Top 10 Year in Review: International Criminal Justice

As part of our “year in review” series, I suggest below some of the top developments in international criminal justice with links to our prior coverage, and the thoughts of others, on each issue. A longer year in review analysis covering most of 2014 is available here. Many of the year’s developments concern the International Criminal Court, which is now fully operational, although it continues to be plagued by challenges to its legitimacy, erratic state cooperation, and persistent perceptions of inefficacy and inefficiency. That said, other justice institutions have made important contributions to the field over the year.

    1. The most dramatic development no doubt concerns today’s decision by the Palestinians to try to join the International Criminal Court following the Security Council’s vote against a draft resolution on the occupied territories. This marks the end of a long dance between the Palestinians and the Court during which the Palestinians took several steps toward the Court, and toward achieving formal statehood by joining a number of treaties and international organizations (see our timeline here), but stopped short of seeking full ICC membership or filing another ad hoc declaration accepting the Court’s jurisdiction. That said, over the course of the year, the various Palestinian factions indicated their assent to such a move, which a number of NGOs have also advocated. Others, including the United States, have consistently raised concerns that such unilateral actions indelibly undermine Israeli-Palestinian peace negotiations. At the last Assembly of States Parties meeting, Palestine was for the first time seated alphabetically with other observer states (rather with the “entities”) and participated in the general debate as such, indicating that “there is in fact a consensus among the Palestinian people, their political organizations and their leadership to join the ICC. The time to join will be decided by our leadership at an appropriate time.” It should be noted that joining the Court is not enough to commence an investigation by the Office of the Prosecutor (OTP), but it would enable a self-referral or the referral of the situation to the Court by another State Party, which would oblige the OTP to move forward.  Or, the Prosecutor could initiate an investigation herself, subject to approval by a Pre-Trial Chamber.  A third-party referral involving the region already occurred once (the Court’s first such referral) when the Union of the Comoros referred the situation on its flag ship (and those of Cambodia and Greece) to the Court in connection with the events surrounding the so-called freedom flotilla. This effort was foreclosed in 2014, however, when the ICC’s Prosecutor ended her preliminary examination into the incident on the ground that the alleged war crimes did not satisfy the ICC Statute’s gravity threshold.
    2. The ICC had a busy year even prior to this development. For one, the Court reached its first final guilty verdicts—both in the situation involving the Democratic Republic of Congo. One concerns Germain Katanga, who was convicted in 2014 of crimes against humanity and war crimes. (His former co-accused, Mathieu Ngudjolo Chui, was acquitted at trial in 2012 following a severance decision). Although Katanga and the Office of the Prosecutor had announced their intention to appeal the verdict and sentence, both sides agreed to drop their appeals, thus rendering final the Trial Chamber’s judgment. The second final judgment came with the Appeals Chamber’s affirmation of the guilty verdict in the case against Thomas Lubanga Dyilo for the war crime of conscripting and using children in armed conflict. Meanwhile, the ICC has moved forward with its cases involving Côte d’Ivoire and the Central African Republic, with a verdict in the case against Jean-Pierre Bemba expected next year. Côte d’Ivoire’s transfer of Blé Goudé to the Hague in March 2014 stands in stark contrast to its attempt to prosecute Simone Gbagbo domestically, notwithstanding an arrest warrant by the ICC and a December 2014 admissibility decision calling for her surrender. It remains to be seen whether Côte d’Ivoire will appeal the latter ruling as is its right.
    3. The Kenya cases before the ICC made history in a number of ways as well. They marked the first time a sitting head of state appeared before an international tribunal since the World War II period—a milestone President Uhuru Kenyatta tried to avoid by temporarily stepping down from office during the hearing. This landmark proved illusory when the Office of the Prosecutor withdrew its case against Kenyatta for lack of evidence. (The cases against Kenyatta’s Deputy William Ruto and media personality Joshua arap Sang continue). The Kenya cases (consolidated coverage here) have been plagued by allegations of witness intimidation and the withholding of evidence; nonetheless, neither the Assembly of States Parties nor the Security Council censured Kenya for its non-cooperation.
    4. Also before the Court, the limited acceptance of jurisdiction by Ukraine and the opening by the OTP of a preliminary examination shifted the focus of the ICC away from Africa (consolidated coverage here). The preliminary examinations in Georgia, Colombia, Honduras, Iraq, and Afghanistan remain ongoing as well. The latter two made news because they concern conflicts that involve British and United States forces.
    5. The ad hoc tribunals made important progress as well over the course of 2014. The Extraordinary Chambers in the Courts of Cambodia (ECCC) issued its judgment in Case 002/01, involving preliminary crimes against humanity charges against surviving members of the Khmer Rouge Standing Committee (the full opinion is here). The most important element of the judgment is the ECCC’s endorsement of 11 creative reparations projects, all pre-funded by donor countries thanks in part to the tireless work of Ambassador David Scheffer, the Secretary General’s Special Expert on the United Nations Assistance to the Khmer Rouge Trials (UNAKRT). The ECCC’s opinion on reparations contains the most sophisticated analysis to date of victims’ right to reparations by an international criminal tribunal. The second phase of the trial (Case 002/02) has begun and involves more extensive charges, including charges alleging the commission of genocide against individuals of Vietnamese descent and members of the Muslim Cham minority as well as of forced marriage/rape. The United States has been a long-time supporter of the Court (it is the third largest donor after Japan and Australia), as expressed by Ambassador Stephen Rapp, who attended the release of the verdict.
    6. The two original ad hoc tribunals—for the former Yugoslavia and Rwanda—made significant progress toward implementing their Completion Strategies this year. The ICTR has completed all its trials and is consumed with a few lingering appeals and its legacy work. The ICTY is in the final phases of its last few trials and appeals. In terms of jurisprudential developments, the ICTY put to rest the controversy generated by Judge Meron’s opinion in Perišić over whether “specific direction” is an element of aiding and abetting liability. In a January 2014 ruling in the Nikola Sainović case, a differently-constituted Appeals Chamber—now presided over by Judge Liu who had dissented in Perišić —rejected the reasoning in Perišić. In an erudite opinion that exhaustively analyzed caselaw dating back to the World War II period, treaties, comparative jurisprudence, and national penal codes, the Chamber came to the “compelling conclusion that ‘specific direction’ is not an element of aiding and abetting liability under customary international law [and] unequivocally rejects the approach adopted in the Perišić Appeal Judgement.” Sainović thus aligned the ICTY jurisprudence with the Special Court for Sierra Leone’s 2013 ruling in the Charles Taylor case, rendering “specific direction” a jurisprudential dead end.
    7. The Special Tribunal for Lebanon (STL) commenced its first trial in January 2014 against four individuals accused of assassinating former Prime Minister Rafik Hariri. The trial is proceeding in absentia, a unique feature of the STL as compared with other international tribunals. The STL has also established jurisdiction over related attacks, although there is little evidence of forward progress in this case. Another important ruling of the STL is the October 2014 appeals decision asserting that the Tribunal has jurisdiction over legal persons (viz. news organizations), in addition to individual journalists, accused of contempt of court under Rule 60bis for releasing the names of protected witnesses. This marks the first time an international tribunal has criminally charged a legal entity since the Nuremberg Tribunal indicted various Nazi organizations following WWII.
    8. For the first time, and spurred by the launch of a Commission of Inquiry by the Human Rights Council, focused international attention was paid to the commission of international crimes in North Korea. The horrific revelations of the COI in its February 2014 report, and the conclusion that the regime has committed crimes against humanity on a daily basis for over a decade, have spurred unprecedented action within the General Assembly (which in December urged a referral of North Korea to the Court) and before the Security Council toward an ICC referral—a key recommendation of the COI. Although the United States and other members of the Council indicated their support for the move, China will inevitably exercise its veto. (Indeed, China tried to block the Council’s consideration of North Korea at all; the veto is unavailable in such procedural votes).
    9. In 2014, amidst rising tensions between elements of the African Union and the ICC over issues of immunity and the purported “targeting” of Africa, progress was made toward the establishment of a new regional international criminal court for Africa—the African Court of Justice and Human and Peoples Rights. Most importantly, delegates of the African Union voted to amend the constitutive protocol to allow for some degree of immunity for senior government officials before the proposed Court. The emergence of this fatal flaw, and the mixed motives behind the entire project, have left proponents of international justice efforts torn between their instinct to support the development of indigenous justice mechanisms and their fealty to evenhanded accountability.
    10. Finally, on the domestic level, the principle of universal jurisdiction remains a tool for advancing justice for the commission of international crimes notwithstanding some legislative action to reduce the reach of national courts over international crimes (consolidated coverage here). By way of example, in October 2014, the Spanish National Court, sitting en banc, ruled that Spain continues to have jurisdiction to investigate the 1989 massacre by members of the Salvadoran military of 6 Jesuit priests, their housekeeper, and her 16-year-old daughter. This was notwithstanding changes to the Spanish universal jurisdiction law. Similarly, courts in South Africa ordered the police services and National Prosecution Authority to continue to investigate the commission of international crimes in neighboring Zimbabwe, even in the absence of the presence of the accused in South Africa.

“May you live in interesting times” has been described as an ancient Chinese curse, although this etymology is widely disputed. Nonetheless, it certainly describes the state of international justice this year.  Happy new year – may 2015 be a bit less interesting… 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Follow her on Twitter (@BethVanSchaack).