South Africa (and Burundi) to withdraw from the ICC?

Last week, the Burundi Parliament voted a withdrawal of their country from the ICC. a few days ago, the President of Burundi apparently signed a decree to take this decision a little closer to being a reality. Yesterday, it appears that South Africa initiated the process of leaving the Court as well.

These two possible withdrawals raise a number of interesting questions, both legally and politically.

In terms of the applicable legal framework, the first (obvious) point to note is that such a withdrawal is indeed allowed by the Rome Statute, under Article 127.

The second point to note is that annoucements by governments or decisions  adopted by domestic bodies are not sufficient for a withdrawal to take effect. Article 127(1) provides that:

A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.

Therefore, without a notification to the UNSG, there can be no withdrawal. It seems that South Africa (but not Burundi) has deposited such a notification. It should be noted that the question of the domestic legality of a withdrawal is a different issue (on South Africa, see initial thoughts from Richard Goldstone here).

In terms of the legal consequences of a withdrawal, I refer you to the excellent post by Alex Whiting over at Just Security where he discusses whether Burundi leaving the Court would have an effect on the Prosecutor’s capacity to investigate and prosecute crimes that took place before the withdrawal takes effect. As Alex recalls, this issue is covered by Article 127(2) of the Rome Statute which provides that:

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

The key issue is what is covered by the expression “any matter already under consideration by the Court”. Alex Whiting makes the argument that this expression is broad enough to cover preliminary examinations by the OTP. Possibly, he is right from a linguistic point of view. However, I have a difficulty with the idea that such an informal phase as a preliminary examination (which might simply involve an OTP investigator sitting in front of his computer in The Hague downloading HRW and Amnesty International reports) might have such massive consequences as trumping the decision of a State to withdraw from the Rome Statute.

As an aside on this point, Alex Whiting says in his post that: “the preliminary examination stage is not formally mentioned in the Rome Statute, but is simply implied from the Prosecutor’s obligation to assess whether certain jurisdictional and admissibility requirements have been met before commencing an investigation”. This is only true in the case of State or UNSC referals. However, Article 15, which applies the Prosecutor is considering opening an investigation proprio motu, explicitly mentions the existence of “the preliminary examination” (Article 15(6)). It makes sense that the Rome Statute would explicitly recognise such an phase in the context of Article 15, because in that case there is a formal judicial review of the Prosecutor’s examination in order for her to be able to start an investigation.

One last point that could favour a more limited, rather than broad interpretation of Article 127(2), is the formulation used in other versions of the Rome Statute. For example, the French version of the Statute says that: “le retrait n’affecte en rien la poursuite de l’examen des affaires que la Cour avait déjà commencé à examiner avant la date à laquelle il a pris effet”. The word “affaires” (cases) seems narrower that “any matter”. This is obviously not decisive and a comparison in the other official language could be interesting (comments on this welcome).

Politically, my first question is whether this is all a coincidence. It seems improbable that independently from each other, these two african States would decide to drop such  political bombshells the same week. And if there was indeed some form of coordination between South Africa and Burundi, one can wonder if other countries will follow. In any case, it does put a dent in the idea the Burundi would be isolated, or a “pariah”, as Mark Kersten put it in a blog post last week.

Second, the reactions to the withdrawal, if effective, are likely to be unsurprising: any criticism of the ICC is usually seen as a handful of bloodthirsty dictators trying to escape Justice. This is of course partly true, I’m not naive. However, this should not prevent us from either taking seriously some criticism of the ICC or trying to understand political consequences of such withdrawals.

In relation to the ICC, for example, I’ve argued for years that the ICC’s case law on immunities is disastrous, poorly argued and contrary to international law (see my paper on this here). On this point, I find South Africa’s reaction perfectly reasonable: basically, they are saying that this is not what they signed up for (putting aside the domestic legislation issue), and therefore are withdrawing from the Court. Another example: I’ve always had sympathy with the position taken by Judge Kaul in the Kenya cases that the organisational threshold for crimes against humanity should be higher than just a handful of people coming up with a plan (see my thoughts on this here). This means that the Court would not have jurisdiction for certain situations of post-electoral violence for example and one can legitimately consider that the ICC should not intervene in such situations. As far as I know, Judge Kaul was not a bloodthirsty dictator.

On a more fundamental level, The debate simply cannot be reduced to a simple manichean anti-impunity/pro-impunity dichotomy, in such complex situations following structural human rights violations or civil conflict. One should be able to question the underlying assumptions of the ICL project about the benefits of prosecutions in a broader transitional justice context. I’m still not convinced that there is in fact any such benefit and one should be able to discuss this point without being portrayed as a genocide apologist. In the case of South Africa, one can wonder for example if the TRC model, supported by so many until now, would be accepted by the ICC, notably within the framework of complementarity? I think that it wouldn’t.

Finally, the withdrawals, again if they become effective, are interesting on another level: they challenge a (slightly arrogant) tendency of the Human Rights/ICL movement to present their narrative of progress as inevitable. That is simply not true. No political project is inevitable (just ask the Romans…). Particularly in relation to ICL, I do think that the proponents of international tribunals and the ICC underestimate (or willfully ignoring) the fact that these institutions face the risk of being marginalised and ultimately irrelevant. Maybe one day, we will look back on this period and see it as a “moment” of international justice which ended like all previous “moments” of international justice: drowned out by the reality of international relations.

Heal the World at the ICC opening Ceremony… no, they didn’t dare!

Yesterday, the new ICC premises were officially opened, with prestigious visitors, such as the King of the Netherlands and Ban Ki Moon. I’ll let you enjoy the predictably upbeat speeches about how the ICC is a positive development for the world. And why not. After all, that this the whole point of such a ceremony and you could hardly expect anything else to be said. But then the organisers went into overkill mode. Just think of the most cheesy and dripping with good feeling song possible to sing at such an event. Yes, that’s the one:

I just cannot believe that the organisers chose to make what is of course meant to be an optimistic event, a caricature of itself by having Heal the World by Michael Jackson sung by children as the final act of the ceremony. Reassuringly (I suppose), the face of some of the members of the audience as they discovered the song shows that they shared my unease…

I would love to have been a fly on the wall in the meeting where this was decided:

“- So how should we conclude the opening ceremony of an institution that is struggling to live up to the completely unrealistic expectations that have been put on it since it was created?

– I know! Let’s play up those expectations a little more and suggest that the ICC is going to make the world a better place for you and for me and the entire human race!

– You mean that it can heal the world?

– Exactly! I’m sure there must be song to best convey that feeling…”

The rest is HIStory… and probably this song would have been too close to home…

Is the ICTY ashamed by its own Seselj judgment?

Today, the ICTY issued its Judgment in the Seselj case. The Judgment of acquittal on all counts came as a shock to many observers. Followers of this blog will know that I believed Seselj should have been released years ago, when one of the Judges on the Trial Chamber, Judge Harhoff, was recused (see here, here, and here). I’ll return to the content of the Judgment in the coming days. One thing that struck me today is how the ICTY communications office has dealt with the acquittal.

If you look at the home page of the ICTY, there is no mention of the outcome of the Judgment, despite the Seselj case being one of the most important cases at the ICTY since it was created.

Basically, the first news about the Judgment to appear on the ICTY news page was not the outcome of the Judgment, but the OTP press release regretting the acquittal. I found this a little strange and tweeted:

Some would say that I was just being paranoid and that this does not mean anything.

However, a few hours later, the next news item was still not the outcome of the Judgment, nor was it the fact that the Judgment was now available online. No, it was a link the summary of the dissenting opinion of Judge Lattanzi, who would have convicted Seselj for all but one count. It’s still the case on the website now, but here’s the screenshot for posterity:

Capture d'écran 2016-03-31 17.04.11

This “choice” by the ICTY media office makes it even more obvious for me that the ICTY is officially trying to put the acquittal under the rug.

As an additional confirmation, I checked the twitter feed of the ICTY. While, for the Karadzic Judgment, the ICTY did live tweeting, concluding with the following tweets:

for the Seselj Judgment, things were very different:

Capture d'écran 2016-03-31 17.06.12

As this screenshot shows, there is simply the announcement that the Judgment is scheduled, then no indication of the actual outcome, followed by the OTP press release.

Just to be sure one more time that I was not dreaming, I went back to the 15 December 2015 when the Stanisic and Simatovic Appeals Judgment was issued, and the ICTY news feed did indicate back then the outcome of the Judgment:

So, clearly, there is a decision made here to minimise the Judgment that was issued today. In other words, the ICTY seems to be ashamed by a Judgment rendered officially by one of its Chambers. Unsurprisingly, I find this absolutely appalling and it is a shameful conduct. The ICTY, as an institution, should stick by the decisions that it delivers, whatever the outcome. I have blackened dozens of pages and spent liters of saliva over the years, trying to explain to everyone that in a criminal law system that is healthy, we should respect the outcome of trials, even when it is an acquittals.

And then, the ICTY shows a total lack of respect for itself. What’s the point in trying in that case?

6 Quick Thoughts on the Karadzic Judgment

Today, the ICTY issued its long awaited Judgment in the Karadzic case. Given its length, over 2500 pages, this post can obviously not provide any comprehensive analysis of the Judgment. I do however want to share 6 quick initial and general thoughts :

  • As noted, the Judgment is very long. This might seem a little shocking at first, but given the length of the trial, the huge body of evidence adduced from the trial and the crimes covered, its length can be understandable. Which does not mean that this is not problematic. There has to be something wrong with a system, from the OTP charging strategy, to the case management by the Judges, for such a Judgment to be rendered. Nobody is going to read 2500 pages and questions can certainly be asked about the pedagogic effect of international judgments.
  • Which brings me to my second point: the fundamental question of the usefulness of international judgments generally. Indeed, following the build-up to the delivery of the Judgment in the general media, it was obvious that Karadzic was already considered to be guilty. All that everybody expected was a formal confirmation of their view that this was indeed the case and nobody would have accepted an acquittal (as shown by initial reactions to the acquittal of Karadzic on one count of genocide, or the “inadequate” 40 year prison sentence). This means that in fact, there is an expectation of conviction and the idea that an acquittal is not an option. This shows in fact very little respect for the criminal law process, based on the presumption of innocence.
  • Rather unsurprisingly, the Chamber acquitted Karadzic for the Count of Genocide in relation to the Municipalities. This is unsurprising because the Chamber had already dismissed this Count under Rule 98(bis), before being overturned by the Appeals Chamber. There is now consistent case-law that there was no genocidal intent in the rest of Bosnia and I remain surprised at the criticism leveled at the ICTY on this point: clearly, ICTY Judges, who in the past have stretched the definitions of crimes, modes of liability and acceptable evidence beyond recognition to cast as wide a net as possible in the “fight against impunity”, can hardly be considered as genocide apologists and if they have not found evidence of genocidal intent in so many cases, it must mean something.
  • I look forward to the Appeals process. Given the fact that Appeals Chamber has already decided that there is sufficient evidence of genocidal intent for the Municipalities Count when overturning the 98bis decision, it is easy to guess that the OTP will appeal that acquittal. Also, there seem to have been countless disclosure violations by the Prosecution (108 (!)motions were filed by Karadzic to that effect, a lot of them successful). Peter Robinson, Karadzic’s legal advisor, has been documenting them on his twitter feed. One tweet, posted on the eve of the Judgment, if true, certainly raises question about the fairness of the process:
  • As an aside to the delivery of the Judgment, the ICTY sealed a solid victory in its fight against impunity, by getting the Dutch authorities to arrest Florence Hartmann (images of her arrest here), a French journalist who was fined 7000 euro for publishing information in a book on the content of confidential decisions of the ICTY (images of her arrest here). The fine was later commuted to a 7-day prison sentence. This is rather ridiculous, and I’m sure that the ICTY has better things to do that this… or maybe not.
  • And a final fun fact: a search for “Mladic” in the Judgment comes up with 1883 hits… Anybody care to take bets on the outcome of that trial?



ICTY orders retrial of acquitted defendants in unconvincing Judgment

Yesterday, the ICTY Appeals Chamber rendered its Judgment in the Stanisic and Simatovic case. Both defendants had been acquitted of all charges in the Trial Judgment (part 1 and part 2). They were acquitted under JCE liability because their mens rea to contribute to The JCE was not established beyond reasonable doubt. They were also acquitted for aiding and abetting liability because their acts were not specifically directed at the commission of crimes. This is explained by the fact that the Trial judgment came out in the period of time between the Perisic appeal Judgment which got the ball roling on the need for the “specific direction” requirement in aiding and abetting liability and the Sainovic Appeal Judgment which promptly batted the requirement out of the park.

The Appeals Judgment quashes both acquittals and orders a retrial. While I can imagine that attention will naturally focus on the aiding and abetting part of the Judgment, given all the heated debates on the “specific direction” requirement (see Marko Milanovic here and Kevin Jon Heller here), the Judgment actually delivers some other interesting gems.

  • The flawed reasoning on JCE

The reason for quashing the JCE acquittal is somewhat puzzling to me. Indeed, the Appeals Chamber doesn’t seem to have any quarrel with the factual assessment done by the Trial Chamber in determining the absence of the required mens rea of the accused. For the AC, the problem lies with the fact that the TC should not have entered findings on the mens rea of the accused on the basis of the « alleged JCE » as argued by the Prosecutor, but first entered findings on the actual elements of the JCE. Here is the relevant passage (par. 82):

The Trial Chamber was therefore required to examine whether Stanisic’s and Simatovic’s shared intent to further that common criminal purpose could be inferred from their knowledge combined with their acts as well as from their words and interactions with other individuals, after having established the existence and scope of the common criminal purpose shared by a plurality of persons. In other words, without making findings on the existence and scope of the common criminal purpose shared by a plurality of persons, the Trial Chamber could not assess Stanisic’s and Simatovic’s words in the context of “that purpose and whether their acts contributed to that purpose and, consequently, it could not properly adjudicate whether Stanisic’s and Simatovic’s mens rea for JCE liability could be inferred from the circumstances.

There is both a legal and a logical problem with this reasoning.

Legally speaking, there is not one footnote in support of this affirmation. This beats even Perisic and its reliance on a single sentence from the Tadic Judgment to justify the specific direction requirement. In fact, in his dissenting opinion, Judge Afande provides several examples of TCs proceeding in this manner.

Logically speaking, I have a problem with the underlying idea. Indeed, what the AC is essentially saying is that a TC must make findings about all elements on a mode of liability before pronouncing itself on one of them. I’m not sure this makes sense. Imagine the following scenario. A man is accused of selling a car to a group of people allegedly sharing a criminal intent to rob a bank. However, his lawyer proves that this man had no knowledge of or intent to contribute to any criminal activity when he sold the car. This should be case closed, right? who cares whether the group of people exist, or if they actually did share a criminal purpose. Not according to the AC which would still require that the judge establish whether there is a group of people and whether that group of people is acting with a criminal purpose. That is not really efficient practice in my view. If we push the logic, and take an even simpler example, it means that if a man is accused of killing his wife in Paris with a gun and he has an alibi that puts him in New York at the time of the alleged crime, a Judge would still have to determine that the wife has indeed been killed by gunshot, even though there is no chance that the accused was involved in the crime, alleged or actual.

More importantly perhaps, there is an underlying implicit view of the role of the Judge in the criminal proceedings. What the majority of the AC are saying is that the Judge is expected to determine the existence of a common criminal purpose (including its scope and its members) based on the evidence adduced by the Prosecutor. This finds support in the OTP appeal arguments (par. 62) : «In the view of the Prosecution, without making findings on the existence of a common criminal purpose, its scope, members who shared it, and the conduct which contributed to it, and without a reasoned opinion on these essential elements, the Trial Chamber could not correctly decide on Stanisic’s and Simatovic’ s shared intent to further the common criminal purpose».

However, technically, there isn’t « a » common criminal purpose, there is « the » common criminal purpose alleged by the Prosecutor. He has the burden of proof, and he constructs the indictment. The only role of the Judge is to determined whether the allegations are proven beyond reasonable doubt, not whether the evidence brought by the prosecutor proves something, whatever it is. From this point of view, the TC was not incorrect in taking as a starting point the common criminal purpose that the Prosecutor alleged, with an alleged scope and composition. In other words, the Judges already knew the scope and composition of the common criminal purpose : the one put forward by the Prosecutor. That is the one that was relevant for the charges brought against the Accused. Maybe the evidence shows several other common criminal purposes, with different scopes and compositions, but that is in my view not in the least bit relevant if the Prosecutor did not plead them. I insist : he has the burden of proof and the judges are not there to subsitute their own legal understanding of the facts and evidence to fit their own personal common criminal purpose.

  • The order for retrial

Concerning the order of a retrial, it is quite a massive decision to decide to start from scratch such a long process. It also conveniently gives work to the MICT for a few years.

Essentially, the AC considers that it would be too difficult and too much work to go through the whole case record to make the necessary missing findings that it considered were not made by the TC. In that respect, I note an interesting argument raised by Judge Agius in his separate and partly dissenting opinion.  He considers that the Majority should have done a review of the evidence in order to assess whether the error of law that they identified in fact had an impact on the outcome of the trial judgment in order to invalidate it (par. 10): « I respectfully believe that it is most unfortunate that the Majority neither attempts to conduct a review, nor offers any explanation as to how the Trial Chamber’s error invalidated its findings with respect to Stanisic’s and Simatovic’s mens rea ». This is for me a convincing argument. The Appeals process is not complete until it is determined that, but for the error of law, the Judgment would have been different. However, rather surprisingly, Judge Agius then goes on the actually follow the Majority in ordering the retrial for the following reasons : «At this stage of the Tribunal’s mandate, and with one member of this Bench only mandated to serve until the end of the year, I am fully aware that there is no time for the Appeals Chamber to conduct the exercise of review itself even if I were to convince my Colleagues that such an exercise was a preferable and appropriate exercise of the Appeals Chamber’s powers. I also find myself in the absolute minority on this issue- It is for these reasons, after having given due consideration to matters such as fairness to the accused, the interest of justice, the circumstances of the case in hand, and considerations of public interest, that I join the Majority in ordering a retrial in this case».

This reasoning is particularly unconvincing. Once it is established that doing the review was a legal obligation on the part of the AC in order to invalidate the decision, then the failure to do so is illegal (and not « unfortunate » as noted by Judge Agius). End of discussion. If Judge Agius truly believes that, then the fact that the mandate of one judge is ending is irrelevant. That is a human ressources argument that has no place in a legal argument. Even less convincing is that fact that he is in the minority. Following that logic, there would never be any dissenting opinions!

  • The new death of “specific direction”?

Finally, in relation to «specific direction», there isn’t in fact much to say. Given the composition of the bench, there was little doubt that there would be majority to follow Sainovic rather than Perisic (see Marko and Kevin on the process that led to the composition of this bench). And unsurprisingly, Judge Agius dissented. I won’t go into the debate on the requirement here, but two points can be made in relation to the Judgment.

First of all, it is interesting to note the very pragmatic approach of Judge Afande in his dissent. He essentially does not take sides on the debate on whether « specific direction » is a legal requirement of aiding and abetting liability (whether as part of the actus reus or the mens rea). Rather, he puts forward a pragmatic and practical argument, similar to the one found in Perisic : there are factual situations where, in the absence of a discussion of « specific direction », it is impossible for a Judge to determine that the only reasonable inference of the facts is that the accused had the requisite mens rea or actus reus to aid and abet the commission of the crimes charges. It is a case-specific evaluation that depends on the facts. While this reasoning does not « solve » the legal question that plagued the Perisic and Sainovic Judgments, it does explain why I believe that the discussion on «specific direction» is not as dead as some would like it to be. As ICL has a tendency to cast the net of responsibility in always a wider range, there will always factual scenarios which create unease with finding criminal responsibility among some Judges and these Judges will always need to resort to arguments (call it «specific direction» or something else) to keep ICL in check.

Second of all, in the particular circumstances of this case one can note that the AC casually discards the lex mitior argument presented by Simatovic who considered that if there was going to be a retrial on aiding and abetting liability, the most favorable law should apply, i.e the version with «specific direction». The Appeals Chamber answers that because «specific direction» was never a part of aiding and abetting liability, there was no more favorable law to apply. On a basic level I understand the position of the AC, once you accept the legal analysis on specific direction. However, the problem I have is on the finding of the error of law in the first place. When the TC issued its Judgment, it was applying the law as it was bound to apply it, that is the one stated by Appeals Chamber of ICTY, the highest Chamber of the tribunal. For all intents and purposes, «specific direction» was part of aiding and abetting liability in the period of time between Perisic and Sainovic so there was no error of law at the time of the Judgment. In the same way that the OTP could not obtain the reconsideration of the Perisic Judgment after Sainovic came out, I think that Stanisic and Simatovic should have remained acquitted on that count.

In conclusion, this AC Judgment is not extraordinarily convincing, especially on JCE. I hope the international community of commentators and general media reacts as strongly as it did on the Perisic Judgment. Sadly, I doubt it, because the bad guys are back in jail, so everything is back to normal…