Accountability - Summer 2011

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Introduction
Margaret Zimmerman

The Summer Issue of Accountability has grouped articles into two sections - case law review and thematic issues of international criminal law. The first section analyzes recent decisions made by international, regional and national courts looking at various areas of expansion of international criminal law. The second section provides insights into trends of international criminal law as regards victim participation, national truth commissions and aviation law. As with other issues of the newsletter, each piece seeks to illustrate how various bodies address Accountability.

The first series of articles opens with the recent ICC's issuance of arrest warrants for Muammar Gaddafi, Saif Al-Islam Gaddafi and Abdul Al-Senussi for crimes against humanity. In this piece, Joseph William Davids breaks down the Trial Chamber's determination that reasonable grounds existed justifying arrest warrants. In doing so, Davids argues that the widespread and systematic nature of the attack, which, according to the trial chamber, stems from Gaddafi's totalitarian regime, expands the definition of crimes against humanity and may establish a dangerous precedent of applicability. Specifically, Davids looks to the Chinese government's control of the media and justice system, particularly as regards Tibet, as parallel to Gaddafi's oppressive regime and warns against the implications of expanding crimes against humanity to government policies. The next piece by return contributor Kyle Richard Olson walks us through the recent landmark decision by the ICTY Trial Chamber convicting Generals Ante Gotovina and Mladen Markac. The judgment is the first to convict Croatians for crimes committed in Croatia, questioning the role of the Generals as liberators or criminals. His piece provides background to the indictment, summary of the judgment, and explores the possible implications of the court's use of extended joint criminal enterprise as a theory of liability. Olson closes the articles by predicting the arguments to be presented to the Appeals Chamber. We then move from international criminal courts to the Inter-American Court of Human Rights with Lisl Brunner's piece which explores the recent Gelman v. Uruguay decision. In her piece she outlines how the Inter-American Court invalidated the Uruguayan Ley de Caducidad amnesty law. This holding confirmed the rising public desire in Uruguay to repeal the law within the domestic legislature and Uruguay Supreme Court decision declaring the amnesty law unconstitutional as well as the Executive's subsequent response and the reopening of 88 cases. Moreover, Brunner's article discusses the weight of the Inter-American Court's decision within a politically difficult domestic Uruguayan context. Alka Pradhan provides the last case study in this section by examining the Kiobel v. Royal Dutch Petroleum decision of the US Second Circuit and looking at the recent use of the Alien Tort Statute (ATS). Her article provides background to ATS caselaw culminating in the Second Circuit's decision that corporations are not viable plaintiffs, contradicting decisions made by the Ninth and Eleventh Circuits. Pradhan argues that although corporate liability may not fall within the purview of customary international law, there is evidence in international courts and several conventions paving the way for tortious corporate accountability. Each of the decisions in this section is awaiting further actions in the upcoming months and provide background to groundbreaking cases in international law.

As we move from specific case studies into various thematic areas of international criminal law we begin with Bryan Barnet Miller's piece on victim participation at the ICC. Miller traces the caselaw of victim participation beginning with the Lubanga decision, requiring proof of a nexus between the harm suffered and charges confirmed, and resulting in the Bemba, Katanga and Ngudjolo Chui cases development of geographically grouped legal representation. Miller strongly argues against these decisions on the basis of principles of restorative justice, due process and effective legal representation. Specifically, Miller criticizes the Trial Court and Appellate Court's decisions as violative of the rights of the victims as well as the ICC Statute itself. Continuing our look at international criminal law through the lens of restorative justice, Stefan Kirchner's article examines the possible application of crimes against humanity within the context of the impending Iran Tribunal. The tribunal is intended as a truth commission to deal with, in part, the execution of thousands of political prisoners in August 1988. Looking to 1988 customary international law, Kirchner argues that these political executions amount to a crime against humanity and therefore subject to prosecution under the principle of universal jurisdiction. He concludes with a look to the Iran Tribunal and efforts it may undertake to collect evidence and create a historical narrative to be used towards possible future accountability associated with the 1988 executions. Carrying over the theme of accountability, Yvonne McDermott's article focuses on the convergence and divergence of international refugee law, international criminal law and international human rights law through the review of a meeting organized by the ICTR and UNHCR. Her analysis of the meeting and background papers points out the gaps in instruments utilized, conceptual definitions and evidentiary procedures. Importantly, she summarizes arguments surrounding the substantive and procedural interactions between international indictments and various conventions. She also notes the prominence of international humanitarian law discussed by the experts and the importance of a joint advocacy strategy between all institutions and organizations involved. The last piece in this issue of Accountability looks to the interaction between international criminal law and international aviation law through the form of the Beijing Convention and Beijing Protocol dealing with civil aviation security contributed by Konstantinos Magliveras. Magliveras examines the inclusion of the "Al Qaeda clause" in both Beijing instruments dealing mostly with the seizure of aircrafts. He calls into question definitional problems surrounding use of the term 'legal entity', the problem of double jeopardy, links between the legal entity and individual perpetrators as well as available modes of liability. He presents these issues with the Beijing instruments as states adopting them will have to determine whether to give any effect to the clause and warns of foreseeable problems.

On behalf of the entire ASIL ICL Interest Group, I would like to thank all of the contributing authors for their efforts. This issue has provided a unique look at the progression of international criminal law through caselaw review and thematic perspectives. Moreover, each piece is uniquely relevant with upcoming judicial sessions and pending cases before both international and national courts, furthering the central aim of this newsletter, Accountability.



Has the ICC's 'Decision on the "Prosecutor's Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar GADDAFI, Saif Al-Islam GADDAFI and Abdullah AL- SENUSSI"' Expanded the Definition of Crimes Against Humanity?
Joseph William Davids

On June 27, 2011 Pre-Trial Chamber I ("PTCI") of the International Criminal Court ("ICC") issued a Decision setting out its reasons for issuing arrest warrants for Muammar Gaddafi, Saif Al-Islam Gaddafi and Abdul Al-Senussi. As part of that decision PCTI found there were reasonable grounds to believe that the accused had committed the crimes of murder and persecution as Crimes Against Humanity. In order to determine that there were reasonable grounds to believe that the accused had committed these crimes, PTCI had to find that the contextual elements, also known as chapeau elements, of Crimes Against Humanity existed. The contextual elements of Crimes Against Humanity before the ICC are that the crimes were committed (1) as part of a widespread and systematic attack (2) directed against any civilian population (3) pursuant to a State or Organizational policy to commit such an attack.



War Hero Turned War Criminal: The ICTY Convicts Croatian General Ante Gotovina
Kyle Richard Olson

On April 15, 2011, the Trial Chamber for the International Criminal Tribunal for the former Yugoslavia (ICTY) issued one of its most momentous verdicts to date. After a three-year trial that involved 145 witnesses, the ICTY Trial Chamber convicted Croatian Generals Ante Gotovina and Mladen Markac for their leadership roles in the "Operation Storm" military campaign of 1995. The ruling marks the first time in the ICTY's 18-year history that members of the Croatian Army were convicted for crimes committed on Croatian soil. It also casts a shadow on the man many Croatians view as a modern legend for liberating them from the perceived Serbian oppressor.

Beyond the politically charged implications of Gotovina's conviction lie compelling questions about the conviction's legal basis. The Trial Chamber relied on the contentious form of "extended" joint criminal enterprise liability (JCE III) to reach its conviction. This article offers a brief summary of the Gotovina judgment, discusses the Trial Chamber's use of the JCE III theory and forecasts the legal challenges that will shape the Gotovina appeal in the months to come.



Is Uruguay Foundering on the Path to Accountability?
The Aftermath of the Gelman decision of the Inter-American Court >
Lisl Brunner

In the wake of the Inter-American Court of Human Rights' first judgment regarding Uruguay, the quest for accountability in that country has been set back by the faltering resolve of the governing party and the Supreme Court. As a result of political maneuvering, the status of mechanisms to prosecute and punish perpetrators of crimes against humanity in Uruguay now appears less certain than it had been prior to the historic judgment.


Kiobel v. Royal Dutch Petroleum: Limiting the Scope of the Alien Tort Statute
Alka Pradhan

Unique to the United States, the Alien Tort Statute ("ATS") provides victims of international crimes with a civil remedy before U.S. district courts. The ATS is a single sentence contained in the 1789 Judiciary Act that lay in disuse until a series of plaintiffs in the 1980s and 1990s rediscovered it for claims against violators of international law found in the United States.


Whatever happened to victim participation?
Bryan Barnet Miller

The great innovation of the International Criminal Court (“ICC”) is seen as victim participation, codified in Article 68 of the ICC Statute. This innovation has not come into fruition, and the jurisprudence by the trial chambers has essentially eviscerated victim participation.

The first blow to victim participation came with the Lubanga Appellate Chamber decision of July 2008.  The chamber held that in order to proceed with the status of a victim, he or she would have to prove a nexus between the harm suffered and the confirmation of charges. While this decision is palatable given the accused’s presumption of innocence and due process concerns, this was the start of a slippery slope.


The 1988 Mass Killing of Political Prisoners in Iran – A Crime Against Humanity
Stefan Kirchner

In the 1980s, a large number of political prisoners have been executed in Iranian prisons. A particularly noteworthy number of executions took place in the summer of 1988, when several thousand political prisoners were killed. In the last years, efforts have been underway to ensure that these crimes are not forgotten. Due to the current political situation in Iran, it is highly unlikely that those responsible will be brought to justice by domestic courts anytime soon. Therefore a truth commission (the “Iran Tribunal”) is in the process of being created which will document at least some of the crimes.


Complementarities between International Refugee Law, International Criminal Law and International Human Rights Law
Yvonne McDermott

From 11-13 April, 2011, an expert meeting co-organised by the International Criminal Tribunal for Rwanda (ICTR) and the Office of the United Nations High Commissioner for Refugees (UNHCR) took place in Arusha, Tanzania. The meeting, attended by 31 experts from over 15 countries drawn from governments, NGOs, academia and international organizations, examined the extent of possible synergies between international refugee law, international criminal law and international human rights law. Two research papers were commissioned in advance of the expert meeting- one on extended liability under international criminal law and its potential effect on the exclusion clause under refugee law, and the other on forced displacement as an international crime. A background paper, highlighting some of the potential areas of convergence and conflict between the three bodies of law, was prepared by UNHCR in advance of the meeting.


International Aviation Law and Criminal Law: Recent Developments
Professor Konstantinos D. Magliveras

The Conference on Aviation Security, which took place in Beijing in September 2010 under the auspices of the International Civil Aviation Organization (ICAO) aimed at revising the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971), as amended by the 1988 Protocol, and the Hague Convention for the Suppression of Unlawful Seizure of Aircraft (1970) in order to address the 9/11 terrorist attacks and related emerging threats. The Conference adopted two instruments: (a) the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation (hereinafter ‘Beijing Convention’) replacing the Montreal Convention and Protocol; and (b) the Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft (hereinafter ‘Beijing Protocol’) amending the Hague Convention.