International Criminal Tribunals and Western States

One of the main points in any debate about the ICC has always been the “danger” that Western states could come under scrutiny by a “politicized” OTP. Of course, I would argue that this is not a danger, but a requirement, as it would show that international criminal trials are not about prosecuting only “the usual suspects”, but about actually giving teeth to human rights and international humanitarian law.

Anyway, it seems that Western states need fear no longer (or not as much): As recently reported by the Jus in Bello weblog, the ICC prosecutor has released a document explaining his decision not to open an investigation into allegations of core crimes committed by UK troops in Iraq. This document can be found here, a general update on communications received by the OTP here.
I will hopefully find the time to give a short summary and some comments on this important document soon, but to just sum it up in one sentence, its main point is: British soldiers in Iraq may well have committed war crimes (wilful killings and inhuman treatment), but the OTP will not initiate a prosecution because those crimes were not numerous and/or grave enough.

Meanwhile, the conduct of western troops may well come under scrutiny from a rather unexpected angle: German weekly “Der Spiegel” reports about the upcoming trial of Croatian former general Ante Gotovina, who is indicted before the ICTY for war crimes and crimes against humanity for his role in the 1995 “Storm” offensive in the Krajina. Gotovina’s defense team has recently been reinforced by an American lawyer, Greg Kehoe, apparently because it is feared that the US role in supporting the Croatian army during the offensive might also be scrutinized by the tribunal.
The Spiegel article is here, Kevin Jon Heller at Opinio Juris has more on this development.

This just to bring our readers up to speed on developments.
As already mentioned above, I find that the way in which international criminal tribunals deal with the involvement of Western nations in the situations they are concerned with (such as their involvement in the Yugoslav and the Bosnian civil war, aid granted to Saddam Hussein in the earlier stages of his reign, the NATO bombing of Yugoslavia, etc.) is one very important pointer in the debate about the legitimacy of such tribunals. I will hopefully have a longer, more in-depth post on this question in the future.

UPDATE: As reported on Jus in Bello, Saddam Hussein “could be executed within months if he is found guilty of ordering the massacre of 140 people from the town of Dujail.” According to Iraqi Special Tribunal's chief prosecutor Ja’afar Moussawi, Iraqi law requires that those sentenced to death must be executed within 30 days of their final appeal.
This would mean, of course, that the Tribunal could not concern itself with the most serious charges against Hussein, inter alia those concerning war crimes committed during the Iran-Iraq war or the poison gas attack on Halabja. In other words, precisely those acts in which Western involvement could potentially become relevant before the IST will not be scrutinized by that Tribunal (See an earlier news article on this issue).

How not to criticize the international criminal justice project

The international law/international relations blogosphere is abuzz with commentary on an article by Helena Cobban in “Foreign Policy” about the failures of international criminal tribunals.

While I have yet to read the article, apart from excerpts cited on various blogs, I feel that some of the commentaries raise interesting points about how one should criticize the international criminal justice project. My two cents:


First of all, I am a bit astounded by the debate about costs. Referring to the Rwanda Tribunal, the article notes that

“[a]s of November 2005, the International Criminal Tribunal for Rwanda (ICTR) had handed down judgments for only 25 individuals. More than $1 billion has been spent on the tribunal so far, or about $40 million per judgment.”

Over at Opinio Juris, Julian Ku asks “Are International Criminal Tribunals a Waste of Money?” His conclusion:

“You might say that ensuring punishment and the end to impunity is worth the $1 billion, but there is some point when even the end to impunity isn't worth it. Or, more accurately, justice is not actually being achieved if the cost is so high. There are cheaper alternatives, by the way. Rwanda could itself punish the perpetrators or, as the ICTR has started to do, the ICTR could outsource to other countries (as it has started doing)“

Well, Rwanda is of course punishing perpetrators (or, as the criminal defence pedant in me would put it, “prosecuting alleged perpetrators”) already, so any criticism of the ICTR should take into account how those alternatives are actually faring–the literature on the pros and cons of Rwandan gacaca courts is pretty vast.

But apart from this quibble, let’s just assume for the moment that the ICTR, through its judgments (even if there were only 25 of those), has actually managed to convey to the world that perpetrators of genocide will be brought to justice (or whatever lofty goal one attributes to international criminal trials): Would not that result be worth a billion dollars (even if it might also have been arrived at for a lower cost)? If not, how much would it be worth?

Just to put things into perspective, the Iraq war has cost the United States alone hundreds of billions already, according to this website.


Second, I have read several critiques claiming that most international tribunals are little more than “Kangaroo courts”, and I think there is at least some truth to such claims (See Michael Mandel's book referred to in an earlier blog post, as well as this article). I was also intrigued by an article by Martti Koskenniemi, who shows that international criminal tribunals, because they aim to participate in the writing of history, are always in the danger of becoming “show trials.” (Between Impunity and Show Trials, 6 Max Planck Yb. UN L. (2002) 1, available here)
But I have always taken for granted that any rational person could only see this as a problem, a critique, of the endeavor of international criminal trials.

Not so, apparently. On his blog “Security Dilemmas”, international relations scholar Seth Weinberger writes that

“In cases like Milosevic or Hussein, kangaroo courts to air what is already known should be sufficient. For other, more widespread situations like in Rwanda, South Africa, or Mozambique, leave the pursuit of justice up to the nation itself. It will proceed in the manner it best sees fit.”

Now, I would like to inquire what is “already known” about Milosevic–does Prof. Weinberger know whether/to what extent Milosevic was responsible for acts committed by Bosnian Serb forces in the Bosnian war, including the mass killings at Srebrenica? From what I have read about his trial, this seems to be far from clear–and this question is of high importance, because only by claiming that Milosevic controlled the Bosnian Serb Army was the OTP able to include the spectacular charge of genocide in the indictment of Milosevic.

Most importantly of course, the fact that a scholar would actually argue for the creation of “kangaroo courts” (i.e. show trials) is breathtaking to me. I can only hope that Prof. Weinberger is not using the term in its usual meaning.


To conclude, I am all for critiques of international criminal tribunals, but only if those critiques actually inquire into whether those tribunals achieve the goals set for them in the context of transitional justice (while also upholding defendant rights and fair trial guarantees). In this vein, I am looking forward to reading the Foreign Affairs article once it becomes available to me.

Meanwhile, Anthony Arend of the “Exploring International Law” blog provides a short and level-headed comment concerning the whole debate.

UPDATE: The article is now available here. More shortly

Who says that international criminal trials do not further reconciliation?

According to a recent slate article by Julian Mortenson, a former associate legal officer at the Yugoslav Tribunal, they do – at least among (alleged) perpetrators. Mortenson reports from “Inside the United Nations Detention Unit“ in The Hague where accused from all ethnic groups of the Former Yugoslavia seem to get along quite well . One of the main reasons for this astounding unity, according to Mortenson:

Wrenched away from everything they know, these inmates have been dropped in someone else's country, surrounded by someone else's language, and forced to confront the massed resources of a thousand-person tribunal that they believe exists solely to railroad them into guilty verdicts. Under these alienating circumstances, bunking next door to people who share the same language, who enjoy the same food, who have overlapping traditions and pop-culture touchstones, and who share the same enemy in the tribunal's head prosecutor—all of this can overwhelm whatever ideologies seemed so important when Yugoslavia was ablaze with ethnic passion.

Quite an interesting combination of transitional justice and Schmittian thought, if you ask me :).

(Another interesting insight from the article is that Tim McFadden, the warden of the Detention Unit, seems to really have understood the meaning of the presumption of innocence and its influence on conditions of incarceration.)

Interesting Blog: Law and Disorder

To further establish my position as resident crit, I would like to point our readers towards an interesting blog by "Rob", a Cambridge Law Student, entitled "Law and Disorder".
The author concerns himself mostly with a Marxist analysis of both national and international law.

And to tie this in with the subject of this blog, I would refer readers to Rob's posts on "rights" in general and human rights specifically.

Interesting stuff.

Some thoughts on "The Core"

Our (future :)) readers may be interested in how we arrived at the blog’s title.

Originally, we were aiming for a title that was both catchy and captured the areas of the law we were planning to blog on. “The Core” first of all occurred to us as an allusion to the notion of “core crimes”, i.e. those crimes (aggression, war crimes, genocide, crimes against humanity) that make up the body of international criminal law. However, after having decided on the title for mainly that reason, it occurred to me that it may also be understood to have a deeper meaning, concerning the question of the raison d’être of – or at least basic focus for our understanding of – international law as such.

We all know that traditional scholarship basically sees international law as the law between sovereign states and that under this view, the “core” of international law is the sovereign equality of states and the principle that state consent is a prerequisite for the binding force of international norms.
There are, however, two current trends that replace (or rather complement) this view: The first one, which is usually described as “constitutionalization”, shifts the focus away from the individual states and towards the “international community.” As far as I see it, there are two interconnected strands of “constitutional” or “communitarian” international law scholarship: One more value-centered and resolving around notions such as jus cogens norms, the other more institution-centered, focusing on the United Nations and increasingly the Security Council. (As already mentioned, I have written about the Security Council’s role of international law-maker in the 2005 International Organizations Law Review).

If this view can probably be described as shifting the focus “up” from the state towards the international community as a whole, there is also another view that shifts its view “down”: Not (only) the state, but (also) the individual is at the focus of this view of international law. And this view focuses on precisely the areas of international law that we plan to blog about – human rights as the fundamental norms of international law directly favoring individuals; international humanitarian law as increasingly concerned with the protection of individuals, especially civilians; and international criminal law, which supplements the granting of rights to individuals with individual criminal responsibility for breaches of such rights, giving “bite” to human rights and international humanitarian law. (There are, of course, other bodies of international law protecting or perhaps even granting rights to individuals, such as investment law, but we hope we will be forgiven for not covering this area in any detail.)

This shift of the focus towards the individual person has, on the one hand, been met with some enthusiasm – a prime example is the 2003 General Course of Public International Law at the Hague Academy, delivered by ICTY President Theodor Meron and entitled “International Law in the Age of Human Rights.” (RdC vol. 301 (2003)) Meron traces the influence of human rights on various areas of international law, from the humanization of warfare and the criminalization of violations of humanitarian law to more general questions such as subjects and sources of international law.

There are, however, also a number of critiques of this view, coming from various corners. Some semi-random examples:

• Human Rights have been criticized from a Marxist point of view for a long time – for a contemporary example see Slavo Zizek’s “Against Human Rights” in the New Left Review 34 (2005).


• (Some aspects of) Human Rights have also come under critique by “humanitarians” – most famously by Harvard Law School Professor David Kennedy in his recent “The Dark Sides Of Virtue: Reassessing International Humanitarianism” (Princeton Univ. Press, 2004, a video recording of the Harvard “Dean’s Forum” discussing the book can be found here).


• In “How America Gets Away with Murder”, Prof. Michael Mandel of Osgoode Hall criticizes the ICTY, the establishment of which revived modern international criminal law, as a propaganda arm of NATO and casts doubt on the ability of international criminal law to do more than “round up the usual suspects.”

My own position is that while I am surely not a proponent of a classical state sovereignty centered view of international law, I find myself agreeing with many critics of views centered on human rights or the international community, at least as they currently stand. (Incidentally, I have written reviews of both Mandel’s and Kennedy’s book for the upcoming vol. 48 of the German Yearbook of International Law.)

Okay, this much for now about the title of the blog and about my interest in some of the topics we will be covering.

Tobias' Introduction

Again, thanks to Nicki for creating the blog - and also to Bjoern, for explaining some things about German lawyers' careers that I will not now have to go into again.

So, in short, I have also participated in the Philip C. Jessup International Law Moot Court Competition in 2000/2001, with Nicki and Bjoern (I note that Bjoern has not mentioned this - nothing personal, I trust). I continued my involvement with various special and general issues of international law at later stages of my undergraduate work, and I wrote an essay in it as part of my First State Examination. I passed that exam in December 2004 and then became a colleague of Nicki's and Bjoern's at the Walther Schuecking Institute at Kiel University in January 2005; this does make me the most junior contributor to this blog, but not by much.
Like the other two, I am also working on my doctoral thesis, which is one Third States' Interests before International Courts and Tribunals.
As a research fellow at the Institute, my tasks mostly centred on acting as one of the Assistant Editors of the - forthcoming - commentary on the Statute of the International Court of Justice, edited by Andreas Zimmermann, Christian Tomuschat and Karin Oellers-Frahm (the other, and, to be honest, more senior Assistant Editor is Christian J. Tams, also of this institute).

Besides this job and my thesis, my interests within the broad church that is international law have tended to concentrate on human rights law, so that will be my chosen field in this blog (another factor being that I know next to diddly-squat about the other two subjects, relatively speaking). I have recently had an article on 'The Admissibility of Evidence Obtained by Torture under International Law' accepted by the European Journal of International Law and I am presently writing a case note on a judgment by the British House of Lords on the same topic for the Journal of International Criminal Justice. No prizes for guessing that I like to read British cases, then; I have, after all, studied for one term in 2002 at the University of Surrey, and I plan to take an LL.M. course in the UK later this year.

I have also published in other fields of international law (‘International Law Aspects of Sea Ports’, in Alexander Trunk/Valeriy Abramovich Musin, eds., International Commercial Arbitration and International Maritime Law from a German and Russian Perspective, 2004, and, with Professor Dr Andreas Zimmermann, a commentary on Article 60 of the ICJ Statute, in the above-mentioned commentary), so I don't think I can only speak about human rights. Anyway, human rights law is just another part of international law, so I feel that more general issues of international law may properly infuse our thinking in the more specialised branches.

As may have become apparent, I do like to properly analyse the law, even where there are no or conflicting statements of authority. On the other hand, I am not remotely sad if my views are shared by authority, and I am likely to find out if they are, so do expect me to provide citations where appropriate.

Bjoern's Introduction

First of all, thanks to Nicki for setting up the blog.

I thought I would use this first post to tell our readers something about myself and my interests in international law in general and more specifically in international criminal law.

I studied law at the University of Kiel and passed the First State Examination (J.D./LL.B. equivalent, for you Anglo-American types out there) in April 2004. Since then, I am a research fellow (“wissenschaftlicher Mitarbeiter”) at the Walther-Schuecking-Institute for International Law here in Kiel, where I teach fundamental rights to small groups of first year law students. I have also worked as “Assistant Editor” for last year’s edition of the faculty-run German Yearbook of International Law and, together with my colleague Tilmann Laubner, coached the Kiel team in the 2004/2005 Philip C. Jessup International Law Moot Court Competition.

I am also (supposed to be) working on my doctoral thesis with the (tentative) title “The Historic Mission of International Criminal Trials and its Influence on the Position of the Accused” and the (very tentative) finishing date of early 2007. Plans afterwards include an LL.M. in the US and finishing my professional training in Germany (which requires two years of mandatory clerkships before one is allowed to take the Second State Examination, the bar exam equivalent). My final goal is to work in criminal defense and/or academia.

Academic interests in international law include “constitutional” public international law, international criminal law, and human rights. I am also interested in international law theory and history – the reissue of Martti Koskenniemi’s “From Apology to Utopia” currently sits on my nightstand. As far as “philosophy of international law” is concerned, I lean towards (Legal) Realism/ Critical Legal Studies/ New Approaches to International Law.

My main publications in the field are “The Ultra Vires Character of Legislative Action by the Security Council”, 2 International Organizations Law Review (2005), 337–360 and (with Kerstin Bartsch) “Jus Cogens v. State Immunity, Round Two: The Decision of the European Court of Human Rights in the Kalogeropoulou et al v. Greece and Germany Decision” (yes, I know that there are two “decisions” in that title), 4 German Law Journal No. 5 (May 2003).

I am excited to be aboard and looking forward to hopefully many interesting discussions.

My (Nicki's) Introduction

As I said, there probably will be an introduction of the contributors to this blog before we really start posting and we decided to let everyone introduce himself, with an emphasis on his interest in international law.
My interest in international law started with my participation in the Philip C. Jessup Moot Court Competition in the year 2001, it was consolidated through my further studies in law at the University of Kiel, and further concentrated on international human rights and especially international humanitarian law. Next to the foundations of international law and said subjects which are also addressed by this blog, a more recent field of interest of mine is the history of international law, again with an emphasis on the history of humanitarian law. I am browsing through Steven C. Neff’s “War and the Law of Nations” at the moment.
After passing the German First State Examination in July 2004 I am now, like Björn and Tobias, a research fellow at the Walther-Schuecking-Institute for International Law at the University of Kiel, where I am able to do some research in my fields of interest (Additionally I have to teach European Law to small groups, to coach the 2006 Jessup Team etc.). I wrote, for example, an article on “Outsourcing War – Private Military Companies and International Humanitarian Law” (GYIL 47 (2004), 502), and co-authored an article by article “Commentary on the International Covenant on Civil and Political Rights” (in: Das Deutsche Bundesrecht, Baden-Baden 2005, written in German, co-authored with Prof. Dr Dr Rainer Hofmann). My doctoral thesis, which I hope to finish this July, concentrates on the problem or possibility of individual claims for violations of international humanitarian law, especially according to the German law of state torts.
My plans after finishing the doctoral thesis are to do an LL.M. in the UK and I think I will see how I could proceed from there.
Finally, I think I have to say where I “stand” concerning my approach to/philosophy of international law. I think it would be best described as realistic internationalism, what this means you will certainly see in the hopefully interesting discussions at this blog.

Reflections

This first post on this blog is a reflection on the motivations behind its creation. (Actually it is a “test” post to get this group blawg started, but I wanted to write something substantial, so here we are.) According to the subheading it is about human rights, humanitarian law, and international criminal law and we, the bloggers to be, are young legal academics whose special interests lie in said fields of international law. (There probably will be a more in depth introduction of those involved in a later post by the time this blog is finally up and running.)
Neither our profession nor our special interests however, may totally explain why we decided to start this thingy. Some attendant circumstances may have influenced this decision.

In my opinion this may have been that:

1. We are blessed to work in an academic environment that taught us how important it is to exchange views and opinions, to get nudged when something interesting happens. At least two of us realised (one a long time ago the other just recently) that the blogosphere shares some of the features also found in such an academic environment.

2. Currently so many things are happening in our field of interests, there are so many problems to discuss, and we have to protect the ongoing work on our dissertations against the urge to write articles on the relevant legal issues.

3. We have to discuss said issues anyhow, so why not start a group blawg.