International Criminal Law

Guest Post: Is the International Criminal Court in Need of Support to Clarify the Status of Heads of States’ Immunities?

[Alexandre Skander Galand is a Ph.D. Candidate at the European University Institute (EUI), Law Department.] In the aftermath of the last episode of the ‘Al-Bashir saga’, one might have wondered what the International Criminal Court (ICC) will do with the last report (filed on 17 June 2015) of the ICC registry concerning South Africa’s failure to arrest and surrender Sudan's President. The answer is now clear: there will be proceedings to determine whether South Africa failed to cooperate with the ICC. Indeed, last Friday 4 September, Pre-Trial Chamber II issued an “Order requesting submissions from the Republic of South Africa for the purposes of proceedings under article 87(7) of the Rome Statute”. As it is known, the Decision of Pretoria High Court Judge Hans Fabricius on 15 June directing the various executive authorities of South Africa to take all necessary steps to prevent President Omar Al-Bashir of Sudan from leaving South Africa was overlooked by the concerned authorities. On the next day, just after the High Court handed down its decision that Al-Bashir be arrested and detained, the counsel for the South African executive authorities informed the Court that Sudan's President had already left the country. The ‘Al-Bashir Saga’ raises the question of whether it is crystal clear that Al-Bashir is not immune from the ICC and its States parties’ exercise of jurisdiction. Is the immunity of Heads of States not parties to the Rome Statute completely irrelevant when a State enforces an ICC arrest warrant? Or, must the State be deemed to have waived its immunity? If so, is a Security Council (SC) referral sufficient to waive the immunity of a Head of State? Or, must the immunity to which the Head of State is entitled under international law be explicitly waived by the SC? The ICC says: In claris non fit interpretatio Three days before the Pretoria High Court ruling, the ICC Pre-Trial Chamber (PTC) held:

“it is unnecessary to further clarify that the Republic of South Africa is under the duty under the Rome Statute to immediately arrest Omar Al-Bashir and surrender him to the Court, as the existence of this duty is already clear and needs not be further reiterated. The Republic of South Africa is already aware of this statutory duty and a further reminder is unwarranted.” (§ 10)

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

[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,