Causality and Responsibility in the Taylor Judgment

Yesterday’s post by my colleague Jennifer Easterday details how Charles Taylor was not found responsible under the controversial mode of liability known as ‘joint criminal enterprise.’ Taylor was also not convicted of superior responsibility under Article 6(3) of the Special Court’s Statute. So how was Taylor held responsible for crimes committed in a neighboring country, and how does his role relate to the narratives of the Sierra Leonean conflict told through the Special Court’s judgments in other cases?
Taylor was convicted through two modes of liability under Article 6(1) of the Special Court Statute: ‘aiding and abetting’ and ‘planning.’ Trial Chamber II found that Taylor played an active role in providing material support to the Revolutionary United Front (RUF) rebels in Sierra Leone. The lengthy judgment (available here) details his assistance with shipments of arms and ammunition, communication, and logistical support, among other things. While extensive evidence of Taylor’s role in aiding and abetting the crimes was heard during the course of the trial, the Trial Chamber’s findings regarding his role in planning the notorious 1999 invasion of Sierra Leone’s capital appears to be one of the judgment’s more controversial conclusions. Taylor’s responsibility for the atrocities carried out during the invasion is based on his well-established connections to the RUF, yet the RUF’s role in the Freetown attack was found to be minimal in two related judgments.

The Planning Conviction
The Chamber found that in November of 1998, Charles Taylor and RUF leader Sam Bockarie made a plan in Monrovia, Liberia, to carry out an attack that would culminate in the invasion of Freetown. Bockarie then returned to Sierra Leone and shared the plan with rebel commanders. (map credit) The judgment finds that the RUF and Armed Forces Revolutionary Council (AFRC) were not ultimately under Taylor’s ‘effective control,’ which would have been a necessary element in finding Taylor liable for superior responsibility (para. 6991). Instead Taylor was found individually responsible for planning the Freetown invasion, a determination made largely on the basis of hearsay testimony from several insider witnesses relaying what Bockarie told them Taylor had said.

Linguistic Agency
Although the sentencing judgment acknowledges that Taylor’s conviction for planning is ‘limited in scope’ (para. 101), the Chamber relies heavily on two phrases recounted by these key witnesses: first, that Taylor claimed the Freetown operation should be ‘made fearful’, and second, that Taylor instructed Bockarie to use ‘all means’ to capture Freetown. These two phrases were emphasized several times in the Chamber’s live reading of the summary judgment as evidence that Taylor intended the commission of grave crimes. In the absence of more detailed evidence of the plan and its implementation, Taylor’s reported utterances seem to be given great causal weight.

Joint criminal enterprise in the Taylor judgment

This post is part of the ongoing series about the Special Court for Sierra Leone (SCSL) trial of former Liberian president Charles Taylor (see prior posts here). His trial and conviction has generated wide debate, scholarship and commentary about what it has done for Sierra Leone, Liberia, the victims of those conflicts and international (criminal) law jurisprudence.
For me, though, the judgment was notable as much for what it did not do as for what it did. The Trial Chamber did not convict Taylor on the basis of the joint criminal enterprise (JCE) theory of liability, convicting instead on aiding and abetting and planning. JCE was a central issue in the Taylor trial, and the core of the prosecution’s case. It formed the sole basis for the Trial Chamber’s decision denying the defense motion for acquittal on the basis of insufficient evidence at the end of the prosecution’s case. That the Trial Chamber did not find Taylor guilty on this mode of liability was something of a surprise, but even more surprising was the paucity of discussion on JCE in the final judgment.
JCE has been a hotly debated concept in international criminal law, with critics arguing that it leads to guilt by association. The JCE debate reached new heights, however, over how the SCSL has applied (or mis-applied) JCE.
 JCE was also highly contentious in the Taylor trial (see previous posts here and here). In a tardy decision—given after the prosecution had rested its case—the majority of the Trial Chamber found that the prosecution had properly pled JCE, but also “identified” a common purpose of terrorizing the civilian population, a specific intent crime (Taylor Judgment, 6898). This decision was upheld on appeal. The common purpose identified by the Trial Chamber replaced what the prosecution had characterized as a criminal “means” (i.e. that the common plan involved the crimes) with a criminal “objective” (that the common plan amounted to the crime of terrorism, which involved the other alleged crimes). This narrower interpretation of the pleaded JCE seems to have been part of what lies behind the lack of conviction on JCE.
The Trial Chamber judgment does not provide much rationale for its decision on JCE or develop the SCSL’s JCE jurisprudence in any meaningful way. In a scant seven paragraphs of explanation (impressive when considering the judgment contains 7000 paragraphs), the Chamber found that the prosecution had failed to prove Taylor participated in a common plan of terrorizing the civilian population.

Magic, Tintin

Among the hats this 'Grrl wears is Editor of the International, Transnational & Comparative Criminal Law eJournal, a compilations of abstracts, with links to full papers, that is part of the SSRN Legal Scholarship Network. As such I have the opportunity to review abstracts before they're generally available.

A recent one particularly caught my eye. The author is Dr. René Provost (right), Associate Professor of Law and founding Director of the Centre for Human Rights and Legal Pluralism at McGill University in Montreal. The title of the paper -- "Magic and Modernity in Tintin au Congo (1930) and the Sierra Leone Special Court" -- overtly links contemporary international criminal justice with a colonial-era book recently the subject of a banning effort. (And see here.)
Here's the abstract:

'Tintin au Congo was the second album written by Hergé in the series that has been hailed to have given birth to the graphic novel genre. It tells the story of the encounter between a young white European reporter and Africa, as imagined by a Belgian author living in Brussels in 1930. Likewise, the judgments of the Sierra Leone Special Court constitute the narrative of an encounter, this time between the international legal community and the grim realities of the civil war that ravaged that African country more than a decade ago. Both encounters can be described as intercultural collisions: much of the original appeal of Tintin au Congo rested in its caricature of African society as backward and in every respect inferior to European civilisation; in the decisions of the Sierra Leone Special Court, there is a similar stark contrast between the culture of international criminal law as the embodiment of justice and humanity on the one hand, and the irrational descent into anarchy and senseless violence on the other. These narratives stand apart in their origins, their style, their aspirations, and yet converge in their intersection of modernity and barbarity. A study of the original Tintin au Congo as published serially in a Brussels newspaper in 1930 and of the transcriptions of the hearings of the Civil Defence Forces Trial in Sierra Leone reveals that, for each, magic is taken as a key to decipher afromodernity and make it comprehensible for the imagined, civilised, western reader. In doing so, each narrator constructs its own identity, in one case European and civilised Belgium, and in the other the universal and rational international criminal law regime.'

A provocative look at culture past and present.

Write On! International fact-finding, in Florence

(Write On! is an occasional item about notable calls for papers)

This news via e-mail from Peking University Law Professor YI Ping (right), Senior Adviser at FICHL, the Forum for International Criminal and Humanitarian Law:
Organizers are seeking papers to be presented at the annual LI Haopei Seminar, to be held May 20, 2013, in Florence, Italy. The topic this year is "Quality Control in International Fact-Finding Outside Criminal Justice for Core International Crimes."
At this 2013 seminar, Richard J. Goldstone, former Chief Prosecutor of the International Criminal Tribunals for Rwanda and for the former Yugoslavia, will deliver the the 2013 LI Haopei Lecture. The lecture series is named after a Chinese international law expert who died in 1993 while serving as a Judge at the ICTY. Also scheduled to speak are European University Institute Professor Martin Scheinin and DePaul University Law Professor Emeritus M. Cherif Bassiouni.
The event is a joint project of FICHL, the European University Institute, and Peking University International Law Institute.
With regard to the theme, organizers write:

Universal jurisdiction: Swiss court denies immunity

Yesterday, my former employer TRIAL (Swiss Association against Impunity) made headlines after the highest Swiss criminal tribunal issued a landmark case on immunity and universal jurisdiction: The Federal Criminal Court found that an Algerian former defense minister does not enjoy immunity for war crimes allegedly committed during his tenure.

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Khaled Nezzar, who was arrested in Geneva last October, challenged the proceedings against him and argued that he was entitled to immunity. In its decision released yesterday, the Federal Criminal Court emphasized that immunity is not available for international crimes such as war crimes, crimes against humanity, torture or genocide. The tribunal took the view that the serious nature of such crimes implies that all states must ensure that such conduct is effectively addressed, independent of other rules of international law or the attitude of other states.
The full text of the decision (in French) and more background information are available on TRIAL’s website.
This is the most relevant passage, from page 26 of the judgment:

'… il serait à la fois contradictoire et vain si, d'un côté, on affirmait vouloir lutter contre ces violations graves aux valeurs fondamentales de l'humanité, et, d'un autre côté, l'on admettait une interprétation large des règles de l'immunité fonctionnelle (ratione materiae) pouvant bénéficier aux anciens potentats ou officiels dont le résultat concret empêcherait, ab initio, toute ouverture d'enquête. S'il en était ainsi, il deviendrait difficile d'admettre qu'une conduite qui lèse les valeurs fondamentales de l'ordre juridique international puisse être protégée par des règles de ce même ordre juridique.'

Roughly translated:

'… it would be both contradictory and futile to, on the one hand, fight against these gross violations to the most fundamental values of humanity and, on the other hand, to accept a broad interpretation of the rules of functional immunity (ratione materiae) that would benefit former strongmen or other officials and that would preclude any investigation from the outset. If this were the case, it would be difficult to accept that conduct harming the fundamental values protected by the international legal order would be protected by immunity rules of that same legal order.'

The significance of the decision by the Federal Criminal Court goes beyond the Swiss national jurisdiction. As TRIAL's press release states, the judgment ‘opens up significant possibilities in the fight against impunity based on the principle of universal jurisdiction’. According to Philip Grant, director of TRIAL,

'[T]his decision sets a ground-breaking precedent that will have a significant impact beyond our borders and gives a very strong signal to executioners: in the future, they can no longer hide behind their official position to commit atrocities.'

The case originated from a denunciation by TRIAL and a complaint by two Algerian refugees residing in Switzerland. Nezzar is accused of serious violations of international humanitarian law committed during the early years of the Algerian civil war. The decision released yesterday implies that the investigation against Nezzar will continue and a war crimes trial might eventually take place in Switzerland.
Previously, a Swiss criminal court convicted Fulgence Nionteze, a Rwandan national present on Swiss territory for war crimes committed in the context of the Rwandan genocide.
After IntLawGrrl Naomi Roht-Arriaza’s excellent ASIL Insight about the disappointing prevaricación decision of the Spanish Supreme Court (prior post), the decision by the Swiss Federal Criminal Court is a welcome reminder of the role domestic tribunals can play in the fight against impunity.
Congratulations, TRIAL!

What's wrong with this picture?

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The news itself is tragic.
Protracted violence is now so intense in Syria that this weekend a representative of the International Committee of the Red Cross told a Reuters reporter:

"There is a non-international armed conflict in Syria."

That pronouncement goes further than those of the past, in which the ICRC deemed conflict localized rather than nearly countrywide.
But what most caught this reader's eye was the legal implication drawn from that pronouncement.
The article states that a "threshold" has now been crossed, one that now permits "future prosecutions for war crimes." The author links this threshold to the criteria for NIAC -- acronym for "armed conflict not of an international character," to quote Article 3 common to the four 1949 Geneva Conventions on the laws of war.
All this is correct as far as it goes.
But it does not go far enough, and so leaves the risk of inaccurate inference.
What's missing from this account is the fact that international prosecutions do not depend on Geneva rules alone. The early requirement of a "war nexus" was broken long ago, at Beth Van Schaack explained in this article.  Crimes against humanity thus may occur -- may be, and are, prosecuted internationally -- even absent armed conflict. Crimes against humanity are certain acts "committed," to quote Article 7 of the Statute of the International Criminal Court,

'as part of a widespread or systematic attack directed against any civilian population'.

There's evidence that such attacks have taken place in Syria throughout the last year and a half. That means the "threshold" for international investigation and prosecution was crossed a long time ago.
What hinders peace and accountability in Syria is not the presence of some legal barrier. As we've posted in the past, what hinders peace in Syria is the absence of geopolitical will.

Spectacles of justice: human rights and film

(My thanks to IntLawGrrls for the opportunity to contribute this introductory post, along with the Look On! post below) 

THE HAGUE – The media, the moving image and international criminal justice are increasingly entangled. 
Moving images are frequently employed prior to atrocities as forms of propaganda, dehumanising ‘the Other’ in preparation for future atrocity.  
During conflict, war reporters transmit images of war crimes onto our screens. 
These images, along with those captured by civilians, are later used as evidence leading to investigations and indictments. At the trial stage, courtrooms full of television screens play footage of atrocities, and proceedings are streamed to virtual audiences. Eventually, the conflict and the trials themselves become transformed into documentary or feature films with varying degrees of accuracy. From a theoretical perspective, war crimes trials and motion pictures are linked through their production of spectacles.
Since the 1930s, it has been argued that the camera and film have altered our ‘ways of seeing’. It has even been argued, most prominently by the French theorist Guy Debord, that cinema has created “spectacle societies” accustomed to consuming and learning through visual imagery and entertainment. In legal and other academic disciplines, war crimes trials have long been considered by critics to be ‘show trials’ (as argued by Hannah Arendt in the context of the Eichmann trial). International prosecutions of those responsible for war crimes, crimes against humanity and genocide have functions beyond findings of guilt and innocence, encompassing the goals of making a historical record, ‘truth telling’, memorializing and other outreach objectives. 

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It is due to these purposes that the ‘affinities between the didactic aims of law and documentary film’ have been recognised in scholarship on war crimes trials. 
In his book The Memory of Judgment: Making Law and History in the Trials of the Holocaust (2001), Amherst Professor Lawrence Douglas has illustrated the role ‘film plays in transforming historic trials into historic events’. Douglas argues that documentaries, such as those on the Eichmann trial in Israel, serve to legitimise the trials through reinforcing of collective memory of mass atrocity. However, in other instances, motion pictures challenge or criticise legal proceedings, or even, the lack thereof. Cinema can draw attention to narratives and discourses which have been silenced or marginalised by official legal proceedings. This is especially true with regard to gendered harms in conflict which have been subject to a ‘monumental oversight’ in legal proceedings but which appear in a number of films. Movies therefore not only reinforce the dominant discourse of the law, but also provide forms of ‘outsider jurisprudence’, allowing audiences to judge fictional or real legal cases and systems. 
My research aims to explore the interaction and interrelation of international criminal justice and cinema in greater detail.

I first became interested in this relationship during my time as a staff attorney at Women’s Link Worldwide, a nongovernmental organisation with offices in Madrid and Bogotá. I was tasked with co-authoring a manual on gender crimes in Argentina, later launched in Buenos Aires by Luis Moreno Ocampo, at that time the Prosecutor of the International Criminal Court. By way of background and in order to familiarize myself with the context in which crimes against humanity were perpetrated in Argentina, I turned to mediums of popular culture, including cinema. La Historia Oficial (1985) (well known to English-speaking audiences as The Official Story), La Noche de los Lápices (1986) (English title Night of the Pencils), Un muro de silencio (1993) (A Wall of Silence or Black Flowers) and Garage Olimpo (1999) (Olympic Garage), are just some of the movies which have been made since the end of the ‘Dirty War’ that deal with gender crimes perpetrated by the military junta. 
I found that cinema is a great didactic tool for students of human rights law, as recognized by initiatives such as Movies that Matter and Cinema for Peace. 
As part of my data collation for my research, I recently began a blog called Human Rights Film Diary, to keep a record of the movies that I’ve watched and will watch over the course of the next three years. I am using the next three months as an intern of the ICC to review films in my own personal collection and the ICC film library. 

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The ICC has an extensive film collection, with over 120 movies and documentaries related to human rights abuses and international criminal justice. Some of these documentaries are made by international tribunals as part of their outreach function and strategy. Others are Hollywood cinema classics, such as To Kill a Mockingbird (1962), Inherit the Wind (1960), and Judgment at Nuremberg (1961). Many of the films would be considered as ‘world cinema’, set in different countries, made in different locations and with a huge in the budget.
The ICC also has an informal cinema club, the ‘Ark film club’, where staff members and interns can gather to watch movies. The initiative first started in 2005 in the Office of the Prosecutor and has since expanded to include the whole Court.
It is my aim to watch and review the 120 movies over the next 90 days as part of my research here at the ICC. All my reviews will appear at my blog, which is now listed in the "connections" column at right. Beginning with the Look On! post below, many of my reviews will be cross-posted here at IntLawGrrls. I am delighted to present them to you, and welcome any comments you may have on the reviews or more generally on movies and human rights law. 
In light of the historic conviction earlier this month of Jorge Rafael Videla for the systematic kidnapping of children in Argentina, I invite you to read the post below, which I wrote just before delivery of this verdict. It reviews La Historia Oficial/The Official History, the movie which first made me aware of the crime of which Videla was found guilty.

Thematic Prosecution of Sex Crimes

The Forum for International Criminal and Humanitarian Law has recently released two books on the international prosecution of sex crimes, entitled Thematic Prosecution of International Sex Crimes and Understanding and Proving International Sex Crimes.
The books, published by Torkel Opsahl Academic EPublisher and edited by Dr. Morten Bergsmo, Senior Researcher at the University of Oslo Faculty of Law, emerged from seminars , about which IntLawGrrl Beth Van Schaack previously posted, that brought together experts to discuss the legal, philosophical and practical issues involved in prosecuting international sex crimes in both international and national courts.
An important purpose of the books is to assist criminal justice personnel contemplating or pursuing sex crime prosecutions. Contributions to the volumes therefore examine existing legal standards and theoretical approaches but also suggest ways to improve upon current theory and practice.
My contribution to the volume on Thematic Prosecution, entitled "An Expressive Rationale for The Thematic Prosecution of Sex Crimes at International Criminal Courts", builds on an essay I wrote for a symposium on Women and International Criminal Law organized by Beth Van Schaack along with IntLawGrrls Diane Marie Amann and Jaya Ramji-Nogales. In this chapter, I examine the philosophical justifications for giving priority to sex crime prosecutions at international courts.
Despite the increased focus on sex crime prosecutions in recent years, no effort has been made, either at the tribunals or in the scholarship, to develop such justifications. Those who prosecute and write about sex crimes generally assume that international courts should focus particular attention on such crimes. Commentators sometimes point to the practical and institutional benefits of thematic sex crime prosecutions. Such prosecutions can, for example, increase an institution’s capacity to address sex crimes by developing relevant investigative and prosecutorial expertise and expanding the applicable law. But a prior normative question must be addressed:

Why should international courts give priority to sex crimes when allocating scarce resources?

I argue that the philosophical grounding for thematic sex crime prosecutions must be found in the underlying purposes of international criminal courts. While the moral justifications of international prosecutions are widely disputed, there are four primary contenders: retribution, deterrence, restoration, and expression.
In the first part of the chapter, I explain why none of the first three theories precludes giving priority to sex crime prosecutions. In fact, each theory supports such prosecutions, at least under some circumstances. I then explain that the strongest justification for giving priority to sex crimes is found in the expressive rationale for international criminal law. In other words, if international criminal law aims to express global norms it should often seek to promote the norms against sex crimes even at the expense of other important norms. The need for such special emphasis lies in the history of under-enforcement of sex crimes in both national and international fora as well as in the discriminatory expression inherent in the crimes themselves.

How Serious Are International Crimes?

With the ICC celebrating its ten-year anniversary and welcoming a new prosecutor, this is an appropriate time for some soul searching. In my draft article, How Serious Are International Crimes? The Gravity Problem In International Criminal Law, I seek to contribute to that process. The article demonstrates that the concept of gravity is the central justification for the exercise of international criminal jurisdiction. International crimes are believed to be exceptionally serious and thus worthy of international adjudication. In fact, however, international criminal law is expanding to include increasingly less serious types of harms and levels of culpability. Ironically, it is precisely the idea of gravity – an elastic and elusive idea – that has facilitated this expansion. Ambiguity in the concept of gravity has enabled judges and prosecutors to push the boundaries of their mandates outward. Moreover, as the article shows, this trend is likely to continue in light of the wide-ranging goals of international courts and the institutional and individual incentives at work.
It is easy to celebrate the expansion of international criminal law – a broader scope for the regime presumably makes it a more powerful tool for curtailing impunity. Yet expansion also raises concerns related to state sovereignty and defendants’ rights. When the ICC exercises its jurisdiction over the objection of the state where crimes occurred, the justification for this infringement on sovereignty is that the crimes at issue are so serious that the international community cannot tolerate non-prosecution. The interests of the international community in prosecution are thus privileged over the state’s interests, even when the latter include a desire to pursue other transitional justice mechanisms such as truth commissions. Similarly, international prosecutions privilege criminal adjudication over defendants’ interests by, for example, refusing to apply statutes of limitations. While the international community may be justified in privileging accountability over competing interests in cases of exceptional gravity, in more marginal cases the balance can weigh against adjudication. As a prescriptive suggestion, therefore, the article urges that prosecutors and judges re-conceptualize gravity to require an interrogation and balancing of competing interests.

Go On! National courts/intlaw crimes @ Amsterdam

(Go On! is an occasional item on symposia and other events of interest)

Amsterdam's historic Trippenhuis, the permanent headquarters of the Royal Netherlands Academy of Arts and Sciences, will be the site of a conference on a subject about which frequently post, most recently here and here.
The conference, titled Pluralism v. Harmonization: National Adjudication of International Crimes,will be held this June 14 and 15.
Speakers will examine international criminal law "fragmentation at the international and national level," write organizers, including our colleague, Professor Elies van Sliedregt (below right), Dean of the Faculty of Law at Vrije Universiteit Amsterdam. The program promises many distinguished speakers in addition to Elies and her law faculty colleague Barbora Holá; among them, Andrew Cayley, International Co-Prosecutor at the Extraordinary Chambers in the Courts of Cambodia, and Dr. Sarah Nouwen, University Lecturer in Law and Fellow of the Lauterpacht Centre and Pembroke College at the University of Cambridge, England.
Topics to be addressed:
► To what extent is harmonizing international criminal law desirable, or even realistic? How does a pluralistic approach contribute?
► How to deal with the tension between collective action and individual responsibility when prosecuting international crimes?
► To what extent does the principle of complementarity as laid down in Article 17 of the Rome Statute of the International Criminal Court require adherence to international standards; does this also affect procedural law, in particular domestic laws of evidence?
► Given fact-finding impediments and evidentiary challenges when dealing with core international crimes, can national courts be of guidance to international criminal tribunals; or vice versa?
Details here; program here.
Register here before the June 4 deadline.

'Nuff said

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

'[C]losely following the laws of war is in our strategic interest. It undermines those who accuse the U.S. of hypocrisy and helps win the support of those who hold the same ideals.
'The best course for the United States – and its NATO allies – is to pledge this weekend in Chicago to more strictly abide by the laws of war they have created.'

–  Reuters columnist and Pulitzer Prizewinner David Rohde, in  Ending NATO’s double standard, a commentary that urges the United States to join 121 other countries in ratifying the Rome Statute of the International Criminal Court, among other acts that would help to take the sting out of complaints that it's hypocritical on matters of international criminal justice. Rohde's piece coincides with the Chicago summit meeting of member states of NATO, the 28-state North Atlantic Treaty Organization. The summit, in President Barack Obama's hometown, runs through Monday.

Attending to the language of justice

(Part 2 of a 2-part series of introductory posts; Part 1 is here)

By the beginning of the 1990s, a new language of “justice” shaped discourses in new international and transnational spheres that were different from earlier periods.
Academics, practitioners, victims, and lawyers all asked:
► What, exactly, is justice?
► What is the relationship between justice and human rights?
► What is the relationship between justice and law?
International Criminal Court Prosecutor Luis Moreno-Ocampo (left) sought to establish a workable frame through to initiate and successfully prosecute cases in a way sensitive to local cultural realities, without sacrificing the court’s mission. But as he realized, the ICC must be committed both to the prosecution of crimes – that is, “the most serious crimes of concern to the international community as a whole,” as Article 5 of the Rome Statute puts it – and to the shifting, often contested terrain within which the Court was forced to operate.
The Prosecutor found an opening in Article 53 of the Statute, which outlines the conditions under which the Court can decline to begin a prosecution. Among the conditions, the Article creates an ambiguous limiting condition around the “interests of justice.”
As George Mason University anthropologist Mark Goodale and I write in our introduction to the 2011 essay collection we co-edited, Mirrors of Justice: Law and Power in the Post-Cold War Era, Article 53 fails to specify:
► What kind of “interests” the Court should consider; and
► For what kind of “justice” these unarticulated interests work.
The provision “in the interests of justice” has developed in the Office of the Prosecutor into a complicated mechanism for mediating tensions between an abstract universality and actual contingencies within which the ICC investigates and prosecute its cases. For some, Article 53 provided the opportunity to allow prosecutorial discretion to consider the political ramifications of ICC-judicial action. For others, “justice” is idealistic, and the interpretation of the “interests of justice” provision should be exercised in restrictive terms. In the end, the Policy Paper on the Interests of Justice that the Office of the Prosecutor issued in September 2007 set a standard for action that involved balancing the interests of victims, peace, and judicial action.
This balance was not achieved with regard to the situation in Uganda, however.
I detailed the early stages of this situation, including efforts at peace talks and Uganda's December 2003 decision to refer the matter to the ICC, in my post yesterday. Between March 2004 and November 2005, alongside criticism from victims' groups in Uganda, the ICC Office of Prosecutor sought to work with some Ugandan organizations to achieve a range of peace goals. In so doing, it made clear that its role was not that of peacekeeping but was adjudicatory. Moreno-Ocampo was explicit that the ICC’s contribution to securing peace was in the Ugandan prosecution alone.(Later, in the Darfur situation, prosecutors shifted the onus of responsibility for maintaining peace to the U.N. Security Council. Again, responsibility for peace was pushed elsewhere.)

Introducing Kamari Maxine Clarke

It's our great pleasure today to welcome Dr. Kamari Maxine Clarke (left) as an IntLawGrrls contributor.
Kamari is a Professor of Anthropology and International and Area Studies at Yale University. She's also the founding Director of the Yale Center for Transnational Cultural Analysis, an interdisciplinary unit devoted to study of transnationalism, global formations, cultural and international change, especially in the global South, and Chair of the Yale Council on African Studies, which supports and coordinates study of Africa at the university. In addition, Kamari's a founding partner of the Leadership Enterprise for African Development, a Yale-Harvard collaboration that endeavors to increase leadership and governance capacity in public, business, and civil society sectors in Africa.

Initially educated in Canada, Kamari earned a master's in law at Yale and a Ph.D. in Political Anthropology at the University of California, Santa-Cruz. Her research examines issues related to religious nationalism, legal institutions, human rights and international law, and the interface of culture, power, and globalization. Her many publications include the 2009 book Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa, as well as a 2010 essay collection that she co-edited with anthropologist Mark Goodale, entitled Mirrors of Justice: Law and Power in the Post-Cold War Era.
Kamari draws upon this research for her 2-part series of IntLawGrrls posts (Part 1 here, Part 2 here). The series considers how the post-Cold War revival of international criminal adjudication is playing out in Africa, where International Criminal Court intervention has raised debate about peace and justice, and where viewers of a U.S.-made viral video have been asked to contribute to the capture of Ugandan warlord Joseph Kony. The series is based on Kamari's presentation at the March annual meeting of the American Society of International Law. It makes its IntLawGrrls début today amid debate (see here and here) over the significance of Uganda's recent capture, in the Central African Republic, of a Kony lieutenant.
As did another IntLawGrrls contributor, Lindsay Harris, Kamari dedicates her post to Wangari Muta Maathai (left), the Kenyan activist, leader of the Green Belt Movement, and the 1st African woman to win the Nobel Peace Prize. (photo credit)

Heartfelt welcome!

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.

Debating border-crossing in noninternational conflict

Under international law:
► Could the United States have killed alleged dirty bomber José Padilla at O'Hare Airport?
► Could Uganda enter, say, Mozambique in pursuit of Joseph Kony?
►  Are cross-border drone strikes legal?
These were the kind of provocative questions bruited about at Geography of War in Armed Conflict, a fascinating workshop in which yours truly took part last week at the the U.S. Naval War College International Law Department, Newport, Rhode Island.
Kudos for assembling a fiery, multinational group of participants with an array of perspectives –  think dinner party in a Woody Allen film – are due to organizers, particularly Professor Michael N. Schmitt, a retired Air Force officer, and Instructor Matt Hover, an Army major. Schmitt, formerly Chair of the Public International Law Department at Durham University in England and Dean of the George C. Marshall European Center for Security Studies in Germany, has chaired the College's International Law Department since October.
Noteworthy given the subject matter were the many women among the 20 or so participants. As detailed in the program, 4 women were among those enlisted to set the stage for discussion:
► Jelena Pejic (right), Geneva-based Legal Adviser at the International Committee of the Red Cross, the century-and-a-half-year-old nongovernmental organization that promotes and monitors compliance with international humanitarian law. (photo credit)
► Gabriella Blum, Rita E. Hauser Professor of Human Rights and Humanitarian Law at Harvard. Gabby's depicted at foreground in the top photo; behind her is Sasha E. Radin, a Visiting Research Scholar at the War College (photo credit)
► Jennifer Daskal (left), Fellow at the Center on National Security and the Law, Georgetown University Law Center. (photo credit) Jen, whom I'd met back in 2008, when the 2 of us observed GTMO military commissions for different NGOs, is the author of an article right on point with this workshop: "The Geography of the Battlefield: A Framework for Detention and Targeting Outside the 'Hot' Conflict Zone," forthcoming in the University of Pennsylvania Law Review. In it, Jen accepts arguendo current U.S. practice with regard to targeting (which IntLawGrrls have discussed in posts available here, here, and here), and proceeds to propose guidelines for regulating that practice.
► Ashley Deeks (right), who is completing a stint as an Academic Fellow at Columbia Law School and soon will take up an appointment as Associate Professor at the University of Virgina School of Law. (photo credit) Ashley's article "'Unwilling or Unable': Toward an Normative Framework for Extra-Territorial Self-Defense," just published in the Virginia Journal of International Law, discusses a theory by which some countries, like the United States, have endeavored to justify entering the territory of a state – a state with which the country is not at war – in pursuit of a person or group with which the country is at war.
In an armed conflict "between two or more of the High Contracting Parties," to quote Article 2 common to the Geneva Conventions, such pursuit is permitted. But what about, to quote Article 3 common, "an armed conflict not of an international character"? What if a country is warring against a nonstate actor, on the territory of a not-at-war state?
Whether, and by what legal reasoning, that country can get across that nonconsenting state's border were the central questions of the workshop.
Possible answers implicate a host of legal subfields. For example:

Update on Gotovina, being argued now at ICTY

Today, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia is hearing oral arguments in Prosecutor v. Gotovina. (The webcast, available here, is set to start now, at 9 a.m. Hague/3 a.m. Eastern time, and to continue till 6:30 p.m. Hague/12:30 p.m. Eastern time.) (credit for photo of ICTY building)
As you may remember, the case focuses on Operation Storm, the Croatian operation to re-take the Krajina region in August 1995.  In April 2011, the Trial Chamber sentenced Croatian General Ante Gotovina (below left) to 24 years for war crimes and crimes against humanity on a joint criminal enterprise theory of liability. (Prior IntLawGrrls posts) (photo credit; credit for below right map showing Krajina in red)
As I have written before, this case highlights issues at the intersection of operational law and international criminal responsibility. An amicus brief submitted by international operational law experts -- but not accepted by the Appeals Chamber -- and the report from an Experts roundtable hosted by the Emory International Humanitarian Law Clinic both focused on what the experts perceived to be significant flaws in the judgment's methodology.
Three weeks ago, the Appeals Chamber issued an addendum to an earlier scheduling order that may hint at some of these concerns.  The addendum invited the parties to address four issues, without prejudice to any others. To my knowledge, this is the first time the Appeals Chamber has done so before an appellate argument.  The questions posed:
► Whether the Trial Chamber erred in applying a 200-metre range of error in analyzing the lawfulness of artillery shelling;
► Whether the Trial Chamber's conclusions regarding impact sites should be upheld if its application of the 200-metre range of error is deemed erroneous;
► Whether the Trial Chamber's finding that illegal artillery attacks took place should be upheld if its conclusions with respect to impact sites are deemed erroneous; and
► Whether the Trial Chamber's finding that a joint criminal enterprise existed should be upheld if its finding that illegal artillery attacks took place is deemed erroneous.
The identification of issues -- and the layering of them in this way -- is fascinating from both the substantive and procedural vantage points.
The Trial Chamber judgment of joint criminal enterprise liability rests predominantly, if not entirely, on the finding of unlawful attacks on civilians in Knin and a few other cities.  That finding, in turn, rests on the analysis of artillery attacks on Knin on August 4-5, 1995, and that analylsis itself relies overwhelmingly on the application of a 200-meter range of artillery effects attribution and the conclusion that the small percentage of impacts beyond that range established the deliberate attack on civilians and/or civilian property.  The Appeals Chamber's framing of issues highlights both the 200-meter attribution standard and the precise role it plays as a key -- but faulty -- piece holding the judgment together.
Substantively, this development demonstrates the significant and intimate linkage between operational law and the elements of criminal accountability, perhaps more in this case than in any other.

Write On! ASIL's Accountability newsletter

(Write On! is an occasional item about notable calls for papers)

 

We are now accepting member submissions for the Spring 2012 edition of Accountability, the newsletter of the International Criminal Law Interest Group of the American Society of International Law. (Prior IntLawGrrls posts on this newsletter available here; archived issues available here.)
Submissions of 500- to 1,500-word items relating to: international criminal law; institutions; international crimes such as genocide, war crimes, and crimes against humanity; and issues of international versus domestic prosecution. They can take various forms, such as legal analyses, case summaries, and reviews of recent publications or conferences/seminars. In particular, we are looking to include in this issue the following: publication updates; book reviews; and information regarding an interesting ongoing interest group member project or humanitarian story.
If you have any questions, please e-mail me, Accountability Editor Margaret Zimmerman, at margaretjzimmerman@gmail.com.

The deadline to e-mail me your submission is July 2, 2012, so you have plenty of time!

Initial Reflections on JCE and Terrorism in the Taylor Judgment

(Another of IntLawGrrls' several posts on the Charles Taylor judgment, part of our Sierra Leone accountability series)

Among scholars who follow the jurisprudence of the Special Court for Sierra Leone and the Taylor trial in particular, there was much anticipation about how Trial Chamber II would rule on the issue of joint criminal enterprise, often abbreviated JCE.
This mode of liability has been widely used in various international criminal tribunals and has been the subject of much debate. (Prior IntLawGrrls posts.) The Special Court’s application of JCE is no exception – scholars and practitioners have questioned and criticized its application by the court nearly every step of the way.
In anticipation of receiving the full reasoned judgment (which, as Sara Kendall discussed in a post yesterday, is not yet available), this post will discuss the general issue of JCE in the Taylor trial, including a key decision about the alleged common purpose handed down by the Trial Chamber very late in the trial. It will also provide a few comments on the relationship between joint criminal enterprise and aiding and abetting, the latter being one of the modes of liability on which the Trial Chamber relied in its recent conviction of Charles Taylor.

Pleading JCE 
One of the central debates about joint criminal enterprise at the Special Court is how the prosecution pleaded the required common purpose. According to paragraph 574 of the prosecution’s final trial brief, Taylor, together with the Revolutionary United Front (RUF) and Armed Forces Revolutionary Council (AFRC)/RUF junta, shared a common plan involving

'the use of criminal means, a campaign of terror encompassing the indictment crimes, in order to achieve the ultimate objective of the JCE, to forcibly control the population and territory of Sierra Leone and to pillage its resources, in particular diamonds.'

This plan was allegedly hatched between Taylor and Foday Sankoh, leader of the RUF, in the 1980s – an allegation the Chamber rejected. (credit for above photo of Taylor, at right)
During the course of the trial, however, the prosecution had put forth various versions of the common plan. The initial indictment, similar to the indictments in the RUF and AFRC cases, alleged that the RUF and AFRC were participants in a joint criminal enterprise to take political and physical control of Sierra Leone and its diamond mines. The diamonds and other natural resources, according to paragraph 23 of the Original Indictment,

'were to be provided to persons outside Sierra Leone in return for assistance in carrying out the joint criminal enterprise.'

Taylor, according to paragraph 20, allegedly participated in the JCE by

'provid[ing] financial support, military training, personnel, arms, ammunition and other support” to the RUF in order to “obtain access to the mineral wealth of the Republic of Sierra Leone, in particular the diamond wealth of Sierra Leone, and to destabilize the State.'

The Second Amended Indictment (the final indictment) did not clearly specify a common purpose, but alleged that Taylor acted in concert with the RUF, AFRC and others to commit the crimes charged “as part of a campaign to terrorize the civilian population” of Sierra Leone (para 5). There is no mention of taking control of Sierra Leone, or of its diamonds or natural resources. However, in subsequent filings the prosecution argued various other common purposes, including the theory finally relied on in its final brief.
Adding to the confusion, the Trial Chamber determined yet another version of the common plan over a year into the trial and after the prosecution had rested its case (which was later re-opened for the Campbell testimony). Some ten months after a motion was filed by the defense challenging the JCE pleading, Trial Chamber II decided by a majority that the alleged common purpose was to engage in a “campaign to terrorize the civilian population of the Republic of Sierra Leone” and that the crimes charged were part of a campaign of terror or a reasonably foreseeable consequence therefore. This was upheld on appeal.

The Taylor Verdict: Prosecution and Defense Claims, and a Judgment Deferred

(Another of IntLawGrrls' several posts on the Charles Taylor judgment, part of our Sierra Leone accountability series)

As part of the broader IntLawGrrls series on accountability at the Special Court for Sierra Leone, this post considers the uptake of arguments made by prosecution and defense in their final briefs in Trial Chamber II’s summary judgment in the Taylor case.
As noted in previous posts, the Chamber has not yet produced a full judgment, so we are unable to assess how its determinations were made and what evidence it was based upon. This may complicate efforts by both parties to substantiate their sentencing briefs, which are due on May 3 for the prosecution and on May 10 for the defense.
The Court’s Statute and Rules state that the judgment

'shall be accompanied by a reasoned opinion in writing.'

(Article 18 of the Statute; Rule 88 of the RPE). The forty-four page summary judgment read by Judge Richard Lussick on April 26 was made available on the court website. There has been no indication from the Special Court as to when the full-length reasoned judgment will be available, and Trial Chamber II stated that this summary judgment – which does not contain footnoted references to specific witness testimony and documentary evidence – should be sufficient to form the basis for the parties’ appeals.
Meanwhile, full judgments in the cases against members of the Armed Forces Revolutionary Council (AFRC) and the Civil Defence Forces (CDF) were available on the respective days when the verdicts were announced. Te full judgment in the case against members of the Revolutionary United Front (RUF) was provided within a week of the summary judgment. Given that closing arguments and final oral responses from both parties in the Taylor trial were heard over one year ago and that the Chamber has had over half a year since the estimated delivery date of the judgment (late September 2011), it is unclear why Trial Chamber II was unable to produce a full judgment in time for last week’s verdict.

Claims of the Parties: Prosecution

The prosecution’s closing brief attributes much of the responsibility for the armed conflict in Sierra Leone to Charles Taylor, alleging that

'the crimes suffered by the people of Sierra Leone would not have occurred but for Charles Taylor’s supervision and support for the RUF and AFRC.'

(para. 2) The prosecution claims that Taylor not only provided material support to rebel forces by sending arms, ammunition, funding and personnel, but also that Taylor created the RUF, designed and directed its strategy, and maintained effective control over the RUF and RUF/AFRC ‘junta’ from outside Sierra Leone. (map credit) In this account, the RUF was Taylor’s ‘surrogate army’ or ‘proxy force’ – the ‘younger sibling’ of Taylor’s National Patriotic Front of Liberia (NPFL). The brief argues that Taylor played a critical role in a joint criminal enterprise united by a common plan to

 'achieve forcible control over the population and territory of Sierra Leone and to pillage the resources of that country, in particular diamonds.'

Introducing Cecile Aptel

It's our great pleasure today to welcome Cecile Aptel (left) as an IntLawGrrls contributor.
Cecile's an Associate Professor of International Law at the Fletcher School of Law & Diplomacy, Tufts University, Medford, Massachusetts. She joined that faculty after serving as the 2010 Jennings Randolph Senior Fellowship at the United States Institute of Peace, Washington, D.C.  Before that, Cecile followed a rich career in entities -- governmental, intergovernmental, and nongovernmental -- dealing with aspects of humanitarian law.  These included: the State Court of Bosnia-Herzegovina War Crimes Chamber, the Special Tribunal for Lebanon, the International Criminal Tribunals for Rwanda and for the former Yugoslavia, the U.N. High Commissioner for Refugees, the European Union, the International Center for Transitional Justice, and the U.N. Office on Drugs and Crimes.
She has particular expertise on children's issues; the subject of her introductory post below is the treatment of child soldiering in the just-released Special Court for Sierra Leone judgment of former Liberian President Charles Taylor. Her work in this area includes leadership of the International Center for Transitional Justice's Program on Children and publication of "International Criminal Justice and Child Protection," chapter 3 of a 2010 UNICEF volume.
Heartfelt welcome!