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International Criminal Law

Guest Post: Gone But Not Forgotten–The Ongoing Case of Jean Uwinkindi at the ICTR and MICT

by Oliver Windridge

[Oliver Windridge is a British lawyer specialising in international criminal and human rights law. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations or any other organisations affiliated to the author.]

A sometimes forgotten aspect of the International Criminal Tribunal for Rwanda’s work is the transfer of 10 of its 13 outstanding cases back to Rwanda and to France for domestic prosecution. To be precise, of the 13 outstanding cases, the ICTR have transferred two currently detained accused to France (Bucyibaruta and Munyeshyaka) and two to Rwanda (Uwinkindi and Munyagishari). The remaining nine accused remain at large, of which the ICTR transferred seven to Rwanda for domestic prosecution if and when they are arrested (Sikubwabo, Ryandikayo, Ntaganzwa, Ndimbati, Munyarugarama, Mpiranya, Kayishema), while the Bizimana and Kabuga cases remain at the ICTR, or rather the Mechanism for International Criminal Tribunals (MICT), the mechanism established to carry out functions, including trying outstanding cases, after the completion of the ICTR and ICTY mandates. But even if sometimes forgotten, transferred cases are likely to come back into the spotlight this year with MICT President Theodor Meron’s landmark 13 May 2015 decision to constitute a new referral chamber to examine whether Jean Uwinkindi, the first ICTR accused to be transferred to Rwanda, should remain in Rwanda for trial or be brought back under the auspices of the MICT for trial.

As background, in 2011 Uwinkindi became the first ICTR accused to be transferred to Rwanda for domestic prosecution under Rule 11 bis of the ICTR Rules of Procedure and Evidence. This transfer was a watershed for the ICTR, and in particular the ICTR Prosecutor, who had tried and failed on several previous occasions to transfer cases to Rwanda, all of which were subsequently tried at the ICTR ( See Munyakazi, Gatete, Kanyarukiga and Hategekimana).

Uwinkindi opposed the transfer mainly on fair trial concerns, however the Trial Chamber found that Rwanda had markedly improved its criminal justice system since denying previous applications for transfer mentioned above, and granted the Prosecution’s request to transfer, which was subsequently affirmed by the Appeals Chamber . In order to allay concerns over potential post-transfer issues, particularly over the availability and protection of witnesses, the transfer decision included a monthly monitoring system, designed to ensure any material violation of Uwinkindi’s fair trial rights in Rwanda would be brought to the attention of the ICTR President so that action, including possible revocation could be considered by the ICTR (and now MICT). The monitoring system also allowed the ICTR/MICT to examine any issues over future financial constraints including any failure by the Rwandan authorities to make counsel available or disburse funds. Therefore, since 2011 the ICTR/MICT has received monitoring reports on a monthly basis (all the reports can be accessed at the bottom of this page.). Importantly, in its 2011 referral decision the ICTR also granted Uwinkindi permanent standing to petition the ICTR/MICT.

On 16 September 2013, Uwinkindi filed a request for revocation of the 2011 referral decision, stating that the Ministry of Justice of Rwanda had failed to make the necessary funds available for his defence to allow his team to contact defence witnesses and hire defence staff and that his counsel had not been paid since February 2013. On 12 March 2014, MICT President Meron, sitting as a single judge, dismissed Uwinkindi’s request for revocation, finding that the submissions on various funding issues had been either rendered moot or were still the focus of ongoing negotiations and may be subject to further review within the Rwandan courts. President Meron did not however rule out the filing of further requests for revocation should the circumstances warrant.

In March 2015, the MICT monitor filed its March 2015 report, in which it stated, inter alia, (more…)

The Most Distressing Paragraph in the Comoros Review Decision

by Kevin Jon Heller

No matter how many times I read the decision, I keep coming back to this paragraph:

51. As a final note, the Chamber cannot overlook the discrepancy between, on the one hand, the Prosecutor’s conclusion that the identified crimes were so evidently not grave enough to justify action by the Court, of which the raison d’être is to investigate and prosecute international crimes of concern to the international community, and, on the other hand, the attention and concern that these events attracted from the parties involved, also leading to several fact-finding efforts on behalf of States and the United Nations in order to shed light on the events. The Chamber is confident that, when reconsidering her decision, the Prosecutor will fully uphold her mandate under the Statute.

The Pre-Trial Chamber’s comment is mere dicta. But oy gevalt is it dangerous dicta — a dream come true for the ICC’s critics, who have always insisted that the Court’s work will be driven by politics, not law. The paragraph does indeed seem to suggest that the gravity of particular crimes is a function, at least in part, of how much attention the international community pays to them. Such a consideration not only makes a mockery of the Court’s independence, it defies common sense: just as crimes the world obsesses over might be insufficiently grave to warrant investigation, crimes the world ignores could be more than grave enough. You don’t have to be an Israel apologist to see that.

I share the PTC’s confidence the Prosecutor will indeed fully uphold her mandate. And that means she will assess the IDF’s crimes on the Mavi Marmara without regard to what the international community thinks about them.

How Not to Read the Comoros Review Decision (Updated Twice)

by Kevin Jon Heller

Here is the first sentence of Avi Bell’s new editorial in the Times of Israel:

The Pre-Trial Chamber of the International Criminal Court, for the first time in its history, has ordered the ICC Prosecutor to pursue an investigation she has decided to close.

Nope.

You’d think a law professor might make an effort to understand the Comoros review decision before breathlessly intoning “The ICC Declares War on Israel.” And you’d think a major Israeli newspaper would avoid publishing an editorial that can’t make it past the first sentence without making a fundamental — and painfully obvious — mistake.

You’d be wrong on both counts.

UPDATE: Not wanting to be outdone in terms of blatant wrongness, the Council on Foreign Relations and Newsweek have each published an article by Elliott Abrams that makes the same erroneous claim as Bell — one that, not surprisingly, cites Bell’s Times of Israel blog post. Welcome to the right-wing echo chamber.

UPDATE 2: Here is Bell’s thoughtful response to my pointing out that the very first sentence of his blog post contains a substantive error concerning the review decision:

Over the years, I have found Kevin’s comments to be not simply inane and rude, but also a distraction, and not worth responding to. I have made the mistake in the past of trying to engage him on the substance, but have never had any success in getting him to address the issues, since Kevin is unable or unwilling grapple with any law or fact that shows him or his ideology to be mistaken. Kevin’s standard comment is comprised of one or more insults of his opponent while dodging the substance, and his inevitable response to finding himself in a position he cannot defend (generally related to his antipathy to the Jewish state) is to try to shift attention to some tangential triviality. I will not be taking the bait. All the best to you, Kevin.

Notice the one thing that Bell doesn’t say — that I’m wrong. Perhaps he believes the difference between asking the Prosecutor to reconsider her decision not to investigate and ordering her to open a formal investigation is a “tangential triviality.” I doubt most people would agree.

The Pre-Trial Chamber’s Dangerous Comoros Review Decision

by Kevin Jon Heller

In late 2014, the Office of the Prosecutor rejected a request by Comoros to open a formal investigation into Israel’s attack on the Mavi Marmara. To my great surprise, the Pre-Trial Chamber (Judge Kovacs dissenting) has now ordered the OTP to reconsider its decision. The order does not require the OTP to open a formal investigation, because the declination was based on gravity, not on the interests of justice — a critical distinction under Art. 53 of the Rome Statute, as I explain here. But the PTC’s decision leaves little doubt that it expects the OTP to open one. Moreover, the PTC’s decision appears designed to push the OTP to decline to formally investigate a second time (assuming it doesn’t change its mind about the Comoros situation) on the basis of the interests of justice, which would then give the PTC the right to demand the OTP investigate.

To put it simply, this is a deeply problematic and extremely dangerous decision — nothing less than a frontal assault on the OTP’s prosecutorial discretion, despite the PTC’s claims to the contrary. I will explain why in this (very long) post.

At the outset, it is important to emphasise that we are dealing here with situational gravity, not case gravity. In other words, the question is not whether the OTP should have opened a case against specific members of the IDF who were responsible for crimes on the Mavi Marmara, but whether the OTP should have opened a situation into the Comoros situation as a whole. The Rome Statute is notoriously vague about the difference between situational gravity and case gravity, even though it formally adopts the distinction in Art. 53. But it is a critical distinction, because the OTP obviously cannot assess the gravity of an entire situation in the same way that it assesses the gravity of a specific crime within a situation.

The PTC disagrees with nearly every aspect of the OTP’s gravity analysis. It begins by rejecting the OTP’s insistence (in ¶ 62 of its response to Comoro’s request for review) that the gravity of the Comoros situation is limited by the fact that there is no “reasonable basis to believe that ‘senior IDF commanders and Israeli leaders’ were responsible as perpetrators or planners of the apparent war crimes’.” Here is how the PTC responds to that claim:

23. The Chamber is of the view that the Prosecutor erred in the Decision Not to Investigate by failing to consider whether the persons likely to be the object of the investigation into the situation would include those who bear the greatest responsibility for the identified crimes. Contrary to the Prosecutor’s argument at paragraph 62 of her Response, the conclusion in the Decision Not to Investigate that there was not a reasonable basis to believe that “senior IDF commanders and Israeli leaders” were responsible as perpetrators or planners of the identified crimes does not answer the question at issue, which relates to the Prosecutor’s ability to investigate and prosecute those being the most responsible for the crimes under consideration and not as such to the seniority or hierarchical position of those who may be responsible for such crimes.

These are fundamentally irreconcilable conceptions of “potential perpetrator” gravity. The OTP is taking the traditional ICTY/ICTR approach, asking whether the Israeli perpetrators of the crimes on the Mavi Marmara are militarily or politically important enough to justify the time and expense of a formal investigation. The PTC, by contrast, does not care about the relative importance of the perpetrators; it simply wants to know whether the OTP can prosecute the individuals who are most responsible for committing the crimes in question.

To see the difference between the two approaches — and to see why the OTP’s approach is far better — consider a hypothetical situation involving only one crime: a group of the lowest-ranking soldiers from State X executes, against the stated wishes of their commanders, 10 civilians from State Y. The OTP would conclude that the “potential perpetrator” gravity factor militates against opening a formal investigation in State Y, because the crime in question, though terrible, did not involve militarily important perpetrators. The PTC, by contrast, would reach precisely the opposite conclusion concerning gravity, deeming the soldiers “most responsible” for the crime by virtue of the fact that they acted against orders. After all, no one else was responsible for the decision to execute the civilians.

The PTC’s approach to “potential perpetrator” gravity is simply bizarre….

Guest Post: Two-thirds of 45–Does Life Mean Life at the ICTY?

by Oliver Windridge

[Oliver Windridge is a British lawyer specialising in international criminal and human rights law. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations or any other organisations affiliated to the author.]

Should “life mean life” for those convicted of genocide, crimes against humanity and war crimes and sentenced to life imprisonment? Until now there was no clear answer. However, in Prosecutor v. Stanislav Galić rendered by the Mechanism for International Criminal Tribunals (MICT) on 23 June 2015 (the Decision), MICT President Meron sets out clearly for the first time that a person convicted by the ICTR, ICTY or MICT (the Tribunals) and sentenced to a term of life imprisonment may be considered eligible for early release, in other words life does not necessarily mean life.

In this landmark decision, prompted by an early release application by Stanislav Galić, currently serving a sentence of life imprisonment in Germany where its law allows for release of prisoners serving life terms after 15 years, the decision aligns the Tribunal’s sentencing practices with current international human rights jurisprudence that prisoners serving life sentences should be afforded both the possibility of review of their sentences and a prospect of release. Referring in particular to the recent Vinter and others v. United Kingdom European Court of Human Rights Judgement, as well as guidance from the United Nations Standard Minimum Rules for the Treatment of Prisoners and the International Covenant on Civil and Political Rights that emphasize the rehabilitation of prisoners, President Meron makes clear that a sentence of life imprisonment at the Tribunals does not mean locking-em-up-and-throwing-away-the-key but instead comes with at least the possibility of early release.

The Decision also addressed when the eligibility for early release occurs. (more…)

A Legitimate Need for Disqualification in the Lubanga Case

by Kevin Jon Heller

Thomas Lubanga’s lawyer, Catherine Mabille, has moved to disqualify Judge Silvia Fernández de Gurmendi from Lubanga’s upcoming sentence review on the ground that the judge was involved in the case while working in the Office of the Prosecutor. Here are the relevant paragraphs from the motion:

11… [O]fficial Court documents show that Judge Silvia Fernández de Gurmendi acted as Chef de Cabinet for the Prosecutor, Mr Moreno Ocampo.

12. In particular, Judge Silvia Fernández de Gurmendi was engaged in that capacity during the period between the application for a warrant of arrest against Mr Tomas Lubanga and the confirmation of charges hearing in that case.

13. It follows that a reasonable observer, properly informed, must necessarily conclude that she participated in person in the investigations concerning Mr Thomas Lubanga, participated in the drafting of the application for his arrest, participated in the drafting of the detailed list of charges submitted to the Pre-Trial Chamber for examination and, in general, that she participated at the highest level of the organisation in the proceedings against Mr Thomas Lubanga until December 2006.

14. Witnesses Bernard Lavigne (P-0582) and Nicolas Sebire (P-0583) were called in this case by Trial Chamber I to “testify as to the approach and the procedures applied to intermediaries” to assist the Chamber in ruling on the Defence’s abuse of process application. They confirm that the executive committee established within the Office of the Prosecutor, of which Judge Silvia Fernández de Gurmendi was a member, was regularly consulted on the conduct of investigations and that it directed the course of those investigations.

15. Mr Sebire stated that he had himself attended two meetings of the executive committee, the purpose of which was “[TRANSLATION] to report on the investigation, the progress of the investigation and the evidence gathered by … by the time of appearing before the committee.”

The OTP does not deny that Judge Fernandez was previously involved in the Lubanga case. On the contrary, it simply insists that the test for recusal is whether “a reasonable and properly informed observer would apprehend bias by Judge Fernández in deciding on the early release of Mr Lubanga” — and that the Judge’s “sporadic and general” involvement in the case does not satisfy the test:

13. Finally, the Presidency should consider Judge Fernández’s non-operational and relatively circumscribed role in the Lubanga case resulting from her position as head of JCCD and as a member of ExCom from June 2003 to December 2006. Judge Fernandez was never directly responsible for the investigation and prosecution of the Lubanga case. JCCD is a division of the Office of the Prosecutor entrusted with conducting preliminary examinations; evaluating information pursuant to articles 15 and 53(1); providing advice on whether a reasonable basis to proceed with an investigation exists, and providing advice on issues related to jurisdiction and admissibility, and on cooperation matters. Thus, Judge Fernández would have been involved in the early stages of the proceedings in the Democratic Republic of the Congo (including the Lubanga case), in particular, in the decision to commence an investigation, and in transmitting requests for cooperation, including arrest warrants and investigative missions in the field.

14. As a member of ExCom, Judge Fernández would have participated in the general discussion and approval of the main legal and strategic documents and major investigative and prosecution activities developed by the Investigation and Prosecution Divisions with respect to all the cases from June 2003 to December 2006, including that against Mr Lubanga. However, her intervention would have necessarily been sporadic and general in nature. She was not one of the lawyers involved in investigating or prosecuting the case against Mr Lubanga; although she would have been kept apprised of and approved of various steps as the case proceeded against him during the period of her tenure at the Office of the Prosecutor, her situation is not comparable to that of a prosecution lawyer deeply involved in the case and knowledgeable of its details.

I have great respect for Judge Fernandez. I’m thrilled that she was recently elected President of the Court. And I have no doubt whatsoever that she would not be biased against Lubanga in the sentence review. But that’s irrelevant — because Art. 41(2)(a) of the Rome Statute still requires her disqualification. Here is the text of the provision (emphasis mine):

A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground. A judge shall be disqualified from a case in accordance with this paragraph if, inter alia, that judge has previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted.

The OTP admits that Judge Fernandez has previously been involved in the Lubanga case. Art. 41(2)(a) thus prohibits her from participating in the sentence review as a member of the Appeals Chamber — a judge “shall” be disqualified (not “may” be disqualified) if she has previously been involved “in any capacity” (not in a significant capacity) in the case. End of story.

The OTP, of course, disagrees. Most obviously, it insists that previous involvement in a case requires disqualification only if that involvement would lead a reasonable observer to doubt the judge’s impartiality. But that is not what Art. 41(2)(a) says. There are only two ways to read the provision: (1) as providing two different grounds requiring disqualification — appearance of bias or previous participation in the case; or (2) as establishing an irrebuttable presumption that previous participation gives rise to a reasonable doubt of a judge’s impartiality. The second interpretation is likely correct, given that the provision mentions previous participation “inter alia” as a situation in which a judge “shall” (not “may”) be disqualified from a case. Either way, though, Judge Fernandez must be disqualified from Lubanga’s sentence review.

The OTP seems to recognise that, despite its argument, nothing in the wording of Art. 41(2)(a) actually suggests that previous participation requires disqualification only if a reasonable observer would doubt a judge’s impartiality. It thus insists (para. 7) that “[t]he relevant provisions must be contextually and purposively interpreted according to the rules on interpretation of treaties in the Vienna Convention, and must be applied on a case-by-case basis.” This is typical ICC double-speak, a nudge-nudge, wink-wink to the judges asking them to ignore a clear provision of the Rome Statute simply because the OTP finds it inconvenient. The judges need to say no — although, given their history (Regulation 55, anyone?), there is reason to suspect they’ll simply do what the OTP wants.

Stay tuned…

UPDATE: I made similar points a few years ago. See here.

Ryan Goodman to Work at DoD for One Year

by Kevin Jon Heller

Ryan — friend of Opinio Juris and friend of Kevin — has been appointed Special Counsel to the General Counsel of the Department of Defense. Here is a snippet from NYU’s press release:

In his new role at the Department of Defense Goodman will focus primarily on national security law and law of armed conflict. “I am very humbled to have this opportunity to work with the General Counsel and the outstanding people of the Defense Department,” said Goodman. “I look forward to the hard work and challenges ahead in this arena of public service.”

One of the nation’s leading scholars in national security and human rights law, Goodman co-founded Just Security, a blog for the rigorous analysis of law, rights, and national security, in 2013. With Goodman serving as co-editor-in-chief, Just Security quickly achieved international prominence for providing balanced and broad analysis of major legislation and executive action, information about the impact of US national security policies around the world, and scrutiny of international legal developments in the national security area.  During his time with the Defense Department, Goodman will discontinue his work with Just Security.

I’m sad that we will not have the benefit of Ryan’s blogging for a year, but the blogosphere’s loss is the DoD’s gain. Readers know that I have reservations about academics going into government service, but I have no doubt whatsoever that Ryan — like his mentor Harold Koh before him — will be a principled, conscientious, and even courageous voice in government. Indeed, Ryan has never shied away from criticising the USG when he thinks its approach to international law has been misguided. I just regret that we will probably never get to know how he spent his year with the DoD!

Please join me in congratulating Ryan — though I think the DoD is really the one that deserves congratulations.

The Gaza Report’s Treatment of Warnings: A Response to Blank

by Kevin Jon Heller

Laurie Blank published a post yesterday at Lawfare entitled “The UN Gaza Report: Heads I Win, Tails You Lose.” The post accuses the Independent Commission of Inquiry’s report on Operation Protective Edge (“Gaza Report”) of “completely undermin[ing] the foundational notion of equal application of the law” with regard to three areas of IHL: warnings, civilian vs military objects, and compliance. None of Blank’s criticisms are convincing, but in this post I want to focus solely on her first topic, warnings. Here is what she says about the Commission’s discussion of whether Israel complied with its obligation under IHL to provide civilians in Gaza with “effective advance warning” prior to attack:

First, consider the report’s treatment of warnings, one of the precautions set out in Article 57 of Additional Protocol I.  Article 57 mandates that when launching attacks, “effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.”  The Commission examines Israel’s warnings in great detail, including leaflets, telephone calls, texts and roof-knocks, noting that the warnings often did lead to successful evacuation and save many lives.  However, the Commission found in many cases that specific phone warnings were not effective as required by LOAC, because the individuals in the targeted building would not know “in what direction to escape.” (¶ 237).

However, LOAC contains no requirement that the civilian population be able to act on the warnings in order to find them effective.  Instead, the legally correct approach is to examine whether the warnings generally informed civilians that they were at risk and should seek shelter. In other words, the legal issue is whether they were effective in transmitting a warning, not whether the civilians actually heeded them. The Israel Defense Forces routinely made individualized, specific phone calls to warn the residents of buildings to seek safety in advance of an attack on a particular building, far exceeding the requirements of LOAC. Yet the Commission bases its conclusions on the post-hoc question of whether civilians actually found shelter, which ultimately depends on a host of considerations outside the control of the attacking party.

Unfortunately, both paragraphs misrepresent the Gaza Report. Let’s consider Blank’s claims one-by-one.

[T]he Commission found in many cases that specific phone warnings were not effective as required by LOAC, because the individuals in the targeted building would not know “in what direction to escape.”

The Israel Defense Forces routinely made individualized, specific phone calls to warn the residents of buildings to seek safety in advance of an attack on a particular building, far exceeding the requirements of LOAC.

These statements are misleading. The subsection of the Gaza Report that Blank criticises focuses on Israel’s controversial use of “roof knocking,” not on its use of phone calls to civilians located in or near buildings about to be attacked. (The subsection is entitled “Roof Knock Warnings.”) Indeed, the entire point of the subsection is to explain why roof-knocking does not provide civilians with effective advance notice unless it is combined with a phone call or “other specific warnings” (¶ 239). Blank does not challenge the Commission’s conclusion in that regard. She does not even acknowledge it…

Remembering Mike Lewis

by Chris Borgen

We are very sorry to mark the passing of Professor Michael W. Lewis of Ohio Northern University.

Mike spoke and wrote with rare authority as someone who was not only a leading international law and national security scholar who engaged in broader public discourse (see his many debates, presentations, and interviews), but also as a former Naval aviator and TOPGUN graduate, who had flown F-14’s in Desert Shield and enforced no-fly zones over Iraq.

More than most, Mike appreciated how international law was actually operationalized.

We at Opinio Juris benefited from Mike’s frequent contributions to the discussion, with posts and comments on issues such as the relationship between Additional Protocols I and II,  on various aspects of drone warfare (see, for example, 1, 2, and 3), and on  “elongated imminence” and self-defenseBobby Chesney and Peter Margulies have also posted remembrances about Mike Lewis at Lawfare.

On a more personal note, I remember the first time I met Mike in person, perhaps ten years ago, at a dinner at a national security law conference. He was a great conversationalist, speaking about the need to crystallize key principles of international law in a manner that would be immediately usable by the pilots and flight crews who were actually flying sorties.

His voice was unique and it will be missed.

Fourth Annual Junior Faculty Forum for International Law

by Kevin Jon Heller

The forum is being held this week in Florence, Italy. Here is the description:

The Annual Junior Faculty Forum for International Law was launched in the summer of 2011. It held its inaugural event at the New York University School of Law in May 2012; the second Forum was held at the University of Nottingham in May 2013 and the third (and most recent) Forum occurred at the University of Melbourne in July 2014. The Forum is designed as a regular addition to the international law calendar; its founding co-convenors are Dino Kritsiotis, Professor of Public International Law in the University of Nottingham, Anne Orford, Michael D. Kirby Professor of International Law in the University of Melbourne, and J.H.H. Weiler, President of the European University Institute in Florence. The Forum will allow international legal scholars, in the first six years of their academic career, a unique opportunity to present their research work by being paired with a senior scholar in the field of international law or related fields, who will lead a discussion of their presentation within the Forum.

The fourth Forum will convene at the European University Institute in June 2015, and selected presentations from the Forum will be published in the European Journal of International Law (Oxford University Press), a practice established from the inaugural Forum.

The young scholars invited to participate this year are: Rohini Sen (O.P. Jindal Global), Kristina Daugirdas (Michigan), Ingo Venzke (Amsterdam), Anne-Charlotte Martineau (Max Planck), Oisin Suttle (Sheffield), Nicolas M. Perrone (Universidad Externado de Colombia), Deborah Whitehall (Monash), Anna Dolidze (Western), Mieke van der Linden (Max Planck), Arman Sarvarian (Surrey), Surabhi Ranganathan (Warwick), Philippa Webb (King’s College), and Maria Varaki (Kadir Has).

It should be an excellent forum. I hope readers who are young academics will consider applying for the fifth one!

Guest Post: Exploring Legal Rationales for South Africa’s Failure to Arrest al-Bashir

by Asad Kiyani

[Asad Kiyani (LL.B (Osgoode); LL.M (Cambridge) is a PhD Candidate at the University of British Columbia (UBC).]

While social and traditional media have been flooded with complaints about South Africa’s recent failure to arrest Omar al-Bashir, legal analysis of the situation has been lacking. Many have insisted that the reluctance to arrest al-Bashir is  ‘the impunity club’ disregarding legal principle and undermining the rule of law.

Yet, given the widespread insistence that the ICC has jurisdiction over Bashir and he must be arrested by anyone who can do so, there is a remarkable lack of agreement on exactly how the treaty-based ICC has jurisdiction over the sitting head of state of a country that has not ratified said treaty, and when that head of state is protected by customary law immunities (see Gaeta vs Akande, which inspired my article on the same).

For reasons of space, this post does not address the claim that there is already a rule of customary international law that provides an exception to head of state immunity. That position frequently involves the same errors: conflating the immunities of former heads of state (such as Pinochet) with incumbent heads of state, and conflating the elimination of the substantive defence of official capacity with elimination of the procedural bar of immunities. Nor does it deal with peace versus justice arguments, the specificities of South African constitutional law, or perhaps the more promising, genocide-based arguments in favour of arresting al-Bashir highlighted by Göran Sluiter. Instead, this post problematises the assertion that states refusing to arrest al-Bashir have no legal legs to stand on by highlighting four interrelated public international law issues raised by the legal pursuit of al-Bashir.

(1) There has been no reconciliation of the apparent internal contradictions in the Rome Statute: that states are obligated to carry out ICC decisions while also respecting the customary duties they owe to other states, particularly third-party states. Article 27(2) of the Rome Statute waives states’ customary protections of immunities. At the same time, Article 98(1) states that persons clothed in immunity can only be arrested by or surrendered to the Court if “the Court can first obtain the cooperation of that third State for the waiver of the immunity.”

Sudan has clearly not consented to this waiver, and is not cooperating with the Court to waive al-Bashir’s immunity. At the same time, the Court insists that al-Bashir is to be arrested. Thus States Parties to the ICC are faced with competing obligations written into the Statute itself: to arrest al-Bashir while also observing his immunity from arrest. Arguments that there is no contradiction nullify these important provisions of the Rome Statute, and ignore the treaty-law implications of doing so.

(2) Importantly, the Article 98(1) provision is not just a treaty-based rule; it is the assertion of pre-existing principles of public international law that (a) preclude placing treaty obligations on third-party states, and (b) recognize customary law immunities. Thus, even if the Court were to interpret Article 98(1) differently, or the Assembly of State Parties were to delete it from the Rome Statute (a virtual impossibility), the same restrictions would still apply to states such as South Africa because those rules exist in international law independent of the Rome Statute.

These restrictions also apply to the Security Council, even when acting under Chapter VII. While the Security Council has extensive powers in international law, the general scholarship (see, e.g., herehereherehere, and here) and jurisprudence makes clear that – contrary to Jens Ohlin’s interpretation of Article 103 of the UN Charter – the Council is restrained by the norms of customary international law. Thus, as far as al-Bashir goes, it makes no difference that the Council referred Darfur to the ICC through a Chapter VII resolution. Insisting that Chapter VII can override customary international law – no matter how awful the person protected by it may be – collapses the agreement/custom distinction first made in Article 103 of the Charter and preserved in Article 98 of the Rome Statute. Additionally, it raises the question of what legal limitations do exist on the Council, and how this interpretation fits with the Tadić court’s view (here at para. 28).

Of course, this does not render Security Council referrals null – it simply restricts the pool of situations that the Council may refer to the Court. (more…)

Guest Post: Revoking Citizenship of Foreign Fighters: Implications for the Jurisdiction of the International Criminal Court

by Ailsa McKeon

[Ailsa McKeon is a BA/LLB (Hons I) from the University of Queensland.]

Growing numbers of men and women are travelling to the Middle East to fight for ‘ISIS’. Political figures from several Western nations, including Australia, the UK, Canada and Norway, have publicly asserted that these individuals should be stripped of citizenship of their countries of origin to protect, punish and deter. Yet, however well-intentioned this strategy may appear, it could also have negative consequences for the ICC’s jurisdiction if these individuals are accused of crimes within its remit.

Revocation of citizenship is contrary to international law if it renders any individual stateless. It is possible nonetheless, as shown, for example, by Burma/Myanmar’s treatment of Rohingya people. The idea is less controversial when applied to those with multiple nationalities who would retain at least one. Regardless, revocation of citizenship in any case would be a complicating factor for ICC jurisdiction.

Art 25(1) of the Rome Statute gives the ICC jurisdiction over natural persons only. Art 12 sets out the preconditions for the ICC’s exercise of jurisdiction in relation to the crimes specified in Art 5(1). Essentially, it requires the State on whose territory the relevant conduct occurred, or of which the person accused of the crime is a national, to be a party to the Rome Statute or to have consented to the Court’s jurisdiction in respect of the particular crime alleged. The exception is where the UN Security Council, acting under Chapter VII of the UN Charter, refers a situation to the Prosecutor in which a crime within the ICC’s competence appears to have been committed. The ICC can then exercise jurisdiction whether or not the relevant State is a party. However, such referrals may be impeded by the exercise of the veto power by any of the five permanent Security Council members.

Where an individual commits acts alleged to constitute crimes within the ICC’s jurisdiction before revocation, they can be pursued as a national of a ratifying nation based on Art 12(1): that is, at the time the crime is said to have been committed, the person was a national of a State Party, which, by becoming a State Party, accepted the court’s jurisdiction over its territory and nationals. Subsequent withdrawal of citizenship cannot change that. However, the ability later to exercise that jurisdiction is a distinct issue, as will be discussed below in relation to Art 127.

In the reverse situation, where an individual commits such conduct only after withdrawal of citizenship of a State Party, the existence of jurisdiction is unlikely. It seems that in the continued absence of territorial jurisdiction, the ICC would be unable to commence proceedings due to lacking jurisdiction ratione personae. This challenging prospect presently confronts the ICC, as Western nations foreshadow action to revoke citizenship of foreign fighters. Prosecutor Bensouda released a statement in April 2015 indicating that, although the situation continues to be monitored, the Office of the Prosecutor is not currently in a position to commence investigation or prosecution of any individual involved with ISIS from a State party. As the Prosecutor observes, neither Iraq nor Syria (nor many of their neighbouring States) is party to the Rome Statute: as such, the ICC would rely on personal jurisdiction to prosecute any foreign fighter alleged to be most responsible for mass crimes. In the event that personal jurisdiction is removed, the ICC would be rendered powerless over such individuals.

The situation with respect to crimes continuing either side of revocation is more indeterminate, in the same manner as continuing crimes commenced prior to the Rome Statute’s entry into force. This is relevant because the precise point at which revocation of citizenship would take effect with respect to any particular individual under various national legislative regimes is unknown.

The most direct analogy as to loss of jurisdiction over continuing crimes arises under the Statute of the ICTR. (Similar circumstances affect the ECCC, however the issue has not been addressed there.) Art 7 defines the ICTR’s temporal jurisdiction to “extend to a period beginning on 1 January 1994 and ending on 31 December 1994”. The ICTR held in the Nahimana appeal that “[criminal] responsibility could not be based on criminal conduct prior to 1 January 1994, but… evidence of pre-1994 acts could nonetheless have probative value”. However, nothing was said in that case of conduct occurring after 31 December 1994; the same conclusion cannot necessarily be drawn regarding the evidentiary value of subsequent conduct as to possible earlier criminality in this context. Regardless, this ruling seems to confirm the view that jurisdictional limits are applied strictly, even for continuing crimes that are commenced before, but not completed until after, jurisdiction is removed. Loss of jurisdiction by the ICC would therefore prevent determination of culpability or innocence.

A less obvious parallel may be drawn with the law of diplomatic protection. Where an individual with immunity loses nationality of the State from which it was derived prior to commencement of criminal proceedings, the individual will also lose the protection of that State in respect of a wrong they committed while its national. As a result, proceedings may ensue against an individual who had held diplomatic protection at the time of allegedly committing a wrong, where otherwise they could not. However, that situation is distinguishable from the one of present concern: there, a pre-existing bar is removed so that jurisdiction is allowed, while in the case of revocation of citizenship, jurisdiction exists until its substratum is displaced by the revocation. This does not speak in favour of ICC jurisdiction existing in respect of continuing crimes where the elements of the crime are not complete until after citizenship is revoked.

A contrasting analogy may be made with the withdrawal of ratification of the Rome Statute. Art 127(2) states:

“… [a State Party’s] withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”

This provision foresees politically-motivated withdrawals and operates so that the ICC retains the ability to exercise jurisdiction over individuals already being investigated or prosecuted, despite the State Party’s ouster of its jurisdiction otherwise. Art 127 explicitly applies only to State Party withdrawal from the entire Rome Statute, operating to displace the rebuttable presumption that a treaty cannot be denounced unilaterally unless it is shown that this possibility was intended by the parties or that a right of withdrawal exists by implication from express terms.

The obverse consequence implied by Art 127(2) is that proceedings may not be commenced in the ICC in respect of the territory or nationals of a State that has withdrawn with effect as per Art 127(1). This position seems also to apply to persons whose citizenship of a State Party has been revoked, even where a continuing crime was allegedly commenced while citizenship of a State Party remained in force, for the reason observed earlier that such jurisdiction has been lost by the time the crime is complete. Further, given its specificity, Art 127 cannot be applied directly to revocation of citizenship to suggest that jurisdiction will continue over individuals whose investigation or prosecution has been commenced, but whose citizenship is subsequently revoked. Rather, in the absence of express provision to that effect, it appears that proceedings would have to be abandoned. This proposition is confirmed by the terms of Art 12(2), which relevantly provides that “the Court may exercise its jurisdiction if… the State of which the person accused of the crime is a national” is a State Party or has accepted the jurisdiction of the Court in accordance with Art 12(3). Although the crime remains within the ICC’s competence, personal jurisdiction is absent where the person is no longer a national of a ratifying State.

Were any ratifying nation to follow through with revoking a foreign fighter’s citizenship, it is arguable that this act would breach the obligation under Art 86, “in accordance with the provisions of [the] Statute, [to] cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” In fact, it would make it substantially more difficult for the ICC to pursue individuals suspected of involvement in the most egregious crimes where those crimes are not commenced or completed until after the revocation.

This issue is a live one. Foreign fighters are firmly positioned within ISIS’s leadership structure and in active operations, while allegations of war crimes and crimes against humanity have already been made against the group. There is a clear possibility that foreign fighters may warrant investigation and prosecution by domestic or international authorities. It should therefore be of concern that an essentially administrative act by a State Party may seriously impede ICC involvement where a State is unwilling or unable to proceed.