Monday, December 2, 2013
Thursday, October 10, 2013
In what will most likely be its last substantive judgment, before closing its doors, the Appeals Chamber of the Special Court for Sierra Leone has unanimously upheld the conviction of former Liberian President Charles Taylor.
Because Trial Chamber II had convicted Taylor on 26 April 2012, on 11 counts of war crimes, crimes against humanity and other serious violations of international humanitarian law, this means that Taylor has been adjudged guilty for aiding and abetting as well as planning crimes against civilians in Sierra Leone by a total of eight tribunal judges (see the Appeals Chamber Judgment here; the Court’s official Press Release; and the Press Release from the Office of the Prosecutor; and the Prosecution and Defense Press Conferences: Audio and Audio, and Video and Video. Transcript of the final appeals judgment, summarizing the key findings, is also available).
The Appeals Chamber also upheld the lower court's sentence of Taylor to a term of 50 years imprisonment. The appeals judges saw no need to reduce the sentence, rejecting defense arguments that Taylor merited less jail time, especially considering his age. The President of the Court is expected to soon designate a country where the former Liberian president will be held for the remainder of his remaining natural life. Options being considered include the United Kingdom and Rwanda, both of which have enforcement of sentence agreements with the SCSL. It is likely that the prisoner will have views on the question, and all things being equal considering his cultural, family and other ties in Africa, might be a preference for Rwanda (where all the other eight SCSL convicts were transferred in October 2009 to serve their sentences, at Mpanga Prison, just outside Kigali).
Even more interestingly, I think that Taylor's lawyers could make a thoughtful legal argument about where he should serve out his sentence. All they need to do is look at Article 22 (enforcement of sentences) of the Statute of the SCSL, which specifically states the default rule that "[i]mprisonment shall be served in Sierra Leone". Assuming arguendo that Taylor would rather be closer to home, next door to Liberia where the bulk of his family lives, they could argue that compliance with the letter of the tribunal's law mandates that he is imprisoned in Sierra Leone.
On the other hand, there is an escape clause in Article 22 that says "if circumstances so require, imprisonment may also be served" either in countries such as UK and Rwanda with which the SCSL has concluded agreements or those that have enforcement agreements with the ICTY and ICTR (and indicated a willingness to accept Taylor). The conditions of imprisonment would have to be thought out though, as those will be governed by the state of enforcement (subject to the SCSL's supervision), including with respect to pardons and commutations of sentences in the interests of justice (see Article 23 of the SCSL Statute).
The Appeals Chamber Judgment, which is refreshing in its length compared to the unusually lengthy trial judgment, made a number of noteworthy findings that will be of interest to legal commentators. It will certainly attract some scholarly commentary over the next few weeks, in particular, because the Appeals Chamber staked out the SCSL's jurisprudential position on divisive international criminal law questions centered on the actus reus and mens rea elements of aiding and abetting liability. That position diverged from recent findings of the ICTY Appeals Chamber in cases such as Perisic.
Friday, September 13, 2013
By Charles C. Jalloh
On September 6, 2013, a majority of Kenya’s National Assembly voted in favor of a motion, introduced by the Leader of the Majority Party, Aden Duale, urging the government to “urgently undertake measures to immediately withdraw” the influential East African nation from the Rome Statute which established the International Criminal Court (ICC). The motion claimed that there has been a “fundamental change in the circumstances relating to the governance” of the country given that President Uhuru Kenyatta and Vice-President William Ruto, both of whom are under indictment by the ICC for alleged involvement with crimes against humanity, were “lawfully elected” under the Constitution of Kenya on March 4, 2013.
The motion, which also resolved to soon table a law that would repeal the country’s International Crimes Act, 2008 which domesticated the Rome Statute, raises several important issues at the intersection of law and politics. In this op ed, I argue that there are compelling legal reasons why the Kenyan Government should not heed what the opposition party has described as an “ill considered” recommendation urging the executive branch to make Kenya the first and only country to withdraw from the ICC.
I will argue that the reputational and other costs of withdrawing from the ICC regime for Kenya are far outweighed by the largely symbolic political benefits that might be gained from any such withdrawal. This is all the more so because such a move will have no legal effect on the ongoing cases against the three Kenyans indicted by the Court. In a subsequent article, I will consider wider implications focusing on the negative impact of such a decision for the 34 African States Parties to the ICC treaty given the African Union’s admirable anti-impunity stance against perpetrators of mass atrocities on the continent.
1. The Context: The ICC Got Involved because of Kenya’s Failure to Exercise Its First Right to Prosecute Under the Rome Statute
The Kenyan politicians who voted in favor of the withdrawal motion last week seem to have a short memory. But the victims of the crimes and Kenyan and wider African civil society probably do not. For, as is surely known, at least among international lawyers, the ICC regime is predicated on the principle that its States Parties have the first right to prosecute the international crimes that take place within their jurisdictions. It is only when they fail to do so, whether because they prove inactive, unwilling and or unable genuinely to investigate or prosecute, that the Court’s jurisdiction will be triggered (Articles 12, 13 and 17, Rome Statute).
Before turning to my main argument, I should recall that the ICC is today involved in efforts to prosecute those allegedly responsible for fomenting the post-election violence in Kenya, from December 2007 to February 2008, because Kenyan authorities initially failed to pursue those responsible. Yet, according to the Commission of Inquiry into the Post Election Violence (“CIPEV”) which was thereafter tasked with investigating the crimes, over 1,100 Kenyans had been slaughtered in about two months. Thousands more were injured, while over half a million others were displaced. Many of the attacks targeted innocent victims based on their ethnicity, presumed political affiliation, or both.
The CIPEV concluded that there was historically a chronic lack of domestic capacity, but even more importantly political will, to prosecute powerful people when they instigated such election-related offenses. It therefore recommended the establishment of a Special Tribunal for Kenya (STK), staffed by a mix of nationals and internationals, to prosecute those most responsible for the offenses. But the government sponsored draft bill to establish the STK was defeated in parliament on January 29, 2009. A Kenyan delegation subsequently met with the ICC Prosecutor on July 9, 2009 and agreed to investigate the crimes through a special tribunal or another suitable judicial mechanism, or failing that, to refer the situation to the Court. Regrettably, it appears that the same powerful persons, among whom were those later indicted by the ICC after the Pre-Trial Chamber authorized the Prosecutor to investigate the situation on March 31, 2010, succeeded in sabotaging progress on a hybrid or domestic prosecutions option. A valiant private members bill, aimed at resuscitating the STK idea, also failed to garner meaningful support on August 29, 2009.
Fortunately, besides Kenya’s July 2009 agreement with the ICC Prosecutor, the CIPEV anticipated a Plan B in its final recommendations. It therefore had entrusted a sealed envelope containing names of alleged leaders behind the post-election violence to former UN Secretary-General Kofi Annan, the chair of the African Union’s Panel of Eminent African Personalities, who had helped the rival political camps reach a peaceful political settlement. The ultimate failure of the previous government to pass the law to create the STK was the trigger for Annan to transmit the list and evidence to the ICC Prosecutor who thereafter sought judicial permission to investigate the situation.
Though the Prosecutor eventually requested charges against six Kenyans, after his preliminary investigations, only four were approved. Summonses were issued on March 11m 2011 for Kenyatta as well as Ruto. Charges were confirmed on January 23, 2012. One case, that involving Francis Muthaura, was withdrawn at the prosecution’s request on March 11, 2013. Besides Kenyatta and Ruto, only one other Kenyan, Joshua Sang, is currently answering charges before the ICC. His case, along with Vice-President Ruto’s, just opened in The Hague this week while that of President Kenyatta is scheduled to begin on November 12, 2013.
Meanwhile, Kenya’s attempt to invoke the complementarity principle and claw back the ICC cases was denied on August 31, 2012. The Court ruled that there had been no active investigations of the same persons for substantially the same conduct to render them inadmissible.
2. Legal Reasons Why Kenya Should Exercise Restraint Not to Withdraw
A. Kenya’s Obligations to Cooperate in the Current Cases Would be Unaffected by Any Withdrawal
First, it is true that under Article 127(1), a State Party may, by notifying the UN Secretary-General, who is the depository of treaties, “withdraw” from the Rome Statute. So, although I hope that this does not happen, Kenya has the sovereign right to withdraw because of the consensual nature of international law. However, the withdrawal would take effect no earlier than one year after the date of receipt of the notification (if the departing state does not choose a later date). More fundamentally, for our purposes, withdrawal cannot be to undermine the ICC’s ongoing investigations and prosecutions. Thus, a withdrawing state is not “discharged, by reason of its withdrawal, from the obligations arising from” the statute during the time it was a party to the treaty (Article 127(2), Rome Statute).
Second, even if the ICC Prosecutor were to decide to commence additional cases before the date that the one-year withdrawal becomes effective, those proceedings would also entail a continued duty for Kenya to cooperate with Court.
Fortunately, the drafters of the Rome Statute also anticipated what the Court could do if a withdrawing state fails to abide by its legal undertakings. Thus, where it “fails to comply with a request to cooperate by the Court” contrary to the statute, “thereby preventing the Court from exercising its functions and powers”, the Court, either of its own motion or at the Prosecution’s request, “may make a finding to that effect and refer the matter to the Assembly of States Parties” (ASP) - the guardian angel of the ICC (Article 87(7), Rome Statute).
Plainly, international law skeptics might counter that a finding of non-cooperation and reporting a matter to the ASP is hardly robust sanction. But the reasons why states obey international law, a horizontal legal system wherein reciprocity and good reputation play a strong role in inducing compliance, generally differ from the sheriff at the door logic some associate with individual compliance with laws in vertical domestic legal systems. In any case, the full ICC membership is represented in the ASP, along with other powerful and presumably interested observers such as the United States, which now refreshingly plays a more constructive support role for the ICC under President Barack Obama (who incidentally happens to have some Kenyan roots).
B. General International Law Does Not Help Kenya’s Change of Circumstances Argument
The Rome Statute does not demand that a country explain its motivations for withdrawal. However, the withdrawal resolution attempted to offer a justification for the proposed termination. It asserted that there has been “fundamental changes of circumstances relating to the governance of the Republic” since the March 2013 elections. And although it is unclear whether the motion’s drafters invoked “fundamental changes of circumstances” deliberately, or inadvertently, such language in the motion does not resonate with the Rome Statute but certainly does with international treaty law.
The background rules from the Vienna Convention on the Law of Treaties (VCLT), which entered into force on 27 January 1980, covers such situations. Kenya was one of the original signatories to the VCLT, on 23 May 1969, but much like the United States, it has not ratified it. Nevertheless, most aspects of the treaty on treaties are now widely considered customary international law. Furthermore, and in any event, the general rules of international law in the VCLT all appear to form part of Kenyan law pursuant to section 2(5) of the 2010 Constitution.
Under the VCLT, every state has the duty to act properly in the performance of its treaty obligations. Thus, it is axiomatic that, under the pacta sunt servanda rule, “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith” (Art. 27, VCLT). This classical rule applies per force to Kenya in relation to the Rome Statute. An important corollary is that a state may not invoke the provisions of its internal law as justification for its failure to perform a treaty, as the National Assembly seems to suggest through its motion.
But, even more clearly problematic for Kenya’s situation, the VCLT is unequivocal that a fundamental change of circumstances cannot be invoked as grounds for terminating or withdrawing from a treaty. This is so if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty, or, of any other international obligation owed to any other party to the treaty (Art. 62, VCLT). The former rule apparently applies here. The purported change of circumstance arising from the general elections, and any withdrawal it leads to, would entail a breach of the obligation for the good faith exercise of the duty to investigate and prosecute possible crimes under the Rome Statute. It is the failure to comply with that obligation that in turn triggered the ICC’s jurisdiction and indictments. The country must now necessarily facilitate the work of the Court as required by Part 9 of the treaty.
It follows that Kenya cannot, under international treaty law, rely on a fundamental change of circumstances to terminate or suspend the obligations contained in the Rome Statute; obligations to cooperate that are explicitly anticipated by the lex specialis rules of the ICC regime as being of a continuing nature (even after a State Party decides to withdraw).
3. Concluding Remarks
As the Kenyan Government mulls over last week’s parliamentary recommendation, it should keep two things in mind. Firstly, the ICC is working for the people of Kenya, not against the people of Kenya. By that I mean the hundreds of victims of the post-election violence whose families deserve to get a measure of justice. This includes the 371 Kenyans who currently have formal victim standing and thus a voice in the ICC proceedings, rights that they would not enjoy in domestic trials. Admittedly, the Court also needs Kenya, as it seeks to prove itself to the world as a fair and capable court of law that can dispense even handed justice for atrocity victims. So the relationship is a mutually beneficial one, a win-win, as I have argued more fully elsewhere (see here and here) in terms of the Court’s relations with African States.
Secondly, the Kenyan leadership should remember that the ICC has, in recognition of this unprecedented situation resulting from the March 2013 elections, acted both pragmatically and flexibly. As part of this, it has continued the liberty of the accused and granted the defendant requests for important accommodations for the trial phase. These would enable the president and his deputy to balance their official functions with their right to appear, consistent with the presumption of innocence, before the Court to defend their good name. Consequently, it may be against the interests of those personally accused to at once be before the ICC protesting their innocence and pledging unconditional cooperation with the judicial process, only to subsequently endorse measures that would undermine the tribunal’s adjudicative function. As demonstrated here, irrespective of whether Kenya withdraws from the ICC, its obligations to support the crucial justice process started under the Rome Statute will subsist. The cases will continue, so at best, Kenya would only score political points from any retreat from the battle against impunity at this stage.
Finally, stepping back to frame a bigger picture for ordinary Kenyans, I note that Messrs. Kenyatta and Ruto enjoy fundamental fair trial rights under Article 67 of the Rome Statute, as do all other accused persons before the ICC. All these rights must be scrupulously upheld, and so far, they have been. Foremost, among these, they are presumed innocent until proved guilty before the Court in accordance with the applicable law. Therefore, everyone should know that it is not up to the Accused President Kenyatta, Vice-President Ruto or Mr. Sang to prove their innocence. Rather, it is Gambian Chief Prosecutor Fatou Bensouda’s job to prove their guilt, if she can proffer convincing evidence to that effect. The burden on her is high, as the law rightly demands that a majority of three experienced judges of Trial Chamber V, presided over by Judge Chile Eboe-Osuji (Nigeria), independently evaluate that evidence to establish their guilt beyond a reasonable doubt for indirectly co-perpetrating crimes against humanity. It is only if such a finding is reached that penalties, and the provisions of the 2010 Constitution that permit the impeachment of leaders, would become an issue.
By the same token, as the defendants have insisted throughout this post-election violence saga that they are innocent, they must also be very confident that they would be able to raise a reasonable doubt about the Prosecutor’s allegations. That, in turn, would necessarily lead to their acquittals. All to say, Kenyans should insist that their government exercise restraint and let the ICC justice process take its natural course.
Charles C. Jalloh is currently a Visiting Associate Professor at the FIU College of Law and an Assistant Professor the University of Pittsburgh, School of Law. A columnist for JURIST on issues of international criminal law, he has worked in the Rwanda and Sierra Leone Tribunals and has been a visiting professional at the International Criminal Court. He has published widely on issues of international criminal justice in Africa. His most recent work is an edited book, The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Law, from Cambridge University Press (2013).
Monday, September 9, 2013
Prof. Charles Jalloh Interviewed on Voice of America TV on Kenya’s Parliamentary Vote to Withdraw from the International Criminal CourtOn September 6, 2013, Charles C. Jalloh, Visiting Associate Professor of Law, was the invited expert on the Africa 54 program hosted by Vincent Makori for Voice of America TV in Washington. He discussed the implications of Kenya’s parliamentary vote last week urging the government to withdraw the influential East African nation from the treaty that established the International Criminal Court (ICC). He explained that, contrary to what Kenyan politicians have been leading their people to believe, withdrawal from the treaty that has so far been endorsed by 122 countries (including 34 African States) will not affect the ICC’s pending crimes against humanity prosecutions of President Uhuru Kenyatta and Vice-President William Ruto. The United States under President Bill Clinton signed, but has not yet become, a party to the ICC treaty. In Professor Jalloh’s view, this latest attempt to politicize the work that the ICC is carrying out on behalf of over 1,300 innocent Kenyans killed in the 2007-2008 post-election violence is a step backward in the fight against impunity in Africa.
Tuesday, August 27, 2013
Special Court for Sierra Leone Fixes Delivery Date for Taylor Appeals Judgment
True to its promise, the Appeals Chamber of the Special Court for Sierra Leone has just today announced that the final judgment in the case Prosecutor v. Charles Ghankay Taylor will be delivered on Thursday, September 26, 2013 (see Press Release here). The Court hearing will take place, at the SCSL in The Hague, at 11:00 a.m. on that day.
It will be recalled that, on April 26, 2012, the SCSL Trial Chamber convicted the former Liberian President Charles Taylor on all counts in his 11-count indictment and sentenced just over a month later to 50 years imprisonment (on May 30, 2012). He was unanimously found guilty of participating in “planning” crimes and in “aiding and abetting" crimes committed by the Revolutionary United Front and Armed Forces Revolutionary Council during the latter part of the Sierra Leonean conflict.
Thursday, August 8, 2013
Special Court for Sierra Leone
Outreach and Public Affairs Office
PRESS RELEASE Freetown, Sierra Leone, 17 July 2013
“Justice is for Us All”: Statement by Special Court President Justice George Gelaga King to Mark International Criminal Justice Day
Eleven years ago, in 2002, we marked two significant moments in the short history of international justice. The first, on January 16th, was the ratification of the Special Court Agreement that set up the Special Court for Sierra Leone. The second, on July 17th,was the ratification of the Rome Statute which, drafted four years earlier – fifteen years ago today, in fact – set up the International Criminal Court.
The establishment of both these courts, along with the ICTY and the ICTR which preceded them and the other tribunals which came after, represent not only milestones in international criminal justice, but also an international awakening of conscience for the plight of victims around the world. Let me state it thus: A just world cannot turn its back on victims, no matter where they may live, and a stable international order cannot rest on a fragile foundation of justice. Justice is about fairness, and due process. Justice is for us all.
As the Special Court for Sierra Leone nears the completion of its mandate in just a few months time, it is fitting on International Criminal Justice Day to consider what we have accomplished.
I have no doubt the Special Court will be remembered for its jurisprudence on such important issues as head of state immunity, on the enlistment, recruitment and use of child soldiers, and on forced marriage as a crime against humanity. We will certainly be remembered as the first international tribunal to try and convict those responsible for abducting children and forcing them to fight in war; for abducting women and girls and forcing them to be “wives” of rebel combatants; and for attacks directed against United Nations peacekeepers. We will also be remembered as the first international court since Nuremberg to indict and to try a sitting head of state, former Liberian President Charles Taylor, who is currently appealing his conviction and sentence.
We should be remembered for our Outreach programme. The Special Court was the first to put people on the ground who, in community town hall meetings, through local radio call-in shows and school visits, with video screenings of the trials in remote villages, by reaching out to victims and civil society groups, and in many other ways brought the workings of the Special Court and an understanding of international justice to the people of Sierra Leone and Liberia.
Soon – very soon in fact – we will be remembered as the first modern tribunal to achieve its mandate and to transition to the Residual Special Court for Sierra Leone.
But on International Criminal Justice Day, it is even more important for us to remember those for whom these courts were established – and by this I refer to the victims. We should recall the thousands of men, women and children who were murdered during a decade of conflict in Sierra Leone, who were deprived of their families, or their homes or their villages. We should not forget the thousands of children who were taken forcibly from their families and forced to fight. We must not forget the thousands of women subjected to rape, sexual slavery and forced marriage.
It is my hope for International Criminal Justice Day that we will look back to what we have accomplished and feel honoured to have been a part of it; that we will look forward to what remains to be done and be determined to do even better, and that we will continue to build a consensus aimed at the ending of impunity for international crimes and in bringing about of a more just world.
The Special Court is an independent tribunal established jointly by the United Nations and the Government of Sierra Leone. It is mandated to bring to justice those who bear the greatest responsibility for atrocities committed in Sierra Leone after 30 November 1996.
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Friday, May 31, 2013
Breaking News: A Triumph for International Justice in the Libya Situation; Libya Should Comply with the Chamber's Decision
In a decision that is bound to surprise the skeptics, who had speculated that the International Criminal Court will do otherwise, the Pre-Trial Chamber of the ICC has just today issued its decision in one of the most watched cases before the Court: that is, the case involving Saif Al Islam:
1. Here's the Court's press release:
1. Here's the Court's press release:
Today, 31 May 2013, the Pre-Trial Chamber I of the International Criminal Court (ICC) rejected the challenge to the admissibility of the case against Saif Al Islam Gaddafi suspected of crimes against humanity of murder and persecution, allegedly committed in Libya from 15 February 2011 until at least 28 February 2011. The Chamber reminded Libya of its obligation to surrender the suspect to the Court. The Libyan authorities may appeal this decision or submit another challenge to the admissibility in accordance with article 19(4) of the Rome Statute.
A challenge to the admissibility of the case is granted if the case is being investigated by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution. The challenge to the admissibility of the case against Mr. Gaddafi was submitted by Libya on 1 May 2012 and the Chamber conducted an assessment of the evidence presented by the parties and the participants.
The Chamber concluded that it has not been sufficiently demonstrated that the domestic investigation cover the same case that is before the Court.
In addition, the Chamber recognized Libya’s significant efforts to rebuild institutions and to restore the rule of law. The Chamber, however, stressed that the Libyan State continues to face substantial difficulties in exercising fully its judicial powers across the entire territory. Namely, the Libyan authorities have not been able to secure the transfer of Mr Gaddafi into State custody and impediments remain to obtain the necessary evidence, and secure legal representation for Mr Gaddafi.
Pre-Trial Chamber I is composed of Judges Silvia Fernandez de Gurmendi, Presiding, Hans-Peter Kaul, and Christine Van den Wyngaert.
2. Here is the very helpful SUMMARY of the decision itself, provided by the Court.
3. Here is the link to the hefty 91 page ADMISSIBILITY decision.
As I am still reading the decision, any analysis I might have will have to come later. What I can say at this point is that this decision appears to be an important victory for the Defense. Readers will recall, the defense have endured all kinds of challenges working this case, all in their principled commitment to fight for the rights of the suspect in this case. This includes the unlawful detention of one of the Court-appointed counsel in Zintan. While the lawyers, from the Office of the Public Counsel for Defense, most notably Xavier Jean-Keita and Melinda Taylor, are not mentioned on the cover sheet of this decision (John Jones is now the appointed counsel for the suspect), much of the credit putting up a fight on this admissibility issue goes to the OPCD. As Human Rights Watch has argued in their press release, it is important that Libya, as it tries to turn the corner from a period of dictatorship to democracy, comply with the Pre-Trial Chamber order to turn over the suspect to the Court.