All posts by Rajdeep Banerjee

“The act and wrong of a mad man shall not be imputed to him.”

On March 23, 2020, the U.S. Supreme Court delivered an opinion on the scope of ‘insanity defence’ in relation to Kansas law in the case titled Kahler v. Kansas. Under Kansas law, mental illness is a defense to culpability if it prevented a defendant from forming the requisite criminal intent. Kansas thus follows the cognitive incapacity test which examines whether a defendant was able to understand what he was doing when he committed a crime. It rejects the moral incapacity test which asks whether a defendant’s illness left him unable to distinguish right from wrong with respect to his criminal conduct. But in Kansas a defendant is still permitted to offer whatever evidence of mental health he deems relevant at sentencing and the judge has discretion to replace a defendant’s prison term with commitment to a mental health facility.

Brief facts of the case are deceased Karen Kahler had filed for divorce from defendant James Kahler and moved out of their home with their two teenage daughters and son to her grandmother’s house. After some months the defendant went there and after entering through the back door shot Karen, Karen’s grandmother and both his daughters. All victims died and Kahler then surrendered to the police the next day.

Kahler argued that he was suffering from severe depression and it had prevented him from forming the intent to kill. During trial Kahler filed a motion arguing that Kansas’s treatment of insanity claims violated the Fourteenth Amendment’s Due Process Clause. He argued that Kansas had unconstitutionally abolished the insanity defense by allowing the conviction of a mentally ill person “who cannot tell the difference between right and wrong.” The trial court denied the motion and the jury convicted Kahler of capital murder. But at the penalty phase, the court permitted Kahler to offer additional evidence of his mental illness and to argue in whatever way he liked that it should mitigate his sentence, still the jury decided to impose the death penalty which was upheld by the Kansas Supreme Court.

The U.S. Supreme Court, referring to Leland v. Oregon, 343 U. S. 790 (1952), observed that a state rule about criminal liability—laying out either the elements of or the defenses to a crime—can violate due process only if it offended some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.

Kansas law holds a mentally ill defendant guilty if he had enough cognitive function to form the intent to kill, even if he believed the murder morally justified. The Supreme Court referred to its earlier decision in Powell v. Texas, 392 U. S. 514 (1968), wherein the Supreme Court had agreed with Texas declining to recognize chronic alcoholism as a defense to the crime of public drunkenness observing that the paramount role of the States is in setting standards of criminal responsibility. The Court in that case invoked the many interlocking and overlapping concepts that the law uses to assess when a person should be held criminally accountable for his antisocial deeds. The Court thus concluded that the doctrine of criminal responsibility must remain the province of the States.

The Court in this case observed that even after the articulation in M’Naghten, the moral incapacity test has never commanded the day. It said that the legal insanity defence is constantly changing as new medical knowledge emerges and as legal and moral norms evolve. It is for the state to decide and the M’Naghten rule has not been elevated to the level of a fundamental principle.

Differing with the defendant the Court reasoned that constitutionalizing the moral-incapacity standard would require striking down of many similar state laws. It stated that the due process standard sets a high bar, and a rule of criminal responsibility is unlikely to be sufficiently entrenched to bind all States to a single approach. Utilising its earlier precedents in Leland v. Oregon 343 U. S. 790 (1952), Powell v. Texas 392 U. S. 514 (1968), Clark v. Arizona 548 U. S. 735 (2006) the Supreme Court rejected Kahler’s appeal.

CERD, ICJ, ICSFT, Russia, Ukraine

ICJ RULES THAT IT HAS JURISDICTION IN UKRAINE-RUSSIA DISPUTE CONCERNING CERD AND ICSFT VIOLATIONS

November 26, 2019 Rajdeep Banerjee

The International Court of Justice on 8 November 2019 delivered the judgment in Ukraine v Russia on the preliminary objections raised by Russia with respect to ICJ’s jurisdiction and the admissibility of Ukraine’s claims under the International Convention for the Suppression of the Financing of Terrorism (ICSFT) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). The actual dispute at stake was the unlawful use of force by Russia by conducting a proxy war in eastern Ukraine as well as by illegally annexing Crimea. But Ukraine invoked the breach of these two conventions by instituting proceedings against the Russian Federation with regard to alleged violations by Russia of its obligations under ICSFT and CERD.

Regarding jurisdiction, Ukraine sought to find the Court’s jurisdiction on Article 24, paragraph 1, of the ICSFT and on Article 22 of CERD. Ukraine alleged that Russia through its State organs, State agents has violated its obligations under the CERD by systematically discriminating against and mistreating the Crimean Tatar and ethnic Ukrainian communities in Crimea, in furtherance of a State policy of cultural erasure of disfavoured groups perceived to be opponents of the occupation regime and various other suppressions. It further alleged that Russia was responsible for violations of Article 18 of the ICSFT by failing to cooperate in the prevention of the terrorism financing offenses set forth in Article 2 by taking all practicable measures to prevent and counter preparations in its territory for the commission of those offenses within or outside its territory. The Russian Federation was alleged to have violated Article 18 by failing to take the practicable measures of preventing Russian state officials and agents from financing terrorism in Ukraine and various other accusations.

Ukraine contended that Russia had failed to take all practicable measures to prevent and counter preparations in its territory for the commission of terrorism financing offences in the context of the events which occurred in eastern Ukraine starting from the spring of 2014 and to repress them.

The Court observed that its jurisdiction is based on the consent of the parties and is confined to the extent accepted by them (referring to Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, 2018). Article 24, paragraph 1, of the ICSFT provides that: “Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation within a reasonable time shall, at the request of one of them, be submitted to arbitration. If, within six months from the date of the request for arbitration, the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice, by application, in conformity with the Statute of the Court.”

Article 22 of CERD provides that: “Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.”

In the case concerning Oil Platforms (Iran v. United States of America) (Preliminary Objection, 1996) and in the case concerning Certain Iranian Assets (Iran v. United States of America) (Preliminary Objections, 2019), in order to determine the Court’s jurisdiction ratione materiae under a compromissory clause concerning disputes relating to the interpretation or application of a treaty, it is necessary to ascertain whether the acts of which the applicant complains fall within the provisions of the treaty containing the clause. The ICSFT has to be interpreted according to the rules contained in the Vienna Convention on the Law of Treaties to which both Ukraine and the Russian Federation are parties.

The Court discussed whether the dispute relating to the events in eastern Ukraine is one which it has jurisdiction ratione materiae to entertain under Article 24, paragraph 1, of the ICSFT. To determine its jurisdiction ratione materiae under a compromissory clause concerning disputes relating to the interpretation or application of a treaty, it was necessary to ascertain whether the acts of which the Applicant complains “fall within the provisions” of the treaty containing the clause.

The Court examined whether the procedural preconditions set forth in Article 24, paragraph 1, of the ICSFT have been fulfilled. It observed that the first precondition, namely that the dispute between the Parties could not be settled through negotiation within a reasonable time was satisfied as though diplomatic exchanges relating to the subject-matter of the dispute took place between the Parties, but little progress was made by them during their negotiations. Concerning the second precondition of an arbitration, the Court observed that negotiations concerning the organization of an arbitration were held, but that the Parties were unable to reach an agreement within six months. And hence the second precondition was also met. Since the preconditions were met, it thus had jurisdiction to entertain the claims made pursuant to ICSFT.

Regarding the dispute relating to the events in Crimea the question was whether ICJ had jurisdiction ratione materiae to entertain under Article 22 of CERD. Crimean Tatars and ethnic Ukrainians in Crimea constituted ethnic groups protected under CERD. The Court observed that the restrictions allegedly imposed on Crimean Tatars and ethnic Ukrainians in Crimea were capable of having an adverse effect on the enjoyment of certain rights protected under CERD and thus concluded that the claims of Ukraine fell within the provisions of CERD.

The Court further observed that the negotiations between the Parties, which related to the subject-matter of the dispute before it, lasted for approximately two years and included both diplomatic correspondence and face-to-face meetings, which indicated that a genuine attempt at negotiation was made by Ukraine. The Court thus concluded that the procedural preconditions set out in Article 22 of CERD were also satisfied. As a result, it has jurisdiction to consider the claims made under CERD. Thus, Ukraine has now got a favourable ruling from the UN Court and hence the claims made by it against Russia can now proceed before the court.

African Politics, Bosco Ntaganda, Crimes against humanity, DR Congo, ICC, Rwanda

ICC CONVICTS CONGO WARLORD NTAGANDA OF WAR CRIMES INCLUDING RAPE AND SEXUAL SLAVERY

July 28, 2019 Rajdeep Banerjee

The International Criminal Court has delivered its anticipated judgment in the Ntaganda case. The court has now convicted the warlord for his crimes. The case dealt with the alleged criminal conduct by Ntaganda in the Ituri region in the DRC between 2002 and 2003.

Ntaganda is a Rwandan born Tutsi and was raised in North Kivu in the DRC. He fled Rwanda to neighbouring Uganda to escape from the Hutu militia and participated in the overthrow of the Hutu-led Rwandan government which was responsible for the Rwandan genocide.

Bosco Ntaganda was the former Deputy Chief of the Staff and commander of operations of FPLC and he was charged of various war crimes including murder and attempted murder, attacking civilians, rape, sexual slavery of civilians, pillaging, displacement of civilians, attacking protected objects, destroying the enemy’s property, conscription of child soldiers under the age of fifteen years and using them to participate actively in hostilities and various counts of crimes against humanity, for acts allegedly committed in 2002-2003 in Ituri.

In the Eastern Congo region of Ituri, there were hostitlities between Hema and Lendu communities. Ntaganda served as the Deputy Chief of Staff of the Patriotic Forces for the Liberation of Congo (Forces Patriotiques pour la libération du Congo, FPLC), the armed wing of the Union of Congolese Patriots (Union des Patriotes Congolais, UPC) headed by Thomas Lubanga Dyilo. UPC, who launched an attack against the Lendu community in Ituri province.

Lubanga has been earlier found guilty in 2012 of the war crimes of enlisting and conscripting of children under the age of 15 years and using them to participate actively in hostilities and has been sentenced to a total of 14 years of imprisonment.

In the present case, the ICC observed that the crimes committed against the civilians were not the result of an uncoordinated and spontaneous decision of individual perpetrators acting in isolation, but were the intended outcome of the implementation of a policy which was actively promoted. Lendu population was specifically targeted as a part of a preconceived strategy. ICC thus held that the course of conduct took place pursuant to a policy of the UPC/FPLC to attack and chase away the Lendu civilians as well as those who were perceived as non-Iturians. ICC found beyond reasonable doubt that Ntaganda and other military leaders of the UPC/FPLC, including Lubanga and Kisembo, worked together and agreed in the common plan to drive out all the Lendu from the localities targeted during the course of their military campaign.

Ntaganda was held individually criminally responsible for murder as a crime against humanity (Article 7(1)(a)) and as a war crime (Article 8(2)(c)(i)), as a direct perpetrator (Article 25(3)(a)).

He has been convicted of various offences including intentionally directing attacks against civilians as a war crime, rape as a crime against humanity and as a war crime, as an indirect coperpetrator of women and girls, sexual slavery as a crime against humanity and as a war crime, pillage as a war crime, as an indirect co-perpetrator, in relation to the looting of items by UPC/FPLC soldiers, conscripting and enlisting children under the age of 15 years into an armed group between 2002 and 2003, and using them to participate actively in hostilities with respect to the participation of children under the age of 15.

This is a landmark conviction as it was the first trial where a commander was charged with rape and sexual violence committed against child soldiers under his command. Now he is the first man to be convicted for the crime of sexual slavery.

African Politics, Bemba Gombo, CAR, Command Responsibility, DR Congo, ICC

INTERNATIONAL CRIMINAL COURT SHOCKER: A DIVIDED APPEALS CHAMBER OVERTURNS CONGO WARLORD’S CONVICTION

June 29, 2018 Rajdeep Banerjee

In a surprising development, the Appeals Chamber of the ICC has overturned the conviction of Jean-Pierre Bemba, warlord and former vice-president of Democratic Republic of the Congo. Bemba’s conviction was the first ICC case which involved a conviction for sexual violence as well as the first case to find a perpetrator guilty of command responsibility under Article 28 of the ICC statute. Bemba was convicted of crimes against humanity as well as war crimes committed by his Mouvement de libération du Congo (MLC) troops in the neighbouring state Central African Republic (CAR) from 2002-2003 where his troops were invited to quell a coup. Bemba was sentenced to 18 years imprisonment.

Now the Appeals Chamber has held that in the present case the judgment under appeal merited no deference and after evaluating the case de novo came to the conclusion that the charges cannot be sustained. Dealing a deadly blow on ‘command responsibility’ the Appeal Court while acquitting him held that he was not responsible for the excesses of his forces. With respect to military leaders, Article 28(a) of the Rome Statute provides that a military commander is criminally responsible for crimes within the jurisdiction of the Court committed by forces under his effective command and control, or effective authority and control as a result of his or her failure to exercise control properly over such forces, where the military commander either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes and that military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

The Appeals Court has now observed that the scope of the duty to take “all necessary and reasonable measures” is intrinsically connected to the extent of a commander’s material ability to prevent or repress the commission of crimes or to submit the matter to the competent authorities for investigation and prosecution adding that a commander cannot be blamed for not having done something he or she had no power to do. It held that an assessment of whether a commander took all “necessary and reasonable measures” will require consideration of what measures were at his or her disposal in the circumstances at the time which is consistent with international jurisprudence (Strugar Trial Judgment).

The Court has announced that it is not the case that a commander must take each and every possible measure at his disposal. Despite the link between the material ability of a commander to take measures (which is directly connected to his or her level of authority) and what he might reasonably have been expected to do, it is not the case that a commander is required to employ every single conceivable measure within his or her arsenal, irrespective of considerations of proportionality and feasibility. Article 28 only requires commanders to do what is necessary and reasonable under the circumstances.

Commenting on Article 28, it observed that it is not a form of strict liability. Commanders are allowed to make a cost/benefit analysis when deciding which measures to take, bearing in mind their overall responsibility to prevent and repress crimes committed by their subordinates. This means that a commander may take into consideration the impact of measures to prevent or repress criminal behaviour on ongoing or planned operations and may choose the least disruptive measure as long as it can reasonably be expected that this measure will prevent or repress the crimes.

Acquitting Bemba, the Court reasoned that the Trial Court failed to properly appreciate the limitations that Bemba would have faced in investigating and prosecuting crimes as a remote commander sending troops to a foreign country. The First Court failed to give any indication of the approximate number of the crimes committed and to assess its impact on the determination of whether Bemba took all necessary and reasonable measures. The Appeals Chamber also came to the conclusion that Bemba was not sufficiently notified of some factual allegation and hence suffered prejudice as a result of the lack of proper notice.

The Appeals Chamber observed that ‘simply juxtaposing the fact that certain crimes were committed by the subordinates of a commander with a list of measures which the commander could hypothetically have taken does not, in and of itself, show that the commander acted unreasonably at the time. The trial chamber must specifically identify what a commander should have done in concreto.’ It further observed that it is for the trial chamber to demonstrate in its reasoning that the commander did not take specific and concrete measures that were available to him or her and which a reasonably diligent commander in comparable circumstances would have taken. It is not the responsibility of the accused to show that the measures he or she did take were sufficient as Bemba’s troops were operating in a foreign country with the attendant difficulties on Bemba’s ability, as a remote commander, to take measures. This judgment undoubtedly raises eyebrows as the effectiveness of ‘command responsibility’, which is also a customary international law, has now been seriously questioned. The negative impact of this judgment on the future cases before the ICC will be a great loss to the victims of crimes against humanity.