Monthly Archives: November 2017

On 29 november 2017, the Prosecutor of the ICC issued its decision announcing that it is closing the Preliminary Examination in the Comoros situation, more commonly known as the situation relating to incidents aboard the Mavi Marmara. It annexes a 145 page report explaining its position in detail.

Followers of this blog will recall that this issue has been ongoing for some time now. The Prosecutor received a referral in May 2013 (see my comments at the time here) and issued a decision to proceed in November 2014 (see my comments here). In July 2015, following a request from Comoros, a Pre-Trial Chamber requested the Prosecutor to reconsider her decision (see my comments here). Now, a few years down the road, the Prosecutor has decided to confirm her initial assessment of the situation and declines to open a formal investigation.

I have commented in the past on various aspects of the issues: why I think the referred incidents stretch the definition of a “situation” beyond recognition, why I’m not convinced that legally speaking, the relevant armed conflict is the conflict between Israel and Palestine or why I think that the whole procedure shows that the gravity test of admissibility is today inapplicable at the ICC.

I also generally agree with the OTP’s basic position that it has the discretion whether to open an investigation or not, based on its own policy considerations. In that context, gravity is for me simply one of those policy considerations, rather than a criteria to be taken into account in the context of a formal determination of admissibility of cases, which in any case I don’t believe should be part of a PE at all, but that is a different debate.

[UPDATE: Kevin Jon Heller has posted his own take on the decision, focusing on the way that the OTP assesses gravity from the perspective of a “case”, rather than doing a situational assessment of gravity. This is a problem we had both identified in the first report, and I find Kevin’s critique quite powerful: by considering that the situation is admissible if at least one case within it would be admissible, then the OTP has likely created a situation that “will almost certainly come back to haunt the OTP in future preliminary examinations”, as put by Kevin, because there will always at least one case that will be of sufficient gravity within a broader situation being considered during a PE.

While I fully agree with Kevin on principle, I think that the problem lies elsewhere: in the fact of assessing admissibility, and gravity as one of its components, at all during a PE. Assessing admissibility during the PE requires looking at “potential cases” and whether they would be admissible. That is what the case law says. This also applies to gravity. Therefore, assessing gravity as a component of the admissibility test necessarily requires looking not at the situation as a whole in my view, but merely at “potential cases”. There is in my view no room for Kevin’s situational gravity in that context.

Another thing entirely is to consider gravity as a policy element that the OTP would look at in order to determine whether to initiate a formal investigation or not. Within that framework, situational gravity is a perfectly acceptable standard which I fully agree with.

In sum, the OTP’s approach, while possibly unworkable and misguided, is the natural consequence of the combination of a possibly misguided drafting of Article 53 and a less than convincing interpretation given by the Pre-Trial Chamber in the Kenya decision to open an investigation of Article 17 to make it apply in the context of Article 15(4) decision authorising the Prosecutor to open an investigation]

I will not express an opinion on the substance of the outcome and I’m sure that there will be a lot of commentary on the factual findings of the OTP on the events that allegedly took place that day and undoubtedly a lot of criticism too given the international attention received and more generally the passion that surrounds anything related to Israel and Palestine.

I just want to share a few thoughts on the approach taken by the OTP in what is a remarkable document in many respects.

• A strange “judicial” dialogue

It is interesting to note that a large portion of the report is devoted to criticising the Pre-Trial Chamber decision of 2015 and explaining why the Pre-Trial Chamber erred in its reasoning. Three thoughts come to mind in relation to this.

First, I’m not sure it is an entirely appropriate place to do this. It seems like someone at the OTP, who had worked very hard to write the OTP’s appeal that was deemed inadmissible by the Appeals Chamber, did not want it to go to waste.

Second, on the substance, I find that it is a well argued position on why the Pre-Trial Chamber erred by essentially substituting its own understanding of the facts, rather than demonstrating that the Prosecutor had erred in its own factual findings.

The OTP points out that the Pre-Trial Chamber embarked in a de novo determination of the facts… without ever requesting to consult the information underlying the report, as envisioned by Rule 107(2) of the RPE. As a consequence, “Disagreements concerning the evaluation of the available information can only be given very limited weight by the Prosecution when the reviewing body has not had opportunity to examine the available information itself” (report, par. 68).

The OTP also points out that the Chamber imposed a standard by which the Prosecutor should exclude all factual scenarios which would warrant an investigation before deciding not to proceed further, which is, according to the OTP, an unreasonable standard. In the convincing words of the Prosecutor (par. 158):

The majority thus simply disagrees with the Prosecution’s conclusion, positing that an alternative ‘reasonably possible’ interpretation may exist—even though it is not directly grounded in the facts as they have reasonably been understood by the Prosecution. In other words, the majority’s approach appears to impose a burden upon the Prosecution to conduct an investigation unless it can eliminate all reasonably possible speculations about the apparent facts which might satisfy the article 53(1) test, rather than a more orthodox approach in which the Prosecution positively has to identify information supporting its conclusions at the appropriate standard of proof. Such an approach leads to potentially untenable consequences—if investigation is only precluded when the circumstances are such that the available information excludes even speculation that the gravity threshold might be met, then in effect all preliminary examinations will result in investigation. This is inconsistent  with the object and purpose of the Statute, and the particular scheme laid out in article 53, and cannot be correct.

Third, this “dialogue” between the Pre-Trial Chamber and the OTP shows how absurd this all review procedure is. The Pre-Trial Chamber is given a power to review that has absolutely no legal authority over the OTP, with the ultimate result that the OTP can simply disagree with the Judges without any consequences. I don’t know what the drafters had in mind exactly, but they should have either given a clear power to the Chamber to review an OTP decision not to proceed and the corresponding power to force it to do so (which is the whole point of judicial review after all) or not bothered at all. What we have in the Statute currently is probably another one of these lame Rome compromises along the lines of “we need to respect the independence of the Prosecutor, but cannot let her entirely do what shes wants” which probably made some diplomatic delegations happy, but sets up a procedure that in its current state is a waste of time for everybody.

• The methodology for evaluating evidence

As I said, I will not risk myself to give an opinion on the substance of the evaluation of evidence. I do find it interesting to note how the Prosecutor approached available information in a critical way.

Indeed, I find the analysis of the information, particularly eye-witness statements uncharacteristically detailed and thorough, especially compared to other documents relating to PEs in other situations.

For example, regarding the allegation that there was live-fire before the boarding of the ship, the Prosecutor provides a detailed analysis of the credibility of the 10 eye-witnesses put forward by the Comoros and their lawyers, noting for example that one of them was on another ship, that another claimed to be below deck when the boarding occurred so could not possibly see if the IDF had started shooting before boarding the ship, or that some have made obvious material mistakes in their recollection of the order of events. The OTP also notes that 4 eye-witnesses “were actively participating in the resistance aboard the Mavi Marmara at the material times” and that therefore “There is also a heightened risk of bias, both to justify their own actions and potentially to impugn the conduct of the IDF” (par. 122).

Another example is the OTP’s evaluation of the form of the statements received from the Comoros. The OTP notes (par. 182)

that many of the personal accounts appear to reflect some form of contact or link between their authors. In particular, the information available may lead to the conclusion that some persons who have sought to participate in these proceedings as victims have not only received some organised assistance in the practical arrangements to submit their applications, but also some forms of assistance related to the content or presentation of the accounts that they provide.

and then goes on to list striking similarities in the statements, despite the fact that there is no indication in them that they got help in drafting them, concluding that this was not “good practice” and could taint the evaluation of the evidence (par. 184-186).

My initial reaction is to welcome the OTP’s attitude in taking its independent capacity to review information seriously and not just take everything it receives at face value. But you have to wonder why this level of scrutiny does not always appear to be applied in all PEs.

Of course, the “situation” that was referred to the OTP which is essentially one incident, lends itself better to this kind of analysis than a PE relating to crimes committed in a whole country over a long period of time. In a mavi marmara scenario, the OTP has the luxury of devolving 150 analysing the evidence relating to one incident. If such a process had been followed, say in the Afghanistan request, it would have been several volumes long. But, from a legal perspective, this practical difference should not in principle have an impact on the level of scrutiny over the available information during a PE because the OTP should be applying the same standard of review in a consistent and uniform way. It cannot be that some investigations are opened essentially on the basis of untested NGO reports, while other investigations are not opened based on a more thorough analysis of the information.

There is one possible explanation for this level of scrutiny  in this particular situation.  When reading the report, there is this lingering feeling at some places that the OTP feels it is being manipulated by the lawyers for the Comoros and that as a consequence the file they received might not be entirely trustworthy… Of course this is never said explicitly in the report, but, if true, it might explain the OTP’s particular approach here.

• What next?

Is this the end of the matter? It seems so, at least procedurally. Rule 108(3) provides that:

Once the Prosecutor has taken a final decision, he or she shall notify the Pre-Trial Chamber in writing. This notification shall contain the conclusion of the Prosecutor and the reasons for the conclusion. It shall be communicated to all those who participated in the review.

This seems to suggest that this is a “final decision”, i.e, not subject to a new review under Article 53(3)(a). And this is what the OTP thinks. I agree. Any other interpretation would transform the procedure into a never-ending kafka-like process, where the referring State could indefinitely approach a Pre-Trial Chamber to obtain a review, when the Pre-Trial Chamber would indefinitely request the Prosecutor to reconsider and where the Prosecutor would indefinitely have to decline.

In practice, I would imagine that lawyers for Comoros will still try to keep this issue alive one way or another and given the sympathetic ear they received the first time around, one cannot exclude that the PTC would allow itself to be seized of the matter once again, so we might be up for more excitement in coming months…

Also, one must not forget that there is currently a preliminary examination in the situation in Palestine. Right now, the 12(3) declaration made by Palestine only goes back to 2014, so does not cover the Mavi Marmara incident. However, according to some commentators, Palestine can always do another 12(3) declaration in the future to go back further in time (I disagree), and include the Mavi Marmara situation. In that case, the OTP would have to consider the incident in the broader context of the armed conflict, which it refused to do in the current situation given the limited scope of the referral. Would that lead to a different outcome? maybe technically yes, but from a policy perspective, I would imagine the OTP would have bigger fish to fry in such a broader situation and would still  possibly not proceed further, drowning the incident in a broader discussion of the context.

Today, the ICTY issued its long awaited Judgment in the Mladic trial. Few commentators expected any surprises, especially, as I pointed out at the time, because Mladic was mentioned 1883 times in the Karadzic Judgment.

One issue that was being followed carefully, is whether the Chamber would make a finding of genocide in the Municipalities. This has been one of the most controversial question in the case law of the ICTY, because so far, no Trial Chamber has made a finding of genocide in Bosnia outside of Srebrenica. As noted by Marko Milanovic, “The possibility thus remains that the Mladic and Karadzic trial chambers will disagree on the existence of genocide outside Srebrenica; that possibility is relatively low, but it is not zero.”

Here is how the Chamber dealt with the issue (this is from the summary of the Judgment, the Judgment not being available yet at the time of writing):

The Chamber then examined the specific intent of the physical perpetrators. The Chamber found by majority, Judge Orie, dissenting, that the physical perpetrators in Sanski Most, Vlasenica, and Foča, and certain perpetrators in Kotor Varoš and Prijedor Municipalities intended to destroy the Bosnian Muslims in those Municipalities as a part of the protected group. The Chamber then considered whether the targeted part constituted a substantial part of the protected group, and concluded that the Bosnian Muslims targeted in each municipality formed a relatively small part of the protected group and were also in other ways not a substantial part. Consequently, the Chamber was not satisfied that the only reasonable inference was that the physical perpetrators possessed the required intent to destroy a substantial part of the protected group of Bosnian Muslims.

3 comments can be made on this:

First of all, the outcome of the Chamber that there was no genocide in the Municipalities is consistent with the case law of the ICTY to date. This will of course continue to receive criticism from certain quarters. As I noted after the Karadzic Judgment: “There is now consistent case-law that there was no genocidal intent in the rest of Bosnia and I remain surprised at the criticism levelled 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”.

Second of all, it seems that the reasoning of the majority of the Chamber actually departs from the Karadzic Judgment. There, the Chamber found that ” The Chamber is not satisfied, however, that there is evidence establishing, beyond reasonable doubt, that the perpetrators of these crimes possessed intent to destroy the Bosnian Muslim and/or Bosnian Croat groups in the Count 1 Municipalities as such” (Karadzic judgement, par. 2613). We now therefore have two different legal findings in the case law in relation to the intent of the direct perpetrators of the crimes committed in the Municipalities, a discrepancy that will need to be resolved on appeal, both in the Karadzic and Mladic cases.

Third of all, having found, by Majority, that the direct perpetrators did in fact have genocidal intent, the Chamber moved on to find that the intent did not relate to the destruction of a substantial part of the group. This finding re-opens the can of worms that was the definition of “substantial part of the group” in the Srebrenica cases and the ICTR. Indeed, how “substantial” must the part of the group destroyed be, and in relation to what overall group?  Is the calculation of what is substantial based on the Muslims in these municipalities? The summary of the Judgment is not very clear on that, but it seems indeed to suggest that the protected group is “the Bosnian Muslims in those Municipalities”. In that case, it will have to be made clear in the Judgment how the facts differ from the Srebrenica scenario. Is the calculation based on the wider group of muslims in Bosnia? In this case, this would be at odds with the approach in relation to Srebrenica.

Whatever the approach, still remains open the question of how intent to commit genocide can be “split”, when it comes to the actions of a group over a given territory, that it controls, depending on the specific town or village involved. For me, there is either genocidal intent, or there isn’t…

As an aside, I’m curious to know how the Chamber came to the conclusion that life imprisonment was warranted, especially compared to the 40 years that Karadzic received. I’m not particularly impressed with the finding that “the crimes committed rank among the most heinous known to mankind”. Isn’t that the case for all crimes within the jurisdiction of the tribunal? More generally, I would expect the Judgment to be as imprecise and as unuseful as all other international judgments which provide dozens of pages of discussion on the criteria to be used in sentencing… before dishing out a lump sentence which usually comes out of nowhere… (see my thoughts on this in relation to the Taylor Judgment here)

On a concluding note, and because I like to be consistent, I remain irritated by claims that the Judgment is a “victory for justice“. As I’ve said in the past, if you have trust in the legitimacy of the legal system, any outcome should be considered a “victory for justice”, even if it is an acquittal…

[By Santiago Vargas Niño, LLB & BA in Political Science, Universidad de los Andes, Colombia; LLM (Cum Laude), Universiteit Leiden, The Netherlands; Former Intern, Legal Assistant & Assistant Legal Officer of the OTP of the ICC]

Last Thursday, 9 November 2017, Pre-Trial Chamber (“PTC”) III of the International Criminal Court (“Court”) issued a public redacted version of its 25 October 2017 decision authorising the Office of the Prosecutor (“Prosecution”) to commence an investigation into the situation in Burundi. While this possibility had been anticipated by Sergey Vasiliev, it has received the kind of attention that is usually reserved for big surprises. And rightly so. Pursuant to Article 127 of the Rome Statute (“Statute”), the notice of withdrawal deposited by Burundi on 27 October 2016 would have become effective a mere two days after PTC-III decided to grant the  Prosecution’s request. The Court’s ability to exercise its jurisdiction over crimes allegedly committed in Burundi while it was a State Party was saved at the eleventh hour. Naturally, this has raised some eyebrows.

Of particular note is the interesting debate between Kevin Jon Heller and Dov Jacobs on the interpretation of Article 18 in the context of a proprio motu investigation, which I encourage the reader to consult in full. In a nutshell, professor Heller suggests that the Prosecution must notify a State Party of its decision to request authorisation to commence an investigation. This would afford the concerned State an opportunity to challenge the Prosecution’s finding with regard to the admissibility of a situation before a formal investigation is launched, while preventing duplicative considerations of the matter by the PTC. Professor Jacobs replies that such notification should be requested only after the PTC has granted the Prosecutions application under Article 15. In his view, Article 18 contains a limited procedure aimed at obtaining a preliminary ruling on admissibility which is independent from the authorisation to initiate an investigation. Naturally, this would allow the State to avail itself of a request for deferral of an already authorised investigation on constantly evolving complementarity grounds.

I wish to devote a few lines to my understanding of Article 18 before presenting three thoughts on the continuing discussion about its application: (i) the lack of foundation, in the Court’s core legal documents and its jurisprudence, for what may seem like a sound policy; (ii) the importance of maintaining the clear statutory distinction between preliminary examinations and investigations, and; (iii) the checks on the Prosecution’s discretion to initiate proprio motu investigations.

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Following my post yesterday where I raised doubt about Kevin’s interpretation of Article 18 of the Rome Statute as requiring the OTP to inform Burundi that it intended to file a request to open a formal investigation prior to the filing of such request, Kevin has kindly taken the time to respond (disagree).

This seems like one of those rare times where I’m sure we’ll have to agree to disagree, but I just want to make three short points.

First of all, in relation to this point raised by Kevin:

As I pointed out in my previous post, Art. 15 not only specifically distinguishes between the OTP initiating an investigation proprio motu (paragraph 1) and the PTC authorizing the commencement of that investigation (paragraph 4), it specifically deems the former but not the latter part of the preliminary-examination process (paragraph 6). Paragraph 6 makes no sense if “initiates” in paragraph 1 refers to all of the steps in Art. 15, including authorization.

I agree with Kevin that, textually, Article 15(6) seems to suggest that the “initiation of an investigation” seems to be part of the PE, while the authorisation is something else. But I think that if that is really what the drafters had in mind, then I have two follow up questions :

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