 2012, the ICC & peace/justice divide

(My thanks to IntLawGrrls for the opportunity to contribute, in 2 parts, this version of the remarks I delivered on the "Africa & the ICC" panel at the March 2012 annual meeting of the American Society of International Law. A full version of my comments will be published in the ASIL Annual Meeting Proceedings)

The viral Kony 2012 video makes evident the dangerous slippage between justice and peace.
The short film is just a recent example of the tendency to treat justice (popularly seen as the law) and peace (seen as political) as mutually exclusive. Unfortunately, this justice-peace binary, and discourses that perpetuate it, obfuscate some of the issues at the core of the violence on the African continent. Justice becomes reduced to law, while peace loses any justice-producing qualities.
The famous adage, “We ask for justice, you give us law” speaks to part of the problem – to the assumption that the search for “justice” is fundamentally about the search for law.
There is another part to the problem. Actions that some might see as “justice-producing” – diplomacy, peace negotiations, economic redistribution strategies, forgiveness rituals – fall outside of the realm of “justice,” because others say these actions lack the “teeth” of legal accountability.
Those who focus on international criminal adjudication as justice have assumed that violence in certain places in Africa can be managed as a legal problem alone, rather than the larger structural problem that it is.
Related to this is the legal doctrine of command responsibility, which serves to assign guilt to a chief commander and a few top aides. Its power is as much legal as symbolic – it flags that impunity is at an end, that we are watching.
The problem is that in most violence-based contexts on the continent, where there are struggles over the management of resources or where violence is used to regulate civilian behavior, reassigning the guilt of thousands of people to a single chief commander does not accurately attend to the core problems involved in the making of war, let alone produce the conditions for a violence-free future.

Kony 2012
Kony 2012, in its very title, makes just that reassignment.
Inspired by the travels of Jason Russell, Kony 2012 narrates Uganda’s 25-year-old war, its violence, and the consequential death and displacement of millions of Ugandans. Drawing a direct link to Joseph Kony (prior IntLawGrrls posts), the film demands that Kony be held accountable for all of the violence committed by the Lord’s Resistance Army that he leads.
As Russell narrates in the film,

'Kony heads the Lord's Resistance Army, a Christian terrorist group which has reportedly abducted and forced more than 30,000 children to fight with them since their revolt began in 1986.'

He then discloses that his commitment was inspired by a promise he made to Jacob, a young Ugandan boy whose brother was killed by Kony’s men.
The story, then, is about how American political participation, and stopping a single leader, will rectify Uganda’s plight.

Russell’s savior complex is catapulted with the message that by donating money through a simple click of your mouse, and buying a kit that will help fund Kony’s arrest, every American can also be part of the solution to help poor Ugandan victims. The simplicity of the message is compelling, and suggests that Africa can be transformed by our philanthropy.
The sad reality is that Kony 2012 is one of a series of ultimately flawed philanthropic and humanitarian gestures which claim that capturing a single commander will solve Africa’s problems, and that justice equals law.
Compare Kony 2012’s message to that of the individualization of criminal responsibility seen in the new wave of international criminal justice. The same narrative inheres: that juridical action focused on a few commanders and top-ranking leaders will end impunity.
But the reality is that locating adjudication as the answer simply displaces the place of “the political.”
Re-engaging the political involves uncovering root causes at the core of violence itself. It returns us to the reality that solving Africa’s problems must involve African participation. Re-engaging the political must include a deliberative process and necessary rebuilding of institutions, and its laws must emerge out of a process that Ugandans see as politically legitimate.
An example of the perceived distinctions between peace and justice, especially as they relate to larger questions of criminal responsibility, may be found in aspects of the situation in Uganda.

Perceptions of justice & peace in Uganda

The ICC’s involvement in Uganda began in July 2003, when the Office of the Prosecutor identified Uganda as a situation of concern. At that point, prosecutors began examining the situation in Uganda with greater scrutiny.
Meanwhile, in November that same year, Betty Bigombe (right ), the former Minister of State for the Pacification of the North, began to meet with top LRA members in an attempt to reach a peaceful settlement to the conflict in northern Uganda. (photo credit)
These talks resulted in a geographically bounded 7-day ceasefire between the LRA and the Ugandan forces. The ceasefire was renewed continuously in anticipation of a final agreement at year’s end, as Lucy Hovil (left) (prior IntLawGrrls post), Senior Researcher at the International Refugee Rights Initiative, described in her 2011 paper entitled A poisoned chalice: Local civil society and the International Criminal Court’s engagement in Uganda.
But in December 2003, Ugandan President Yoweri Museveni decided to refer the LRA-Uganda situation to the ICC.
By January 2004, the peace agreement had been disrupted, and renewed hostilities erupted in the region.

U.S. should embrace inclusive refugee protection

(My thanks to IntLawGrrls for the opportunity to contribute this introductory post)

You’ve likely heard how the severe drought in the Horn of Africa has created over 150,000 Somali refugees since July 2011, and how tightening immigration policies have restricted their passage to Europe and North America. But were you aware that thousands more refugees have been cared for exclusively by many African countries for nearly half a century?
The United States should recognize these deserving refugees, too.
Last year, I clerked for the U.N. High Commission for Refugees as a University of California Human Rights Fellow in Addis Ababa – the capital of Ethiopia, and the political hub of Africa. (UN map credit)
In July 2011, Ethiopia and the rest of the Horn of Africa began facing a humanitarian crisis brought on by a severe drought in the region. The drought caused an alarming influx of refugees arriving from Somalia. Meanwhile, as a result of violent clashes in the Blue Nile state of Sudan, Sudanese nationals were seeking asylum through Ethiopia's western border – creating the second refugee emergency in Ethiopia last year. Additionally, we continued to receive asylum seekers from Eritrea, the Democratic Republic of Congo, Djibouti and even Yemen.
I managed over 100 refugee cases  – considering the status of refugees, and also helping to provide protection, in the form of resettlement referrals, for refugees who were particularly vulnerable in Addis Ababa, such as women at risk. In addition, I participated in collaborative emergency meetings with representatives from various U.N. agencies and their implementing partners who were responding to the Somali refugee crisis.
Refugee recognition is vital to the protection of human rights. I learned, however, that refugees are defined more broadly in many African countries than by most of the international community. As a result, many refugees – particularly Somali refugees – who were recognized as such by Ethiopian authorities would not have been recognized as refugees under U.S. criteria.
First, some basic refugee concepts should be reviewed.
An asylum-seeker is a person seeking refuge in a foreign country. If she proves to have a well-founded fear of returning to her home country for a qualifying reason, then she may be recognized as a refugee. Importantly, international law forbids the deportation of refugees. However, the definition of a refugee varies in breadth depending on which legal instrument is consulted.

The United States, like most countries in the world, is a signatory to the 1951 U.N. Refugee Convention (as it is incorporated by the 1967 Protocol), which narrowly defines refugees as persons fleeing targeted or discriminatory persecution due to race, religion, nationality, political opinion, and/or membership of a particular social group. (credit for UN photo of signing of 1951 convention)
In 1960, 41 members of the African Union pioneered the way to broadening the definition of a refugee – they additionally signed the Organization of African Unity Refugee Convention. The OAU Convention further extended refuge to people fleeing generalized violence.
With the introduction of the 1984 Cartagena Declaration on Refugees, many Latin American nations also began recognizing generalized violence as a legitimate refugee ground.
But depending on where refuge is sought, those fleeing generalized violence may not have legal basis to protect them against deportation.

On February 16

On this day in ...
... 1992 (20 years ago today), in the capital of what was then Zaire (credit for flag at left) and now is known as the Democratic Republic of Congo, a "massive demonstration" that the Roman Catholic Church had organized in an effort to reopen a stalled constitutional reform conference turned tragic when security forces opened fire on the thousands who were marching in Kinshasa -- hundreds of persons were killed. President Mobutu, who'd 1st seized power in a 1965 coup, would not stand down until 1997.

(Prior February 16 posts are here, here, here, here, and here.)

Intervention at ICC ASP

NEW YORK – In my capacity as Senior Legal Officer for the Open Society Justice Initiative, I spoke yesterday to the Assembly of States Parties to the Rome Statute of the International Criminal Court that is now holding its tenth annual meeting at U.N. headquarters. (photo credit)
IntLawGrrls have covered the meeting in posts available here -- among them, a guest post by ICC Prosecutor-Elect Fatou Bensouda.
My own remarks to the Assembly are here:

As noted by others here, huge changes are coming to the ICC within the next few months alone. The Court will soon be led by an experienced prosecutor from Africa, six new judges will be sworn in and correspondingly, six judges who have rendered key decisions on issues such as intermediaries, proofing witnesses, victim participation and witness protection, and the confirmation of charges, will be leaving the court; the leadership in the Assembly of States Parties is changing; the Court’s first Trial Chamber Judgment will be issued in the Lubanga case; and the court will begin proceedings against its first former head of state. These significant changes could potentially result in the court heading in far different directions than the course that’s been charted over the past ten years.
The Open Society Justice Initiative has been working on the ICC since its inception, and in these brief remarks, I’ll simply highlight two areas we’ve been engaged with intensely for several years: intermediaries and complementarity.

Intermediaries
Intermediaries are critical to the Courts operations and in fulfilling its mandate, and these individuals or organizations assist various organs of the court. The Justice Initiative began working with and as intermediaries in the Democratic Republic of Congo in 2003. Since that time, particularly as the Lubanga trial unfolded, we have focused considerable attention on the need for guidelines in dealing with intermediaries. To this end, we urge:
► The ASP President to appoint an intermediaries facilitator through The Hague Working Group to assist in finalizing the ICC Intermediaries Guidelines and monitor their implementation to make suggestions for improvement where necessary;
► The ASP to give due consideration to the ICC Intermediaries Guidelines and adopt the Guidelines at the earliest opportunity;
► The ICC to utilize the ICC Intermediaries Guidelines to inform their interactions with intermediaries at least during 2012 pending adoption at a forthcoming ASP and to ensure the Guidelines are subject to an on-going monitoring process, involving both the Court, intermediaries and external experts to ensure the Guidelines are effective achieving their aims in managing the partnership with intermediaries.
Next month, the importance of intermediaries and dealing appropriately with them is expected to be a very fundamental issue in the Lubanga Judgment.

Complementarity
Turning to complementarity, it too is a topic that is critical to the success of the Court and for ending impunity for mass crimes. In 2008, the Open Society Justice Initiative first began working in concrete terms on assisting domestic jurisdictions in their willingness and ability to prosecute atrocity crimes. As I've posted, we began the process of designing and implementing a mobile gender justice court in eastern DRC, to provide some measure of justice to the tens of thousands of women and girls victimized by war and impunity. (See too this post.) Since then, the Justice Initiative has been analyzing complementarity options in other places, such as Kenya and Uganda.
On Monday, we launched a handbook on complementarity, titled International Crimes, Local Justice, which represents an attempt to bridge the gap between international justice and rule of law communities and to demonstrate how complementarity can be implemented once decisions are made to prioritize it.
To this end, it is important that the ASP educate development agencies, embassies on the ground, national governments, and civil society about the importance of local justice systems holding fair trials for international crimes. It can convene the relevant actors needed to address complementarity effectively, and its secretariat can promote the exchange of information between those on the ground who can best identify complementarity needs with those in capitals most familiar with knowledge of available expertise and resources.

Women & justice in conflict: Beyond rape victims

(Delighted to welcome back alumna Phuong Pham, who contributes this guest post)

Yesterday, the UN Security Council debated ways to strengthen women’s participation and role in conflict prevention and mediation. (photo credit)
Meaningful participation and leadership from women at all stages of the peace process—from prevention to peace building—is key to building inclusive societies and fundamental towards achieving sustainable peace. The work of recent Nobel Peace Prize winners, Sirleaf, Gbowee and Karman, should stand as a powerful testament to the critical role of women in peace building and reconstruction.
During the Security Council meeting Michelle Bachelet (right), the Executive Director of UN Women, stated that the UN will seek to increase post-conflict funding by 15% to support efforts on women empowerment and gender equality. (photo credit)
The UN should take this opportunity to focus on the role of women in bringing a more just and accountable society.
The eastern Democratic Republic of the Congo provides a salient example of women’s limited access to justice. In a region that is known as ‘the rape capital of the world,’ there has been encouraging progress over the last decade to ensure that perpetrators of conflict-related sexual violence are brought to justice. According to survey data, as many as 1 in 4 women experienced conflict-related sexual violence. In 2010, an astounding 16,000 cases were reported, but still many more have gone unreported. The use of rape as a weapon of war is an abject crime that has been internationally condemned, and women now have more opportunity to report the violence they suffered and see the cases brought to justice. In 2010 alone, based on the UN Development Programme court monitoring data, 3,111 cases of sexual violence were filed in the justice system in North and South Kivu and Ituri. (map credit) A small number of militia and military, including 16 commanders, have been found guilty for sexual violence committed by their troops.
UNDP’s court monitoring program is a powerful tool to hold the justice sector accountable to women. It is part of a larger program to support women’s political, economic, and social empowerment. Police officers, judges, and lawyers have been trained to ensure that crimes of sexual violence are treated adequately and that courts follow fair trials standards that are sensitive to the rights of the victims. Mobile courts, about which IntLawGrrl Kelly Askin has posted, have also been set up to overcome the lack of physical access to courts. Congolese prosecutors have initiated important investigations in cases where brutal violence was committed against civilian women.
Despite this progress, much remains to be done. Increasingly, sexual violence cases are filed in courts. However, the court monitoring work showed that out of the 3,111 cases filed in 2010, by the end of the year, a decision had been obtained only for 305. Civil damages awarded by these decisions remain to be paid to all victims. Research that my colleagues and I have conducted in the Congo also shows that women are less knowledgeable about the Court system, and less likely to have heard about the International Criminal Court, which is currently prosecuting several cases related to the conflict. The results point to the need to do more to reach out to women and to ensure that conflict-related sexual violence is effectively prosecuted and that judicial decisions are executed.
It is equally important to ensure that an adequate response is provided to other forms of violence against women.
An unintended consequence of the single focus on prosecuting conflict-related sexual violence is that there are few resources to assist survivors of other forms of violence against women, including pillaging, beating, abduction, or the killing of a family member, as well as non-conflict-related violence and inequalities. In 2010, sexual and gender-based violence represented about half the decisions in criminal cases in eastern Congo. These crimes must be prosecuted. However, addressing conflict-related sexual violence in isolation of other forms of violence against women will do little to strengthen women’s participation in—and access to—justice.
In effect, the current system may be creating two classes of victims—those who deserve assistance and those who do not; and two classes of crimes—those worthy of investigation and those that are not.
There is an urgent need to consult with women to better understand the role that they see for themselves in rebuilding their country. Strengthening women’s role and access to justice, combating inequalities across all spectrums of civilian life, and acknowledging their role as fully fledged citizens must be seen as fundamental to building inclusive, democratic, and ultimately peaceful societies.

Obama, Uganda & the ICC

In furtherance of the Congress's stated policy, I have authorized a small number of combat-equipped U.S. forces to deploy to central Africa to provide assistance to regional forces that are working toward the removal of Joseph Kony from the battlefield.

So wrote U.S. President Barack Obama, in a letter (full text here) dated yesterday in which he notified Congress, "consistent with the War Powers Resolution," that he was deploying 100 "combat-equipped" military advisors to Uganda to help fight Lord's Resistance Army leader Kony.
The move is said to further a 2010 statute that, as posted, Obama signed just as the International Criminal Court Review Conference began in Uganda's capital, Kampala. Obama's letter discussed the LRA's activities in Uganda, the Central African Republic, the Democratic Republic of Congo, and South Sudan. (credit for 1997 map of Central Africa) It made no mention, however, of the fact Kony's the target of an ICC arrest warrant that was issued in 2005 and thereafter became the subject of frequent "peace v. justice" debates.
A remarkable move, particularly for a state not party to the ICC treaty.

Pushing the Boundaries of Asylum Law

Two recent decisions demonstrate asylum law's flexibility and capacity to address problems that the drafters of the U.N. Convention Relating to the Status of Refugees could never have envisioned. In the first case, a woman from the Democratic Republic of Congo trafficked into sexual slavery in Belgium was granted asylum based on her membership in the particular social group of "young Congolese women who have participated in prostitution." In the second, an immigration judge in El Paso granted asylum to a Mexican woman who had been a witness at the trial of the man who killed her sister-in-law. Both decisions break new ground in surprising ways.
The first decision expands U.S. asylum law in at least two directions. First, the Immigration Judge holds that sex trafficking constitutes harm rising to the level of persecution, a finding supported by the UN High Commissioner for Refugees' Guidelines on International Protection, but not yet supported by case law from the Board of Immigration Appeals or the U.S. Court of Appeals for the Seventh Circuit.
Second, relying on helpful case law from the Seventh Circuit, the Immigration Judge finds that "young Congolese women who have participated in prostitution" is a particular social group, as it is based on a shared past circumstance (her former profession) and would be perceived as a group by members of any society. The young woman was targeted for trafficking to Belgium in part because she was working as a prostitute in Kinshasa. As a result, the judge holds that the applicant's membership in this social group was at least one central reason for the persecution she suffered. Though immigration court decisions have no precedential value, this well-written opinion offers a useful roadmap for other judges faced with similar cases.
In the second case, Monica Arias Hernandez, a Mexican national, was granted asylum. I've not seen a copy of the decision (which is not publicly available), but news reports imply that the grant was based on her participation as a witness at the trial of Sergio Barraza Bocanegra, who killed her sister-in-law, Rubi Frayre Escobedo. In 2008, Rubi's charred and mutilated body was found at a garbage dump; she was 16 years old at the time of her death. Barraza, Rubi's boyfriend, confessed to the crime, but state judges found that he was not guilty because there was not enough physical evidence to convict him. Barraza was alleged to have subsequently joined the Los Zetas drug cartel. In December 2010, Rubi's mother, Marisela Escobedo, was killed in front of the Governor's Palace in Chihuahua while protesting Barraza's acquittal. The police, who were notably absent during the killing, did nothing to investigate.
Monica soon fled Mexico to claim asylum in the United States. She is one of very few Mexicans to be granted asylum in the United States. Her case may mark the beginning of a trend to offer protection to Mexicans fleeing the powerful drug cartels, who have killed 40,000 people since 2006.
In both cases, asylum status is extended to women facing persecution by non-state actors for actions not traditionally defined as a ground for asylum. It's too soon to know how these individual immigration court decisions will influence national asylum law in the United States, but they do demonstrate the willingness of at least two immigration judges to push the boundaries of the law in creative ways.

On July 24

On this day in ...
... 1904, was appointed an international commission to investigate abuses on rubber plantations controlled by Belgium's King Leopold II in what then was called Congo Free State (flag at right). (credit) According to this website,

The commission revealed that the Congolese were victims of a slave labor system and other human rights abuses. The king instituted certain reforms, but these proved ineffective. As a result, in 1908 the Belgian parliament voted to annex the Congo Free State, making it a colony that became known as the Belgian Congo. While the most unfair labor practices were eliminated, most Congolese people fared little better under the new administration.

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

International criminal law meets non-refoulement

Two cases in the past few weeks have raised intriguing questions about the intersection of international criminal law and refugee law. The first, which I discuss below, asks how international criminal courts should address refugee claims that arise as a result of involvement in their legal processes. The second, which I will discuss next week, asks how refugee determination processes should address the alleged commission of international crimes by refugee claimants.
In the Katanga case before the International Criminal Court, the defense called three witnesses who were detained at the central prison in Kinshasa by the government of the Democratic Republic of Congo. After they testified publicly at the ICC, the witnesses' lawyer asked the Trial Chamber to present them to the Dutch authorities so that they could file asylum claims based on their fear of retaliation at the hands of the DRC government. By the time of the Court's decision, that question was moot as the asylum claims had been filed.
The Court's opinion nonetheless discusses two crucial questions concerning the intersection of refugee law and international criminal law: (1) which body is responsible for determining asylum claims by witnesses at international criminal courts and (2) how to address conflicts between international criminal law obligations and the non-refoulement principle.
With respect to the first question, the Court noted that its obligation to protect witnesses is limited to those risks they face as a result of their testimony. The Court is not required to address general human rights violations in the witnesses' country of origin nor must it determine the risks of persecution faced by witnesses applying for asylum. In other words, the responsibility for assessing the applicability of the non-refoulement principle lies with the Dutch authorities alone.
The Court also addressed the conflict between the non-refoulement principle and its obligation to return the witnesses "without delay" to the DRC under the Rome Statute. Defense counsel for Katanga claimed that the Dutch government's obligation to guarantee the rights enumerated in the European Convention on Human Rights override any agreement with the ICC. The Prosecutor, in contrast, argued that the witnesses remained Congolese detainees, with the Dutch authorities "merely facilitating" their detention in The Hague. The Registry came down similarly, noting that the Congolese authorities transferred the witnesses solely for the purpose of their testimony. The Dutch government also argued that the witnesses were not under their authority or jurisdiction but rather under the jurisdiction of the Court while they remained in the Netherlands.
The Court found, however, that the requirement of return "without delay" to the home state found in Article 93(7) of the Rome Statute must be interpreted consistently with the principle of non-refoulement and the right to an effective remedy. In practical terms, this means that the Court could return a detained witness only if the Dutch government rejected his asylum application.
It seems right that international criminal courts should not be involved in asylum determinations, but the oddity in this proceeding is that while the Dutch authorities were processing the asylum claim, the Registry was discussing with DRC authorities protective measures that might be applied to the witnesses. In most asylum proceedings, the identity of the applicants is kept strictly confidential in order to prevent retaliation by the home state either in the host country or, if the application is denied, upon return. One might argue that this differential treatment is appropriate here where the identity of the witnesses is well known to their government. Yet it's hard to get around the concern that the ongoing negotiations concerning the protective measures must undercut either the validity of the asylum claims or the Court's judgment in relying on the assurances of a state well known for its human rights abuses.
And while the non-refoulement principle should surely trump the ICC statute's requirement of return of detained witnesses, the ramifications of this decision may not be entirely positive. States may become unwilling to transfer such witnesses if they realize that asylum is an option. The Dutch government may be less than enthusiastic about the prospect of processing such claims, particularly given that detained witnesses for the defense may themselves have committed international crimes (consider that one witness for the Katanga defense was subject to a UN Security Council travel ban that had been lifted only so that he could testify before the ICC). There are no easy answers here, only a reminder that decisions at the intersection of the principle of non-refoulement and international criminal law must be assessed cautiously and holistically.

(Hat tip to the PhD Studies in Human Rights blog.)

Bensouda on ICC prosecutions

(Delighted to welcome back alumna Margaret deGuzman, who contributes this guest post)

At last week’s annual meeting of the American Society of International Law, participants were treated to a luncheon presentation by Fatou Bensouda (right), Deputy Prosecutor of the International Criminal Court and candidate for the top job when Luis Moreno Ocampo’s term expires next year. Bensouda presented some opening remarks and then was ably questioned by our own Diane Marie Amann, as well as a few audience members.
In her luncheon dialogue, which is available for web viewing here, Bensouda began by providing an overview of the work of the International Criminal Court Office of the Prosecutor (OTP) in the most active situations before the Court. Illustrating her talk was the map at bottom, which depicts the 114 states parties to the Rome Statute in dark blue, signatory states in light blue, selected situations in yellow, and preliminary examinations in green.
With regard to Libya, Bensouda stated that the OTP has notified those with formal and de facto authority, including Gaddafi, that their crimes will be investigated. The OTP has made clear that warning civilians to leave before attacking civilian areas does not relieve those involved of criminal responsibility. Bensouda emphasized that the OTP is seeking to be as transparent as possible in its dealings with the Libyan leadership.
In discussing the various situations, Bensouda revealed her vision of the ICC’s role in the global legal order: to prevent crimes through deterrence and by “sending messages” about the types of offenses the international community will not tolerate.
In discussing the OTP’s work with regard to the post-election violence in Kenya, for example, Bensouda asserted that the prosecutions will prevent crimes by “sending the message” that those who gain power by violence will be held accountable.
Similarly, she stated that the prosecution of those who killed peacekeepers in Sudan “sends an important message that the Court supports peacekeeping;” and the trial of Thomas Lubanga for recruiting child soldiers in the Democratic Republic of Congo “signals” the seriousness of that crime.
Bensouda also mentioned a situation in which the OTP is seeking to prevent crimes through incapacitation of key actors. She asserted that the arrest last fall of Callixte Mbarushimana, leader of the rebel group the Democratic Forces for the Liberation of Rwanda, was an effort to “destabilize” that organization and thus prevent crimes in Eastern Congo.
Bensouda also described the OTP’s approach to deciding which situations of alleged international crimes the ICC should investigate. The process of determining whether to pursue a formal investigation has become known as the “preliminary examination.”
Last October, the OTP issued a Draft Policy Paper on Preliminary Examinations. Bensouda promised that the final policy statement would be issued soon. Under Article 53 of the ICC Statute, the preliminary examination phase requires the OTP to determine whether a “reasonable basis” exists to proceed in a situation. This “reasonable basis” analysis has three components. It requires the OTP to assess whether:
► (1) crimes within the ICC’s jurisdiction appear to have been committed;
► (2) potential cases within the situation would be admissible (that is, they are sufficiently grave and meet the complementarity requirement that no State with jurisdiction is already acting in good faith); and
► (3) prosecution would not contravene the “interests of justice.”
The most interesting thing about the OTP’s draft policy on preliminary examinations is that it purports to disavow any role for prosecutorial discretion in deciding which situations to investigate. Whereas an earlier draft policy paper talked about the OTP “selecting” situations to investigate, the 2010 paper takes the position that the OTP must investigate if the statutory criteria are met.
Bensouda’s comments confirmed this approach. She noted that when the office began operations, Colombia and the Democratic Republic of Congo were the “gravest” situations within the Court’s jurisdiction; however, no investigation was opened in Colombia because that country was pursuing some national prosecutions. She also reiterated the OTP’s position that no investigation was undertaken with regard to the war crimes committed by British soldiers in Iraq because they were not sufficiently grave to be admissible.
As I have written elsewhere, this assessment seems mistaken – surely war crimes resulting in the deaths of even a small number of civilians are admissible before the ICC. The decision not to investigate the Iraq situation makes more sense if articulated as an exercise of the prosecutor’s discretion to focus on the most serious situations available. The OTP’s current policy, however, seems to preclude such an approach. Moreover, when questioned about the Court’s selection criteria, Bensouda seemed to admit that gravity is sometimes primarily a matter of numbers of victims – as in the Iraq situation – and at other times is conceived as relating more to the nature and impact of the crimes – in particular, what “signal” a particular prosecution is going to send.
Finally, Bensouda stated that there is no timeline for concluding preliminary examinations, and opined that the act of engaging in a preliminary examination itself has a deterrent impact. Echoing her current boss, Bensouda also emphasized that the OTP “has a legal mandate with no flexibility to adjust to political considerations,” a position that has been challenged recently by writers such as Bill Schabas and James Goldston.
Bensouda concluded that the ICC represents a “paradigm shift” from the Westphalian model of state sovereignty to one of international scrutiny and the rule of law.
In the questioning, Bensouda was pressed hardest on the problems associated with the ICC’s exclusive prosecution of African cases. She noted that such criticisms often overlook the victims of the African conflicts, and stated that she would “not apologize” for seeking to give victims a voice. She also sought to justify the emphasis on African situations by reference to the requirements of the ICC Statute, in particular the principle of complementarity. She noted that the OTP always encourages national proceedings but that unfortunately those are “not happening in Africa.” She reminded the audience that three of the African situations were referred by the affected governments themselves.
Nonetheless, when asked whether the ICC’s focus on Africa mitigates in favor of an African as the next prosecutor Bensouda, a native of the Gambia, was (unsurprisingly) supportive!

International Court of Justice Roundup

In connection with meetings at the Peace Palace (left) last week and the recent visit of Dame Rosalyn Higgins to Santa Clara, I had occasion to take a peek at the current docket of the International Court of Justice. The ICJ has entertained 150 cases since its inception in 1947. At the moment, 16 cases are pending on its docket—more than at any other point in history. I asked Judge Higgins about the more frequent resort to the Court and she credited several factors, including an increased faith in the ability of international law to resolve disputes, a recognition of the Court's ability to render just and efficient outcomes, and greater litigiousness generally.
Among the cases pending before the ICJ (another of whose judges, as we've posted here and here, will be in the Bay Area this week), we see:
► Frontier disputes:

• Territorial and Maritime Dispute (Nicaragua v. Colombia);
• Maritime Dispute (Peru v. Chile); and
• Frontier Dispute (Burkina Faso v. Niger).

► Cases invoking environmental law:

• Aerial Herbicide Spraying (Ecuador v. Colombia); and
• Whaling in the Antarctic (Australia v. Japan).

► Near and dear to my heart, are several cases involving international criminal law:

• Jurisdictional Immunities of the State (Germany v. Italy). This case involves the willingness of Italy to entertain civil claims arising out of WWII that Germany argues are barred by immunity doctrines and were waived in a web of post-war treaties. Greece has recently requested permission to intervene on the ground that its legal interests could be affected by the Court’s decision, because Italy is also accused of enforcing Greek judgments based on occurrences similar to those underlying the main suit. As we’ve blogged before, Italy's counterclaims against Germany were rejected on temporal jurisdictional grounds.
• Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal). This case concerns Senegal's compliance with its obligations to extradite or prosecute the former President of Chad, Hissène Habré. As our readers will recall, after the African Union mandated Senegal to prosecute Habré “on behalf of Africa,” Senegal indicated that it would begin pretrial proceedings once it received the necessary international funding, which is estimated at $11.7 million. Donors met in November 2010 to consider the financing of the prosecution of Habré. For more on the case, see Human Rights Watch's coverage.
• A case squarely presenting the question of the legality of the exercise of universal jurisdiction (a question that was dodged by the majority of the ICJ on non ultra petita grounds in Arrest Warrant of 11 April 2000 (DRC v. Belgium)), was recently withdrawn by the parties. Certain Criminal Proceedings in France (Republic of Congo v. France).

► Cases involving claims of violations of territorial integrity and the prohibition on uses of force:

• Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and
• Armed Activities on the Territory of the Congo (DRC v. Uganda), which remains pending.

► Human rights

• Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia);
• Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation); and
• Ahmadou Sadio Diallo (Guinea v. DRC), an expropriation case.

► Civil jurisdiction

• Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Belgium v. Switzerland), involving the enforcement of judgments under the Lugano Convention.

A final dispute that is hard to categorize (though I must admit that the word "petty" came instantly to mind) concerns the continuing fight over the use of the word “Macedonia” by the former Yugoslav Republic of Macedonia. Application of the Interim Accord of 13 September 1995 (Greece v. former Yugoslav Republic of Macedonia). Greece has jealously guarded the term, arguing that the former Yugoslav Republic of Macedonia, which declared its independence in 1991, harbors irredentist territorial ambitions toward Greece’s northern province of Macedonia.
In addition to these contentious cases, there is one matter invoking the Court's advisory jurisdiction. Judgment No.2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development relates to a complaint filed against IFAD on a terminated employment contract that went before the ILO.
Busy times at the ICJ indeed.