ICC to Investigate North Korea: A Step Toward International Justice

The prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, just announced that the court would investigate possible crimes committed by North Korea in its recent attacks on South Korea (click here to read the story: http://news.yahoo.com/s/ap/20101206/ap_on_re_eu/war_crimes_korea). The prosecutor's office is looking into the November 23 shelling of Yeonpyeong Island, as well as into the sinking of the South Korean warship, the Cheonan, in March of this year. Several people have died in both of these incidents, and the ICC is investigating possible war crimes and crimes against humanity committed by North Korea during these excursions against South Korea.
The ICC is the only permanent international criminal court in the world. It has jurisdiction over war crimes, crimes against humanity, and genocide (the crime of aggression may be added to the court's jurisdiction starting in 2017). Cases may be initiated at the ICC though a United Nations Security Council referral, through a member state referral, or sua sponte, by the prosecutor's office. The court can look at a case if either of two conditions is met: if the alleged crimes were committed on the territory of a member state, or if the accused is a national of a member state. The case against North Korea satisfies all the conditions of the court's jurisdiction: the alleged crimes fall within two of the three categories of crimes that the ICC can look into (war crimes and crimes against humanity); the case was initiated by Mr. Moreno-Ocampo's office; and the alleged crimes were committed in South Korea, a party to the ICC statute.
It is uncertain whether the court will proceed with this investigation. The ICC faces numerous political roadblocks and at times the ill will of one of the world's super powers, the United States. The initiation of a possible investigation into North Korea is a positive step for the court nonetheless. It demonstrates a willingness on behalf of the prosecutor's office to launch independent investigations, free of any Security Council influence and unaffected by any individual member state's referral. It signals to the world community the availability of this forum for prosecutions of international crimes, such as war crimes and crimes against humanity. Moreover, it sends a deterrent message to rogue countries and leaders that the ICC means business. This is a welcome development in the world of international criminal law - the world criminal court is accomplishing its mission and actively working toward its goals of world justice.

Omar Khadr Pleads Guilty: A Sad Day for Justice

Omar Khadr, the youngest detainee at Guantanamo Bay, has just plead guilty to murder, material support of terrorism, and other charges, bringing an end to his trial before the military commissions (click here to read the story: http://www.cnn.com/2010/US/10/26/khadr.statement/index.html). According to his guilty plea, Khadr, who was just 15 at the time, voluntarily and intentionally threw a grenade that killed a U.S. soldier in Afghanistan in 2002. Moreover, Khadr admitted to meeting Bin Laden, to training with other Al Qaeda operatives, and to engaging in terrorist acts against the United States. Of course, all of this is "true" only if we believe Khadr. And there are plenty of reasons not to.
Khadr was a child when arrested. Upon his arrest, he was held without charges and subjected to harsh treatment and endless interrogations. His statements, produced through such abusive interrogations, were admitted into evidence during Khadr's trial in the military commissions. Such statements, of course, would not be admissible in any civil or criminal trial in the United States, or in any other industrialized country using a "western" justice system. Such statements, on the contrary, are admissible in trials before the military commissions, under the infamous Military Commissions Act. Before the military commissions, Khadr faced an uncertain future, a long sentence and event the possibility of endless imprisonment (many detainees cleared of all charges before the commissions have been held indefinitely, under the United States government's argument that war prisoners can be held ad infinitum, or at least until the end of hostilities, or, in this case,the war on terror). Thus, when prosecutors presented him with a chance to plead guilty in exchange for a lenient sentence (most likely about 8 years) as well as a possibility to serve most of it in his home country of Canada, Khadr had no other alternative but to accept. He is 24 now; in 8 years, he will still have a chance for a normal life. And most likely, he cannot wait for a chance to leave the United States.
Who can blame him? Even if he did throw the grenade at American soldiers, which is dubious at best, under international law of armed conflict he should have been treated as a child soldier. Child soldiers do not face the same repercussions as adult soldiers, if caught by opposing forces. All international law authorities agree that child soldiers should be treated as victims of war, not as warriors. The United States government clearly missed this lesson of international law, when it chose to disregard all relevant rules, treat Khadr as an adult terrorist, and subject him to harsh treatment. Khard's Canadian lawyer, when interviewed by NPR journalists, expressed his sentiment that justice had not been served, and that the day of Khard's guilty plea was a sad one for justice. I could not agree any more. The imprisonment and trial of Omar Khadr did nothing but embarrass the United States and undermine our vision of justice before the rest of the world. The United States should fight terrorism, but it should do so within the bounds of international law and our own domestic legal system. It is time that Guantanamo be closed, detainees formally charged, if evidence permits it, and our federal courts used to prosecute those who threaten our country. Others, like Omar Khadr, who do not qualify for such prosecutions should be released. The desire to protect our country should never trump the interests of international justice and human rights.

The World Court's Decision in the Kosovo Case: Some Regrettable Ommissions

The International Court of Justice (ICJ) recently ruled that the unilateral declaration of independence by the government of Kosovo was in accordance with international law. The world court held that the declaration was not prohibited by general international law, or by any other specific sources of international law. Regrettably, the world court chose not to address the issue of remedial self-determination or secession under international law, an area of law in which guidance by the most supreme international judicial organ would have been of much value.
By way of background, the Kosovar government issued a declaration of independence on February 17, 2008. In fact, since the Rambouillet Accords of 1999, ending a three-month bombing campaign by NATO countries on the territory of the Former Republic of Yugoslavia, Kosovo had been governed by a United Nations Mission, and its security guarded by a NATO-led defense force. Negotiations between Kosovo and Serbia over the former's final status failed to produce a result, and in the beginning of 2008, the Kosovar government took matters into its own hands and proclaimed the province independent. Many states immediately recognized Kosovo as a new state, whereas many others refused to do so. On October 8, 2006, the United Nations General Assembly adopted a resolution to request the world court's advisory opinion on the issue.
It is laudable that the world court accepted jurisdiction on this difficult legal issue. In fact, the Kosovar government and its supporters had urged the court not to accept jurisdiction at all, as the request for an advisory opinion was political rather than legal, and as the Security Council had already been seized with other issues relating to Kosovo. The ICJ properly answered by accepting jurisdiction, and by rejecting these arguments.
However, it is regrettable that the ICJ refused to address the most relevant issue: when and under what circumstances do minority groups, or peoples, have the right to external self-determination, leading toward remedial secession? In particular, the world court could have taken up the opportunity to address, in the Kosovar context, whether the Kosovar declaration of independence serves the values and interests of the United Nations system, as well as those of the existing international legal order. Instead of answering these difficult questions, the ICJ suggests in this opinion that we live in a lawless world when it comes to declarations of independence, and that anything in this domain is permitted unless expressly prohibited by the Security Council. The rule of law and the elaboration of specific legal rules - even when none already exist- is the province of courts and judges, and the world court should not have shied away from its responsibilities in the international community. Possibly, the world court's willingness to accept jurisdiction in this instance signifies a shift whereby the world jurisdiction will in the future accept other similar cases on self-determination and secession. Possibly, the world court judges will decide to elaborate on legal standards governing these difficult issues.

Somali Pirates Sentenced to Five Years' Imprisonment in the Netherlands

A group of five Somali pirates received five year prison sentences after they were convicted for acts of piracy in a Dutch court (click here to read the story:http://www.cnn.com/2010/CRIME/06/17/pirates.convicted/index.html). The five pirates were originally detained by the Danish navy, after attacking a ship flying a Dutch flag; the Danish authorities quickly handed the pirates to the Dutch for prosecution purposes. The Dutch prosecution of pirates marks the first successful European trial of this sort. Another group of alleged Somali pirates is awaiting trial in Germany, and the French authorities have also brought some detained pirates back to France for trial. One pirate has plead guilty in an American court (the Southern District of New York) and is awaiting sentencing. Another group of pirates has been brought to an American district court in Virginia, where they will be tried later this year.

These kinds of domestic piracy trials represent one potentially successful prosecutional model for combating Somali piracy. Major maritime nations often have the resources available, and can logistically handle the prosecution of a Somali pirate. However, for political and strategic reasons, such nations have only shown interest in prosecuting pirates in domestic courts if and when pirates have attacked these nations' ships or hijacked these nations' nationals. When the maritime powers' national interest are threatened, they will extend their courts and apply their jurisdictional rule to cover acts of Somali piracy.

In the absence of direct attacks on major maritime nations, pirates have faced differing fates. Some pirates have simply been released, and have returned with impunity to their lucrative criminal livelihood. Others have been released on the high seas, with no food, water, or other supplies, and have thus faced an almost certain death sentence. Finally, some have been transferred to a regional partner, Kenya, for prosecution there. While some have argued that African courts provide a better solution for this African problem than European or American prosecutions do, many others have pointed toward problems with the Kenyan court system. For one, Kenyan procedural rules are imperfect and do not allow for more sophisticated evidentiary manoeuvres. Moreover, there have been allegations of the lack of adequate representation for the detained pirates. World powers have financially supported the Kenyan authorities in their detention and prosecution facilities, but have not provided any support for the legal defense regime. Thus, some pirates are unrepresented, and some have poor and inexperienced attorneys. Ultimately, some have called for the creation of an ad hoc regional piracy tribunal, which would handle all Somali piracy prosecutions. This solution appears attractive from a legal standpoint, but it lacks political backing by the world's great powers, and may be riddled with logistical and organizational hurdles.

One thing appears certain: the world powers have understood the dangers of Somali piracy, and have begun combating it with serious efforts. More coordination and cooperation may be needed in this endeavor, but a successful model may have been started and may provide a solid basis for the future.

Israel Raids Pro-Gaza Flotilla Ship: Unnecessary Violence In Violation of International Law

Early this morning, Israeli commandos raided a ship which was part of a pro-Gaza flotilla, carrying humanitarian aid to the Gaza strip and attempting generally to draw international attention to the situation in this troubled region (click here to read the story: http://www.latimes.com/news/la-fg-israel-clash-20100601,0,2990275.story?page=2&track=rss). In fact, since 2007, when Hamas leaders were elected into power in Gaza, Israel has engaged in an overall blockade of Gazan borders, provoking thereby a humanitarian crisis in this region. Moreover, in late 2008 and early 2009, Israel launched so-called Operation Cast Lead, a full-blown military offensive over Gaza, during which approximately 1300 citizens of Gaza were killed and many more wounded. The latest incident - the raid on a humanitarian ship- has sparked international outrage and has tarnished Israel's shaky world image.
The facts of the raid remain disputed, but it appears that early this morning, Israeli commandos boarded one of the flotilla ships, by being dropped off helicopters. Upon boarding, commandos were confronted by ship passengers - pro-Gaza activists and, by some accounts, a few members of the European Parliament. Israel claims that its commandos were attacked by ship passengers, and that they opened fire in self-defense, killing nine individuals on board. Ship passengers and activists claim that Israeli commandos began firing immediately upon boarding the ship, and that nobody on the ship was armed. What is unclear and unknown for now is why Israel chose to send commandos to board the ship. By all accounts, the ship was sailing in international waters, the so-called high seas, at the time of the raid. High seas are considered no-man's land in international law, and thus any ship may sail in such waters. The act of boarding or raiding a ship, which is what Israeli commandos did, is illegal under international law. Israel's claim of self-defense is unfounded: its commandos were aggressors to begin with, as they illegally boarded the flotilla ship. An aggressor cannot claim self-defense if he or she initiated the lethal fight.
The international community reacted swiftly to this incident. Turkey demanded that a meeting of the United Nations Security Council take place, to discuss the incident. Massive demonstrations took place in many countries, including Turkey, France, Iran, Egypt, among others. Many world leaders expressed outrage over the incident and demanded explanations from Israel. And Israeli prime minister canceled a scheduled visit to the United States, in the wake of the raid. It is strongly believed that the raid will chill the already frosty relations between the Obama administration and Israel.
Three things are certain. One, the raid called attention to the situation in Gaza, with many countries calling upon Israel to end its blockade and to allow for the passage of humanitarian aid into Gaza. Two, Israel's image around the globe has been further undermined. While most Israeli politicians publicly supported their government and justified the raid, some have expressed concern and have questioned the necessity of the raid. And many countries have upped their already existing critique of Israel. Three, Israel has violated international law by engaging in a raid on the high seas, and by using unnecessary lethal force against unarmed civilians. With more global attention on Israel, its leadership will hopefully understand that its foreign policy requires change, and that international law poses serious limits on countries' abilities to use force.

Serbia Uncovers Mass Grave: A Step Toward Recognizing Responsibility and Accountability

Serbia uncovered a large mass grave on its soil, thought to contain bodies of approximately 250 ethnic Albanians, killed during the 1998-99 civil war in Kosovo (click here to read the story: http://news.yahoo.com/s/afp/20100510/wl_afp/warcrimesserbiakosovo_20100510191459). It is presumed that then President Milosevic's forces moved the bodies from Kosovo to Serbia, to hide war crimes and deny that ethnic Albanians were being killed.
In ackonwledging this fact, Serbia today has shown that it is ready to face and accept responsibility for what happened in Kosovo. In fact, the mass grave, the third one to be discovered since the conflict in Kosovo, was found through a joint effort between Serbia's war crimes prosecution office, and EULEX, the EU mission in Kosovo. Human rights activists in Serbia believe that there may be more mass graves of this nature on Serbian soil, but everyone, including the independent Kosovar leadership, agrees that the Serbian willingness to acknowledge the grave is a positive step. The man who most likely ordered the cover up in the late 1990's, the then top police officer, Vlastimir Djordjevic, is now on trial at the Hague, at the ICTY, for alleged war crimes. And Serbia has been more actively cooperating with the ICTY, assuring this international tribunal that it is serious about true justice and accountability. Several hundred ethnic Albanians are still missing since the Kosovo war, and the uncovering of mass graves and the possible identification of victims may bring closure to families of those who disappeared. Moreover, such positive steps on behalf of the current Serbian leadership signal to the rest of the world that the country has changed, that it has moved on from the dark Milosevic era, and that it is ready to work with international authorities, as well as with neighboring states, on developing good relations for the future. In order to further bring closure to the Kosovar civil war, Serbia may want to consider establishing a truth and reconciliation commission, like South Africa. In the meantime, its war crimes prosecution office has been doing a fine job handling investigations and prosecuting those accused of the most heinous crimes. If Serbia wants to join Europe and to ensure that no more Milosevic's grab power within its territory, it must continue on this path of responsibility and justice.

11 Somali Pirates Brought to U.S. for Prosecution

11 suspected Somali pirates are being transferred to Virginia from East Africa, for prosecution in a American federal district court, for their alleged acts of piracy off the coast of Somalia (click here to read the story: http://www.cnn.com/2010/CRIME/04/22/pirates.us.prosecution/index.html) . In March of this year, 5 of the same individuals were involved in an attack on USS Nicholas, while 6 others were involved in an attack on USS Ashland in early April. The attacks were unsuccessful, and the suspected pirates were captured quickly thereafter by U.S. forces. After the capture, U.S. authorities decided to bring the pirates to the United States for prosecution - a move that is somewhat unprecedented. Pirate prosecutions are logistically difficult, costly, and politically unfavorable. Many have advocated the need to find an "African" solution for the African problem of piracy, thus arguing against domestic prosecutions in the United States. In fact, until now, only one suspected Somali pirate was transferred to the United States for prosecution. All other captured pirates were either released (a truly undesirable outcome!), or transferred to other countries. The United States has signed a Memorandum of Understanding (MOU) with Kenya, whereby Kenya accepted to prosecute suspected pirates captured by U.S. forces in the Indian Ocean. Thus, several pirates have been prosecuted in Kenya, and close to one hundred are currently detained and awaiting prosecution in Kenyan jails. In sum, until now, the United States had largely preferred not to open its courts for the purpose of Somali pirate prosecutions.
American stakes in the situation may have changed in light of the fact that American ships have been targeted by the Somali pirates. The first Somali pirate to be transferred to an American jurisdiction, mentioned above, was detained after an unsuccessful attack on a U.S. ship, USS Alabama, in April 2009. The 11 pirates currently being transferred to the U.S. were clearly involved in attacks on American ships. Jurisdictionally speaking, these prosecutions no longer entail the exercise of absolute universal jurisdiction - a situation where the prosecuting jurisdiction has no nexus to the crime or the perpetrators. Instead, these pirate prosecutions entail a case of territorial jurisdiction (to the extent that the U.S. ships attacked are considered American soil), passive personality jurisdiction (if U.S. victims are involved), or the protective principle (if U.S. interests are directly threatened by the pirates). Also, these prosecutions can be viewed as an exercise of modified universal jurisdiction - a situation where the crime itself, because of its atrocious nature, warrants the exercise of universal jurisdiction, but where the prosecuting jurisdiction actually has ties to the crime or its perpetrators. This fortified case of universal jurisdiction is politically more tenable and legally unquestionable.
The United States should however be prepared to exercise true universal jurisdiction and to prosecute suspected pirates, in those cases where pirates are captured after attacks on non-American ships. Such prosecutions would strengthen the law enforcement structure applicable to the Somali pirates and would significantly contribute to regional and global anti-piracy operations. Knowing that no pirates would be released after capture would send a potent deterrence message to pirates and could possibly entice other maritime nations to extend their domestic courts toward piracy prosecutions. Then, the world would stand a chance of winning the piracy wars.

ICC to Investigate Kenyan Post-Election Violence

The International Criminal Court ("ICC") just began investigating Kenyan officials for post-election violence that rattled this African country in 2007 (click here to read the story: http://www.cnn.com/2010/WORLD/africa/03/31/icc.kenya/index.html). The ICC judges determined that an investigation into these events was warranted, as they may amount to crimes against humanity, an offense defined under the ICC statute. Kenya had initially promised to investigate these matters, and to possibly establish an ad hoc or hybrid tribunal that would assume jurisdiction over the above events, similarly to what had taken place in Sierra Leone, with the establishment of the Special Court for Sierra Leone, or in Lebanon, where the assassination of a former prime minister is currently under review by a special court. However, when Kenyan authorities stalled investigative efforts, the ICC took matters into its own hands by deciding to launch an investigation and thereby preclude the possibility that Kenyan offenders would remain unpunished regarding their roles in 2007 violence.
In fact, the 2007 electing opposing incumbent president Kibaki, and the opposition leader Odinga resulted in a Kibaki victory, but many alleged that the election was rigged. Following election results, violence erupted and several hundred Kenyans died. The ICC's involvement in these matters signals that the world community no longer tolerates human rights abuses. A country may no longer claim that violence is an internal matter. If human lives are seriously endangered, and if government officials participate in the violence, then the international community has a duty to intervene. Moreover, the world criminal court may have a duty to investigate and potentially punish any government officials taking place in state-sponsored violence. This is a positive development in international human rights and international criminal law, and a sign of the growing importance of the ICC.

Tony Blair and Accountability: A Model for the United States

The former British Prime Minister, Tony Blair, is currently the subject of an investigation over Great Britain's involvement in the Iraqi War. As Great Britain's leader in 2002 and 2003, when the decision was made to invade Iraq, Tony Blair now faces responsibility for his affirmative vote in this intervention. In other words, the current British leadership wants to know precisely why Mr. Blair decided to join in with former President Bush and the so-called Coalition of the Willing, which sent thousands of troops into Iraq to topple Saddam Hussein's regime. Mr. Blair so far has been adamant about the righteousness of his decision. Nonetheless, even if his decision is ultimately approved in the present investigation, the existence itself of the inquiry poses an interesting question and represents a good model for the Obama administration. No president should be immune from questioning after the end of his or her reign. The presidential office of any country should not signal impunity and should not shield its former holders from inquisition into their actions.
President Obama has struggled with the idea of accountability for top level officials of the Bush administration. Even those arguably most responsible for the prisoner abuses that took place in Abu Ghraib and Guantanamo live freely and hold professorships and judgeships, without facing any accountability for their reproachable actions. While I understand President Obama's desire to bring closure to past abuses and to move forward in a spirit of unity and bipartisanship, some offenses are simply too grave to be overlooked. For example, invading a foreign country over false accusations of having weapons of mass destruction is more than serious. Moreover, arguing that Al Qaeda and Taliban detainees do not deserve any Geneva Convention protections is not just legally wrong; it is criminally reprehensible. Finally, redrafting the definition of torture so that its authors almost never face criminal liability is almost as bad as torturing someone and certainly deserves some sanctions. It appears that Great Britain has understood the importance of the above point, but that the United States is still short of reaching the same goal. President Obama should look overseas for guidance from the Brits on investigation, accountability, and the audacity to question prior leaders. If American officials committed abuses, they should be appropriately punished, no matter which president they served under and no matter how important their position used to be. Justice should be blind for all.