Thursday, March 16, 2017

“The High Costs of Abandoning International Law” and Implications for the International Criminal Court: A Response

The Boston Globe recently published an article by Jeffrey D. Sachs titled “The high costs of abandoning international law.”  Sachs explains the role of international law within the United States, and his points are particularly striking when examining the United States relationship with the International Criminal Court (ICC). 

Fact Check
While the article provides useful insights, there are two errors regarding the International Criminal Court in Sach’s presentation. First, the treaty that established the International Criminal Court is the Rome Statute (1998), but the article implies that the name of the treaty is the “International Criminal Court (1998).” Second, the US did not vote “against the ICC in the UN General Assembly.” The vote on the ICC occurred at the Rome Conference, not the General Assembly. 

Following a Principle of Jurisdiction
The article emphasizes a section of the Trump Administration’s draft trade policy agenda which says:
“Ever since the United States won its independence, it has been a basic principle of our country that American citizens are subject only to laws and regulations made by the US government – not rulings made by foreign governments or international bodies. This principle remains true today.”

Yet, it has been a long-established principle of international law that anyone who commits a crime in a state, can be tried under that state’s jurisdiction. The United States has used this understanding of jurisdiction to prosecute those who are not American citizens visiting the United States, and other states have exercised jurisdiction over Americans in their territory. Hence, if abroad, American citizens are subject to the laws and regulations of the state they are in, regardless of what American laws dictate. This principle of jurisdiction has not typically been one in contention.

The dismissal of this principle is not new. As Sachs acknowledges, many politicians reiterated this misunderstanding about international law. In fact, they relied on this incorrect notion of a jurisdictional clash in many of their explanations as to why the US would not ratify or accede to the Rome Statute. American politicians have repudiated the idea that if American citizens are responsible for crimes under the Rome Statute’s jurisdiction in the territory of state parties to the ICC, they can fall under the ICC’s jurisdiction. This idea is not out-of-step with how states have exercised jurisdiction for centuries. 

In American Interests
The article also examines the notions of “US primacy”  and “American actions alone.” Both ideas foster anti-multilateralism, arguing that the US does not need international cooperation to secure its interests. However, the article notes that various international treaties demonstrate the necessity of international legal agreements for our society to function, and for US interests in “America’s security and economic interests – in the sea, or the environment, or armaments” to be maintained. There are a plethora of regulations and institutions established under international law that benefit Americans. For example, the international aviation law allows planes to fly without running into each other, international maritime law allows ships to carry cargo between states and international postal law allow letters to be delivered. These branches of law have created institutions and regulations that facilitate these functions, which further the interests of the United States. The United States must remain a part of these treaties for our standard of life to be maintained. In other words, the US cannot act alone in the world, if it wishes to maintain its interests. Global problems exist that impact Americans and require global solutions.

One of these solutions is the ICC. It is in the United States’ interests that justice prevails and that the world brings those responsible for atrocities to justice. US practical support for various ICC cases, its War Crimes Rewards Program and its Security Council vote for referral of Libya to the ICC evince these interests. The United States cannot procure global justice, peace and security alone. Nor is it in our interest to try doing so.

History of Resistance from Politicians, not the Public
The article also correctly acknowledges that these myths are not merely a problem of the Trump Administration. Recent US history features resistance to international law, and its refusal to accede to the Rome Statute is invariably a symbol of such opposition. However, while politicians might not support the Rome Statute and other international treaties, several treaties, including the Rome Statute enjoy very broad public support in the US. In fact, a poll by the Chicago Council on Global Affairs found that 72% of Americans thought the US should “participate” in the Rome Statute, and this is not partisan support. 65% of “core Trump Supporters” agreed that the US should support the ICC. This public support has persisted despite the failure of politicians to ratify or accede to these treaties.

Written by Taylor Ackerman

Tuesday, March 07, 2017

Rule of Law

In its December newsletter, President Lucinda Low of the American Society of International Law (ASIL) took a diplomatic but strong stance on the importance of continued American support for and engagement with the International Criminal Court (ICC). Although ASIL is a non-partisan organization and very rarely issues policy positions, its mission has “implicit policy values embedded in its core” she wrote, including “a belief in international law and support for the rule of law in the conduct of international relations.”

For experts like Low on international law, the dawn of the Trump era is uniquely worrying: all signs point to a stepping back by America from international treaties and tribunals. If this proves true, she asks, “what measures should take up the slack to ensure there is accountability for internationally wrongful conduct?” Her piece in the newsletter also focused in on some of the legal challenges that the US will likely face in 2017, from the refugee crisis in Syria to sanction policy and the free flow of information and ideas. American values, and the values of her organization will be put to the test harshly in the time to come. Like many other authorities in the field, Low worries that our new administration lacks the experience-- and the temperament-- to properly handle delicate issues of foreign policy and international relations.

ASIL has a long and proud history of support for international legal institutions. In 1943, the group adopted a resolution stating that, (1) “the administration of international justice requires a permanent international judicial system with obligatory jurisdiction” and that (2) “instrumentalities, agencies and procedures should be instituted and developed to declare and make effective the considerable will of the Community of Nations”. Since that time, ASIL has been involved in important work to further the US’s role in international legal systems and represents, to date, a powerful cornerstone for the international law community in the United States. ASIL is a highly respected institution on international law; their support for international legal institutions is critical and influential because of its overall position in the field. As a Special Consultant to the Economic and Social Council for the UN, ASIL works to forward international justice through the rule of law by way of advocacy work, research initiatives, education and publications.

ASIL is not the only major American legal association with a strong public stance on participation in the ICC; The American Bar Association (ABA) has an entire domain of its website dedicated to its large-scale ICC project, where it shares resources about the US relationship with the Court, and where it endorses and actively follows current events on American partnership with the Court and runs its active advocacy for the ICC. According to their website, “the project’s mission is to strengthen, regularize, and broaden U.S. engagement with the ICC.”  The ABA has been a vocal supporter of permanent international justice tribunals since 1978; they took part in the negotiations resulting in the Rome Statute (the ICC’s founding document) from 1995-1998 and were present at most important historical moments for the Court since then. (Details can be found on their website). The ABA provides support for what they call “the crucial mandate of the ICC” through advocacy and education as well as through practical legal assistance, arranging platforms for exchange of legal expertise and best practices between domestic American and ICC lawyers. In 2000, the ABA’s House of Delegates passed a resolution explicitly endorsing the ICC and recommending America’s accession to the Rome Statute. The timing of this resolution was especially important; it was released as the relationship between the US and the ICC was just developing. The resolution specifically highlighted similarities between the Rome Statute and the US Constitution and Bill of Rights. The ABA’s message was clear: the ICC’s mission is consistent with and complementary to American values.

The commitments made by these two organizations represent a major commitment by the American legal community: a commitment to grow and strengthen US ties with the ICC. These endorsements are more than symbolic, they are an extraordinary manifestation of the real, dedicated interest that Americans have in international justice. Public opinion polls regarding US participation in the ICC have rarely been more favorable than in the last few years.

Never, though, has America seen a presidential administration so openly hostile to international cooperation or with such flippant disregard for the rule of law in its political dealings. Based on the first month of the Trump presidency, it is rather difficult to imagine a scenario in which the US’ relationship with the ICC would improve substantively over the next four years: Trump has not been shy in expressing his “America first” sentiments. He openly disdains participation in multilateral organizations, especially those with the potential to exert control over United States interests.

With Trump at the helm, American values of liberty, justice and democracy will be put to the test perhaps as never before. If Trump abandons the US’s positive relationship with the Court, or threatens to, the commitment of American lawyers to the ICC will require them to take an unequivocal stand against these actions, which constitute an attack on the rule of law.

The standing up of lawyers must be part of a larger movement by civil society to exert constant and intense pressure on the Trump administration to preserve and strengthen the United States’ relationship with the International Criminal Court. Americans will not accept regression as a political platform or as policy in practice. We will not stand idly by as the degradation of justice and the rule of law on a domestic or international scale takes place in our name.  In the words of Martin Luther King Jr., injustice anywhere is a threat to justice everywhere. Americans understand that when perpetrators of mass atrocities go unpunished anywhere in the world, people everywhere in the world pay the price.
We hope that you will continue to follow AMICC for further resources and opportunities in for advocacy and support for the ICC in the US. Help us deliver a message from the American people to the US government that strengthening our bonds with the Court can only serve to further American goals and ideals. Success for the ICC is success for American values and for the American people.

Written by: Kalila Jaeger

Monday, February 27, 2017

Responses to 5 "Alternative Facts" about the ICC

UN Photo/Rick Bajornas
There are facts, and there are falsehoods. However, in the past month, the euphemism “alternative facts” has emerged to confuse the two, and there are few institutions more likely to be challenged by misunderstandings and myths than the International Criminal Court (ICC). So, to help decipher what is factual and what is not, we would like to address five alternative facts about the ICC with actual facts.

“Alternative Fact”: Americans do not want to participate with the Court.
Fact: The majority of Americans support US participation the Court. According to the 2016 Chicago Council on Global Affairs survey, 72% of Americans think the US should to participate in “the agreement on the International Criminal Court that can try individuals for war crimes, genocide, or crimes against humanity if their own country won’t try them.” Furthermore, the Court receives bipartisan public support—79% of Democrats, 67% of Republicans and 65% of Core Trump Supporters agree that the US ought to participate in the Rome Statute. In a repeated phenomenon, Americans have consistently polled in favor of American participation in the Court, and support for the Court has seen an upward trend in the US.

“Alternative Fact”: The Court is an unprofessional body made up of unqualified individuals.
Fact: The Rome Statute places strong criteria for judges, there are no recent examples of unprofessional behavior by any personnel, and all of the current judges are highly qualified. The only exception was Judge Fumiko Saiga, who was not a lawyer and had limited knowledge of international law, but Judge Saiga is no longer on the court, having died shortly after her appointment. The international community learned from the appointment and modified the process of nomination as a result. Now, an independent committee of experts review all nominations for the judiciary. As a result, nominating countries present only candidates that the panel will decide are qualified. Under current practice, it is unlikely for states to nominate an unqualified person.

“Alternative Fact”: Only the most violent atrocities should be prosecuted at the ICC. The conviction and prosecution of Ahmad Al Faqi Al Mahdi for his intentional destruction of religious and historical buildings undermined the Court.
Fact: The ICC did not convict Al Mahdi for a bloody atrocity, but for the war crime of the destruction of internationally recognized sites of cultural and religious significance in Timbuktu. These sites were a UNESCO world heritage location. The conviction was appropriate given that not all war crimes include physical attacks on human beings . The Rome Statute makes the intentional destruction of religious and historic buildings without a military target a war crime under the ICC’s jurisdiction. Therefore, it was completely within the Office of the Prosecutor’s mandate to investigate and subsequently prosecute Al Mahdi, particularly since the Office of the Prosecutor’s evidence against Al Mahdi was sufficient for Al Mahdi to plead guilty. If the Court had ignored the well-established Timbuktu case, it would have violated its mandate and weakened its legitimacy. Furthermore, it did not undermine support for the ICC. There was widespread international support for the case and how the Court dealt with it. Many advocates for the protection of cultural heritage applauded the case. Lastly, the OTP’s decision to prosecute this case does not rule out further investigations into violent crimes under the Court's jurisdiction in Mali and subsequent arrest warrants for individuals responsible.

“Alternative Fact”: The Court is standing on shaky ground with little support and a collective withdrawal from African states on the horizon.
Fact: The ICC enjoys widespread support from over 120 state parties, and a threat of mass ICC withdrawal is not as potent as many believe. The majority of African states, as well as other state parties, voiced support for the Court at the last ASP session. Furthermore, while panic emerged after Gambia, South Africa and Burundi announced their intention to withdraw from the ICC, Gambia has since rescinded its withdrawal and South Africa’s High Court ruled the withdrawal submitted by the executive as “unconstitutional.” In response, to African states’ complaints, the ASP took their concerns in account by proposing a venue which these could be voiced. At the same time, the ASP insisted on maintaining the commitment to end impunity.

“Alternative Fact”: The Court’s inability to capture individuals that it issues arrest warrants for, such as  Omar al Bashir, the current Sudanese President, exemplifies the Court’s failure.

Fact: As an international organization, the Court itself cannot enforce its warrants and orders. Instead, its state parties are responsible for arresting these suspects and transferring them to The Hague. Therefore, it is the states, which refuse to arrest those wanted by the ICC, that are at fault, and their failure should not be a reflection on the ICC. However, international condemnation and public opinion and the rule of law within a state can deter such failure and provoke accountability for those rejecting their duties under the Rome Statute. A perfect example of such action is the recent charges brought by the South African Democratic Alliance against officials responsible for the failure to arrest Bashir when he was in South Africa, after international and domestic criticism. As other states and officials, see the results of failure to uphold Rome Statute duties they will be less inclined to follow suit. Moreover, the Court’s docket shows that it has been able to obtain custody of a significant number of persons under its arrest warrants.

Written by Taylor Ackerman

Wednesday, February 08, 2017

Trump, and Bannon and Draft Executive Orders... Oh My! The Future of US-ICC Relations

There is limited amount of information about future Trump administration policy towards the ICC. However, there are indicators of future ICC-Trump relations: a recent draft executive order, Trump policy on international organizations, previous consideration of notorious ICC opponent John Bolton for top foreign policy positions, the State Department website, and Breitbart attitudes towards the ICC. We need to analyze these because future US relations with the ICC will impact the future of the ICC, although not as much as some fear.

Some of the government's recent actions and policies have promoted conversations about the risk of the US ceasing its cooperation and engagement with the ICC. A recent article by the Center for American Progress remarked, “a Trump presidency means that U.S. commitment to international criminal justice—and to human rights in general—may soon be a thing of the past.”  This speculation may be correct, but it can only be just that.

The New York Times reported that a provision in Trump’s draft executive order titled, Auditing and Reducing U.S. Funding of International Organizations,” calls for a committee to consider cutting funds for the ICC. This provision would not mark a change in US practice because the US can not fund the ICC. In fact, the American Servicemembers Protection Act (ASPA) already bans US funding for the Court. However, its existence could hint at the administration’s awareness of and attitudes towards the ICC. Some aspects of the adversarial nature of the administration’s first action related to the Court might be a source of concern for future ICC-US relations. However, that is not yet clear. The provision may only imply that the US is not likely to begin allocating funds for the Court, or the administration may have wanted to take a symbolic stance against increased cooperation with the ICC. The provision could mean that the administration does not fully understand existing US law on the Court. It may simply be the result of an administration member seeing the ICC on a list of multi-lateral organizations. At the very least, the draft provision’s existence means that a high-level member of the Donald Trump administration is aware of the ICC.

Additionally, the repeated consideration of John Bolton for top foreign policy positions has been a source of speculation on the Trump administration’s future policies related to the Court. During the Bush administration, Bolton spearheaded the strategy of active opposition to the Court. Under Bolton's influence, Bush deactivated the Rome Statute and passed the ASPA. In addition to banning the allocation of US funds to the ICC, the ASPA authorized the use of "all means necessary and appropriate" if the ICC takes an American citizen into custody. Given that the administration seriously entertained the idea of Bolton, such a firm opponent to the ICC, as the Secretary of State or Deputy Secretary of State, it may not be likely that the Trump administration may well not maintain their predecessors' policy of positive engagement.

Another cause of concern has been Trump’s criticism of US engagement in international organizations, notably the UN. Trump has shown hostility towards institutions like the UN, and the administration has sought to leave, or cut funds, to international organizations even where the US holds key leadership positions. Therefore, the Trump administration may not only end the Obama relationship with the ICC, but also could become hostile towards the Court.

The State Department website may be another hint about the Trump administration’s attitudes. The site states that the current U.S. policy” is reflected through the May 2010 National Security Strategy:
From Nuremberg to Yugoslavia to Liberia, the United States has seen that the end of impunity and the promotion of justice are not just moral imperatives; they are stabilizing forces in international affairs. The United States is thus working to strengthen national justice systems and is maintaining our support for ad hoc international tribunals and hybrid courts. Those who intentionally target innocent civilians must be held accountable, and we will continue to support institutions and prosecutions that advance this important interest. Although the United States is not at present a party to the Rome Statute of the International Criminal Court, and will always protect U.S. personnel, we are engaging with State Parties to the Rome Statute on issues of concern and are supporting the I.C.C.’s prosecution of those cases that advance U.S. interests and values, consistent with the requirements of U.S. law.”
The fact that, after the administration has made changes to the site—including the removal of pages and documents related to refugees and climate change, this page remains is notable. It may merely reflect an overwhelmed and unorganized State Department. Perhaps the Trump administration has not paid any attention to it. Given that the National Security Strategy is state department policy until it is replaced, it could only mean that issuing a new policy on the ICC is not, currently, a top goal of the Trump administration. Ideally, the page's presence is an indicator that the Trump administration will not differ significantly from the Obama administration in its policy on the ICC.

We know that Steve Bannon, Trump’s chief strategist and former editor of Breitbart, has turned some of Breitbart’s views into Trump administration policy. Therefore, Breitbart is relevant in predicting the Trump administration’s future attitudes towards the ICC. Inaccuracies about the Court  are common on the site. An article from January 25, 2015, stated the the ICC was located in Switzerland. This could imply an attitude of ignorance towards the Court. In fact, under Bannon, Breitbart was not as aggressive towards the ICC as one might suspect. Breitbart articles have not been particularly supportive of the ICC, but they, also, did not engage in attacks against the ICC based on sovereignty or US vulnerability. It did not discuss US ratification of the Rome Statute. In an article about Charles Taylor’s conviction, Breitbart acknowledged that the victims were happy with the conviction. Nonetheless, the radical right-wing site has also written off international criminal justice as useless for procuring peace. An article on South African withdrawal from the Court stated,  “no one could seriously believe that Adolf Hitler would have cancelled the Holocaust out of fear of being prosecuted by some court.” Breitbart has also questioned ICC jurisdiction over Israelis in the Palestine situation, and it referred to potential future charges in the ICC against Netanyahu as “trumped-up charges.” Therefore, the Trump administration might argue the the ICC does not have jurisdiction over the Palestine situation. Elsewhere, Breitbart does not strongly condemn the Court’s existence, nor does it analyze US engagement with the Court. This may translate to a Trump administration that ignores the Court, except when the Court impacts Israel.

Under the Obama Administration, the US assisted the Court with investigations and participated as an observer at Assembly of States Parties (ASP) sessions. US Special Forces have also assisted with efforts to capture high-level LRA officials with ICC arrest warrants. Admittedly, the loss of this support would be a setback for the ICC. ICC prosecutor Fatou Bensouda remarked that withdrawal of positive US engagement with the Court would hamper the ICC. However, it will not stunt the ICC if the US ceases to cooperate. Many supporters of international justice misunderstand the Court and the political situation surrounding it. Consequently, they overstate the effect that a lack of US support would have on the ICC. It would not damage the Court.

Breitbart assumes that the Court is standing on shaky ground, citing lack of support, but, the ICC enjoys widespread support. Since Gambia, South Africa and Burundi announced their intention to withdraw, new political developments in Gambia and South Africa have occurred and it is possible that neither Gambia nor South Africa will follow through with withdrawal. Moreover, the majority of African state parties gave their support to the Court at last fall's ASP session. A threat of massive ICC withdrawal is not as potent as many believe.

If the situations of Afghanistan and Palestine move beyond preliminary examination at the ICC, Trump may respond with hostility. The reaction might be particularly violent if the Court issued arrest warrants for US nationals for crimes committed in Afghanistan. Currently, the Afghanistan situation is in preliminary examination at the ICC. The Court has jurisdiction to prosecute American nationals who committed Rome Statute crimes in Afghanistan, because the Court has jurisdiction over all crimes committed on the territory of a state party.  Afghanistan is a state party to the Rome Statute, and the Court has had jurisdiction over Rome Statute crimes in Afghanistan since May 1, 2003. If the Court finds evidence of such crimes, then the Court should follow through with its responsibility to fight impunity regardless of political pressures. The Trump administration might respond violently to an investigation or arrest warrant for an American, but it might be incorrect to assume this would inevitably harm the Court. An investigation or an arrest warrant would likely produce increased support from the international community and civil society, and, a defensive reaction from the international community would likely emerge in response to a violent response from the Trump administration. 

However, there is hope for future US engagement with the ICC. The Court enjoys widespread support from the American people; 72% of Americans support the ICC according to a poll by the Chicago Council on Global Affairs. Furthermore, criticism of the ICC has been fueled by misunderstandings. The more that is understood about the Court, the more support that Americans will have for it.

The Trump administration has not released any official policy statements on the ICC; so, it could interact with the Court in several different ways. The administration might be a reason for concern about the future of the US-ICC relationship. It could respond with hostility to investigations into the situations of Afghanistan and Palestine. Or, it might maintain a neutral or positive attitude towards the Court. The US does find the atrocities that the Court tries to be appalling, and the Court is an effective institution to deal with some of them. However, the administration may nonetheless even ignore the Court. It might not accept any of its predecessor’s attitudes towards the ICC.

Even if the US withdraws from its previous policy of positive engagement, the Court will not fall apart. However, the broad support of 124 countries will ensure that the Court will continue to work well. Therefore, the ICC will exist and work to end impunity far into the future.

Written by: Taylor Ackerman

Monday, February 06, 2017

Dwindling Momentum for Collective Withdrawal

UN Photo/Eskinder Debebe

Support for the ICC at the 15th session of the Assembly of States Parties (ASP), the tactical move by the ASP President Sidiki Kaba, and internal changes in South Africa and Gambia stalled momentum for widespread African withdrawal from the International Criminal Court (ICC). Government delegations stressed the need to listen to and to address the concerns of African state parties at the ASP, but they also committed to continue the Court’s disregard for impunity. Concerns about withdrawal spiked last fall when Burundi, South Africa and Gambia formally notified the United Nations of their intentions to withdraw from the ICC. Previously, other African states indicated that they, too, might withdraw from the Court. In Kenya, politicians introduced a bill to leave the ICC, and, in January 2016, the African Union (AU) authorized the development of a collective ICC withdrawal strategy. Now, only Burundi is on the path to continue its process of withdrawal from the ICC.

The process of withdrawal in South Africa confronts serious challenges. The opposition party is challenging in court the constitutionality of plans to withdraw from the ICC. Parliament did not receive a bill about withdrawal before the government sent notification of withdrawal to the UN. Yet, South African withdrawal from international treaties requires parliamentary approval. Although plans to withdraw in South Africa continue, there is strong disagreement in the South African Parliament. Additionally, at the last ASP session, the South African Attorney General stated a desire to avoid withdrawal from the Court.

Recent regime change in the Gambia also suggests a reversal in position. In December 2016, the new Gambian President, President Adama Barrow, said Gambia would not withdraw from the Court. In the interview with Deutsche Welle Africa, he said:
There is no need for us to leave the ICC. The ICC is advocating for good governance. That is our principle. We are already part of the ICC. We will not leave. That is not possible.” 

Many African states are not eager to leave the Court. Since October 2016, no additional states have announced their withdrawal from the ICC. Instead, at the last ASP session, a majority of African States stated their intentions to remain members of the ICC.  Furthermore, there is little indication that Kenya, one of the loudest advocates for departure from the Court, plans to withdraw from the Rome Statute soon. The Kenyan bill to exit the ICC recently expired, and Kenyan Civil Society called for African states to remain in the ICC to improve it at the last ASP meeting. Furthermore, within the AU, there is a clear division about the issue. Many members of the AU are opposed to leaving the ICC, as shown by the debates within the AU. Moreover, the January 2017 AU Summit had signifcantly less anti-ICC rhetoric than 2016.

There has been discussion about a collective AU withdrawal strategy; however, legally, the AU cannot collectively withdraw. Each state is sovereign. So, each state would have to make its own decision to leave the Court and separately notify the UN of its withdrawal from the Rome Statute. This would impede any plans for widespread withdrawal.

If Burundi does not reverse its withdrawal, or other states follow suit in withdrawing, the Court will still have some sources of jurisdiction in the former member. A state’s withdrawal from the Court will not enter into force until one year after it notifies the UN Secretary-General. Therefore, if crimes against humanity, war crimes or genocide were committed between when the ICC began its jurisdiction over that state up until a year after notification of the UN, they would remain under the Court’s jurisdiction. Additionally, if states withdraw from the ICC, the UN Security Council can refer the state to the Court, or a state can accept the Court’s jurisdiction on an ad hoc basis and refer itself.

The impetus for African withdrawal was the ICC arrest warrant for Omar al-Bashir, the president of Sudan. South Africa announced its intention to leave the Court after receiving criticism for its failure to arrest Bashir when he was in South Africa. South Africa argued that Bashir’s head of state immunity in South Africa justified its failure to comply with Rome Statute commitments.

Additionally, the arrest warrant for Bashir made state leaders realize their vulnerability to accountability for crimes against humanity, war crimes, and genocide. The investigation into current President of Kenya, Kenyatta, a sitting leader, only increased this tension. The calls for deferment of ICC cases against state leaders reflect the growing discomfort with accountability. The only alternative would be impunity for state leaders, which would destroy the Court’s reason for existence.

African states proposing withdrawal have argued that the Court is an imperialistic and western institution. The former Gambian Information Minister even referred to the ICC as an International Caucasian Court,” when justifying Gambian withdrawal. However, states, civil society and individuals from the African continent were key players in bringing the Court into existence. Senegal was the first state to ratify the Rome Statute. Currently, key players at the ICC are nationals of African states. Prosecutor Fatou Bensouda is Gambian, Assembly of States Party President Sidiki Kaba is Senegalese, and five ICC judges are from the African continent. Furthermore, there is support for Africa within its civil society. Thus, the African state parties to the Rome Statute have distinguished roles in leading the rule of law movement.

Proponents for African withdrawal from the ICC also cite the disproportionate amount of cases against African nationals at the ICC. They argue that the ICC is unfairly targeting Africa and that the Court should prosecute crimes occurring on other continents.  Most supporters agree that the ICC should expand its prosecutions beyond Africa, and the ICC has increased its efforts to do so. Yet, it is not true that the ICC is unfairly targeting Africa. The prosecutor did not initiate most of the situations under investigation by the ICC. Uganda, the Democratic Republic of Congo, the Central African Republic, and Mali referred their situations to the Court. The Security Council has also referred several situations to the ICC, including Libya and Sudan.  In fact, the majority of situations under preliminary examination at the ICC are not African states. However, reducing ICC efforts to procure accountability for genocide, crimes against humanity or war crimes in Africa would damage the struggle against immunity in the continent and the rule of law movement. The response to such criticism should not call for enabling impunity for serious crimes in Africa but for increasing accountability elsewhere.

These events indicate that there may be a dwindling momentum for widespread African withdrawal. The ASP session indicated that the arguments for withdrawal are self-serving and weak.

Written by Taylor A. Ackerman

Friday, December 02, 2016

The International Criminal Court and Africa: Time to move beyond

The nations of South Africa, Burundi and Gambia have all signaled their intention to withdraw from the Rome Statute, the court’s founding document, and as of recently, Russia has announced it intention to deactivate its signature, too. As you know, the court only has jurisdiction over the countries that have ratified the statute.

In the case of Russia, the rejection of the court is mostly symbolic, a snub after having been castigated by the UN over conduct in Crimea. However, the withdrawals have highlighted a deep rift in the African membership of the court and may have far-reaching consequences, including, many fear, a triggering of a mass exodus of those countries from the Court. African leaders have, on numerous occasions, articulated concern about bias against their continent. UN and ICC officials have over and over asserted that there is no such African bias, and that the court can and will prosecute offenders from any nation within its jurisdiction.

Critics, though, point to the fact that in its first ten years, the ICC’s investigations and prosecutions have all centered on conflicts in Africa, including the issuance of arrest warrants for two African heads of state. The truth of the matter is, there has been a pattern of investigating cases based out of Africa, a glance at the statistics on ICC indictments will show as much, and it's understandable that African political leaders would feel frustrated with what they perceive as a hypocritical system claiming to dole out justice. As we in the advocacy world know, there is more than enough injustice and atrocity to go around: plenty in Europe, the Americas and Asia as well in the African continent. So why have African countries seen the brunt of all international enforcement mechanisms? The explanation is multifaceted.

First, we must address a question of logistics. African countries account for 34 of the 124 ICC signatories; that’s nearly a third of the Court’s membership. If the ICC can only prosecute member states, then it makes sense that African nations should see a high volume of investigations. However, even if you account for that proportion, we shouldn’t be seeing the kind of statistics that we’re seeing now, with nearly all prosecutions being carried out against African countries. What are the missing pieces?

We must remember that many, many guilty countries have not even signed, let alone ratified, the Rome Statute, and are therefore out of the ICC’s jurisdiction. Nations who know they might be charged with war crimes, crimes against humanity, genocide or crimes of aggression have tended to stay far away from ratification: for example, our own United States. Why make ourselves vulnerable to those prosecutions unnecessarily? Although the ICC is keenly aware of atrocities carried out by the likes of America, Israel, China, North Korea and Saudi Arabia, for example, there is little the Court can do to hold participants accountable.

From this fact follows the logic that ICC and UN representatives have posited over and over again: the path to justice will entail a wider acceptance of the Rome Statute and ICC standards, not a narrowing of membership. Those countries that decry the African exodus from the Court must act to expand the reach of the Court and ensure that other nations and other continents are held accountable as well. It’s not that we should back off of African cases, but that we should be more fiercely pursuing other continents’ as well. Furthermore, it is very important to note that the vast majority of the African cases were brought to the ICC by referral from African countries, or by the Security Council. Even as the withdrawals of African nations began, referrals from other African countries (such as Mali) continued, requesting the Court to investigate cases on their own soil. To some, this invalidates the claims of bias; how can the ICC be accused of prejudice when the African cases before it have been referred to it by the countries concerned or by the UN? If anything, other regions of the world should be following Africa’s example, and pushing for the indictment of brutal leaders in their own territories rather than protecting them.

However, it would be a grave oversight and disingenuous to paper over the real genesis of the bias debate. We have to ask ourselves: even if, for example, the United States, Russia and Israel did ratify the Rome Statute, do we truly believe that investigations and prosecutions would be conducted and indicted in a fashion identical to those of African nations? Would there be the same kind of universal political support for the charges, a celebration of the riddance of corruption and violence? Arrest warrants? We are decades away from the kind of political will it would take to extradite US heads of State. Why are we so eager to see it done in other parts of the world?

Although the ICC aims to operate without bias, even international justice advocates are not exempt from ingrained prejudices from vestiges of colonialism. These prejudices, whether conscious or unconscious, have made prosecuting African nations an easy political maneuver, and their effects are manifest everywhere. Geopolitical superpowers like the United States, for example, occupy critical positions of power on the UN Security Council. (This privilege, of course, means that the Rome Statute’s safeguard to allow prosecution of non-members by way of a Security Council referral simply does not apply to the United States, or to Russia or to China.) Even if the Security Council’s veto loophole were somehow abolished, it’s difficult to believe that countries with the sort of political clout that the US carries would be treated equally in the eyes of the court. Cases from powerful nations are absolutely as critical, but the political hurdles to investigation and prosecution are exponentially higher. But where did that privilege come from?

It is critical to remember that our current geopolitical hierarchy was born out of a long history of colonialism and imperialism. “Developed” or “first world” nations that now occupy top positions in international or multilateral organizations, those that set the standards for international justice, did not simply land there. Nations that are referred to as “developing” or “third world” were not created lesser: they were looted and occupied, their people subjugated by foreign powers for centuries leading up to our modern political climate.

Our rhetoric regarding global order betrays our implicit bias towards and admiration of countries that have historically strong-armed their way into political power through the use of the type of atrocity and violence we now seek to condemn. Centuries later, even as we create new alliances, pledge aid and sign treaties, the specters of our past inform our current relations. The backbone of West Europe is made up of countries with more than their fair share of dark history. In many cases, African countries such as the Democratic Republic of the Congo (which has seen seven individuals tried by the ICC to date) were torn apart by the absolute brutality of European colonialism barely 100 years ago: that this nation is battling political instability is little wonder. Where infrastructure is weak, dictatorship, political violence and atrocity always find a home. Conversely, the nations who have been geopolitical powers since the 18th century are those whose pockets were lined often by the pillaging of the African continent. It is ignorant and reductionist to overlook this aspect of foreign relations, even as it applies to the formation of and the conduction of the ICC. It is certainly understandable, given this history, that African nations would be angered by a caseload that seems to convey that atrocities are committed only on their continent and by their nationals.

So what can we do? First and foremost, and as always, AMICC advocates for US ratification of the Rome Statute. Although the ICC has, in the past, been willing to take African cases exclusively, we must not find fault with the strong position the Court has taken in Africa, but rather the weak position it has taken in other regions. That is to say, rather than relaxing prosecutions in African countries, the Court needs to intensify its commitment to upholding standards of justice globally, and work to expand its membership and work around loopholes in its jurisdiction. The ICC has made a start on this by beginning preliminary examinations into UK actions in Iraq and American actions in Afghanistan, though the proceedings will take quite some time to develop. There must be a hard push towards prosecuting wealthy and white countries if we are to counter the claims of imperialism, colonialism and bias in the Court. If the ICC is to successfully resist populism, imperialism and neocolonialism, it must demonstrate absolutely to other international organizations and to the world that it will effectively and diligently pursue cases from major countries.

The United States and Europe cannot decry the African withdrawals from the Court while simultaneously expecting immunity for atrocities committed by their own nationals. There is no room in an international justice organization for neocolonialism. The ICC cannot allow itself or its caseload and standards of justice to be influenced by world powers, all of whom arrived at their position through subjugation of other nations. Moreover, the Court cannot give a free pass to those powerful countries on their crimes while we continuing to take cases from those countries who still have less political capital and clout.

Written by Kalila K. Jaeger

Tuesday, November 29, 2016

Will Americans be charged at the International Criminal Court for war crimes in Afghanistan?

The Prosecutor of the International Criminal Court is currently conducting a preliminary examination of crimes in Afghanistan which may well lead to a formal investigation against US nationals. What does this mean and what are the probabilities that US citizens are actually brought to the ICC? This is the analysis of AMICC.


The preliminary examination in Afghanistan started in 2007 and for nine years the Office of the Prosecutor has been conducting a preliminary examination of possible war crimes and crimes against humanity. If the Court decides to proceed, the next step would be to open a formal investigation in Afghanistan that includes interviewing witnesses, taking testimony and gathering forensic evidence, after which a trial might be started.

Afghanistan has been a member of the Court since May 1st 2003, which means that the court has jurisdiction over crimes committed on its territory or by its nationals since that date. The US signed the founding document of the ICC, the Rome Statute, under President Clinton, but George W. Bush deactivated the signature, citing fears that Americans would be unfairly prosecuted for political reasons. But even though the US is not a member of the Court, its nationals might be prosecuted for crimes committed on Afghan territory.

The alleged crimes have been committed during the operation of the US-led coalition against the Taliban and in support of the Afghan military. The Office of the Prosecutor has determined that there is a reasonable basis to believe that all sides of the conflict are responsible for crimes against humanity and war crimes. The investigations will most probably focus on the crimes committed by the Taliban and by the Afghan military. However, the Prosecutor has affirmed that the US-led coalition is also under investigation for alleged war crimes, and more specifically torture and ill-treatment in secret detention facilities operated by the CIA between 2003 and 2004.

The US-led international coalition has also been under investigations for a great number of civilian casualties but the Prosecutor has concluded that the strikes did not target civilians deliberately and therefore could not be classified as war crimes.

ICC’s Prosecutor Fatou Bensouda has concluded that at least 88 detainees have been subjected to torture, cruel treatment, rape and/or outrages upon personal dignity while being in US custody. In addition, the Prosecutor is investigating cases of related CIA interrogations of Afghan nationals in detention facilities in Poland, Romania and Lithuania. These crimes are not isolated cases but were part of the policy of the so-called “enhanced interrogation techniques” approved at senior levels of the US government during the George W. Bush administration. These were mostly put to an end after 2004 but might have continued sporadically up until 2014.

Will US citizens be brought to the ICC?

The International Criminal Court functions as a court of last resort and respects the principle of complementarity. This means that it would not be able to prosecute alleged crimes of US nationals if these are already prosecuted by US courts in good faith. The US has claimed that it has carried out more than 70 trials and close to 200 investigations that have resulted in non-judicial punishment. US State Department spokeswoman Elizabeth Trudeau has praised the US “robust national system of investigation and accountability” and has said that ICC investigations would be unwarranted and inappropriate. However, Bensouda has found that most of the cases that have been investigated so far have been about Iraq and there have been no American prosecutions of cases from Afghanistan that might fall under the jurisdiction of the ICC. Bensouda has also expressed concerns that the review conducted by the Department of Justice of alleged CIA abuses had a limited scope because it investigated only “unauthorized” interrogation techniques. Consequently. only two criminal investigations were conducted and none of them resulted in an indictment because of lack of evidence. Bensouda will have to demonstrate that the small number of investigations and the absence of indictments shows that the US has not fulfilled the requirements of complementarity.

It is unclear when the Prosecutor will announce her decision on whether to start a formal investigation –international law expert David Bosco has claimed that according to “multiple sources,” the announcement will probably come after the elections but before the end of the year.

But even if an investigation is initiated, US citizens may not be brought before the Court because everything depends on the evidence available from interviews with witnesses, testimonials and forensic materials that will be gathered during the investigation. The process is prone to take a long time and will be delayed by the internal mechanisms of the Court that require an approval by a three-judge panel. According to David Bosco, another obstacle to investigations would be the possible reticence of the Afghan government to provide access and support to ICC experts given that its officials will be investigated for war crimes.

And if and when a trial is opened, the defendants will need to be delivered physically to the Court because the ICC does not conduct trials in absentia. This might become another obstacle to prosecution because the US would not easily surrender a citizen to the Court. If that US citizen were to be delivered to the ICC by another state, the US might use the Bilateral Immunity Agreements that the Bush administration has signed with over 100 countries. These BIAs aim to ensure that if there is a request to transfer a US citizen to the Court, this would not be done without the permission of the US. The Rome Statute does not authorize such agreements which violate states’ obligations to the Court, but the US might resort to them if its national is located in another state.

For the Court to be able to complete its functions effectively, it requires the cooperation and good will of states. In the recent case against the Deputy Prime Minister of Kenya Uhuru Kenyatta, the Prosecutor has been forced to withdraw the charges and suspend the case because of the lack of and tampering with evidence, witness intimidation and lack of cooperation by the Kenyan government. Taking into account the reluctance of the US to recognize the legitimacy of the investigations of its citizens by the ICC, it is not impossible that the case ends in a deadlock if there is insufficient political will to cooperate with the Court.

The Rome Statute establishes that the Court should prosecute the individuals who bear the biggest responsibility for a given crime, which would mean that former senior officials might face the risk of prosecution. The Court will almost certainly find it difficult to do this for officials such as George W. Bush. Dick Chaney and directors of the CIA because the US will not make them available to the court for trial.

US officials insist on the principle of state sovereignty maintain that the ICC should not exercise jurisdiction over nationals of nonmember states and would not recognize the legitimacy of the Court if it does so. The Court does respect state sovereignty through the principle of complementarity, but it is fundamentally designed to prosecute the gravest violations of human rights and to ensure justice when national systems fail to deliver it.

The US has been a strong supporter of bringing several cases to the ICC, including Libya and South Sudan which were referred to the Court by the UN Security Council. However, the US cannot expect other countries to comply with the Court, to prosecute senior officials or expect them not to withdraw from the Court if it does not live up to these expectations itself. The US needs to prove that its commitment to international justice is not hypocritical and applies also to its own crimes. And the only way to do this and to ensure that the ICC does not prosecute US citizens is to conduct genuine and effective investigations and trials itself.

It is difficult to predict the reaction of the US government under the administration of Donald Trump if a formal investigation is initiated. he fact that Trump has said he is in favor of harsh interrogation techniques such as waterboarding and may re-authorize their use speaks to how controversial this case might become. The US relationship with the Court that became increasingly friendly during the Obama administration might worsen, but AMICC is determined to maintain and extend American public support for the ICC.

Written by Iva Gumnishka

Thursday, November 17, 2016

Bringing Terrorists to the International Criminal Court

Terrorism: a global issue

According to the Global Terrorism Database, from 2000 to 2015 there were more than 87,000 terrorist attacks around the globe. The number of attacks has been on the rise since 2013, especially in the Middle East and North Africa. With terror strikes ocurring on a daily basis - even though some of them receive considerably more media coverage than others, - there is an increased global interest in bringing perpetrators to court. But when national justice systems are too weak or simply lack the political will to deal with terrorist acts, one of the few remaining solutions is the International Criminal Court.

Civil society and human rights lawyers are asking: Why then isn’t the ICC prosecuting terrorist groups like ISIS? This post will suggest an answer to this question and analyze the possibility of bringing terrorists to the Court in the future.

Is terrorism under the jurisdiction of the ICC?

Courts such as the International Court of Justice, the European Court of Human Rights and the Inter-American Court of Human Rights all prosecute states. The ICC is different because it only prosecutes individuals. This makes it very appropriate for cases that involve non-state actors like terrorist groups. The people who ICC prosecutes are those who bear the biggest responsibility for a given crime. The ICC operates in this top-down fashion in order to hold accountable not just the foot soldiers, but those who truly authored and directed the atrocities.

However, the Rome Statute, which is the founding document of the ICC, does not refer to ‘terrorism’ explicitly. This is why scholars such as Aviv Cohen have proposed amending the Rome Statute to include the “Crime of Terrorism.”

But the problem with the word ‘terrorism’ is that there is no universal agreement on how to define it in international law and different treaties interpret it differently. According to a study at Leiden University, most definitions of terrorism agree that the main components are violence, political goals, causing fear and terror, and using organized actions or tactics. This definition can be refined to include the injury of civilians, coercion, arbitrariness, and so on.

Yet finding a definition of ‘terrorism’ that satisfies everyone is still a challenge because the word has many ideological implications and a strong symbolic effect of condemnation. It is said that “one person’s terrorist is another person’s freedom fighter,” and a perfect example for this double standard is Nelson Mandela, a Nobel Peace Prize winner and president of South Africa who was until 2008 on the U.S. terrorism watch list.

This disagreement on the definition was the reason terrorism was not included in the Rome Statute in the first place. Cohen’s idea is that the definition from the Convention for the Suppression of the Financing of Terrorism is already widely accepted in states’ legislation and practice and should be used for the inclusion of terrorism under a new article in the Rome Statute.

However, is it necessary for a person to be explicitly identified as a terrorist in order to be brought to the Court? Aren’t all of the crimes that terrorists commit already under the Court’s jurisdiction? The ICC can prosecute crimes against humanity (art.7), such as murder, torture, rape, enslavement, forcible transfer of population, etc. when they are “committed as part of a widespread or systematic attack directed against any civilian population.”

The Court also has applicable jurisdiction over war crimes (art.8), in the cases of international and non-international armed conflict, such as torture, taking of hostages, extrajudicial executions, sexual violence, intentional attacks on civilian population and religious or educational buildings or monuments. The Court can also prosecute genocide (art.6), in the sense of any act that intends to destroy a national, ethnical, racial or religious group. The last category of crimes in the Rome Statute is the crime of aggression, but it would not be applicable to terrorism because it only concerns acts of states.

Proponents of the inclusion of the “crime of terrorism” argue that what characterizes and distinguishes it is its intention to spread fear and achieve a political aim. However, should these subjective criteria be taken into account by the ICC when it decides whether an attack on civilians or torture should be prosecuted? Should the same crime receive different treatment depending on whether it was committed by a terrorist group for a political purpose or by another perpetrator?

An amendment to the Rome Statute would be problematic because as it is designed now, it dismisses the relativity of what terrorism can mean. It is difficult to use the same standard for state terrorism, armed groups terrorist attacks, acts by lone wolfs, and terrorism in the context of foreign occupation. Interpretation of these acts depends almost entirely on subjective opinion and ideology. The ICC as an international court is compelled to look at the objective facts of the crimes and not to express any value judgements.

It is important to recognize that some acts that we determine as terrorist may fall outside of the Court’s jurisdiction. Acts that would be considered war crimes in the context of an armed conflict (be it international or non-international) may be impossible to prosecute if they are committed during peace time. On the other hand, the acts which are committed during peace time may be classified as crimes against humanity only under the condition that they are “part of a widespread or systematic attack directed against any civilian population.” It may be difficult to establish that some acts of. terrorism meet this standard.

There is also the Statute’s high requirement of seriousness for the crimes it can try. This “gravity threshold,” could mean that one-time attacks that have not had many victims may not enter the Court’s jurisdiction, even if they have produced much fear and terror in the population. For example, the attacks at Charlie Hebdo in Paris in 2015 which killed 12 people may be regarded as terrorist but the ICC would not prosecute them even if it received a referral from France. The Court was created to prosecute only the most serious crimes and it would be a waste of resources for it to prosecute shootings around the world, as morally reprehensible as they might be.

Bringing terrorists to the ICC

It is important to note that the ICC has actually already prosecuted or issued arrest warrants for individuals defined as terrorists and has been able to do so by applying the crimes included in the Rome Statute without the need for a special article on terrorism. For example, the most recent sentence of the Court was on the case of Ahmad Al Faqi Al Mahdi, who belongs to the Al-Qaeda affiliate Ansar Dine in Mali. Al Mahdi was accused of intentionally directing attacks against religious and historic monuments in Timbuktu, Mali in 2012. This was classified as a war crime under article 8 of the Rome Statute, given the context of a “non-international armed conflict.”

Another infamous example is the case against Lord’s Resistance Army (LRA) in Uganda, another group that has been listed as terrorist by the African Union but that has been excluded from the U.S. State Department's list since 2001. In 2015, Dominic Ongwen, one of the top members of the LRA, confessed to the Court and now awaits his trial on over 70 charges of crimes against humanity and war crimes. Other top members, such as Joseph Kony and Vincent Otti, remain at large. This example speaks to the fact that the terrorism label could be an obstacle to prosecution if the Court relies only on whether a group can be legally defined as terrorist.

The precedent case against Al Mahdi for the destruction of the religious monuments in Mali which are UNESCO World Heritage sites has given the international community hopes that other similar crimes might be brought to the Court – the destruction of cultural heritage in the ancient Palmyra in Syria by ISIS in 2015 or the annihilation of 1,500-year-old Buddha sculptures in Afghanistan by the Taliban in 2001. However, the case of Palmyra would be more difficult to prosecute since Syria is not a member of the Court and the ICC can only prosecute crimes committed on the territory of a state party or by nationals of a state party. And while Afghanistan is a state party to the Rome Statute, the crime happened before the entry into force of the statute for that country, so it cannot be prosecuted. In general, international law professor Alex Whiting has argued that a second case about cultural heritage is unlikely at the Court because of its limited resources.

So is there nothing that the ICC can do about atrocities committed by ISIS in Syria and Iraq? Especially given that the destruction of cultural heritage is the least ISIS can be tried for: the UN Human Rights Commission has released reports on the atrocities committed by ISIS since 2014 and the list includes crimes against humanity, war crimes and genocide of religious minorities such as the Yazidis. Human Rights advocates such as Amal Clooney have been appealing for a long time to bring ISIS to the ICC for these crimes.

As we have already said, neither Syria nor Iraq are members of the Court. One option they have is ratifying the Rome Statute and accepting its jurisdiction retroactively, as for example Palestine, which was accepted as a member in December 2014 and deposited a declaration to allow jurisdiction back to June 2014 so as to cover the 2014 Gaza war. Another option is moving to accept the jurisdiction of the Court without becoming a state party, as Ukraine did after the Maidan protests and the events in Crimea and Eastern Ukraine. Neither of these options is likely for Syria or Iraq because of the lack of political will.

Another option, albeit an improbable tone, is to bring to Court any foreign fighters in ISIS who are nationals of state parties to the Court, assuming that they hold high enough positions to be held responsible for the crimes. Currently, the ICC is actually carrying out an investigation of this nature on the war crimes committed by UK soldiers in Iraq, since the UK is a member of the Court.

The only other option for entering the Court’s jurisdiction is a referral by the UN Security Council, which has happened in the cases of Libya and Darfur. This can be done only if the gross human rights violations are a threat to peace, and in the case of Syria this is certainly true. However, as journalist Harry Farley has pointed out, the Security Council is unlikely to do that because the ICC would not examine only the acts of ISIS but the whole geographic “situation” in Syria and Iraq. This would involve possible crimes by governmental, non-governmental and international forces, including the US, France and Russia - all of whom have veto powers in the Security Council. For the same reason, it is possible that Syria and Iraq face considerable international pressure against ratifying the Rome Statute.

In conclusion, terrorist acts do fit within the jurisdiction of the International Criminal Court when they involve widespread attacks or are committed within the context of an armed conflict. In those cases there would be no need for an amendment to the Rome Statute in order to prosecute because it already covers all the crimes that terrorist groups may commit, such as murder, torture, rape, taking of hostages, attacking civilian buildings, and so on. The only cases that the ICC may not be able to prosecute are one-time attacks that may not pass the gravity threshold even if they produce significant fear in the population.

The ICC has already tried chiefs and members of terrorist groups but there are other, political barriers to the prosecution of groups like ISIS. These involve the fact that Syria and Iraq are not members of the Court, that they are currently lacking the political will to join the Court and that they may face intense external pressure if they attempt to. Given the international deadlock on the war in Syria, there is little probability for investigations in the near future. Does that mean it is futile to advocate for bringing ISIS or other terrorists to the ICC? Most certainly not, since theoretically there are ways in which this can be done and mass international awareness, evidence-gathering and support for investigations might be able to put enough pressure on politicians to take the necessary measures.

Written by Iva Gumnishka


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