Episode 24 – Judge Chile Eboe-Osuji on the ICC, the Concept of “Attack,” and More

In this episode, I speak with Judge Chile Eboe-Osuji, Judge and President of the ICC until he stepped down earlier this year. He served as Judge on the ICC for almost ten years, and was President of the Court for three. Prior to that he was Legal Advisor to the UNHCR, and before that, a prosecutor at the International Criminal Tribunal for Rwanda. Orignally from Nigera, Judge Eboe-Osuji is a Canadian, and he practiced law in Toronto prior to his international law career. He is soon to take up a new position at the Lincoln Alexander School of Law at Ryerson University in Toronto. In our conversation Judge Eboe-Osuji reflects on his role in the development of the ICC, and some of the criticisms of the Court, before turning to a more detailed discussion of the meaning of term “directing attacks” in the Rome Statute, through the lens of the Ntaganda case. This leads to a discussion of the relationship between so-called Hague Law and Geneva Law in IHL, and between war crimes and crimes against humanity within the Rome Statute, all within the context of the object and purpose of IHL, and the need for intelligibility and accessibility as a fundamental component of the rule of law – fascinating discussion!

Materials:

The Prosecutor v. Bosco Ntaganda, Appeal Chamber Decision, Mar. 30, 2021.

The Prosecutor v. Bosco Ntaganda, Trial Chamber Decision, Jul 28, 2019.

– Abhimanyu George Jain, “The Ntaganda Appeal Judgement and the Meaning of “Attack” in the Conduct of Hostilities War Crimes,” EJILTalk!, Apr. 2, 2021.

– Ronald Acala and Sasha Radin, “Symposium Intro: The ICC Considers the Definition of ‘Attack.'” Articles of War, Oct. 27, 2020.

Reading Recommendations:

– Stanley Milgram, Obedience to Authority: An Experimental View (1969).

– Hannah Arendt, Eichmann in Jerusalem: The Banality of Evil (1963).

– Timothy Snyder, On Tyranny: Twenty Lessons from the Twentieth Century (2017).

Episode 13 – Douglas Guilfoyle on the Australian Inquiry into War Crimes in Afghanistan

In this episode, I speak with Douglas Guilfoyle, Associate Professor at the University of New South Wales, Canberra, in Australia. We discuss the recent report of the Inspector-General of the Australian Defence Force on his investigation into war crimes – including murder and cruel treatment of civilians and detainees – alleged to have been committed by members of the Australian Special Forces deployed in Afghanistan. We discuss the impetus for the investigation, the nature of the findings and recommendations, and explore in some detail the report’s treatment of the issue of command responsibility, and its finding that no officers had sufficient knowledge of the misconduct so as to attract criminal liability. This includes a discussion of how the provisions on command responsibility in the Rome Statute were subtly but perhaps significantly adjusted when implemented in the Australian Criminal Code. This leads to the question of what influence the principle of complimentarity and possible ICC involvement may have had in shaping the government’s handling of the issues. Finally we discuss some of the structural, organizational, and cultural features of the Australian forces in Afghanistan that were said to have contributed to the unlawful conduct.

Materials:

“Australian War Crimes in Afghanistan: The Brereton Report,” EJILTalk!, Nov. 23, 2020.

– The Hon. PLG Brereton, Inspector-General of the Australian Defence Force Afghanistan Inquiry Report, Oct. 29, 2020.

– Dan Oakes and Sam Clark, “The Afghan Files,” The ABC, Jul. 10, 2017.

Reading Recommendations:

– Monique Cormier, The Jurisdiction of the International Criminal Court over Nationals of Non-State Parties, (2020).

– Jessie Hohmann and Daniel Joyce, eds., International Law’s Objects, (2019).

– Thomas Rid, Active Measures: The Secret History of Disinformation and Political Warfare, (2020).