Given my recent travels, I didn’t have time to comment on the decision by the ICC Pre-Trial Chamber I not to confirm the charges against Abu Garda.
It’s a fairly momentous decision from a symbolic point of view. It crowns a series of debatable decisions on the part of the prosecutor in the most emphatic way. This prosecutor really seems to make everybody unhappy. In relation to my previous post on the ISA conference, it was funny to see that despite all the inter-disciplinary disagreements on matters relating to the International Criminal Court, everybody seems to agree to criticize Ocampo… Beyond that, I think it is in fact a good thing for the legitimacy of the Court that it accepts to not go to trial. I don’t recall this happening before in international justice. Arguably, the ICC did so on a fairly low profile case, where no media-friendly crime is involved, but still…
From a legal point of view, the decision is not that surprising when you read through it. The OTP really seems to have butchered the case. Apparently, the Prosecution cannot persuasively show that Abu Garda participated in any of the meetings where the attack was planned, nor can it establish that he actually physically took part in the attack. Apparently, the OTP documents claim that he was there and not there… So given this lack of evidence, at least that’s how the PTC presents it, it only seems normal that the confirmation of charges was denied.
This being said, I had a couple of extra comments. The first one relates to the nature of the confirmation of charges decision. The Chamber reminds us “that the confirmation hearing is neither a trial before the trial nor a mini-trial”. But it is difficult to see how it is not. PTC I seems to engage in the sort of activity that is typical of a trial phase. More particularly, it systematically does an assessment of the credibility of witnesses in comparison with other witnesses. It also engages into a very precise legal analysis of the definition of the crime and its application to the specific AMIS mission, which turns out to be useless at the end given that they can’t link Abu Garda to the events anyway (Judge Tarfusser gave a separate opinion on this point). As I’ve already said elsewhere, the multiplication of procedural steps at the ICC and the correlative multiplication of burdens of proofs makes the whole process a little confusing in my opinion, and the only benefit initially proposed for this, namely speeding things up, has noticeably failed until now. So I remain skeptical about the ICC pre-trial mechanisms.
The second point relates to gravity, something I’ve already mentioned on this blog before. Up to now, the case-law seemed to have developed in the direction of the judges choosing to ignore the issue of the article 17 “sufficient gravity” criteria. In this case, PTC I did decide to consider it. It acknowledges that
“the gravity threshold contemplated therein is in addition to the Statute drafters’ careful selection of the crimes included in articles 6 to 8 of the Statute. Hence, the fact that a case addresses one of the most serious crimes for the international community as a whole is not sufficient for it to be admissible before the Court”.
That is a first good first step if the gravity threshold is going to make any sense at all. But afterwards the reasoning loses of its credibility. The Chamber considers the elements to be taken into account, and refers to the criteria to be looked at at sentencing as a guideline. That doesn’t really make sense because it suggests that the crimes that would be considered of sufficient gravity at the admissibility phase are the ones that would carry heavier sentences due to aggravating circumstances later on. But if only those cases are selected at the outset, the sentencing criteria become redundant when sentencing comes along.
On their factual analysis, the judges are even more unconvincing.
“The Chamber thus finds that the consequences of the attack were grave for the direct victims of the attack, that is, the AMIS personnel, and for their families. In addition; the alleged initial suspension and ultimate reduction of’AMIS activities in the area as a result of the attack had a grave impact on the local population”
“The consequences were grave for the direct victims”! How’s that for an analysis? Of course the consequences were “grave”, the victims died! But the Chamber can’t really be saying that this is the threshold of gravity to be met, it would just strip it of its content once again. The consequences are always grave for the direct victims of crimes, whether it is genocide, rape or carjacking… as for the second criteria, I’m not convinced about the causality link. The ultimate reduction of AMIS activities in the region is a shameful strategic decision in response to the attack. But what did they expect? It is a war zone and risk is part of the job description. The reason there is a need for peacekeepers in the first place is because it is a risk zone…
I think this decision was the perfect opportunity for the judges to take a stand on the gravity threshold and make a policy statement that the OTP is apparently incapable of making that this kind of war crime, committed in isolation, is not a priority for an international court with a global dimension and limited means. And the opportunity was missed.
Dov,To the point as usual. I like a posting that improves my own knowledge of things, and yours always does! I agree with you on Abu Garda: the chamber missed a good opportunity to clarify 'gravity'. if the judges cant provide clarity for the Prosecutor, there is a fundamental problem. The Court seems to be going back and forth on this one. On a related issue, its no wonder Ocampo is all over the place in respect of the Kenyan situation. its shocking when the Prosecutor, in response to questions about the meaning of the recent decision on Kenya, that it is 'procedural!'. How can an inquiry by the judges for the prosecutor to establish the existence of organizational policy, and to link particular groups of people to particular episodes of violence be procedural? It goes to the heart of the matter: whether he can establish the existence of crimes against humanity or not! There is a real possibility that the Kenyan situation is headed the Abu Garda way….even earlier!
Thank you Godfrey. On Kenya, I've been skeptical from the start that this concerns the ICC at all. What happened after the elections was appalling, but it seems to fall in the Human Rights violations category, and not International Criminal Law. I'm been reading up on Kenya recently to maybe write an article about it and this confirms my impression. What do you think?
we will see how he responds. He has written the Kenya National Human Rights Commission that did a report on the violence ….Yes, its ripe for comment. Am actually working on something with a friend at Pittsburgh, Pennsylvania. i would encourage you to write something. I will email my recent journal article on the TJ process in Kenya. It should be a useful resource. It is the only other published work on the TJ process in Kenya (apart from a book I edited, published late last year). Also check out my blog.
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