Q&A regarding the “Q&A REGARDING APPEALS CHAMBER’S 6 MAY 2019 JUDGMENT IN THE JORDAN REFERRAL RE AL-BASHIR APPEAL”

THIS HASTILY DRAFTED DOCUMENT IS NOT PART OF THE COMMENTARY TO THE APPEALS JUDGMENT. IT IS ISSUED PURELY FOR PURPOSES OF PUBLIC INFORMATION. THE AUTHORITATIVE PRONOUNCEMENTS OF THE AUTHOR CAN BE FOUND HERE.

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.

Guest post: The Appeals Chamber’s Chastisement of PTC II for its Article 87(7) Referral Gameplaying

[Hemi Mistry is an Assistant Professor in Law at the University of Nottingham, where she researches and teaches in the area of international criminal justice. Her current research focuses upon how judicial procedure before international courts and tribunals affects how those institutions pursue their mandates. She wishes to thank Dov Jacobs for hosting this guest post.]

It’s a been a fiery time in the world of ICL: first, the decision by Pre Trial Chamber (PTC) II not to authorise an investigation into the situation in Afghanistan situation and second, this week’s bumper decision by the Appeals Chamber (AC) in Al Bashir, concerning Jordan’s non-cooperation in the execution of the arrest warrant for Omar Al Bashir and – more widely – the matter of immunities under customary international law. With the judicial division of the ICC seemingly intent upon institutional (self-)immolation, the international legal Blogosphere and Twittersphere have watched on (and fanned the flames) in horror. Amidst the flames, I wish to highlight one important aspect of Monday’s AC decision which represents a positive development in the Court’s caselaw. Specifically, this post concerns the Appeal Chamber’s reversal, by majority, of PTC II’s decision under Article 87(7) to refer Jordan’s non-cooperation in the arrest and surrender Omar Al Bashir to the UN Security Council and ICC Assembly of States Parties. Against the backdrop of the bigger ‘immunities’ question (for first of what will likely be many takes, see Jacobs and Akande) and the post-Afghanistan decision ‘crisis’, the corrective issued by the AC may at first glance appear to be a case of fiddling while Rome burns. However, as I will argue, this aspect of the AC decision represents an important attempt by the Chamber to reign in, or at least draw a line under, one of the most problematic and (excuse the pun) unruly traits in recent PTC decision-making. But first, a lot has happened, so to understand the significance of this week’s decision it is necessary to go back to basics…settle in for a story…

Article 87(7) represents one of the limited number of tools available to the ICC to respond to failures by its States Parties to comply with their obligations under the Rome Statute and to provide cooperation to the Court in the forms requested by its organs. It reads:

Where a State Party fails to comply with a request to cooperate by the Court contrary to the provision of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.

Article 87(7) determinations of non-cooperation and referrals to the Security Council have become a standard response to the failure by States Parties to arrest and surrender Omar Al Bashir upon his presence within their jurisdictions. The first three ‘referrals’ of non-cooperation by PTC I of Sudan in Harun and Ali Kushayb and of Kenya and Chad in Al Bashir, all issued in 2010, were not technically referrals under Article 87(7), but the exercise rather a summarily-claimed inherent power to ‘inform’ the Security Council of the accused’s presence upon the territory of a State Party, or the situation-State. However since then, PTC II, initially configured as PTC I, made three Article 87(7) referrals of Sudanese non-cooperation in violation of its obligation to cooperate with the Court established under Security Council Resolution 1593: two in Al Bashir (here, and here) and one in Hussein (here). Further to this, Chambers have issued non-cooperation decisions against eight States Parties for their failures to arrest and surrender Al Bashir upon his presence within their respective jurisdiction: Chad (2011, and 2013),  Malawi (2011), Nigeria (2013), the DRC (2014), South Africa (2015), Uganda (2016), Djibouti (2016), and Jordan (2017). In all but two instances (Nigeria (2013) and South Africa (2015)) of these instances of non-cooperation the Chamber went on to refer that non-cooperation to the Security Council and the Assembly of States Parties. Monday’s AC decision, however, reverses the PTC’s decision to refer Jordan’s non-cooperation to the Security Council.

PTC II’s caselaw on Article 87(7) is characterised by two themes: 1) Its growing frustration with the failure of states to engage with – even acknowledge – their obligations to cooperate under the Rome Statue, and 2) the PTC’s growing frustration with the Security Council and its failure to do anything to follow up on the Chamber’s referrals once they had been made. These frustrations manifested themselves in a number of ways. One way has been the gradual escalation in the language and detail with which the Chamber exhorts the responsibility of both States Parties and the Security Council to cooperate with and support the Court. Another way this frustration has manifested is the Chamber’s attempt to leverage whatever coercive tools it has within the Rome Statute toolkit to nudge States Parties towards increasing constructive engagement with the Court around the matter of cooperation, with the ultimate goal being fulfilment of cooperation requests. One such tool is the discretionary component of Article 87(7).

The early jurisprudence in Al Bashir adopted a straightforward interpretation of Article 87(7). The permissive, or discretionary, nature of the power to determine non-cooperation and refer was not acknowledged and, instead, once the Chamber had established the State Party was under an obligation to cooperate and two had failed in fact to provide that cooperation, the referral of that finding of non-cooperation was automatic (see, for example, Chad (2011, and 2013),  Malawi (2011)). In these early decisions the Chamber was presented with quite straightforward non-cooperation: the states in question simply did not engage with or acknowledge their obligations under the Statute, asserting instead the immunity of then-President Al Bashir. With non-cooperation findings and referrals stacking up and gathering dust untouched by the Security Council, in 2013 the Chamber was presented with a new situation when, for the first time, it was presented with non-cooperation by a State Party – Nigeria – which did, at least, acknowledge and accept its obligations under the Statute, which professed its commitment to fulfilling those obligations and which provided explanations for its failure on that occasion meet the Court’s cooperation request. In response, for the first time the PTC acknowledged the permissive ‘may’ in Article 87(7) and in doing so emphasised the discretionary nature of its powers under Article 87(7) (para.10). Although it appeared to implicitly acknowledge that Nigeria’s failure to arrest and surrender had been a breach of its obligations to cooperate, the Chamber did not make a formal finding to that effect. Instead, after ‘taking note’ of the explanation offered by Nigeria for its inaction, it concluded simply that ‘it is not warranted in the present circumstances to refer the matter’ (para.13).

Yet, the following year, when the DRC argued that the Chamber should not refer its non-cooperation in materially similar circumstances to Nigeria and having made similar representations as to its good faith commitment to its obligations under the Rome Statute, the Chamber refused to follow its Nigeria decision. Rather, it did two things. First, it appeared to distinguish DRC’s non-cooperation on the facts: referring in its dispositive paragraphs to the ‘deliberate’ refusal of the DRC to arrest and surrender Al Bashir, and elsewhere in the decision it described the DRC’s explanation for its non-cooperation as ‘unconvincing’ (para.13). With no objective difference between the motives of, and explanations provided by, Nigeria and the DRC respectively, it would seem that this distinction on the facts was made on the basis of a subjective assessment of the good faith credentials of the relevant parties. The exercise of discretion on this basis is not itself problematic – indeed the value of judicial discretion is in its ability to allow judges to be responsive to the circumstances of the decision at hand. However, the Chamber’s refusal to be convinced by the DRC’s explanation for its non-cooperation is itself difficult to accept given that the previous year it was ready to accept on face value that same explanation when offered by the Nigerians. That aside, the most problematic aspect of the Court’s decision in the DRC case is the second thing it did: it introduced a new and additional obligation, the obligation to consult with the Chamber in accordance with Article 97 of the Statute. On the basis of two findings – 1) the ‘deliberate’ failure to arrest Al Bashir (which was no more deliberate than Nigeria’s failure) and 2) the DRC’s failure to engage in Article 97 consultations, the Chamber referred the DRC’s non-cooperation to the Security Council, even though no mention of Article 97 was ever made in the previous Nigeria decision. It is this manoeuvre by the Court – the moving of the goalposts for the exercise of its judicial discretion – that is difficult to accept as legitimate.

Up until now, the structure of the Chamber’s analysis under Article 87(7) had been broadly the same. Notwithstanding the implicit acknowledgement of Nigeria’s factual non-cooperation, in all cases, the Chamber swept together the non-cooperation finding and the referral of that finding. However, in 2015, PTC II once again departed from its caselaw, confronted now by a state – South Africa – whose own Supreme Court had determined that it had failed to provide cooperation to the Court, contrary to its obligations under the Statute. Yet, not only did South Africa itself advance this Supreme Court ruling as evidence of its commitment to its obligations under the Statute and – more broadly to the rule of law – it had gone further, and had engaged the process of consultations under Article 97 which the Chamber had, in its DRC decision, identified as a decisive factor in the exercise of judicial discretion. Thus, the Chamber was forced to uncouple the non-cooperation finding and the referral: it made the finding of fact that South Africa had failed to cooperate in accordance with its obligations under the Statute, but nevertheless it decided not to refer that finding to the Security Council.

Having moved the goalposts once in the DRC decision, and having exhausted the (very limited) panoply of obligations under the Rome Statute that it could add to the justifications for the exercise of its discretion in South Africa and in doing so move the goalposts again, the PTC II had – it appeared – exhausted the leveraging potential of its discretion under Article 87(7). Yet, when it came to address Jordan’s failure to arrest and surrender Al Bashir in 2017 although Jordan had objectively overcome all the hurdles set out by the PTC II in Nigeria, then DRC and South Africa, the PTC refused to follow its decision in South Africa. Instead, it determined that what Jordan claimed was engagement with the consultation process in Article 97 was not, in fact, engagement with the consultation process (para.46-49). It further argued that Jordan could not have engaged in consultations for the purpose of Article 97 because the obstacle impeding cooperation that it advanced as the subject of those consultations – i.e. the question of immunities – had been addressed, resolved and removed in the course of the consultations on the same matter undertaken by South Africa (para.54-55). Now, therefore, it would seem that if Jordan wished to invoke the consultation procedure to qualify for the Chamber’s consideration of not to refer its non-cooperation, it needed to have come up with a novel obstacle to cooperation to consult over. Yet again, the goalposts were moved. This manoeuvre was one step too far and, on Monday, the AC reversed the PTC’s decision to refer Jordan’s non-cooperation. Not only did the AC conclude that the PTC made an ‘error’ in mischaracterising Jordan’s attempts to engage the Article 97 consultation process, but that the differential treatment of Jordan and South Africa constituted ‘an abuse of judicial discretion’ (para 210-211).

This aspect of the AC decision, and especially the strongly worded rebuke of the PTC’s conduct, should be welcomed. On one hand, the Chamber’s experiment with leveraging its discretion to refer non-cooperation to the Council to influence the behaviour – even if it is just the argumentative behaviour – of States Parties was partly successful. The DRC – rather than not engaging with the cooperation obligation – acknowledged, like Nigeria did, its obligation under the Rome Statute, stated its commitment to its Rome Statute obligations, but explained the practical impediments to its ability to discharge those obligations at the case at hand. Similarly, Jordan sought to engage the same consultation process under Article 97. Even though, as the Chamber itself pointedly observed, the Council has consistently failed to act upon its referrals – such that there is little ‘hard’ consequence from such a referral – States Parties, first the DRC and more recently Jordan, have taken steps to align their non-cooperation with that of Nigeria and South Africa to avoid a referral to the Security Council. Whereas PTC I has argued that the referral under Article 87(7) are meant to be ‘value neutral’ and ‘not designed to sanction or criticise the requested State’ (para.33) (in the same breath, however, it appeared to concur with PTC II in characterising the referral power as a tools ‘“to use at a certain point in time as a last resort measure or as part of a comprehensive strategy to promote cooperation (para.24)), it would seem that PTC II has had some success in persuading States Parties that a non-referral is a ‘carrot’ worth striving (or at least arguing) for.

On the other hand, having achieved that, the Chamber’s refusal to treat like cases alike and its frustration of the legitimate expectation of states, simply, reeks of bad faith. One of the fundamental tenants of the rule of law is the expectation that, under the rule of law, like cases will be treated alike. It is one if not the factor that distinguishes the politics of legality from those other – less desirable – forms of politics that legality exists in opposition to (Shklar 1964). It is through the giving of reasons that legitimate expectations are created and stability and predictability in the exercise of judicial discretion are guaranteed. In the face of the considerable political, diplomatic and – indeed – legal controversies arising out of the Al Bashir arrest warrant, it was reasonable for states to look to the PTC’s caselaw for guidance and to rely upon that caselaw. The development of – and adherence to – stable and predictable principles might do little to incentivise the kinds of changes in state behaviour (i.e. the movement towards cooperation) that the strategy of leveraging its discretion has been aimed towards. Arguably, for this reason, the experiment with decoupling of the non-cooperation determination and the referral to leverage the referral discretion was always doomed to folly. However, PTC I has also accepted the decoupling of the non-cooperation determination and the Security Council referral, having characterised non-cooperation findings as value neutral objective assessments of fact (Al Islam 2014 at para.23) and referrals as ‘one of the tools available to the Court “to use at a certain point in time as a last resort measure or as part of a comprehensive strategy to promote cooperation”’ (Al Islam 2014 at para.23). As such, the discretionary nature of the referral determination is likely here to stay and, going forward, Chambers need to develop transparent principles to guide that discretion if they are to rebuild some of the trust of States Parties. In the face of the failure of the Security Council to take political action in response to PTC, the manoeuvring of the goalposts for the Article 87(7) non-referral was clearly a proactive attempt to enhance the effectiveness of the Court. However, judicial chambers are not the Security Council or the Assembly of States Parties; they are judicial bodies, not political bodies. With the composition of PTC II now changed, this week’s decision by the AC reminds the new crop of judges that – going forward – if they too wish to engage in politics, they must play the game of legality and abide by the basic rules of that game.

You have just entered Narnia: ICC Appeals Chamber adopts the worst possible solution on immunities in the Bashir case

This morning, 6 May 2019, the Appeals Chamber issued its Judgment on the Appeal filed by Jordan against an 11 december 2017 decision by Pre-Trial Chamber II whereby it was found that Jordan failed to comply with an order to arrest and transfer Bashir to the ICC because Bashir did not benefit from Head of State immunity in the context of a UNSC Referral. As a consequence, Jordan’s non-cooperation was referred to the UNSC and the ASP.

It was a long-awaited decision, touching upon fascinating issues of public international law, treaty interpretation, customary international law, effects of UNSC resolutions, etc. The process that led to the Judgment was itself fairly novel, the Appeals Chamber having invited and received amicus briefs from the AU, the Arab League and a dozen law professors, who, in addition to their written briefs, were heard and questioned by the Chamber at length over several days in September 2018.

This is a really difficult blog post to write, because the Judgment comes at the conclusion of 8 years of debates (since the 2011 Malawi decision), with many sub-plots and twists. Explaining comprehensively why this is a terrible decision therefore would ideally require some prior knowledge of what the stakes are and would require me to fill way too many pages for a blog.

Therefore, for a comprehensive overview of the issues and explanations of why the reasoning of the Appeals Chamber is not convincing, I simply refer you to the innumerable blog posts I’ve written on the topic (particularly my initial reaction to the Malawi decision back in 2011, which is relevant here given the fact that the Appeals Chamber dug it up from nowhere) and my comprehensive chapter on the issue (an earlier draft of which you can find here).

What I will do here is simply pick and choose some particular problematic or noteworthy aspects of the Chamber’s reasoning.

First of all, at the heart of the Appeals Chamber’s reasoning is the conceptual idea that there exists a concept of “international tribunal” that is not simply the “pooling” of the exercise of jurisdiction by States (see par. 115 of the Judgment). These “international tribunals” would have a different nature and would therefore not be subject to the same rules of international law than States are, which allows the Appeals Chamber to say that while Head of State immunity continues to apply between States, it does not apply before international tribunals. However, this reasoning is very problematic. Indeed, it relies on a moral, rather than legal basis, as seen in the claim that “international tribunals” act in the name of the “international community as whole” rather than individual States. But what is the “international community” as a whole from a legal perspective? It is of course never defined in the Judgment.

Moreover, where does the “pooling” of jurisdiction end and the “international tribunal” start? For example, if France and Belgium, who separately would not be able to arrest and prosecute a foreign head of State, create an “international tribunal” through a bilateral agreement, would that new institution be able to prosecute that same Head of State? I doubt it, because States cannot grant to an IO a power they do not possess. This is basic common sense. You can’t just avail yourself of this simple rule by essentially claiming the moral high ground. Also, what arrogance to claim that you are acting in the name of the “international community as a whole”, especially when you see in practice the opposition that exists to the ICC (whether it is justified or not is another issue).

Given the reasoning adopted by the Appeals Chamber on this point, I find it somewhat ironic that the Judges go on the explain that “The law does not readily condone to be done through the back door something it forbids to be done through the front door” (par. 127). Not only is there a slight Judge Dredd feeling about this sentence (who is the “law” exactly? “I am the law!”), but it is exactly what the Judges did to remove immunity in the first place: treaty rules might be a problem? let’s use the back door of the “international tribunal” and magically go through the cupboard into the magical Narnia world when standards rules of international law disappear under the benevolent gaze of the “international community as a whole”…

The key issue should not so much be what an abstract category of “international tribunal” would look like, but rather, in each specific circumstances how a tribunal was created and what effects it might have on third States. This requires no creativity whatsoever, but simply a basic application of public international law rules. In the case of the ICC, as a treaty body, there is simply no reason why it should bind third States and that should be the end of the discussion (the PTC in the Rohinga decision attempted to justify that the ICC could have an effect on third-States as an IO with objective legal personality, but their reasoning was not very convincing either). 

Second of all, as a consequence of the Judgment, Article 98(1) is rendered mostly meaningless. Of course, Article 98(1) does not actually list what immunities need to be respected by cooperating States, but it is somewhat difficult to imagine that if the drafters of the Rome Statute really thought that Article 27 removed all immunities, even in the horizontal relationship between States, as an established rule of customary international law, it would have bothered to introduce Article 98(1) in the first place.

Third of all, the consequences for third States are quite big.

1) this Judgment means that immunities cannot be claimed by nationals of non-State parties, even when the situation is not referred to the Court by the UNSC. In other words, even if a situation is opened through a State referral or a proprio motu decision by the Prosecutor, State Parties would have to arrest and surrender nationals of non-State parties who would otherwise benefit from immunity.

2) This is probably one of the weirdest consequences of the Judgment: because the Appeals Chamber claims the existence of a rule not just in the Rome Statute, but in customary international law, that there are no immunities before “international tribunals”, one could arguably claim that the obligation to arrest and surrender a person would rest not only on State parties but also on non-State parties, because customary law is binding on all States… this is of course a ridiculous proposition, but it shows the absurdity of the Judgment.

Fourth, I note that the AC makes no mention of the Malabo Protocol, which explicitly provides for Head of State immunity. Presumably, by the AC’s standards, the tribunal constituted by the Malabo Protocol would be an “international tribunal”. Therefore, it would be acting in the name of the “international community as a whole”, in claiming that immunities exist before “international tribunals”. Why would this not equally be evidence of a contrary customary international law?

Fifth, I note that the Appeals Chamber mentions in one paragraph that Jordan’s obligation to cooperate would also stem from the Convention against Genocide. This was the position taken in a separate opinion to the South Africa decision by Judge Brichambaut (see my commentary here). I was not entirely convinced by the argument at the time, but at least the Judge made an effort to analyse the Genocide Convention specifically and explain how it would be related to the Rome Statute. Here, there is no such effort and it is impossible to understand what the relevance of the Genocide convention is in the current proceedings. Maybe it was included as a possibility in a earlier draft of the Judgment and someone forgot to remove it, because as it stands, these few lines, which seem to be added as an afterthought, with no explanations, 1 footnote and no references, are completely useless.

Sixth, I don’t have much to add that I haven’t said in the past to the analysis provided by the Appeals Chamber of the “UNSC route”. Just a few quick thoughts:

1) It’s not entirely clear why the AC bothers with this section of the Judgment at all, given that the questions raised become essentially moot given the customary law avenue taken by the Chamber.

2) I do note that the reasoning provided by the AC is interesting when it comes to determine under what sections of the Rome Statute Soudan would be obliged to cooperate with the Court. I must say that on first reading, I am convinced with the argument according to which, given the language of the UNSC Resolution, Soudan would have to respect the cooperation provisions relating to State parties rather than non-State parties. However, this does not automatically mean that Soudan would be bound by Article 27, and on this the Judgment is less convincing.

3) I also note that the AC did not follow my friendly advice: it did not actually asked those States on the UNSC who wrote the referral if in fact they did intend to remove immunities. This would have been all the more interesting as some of these States have made public Statements to the contrary (see here).

Seventh, in relation to the referral of Jordan to the ASP and the UNSC, I remain a bit lost at what the legal framework is. In such discretionary matters, it seems more of a divination exercise than one of legal reasoning, so I don’t have much to say about that. I just wonder, maybe naively, when a referral will ever be justified. Indeed, when the Jordan cooperation issue comes up, there is 7 years of constant (if not consistent) case-law asking State parties to arrest and surrender Bashir. I have all the sympathy in the world for Jordan’s legal position, which I mostly share, but practically, in those circumstances, it is difficult to see Jordan’s non-cooperation as anything else but a clear refusal to comply with a clear order from the Court. How is that not sufficient for a referral? I’m wondering, but this is just me thinking out loud, whether the real issue is to avoid that this discussion be forced on the ASP/UNSC, bodies which might make statements that the Judges would not want to hear. Indeed, it would not look good if the UNSC or the ASP (under the pressure of the AU States) actually came out in defense of Jordan…

Eighth, while I have yet to read the separate opinion (I might blog on it later), I am not sure what to make of its existence. Indeed what are we taking about?  it is a separate concurring opinion which focuses on written by 4 of the 5 judges in relation to the 2  grounds of appeal for which the decision was unanimous. So basically, did the 5th Judge not agree with the content of the separate opinion? because if she had, it would be signed by all 5 judges, concurring with themselves and then this would just be another part of the Judgment… Also, as also noted by Hemi Mistry, there are regular cross-references between the Judgment and the concurring opinion, which raises the question of the exact status of the document. I hope to have more clarity when I actually read it.

In conclusion (for now), I honestly believed that the AC would play it safe and stir away for the Customary Law route. I was wrong. As noted by Dapo Akande, this radical view justifies even more that the AU move for an ICJ advisory opinion on the matter. They have nothing to lose now.

From the perspective of the ICC, the Appeals Chamber has sadly confirmed I was right when I chose “the frog that wanted to be an ox” title, for my book chapter on immunities. This is again a case of the ICC Judges trying to be more (and to make the Court be more) than it actually is. In the fable, the frog actually exploded at the end… it’s of course just a metaphor, but given recent developments at the Court, it’s increasingly becoming a concrete risk for the institution.

 

Some extra thoughts on why the ICC Pre-Trial Chamber acted ultra vires in using the “interests of justice” to not open an investigation in Afghanistan

In my previous post on the decision by the Pre-Trial Chamber to not allow the opening of an investigation in the Afghanistan decision on the basis that it would not be in the “interests of justice”, I claimed:

First of all, and perhaps most importantly, the exercise that the Pre-Trial Chamber did is most likely ultra vires. Indeed, Article 53(1)(c) is very clear that it is the Prosecutor who can decide to not open an investigation in the “interests of justice”. It is only if the Prosecutor makes such a decision, that a Pre-Trial Chamber can review it (Article 53(3)(b)). The only job of the PTC when the Prosecutor requests the opening of an investigation is to determine jurisdiction and admissibility. And the “interests of justice” fall under neither of these categories.

Kevin Jon Heller, over at opinio juris, takes issue with my claim the the Pre-Trial Chamber acted ultra vires in discussing whether the interests of justice did in fact warrant not opening an investigation in the situation.

This is the heart of Kevin’s reasoning, after quoting Article 15(4) and 53(1):

To find that a reasonable basis exists, in short, the OTP must consider (1) jurisdiction, (2) admissibility, and — critically — (3) interests of justice. If there is no jurisdiction or no admissibility, there is no reasonable basis to open an investigation. And even if there is jurisdiction and admissibility, there is still no reasonable basis to open an investigation if the interests of justice counsel against it.

As noted, Art. 15(4) requires the PTC to agree with the OTP that there is a reasonable basis to open an investigation. If the OTP is wrong about any of the relevant considerations — jurisdiction, admissibility, or interests of justice — the requisite reasonable basis does not exist. So I fail to see how the PTC could fulfil its mandate under Art. 15(4) unless it reviews not only jurisdiction and admissibility, but also the interests of justice.

Kevin’s point seems unassailably logical: if there are 3 criteria listed in article 53(1) that the Prosecutor needs to look at in order to determine that there is a reasonable basis to proceed, then, it should follow that the Pre-Trial Chamber’s “control” over the Prosecutor must cover all 3 criteria. Which includes the interests of justice.

Of course, this argument makes sense. But I still stick to my interpretation for several reasons.

Before I explain these reasons, I’d like to indulge in a small (maybe demagogic) digression: Kevin and I rarely disagree on issues of interpretation of the Rome Statute. The few times it has happened in the past few years (like last year on the interpretation of Article 18 of the Rome Statute), it is often because the Statute is at places terribly drafted, with provisions not being very clear, and their articulation not always very obvious, therefore leading to conflicting interpretations, which can nonetheless all be very reasonable. I think this is clearly one of those cases… and as a result, the fact that I am most certainly right, does not actually mean that Kevin is wrong…

So, moving on to my explanation:

First of all, for me, the phrasing of Article 53(1) is key. As Megan Fairlie aptly pointed out to me, it is “oddly written”. It calls upon the Prosecutor to “consider” (interestingly, this seems to allow some discretion, as opposed to other terms which could have been used, such as “determine”, but that is a different discussion) whether:

(a) The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;

(b) The case is or would be admissible under article 17; and

(c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.

While (a) and (b) are phrased in positive terms (the Prosecutor considers whether the Court has jurisdiction and whether the case would be admissible), (c) is phrased negatively: that “an investigation would not serve the interests of justice” (as opposed to “an investigation would serve the interests of justice”). Kevin simply ignores this difference in phrasing, but the choice of words has to mean something!

Indeed, this clearly means for me that while jurisdiction and admissibility need to be positively established, the fact that (once determined in a first step that the Court has jurisdiction and that the situation would be admissible, as suggested by the term “nonetheless”) an investigation would be in the interests of justice is presumed, unless the Prosecutor finds “substantial reasons” to the contrary. This is turn would suggest that there is no positive obligation on the part of the Prosecutor to even consider the matter in a request, and therefore no autonomous power of the Pre-Trial Chamber to take up the issue proprio motu.

I do note in that respect that the Prosecutor does in fact devote a handful of pages to the matter in her request to open an investigation. But I would argue that her request would have been perfectly legally valid, even if she had not provided those few pages.

Second of all, it should be pointed out that, technically, if the Prosecutor were to decide to not open an investigation based on 53(1)(c), the issue would never come before the PTC as part of an Article 15(4) determination of a reasonable basis to proceed, because there would logically not be a request put to the Chamber. This is why I believe that, contrary to what Kevin says, Article 53(4)(b) is extremely relevant to the discussion. It states that:

the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber.

As an aside, this is yet another “oddly written” provision because I cannot think of a scenario where a decision not to open an investigation based on paragraph 1(c), will not “solely” be based on that paragraph. Indeed, should the Prosecutor find that there is no jurisdiction and/or that a situation would not be admissible under (a) and (b), it will never move on to (c). On the other hand, if there is jurisdiction and the situation is admissible, the decision not to proceed will necessarily have to be based “solely” on (c).

But the main point here is that, clearly there is a specific procedural framework to deal with 53(1)(c) decisions, which is 53(4)(b), which flows from the actual “negative” formulation of Article 53(1)(c), and which therefore exclusively envisions the possibility for the PTC to review decisions not to proceed founded on the fact that an investigation would not be in the interests of justice. This of course makes sense, because that is how Article 53(1)(c) is actually framed.

Considering all these points, I therefore still believe that the procedural framework around “interests of justice” evaluations is constructed around the fact that it requires an actual negative assessment by the Prosecutor, which would then lead to the only procedural route available under the Statute: 53(4)(b) (because again, in such a case, there would, by definition, never be a request under Article 15).

Finally, I note that there is case law supporting my view. Indeed, as rightly pointed out by Nabil Orena on twitter the Pre-Trial Chamber that authorised the opening of an investigation in the Kenya situation stated that (par. 63):

Unlike sub-paragraphs (a) and (b), which require an affirmative finding, sub-paragraph (c) does not require the Prosecutor to establish that an investigation is actually in the interests of justice. Indeed, the Prosecutor does not have to present reasons or supporting material in this respect. Thus, the Chamber considers that a review of this requirement is unwarranted in the present decision, taking into consideration that the Prosecutor has not determined that an investigation “would not serve the interests of justice”, which would prevent him from proceeding with a request for authorization of an investigation. Instead, such a review may take place in accordance with article 53(3)(b) of the Statute if the Prosecutor decided not to proceed with such a request on the basis of this sole factor. It is only when the Prosecutor decides that an investigation would not be in the interests of justice that he or she is under the obligation to notify the Chamber of the reasons for such a decision, thereby triggering the review power of the Chamber.

Obviously it doesn’t necessarily mean I’m right, but it’s interesting to acknowledge this position nonetheless, something that the Afghanistan PTC did not even bother doing.

In sum, I think Kevin asked the wrong question as the title of his post (“Can the PTC Review the Interests of Justice?”) because my point was never that the PTC could not do so. Indeed, my point was questioning when this can be done. And in my humble understanding of the phrasing of the Rome Statute, this can logically only be done after a decision not to open an investigation on the basis of Article 53(1)(c) (because that is the actual phrasing of that provision), and therefore, as an inevitable procedural consequence, never in the context of an Article 15(4) decision because no request to be authorised to open an investigation filed by the OTP would be before a PTC in such a case.