Monthly Archives: July 2010

Bashir and Genocide in Sudan: Second time lucky for the OTP

Posted on July 13, 2010 | Leave a comment

Yesterday, Pre-Trial Chamber I issued a second decision on the prosecution’s application for an arrest warrant against Omar Al Bashir for charges of genocide. This decision follows the March 2009 decision by PTC I, which had initially rejected the genocide charges, and the February 2010 Appeals Chamber judgment overturning the decision, because the wrong standard of proof had been applied. In effect, the first PTC I decision had considered that genocidal intent had to be the only reasonable conclusion. The AC held that this was too stringent a standard at this stage of the proceedings, and that the OTP only needs to show that genocidal intent is one reasonable conclusion.

Given this state of affairs, it is not surprising that PTC I amended its original decision to include three charges of genocide, which are to be the subject of a separate warrant of arrest. As I had argued back in February, I think that this is the correct standard to be applied at this stage of the proceedings, so there is nothing much to add on the decision itself. I would nonetheless like to raise one point before I consider other issues: the binding effect of Appeal Chamber decisions. Indeed, the PTC considers that:

1. It must be established at the outset that the key findings of the Appeals Decision [sic] are binding on the Chamber in this case and determine the scope of the present decision.

Stare decisis makes sense as a rule of thumb, but I couldn’t find it anywhere in the Statute or the RPE (it was a cursory reading, so please correct me if I missed it). Also, the PTC gives no source for its statement, when it is usual for it to refer to the relevant provisions of the Statute. So I wonder whether there is in fact a rule of binding precedent at the ICC and what would be the consequences of its absence if a PTC were to systematically decide not to follow a debatable AC interpretation of the Statute.

Beyond this, the decision touches upon some other broader considerations, which have been raised elsewhere. 
For one I agree with William Schabas, that the Prosecutor will still need to prove genocide during trial (if it ever takes place) and the case-law of the ICTY shows how hard that can turn out to be. More generally, this over-reliance on genocide as a political tool is problematic, and in my view also counter-productive. Regular readers of this blog will already know my criticism of the haphazard use of the “genocide label” and the fact that I actually call (with little chance of success) for the removal of genocide as an international crime.
I also agree with Dapo Akande, that the Court is systematically not dealing with the issue of Head of State immunity, given the fact that Sudan is not a State party. His way to deal with that is to apply the reading of the Genocide Convention done by the ICJ in the Genocide Case, according to which a party to the Convention would have an obligation which would call for State Parties of the ICC to cooperate with the ICC in Bashir’s arrest, as an international court dealing with Genocide the jurisdiction of which they have accepted, as provided by Article VI of the Convention, and this would apply irrespective of immunities which are explicitly removed by article IV of the Convention. 
I’m personally a little weary of all those “new” elements being read into the genocide convention over the years (like the claim that it gives rise to State responsibility for genocide…). More specifically, I would say that given that the Convention does not enact universal jurisdiction, the obligation to cooperate with an international tribunal can only rest on a State which actually has a duty to prosecute under the Convention, i.e, the territorial State. In any case, I think this reasoning cannot be applied to non-State parties to the ICC, given that they won’t have accepted the jurisdiction of the Court. 
The question of immunity is just one of many that arise from the application of the Security Council referral to a non-State party. I remain convinced that the whole mechanism, which basically gives power to the Security Council to make a treaty binding on a State which is not a party to it, is contrary to international law… but I fear that in this case, just as when I argue for the end of genocide as an international crime, I am fighting a already lost war…

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Posted in bashir, genocide, ICC, immunities

The Lubanga Trial is stayed, the slapstick comedy continues… but isn’t the joke wearing a little thin?

Posted on July 9, 2010 | 1 comment

Yesterday, Trial Chamber I of the International Criminal Court ordered another stay of proceedings in the Lubanga case because the Prosecutor is consistently refusing to apply orders made by the Court to disclose to the Defense the identity of an victims intermediary, following claims of misconduct. The Chamber had found that there was no security risk for the intermediary in the event of a partial disclosure to selected persons, confirmed by the Victims and Witnesses Unit. Despite this, the Prosecutor argued that:

The Prosecution is sensitive to its obligation to comply with the Chamber’s instructions. However, it also has an independent statutory obligation to protect persons put at risk on account of the Prosecution’s actions. It should not comply, or be asked to comply, with an Order that may require it to violate its separate statutory obligation by subjecting the person to foreseeable risk. The Prosecutor accordingly has made a determination that the Prosecution would rather face adverse consequences in its litigation than expose a person to risk on account of prior interaction with this Office. This is not a challenge to the authority of the Chamber, it is instead a reflection of the Prosecution’s own legal duty under the Statute.

 To which the Chamber answered:

27. No criminal court can operate on the basis that whenever it makes an order in a particular area, it is for the Prosecutor to elect whether or not to implement it, depending on his interpretation of his obligations. The judges, not the Prosecutor, decide on protective measures during the trial, once the Chamber is seized of the relevant issue, as regards victims, witnesses and others affected by the work of the Court, and the prosecution cannot choose to ignore its rulings. It is for the Chamber to determine whether protective measures are necessary (following consultation with the VWU under Article 68(4) of the Statute); their nature; and whether they are consistent with the accused’s right to a fair trial. These are issues for the Court, and the Court alone, to determine, having heard submissions and having considered all the information the judges consider necessary and relevant. The Prosecutor now claims a separate authority which can defeat the orders of the Court, and which thereby involves a profound, unacceptable and unjustified intrusion into the role of the judiciary.

28. The Prosecutor has chosen to prosecute this accused. In the Chamber’s judgment, he cannot be allowed to continue with this prosecution if he seeks to reserve to himself the right to avoid the Court’s orders whenever he decides that they are inconsistent with his interpretation of his other obligations. In order for the Chamber to ensure that the accused receives a fair trial, it is necessary that its orders, decisions and rulings are respected, unless and until they are overturned on appeal, or suspended by order of the Court.

 As a consequence:

31. Therefore, the Prosecutor has elected to act unilaterally in the present circumstances, and he declines to be “checked” by the Chamber. In these overall circumstances, it is necessary to stay these proceedings as an abuse of the process of the Court because of the material non-compliance with the Chamber’s orders of 7 July 2010, and more generally, because of the Prosecutor’s clearly evinced intention not to implement the Chamber’s orders that are made in an Article 68 context, if he considers they conflict with his interpretation of the prosecution’s other obligations. Whilst these circumstances endure, the fair trial of the accused is no longer possible, and justice cannot be done, not least because the judges will have lost control of a significant aspect of the trial proceedings as provided under the Rome Statute framework.

This is not the first time that the proceedings are slowed down due to prosecutorial delay. Some years ago, he had failed to disclose evidence obtained through the UN, which had led to a stay of proceedings, and even a decision on the release of Lubanga (which was of course overturned on appeal). The Prosecutor had grudgingly complied with the order at the time, but this time clearly claims that he would be under a Statutory obligation not to comply.
The Chamber’s irritation with the Prosecutor is apparently reaching new levels, and it is interesting that it evokes the possibility of applying Article 71 of the Statute, which provides that

“the Court may sanction persons present before it who commit misconduct, including disruption of its proceedings or deliberate refusal to comply with its directions, by administrative measures other than imprisonment, such as temporary or permanent removal from the courtroom, a fine or other similar measures provided for in the Rules of Procedure and Evidence.”

The possible sanction, according to the RPE (rule 171), are up to 30 days of removal from the proceedings and even, if the person is an official of the Court, up to 30 days of interdiction of exercising their function before the Court. In the unlikely event that the Chamber did apply this to Mr. Ocampo, he could swap stories with Garzon on the scandalous limitations to judicial independence for those untiring defenders of universal rights… But it would be unfair to put all the blame on the Prosecutor for the delays in the Lubanga Trial. The judges, with the Requalification of Charges fiasco, also have contributed to turning this first ICC Trial in a textbook case of poor judicial management.

Indeed, beyond this case, is highlighted once again the difficult interaction between the Prosecutor and the Chambers, and the continuing struggle for “power” over the proceedings, which has not failed to come up at every step of the proceedings, whether at the pre-investigative phase, when the PTCs tried to force OTP  decisions in CAR and Sudan, in the investigative phase, with the issue of victim participation, in the case selection, with the prosecution wrestling full control over gravity from spineless chambers, and now in the trial phase. It’s difficult to know if the problem is structural (multiplying institutions with more, and therefore conflicting powers), or personal, due to the particular approach adopted by the OTP. But if it does last, it can only end badly, for the defendants, for victims, for the long-term legitimacy of the Court, and ultimately for the credibility of international justice…

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Posted in ICC, lubanga, prosecutorial discretion

Palestine and the ICC (follow-up): asking the right question and giving the wrong answer

Posted on July 5, 2010 | 3 comments

Following our (really long) online debate some months back (see here and here), Michael Kearney has published another opinion on the declaration of the PA under article 12(3) of the Rome Statute. It very clearly highlights the different approaches to Palestinian Statehood and argues (along with Alain Pellet, who issued his own opinion on this) that a functional approach should be adopted to allow the declaration of the PA under 12(3). The paper might be called “asking the right question”, but I fear once again that it’s not giving the right answers…
I won’t redo all the debate again, but I have two nagging questions that remain unanswered for me in this reasoning.

1) One argument is that the PA has criminal jurisdiction over the crimes, so it can transfer the jurisdiction. But how is material jurisdiction over the crimes relevant for 12(3)? This provision follows 12(2)  which provides that:

In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

(b) The State of which the person accused of the crime is a national.

 There is no mention of material jurisdiction here. It’s territory and nationality. Criminal jurisdiction over the crime is actually not a criteria under article 12 which is not a question of transfer of jurisdiction, but acceptance of jurisdiction in relation to territory and nationality. If not this would have two strange consequences 1) let’s imagine a State where a certain war crime was committed but where the prosecution of such a crime would not be possible under its national criminal code. It could still become a Party or make a 12(3) declaration. Making criminal jurisdiction an extra criteria under 12 would mean that the ICC could only prosecute crimes in States which have themselves provided for the prosecution of the crime. Hardly the will of the drafters… 2) at the other extreme, it would mean that any State having implemented universal jurisdiction could make a 12(3) declaration. Criminal jurisdiction is only relevant when it comes to complementarity and whoever claims that it is relevant for article 12 needs to show me through what magic the two criteria of 12(2) (territory and nationality) suddenly became three…

2) A simple question: would you agree that the phrasing of the provision which talks about a “State which is not a Party to this Statute”, implies that an entity that can make a declaration under 12(3) is also an entity that can actually sign the Rome Statute? I personally don’t see any other interpretation of 12(3), and in that case, it begs the further question: if you’re supporting the PA’s declaration, why not support its signature of the Statute? That would certainly send a strong message to the international community and force the ASP to come up with a clear answer as to what is a “State” for the meaning of the Rome Statute.

I look forward to some answers!

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Posted in ICC, Israel