The EU supports Bashir’s arrest by South Africa… and get the law somewhat confused

The EU has just released a press statement supporting the idea that South Africa should arrest Bashir and send him to the ICC. The statement reads as follows:

Committed to preventing crimes against humanity, war crimes and genocide, and to avoiding impunity for the perpetrators of such crimes, the EU confirms its continuing support for the ICC and its work.

Full cooperation with the ICC is a prerequisite for the Court’s effective functioning.

In accordance with established approach of the EU and its Member States, the EU expects South Africa, a founding State Party of the Court, to act in accordance with UN Security Council 1593, in executing the arrest warrant against any ICC indictee present in the country.

This press release shows some of the confusion on the applicable legal framework when it comes to the ICC and Security Council referrals. Indeed, a Security Council referral simply allows the Court to exercise jurisdiction in a given situation and from then on, it is the Rome Statute that kicks in. Therefore, if South Africa were to arrest and surrender Bashir (which I think it doesn’t have to as argued previously), it would be acting “in accordance” with the Rome Statute, not the UN Security Council Resolution. In fact, if you read the UNSC Resolution, it does not create any obligations for any State other than Sudan (whether it could in fact create obligations even for Sudan under the Rome Statute is another debate).

So, irrespective of the political dimensions of this situation, it seems that as usual, there is not much attention to being precise on the law…

Does South Africa have an obligation to arrest and surrender Bashir to the ICC? no

I’ve been unable to blog in the past few months due to work, but I could not avoid the ongoing story about Sudan’s Bashir current visit to South Africa for the AU summit and whether he will/should be arrested to be sent to the ICC. A few hours ago a South African judge ordered that Bashir not leave the country until it rules on whether to send him the The Hague. This is obviously a momentous decision politically, and will be even more so if he is indeed arrested.

What interests me here is the legal situation under international law and the Rome Statute (I should point out that I am not familiar with South African law and whether under domestic legislation there would be an obligation to arrest and surrender Bashir). In that respect, the twittosphere is replete with claims that South Africa is indeed under an obligation to arrest Bashir.

The ICC has said so much on a number of occasions. Regular readers of this blog will remember how in 2011, the ICC unconvincingly relied on a flimsy customary law argument to conclude that Malawi was under an obligation to arrest Bashir. In 2014, the ICC changed its approached and adopted a marginally more compelling argument based on the compulsory nature of Chapter VII resolutions and repeated it just a few days ago.

However, I think this is legally inaccurate, or at least not as clear as everybody says it is, as I argued in a paper that was just published in a new edited collection on the ICC (you can download the SSRN version here). I am not going to reproduce the whole argumentation here and invite you to read the paper.

The bottom line of my argumentation is that the fact that the situation of Darfur was referred to the ICC through a UNSC Resolution does not change the fact that the original source for the removal of immunity, if any, is the Rome Statute itself and more particularly its article 27. As a result, invoking chapter VII powers does not solve the problem that Sudan is not a party to the Rome Statute and has therefore not accepted the removal of Bashir’s immunity for the purposes of ICC prosecution. Moreover, Article 98 of the Rome Statute requires that existing rules of immunity under international law be respected when cooperating with the Court. As I believe, contrary to what some NGOs and some scholars would like us to think, that there still exists an absolute immunity for sitting heads of state under international law, even for international crimes, South Africa is barred from arresting Bashir.

As I note in my article, the question of immunities and the ICC, and more generally the question of immunities and international crimes, is a typical example of wishful thinking human rights activism, with a massive disconnect between the reality of international law and the way some would prefer it to be. That is not in itself a problem. There is no harm in advocating for change. What I find disingenuous is when it is argued that things have already changed. That is simply not true.

I don’t know if anyone in the South African judiciary reads this blog, but they have until tomorrow to get up to speed on the actual applicable law (from me and others) in order for any decision they adopt to be legally accurate, if not politically fashionable. To be continued…

Upcoming events on Palestine and the ICC (London) and the Lubanga Reparations Judgment (The Hague)

For those readers based in London and The Hague, I will be participating in two events in the next week which could be of interest to you.

Tomorrow evening, I will have the pleasure of participating in a roundtable at LSE kindly organised by Kirsten Ainley on Palestine and the ICC. It promises to be a very interesting discussing, with a really nice line-up: Kevin Jon Heller, Mark Kersten, Michael Kearney, Chantal Meloni and Leslie Vinjamuri. More information can be found here.

Moreover, next week, the Grotius Centre is organising, in collaboration with REDRESS a roundtable in The Hague on the Lubanga Reparations Judgment. Again, a nice line-up is expected, with Pieter de Baan (Executive Director, Trust Fund for Victims), Paolina Massidda (Principal Counsel for the Office of Public Counsel for Victims), Luc Walleyn (Legal Representative for Victims in the case against Thomas Lubanga), Gaelle Carayon (ICC Legal Officer, Redress Trust), Luke Moffett (Lecturer, School of Law, Queen’s University Belfast) and myself.

I hope to see you there!


A brief comment on the Chui Appeals Judgment at the ICC

Recent weeks have been quite busy and I’ve had no time to blog, despite some important decisions coming out, such as the Appeals Judgment in the Chui case or the Appeal Judgment on reparations in Lubanga.

In what promises to be my shortest post ever, I still wanted to put out there a couple of thoughts on the Chui Judgment.

It confirms the acquittal, but Judges Tarfusser and Trendafilova provide an interesting dissent with their take on the application of the standard of proof and the issue of the supposed violations of the fair trial rights of the Prosecution. They raise important issues which continue to spark debate in the practice of the Court.

On the question of the assessment of evidence, it is the classical question of what it means to assess the evidence “as a whole”, the Trial Chamber being criticised by the dissenters for having excluded some evidence in isolation of other evidence. It’s a difficult question, but personally I’ve always been skeptical of the “overall assessment” approach, which is a possible way for judges to avoid discussing the credibility of individual pieces of evidence and put forward a general impressionist understanding of the case, which is then difficult to challenges.

On the question of the fair trial rights of the Prosecution, I continue to think that the concept makes no sense. The Prosecution represents the institution and cannot technically have rights. Rights are there for the accused, not for the prosecuting authority. Ultimately, this might of course just be a question of semantics, in the sense that there exist procedural guarantees in-built in the trial process which can benefit both Prosecution and Defense. But I do think that conceptually, it is important to be very precise on the langage used.

A Commentary on The ICJ Croatia v. Serbia Genocide Case (part II): Judge Cancado Trindade’s dissent and thoughts on natural justice

Yesterday, I published my thoughts on the 3 February ICJ Judgment in the Croatia v. Serbia Genocide case. I had initially planned to propose a few short concluding views on Judge Cancado Trindade dissenting opinion, but this proved unrealistic, given its length, and it certainly “deserves” its own post.

The dissent, which was to be expected, did not dissapoint. In a marginally shorter opinion than the actual judgment, the Brazilian judge expands his now predictable own view of international law as based on the principle of Humanity.

I doubt, as many before me (see notably Marko Milanovic here), the efficiency of these long rambling dissents, frankly badly written in parts, sometimes repetitive, where legal points are laced with philosophical musings and extensive literary quotes. In fact, I don’t how it didn’t strike me before, but reading the dissent here, I had the impression of reading some of Seselj’s motions at the ICTY (and for those unfamiliar with those, this is definitely not a compliment…).

Beyond my own predictable general disagreement with the Judge’s views, approach to law and methodology, I want to focus here on how he addresses the question of specific intent and how one proves it.

  • The “object” of the Genocide Convention as a justification for a lower evidentiary threshold

Cancado Trindade of course disagrees with what he considers to be too high a threshold put forward by the majority on the proof of the mental element of genocide (he does this in two different parts of the dissent (125-148 and 460-471), which is one example of how the document could have been shortened…).

He relies on the case law of the ad hoc tribunals where intent was inferred from a number of circumstantial factors to make his point, and unoriginally refers to the object of fighting impunity of the Genocide Convention to justify a lower threshold (§143).

I’m not sure I agree with Judge Cancado Trindade. I’ve always found that the “object and purpose” approach to interpretation in human rights and ICL has been shorthand for judges to make texts say something that they do not actually say, based on “superior” moral considerations and I find that disturbing (see below). Moreover, from a deontological perspective, you could also argue that the moral stigma attached to a finding of genocide means that we should be very cautious in making such a finding, rather than the reverse.

On the other hand, I can see how civil proceedings such as those before the ICJ could warrant a somewhat lower standard of evidence than in a criminal court, which would justify perhaps the Judge’s approach to inference.

So I think that on that level, there is somewhat of an argument to be made both ways. Where I part ways completely is on the other justification that he gives for disagreeing with the majority.

  • Standards of proof as an unacceptable “diktat”

This is what Judge Cancado Trindade has to say about this, and it is worth quoting more or less in full (§468-470):

The Court cannot simply say […] that there has been no intent to destroy, in the atrocities perpetrated, just because it says so. This is a Diktat, not a proper handling of evidence. This Diktat goes against the voluminous evidence of the material element of actus reus under the Convention against Genocide (Article II), wherefrom the intent to destroy can be inferred. This Diktat is unsustainable, it is nothing but a petitio principii militating against the proper exercise of the international judicial function. Summum jus, summa injuria. Mens rea, the dolus specialis, can only be inferred, from a number of factors.

In my understanding, evidential assessments cannot prescind from axiological concerns. Human values are always present, as acknowledged by the historical emergence of the principle, in process, of the conviction intime (livre convencimento / libre convencimiento / libero convincimento) of the judge. Facts and values come together, in evidential assessments. The inference of mens rea / dolus specialis, for the determination of responsibility for genocide, is undertaken as from the conviction intime of each judge, as from human conscience.

Ultimately, conscience stands above, and speaks higher than, any wilful Diktat.

I don’t want to misinterpret a Judge’s words, but the bottom line of what he is saying seems to be that a judge ultimately decides a case based on his own morality. Now some of you will say: “what’s the big deal, we all know that to be what happens!”, and in some sense, you would be right. But, it is very well for us to say that, as commentators, I find it somewhat scandalous that a sitting judge says it in a judicial opinion. INdeed, Judge Trindade is essentially negating the whole idea of standards of proof, burdens of proof, or even procedure, with everything, including the assessment of facts being dependent on the conscience of the judge. In other words, it is natural justice at its most extreme… and its most worrying. L’ “intime conviction” of the judge is not a license for him to do what he wants with a case, it operates within a particular legal and procedural framework which cannot simply be ignored on the basis of “human conscience”.

What annoys me most about this kind of discourse is that it seems to oppose the “axiological” “diktats” of procedure and substantive justice. But this is so narrow minded. Procedure is a moral choice as well! What distinguishes democracies from dictatorship is not the prohibition of such and such conduct, it is the guarantees (procedures!) put in place to determine responsibility. It is exactly to protect people from the “conscience of judges” and their arbitrary (or religious, which is the same) moral judgements that societies fought to get safeguards that are at the heart of our procedure. Standards of proof are one of those: it is unfair to make someone pay (or send him to jail) if you have not proven what he has done. Of course, we can discuss the correct standard to adopt, but we cannot just negate all of them as “diktats”! Indeed, the Spanish Inquisition was also natural justice at its best, where a deep sense of “doing the right thing” trumps any other consideration. The French Terreur was done in the name of Universal Rights.Those experiences turned out just peachy for everyone involved.

In fact, what is ironic here is that the whole dissenting opinion laments the genocidal past of human societies prone to destruction, without noting that most of those experiences were done by people who believed they were doing what their conscience (or religion, or god(s)) dictated, just as Judge Cancado Trindade does. What he is advocating is not the rule of law, it is the contrary of the rule of law. This is illustrated by his quote of the latin maxim: “summum jus, summum injuria”, which more or less translates as  “an excessive application of law leads to injustice”. So, in a nutshell Cancado Trindade always seems to want more law… except when it does not go his way, not seeing that the quote could also apply to him! All in all, it is somewhat worrying to note how the most fervent (and well-intentioned) natural law human rights advocates are simply blind in seeing the intellectual connection they in fact share which those they oppose the most.

And apparently, the “principle of humanity” does not need to be applied consistently. Judge Cancado Trindade only deals with Croatia’s claim and not Serbia’s counter-claim. Indeed, he only dissented on the rejection of the former, not the latter. However, I would have expected his “principle of humanity” to apply equally to Serb victims, in light of the ICJ’s findings that acts that might constitute the actus reus of genocide were committed by Croatia. Maybe I missed something in the dissent and welcome any clarification from more careful readers and interpreters of the Cancado Trindade prose.

  • Conclusion: two clarifications and a musing on the future

First of all, just to be clear, because I already hear the argument of some, the preceding rant is not one of a positivist with a stiff upper lip who refuses progress because the “law is the law”. I am one of those as well, but in this case I am making a moral argument in defense of procedure to counterbalance the moral argument being made to attack it.

Second of all, my previous comments should not be seen as a attack on Judge Cancado Trindade as an individual, an intellectual and a person dedicated to noble values. I have the utmost respect for his intellectual integrity and his sincere desire to make the world a better place. What I am challenging is the judge and what I am expressing is a profound disagreement on what I consider to be the limits of the judicial function, which I think he systematically oversteps.

Of course, on a broader level, nobody really cares what I have to say about this. Maybe in 20 years, my blog posts will have been relegated to the dustbin of internet archiving (if even that) and Judge Cancado Trindade’s dissents will probably be lauded by a new generation of lawyers who will be attributing to him the revolutionary shifts in international law that will undoubtedly have taken place, under his influence, during that time, just as we applaud the impact of Grotius or Cassese. By that time, I’ll be even more of a dinosaur than I seem to some people now, but I will not care, because having witnessed the death of (international) law, I will be mumbling vague positivist mantras in some mental institution somewhere, where I will have been interned against my will for my seditious views about human rights and human nature…