Libya and the Codification of the Crime of Aggression

There has been a lot of attention in the press and blogosphere about the worrisome situation in Libya, the (in)adequacy of the United States' and United Nations' response thereto, and the Security Council's unanimous referral of the situation to the International Criminal Court via Resolution 1970 on February 26, 2011. (See our prior coverage here). On March 2, 2011, the ICC Prosecutor announced that he had opened his investigation into potential crimes committed in Libya (see his press conference here). The President of the ICC, Judge Sang-Hyun Song (S. Korea), thereafter assigned the situation to Pre-Trial Chamber I.

In undertaking his investigation into international crimes committed since February 15th, the ICC Prosecutor has already signaled that he will consider the commission of crimes against humanity—a constellation of acts made criminal under international law when they are committed within the context of a widespread or systematic attack against a civilian population with knowledge of that attack. Certainly the strafing of peaceful demonstrators with helicopter gunships, the indiscriminate bombing of residential neighborhoods by warplanes (left, photo credit), and the unleashing of mercenaries and snipers on the ground collectively rise to the level of such an attack. This is especially true given that at least a thousand people have been killed and thousands others have been injured and/or displaced. (Although, I should note that Judge Kaul, who does not sit on this PTC, will likely disagree here).

War crimes may also have been committed, depending on whether the situation in eastern Libya or elsewhere rises to the level of armed conflict. Common Article 3, whose prohibitions are listed as war crimes in Article 8(2)(c) of the ICC Statute, is applicable once there is an "armed conflict" occurring "on the territory of" a party to the Geneva Conventions. The determination of when violence rises to the level of an "armed conflict" depends on the level of violence and the degree of organization of the parties. Certainly, the formation of an increasingly hierarchized and united armed opposition—populated and led by courageous defectors from Libyan armed forces' officer corps—goes far toward finding the necessary degree of organization. In addition, there are indications that swaths of the country are under the control of opposition groups forging a transitional government (the Libyan National Council) after governmental authorities collapsed.

All this implies that the heightened threshold of Protocol II, which also governs non-international armed conflicts and whose prohibitions may be prosecuted as war crimes pursuant to Article 8(2)(e) of the ICC Statute, may also be satisfied. That treaty becomes applicable when there is a non-international armed conflict

which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

It explicitly excludes situations

of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.

There thus may be reasonable grounds to conclude the existence of a full-scale civil war, albeit an unbalanced one according to comparative military assessments, which would lay the groundwork for war crimes charges.

The crime of aggression is not immediately implicated in the Libyan situation. For one, the aggression amendments will not come into force until 2017 at the earliest. Moreover, the definition of the crime does not envision the act of aggression being committed by or against non-state actors that are not linked to a state. Nonetheless, the crime of aggression may bear on responses by the international community to the crisis in Libya.

Indeed, military options are not off the table, according to recent comments by President Obama and other world leaders. In particular, it has been proposed that the international community—or some subset thereof—should impose a no-fly zone over the country in an effort to prevent Libya's increasingly erratic and vicious leader from committing further violence against his own people. The Gulf Cooperation Council and Arab League reportedly support such a measure as do several vocal members of Congress. France and Britain are working on a draft Security Council resolution that would authorize such a response, although it is unclear if Russia and China would support this measure, which sounds of military intervention. This raises the prospects that a group of states, such as NATO or some other coalition of the willing, might move forward without explicit Council approval. This is exactly the kind of scenario that worries detractors of the codification of the crime of aggression in the ICC Statute.

The imposition of a no-fly zone without prior Council approval might run afoul of the prohibition of aggression as it has been defined in the aggression amendments. Article 8bis(2) of the amendments defines “act of aggression” broadly as

the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State...

The amendments go on to list the following as acts of aggression:

a) The invasion or attack by the armed forces of a State of the territory of another State ...;
b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; ...
d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State...

Simply policing the no-fly zone might constitute a breach of Libya's territorial integrity, and for a no-fly zone to be effective, it would likely be necessary to neutralize Libya's air defense capabilities, which would involve air strikes. To be sure, such acts would only be prosecutable as the crime of aggression if they are deemed to constitute a "manifest" violation of the U.N. Charter with reference to their character, gravity and scale as per Article 8bis(1). As we have discussed at length in our crime of aggression series, no explicit exception was carved out for bona fide humanitarian interventions or for considerations of a state's motives for engaging in military action. However, important understandings adopted in Kampala imply that a consideration of the "consequences" of military action might shield actions from being characterized as an act of aggression. This would depend, of course, on the views of

• the prosecutor (exercising prosecutorial discretion),
• the Pre-Trial Division (which would need to approve aggression charges), and
• the Security Council (which also acts as a filter to aggression charges and can defer prosecutions for a renewable period of a year).

In any case, the ICC is poised to enter the debate about such humanitarian interventions in the event that they occur once the aggression amendments are operational. The situation in Libya offers yet another potential scenario in which a deployment of armed force might be warranted and beneficial, but may not—for whatever reason—be able to garner Security Council approval.

Human Rights Committee on freedom of speech

The Human Rights Committee, which interprets and enforces the International Covenant on Civil & Political Rights, has circulated a new draft General Comment (slated to be number 34), which will replace General Comment No. 10, which dates from 1983, on freedom of opinion and expression. (General comments are authoritative interpretations of human rights treaties by treaty bodies). Given events in the Middle East and North Africa, as well as the WikiLeaks controversy, this study could not be more timely.
The draft Comment makes the following key points:
► Reservations to Article 19(1) ("Everyone shall have the right to hold opinions without interference") would be incompatible with the object and purpose of the Covenant. In this regard, the Committee also notes that even though Article 4 does not list the Article 19 rights of opinion and expression as non-derogable, it would never be necessary to derogate from such rights, even in a time of national emergency. The Committee has taken a similar approach to the right to seek judicial redress, which is deemed essential to enjoying the Covenant's expressly non-derogable rights even though it is not listed in Article 4 as non-derogable. The Committee did not offer its specific views, however, on how the omnibus non-discrimination clause in Article 2 should be reconciled with the non-derogation clause in Article 4, which does not list "political opinion" as a ground on which derogations are prohibited. Nor does it help with understanding the difference between freedom of thought contained in Article 18(1), which is expressly non-derogable per Article 4 and not subject to clawback by Article 19(3), and freedom of opinion contained in Article 19(1).
► In keeping with general principles of state responsibility, the Committee notes that a state may be in breach of the Covenant in a situation in which any branch of the federal or sub-federal government fails to respect freedoms of opinion and expression. This may also be the case with respect to "semi-state entities," although the Committee does not employ the term "non-state actor." It only notes that states parties are also obliged to ensure that all persons are protected from private action that might impair the enjoyment of freedoms of opinion and expression. Since the landmark Velásquez Rodríguez v. Honduras, case before the Inter-American Court of Human Rights, treaty references to the obligation of states to "ensure" rights have served as a hook to ascribe state responsibility for private action where states are not diligent in protecting individuals from violations by private parties (see prior posts here, here and here). It is not clear if this formulation is meant to be less far-reaching than standard attribution theories of state responsibility.
► It is a breach of the Covenant to criminalize the holding of an opinion. Here, the Committee cites its Views in the case of Faurisson v. France involving France's Holocaust denial legislation (a.k.a. "contestation de crimes contre l'humanité"). (See prior post here). In that case the Committee found no breach of the Covenant where a conviction under this legislation

did not encroach upon his right to hold and express an opinion in general, rather the court convicted Mr. Faurisson for having violated the rights and reputation of others.

The Committee concluded that any restriction on the petitioner's freedom of expression was permissible under Article 19(3), which states that

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others...

The Committee determined that the law was "necessary" to advance the struggle against racism and anti-semitism. Article 19(3)'s clawback clause lays down conditions under which restrictions to the right to expression and to seek information may be imposed:

• the restrictions must be "provided by law";
• they may only be imposed for one of the enumerated purposes [to respect the rights or reputations of others, national security, ordre public, and public health or morals]; and
• they must be justified as being "necessary" for that State party for one of those purposes.

► The Committee lists a number of forms of expression that are guaranteed by the Covenant, including

political discourse,

commentary on public affairs,

canvassing,

discussion of human rights,

journalism,

cultural and artistic expression,

teaching, and

religious discourse.

"Commercial advertising" remains bracketed in this list, suggesting a lack of consensus on this point.

► The Committee notes that the Covenant expressly provides that

persons belonging to ethnic, religious or linguistic minorities shall not be denied the right, in community with other members of their group, to use their own language.

► Apropos of WikiLeaks, the Committee noted the requirement that states parties allow for a free press and other media "to comment on public issues without censorship or restraint and to inform public opinion" and the corollary right of the public to receive such information. With no specific reference to WikiLeaks, the Committee again invokes Article 19(3) and notes that

It is not compatible with paragraph 3, for instance, to invoke treason laws to prosecute journalists, researchers, environmental activists, human rights defenders, or others, for having disseminated information of legitimate public interest.

The Committee reminds states parties that

Any restrictions on the operation of websites, blogs or any other internet-based, electronic or other such information dissemination system, including systems to support such communication, such as internet service providers or search engines, must be compatible with paragraph 3.

► Given the global controversy over the access to information about reproductive rights (including information about how to protect oneself from sexually-transmitted diseases), it would be useful for the Committee to cross-reference General Comment No. 14 issued in 2000 by the Committee of the International Covenant on Economic, Social and Cultural Rights, which monitors the sister treaty to the ICCPR. There, the IECESC Committee identified the accessibility of information to be fundamental to the right to the highest attainable standard of health as set forth in Article 12 of the ICESCR. In this regard, the Committee observed that:

Information ... accessibility includes the right to seek, receive and impart information and ideas concerning health issues. However, accessibility of information should not impair the right to have personal health data treated with confidentiality.

► The Human Rights Committee particularly noted the high value associated with free expression concerning public figures and institutions and called into question laws addressed to defamation of the head of state or regime. The draft Comment does not specifically condemn criminal defamation laws, but it does note that states parties should avoid "excessively punitive measures and penalties" and "consider decriminalisation of defamation." (See prior post here).
► The Committee warns against monopolistic control of the media "that may be harmful to a diversity of sources and views."
► The Committee notes the risk to freedom of speech rights posed by many counter-terrorism measures and in particular laws aimed at prohibiting the “encouragement of terrorism” and “extremist activity” or the "praising" of terrorist acts. The Committee is silent, however, on material support legislation, e.g., 18 U.S.C. § 2339A in force in the U.S. This legislation criminalizes the provision of "material support or resources" to terrorists, which includes "training" and "expert advice or assistance."
► With regard to hate speech legislation, the Committee determines that many forms of hate speech do not rise to the level of "advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence" which must be prohibited by law according to Article 20 of the Covenant, which also calls for prohibitions on propaganda for war.
The Human Rights Interest Group of the American Society of International Law made detailed suggestions on the draft General Comment, which are available here.

Egypt: From Social Networks to Social Movements

Stronger Signals: But From Whom?
Human Rights Watch is calling on the aid donor governments of the United States and the European Union to send strong signals urging the Egyptian government to stop using violence against its own people (see press release here.) Let’s hope any such signals work. The text of a Joint UK-France-Germany Statement appears here, the text of U.S. Secretary of State Hillary Clinton’s televised interview can be read here, and Friday evening’s statement by U.S. President Barack Obama is linked here. Of course, what matters most are the strong and clear signals being sent by the Egyptian people themselves.
Fluid Situation
The remarkable events in Egypt remain fluid. Thousands of peaceful protesters are demanding democratic change. BBC reports indicate that dozens of civilian protesters have been killed or injured by live fire from police and security forces, which Human Rights Watch condemns as violations of international law.
The protests have been predominantly peaceful and the mood among many ordinary Egyptians is cautiously celebratory and hopeful for the possibility of a democratic future.
There are isolated incidents of looting, particularly in poorer areas where there is no national army presence. Some civilian watch groups are forming to protect neighborhoods.
So far, the national army, made up of conscripted Egyptians from all classes, is believed to remain “neutral.” Many protesters see the domestic police forces as allied with the presidency of Hosni Mubarak.
Beyond Information Control
Whatever “signals” are being sent internationally through diplomatic channels, the Egyptian government has impose blackouts on other means of communication including the internet and cellular access (press release.)
As previous IntLawGrrls posts indicate, information technology and social networks have been central to communication and organizing in recent popular uprisings, mass disaster response, elections monitoring, and political dissent in places like Tunisia, Algeria, Haiti, Iran, Kenya, China, and elsewhere. (See our North Africa series and our posts here, here, here, and here.) Obviously, this is equally true in Egypt.
Ironically, and even necessarily, the rise of new media is occurring just as international old media is suffering from severe budget cuts, the withdrawal of foreign correspondents, and the closure of foreign desks. See, for example, this story about budget cuts to the World Service of the BBC.
From Social Networks to Social Movements
Protesters and their relatives and friends outside Egypt used social networks like Facebook and Twitter to provide up-to-the- minute information about where to assemble and about police crackdowns. They texted, e-mailed, and used Skype to let each other know that they were safe. Smartphones recorded both peaceful events and injuries to civilians on the streets; YouTube posted the video clips. Bloggers, of course, posted everything they could get their hands on. Others stayed glued to the Al-Jazeera television network for round-the-clock visual images of the protests and abuses.
Rather than change their behavior, some governments still try to hide by blocking the internet. But, as discussed on today’s broadcast of CNN’s “Reliable Sources,” creative bloggers, tweeters, e-mailers, social networkers, and even Old School ham radio operators the world over often find ways around government attempts to silence the peoples’ voices.
Knowing About Rights
Oddly, it seems that governments never learn that people already know that they have basic rights . They may not know the names of treaties or declarations or principles. They may not know how to translate international norms into domestic constitutional provisions or state and local statutes. They may not concern themselves with the best ways to balance state and private obligations or how to present legal arguments on the most effective remedies before judicial or administrative bodies. Hopefully, lawyers, judges, and legal scholars working at their direction can assist in that regard.
Still, ordinary people know when they are prevented from saying what is on their minds. They know when their children cannot attend school. They know when only certain favored classes benefit from government programs or from natural resources or job opportunities. They know when women, minorities, and children are scapegoated and mistreated. They know when an election is not really an election. They know when their homes are inadequate or non-existent. They know that they should not be beaten up, tortured, abused, raped, or shot.
Lawyers and human rights activists can, therefore, also work in solidarity with people to ensure that such rights are respected, protected, promoted, and fulfilled by powerful actors. This must be so not only for elites in palaces and high places in Geneva, Washington, London, and Paris, but also in small jail cells, apartments, and streetcorners in Cairo, Kingston, Beijing, Chicago, and Ciudad Juarez.
The Right to Self-determination, the Right to Know, and More
This latest version of a new social movement seems to have taken the international media and pundits by surprise. Yet the hopes and dreams of the people in the streets sound very familiar even though new and unpredictable technologies and consequences may surround them.
People throughout the region appear to be marching for the realization of the full range of familiar human rights (civil, political, economic, social, and cultural) outlined in the International Bill of Rights.
Nevertheless, I excerpt below only a few articles from the International Bill which seem to be particularly relevant to the Egyptian crisis at the moment.
Universal Declaration of Human Rights
Freedom of Opinion and Expression
Article 19
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Freedom of Assembly
Article 20
(1) Everyone has the right to freedom of peaceful assembly and association…
The Right to Political Participation
Article 21
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
The International Covenant on Civil and Political Rights

The Right to Self-determination of Peoples
Article 1
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
Helpful Resources on Egypt, Human Rights, and Internet Access
►Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (main page for UN expert)
►Egypt (Office of the High Commissioner for Human Rights country homepage)
►2009 Human Rights Report on Egypt (U.S. Department of State, 10 March 2010)
►Egypt (Human Rights Watch continuously updated page)
►"Egypt Women Blog For Their Rights" (BBC News, 18 March 2009)
►Association for Progressive Communications (coalition advocating for increased grassroots digital access)
My heartfelt thanks to Northeastern University School of Law Research Assistants Melissa Joyce and Gil Rochbert and to Northeastern University undergraduate Research Assistant Nicholas Martin.

(Photo: UN Photo. Boys working in carpet factory in Egypt)

Towards holistic transnational protection against kidnapping: public law approaches

(Thank you to IntLawGrrls for the invitation to provide a guest post based on a forthcoming article of mine)

My most recent area of research is the global criminal phenomenon of kidnapping as it relates to an increased presentation of asylum claims in the United States, Canada, Belgium, France, United Kingdom and New Zealand.
This most striking aspect of this problem is that the private market is both part of its origin and part of its solution.
Inequitable enjoyment of socio-economic resources and the exclusion from participation in formal markets prompt marginalized individuals to pursue the criminal market of kidnapping, in which the human body becomes the ultimate commodity. In turn, corrupt and ineffective judicial bodies and police leave family members little choice but to employ private security and insurance companies. This creates a growth industry based on safe return of victims.
At the international level, there has been increased attention, not only from the UN Economic and Social Council, but also from UN Secretary-General Ban Ki-moon (above right), who declared in 2009:

Kidnapping is an inhumane and unjustifiable crime, as well as a gross violation of international human rights and humanitarian law.

Among the related human rights at stake, one may cite:
► guarantees of liberty, physical integrity and security, and the prohibition of arbitrary detention, as detailed in Article 9 of the International Covenant on Civil and Political Rights;
► the right to life, as in Article 6 of the ICCPR;
► the prohibition against torture, in Article 7;
the ban on interference with family, Article 17; and
► protection against sexual violence, established in, for example, the November 16, 2009, judgment (available in Spanish) by the Inter-American Court of Human Rights in Gonzalez et. al. v. Mexico.
Indeed, the most relevant case law has emerged at the regional level, where the focus is on state responsibility for investigating and punishing kidnappers.
The Inter-American Court thus issued 2 notable provisional orders, in:
► In the Matter of the Communities of Jiguamiandó and Curbaradó, a case involving the kidnapping and murder of a manm allegedly via complicity by police and paramilitary; the order called for State investigation, identification of perpetrators, and punishment; and
► In the Matter of the United States of Mexico Digna Ochoa y Plácido et. al., in which the order called upon the State to protect the lives of human rights activists who had been subject to kidnapping.
Similarly, the Inter-American Commission on Human Rights has repeatedly condemned kidnapping by nonstate actors in countries including Colombia, Guatemala, El Salvador, Venezuela, and Brazil.
In like manner are decisions of the European Court of Human Rights:
► In the case of Avsar v. Turkey, the Court held Turkey to be in violation of Articles 2 (right to life) and 13 (effective remedy) of the European Convention on Human Rights, for failing to carry out adequate and effective investigation in a case involving the kidnapping and killing of a man by village guards with complicity by the state.
► The Court held Russia liable for violation of the same articles in Elmurzayev and others v. Russia and Khadzhialiyev and others v. Russia, cases involving kidnappings by “unidentified armed men” and subsequent delays by the state in investigation and proceedings respecting those crimes.
In large part, the international community’s response to the global threat of kidnapping is reflected in the innovative institutional trend towards horizontal and vertical cooperation across the public-private divide. Initiatives to combat the spread of kidnapping include assistance in border control, intelligence-sharing, police training, and management (seeking transparency, accountability, and professionalization), telecommunication interception, assistance in legislative amendments, extradition, and overview of financial transactions.
Furthermore, there are increased calls for strengthening citizen and community participation in the implementation of security plans. The European Council issued Recommendation 2007/562/EC of 12 June 2007, which requires states to share information in all terrorist kidnappings. Similarly, the need for international cooperation to address crime (including kidnapping) has been promoted by the Organization of American States Permanent Council’s Special Committee on Transnational Organized Crime and the Ministers Responsible for Public Security.

It is important to note issues of continuing concern:
► We still await the establishment of implementation mechanisms for the UN Convention Against Transnational Organized Crime; and
► None of these initiatives highlights the importance of asylum, for victims and their families, as an element of holistic protection.

The Interface of Two Principles: Complementarity & Ne bis in idem

(My thanks to IntLawGrrls for the opportunity to guest post.)

As many previous posts have commented, the International Criminal Court is founded on a principle of “complementarity.” This means that the ICC is a backup or default system of justice, complementary to national jurisdictions. The basic premise is that the ICC ordinarily will not take cases that are adjudicated in national courts.
One of the concerns expressed about the implementation of complementarity under the ICC statute is whether a state will have the prerogative of deciding which crimes to charge without running the risk that the ICC will minimize the state’s choice by prosecuting the same acts under the ICC statute. (See, e.g., Michael A. Newton, "The Complementarity Conundrum: Are We Watching Evolution or Evisceration," forthcoming in the Santa Clara Journal of International Law.) The primary question is this:

What happens if a state chooses to prosecute for an “ordinary” crime, such as murder or rape, rather than for an “international” crime, such as genocide, crimes against humanity, or war crimes?

Suppose, for example, that a state is prosecuting or has prosecuted an accused for multiple murders for a particular incident that also arguably was part of a widespread or systematic attack against a civilian population. Is the case inadmissible in the ICC, or could there be a prosecution in the ICC for crimes against humanity of murder?
Assuming that jurisdictional requirements are met, the issue becomes one of admissibility of the matter and, in the case of completed cases, also an issue of ne bis in idem, or double jeopardy. As set forth in Article 17 of the ICC Statute, a case is not admissible in the ICC if a state with primary jurisdiction is willing and able to proceed with the investigation and prosecution or if the accused was already tried for the conduct and a further prosecution is now barred under the ne bis in idem provision. There are exceptions, however, to the willing and able provision, and to the ne bis in idem bar, if the state prosecution was a “sham” trial aimed at shielding the accused from responsibility, or if it was an improper proceeding, lacking in independence or impartiality and inconsistent with bringing the accused to justice.
In a recent paper for a panel on the ICC and complementarity at a symposium on the future of international criminal justice at Santa Clara School of Law -- moderated by Santa Clara Law Professor and IntLawGrrl Beth Van Schaack -- I focused on the issue of cases already adjudicated in national courts and the impact of the ne bis in idem principle on complementarity.
(For an excellent treatment of complementarity and admissibility issues from the same symposium, see the article by IntLawGrrl guest/alumna Linda M. Keller, "The Practice of the International Criminal Court: Comments on 'Complementarity in Crisis,'" also forthcoming in Santa Clara's international law journal.)
The design of the ne bis in idem principle in the ICC statute is highly protective of state prosecutions and is expressly different from the statutes for the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, both of which permit greater control by the international tribunal than exists with the ICC. The definitions chosen for ne bis in idem in the ICC Statute foster the priority of States in initially prosecuting crimes, give states great leeway to prosecute after an ICC prosecution, and greatly limit the ability of the ICC to prosecute after a state adjudication of the facts. The application of the ne bis in idem provision is not settled, however. As detailed in my own forthcoming article arising out of the Santa Clara symposium, the ICC has yet to interpret the provision, although the Lubanga, and the Katanga and Ngudjolo cases have raised related issues that were ultimately rejected or abandoned.
A broad interpretation of ne bis in idem -- one that favors state prosecutions over ICC prosecutions -- would be more consistent with the language of the statute and the underlying principle of complementarity. How can we tell that the ICC ne bis in idem provision is designed to give great deference to state prosecutions? Ne bis in idem is commonly stated by reference to the text of Article 14(7) of the International Covenant on Civil and Political Rights, which states:

No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

One of the most common variations in drafting is the choice of defining “offense” as “conduct” or as “crime.” This simple variation in language carries enormous consequences. “Conduct” is construed broadly, while “crime” is construed narrowly. By means of Articles 17(1)(c) and 20 of the ICC Statute, the drafters at Rome chose to bar the ICC from conducting a subsequent prosecution if the same “conduct” had already been adjudicated in a State court system.
If we apply this to our initial question of a state prosecution of murder when the charge could have been a crime against humanity, the most likely result is that the murder prosecution would preclude an ICC prosecution for a more serious charge based on the same underlying “conduct.”
The ICC provisions are in stark contrast to the ne bis in idem provisions in Article 10(2)(a) of the ICTY Statute and Article 9(2)(a) of the ICTR Statute, both of which explicitly allow subsequent prosecution in the international tribunals if the State has prosecuted only for an “ordinary” crime. Because murder would be viewed as an ordinary crime in contrast to a crime against humanity, the ICTY and ICTR could go forward with a subsequent prosecution, but the ICC would be barred from doing so. In this way, states are given significant control over whether they prosecute a case or whether the ICC prosecutes it.
This is not to say that the extensive deference to State prosecutions is necessarily the best balance between national and international prosecutions. The deferential approach will potentially preempt ICC jurisdiction in cases in which one might argue that an international prosecution based on more serious crimes would result in greater justice. Significantly for the accused, the state-protective approach of the ICC Statute may result in multiple prosecutions for the same conduct. These concerns are not inconsequential, and deserve consideration from a policy and drafting perspective. With regard, however, to a concern that the ICC will minimize or override a state’s choice of what to prosecute, the ICC ne bis in idem provisions, as presently drafted, are highly protective, rather than preemptive, both of state prerogatives and of the principle of complementarity.

U.S. death penalty stance in global context

(Many thanks to IntLawGrrls for inviting me to contribute this guest post.)

Since the reintroduction of the death penalty in 1976, 1,173 people have been executed in the United States, and 3,297 currently live on death row. For more liberal Europeans (a group I pride myself on belonging to), the fact that the United States retain the death penalty is at best puzzling, if not simply outrageous. Here is a country that has made the protection of individual rights one of its core values, and yet it continues to execute people despite the countless studies proving that:

► the death penalty does not deter potential criminals more than longterm imprisonment does; and

► the death penalty is administered primarily against those, now almost regardless of their own skin color, who have killed a white person.

Such anomalies, and many others, have been studied in the framework of an American exceptionalism with regard to human rights.

I examine these issues in "L’exceptionnalisme américain et les Nations unies : le cas de la peine de mort," an essay contained in a book published last month by Dalloz, entitled Exceptionnalisme américain et droits de l’homme. The volume was co-edited by 2 scholars at the Université Libre de Bruxelles, Dr. Ludovic Hennebel, Executive & Faculty Director of the university's Institut MagnaCarta, and Arnaud Van Waeyenberge, a researcher at its Centre Perelman de Philosophie du Droit. As a whole, the collection addresses a number of these U.S. anomalies in relation to issues such as abortion, foreign policy and international criminal justice.

In my contribution to the book, I chose to show how American exceptionalism has manifested itself in relation to the death penalty at the international, as opposed to the purely domestic level. (credit for map at top, in which states that have abolished the death penalty are in blue; those that have abolished for crimes not committed in exceptional circumstances like war, green; those that abolished in practice, orange; and those that permit the penalty for some crimes, red-brown)

My article focused on the key roles played by the United States: 1st, during the process of negotiation and adoption of various U.N. instruments that mention the death penalty, such as the International Covenant on Civil and Political Rights; and 2d, more recently, with respect to the United States' position regarding numerous resolutions on capital punishment made by the U.N. Commission on Human Rights.

Three main points can be made that help sum up the rather ambiguous stance of the United States:

► The United States does not support the movement towards the abolition of the death penalty initiated by a coalition of U.N. member states (European and Latin American states); as a result, on this issue the United States stands with countries with poor human rights records (China, Iran, etc.).

► Even as it has withheld support for abolition, the United States has let other countries -- namely Egypt and Singapore -- lead a pro-death penalty group.

► The United States' position on the death penalty -- even considering that it is relatively low profile -- is in tension with its traditional approach of championing human rights at the international level.

A majority of states no longer sees the death penalty as a purely criminal legal issue, but rather as a human rights one. For this reason, the United States no longe can simply remain silent. It will find itself constantly having to justify its position.

Cruelty cognizant

Tucked in the recent ASIL Insight by our colleague, Vanderbilt’s Ingrid Wuerth, is an intriguing observation:
There’s a circuit split on whether victims of cruel, inhuman and degrading treatment may recover under the Alien Tort Statute.
Such mistreatment has long been forbidden in international instruments:
► The longstanding ban in international humanitarian law is evident in Common Article 3 of the Geneva Conventions of 1949, which "prohibit[s] at any time and in any place whatsoever ... "outrages upon personal dignity, in particular humiliating and degrading treatment;" those treaties further provide that such mistreatment of protected persons during armed conflict may constitute a grave breach punishable as a war crime.
► In international human rights law, an express ban appeared as early as the spring of 1948, when the American Declaration of the Rights and Duties of Man affirmed in Article XXVI:

Every person accused of an offense has the right ... not to receive cruel, infamous or unusual punishment.

At year’s end, the Universal Declaration of Human Rights posited an even broader proscription in Article 5:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

That proscription of what’s come to be called CIDT became binding international law when, as Article 7 of the International Covenant on Civil and Political Rights, it entered into force in 1976.
Similar formulations appear in other binding treaties, among them Article 5 of the African Charter on Human and Peoples’ Rights, Article 5 of the American Convention on Human Rights, and Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
And yet it’s an open question whether CIDT is cognizable under the Alien Tort Statute. That 18th century statute, about which we've posted frequently, states:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

The U.S. Court of Appeals for the 2d Circuit recently ruled that CIDT is cognizable in the Wiwa v. Shell Petroleum Dev. Co. of Nigeria litigation that’s the focus of Wuerth’s excellent Insight (not to mention these prior IntLawGrrls posts). But the 11th Circuit had held to the contrary in Aldana v. Del Monte Fresh Produce (2005).
At issue, Wuerth (above right) explains, is the Supreme Court’s statement in Sosa v. Alvarez-Machain (2004) that only claims possessing "‘definite content and acceptance among civilized nations’" are actionable. A court’s view of whether CIDT meets that standard seems to hinge on whether treaty provisions deemed non-self-executing – like that in the ICCPR, a treaty to which the United States is party – are nonetheless evidence of customary international law; to use the statute’s term, "the law of nations." The 2d Circuit says yes, the 11th Circuit says no.
This is no minor circuit split.

Alien Tort suits arising out of post-9/11 detention already have been filed, and more are certain to follow. Allegations of torture surely would meet the Sosa standard; however, given the United States’ recent efforts to ascribe a very narrow definition to "torture," plaintiffs may have an uphill battle proving that their treatment fits meets the standard set by a court. A lesser-included finding of "cruel inhuman or degrading treatment" would seem the logical default. If that finding is unavailable – for the reason that CIDT is not cognizable – plaintiffs will have alleged violation of a right that lacks a federal remedy.

'Nuff said

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

Nearly a third of Namibians under 5 years of age have no legal existence. ... Fifty-one million children born in 2007 were not registered, of whom 9.7 million were in sub-Saharan Africa. In Somalia, scarcely 3% have a birth certificate.
This absence of legal existence works many harms on families and children.

-- Le Monde article, written in Windhoek, Namibia, and based Progress for Children: A Report Card on Child Protection, a just-released UNICEF report. The problem described by Le Monde stands at odds with Article 16 of the International Covenant on Civil and Political Rights, which states: "Everyone shall have the right to recognition everywhere as a person before the law." The news article attributes the problem both to governmental deficiencies and to cultural practices. It also offers other sobering statistics to be found in the report; for instance: "More than a billion children now live in a country or territory plagued by armed conflict. 5.8 million of them are refugees, living outside their birth country."

Inside/Outside: Women & International Law

(My thanks to IntLawGrrls for the opportunity to contribute this guest post, based on "Feminist International Legal Studies and Thirty Years of the CEDAW Convention," a paper I delivered earlier this month at the Asian Society of International Law conference in Tokyo, Japan)

French Revolutionary feminist Olympe de Gouges (right) puzzled over whether women’s rights are best protected through general or specific norms. The record of the human rights system of the United Nations illustrates that both general and specific provisions have been of limited value to women. That fact provokes a question: Can this situation be changed at the institutional level? Consideration of key institutions may point to answers.

Women's Convention
The most wide-ranging of the international human rights treaties devoted to women is the Convention on the Elimination of All Forms of Discrimination against Women, adopted by the U.N. General Assembly in Resolution A/RES/34/180 on December 18, 1979. The Women's Convention also attempts to overcome a dichotomy between public and private spheres of activity observed in international law, in which law is used to regulate ‘public’ areas such as politics or education, but leaves ‘private’ areas such as the family unregulated. The Women’s Convention, for example, explicitly affirms women's right to equality in a limited way within the family, unlike human rights instruments such as the Universal Declaration of Human Rights.
One striking omission from the Women’s Convention is the prohibition of violence against women. This may be because, at the time of the treaty’s adoption, the global extent of violence against women was not well-understood, or because violence was not analysed as a matter of discrimination. The Committee on the Elimination of Discrimination Against Women, the Women’s Convention monitoring body, endeavored to fill this vacuum. In 1992 CEDAW adopted a General Recommendation on Violence against Women, stating:

Gender-based violence is a form of discrimination which … impairs or nullifies the enjoyment by women of human rights and fundamental freedoms.

Despite (or perhaps because of) its broad coverage, the Women’s Convention is widely disregarded.
It has attracted an impressive number of parties -- 186 to date. But many states have made broad reservations to provisions of the treaty, which effectively undermine their commitment to it. Most of these reservations are based on assertions of culture and religion. Some states have objected to some of the wide reservations, and CEDAW has probed reserving states on this issue. Under the international legal regime governing reservations, however, no more direct sanctions can be used to pressure states to withdraw their sweeping reservations.

CEDAW Optional Protocol
Adopted in 2000, the Optional Protocol allows for both individual communications to CEDAW and an inquiry procedure in cases of systematic and widespread violations of the treaty. These mechanisms have been invoked much less frequently than comparable provisions in other human rights treaties. As an example, CEDAW has made a single inquiry under Article 8 of the Optional Protocol in July 2004 dealing with violence against women in Mexico. The Committee has adopted views or made decisions on 11 communications since 2004, and of these, has found 4 breaches of the Convention. In contrast, the Human Rights Committee has considered 1279 registered communications with respect to 77 countries under the Optional Protocol to the ICCPR, and recorded over 250 decisions/views during the same period.

CEDAW Committee
I should note the significant role played by the CEDAW Committee. It has been very active in developing jurisprudence under the Women’s Convention, emphasising direct and indirect discrimination against women and focussing on the reality of women’s lives and the need for structural change, rather than simply formal equality.

Feminism's Paradox
Overall, however, the development of international human rights standards dealing with women illustrates a strategic dilemma. It is the dilemma that Olympe de Gouges identified in the 18th century as the paradox of feminism: whether women’s rights are best protected through general norms or through specific norms applicable only to women. This dilemma pervades modern international legal responses to the unequal position of women. The attempt to improve women’s lives through general laws can allow women’s concerns to be submerged in what are deemed more global issues; however, the price of creating separate institutional mechanisms for women has been the building of a women’s ghetto with less power, resources, and priority than the ‘general’ human rights bodies.
Attention to questions of women and gender in the U.N. human rights system has been haphazard. At best, there is attention to the position of women in particular contexts, mainly in statistical terms. But there has been little understanding of the way in which stereotypes about sex and gender roles can affect the human right in question. Violations of women’s human rights are typically presented as an aspect of women’s inherent vulnerability, as if this attribute were a biological fact.
Olympe de Gouges’ conundrum about the best strategy to pursue women’s rights cannot be easily resolved. Women are always likely to struggle for recognition of their rights, whether they operate within general or women-specific agencies. The way ahead is to work through all available institutions, to lessen the disparity between the lives of women and men across the globe. Breaking away from the limited equality paradigm endorsed by international law would be a good beginning.
Thirty years after the adoption of the Women’s Convention, and after 20 years of feminist scholarship in international law, we can observe that feminist vocabularies have arrived in international law. I have suggested that the vocabularies can be hollowed out by bland repetition and deployed to reinforce the status quo. However, the language of justice and international law contains radical potential, even if it is realised only occasionally. As Sally Engle Merry (right) has observed, international human rights law in particular

is always in danger of escaping its bounds and working in a genuinely emancipatory way.

The most valuable aspect of the Women’s Convention is the cultural change it can encourage through identifying and defining problems in an international forum.

Bucking the Trend on Pre-Trial Detention

We've blogged a bit before about the "newest tribunal on the block," the Special Tribunal for Lebanon (building at right) devoted to prosecuting political assassinations and acts of terrorism in Lebanon.
The Tribunal has been convened with Professor Antonio Cassese (below left), former President of the International Criminal Tribunal for the former Yugoslavia and Chair of the International Commission of Inquiry for Darfur, as President (prior posts). It officially started to function on March 1, 2009. (Controversially (prior IntLawGrrls post), many of the other judges have been kept anonymous, putatively for their safety, raising the specter of faceless judges presiding over star chambers. Only four of the judges are Lebanese).

Later in the month of March, the Tribunal's Prosecutor requested the Lebanese authorities to undertake two actions: pursuant to Article 4 of the Tribunal’s Statute, to defer their investigation of the lethal attack against Rafik Hariri; and to hand over court records, any probative evidence, and the names of suspects. Article 4 reflects the system of primacy that characterizes relations between states and the 2 ad hoc international criminal tribunals, and that stands in contrast with the principle of complementarity that governs the International Criminal Court. Article 4 states:

Upon the assumption of office of the Prosecutor, as determined by the Secretary-General, and no later than two months thereafter, the Special Tribunal shall request the national judicial authority seized with the case of the attack against Prime Minister Rafiq Hariri and others to defer to its competence. The Lebanese judicial authority shall refer to the Tribunal the results of the investigation and a copy of the court’s records, if any. Persons detained in connection with the investigation shall be transferred to the custody of the Tribunal.

The Tribunal issued its first ruling in April of 2009, releasing from pre-trial detention four individuals -- Jamil Mohamad Amin El Sayed, Ali Salah El Dine El Hajj, Raymond Fouad Azar, and Mostafa Fehmi Hamdan -- who had been detained by Lebanese authorities prior to the establishment of the Tribunal. The Rules granted the Prosecutor, Canadian Daniel A. Bellemare (left), limited time to bring charges against the four individuals, two of whom are Generals, two others, Brigadier Generals. But Bellemare determined that even with the Lebanese information, he had not yet marshaled sufficient evidence to justify continued detention; thus he requested the release of the four. (Indeed, apparently several witnesses modified their statements, and one key witness retracted his statement incriminating the accused (See here, para. 37)).

In ruling on the Prosecutor's decision to release the individuals, the Special Tribunal (at para. 22, note 7) cited jurisprudence from the Human Rights Committee, the body charged with interpreting the International Covenant on Civil and Political Rights, for the proposition that

pre-trial detention should be the exception.

See Human Rights Committee, Hill v. Spain, Communication No. 525/1993, para. 12.3 (April 2, 1997).

The Special Tribunal for Lebanon concluded that the Prosecution did not make “a manifest error of judgment in exercising his discretionary power” and approved the release. The opinion is available here.

This ruling is notable when compared to the practice before the Extraordinary Chambers in the Courts of Cambodia where -- as we've discussed here, here, and here -- pre-trial detention, even for octogenarians, appears to be the norm.

On networking

Serendipity:
Soon after publishing yesterday's "a little networking can't hurt" post, we received this comment giving a bit of backstory on the news flash, posted by IntLawGrrl Stephanie Farrior earlier this month, that our colleague Dinah Shelton was elected to the Inter-American Commission on Human Rights:

This was an all IntLawGrrls effort -- we hosted a diplomatic campaign luncheon for Dinah at Johns Hopkins SAIS with a number of the Caribbean and Latin American delegates, organized by IL program coordinator Tiffany Basciano, GWU Law '07, to help mobilize the votes. It is key to celebrate the merits of great candidates with some old door-to-door canvassing, to get more women in positions of note in international organizations.

The commenter, our colleague Ruth Wedgwood, not only is Edward B. Burling Professor of International Law and Diplomacy and Director of the International Law and Organizations Program at the Paul H. Nitze School of Advanced International Studies (SAIS), Johns Hopkins University, Washington, D.C., but also is a longtime member of the Human Rights Committee, which monitors state party compliance vel non with the International Covenant on Civil and Political Rights. Ruth's reminder that good "old door-to-door canvassing" is key to success is a point very well taken. Heartfelt thanks!

Accountability explored

Kudos to our colleague, Stanford Law's Allen S. Weiner (below left), for dispassionate analysis in The Torture Memos and Accountability, a recent ASIL Insight. (Indeed, down-the-line examination is a hallmark of this feature, making Insights an invaluable resource for anyone trying to separate facts/law from spin on issues of international law). The piece is most timely, given both the efforts to downsize detainee population at Guantánamo about which Naomi Norberg posted yesterday, and the New York Times' lead story yesterday, which asserted: "None of the Justice Department lawyers who reviewed the interrogation question argued that the methods were clearly illegal."
Addressing U.S. criminal law in his ASIL Insight, Allen:
► Explained the significance of the "reasonable reliance" defense of the common law, codified at Model Penal Code § 2.04(3)(b) and accepted in prior federal criminal law precedents. This defense could protect interrogators who, pursuant to Office of Legal Counsel opinions authorizing their behavior, committed acts amounting to torture under the Convention Against Torture and its domestic implementing statute, and that this possibility may underlie the declaration of President Barack Obama that the United States would not seek to prosecute such interrogators. (Prior IntLawGrrls posts here, here, here, and here.) (photos above right from video of interrogation of then-16-year-old Omar Khadr, detailed here and here)
► Confirmed our own conclusion that Obama's declaration does not shield persons who did not rely on the OLC memos, for the simple reason that they wrote those memos. There is no automatic bar to prosecution of lawyers for conspiracy or aiding and abetting torture, Allen explained. But he warned that any such prosecution "could prove difficult," for it would require proof beyond reasonable to doubt "that the purpose of the lawyer's advice was to facilitate conduct that the lawyer knew to be criminal," and such proof likely would be hard to come by.
Turning then to the international arena, Allen:
► Stated on the one hand that if it were refusing to prosecute "on policy grounds" alone the United States might stand in breach of the obligation under Article 7 of CAT -- which it assumed voluntarily when it ratified that anti-torture treaty in 1994 -- to try or extradite a person said to have committed torture. On the other hand, he argued, there may be no breach if the "reasonable reliance" defense grounds the decision.
Other legal considerations yet may prove pivotal. Thus Allen:
► Cited Common Article 3 of the 1949 Geneva Conventions and the statute implementing them, as well as other U.S. laws proscribing conduct the United States admitted occurred during interrogations. To this could be added the International Covenant on Civil and Political Rights, a treaty to which the United States has been a state party since 1992 and Article 7 of which also unequivocally prohibits subject to "torture or to cruel, inhuman or degrading treatment or punishment."
► Noted the potential for other accountability mechanisms in places like Spain, and concluded by reminding that

apart from the question of state responsibility on the part of the United States, it is possible that individual interrogators or lawyers may be subject to criminal prosecution outside the United States.

(The Spanish avenue may face closure, however, as we've posted.)
The Insight underscores that the final chapter in the story of accountability for post-9/11 counterterrorism practices is far from written.

Cuba signs on to the UN human rights regime

It took only a few days for Raúl Castro (right) to show the world he’s taking Cuba in a new direction: less than a week after taking office, Cuba met both Cuban and international community demands and signed both the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). Fidel Castro had long opposed signing both conventions, stating in 2001 that the ICESCR "could serve as a weapon and a pretext for imperialism to try to divide and fracture the workers, create artificial unions, and decrease their political and social power and influence." Cuba’s foreign minister Felipe Pérez Roque claimed Friday that Cuba had nevertheless guaranteed the rights the agreements are designed to protect from the day Castro took power in 1959. A claim hard to square with the fact that Cuba (flag at left) is still a strictly one-party country that continues to oppose independent trade unions and limits citizens’ travel, while the ICESCR requires, among other things, that countries ensure the right form and join trade unions and the ICCPR guarantees rights to self-determination, peaceful assembly, freedom of religion, privacy, freedom to leave a country and equal protection before the law. The move to sign the documents was apparently prompted by the new Human Rights Council’s dropping Cuba from its list of countries whose rights records warranted investigation. The US opposed this decision, which indeed flies in the face of the “illegal but tolerated” opposition group Cuban Commission on Human Rights and National Reconciliation’s estimate that there are currently 230 political prisoners in Cuba and Amnesty International’s count of 58 prisoners of conscience or more. Human rights activists say there is still a long way to go, but Raúl Castro has recently indicated that he may allow greater freedom of speech. Signing on to the covenants is a move in the right direction.

Enforcement through specificity?

The International Convention for the Protection of All Persons from Enforced Disappearance, adopted by the General Assembly last December and opened for signature in February, may represent the future of international human rights law – enforcement through specificity. The constitutive elements of enforced disappearance – arrest and detention by government agents combined with concealment of the person’s whereabouts – violate several provisions of the ICCPR. Moreover, enforced disappearance has already been labeled a crime against humanity (where widespread and systematic) under the ICC statute. The enforced disappearance treaty makes the interesting move of labelling and targeting a certain pattern of human rights violations, thus creating very specific norms that might be used by advocates to overcome the enforcement problems faced by more general human rights treaties. In addition, the Convention’s enforcement committee has the ability to hear urgent claims, to undertake field investigations, and to bring widespread and systematic enforced disappearance to the attention of the General Assembly. Having struggled to find specific meaning in the very general provisions of the ICCPR, this strikes me as a promising way forward for the international human rights movement – more specificity, combined with creative enforcement mechanisms. But of course, the more specific and enforceable the treaties get, the harder it may be to achieve the near-universal ratification of more vaguely-worded treaties like the ICCPR. The enforced disappearance treaty awaits 20 ratifications to take effect; as of last count, it had 57 signatories – with the notable exception of the United States as well as nations traditionally more friendly to international law such as Germany, Italy, Spain, the Netherlands, and the United Kingdom.

Detention and Immigrant Children: Take Two

Immigration raids throughout the country earlier this month forcibly separated children of undocumented workers from their parents. Senator Dianne Feinstein asked DHS Secretary Chertoff about the Department's actions that reportedly left some young children stranded at day care centers and others without adequate adult oversight for days at a time:

[N]ews reports detail that one baby, who was breast-feeding, had to be hospitalized for dehydration because her mother remained in detention.

Leaving aside the Convention on the Rights of the Child (for reasons explained here), this practice of arbitrarily denying parents access to their children appears to violate Article 17 (right to family life) of the ICCPR, a treaty that the US has ratified, albeit as non-self-executing. The remedy? Litigation and advocacy efforts might draw authority from the international human rights angle, and if domestic remedies fail, Mexico and others might think about reviving ICCPR Article 41, which authorizes state-to-state complaints before the Human Rights Committee.