Nigeria

As I wrote in an article published last year, “the fate of children in armed conflict has formed a cornerstone of the ICC‘s early jurisprudence.” That article focused on the 1st case tried by the International Criminal Court — Prosecutor v. Lubanga, a case that ended Monday with the Appeals Chamber’s affirmance (available here) of Trial Chamber judgments convicting and sentencing a Congolese ex-militia leader for conscripting, enlisting, and using children under 15 to participate actively in hostilities.

The statement has a wider application, however. Child-soldiering crimes also were pursued, albeit unsuccessfully, in the next trial, Katanga and Ngudjolo. And a case set for trial next year, Ntaganda, involves not only those crimes, but also charges that the accused ex-leader was responsible for sexual abuse that his troops perpetrated against children under fifteen in the same militia. (New IntLawGrrls post on latter case here.)

reportThere is evidence that this focus will remain an ICC cornerstone, moreover. One example is the ongoing process, in which I am honored to take part, of preparing an ICC Office of the Prosecutor Policy Paper on Children. Another is the 64-page Report on Preliminary Examination Activities 2014, which the Office of the Prosecutor released Tuesday. The Report indicated that crimes against children form a part of the analysis in at least 4 of the 9 pending preliminary examinations, as follows:

Afghanistan: Still under examination are allegations that children have been recruited for and used in armed violence. (¶¶ 81, 89, 97) A doubling of casualties involving children is another stated concern. (¶ 83) Finally, there is the matter of harm done to girls:

‘A second potential case against the Taliban relates to attacks on girls’ education (i.e., female students, teachers and their schools). The Taliban allegedly target female students and girls’ schools pursuant to their policy that girls should stop attending school past puberty. The Office has received information on multiple alleged incidents of attacks against girls’ education, which have resulted in the destruction of school buildings, thereby depriving more than 3,000 girls from attending schools and in the poisoning of more than 1,200 female students and 21 teachers. While the attribution of specific incidents to the Taliban, and in particular the Taliban central leadership remains challenging, there is a reasonable basis to believe that the Taliban committed the war crime of intentionally directing attacks against buildings dedicated to education, cultural objects, places of worship and similar institutions.’

¶ 87; see also ¶ 88. (David Bosco‘s just-published Foreign Policy article on a different aspect of the Afghanistan examination is here, while Ryan Goodman‘s Just Security post on same is here, and Ryan Vogel‘s Lawfare post is here.)

Colombia: The report reiterated a prior finding of “a reasonable basis to believe that war crimes under article 8 of the Statute have been committed … including … conscripting, enlisting and using children to participate actively in hostilities” in violation of Article 8(2)(e)(vii) of the ICC’s Rome Statute. (¶ 109)

Central African Republic: With respect to a matter that moved from preliminary examination to situation under investigation during the course of this year, Office reported a reasonable basis to believe that the same 3 war crimes — conscription, enlistment, and use — had been committed by Séléka, an armed group that staged a coup in the country in 2012, as well as by the opposition anti-balaka. (¶¶  204, 205)

Nigeria: Again, attacks against girls appear to be on examiners’ radar, as indicated by ¶  178:

‘The abduction by the group of over 200 girls from a government primary school in Chibok, Borno State on 14-15 April 2014 has drawn unprecedented international attention to the Boko Haram insurgency.’

As noted at ¶  187, Prosecutor Fatou Bensouda condemned the abduction soon after it occurred, in a statement that, like others she has made recently (see here and here), underscores that the Office’s attention not just to child-soldiering, but also to the full range of crimes against children.

instrument - CopyWith the joinder last week of the Republic of Nigeria, the 2013 Arms Trade Treaty has 4 states parties. That leaves 46 to go for entry into force – a number that seems achievable, given that 83 states have taken the 1st step of signing the treaty since its April 2 approval by the U.N. General Assembly. As previously posted, the Assembly’s vote (154 aye-3 nay-23 abstain) became necessary when Iran, Syria, and North Korea blocked adoption by consensus at the late-March conclusion of a final treaty-drafting conference.

Secretary of State John Kerry proclaimed in June: “The United States welcomes the opening of the Arms Trade Treaty for signature ….” But to date the United States is not a signatory.

As detailed in the final text and previously posted, the treaty is intended to regulate “conventional arms”; that is: heavy weapons like battle tanks, armored combat vehicles, large-caliber artillery systems, combat aircraft, attack helicopters, warships, missiles, and missile launchers; ammunition; and small arms and light weapons.

After depositing the instrument of ratification, Olugbenga Ashiru, Nigeria’s Minister of Foreign Affairs, was quoted as follows:

‘This landmark event represents our deep commitment to a treaty which establishes common international standards for the import, export and transfer of conventional arms … We remain resolute and unyielding in our efforts to uphold the principle of ATT and, in particular, ensure that small arms and light weapons are appropriately transferred and access denied to terrorist groups, pirates, bandits and the like.’

His reference to nonstate actors occurred against the backdrop of Nigeria’s struggle against Boko Haram, a group responsible in recent years for attacks against civilians in the northern and central parts of the state. (According to the BBC, “Boko Haram,” “roughly translated means ‘Western education is forbidden’ in the local Hausa language.”) Earlier this month, a report by the Office of the Prosecutor found reasonable basis to characterize some attacks as crimes within the jurisdiction of the International Criminal Court. And just this week, a report surfaced that the armed group’s leader may have been killed.

Nigeria joins Antigua and Barbuda, Guyana, and Iceland as an early ratifier of the Arms Trade Treaty.

(above, detail from August 14, 2013, photo of Nigeria’s instrument of ratification, in the hands of Minister Ashiru, left, and D. Stephen Mathias, the UN’s Assistant Secretary-General for Legal Affairs)

kiobelPerhaps the only surprise in yesterday’s ruling in Kiobel v. Royal Dutch Petroleum was the vote: the long-running lawsuit, brought by Nigerian-born U.S. asylees, was rejected unanimously by the 9 Justices of the U.S. Supreme Court.

The bottom-line outcome (though not the vote margin) could be read on the wall 13 months ago, when the Court – having just heard argument on the question of whether corporations could be sued under the statute – announced that it would hear reargument on this question:

‘Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.’

As I’d noted ‘way back in 2010, the question became ripe when the Court, in a securities judgment called Morrison v. National Bank Australia Limited, broadly reaffirmed the notion that absent clear statement to the contrary, all acts of Congress should be presumed to apply only within the borders of the United States.

In many respects, the rather terse, 14-page opinion of the Court by Chief Justice John G. Roberts, Jr. does little more than state that this presumption of extraterritoriality applies to suits under the circa-1789 statute at issue, the 33 words of which –

‘The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.’

– include no explicit statement one way or another. Much is left for future litigation, with various opinions offering glimmers of fact patterns that might, to adopt the words of the Court (p. 14), operate “with sufficient force to displace the presumption against extraterritorial application”:

► Roberts’ own opinion concludes by stating:

‘On these facts, all the relevant conduct took place outside the United States. … Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. …’

The sentences permit the inference that the outcome would not be predetermined if some “relevant conduct” occurred within the United States and/or if the corporate defendant were chartered in or otherwise operated extensively in the United States, to a degree greater than Shell.

► The 4 Justices whom many expected to dissent, though they agreed with rejection of the suit in Kiobel, set out a 15-page concurrence in the judgment positing a framework for situations that might be actionable notwithstanding the newly reaffirmed presumption against extraterritoriality. Justice Stephen G. Breyer thus wrote – in an opinion joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan – that jurisdiction would lie if:

‘(1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest …’

National interest, this exceptionally American opinion stated,

‘includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.’

► The Court’s perennial swing vote did not expressly endorse the above 3-part test. Nevertheless, Justice Anthony M. Kennedy, in a solo concurrence, underscored that Roberts’ opinion

‘is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute.’

Kennedy noted that the decision in Kiobel does not affect fact patterns falling within the scope of the Torture Victim Protection Act of 1991. Even allegations of human rights abuses not covered by TVPA, yet not fully foreclosed by Kiobel, await additional litigation. As Kennedy put it:

‘[I]n those disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.’

In short: Dealt a harsh blow yesterday, some litigation under the Alien Tort Statute lives on, though perhaps just to die another day.