U.S. State Department Legal Advisor Harold Koh spoke at the USCYBERCOM Inter-Agency Legal Conference in Ft. Meade, MD, on September 18, 2012, regarding the law of cyberspace. This is the State Department's first full-length statement regarding the appropriate legal regime governing cyber-attacks. I'll have more to say on this shortly, but until now here is the full text of the speech, which is also available here.
Tuesday, September 18, 2012
There is continuing fallout from the Special Court of Sierra Leone's conviction of Charles Taylor, who received a 50-year sentence for crimes against humanity. As many of you know, the alternate judge in the case, Judge Sow, apparently disagreed with Taylor's conviction, and during the reading of the judgment he started to voice his disagreement before the microphones were turned off and the judges hastily left the courtroom. The moment would have to rank as one of the strangest in the recent history of international criminal justice.
Apparently, the judges did not take kindly to Judge Sow's attempted intervention, and subsequently moved to suspend him as a judge, which they succeeded in doing. It is unclear why exactly he needed to be removed, unless his attempt to speak when he didn't have authorization to speak is itself sufficient grounds for removal. Perhaps he asked for permission to speak during the reading of the verdict and the panel of judges denied his request, and his decision to speak anyway constituted a form of judicial defiance. But that's just pure speculation on my part.
Although much of the current affair is inscrutable, a recent court filing has revealed additional insights into the dispute. Taylor's defense team filed a motion to have the rest of the judges recused on grounds of partiality and an appearance of bias. As Bill Schabas notes on his blog, the motion was denied, but the decision sheds some light on the inner workings of the court.
One judge filed a separate opinion, concluding that the court's decision to remove Judge Sow was procedurally improper. The decision, by Judge King, complains that Judge Sow was not given adequate notice and opportunity to respond to the charges against him, and therefore objects to his removal.
There are several points to be made here. First, there is insufficient consensus in the field regarding the appropriate role for alternate judges. Should they just witness the trial but not participate in the deliberations? But what if one of the judges gets sick during the deliberations and needs to be replaced? So perhaps alternate judges should attend the deliberations too but not speak until they are elevated to full status. Others argue that alternate judges should participate in the deliberations at every stage of the proceedings, the only difference being that they do not get to vote regarding the disposition of the case. In that regard, should they be allowed to file a written opinion? Should it be part of the final record? If the procedures do not allow for a written opinion from an alternate judge, can they publish a written opinion as a private citizen (a blog perhaps!)? In general, should an alternate judge have a voice?
Second, and perhaps more importantly, what are we to make of Judge Sow's doubts regarding the conviction? Schabas concludes that it ought to concern us greatly, since doubts regarding the factual guilt of a defendant in a major international trial is literally unprecedented. Although several judges have voted not guilty, these votes have been for individual counts only or with regard to issues of law. I'm not sure I'm completely convinced by this distinction, mostly because it is unclear to me whether Judge Sow's doubts were exclusively factual in nature, or whether they were related to the relevant legal standard governing the case. This is precisely why I think it is important to get a full accounting from Judge Sow on his reasoning. Hopefully he will give a keynote address at one of the upcoming international criminal law conferences.
Conference organizers: take note and start drafting those invitations.
Posted by Jens David Ohlin at 8:01 AM
Friday, September 7, 2012
In the past few months I've discussed at length the fight between Libya and the ICC over who will conduct trials of former Gaddafi regime leaders, including his son Saif as well as his former intelligence chief, Senussi. Libya has been insisting that it is both willing and able to prosecute them, a fact which -- if correct -- would deprive the ICC of jurisdiction under the principle of complementarity.
However, that claim was seriously weakened by the fact that the Libyan government had custody of neither men. Saif was in the custody of the Zintan rebels, who were refusing to transfer him to the custody of the central government. And Senussi was being held by officials in Mauritania. It is very hard to argue that a domestic prosecution is possible when the defendants are not in custody (although this assumes that an in absentia trial does not satisfy complementarity, which is an interesting argument). This suggested that the ICC could take jurisdiction over the case, although the Office of the Prosecutor (at least under former prosecutor Moreno-Ocampo) has shown little interest in asserting jurisdiction over the case, preferring to let the Libyans take the lead.
Two days ago Mauritania extradited Senussi to Libya. This now paves the way for the first domestic trial of a top former Gaddafi official, and I suspect that Libyan officials will now try to fast-track a prosecution. Unfortunately, there are several obstacles that remain, and I'm skeptical that a trial can be set up any time in the near future. There is no functioning judiciary so far as I can tell, at least not one that a fully developed legal system would recognize as a sophisticated system of criminal law. The only way Libya can pull this off is with substantial input from international experts and foreign monitors, but there will be substantial political pressure to keep the process dominated by local characters.
The real question here is how long it is appropriate to wait for such a system to be created. So far as I know, there is no judicial precedent that sets a specific time frame on the Rome Statute's standard for complementarity. If it takes two or three or five years for Libya to get a trial ready, does that indicate that Libya is unable to prosecute? At some point, the future trial will look like the ever-advancing horizon, always in sight but never attainable. The ICC can wait, but it won't wait forever.
Posted by Jens David Ohlin at 5:55 PM