Tag: international criminal law

Recognising male victims of sexual violence in war: the UN Security Council and ad hoc tribunals – Richard Hughes

Editors Analysis, Articles, Opinion

Australia has provided steadfast support for the UN’s agenda on women, peace and security, ever since the landmark Resolution 1325. This agenda has done much to shine light on the sexual violence perpetrated against women and girls in times of war. But what about the male victims – where do they fit into the picture?

 

Resolution 1325, passed unanimously in 2000, marked the beginning of the Security Council’s direct engagement with the issues of gender and sexual violence in armed conflict and has since served as the organising framework for the UN’s agenda on women, peace and security. The Security Council has subsequently passed a number of related resolutions on sexual violence, but only one resolution makes mention of male victims. Resolution 2106 notes that sexual violence in armed conflict “disproportionately affects women and girls, as well as groups that are particularly vulnerable or may be specifically targeted, while also affecting men and boys and those secondarily traumatized as forced witnesses of sexual violence against family members”. Evidently, there is a conceptual difficulty associated with including the male experience in an agenda otherwise focused on women and girls, and it seems that the best the Security Council has been able to do is include a passing mention.

In Resolution 1820, the Security Council notes that “women and girls are particularly targeted by the use of sexual violence, including as a tactic of war to humiliate, dominate, instil fear in, disperse and/or forcibly relocate civilian members of a community or ethnic group”. But the effects of sexual violence as a weapon of war are equally devastating when men and boys are targeted. In the same resolution, the Security Council also “[d]emands that all parties to armed conflict immediately take appropriate measures to protect civilians, including women and girls, from all forms of sexual violence, which could include … debunking myths that fuel sexual violence”. It is not clear exactly what the Security Council has in mind here, which leaves the impression that it is simply making a throwaway comment. A more detailed consideration of the myths fuelling sexual violence would help to shine light on both female and male experiences of sexual violence.

From the perspective of male victims, Resolution 1888 poses another issue. It “[e]ncourages leaders at the national and local level, including traditional leaders where they exist and religious leaders, to play a more active role in sensitising communities on sexual violence to avoid marginalisation and stigmatization of victims, to assist with their social reintegration and to combat a culture of impunity for these crimes”. But traditional and religious leaders are often highly complicit in conservative attitudes, which marginalise and stigmatise male victims of sexual violence. For this reason, the implication that they simply sit back and fail to do enough may misconceive their existing role, as well as their personal attitudes to male victims of sexual violence generally. In the Secretary-General’s report to the Security Council on conflict-related sexual violence, he made a similar recommendation to Member States and regional organisations “[t]o support the engagement of religious leaders … with the objective of curbing violent extremism, preventing the justification of sexual or other violence on religious grounds and addressing the stigmatisation suffered by survivors of sexual violences”. This recommendation appears to be worded in a slightly more appropriate way.

A cynic may note that Security Council resolutions are, by their nature, typically broad in scope and worded in such a way as to secure support from a diverse number of countries and (most importantly) all five permanent members of the Security Council. At any given time, at least some member states on the Security Council are probably unwilling to discuss male victims of sexual violence in a meaningful way.

However, this has not been an insurmountable problem. The Security Council has done more for male victims of sexual violence in armed conflict through resolutions establishing ad hoc international criminal tribunals than it has through resolutions under the agenda on women, peace and security. The International Criminal Tribunal for the former Yugoslavia (“ICTY”) has led the way in handling sexual violence in armed conflict under international law, despite the fact that it is only an ad hoc tribunal with strict geographic and temporal limits. Numerous cases before the ICTY have made specific mention of sexual violence against males during the Yugoslav Wars. For example, Prosecutor v Brđanin (Judgement), Prosecutor v Krajišnik (Judgement), and Prosecutor v Martič (Judgement) all make mention of sexual violence against males, often in the context of discussing sexual abuse or rape generally. In Prosecutor v Mucić (Judgement), the Chamber also noted that an act of forced fellatio between two men could have constituted rape “for which liability could have been found if pleaded in the appropriate manner”.

These cases have undoubtedly helped to shine light on inhuman and politically inconvenient wartime events. But it has not been smooth sailing. The current Deputy Prosecutor of the ICTY, Michelle Jarvis, has recently acknowledged that the Prosecution missed some opportunities to characterise sexual violence against males as rape. This reflects a wider issue before international criminal tribunals: the comparatively easier route of treating males as victims of torture or some form of ill-treatment other than sexual violence.

This approach follows, as a matter of course, in the judgments. For example, in Prosecutor v Tadić (Opinion and Judgement) – the very first case before the ICTY – the indictment included charges for “persecution, inhuman treatment, cruel treatment, rape … torture [and] wilfully causing great suffering or serious injury to body and health”. The incident in which one detainee in the Omarska Camp was forced to bite off the testicles of another detainee was subsumed by the Chamber under “inhuman treatment, wilfully causing great suffering or serious injury to body and health, cruel treatment and inhumane acts”, seemingly because it could not be classified as rape (the only charge of an explicitly sexual nature in the indictment). Although the subsumption of crimes of sexual violence under different categories may provide them with an important threshold of seriousness, it will still prevent the adequate prosecution of these offences.

Sandesh Sivakumaran, one of the first legal scholars to focus in depth on male victims of sexual violence in armed conflict, has developed an insightful framework for understanding how sexual violence against men has been handled in the ad hoc tribunals. It may have been: (i) mentioned but not characterised as sexual violence, (ii) mentioned and characterised appropriately, but without any consequences attaching or (iii) mentioned and characterised appropriately, with consequences arising therefrom. The first category would include the Tadić incident explained above, as well as an incident mentioned in Prosecutor v Simić (Judgement), where a police truncheon was rammed up the anus of a detainee. The Simić incident was explained under a sub-heading of the judgment titled “Evidence relevant to other acts”, which came under a chapter of the judgment entitled “Beatings, Torture, Forced Labour and Confinement under Inhumane Conditions”. The problem with this approach is that it does nothing to show the susceptibility of males to sexual violence, clearest when males are in detention and at their most vulnerable. The second category highlights judgements which carry the risk of insinuating that the sexual violence that occurred is not overly important when compared to other harms suffered. The third category is the clearly the most appropriate. An example is the approach taken in Prosecutor v Češić (Sentencing Judgement), which included an account of two Muslim brothers detained at Luka Camp and forced at gunpoint to perform fellatio on one another in the presence of camp guards. This incident was ultimately categorised as “sexual assault, constituting a crime against humanity (rape) and a violation of the laws or customs of war (humiliating and degrading treatment)”, to which the Accused pled guilty.

How do we explain the different approaches taken when the facts of a case show incidents of sexual violence? There is probably no satisfactory answer to this. Firstly, it must be appreciated that it was only with the creation of ad hoc tribunals in the 1990s that sexual violence was prosecuted under international law for the first time since World War II (sexual violence was not prosecuted at the Nuremberg trials, but it was at the International Military Tribunal for the Far East in Tokyo, following the “Rape of Nanking”). Secondly, attitudes towards and understanding of sexual violence against males are continuing to evolve. Thirdly, there have been 86 permanent or ad litem judges appointed to the ICTY since its inception and they have come from all corners of the world and from both sides of the traditional common law-civil law jurisdictional divide. This makes consistency in the prosecution and judgment of cases very hard to expect.

Consideration of sexual violence against males within the International Criminal Tribunal for Rwanda’s (“ICTR”) jurisprudence is much more limited than that of the ICTY. This could be reflective of a lower incidence of sexual violence against males during the Rwandan Genocide than during the Yugoslav Wars, but this cannot be determined with any authority in the absence of adequate information. In Prosecutor v Niyitegeka (Judgement and Sentence), an act of castration and hanging of the victim’s genitals on a spike was not characterised as sexual violence, possibly because it was deemed unnecessary to do so (given that the victim had already been killed and decapitated). Yet when dealing with the same count of the indictment, entitled “Crimes Against Humanity (Other Inhumane Acts)”, the Chamber did make mention of “sexual violence on the body of [a] dead woman”. This peculiar difference suggests an inability to conceive of castration by a male perpetrator as sexual violence. Consider also a harrowing account of the violence that occurred in a church in Prosecutor v Bagosora (Judgement and Sentence). Castration took place yet again and men (including priests and military observers) were forced to watch as women were raped and killed, with gendarmes beating the men with rifle butts if they averted their eyes. All aspects of their mistreatment in this scenario could be considered as sexual violence, but the Chamber did not treat the male experience in the same way. Although sexual violence was suffered here by men and women alike, the sexual aspect of the violence suffered by men was evidently lost in a sea of other disturbing details.

Australia has thus far played a positive role in the fight against impunity for conflict-related sexual violence. For example, the Australian government has developed a National Action Plan on Women, Peace and Security, to be implemented at home and overseas, in support of the UN agenda to which Resolution 1325 gave birth. But perhaps Australia can now advocate for a broader response to sexual violence, inclusive of the sexual violence that also affects males in wartime. Doing so will assist the work of any future ad hoc tribunals, possibly in South Sudan or Syria, as well as the ongoing work of the International Criminal Court.

 

Richard Hughes is a Juris Doctor candidate at the University of Melbourne Law School.

International criminal law and autonomous weapons: a challenge less considered — Sarah Ahern

Editors Analysis, Articles

As early as 1950, computer scientists such as Alan Turing were considering whether a machine might ever be capable of thought and, if so, what the implications of this might be for humankind. Turing opined that

I believe that at the end of the century the use of words and general educated opinion will have altered so much that one will be able to speak of machines thinking without expecting to be contradicted. (Alan Turing, ‘Computing Machinery and Intelligence’ (1950) 49 Mind 433, 442)

The dawn of the twenty-first century has proven Turing’s quote more or less prophetic in substance. The development of automated, autonomous and artificially intelligent machines has the capacity to revolutionise the human existence. In particular, the rise of these machines has enormous implications for the conduct of warfare.

An autonomous weapons system (AWS) is one that is capable of operating, to a greater or lesser extent, without human intervention. Autonomous machines must be distinguished from automatic machines: whereas as automatic machine can be left to carry out a defined task under strict parameters with predictable results, an autonomous machine can comprehend and respond to varied situations without human input.

The question of whether AWS could ever be in compliance with international humanitarian law (IHL) has been thoroughly discussed, with conclusions ranging from adamant rejection to more favourable and nuanced critiques. Human Rights Watch, for example, published the dramatically titled report ‘Losing Humanity: The Case Against Killer Robots’, which called for a complete ban on AWS on the premise ‘that fully autonomous weapons would not only be unable to meet legal standards but would also undermine essential non-legal safeguards for civilians.’ Professor Mike Schmitt, on the other hand, points out that autonomous weapons may be (though will not necessarily be) more compliant with the laws of armed conflict than traditional military systems (Michael N Schmitt, Autonomous Weapons Systems and International Humanitarian Law: A Reply to the Critics).

These discussions, though crucial to the development of the law regulating AWS, overshadow an equally important but much less-considered challenge: the question of how international criminal law (ICL), the system of enforcement developed to promote accountability for violations of IHL, can be applied to crimes involving machines as perpetrators.

The most intuitive response to this question seems to be that the programmer ought to be liable. After all, one might assume that it is the programmer who designs the parameters that dictate the machine’s behavior. This, however, is an overly simplistic approach to what will likely be, in the coming decades, a complicated area of law. An AWS, rather than having one programmer and one user to whom liability may be clearly attributed, is likely to have been programmed by an entire team of developers and to be operated by a team of users (See, eg, General Atomics Aeronautical, Predator UAS (2014)). Moreover, it is likely to operate alongside human peers and commanders in a combat setting.

This raises several challenging questions. First, can a machine ever be liable for a crime in its own right? Secondly, in any event, how can we create accountability for any humans directly involved in a crime alongside an AWS? Finally, can that accountability extend along the chain of command?

These issues have been discussed at length elsewhere — individually by other authors, some of whom are cited in this work; and cohesively by this author in an undergraduate dissertation from which this work is adapted. The following discussion attempts to introduce the issues and frame what is likely to be a significant legal debate as AWS technology develops and becomes more widespread.

Can a machine commit a war crime?

Can a machine ever satisfy the mental elements of a criminal law that has evolved over centuries to moderate and punish human behaviour?

Questions like this tend to spark debates about whether the human capacity for logical, emotional and moral reasoning can ever be replicated in a machine. However, this debate is misplaced in an exploration of mens rea and machine liability because it conflates questions of law with existential questions of sentience, morality, and reason. IHL is silent as to ethical or moral reasoning. Decisions are either lawful or not lawful; within the scope of what is lawful, the law offers no moral guidance or judgment (See generally Dale Stephens, ‘The Role of Law in Military Decision-Making: Lawfare or Law Fair’ (SJD Thesis, Harvard University, 2014) ch 1). A person can be criminally liable for a breach of the laws of armed conflict regardless of their motives, their morality or their ethical reasoning.

The exact definitions and requirements of mens rea vary between jurisdictions and offences and have been discussed at length elsewhere. For the purposes of this discussion, intent is taken to require knowledge and volition: knowledge of the relevant act or omission and the circumstances or results, and volitional action to engage in the act and bring about the contemplated result (or at least volitional acceptance of the risk of the result) (See Prosecutor v Bemba (Pre-Trial Decision) [357]–[359], cited in Johan van der Vyver, ‘Prosecutor v Jean-Pierre Bemba Gombo’ (2010) 104 American Journal of International Law 241).

In a technical sense, knowledge is ‘the sensory reception of factual data and the understanding of that data.’ (Gabriel Hallevy, ‘Virtual Criminal Responsibility’ (2010) Original Law Review, citing William James, The Principles of Psychology (1890) and Hermann von Helmholtz, The Facts of Perception (1878). Although Hallevy applies the term ‘artificial intelligence’ to systems already in use, including in industry, medicine and gaming. His general discussion of machine liability is therefore applicable to the immediate future development of machines in warfare as well as many machines already in use). There are machines in operation today that possess knowledge in this sense. GPS units, fingerprint scanners, facial recognition technologies and medical sensors all use a combination of input devices and contextual information to receive, store and process knowledge in a similar fashion to the human brain.

Volition is another matter, and depends on the sophistication of the machine’s programming and its independence from human operators. A distinction must be drawn between a machine carrying out the task for which it was programmed, and a more sophisticated machine which was not programmed for a particular task, but was instead programmed with learning capabilities and the capacity to make autonomous decisions. In the former case, the intention does not belong to the machine, but to its human operator. Even in the latter case, it is difficult to draw a line between what the programmer designs a machine to do, and what the machine does of its own volition.

Clearly, there are significant questions about whether a machine could form mens rea. These questions might only be answered as the technology develops. In order to create accountability in the meantime, it is necessary to consider AWS in a broader context.

A gun, a soldier, or an innocent agent?

The ambiguity of machine intelligence means at least three legal options must be considered. The first is another intuitive response: why discuss the liability of machines at all? Under this approach, an AWS is no more than a gun or other weapon in the hands of a human operator. This makes sense when considering, for example, remotely-piloted Predator drones.

Equating an AWS with a gun makes less sense, however, where humans are the supervisors rather than the operators of the machines. Setting aside questions of use and command restrictions, the key feature of an AWS is autonomy; an AWS by its very definition has the capacity to perform functions independently of human input. It is this feature that places AWS in a fundamentally different class than an AK-47 (which requires contemporaneous human input) and an antipersonnel mine (which requires non-contemporaneous human input).

AWS and perpetration by another

That being the case, two options remain for situating the AWS in the framework of ICL. One is to treat the programmer or the human user of the AWS as a perpetrator-by-another (Hallevy, above, 11-13). In this approach, the machine is deemed capable of perpetrating the actus reus or physical elements of the offense, but incapable of forming the requisite mens rea or mental elements. This is more or less equivalent to the indirect perpetration model in article 25(3)(a) of the Rome Statute. The AWS is treated the same way as an infant or a mentally incompetent adult.

AWS and group criminal liability

The problem with this model is that, as discussed above, it is more simplistic than the real-world environment in which AWS are likely to operate. It is necessary to consider how the indirect perpetration model might work alongside group modes of liability. Fortunately, this is not a novel concept in ICL: the Pre-Trial Chamber of the International Criminal Court accepted in Katanga that group liability can apply to cases of indirect perpetration (Prosecutor v Katanga (Decision on Confirmation of Charges) cited in Jernej Letnar Cernic, ‘Shaping the Spiderweb: Towards the Concept of Joint Commission Through Another Person under the Rome Statute and Jurisprudence of the International Criminal Court’ (2011) 22 Criminal Law Forum 539).

AWS as perpetrators

Finally, AWS may be viewed as perpetrators in their own right (Hallevy, above, 10). This approach initially seems outlandish in light of today’s widespread technology. However, in the not-entirely-futuristic event that an AWS is programmed with machine learning capabilities and makes a decision that was not specifically dictated by a programmer or user, this might be the most rational approach.

In this last approach, the problem becomes one of accountability. A human can be fined, jailed, or even sentenced to death for a crime; these punishments are unlikely to have any impact on machines. Hallevy argues that as with corporate criminal responsibility, the punishment ought to be adapted to the perpetrator: corporations, for example, cannot be jailed but can be fined (Hallevy, above, 22-6). The difference, however, between corporations and machines is that when a corporation is punished, ultimately its human owners suffer. The same cannot necessarily be said of machines, and this is an area that warrants significant further consideration.

AWS and command responsibility

What liability for the commander of an AWS? Schmitt argues that under the ICL doctrine of command responsibility, the ultimate responsibility for a war crime committed by an AWS would lie with the military commander responsible for deploying the machine into the circumstances in which the crime was committed (Schmitt, above). The concept of holding a superior responsible for crimes committed by subordinates is an accepted principle of customary international law (See, eg, Prosecutor v Delalic et al (Appeal Judgment), Prosecutor v Limaj et al (Trial Judgment))

However, command responsibility is not vicarious liability (See generally Ilias Bantekas, International Criminal Law (Hart Publishing, 4th ed, 2010)), and the application of the doctrine in the context of AWS raises some important questions. The first is whether a commander can be held liable for a crime committed by a machine despite general doubt as to whether a machine can ever possess the requisite mental elements of a crime. The second concerns the nature and degree of understanding required before a commander can be said to have had ‘reason to know’ that a crime was about to be committed. The third is what would constitute ‘punishment’ in the context of a crime committed by an AWS.

With regards to the first question, if the law is reluctant to find that a machine is capable of forming mens rea, then it cannot be said that a crime has been made out for which the commander might be liable. The law as it stands therefore creates a significant gap in accountability for commanders of AWS.

The second question arises because as the algorithms used in AWS become increasingly complicated, it becomes increasingly less likely that a commander without extensive specialist training will understand the AWS in enough detail to have knowledge that a crime is about to be committed. It could be argued that a commander with even basic training regarding the AWS ought to have known, but this ventures dangerously close to presuming knowledge, an approach rejected by the ICTY in the Limaj trial. Again, this creates a gap in accountability.

Finally, as to the third question, it might be sufficient that a commander conduct ‘an effective investigation with a view to establishing the facts’ (Limaj Trial, above, [529]). This point is unsettled, though, and warrants further consideration. Moreover, it is not likely to be a politically palatable option in light of strong public sentiment against AWS.

Conclusion

AWS are no longer the realm of science fiction, and the international legal community (led by countries with advanced militaries including Australia and its allies) must seriously consider the implications of this. To date, almost all of this consideration has been dedicated to the compliance of AWS with IHL. The aim of this discussion has been to introduce some of the questions that will arise in the event that AWS, in design or eventuality, are not so compliant. While we are yet to discover whether such systems will actually be deployed, the research being undertaken to this end means that blanket denial is no longer helpful and the challenge must be acknowledged.

Sarah Ahern is a member of teaching staff at Adelaide Law School where she tutors International Law and International Humanitarian Law. This post is adapted from her undergraduate dissertation ‘The Limits of International Criminal Law in Creating Accountability for War Crimes Committed by Autonomous Machines’. You can contact Sarah at [email protected] or on Twitter @SarahKAhern.

Fitness First? Assessing the Treatment of Fitness to Stand Trial in the Trial of Ieng Thirith – Esther Pearson

Editors Analysis, Articles

Introduction

On 22 August 2015, former ‘first lady’ of the Khmer Rouge, Ieng Thirith, passed away at the age of 83. Ieng was the Minister of Social Action during the period of Democratic Kampuchea and had been indicted before the Extraordinary Chambers in the Courts of Cambodia (ECCC) on charges of genocide, crimes against humanity and grave breaches of the Geneva Conventions. However, in September 2012, proceedings against Ieng were stayed after she was found to be unfit to stand trial due to progressive dementia. Following Ieng’s death, residents of Phnom Penh expressed their frustration with the lack of prosecution (for example in the Khmer Times article Khmer Rouge ‘First Lady’ Dies). This post reflects on howthe ECCC’s approach to assessing Ieng’s fitness to stand trial — and the consequences its findings — tried to strike the delicate balance between the imperative to secure a prosecution and need for a fair trial.

Fitness to Stand Trial

In 2004, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) considered the concept of fitness to stand trial in a decision on a motion for the medical examination of the accused in Prosecutor v Pavle Strugar (Decision Re the Defence Motion to Terminate Proceedings). The Trial Chamber considered that for an accused to be fit to stand trial, he or she must:

  • have the capacity to plead;
  • understand the nature of the charges;
  • understand the course of proceedings;
  • understand the details of the evidence;
  • be able to instruct counsel;
  • understand the consequences of the proceedings; and
  • testify.

While the finding of fitness to stand trial is a legal determination made by the court, medical experts are typically employed to assess the condition of the accused and produce a report detailing their findings. Before relying on the expert’s report, the court must evaluate whether the report contains sufficient information as to the sources of the expert’s conclusions, and whether those conclusions were drawn impartially.

The ECCC Rules (rule 32) provide for the medical examination of an accused at the request of a party, in order to determine whether the accused is fit to stand trial. On 21 February 2011, Ieng’s defence team filed a request for an assessment of her fitness to stand trial. Between April and October 2011, an expert geriatrician and four psychiatric experts carried out assessments. They concurred that Ieng’s symptoms were consistent with a diagnosis of dementia and, as a result of her condition, her capacity to understand the course of the proceedings and to instruct counsel was significantly impaired. However, the experts explained that there was a possibility that Ieng’s condition would improve by using a medication for Alzheimer patients and through occupational therapy.

The Trial Chamber acknowledged the gravity of the crimes for which the accused was charged (Decision of Ieng Thirith’s Fitness to Stand Trial). However, it noted that properly qualified medical experts, upon assessment of the accused with credible testing methods, had found that Ieng was unable to meaningfully participate in her defence. Accordingly, the Trial Chamber, having weighed all relevant factors in the balance, found Ieng unfit to stand trial.

Consequences of Unfitness

After declaring Ieng to be unfit to stand trial, it fell upon the Trial Chamber to determine the consequences. Given the experts’ opinions that there was a slight possibility of Ieng’s condition improving through medication and occupational therapy, the national judges imposed orders for mandatory treatment, while the international judges ordered her immediate unconditional release. In this divided situation, the Trial Chamber found that it should adopt the outcome most favourable to the accused, ordering that she be released unconditionally.

Continued Detention with Mandatory Treatment

The decision of the Trial Chamber to release Ieng from detention without condition was promptly appealed by the Co-Prosecutors to the ECCC Supreme Court Chamber (Immediate Appeal against Trial Chamber Decision to Order the Released of Accused Ieng Thirith). The Supreme Court Chamber found that the Trial Chamber was obliged to exhaust all measures available to it to enable the accused to become fit to stand trial, including making orders that the accused undergo treatment while being detained in a hospital or comparable facility (Decision on Immediate Appeal Against the Trial Chamber’s Order to Release the Accused Ieng Thirith). The Supreme Court Chamber stated that the unconditional release of the accused would forego any effort in the direction of resuming proceedings against the accused, and ‘such an outcome is irreconcilable with the interests of justice from all points of view, including the accused, prosecution, civil parties, and Cambodian society as a whole’ (at [28]). There is a basis for such orders in international criminal law, with precedents in Prosecutor v Jovica Stanisic and Franko Simatovic (Decision on Defence Appeal of the Decision on Future Course of Proceedings) and Prosecutor v Vladimir Kovacevic (Decision on Appeal Against Decision on Referral Under Rule 11bis) before the ICTY. The Supreme Court Chamber ordered the Trial Chamber to institute the recommended treatment and to review Ieng’s condition in six months.

Release from Detention with Judicial Supervision

On 13 September 2012, after experts had again reviewed Ieng’s condition, the Trial Chamber delivered its verdict that Ieng remained unfit to stand trial and ordered that she be released without conditions (Decision on Reassessment of Accused Ieng Thirith’s Fitness to Stand Trial Following Supreme Court Chamber Decision of 13 December 2011). Again, the Co-Prosecutors appealed to the Supreme Court Chamber, submitting that Ieng should be subject to six conditions for release:

  1. That she reside at a specified home address;
  2. That she make herself available for weekly safety checks by authorities or officials appointed by the Trial Chamber;
  3. That she surrender her passport and national identification;
  4. That she not directly or indirectly contact other co-accused (excluding her husband, Ieng Sary);
  5. That she not directly or indirectly contact any witness, expert or victim who is proposed to be heard before the Trial Chamber and not to interfere with the administration of justice; and
  6. That she undergo examination by medical practitioners appointed by the Trial Chamber every six months.

(Immediate Appeal Against Decision on Reassessment of Accused Ieng Thirith’s Fitness to Stand Trial Following the Supreme Court Chamber Decision of 13 December 2011, Case No 002/19-09-2007, 14 September 2012, at [10]).

Conditions that restrict the rights of freedom of movement and privacy, such as those proposed by the Co-Prosecutors, should only be imposed if the conditions are necessary to achieve a protective function, the least intrusive means of achieving that function, and proportionate to the function. In the Supreme Court Chamber’s judgment on the appeal (Decision on Immediate Appeal against the Trial Chamber’s Order to Unconditionally Release the Accused Ieng Thirith), it analysed whether each proposed condition met these criteria. It found that, in light of Ieng’s medical condition, it would be unnecessary and disproportionate to retain Ieng’s passport and identification card and to make orders prohibiting her from contacting the other co-accused, witnesses, experts or victims. The Supreme Court Chamber considered the other proposed conditions to be minimally intrusive and necessary to protect the legitimate interests of ensuring Ieng was available to the Court and to monitor her health. By undertaking such an analysis, the Supreme Court Chamber’s ultimate decision balanced the necessity to afford Ieng a fair trial and the interests of society in seeing the alleged perpetrators of the crimes committed in Democratic Kampuchea being brought to justice.

Esther Pearson is an Assistant Editor of the ILA Reporter.

The politics of aggression and its susceptibility to regulation by domestic and international criminal law: Is it an act unsuitable for legal regulation generally? — Sophocles Kitharidis

Editors Analysis, Articles

Introduction

Definitional, jurisdictional and regulatory issues surround the crime (and act) of aggression, and its status as a legal act. This post examines whether the determination of an act of aggression — which is made by the United Nations Security Council (UNSC) and is soon to be justiciable before the International Criminal Court (ICC) — is and will always remain a primarily political (rather than legal) act.

The UNSC has the power to declare an event an act of aggression under the UN Charter (Article 39, Chapter VII). The crime of aggression, on the other hand, will fall within the jurisdiction of the ICC under the Rome Statute in 2017, and concerns:

the planning, preparation, initiation or execution of an act of using armed force by a State against the sovereignty, territorial integrity or political independence of another State.

Two competing schools of thought exist when it comes to approaching the complex task of interpreting aggression as an act capable of legal regulation. First, there are states that argue that the ICC should be the only institution with the right to exercise jurisdiction over aggression once the UNSC has determined that an act of aggression has occurred (Matthew Gillett, ‘The Anatomy of an International Crime: Aggression at the International Criminal Court’ (2013) 13 International Criminal Law Review 829). Such an approach indicates that the ICC would be in a position to only make determinations about the ‘leadership elements’ of aggression (see Report of the Special Working Group of the Crime of Aggression Doc. ICC-ASP/6/20/Add.1/Annex II). In contrast, the second school of thought argues that there are a lack of existing legal frameworks that demonstrate the contentions of the UNSC in determining and asserting the ICC’s independence and rights protection framework for the accused; after all the ICC is required to adjudicate all elements of the crime of aggression (Davis Brown, ‘Why the crime of aggression will not reduce the practice of aggression’ (2014) 51 International Politics 648). This line of thought leads to the argument that aggression is not regulated by criminal law.

This post argues that although a limited legal framework exists to regulate the crime of aggression (and within a criminal law context), there remain significant concerns. It first discusses aggression in the context of article 5(2) of the Rome Statute. It also sets out legal and policy arguments for why aggression may be considered a political rather than legal act. Finally, it articulates the ramifications of its proposed legal status.

Aggression and article 5(2)

Article 5(2) of the Rome Statute sets out the conditions under which the ICC can exercise its jurisdiction over acts of aggression:

The court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.

In his submission to the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Sir Franklin Berman argued that interpretation of this provision may be that

the reference to aggression in article 5 and, in particular, the last sentence of paragraph 2 of that article, which mentioned the Charter, [is] a reference to the requirement of prior determination by the Security Council that an act of aggression had occurred

This position is reiterated by Meron, (Theodor Meron, ‘Defining Aggression for the International Criminal Court’ (2001) 25 Suffolk Transnational Law Review 1), Zimmermann (Andrew Zimmermann, ‘Article 5’, in Otto Triffterer and Kai Ambor (eds), Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Articles by Article) and Scheffer, where Scheffer referred to the provision as opaque due to its nature not indicating whether the ICC can prosecute the crime of aggression absent a prior determination by the UNSC that an act of aggression has taken place (Cited in Carrie McDougall, ‘When Law and Reality Clash — The Imperative of Compromise in the Context of the Accumulated Evil of the Whole: Conditions for the Exercise of the International Criminal Court’s Jurisdiction over the Crime of Aggression’ (2007) 7 International Criminal Law Review 277, 280). It is argued that the provision was drafted in order to accommodate both the states that favour the crucial power held by the UNSC to determine the existence of aggression (and therefore the power to regulate its prosecution), as well as states that opposed any ‘special role’ for the UNSC in the prosecution of aggression. In this regard, The Rome Statute interlinks (or at least appears to interlink) with the UN Charter.

Exclusive authority by the UNSC — The importance of UNSC determinations

The UNSC has power to identify an act of aggression pursuant to article 39 of the Charter. The provision states that the UNSC

shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Whilst article 39 provides the legal basis for the characterisation of an act as one of aggression, as outlined below, the making of the determination itself is inherently political (McDougall above 281). In 1991, the International Law Commission provided an opinion on these political dimensions during discussions on the Draft Code of Offences against the Peace and Security of Mankind, asserting that both the crime and threat of aggression can be interpreted as ‘sui generis in that, by definition, they existed only if the Security Council characterised certain acts as such’ (See the Report of the International Law Commission on the Work of its Forty-Third Session).

On this point, Akande notes that the determination of whether a situation is a threat or breach of the peace or an act of aggression is clearly non-justiciable. It cannot be answered by ‘recourse to legal reasoning as there are no legal standards by which to reach a decision. It involves a political decision as to factual ammeters and is in no way constrained by legal considerations’ (Dapo Akande, ‘The International Court of Justice and the Security Council: Is There Room for Judicial Control of Decisions of the Political Organs of the United Nations’ (1997) 46 International and Comparative Law Quarterly 309, 338). The UNSC’s interpretative exercise requires an evaluation of facts and an ‘appraisal of the international political situation to see both whether a particular label is justified and whether the interests of international peace and security will be furthered’ (McDougall above 281).

There is obiter commentary by the International Court of Justice that supports the UNSC’s exclusive prerogative to determine aggression. In his dissenting opinion in the Lockerbie Case, Weeramantry held that:

… the determination under article 39 of the existence of any threat to the peace, breach of the peace or act of aggression, is one entirely within the discretion of the Council. It would appear that the Council and no other is the judge of the existence of the state of affairs which brings Chapter VII into operation. That decision is taken by the UNSC in its own judgment and in the exercise of the full discretion given to it by Article 39. Once taken, the door is opened to the various decision the Council may make under that Chapter. Thus any matter which is the subject of a valid Security Council decision under Chapter VII does not appear, prima facie, to be one with which the Court can properly deal. [page 66]

Similarly, the International Criminal Tribunal for Yugoslavia in the Kanyabashi Case made an argument that also applies to aggression, stating that:

… the Security Council has a wide margin of discretion in deciding when and where there exists a threat to international peace and security. By their very nature, however, such discretionary assessments are not justiciable since they involve the consideration of a number of social, political and circumstantial factors which cannot be weighed and balanced objectively by this Trial Chamber. (at paragraph [20])

Consequently, international criminal tribunals recognise that the determination of an act of aggression by the UNSC has a political dimension. Within this political context, the nature of article 39 determinations can also be viewed through the veto power of the UNSC’s permanent five members, which is ‘exercisable in relation to substantive questions’ that include the characterisation of acts of aggression (McDougall above 283). De Wet contends that the ‘structural bias in favour of the major powers is a clear indication that decisions in the interest of peace and security will be based exclusively on (national) political considerations’ (Erika De Wet, The Chapter VII Powers of the United Nations Security Council 134–5. See also McDougall above 283) as well as interests. Kelsen argued that the UNSC is not limited to ‘taking enforcement measures under articles 41 and 42’ as article 39 allows the UNSC to make recommendations ‘of any kind’ (Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems 438. See also McDougall above 284).

Another argument of concern relates to article 103, which states that

[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

The issue is that any Rome Statute provision granting the ICC jurisdiction to determine aggression would conflict with articles 24, which outlines the UNSC’s powers in respect of international peace and security, and 39, ‘which grant the Security Council the exclusive ability to determine the existence of acts of aggression and establish an obligation of the Member States to uphold the Security Council’s rights’ (McDougall above 285). Of further concern is where the UNSC adopts a resolution clearly identifying an act of aggression. Here, and on the basis of article 25, ‘it is claimed that a resolution determining the existence of aggression would be binding on the Member States of the United Nations and therefore all States Parties to the Rome Statute’ (McDougall above 285–6). Consequently, it is arguable that ICC judgments regarding the crime of aggression that reach an alternative conclusion to the UNSC’s resolutions would ‘create inconsistent obligations and therefore be unenforceable pursuant to article 103 of the Charter’ (McDougall above 286).

Policy considerations when determining and regulating aggression

If the determination of aggression is a political rather than legal act, then attention must be paid to the policy considerations driving that determination. These must be viewed through a realpolitik lens (McDougall) since the permanent five members of the UNSC and their allies view UNSC determination as the ‘conditio sine qua non for the inclusion of the crime of aggression’ (Hermann Von Hebel and Darryl Robinson, ‘Crimes within the Jurisdiction of the Court’ in Roy S Lee (ed) The International Criminal Court: The Making of the Rome Statute 84). Scheffer also places a degree of an emphasis on realpolitik by viewing aggression as ‘one crime that other nations may seek to charge our deployed military with, regardless of the merits.’ He views it as a crime that ‘invites political manipulation to serve the interests of whoever regards any projection of military power to be aggressive’ (Quoted in McDougall above 307. See also D D N Nsereko, ‘Bringing Aggressors to Justice: From Nuremberg to Rome’ (2005) 2 University of Botswana Law Journal 5).

There are other interpretations of how the permanent five members of the UNSC can ensure that it possesses the crucial prerogative to determine the occurrence of aggression. First, they desire the ability to protect their leaders from ICC prosecution (regardless of the merits of the legal case). Secondly, they will go above and beyond to protect this privileged status within the international arena ‘in the context of increasing debate about the need for Security Council reform’ (McDougall above 308). Thirdly, they are concerned with the ICC having jurisdiction over the crime of aggression, with their position being ‘premised on a belief that jurisdiction could be a sticking point, ultimately leading to a breakdown in negotiations’ (McDougall above 308). Such politics may see the crime of aggression undermined by the UNSC. The UNSC’s actions concerning aggression are evidence of ‘the legality of the State act element of the crime’; that is, actions leading to a less hostile and more cooperative relationship that provides for ‘resolutions vis-à-vis allegedly aggressive acts’ being drafted by the UNSC and considering future prosecutions (McDougall, 308).

Other policy arguments have been put forward demonstrating that aggression is more a political act:

  1. If the ICC has the right to determine the existence or occurrence of aggression, it undermines the UNSC since it can make the determination in situations where the UNSC failed to make an article 39 determination or taking enforcement measures under Chapter VII; (McDougall above 309. See also Report of the Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression, at paragraph [61]);
  2. In a situation where the ICC determines the existence of aggression, the UNSC loses its ability to negotiation peaceful settlement of conflicts by offering amnesty; (McDougall above 309. See also Allegra Carroll Carpenter, ‘The International Criminal Court and the Crime of Aggression’ (1995) 64 Nordic Journal of International Law 223);
  3. ‘the ICC is not equipped to consider matters that may lie at the heart of allegations of aggression such as maritime boundaries, the scope of legitimate self-defence under article 51, and the status of self-help remedies under international law’ (McDougall above 309); and
  4. The ICC only possesses jurisdiction over natural persons and not states, so there would be implications for the rights of States (McDougall above 309. See also James Nicholas Boeving, ‘Aggression, International Law and the ICC: An Argument for the Withdrawal of Aggression from the Rome Statute’ (2004) 43 Columbia Journal of Transnational Law 557).

Conclusion

This piece has laid bare the political context of a determination of an act of aggression. Determination is a political rather than legal act, in part due to ineffective legal mechanisms in the UN Charter. However, it is also due to the considerations of great powers that wish to protect their privileged status in the international arena. The legal regulation of aggression by the ICC remains hostage to the political decisions of the UNSC, and whilst from 2017 the ICC will have jurisdiction to prosecute the crime, its ability to do so will rest on political decisions in New York rather than evidence tendered in The Hague.

Sophocles Kitharidis is a public international law adviser and consultant to the International Affairs Division of the Thai Ministry of Justice. He is the former Vice President of the International Law Association (Victoria) and he holds a Master of Laws in Public International Law from the University of Melbourne.