Opinio Juris

Subscribe by RSS
Updated: 1 hour 58 min ago

The Legality of Pardons in Latin America (Part II)

12 hours 5 min ago
by Alonso Gurmendi Dunkelberg

by Alonso Gurmendi Dunkelberg [Alonso Gurmendi is Professor of International Law at Universidad del Pacífico, in Peru.] As seen in Part I, Colombian transitional justice mechanisms have played a key role in the evolution of the Inter-American Court’s jurisprudence on proportionality of punishment. In this second part, I will analyze whether the Court’s Colombian case-law […]

Vargas Niño’s Mistaken Critique of My Position on Burundi

Thursday, November 16, 2017
by Kevin Jon Heller

Spreading the Jam has a guest post today from Santiago Vargas Niño criticising my argument that the OTP was required to notify Burundi as soon as it decided to ask the OTP to authorize the investigation. Here is what he says:

Professor Heller cites Article 15(6) to argue that, by receiving information under articles 15(1) and 15(2) of the Statute, the Prosecution has initiated an investigation. An equally plain reading of Article 18 would suggest that a parallel duty to notify concerned States would arise as soon as a situation caught the Prosecutor’s eye. Yet he acknowledges that “notification cannot be required every time the OTP decides to advance a preliminary examination (…) The better interpretation of Art. 18 is that notification is required once the OTP has decided to ask the PTC to authorize an investigation.”

Not only is that moment different to the “initiation” of an investigation, both under articles 15 and 18, thus rendering any claims of “natural” interpretation of the Statute inane, but professor Heller’s amalgamation of preliminary examination and investigation flies in the face of Article 15(3). This provision orders the Prosecution to submit a request for authorisation if it concludes that there is a reasonable basis to proceed with an investigation. Years of unchallenged practice have led to the understanding that such conclusion can only be reached through the preliminary examination, a stage that precedes the opening of an investigation and that is described by Article 15(2) – not by Article 15(1). Professor Heller’s argument also discounts the significance of Article 15(4), which squarely attributes the power to authorise the “commencement” (i.e. “initiation”) of an investigation to the PTC, and which conditions it upon the Prosecution’s demonstration that there is a reasonable basis to proceed under Article 53(1).

Furthermore, equating the launch of a preliminary examination with the artificial “initiation” of an investigation under Article 15(1) is extremely risky. If that were the case, the Prosecution should not have rushed to apply for authorisation to commence an investigation in Burundi before 25 October 2017 because its preliminary examination would have constituted a “criminal [investigation] (…) which [was] commenced prior to the date on which the withdrawal became effective” under Article 127. Such interpretation would also allow the Prosecution to exercise its powers under Article 54, as professor Jacobs puts it, since the moment: “an OTP investigator sitting in front of his computer in The Hague [starts] downloading HRW and Amnesty International reports.”

According to Vargas Niño, my argument "stems solely from [my] peculiar approach to Article 15." Alas, it is his approach that is peculiar. And not just peculiar -- wrong...

The Legality of Pardons in Latin America (Part I)

Thursday, November 16, 2017
by Alonso Gurmendi Dunkelberg

by Alonso Gurmendi Dunkelberg [Alonso Gurmendi is Professor of International Law at Universidad del Pacífico, in Peru.] In recent months, most commentaries coming out of South America have focused on the Colombian Peace Agreement with the FARC. There is, however, another post-conflict country positing interesting legal questions. In parallel to Colombia, Peru has been engaged […]

The Sea is Still Cruel – A Mariner’s Perspective on Some Aspects of the Updated ICRC Commentary on the Second Geneva Convention

Thursday, November 16, 2017
by Peter Barker

by Peter Barker [Lieutenant Commander Peter Barker is a Royal Navy barrister, currently serving as the Associate Director for the Law of Coalition Operations at the United States Naval War College.  The views expressed in this article are personal and do not reflect the position of the United Kingdom government or Armed Forces.] Technology has […]

A Response to Dov Jacobs on the Burundi Investigation

Sunday, November 12, 2017
by Kevin Jon Heller

by Kevin Jon Heller At Spreading the Jam, Dov Jacobs defends the Pre-Trial Chamber’s conclusion in the Burundi situation that the OTP is not required to notify a state until after the PTC has authorized the investigation. Here are the critical paragraphs from his post: Note the different language used [in Art. 18] depending on […]

How the PTC Botched the Ex Parte Request to Investigate Burundi

Friday, November 10, 2017
by Kevin Jon Heller

Last week I argued that the OTP's failure to ask the Pre-Trial Chamber to authorize an investigation prior to Burundi's withdrawal from the ICC becoming effective -- 28 October 2017 -- meant that the Court no longer had jurisdiction over crimes committed on Burundi's territory prior to that date. I still think my legal analysis is correct, but my factual assumption was clearly not. As it turns out, the OTP filed an authorization request with the PTC on September 15, but did so ex parte and under seal -- a possibility the ever-brilliant Sergey Vasiliev discussed a few days ago here at Opinio Juris. The PTC authorized the investigation on October 25, three days before Burundi's withdrawal became effective, but only released a public redacted version of its decision yesterday, November 9. As it stands now, therefore, the ICC retains jurisdiction over crimes committed in Burundi prior to 28 October 2017.

Unfortunately, the PTC's decision contains a critical legal flaw -- one whose importance cannot be overstated. Because the OTP filed its request to open an investigation ex parte and under seal, Burundi was not informed that the request existed until after the PTC had already decided to grant the request and authorize the investigation. The PTC makes this clear in paragraph 11 of its decision:

11. In sum, the Chamber finds that, on the basis of a combined reading of articles 15(3), 18 and 68(1) of the Statute and rule 50(1) of the Rules, a procedure pertaining to a request for authorization of an investigation may, under certain circumstances, be conducted under seal, ex parte, with the Prosecutor only.

In fact, the OTP did not even inform Burundi about the investigation immediately after the PTC authorized it, because the PTC accepted the OTP's argument that it needed 10 additional days to ensure that victims and witnesses were protected. (See paragraphs 16-19.)

Here is the problem: Art. 18 of the Rome Statute required the OTP to notify Burundi when it initiated the investigation into the situation there, not when the PTC authorized the investigation. Here is what the PTC says in paragraph 17 (emphasis mine)...

The Cyber “Shipwrecked” and the Second Geneva Convention

Friday, November 10, 2017
by Jeffrey Biller

by Jeffrey Biller [Jeffrey Biller, Lt Col, USAF, is the Associate Director for the Law of Air, Space and Cyber Operations at the Stockton Center for the Study of International Law, US Naval War College.] This May, the law of naval warfare took a significant step forward with the International Committee of the Red Cross […]

Ghana v. Côte d’Ivoire: Unilateral Oil Activities in Disputed Marine Areas

Thursday, November 9, 2017
by Xuechan Ma

by Xuechan Ma [Xuechan Ma, PhD candidate at Grotius Center for International Legal Studies of Leiden University, the Netherlands, researching on the topic of international cooperation in disputed marine areas; L.L.M. & L.L.B. at Peking University, China. Email: maxuechan [at] gmail [dot] com.] The Special Chamber of the ITLOS delivered its judgement of the Ghana […]

Piecing the Withdrawal Puzzle: May the ICC still open an investigation in Burundi? (Part 2)

Monday, November 6, 2017
by Sergey Vasiliev

by Sergey Vasiliev [Sergey Vasiliev is an Assistant Professor of International Law, Grotius Centre for International Legal Studies, Leiden University. This is the second part of a two-part contribution. The first part can be found here.] Initiation of an investigation by the OTP post-withdrawal As I argued previously, no investigation in the Situation in Burundi can […]

Piecing the Withdrawal Puzzle: May the ICC still open an investigation in Burundi? (Part 1)

Monday, November 6, 2017
by Sergey Vasiliev

by Sergey Vasiliev [Sergey Vasiliev is an Assistant Professor of International Law, Grotius Centre for International Legal Studies, Leiden University. This is the first part of a two-part contribution.] Questions raised by the ICC’s reaction to Burundi’s withdrawal On 27 October 2017, one year after Burundi notified the UN Secretary-General of its intention to withdraw […]

It’s High Time for the US to Conduct Complementarity As To Crimes in Afghanistan

Sunday, November 5, 2017
by Jennifer Trahan

by Jennifer Trahan [Jennifer Trahan is an Associate Clinical Professor at the Center for Global Affairs at New York University.] The ICC Prosecutor announced last week that she was requesting the ICC Pre-Trial Chamber to authorize the Afghanistan Preliminary Examination moving into the Investigation stage. This would take the ICC’s Afghanistan investigation one step closer […]

Initial Thoughts on the ICC’s Decision to Investigate Afghanistan

Friday, November 3, 2017
by Kevin Jon Heller

by Kevin Jon Heller Very significant news out of the ICC today: after a decade-long preliminary examination, the OTP has finally decided to ask the Pre-Trial Chamber to authorize a formal investigation into the situation in Afghanistan. Here is a snippet from Fatou Bensouda’s announcement: For decades, the people of Afghanistan have endured the scourge […]

Reflections on Burundi’s Withdrawal from the International Criminal Court

Tuesday, October 31, 2017
by Jennifer Trahan

by Jennifer Trahan [Jennifer Trahan is Associate Professor, The Center for Global Affairs, NYU-SPS, and Chair of the International Criminal Court Committee of the American Branch of the International Law Association.] On Friday, October 26, Burundi’s withdrawal from the International Criminal Court’s Rome Statute, filed one year earlier, became effective. This sad event —the first […]

A Dissenting Opinion on the ICC and Burundi

Sunday, October 29, 2017
by Kevin Jon Heller

by Kevin Jon Heller As has been widely reported, Burundi has just become the first state to formally withdraw from the ICC. The OTP has been examining the situation in Burundi since April 2016, but it did not formally ask the Pre-Trial Chamber (PTC) to authorize an investigation prior to Burundi’s withdrawal becoming effective. So […]

International Law Pays No Homage to Catalonia’s Declaration of Independence

Sunday, October 29, 2017
by Julian Ku

by Julian Ku International law is famously mushy and subject to a variety of interpretations.  But there are some issues upon which there is more consensus under international law, such as the illegality of Russia’s annexation of Crimea.  But is there any reasonable argument favoring the legality of the Catalan Parliament’s recent declaration of independence […]

New Essay: Specially-Affected States and the Formation of Custom

Wednesday, October 25, 2017
by Kevin Jon Heller

by Kevin Jon Heller I have just posted on SSRN a draft of a (very) long article entitled “Specially-Affected States and the Formation of Custom.” It represents my first real foray into both “classic” public international law and postcolonial critique. Here is the abstract: Although the US has consistently relied on the ICJ’s doctrine of […]

Events and Announcements: October 22, 2017

Sunday, October 22, 2017
by Jessica Dorsey

by Jessica Dorsey Announcement ASIL presents “International Law and the Trump Administration: The Use of Force under International Law” Online, Monday, October 30 at 2:00 PM ET. This live online briefing, the eighth in the American Society of International Law’s series on “International Law and the Trump Administration,” will feature former senior U.S. officials from both Republican […]