Shooting the Messenger? A response to Kip Hale’s call for the ICC community to engage in self-examination

cross-posted on Justice in Conflict.

Kip Hale has written a blog post on Justice in Conflict entitled “time to look into the mirror: ICC community in Need of Perspective”. For Kip, “this article’s goal is to hopefully spur a larger discussion – and maybe even some progress – concerning the lack of self-awareness and self-examination in our community”.

Kip levels a certain number of critiques against the community of ICC commentators, which would require a more thorough discussion than the next few paragraphs. But hopefully the following comments can begin to contribute to the larger discussion that Kip invites us to have.

Let me start, uncharacteristically maybe, with a point of agreement, and to put it in simpler terms than Kip did in his post : there are indeed, out there, a number of commentators who simply do not know what they are talking about. More specifically, it is not uncommon for some outside observers to ignore or not be aware of the internal dynamics of the institution, its history or even, sometimes, its applicable law.  As a consequence, they might provide inaccurate portrayals of the work of the Court.

This applies to lawyers but also to experts from other fields that take an interest in the ICC. For example, I’ve argued elsewhere, in a Leiden Journal of international law editorial, that a number of critical scholars run the risk of missing the mark in their analysis because they will ignore key aspects of the ICC’s work by refusing to peek inside the box of its legal and institutional intricacies. 

If Kip had stopped there, essentially lamenting the lack of competence of some commentators, I could have more or less supported his position (although one could then wonder if making such an obvious point – “I wish people were competent at their jobs” –   would really have deserved a blog post at all), with a couple of caveats. 

First, as pointed out by Kevin Jon Heller on twitter, it would have been welcome, if Kip was going to take the time to write his post, to actually give concrete examples and, most importantly, engage with them, which would certainly have been a more courageous move that make generic unverifiable statements about a whole community’s lack of competence or about unidentified persons’ “personal or professional need to be visible”.

Second, even if I agree with Kip that commentary is obviously enriched by actual and concrete knowledge of how the ICC operates internally, I cannot help but feel that his call for “humility” is a polite way of saying that people who do not know exactly how the ICC works from the inside should simply refrain from commenting. However, I don’t think that things are that simple, and it depends on what you are commenting on. While it might be harder to comment on the inefficiencies of the internal decision-making process without intimate knowledge of the internal workings of the Court, there are myriads of ICC-related matters that can be commented upon without such insider knowledge. It cannot be acceptable that someone who highlights the inadequacy of the legal reasoning of a decision is simply told that they don’t understand the compromise that had to be reached by the Judges, or that someone who criticises the effect of some prosecutorial strategies be told there was a very good reason internally why these strategies were adopted.

But Kip goes further and now we enter into familiar territory for those who have followed the exchanges between Kip and myself on twitter over the years. 

Kip concludes his post with the following words of caution : “As we reflect on the Court at this important juncture, and in our respective roles, hope to contribute to its evolution and mandate of fighting impunity for the world’s gravest crimes, let us be guided by a few simple but fundamental words: “First, do no harm.””

This makes abundantly clear Kip’s position: that commentators should not only be competent, but that they have a moral obligation to support the ICC. Kip is not alone in thinking along those lines, and if I had received a euro every time I heard a variation of this position in conferences, on twitter and in private discussions over the years, I would be a very rich man right now.

But this is an extremely problematic position on many levels. 

First of all, it assumes that if one does not “support” the ICC, one is necessarily “against” the lofty goals it embodies (albeit “inadvertently”, as Kip generously concedes from the top of his moral high ground). The underlying assumption is that the ICC is inherently, necessarily, ontologically a “good” institution that merely needs to be “tweaked” here and there. I sincerely tried to find a more civil word to describe this assumption, in a spirit of constructive dialogue with Kip and others who think like him, but the only word that accurately describes it is “arrogance”. Indeed, it kills from the outset any genuine foundational discussion on whether the ICC is the right instrument to achieve these goals. It casts a shadow over the volumes of legal, sociological, political, historical research that might suggest that other models of justice might be more fit to deal with mass atrocities, or even that ICL might not be an adequate paradigm at all. How can all this research compete with the ICC’s important mission towards “humanity” (no less)?

Second of all, how does that moral injunction fit in exactly with our professional ethics on a case by case basis. Let’s assume competence of commentators for the sake of the argument. When should they decide not to voice concerns about certain ICC practices, be they institutional or legal? If one disagrees, with substantiated arguments, that a decision by a Trial Chamber or Appeals Chamber is legally shaky, or if one truly believes that an OTP policy is ill-advised and inadequate, how is one to evaluate when to stay silent not to “do harm” ? 

Of course, Kip is very careful to claim that “the Court should not be impervious to honest, well-reflected constructive critiques about making improvements when and where necessary”. But this is not very useful as a general statement if there are no guidelines on how to decide on a case-by-case basis what is acceptable “honest”, “constructive critique” and what improvements are “necessary”.  Who is to decide on this? These are ultimately subjective notions, because what is constructive is contingent not only on how an idea is presented but also on how open to hearing it the other side may be. To take my personal case and to avoid putting any of my fellow commentators on the spot: should I not criticise the Court’s case law on immunities or withdrawals simply because it might weaken the universalist goals of the ICC?

Ultimately, there is an uneasy feeling of « shooting the messenger » here because commentators are accused of weakening the Court when what might ultimately be weakening the Court is the practices that commentators are shedding light on.

Third of all, and more fundamentally perhaps, at least when it comes to legal scholars, I’ve always believed that we should distinguish between our legal analysis and our ethical preferences, lest we fall into a category of activists. A conflation of analysis and activism carries the necessary risk of our work being tainted and perceived as possibly biased.

As Joe Powderly and myself have observed in a recent Leiden Journal editorial:

The expectation that scholars working in international criminal law, and more specifically on the ICC, should tailor their criticism in a way that it is not perceived as undermining the moral claims of the ICC is problematic from an intellectual perspective. As legal scholars, we have a professional obligation of intellectual honesty in the conduct of our research. The fact that we have moral or ethical preferences in relation to a particular issue should not seep into our legal methodology, lest we cross the border between scholarship and activism. In this sense, the authors of this editorial do not believe that legal scholarship in the field of international criminal law should unquestioningly aim at supporting the system or making the system better. In fact, we believe that research teleologically guided in this way is more likely to suffer from lack of methodological rigour, because the scholar will more likely be trying to ‘fit’ the outcome of his or her research in a predetermined conclusion, to the point of denying any other reasonable legal understanding of an issue and, as a consequence, denying that any reasonable disagreement can be expressed

On a concluding note, I disagree with Kip’s statement that: “one critical component of evaluation and reasoned debate has been almost completely overlooked: us – ICC observers, commentators, stakeholders, and the larger engaged community outside of the Court. It is about time our community takes a long, hard look in the mirror”.

As mentioned above, this debate, flowing from the injunction to commentators to “support the ICC” has existed for as long as I can remember. More recently, this debate has been in the open in various foras, such as twitter and the blogosphere, and, despite my well-known disagreements with Kip, I have myself tried to contribute to it in a constructive way (see here and here). I would not have the arrogance of speaking for others, but I have thought long and hard for many years about these issues, and the fact that I still  disagree with Kip and others on their approach does not mean that I don’t want to take a “hard look in the mirror”.

Also astonishing is Kip’s claim that: “To say there are agenda-driven and unprincipled agents engaged in the field of international criminal justice often flabbergasts newcomers to the field”. It is indeed ironic that Kip would criticise some outside commentators for being “agenda-driven” in a blog post that is so unashamedly “agenda-driven” itself, i.e, to promote the Court’s importance for humanity (no less). The fact that Kip is promoting what appears to be noble goals does not make them less of an agenda.  It is a healthy process for “newcomers”, as Kip calls them, to shed their naive belief of a Court floating in a bubble of pure unpolitical moral idealism, within which the “good” guys are trying to save humanity (no less) from the “bad” guys and their nefarious “agendas”. Yet every stakeholder, both within and outside the Court, has an agenda, whatever it may be, and that is what makes studying the ICC, and working in this field, so fascinating.

The reality is that we, commentators, are often the ones presenting a mirror to the ICC that it refuses to look into, lest it show a reality that it does not want to acknowledge, and that is the real debate that we should be having here. All too often, whatever the source and quality of the criticism, the ICC, be it Chambers or the OTP, adopts a defensive, siege-mentality, trying to “correct the public record”, as Kip puts it. But should the ICC/OTP really be spending time and resources in aggressively responding to a university report (whatever one might think of the report), issuing Q&As to lament being treated unfairly by the blogosphere or making videos to refute twitter rumours? If the ICC’s mandate of saving humanity (no less) can really be derailed by an ill-informed tweet, then the ICC is most certainly in serious trouble indeed.

Criticising commentators in such circumstances is like focusing on the finger when the wise man is pointing to the moon, as the saying goes, which, I’m sure Kip will agree, can only take us so far in the bigger scheme of things.

ICC PTC authorises investigation in Bangladesh/Myanmar: some thoughts

Big news, came out of the ICC yesterday, a mere few days after the proceedings initiated by Gambia at the ICJ against Myanmar: Pre-Trial Chamber III has authorised the opening of an investigation in the situation of Bangladesh/Myanmar. This decision follows a decision in September 2018 where PTC I found that the Court could theoretically exercise jurisdiction in such a situation, despite Myanmar not being a State Party (I commented on that decision here) and the Prosecutor’s request last summer (which I reflected upon here).

There are a number of interesting takeaways from the decision which I want to briefly address here.

1) Assessment of evidence

Back in July, I raised the point that the OTP request did not contain an explanation of how it assessed available information. I found that problematic, especially given the challenges that exist when using open source material, such as NGO and UN reports.

Apparently, this is not a problem for the PTC, which provides no indication of its understanding of the standard of proof during a preliminary examination, nor does it provide any methodological explanation of how it independently assessed available information. Essentially, the PTC seems to have taken any “finding” in a human rights report at face-value, which, even at such an early stage of the proceedings, cannot be an adequate approach for a criminal court. 

2) The territorial exercise of jurisdiction question

In order to deal with the central issue here (the fact that the alleged incidents all took place on the territory of a non-State party, with the involvement of nationals of a non-State party), the PTC had to discuss several matters. I found this part of the decision actually quite pleasant and intellectually stimulating to read, but I must confess, I did not always get how its different parts fit one with another. It is as if several really interesting preparatory memos were copied and pasted together in the final decision without the final polishing work on making sure that it all fit in a coherent argumentation.

For example, the PTC had to decide what “conduct” in Article 12(2)(a) meant, which was important in order for the ICC to be able to satisfy the territorial precondition to the exercise of jurisdiction. Article 12(2)(a) of the Rome Statute provides that:

the Court may exercise its jurisdiction […] if The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

The PTC felt the need to discuss how the words “conduct” and the words “crime” in Article 12(2)(a), with the conclusion that “the notions of ‘conduct’ and ‘crime’ in article 12(2)(a) of the Statute have the same functional meaning” (par. 48).

This might be true, but it is not clear how this in fact helps us to understand what “conduct” actually means. More specifically, it does not really explain how the PTC immediately jumps to the conclusion in the next paragraph: ” For these reasons, the word is used in a factual sense, capturing the actus reus element underlying a crime subject to the jurisdiction ratione materiae of the Court”. Why should “conduct” and “actus reus” be equated in this way? This is not explained clearly.

Neither is there any explanation for the extraordinary logical leap from conduct, to actus reus, to consequences in par. 50-51:

50. Further, depending on the nature of the crime alleged, the actus reus element of conduct may encompass within its scope, the consequences of such conduct. For instance, the consequence of an act of killing is that the victim dies. Both facts concerning the act and the consequence (i.e. the killing and the death) are required to be established.

51. In respect of certain crimes within the Statute, the particular consequence may be that the victim behaves, or is caused to behave, in a certain way as a result of conduct attributable to the alleged perpetrator. The negative corollary is that, should those consequences not follow from the conduct of the perpetrator, the crime cannot be said to have occurred (although the suspect’s conduct may constitute attempt).

There is for me a counter-intuitive finding here, which flows from the automatic conflation between “conduct” and “actus reus”: that the consequences of a conduct should also be considered as conduct, through the magical mediation of “actus reus”. But this is far from obvious. Conduct, in any traditional meaning of the term, is what you actually do (or don’t do in the case of omissions), not its consequences. The fact that a certain consequence might be part of the actus reus elements of a crime does not automatically mean that it is technically “conduct” for the purposes of Article 12(2)(a).

The next step in the reasoning is equally puzzling in its construction. The PTC have to discuss how much of a “conduct” must take place on the territory of a State party to trigger Article 12(2)(a). Here, the Judges go into an interesting discussion on possible ways to interpret domestic practice on the exercise of criminal jurisdiction, with the ultimate conclusions that (par. 58):

first, under customary international law, States are free to assert territorial criminal jurisdiction, even if part of the criminal conduct takes place outside its territory, as long as there is a link with their territory. Second, States have a relatively wide margin of discretion to define the nature of this link.

In other words, this provides little help to actually interpret Article 12(2)(a), neither does it support the conclusions in the following paragraphs (par. 60-61):

since the States Parties did not explicitly restrict their delegation of the territoriality principle, they must be presumed to have transferred to the Court the same territorial jurisdiction as they have under international law.

The only clear limitation that follows from the wording of article 12(2)(a) of the Statute is that at least part of the conduct (i.e. the actus reus of the crime) must take place in the territory of a State Party. Accordingly, provided that part of the actus reus takes place within the territory of a State Party, the Court may thus exercise territorial jurisdiction within the limits prescribed by customary international law.

But how is there anything “clear” about the “wording of article 12(2)(a)” in that respect? Article 12(2)(a) makes no mention of “part of the conduct” or even “actus reus”! That is the whole point of having the discussion in the first place. If everything was that “clear”, there was no need to spend 8 pages on the matter in the decision…

Ultimately therefore, it is striking to note that there is in fact little support in the decision for the proposition that 1) conduct means actus reus of the crime, which also includes the consequences of conduct and 2) that it is sufficient for part of the actus reus of the crime to be committed on the territory of a State party for Article 12(2)(a) to be triggered.

In this sense, I wonder if there are not in fact strong reasons to have a restrictive understanding of the ICC’s exercise of jurisdiction, whether from the angle of the respect for sovereignty, or, more simply perhaps, from the angle of the application of the principle of strict interpretation of criminal law statutes (Article 22 of the RS). But this is too much to deal with here.

3) The material jurisdiction question

I don’t have much to say on the identified alleged crimes themselves (deportation and persecution).

In relation to deportation, I do note that the PTC chooses to not reopen the debate on whether it is a discrete crime under the Rome Statute (which has as a consequence that crossing a border becomes an element of the crime, which in turn allows for the exercise of territorial jurisdiction). I’m sure this matter will arise again in subsequent proceedings, as it should.

In relation to alleged persecution, the PTC’s way of linking it to Bangladesh (in order to trigger the territorial precondition to the exercise of jurisdiction) is not very developed. It simply states that: “The Chamber is further satisfied that the Prosecutor could reasonably believe that the alleged coercive conduct leading to the Rohingya’s deportation to Bangladesh was directed against an identifiable group or collectivity” (par. 109). This is a very minimalist explanation.

I note more particularly that the PTC stays away from discussing the “right of return” that had bee put forward in the initial request by the OTP. It would be premature at this stage to deduce from that a skepticism on the part of the judges for that argument, but it is interesting nonetheless that they chose not to address it.

Finally, on a broader level, if we accept for the purposes of the conversation that the PTC is right, this approach by the PTC, which particularly equates “consequences” to “conduct” for the purposes of the Article 12(2)(a), actually has an potential impact on the scope of the exercise of jurisdiction by the ICC which is not really explored in the decision. The PTC summarizes its position in the following (par. 124):

The Chamber recalls its determination regarding jurisdiction ratione loci where it found that the Court can exercise jurisdiction where a part of the actus reus of a crime within the jurisdiction of the Court is committed on the territory of a State Party. Consequently, the Chamber authorises the commencement of the investigation for crimes committed at least in part on the territory of Bangladesh.

With the following footnote 254: “For example if a person is shot on the territory of Myanmar and dies, as a result, on the territory of Bangladesh”.

But this logic, 1) bringing in consequences in the framework and 2) accepting that only part of the actus reus must be on the territory of a State Party, actually means that theoretically far more crimes could be brought into the discussion than the ones currently discussed in the decision (deportation and persecution). Indeed, if consequences are taken into account, by definition, the lasting consequences of all crimes will “follow” the victims into Bangladesh.

Moreover, pushing the logic even further, genocide (especially the “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” aspect of it) could be arguably brought into the fray. In that respect, I had already noted the absence of such discussion in the initial OTP request. We will have to see how things progress during the actual investigation, especially given the broader context of the proceedings initiated by Gambia at the ICJ.

4) interests of justice

Obviously, as the first Article 15 decision to follow the Afghanistan decision, it was going to be interesting to see how it dealt with the question of “interests of justice”.

I noted, in relation to the OTP request, that the choice had apparently been made to simply ignore the Afghanistan decision and remarked that:

More discussion would appear all the more justified that this situation seems to fall squarely in the Afghanistan logic, given that it involves alleged conduct that took place entirely (putting the legal nicety of the « crossing of the border » criteria) on the territory of a non-State party by non-State party nationals, with virtually zero chance of cooperation. If there was ever a time to explicitly challenge the Afghanistan understanding of the « interests of justice » in a request, it was now.

Well it seems that the OTP adopted the “right” strategy, because the PTC’s handling of “interests of justice” is minimalist at best. The Judges devote juste 7 lines to it in the decision:

As regards the interests of justice, the Prosecutor has stated that she has identified no substantial reasons to believe that an investigation into the situation would not be in the interests of justice and the Chamber has no reason to disagree with this assessment. This view is reinforced by the fact that, according to the Registry’s Final Consolidated Report, ‘all victims representations state that the victims represented therein want the Prosecutor to start an investigation in the Situation.

The PTC has therefore also chosen to completely ignore the Afghanistan decision, makes no effort to define the “interests of justice”, the applicable legal and procedural framework, or how it applies to the current situation.

Given the importance of the upcoming appeal, this is quite surprising. In fact, one might wonder whether there should not have been some judicial restraint here and whether it should not have been preferable to not issue the decision until the matter is settled on appeal.

5) the scope of the authorised investigation

On this point there is also a serious departure from the Afghanistan precedent. The PTC makes it very clear that (par. 126):

the Chamber wishes to emphasise that the Prosecutor is not restricted to the incidents identified in the Request and the crimes set out in the present decision but may, on the basis of the evidence gathered during her investigation, extend her investigation to other crimes against humanity or other article 5 crimes, as long as they remain within the parameters of the authorised investigation. Similarly, the Prosecutor is also not restricted to the persons or groups of persons identified in the Request.

I don’t necessarily disagree with that (as I noted in my critique of the Afghanistan decision at the time), but what is striking here is that there is zero reference to the Afghanistan decision. It is simply ignored as if it doesn’t exist. which means that currently, on this point, we have conflicting case law from ICC Pre-Trial Chambers, which is obviously not very helpful for the future practice of the Court.

I also note that from a temporal perspective, the PTC says that “crimes of a continuous nature” can be investigated “even when such crimes commenced before 1 June 2010 (or the date of entry into force of the Statute for any other relevant State Party) in so far as the crimes continued after this date” (par. 132). Given the long history behind the current situation, this temporal expansion of the jurisdiction of the Court could have a serious impact on the scope of the investigation.

6) conclusion

Legally, this decision is not really satisfactory. Its argumentation on a number of key issues is somewhat unconvincing and would have deserved more discussion, especially in such a sensitive situation bringing in a non-State Party.

Whether the PTC is technically right or not, I must admit, from the beginning of this process, some uneasiness at how the Rome Statute framework is here being interpreted in a way that allows, based on an arguably tenuous link to Bangladesh, the Court to investigate events which should normally be beyond the natural jurisdiction of the Court: on the territory of a non-State Party, with the involvement of non-State party nationals.

Beyond the legal issues raised by the decision, one can legitimately raise questions about the opportunity for the OTP (and the Court) to get bogged down in what is likely not to be a very easy situation to navigate, at a time when the Court is regularly criticised for not delivering on its promise for justice (a completely unreasonable promise to be making in the first place, but that is a different matter). Yet, seeing the initial reaction by some NGOs, I realise that the market for hope is still going strong…

On the other hand, this decision does contribute to the “new” narrative that the ICC is moving away from Africa. FIDH for example insists here on the fact that it is the first official investigation in Asia (So, Georgia, while being categorized as an “eastern european state” in UN/ICC regional groupings, is technically in Asia, but we get the point). How successful this move away from Africa will be is another question…

ICC OTP requests authorisation to open an investigation into the Myanmar situation: three comments

Last Friday, 5 July 2019, the Prosecutor if the International Criminal Court filed a request under article 15 to be able to open an investigation into the situation of Myanmar. This is no surprise, as she had notified her intention to do so on the 12 June 2019, which led to the constitution of a Pre-Trial Chamber to that effect.

I don’t necessarily have too many comprehensive comments on the substance of the request at this points, but having read through the request, I wanted to put forward three initial thoughts I had, which mostly relate to choices in terms of drafting.

  • The jurisdictional issue

As those following these proceedings will know, the current request was preceded by a decision last September, following a request from the Prosecutor under Article 19(3) of the Rome Statute, whereby a majority of PTC I considered, in a nutshell, that even though Myanmar was not a State party, the ICC could exercise jurisdiction in relation to the crime of deportation to the extent that one element of the crime (the crossing of an international border) did take place on the territory of a State party, here Bangladesh. The PTC also found that the ICC could possibly exercise jurisdiction over other Rome Statute crimes if it could also be established that one element of the crime took place on the territory of a State party.

Putting aside my doubts about whether it was appropriate to use article 19(3) like this in the first place (see here), I note that in the current request, the Prosecutor essentially takes the September 2018 jurisdictional decision as a given and does not explain this newly composed Pre-Trial Chamber what exactly what the reasoning of the other PTC was in relation to 1) considering deportation as a discrete crime under the Rome Statute and 2) its understanding of « conduct » in article 12(2)(b).

Given the discussions surrounding the use of 19(3) and the substance of the September 2018 decision, I would have expected the Prosecutor to do a little more explaining (convincing) in this respect, because it cannot be assumed that the new Pre-Trial Chamber will simply follow the prior decision in this respect.

Three additional small points in respect to jurisdiction:

– It is interesting to note how the OTP brings in other « crimes » (such as killings and rape) as evidence of the coercive nature of the displacement. This is quite smart I would say, but it does questions. Indeed, these « crimes » were entirely committed on the territory of a non-State Party and the Court cannot directly exercise jurisdiction over them, which means that any potential Accused cannot be charged for them. However, concretely they would be part and parcel of the discussion of deportation and any pronouncement of the Court on such questions would necessarily involve discussion of individual responsibility. In other words, any potential Accused would in effect be charged and convicted for these acts under the guise of deportation, which could reasonably be construed as an impermissible circumvention of the jurisdictional limitations of Article 12(2).

– At this point in time, the OTP reasoning on the link between these coercive acts and the deportation is quite embryonic. Indeed, logically, you would expect the Prosecutor to demonstrate a link between specific groups of refugees in Bangladesh and the alleged crimes constituting the coercive acts. However, the Prosecutor simply states that: « The coincidence in time between the peak of the violence and large numbers of Rohingya crossing into Bangladesh may, of itself, show a causal link between the coercive acts and the victims’ displacement to Bangladesh » (par. 113). While this might be sufficient at this stage of the proceedings, this should not be sufficient moving forward if an actual investigation takes place because conflating correlation and causation is not an acceptable investigatory methodology.

– Given the Prosecutor’s flexible inclusion of other « crimes » as underlying acts of coercion, I’m genuinely curious why genocide was not discussed. Now, I’m not familiar enough with the current debate going on about this, but there are a lot of claims of genocide being made. It would therefore interesting to know whether the non-inclusion of genocide is due to 1) lack of jurisdictional territorial link given the particular circumstances of this situation, 2) lack of actual evidence of genocide in the evidence provided to the OTP (as opposed to ethnic cleansing for example) and/or 3) a strategic choice to stay away from the issue.

  • The evaluation of the « interests of justice »

The request includes the usual (based on recent practice of the OTP) couple of pages indicating that “The Prosecution has identified no substantial reasons to believe that an investigation into the situation would not be in the interests of justice” (par. 290).

I have no strong views on this either way, but I do wonder whether this question might not have deserved a change of approach, given that this request in the first one to be filed since the Afghanistan decision. This latter decision and the fact that the OTP appealed is only mentioned in passing in a footnote (fn 774).

However, one could have imagined that the Prosecutor would present in more detail than it does here at least its understanding of the legal framework applicable to « interests of justice » determination, especially when it comes to the margin of discretion (if any) afforded to a PTC in reviewing an OTP request, rather than just referring the Judges to its appeals brief.

More discussion would appear all the more justified that this situation seems to fall squarely in the Afghanistan logic, given that it involves alleged conduct that took place entirely (putting the legal nicety of the « crossing of the border » criteria) on the territory of a non-State party by non-State party nationals, with virtually zero chance of cooperation. If there was ever a time to explicitly challenge the Afghanistan understanding of the « interests of justice » in a request, it was now.

Maybe there is a strategic choice here to not insist too much on this, on the double assumption that 1) the current PTC will know what the debate is about and 2) possibly that the Afghanistan decision is and will remain an isolated decision. Time will tell whether it was a good choice.

Of course, logically if I were the current PTC, I would not issue any decision until the Afghanistan appeal has been resolved one way or another.

  • The OTP’s approach to the assessment of available information.

As is well known, during the preliminary examination, the Prosecutor does not have autonomous investigation powers and must rely on publicly available information or information voluntarily shared by various sources (States, NGOs, etc.). This investigatory dependence on outside sources raises the question of what methodology needs to be followed by the OTP in assessing the seriousness of such information.

I recently submitted a communication to the OTP on this issue, specifically addressing methodological difficulties arising from relying extensively on human rights reports during a Preliminary Examination, such as the over-use of anonymous hearsay, the unverifiability of sources, the impossibility of assessing the credibility of alleged witnesses or the sometimes less ideal legal analysis put forward.

What is particularly relevant for the current discussion is that in that report I support my claim that the OTP should rigorously assess third-party material partly on the fact that the OTP itself has in the past, both in policy documents and in requests, clearly highlighted its autonomous obligation to assess the credibility and reliability of third-party reports.

For example, in the Afghanistan request, the Prosecutor indicated (par. 29):

The Prosecution has evaluated sources and their information following a consistent methodology based on criteria such as relevance (usefulness of the information to determine the commission of crimes within the jurisdiction of the Court), reliability (trustworthiness of the provider of the information as such), credibility (quality of the information in itself, to be evaluated by criteria of immediacy, internal consistency and external verification), and completeness (the extent of the source’s knowledge or coverage vis-à-vis the whole scope of relevant facts). It has endeavoured to corroborate the information provided with information available from reliable open and other sources.

This paragraph is directly copied from the Burundi request (par. 26) a few months prior.

In a similar fashion, in the Georgia request, the Prosecutor indicated par. 48):

Notwithstanding the low threshold that is applicable at this stage, neither theProsecution nor the Chamber should rely on information that is not credible or reliable. This is clear from the statutory requirement of determining whether the information available establishes a reasonable basis to believe that one or more crimes within the jurisdiction of the Court have been committed. Similarly, the Prosecutor, and the Chamber, must analyse and evaluate the seriousness of the information and the reliability of the source. To hold otherwise would require the Court to take any allegation made by any source at face value.

Given these systematic methodological clarifications in the most recent OTP requests, I was surprised that they have disappeared altogether from the Myanmar request, which simply states that: « The sources relied upon in this Request are amongst those considered by the Prosecution to be sufficiently reliable and credible for the proposition for which they are relied on » (par. 29).

Of course, you might consider that this is just a cosmetic difference and that this does not mean that the OTP did not concretely seriously assess available information. Maybe (although I note that the terms reliable, reliability, reliable, credible, credibility, authenticity, corroborate, corroboration and corroborated appears, taken all together, 13 times in a 146-page request). But I am still young and naive and believe that there is a reason why a party makes certain claims or not. As a result, I wonder why the OTP felt it necessary to explicitly lay down some methodological points in all recent requests, but not in the Myanmar request.

As an aside, I don’t understand why the annex listing information used is not publicly available (at least in redacted form), given that arguably a large number of sources will be public sources.

In conclusion, and generally, this request is a perfect case study in the ongoing debate about the balance that needs to be struck between the aspirational vocation of the ICC and its need to be realistic about what it can achieve (see recently Mark Kersten on this), and the related discussion about managing expectations created by ICC activities among affected communities.

I would think those who consider that the ICC cannot give up on being aspirational will likely think that the balance has been struck adequately here, within the jurisdictional limitations of the Court (although the genocide issue will obviously be a sticking point, given the weight of this issue in public discourse on the situation of the Rohingya).

I’m personally not too sure. The fact remains that both legally (the jurisdictional argument is not as solid as it should be) and practically (irrespective of the legal argument on deportation, this is essentially a situation relating to a non-State party), the ICC could be seen to be straying here on the very periphery, at best, of what it can deal with and the chances of anything concrete coming out of this are very slim.

This does not necessarily mean that the OTP should not have moved forward, but, at the very least, those reporting on this (NGOs and journalists alike) should be careful on how they present this move and its possible outcome, so as not to create unrealistic expectations that,  if they should  not be met, will contribute to plague the Court’s legacy in years to come.



Q: On 6 May 2019, the Appeals Chamber of the International Criminal Court issued its Judgement in the Jordan Referral Re Al-Bashir Appeal. On 16 May 2019, the Court issued an anonymous Q&A in relation to that Judgment which discussed not only the Judgment, but public reactions to it on twitter and on blogs. What are your thoughts on this?

A: This is quite an extraordinary practice which I have personally never witnessed before. If one must take a positive take on it, one could say that it is a nice example of openness and dialogue on the part of the Court when confronted to criticism.

However, this might be a too optimistic spin. Given the defensive tone of the Q&A and some of the pronouncements contained therein, it sounds more like a petty attempt at stifling criticism of ICC decisions, by attacking those who issued such criticism. Moreover, given these attacks, it is very surprising that they appear in an anonymous document. We should at least know from what organ of the Court this comes from, given that the Q&A format formally suggests some distance between the person asking the questions and the person answering them. At least, all those who expressed vigorous criticism of the Judgment did so in their own name and accept any public scrutiny of their views.

Q: You mention “attacks” against those having expressed criticism of the Judgment, what do you mean by that?

A: Well, to be fair, the anonymous author of the responses does indicate that “There is nothing new, extra-ordinary or wrong about judgments of courts of law generating discussion among those who have a view”. This seal of approval by the Court (or one of its organs?) telling me and others that it is not “wrong” to comment on ICC decisions, as we have done for years now, is a relief because we have collectively been asking ourselves the existential question of whether we should always approve of ICC Judgments, as the earthly embodiment of the will of the international community as a whole and the progressive betterment of mankind.

That being said, some of the comments made in the Q&A do seem to be unnecessary attacks on the professionalism of the commentators of the Judgment. Indeed, the anonymous author of the responses claims that:

In the era of social media, it is hoped that observers would properly study the Court’s judgments and decisions before rushing to comment on them. Hastily made comments, particularly when made before the commentator has even read the judgment in question, will fail to appreciate the totality and nuances of the Court’s reasoning, and may wholly misrepresent the decision or judgment. At the same time, those first comments appearing on social media frequently tend to dominate the ensuing discussion as they are tweeted and retweeted, regardless of their accuracy.

There is much to be said about this.

First of all, this remark suggests that it is inappropriate to comment on the Judgment as it is being delivered in open Court. However, why would that be a problem? One would imagine that the summary of the Judgment, while obviously not authoritative, does reflect what the Judgment says. If the public (which includes the observers) cannot understand the summary without the full Judgment,  or if the summary creates a risk of misrepresenting the Judgment, then why bother with a summary at all?

Second of all, and more fundamentally, it is not for the Court to decide what legitimate commentary should look like. If a person misrepresents a Judgment, it is that person’s problem, not the Court’s. Plus, it is obvious that, under the guise of criticising hastiness, the anonymous author of the response does not have in mind those who immediately defended the Judgment.

Third of all, the anonymous author of the responses seems to have a poor understanding of the dynamics of twitter. Tweets create a unique opportunity for a rich debate about issues. And the exchanges that took place immediately after the Judgment followed exactly this pattern, with numerous discussions ensuing between critics and defenders of the Judgment, and even between critics of the Judgment. The idea that our followers are uncritical sheep is somewhat offensive.

Fourth of all, I would be curious for the anonymous author of the responses to point to even one observer of the Court who retracted their initial views about the Judgment after having read the full text and the separate opinion. If anything, a number of the hasty observers expressed the view that these documents, when considered together, actually created more confusion about the actual Judgment. In fact, if you read the reactions on social media since the Q&A was released, it is very clear that some experts are still confused with the scope and reasoning of the Judgment, several weeks now after it was issued. So clearly, our initial reaction was well-informed enough and our criticism had nothing to do with hastiness or rushing in.

Finally, there is a fundamental lack of self-reflection on the part of the anonymous author of the responses, coupled with a disdain for those who disagreed with the decision. The implication is that we disagreed simply because we did not understand the details (the “nuances”) of the reasoning of the Chamber. Behind the empty claim that disagreement is fine, there is therefore the suggestion that we are, to put it simply, incompetent. Which means that the Prosecutor (who it should be recalled did not even argue for the customary law route), most of the amicus who appeared before the Court, the representatives of Jordan, the AU, the Arab League, the numerous experienced academics and practictioners who criticised the Judgment afterwards are all incompetent.

The anonymous author of the responses goes even further by specifically targetting “lawyers” in a generic way and invoking their professional obligations:

Lawyers engaging in public commentary should exercise particular caution and remain mindful of the cardinal principles that guide the conduct of lawyers, including that of honesty, integrity and fairness. This principle adequately covers the need to be fair when criticising courts and judges. Notably, the rules of professional ethics in most legal systems impose special caution on criticism of judges and courts, not because it is wrong to criticise them, but because they are generally not in a position to respond to specific criticisms. It does not mean that judges and courts may not be criticised. It only means that they be criticised fairly. There is an ethical obligation to reflect facts and circumstances accurately and fairly.

Setting aside the irony of claiming that Judges “are generally not in a position to respond to specific criticisms” in a document where it is exactly what is being done, this passage confuses a commentator who happens to be a lawyer and and a lawyer acting in that capacity before a particular Judge, which shows a misunderstanding of the judicial process. Lawyers are as free as any other observer to comment on judicial decisions and the reference to “professional ethics” can only be interpreted as an inadmissible veiled threat of sanctions in case of criticism of a Judgement that might not be considered as “fair” (whatever that means). It is nothing less than a threat to freedom of expression.

Q: But doesn’t the remainder of the Q&A demonstrate how some observers misrepresented the Judgment, by responding to some of the criticism?

A: Indeed, the anonymous author of the responses engages in a weird dialogue with the critics in relation to the substance of their disagreement with the Judgment. However, on these points, the answers given are far from satisfactory.

You will have noted that the anonymous author of the responses clearly misrepresents the Judgment in the first page of the Q&A. Indeed, it is claimed that:

The Appeals Chamber decided that the Pre-Trial Chamber’s finding that Jordan had failed to comply with its obligation to cooperate with the Court was correct: Jordan should have arrested Mr Al-Bashir when he was on Jordanian territory and surrendered him to the ICC. The Appeals Chamber essentially confirmed the Pre-Trial Chamber’s interpretation of articles 27(2) of the Rome Statute as well as of the effect of UN Security Council resolution 1593 (2005) on Sudan’s position vis-à-vis the Court, which had led the Pre-Trial Chamber to this conclusion.

However, the Appeals Chamber made an important addition: it clarified that, in any event, Mr Al-Bashir did not enjoy immunity as a Head of State vis-à-vis the ICC under customary international law, including in respect of an arrest by a State Party to the Rome Statute at the request of the ICC. Thus, the Appeals Chamber added an additional pillar on which the conclusion that Jordan should have arrested Mr Al-Bashir rested. The Appeals Chamber’s decision in this regard was unanimous.

When you read this, you have the impression that the main point of the Judgment was the discussion of the UNSC justification for the removal of immunities and that the customary law discussion was a mere, albeit important, addition. An afterthought so to speak.

But that is not what the Judgment does. It deals with the customary law issue first, claiming that is it the central and most important question raised in the appeal. It is even the first key finding of the Judgment. The Appeals Chamber went out of their way to make put this issue at the heart of the appeal, despite the fact that it was not even on appeal in the first place, but now, faced with the criticism, is trying to minimise that aspect. If that is not misrepresentation, I don’t know what is.

Q: Ok, but what about the other answers given in the Q&A? 

A: Well let’s take as an example, the anonymous author’s discussion of the distinction between jurisdiction and immunity. I feel compelled to reproduce it in full (sorry for your readers, anonymous interviewer), in order to avoid being accused of misrepresenting it:

This is an erroneous understanding of the Appeals Chamber’s judgment. It was specifically recognised in the Joint Concurring Opinion of four out of the five judges (incorporated by reference in the main judgment) that immunity and jurisdiction are not the same thing. The judges wrote that there is no immunity before an international criminal court in its exercise of ‘proper jurisdiction’ does not mean the court in question has that ‘proper jurisdiction’ to begin with. The existence of jurisdiction depends on its own source. Since customary international law is not known to confer jurisdiction on international courts, it means that the jurisdiction of an international court is prescribed in a written instrument. If that instrument is a treaty, then that treaty binds only those that are party to it. The Rome Statute is a treaty that binds the parties to it. But the written instrument that prescribes the jurisdiction of an international court can also be a Security Council resolution adopted under Chapter VII of the UN Charter, such as was the case here. In conclusion, it was made clear that in the absence of applicability of the Rome Statute or the presence of Security Council resolution, the ICC would have no jurisdiction. All this was actually made very plain in the Joint Concurring Opinion.So, if there is no jurisdiction to begin with, the question of immunity from that jurisdiction does not engage. But, when there is jurisdiction -as in this case, through a combination of Security Council resolution and the Rome Statute -and there is claim of immunity from it, then it becomes necessary to examine the basis or source of that claim of immunity.

First of all, you will note the apparent contradiction in the first two lines: how can it be an erroneous understanding of the Appeals Judgment when the explanation for the Appeals Chamber’s position (the distinction between jurisdiction and immunity) was not even in the Judgment, but in the separate opinion? If it was key to the understanding of the Judgment, why was it not in it?

Second of all, the Q&A claims that this separate opinion is incorporated by reference into the main Judgment. But how can a separate opinion signed by only four of the five Judges be incorporated in a unanimous Judgment? the fact that the fifth Judge refused to sign the separate opinion must mean that she did not agree with it. If she had, it would not be a separate opinion, it would be the Judgment itself. So there is a logical flaw in claiming that the whole of the separate opinion should be considered to be part of the Judgment.

Of course, you could argue that the specific paragraphs of the separate opinion which are referenced in the Judgment can be considered to have been approved by the five Judges. But this presents a problem on this particular issue: the paragraphs of the separate opinion where the jurisdiction/immunity distinction is discussed (par. 447-449), which are essentially the paragraphs summarized in the Q&A, are actually never referred to in the main Judgment, so can they be deemed to have been incorporated by reference in the Judgment?

Third of all, putting this minor incorporation problem aside and looking at the substance of the argument, it seems to state the obvious while not responding to some observer’s concerns at all. Our concern was that the Appeals Chamber’s reasoning would allow two States who individually could not arrest a sitting head of State because of his immunity (even for international crimes, even under universal jurisdiction principles) could confer jurisdiction on an international court for international crimes (by a bilateral treaty for example) and this would magically remove head of State immunity, the joint venture between the two States being able to do what the States separately could not do. In our scenario, the international tribunal in question would have jurisdiction, conferred by treaty. So responding to that by saying that the issue of immunity does not arise if the international tribunal has no jurisdiction in the first place is completely beside the point.

As an aside, one could even question whether the author of the Q&A/the authors of the separate opinion are not confusing jurisdiction and the exercise of jurisdiction. Indeed, it could be argued a UNSC referral is a trigger mechanism allowing the Court to exercise jurisdiction, but does not as such grant the ICC jurisdiction. Of course, to accept this, you would have to follow my oft-repeated analysis that Article 12 is not a jurisdictional provision, but if you look at the title of the Article you can see that…

Q: Sorry to interrupt, but you’re starting to confuse everyone now… let’s get back on track. You just mentioned the ambiguous status of the separate opinion in relation to the Judgment. In the Q&A, it is said that this is not unusual. How do you respond to that?

A: Most of those who raised this issue  have been following, studying, practicing ICL for years even decades. Some of us are even experts specifically in the analysis of separate and dissenting opinions. So to be given a lecture on the nature and function of separate/dissenting opinions is somewhat insulting.

Of course, over the years, there have been a number of quirky separate opinions in ICL (in Katanga for example, the two Judges from the majority wrote a joint concurring opinion (so concurring with themselves) which was in fact a response to the dissenting opinion to the Judgment). But these practices remain rare and difficult to justify.

In the present case, it is perfectly legitimate for an observer to wonder exactly why a large chunk of the separate opinion (for example relating to the nature of UNSC referrals, the nature of international tribunals or the case law relating to the customary law status on immunities) is not in the main Judgment and what to do with a 190-page separate opinion written by 4 of the 5 Judges of the Chamber in a unanimous decision.

Q: Thank you for taking the time to answer our questions on such short notice. Do you have any final thoughts on the Q&A?

A: Clearly, this Q&A has taken everyone by surprise. Reactions I’ve seen on the maligned twitter network suggest quasi-unanimous lack of understanding at what exactly the authors of the Q&A were trying to achieve. The Q&A leaves this uneasy impression of being both condescending (using a tone you might reserve for a small child) and childish (it’s not fair…).

I also wonder why now, about this particular decision. Because honestly, on the scale of criticism, the reaction to the Immunities Judgment pales in comparison to the reaction to the decision not to open a decision in the situation of Afghanistan, which was shredded immediately after it came out. Yet the Q&A document for the Afghanistan decision is very basic, just one page simply presenting the findings of the PTC. Where is the positive defence of that decision, which constitutes a decision by the Court? Where is the explanation of why the Afghanistan decision is fantastic and simply misunderstood? Where is the chastising of all those nasty commentators who criticised it hastily? Could it be that this time, it involves the Appeals Chamber, rather than a mere Pre-Trial Chamber? If true, this would mean that the “Court” is more willing to go out on a limb to defend certain Judges rather than others, which should not be the case.

Overall, I don’t see how this is a good communications strategy on the part of the Court. This defensiveness and aggressivity gives out an impression of weakness and nobody will change their mind based on the Q&A. As someone wise told me today, silence in such cases should always be the default option. I’m of course incapable of taking this advice, against my better judgment, but maybe the ICC should consider it seriously.

Short post on ICC Presidency underwhelming decision in relation to the Judge Ozaki imbroglio

Yesterday, the Presidency of the ICC issued a decision relating to various requests filing by the Ntaganda Defence following the decision of the plenary of Judges to allow Judge Ozaki to continue to sit on Trial Chamber VI during the deliberations of the case, while taking up a position as Japanese Ambassador to Estonia.

I just wanted to share a few quick thoughts:

1/While I understand it procedurally, I find the distinction between fitness to be a Judge generally and fitness to be a Judge on a particular trial somewhat artificial. The Presidency suggests in its decision that only the latter can be raised by the Defence in a particular case, because general unfitness does not necessarily entail bias in particular proceedings. But if a Judge is unfit to be a Judge at all, how is that not something that can be raised by a Party to a specific case? It does not make sense to me practically.

I also note that the decision considers that determining whether a Judge is fit to be a Judge (independent, impartial, etc) is a purely “administrative” function. This bothers me, because such a determination is at the heart of the judicial process and someone should be accountable for it. Another victory for managerialism?

2/ I find the harsh criticism of the Defence filing strategy, which is accused of obfuscating things and creating unnecessary delays wholly inappropriate. It is not unreasonable for the Defence, faced with an unprecedented scenario, to take all necessary measures to make sure that no procedural mistake is made. But it seems it is always a lose-lose situation for the Defence. If they had gone straight to TC VI with a disqualification request, they might have been told to address the Presidency. Or they might have been told that they lack a factual foundation for the request. If they go to the Presidency with a request for disclosure in order to support their subsequent request, they are told that they are wasting time. The bad faith here is breathtaking.

All the more breathtaking,  given the Judges’ collective failure to avoid this mess in the first place, therefore putting the Defense in this difficult situation.

In that respect, the setting of a strict deadline for the Defense to file a disqualification motion before TCVI (par. 24) is frankly incomprehensible. There is no legal basis given for that and there is no reason the Presidency (an administrative body, by its own admission) should be setting deadlines for Parties in a particular case instead of the Trial Chamber to which the case has been assigned. This is wholly inappropriate. The disposition of the decision even goes further as to also set a deadline for any response by the Parties as well as a deadline for Judge Ozaki to respond.

A footnote (fn 30) tells us that “One Judge was of the view that the Presidency could not impose a deadline for the filing of a request for disqualification”. Thank you for letting us know, but it would have been nice to have some insight in what actually justifies this legally.

3/ On the disclosure of information, the Presidency continues to refuse to disclose any information relating to the process that led to the Plenary decision in the first place. I do not understand the lack of transparency here, especially given the storm the decision created. The Presidency cannot hide behind the fact that this is an administrative decision because, as noted above, such a decision goes at the heart of the judicial function of the Court and should be subject to public scrutiny, if only by the Parties to the proceedings.

Apparently, “One judge expressed a contrary view and, rather, would have favoured partial disclosure of information (other than the records of deliberations amongst the judges) as necessary to safeguard the human right to defence of Mr Ntaganda including the right to ask and receive information required to properly exercise his right to a defence” (par. 29). I agree with this anonymous Judge that the Defence should be given an opportunity to access relevant information that might be relevant for any disqualification motion.

My guess is that ultimately, this whole process will go nowhere and will not end with the disqualification of Judge Ozaki. But in the meantime, the whole procedure continues to give us invaluable insight in how the current Judges at the ICC think, and think of themselves, and this is fascinating.