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.

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.

[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.

[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.

[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.

[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.

[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.