Posts by David Gault
Sudan, Libya, and (Inter)national Criminal Punishment
At the national level, “courts and prosecutors are bound to serve the interests of society in general and, to some ambiguous and debated degree, the interests of victims.”[1] At the international level this complexity is even more pronounced, as at least one more injured party is introduced to the mix. By definition, the negative impact of international crime is felt not just by its immediate victims and the States in which it transpires, but also by the international community.
On 26 February 2011, the UN Security Council unanimously referred the situation in Libya to the Prosecutor of the International Criminal Court (ICC).[2] Just under six years ago, the Security Council referred the situation in Sudan to the ICC.[3] Both referrals were made pursuant to Chapter VII of the UN Charter, that is, in response to a threat to international peace and security.[4] Neither Libya nor Sudan are States Parties to the Rome Statute, the ICC’s foundational document, and both retain and use the death penalty as a mode of criminal punishment.[5]
Both States’ retention of the death penalty, far more remarkable today than it would have been years ago, is markedly at odds with the ICC’s relatively lenient sentencing scheme, whose most severe punishment is a term of life imprisonment,[6] to be served under conditions “consistent with widely accepted international treaty standards governing treatment…
On Kenya and State-funded Defences of ICC Accused
Recently, it was reported that the Kenyan government was considering financing the defences of the six Kenyans whom the International Criminal Court’s (ICC) Chief Prosecutor, Luis Moreno-Ocampo, has recently applied to have summoned to the Court on the basis of evidence that they participated in crimes against humanity during the post-election violence of 2007-2008. More recently, Kenya, with the support of the African Union (AU), has announced its desire to have the investigation deferred by the Security Council, pursuant to Article 16 of the Rome Statute. Indeed, on February 2nd 2011 AU Commissioner, Jean Ping, sent the UN Security Council a letter requesting the deferral.[1]
Despite committing to the creation of a special tribunal for the post-election violence in December 2008, to date, the Kenyan government has failed to establish national trials and the special tribunal has yet to materialize. Under pressure created by the Prosecutor’s application, Kenya is once again suggesting that it will create such a tribunal. Even if the ICC’s Pre-Trial Chamber finds that there are reasonable grounds to believe that any or all of the suspects have committed the crimes alleged in the Prosecutor’s application and so grants the application,[2] the positions of the Kenyan administration and the AU seem sure to interfere with any further progress.
A point of particular interest in the ICC’s fraught relationship with the Kenyan government is the fierce…
The Canadian Government & Omar Khadr’s Plight
On 25 October 2010, more than 8 years after being brought into US custody, Omar Khadr, pleaded guilty to murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy, providing material support for terrorism, and spying. On 31 October a Military Commission at the U.S. Naval Station in Guantanamo Bay, Cuba, sentenced him to 40 years in confinement.
Mr. Khadr, however, will be imprisoned for a maximum of 8 years, on account of a plea agreement[1] which was signed, at least in part, on the understanding that, having served no less than a year of his sentence in the U.S., the Canadian Government would be amenable to an application to serve the remainder of his sentence in Canada, subject to Canadian rules of parole. On 23 October the Government of Canada, in a diplomatic note[2] to the U.S. Government, expressed its “inclination to favourably consider” such an application.
The terms of the plea agreement are severe. Among other things, Mr. Khadr waived any claim to credit for time served, agreed to direct counsel to submit a motion to dismiss his petition for habeas corpus in his case pending before the U.S. District Court for the District of Columbia, as well as all claims currently pending in the U.S. Court of Appeals for the District of Columbia Circuit. In addition, while…
