12 Mar Amnesties, The Gaddafi Admissibility Appeal Decision and the Minsk Agreements
[M. Vagias is a Senior Lecturer of Law with The Hague University of Applied Science]
Introduction: Amnesties in the latest Gaddafi Admissibility proceedings
The debate on the compatibility of amnesties with the duty to prosecute human rights violations, including war crimes and crimes against humanity, is far from new in the realm of international criminal law. It has troubled first and foremost the Inter-American Court of Human Rights, which ruled in many cases that amnesties are incompatible with the obligation of states to investigate, prosecute and punish as appropriate gross human rights violations.
As regards the International Criminal Court, the question of amnesties was addressed for the first time in ICC history only recently by Pre-Trial Chamber I in its April 2019 Gaddafi Admissibility decision. There, Pre-Trial Chamber I had to deal with a defence claim that the case against Mr. Gaddafi had been finally settled following his conviction and subsequent amnesty by Libyan Law No 6/2015. The defence argued that because of his trial and subsequent amnesty, his case had already been ‘tried’ for the purposes of art. 20(3) ICC Statute and therefore the case was no longer admissible before the ICC. The relevant Libyan legislation provided for a conditional amnesty subject to certain procedural requirements, while it excluded from its scope certain crimes. (see arts. 2-4)
Pre-Trial Chamber I ruled that the national amnesty legislation did not apply to the case of Mr. Gaddafi due to the nature of the charges against him (para. 56). Additionally, the Chamber ruled that even if the national amnesty law did apply, amnesties such as those provided by the Libyan amnesty legislation were incompatible with international law, including international human rights law (paras. 77-78). As a result, the Pre-Trial Chamber concluded that the case was still admissible, as his case could not be considered finally tried for the purposes of articles 17(1)(c) and 20(3) of the ICC Statute.
Judge Perrin de Brichambaut appended a separate concurring opinion to the judgment. The judge agreed with the position of the majority on point. He took the view that the charges in question fell beyond the scope of the national amnesty legislation and in any event that the law was incompatible with international law and therefore without legal effect for the purposes of ICC proceedings.
The Libyan Amnesties before the Appeals Chamber
The defence submitted an appeal against the Admissibility Decision of the Pre-Trial Chamber. Ground 2 of the defence appeal brief attacks directly the findings of the Pre-Trial Chamber as regards the non-applicability of the relevant Libyan Amnesty legislation and the finding of its incompatibility with international law.
This puts the Appeals Chamber before an interesting dilemma. For present purposes, what matters is not so much whether the Appeals Chamber accepts or rejects the defence contention on the applicability of the amnesty in the case of Mr Gaddafi (and the Pre-Trial Chamber reliance on the position of national authorities to that effect).
The critical question in either scenario is whether the Appeals Chamber will move beyond the applicability discussion delimited by the narrow confines of the litigation and enter into the broader debate on the compatibility of amnesties with international law and the system of the Rome Statute. The question of amnesties was discussed during the negotiations but the ‘a’ word appears nowhere in the Court’s main instruments. A decision by the Appeals Chamber on point would be nothing short of ground-breaking.
However, notwithstanding the temptation to make legal history, the better course of action might be for the Appeals Chamber to stay its hand and avoid rendering its judgment on this highly contentious point now.
Cogent legal and policy grounds would appear to militate in favour of such an approach. From a legal perspective, under the Chamber’s own jurisprudence, a first instance decision will be reviewed only if there is an error that materially affects the decision (Al-Bashir Appeal, para. 33). Since the appeal hinges primarily on the applicability of national amnesty law to the case of Mr Gaddafi, the part of the decision on amnesties may be considered obiter dictum. This is clear from the parts of the judgment where the Pre-Trial Chamber conditions its final findings to the assumption that the amnesty law applies in the case of Mr Gaddafi (para. 78 of the judgment, para. 103 of the Separate Opinion). Therefore, whether or not the Pre-Trial Chamber and Judge Perrin de Brichambaut erred in their opinion on point cannot be considered to have a material impact to the rejection of the admissibility challenge. It is difficult to see how the Appeals Chamber could remain true to the standard of review of its own making, while at the same time repealing a first instance decision due to possible errors in obiter dicta.
As a matter of policy, there are equally sound reasons why the Appeals Chamber should avoid entering into the amnesty debate. One of them is the possible impact of its determination on another situation currently under the Prosecutor’s microscope; the situation in Ukraine.
Amnesties in the Revived Minsk Agreements
Ukraine referred the situation in Crimea and Eastern Ukraine to the International Criminal Court by means of a declaration under Article 12(3) of the Rome Statute. Pursuant to this declaration, the ICC Prosecutor opened a preliminary examination in the situation in Ukraine on 29 September 2014. In the meantime, Russia, Ukraine and other actors concluded the Minsk Protocol of 5 September 2014 (Minsk I) and effectively reiterated its content in the Minsk Package of Measures for Implementation of the Minsk Agreements of 12 February 2015 (Minsk II). However, due to their non-implementation and their failure to secure a ceasefire, it was said that the Minsk agreements were dead.
This proved to be a premature assessment. To make a very long story short (for details, see the excellent and extensive discussion by Iryna Marchuk, Ukraine and the International Criminal Court: Implications of the Ad Hoc Jurisdiction Acceptance and Beyond, (2016) Vanderbilt Journal of Transnational Law, 49(2), 323-370), on 9 December 2019, the leaders of Ukraine and the Russian Federation met for the first time in Paris, in order to discuss a peaceful resolution to the conflict in eastern Ukraine. As Reuters reported, there was considerable progress on issues such as prisoner exchange, disengagement and ceasefire.
One of the controversial points in the 2019 Paris discussions was the adoption of a national Amnesty Law in Ukraine. This was a commitment assumed by Ukraine the Minsk Agreement. In these documents, Ukraine undertook to “[e]nsure pardon and amnesty by enacting the law prohibiting the prosecution and punishment of persons in connection with the events that took place in certain areas of the Donetsk and Lugansk regions of Ukraine.”
In the Paris 2019 discussions, Russian President Vladimir Putin insisted on the need to pass an amnesty law before any hand over of Eastern Ukraine to the Ukrainian forces. Failure to pass the law, said President Putin, would bring about “a new Srebrenica”, ostensibly implying a genocide against ethnic Russian populations in the Donbas region.
This complicated situation gives rise to many questions. For present purposes, the key issue concerns the implications of an ICC Appeals Chamber Gaddafi Admissibility decision to the ongoing peace negotiations for Eastern Ukraine on the basis of the Minsk agreements.
To begin with, it is not possible to foresee the future. Ukraine has not adopted an amnesty law yet and therefore its scope, type or conditions remain a matter of speculation. However, considering the recent insistence on the part of the Russian Federation on amnesties, it becomes clear that an Appeals Chamber determination on the prima facie incompatibility of amnesties might put Ukraine in a difficult negotiating position. Effectively, it might force Ukraine to choose between the Court, on the one hand, and a peace agreement on the other. In these circumstances and considering that the situation in Ukraine was self-declared under 12(3)RS and self-referred, the Court might find itself on the losing side of the equation, to the detriment of its already beleaguered image.
To make it clear, a statement by the Appeals Chamber on the incompatibility of amnesties with the Court’s system might force Ukraine to consider withdrawing its declaration under article 12(3). Whether such withdrawal would be legally possible or whether it would have any effect to ongoing ICC proceedings is not clear. Arguably, in light of the Burundi withdrawal decision it is likely that investigations in the situation in Ukraine until the critical time would probably not be affected and the Court would recognise the Prosecutor’s authority to proceed with the relevant cases. In the alternative, the Ukrainian Government could decide to sacrifice its co-operation with the ICC as leverage for Russian concessions in a peace settlement. Interesting discussions and academic debates may ensue on conflicting legal obligations and peace v justice. In practice, however, in that situation, the Court might retain formal authority and its warrants of arrest might continue to be legally valid but still remain outstanding due to lack of state cooperation. Such a future turn of events would likely prove detrimental for the Court’s international standing and make manifest its tenuous position in situations of ongoing conflict.
This short comment looked briefly at the latest Gaddafi admissibility proceedings currently pending before the Appeals Chamber of the ICC. It sought to draw a connection between the Libyan Amnesty law under consideration and the commitment undertaken by the parties in the Minsk agreements and particularly by Ukraine to adopt an amnesty legislation in the future.
It is clear that no such amnesty legislation exists yet in Ukraine on point. It may therefore be entirely premature to raise the alarm. However, this concern is less exaggerated, considering the recent emphasis placed by the Russian Federation on the Ukrainian commitment to grant amnesties included in the Minsk accords.
Against this background, this short comment suggested that the better view would be for the Appeals Chamber to withhold its judgment on the general issue of amnesties. Arguably, as a matter of law, such a course of action would be consistent with the Chamber’s own standard of review. As a matter of policy, it would give negotiating room to the ongoing discussions concerning peace in Eastern Ukraine. Notwithstanding the temptation to make legal history, it may be that the facts in this litigation do not call for a final disposition of the amnesty question before the ICC at this point in time. The Chamber’s decision is eagerly awaited.