Tag Archive | "International Criminal Court"

Source: The Washington Post

Duty to Repatriate: The Case of Foreign Combatants in Kurdish Prisons

I. Introduction

Source: The Washington Post

Source: The Washington Post

The Kurdish militias in Northern Syria have taken hundreds of foreign detainees over the course of their recent offensive against the Islamic State in Iraq and the Levant (ISIL).[1]  The Kurdish position is that their home countries should repatriate them, but few countries have consented to do so.[2] The situation of the detainees falls within the minimal protections provided by Common Article 3 of the Geneva Conventions for conflicts that are not of an international character.[3]  Many of the countries with citizens detained by the Kurds are signatories to Protocol II of the Geneva Conventions which sought to further clarify detention for non-international conflicts, however the protocol specifies no previsions for repatriation at the conclusion of hostilities other than to note the captors have an obligation to ensure the safety of the detained upon release.[4]  Between 2007 and 2012, representatives from twenty four countries and several multinational organizations made a considerable effort to reach consensus on applicable international legal regimes in modern conflict and to agree on principles, rules, and standards for treatment of detainees.[5]  This effort culminated in the release of The Copenhagen Process Principle and Guidelines on Detention; however, this framework is inadequate to address what ought to happen to non-state enemy detainees who are being held by a non-state actor like the Kurds.[6] The detainees pose a unique legal challenge for all parties involved.  It is a situation that is largely without precedent and it has no clear solutions.  This article will explore the options and obligations of the international community in bringing these individuals to justice.

II, Background

The Yekîneyên Parastina Gel (YPG), or People’s Protection Units are a Kurdish militia in Northern Syria. They have been key partners to the United States in the war against ISIL in Syria.  From the onset of the U.S. intervention at the Seige of Kobani in 2015, the YPG have proven to be a capable ground force and reliable partner.  The YPG have attracted support from the U.S., French, and British militaries.[7],[8] This has generated substantial tension within NATO as Turkey claims that the YPG is a terrorist group and subordinate to the Kurdistan Workers Party (PKK).[9]

On November 6th, the YPG announced their operation to isolate the ISIL’s de facto capital of Raqqa, Syria.[10]  By June 6th, 2017, the YPG had successfully seized Tabqah City the strategic Tabqah Dam, and they had encircled Raqqa City.[11]  By October 20th, the city had fallen.[12]  Over the course of the operations, the YPG imprisoned dozens of ISIL combatants on a daily basis.[13]  The United States intelligence community estimated that as many as 40,000 foreign recruits traveled to Iraq and Syria to join ISIL.  Facing military defeat, many of these foreign fighters attempted to exit the crumbling caliphate the same way they arrived, by crossing the Turkish border.  A large number of these individuals were detained by the YPG as the attempted to cross Kurdish lines north of the Euphrates.

As of July of 2018, the YPG held 593 men from forty seven different countries in detention facilities in Northern Syria.[14]  Roughly eighty were from Europe, with ten to fifteen from France and Germany.[15]  These individuals present a unique problem for the Kurds as they attempt to negotiate their status in a future unified Syria.  The detainees are a major logistical challenge and a resource drain on a minimally equipped militia.  The detainees pose a major security risk. Additionally, historically detention facilities tend to further radicalize extremist inmates,[16]  which poses a major strategic liability.  Turkey has gone to great lengths to portray the YPG as human rights abusers.  The longer these detainees are held, the more likely outside observers are to agree.

III. Options for the Kurds

A. Transfer, Expulsion, or Repatriation

Following the surprise announcement of a full United States withdrawal, the Kurds have hinted that their most likely course of action will be a transfer to the Syrian regime.  This option is not palatable given the Assad regime’s history of grave human rights abuses.[17]  The Kurds are aware the poor optics this option would create with their western benefactors; however, the impending U.S. troop withdrawal leaves them with few options.  One option is to expel the detainees across the border into Turkey.  This is not a viable option because it is quite possible the Kurds would end up meeting these individuals again on the battlefield as members of Turkish support militias, which are in direct conflict with the YPG in Afrin Canton.  Given their lack of both resources and options, the Kurds have requested that the detainees’ home nations repatriate their citizens.  Thus far, few countries have honored their request.

IV. Options for International Community

A. International Criminal Court (ICC)

The crimes perpetrated by the ISIL, namely torture, genocide, use of child soldiers, and sexual slavery, fall squarely within the subject matter jurisdiction of the International Criminal Court (ICC).[18] The international community is unable to try their crimes in the ICC because the court lacks territorial jurisdiction of both Iraq and Syria, neither of whom are signatories to the Rome Accord.[19]  It is possible for the U.N. Security Council to designate the conflict within the ICC’s jurisdiction but the court has interpreted referrals of “situations” within the context of the Rome Statute as pertaining to specific conflicts, not specific organizations.[20]  For example, the ICC rejected an organization-based designation and favored territorial jurisdiction over all actors in Uganda when Uganda referred their conflict with the Lord’s Resistance Army to the ICC in 2002.[21]  This means Russia would likely veto any effort to refer the conflict to ICC jurisdiction since it would expose Russia’s ally, Bashar al-Assad, to ICC prosecution.

B. Independent Criminal Tribunals

Another option to bring these individuals to justice is for the U.N. Security Council to establish a tribunal with specific jurisdiction over ISIL fighters.  There is precedent for this, such as the International Criminal Tribunal for Former Yugoslavia, Special Tribunal for Lebanon, and the International Criminal Tribunal for Rwanda.[22]  This option is the most appealing from an ideological standpoint given the chaos that reigns in Syria; however, from a logistical standpoint these tribunals have been extremely costly, have never tried people on the scale that this situation would necessitate, and have not yielded a particularly high conviction rate.[23]  This option may also be counter-productive in countering ISIL’s strategic narrative, since it would likely be perceived as granting victor’s justice and would functionally immunize Bashar al-Assad and his military from prosecution.

V. Options for Detainees’ Home Nations

The detainees’ home nations also have poor options to deal with the detainees.  They can elect to repatriate their citizens or leave them in the indefinite detention of the Kurds.  Repatriating their citizens gives rise to two basic courses of action.  Either the individuals can be tried in the court system of the receiving country, or the home nations can attempt to de-radicalize and reintegrate the individuals.  Both options come with substantial risks.

A. Trial in the Criminal Justice System

The evidence gathered by the Kurds is unlikely to meet the standards of a modern court system.  A few higher profile detainees have video evidence of their criminality through ISIL propaganda, but they are exceptions to the rule.[24]  Witness testimony and electronic records provide hope for prosecution but successful prosecution is by no means normally a sure bet.  The United States is an outlier in this regard.  The Department of Justice has extensively prepared for ISIL fighters to return to U.S. custody by meticulously tracking individuals known to have traveled to Syria to support ISIL.  Known terrorists have prosecutable cases developed so that in the event they return to U.S. custody, the Department of Justice (DOJ) will be able to try them in a civilian court.[25]  This model is resource intensive but could be viable for other nations, particularly those with a military or intelligence presence in Syria.

This approach is not without its challenges.  The United States encountered this reality when the U.S. military accepted custody of an American citizen who was previously unknown to the DOJ and who had been detained by the YPG. Ultimately the DOJ decided they lacked sufficient evidence to secure a conviction in a U.S. court.  Rather than return him to the U.S. and risk release, the DOJ and DOD planned to release him back into the Syrian desert (from whence he came) with his personal effects.[26],[27]  It is unclear what this individual’s ultimate fate was, but the possibility of this novel outcome illustrates the dearth of good options nations have to bring these individuals to justice.

B. Reintegration

The other option the detainees’ home nations have is to repatriate their citizens and attempt to deradicalize and reintegrate them.  NATO countries have experimented with this option with varying degrees of success.[28]  While Europe is likely more amendable to this solution than the United States, these programs can offend a sense of justice given the magnitude of ISIL’s crimes and risk provoking counterproductive xenophobic rhetoric.  Given the magnitude of ISIL’s crimes, few want to see these individuals return to society.  Since the bulk of ISIL-aligned terrorists conducting operations outside of Iraq and Syria are citizens of the nations in which they conduct attacks, there is a perception that this option carries substantial security risks.

VI. The Case for Repatriation

The most expedient option for these countries is to reject the YPG overtures to return their citizens and leave them in YPG custody.  Thus far, the detainees’ home nations have largely elected to minimize the risk these individuals pose to society by leaving them in Syria.[29]  The of legal obligation to repatriate these individuals allows these nations to argue that they are not culpable in their citizens’ treatment or detention.  Governments are insulated from the level scrutiny they would face if they detained these individuals without due process on their own soil.  Ultimately rejecting the YPG’s request to repatriate these individuals is shortsighted.  Leaving these detainees to the shifting winds of the civil war in Syria will be viewed as a betrayal of Western ideals.  The decision not to repatriate the detainees has ramifications far beyond overburdening a reliably ally in the fight against the Islamic State.  Most importantly, this course of action will reinforce the ISIL narrative that western powers are rife with hypocrisy, and that Muslims do not enjoy equal protection or status in within civil society.[30]  While ISIL has brought some elements of statehood into its brand of Islamic militancy, it is still grounded in the idea that faith transcends the Westphalian concept of state sovereignty.[31]  Deliberately excluding ISIL adherents from the traditional conception of the state validates the ideological foundations upon which ISIL was founded.  Conversely, returning the detainees to their home jurisdiction for criminal prosecution demonstrates to radicalized individuals that despite their beliefs and their best efforts, they do not and cannot exist outside political and social norms.  

VII. The Way Forward

The long-term solution is for the international community to adopt a law of armed conflict that recognizes the modern realities of non-state actors and intrastate conflicts.  Unfortunately, this is unlikely to come to pass in the foreseeable future.  Russia, Iran, and the United States have all extensively exploited gaps left by the current laws of armed conflict within the Syrian Civil War through the use of non-state proxies.  Russia’s use of proxy forces in both Ukraine and Syria, and their use of information operations targeting U.S. elections would likely push the United States in favor of supporting a more comprehensive approach to the law of war which encompasses non-state actors, state sponsor of proxies, and other unconventional means of warfare.  Developing and implementing such a framework with broad international adoption is unlikely while the conflicts continue in Ukraine, Yemen, and Syria.

In the near-term, the home nations of these detainees have a moral obligation to repatriate their citizens.  Leaving these individuals to the Kurds places an unreasonable burden on a reliable partner and validates key aspects of ISIL’s messaging.  Nations can hide behind the reality that they have no legal obligation to repatriate these detainees, but the fact that indefinite detention is legally outsourced makes it no less objectionable.

The United States, having experienced the strategic blowback from its history of extrajudicial detention, is one of the few countries that views foreign detainees as a pressing concern.  The federal government is faced with poor options to cope with the foreign detainees absent home nations that are willing to repatriate them.  There were indications the Department of Defense attempted to negotiate a transfer of the bulk of the detainees to Iraqi custody.[32]  The Shia-aligned Iraqi government has it’s own substantial image problems among Sunni Arabs due to their history of torture, extrajudicial killings, and force displacement of Sunni enclaves.[33]  This course of action is not much better than leaving the detainees with the Kurds given the government of Iraq’s history of human rights abuses, but transferring custody to a nation-state actor is a small step towards legitimacy and it leaves the door open for extradition proceedings for the detained individuals.  Ultimately, given the timetable for U.S. withdrawal, the Kurds will likely transfer the detainees to the Assad regime and be forced to cede their relative moral high ground in their treatment of detained individuals over the course of the conflict.


David Young is a 1L at the DU Sturm College of Law and a DJILP Staff Editor


[1] Charlie Savage, Fighters Fill Syrian Jails, Nations Fear They’ll Come Home, N.Y. Times, July 18, 2018, at A1.

[2] Id.

[3] Geneva Convention Relative to the Treatment of Prisoners of War, art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.

[4] Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609.

[5] Thomas Winkler, Copenhagen Process and the Copenhagen Process Principles and Guidelines on the Handling of Detainees in International Military Operations: Challenges, Criticism and the Way Ahead, 5 J. Int’l Human. Legal Stud. 258, 288 (2014).

[6] Id.

[7] Commons Select Committee on Foreign Affairs, Kurdish Aspirations and the Interests of the U.K. (Feb. 9, 2018), https://publications.parliament.uk/pa/cm201719/cmselect/cmfaff/518/51808.htm.

[8] John Irish & Marine Pennetier, France’s Macron vows support for Northern Syrians, Kurdish militia, Reuters (Mar. 29, 2018), https://www.reuters.com/article/us-mideast-crisis-syria-france/frances-macron-vows-support-for-northern-syrians-kurdish-militia-idUSKBN1H52V1.

[9] John Irish, Turkey or Kurdish YPG militia? Pick a side, Turkish minister tells France, Reuters (Apr. 5, 2018), https://www.reuters.com/article/us-turkey-france-syria/turkey-or-kurdish-ypg-militia-pick-a-side-turkish-minister-tells-france-idUSKCN1HC29Q.

[10] Rodi Said, U.S.-backed Syrian alliance declares attack on Islamic State in Raqqa, Reuters (Nov. 6, 2016), https://www.reuters.com/article/us-mideast-crisis-syria-raqqa-idUSKBN1310GX.

[11] Ellen Francis, U.S.-backed Syria militias say Tabqa, dam captured from Islamic State, Reuters (May 10, 2017), https://www.reuters.com/article/us-mideast-crisis-syria-tabqa-idUSKBN1862E4.

[12] Tom Perry, Raqqa to be part of ‘federal Syria’, U.S.-backed militia says, Reuters (Oct. 20, 2017), https://www.reuters.com/article/us-mideast-crisis-syria-raqqa/raqqa-to-be-part-of-federal-syria-u-s-backed-militia-says-idUSKBN1CP16T.

[13] Savage, supra note 1.

[14] Id.

[15] Id.

[16] Eric Schmidt, Defeated in Syria, ISIS Fighters Held in Camps Pose Security Risks, N.Y. Times, Jan. 24, 2018 at A1.

[17] See Tamara Qiblawi & Gul Tuysuz, Syria reveals fate of people thrown into ‘slaughterhouse’ jails, CNN (Aug. 30, 2018), https://www.cnn.com/2018/08/30/middleeast/syria-prisons-death-notices-intl/index.html.

[18] Int’l Crim. Ct. [ICC], Understanding the International Criminal Court, at 13, https://www.icc-cpi.int/iccdocs/pids/publications/uicceng.pdf.

[19] Int’l Crim. Ct. [ICC], States Party to the Rome Statute, https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx.

[20] ICC supra note 18, at 4.

[21] Situation in Uganda, ICC-02/04, Jurisdiction, (July, 2004).

[22] ICC supra note 18, at 3.

[23] Stephen Schemenauer, Using the Rule of Law to Combat the Islamic State 11, (U.S. Army War College, 2016).

[24] See Adam Goldman & Eric Schmitt, Last 2 of ISIS’ Infamous British Fighters Are Captured by Syrian Kurds, N.Y. Times, Feb. 8, 2018, at A8.

[25] Greg Myre, Americans In ISIS: Some 300 Tried To Join, 12 Have Returned To U.S., NPR (Feb. 5, 2018), https://www.npr.org/sections/parallels/2018/02/05/583407221/americans-in-isis-some-300-tried-to-join-12-have-returned-to-u-s.

[26] Lisa Rose, The US wants to leave this American in Syria with $4,210 and no passport, CNN (June 22, 2018), https://www.cnn.com/2018/06/22/politics/john-doe-syria-isis-passport/index.html.

[27] Resp’t’s Notice Pursuant to the Ct.’s Jan. 23, 2018 Order, Doe v. Mattis, No. 17-cv-2069 (D.D.C. Apr. 17, 2018).

[28] Int’l Centere for Counter-Terrorism – The Hague, Radicalisation, De-Radicalisation, Counter-Radicalisation: A Conceptual Discussion and Literature Review (Mar. 2013), https://www.icct.nl/download/file/ICCT-Schmid-Radicalisation-De-Radicalisation-Counter-Radicalisation-March-2013.pdf.

[29] Savage supra note 1.

[30] Faisal Devji, A life on the surface, Hurst (Sep. 21, 2015), https://www.hurstpublishers.com/a-life-on-the-surface/.

[31] Faisal Devji, ISIS: Haunted by Sovereignty, Spiked Review (Dec. 2015), http://www.spiked-online.com/spiked-review/article/isis-haunted-by-sovereignty/17680#.W4sK65MzrBJ.

[32] Courtney Cube et al., Trump admin may send captured ISIS fighters to Iraq prison, Guantanamo, NBC (Aug. 30, 2018), https://www.nbcnews.com/storyline/isis-terror/trump-admin-may-send-captured-isis-fighters-iraq-prison-guantanamo-n905066.

[33] U.S. State Dep’t, Iraq 2017 Human Rights Report (2017), https://www.state.gov/documents/organization/277487.pdf.

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Meeting in The Hague on 3 February 2015, the International Court of Justice (ICJ) dismissed genocide claims by Croatia and Serbia. UN Photo/CIJ-ICJ/Frank van Beek.

70 Years of Justice

Meeting in The Hague on 3 February 2015, the International Court of Justice (ICJ) dismissed genocide claims by Croatia and Serbia. UN Photo/CIJ-ICJ/Frank van Beek.

Meeting in The Hague on 3 February 2015, the International Court of Justice (ICJ) dismissed genocide claims by Croatia and Serbia. UN Photo/CIJ-ICJ/Frank van Beek.

This week we celebrate a very important birthday – on April 18th, 1946, the International Court of Justice (ICJ) was born. Since its birth 70 years ago, the ICJ has had the opportunity to hear 161 cases. These cases have been entered from large countries like the United States and the former Soviet Union all the way to small ones like Burkina Faso and Malta. I thought I would take this opportunity to explore the history and purpose of this very important court as it’s not one that many American jurists get the opportunity to encounter.

To do so, we need to go back a little further in time. You may be surprised to learn that what Americans know as “alternative dispute resolution” actually predates judicial settlement in history. Mediation had its origins in ancient India and the Islamic world, while arbitration was used throughout ancient Greece, tribal Arabia, and medieval Europe. Finally, in 1899, the International Court of Arbitration was established by the first Hague Peace Conference in the newly built Peace Palace. By the time judicial settlement took its place in the international realm, World War I had just come to an end. The precursor to the ICJ, the Permanent Court of International Justice (PCIJ), was established by the League of Nations in 1920 and heard 29 cases that mostly dealt with issues from WWI.

The PCIJ came to an end when the League of Nations was dissolved and with the establishment of the United Nations, so came the ICJ. This coincided with World War II and a whole new set of issues. Article 1 of the UN Charter defines the ICJ’s purpose is “to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.” Also seated in the Peace Palace at The Hague, Netherlands, the ICJ is composed of 15 judges elected for nine-year terms. Besides settling disputes between nations (contentious procedure), the ICJ also issues advisory opinions on legal questions submitted by UN bodies and agencies (advisory procedure).

However, advisory procedure should definitely not be seen as secondary to contentious procedure. In 1947, the ICJ decided on the conditions necessary for a state to be admitted to the UN, something that still controls today. 1950 brought about procedure regarding the genocide convention following WWII. 1993 and 1995 brought about advisory procedure on the legality of the threat and use of nuclear weapons. Of course, contentious procedure has made its mark on the world too. The Nottebohm case (1950) has been a cornerstone of nationality determinations the world over. The United States Diplomatic and Consular Staff in Tehran case (1980) was brought by the US against Iran following the Iran hostage crisis. Finally, another 10 cases are currently in progress and range on issues from maritime borders to the cessation of the nuclear arms race and disarmament.

Whether or not you believe that international public law is important, the ICJ has made determinations that affect you. Whether you live on a small fishery on the coast of Iceland, drive a gas-powered tractor on a potato farm in Idaho, or dream of a world where nuclear missiles are no longer a threat, your life has been shaped by the decisions of the ICJ. The last 70 years have moved our world in a positive direction. Happy Birthday, ICJ – cheers to the next 70.

Lorne Hiller is a 3L at the University of Denver Sturm College of Law and the Executive Editor of the Denver Journal of International Law and Policy.

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Photo Credit: Witness.org

ICC Convicts Former President Bemba for Atrocities in Central Africa

Photo Credit: Witness.org

Photo Credit: Witness.org

On Monday March 21, 2016 the International Criminal Court (ICC) convicted former Congolese vice-president Jean-Pierre Bemba of war crimes and crimes against humanity committed during the 2002-2003 situation in the Central African Republic (CAR). Bemba was convicted by the ICC of two counts of crimes against humanity, for murder and rape, and three counts of war crimes, for murder, rape and pillaging. Most importantly though, this is the first trial at the ICC to focus on the use of sexual violence as a weapon of war, and the first time a defendant has been convicted for command responsibility for failing to take action to stop crimes he knows are being committed by his troops. More than 5000 victims participated in the hearings, the highest number in ICC history.

In 2002 Bemba was commander-in-chief of the Movement for the Liberation of Congo (MLC) when then president of the CAR, Ange-Felix Patasse, requested his assistance in putting down a coup waged by a group of soldiers loyal to former CAR president Kolingba. In coordination with Colonel Qaddafi of Lybia, Bemba sent 1,500 MLC troops to the CAR, who were accused of committing more than 1,000 rapes, in addition to widespread murder and pillaging.

Article 7 of the Rome Statute, which provides for the establishment and administration of the ICC, defines crimes against humanity as “acts when committed as a part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” Article 7(g) identifies “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” as acts which may be invoked to constitute the actus reas of a crime against humanity. Article 8 defines war crimes as grave breaches of the Geneva Convention, including acts against persons or property, when committed as part of a plan or policy or as a part of a large-scale commission of such crimes. Under this definition, the over 1,000 rapes committed by the MLC troops, rises to the level required by the statute in a non-international conflict, and the actus reas of rape is expressly included in 8(2)(e)(vi). 8(2)(f) does limit the situations in which rape or sexual violence can be considered ample actus reas to convict of war crimes to those where there is a protracted armed conflict, hence why this application has never previously been appropriate. In this case, however, the widespread use of rape as a weapon was in evidence from the over 5,000 victim participants.

Commentators have been especially impressed with prosecutors use of Article 28(a) of the Rome statute which allows for a military commander to be held criminally responsible for crimes committed by forced under their control when the military commander knew or should have know that the forcer were committing those crimes, and when that commander failed to take all ‘necessary and reasonable measures within his or her power’ to prevent the commission or to submit the matter to authorities for investigation. Under this Article, the ICC tribunal convicted Bemba as a result of acts committed by his troops which he did not personally commit. This precedent has been heralded by a host of human rights organizations including Amnesty International who said that this verdict, and the principles it espouses, represent a “historic moment in the battle for justice for victims of violence in CAR and around the World.”

This verdict has assured justice for thousands of victims of sexual violence perpetrated as a weapon of war, and the ICC, a beleaguered institution, can now proudly claim to hold commanders responsible for the actions of their troops. However, this investigation began nearly ten years ago, the trial took four years, and the verdict came almost two years after close of arguments. The ICC handles cases which are complex and sensitive, often taking a long time to go through evidence and allow for victim participation. Critics of the court cite its long lag-times, exorbitant costs, and lack of international participation as reasons why it has been a failure at bringing perpetrators, especially those outside of Africa, to justice. Hopefully those critics concerns are at least partially dissuaded by the conviction of Jean-Pierre Bemba, because this verdict is more than just another conviction of a despised African war-lord. By convicting Bebma of rape as a result of command responsibility under Article 28, it is a huge step forward towards strengthening the enforcement of the principles that lay at the foundation of the ICC.

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Hospital Taliban Fire

25 Dead, 1 Apology, No Clear Answers: Has the U.S. Committed a War Crime?

Hospital Taliban Fire
Fires burn in the MSF emergency trauma hospital in Kunduz, Afghanistan, after it was hit and partially destroyed by aerial attacks on October 3, 2015.

In the wake of the Taliban’s takeover over the Afghan city of Kunduz last week, United States and Afghan military forces have waged a fight to reclaim control of the city. On Saturday, September 3rd, the U.S. bombed a Médecins Sans Frontières/Doctors Without Borders medical facility in Kunduz. The facility, the only facility of its kind in that region of Afghanistan, regularly served thousands of patients for free. Médecins Sans Frontières has called for an independent investigation into what they have deemed a “war crime.” This tragedy has led many in the general public to wonder: What qualifies as a war crime?

The International Criminal Court lists the definition of a war crime as, “grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict and in conflicts “not of an international character” listed in the Rome Statute, when they are committed as part of a plan or policy or on a large scale.” It goes on to list prohibited acts, which include: “intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals.” The Geneva Conventions protect war victims and make up the foundation of international humanitarian law.

If a war crime includes intentionally attacking hospitals, the question becomes: Did the United States intentionally hit the medical facility in Kunduz? The response from U.S. officials has included a variety of conflicting explanations. Initially, the U.S. military said Taliban fighters were directly firing on U.S. service members in the vicinity of the hospital and a hospital may have been struck. There were also reports that Taliban members had taken up positions within the hospital and were using it as a firing position.  The next explanation, from General John Campbell, commander of U.S. forces in Afghanistan, stated that Afghan forces had called for air support from the U.S. military, admitted that the hospital had in fact been struck accidentally and was “a U.S. decision made within the U.S. chain of command.”

With conflicting explanations and a multitude of unclear facts, determining whether this was in fact a war crime requires a clear understanding of the factual happenings on the ground and the decisions leading up to the strike on the hospital. Médecins Sans Frontières has called for an independent investigation of the attack, saying that an independent investigation would help ensure “maximum transparency and accountability.” It is currently advocating for the first ever use of the International Humanitarian Fact-Finding Commission. The Commission was established by the Protocols to the Geneva Conventions and serves to investigate grave breaches and serious violations of international humanitarian law. It has never before been called upon to investigate. Meanwhile, President Obama has apologized to Médecins Sans Frontières and assured it that the U.S. is conducting a joint investigation with NATO and the Afghan government.

Until we know whether or not the attack on the Médecins Sans Frontières hospital was truly an accident and whether or not there were Taliban fighters using the hospital as a launching ground for attacks, there cannot be a definitive answer as to whether these attacks qualify as “war crimes” under international humanitarian law. If the answer becomes clear, it will only lead to more questions. What next? How do we prevent this from happening again? How will the U.S. respond to Médecins Sans Frontières, the families of those ten adults, three children, and twelve Médecins Sans Frontières staff who were killed? Only time, and a truly transparent investigation, will tell.

Julie Marling is a 3L at the University of Denver Sturm College of Law and is the Training and Cite and Source Editor on the Denver Journal of International Law and Policy.

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Michael Kirby, Chairman of the U.N. Commission of Inquiry on Human Rights in North Korea

Critical Analysis: Will the Crimes Against Humanity perpetrated in North Korea be prosecuted in the ICC?

October 28, 2014

Speaking before the UN General Assembly on Oct. 28, 2014, Marzuki Darusman, the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea (DPRK) encouraged action to stem the ongoing human rights abuses in the country.  Specifically, Mr. Darusman encouraged submitting the Commission of Inquiry’s report to the Security Council to “send an unequivocal signal” to the DRPK that serious follow up would be taken.

The report itself found systematic, widespread, and gross human rights violations amounting in some cases to crimes against humanity.  The human rights violations are unsurprising to most members of the international community.  Amnesty International and Human Rights Watch have both reported on the many egregious conditions imposed upon the people of the DRPK.  One example are prison camps for political offenders that impose ‘collective punishment’ (imprisoning entire families, including the children of offenders).  According to the US State Department, the political prisoners number in the tens of thousands and may exceed 80,000 individuals.

Although Mr. Darusman’s recommendation before the General Assembly made headlines, the statement is a reiteration of the findings of the Commission.  Specifically, the Commission stated that:

The United Nations must ensure that those most responsible for the crimes against humanity committed in the Democratic People’s Rebublic of Korea are held accountable.  Options to achieve this end include a Security Council Referral of the situation to the International Criminal Court or the establishment of an ad hoc tribunal by the United Nations.

The language used in the Commission’s report demonstrates a clear call for justice on the international stage.

Michael Kirby, Chairman of the U.N. Commission of Inquiry on Human Rights in North Korea

Chairman of the U.N. Commission of Inquiry on Human Rights in North Korea, Michael Kirby, spoke at U.N. headquarters, urging action on the report. Photo Credit: Salvatore Di Nolfi / European Pressphoto Agency, http://articles.latimes.com/2014/feb/17/world/la-fg-un-north-korea-20140218.

Non-cooperation has been an ongoing problem for the Commission, as is noted in the report, but recent developments must have caught the attention of the DRPK officials.  Mr. Darusman was “unexpectedly” met by four North Korean diplomats who sought to discuss a potential visit to the DPRK.  The meeting was the first contact with a UN inspector regarding the human rights situation in the last 10 years.  Reaching out may be a good sign, but it remains to be seen whether North Korea will allow Mr. Darusman access to the political prisons much less acknowledge their existence.

Equally unclear is whether the issue would withstand the veto powers of Russia or China if it reaches the Security Council.  Both nations have aligned with North Korean interests in the past.  Russia itself currently faces significant political pressure in the international arena, but that is certainly no predictor of how the delegation will vote.

Jordan Edmondson is a 3L at University of Denver Sturm College of Law and a Staff Editor for the Denver Journal of International Law and Policy.

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Sign at the International Criminal Court.

Critical Analysis: Gaza Conflict, Palestine, and the ICC

After a cease-fire ended the fifty day war between Gaza and Israel, Palestine wants to bring charges against Israeli individuals for war crimes and crimes against humanity. Therefore, Palestine has an important decision to make: become a state to the Rome Statute, which grants the ICC jurisdiction, or remain a non-member observer state and submit another ad hoc declaration to the ICC, which grants the ICC jurisdiction. To understand the arguments circling Palestine’s decision, it is important to know the history of the Gaza conflict.

The Palestine-Arab and Israel conflict (“Gaza conflict”) began after WWII when Jewish people wanted their own country and were given land in Palestine.  In 1967, Israel went to war and gained authority over the Gaza Strip from Egypt and the West Bank from Jordan: two territories that were heavily populated by Palestinian-Arab persons. In 2005, Israel “removed” its troops and a group called Hamas rose to power. Most countries, including the United States, consider Hamas a terrorist organization. The Hamas group refuses to recognize Israel as a country, and wants Palestinians to have their original land back and is not afraid to use violence to get it. With the rise of Hamas, Israel is a target and unsafe, therefore, Israel has been holding Gaza under a blockade, controlling Gaza’s coastline and the Gaza-Israel border. This blockade has resulted in many effects for over a million Palestinians: unemployment, hunger, and poverty.

Sign at the International Criminal Court.

International Criminal Court. Image Source: © Richard Wareham Fotographie / Alamy.

Thus, the main Palestinian demand is for the blockade to be lifted. Furthermore, Palestinians want prisoners released, reconstruction, and rights to fish off the Gaza coast. Conversely, Israel wants Hamas to recognize it and ensure its safety.

Now with a better understanding of the Gaza conflict, this brings us to the current issue: should Palestine grant the ICC jurisdiction either by accession to the Rome Statute or submitting another ad hoc declaration without accession? Because an ad hoc declaration does not obligate the prosecutor to open an investigation, accession is a better option. Accession will allow Palestine to seek judicial review if the prosecutor exercises her discretion and does not proceed with an investigation. However, under the Rome Statute, the UN Security Council can prohibit the prosecutor and the court from launching an investigation by passing a Chapter VII Resolution every twelve months. Added in 1998, this provision allows sensitive political negotiations (in this case, peace talks in the Middle East) to outweigh justice. As Joe Stork, Deputy Middle East Director at Human Rights Watch, points out this balancing test should not apply to the current conflict: “[t]he argument that Palestine should forego the ICC because it would harm peace talks rings hollow when 20 years of talks have brought neither peace nor justice to victims of war crimes.” Furthermore, “[t]he US, Israel and others who are pressuring Palestine not to seek the ICC’s jurisdiction cannot credibly argue that continued impunity for serious international crimes will help bring the conflict to an end.”

If Palestine decides to accession to the Rome Statute, it should determine whether it can secure a veto from one of the five permanent members of the UN Security Council in case a Chapter VII Resolution is submitted. Because countries like the U.S., the U.K., and France are opposed to Palestine becoming a state, it is likely that a Chapter VII Resolution would be submitted, and if a veto cannot be secured, then there is hardly a point to accession.

Open Issues:

In July 2014, the Palestine Liberation Organization (PLO) announced that at the Committee on the Elimination of Racial Discrimination’s annual meeting in August, PLO would request that Israel be designated an apartheid state because of its policies and measures against Palestine. If Israel is labeled an apartheid state, would this cause countries to shift from opposing Palestine’s enlistment of the ICC to supporting Palestine’s enlistment?

If Palestine becomes its own state, like Hamas wants, what will happen to Israelis who live in the current territory, such as the West Bank? And if the ICC is granted jurisdiction by Palestine, but Israel remains in control of Gaza, can the ICC conduct a proper investigation?


Cheyenne Moore is a 2L at the University of Denver, Sturm College of Law, and Survey Editor for the Denver Journal of International Law and Policy.

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Critical Analysis: Kenya’s Deputy President William Ruto to be Tried at the International Criminal Court, and the ICC to be tried by the Kenyans

William Ruto, Kenya’s Vice President appeared before the International Criminal Court (ICC) for the first time on September 10, 2013 for his trial.  Ruto is charged with crimes against humanity in response to the ethnic cleansing that occurred shortly after the 2007 presidential election.  During this cleansing, more than 1,000 people died and 600,000 people were homeless.  Along with Ruto, two other Kenyans are being tried for the same crimes: a radio journalist named Joshua Arap Sang and Kenyan President Uhuru Kenyatta, who during the 2007 election supported the opposing political party, former President Kibaki.


William Ruto, Kenya’s Vice President appears in the ICC for trial.

Ruto was the first of the three Kenyans to appear in court, and specifically faces charges of murder, persecution, and forcible transfer of people.  He is also charged as being a co-conspirator with Sang for orchestrating the murder and deportation of political supporters of the rival political party in the Rift Valley region.  He pleaded not guilty to all counts, and has assured his supporters that the case against him is fiction since the case is built upon a conspiracy of lies.   Despite Ruto’s calm and almost cavalier attitude about the case, Chief Prosecutor Fatou Bensouda opened by explaining that Ruto’s actions resulted in cold-blooded, deliberate murder and the relocation of thousands of people, decimating Kenya as well as the world’s perception that Kenya was a peaceful country.  Bensouda is expected to call forty witnesses to try her case.  Consequently, this case is far from decided.  It is estimated to last months, if not years.

Additionally, another type of trial is occurring during the prosecution of Ruto.  Ruto’s case has brought forth questions of whether the ICC is as unbiased and credible as it used to be.  The International Criminal Court is an independent court located in The Hague, Netherlands.  It is intended to be a court of last resort and only tries people for the most serious crimes, which include crimes against humanity, and it does not target specific jurisdictions.  Notwithstanding the ICC’s claims to unbiased, it had been claimed by African countries that the ICC focuses on African countries and avoiding war crimes in other hotspots.

The credibility and effectiveness of the ICC has also been called into question.  The ICC has a low success rate in cases where it is trying public officials for crimes against humanity, and Kenyan support for this case has dramatically diminished.  First, this case is unprecedented in that Ruto, and eventually Kenyatta are still acting public officials.   Ruto will be the first serving politician to be tried in the ICC.  Ruto was re-elected as Kenyatta’s Vice President in 2012, around the same time that the ICC announced that Ruto would face charges.  This continued support for Ruto was evident by the number of Ruto supporters packing the gallery.  This support has even gone so far as to the Kenya’s parliament that recently passed a vote to withdraw from the ICC, symbolizing the dissatisfaction that Kenya has with the ICC.  The other cases where the ICC has had successful convictions only involved previously ousted, unpopular leaders.  Consequently, the ICC is fighting the public opinion of Kenya in this case.

Although the public opinion of the case and the ICC does not have any influence on the actual trial or the evidence presented, the ICC will have an uphill battle in the coming months to convict Ruto of the alleged crimes against humanity given the unpopularity of the case.  Additionally, this case must also prove the unbiased nature and the competence of the ICC to the Kenyan country, the African continent, and the world.  In short, not only must the prosecutor prove her case, but the ICC must indicate through this trial that the ICC can effectively try an alleged and acting politician solely for his crimes against humanity to bring to justice the deaths of Kenyans, demonstrate that political leaders are not above justice, and to bring sustainable peace back to Kenya.

 Katelin Knox is a 3LE and Sutton Editor for the Denver Journal of International Law and Policy.

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Critical Analysis: Don’t forget the “Lost Boys” of Sudan

The name “Lost Boys” was given to a group of over 20,000 boys, between the ages of 5 and 17, who were separated from their families during the Second Sudanese Civil War (1983-2005).  These “Lost Boys” of Sudan trekked enormous distances over a vast unforgiving wilderness, seeking refuge from the fighting that emerged when their Christian villages in southern Sudan were attacked by northern Islamist forces.  Orphaned, these boys traveled a thousand miles across 3 countries, Sudan, Kenya, and Ethiopia.  During their journey, half of the boys died due to starvation, dehydration, disease, and attacks by wild animals and enemy soldiers.  It took these boys 5 years to find safety in a refugee camp in Kakuma, Kenya.  U.N. workers gave the “Lost Boys” their name after the lost boys in the fabled Peter Pan story.

Omar al-Bashir

Omar al-Bashir faces arrest warrants for criminal violations of the Rome Statute.

In 2000, the United States along with the U.N. High Commissioner for Refugees resettled approximately 3,800 Lost Boys in the United States across 38 cities.  The program was stopped after 9/11 for security reasons, though it was eventually restarted in 2004.  As these boys prepared to leave their refugee camps for America, they had to be prepared for a life that they could barely comprehend.  They had to be taught the concept of an electric stove, indoor bathrooms, and winter; essentially a crash course in America 101.  While many of the Lost Boys have become successful, attending medical school, law school, and joining the U.S. military, not all have been so fortunate.  It is no surprise that the horrors they faced as children compounded with being shipped to an unknown country, that some have turned to alcohol, drugs, and crime.

The perpetrator of these unimaginable horrors is Sudanese President Omar al-Bashir.  He came into power in a coup in 1989 and has ruled Sudan with an iron fist ever since.  There are currently 2 arrest warrants for President al-Bashir from the International Criminal Court (ICC).  It is alleged that he is criminally responsible for 10 violations of the Rome Statute based upon his individual criminal responsibility.  The counts include 5 counts of crimes against humanity, 2 counts of war crimes, and 3 counts of genocide.  These warrants require member countries to detain him if he enters into their territories.

Bashir has applied for a U.S. visa so that he may attend the upcoming U.N. General Assembly where he is scheduled to speak.  He would be the first head of state to address the U.N. General assembly while facing charges from the ICC, if he shows up as scheduled.  The U.S. government has made it clear that it does not want Bashir to arrive in New York, but the U.S. has never banned a visiting head of state that wants to speak to the U.N.  Furthermore, per a treaty dating back to 1947, the U.S. is obligated to issue the visa as the U.N. body’s host country.  Bashir says he has already booked his flight and hotel and that he is not worried about U.S. authorities arresting him, as demanded by international human rights groups, since the U.S. is not a member of the ICC.  Bashir says he has a right to attend the U.N. assembly and that “[n]obody in the U.S. can question me or hold me.”

The Lost Boys suffered as children and still suffer from those memories as adults.  Though the U.S. is not a member of ICC, it has ratified the Geneva Convention that punishes those who commit genocide and it has transferred suspects to the ICC before. If he appears in New York, let’s hope that the U.S. remembers the horrors the Lost Boys and millions of others have suffered at the hands of al-Bashir and that the U.S. takes al-Bashir into custody.

Sarah Emery is a 3L and the Executive Editor for the Denver Journal of International Law and Policy

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Judges of the International Criminal Court
(Christian Science Monitor)

Why are War Crimes Sentences So Short?

Earlier this summer, a US District Court issued sentences in a international maritime piracy case that involved four US victims. The defendant was not an actual pirate but a ransom negotiator for the piracy financiers.

A Somali man who acted as a ransom negotiator for pirates who seized a yacht last year and killed four American hostages has been given 12 life sentences by a US federal judge.

Mohammad Shibin was convicted in April on 15 charges including piracy, hostage taking, kidnapping and conspiracy. He was paid $30,000-$50,000 (£19,000-£32,000) in cash for his negotiating services, according to a federal indictment.

In a courtroom in Norfolk, Virginia, Judge Robert Doumar of the US district court sentenced Shibin to serve 10 concurrent life sentences, two consecutive life sentences and two 20-year sentences and ordered him to pay $5.4m in restitution. The Guardian (UK)

Judges of the International Criminal Court
(Christian Science Monitor)

The case illustrates a key difference between domestic courts and international tribunals when exercising jurisdiction over international crimes.  To my knowledge, no international tribunal has ever issued consecutive sentences.  As I recently blogged, the International Criminal Court issued three sentences of 12, 13, and 14 years in its first concluded trial against Thomas Lubanga.  However that Tribunal ordered the sentences to be served concurrently.  They could have issued the sentences to run concurrently up to a maximum of 30 years.  Article 78(3) of the Rome Statute pertains to sentencing and it provides:

 3.  When a person has been convicted of more than one crime, the Court shall pronounce a sentence for each crime and a joint sentence specifying the total period of imprisonment. This period shall be no less than the highest individual sentence pronounced and shall not exceed 30 years imprisonment or a sentence of life imprisonment in conformity with article 77, paragraph 1 (b).

It has always struck me as curious that the drafters of the Rome Statute would want to impose sentencing limits of judges in cases as serious as genocide and other mass atrocity cases.

A sentence of consecutive life sentences such as issued in Shibin is obviously symbolic but nonetheless a powerful statement about the nature of the crime.  Take for example the Dos Erres Massacre case in El Salvador in which four soldiers were convicted of murdering 201 people and sentenced to 6060 years.  As the BBC noted

The sentence is largely symbolic as the maximum actual [maximum] term is 50 years …

The cases at international tribunals often deal with much more egregious crimes – the Ituri region in Lubanga saw 60,000 persons killed.  And yet tribunal judges have been unwilling to issue symbolic sentences that reflect the fact that mass atrocities are not ordinary crimes and should not involve ordinary sentences.

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Congolese Child Soldiers

ICC’s Sentence for Lubanga is a Shaky Conclusion to a Troubled Case

After ten years, the International Criminal Court issued its first verdict on March 14th, finding Congolese warlord Thomas Lubanga guilty of three child soldier related war crimes offenses: conscripting, enlisting, and using child soldiers. The trial phase of the case concluded this summer when the ICC sentence Lubanga to 14 years in July. The paltry sentence is a shaky conclusion to a case that has been troubled from the beginning.

Thomas Lubanga at the ICC

Controversy first appeared when the Prosecution team charged Lubanga only with the child soldier offenses. The prosecution surprisingly did not indict Lubanga with the substantive crimes committed by the child soldiers, namely thousands of instances of murder and rape. It is standard fare for tribunals to charge military commanders for the crimes committed by their subordinates, and so the Lubanga indictment seemed conspicuously narrow and unrepresentative of the mass crimes in the Ituri region of the Congo in which 60,000 were killed. And the indictment rankled many because of its failure to reflect the widespread commission of gender crimes.

The start of the trial saw the proceedings immediately halted over allegations of impropriety by the prosecution in its reliance on investigative “intermediaries.” It turns out the prosecution paid Congolese civilians to help them in the Congo. The “intermediaries” helped prosecutors identify and locate witnesses during its investigation, a practice which the court found in the trial judgment to be a misplaced delegation of responsibilities. The court indicated that several intermediaries may have facilitated false testimony. The prosecution did itself no favors by stubbornly defying direct court orders to disclose the names of intermediaries to the Lubanga defense team.

Congolese Child Soldiers

Despite this rough beginning, an appropriate judgment and sentence would have gone a long way toward erasing the memory of the ignominious start. But there would be no such luck. The court issue sentences of 12, 13, and 14 years for the “enlisting”, “conscripting”, and “using” counts respectively, a sentence that does not seem commensurate with Lubanga’s role in the mass slaughters or the enslavement and brutalizing of children. Adding insult to injury, the court ordered the sentences to be served concurrently and imposed an actual sentence of 14 years. The court had the option of ordering the sentences to be served consecutively — up to a 30 year maximum. Even better, it could have issued a life sentence.

The BBC reported at the time of the sentencing that Mike Davis, from the human rights organisation Global Witness, said that “the sentencing of Lubanga was an ‘important development’ but that it sounded like ‘a rather low sentence in relation to the crimes that he committed.’” Congolese government spokesman Lambert Mende “agreed that he should have been jailed for longer…” Mende diplomatically offered that the meager sentence was at least a “positive signal” for peace in the region.
In his sentence, Judge Adrian Fulford went out of his way to compliment Lubanga for his conduct and cooperation during the trial and critical of the prosecution. And Fulford lambasted the prosecution.

I am not defending the prosecution in Lubanga, but it should never be the case that a prosecutor’s conduct ever serves as mitigation in the sentence of a war criminal (just as the conduct of the defense attorney can never constitute an aggravating factor). Criminal sentences can only be issued on the merits of the case. Punitive measures against a prosecutor should be an entirely independent action.

Receiving credit for his six years of pre-trial detention, the 51 year old Lubanga has eight years remaining on his sentence – a term that could be significantly lessened for good behavior. It is a sweet deal for Lubanga, but the latest in a long string of bitter pills the Congolese have had to swallow.

At the very least, one hopes Lubanga’s deal is sweet enough to cause Sudanese President al Bashir to rethink his refusal to submit to the court’s jurisdiction.

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University of Denver Sturm College of Law