ICC Jurisdiction Over Gaddafi

Last week I wrote that the International Criminal Court (“ICC”) is unlikely to try Syria’s President Assad for crimes against humanity because the Court would probably lack jurisdiction. The Rome Statute—the ICC’s founding treaty—empowers the Court to exercise jurisdiction only with respect to crimes (1) committed within the territory of a state-party, (2) committed by a national of a state-party, (3) referred to the Court for prosecution by the UN Security Council, or (4) committed within a non-state-party’s territory or by one of its nationals, if referred to the Court by that non-state-party. In Assad’s case, jurisdiction is unlikely because Syria is not a state-party to the Rome Statute, and the UN Security Council is unlikely to refer the matter to the ICC because Russia and China would object. While it is possible that a post-Assad regime could refer Assad’s crimes to the Court for prosecution, Syrian domestic politics would probably push strongly in favor of domestic prosecution.

The question of ICC jurisdiction is also relevant to ongoing events in Libya. With Muammar Gaddafi’s regime in the midst of collapse and the Colonel himself in hiding, we should consider what role, if any, the ICC will play once Gaddafi is found. Here, the prospect of ICC prosecution seems significantly higher. Like Syria, Libya is not a state-party to the Rome Statute. But in February 2011, the Security Council passed a resolution referring Gaddafi’s use of military force against regime opponents in early 2011 to the ICC. The resolution ordered “Libyan authorities” to “cooperate fully with and provide any necessary assistance to the Court,” and “urge[d] all [other] States” to cooperate fully as well. Several months later, the Court issued arrest warrants against Gaddafi and two other Libyan officials for offenses including crimes against humanity.

Now that Gaddafi has lost control of the government and is in hiding, it will be interesting to see whether the ICC is able to make use of its established jurisdiction. With the Libyan government obliged to adhere to the Security Council’s resolution and all other states urged to do likewise, Gaddafi may have few places to hide.

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The Constitutional Right of Recall

The largest newspaper in Wisconsin, the Milwaukee Journal-Sentinel, continues to take the editorial position that the public’s right to recall elected officials should only be exercised in cases of misfeasance in office or of criminal conduct.  The editorial page actively disparages the use of the recall process in cases where voters simply disagree with the policy choices of their elected representatives.  Recent examples of this editorial position can be seen here, and in the decision to excerpt a similar editorial published by the newspaper USA Today here.  On this past Sunday, Steven Walters commented in the Journal-Sentinel on possible amendments to the Wisconsin Constitution intended to modify the existing recall provisions and to bring them into line with the more limited scope advocated by these editorials.

I have commented on this issue before.   The editorial position of the Milwaukee Journal-Sentinel is misguided.  In particular, in editorializing against the exercise of the recall power, the Journal-Sentinel fails to account for both the specific text of the Wisconsin Constitution and the understanding of the recall power among the founding generation of our country.  The key to understanding the proper scope of the recall power is the basic conception of “the sovereignty of the people.”

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Judge Must Explain New Sentencing Decision After Revocation of Supervised Release

As I described here and here, the Seventh Circuit has an interesting line of cases that attempt to establish some minimal standards for the way that district judges explain their sentences.  Add to that line the court’s decision last week in United States v. Robertson (No. 10-3543).  I think that Robertson is the court’s first decision to apply the explanation requirement to a resentencing that occurred after revocation of a defendant’s supervised release.

That the explanation requirement would apply here is perhaps not a given, since, as the court observed, the district judge has even more discretion in this setting than in an original sentencing.  (4)  The court ruled, however, that the district judge must indeed “say something that enables the appellate court to infer that he considered both [the recommendations of the sentencing guidelines and the statutory sentencing factors].”  (4)

In Robertson, the guidelines recommended a term of 12-18 months following the defendant’s revocation for growing marijuana, but the district judge instead imposed a sentence of 34 months.  Here is the “explanation” for the sentence that the Seventh Circuit found inadequate:

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