Monthly Archives: September 2018

Immunities and the ICC: my two-cents on three points

Posted on September 10, 2018 | 1 comment

Today and the next few days, the Appeals Chamber is hearing oral submissions on the question of whether Bashir, from Sudan, has immunity from arrest and surrender to the ICC, as the sitting head of State of a non-State party. This promises to be a interesting debate, with contributions from Jordan, the AU and a handful of international law professors who are for the most part recognised experts on this question. To move the debate along, the Appeals Chamber has issued a list of questions to be addressed by the participants.

I will obviously not take the time to give my take on all the questions. My views are well know on this issue, as I’ve developed many times in the past (see here and here for example).

I just wanted to react quickly on three particular aspects of the question.

  • Is the “international” character of the ICC relevant ?

A number of the questions put to the participants relate to the question of whether the fact that the ICC is an “international court” can affect the rules that apply in relation to immunities. This argument was put forward explicitly at the Special Court for Sierra Leone to justify the absence of immunities for Taylor and is regularly considered in the litterature, relying on an obiter from the ICJ Immunities where it was said that: “Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction” (par. 61).

I’ve never been convinced by this argument. Ascribing an “international court” label to an institutional does not magically displace all rules of international law, allowing such an institution to suddenly do things that the individual States that created it could not do.

Moreover, the ICJ was simply acknowledging the fact that certain international institutions did not provide for head of State immunity. It certainly did not provide a normative view on the matter. interestingly, in its lists of questions, the Appeals Chamber claims that “The International Court of Justice in the Arrest Warrant case refers to a potential exception to Head of State immunity under customary international law”. However, the ICJ does no such thing, and does not even use the word “exception” in the relevant paragraph.

  • What role for the “fight against impunity” in the interpretation of the Rome Statute?

One of the Appeals Chamber’s questions reads as follows:

According to  article  31  of  the Vienna  Convention  on  the Law of Treaties,  the  provisions  of  a  treaty  must  be  interpreted  in  the  light  of  its  context,  including  the  preamble,  and  its  object  and  purpose. What  is  the  significance  of  such  a  contextual interpretation of the Statute, in the light of its object and purpose as set out in its preamble,  namely  ‘to put  an  end  to  impunity  for  the perpetrators  of  [the  most  serious  crimes  of  concern  to  the  international community  as  a  whole]  and  thus  contribute  to  the  prevention  of  such crimes’, in the determination of the appeal?

My short answer is: none. I’ve always objected to the use of the vague notion of the “end of impunity” to justify any particular interpretation of the Rome Statute. Not only is it more often than not justified to adopt interpretations of the Statute which are against the Accused, but, more importantly, I do not think the “fight against impunity” is technically an object and purpose of the Statute to be taken into account for the purposes of Article 31 of the Vienna Convention (a minority view on this topic, I know). Saying this confuses the specific object and purpose of the Rome Statute as a legal instrument (conducting criminal trials) and the more general moral/political goal (ending impunity).

Confusing the two is like claiming that the object and purpose of a hammer is to build a house, rather than specifically to put nails in a wall. Focusing on the “build a house” aspect tells you absolutely nothing on what a hammer is actually meant to do concretely, because what is actually important to understand the hammer is the “put nails in the wall” aspect. The same is true of the ICC: relying on the “fight against impunity” gives you no indication on how the ICC is actually meant to work, and therefore is simply an excuse for Judges to put their own moral agenda in the mix. This should of course not be allowed.

  • Interpreting UNSC Resolutions

The immunities debate has involved a great deal of discussion on what the UNSC actually intended to do when it adopted UNSC Resolution 1593. Irrespective of my own interpretation of the Resolution, I’ve always found it puzzling that we need to fill pages and pages of cabbalistic linguistic intepretations of the Resolution, when all we need to do is ask the UNSC what it actually meant to say. The UNSC is just there! Just put the question to it, or at least to some of its member States. It shouldn’t have to be that complicated: “Did you intend to displace international rules of immunity, or not?”. Whether the UNSC has the power to do so is an entirely different question (I would argue that it doesn’t), but maybe is there no issue to discuss in the first place. In this sense, it would have been interesting for the Appeals Chamber to specifically invite the UNSC and /or its member States at the time of the adoption of the Resolution to provide the Judges with some clarity on the matter.

In that respect, Benjamin Durr recently reported that:

With Patryk Labuda rightly commenting that:

Indeed, the Foreign Ministry statement, although couched in diplomatic terms, could suggest that the Chinese do no agree with the removal of Bashir’s immunity. This is not definitive proof of what the Resolution actually means, especially because China does not speak for the other members of the UNSC, but it could definitely be taken into account in the decision making process.

[UPDATE: Alex Galand has kindly pointed out to me on twitter that in fact both China and Russia have recently clearly stated that Head of State immunity remains, irrespective of a UNSC Resolution:

More food for thought for the Appeals Chamber which should absolutely be taken into account!]

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ICC PTC issues advisory opinion (yes, yes) on ICC jurisdiction over Rohingya deportation

Posted on September 6, 2018 | 10 comments

Today, 6 september 2018, PTC I issued a decision finding that the ICC can have jurisdiction over the deportation of Rohingya from Myanmar to Bangladesh, despite the fact that Myanmar is not a State party, because at least one element of the crime of deportation (the crossing of a border) took place on the territory of a State party (Bangladesh).

While I would tend to disagree with the “you put a toe on a border” theory of territorial jurisdiction, I will leave my more knowledgeable colleagues on the definition of the crime of deportation to debate whether the PTC is really convincing on this point. I wanted to briefly address a few other issues that arise from the decision and which I find interesting.

  • The procedural framework

I have been skeptical from the start on the use of Article 19(3) to allow the OTP to address a Chamber at such an early stage with a question of jurisdiction and the decision just issued does not convince me.

Article 19(3) is situated in Article 19 entitled “Challenges to the jurisdiction of the Court or the admissibility of a case” and it should be read in this context. This clearly suggests that there needs to be a “case” (or at least a “situation”, if we accept the expansive definition of “case” in the practice of the Court). Moreover, we find similar language in the second sentence of Article 19(3) itself, which refers to a State which has refered the situation.

We have neither here. If the drafters had wanted to create a possibility for the OTP to obtain a ruling on jurisdiction as early as the PE phase, it would have more likely created a distinct provision on this. As things stand, I find it unlikely that Article 19(3) can be interpreted in this way.

I am equally unconvinced by the Compétence de la Compétence argument, which seems entirely beside the point. The question here was not whether the Court can determine its own competence (which does not seem an issue) but when. In that respect, I don’t see how invoking the principle helps in any way in determining at what stage of the proceedings the Judges come into play (see the very interesting dissent of Judge Brichambaut on this point).

As for Article 119, it should not be able to create a new procedure out of thin air…

[UPDATE: I hadn’t taken the time to analyse in detail the dissent of Judge Perrin de Brichambaut earlier, but I must say that I fully agree with him on these issues.

The contextual interpretation of Article 19(3) is clearly contrary to what the Prosecutor has argued and this is clearly demonstrated by the dissenting Judge.

As for Article 119(1), the Judge is equally convincing. The Majority’s definition of a “dispute”, based on a press release by a Myanmar governement official is laughable. By that token, the Prosecutor could use Article 119(1) whenever anyone (why just a State?) expresses disagreement with a position held by the OTP. I am regularly in “dispute” with the OTP when I comment on this blog. Let’s merrily go before the Chambers to resolve it !

Moreover, Article 119(3) is in a totally different part of the Statute, the “final clauses”, which in no way relate to the powers of the Prosecutor or create a specific procedure. In this sense, while the dissenting Judge is cautious in saying that “uncertainty remains as to knowing whether the “dispute” must arise between States or from a disagreement among the parties to judicial proceedings or even third parties”, I would not show such restraint: I think it is pretty obvious Article 119(3) relates to inter-State disputes only]

I believe that the decision is merely an advisory opinion at this stage. It is only when a PTC considers jurisdiction as part of a formal request to open an investigation will the Judges truly be in a position to issue a binding decision on such matters. As an aside, if such request where filed, I would suggest that the two Judges who ruled on the issue be disqualified from sitting on a PTC constituted to deal with the matter.

From a policy perspective, I’m not entirely sure the OTP made a smart move here. I’ve often argued that there is an underlying power struggle between Judges and the OTP to take control of the procedure at the Court. The OTP has essentially let the Judges in to what was arguably the last remaining bastion of discretion it has under the Statute, allowing them to dictate the OTP’s conduct during PEs. This is apparent from the decision itself, where the Judges take the opportunity to lecture the OTP on the way it defines a PE and warn her on the fact that she should proceed swiftly (based on the Comoros decision). You would have expected the OTP to learn the lessons of the Comoros litigation, but they took the shortsighted view here in my opinion, and I believe that Judges will continue to eat into the OTP’s discretion at the PE phase…

  • The objective legal personality of the Court

In the decision, the PTC engages in a lengthy discussion on whether the ICC has an objective legal personality (while admitting that such finding is irrelevant to determine the question of jurisdiction, which begs the question of why they delved into this issue as well).

I will not bore the readers with a detailed explanation of why every example the PTC gives to justify their position is unconvincing. Ultimately, the PTC relies on the ICJ Reparations case (where the ICJ proclaimed that the UN had an objective personality solely on the fact that it had a lot of member states…) and, paraphrasing unashamedly the ICJ Judgment, declares (par. 48):

In the light of the foregoing, it is the view of the Chamber that more than 120 States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity called the “International Criminal Court”, possessing objective international personality, and not merely personality recognized by them alone, together with the capacity to act against impunity for the most serious crimes of concern to the international community as a whole and which is complementary to national criminal jurisdictions. Thus, the existence of the ICC is an objective fact. In other words, it is a legal-judicial-institutional entity which has engaged and cooperated not only with States Parties, but with a large number of States not Party to the Statute as well, whether signatories or not.

This could be called the “Bully theory” of the objective personality international organizations: “there’s a lot of us, and we think we’re Morally Superior, so you have to objectively recognise us. Sorry? the Relative effect of what? treaties? No, not important. Haven’t you been listening? we’re morally superior, and that trumps everything else” (This, for some, applies mutadis mutandis to immunities, but that will be for another time). Needless to say this is far removed from serious legal argumentation.

  • Concluding thought

Whether the PTC is correct in finding that the ICC might have jurisdiction over the deportation of Rohingya or not, I’m not sure how helpful this whole procedure is, either for the OTP (see above) or even “victims”. Even if the Judges go out of the way to try and argue that such jurisdiction over deportation would open the door for the ICC to have jurisdiction over other related crimes (persecution for example), the decision is bound to create unreasonable expectations on the part of victims in relation to the relief that the ICC can effectively bring as regards what is going on more generally in Myanmar, and over which, for the most part, the ICC will not have jurisdiction. Here, as often,  the ICC and its defenders will be quick to challenge those who criticise them, without realising that they are setting themselves up to fail…

 

 

 

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3 Judges removed from Mladic Appeal at the MICT for appearance of bias

Posted on September 5, 2018 | 11 comments

On 3 September 2018, Judge Antonetti (acting as senior Judge at the MICT) issued a decision granting the Mladic defense request to disqualify Judges Meron, Liu and Agius from the Appeals Chamber in light of their involvement in other cases at the ICTY were the criminal responsibility of Mladic was discussed.

I imagine this decision will be criticised by some, but I entirely agree with it. How can one seriously claim that a Judge who issued a judgment where it is clearly indicated that Mladic had genocidal intent or that crimes could not have been committed without his approval, can be deemed to not have already formed an opinion on such a central question at the heart of the Mladic appeal? It seems to be basic common sense to me.

One of the issues was the fact that  Judge Meron sat on a couple of appeals where Mladic came up. The disqualification decision makes a distinction between passages in a Appeal Judgment that only refer to and provide an assesment of the reasonableness of the conclusions of the Trial Chamber and passages that seem to express an opinion of the Appeals Chamber directly.

I can see the relevance of the distinction on principle, because, in theory, the fact that an Appeals Chamber finds that a conclusion of an Trial Chamber was not unreasonable, does not mean it agrees with it. However, I think that this ignores the reality of what the Appeals process entails on a psychological level. One is more likely to find as “reasonable” a conclusion that one agrees with and vice versa. Under the guise of an objective standard of review at the appeals level, Appeals Chambers have repeatedly substituted their own determination of the facts under the pretense that the Trial Chamber’s factual finding was not “reasonable”. This need not always be the case, but it is a sufficiently “reasonable” possibility to create a perception of bias in a “reasonable” observer. In those circumstances, I would apply a stricter test than the one Judge Antonetti applied.

The decision concludes with this thought (par. 82, my translation): “By allowing certain Judges to participate in two distinct trials resulting from the same factual pattern when there existed between the case common elements of facts and law, international criminal tribunals have taken certain risks when it comes to impartiality”.

I would have liked to hear more about this. “Certain risks” does not mean anything. Either the Tribunal adopted an unfair practice or it did not. In this sense I would be interested (if anybody out there has done this research already, please share!) to see a mapping of the cases Judges sat on and the factual relationship between such cases. Especially, how does this decision apply to the Karadzic appeal?

I would go even further. I believe that, beyond individual Judges, for some defendants, for example Mladic and Karadzic, their fate was sealed on an institutional level, before their trial even started, given the ample discussion of their role in numerous other Judgments. I suppose this was unavoidable given the nature of the tribunal, and the factual situation it was dealing with, but it does not mean it is not problematic. It raises, beyond fair trial issues, the age-old question of how individual criminal responsibility is approached (and diluted) in system criminality and, ultimately, the question of the capacity of international criminal tribunals to deal with such criminality.

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