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Friday, November 30, 2012

Palestinian Statehood and the ICC

Yesterday the UN General Assembly voted to recognize Palestine as a non-member state, paving the way for full statehood for Palestine.  Although the legal status of Palestine has been a question of contention for years, the General Assembly vote may be the tipping point that brings Palestinian dreams of statehood to fruition.  Predictably, both the U.S. and Israel voted against the resolution.  A few close allies voted with U.S. and Israel (including Canada), though most allies simply abstained from the vote in order to avoid angering the U.S. and Israel.  The resolution passed by a wide margin, 138 in favor, 9 against, 41 abstaining.

What’s interesting is the arguments that the US has deployed against Palestinian statehood.  These arguments display a surprisingly central role for international criminal justice.

In particular, the US is concerned that the Palestinian Authority will now move to join the International Criminal Court as a signatory to the Rome Statute.  This would be the first move in an attempt by the Palestinian Authority to trigger the jurisdiction of the Court over crimes allegedly committed by Israel.  This would include scrutiny over Israeli bombing practices during the recent air war over the Gaza strip, and potentially previous conflicts as well.  Of course, this jurisdiction might also bring unwanted scrutiny over the indiscriminate rocket attacks that Hamas has launched against civilian centers in Israel, including Tel Aviv, an inquiry that the Palestinians may wish to avoid.  On the other hand, perhaps that would help delegitimize Hamas on the international stage, which is something the Palestinian Authority might indeed want.

Incidentally, the Palestinian Authority tried to trigger the ICC’s jurisdiction before, although its claim to statehood then was even weaker, and it simply deposited a "declaration" accepting the court's jurisdiction.  This move prompted a huge academic debate over whether the ICC's jurisdiction could be triggered in this manner by a proto-state like Palestine.  But even now, the Palestinian Authority may have some difficulty demonstrating its own statehood.  While recognition from the General Assembly is undoubtedly important and relevant, there is a control problem. Simply put, the Palestinian Authority has no control over Gaza City, which is controlled by Hamas.  In fact, Mahmoud Abbas isn’t even allowed inside the Gaza Strip, apparently.

Indeed, it appears clear that at least some countries voted in favor of the resolution to increase Abbas’ credibility and strengthen his hand against his more radical opponents in Hamas.  Supporting Abbas seems like the best chance for peace with Israel because the Palestinian Authority at least has a chance with negotiating a deal with Israel, unlike Hamas.  These are all pragmatic considerations that sound in realpolitik.

The last issue is the legal question of retroactivity.  Over at OJ, Kevin Heller notes that the Rome Statute allows a state party to grant retroactive jurisdiction to the court (for acts committed prior to the state's adoption of the Statute).  While this is true, it isn’t clear to me that a retroactive granting of jurisdiction would permit the ICC to exercise jurisdiction over acts that were committed before Palestine was even a state.  Of course, there doesn’t appear to be anything in the Rome Statute that precludes this possibility, but it certainly represents a far more expansive understanding of retroactive jurisdiction.  The answer depends, I think, on the deeper question of what ICC jurisdiction is meant to accomplish -- ending impunity for criminal conduct or helping to resolve international disputes that sparked international crimes.

Saturday, November 17, 2012

Gotovina Acquitted

The ICTY Appeals Chamber issued yesterday what may turn out to be one of its most important decisions ever.  The Chamber overturned the conviction of Gen. Gotovina of Croatia, prompting joy in Croatia but anger and consternation in Serbia.

The prosecution of Gotovina was one of few against higher Croatian military officials.  For the Office of the Prosecutor, if represented an important effort in showing that all sides of the conflict would be subject to judicial scrutiny for their conduct.

The decision hinged on Gotovina's mental state, and the Appeals Chamber's decision that there was insufficient evidence that Gen. Gotovina had purposefully targeted civilians while ordering his troops to shell particular locations.  I should add that the Trial Chamber's analysis of Gotovina's mental state waas strangely absent from the Trial Chamber Judgement, which was 1000+ pages but failed to adequately discuss the issue.  The Trial Chamber Judgement discussed his mental state relative to the mode of liability (joint criminal enterprise), but said little about his mental state for the underlying crime of targeting civilians.

There were vigorous dissents from the Appeals Chamber decision, which was obviously not unanimous.  The Appeals Chamber issued a mere oral summary during yesterday's hearing.  A written summary is available here.


The full written opinion of the Appeals Chamber decision can be found here.

Wednesday, November 7, 2012

James Stewart on Causation and Overdetermination

James Stewart has posted a new essay that sheds renewed light on an often overlooked problem in international criminal law.  Called "Overdetermined Atrocities," the essay was written for a special issue of the Journal of International Criminal Justice that is dedicated to its late founder, Judge and Professor Antonio Cassese.

In the essay, Stewart argues that the field has yet to confront a simple but profoundly disturbing paradox: since atrocities are committed by multiple individuals, the contribution rendered by any particular defendant is rarely a sine qua non of the crime's occurrence.  Rather, it is almost always the case that the crime would have occurred anyway without the defendant's contribution, because others involved in the event would have fulfilled the tasks carried out by the defendant.  Consequently, the defendant is not a "but-for" cause of the crime.

The philosophical literature has long battled this dilemma, which is referred to as the problem of overdetermination.  The classic thought experiment involves a firing squad with 10 members who all perform an execution by shooting at the prisoner.  Since the killing would have occurred anyway even if Person A had not participated in the execution, it is unclear whether Person A is an essential contributor to the event.  In fact, this is precisely the reason why firing squads were designed in this matter; it was thought that it would alleviate the guilt of the executioners by making each feel that they were not truly responsible for the result.

Of course, this results in a paradox.  If Person A is not responsible, then none of the others are responsible either because their situation is the same.  Hence no one is responsible for the event.  How can this be the case?

I urge readers to read Stewart's essay to evaluate his own preferred solution to the problem.  Here I want to concentrate on one element of the issue as it pertains to current doctrine at the ICC.  The doctrines of indirect perpetration and indirect co-perpetration require that the defendant make an essential contribution to the collective crime in order for liability to attach to the defendant.  As many scholars have noted, this yields a problem about the level of description.  If the defendant had not participated, a resulting crime would no doubt have occurred, but it would be slightly different from the crime that had occurred with the defendant's participation.  Should we call this the same crime or a different crime?  What is the line between the same crime and a "new" crime?  And does this exercise in description have normative significance for criminal responsibility?  It would be strange to think that responsibility should track this linguistic exercise.

The ICC might eventually revisit this issue.  For now, I would simply note that the Office of the Prosecutor has argued to the court that the "essential contribution" standard for indirect perpetration liability should be dropped in favor of a "substantial contribution" standard.  This would avoid the "sine qua non" problem of description that I have just elucidated, but the question is whether the substantial contribution requirement is strict enough.  Is simply removing the standard of the "essential contribution"and appropriate way of resolving ambiguities about how it should be applied?

Friday, November 2, 2012

Margulies on the Fate of Conspiracy

Peter Margulies has a great post over at Lawfare on the fate of conspiracy as a crime punishable before military commissions.  The D.C. Circuit recently ruled in Hamdan II that the crime of providing material support to terrorism could not be prosecuted before a military commission because it was not already a violation of the law of nations.  The same argument regarding conspiracy is now ripe for review in the Bahlul case and will presumably reach the D.C. Circuit as well.  How will the judges rule?

Margulies analyzes the fate of conspiracy and concludes that it might have a brighter future with the D.C. Circuit than material support. Whether this prediction comes true or not, one of the things that I like most about his analysis is that he takes great pains to distinguish between conspiracy as an inchoate offense and conspiracy as a mode of liability, and that the analysis might be different for each one.  (For a different prediction, see Kevin Heller's post at Opinio Juris).

Conspiracy is a separate offense when it is charged as a distinct crime, and requires an agreement between two or more individuals to commit an unlawful act.  As an inchoate offense, the crime to which the agreement is directed need not be completed for the conspirators to be guilty of conspiracy.  The act of agreement itself is the inchoate crime of conspiracy.  The inchoate crime gives prosecutors the advantage of early intervention in a burgeoning criminal endeavor, allowing them to charge individuals without having to wait for them to complete their criminal plan.

Conspiracy as a mode of liability is a way in which a crime can be perpetrated, and it provides a doctrinal avenue to establish the defendant's vicarious liability for the acts of his or her co-conspirators.  Therefore, all conspirators are guilty of murder (or terrorism) just as much as the one conspirator who pulls the trigger or detonates the bomb.  Consequently, conspiracy as a mode of liability requires someone to complete the underlying crime.  Under the federal doctrine of Pinkerton liability, a co-conspirator may be held responsible for the acts of co-conspirators that fall outside the scope of the original agreement or plan, just as long as those wayward actions were reasonably foreseeable.

Now here's the relevance of this distinction.  Conspiracy as an inchoate offense has been rejected in international criminal law, though there are pockets of uncertainty with regard to conspiracy to commit genocide, which is included in the Genocide Convention and the ICTY and ICTR Statutes (though excluded from the ICC Statute).  But otherwise, conspiracy is disfavored.  In his amicus brief before the Supreme Court in Hamdan I, George Fletcher referred to the inclusion of conspiracy to commit genocide in the ICTY and ICTR Statutes as the "afterglow of a dying concept".  (See also my analysis of conspiracy to commit genocide in the OUP Genocide Convention Commentary here.)

However, conspiracy as a mode of liability is a more complicated business, as Peter Margulies rightly notes.  There are a whole host of international doctrines that cover roughly the same ground as conspiracy, and might be functional analogues to conspiracy.  The most notable is Joint Criminal Enterprise, whose third variant (JCE III) is exactly the same as Pinkerton liability (up to and including the requirement of reasonable foreseeability).  Although the ICTY Appeals Chamber has consistently claimed  that JCE and conspiracy are wholly distinct, I view them as roughly similar, since JCE liability allows a conviction for participating in a joint crime and requires an agreed upon plan or endeavor.

If and when the issue of conspiracy comes before the D.C. Circuit, I hope the judges take the time to untangle the two strands of conspiracy, and carefully consider in their analysis the other international doctrines that are roughly equivalent to conspiracy as a mode of liability.