In passing: Hans-Peter Kaul, ICC judge, German diplomat, antiwar activist

kaulSaddened to read that Judge Hans-Peter Kaul, a pivotal member of the International Criminal Court’s founding generation, has passed away. The in memoriam notice at the ICC website reports that he died yesterday, as a result of the serious illness that earlier this month compelled his resignation after nearly a decade on the ICC bench.

That tenure continued service to the ICC which had begun in 1998, when Kaul, then a diplomat, led the German delegation at the Rome Conference. He recalled the climax of that conference in a 2012 guest post for IntLawGrrls:

After the decisive vote on the Rome Statute, our founding treaty, there is some kind of explosion, an enormous outpouring of emotions, of relief among those present, unparalleled for such a conference: screams, stamping, exultation without end, tears of joy and relief; hard-baked delegates and journalists who have frowningly watched the entire conference hug each other in a state of euphoria. And a German delegate, normally a level-headed man, jumps up and down like a rubber ball and keeps punching me in the ribs, completely breathless,

‘Herr Kaul, Herr Kaul, we’ve done it! We’re getting an international criminal court!’

Kaul was born 70 years ago this Friday, in Glashütte, near Germany’s border with what is now the Czech Republic. The year was 1943. World War II raged, and memories of his boyhood during that war and its aftermath–including the postwar trials at Nuremberg–never were far from his work on behalf of international criminal justice.

This was evident in his most significant ICC opinion, a dissent from a panel’s preliminary ruling in the Court’s ongoing case involving 2007-2008 post-election violence in Kenya. In a 19-page commentary labeled Dissenting Opinion of Judge Hans-Peter Kaul to Pre-Trial Chamber II’s “Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kipono Kosgey and Joshua Arap Sang” (15 March 2011), Kaul invoked the Nuremberg legacy to argue that only violence at a level of “state-like ‘organisation’” could constitute crimes against humanity. It is an argument that continues to generate academic debate.

Another link to Nuremberg may prove even more lasting. In recent years, Kaul was an impassioned and indefatigable advocate for make the crime of aggression punishable by the ICC. His German delegation had pushed successfully for the listing of that crime–a signature offense at Nuremberg–in Article 5 of the Rome Statute. (Prior posts here and here.) After the Assembly of States Parties adopted the 2010 Kampala amendments to activate the ICC’s crime of aggression jurisdiction, Kaul campaigned actively for ratification. Every time he and I crossed paths, at Chautauqua, The Hague, or elsewhere, Judge Kaul was quick to report on the status of that campaign–and to express particular pride when his native country and its linguistic neighbors deposited their instruments of ratification or accession.

With the ratification by Austria last Friday–the 16th anniversary of the adoption of the Rome Statute–the Kampala amendments have garnered half the 30 ratifications needed for entry into force. (Also required is another Assembly vote.) States that have joined to date are Andorra, Austria, Belgium, Botswana, Croatia, Cyprus, Estonia, Germany, Liechtenstein, Luxembourg, Samoa, Slovakia, Slovenia, Trinidad and Tobago, and Uruguay. Numerous other states, including many others in the North Atlantic Treaty Organization, are reported to be nearing joinder.

Kaul was crystal clear about the reason he pushed for these amendments: The child of war saw activation of crime of aggression jurisdiction as an essential step toward ending war altogether. In his IntLawGrrls post as in other writings and lectures, he explained:

War–this is the ultimate threat to all human values; war is sheer nihilism. It is the total negation of hope and justice. Experience shows that war, the injustice of war in itself, begets massive war crimes and crimes against humanity. In my nine years as a Judge of the ICC, I have seen that, as in the past century, a terrible law still seems to hold true: war, the ruthless readiness to use military force, to use military power for power politics, regularly begets massive and grievous crimes of all kinds.

In Kaul’s view, the prosecution of jus in bello violations is important, yet an incomplete, a symptomatic approach, unless it is accompanied by the prosecution for jus ad bellum violations. His own pithy words are a fitting epitaph:

War crimes, they are the excrement of war.

Citing delays, federal judge rules California death-penalty system unconstitutional

san_quentin_death_chamber

California’s capital punishment system has just been ruled unconstitutional.

Holding that the system violated the 8th Amendment to the U.S. Constitution was U.S. District Court Judge Cormac J. Carney, whom President George W. Bush appointed to the federal bench in 2003. According to a Los Angeles Times report, he becomes the 1st federal judge to rule against the state’s system, and also the 1st to hold that systemic delay may constitute cruel and unusual punishment.

Judge Carney set out his reasoning clearly and concisely in today’s 29-page ruling in Jones v. Chappell. In turn, the decision:

► Traced the tangled series of delays that is the state’s system. (Prior posts on that system here, here, and here.) Only 13 of the more than 900 persons whom California jurors have sentenced to death since 1978 have been executed, Judge Carney wrote. The typical time between sentence and execution is 25 years. The judge thus renamed the sentence (his emphasis): “life in prison, with the remote possibility of death.”

► Reiterated U.S. Supreme Court Justice Stewart Potter’s insistence in Furman v. Georgia, the 1972 decision that set in motion a 4-year moratorium on the death penalty, that the Constitution

‘quite simply cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.’

The ruling recognized that the Court, in Gregg v. Georgia (1976), permitted states to reinstate modified death penalty systems. Even so, Judge Carney wrote:

In the 40 years since Furman, the Supreme Court has never retreated from that fundamental principle.

► Applied the principle to the case at hand, ruling that California’s system is so arbitrary as to serve no proper penological purpose. The judge focused not just on the defendant who must endure a condemned life on death row, but also on jurors who must go through “horrific” evidentiary proceedings to no ultimate end, on victims and  survivors denied “some semblance of moral and emotional closure,” and on “the citizens of the State” of California, who must endure the broken “promise” of retribution that accompanies the imposition of a death sentence.

California Attorney General Kamala D. Harris was reported to be considering the state’s next move in this litigation.

 

In World War I video, timeless scenes of armed conflict’s tragic consequences

refugeechildrenww1Seldom do we see footage made during the 20th C.’s 1st global conflict. That fact makes especially valuable these images, from a 3-minute video of scenes from World War I, which began 100 years ago this summer and continued for another 4 years thereafter.medalgirlww1

As one might expect, the video includes battle scenes, trench warfare, aerial combat, and torpedoes fired at sea. There are images of bombed-out homes and bereft refugees, evidence of war’s effects refugeecoldww1on civilians. And as these screenshots indicate, there are scenes of children and war: Children made to play the part of soldiers. Children stunted by starvation. Child refugees, shivering in an unsheltered winter. childrenww1

Kudos to European Film Gateway and the United Nations for this sad reminder of how little some things change.

Treasury targets militia targeting children

kivu“[F]or targeting children in situations of armed conflict, including through killing, rape, abduction and forced displacement,” yet another Congolese armed group has been added to the United States’ sanctions list.

On Tuesday, the Department of the Treasury announced sanctions against the Allied Democratic Forces, which it described as a group of “1,200 to 1,500 armed fighters” that in 2013 began attacking civilians in North Kivu, a province of the Democratic Republic of the Congo that borders Uganda. (credit for (c) Associated Press map) The militia’s actions against children reportedly include:

  • “brutal attacks on women and children in several villages, including acts of beheading, mutilation, and rape”
  • “kidnapping as well as recruiting children, allegedly as young as 10 years old, to serve as child soldiers against the Ugandan government”

As this list of all Treasury sanctions indicates, the Allied Democratic Forces join many other designated groups and individuals; to name a few, persons pursued (with varying results) via the International Criminal Court Situation in the Democratic Republic of the Congo, such as Germain Katanga, Thomas Lubanga Dyilo, Callixte Mbarushimana, Sylvestre Mudacumura, Mathieu Ngudjolo Chui, and Bosco Ntaganda. All were put on the list following the implementation of a decree signed by President George W. Bush in 2006, Executive Order 13413, “Blocking Property of Certain Persons Contributing to the Conflict in the Democratic Republic of Congo.” Section 1(a)(ii)(D) of that Executive Order expressly calls for sanctions against persons whom the Secretaries of State and the Treasury determine

to have committed serious violations of international law involving the targeting of children in situations of armed conflict in the Democratic Republic of the Congo, including killing and maiming, sexual violence, abduction, and forced displacement ….

Taken in conjunction with Monday’s U.N. Security Council imposition of a travel ban and assets freeze against the group – sanctions that also cite the group’s offenses against children – the U.S. sanctions will block “[a]ll property and interests in property in the United States or in the possession or control of U.S. persons in which the ADF has an interest”; moreover, “U.S. persons are generally prohibited from engaging in transactions with the ADF.”

ASIL honorees sought

In addition to seeking new leaders, as described in a post last week, the American Society of International Law welcomes nominees for various ASIL honors:
Manley O. Hudson Medal, given in recognition of scholarship and achievement in international law.
Goler T. Butcher Medal, given in recognition of outstanding contributions to the development or effective realization of international human rights law. (As blogreaders well know, IntLawGrrls honors Butcher as a transnational foremother, and one recent medalist, Gay McDougall, is an IntLawGrrls contributor.)
ASIL Honorary Member, an award given in recognition of a non-U.S. citizen who has rendered distinguished contributions or service in the field of international law. (Last year’s recipient was International Criminal Court Prosecutor Fatou Bensouda, another person who has contributed to IntLawGrrls blog.)

These honors will be awarded at the Society’s 109th Annual Meeting, to be held April 8 to 11, 2015, in Washington, D.C. Recipients will be selected by the Society’s Executive Council, on the nomination of the 2013-14 Honors Committee, wich is composed of chair Meg Kinnear (Secretary-General, International Centre for Settlement of Investment Disputes) and members Joel Hernández (Ambassador; member of Inter-American Juridical Committee), James Leitner (President, Falcon Management Corporation), Michael Posner (New York University), Lucy Reed (Partner, Freshfields, and past ASIL President), and Peter Tomka (President, International Court of Justice).

Questions may be directed to ASIL’s Honors Committee via the Office of the Executive Director of the Society, by contacting Lara Townzen at awardsandhonors@asil.org.

Nominations should be submitted via the online form available here. Deadline is August 15, 2014.

Nominations sought for next ASIL leaders

This year’s Nominating Committee of the American Society of International Law seeks a few good leaders.
Specifically, it seeks, from among its members, nominees – including self-nominees – to stand for election for a number of leadership positions, to be filled at the Society’s 109th Annual Meeting, set for April 8 to 11, 2015, at the Hyatt Regency Capitol Hill, 400 New Jersey Ave, N.W., in Washington, D.C. (Note: Deadline in the call for Annual Meeting proposals detailed here has been extended to the end of this month.)
ASIL’s immediate past President, Donald Francis Donovan (Debevoise & Plimpton), will chair the committee, whose members include Andrew Guzman (California-Berkeley), Karen Bravo (Indiana-Indianapolis), Rosemary Barkett (Iran-U.S. Claims Tribunal), David Bowker (WilmerHale), and, as an alternate, Elizabeth Andersen, the longtime ASIL Executive Director who soon will become Director of the American Bar Association Rule of Law Initiative.

According to the ASIL notice, “The Committee will seek to nominate those who have evidenced a willingness to contribute time and effort to the work of the Society, while endeavoring also to enhance the diversity of the Society’s leadership.” The Committee will be guided in its decisions by the Society’s Guidelines, available here, which the Committee advises every candidate and prospective nominator to review.  Positions are:

President-Elect: The term will be for 1 year; then, in April 2016, the President-Elect will be expected to succeed incumbent President Lori Damrosch, and so to serve a 2-year term as President. In keeping with tradition of alternating between practitioners and academics, it’s anticipated that the 2015 President-Elect will be drawn from among the Society’s practitioner members.
Vice Presidents: To be filled are 2 vacancies (an academic and a practitioner) for this position  – which carries a 1-year term, usually renewed once. Vice Presidents generally take the lead in overseeing a major ASIL activity or program.
Executive Council: To be filled are 8 vacancies on the Council, ASIL’s chief governing body. Members convene as a group twice a year, at the Annual Meeting in Washington, D.C., and at the traveling Midyear Meeting (this year, in Chicago). They serve 3-year terms and are expected to provide leadership to one or more of ASIL’s programs or activities.
Counsellors: To be filled are up to 8 vacancies, each for a 3-year term. Counsellors are nonvoting members of the Executive Council, who attend the Council meetings and are “chosen from from among the more senior members of the Society.”

Deadline for nominations is August 8, 2014; details on how to nominate here.

“Rough Justice” tells taut story of international law, politics in ICC early years

boscoPower politics managed to control the direction of the International Criminal Court in its 1st decade, but whether that dynamic will persist over the long haul remains to be seen: so concludes David Bosco in his superb book, Rough Justice: The International Criminal Court in a World of Power Politics (Oxford University Press 2014).

Bosco is an Assistant Professor of International Politics at American University in Washington, D.C., so it’s no surprise that Rough Justice theorizes a range of ways that relevant players might have behaved in the wake of the 1998 adoption by 120 states of the ICC’s Rome Statute. Of interest to him is the response of powerful states – in particular, the 5 permanent members of the U.N. Security Council – when confronted with the ICC, an institution whose formal rules give considerable power to weak states. Bosco posits that the major powers could have taken, to greater or lesser degrees, any of three paths:

  1. Marginalization, aimed to “ensure that the court remains weak and ultimately fades into irrelevance.” (p. 13)
  2. Control, not only “to keep the court within its mandate but also to ensure that the court does not interfere with important state political or diplomatic interests.” (p. 15)
  3. Acceptance, an embrace of the court likely brought on by pressure from other states and nongovernmental organizations, as well as the court’s own cultivation of a deservedly good reputation. (p. 16)

In the end, Bosco determines that marginalizing tactics by the court’s most vocal early opponent, the United States, fell short of their goal. But then, Bosco argues, the U.S. government and some other states succeeded in exercising control, by means including narrowly defined Security Council referrals and “informal signaling” of state preferences. (Some of my writings on issues Bosco raises may be found here, here, and here.) Looking at how actors within the ICC responded, Bosco finds that Prosecutor Luis Moreno-Ocampo took a “strategic” approach to his choice of situations. And Bosco asks whether Prosecutor Fatou Bensouda, who took over in 2012, will “chart a dramatically different course.” (pp. 181-87) (By way of beginning an answer, the new Prosecutor has revisited some policies subject to Bosco’s critique; reversing a 2006 decision by her predecessor (p. 119), for example, Bensouda reopened a preliminary investigation into allegations of abuse during the 2003-08 period of war in Iraq.)

These theoretical chapters bookend an outstanding chronology of the ICC’s origins and early years. Even close followers of post-Cold War efforts at international criminal justice will learn from Bosco’s concise, well-told, and exhaustively researched account.