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Some Reflections on the Bemba Appeals Chamber Judgment

by Alexander Heinze

[Alexander Heinze is an Assistant Professor at the Department of Foreign and International Criminal Law, Institute for Criminal Law and Justice, Georg-August-Universität Göttingen. He is the author of the book “International Criminal Procedure and Disclosure” (Duncker & Humblot, 2014).]

In less than a month’s time, the International Criminal Court (ICC) will celebrate its 20th anniversary. Distinguished speakers will be calling into mind that the ICC was first and foremost a Court for victims – and then they will be expressing their condemnation of the recent acquittal of Jean-Pierre Bemba from the charges of war crimes and crimes against humanity, as did the recent blog posts here, here and here. It goes without saying that every aspect of the Majority Judgment, the Separate Opinions and the Dissenting Opinion deserves its own publication. However, since the ICC Prosecutor already issued a press statement strongly criticizing the Majority Judgment, and the above mentioned blogposts – written by authors who are or were affiliated with the ICC’s Office of the Prosecutor – bemoan, without waiting for the publication of Judge Eboe-Osuji’s Separate Opinion, a “lack of clarity, retroactive application of new law, and negative consequences in this and future cases”, “extremely negative consequences for the institution”, or fuel resentments by stressing that “the Court ruled that he could join his family in Belgium while he awaits sentencing in that case” (citing BBC News and adopting the report’s almost exact wording instead of referring to the actual Court decision, where Bemba’s family ties in Belgium are provided merely as a side information in a half sentence), the purpose of this blog entry is to bring the discussion back on the legal track.

With regard to the standard of review, the minority employs an approach that is well known before International Criminal Tribunals, i.e. an Appeals Chamber would only interfere where the Trial Chamber’s appreciation of the facts was wholly unreasonable, that is, where it “cannot discern how the Chamber’s conclusion could have reasonably been reached from the evidence before it” (Dissenting Opinion, para 9). While this approach carries the idea of a margin of deference to the factual findings of the Trial Chamber, the majority views this idea “with extreme caution” (Majority Judgment, para. 38). Even though the majority does support the standard of reasonableness, it clarifies that this standard “is not without qualification” (para. 41; more critically Separate Opinion Eboe-Osuji, para. 72). Thus, the majority opines it may interfere with the factual findings whenever the failure to interfere may occasion a miscarriage of justice. It had the right to deviate from the conventional approach, due to the fact that the ICC “may” but does not have to “apply principles and rules of law as interpreted in its previous decisions” (Art. 21(2) ICC-Statute – Judge Eboe-Osuji justifies the deviation also through a contextual interpretation of Art. 83(1) ICC-Statute, which seems to stretch the ratio of that provision a little too far). The application of the concrete standard of review is then a policy decision (in the same vein Separate Opinion Eboe-Osuji, para. 46) and there are good arguments for both sides (consistency of Appeals Chamber decisions and not turning appeals proceedings into a second trial vs. protection of the rights of the accused and avoiding to “consign the fate of a convicted person to the undoubted good faith of the Trial Chamber whose verdict of conviction has been appealed” (Separate Opinion Eboe-Osuji, para. 11)). There is another argument in favour of the broad approach of the majority: the ICC Appeals Chamber is not a national appeals court. There is no external review mechanism with regard to the rights of the Defendant as we know it in national jurisdictions, where a convicted person can still make an application to a regional human rights body for an infringement of his or her fair trial rights. There is also no Constitutional Court Chamber, as we know it from the Kosovo Specialist Chambers (see my blogpost here). The Appeals Chamber is very much the end of the road. It is therefore illogical when the Prosecutor in her press statement uses this fact as an argument for a “cautious approach to appellate review”. Shouldn’t it be the opposite? When there is no further appellate or revisionary body, the standard of review of the Appeals Chamber needs to be designed in a way that protects the rights of the accused most effectively. Judge Eboe-Osuji’s reasons why he thought following the conventional standard of appellate was especially inappropriate are illuminating. Everyone who evaluates the Majority Judgment as a particularly grave form of arbitrary decision making should read them in total. It is telling that even Judge Eboe-Osuji’s he leaned towards referring the case back to the Trial Chamber, he evaluated the evidential analysis by the Trial Chamber as so flawed that he preferred an acquittal over an inconclusive judgment.

The controversy around the standard of review continues in the question of how the charges must be framed and confirmed so that a conviction does not exceed the charges (Article 74(2) ICC-Statute). Bemba was convicted partly based on individual acts of murder, rape and pillaging committed against particular victims at specific times and places that had not been confirmed in the Confirmation Decision. The Trial Chamber argued that the Pre-Trial Chamber’s Confirmation Decision was broad enough so that new allegations could be included without a new Confirmation Decision. The question therefore was: How concrete must the charges be and how much evidence must the Prosecutor provide? Is it acceptable to formulate them in such a broad fashion that – exaggerated – the Prosecutor can add criminal acts whenever she wishes to do so, with leave of the Trial Chamber after the trial has begun? The minority answers this in the affirmative, which is nothing unusual from a domestic law point of view. The prosecutor enjoys discretion in formulating the charges and that rightly so. The burden of proof in the confirmation proceedings is “substantial grounds to believe that the person committed the crime” (Article 61(5) ICC-Statute) – a standard that is lower than the burden required for a conviction (“beyond reasonable doubt”). Nevertheless, even in national proceedings the opening of an investigation against a suspect and the subsequent charging creates a considerable stigma. This is all the more true in an international context where everything, especially worldwide media attention, is potentiated. The least that can be expected in that situation is a clear and fairly strict formulation (and confirmation) of the charges. The majority therefore rightly states: “Simply listing the categories of crimes with which a person is to be charged or stating, in broad general terms, the temporal and geographical parameters of the charge is not sufficient” (para. 110). Judge Eboe-Osuji concurs with this opinion, even though he disagrees with Bemba that a Trial Chamber was in principle precluded from amending the indictment after the commencement of trial, employing a teleological and contextual interpretation of Art. 74(2) ICC-Statute (in conjunction with Article 69(9)) (Separate Opinion Eboe-Osuji, paras. 118-134).

Taking both procedural questions together, it is certainly fair to say that they address the interpretation of procedural rules that can work both ways with the better arguments for the majority. This also applies to the main substantial question, the requirements of command responsibility. To make this crystal clear: No one affiliated with the implementation of International Criminal Law has an interest that leadership-level- or mid-level perpetrators go free despite their criminal responsibility while their subordinates commit unimaginable atrocities. However, the concept of individual criminal responsibility for violations of humanitarian and human rights norms is universally recognized. There should be no situation in international criminal adjudication today where this self-evident principle needs special emphasis. And yet, the catchphrase “crimes did not commit themselves” is carried like a torch through social media and even the blogosphere (see here) to light fires of outrage and open resentment to the Appeals Chamber and its majority Judges. Again, even the Prosecutor could not resist the temptation of an emotional rejection of the Appeals Chamber’s majority view, instead of entering a self-critical analysis of its work.

In contrast to the minority opinion, it found that Bemba took all necessary and reasonable measures to prevent or repress the commission of crimes by applying a rather realistic set of criteria: Bemba was a “remote commander” with “non-linear command” in a foreign country (Majority Judgment, para. 171) and therefore faced limitations in controlling his troops. The minority disagrees: Even though Bemba as a remote commander faced “logistical difficulties” (Dissenting Opinion, para. 57), the evidence showed that it was possible to overcome these difficulties. The majority generally was of the view that a commander cannot be expected to do the impossible, taking any preventive measure, no matter how unrealistic they would be. Instead, the formula of the majority is rather clear, echoing the principle of individual criminal responsibility:

“The trial chamber must specifically identify what a commander should have done in concreto. Abstract findings about what a commander might theoretically have done are unhelpful and problematic, not least because they are very difficult to disprove” (Majority Judgment, para. 170).

Moreover, what a commander should have done in concreto is not for the accused to show, but for the Trial Chamber. When determining whether the measures the commander had taken were necessary and reasonable, the motive to counter public allegations and rehabilitate the public image of the subordinates does not intrinsically render the measures “any less necessary or reasonable” (Majority Judgment, para. 177; Separate Opinion Eboe-Osuji, para. 16) – even though the commander is required to act in good faith in adopting such measures and must show that he “genuinely” tried to prevent or repress the crimes in question or submit the matter to the competent authorities. Again, these legal aspects require much closer analysis than this, as has been done with the latter aspect (Bemba’s motivation) here.

Considering the remarks of the majority and reading the separate opinion, it becomes clear that the Defense’s call for a more realistic approach to command responsibility that takes into account the specific operative situation of the commander has been heard, at least by the majority of the chamber. Judge Eboe-Osuji’s very detailed and thorough engagement with the arguments brought forward by Defense Counsel show how much of an impact the actual hearing had on the majority’s opinion (read, for instance, para. 247: “It was wise, indeed, of Ms Gibson to have readily accepted the endangerment rationale on behalf of the Defence during the oral hearings. Notably, however, co-counsel Mr Newton, was not as forthcoming. […]). The separate opinion touches upon further controversial criteria of command responsibility that are certainly noteworthy from an academic point of view, even though they are not part of the majority judgment but rather an obiter, since there was apparently no consensus between the judges in that regard. For instance, the separate opinion of Judges van den Wyngaert and Morrison provides an excellent analysis of the subjective element in Article 28, explaining why it matters whether the accused is charged with/convicted of “knowing” the crimes of his/her subordinates or “should have known” the crimes – both standards trigger different obligations for the commander and must therefore be proven differently, what made the Trial Chamber’s notice under Regulation 55 of the Regulations of the Court to characterize the charges from “knowledge” to “should have known” defective (Separate Opinion, para. 39). The minority, by contrast, saw no harm in that, based on a “unitary standard for the mental element” (Dissenting Opinion, para. 266).

The fundamental differences about a possible causation element mirror the unclear legal nature of Art. 28. This unclear legal nature is best captured by Judge Eboe-Osuji, whose journey through the familiar classifications of Art. 28 as dereliction of duty on the one hand and accomplice liability on the other hand leads him to the rather surprising destination of command responsibility as “endangerment liability”: Since armed conflicts are “notoriously dangerous”, Art. 28 seeks to “protect innocent victims from the risk of the excesses that is so notoriously a feature of armed conflicts” (para. 243). Thus, it was not necessary that the defendant’s conduct caused the actual; proof of the creation of danger was sufficient “in the sense that the commander’s complicity in the subordinates’ crimes originated when (s)he created or fostered the danger of the subordinates’ criminality (by training them, arming them and/or deploying them, so as to be able to commit those crimes), and that complicity was consummated when (s)he failed to exert authority (that was effectively available to be exerted) properly to prevent or repress the crime (including through punishment), when s(he) knew (or should have known) that the subordinates were committing or about to commit such crimes.” (para. 251). This is indeed a novel approach, reminiscent of the theory that complicity was a crime of endangerment (as proposed in Germany by Herzberg, Goltdammer’s Archiv für Strafrecht 1971, pp. 1 et seq.). It is for another publication to enquire whether this theory can and should be transferred to command responsibility. The Dissention Opinion and Judges van den Wyngaert and Morrison in their Separate Opinion follow the conventional path of this debate: While the former justifies the causation element in convincing fashion, the latter rejects it based on the argument that it was “not possible that an omission after a fact has occurred (that is, failure to refer criminal behavior to the competent authorities) causes this fact”. This might be true but is a too easy escape route. In case the crimes have already occurred, it is indeed hard to construct an omission. However, viewing the omission with regard to future crimes that might be committed as a result of it, a “hypothetical” or “quasi”-causation can indeed be construed. Unsurprisingly, the separate opinion rejects the view that the commander’s omission can increase the risk of the commission of crimes, as it was held by the Judge Steiner in her Separate Opinion to the conviction decision (Separate Opinion Steiner, para. 19). This rejection seems to be based on a misunderstanding of that view when Judges van den Wyngaert and Morrison opine that the failure of the commander to act does not increase the risk but “[t]he responsibility of the commander is precisely to decrease the risk that his/her subordinates will commit crimes. Failing to reduce a risk can hardly be seen as causing the manifestation of said risk.” However, the theory of increasing risk (see esp. Ambos, in: Stahn (ed.), The Law and Practice of the ICC, 2015, pp. 603 et seq.) is exactly about the question, whether the ex ante formulated norm, even when viewed ex post, still appears to contain a prohibition that reduces the actual harm. Thus, of course the norm in itself is about harm reduction, while the act might increase it. The minority view – by contrast – takes this into account and justifies the causation element in convincing fashion.

In sum, in a very narrow decision, the majority of the Chamber did what it is supposed to do – review a Trial Chamber decision on the basis of the law. It goes without saying that it would be inappropriate to applaud this decision as a victory of criminal doctrine and procedural sophistication. There are no winners. Thousands of victims will have been left in shock by the Appeals Chamber judgment. However, it would also be inappropriate to bemoan the decay of everything the ICC stands for. Not sacrificing the rights of the accused on an altar of grand gestures by the world community (such as the “need to send a clear signal globally that such abhorrent crimes must not go unpunished” [ICC Prosecutor] or a “promise of accountability” [Amann]) is certainly a decision that should find – despite its controversy – support.

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.

(Re)deportation of Activist Lawyer Highglights Continued Judicial Independence in the Face of Crumbling Rule of Law in Kenya

by Tim Fish Hodgson and Simphiwe Sidu

[Tim Fish Hodgson is a Legal Adviser at the International Commission of Jurists and Simphiwe Sidu is a Legal Research Consultant for the International Commission of Jurists.]         

Miguna Miguna is a prolific Kenyan activist and lawyer who describes himself as a “General” in National Resistance Movement (NRM) Kenya. He ran to be elected as Governor of Nairobi in Kenya’s controversial 2017 elections. He is therefore a rival to current Kenyan government.

Over the last few months the Kenyan government has aggressively pursued Miguna’s deportation from the country. The manner in which his deportation has been pursued, understood in the context of Kenya’s current political crisis, highlights the resilience of Kenya’s robustly independent judiciary, previously noted here. In the face of increasingly polemical attacks on the judiciary by senior executive officals, including President Kenyatta himself, the judiciary’s independence continues to act as a firm bulwark against the otherwise crumbling rule of law in Kenya.

According to a recent Kenyan Appeal Court judgment, on the morning 2 February 2018 officers from Kenya’s Directorate of Criminal Investigations and the Inspector General of Police “blew up the gate and entry door to [his] house using military detonations [and] destroyed [his] property”. The officers did not identify themselves, were not wearing uniforms, were driving unmarked vehicles, did not read Miguna his rights before detaining him and refused his requests for access to legal counsel.

Why was Miguna arrested?

Miguna was held without charge that day – and without access to physicians, advocates family and friends – and was not charged until 6 February 2018 when he first appeared in front of a Magistrate. The eventual charges include “administering of an oath to Raila Amollo Odinga purporting to bind [him] to commit a capital offence of treason”; organising a public meeting without notice; and professed membership in an “organized criminal group” – the NRM.

Odinga, the leader of the opposition in Kenya claims to have legitimately won the 2017 elections which, were invalidated by Kenya’s Supreme Court after Kenyatta had been delcared the winner. The Court held that the election was riddled with “irregularities” that were “so grave that they … affected the credibility of the election and [its] results”.

Miguna has both Canadian and Kenyan passports having lived in Canada for a number of years from 1988 while in exile. This has for years been used by his political rivals who have publicly labelled him a “foreigner”. The Kenyan government insists that it intends to deport Miguna “home” to Canada because he is not a Kenyan citizen. Though he holds a Kenyan passport issued in 2009, in a statement the government claimed that Miguna unlawfully acquired this passport while he was working for then Prime Minister Odinga. This, they argue, was unlawful because he still held Canadian citizenship and dual citizenship was not legally permitted at the time.

In terms of Article 17(2) of Kenya’s current Constitution enacted in 2010, Miguna can only have his Kenyan citizenship revoked if: a) it was “acquired by fraud”; or b) his parents were “already citizens of another country” at his birth; or c) if he was older than eight years when he was “found” in Kenya. Miguna’s response to the government’s claims that he is a foreigner is that “the Constitution is crystal clear: no one can invalidate or purport to cancel the citizenship of a Kenyan born citizen.”

Disregard for court orders and legal process

The Magistrate ordered that Miguna appear in front of the High Court by 3pm that same day. Instead Miguna claims to have been physically threatened and searched before his passports were illegally seized. He was then driven to the airport for deportation against his will.

Meanwhile the Court of Appeal records that High Court Judge Kimaru was “duped” into waiting at High Court until 7pm under the belief that Miguna would be brought before him. On discovering that Miguna was instead in the process of being deported to Canada, the Judge found that Miguna’s deportation was unlawful. Finding that the deportation showed “obvious contempt of the orders of this court and a deliberate attempt by State agencies to subvert the Rule of Law”, Judge Kimaru ordered that Miguna must be allowed to return to Kenya at the expense of the State, on a day chosen by him. He also held the various government officials who had disobeyed these orders in contempt of court for flagrant violations of court orders.

It is these decisions that four applications brought by senior executive officials sought to appeal to the Kenyan Appeal Court (the officials include the Cabinet Secretary, the Minister of Interior, the Director of Criminal Investigation, the Inspector General, the Director of Public Prosecutions and the Director of Immigration Services). The applications sought to overturn the contempt order and stay of execution of the decision to grant Miguna the right to return to Kenya. Given the apparent disregard for the rule law by executive officials, bemusingly, counsel for the applicants told the Court that “If we do not follow the law there would be anarchy. If we do not follow the law we shall be doomed”. Because of the “mischief” that might result from Miguna’s return, he therefore implored the Court to stay Miguna’s return.

Court of Appeal rules that Miguna must be returned to Kenya

Much of the Court of Appeal’s decision rides on the universal legal principle that the rule of law requires that court orders are obeyed by those whom they direct to action. This, the Court emphasized, applies to every person regardless of their status in society and “it is not for any party; be he high or low, weak or mighty and quite regardless of his status or standing in society, to decide whether or not to obey; to choose which to obey and which to ignore or to negotiate the manner of his compliance.”

To prevent the “constitutional edicts of equality under the law, and the upholding of the rule of law” from becoming “mere platitudes” instead of “present realities” the Court made it clear that it is required to “deal firmly and decisively with any party who deigns to disobey court orders”. This it concluded also serves “to preserve [the Court’s] authority and dignity”.

In these applications, the government argued that returning Miguna to Kenya would result in irreversible prejudice that might make future proceedings redudant. The Court of Appeal rejected this argument, finding that if anything Miguna should have the right to defend himself in a fair trial in Kenya. Nor, it concluded did Miguna’s return present any “clear and present danger of social upheaval or break down of law and order”. At most it noted Miguna’s return presented the possibiility of “some embarrassment” to the executive officials responsible for the deportation.

The overall result, therefore, was that while the Court permitted the appeal against the contempt proceedings to continue, it found that Miguna must be allowed to return to Kenya. Miguna’s return on 26 March, however, did not go as planned.

Assault, further contempt for court orders and Miguna’s re-deportation

Upon Miguna’s return to Kenya, he was deported again. This time he was detained at the airport for three days before he was put on a flight to Dubai. Miguna claims that he was drugged and beaten before being put on this plane. Journalists have claimed that they too were assaulted by the police during this process. During this period, on 27 March, High Court Judge Aburili ordered that Miguna be released and be presented in Court the next day.

When the matter came before Judge Odunga on 28 March he summoned the executive officials involved in the deportation including Internal Secretary Fred Matiang’I to appear before him personally. When they failed to appear in court as instructed, Judge Odunga once again found the officials in contempt of court and liable to pay fines of approximately $2000 each.

Miguna’s deportation in context: judicial independence and the crumbling rule of law in Kenya

Deepening the glaring divide between judiciary and the executive, Matiang’I reacted by sharply critcizing the the judiciary in startling terms. Matiang’I is quoted as saying “there is a group of judges trapped in an unholy alliance with civil society groups and activist lawyers intent on embarrassing the government”.

Making matters worse, he continued to say that there “is an evil clique of judicial officers who want to drag us by the collar through trial by the public court”. Current President Uhuru Kenyatta called the Supreme Court “wakora” (crooks) after it invalidated his election victory in 2017.

Even before the election the Kenyan Judicial Service Commission condemned the “emerging culture of public lynching of judges and judicial officers by the political class” as a “vile affront to the rule of law”.

In early February, the Kenya section of the International Commission of Jurists too condemned “the increasing and blatant disregard of Court Orders by the State and its agents” noting that “many lives were lost and sacrifices made in order to ensure that Kenyans enjoy their guaranteed fundamental rights and freedoms” under the rule of law.

Despite the growing tension between the judiciary and the executive in Kenya, in its unanimous judgment, the Court of Appeal demonstrated its strong commitment to upholding the rule of law in the face of significant political pressure. In doing so it – alongside many other Kenyan judges – merely performed its duty in terms of Kenya’s Constitution which firmly entrenches the rule of law as one of its “national values and principles of governance” alongside dignity, equality and social justice. The performance of judicial duty, which is a far cry from acting as an “unholy alliance” or “evil clique”, is an expression of the judiciary’s independence.

Understood in its legal and political context, Miguna’s deportation highlights the magnitude of threats to the rule of law in Kenya and the potentially far-reaching consequences. As a South African court has put it “If the State… does not abide by court orders, the democratic edifice will crumble stone-by­ stone until it collapses and chaos ensues.”

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.

Aggression and Criminal Responsibility (for Whom?)

by Nikola Hajdin

[Nikola Hajdin is a doctoral candidate in international law at Stockholm University and a fellow at the Stockholm Centre for International Law and Justice]

On December the 14th, 2017, the Assembly of States Parties to the Rome Statute adopted a resolution that activates the International Criminal Court’s (ICC) jurisdiction over the crime of aggression (CoA). After the adoption of aggression amendments in 2010 in Kampala, controversy arose regarding the scope of its jurisdiction (for a brief overview on what has been happening in the last seven years, see here and here). In this post, however, I draw attention to yet another of many conundrums that the Office of the Prosecutor (OTP) will ultimately have to deal with—namely, the outer limits of criminal responsibility for the CoA.

The problem with the CoA’s leadership nature

Article 25 of the Rome Statue—labeled ‘Individual criminal responsibility’—stipulates that a person who commits a crime under the ICC purview is individually responsible and liable for punishment. Paragraph 3 of the Article echoes what has been now broadly accepted as a ‘differentiation model’ of participation, whereby perpetrators commit crimes (a) and accessories merely contribute to their commission (b-d). Or, in words of ICC Trial Chamber II, perpetrators’ conduct constitutes commission of the crime, whilst accessories’ is solely connected to the commission of someone else’s crime (see Katanga judgment, para.1384). Added in 2010, paragraph 3(bis) nevertheless reads:

In respect of the crime of aggression, the provisions of this article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State.

This so-called leadership clause (similarly mentioned in Article 8bis(1) as well) narrows responsibility to those in position to ‘control or direct’ state policy. This is nothing new for the CoA. Since the 1940s, aggression has been perceived as a leadership crime—a ‘supreme crime’ that may be committed only by the highest state officials. This is one of the main conceptual differences between the CoA and other crimes under the ICC’s jurisdiction. The latter are usually perpetrated by common foot soldiers and masterminded by leaders, whilst commission of the CoA is exclusively reserved to state leadership. This leadership nature adds an additional layer to the system of imputation of criminal responsibility: before the assessment of who committed and who assisted the crime in terms of Article 25, the ICC has to identify leaders that meet the requirement of ‘control or direct’ standard. This raises the question of what it means for an individual to qualify as the leadership of a state.

Different approaches to ‘control or direct’

To predict how the OTP and ICC will interpret ‘control or direct’ is challenging. Even worse, there’s no analogous jurisprudence: the leadership clause in the Nuremberg era was a lower standard ‘shape or influence’ (see High Command, p.488). An easy case for prosecution is the highest political and military state officials. A harder one is with non-immediate, civil society leaders who contribute to acts of aggression, yet do not have any formal a priori relationship with the state apparatus: e.g., business leaders whose companies sell weapons that are used in an aggressive war. (This issue was already raised by Heller in 2007.)

Here I will lay out three possible approaches to the ‘control or direct’ standard: ‘effective control’ from superior responsibility; ‘control’ from the ‘control over the crime theory’; and ‘control’ from the ‘overall control’ test.

One way to inform interpretation is to rely on the ‘effective control’ standard from the doctrine of superior responsibility (Article 28 of the Rome Statute). Effective control is defined as ‘the material ability to prevent offences or punish the offender’ (see Popović et al. Appeal Judgment, para. 1857). In a vast bureaucratic apparatus, once an aggressive policy has been devised, only a few people may prevent acts of aggression from happening. Even fewer are capable to use their authority to bring the offenders to justice. Accordingly, it is questionable whether anyone apart from the highest state leadership would be able to meet this requirement. Be that as it may, there’s nothing in the CoA definition suggesting this rather elusive standard. So there is room for a less stringent interpretation.

Another possibility is the ‘control over the crime’ theory and its definition of ‘control’. The contours of this theory may indeed give some guidance in interpreting the CoA’s leadership clause. In its variant of co-perpetration, control means the power to frustrate the commission of the crime by not performing essential tasks. Those who are assigned essential tasks have joint control over the crime (see Lubanga Confirmation Decision, para. 342).

The problem with this theory, however, is that its normative nature is different from ‘control or direct’. The ICC has developed the ‘control over the crime’ theory in order to distinguish between principals who commit the crime (by virtue of their control over it) and accessories that merely participate in the commission of someone else’s crime. In this vein, principal responsibility is ascribed to direct perpetrators — those who carry out material elements of the crime (‘with blood on their hands’) — and to masterminds who are often far behind the scenes — those who devise a criminal policy that sets in motion the chain of events leading towards commission of the crime (‘without blood on their hands’). By contrast, the CoA’s ‘control or direct’ standard purports to limit both perpetratorship and accessoryship to the policy level. Only when the policy level leaders are identified could the ‘control over the crime’ theory be applied to assign responsibility. But if the ‘control over the crime’ theory is used to determine leadership for the CoA, the same standard could not be re-applied to distinguish between perpetrators and accessories, because those in ‘control’ pursuant to the ‘control over the crime’ theory are regarded as perpetrators. Consequently, all participants in the crime of aggression would be labeled as perpetrators. This outcome might be normatively satisfactory to some (proponents of the unitary participation model), but it would be incoherent under the differentiation model of individual criminal responsibility. There needs to be room for accessoryship as well in the CoA, as Article 25(3bis) suggests, and therefore the standard of ‘control’ has to be different from the ‘control over the crime’ theory.

The third possibility might be to define ‘control’ as equivalent to ‘overall control’ test set forth in Tadić. In an article published earlier this year, I suggested this approach, whereby both the immediate and non-immediate state leadership are covered by the current definition of the CoA. This standard was examined in the context of responsibility of a state for the conduct of private individuals (or groups), rather than the responsibility of individuals for the action of a state. That notwithstanding, the analysis could be useful for the CoA as it identifies the position of (overall) control. However, the rationale behind the interpretation goes in the opposite direction, focusing on the individual and his degree of control over state policy. Based on jurisprudence and scholarship, I conclude that as long as a person has an ‘impact’ on the policy, he should satisfy the ‘control or direct’ requirement. I acknowledge, however, that ‘impact’ is not a very precise term and as such is not easy to define.

It bears stressing that this approach does not overly broaden criminal responsibility for aggression. Current doctrine requires the mens rea of dolus directus, which is already cumbersome for the prosecution. Specifically, the OTP has to prove that the perpetrator acted purposefully, i.e. he was aware of his position of ‘control’ and consequences of his deeds, and he consciously chose to engage in the conduct or cause a result. Only those who acted in this way can be prosecuted for CoA.

In short, once leaders are identified, the ‘control over the crime’ theory should be used to distinguish between perpetrators and accessories.


Once seen as a ‘supreme crime’, today the CoA has a different social value. Experience from the international criminal tribunals shows that other crimes have the capacity to stigmatize the highest state leaders for their misdeeds. Certainly, the ICC’s CoA will not stop violence between states. It is, moreover, an open question when we will see the first aggressors sitting in the dock in The Hague. Nonetheless, it should be clear that the CoA is not reserved for high political and military leaders. The ICC or any other court should bear this in mind when interpreting the leadership standard. Civil society leaders, such as industrialists, ought to be prosecuted as long as their impact on the governmental policy is substantial and they meet the actus reus and mens rea of the CoA. Every criminal law system in the world, as peculiar as it can be, recognizes the responsibility of those who furnish the murder weapon. The crime of aggression should be no exception.

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.

Propaganda and Accountability for International Crimes in the Age of Social Media: Revisiting Accomplice Liability in International Criminal Law

by Talita de Souza Dias

[Talita de Souza Dias is a DPhil Candidate and a Tutor in Public International Law and International Criminal Law at the Faculty of Law, University of Oxford.]

In the past few weeks, there have been a series of news reports on the role that data-mining firm Cambridge Analytica played in the outcome of the 2016 US elections, which led to Donald Trump’s controversial victory (see, e.g., here and here). In essence, the corporation is being accused of manipulating the results of that election, especially by harvesting protected personal data from Facebook and by making targeted posts on this and other social media platforms, including with the aim of discrediting other candidates and spreading fake news. Significantly, there have also been allegations that Cambridge Analytica has been employing similar marketing tactics in Kenya for the purposes of manipulating the country’s 2013 presidential elections, and the primary elections that took place earlier this year, in favour of Kenya’s President Uhuru Kenyatta (see here, here and here). According to the company’s website, it collected data on the ‘electorate’s real needs (jobs) and fears (tribal violence)’ to ‘draft an effective campaign strategy’. Footage obtained from a hidden camera also shows one of Cambridge Analytica’s managing directors admitting to the company’s role in rebranding Kenyatta’s entire party twice, such as by drafting speeches and manifestos, managing their media campaign, and ‘stag(ing) the whole thing’. In light of these allegations, and Kenya’s recent history of post-election violence, there have been fears that the company’s marketing strategies might contribute to yet another wave of ethnic hatred and physical confrontation in the country (see here). It is important to recall that Kenya’s 2007 post-election violence gave rise to an investigation and a series of prosecutions before the International Criminal Court (ICC), including against Kenyatta.

To be sure, war propaganda and the involvement of the media in the commission of international crimes are not new phenomena, as the examples of Nazi Germany and Rwanda testify. However, the use of social media adds a new lawyer of complexity and raises a series of new questions on the international criminal responsibility of the individuals involved in marketing campaigns such as the ones orchestrated by Cambridge Analytica. Two such questions are of particular relevance. First, is the contribution to an election campaign, or the manipulation of an election sufficient to engage the individual criminal reasonability of social media operators for any ensuing international crimes? Secondly, in what other ways the use of social media can give rise to international criminal responsibility?

Since we are talking about the use of social media to assist with or contribute to the commission of international crimes by other individuals, it is accomplice or accessorial liability that is most relevant to our scenarios. In particular, there are two key modes of accomplice liability that could potentially fit the factual pattern at hand, namely, aiding and abetting, or instigating, soliciting, inducing and inciting (or simply ‘instigation’). Under customary international law (CIL) and in the Rome Statute of the ICC, the objective and subjective elements of instigation have not been subject to any significant controversy. Indeed, under both CIL and the Rome Statute, instigation requires conduct that prompts, drives or causes the principal perpetrator to commit the crime. Thus, the instigation must be a ‘clear’ or ‘direct’ contributing factor to the commission of the crime. This does not mean that the contribution must be essential to the crime, but it must have substantially contributed to it. As to the mental element, the default standard in either regime seems to apply: under CIL, intentional conduct must be coupled with knowledge of the substantial likelihood of the crime (i.e. recklessness), whereas in the Rome Statute Article 30 requires intent both in relation to the conduct and the result (i.e. intention or dolus directus).

The picture is somewhat blurrier when it comes to aiding and abetting. On the one hand, the objective elements of this mode of liability seem to be same under CIL and the Rome Statute: although a substantial or significant contribution is required, this broadly includes any contribution that is more than a de minimus. Thus, what separates an inadvertent contribution from aiding and abetting is the mental element. Again, the mental element in the Rome Statute differs from the one under CIL. After some confusion in the case-law of the ICTY as to whether or not ‘specific direction’ was required for aiding and abetting, it now appears to be settled that, under CIL, knowledge is the requisite mental element for that mode of liability. Thus, the accused must know that his/her conduct assists, or is substantially likely to assist a specific crime. As to the Rome Statute, Article 25(3)(c) requires the aider to have ‘the purpose of facilitating the commission of [the] crime’. Thus, the ICC has held that Article 30’s default requirement of intent also applies to aiding and abetting (see, for instance, the recent Appeal Judgement in the Bemba et al. case, paras 1390-1391, 1399-1401). Nonetheless, in an attempt to address neutral or non-criminal types of assistance, some commentators have proposed a restrictive interpretation of aiding and abetting (see, e.g. Kai Ambos’ post on the evacuation of civilians in Syria and the Separate Opinion of Judge Fernández de Gurmendi in the Mbarushimana Appeals Confirmation Decision). The idea is to require, aside from a minimum and purposeful contribution, some normative nexus between the aider and the principal’s conduct. Although it is not very clear what such normative standard entails, it appears that it is mainly based on the unlawfulness of the assistance and on the fact that it increases the risk of the commission of the crime. The same interpretation has been applied to the Rome Statute’s residual mode of accomplice liability under Article 25(3)(d). However, this provision seems to be less demanding than Article 25(3)(c), in that it only requires the accomplice to have knowledge that a certain group has the intention or common purpose to commit a crime.

Applying this law to our relevant factual scenarios, it seems that assistance to the election of an individual who turns out to be a perpetrator of international crimes, by means involving the use of social media, could potentially amount to instigation or aiding and abetting under CIL and Article 25(3)(b) and (c) of the Rome Statute, or to the residual mode of liability under Article 25(3)(d) of the Statute. This is because, as the example of Cambridge Analytica shows, social media can be a powerful if not decisive tool for putting such individuals in a position to commit international crimes, such as crimes against humanity, genocide, war crimes and the crime of aggression. It can also shape their political agendas and discourse, and so directly influence the commission of such crimes. However, the accomplice must either act with knowledge of the principal’s intent to commit the crime(s), or share the latter’s intent. In addition, if one adopts a restrictive interpretation of accomplice liability, the lawfulness of the accomplice’s contribution would be a decisive factor. In this regard, there seems to be general agreement that the use of unauthorised personal data is unlawful in most domestic legal systems and under international law (it is at the very least a breach of the human right to privacy). However, it remains open to question whether targeted posts which influence the behaviour of the electorate are unlawful under either body of law. Although it is likely that derogatory posts on social media can amount to an unlawful contribution (as these may constitute defamation, slander or libel in many domestic legal systems), it is unclear what other types of posts can have the same legal qualification.

Regarding other types of assistance, it seems that social media has countless ways of influencing or contributing to the commission of international crimes. In particular, following the footsteps of Nazi war propaganda and RTL’s radio broadcasts in Rwanda, social media can be used to instigate or incite the commission of international crimes by the masses. In addition, data-mining or harvesting can also be used in the planning or preparation of international crimes, especially those targeting predominantly civilian populations, such as crimes against humanity and genocide. If it is proved that such acts substantially contribute to those crimes and that the accomplice acts with the requisite knowledge or intent, then accessorial liability could be engaged under CIL and the Rome Statute, as instigation, aiding and abetting, or the ICC’s residual mode of liability.

Furthermore, aside from accessorial liability for the acts of others, social media operators could be held responsible for their own acts, as principal perpetrators. This could be the case if such acts consist of direct and public incitement to commit genocide, or hate speech as an underlying act of crime against humanity (if made in conjunction with other acts that severely deprive individuals of their human rights). Their acts could also fall under superior responsibility of civilians under CIL or Article 28(b) of the Rome Statute, provided that they have effective control over social media platforms, actual or constructive knowledge of the commission of international crimes by their subordinates, and fail to prevent or punish such crimes.

In conclusion, the use of social media to manipulate elections and to provide other types of assistance to international crimes can potentially give rise to individual criminal responsibility under international law. In addition to the contribution itself, other objective and mental elements must still be proved, but such responsibility cannot be ruled out. Importantly, the ICC still has jurisdiction of over the situation in Kenya, and it may well re-open its investigation and prosecutions on this matter. It also has jurisdiction over similar scenarios taking place on the territory of its states parties and acts committed by nationals of such states, at the very least. In addition, domestic courts also have jurisdiction over similar facts, including under the principle of universality, at least when they amount to crimes against humanity, genocide and war crimes.

Why Al-Kibar Does Not Contribute to Pre-Emptive Self-Defence

by Kevin Jon Heller

Elena Chachko has an interesting post at Lawfare discussing Israel’s recent public acknowledgement of what the international community has long known: that it was responsible for the 2007 attack on the Al-Kibar nuclear reactor in Syria. Although I agree with much of Chachko’s post, I would take issue with what she says about how the failure of states to condemn the attack at the time and to react to Israel’s new acknowledgment of its responsibility might affect the customary status of pre-emptive self-defence:

It would be unwise to jump to the conclusion that the many states that did not protest the Al-Kibar strike instead acquiesced to it, thus indicating their support for a right to exercise preemptive self-defense to eliminate nuclear threats. Still, one could argue that the clandestine and military nature of the Al-Kibar reactor, its proximity to Israel, and the hostility between Israel and Syria rendered Israel’s “last opportunity to stop an existential threat” argument more plausible now than when it invoked it to justify the destruction of Osirak—a distant, declared, reactor built with French assistance. Under this reasoning, the relatively muted international response could suggest that members of the international community might be willing to entertain preemptive self-defense under such extreme circumstances.

In sum, the question of whether international law now recognizes a right to preemptive self-defense against nuclear threats remains highly contested. But the evolution of the international position from “Opera” to “Outside the Box,” even after Israel acknowledged its role in the latter, is telling. Both scholars and politicians will likely take this evolution into account in discerning state practice on this question going forward.

With respect to Chachko, this argument is problematic. As she acknowledges, Israel has still not articulated any legal justification for the Al-Kibar attack, much less claimed that it represented a legal act of pre-emptive self-defence:

It remains true, however, that we do not know what Israel’s legal position actually was. Israel has yet to provide a public legal justification for the Al-Kibar operation under jus ad bellum. The newly released interviews with members of Israel’s leadership at the time, including then-prime minister Ehud Olmert, did not explicitly address the legal aspects of the decision to carry out the strike. The only  I found in the reports about the strike to the role of lawyers in vetting the operation was a brief mention of then-attorney general Meni Mazuz’s involvement in drafting the government decision that authorized the operation.

Because Israel has not provided a legal justification for the attack, the attack cannot help establish the legality of pre-emptive self-defence. As the ICJ made clear in the Nicaragua case, practice unaccompanied by opinio juris does not contribute to modifying customary rules concerning the use of force (para. 207; emphasis mine):

The Court has no jurisdiction to rule upon the conformity with international law of any conduct of States not parties to the present dispute, or of conduct of the Parties unconnected with the dispute; nor has it authority to ascribe to States legal views which they do not themselves advance. The significance for the Court of cases of State conduct prima facie inconsistent with the principle of non-intervention lies in the nature of the ground offered as justification. Reliance by a State on a novel right or an unprecedented exception to the principle might, if shared in principle by other States, tend towards a modification of customary international law. In fact however the Court finds that States have not justified their conduct by reference to a new right of intervention or a new exception to the principle of its prohibition. The United States authorities have on some occasions clearly stated their grounds for intervening in the affairs of a foreign State for reasons connected with, for example, the domestic policies of that country, its ideology, the level of its armaments, or the direction of its foreign policy. But these were statements of international policy, and not an assertion of rules of existing international law.

For similar reasons, the “relatively muted” response by states to the Al-Kibar attack also cannot help establish the legality of pre-emptive self-defence. It is true that silence in the face of practice can count as acquiescence to a proposed customary rule. But that is only the case when — to quote the ILC’s new Draft Conclusion 3 regarding the formation of custom — “the circumstances called for some reaction.” No reaction is required when a state does not provide a legal justification for its actions. In 2007, Israel did not even acknowledge that it was responsible for the attack. And even now, in 2018, Israel is not claiming that it acted in self-defence. So it would not simply be “unwise” to read too much into the international community’s response to the Al-Kibar attack. It would be legally inappropriate to do so.

I also disagree with Chachko’s claim that silence “could suggest that members of the international community might be willing to entertain preemptive self-defense under such extreme circumstances.” I think it actually suggests the opposite: it is extremely likely that states — particularly those in the Non-Aligned Movement (NAM) — remained silent about the Al-Kibar attack precisely because Israel neither acknowledged that it was responsible for the attack nor claimed that the attack was a legitimate act of pre-emptive self-defence. As Chachko rightly points out — echoing the Spector/Cohen blog post  she links to — there were sound political and strategic reasons for states, particularly in the Middle East, not to get too worked up about the 2007 attack. In the absence of Israel claiming self-defence, NAM’s silence was legally costless. But it is difficult to believe that it would have remained silent in the face of a legal claim that pre-emptive self-defence is lawful. After all, NAM has consistently denounced pre-emptive self-defence as unlawful.

Israel’s acknowledgment that it was responsible for the Al-Kibar attack is politically important. But it has no legal implications whatsoever.

The US’s New Nuclear Posture Review: Blurring the Lines of Anticipatory Self-Defense

by Yulia Ioffe and Olga Bozhenko

[Yulia Ioffe is a DPhil (PhD) candidate and a tutor in Public International Law at University of Oxford and Olga Bozhenko is an LL.M student in International Litigation (Public International Law) at Institute of International Relations Kyiv National Taras Shevchenko University.]

In February 2018, President Trump issued his Nuclear Posture Review (NPR), which was widely anticipated by the international community. It was hoped that this document would soften the US President’s previous aggressive rhetoric (including the threat of ‘total destruction of North Korea’) and bring the US administration’s position within the orbit of international law. It is thus important to understand how the NPR captures the US current stance on the possibility of using nuclear weapons in self-defense where an armed attack has not yet occurred, particularly in light of deteriorating relations between the US and North Korea, as well as Russia’s nuclear weapons modernization efforts. We argue that the NPR is not compliant with international law standards on self-defense.

The NPR: Brief Overview

The NPR is a legislatively-mandated review, produced by the Secretary of Defense, that establishes US nuclear policy, strategy, capabilities, and force posture for the next five to ten years. Apart from being an important policy document for the US domestically, the NPR is also reflective of the most pressing issues of the universal nuclear weapons agenda. From international law perspective, it may amount to evidence of state practice as an act of executive branch (p 22) with regard to the use of force and nuclear weapons, particularly considering that some would call the US a specially affected state (p 312), as a state possessing them.

At the face value, it may seem questionable whether the NPR extends the ‘first use’ strategy right up to anticipatory self-defense. Yet, the range of scenarios potentially triggering such a first use of nuclear weapons by the US is indicative of a foreseeable possibility to use force not only in response but also in anticipation.

In fact, one can hardly imagine a more all-encompassing provision to include the option of anticipatory strike than the one envisaging the ‘employment of nuclear weapons in extreme circumstances to defend the vital interests of the United States, its allies, and partners’ (p 21), as laid down in the NPR. It is only reasonable to read this provision as covering anticipatory self-defense in view of the following clarification that the mentioned ‘extreme circumstances’ could include (i.e. are in no way limited to) significant non-nuclear strategic arms attacks.

The NPR is essentially based upon the strategy of deterrence (which Judge Oda considered ‘legitimized by international law’ in his Dissenting Opinion to the Nuclear Weapons Advisory Opinion (para 45)), presuming nuclear weapons to be used efficiently so long as they are not actually used. Still, the NPR seems to go further than that by extending the aims of retaining nuclear capability to the ‘achievement of the US objectives if deterrence fails’ (p 20) and peculiarly to ‘hedging against prospective and unanticipated risks’ (p 24). The latter includes the intention to ‘reduce potential adversaries’ confidence that they can gain advantage through expansion of nuclear capabilities’ (p 24), and to ‘respond to the possible shocks of a changing threat environment’ (p 14). This could definitely be interpreted as a provision deliberately formulated in the vaguest manner possible to create a leeway with respect to nuclear strike options, considering the context of the NPR adoption.

The current NPR, as well as Obama’s, reserves the right for the US to use nuclear weapons against non-nuclear weapon states, which are not in compliance with their non-proliferation obligations. Still, while the Obama version envisaged biological and chemical weapons development as additional scenarios to trigger nuclear response to non-nuclear threat, Trump’s NPR reserves a much broader room for action by referring to ‘the evolution and proliferation of non-nuclear strategic attack technologies’ (p 21). By including yet another option to respond by nuclear strike to conventional weapons development, the document waters down previous attempts to limit the scenarios giving rise for such an option to the potential nuclear threats only. Furthermore, such options seem to imply that there is no specific case of anticipatory self-defense against weapons of mass destruction (WMD), assimilating it within the ‘regular’ self-defense framework, where the type of weapons does not actually matter.

Assuming that we accept that international law permits anticipatory action in self-defense, it is a prevailing view (p 663) that such action is only lawful when an armed attack is imminent and the response is necessary and proportionate.


The concept of ‘extreme circumstances’ used in the NPR can be assumed to serve a bridge to the well-known Caroline formula, which is still a yardstick for measuring the legality of anticipatory self-defense. It is argued (p 11) that the standard of a threat being ‘instant, overwhelming, leaving no choice of means, and no moment for deliberation’ is too rigorous to apply for a state faced with a nuclear-related threat, particularly, the one emanating from a rogue actor. By applying such a standard, a state can end up with missing the last opportunity to avert the damage. However, when one takes into account the mode of response, which is the use of nuclear weapons, the threshold set by the Caroline formula seems justified, requiring, at the very least, to establish an undisputable need to defend state’s ‘vital interests’.

In this context, the very use of the concept of ‘vital interests’ should be viewed as problematic, having regard to the standard of ‘the very survival of a state’, which the ICJ considered as possibly justifying self-defense by means of nuclear weapons (Nuclear Weapons Advisory Opinion, para 97). It was only Judge Guillaume (para 8), who extended this standard by claiming that no legal system could deprive a state from the possibility to defend its ‘vital interests’(discussed here p 314), yet further as well referring to the ‘ultimate means’ to ‘guarantee survival’. Hence, as compared to the ICJ’s position, the NPR uses an arguably lower standard of ‘vital interests’ and, at the same time, does not limit it to the situation of an actual armed conflict.


The standard of necessity of self-defense sets a high threshold, prescribing that there must be no practical alternative to the proposed use of force that is likely to be effective in ending or averting the attack. This was confirmed, although implicitly, by the ICJ in the Oil Platforms case (para 76).

Understandably, the standard is considerably higher in respect of nuclear weapons, requiring the situation to be of the last resort kind, i.e. warranting the whole range of defensive options to be on the table. To this end, the NPR mentions that the US will attempt to stick to the strategy of the minimum destruction possible, since ‘U.S. nuclear policy for decades has consistently included this objective of limiting damage if deterrence fails’ (p 23).

Yet, even this strategy will not meet the necessity requirement, unless the US is able to establish the anticipatory nuclear strike as the only option available with no room for peaceful measures, or, at least, for conventional attack, including for the purposes of defending its vital interests or those of its allies and partners.


If it is the scale of anticipated attack and that of preventive action which must be comparable to satisfy the proportionality requirement, one can hardly imagine a conventional armed attack, however imminent, which is comparable to a nuclear strike. According to another interpretation of proportionality, supported by Judge Higgins in her Dissenting Opinion to the Nuclear Weapons Advisory Opinion (para 5), which adopts a ‘means-end proportionality’ approach with the focus on restoring state’s defensive capacity, it is possible for a nuclear strike to be lawful, even if not commensurate to anticipated attack. To this end, the NPR implicitly assumes that a limited nuclear strike could be less destructive than a large scale conventional response. The employment of tactical nuclear weapons, which allow for the precise targeting, could be justified as a measure to halt the imminent attack, which, if occurring, would require much more destructive a response.

It leaves us though with the last, often overlooked, aspect of proportionality, which relates to the extent anticipatory action remains lawful, even if it was such at the beginning (similar situation was discussed here concerning the proportionality standard for the ‘total destruction of North Korea’ as mentioned by President Trump). Perhaps it is safe to assert that any anticipatory military action, including nuclear strike, is lawful only as long as it remains defensive in nature and ceases as soon as the threat in question is eliminated. Undoubtedly, this can hardly mean that the elimination of a state is at issue. Otherwise, it is rather the case of promoting offensive strategy, but not of restoring defensive capacity.

Sources of Anticipated Attack

The NPR defines a broad range of the potential sources of the anticipated attack, with the states being the main suspects. The NPR directs special attention to North Korea and Iran calling them a ‘clear and grave threat’ (p 32) and a ‘serious concern’ (p 71) respectively, Russia which would face ‘unacceptably dire costs’ (p 30) in case of aggression, and China which challenges ‘traditional US military superiority in the Western Pacific’ (p 1). Additionally, the US continues to insist on its controversial legal position to justify self-defense, including in the context of nuclear weapons, in response to efforts by non-state actors. The NPR clearly states that a terrorist nuclear attack against the US or its allies and partners would qualify as an ‘extreme circumstance’ and any state that supports or enables terrorist efforts will experience the ‘ultimate form of retaliation’ (p 68). Thus, the NPR implicitly confirms the US’s longstanding ‘unwilling or unable’ doctrine, allowing to respond with the nuclear strike against a terrorist attack even where there is no ‘host state’ involvement. In fact, the legal evaluation of attacks by non-state actors as constituting an armed attack (let alone an anticipated attack) in the context of self-defense is still controversial (paras 14–21, 23). We are also not convinced that international law as it stands supports the ‘unwilling or unable test’ in relation to self-defense actions taken against non-state actors (discussed here and here), especially in the context of nuclear weapons.


Beyond the criticism domestically (see here and here), the NPR has attracted serious criticism from a number of states. The German government condemned ‘a spiral of a new nuclear arms race’ introduced by the NPR. The Chinese government criticized the NPR for its ‘Cold War mentality’. Russia’s Ministry of Foreign Affairs sharply criticized the NPR (see here in Russian), in particular, for lowering the threshold of the use of nuclear weapons and allowing the use of nuclear weapons in ‘extreme circumstances’, which are not limited to military scenarios and with military scenarios covering almost any use of military force. President Putin’s recent display of the new Russian nuclear weapons could also have been a reaction to the NPR. Both Russia and China emphasized that the NPR contrasts sharply with their own nuclear posture, in which they adhere to the policy of no-first-use of nuclear weapons, non-use of nuclear weapons against non-nuclear-weapon states, and where nuclear weapons are considered a strictly defensive deterrent.


The NPR, as it currently stands, is hardly in compliance with international law, since it includes a number of remote strategic inconveniences threatening the US interests (arising not only from states but also non-state actors) as triggers for the first use of nuclear weapons, effectively lowering the threshold for the use of nuclear weapons. Such use would also most likely be incompatible with the necessity and proportionality requirements.

Five PhDs and One Postdoc at the University of Amsterdam

by Kevin Jon Heller

I am delighted to announce that my law school is advertising six new positions to start in September 2018 — five PhD and one postdoc. The postdoc will be public international law with a focus on international economic law:

The vacancy is for a Postdoctoral researcher in Public International Law. The researcher should have a background in International Economic Law (broadly understood) that allows her/him to possibly contribute to teaching tasks (see below on ‘tasks’).

The postdoctoral researcher should place her/his research within the programme on ‘Law and Justice Across Borders’, in which ACIL collaborates with the Amsterdam Center for European Law and Governance (ACELG) and the Center for the Study of European Private Law (CSECL). Preferably, the postdoctoral researcher should connect to one of ACIL’s research projects (available on the ACIL website).

Three of the PhD positions will focus specifically on international criminal law:

In September 2018 a five year research project will be launched, entitled ‘The Outer limits of Secondary Liability for International Crimes and Serious Human Rights Violations’. The research project is directed by Göran Sluiter, professor in International Criminal Law, and is financed by the Netherlands Organisation for Scientific Research (NWO), by means of a VICI-grant.

The project will be embedded within the Amsterdam Center for International Law (ACIL), one of the research priority areas of the University, and the department of Criminal Law.

One of the PhD positions will be devoted to public international law generally:

The PhD researcher will develop his or her project as part of the Amsterdam Center for International Law (ACIL). In principle, the PhD researcher may focus on any aspect of Public International Law. Preferably, the research should connect to one of ACIL’s projects (available on the ACIL website).

The researcher is also encouraged to embed her/his research within the programme on  ‘Law and Justice Across Borders’, though that is not strictly necessary. In that programme, ACIL collaborates with the Amsterdam Center for European Law and Governance (ACELG) and the Center for the Study of European Private Law (CSECL).

And one PhD position will focus on the intersection of public international law and EU law:

The PhD researcher will develop his or her project as part of the Amsterdam Centre for European Law and Governance (ACELG) and Amsterdam Center for International Law (ACIL). In principle, the PhD researcher may focus on any question that involves aspects of both European Union law and Public International Law.

ACELG and ACIL cooperate together with the Centre for the Study of European Contract Law (CSECL) within the framework of the research platform ‘Law and Justice Across Borders’. An interest in participating in this broader research community is a significant advantage.

Research at ACELG And ACIL employs legal-doctrinal methods of research as well as non-legal methods. An interdisciplinary dimension of research is encouraged.

I strongly encourage Opinio Juris readers to apply. The University of Amsterdam Law School is a great place to work, with a superb Dean in Andre Nollkaemper, a new building in a great location (by the zoo!), numerous excellent ICL/PIL scholars, and a fantastic current group of (relatively new) PhDs and postdocs. With six new additions, our academic culture will be even richer.

The deadline for all the positions is May 1.

EU Court Condemns the EU Legislative Process for Lack of Transparency: Time to Open Up?

by Massimo Frigo

[Massimo Frigo is a Senior Legal Adviser of the International Commission of Jurist’s Europe Programme.]

It is sometimes cases on obscure administrative processes that become landmark judgments in the ever constant building of our democratic legal systems. In the US Marbury v. Madison was a case that at the time attracted little attention as the subject matter related to respect of procedures in judicial appointments. This notwithstanding it came to be the legal milestone of constitutional review in the US legal system.

In the European Union one of these cases was decided on 22 March: Emilio De Capitani v. Parliament. As it will be outlined below, it is a technical case that goes to the heart of the procedure of one of the fundamental institutions in a democracy: Parliament.

  1. The EU legislative decision-making process

Unlike the United States, the European Union is not a State. However, it retains more and more competence to legislate in areas of everyday life and of crucial constitutional State prerogatives, including in the sphere of justice and home affairs that includes immigration, asylum, border control, and police cooperation.

The legislative process of the EU may be generally simplified in this way: the European Commission, i.e. a body of supposedly independent experts appointed by the European Council (see, the 28, soon 27, heads of State or government of its Member States) and approved by the European Parliament (the only institutions directly elected by EU citizens), has the initiative to table legislation.

Once the proposal is tabled it is the turn of the co-legislators to discuss it, amend it, approve it or reject it. At any moment the European Commission can withdraw the proposal and put an end to the process.

The EU legislators are the European Parliament and the Council of the European Union. The latter consists of the Governments, often in the configuration of the ministries relevant to the legislative piece to be discussed, of the EU Member States. These two bodies must agree on the legislative text, and its potential modifications, and approve it in the same form before it can become law. They can do it in one or two reading sessions.

In the last decades, since this procedure (once called “co-decision” and now “ordinary legislative procedure”) came to exist, a practical solution to speed up the legislative procedure was found by holding what are called “trilogues”. These are closed meeting among representatives of the Council of the EU, the European Parliament and the European Commission to find a compromise and produce an agreed text that will have to be voted by their respective committees and plenaries into law.

The practice of these trilogues is that no one has access to them nor to any document on the suggestions of compromise. Furthermore, when an agreement is reached, statistically, both the Parliament and the Council approve the compromise into law. It is therefore a key moment in the legislative process. And it is absolutely foreclosed to EU citizens and civil society.

  1. The case

Mr De Capitani brought a challenge to the General Court of the European Union, the judicial body competent for cases against EU institution at first instance, because Parliament, after having consulted the Council and the Commission, refused him access to the part of a document in the legislative process. Specifically this part of the document is the fourth column in a tabled document that reports the compromises reached or suggested during the trilogues, while the first three of them include the original proposal and the positions of the institutions.

  1. The judgment

The General Court ruled that, “contrary to what the Council maintains …, … the trilogue tables form part of the legislative process.” (para 75, , De Capitani)

It pointed out that

78. … it is precisely openness in the legislative process that contributes to conferring greater legitimacy on the institutions in the eyes of EU citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole … .

The Court dismissed the EU institutions’ exception that non-disclosure was necessary because the document dealt with a draft law in the area of police cooperation. The Court very strongly ruled that

89… the fact … that the documents at issue relate to the area of police cooperation cannot per se suffice in demonstrating the special sensitivity of the documents. To hold otherwise would mean exempting a whole field of EU law from the transparency requirements of legislative action in that field.

Furthermore the Court stressed that

90…. the documents at issue concern a proposal for a draft regulation, of general scope, binding in all of its elements and directly applicable in all the Member States, which naturally concerns citizens, all the more so since at issue here is a legislative proposal directly affecting the rights of EU citizens, inter alia their right to personal data protection …, from which it follows that the legislative proposal could not be regarded as sensitive by reference to any criterion whatsoever … .

The Court then dealt with the assertion that access to these documents could increase public pressure on the representatives of the EU institutions involved in the trilogue procedure:

98… in a system based on the principle of democratic legitimacy, co-legislators must be held accountable for their actions to the public. If citizens are to be able to exercise their democratic rights they must be in a position to follow in detail the decision-making process within the institutions taking part in the legislative procedures and to have access to all relevant information … Thus, the expression of public opinion in relation to a particular provisional legislative proposal or agreement agreed in the course of a trilogue and reflected in the fourth column of a trilogue table forms an integral part of the exercise of EU citizens’ democratic rights, particularly since … such agreements are generally subsequently adopted without substantial amendment by the co-legislators.

Finally, while allowing still the possibility for certain situations (“duly justified cases”) of non-disclosure for co-legislators, including Parliament (para 112, De Capitani), the Court closed by rejecting also the argument raised by Parliament that making public documents of the trilogue would have taken away the nature of these meetings as a “space to think” . The Court unmistakably reminded Parliament that these meetings are essential parts of the legislative procedure and not “spaces to think” and as such must be subject to the required level of publicity (para 105, De Capitani).

  1. Conclusion: a more democratic EU?

The European Union does not enjoy today the best image in terms of transparency, accountability and democratic processes. Its institutions have been openly attacked from many different quarters for their lack of transparency and the bureaucratic nature of their procedures. Most of these attacks are populist fear-mongering that simply aims at finding a scapegoat to gain political traction, votes and, hence, power. However, as we have seen, some critiques of the EU structure cannot be simply dismissed as political nonsense and one of them is about the legislative process in the EU that affects the lives of almost 500 million people.

The De Capitani ruling throws a breath of fresh air to these institutions and, importantly, demonstrates that, while some institutions of the EU may be criticised for lack of transparency and obedience to the rule of law, there are institutions, notably the EU courts, that can address the problem within.

This ruling can still be subject to appeal before the Court of Justice of the EU. In the meantime and this notwithstanding, the crucial question is whether and how the ruling will be implemented. Will the Parliament, the Council, i.e. the Governments of the Member States, and the Commission open up to democratic scrutiny in legislative process?

The answer to this question will be vital for the EU to withstand any criticism that it does not obey the rule of law and democratic accountability. This is why this case is a turning point for the EU rule of law structure. Much of the legitimacy of the EU as a rule of law based supra-national organisation lies in what its institutions are going to do next. And we’d better be watching…