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Activation of the International Criminal Court’s Jurisdiction Over the Crime of Aggression & Challenges Ahead

by Jennifer Trahan

[Jennifer Trahan is a Clinical Professor at the NYU Center for Global Affairs.]

July 17, International Justice Day, not only marked the 20th anniversary of the Rome Statute of the International Criminal Court (“ICC”), but also activation of the ICC’s fourth crime, the crime of aggression. These milestones were celebrated by an event at the UN entitled “20th anniversary of the Rome Statute: the need for universality and the International Criminal Court’s jurisdiction over the crime of aggression,” as well as events in The Hague and Rome.

At the UN event, many States Parties expressed support for the activation of the crime of aggression, with reservations expressed by the UK and France. Non-States Parties—who might also have expressed reservations—did not appear to attend the event. (There were also many calls for working towards universal ratification of the Rome Statute, and other support for the work of the Court, as well as calls for assessment of “lessons learned.”)

States Parties generally hailed activation of the ICC crime of aggression’s jurisdiction as significant for: (1) completing the crimes originally envisioned under the Rome Statute; (2) furthering the legacy of the International Military Tribunal at Nuremberg which prosecuted “crimes against peace” and deemed the crime of aggression as “the Supreme crime”; (3) essentially reinforcing the core norm against aggressive use of force found in article 2(4) of the UN Charter; and (4) supporting international peace and security.

Benjamin Ferencz, who prosecuted the Einsatzgruppen case at Nuremberg, was in attendance at the July 17 UN event and for the screening of a film on July 16 about his life and legacy, entitled “Prosecuting Evil.” Ferencz closed the July 17 UN event by noting what had been accomplished but berating states that they are doing far too little to combat aggressive war, which poses a global threat to mankind.

Some States Parties welcomed that the Security Council will now be able to refer four crimes to the ICC, including the crime of aggression, while others noted that the permanent members of the Security Council far too often utilize their veto power even in the face of atrocity crimes and that “veto restraint” should also be exercised when the issue of referral to the ICC arises.

How much deterrence will there be?

Given the celebratory mood of the UN event, States Parties did not mentioned the significant limitations on the ICC’s crime of aggression jurisdiction that exist, at least under the text of the activating resolution from last December’s Assembly of States Parties meeting. These limitations pertain to situations initiated by State Party referral or the Prosecutor’s own initiation (under Rome Statute article 15bis). Because of these restrictions, if they are effective (see my article questioning their effectiveness), there is far less jurisdiction that the ICC has over the crime of aggression than it has over the crimes of genocide, crimes against humanity, and war crimes. This then would seem to diminish any potential for deterrence as well, at least under article 15bis. (These jurisdictional limitations did not all occur at the last ASP; for example, non-States Parties were completely excluded from ICC crime of aggression jurisdiction already at the 2010 Kampala Review Conference under article 15bis, para. 5.)

As to the deterrence potential created by the ability of the Security Council to make referrals including the crime of aggression, this could be potentially significant. No state will know for certain that it won’t be referred, except of course the permanent members of the Security Council and their close allies, who can be “protected” from referral by the veto power of the Permanent Members. (I put “protected” in quotes, because it is also possible that the people of the state at issue might in fact want their leader tried, for instance, for launching an irresponsible and/or illegal war; thus, it is only “protection” from a certain vantage point.) The fact that referral (and deferral) will not function apolitically before the Council was an important reason why many States Parties pressed hard over the years for another way for crime of aggression cases to be able to start, other than through Security Council referral under article 15ter. This now exists, under article 15bis, but with seemingly significant jurisdictional limitations.

Thus, activation is a step forward for the rule of law, but an imperfect step forward, due to all the jurisdictional carve-outs. One way to minimize the impact of such carve-outs is for more States Parties to ratify the crime of aggression amendment, thereby expanding jurisdiction under article 15bis; another way is for non-States Parties to newly ratify the Rome Statute as amended; yet another way is for States Parties (or even non-States Parties) to implement crime of aggression legislation into their domestic criminal codes, where it need not have any jurisdictional carve-outs and could potentially create additional deterrence.

While it is notoriously difficult to prove that deterrence works, an additionally factor regarding crime of aggression is that it is a “leadership crime.” That is, the crime only encompasses “a person in a position effectively to exercise control over or to direct the political or military action of a State” per article 8bis, para 1. Thus, should such leaders take note of the ICC’s crime of aggression jurisdiction activating? Indeed, they should.

Future challenges for the ICC to prepare to address this crime

Activation of the crime also poses challenges for the ICC to prove itself a responsible institution, capable of addressing the crime of aggression in an impartial, fair, and responsible manner.

To begin with, the ASP should start to consider knowledge of jus ad bellum law when evaluating candidates to serve as ICC judges, as jus ad bellum law is a different area of law than the law related to genocide, crimes against humanity, and war crimes.

The OTP will also have to consider what new policy guidelines need to be developed regarding the 4th crime. For instance, “gravity” as to the crime of aggression is not necessarily the same as “gravity” vis-à-vis the other crimes, and may well require a new policy paper. (For example, de minimis instances of aggression are intended to be excluded from the crime, namely, under article 8bis para. 1, acts of aggression that are not “manifest” UN Charter violations by their “character, gravity, and scale”—but gravity here refers to gravity of the act of aggression (e.g., that an aberrant missile strike caused by a map error should be excluded). This is a new type of gravity evaluation.) Now that the Security Council can make referrals encompassing the crime of aggression, it is time for the ICC to grapple with its 4th crime.

A significant new tool for Security Council in advancing international peace and security

Under the UN Charter, the first purpose and principle of the UN listed is to “maintain international peace and security” (article 1.1), and the Security Council has “primary responsibility” for that task (article 24.1). Despite widespread disenchantment with the Security Council’s performance in this respect, activation of the ICC’s crime of aggression jurisdiction provides it a significant new tool. It could use this in at least two ways: (1) by utilizing its referral powers (and minimizing its deferral powers) with the goal of both increasing deterrence and ensuring appropriate situations may be prosecuted; and (2) in an early warning capacity, to try to stave off potential acts of aggression before they launch, by indicating it is watching a state’s actions.

             The Security Council’s role in referrals and deferrals

Will the Security Council make referrals covering the crime of aggression? It no doubt depends on what acts of aggression are committed in the future and by whom. It will also depend whether the members of the Council (particularly the permanent members who wield veto power) support making such referrals, which is unknown. If permanent members categorically state opposition to such referrals (which could be the case, or could be the case for at least some permanent members) that would unfortunately start to unwind the significantly large deterrence potential they might otherwise be able to exercise. Conversely, a heavy-hand at deferring situations involving the crime of aggression (as the Council will also be able to exercise Rome Statute article 16 deferral powers) could also start to unwind any such deterrence potential.

           The Security Council’s potential role as to early warning

The Security Council could also play something of an early warning function regarding the crime of aggression. As to the other crimes, the Prosecutor has sometimes indicated she is watching a situation, in an effort to try to deter crimes (e.g., letting it be known that she is watching elections, in an effort to deter post-election violence). As to the crime of aggression, however, there will be fewer situations over which the ICC Prosecutor will have jurisdiction, and she will be less able to play this role. It is here that the Security Council could play such a deterrent function. Imagine a troop buildup is detected on the border of one country, suggesting forces could be poised to enter, or launch force into, a neighboring state; the Security Council could indicate that it is closely watching such a situation, sending a reminder to the state in question of the Council’s referral powers. This would seem to provide significant potential for deterrence. (The more States Parties ratify the crime of aggression amendment, there more jurisdiction will exist under article 15bis, which would increase the numbers of situations where the Prosecutor could play such a role.

Conclusion

Activation of the ICC’s 4th crime is very significant. Activation is no doubt an advance for international criminal law, but the challenge will be to ensure that it is also an advance for international peace and security. Tasks ahead include: (1) for the ICC to demonstrate itself capable of impartially, fairly. and responsibly adjudicating this crime; (2) for the Security Council to refer situations involving aggression to the ICC (and not exercise its deferral powers), so that the Security Council’s ability to refer may create deterrence, potentially worldwide, and to ensure that appropriate situations are referred; and (3) for States Parties that have not yet ratified the crime of aggression amendment to do so, and thereby increase ICC jurisdiction under article 15bis, which, in turn, could also increase deterrence. The author stresses the importance of deterrence because activation of the 4th crime is not designed to generate ICC cases; in a perfect world, there will be no ICC crime of aggression cases to prosecute because deterrence has worked.

Thus, while the decades of drafting work and negotiations are now finished, there is much remaining work to be accomplished regarding the ICC’s 4th crime. The path forward—resuming the long-dormant legacy of the Nuremberg Tribunal—is just beginning.

A Fascinating But Meritless OTP Gambit in Bemba

by Kevin Jon Heller

On Monday, the OTP filed a motion in the Bemba Witness Tampering Case entitled “Detailed Notice of Additional Sentencing Submissions.” The OTP argues that, in determining the appropriate sentence for Bemba, Kilolo, and Mangenda, Trial Chamber VII should take into account the fact that the witness tampering by Bemba and his co-defendants led the Appeals Chamber to wrongly acquit Bemba in the Main Case. Here are the paragraphs that summarise the OTP’s argument:

3. To obtain Mr Bemba’s acquittal, the convicted persons intentionally and irreversibly poisoned the evidentiary record of the Main Case with the testimony of false, scripted and tainted witnesses—whose evidence was never expunged and remains in the trial record to this day. The offences of which they were convicted were extremely grave and seriously damaged the integrity of the proceedings before the Court, undermining public trust and confidence in its processes, regardless of, and independently from, their impact on the outcome of the Bemba Main Case.

4. However, that an impact on the outcome of a case is not required as a matter of law to harm the administration of justice does not mean there was no impact in this instance. There was. As elaborated below, Mr Bemba’s acquittal was, at least to a discernible extent, resulting from, and predicated on, evidence affected by a pervasive campaign of witness tampering, which eventually but not unforeseeably, infiltrated the Bemba AJ. Here, the toxic effects of the corrupt and tainted evidence adduced by Messrs Bemba, Kilolo and Mangenda at trial affected not only the immediate proceedings in which it was tendered, but inevitably, subsequent proceedings. In short, the convicted persons’ concerted and unlawful efforts may have ultimately succeeded, not at trial as originally intended, but at the appellate stage.

5. Although the convicted persons could not have known that the Appeals Chamber would depart from the Court’s established appellate standard of review for factual errors or that the Appeals Chamber’s understanding of the scope of the charges would play a substantial role on quashing Mr Bemba’s conviction, this is of no moment. They intended and foresaw Mr Bemba’s acquittal by means of their illicit actions. Thus, in so far as the Bemba AJ disturbed the Bemba TJ to any extent on the basis of evidence adduced through, or the acts and conduct of, corrupted or tainted Defence witnesses, Mr Bemba’s acquittal comprises “the damage caused” or an “aggravating circumstance[ ]” within the contemplation of rule 145.

This is a fascinating argument. And in theory it might have merit: if the Appeals Chamber did indeed acquit Bemba because of false testimony procured by the defendants’ witness tampering, I don’t see anything in Rule 144 of the Rules of Procedure and Evidence that would prohibit the Trial Chamber from considering the wrongful acquittal when determining Bemba’s sentence. As the OTP points out (para. 5), Rule 145(1)(c) permits the Trial Chamber to take into account “the extent of the damage caused, in particular the harm caused to the victims and their families,” while Rule 145(2)(b)(ii) provides that “abuse of power or official capacity” is an aggravating factor and specifies that the list of aggravating factors is non-exclusive. A wrongful acquittal procured through witness tampering is incredibly damaging to victims, and witness tampering by a defendant would seem to be either an abuse of power or similar enough to such abuse that sentence enhancement would be warranted.

The key qualifier, however, is “in theory.” The problem with the OTP’s argument — and the reason I fully expect Trial Chamber VII to dismiss it, no matter what it thinks of Bemba’s acquittal in the Main Case — is that there is simply no evidence in the Appeals Judgment that “Mr Bemba’s acquittal was, at least to a discernible extent, resulting from, and predicated on, evidence affected by a pervasive campaign of witness tampering.”

Before turning to that specific issue, it’s worth responding to the OTP’s claim that it is “of no moment” the Appeals Chamber supposedly applied the wrong standard of review to the Trial Chamber’s factual findings. I disagree. The OTP’s position — clearly expressed in Fatou Bensouda’s controversial June 13 statement — is that the Appeals Chamber would have upheld Bemba’s conviction if it had applied its traditional deference to the Trial Chamber’s findings of fact. That position implies, as a matter of simple logic, that the cause of the Bemba’s acquittal was the standard of review, not the witness tampering. The OTP is essentially arguing, then, that Bemba should receive a longer sentence because the Appeals Chamber decided to unjustifiably (according to the OTP) modify the applicable standard of review. That strikes me as neither fair nor consistent with Rule 145.

That said, it is possible to construct a coherent version of the OTP’s argument concerning the standard of review. The argument would be this:

[1] Although the Trial Chamber heard the corrupted witness testimony, its decision to convict Bemba means that it properly disregarded it.

[2] Had the Appeals Chamber deferred to the Trial Chamber’s findings of fact, it would not have been influenced by the corrupted witness testimony and would have upheld Bemba’s conviction.

[3] Because the Appeals Chamber reviewed the evidence presented to the Trial Chamber de novo instead of deferring to the Trial Chamber’s factual findings, the Appeals Chamber was influenced by the corrupted witness testimony and acquitted Bemba because of it.

The problem with the OTP’s argument is the one noted above: namely, that the motion completely fails to substantiate its central claim that the Appeals Chamber wrongfully acquitted Bemba because it relied on the corrupted witness testimony. The OTP insists (para. 7) that “Mr Bemba’s acquittal rests, in part, on the Majority’s limited evaluation of an evidentiary record deliberately and criminally tainted and scripted by the convicted persons.” There is little question that the evidentiary record was tainted. But the motion is exceptionally thin — to put it generously — in terms of explaining exactly how that record led, even in part, to Bemba’s acquittal.

Let’s walk through the OTP’s argument. The OTP begins by claiming (para. 7) that, with regard to the seven errors the Appeals Chamber identified in the Trial Chamber’s reasoning, “[a]t least three of these errors follow the narrative and are related to the scripted evidence of Corrupted Witnesses and to unreliable evidence of other tainted witnesses, or their acts and conduct.” In particular, the OTP identifies the following errors as tainted: (1) the failure “to pay sufficient attention to the fact that the MLC troops were operating in a foreign country with the attendant difficulties on Mr Bemba’s ability, as a remote commander, to take necessary and reasonable measures”; (2) the failure “to address Mr Bemba’s statement that he wrote to the CAR Prime Minister requesting an international commission of inquiry to be set up, or the testimony of D-48 which attested to the existence and content of the letter”; and (3) erring “in attributing any limitations it found in the mandate, execution and/or results of the measures to Mr Bemba.”

The OTP then devotes the bulk of its motion to explaining how the testimony of six witnesses supposedly influenced the Appeals Chamber’s deliberations:

D-54, a Corrupted Witness, who testified concerning the commission of inquiry Bemba supposedly established to investigate allegations of MLC crimes in CAR.

D-15, a Corrupted Witness, who testified about the effects of Bemba’s remote location on his effective control over MLC forces.

D-13, a Corrupted Witness, who also testified about Bemba’s lack of effective control.

D-25, a Corrupted Witness, who testified that Bemba lacked operational control over MLC forces.

D-19, not a Corrupted Witness, who testified about Bemba’s inability to discipline MLC soldiers;

D-48, not a Corrupted Witness, who testified about the Zongo Commission and a variety of aspects of Bemba’s effective control.

The OTP concludes (para. 44) by summarising why it believes the Appeals Chamber acquitted Bemba because of the corrupted witness testimony:

As demonstrated above, the factual narrative testified to by several Main Case tainted and Corrupted Witnesses permeated the Majority’s analysis:

  • consistent with D-54’s, D-15’s, D-13’s and D-25’s illicitly coached testimony, the Majority found that Mr Bemba, as a remote commander, had limited effective control;
  • relying on D-48’s tainted testimony and consistent with D-19’s unreliable and D-54’s coached narratives, the Majority found that the Trial Chamber had not properly assessed the measures that Mr Bemba took, or said he took, to address the crimes.

There are a number of serious problems with the OTP’s argument. To begin with, as the summary above reflects, the OTP acknowledges that the Appeals Chamber explicitly relied on only one of the six witnesses: D-48. But here’s the thing: as the OTP itself admits (para. 38), Trial Chamber VII did not find D-48 to be a Corrupted Witness. Nor did Trial Chamber III find in the Main Case that D-48’s testimony was corrupt: as the OTP also admits (para. 40), it found only that the relevant part of his testimony was unreliable. The OTP is simply assuming that D-48’s testimony was corrupted because he gave testimony similar to testimony given by witnesses whom Trial Chamber VII did deem to be corrupt.

The difference is critical. If the Appeals Chamber had explicitly relied on the testimony of a witness whom Trial Chamber VII had deemed a Corrupted Witness, it might — might! — be possible to say that Bemba’s witness tampering led to the Appeals Chamber’s decision to acquit him. But it would be fundamentally unfair to increase Bemba’s sentence because the Appeals Chamber explicitly relied on the testimony of a witness whom Trial Chamber did not deem corrupt. And that is true even if the OTP is really, really, really convinced that D-48 should be considered a Corrupt Witness. If that is its position, the OTP should have included D-48 in the Witness Tampering case and proved that he was corrupt. It didn’t — which mean that the Appeals Chamber’s decision to rely on D-48’s testimony, even if unwise in light of the questions about his reliability, can hardly be held against Bemba himself.

Similar thoughts apply to whatever impact D-19’s testimony had on the Appeals Chamber’s decision to acquit Bemba, given that Trial Chamber VII did not find him to be a Corrupted Witness. So that leaves the testimony of D-54, D-15, D-13, and D-25. All four are Corrupted Witnesses, but none of them — again, by the OTP’s own admission — are actually cited by the Appeals Chamber in its judgment. The OTP is simply inferring that the Appeals Chamber relied on the Corrupted Witnesses from the fact that their testimony addressed some of the factors the Appeals Chamber cited in defence of the acquittal.

That is problematic, because there are other possible explanations for the Appeals Chamber’s decision. I have not read the entire Trial Judgment, but it is difficult to believe that the defence did not call other non-corrupted witnesses who provided testimony similar to the Corrupted Witnesses — concerning Bemba’s efforts to hold the MLC accountable, his lack of effective control over MLC forces, etc. Indeed, the most powerful evidence against the idea that the Appeals Chamber based its judgment on the Corrupted Witnesses is provided by the OTP itself: namely, the testimony of D-48 and D-19. The OTP goes to great lengths to show how their testimony as non-corrupted witnesses helped establish the same exculpatory narrative promoted by the Corrupted Witnesses. With regard to D-48, for example, the OTP notes (para. 33) that “his evidence in the Main Case largely followed the same narrative as that of the Corrupted Witnesses.” In fact, the OTP specifically argues that the Appeals Chamber relied heavily on D-48’s testimony (para. 43):

In turn, D-48’s uncorroborated and unreliable evidence played an important role in the Majority’s decision to overturn part of Mr Bemba’s convictions: the Majority concluded that Trial Chamber III had erred on the basis of its lack of reference to portions of D-48’s testimony pertaining to the purported letter in the Judgment.

For whatever reason, the OTP does not seem to recognise that this comment fatally undermines its own argument. It is impossible to argue that Bemba’s witness tampering led the Appeals Chamber to acquit him if, by the OTP’s own admission, non-corrupted witnesses provided the same testimony as Corrupted Witnesses and their testimony “played an important role” in the acquittal. Again: it is irrelevant that the OTP believes non-corrupted witnesses such as D-48 were actually corrupted. There is no judicial finding to that effect, so the OTP’s belief is nothing more than supposition and cannot be taken into account at sentencing.

Finally, I would be remiss not to mention how much contempt the OTP’s motion shows for the three judges who voted to acquit Bemba. The Appeals Chamber released the judgment of acquittal in the Main Case on 8 June 2018. Trial Chamber VII convicted Bemba et al. of witness tampering on 19 October 2016 and the Appeals Chamber unanimously upheld the witness-tampering charges on 8 March 2018. By the time the Appeals Chamber acquitted Bemba in the Main Case, therefore, the judges in the Majority must have been aware that both the Trial Chamber and the (differently-constituted) Appeals Chamber had found that 14 defence witnesses were corrupted, including the four the OTP now cites in its motion. Indeed, one of the judges who voted to acquit Bemba — Judge Morrison — was actually part of the Appeals Chamber that upheld the witness-tampering convictions. The OTP is thus implicitly arguing either (1) that the Appeals Chamber in the Main Case consciously relied on D-54, D-15, D-13, and D-25 despite knowing their testimony was corrupted — and despite Judge Morrison having actually found that their testimony was corrupted; or (2) were unconsciously affected by D-54, D-15, D-13, and D-25 despite knowing that their testimony was corrupted. The first possibility is tantamount to accusing the Majority of being deliberately unethical, and the second possibility essentially accuses the Majority of being so incompetent or biased that they were unable to disregard testimony they knew (and one had even found) to be corrupt.

I am confident that Trial Chamber VII, despite having convicted Bemba et al. of witness tampering, will see through the OTP’s meritless argument that Bemba’s sentence should be enhanced because his witness tampering led the Appeals Chamber to acquit. Given that there is no evidence in the Appeals Judgment to that effect, a sentencing enhancement would be fundamentally unfair to Bemba.

ICC Labor Woes Part II: What’s Two Million Euros Between Friends?

by Kevin Jon Heller

A few readers have contacted me privately to note that my previous post significantly underestimated the number of ILO judgments against the ICC. I said at least three. In fact, the number is much, much higher — the result of a series of recent judgments issued by the Administrative Tribunal since the beginning of 2017. Each of the judgments involves the now-former Registrar’s misbegotten attempt to restructure the Registry, the ReVision Project, which led to numerous Court employees being terminated.

Here is how the Tribunal describes what occurred in Case No. 3907, F v. ICC, which led to the most significant damage award — €268,000:

In 2013 the Assembly of States Parties to the Rome Statute of the International Criminal Court authorized the Registrar of the Court to reorganise the Registry. This reorganisation became known as the ReVision Project. In August 2014 the Registrar issued Information Circular ICC/INF/2014/011 entitled “Principles and Procedures Applicable to Decisions Arising from the ReVision Project” (Principles and Procedures). On 13 June 2015 Information Circular ICC/INF/2014/011 Rev.1 was issued, which revised the Principles and Procedures; the revised version was in force at the material time.

By a letter dated 17 June 2015 the complainant was notified by the Registrar that her post was being abolished and that her appointment would terminate as of 15 October 2015. It was explained that it had been decided to change the structure of the Human Resources Section (HRS) and as a result her position was no longer required; what was needed instead was the position of HR Officer – Entitlements and Payroll. She was informed inter alia of the options that were open to her, including the acceptance of an enhanced agreed separation package or the opportunity to apply as an internal candidate (for newly created positions arising as a direct result of the ReVision Project) with the priority consideration provided for in the Principles and Procedures. In the event that she sat for an interview for any position as a priority candidate, she would lose the option to accept the enhanced agreed separation package…

On 5 October the complainant submitted a statement of appeal in which she challenged the decisions to abolish her position and terminate her appointment. By a letter of 13 October 2015 the Registrar informed the complainant that she had not been successful in securing a position as a result of the recruitment exercises she had participated in. She was further notified that her appointment would terminate on 22 October

Ms. F went to the ICC’s internal Appeal Board, which upheld her appeal. The Registrar, however, disagreed with the Board and terminated Ms. F anyway. Ms. F then filed a complaint with the ILO.

I don’t want to get into all the details of the ICC’s employment practices. Suffice it to say that, given the amount of material and moral damages she was awarded, the Tribunal was not impressed by how the Registrar treated Ms. F. The same is true in all the other cases, which involve quite similar facts. Indeed, some of the language the Tribunal used to describe the Registrar’s actions is striking. In Case No. 3903, for example, the Tribunal said the following:

The way in which the decision to terminate the complainant’s appointment was, in the letter, merged with the decision to abolish his position, the misleading content of the letter coupled with the vague and confusing language of the notification of the termination of the appointment was a breach of the ICC’s duty to act in good faith.

Since the beginning of 2017, the Tribunal has upheld eight complaints against the ICC regarding the ReVision Project. Here are the damages it has awarded:

 

  1. 3903: €61,000
  2. 3904: €61,000
  3. 3905: €24,000
  4. 3906: €24,000
  5. 3907: €268,000
  6. 3908: €222,000
  7. 4004: €184,000
  8. 4007: €11,000

 

To date, the former Registrar’s actions have cost the ICC at least €855,000. And an informed source says there are approximately 15 more ReVision complaints pending, which the Court can obviously expect to lose. So the Registrar’s actions — almost always in defiance of the ICC’s own Appeals Board — could end up costing the Court more than €2,000,000. At a time when the ICC is already facing a significant budget crunch, that’s horrific.

The ICC elected a new Registrar on 28 March 2018. We can only hope his personnel policies are an improvement on his predecessor’s.

ILO Tribunal Finds Against ICC in the Libya Detention Debacle

by Kevin Jon Heller

This is a major development, one that I hope does not get lost in the welter of commentary on the Bemba acquittal. If you recall, in June 2012 the Libyan government detained four ICC officials who were in Zintan on official Court business: Melinda Taylor from the Office of Public Counsel for the Defence (OPCD), who had been provisionally appointed Saif Gaddafi’s defence counsel; two officials from the Registry; and a translator, Helene Assaf. Libya charged all four with various criminal offences and ultimately detained them for 27 days.

About a year after being released, Assaf filed an internal complaint with the ICC. The ILO Administrative Tribunal summarises her allegations in its judgment as follows (p. 3):

On 3 June 2013 the complainant submitted to the ICC a “request for compensation and/or other damages” in which, amongst other relief, she claimed moral and punitive damages in connection with her detention in Libya on the basis that the ICC had acted with malice, reckless disregard for her safety and gross negligence. In support of her request, she referred not only to the inadequate preparation of the mission, but also to the conditions of her detention and to events after her release, including the denial of her requests for assistance, restrictions on travel due to the pending criminal charges and the ICC’s failure to protect her reputation by issuing a public statement denying media reports that she was a “spy”.

Assaf’s complaint followed a long and tortuous path within the ICC. After a lengthy investigation, the Internal Oversight Mechanism (IOM) found in October 2012 that the Court had largely been at fault for what had happened to its officials. In December 2013, however, the (now former) Registrar refused to provide Assaf any compensation after she rejected his initial offer to settle. In his view, the IOM’s conclusion was incorrect and Assaf had contributed to Libya’s decision to detain her and her colleagues. Here is the Tribunal’s summary of his explanation (pp. 3-4):

He considered that the mission planning had complied with the applicable legal framework and that liability for the injuries suffered by the complainant lay primarily with the Libyan authorities. He found that some of the complainant’s actions during the mission went far beyond her role as an interpreter and might constitute unsatisfactory conduct, but he decided not to initiate disciplinary proceedings against her. Nevertheless, in his view, these “shortcomings” had raised suspicions with the Libyan authorities and had thus contributed to her arrest and to that of her colleagues.

Assaf’s complaint eventually reached the ICC’s Appeal Board, which unanimously upheld her appeal. The Board agreed with the IOM’s report, rejected the Registrar’s assertion that Assaf had acted inappropriately, and ordered the Registrar to try again to reach a fair settlement with Assaf. Those negotiations failed — almost certainly because the Registrar specifically told Assaf that he disagreed with the Board and continued to believe she had acted inappropriately.

At that point, having exhausted her internal remedies, Assaf filed a complaint with the ILO seeking €800,000 in moral damages, €400,000 in exemplary damages, and €60,000 in costs and fees. In response, the ICC admitted that it had breached its duty of care regarding certain aspects of the Libya mission but claimed Assaf was entitled to only €20-25,000 in damages. The two detained Registrar officials also asked to intervene in the proceedings, and the Tribunal granted the request of one of them — Mr. P-L.

Two days ago, the Tribunal released its decision. Assaf and P-L won — handily (p. 10):

16. The Tribunal recognizes that the complainant’s ordeal in Libya was a direct result of the ICC’s failure to properly prepare for the mission, specifically, its failure to: (a) establish a diplomatic basis by ensuring that a Memorandum of Understanding was established and/or Notes Verbales were exchanged with the Libyan authorities prior to the mission’s initiation; (b) establish a mission plan which identified the objectives of the mission, the locations to visit and persons to be met, as well as naming the Head of Mission and clarifying the specific responsibilities of the team members; and (c) ensure that all security protocols were followed and advice was implemented to guarantee the safety and security of the staff members on mission. For these failures, and taking into consideration the damage suffered by the complainant and Mr P. L. during their period of confinement, the Tribunal awards moral damages in the amount of 140,000 euros to each of them. This amount addresses the damage to their psychological well-being as well as to their public and private relations – due to the stress, and difficulties in traveling, due to the ongoing charges against them in Libya and the defamation of their characters which would have been mitigated if the ICC had issued a statement asserting their innocence immediately instead of waiting until the Libyan accusations had been widely publicized.

17. The complainant was also subjected to continuous mistreatment by the Registrar in the period following her return from Libya. This behaviour amounts to abuse of power, bad faith and retaliation and warrants an additional award of moral damages which the Tribunal sets in the amount of 60,000 euros. The Tribunal finds that this is not a case for exemplary damages, particularly in view of the considerable efforts made by the ICC to secure the release of the complainant and her colleagues when they were detained in Libya.

Assaf deserves her victory. (As does P-L.) I blogged extensively, and with mounting horror, about the ICC’s unconscionable failure to stand up to Libya regarding its treatment of Taylor, Assaf, and the others. You can find a list of my nearly 30 posts here. So I am delighted that Assaf won — and am particularly pleased by the Tribunal’s insistence that the Court should have immediately and loudly proclaimed the four officials’ innocence. I argued at the time that the Court would never have taken such a laissez-faire approach to their detention if Melinda Taylor had a been a prosecutor or investigator instead of member of the OPCD, and I continue to believe that.

For those of you who are keeping score, this is at least the third time the ILO has found against the ICC — Moreno-Ocampo had two judgments go against him personally. It is very unfortunate that this latest fiasco will cost the Court a total of €360,000 it cannot afford. But if the ILO judgment leads the Court to be more protective of its officials — all of its officials, including those involved with the defence — it will be worth it in the long run.

Admissibility Challenge in The Prosecutor v. Saif Al-Islam Gaddafi: Take Two

by Gaiane Nuridzhanian

[Gaiane Nuridzhanian is a PhD candidate at University College London, Faculty of Laws.]

Recent reports on release of Saif al-Islam Gaddafi and his plan to run in Libya’s presidential elections have stirred some discussion about the future of the case The Prosecutor v. Saif Al-Islam Gaddafi. A new development in the case came this June. The defence for Gaddafi lodged an admissibility challenge on the basis of Article 17(1)(c) and the ne bis in idem principle enshrined in Article 20(3) of the Rome Statute (RS). The defence submits that Gaddafi has already been tried for the same conduct before a court in Libya; that the proceedings in the other court were genuine in the sense that they were not for the purpose of shielding the person from criminal responsibility, that they did not lack in independence or impartiality and did not involve egregious due process violations so as to be inconsistent with an intent to bring Gaddafi to justice, and that the subsequent release of Gaddafi did not affect the genuine nature of his trial in the domestic court.

This blog post discusses admissibility issues that the ICC may face when deciding on Gaddafi’s challenge.

Background

In the ICC, Gaddafi was charged with crimes against humanity of murder and persecution committed in various locations in Libya, in particular in Benghazi, Misrata, Tripoli and other neighbouring cities, from 15 February 2011 until at least 28 February 2011, in violation of articles 7(l)(a) and (h) of the Statute. Libya challenged the admissibility of the case in 2012 claiming that it was investigating the same case against Gaddafi domestically. Gaddafi opposed Libya’s admissibility challenge.

In 2013 the ICC declared the case admissible. The Pre-Trial Chamber found that Libya had failed to show that it was investigating the ‘same case’: Libya failed to produce sufficient evidence to show that it was investigating the same conduct as the conduct underlying the charges in the ICC case. The Pre-Trial Chamber further concluded that Libya was unable genuinely to investigate and prosecute the case because of unavailability of its judicial system. Libya ‘faced substantial difficulties in exercising its judicial power over the entire of its territory’. As a result, it was unable to secure custody over Gaddafi and obtain witness testimony. It faced difficulties in appointing a counsel to Gaddafi. In 2014 the Appeals Chamber upheld the admissibility decision.

It has been reported that on 28 July 2015 Gaddafi was convicted by the Tripoli Court of Appeal for crimes committed in the course of the attempt to suppress the February 2011 revolution in various localities in Libya, including Benghazi and Misrata. These included killing, threatening with violence, instigating to unlawfully detain and intimidate those who revolted against the former regime. Gaddafi was sentenced to death penalty. The case appears to be pending before the Supreme Court.

Procedural issues

Article 19(4) provides that admissibility or jurisdiction of a case can be challenged only once by an accused or person against whom an arrest warrant or summons to appear have been issued or by a State which has jurisdiction over the case. The Court may, in exceptional circumstances, grant leave to bring a challenge more than once or at a time later than the commencement of a trial. An admissibility challenge on the grounds of ne bis in idem falls within such exceptional circumstances. This follows from the wording of Article 19(4). Ne bis in idem is the only basis for challenging admissibility of a case at the commencement of a trial or a later stage. Furthetmore, according to Article 20(3), holding a trial where there has already been a domestic trial for the same conduct may put the ICC in breach of the principle of ne bis in idem. The Court should allow repeated challenge to admissibility of a case where, as in Gaddafi case, it is based on Article 17(1)(c) and the ne bis in idem principle found in Article 20(3).

Substantive issues

According to Article 20(3), the ICC is barred from trying a person who has already been tried before another court if the trial was in relation to the conduct that underlies the charges brought in the ICC case, unless the case falls under one of the exceptions to ne bis in idem.

The question of finality

There has been a trial and a judgment of conviction in Gaddafi’s domestic case. However, the domestic criminal proceedings do not seem to have ended. The case is pending review before the Supreme Court.

A domestic trial will not trigger protection of the ne bis in idem before the judgment of conviction or acquittal resulting from the trial becomes final (Bemba, para 248). The ne bis in idem in Article 20(3) operates between the ICC and another court. The provision therefore applies to a great variety of legal systems that may be competent to prosecute crimes falling within the jurisdiction of the Court. Whether a domestic judgment is final will ultimately depend on the relevant domestic law. Thefore, the Court will need to look into the domestic law, when deciding whether the person ‘has already been tried’ and whether a domestic judgment is final for the purposes of ne bis in idem.

The relevance of the ‘substantially the same conduct’ test

The ne bis in idem in Article 20(3) bars the ICC from trying a person who has already been tried with respect to the ‘same conduct’ in another court. The Court has used a ‘substantially the same conduct’ test, which means that the domestic authorities and the ICC are prosecuting the ‘same conduct’ where there is substantial overlap between the incidents investigated by the domestic authorities and the ICC or where the investigation by the domestic authorities covers the crux of the ICC’s case or the most serious aspects thereof (Gaddafi, Appeals Chamber, para 72).

Gaddafi’s admissibility challenge raises the question of whether the ‘substantially the same conduct’ test also applies to ne bis in idem in Article 20(3).

It will be recalled that Article 20(3) – through the reference in Article 17(1)(c) – forms part of the ICC admissibility rules. It is only logical that the same test should apply for all rules governing admissibility of cases, whether there is an ongoing domestic investigation, a decision not to prosecute or where there has already been a domestic trial. Furthermore, in view of the complementarity-based admissibility regime of the ICC, the ‘same conduct’ test should allow for a degree of variation between the conduct investigated by the ICC and that tried in the domestic case. The ‘substantially the same conduct’ test should therefore also apply to the ne bis in idem­ and the respective admissibility rule. Its application in Gaddafi’s case, given the available information, is likely to lead to the conclusion that the charges in the domestic trial and in the ICC case concerned the same conduct.

Exceptions to ne bis in idem

The trial by the ICC in respect of the same conduct is allowed where the proceedings in the other court not of genuine nature. In other words, they ‘were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the ICC’ (Article 20(3)(a)) or ‘otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice’ (Article 20(3)(b)). These exceptions to Article 20(3) ­– similarly to the virtually identical criteria of unwillingness genuinely to conduct the proceedings found in Article 17(2)(a) and (c) – render a case admissible before the ICC where the domestic proceedings were aimed at allowing the person concerned to evade justice. A breach of due process guarantee per se is not a basis for exception to ne bis in idem and, by implication, for admissibility of a case in which there has already been a trial for the same conduct.

Furthermore, the criterion of ‘inability’ in Article 17(3), while part of the admissibility rules in Article 17(1)(a) and (b), is not mentioned in Article 17(1)(c). Neither is it among the exceptions to ne bis in idem in Article 20(3). Gaddafi’s case was declared admissible by the ICC partly owing to Libya’s inability genuinely to investigate the case. These findings may no longer be relevant in the context of ne bis in idem. The Rome Statute does not provide a separate basis for admissibility of a case where the person has been tried in circumstances amounting to inability genuinely to conduct proceedings such as the absence of the accused, witnesses or necessary evidence resulting from the state’s lack of control over its territory.

The effect of the amnesty

Gaddafi’s challenge raises an interesting issue of the effect of amnesty on application of ne bis in idem in Article 20(3).

An amnesty granted after the person had already been tried in a domestic court does not necessarily render ne bis in idem inapplicable and the case admissible. This is because Article 20(3)(a) and (b) provides for exceptions to ne bis in idem where the ‘proceedings in other court’ were not of genuine nature. This wording excludes any measures affecting the execution of a sentence that are adopted outside the trial itself. An attempt during the drafting of the Rome Statute was made to include a provision allowing the ICC to find a case admissible where a ‘manifestly unfounded’ decision on parole or commutation of a sentence interfered with application of the appropriate penalty. No agreement was reached, however: many states believed that the issue was too controversial; others considered the provision unacceptable since it would allow the Court to interfere with sovereign right of the states to decide on such matters as commutation of sentence and the competence of administrative authorities to administer sentences; only few states supported the provision. At the same time, an amnesty granted in connection with a trial that was not of a genuine nature or an amnesty that reveals the sham character of the trial does bring the case within the exceptions to ne bis in idem.

Gaddafi was released in April 2016 allegedly pursuant to an amnesty law adopted in 2015. The circumstances surrounding the grant of amnesty in this case are not straightforward and may raise questions as to the genuine nature of the trial against Gaddafi. Firstly, the amnesty and release were granted while the domestic case was still pending review before the Supreme Court, which to a certain degree renders the continuation and the final outcome of the criminal proceedings futile. Secondly, it would seem that the amnesty was applied selectively. Gaddafi was singled out for amnesty among the 37 defendants in the same criminal case. Furthermore, it has been reported that amnesty was not granted by a judicial decision, as apparently required by the 2015 law, and that there had been some objections from Libyan officials as to the authenticity of the decision ordering Gaddafi’s release.

Conclusion

Gaddafi’s admissibility challenge raises a number of unsettled admissibility issues related to the application of the principle of ne bis in idem in Article 20(3). In the opinion of the author, certain findings of the Court made in the context of other admissibility rules (for instance, the ‘substantially the same conduct’ test) are equally applicable to ne bis in idem and the respective admissibility rule. Other matters (those related to the final nature of judicial decisions or to the effect of an amnesty) are novel and require a ne bis in idem-specific solution.

Bemba Acquittal Rests on Erroneous Application of Appellate Review Standard

by Jennifer Trahan

[Jennifer Trahan is a Clinical Professor at the NYU Center for Global Affairs.]

While there are many subsidiary issues and it will take substantial time to fully analyze each of them, the crux of the decision in the case of Jean-Pierre Bemba Gombo, sentenced to 18 years by the Trial Chamber and acquitted of all charges upon appeal, rests on the margin of deference to accord Trial Chamber determinations of an issue of fact (or mixed fact and law). The key issue (aside from one related to charging) came down to whether Mr. Bemba, whose subordinates were found to have committed murder as a war crimes and crime against humanity, rape as a war crimes and crime against humanity, and pillage as a war crime, in the Central African Republic between 2002 and 2003, took the “necessary and reasonable measures” to prevent or repress the commission of the crimes or to submit them to the competent authorities for investigation and prosecution. Such measures are required under the command responsibility standard of Article 28(a)(ii) of the International Criminal Court’s Rome Statute.

Based on a lengthy trial in which 77 witnesses testified, and 733 items of evidence were admitted, the Trial Chamber found that he did not do so, concluding that the measures taken “patently fell short of ‘all necessary and reasonable measures’ to prevent and repress the commission of crimes within [Mr. Bemba’s] material ability.” (Trial Chamber judgment, para. 731.) Under established jurisprudence, this factual determination was entitled to deference when the issue went up on appeal. Unfortunately, in a “significant and unexplained departure” from prior jurisprudence (and similar jurisprudence of the ad hoc tribunals), the Majority applied an unworkable and arguably erroneous standard of appellate review in examining this key issue on which the outcome largely hinged.

The standard to be applied is whether a reasonable trier of fact could have reached the finding in question, based on the evidence that was before the Trial Chamber. (Dissenting Opinion, para. 47.) In the Dissenting Opinion of Judges Monageng and Hofmanski, they persuasively point out that this was not the standard applied by the Majority who voted to acquit (Judges Van den Wyngaert and Morrison, with President Eboe-Osuji concurring based on a separate opinion). Instead, the Majority took selected pieces of evidence, and based on a review of only those pieces of evidence, essentially revisited the Trial Chamber’s factual findings, finding “some doubt,” and substituted their judgment as to a factual determination made by the Trial Chamber. But the reason that a margin of deference is given to Trial Chamber judges as to determinations of fact is that they have reviewed the totality of the evidence presented to them—especially important regarding such lengthy and complex trials as are conducted by the ICC. (If the “some doubt” or “serious doubt” standard were correct, as Judges Monageng and Hofmanski point out, it would mean that in any case with a dissent at the Trial level, there should be acquittal on appeal, as the Dissenter obviously had doubt. (Dissenting Opinion, para. 13.) The Majority’s new appellate review standard is thus not only unprecedented, it would make ICC convictions nearly impossible. While the ICC may not be strictly bound to apply its own precedent, the Majority makes no case for departing from the established standard of appellate review.

Moreover, whether a commander has taken “necessary and reasonable measures” to prevent or repress crimes committed by his troops/subordinates is necessarily fact and context-specific. It is not “necessary and reasonable measures” in the abstract, but in the specific circumstances in which the crimes were committed, at the time of the crimes, and given the actual ability of the particular commander to exercise measures related to those troops.

Reading both the Majority and Dissenting opinions, it is difficult for this author to conclude whether or not Mr. Bemba undertook such “necessary and reasonable measures” to prevent or repress the crimes committed by members of the Mouvement de Liberation du Congo, because I have not been following the Bemba trial; I have not been sitting in court every day of the trial to hear the evidence and assess the credibility of witnesses; and I have not thereby gained an appreciation of the particular factual context in which the crimes occurred, nor the conditions in the CAR, nor what measures reasonable could have been undertaken. That is why I will not opine on whether Mr. Bemba took the “necessary and reasonable measures” to prevent or repress the crimes, and that is exactly why the job of appellate review is also not to make such determinations afresh based on a limited review of selected pieces of evidence.  This is why the question on appeal is simply: whether a reasonable trier of fact could have reached the finding in question based on the evidence that was before the Trial Chamber—something the Majority never examined.

Judges Van den Wyngaert and Morrison also, in their separate opinion, also set off into uncharted territory by suggesting that it is really not the job of a high-level commander to prevent or repress crimes, but the job of mid-level commanders “to keep their troops in check. . . .” (Separate Opinion, para. 33)—thereby seemingly suggesting the evisceration of command responsibility for high-level commanders. They also are inexplicably sympathetic to Mr. Bemba as a “remote” commander (Separate Opinion, para. 33), as if we don’t have modern forms of communication, whereby a commander who is physically remote could nonetheless be fully aware of the actions of his or her subordinates and/or impose measures to prevent or repress crimes. (Similarly flawed logic also crept into the now widely denounced Perisic acquittal before the International Criminal Tribunal for the former Yugoslavia, who was also deemed “remote” from the Republika Srpska forces who directly perpetrated the crimes.) (This is a very convenient finding for modern militaries, whose high-level commanders often will be remote from battlefields.)

It is exceedingly distressing for such a significant case to turn on the misapplication of the appellate review standard, and one can only empathize with the massive number of victims in the CAR who must be confounded by this inexplicable result. Prosecutor Bensouda is understandably dismayed, as revealed by her statement of June 13.

Maybe the worst concluding logic is offered by the Majority, when they consider whether they should instead remand the case (as Judge Eboe-Osuji would have done), but Judges Van den Wyngaert and Morrison basically conclude that would take too long to do so. (Separate Opinion, para. 73.) Yes, cases should not take decades, but, if remand were the proper path (and this author is not convinced it was), the time delay of their own court is not an excuse not to remand. Remand, however, was not necessary; it was never shown that the Trial Chamber could not have reasonably reached the decision that it did on the command responsibility charges as to whether Mr. Bemba undertook necessary and reasonable measures to prevent or repress the crimes. Absent such a showing of error, the Trial Judgment finding of command responsibility should have been affirmed.

Some Reflections on the Bemba Appeals Chamber Judgment

by Alexander Heinze

[Alexander Heinze is an Assistant Professor at the Department of Foreign and International Criminal Law, Institute for Criminal Law and Justice, Georg-August-Universität Göttingen. He is the author of the book “International Criminal Procedure and Disclosure” (Duncker & Humblot, 2014).]

In less than a month’s time, the International Criminal Court (ICC) will celebrate its 20th anniversary. Distinguished speakers will be calling into mind that the ICC was first and foremost a Court for victims – and then they will be expressing their condemnation of the recent acquittal of Jean-Pierre Bemba from the charges of war crimes and crimes against humanity, as did the recent blog posts here, here and here. It goes without saying that every aspect of the Majority Judgment, the Separate Opinions and the Dissenting Opinion deserves its own publication. However, since the ICC Prosecutor already issued a press statement strongly criticizing the Majority Judgment, and the above mentioned blogposts – written by authors who are or were affiliated with the ICC’s Office of the Prosecutor – bemoan, without waiting for the publication of Judge Eboe-Osuji’s Separate Opinion, a “lack of clarity, retroactive application of new law, and negative consequences in this and future cases”, “extremely negative consequences for the institution”, or fuel resentments by stressing that “the Court ruled that he could join his family in Belgium while he awaits sentencing in that case” (citing BBC News and adopting the report’s almost exact wording instead of referring to the actual Court decision, where Bemba’s family ties in Belgium are provided merely as a side information in a half sentence), the purpose of this blog entry is to bring the discussion back on the legal track.

With regard to the standard of review, the minority employs an approach that is well known before International Criminal Tribunals, i.e. an Appeals Chamber would only interfere where the Trial Chamber’s appreciation of the facts was wholly unreasonable, that is, where it “cannot discern how the Chamber’s conclusion could have reasonably been reached from the evidence before it” (Dissenting Opinion, para 9). While this approach carries the idea of a margin of deference to the factual findings of the Trial Chamber, the majority views this idea “with extreme caution” (Majority Judgment, para. 38). Even though the majority does support the standard of reasonableness, it clarifies that this standard “is not without qualification” (para. 41; more critically Separate Opinion Eboe-Osuji, para. 72). Thus, the majority opines it may interfere with the factual findings whenever the failure to interfere may occasion a miscarriage of justice. It had the right to deviate from the conventional approach, due to the fact that the ICC “may” but does not have to “apply principles and rules of law as interpreted in its previous decisions” (Art. 21(2) ICC-Statute – Judge Eboe-Osuji justifies the deviation also through a contextual interpretation of Art. 83(1) ICC-Statute, which seems to stretch the ratio of that provision a little too far). The application of the concrete standard of review is then a policy decision (in the same vein Separate Opinion Eboe-Osuji, para. 46) and there are good arguments for both sides (consistency of Appeals Chamber decisions and not turning appeals proceedings into a second trial vs. protection of the rights of the accused and avoiding to “consign the fate of a convicted person to the undoubted good faith of the Trial Chamber whose verdict of conviction has been appealed” (Separate Opinion Eboe-Osuji, para. 11)). There is another argument in favour of the broad approach of the majority: the ICC Appeals Chamber is not a national appeals court. There is no external review mechanism with regard to the rights of the Defendant as we know it in national jurisdictions, where a convicted person can still make an application to a regional human rights body for an infringement of his or her fair trial rights. There is also no Constitutional Court Chamber, as we know it from the Kosovo Specialist Chambers (see my blogpost here). The Appeals Chamber is very much the end of the road. It is therefore illogical when the Prosecutor in her press statement uses this fact as an argument for a “cautious approach to appellate review”. Shouldn’t it be the opposite? When there is no further appellate or revisionary body, the standard of review of the Appeals Chamber needs to be designed in a way that protects the rights of the accused most effectively. Judge Eboe-Osuji’s reasons why he thought following the conventional standard of appellate was especially inappropriate are illuminating. Everyone who evaluates the Majority Judgment as a particularly grave form of arbitrary decision making should read them in total. It is telling that even Judge Eboe-Osuji’s he leaned towards referring the case back to the Trial Chamber, he evaluated the evidential analysis by the Trial Chamber as so flawed that he preferred an acquittal over an inconclusive judgment.

The controversy around the standard of review continues in the question of how the charges must be framed and confirmed so that a conviction does not exceed the charges (Article 74(2) ICC-Statute). Bemba was convicted partly based on individual acts of murder, rape and pillaging committed against particular victims at specific times and places that had not been confirmed in the Confirmation Decision. The Trial Chamber argued that the Pre-Trial Chamber’s Confirmation Decision was broad enough so that new allegations could be included without a new Confirmation Decision. The question therefore was: How concrete must the charges be and how much evidence must the Prosecutor provide? Is it acceptable to formulate them in such a broad fashion that – exaggerated – the Prosecutor can add criminal acts whenever she wishes to do so, with leave of the Trial Chamber after the trial has begun? The minority answers this in the affirmative, which is nothing unusual from a domestic law point of view. The prosecutor enjoys discretion in formulating the charges and that rightly so. The burden of proof in the confirmation proceedings is “substantial grounds to believe that the person committed the crime” (Article 61(5) ICC-Statute) – a standard that is lower than the burden required for a conviction (“beyond reasonable doubt”). Nevertheless, even in national proceedings the opening of an investigation against a suspect and the subsequent charging creates a considerable stigma. This is all the more true in an international context where everything, especially worldwide media attention, is potentiated. The least that can be expected in that situation is a clear and fairly strict formulation (and confirmation) of the charges. The majority therefore rightly states: “Simply listing the categories of crimes with which a person is to be charged or stating, in broad general terms, the temporal and geographical parameters of the charge is not sufficient” (para. 110). Judge Eboe-Osuji concurs with this opinion, even though he disagrees with Bemba that a Trial Chamber was in principle precluded from amending the indictment after the commencement of trial, employing a teleological and contextual interpretation of Art. 74(2) ICC-Statute (in conjunction with Article 69(9)) (Separate Opinion Eboe-Osuji, paras. 118-134).

Taking both procedural questions together, it is certainly fair to say that they address the interpretation of procedural rules that can work both ways with the better arguments for the majority. This also applies to the main substantial question, the requirements of command responsibility. To make this crystal clear: No one affiliated with the implementation of International Criminal Law has an interest that leadership-level- or mid-level perpetrators go free despite their criminal responsibility while their subordinates commit unimaginable atrocities. However, the concept of individual criminal responsibility for violations of humanitarian and human rights norms is universally recognized. There should be no situation in international criminal adjudication today where this self-evident principle needs special emphasis. And yet, the catchphrase “crimes did not commit themselves” is carried like a torch through social media and even the blogosphere (see here) to light fires of outrage and open resentment to the Appeals Chamber and its majority Judges. Again, even the Prosecutor could not resist the temptation of an emotional rejection of the Appeals Chamber’s majority view, instead of entering a self-critical analysis of its work.

In contrast to the minority opinion, it found that Bemba took all necessary and reasonable measures to prevent or repress the commission of crimes by applying a rather realistic set of criteria: Bemba was a “remote commander” with “non-linear command” in a foreign country (Majority Judgment, para. 171) and therefore faced limitations in controlling his troops. The minority disagrees: Even though Bemba as a remote commander faced “logistical difficulties” (Dissenting Opinion, para. 57), the evidence showed that it was possible to overcome these difficulties. The majority generally was of the view that a commander cannot be expected to do the impossible, taking any preventive measure, no matter how unrealistic they would be. Instead, the formula of the majority is rather clear, echoing the principle of individual criminal responsibility:

“The trial chamber must specifically identify what a commander should have done in concreto. Abstract findings about what a commander might theoretically have done are unhelpful and problematic, not least because they are very difficult to disprove” (Majority Judgment, para. 170).

Moreover, what a commander should have done in concreto is not for the accused to show, but for the Trial Chamber. When determining whether the measures the commander had taken were necessary and reasonable, the motive to counter public allegations and rehabilitate the public image of the subordinates does not intrinsically render the measures “any less necessary or reasonable” (Majority Judgment, para. 177; Separate Opinion Eboe-Osuji, para. 16) – even though the commander is required to act in good faith in adopting such measures and must show that he “genuinely” tried to prevent or repress the crimes in question or submit the matter to the competent authorities. Again, these legal aspects require much closer analysis than this, as has been done with the latter aspect (Bemba’s motivation) here.

Considering the remarks of the majority and reading the separate opinion, it becomes clear that the Defense’s call for a more realistic approach to command responsibility that takes into account the specific operative situation of the commander has been heard, at least by the majority of the chamber. Judge Eboe-Osuji’s very detailed and thorough engagement with the arguments brought forward by Defense Counsel show how much of an impact the actual hearing had on the majority’s opinion (read, for instance, para. 247: “It was wise, indeed, of Ms Gibson to have readily accepted the endangerment rationale on behalf of the Defence during the oral hearings. Notably, however, co-counsel Mr Newton, was not as forthcoming. […]). The separate opinion touches upon further controversial criteria of command responsibility that are certainly noteworthy from an academic point of view, even though they are not part of the majority judgment but rather an obiter, since there was apparently no consensus between the judges in that regard. For instance, the separate opinion of Judges van den Wyngaert and Morrison provides an excellent analysis of the subjective element in Article 28, explaining why it matters whether the accused is charged with/convicted of “knowing” the crimes of his/her subordinates or “should have known” the crimes – both standards trigger different obligations for the commander and must therefore be proven differently, what made the Trial Chamber’s notice under Regulation 55 of the Regulations of the Court to characterize the charges from “knowledge” to “should have known” defective (Separate Opinion, para. 39). The minority, by contrast, saw no harm in that, based on a “unitary standard for the mental element” (Dissenting Opinion, para. 266).

The fundamental differences about a possible causation element mirror the unclear legal nature of Art. 28. This unclear legal nature is best captured by Judge Eboe-Osuji, whose journey through the familiar classifications of Art. 28 as dereliction of duty on the one hand and accomplice liability on the other hand leads him to the rather surprising destination of command responsibility as “endangerment liability”: Since armed conflicts are “notoriously dangerous”, Art. 28 seeks to “protect innocent victims from the risk of the excesses that is so notoriously a feature of armed conflicts” (para. 243). Thus, it was not necessary that the defendant’s conduct caused the actual; proof of the creation of danger was sufficient “in the sense that the commander’s complicity in the subordinates’ crimes originated when (s)he created or fostered the danger of the subordinates’ criminality (by training them, arming them and/or deploying them, so as to be able to commit those crimes), and that complicity was consummated when (s)he failed to exert authority (that was effectively available to be exerted) properly to prevent or repress the crime (including through punishment), when s(he) knew (or should have known) that the subordinates were committing or about to commit such crimes.” (para. 251). This is indeed a novel approach, reminiscent of the theory that complicity was a crime of endangerment (as proposed in Germany by Herzberg, Goltdammer’s Archiv für Strafrecht 1971, pp. 1 et seq.). It is for another publication to enquire whether this theory can and should be transferred to command responsibility. The Dissention Opinion and Judges van den Wyngaert and Morrison in their Separate Opinion follow the conventional path of this debate: While the former justifies the causation element in convincing fashion, the latter rejects it based on the argument that it was “not possible that an omission after a fact has occurred (that is, failure to refer criminal behavior to the competent authorities) causes this fact”. This might be true but is a too easy escape route. In case the crimes have already occurred, it is indeed hard to construct an omission. However, viewing the omission with regard to future crimes that might be committed as a result of it, a “hypothetical” or “quasi”-causation can indeed be construed. Unsurprisingly, the separate opinion rejects the view that the commander’s omission can increase the risk of the commission of crimes, as it was held by the Judge Steiner in her Separate Opinion to the conviction decision (Separate Opinion Steiner, para. 19). This rejection seems to be based on a misunderstanding of that view when Judges van den Wyngaert and Morrison opine that the failure of the commander to act does not increase the risk but “[t]he responsibility of the commander is precisely to decrease the risk that his/her subordinates will commit crimes. Failing to reduce a risk can hardly be seen as causing the manifestation of said risk.” However, the theory of increasing risk (see esp. Ambos, in: Stahn (ed.), The Law and Practice of the ICC, 2015, pp. 603 et seq.) is exactly about the question, whether the ex ante formulated norm, even when viewed ex post, still appears to contain a prohibition that reduces the actual harm. Thus, of course the norm in itself is about harm reduction, while the act might increase it. The minority view – by contrast – takes this into account and justifies the causation element in convincing fashion.

In sum, in a very narrow decision, the majority of the Chamber did what it is supposed to do – review a Trial Chamber decision on the basis of the law. It goes without saying that it would be inappropriate to applaud this decision as a victory of criminal doctrine and procedural sophistication. There are no winners. Thousands of victims will have been left in shock by the Appeals Chamber judgment. However, it would also be inappropriate to bemoan the decay of everything the ICC stands for. Not sacrificing the rights of the accused on an altar of grand gestures by the world community (such as the “need to send a clear signal globally that such abhorrent crimes must not go unpunished” [ICC Prosecutor] or a “promise of accountability” [Amann]) is certainly a decision that should find – despite its controversy – support.

The ICC in Film: The Hitman’s Bodyguard

by Melanie O'Brien

[Melanie O’Brien is Senior Lecturer in International Law at the UWA Law School, University of Western Australia; and an affiliated researcher of the Asia-Pacific Centre for the Responsibility to Protect, University of Queensland.]

Followers of Opinio Juris well know Kevin Jon Heller’s criticism of Crossing Lines and its portrayal of the ICC. I recently watched the action-comedy The Hitman’s Bodyguard, a film that includes an ICC-related storyline, and it certainly opens itself up to some well-deserved criticism about its portrayal of the ICC.

The storyline of The Hitman’s Bodyguard is that Belarusian dictator Vladislav Dukhovich (Gary Oldman) is on trial before the ICC (for genocide? Crimes against humanity? It’s not clear, although genocide is hinted at, but this is not relevant to the film- he’s a bad guy who killed a lot of his people, that’s all we need to know). One witness needs to be transported under witness protection from London to Den Haag. The witness is Darius Kincaid (Samuel L. Jackson), a major international hitman with 250 kills under his belt. Interpol is tasked with transporting him (I’ll get to that later in this post), but it goes awry and ultimately, Michael Bryce (Ryan Reynolds), an ex-CIA agent, now private protection agent, is tasked with protecting and transporting Kincaid. This is the crux of the film- Bryce getting Kincaid to Den Haag, and the relationship between the two.

I want to focus here on two main elements of the film: portrayal of the ICC and how it functions; and portrayal of Interpol and how it functions. Both are so far from reality, it is teeth-grindingly frustrating.

We are introduced to the trial by a news report that tells us that the trial continues, ‘with emotional testimony from many of his country’s victims’. We are also told that numerous witnesses who were to testify have disappeared. When we go to the courtroom, we see the testimony of a witness, a Professor who had published anti-Dukhovich writings, recounting how Dukhovich (personally! A dictator who gets his own hands dirty! Highly unlikely!) killed his family and sent him to a prison camp. Here’s where it goes downhill. The defence requests that the Professor’s testimony be ‘disregarded’ because it is ‘hearsay’. One of the judges bangs their gavel and says ‘sustained’. As you can imagine, here is where I groaned and put my head in my hands. Witness testimony is one of the principal sources of evidence for international courts and is not thrown out for being ‘hearsay’. In addition, international courts do not function like American courts with the in-court process of ‘objection’ and ‘sustained/overruled’. Nor, of course, do ICC judges have gavels (although they probably wish they did!).

However, what flows from this ruling is even more absurd. Because the Professor’s testimony has (instantly!) been ‘disregarded’, there is now no evidence at all against Dukhovich for his atrocity crimes. This is despite, as you recall above, the news story telling us that many victims had testified. And where are the reams of documents? The photo evidence? The video evidence? Apparently non-existent. The court has been told that there is one more witness (Kincaid), but that if he does not appear before the court by 5pm tomorrow, the case will be closed. It is completely unimaginable that this kind of deadline would occur before any of the international criminal courts or tribunals. Trials that drag on for years, suddenly have a 5pm deadline the next day?! In the film, the entire court, judges, lawyers, witness, etc, are sitting in the courtroom just waiting in case the witness shows up, literally watching the clock. In reality, unless the court is in session, the courtroom will be empty, with lawyers and judges elsewhere doing work. Of course, this is an absurd plot device designed to amp up the urgency of the transportation of Kincaid from London to Den Haag, but it is the most ridiculous part of the film.

The film also has a few scenes with Dukhovich in his ‘prison cell’. Bafflingly, far from the ICC prison in Scheveningen, Dukhovich instead appears to be housed in a 5-star hotel room, with a view, a personal attendant and room service, where he is free to stab his Interpol mole in the hand.

The only realistic ICC-related aspect of the film is when Dukhovich stands up in court to disrupt proceedings with a rant about how he is the rightful ruler of Belarus, that he recognises ‘no authority that limits my power’. This is typical disruptive behaviour by formerly powerful men on trial for atrocities; likewise the attitude that they are being persecuted for protecting their own people. In another scene in Dukhovich’s ‘prison cell’, he similarly rants ‘I come from nothing. I work all my life… Serving the people. And then they come into my country and they took it all away! And now they lock me up like a rat, feed me poison! Is this fair?’ Of course, the courtroom scene’s rant content may be accurate, but the procedure is not: to deliver his rant, in the middle of (spoiler alert) Kincaid’s testimony for the Prosecution, Dukhovich asks the judges if he can ‘say something’ and he receives a nod of assent. There is procedure to be followed in trials, and it does not include the defendant personally ‘saying something’ in the middle of a witness’ testimony.

Finally, let’s discuss the portrayal of Interpol. Throughout the film, Interpol is running the operation to move Kincaid from London to Den Haag, including offering Kincaid a deal (his wife, Sonia, played by Salma Hayek, will be released from prison in exchange for Kincaid’s testimony). The operation is run by active Interpol agents, crack field agents wearing bullet proof vests emblazoned with INTERPOL on the chest. Which is, of course, not how Interpol works. Interpol is an organisation that facilitates police coordination between jurisdictions. There are no active agents who carry out field ops. An operation across borders would still be run by local police- in this case, the British and Dutch police.

Yes, this film is meant to be fun, funny and silly (and it is, and I did still enjoy it). And maybe if I was a current or former spy, I’d watch these action movies and groan at their inaccuracies in that regard. But I’m not, I’m a lawyer who researches and teaches international law and policing, so instead I groan at inaccuracies in that regard. And let’s not even mention the fact that Sonia is held in a prison in Amsterdam, which is located in the city centre, where she has a big window with a view overlooking a beautiful main square… because everyone knows that’s where every country locates their prisons! Oh well, at least they got the royal blue colour of the ICC judges’ robes right.

Too Clever by Half: Why the ICC Will Probably Find No Jurisdiction Over the Deportation of the Rohingya

by Roi Bachmutsky

[Roi Bachmutsky is a human rights lawyer, recent graduate of Harvard Law School, and a Public Service Venture Fund and Sinclair Kennedy Traveling Fellow.]

The International Criminal Court (“ICC”) made headlines in April upon Prosecutor Fatou Bensouda’s filing of an Article 19(3) request for a ruling on whether the Court may exercise jurisdiction over the alleged deportation of the Rohingya from Myanmar to Bangladesh. This is a big deal, but not for the reason you may think. As grave crimes appear to have been committed in Myanmar’s Rakhine State, the prospect of the ICC side-stepping a deadlocked UN Security Council to bring some modicum of justice to the Rohingya has excited many. Yet it is imperative that we remain sober because there is a thorny issue that was previously, and nearly universally, thought to bar ICC intervention—the lack of personal and territorial jurisdiction.

An affirmative ruling on the Prosecutor’s request would be a Grotian moment of jurisdictional expansion for the ICC with consequences that will reach far beyond crimes in Myanmar. When the Rome Statute was drafted, States could never have imagined the Court extending the long arm of justice to capture crimes committed by the nationals of States not party to the Rome Statute in their own territory. That is why human rights advocates have called for universal ratification of the Rome Statute and why there is so much concern about African States, and recently also the Philippines, threatening to withdraw. But if the Pre-Trial Chamber finds there to be jurisdiction over deportation from a non-State Party (Myanmar) to a State Party (Bangladesh) as a result of conduct that solely occurred in the non-State Party, the Court would be taking a step toward establishing universal jurisdiction over international crimes. This would, in effect, be a re-writing of the Rome Statute to grant itself power over non-States Parties.

The Prosecutor’s request draws on some clever lawyering in arguing that a re-writing of the Rome Statute is merely a matter of interpretation, but it is ultimately too clever by half. Upon a closer look, its arguments are found to rest on a flimsy legal foundation and are thus likely to be rejected by the Pre-Trial Chamber.

The Prosecutor’s brief rests on a single legal premise: that Article 7(1)(d) of the Rome Statute prohibiting “[d]eportation or forcible transfer of population” ought to be read as two, distinct crimes. Once that is established, the brief may argue that an “essential legal element” of the crime against humanity of deportation is the “crossing of an international border.” Since the Prosecutor has taken the position that at least one element of a crime must occur on the territory of a State Party for territorial jurisdiction to attach, the brief concludes that the ICC has jurisdiction in Bangladesh because the border crossing element occurred there. Whatever the case may be as a matter of customary international law, neither the texts of the Rome Statute and the Elements of Crimes nor ICC jurisprudence permit such an interpretation.

Let us begin with the text of the Rome Statute. The first problem with the claim that “deportation or forcible transfer of population” reflects two, distinct crimes is that they are structured under a single provision in the treaty, Article 7(1)(d). The brief seeks to brush this issue aside by noting that there are other provisions of the Rome Statute that “likewise encompass several legally distinct crimes.” In a footnote, however, it acknowledges that half of the provisions it cites in support of this claim are expressly divided into distinct crimes by the Elements of Crimes, e.g. the crimes against humanity of rape and other forms of sexual violence found in Article 7(1)(g)-1 to 7(1)(g)-6, while Article 7(1)(d) is not so divided. Meanwhile, the other provisions cited—Article 8(2)(b)(iv) and 8(2)(b)(viii)—have not been litigated before the ICC and thus have not been held to encompass multiple, distinct crimes. It is notable that the corresponding war crimes prohibition of “[u]nlawful deportation or transfer or unlawful confinement” in Article 8(2)(a)(vii) was split by the Elements of Crimes into the crimes of “unlawful confinement” and “deportation and transfer”—keeping deportation and transfer intact.

The only available precedent for a single provision of the Rome Statute being divided without explicit distinction in the Elements of Crimes is Article 8(2)(e)(vii) prohibiting “conscripting or enlisting” child soldiers “or using them to participate actively in hostilities,” which the Lubanga Trial Chamber held to encompass “separate offenses.” However, even this precedent falls short because the Chamber’s citation to two Judgments and a Dissenting Opinion before the Special Court for Sierra Leone makes clear that by “separate offenses” it did not mean that these were three, distinct crimes but merely that different conduct could constitute a single crime (i.e. an “open-conduct crime”).

The text of the elements for Article 7(1)(d) is even more revealing. The “crime against humanity of deportation or forcible transfer of population” is presented in the singular form with a single set of elements. This is reinforced by footnote 13, which provides that “[d]eported or forcibly transferred” is interchangeable with “forcibly displaced” such that the disjunctive formulation becomes immaterial. Again, the brief sweeps this text under the rug by arguing that it cannot be taken to mean that “deportation” and “forcible transfer” are “the same as one another” as that would contradict the first element which provides that a person be displaced to “another State or location.”

This point is worth dwelling on because this argument is relied upon throughout the brief—deportation and forcible transfer are different. But different what? The brief conflates deportation and forcible transfer being different “things” with them also being different “crimes.” This is a false equivalence. Of course, the drafting history of the Rome Statute and Elements of Crimes makes clear that deportation and forcible transfer are different “things”; deportation refers to the displacement of persons to the territory of another State while “forcible transfer” is the displacement of persons to another location within the same State.

But footnote 13 clarifies that Article 7(1)(d) is a single crime—forcible displacement. Since only deportation across State borders was codified prior to the Rome Statute, its drafters described this crime in the disjunctive formulation (“deported or forcibly transferred”) to ensure that it receives a broad interpretation that encapsulates displacements within a State’s territory. The same drafting technique was used in Article 7(1)(e) with respect to the crime of “[i]mprisonment or other severe deprivation of physical liberty.” So while deportation and forcible transfer are different things, they remain one and the same crime. Therefore, the “crossing of an international border” is not an element of the crime, let alone an “essential” one.

This is why the brief’s analogy to a cross-border shooting is mistaken. In a cross-border shooting, an element of the war crime of attacking civilians, for instance, is that the object of the attack (presumably across the border) must be civilian in character. The war crime is only completed once the element involving the object of the attack is established on the other side of the border. The present case is distinct from a cross-border shooting because, as the crime is completed upon the forcible displacement of the Rohingya in Myanmar, their travel across the border to Bangladesh is not legally required. The same crime, involving the same conduct performed by the same perpetrators, was committed against displaced Rohingya who did not manage to escape across the border and remain trapped in Myanmar to this day.

This conclusion has been cemented by the Pre-Trial Chamber’s confirmation of charges decision in Ruto. In that decision, the Chamber was faced with a challenge by the Defense that the disjunctive formulation in the Prosecutor’s charges (“deportation or forcible transfer of population”) was prejudicial to the accused because it compelled a defense against two crimes in the alternative. The Chamber rejected this argument in finding that the evidence presented provided substantial grounds to believe that the victims were “forcibly displaced.” It held that Article 7(1)(d) is a “unique crime” (read: singular) with “two labels” that depend on whether the “effect” of the displacement results in relocation within or outside the State. The Chamber was satisfied that these “labels” would be resolved by the Trial Chamber after charges are confirmed.

The brief takes issue with this holding in questioning the “legal significance” of the different “labels.” But that is precisely the point. The legal significance of the two “labels” exists to ensure a broad interpretation of the crime by articulating its two forms. After all, if the brief is correct that the crossing of an international border is an essential element of the crime, how could the Chamber have confirmed the charge of deportation while holding that “the evidence presented before the Chamber does not and should not indicate with any sort of certainty where the victims ultimately relocated”? It couldn’t, and therefore didn’t. In fact, Ruto stands for precisely the opposite proposition. Under the Rome Statute, Article 7(1)(d) is a single crime and, therefore, the destination of the victims is not an element of the crime but merely an “effect” used to “label” it after the charge is confirmed.

Upon refuting the Prosecutor’s claim that deportation and forcible transfer are really two, distinct crimes, the rest of the argument cannot stand. If this is a single crime with two forms, the crossing of an international border is not an element of the crime but merely a collateral effect. Therefore, according to the Prosecutor’s own standard for establishing territorial jurisdiction, there is no basis for jurisdiction in Bangladesh because “the conduct in question,” within the meaning of Article 12(2)(a), did not occur there. As such, the Pre-Trial Chamber is likely to hold that the Rome Statute does not provide jurisdiction over the deportation of the Rohingya.

Admittedly, I am disheartened that the ICC is unlikely to have jurisdiction over atrocity crimes committed against the Rohingya absent a UN Security Council referral. Yet that is all the more reason to place pressure on the P5 to permit referral and, critically, broader Security Council reform. To seek to bypass this reform by asking ICC judges to re-write the Rome Statute would be self-defeating, for it would have devastating consequences for the legitimacy of the Court. Like it or not, international law is still created by States and, if the Court strays from this fundamental principle, then States will surely reject the Court. States rightly expect the Court to apply lex lata (the law as it exists), rather than lex ferenda (the law as it should be).

As a reminder, the ICC is currently operating in a relatively hostile, nationalist environment. It is staring down the barrel of confrontations with powerful non-State Parties to the Rome Statute—including the United States, Russia, and Israel among others—which may not appreciate an illegitimate expansion of the Court’s jurisdiction. The Court is also deeply concerned about a wave of withdrawals akin to those pursued by Burundi, South Africa, and the Philippines. Judicial overreach would most likely accelerate these withdrawals.

The ICC faces difficult days ahead in building cases against perpetrators of international crimes around the world, particularly outside of Africa. In these trying times, it may be tempting to expand the Court’s jurisdiction over less powerful States not party to the Rome Statute that are engaged in brutal atrocities. However, such a short cut may in effect short circuit international criminal justice. Let us remain sober and committed to enforcing the law as it stands—the ICC’s future is at stake.

The ILC Meets in NYC:  Gender Diversity and End Work Product Emerge as Regular Themes  

by Kristen Boon

The International Law Commission, a group of 34 independent experts, charged with codifying and progressively developing international law is currently (and exceptionally) meeting at the UN in New York.

Amidst the substantive conversations on subsequent practice of treaties, customary international law, and jus cogens, there are two other themes that are coming up with some frequency.

First, the lack of gender diversity on the commission.  Second, the delay in developing the ILC’s work product into new treaties.

On gender diversity, the issue is a serious one.  In fact, a side event today is called “7 in 70”  that refers to 7 women in 70 years.   In its last elections, 4 women were elected to the ILC.  All were nominated from the European group.

While gender diversity has improved in many segments of the UN, the ILC remains seriously behind, and the Commissioners are concerned about it.   It is time to consider what new practices are required to improve diversity. For example, how can states open up their nomination process?  How can states ensure at the elections stage that that women are seriously considered?   As is well known, the ICC has an elections process designed to improve gender and other diversity on the bench, by a two list voting process.  As these photos show:  it has worked!

Compare this photo of the ILC members, and this photo of ICC judges.

Behind gender diversity is another consideration that a number of Commissioners have pointed out: although Art. 15 of the ILC Statute requires that its members be drawn from practice, academia and government, in reality, only individuals from well-funded organizations or institutions can make the unpaid 10-11 week commitment work.   The requirement to self-fund also has an impact on diversity, participation, and representation, particularly from developing countries.

A second theme of note is the fact that a major part of the work product envisioned for the ILC, namely the drafting of conventions, has slowed down.   The major recent projects of the ILC, such as State Responsibility, Responsibility of International Organizations, and Diplomatic Protection, have been replaced by the practice of writing draft articles (or conclusions) which are then taken note of by the General Assembly and recommended to Member States.  A number of countries, in particular Brazil, are heading the effort to move the Articles on State Responsibility, concluded in 2002, towards a treaty.  The idea is that the draft articles would serve as the basis of an eventual convention.  In addition, other issues could be discussion for addition, such as new articles on multiple breach or attribution.

From a law making process this issue is an interesting one:  states are asking what role the Commission should have in making law when it produces draft articles that are not turned into treaties, but then cited by courts as authoritative.   This issue of the paradox of form and authority was first raised by the late David Caron in 2002, when he noted the weight being given to draft articles.  Although many of the ASR are considered customary international law today, not all are, the most obvious example being the provisions on counter-measures.   If the ASR do become the subject of a new multilateral convention, it opens the way for other work product of the Commission, such as the Articles on Responsibility of IOs and the Articles on Diplomatic Protection to progress as well.

The International Community and the Challenge to the Rule of Law: The Future of Iran Nuclear Deal

by Katayoun Hosseinnejad and Pouria Askary

[Katayoun Hosseinnejad is a university lecturer of international law and attorney at law in Iran and Pouria Askary is an assistant professor of international law at law school of ATU and a visiting professor of law at Islamic Azad University and Tarbiat Modarres University.]

On May 10, two days after the US President pulled his country out of the Joint Comprehensive Plan of Action (JCPOA), Iranian Foreign Minister, in a letter to the UN Secretary General, states that ‘If JCPOA is to survive, the remaining JCPOA Participants and the international community need to fully ensure that Iran is compensated unconditionally through appropriate national, regional and global measures.’(here). While political discussion on this matter is ongoing, which has led, inter alia, to the recent European Commission’s decision demonstrating the EU’s commitment to the JCPOA by preserving the interests of European companies investing in Iran (Press release), this post discuses the legal obligations of states in preserving the JCPOA under the Charter, in general, and the Security Council Resolution 2231 (2015), in particular (here).

The Resolution 2231, aimed at settling the dispute over Iran’s nuclear programme, was adopted under Chapters VI and VII of the UN Charter by the affirmative votes of all the members of the Security Council including the US. The Resolution refers several times to Article 41 and explicitly mentions the obligation of states under Article 25 to accept and carry out the Security Council’s decisions. The Resolution, in its first paragraph, endorses the JCPOA and urges its full implementation.

As discussed by Dan Joyner and by Julian Ku, the JCPOA is not a treaty; however, the fact that it is endorsed and urged to be implemented in full by the Resolution 2231, makes it binding on the UN member states. The obligatory character of the Security Council’s decisions, even those that are not related to the enforcement measures under Chapter VII of the Charter, despite what has been argued by a few commentators, has been emphasized by the ICJ in its Advisory Opinion on Reparation for Injuries, when the Court pronounced:

The Charter has not been content to make the Organization created by it merely a centre ‘for harmonizing the actions of nations in the attainment of these common ends’ … It has defined the position of the Members in relation to the Organization by requiring them to give it every assistance in any action undertaken by it… and to accept and carry out the decisions of the Security Council… (Advisory Opinion, p. 178)

The Court elaborates this point further in its Advisory Opinion on Namibia, to reject the contention that Article 25 of the Charter applies only to enforcement measures adopted under Chapter VII of the Charter. The Court by emphasizing that ‘[i]t is not possible to find in the Charter any support for this view’, and the fact that this article ‘is placed, not in Chapter VII, but immediately after Article 24 in that part of the Charter which deals with the functions and powers of the Security Council’ holds that Article 25 ‘is not confined to decisions in regard to enforcement action but applies to “the decisions of the Security Council” adopted in accordance with the Charter.’ The Court adds further that a reading that limits the application of Article 25 to the enforcement measures under Chapter VII would make Article 25 ‘superfluous, since this effect is secured by Articles 48 and 49 of the Charter.’ (Advisory Opinion, para 113). Based on these considerations, the Court concludes that:

Thus when the Security Council adopts a decision under Article 25 in accordance with the Charter, it is for member States to comply with that decision… To hold otherwise would be to deprive this principal organ of its essential functions and powers under the Charter. (Advisory Opinion, para 116).

The Resolution 2231, adopted in accordance with the Charter, urges for the full implementation of the JCPOA. It calls upon all member states, as well as other international actors, to support its implementation and to refrain from actions that undermine implementation of commitments under the JCPOA (para 2). Hence, all the UN member states, including the US, are fully committed to implement the Resolution and the JCPOA, which forms a part of it. Although the use of the term ‘calls upon’ has led a few scholars such as John B. Bellinger to argue that this paragraph has not created any obligation under international law (here), as stated by the ICJ, the terms of the Security Council Resolution should be interpreted considering ‘all circumstances that might assist in determining [their] legal consequences’:

The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances… (Namibia Advisory Opinion, para 114).

To adhere to the idea that simply because of the use of the phrase ‘calls upon’ in the Resolution, states are free to refrain from its implementation makes the whole Resolution superfluous. The Resolution 2231, which marked a fundamental shift in the Security Council’s consideration of Iran’s nuclear issue, was adopted with the aim of providing a comprehensive solution to the dispute over Iran’s nuclear programme for which the comprehensive lifting of nuclear-related sanctions, including international and national sanctions, was an essential part, as stated in the Joint Plan of Action of E3/EU+3 and Iran issued on 24.11.2013. Thus, it cannot be argued that no state except Iran has hard law obligation in implementing the Resolution. In light of this, the recent decision of the United States to withdraw from this agreement and the measures it has taken to defy the implementation of the Resolution, by reapplications of US sanctions on Iran and its commercial partners in the world, is a material breach of its obligations to comply with the decisions of the Security Council under the Charter and therefore, entails its international responsibility.

The question, however, remains as to the legal relations arising from the occurrence of the US internationally wrongful act with the other UN member states.

Of course, every state, by virtue of its membership in the international community, has a legal interest in the fulfillment of certain essential obligations, and for that reason, states are under general obligation not to provide any aid or assistance to another with a view to facilitating the commission of an internationally wrongful act by the latter (Article 16 of the draft rules on state responsibility). Nevertheless, we believe that in this situation the UN member states have also positive obligations in taking appropriate measures to ensure the continuous implementation of the Resolution 2231 and the JCPOA, because the challenge imposed by the US is not only against Iran but it targets what forms the universally recognized bases of international legal order: pacta sunt servanda, good faith, multilateralism, international cooperation, and the rule of law.

Since the Charter is an international treaty, the obligations it contains are, from the point of view of their origin, treaty obligations for which all state parties, and not only the injured state, have an interest of a general character in compliance with it. Moreover, obligations of states under the Charter, in general, and the decisions of the Security Council, in particular, have special importance not only because of the expressed reference of Article 103, but also due to the important role they play in maintaining international peace and security.

The United Nations was established by peoples who were determined to ‘achieve international co-operation in solving international problems’ and for that purpose, their governments had obliged themselves to ‘fulfill in good faith the obligations assumed by them in accordance with the present Charter’. (Articles 1(3) & 2(2) of the Charter). The good faith performance of obligations of states under the Resolution 2231 requires them to take measures to enable its implementation. The Resolution contains positive obligations by emphasizing on the ‘States’ rights and obligations relating to international trade’ (preamble); it expressly underscores that member states are obligated under Article 25 of the Charter to accept and carry out the Security Council’s decisions (preamble). It further calls upon all member states, regional organizations and international organizations to take such actions as may be appropriate to support the implementation of the JCPOA, including by taking actions commensurate with the implementation plan set out in the JCPOA and the Resolution 2231 (para 2). The good faith implementation of these obligations cannot be equated with the mere disagreement with the violation occurred and for that reason, in the joint statement issued by the Prime Minister Theresa May, Chancellor Angela Merkel and President Emmanuel Macron, they announced their commitment to ensure ‘the continuing economic benefits … that are linked to the agreement.’ (here). In the same line, the EU high representative has emphasized that ‘for the sake of our own collective security’, not only the European Union is determined to preserve the deal, but also ‘expect the rest of the international community to continue to do its part to guarantee that it continues to be fully implemented.’ (here). Accordingly, the President of the European Commission stated that ‘We must act now and we will act now. That’s why we are launching the process to use the 1996 Blocking Statute to neutralise the extraterritorial effects of US sanctions on European companies’.

When a state violates such an obligation in a systematic way, i.e. ‘in an organized and deliberate way’ and with the clear intention to violate the norm, other states have obligations in stopping the violator as the ICJ in Consular Staff in Tehran case has emphasized:

Such events cannot fail to undermine the edifice of law carefully constructed by mankind… the maintenance of which is vital for the security and well-being of the complex international community of the present day, to which it is more essential than ever that the rules developed to ensure the ordered progress of relations between its members should be constantly and scrupulously respected. (Judgment, para 92).

The deal, which ‘is one of the biggest achievements diplomacy has ever delivered… belongs to the entire international community’, as correctly mentioned by the EU High Representative, Federica Mogherini (here). Faced with such a threat to the foundations of international legal system, the international community, in general, and Iran’s JCPOA partners, in particular, not only have strong interest but also obligation to take all necessary measures in order to guarantee the rule of law in international relations.

In closing, we thank Opinio Juris for letting us contribute this guest blog post.

PTC I’s Problematic Closed, Ex Parte Hearing on the Myanmar Situation

by Kevin Jon Heller

Last Friday, Pre-Trial Chamber I issued an Order Convening a Status Conference to consider the OTP’s request for a ruling on whether the ICC has jurisdiction over Myanmar’s deportation of the Rohingya to Bangladesh — an issue I discussed here. According to the Order, the status conference will be held “on 20 June 2018… in closed session, only in the presence of the Prosecutor.”

I find a number of aspects of the short Order troubling. To begin with, I don’t understand why the PTC believes the status conference has to be held in closed session. Whether the ICC has jurisdiction over deportation from a non-member state to a member state is a pure issue of law, so what justifies the secrecy?

The answer seems to come in paragraph 4 of the Order, where the PTC says that, “[w]ith a view to adjudicating the Prosecutor’s Request, the Chamber orders the Prosecutor to consider the issues set out in the annex appended to the present order and to address them during the status conference.” The PTC thus clearly believes that there are other issues at stake concerning the OTP’s request in addition to the purely legal one. But the annex is also secret, so we have no idea what those other issues might be.

I am also troubled by the ex parte nature of the status conference. Why are counsel for Myanmar and Bangladesh not invited, given that the interests of those states are obviously affected by the jurisdictional issue — particularly Myanmar’s, given that the conference concerns the potential criminal responsibility of its officials? Even if the PTC is within its power to hold the status conference ex parte (which it probably is), doing so will only further alienate non-member states concerned with the ICC’s overreach and penchant for secrecy. So I hope the PTC has a very good reason for inviting only the OTP.

Finally — and perhaps most problematically — there is no doubt whatsoever that the PTC’s Order violates the Regulations of the Court, which the judges themselves wrote and adopted. Here is Regulation 20, concerning public hearings (emphasis mine):

1. All hearings shall be held in public, unless otherwise provided in the Statute, Rules, these Regulations or ordered by the Chamber.

2. When a Chamber orders that certain hearings be held in closed session, the Chamber shall make public the reasons for such an order.

Even if we assume that the PTC has the power to hold a closed hearing, the Order does not comply with Regulation 20(2). The Order makes no attempt to explain why the status conference cannot be held in public. Literally none.

The PTC’s failure to comply with the Regulations and its general lack of transparency is unacceptable given the stakes — legal and otherwise — in the Myanmar situation.