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Kevin Jon Heller

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.

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.

A Brief Comment on Jennifer Trahan’s Post About the P5

by Kevin Jon Heller

We have published a series of fascinating posts in recent days debating whether the permanent members of the Security Council have a legal obligation under the UN Charter not to veto resolutions calling for the investigation or prosecution of atrocity crimes. Jennifer Trahan argued yes; Mohamed Helal responded no; and Trahan replied yes again.

I am not convinced by Trahan’s response to Helal, but he can speak for himself. I simply want to take issue with one of Trahan’s central claims in her new post: namely, that a significant number of states reject the idea that the P5 “can veto absolutely any Security Council resolution, at complete discretion, without any concern whether their actions are consistent with other bodies of international law or the purposes and principles of the UN Charter.” Here is what she says:

The question is whether this is how one should read the UN Charter. And, whereas Dr. Helal attacks my post, as “utopian thinking” there are at least 115 States that have joined the ACT Code of Conduct and 96 States that have joined the French/Mexican initiative, both calling for veto restraint in the face of genocide, crimes against humanity or war crimes, that would likely take issue with his approach. Indeed, two of the permanent members of the Council (France and the United Kingdom) have joined these important initiatives—so even these permanent members do not maintain veto power should be unrestrained in the face of atrocity crimes.

In fact, both the ACT Code of Conduct and the French/Mexican initiative support Helal’s position, not Trahan’s. Trahan’s argument is that, as a matter of law, the P5 cannot veto a Security Council resolution calling for the investigation or prosecution of atrocity crimes. Both of the documents that Trahan cites, however, make clear states believe that, as a matter of policy, the P5 should not veto a Security Council resolution calling for the investigation or prosecution of atrocity crimes. Here is the Explanatory Note to the ACT Code of Conduct (emphasis mine):

UN Member States are increasingly expressing support for the idea that permanent members of the Security Council should voluntarily agree to refrain from using their veto in situations involving mass atrocity crimes. This initiative is actively being pursued by France, which is seeking the support of other permanent members.

And here is the French delegation to the UN explaining the France/Mexico initiative (emphasis mine):

France also promotes the framing of the use of veto by the five Security Council permanent members in case of mass atrocities.

At the United Nations Security Council, decisions are adopted with a majority of 9 votes out of the 15 votes of the Council’s members. Any decision is rejected if one of the five Security Council permanent members (China, France, Russia, The United Kingdom, and the United States of America) uses its veto power.

To avoid the paralysis of the Security Council, the President of the French Republic, François Hollande, proposed in 2013 that the permanent members voluntarily and collectively pledge not to use the veto in case of recognized mass atrocities.

Each document claims only that the P5 should “voluntarily” refrain from vetoing Security Council resolutions calling for the investigation or prosecution of atrocity crimes. Neither suggests that the P5 are under a legal duty to do so. Indeed, calling for voluntary renunciation of the veto would make no sense if the P5 were already legally obligated under the UN Charter not to veto.

In short: states’ support for the ACT Code of Conduct and the France/Mexico initiative provides significant opinio juris in favour of the idea that the P5 have a legal right to veto any Security Council resolution they oppose — even those that call for the investigation or prosecution of atrocity crimes.

Roundtable on the Siege of Eastern Ghouta

by Kevin Jon Heller

I had the pleasure of participating yesterday in a superb — and long! — panel on the 2013 siege of Eastern Ghouta. The panel discussed the facts, the law, and the politics of the siege. I was joined by Hussam Alkatlaby, the Executive Director of the Syrian Violations Documentation CentreJoost Hiltermann, programme director for Middle East & North Africa at the International Crisis Group; and Robin Peeters, the Syria Policy Officer in the Dutch Ministry of Foreign Affairs.

You can watch a recording of the event on the University of Amsterdam website here.

The panel was sponsored by the War Reparations Centre at the Amsterdam Centre for International Law (ACIL); the Amsterdam Students Association of International Law; and the Syria Legal Network.

Why Art. 4(h) of the AU’s Constitutive Act Does Not Support UHI

by Kevin Jon Heller

I like much of what Jennifer Trahan says in her recent post about the permanent veto. But I would take issue — unsurprisingly — with her claim that “there is in fact more past precedent for reliance on the doctrine of humanitarian intervention than is often recognized, including not only NATO’s 1999 intervention in Kosovo, but also African and Arab practice.” There is no need to belabour the Kosovo argument, which I have already criticised in my response to Harold Koh. Instead, I want to focus in this post on the idea that African practice provides support for a customary right to unilateral humanitarian intervention (UHI). That idea seems to be popping up with more regularity these days, as those who believe UHI should be legal cast about for a plausible argument to that effect. Marc Weller, for example, recently made a similar claim in his intemperate response to Marko Milanovic’s recent post at EJIL: Talk! on the illegality of the Syria attack:

Moreover, the African Union has in fact formally committed itself to the doctrine in its own constitutive treaties–an act that destroys the presumption that the use of force for humanitarian purposes would necessarily violate the prohibition of the use of force.

Weller is referring to Art. 4(h) of the Constitutive Act of the African Union, which has been ratified by all 53 African states have signed the Act. Art. 4(h) permits the AU’s Assembly of Heads of State and Government of the Union to authorise the use of force against a Member State that is responsible for the commission of international crimes:

The Union shall function in accordance with the following principles… (h) the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity.

Properly understood, however, Art. 4(h) of the Constitutive Act provides no support whatsoever for the legality of UHI. To see why, it is useful to begin by explaining why the case for a customary rule permitting UHI is not supported by humanitarian uses of force authorised by the Security Council under Chapter VII of the UN Charter. The reason is straightforward: the essence of UHI is that the state being attacked does not consent to force being used on its territory, and all states consent to the possibility of the Security Council authorising the use of force on their territory when they ratify the Charter. The relevant provisions are Art. 24(1) and Art. 25:

Article 24

  1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

Article 25

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

Because of Art. 24(1) and Art. 25, humanitarian intervention authorised by the Security Council under Chapter VII is by definition legally consensual — even if the state being attacked is politically opposed to the use of force on its territory.

For similar reasons, humanitarian intervention authorised by the AU’s Assembly of Heads of State and Government of the Union pursuant to Art. 4(h) of the Constitutive Act cannot be non-consensual. By ratifying the Constitutive Act, all AU members have empowered the Assembly to authorise the use force on their territory to stop the commission of international crimes. They may not like that use of force, but they have consented to it.

Humanitarian intervention authorised by the AU, therefore, no more supports the customary legality of UHI than humanitarian intervention authorised by the Security Council. In each case, the use of force in question is authorised by a supranational organisation acting on the basis of the consent of the parties that have ratified its founding treaty. That is the antithesis of the nonconsensual use of force — the constitutive feature of UHI.

A Letter to Israel About Its Plans to Forcibly Deport Africans

by Kevin Jon Heller

Opinio Juris readers might be interested in this letter from GLAN Legal — the Global Legal Action Network — to the Presidents and Attorneys General of Israel and Uganda. It was written by Itamar Mann, Yannis Kalpouzos, and Omer Shatz, with input from me. Here is the introduction:

The Global Legal Action Network (GLAN) is an organization of lawyers initiating transnational human rights litigation around the world. Our focus is on cases in which “developed” countries are responsible for violations occurring in “developing” countries. We write to respectfully warn both Israel and Uganda that the forcible deportation plan currently being discussed for Eritrean and Sudanese asylum seekers living in Israel may amount to a crime within the jurisdiction of the International Criminal Court (ICC).

The letter then proceeds to lay out the basics of the argument — which seems pretty unimpeachable to me. Note the reliance on the OPT’s recent argument concerning deportation from Myanmar to Bangladesh!

The Coming Attack on Syria Will Be Unlawful

by Kevin Jon Heller

You go to war with the President you have, not the President you wish you had.

We should keep that basic truth in mind as the US inches ever closer to war with Syria — and potentially with Russia, a far more terrifying possibility. Donald Trump does not care about civilians in Syria. He does not care about containing the spread of chemical or biological weapons. If he attacks Syria, it will be for one and only one reason: to distract attention from his collusion with Russia, his obstruction of justice, and his corruption. As Trump well knows, Americans love nothing more than high-def images of American bombs falling from the skies. No matter how many innocent civilians die (especially brown ones), an attack on Syria will give his approval ratings a healthy boost. That is all the motivation he needs.

That Trump will act with base motives does not mean, however, that an attack on Syria would be unlawful. Illegality has to be demonstrated, not assumed.

So let’s start with some basic principles. Syria is a sovereign state. Russia is using force on Syrian territory with the consent of the Syrian government. The US is not. To justify its use of force in Syria, therefore, the US would have to be acting in self-defence. If it was not acting in self-defence, it would be violating the jus cogens prohibition of the use of force that is enshrined in Art. 2(4) of the UN Charter.

With regard to its use of force in Syria against ISIS and other terrorist groups, the US at least has a plausible claim to individual and collective self-defence: the “unwilling or unable” doctrine. Readers know that I do not believe that “unwilling or unable” reflects customary international law. (For the most recent scholarly rejection of that idea, by Brunee & Toope, see here.) But the argument is not a frivolous one.

An attack directed at Syria itself, however, would be patently unlawful. Syria has never attacked US forces or interests. By contrast, the US has attacked Syria: in 2017, when it fired 59 cruise missiles at a government airfield in Shayrat; and in 2018, when it killed approximately 100 members of a pro-Assad militia who attacked a Syrian Democratic Forces headquarters. The US offered no legal justification whatsoever for the 2017 attack, and it claimed that the attack on the militia was “self-defence” — as if collective self-defence somehow permitted the US to come to the aid of a rebel group.

But that is the past. More importantly, there is no evidence — literally none — that Syria has any intention of attacking US forces. Not in the near future or in any future. If the US attacks Syria, therefore, it would not be acting in self-defence. Its attack would violate the jus cogens prohibition of the use of force. It would be, to use the accurate but loaded term, the aggressor.

And that would, of course, have two very important consequences — consequences you will not see discussed in the American media if and when the US attack begins. To begin with, Syria would have every right to use force to defend itself. It could shoot down American fighter planes. It could kill American soldiers. The only limitations on Syria’s right of self-defence would be the usual ones: necessity and proportionality.

Even more importantly, Russia would also be legally entitled to use force against the US. The right of collective self-defence is guaranteed by Art. 51 of the UN Charter and by customary international law. Just as the US invoked collective self-defence to justify attacking North Vietnam at South Vietnam’s request, Russia could invoke collective self-defence to justify attacking the US at Syria’s request. What is sauce for the American goose is sauce for the Russian gander. This is the most frightening aspect of Trump’s madness: although the Syrian military is capable of doing far more damage to American forces than Iraq’s or Libya’s militaries ever were, Russia’s military is one of the most powerful and technologically-sophisticated in the world. A hot war between Russia and the US could be literally catastrophic.

None of this jus ad bellum analysis should be remotely controversial — at least not to those who don’t believe the US has the God-given right to use extraterritorial force wherever and whenever it pleases. All of the conclusions above derive from a straightforward application of black-letter rules concerning the use of force.

That said, in recent days we have seen a number of scholarly attempts to justify Trump’s coming attack on Syria. I want to focus on one such attempt here, by my friend (and retired Maj. Gen.) Charlie Dunlap at Lawfire. Dunlap offers two potential justifications for attacking Syria: (1) self-defence; and (2) unilateral humanitarian intervention. Neither justification works.

With regard to self-defence, Charlie says the following with regard to Syria’s chemical and biological weapons:

Today, there are considerably more U.S. troops in Syria – perhaps as many as 2,000  – well within range of a number of Syrian weapons’ delivery systems.  Accordingly, it is not unreasonable to conclude that these uniquely dangerous weapons of mass destruction require an aggressive response.

Even if we assume that US troops are in Syria lawfully — a big if, given that it requires accepting the “unwilling or unable” doctrine — this argument denudes Art. 51’s armed attack requirement of all meaning. As noted above, Syria has neither attacked US troops nor threatened to do so. The mere possibility of attack — involving the mere possibility of that attack involving chemical or biological weapons — cannot justify an armed “response” by the US. To argue otherwise is to embrace preventive self-defence on steroids — going beyond even the US’s rationale for attacking the shadowy Khorosan group, where the US spokesman openly acknowledged, with regard to what armed attack the US was supposedly trying to prevent, that “I don’t know that we can pin that down to a day or month or week or six months.” At least terrorists who were possibly associated with the Khorasan group had previously attacked US interests. With regard to Syria, there is not even one previous attack to invoke.

Charlie’s invocation of unilateral humanitarian intervention (UHI) is no more persuasive. Here is what he says:

I also contended that Harold Koh’s 2013 argument about humanitarian intervention in certain narrow circumstances was supportive of a separate legal rationale for the 2017 strikes. I think the reaction of the international community to last year’s strikes is indicative of a growing consensus supporting limited interventions in select situations much as Professor Koh conceptualized, at least in the case of a clear violation of international law.

I have previously explained — in response to Harold Koh — why there is no plausible argument for the legality of UHI. The same critique applies here. I would just add that the international reaction to the 2017 attack on the airfield at Shayrat does not help the argument, for one simple reason: the US never invoked UHI as a justification for the attack. Because it did not, states were under no obligation to denounce UHI after the attack took place — as they have repeatedly done in the face of attacks (such as Kosovo) where one or two states did invoke the doctrine. What I said a few days ago regarding Israel’s 2007 Al-Kibar attack applies no less to the 2017 Shayrat attack: had the US claimed that the attack was legal UHI, the international response would have assuredly been different.

The conclusion above thus remains sound: if the US attacks Syria, it will be the aggressor and both Syria and Russia will have the right to use force against the US in self-defence.

Let me end with what I hope is obvious: this is a legal analysis, full stop. It is not a normative argument. I loathe Assad, a murderous dictator who deserves to spend the rest of his life in prison for his innumerable crimes. I understand the desire to something — anything — to prevent further violence against innocent Syrian civilians. I don’t believe, as I said in my response to Koh, that attacking Syria would contribute to that goal — particularly if it was limited to aerial warfare, as it almost certainly would be. But even if it would, the prohibition of the use of force still matters. We should not cloak acts that categorically violate that prohibition in a patina of legal respectability.

Implications of the Rohingya Argument for Libya and Syria (and Jordan)

by Kevin Jon Heller

In my previous post, I offered three cautionary thoughts about the OTP’s decision to ask the Pre-Trial Division to hold that the ICC has jurisdiction over Myanmar’s deportation of the Rohingya to Bangladesh. In this post, I want to offer a few thoughts on what a successful outcome would mean for refugee crises elsewhere — particularly in Libya and Syria.

We can start with the relatively easy case: Libya. Because of UNSC Res. 1970, the ICC has jurisdiction over any international crime committed on the territory of Libya from 2011 onwards. If the OTP’s theory of deportation is correct, it would be able to prosecute both (1) deportations from Libya committed by the Libyan government and armed forces, and (2) deportations into Libya from neighbouring states that are not members of the ICC — namely, Egypt, Sudan, and Algeria. Fatou Bensouda has already signalled interest in prosecuting “migrant-related crimes” committed by Libyans in Libya. A positive outcome to the OTP’s request in the Rohingya situation would make it possible for her to prosecute Egyptian, Sudanese, and Algerian nationals as well.

The more interesting case is Syria, given that Syria is not a member of the ICC and there is little chance the Security Council will refer the situation in Syria to the Court anytime soon. There are two scenarios worth discussing here: (1) deportations by the Syrian government or by various Syrian rebel groups into a neighbouring state; and (2) deportations by the Syrian government or by various Syrian rebel groups onto the high seas.

Going in reverse order, the ICC would have no jurisdiction over any deportation from Syria onto the high seas. There are two possible situations here: where the deported civilians drown on the high seas, and where the deported civilians make it to an ICC member-state such as Italy or Germany. In the first (profoundly sad) situation, no essential element of deportation (or of any other international crime) would have taken place on the the territory of a state party. And in the second situation, the civilians would not have been deported “directly” into the territory of a member-state — they would have been directly deported onto the high seas and only “indirectly” deported into the territory of a state party. Deportation’s “essential element” of crossing an international border would thus have taken place in Syria and on the high seas — not on the territory of a member state. This is the importance of the OTP’s repeated insistence in its request (see paras. 4, 13, and 28) that only direct deportations activate the Court’s jurisdiction.

In the second scenario, where the civilians are directly deported into a neighbouring state’s territory, a positive outcome to the OTP’s request in the Rohingya situation would mean that the ICC would have jurisdiction over any deportation from Syria into the territory of a state party. There is, in fact, only one ICC member-state that borders Syria: Jordan. Jordan would be a particularly attractive application of the OTP’s theory of deportation, given that more than 650,000 Syrians are currently taking refuge there — almost exactly the same number as the Rohingya in Bangladesh. (Though not all of the Syrian refugees in Jordan have been the victim of deportation.)

I wonder, though, what Jordan would think of the OTP opening an investigation into deportations from Syria into Jordan. Presumably, that situation would not be limited to deportations, but would also include Jordan’s own treatment of Syrian refugees. (A more tailored situation would be immediately seen for what it was — a sop to Jordan.) As Human Rights Watch has ably documented, Jordan has been summarily returning hundreds of Syrian refugees back to Syria each month, a clear violation of international law. Those actions very likely qualify as the crime against humanity of persecution, especially when Jordanian authorities specifically target for expulsion a national group such as Palestinians. So it is not difficult to imagine the OTP bringing a case involving Jordan’s expulsions as part of an investigation into Syrian deportations. Indeed, the OTP would likely find it much easier to prosecute the expulsions, given that Jordan is not only obligated to cooperate with the ICC but has long been one of its most vocal supporters. Ironically, then, an investigation into Syrian deportations might mean that a Jordanian ends up in the dock before a Syrian!

NOTE: I don’t think the Jordan prosecution I discuss above is likely to happen. I’m just teasing out the possible implications of the ICC having jurisdiction over deportations from non-member states to member-states.

Three Cautionary Thoughts on the OTP’s Rohingya Request

by Kevin Jon Heller

Major news out of the ICC today: the OTP has formally asked the Pre-Trial Division to determine whether the Court has jurisdiction over the deportation of the Rohingya from Myanmar to Bangladesh. Here is the introduction of the OTP’s brief:

1. The Prosecution seeks a ruling on a question of jurisdiction: whether the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

2. Consistent and credible public reports reviewed by the Prosecution indicate that since August 2017 more than 670,000 Rohingya, lawfully present in Myanmar, have been intentionally deported across the international border into Bangladesh. The UN High Commissioner for Human Rights has described the Rohingya crisis as “a textbook example of ethnic cleansing”, and according to the UN Special Envoy for human rights in Myanmar, it potentially bears the “hallmarks of a genocide”. The coercive acts relevant to the deportations occurred on the territory of a State which is not a party to the Rome Statute (Myanmar). However, the Prosecution considers that the Court may nonetheless exercise jurisdiction under article 12(2)(a) of the Statute because an essential legal element of the crime—crossing an international border—occurred on the territory of a State which is a party to the Rome Statute (Bangladesh).

3. Given these exceptional circumstances and the nature of this legal issue, the Prosecutor has exercised her independent discretion under articles 19(3) and 42 to seek a ruling on the question from the Pre-Trial Chamber. This will assist in her further deliberations concerning any preliminary examination she may independently undertake, including in the event an ICC State Party decides to refer the matter to the Court under articles 13(a) and 14.

This is one of the best OTP briefs I have ever read. It is rigorous, learned, and exceptionally sophisticated in its use of comparative materials. It is also far more persuasive than I expected it to be, particularly concerning the idea that the ICC has jurisdiction over a crime as long as one of its elements took place on the territory of a state party. I don’t know who wrote the brief — it names only Fatou Bensouda and James Stewart, the Deputy Prosecutor — but he or she needs to be promoted immediately.

I do, however, want to raise three concerns about the brief.

First, it is very important to understand how limited any ICC investigation into the Rohingya situation would be. There is a reason that the OTP is asking the Pre-Trial Division to offer its opinion only on deportation: no other war crime or crime against humanity necessarily involves conduct that crosses an international border. So even if the Pre-Trial Division agrees with the OTP about deportation, the Court will still not have jurisdiction over the many other crimes committed against the Rohingya. Not genocide. Not murder. Not sexual violence. Those acts have taken place solely on the territory of Myanmar.

Second, and relatedly, there is the question of situational gravity. Should the OTP investigate the Rohingya situation if it can only charge perpetrators with deportation as a crime against humanity and/or as a war crime? There is no legal reason it cannot, but imagine if the Commander-in-Chief of the Myanmar Army ended up in the dock at the ICC. Would the Rohingya be satisfied if he was not charged with genocide or murder or sexual violence? Would Human Rights Watch or the International Commission of Jurists? Deportation is a serious crime, but it doesn’t inherently involve physical violence. And it’s unquestionably not the most serious crime committed by the Myanmar military and government. So I genuinely wonder whether an OPT investigation into deportation and deportation alone would be worth it.

Third, although I find much of the brief convincing, I am not completely sold on the OTP’s argument that “an essential legal element of the crime — crossing an international border — occurred on the territory of a State which is a party to the Rome Statute.” The argument assumes that it is not possible to distinguish between crossing an international border and being on the territory of the state on the other side. But is that correct? Can we really not view crossing an international border and being on the territory of the state on the other side as two spatially distinct acts?

Although it does not directly answer the question, there is at least one situation in which civilians can cross an international border without being on the territory of another state — when they are deported to the high seas. The OTP acknowledges as much in its brief. Here is footnote 32:

As a matter of law, however, it is not necessary to prove entry to another State, but merely that the victim has been ejected from the originating State—as such, a victim may potentially be deported to the high seas. What is crucial is that the international border, de jure or de facto, of the originating State is crossed. Hence, customary international law has emphasised consideration of the kinds of borders that might suffice: see e.g. Stakić AJ, para. 300; Đorđević AJ, paras. 533-536; Prlić TJ, Vol. I, para. 47; Popović TJ, para. 892.

The first sentence of the footnote seems important — and complicating. If deportation does not actually require proof of “entry to another State,” only the crossing of an international border, how can we say that an “essential element” of deportation was committed in State Y simply because civilians happened to enter there after crossing an international border? Either entry to another state is an essential element of deportation or it is not — and the high seas example seems to point toward “not.”

This argument does not hold, of course, if an international border is somehow dual territory: the territory of State X and the territory of State Y; the territory of State X and the high seas. An international border cannot be the territory of just the State into which the civilians enter, because that would mean, irrationally, that the border’s spatial location would change depending on which State — X or Y — was doing the deporting. But if an international border is dual territory, the OTP’s theory works: crossing an international border “between” the two states would take place on the territory of both State X and State Y.

There are, in short, two possibilities. The first is to assume that an international border is part of the territory of both of the states it divides. The second is to assume that an international border is part of the territory of neither of the states it divides. The first possibility means that the OTP is correct: the ICC has jurisdiction over the deportation of the Rohingya, because at least one “essential element” of deportation — crossing an international border — took place on the territory of a state party, Bangladesh. The second possibility means that the OTP is wrong: the ICC does not have jurisdiction over the deportation of the Rohingya, because no “essential element” of deportation took place on the territory of a state party, Bangladesh. The essential elements took place either in Myanmar or somewhere that does not qualify as either Myanmar’s territory or Bangladesh’s territory.

To be honest, I have no idea which possibility is correct. I simply do not know enough about the legal status of international borders. I just think the OTP’s assumption that the Rohingya crossing the border into Bangladesh necessarily means that an essential element of deportation took place in Bangladesh is less obvious than it might first appear.

I’m really glad I’m not a member of the Pre-Trial Division right now.

The ICC’s Curious Dissolution of the Afghanistan Pre-Trial Chamber

by Kevin Jon Heller

Many ICC observers have been wondering why the Pre-Trial Chamber is taking so long to decide on the OTP’s request to open a formal investigation into the situation in Afghanistan. A little-noticed document filed by the Presidency on March 16 provides at least part of the explanation: because of  the recent judicial elections, the Presidency has dissolved the PTC that was handling the Afghanistan situation (PTC III) and reassigned the situation to a newly-constituted PTC (PTC II). Here is the relevant paragraph of the document:

HEREBY FURTHER DECIDES to reassign the situation in the Republic of Côte d’Ivoire from Pre-Trial Chamber I to Pre-Trial Chamber II, to re-assign the situation in the Gabonese Republic from Pre-Trial Chamber II to Pre-Trial Chamber I and to re-assign the situations in the Islamic Republic of Afghanistan and the Republic of Burundi from Pre-Trial Chamber III to Pre-Trial Chamber II.

The Presiding Judge of PTC III, Judge Mindua, has been reassigned to PTC II, so he will continue to deal with the Afghanistan situation. But the other two judges assigned to the new PTC II, Judge Akane and Judge Aitala, have just been elected to the Court. So PTC II now has to essentially start over with regard to the OTP’s request to open a formal investigation. Here is Kate Clark on behalf of the Afghanistan Analysts Network (AAN):

The Court had to re-assign the decision on Afghanistan to a new panel of judges (see details here). The new panel has had to start from scratch, wading through and considering all the material gathered on Afghanistan over the last decade. An ICC press release warned “it cannot be determined at present how many more weeks/months this process will take.”

I cannot find the quoted press release on the ICC’s website, but it makes sense that the Presidency’s assignment of two newly-elected judges to PTC II will slow down the Chamber’s analysis of the OTP’s request.

A question, however, still nags at me: given the importance of the Afghanistan decision — arguably one of the most momentous in the ICC’s history — and the fact that PTC III has been (actively) dealing with the OTP’s investigation request for nearly four months, why would the Presidency dissolve PTC III now? If the terms of the other two judges had expired, the decision would be understandable: even if the Presidency had assigned two experienced judges to the newly-constituted PTC II, those judges would have needed some time to familiarise themselves with the Afghanistan situation. But that is not what happened here: the Presidency simply reassigned the other PTC III judges — Judge Chung and Judge Pangalangan — to the Trial Division. That is not only problematic in terms of the resulting delay, it also means (pursuant to Art. 39(4) of the Rome Statute) that neither Judge Chung nor Judge Pangalangan will be able to hear any case that comes out of the Afghanistan investigation.

Would it not have been better to leave PTC III alone until it made a decision on the OTP’s request to investigate? I don’t see anything in the Rome Statute that required the Presidency to reassign Judge Chung and Judge Pangalangan. Judges assigned to the Pre-Trial Division normally serve for three years. Judge Pangalangan has three months left in his tenure (he was assigned to the Division on 15 July 2015), and although Judge Chung’s three years ended on March 11 (he joined the Division on that date in 2015), Art. 39(3) provides that judges who have served three years shall continue to serve “thereafter until the completion of any case the hearing of which has already commenced in the division concerned.” The language of Art. 39(3) is typically ambiguous regarding the situation/case distinction, but it’s at least arguable that the provision applies to a pending PTC decision concerning an investigation request. So, again, it does not appear that the Presidency had to reassign Judge Chung and Judge Pangalangan.

Let me be clear: I am not imputing any nefarious motives to the Presidency. I don’t believe the dissolution of PTC III was some kind of backhanded ploy to prevent the OTP from investigating the Afghanistan situation. The new PTC II will eventually authorise the investigation — the personnel changes are just delaying the inevitable. Moreover, it may well be the case that, logistically, reassigning Judge Chung and Judge Pangalangan could not be avoided. I have not systematically analysed the workload of the old judges or the qualifications of the new ones.

Once again, though, the Court’s lack of transparency does it no favours. Given the impact of the Presidency’s decision on the closely-followed Afghanistan situation, it is not enough for it to mechanically recite the various considerations in the Rome Statute concerning the assignment of judges. If only to avoid the kind of conspiracy theories that I personally reject, the Presidency needs to explain precisely why PTC III could not remain intact until it reached a decision on the OTP’s request to open an investigation.