On Thursday 28 May 2020, Prof. Scharf welcomed the participants of the ICC Moot Court Competition (ICCMCC) 2020 to an online Ask the Author live event. For an hour, he discussed the case itself, its background and answered questions about international criminal law. This year’s ICCMCC teams sent in questions ahead of the event, while other questions arose during the live event. For context, the questions and their answers need to be read in conjunction with the 2020 ICCMCC Case: Prosecutor v. Cersei Bannister of Valaria
Who is Prof. Michael Scharf?
Michael Scharf has been Dean of the Law School at Case Western University since 2013. He is also the Joseph C. Hostetler—BakerHostetler Professor of Law and serves as Managing Director of the Public International Law and Policy Group (PILPG), a Nobel Peace Prize-nominated NGO. He has led USAID-funded transitional justice projects in Uganda, Cote d’Ivoire, Libya, and Turkey (for Syria), and maritime piracy projects in Kenya, Mauritius, and The Seychelles. Previously, he served in the Office of the Legal Adviser of the U.S. Department of State, where he held the positions of Attorney-Adviser for Law Enforcement and Intelligence, Attorney-Adviser for United Nations Affairs, and delegate to the United Nations Human Rights Commission. During this time at the US Department of State, he was involved in drafting the Statute of the International Criminal Tribunal for the former Yugoslavia. Here, he helped to draft the Statute of the former Yugoslavia Tribunal and helped launch it. As an academic, Prof. Scharf is the author of over 100 scholarly articles and 19 books, three of which have won national book of the year honors
During the live event, Prof. Scharf disclosed that his hobby of playing guitar landed him a spot in a faculty-student rock band.
Why is Game of Thrones an inspiration for the ICC Moot Court Competition cases?
A decade ago, when I was asked to write my first ICC Moot Court Competition Problem, the Game of Thrones book series was becoming very popular but they had not yet made the HBO series. And, as you know, the ICCMCC cases require quite a lot of fictional names and places, and there was no better starting point than A Song of Ice and Fire to jump-start my imagination. However, you will note that we significantly change the spellings of the character and location names in the ICC Moot Court Problems, so no need to worry about copyright issues!
With the Game of Thrones TV show concluded, and the writing of the books on hold, do you plan on continuing to draw inspiration from this series?
Why not? The world described in A Song of Ice and Fire book series is limitless. But so is the pool of fantasy books to choose from. There are plenty of other great stories to choose from, for at least the next 100 editions of the Competition. So, you will just have to stay involved to find out what is next!
What real-life situations served as inspiration for this year’s case?
- The situation of the Rohingya people. The PILPG prepared the report titled ‘Documenting Atrocity Crimes Committed Against the Rohingya in Myanmar’s Rakhine State’ (‘PILPG Report’). For this report, the PILPG conducted a ‘human rights documentation investigation mission’ which focused on ‘systematically collecting first-hand accounts from a random and representative sample of refugees living in camps in Bangladesh’ and conducted 1,024 interviews. The purpose of the investigation mission ‘was to provide an accurate accounting of the patterns of abuse and atrocity crimes perpetrated against the Rohingya in Myanmar’s Rakhine State and to help inform the policy decisions related to accountability in Myanmar’. Simply put, the PILPG aimed at answering the question: do the acts committed against the Rohingya people amount to genocide? This has always been a controversial question throughout the years, with both academics and practitioners from all corners of the world weighing in. You can see how this fit perfectly in this year’s case as one of the main issues. Following its investigative mission, PILPG published a second report which thoroughly analyzes the entirety of the findings. This Report ultimately concludes that there are reasonable grounds to believe that crimes against humanity, genocide, and war crimes have been committed against the Rohingya in Myanmar’s northern Rakhine State and that, therefore, a criminal investigation is warranted. The report was then shared with the ICC and it has been cited several times in the Prosecutor’s Brief and it ended up being cited in the November Decision by the ICC to open an investigation into the genocide and crimes against humanity against the Rohingya.
- A debate I was involved in during the negotiations of the Rome Statute regarding the ability of the ICC to prosecute nationals of non-State Parties, when crimes are committed on a State Party’s territory. On top of that, the Charles Taylor case brought to the table the issue of whether acts committed in a non-State Party can be prosecuted by an international court or tribunal when their impact can be seen in a State-Party. In this case, Charles Taylor, sitting President of Liberia, was charged before the Special Court of Sierra Leone for the role he played during the course of Sierra Leone’s civil war.
- The Facebook controversy which led us to the highly debatable question of the roles and responsibilities of social media companies in preventing atrocities and in atrocity accountability. And this is how Statusphere was created.
Incitement is an inchoate crime. It does not have to be completed, you just have to intend to facilitate genocide and have the direct words that call to action. Is genocidal effect necessary to show proof of a causal link?
In all of the cases where someone has been prosecuted for incitement, there was actually a genocidal effect. The Courts have often said that for determining incitement, there has to be a causal link: you must show that the words were intended and did have some kind of effect. Now, it doesn’t have to be a completed genocide, it can be just a start to it. However, it does seem that for proof-issues, not for the actual legal issues, you would need to show some kind of effect. What was the effect here? There were 200 people killed in a burning church and 400 killed in the election massacre, so 600 in total. If that was it, it would probably not have been substantial enough, considering there were several millions of Starek people. However, there were several other instances, not included in the charges, that do speak to a pattern of violence against the Stareks, such as 1,500 subsequent deaths and 100,000 displaced people.
Where do you draw the line between hate speech and incitement to genocide in this case?
This question comes up frequently in situations of incitement to genocide. People don’t just say explicitly that they want to kill a substantial part of a population. If they said it like that, it would be easy to prosecute them. As it often happens in real life situations, and in our case, code words were used. In addition, it is not only about understanding the code words, but also the message transmitted through the code words. There has to be a call to wipe out a substantial part of an ethnic group.
It requires a carefully prepared balance act to walk the line between hate speech and incitement to genocide. It was not a coincidence that Cersei did not remove the posts around the time of the election: before an election you want to have a public debate. She is wrapping herself around the liberties of free speech.
For example, when the Genocide Convention was created, many countries, including the US, were concerned about the incitement to genocide clause and its distinction from hate speech. It took the US 38 years to ratify the Convention, as national debates tried to find the balance between the First Amendment (Freedom of speech clause) and the crime of incitement to genocide. So, historically there has always been a bit of concern about this.
Can the act of posting messages on a forum amount to incitement to genocide if the social media platform used was private?
This was one of the key problems in this case because incitement to genocide has to be direct and public. In the past, cases of media individuals have been people who have used radio or newspapers, and in those cases, it really was a very public forum. When it is a private social media platform, there are only people who actively joined that communicate on it. The question then would be: how open was that platform? Because joining was free, anyone could join and there were about 4,000 people in the groups. It wasn’t that private, but it also wasn’t open to the general population like a radio or newspaper. So, that was there to make you think about the requirements of direct and public incitement.
What is your opinion on the exclusion of incitement to genocide from the core crimes?
Incitement to me is so dangerous and risky that it should be prosecutable as a major offence. Historically it has been viewed as an inchoate crime, so completion is not necessary. As you can imagine, during the negotiations of the Rome Statute, factors such as the global nature of the ICC and the rights of the accused came into play. Because of the way the Rome Statute is worded, there is currently debate about whether incitement is still considered an inchoate offense or is now only a mode of liability for a completed offense.
Art. 12 of the Rome Statute is about the jurisdiction over crimes conducted in the territory of a State Party. Would the cyberspace connection between the actions of Cersei Bannister and the effects occurring in Solantis be a sufficient basis for jurisdiction of the Court, considering the potential transboundary character of the crimes committed by Bannister, in light of the Court’s recent decision in the Bangladesh/Myanmar Case?
The crimes of persecution and deportation of a population from Myanmar into Bangladesh stand at the core of the Bangladesh/Myanmar situation. If you try to deport someone and they are unable to cross the border, there is no deportation: the crime of deportation requires two States. Thus, Bangladesh was able to trigger the territorial jurisdiction of the ICC as the crime was completed on its territory. Unlike the real-life situation, the crime in our case does not require a cross-border element. No real-life case or situation has yet faced this question.
The relationship between cyberspace and international jurisdiction is still unclear, as cyberspace is such a recent development. What is your opinion on this?
In this case, Cersei operates her platform in a non-State Party: the entire operation, as well as her residence, are in Valaria. However, her platform enables people to cross into Solantis via the Internet and cyberspace. Thus, her actions are not actually confined to the territory of Valaria. The question “Where exactly is cyberspace?” has arisen in many national jurisdictions and courts. In LICRA v. Yahoo!, for example, France sought to enjoin Yahoo, a United States company, from allowing access to websites and auction platforms for Nazi memorabilia in violation of French domestic laws. A French judge determined that French jurisdiction may be applied “based on the harm done in France” rather than focusing on where the content was uploaded, where there was Nazi memorabilia up for auction online.
Considering that there is no standard international definition of cyberspace, the case is meant to test your creativity to research and refer to the best arguments possible in order to support your case.
 The Public International Law and Policy Group, Documenting Atrocity Crimes Committed Against the Rohingya in Myanmar’s Rakhine State (Factual Findings, 2018).
 This standard is applied by the International Criminal Court (“ICC”) when deciding whether to open an investigation into alleged crimes within its jurisdiction.
 The Public International Law and Policy Group, Documenting Atrocity Crimes Committed Against the Rohingya in Myanmar’s Rakhine State (Factual Findings and Legal Analysis, 2018).