Category Archives: amnesties

Gadafi admissibility decision: the ICC probably gets it right on amnesties, but for entirely wrong reasons

Last friday, 5 april 2019, Pre-Trial Chamber I of the International Criminal Court rejected the admissibility challenge filed by the Defence team of Saif Al-Islam Gadafi. I’ll let you read the decision itself to get a full picture of the procedural history, but, in essence, Gadafi is claiming that his case is no longer admissible because he was tried (in abstentia) and convicted for the same conduct which is the subject of the arrest warrant at the ICC. Gadafi also claims he was released on the basis of an 2015 Amnesty law (an English version of the law can be found here).

There are a number of interesting points to discuss in this decision which I’m sure other people will pick up on.

For example, I continue to disagree with the idea that the burden to prove all relevant aspect of the admissibility lies exclusively on the State or person challenging the admissibility of a case. For me, the burden should be split: the challenging party need only prove that the case is being investigated or prosecuted and it is for the Prosecutor to prove the alleged unwillingness or inability of that State.

Another example is the impact of a trial in absentia in relation to the finality of a judgment for the purposes of the ne bis in idem principle. First of all, I find that  the decision is not very clear on this point. On the one hand, the Judges seem to suggest that if the person is finally brought into custody, there is an automatic retrial: “According to the Libyan national law, once the person is arrested, his trial should start anew » (par. 48). On the other hand, the Defence seems to be saying that a retrial is only an option triggered by the Accused himself (see par. 55). Second of all, one can wonder to what extent it is good judicial policy to base the ne bis in idem analysis on hypothetical procedural developments, based on hypothetical future events. The admissibility assessment should be made based on the factual reality at the time of the decision, and the decision can be revisited should this factual reality change. If not, no case will ever be admissible because there will always be a hypothetical risk that something might happen (a revision, a retrial, etc.).

The main point I would like to comment on now is the question of amnesties. I know that academics are often criticised for a sort of egocentric impulse to quote their own work. Generally, I do not understand this criticism. We work hard on our research, on which we are judged professionally. Why should we not refer to it? Moreover, there are times, all too rare, when we develop a theoretical idea which turns out to have a real practical impact. In such cases, referring to our own work becomes even more relevant. And this decision is such a case for me.

Indeed, in 2012, I published a book chapter in a volume edited by Larissa van den Herik and Carsten Stahn (The Diversification and Fragmentation of International Criminal Law) entitled « Puzzling Over Amnesties: Defragmenting the Debate for International Criminal Tribunals » (see here for the first draft on SSRN). In that paper, I analysed the approach taken to amnesties in a number of international tribunals, more particularly international criminal tribunals and proposed two findings which I think are relevant here:

1) Contrary to what a number of commentators were saying at the time and still are today, I claimed that it was highly unlikely that an amnesty would ever be considered a valid reason to find a case inadmissible. Indeed, as a court founded on a criminal justice model, the ICC is for me quasi-ontologically incapable of considering mechanisms other than criminal law mechanisms. Whatever the political and societal benefits that one could see in some amnesties (a position I personally share), the ICC is not a court of political legitimacy (an assessment which the Judges are not equipped to make in any case). This conclusion is confirmed by the actual language of the Statute itself, where complementarity is explicitly defined in relation to « national criminal jurisdictions ». I therefore believe it would take an extraordinary set of circumstances for an amnesty to ever be accepted by the ICC. So, in this sense, I’m not surprised by the outcome of the Gadafi decision itself.

This being said, in my chapter, I had mostly considered amnesties in an isolated manner, not in combination to other procedures, notably the actual conduct of a trial. But I do not think this changes my analysis. Indeed, how is an amnesty following a conviction not literally technically a way of « shielding the person concerned from criminal responsibility »? I’ve seen commentators on twitter lament the fact that the majority confused amnesties and pardons. But I personally don’t see how the technical term used changes anything, so I’d be happy to hear more about this.

2) In my chapter, I explained that international criminal courts are not courts of legality of domestic legislation. They are tasked with determining whether laws enacted by States are in conformity with international law or not. When you apply this to amnesties, it mean that when the issue comes before them, they have to determine to what extent such amnesty is relevant procedurally, not determine whether this amnesty was adopted in contravention to accepted international norms relating to the duty to prosecute. More particularly, in the context of complementarity at the ICC, this means that the only thing that a Chamber needs to do is identify whether an amnesty is opposable to the Court in the context of an admissibility challenge. The advantage here was obvious: have international criminal judges stick to their function. Indeed, a strict finding that such amnesty is not procedurally relevant should require neither a determination that the amnesty was legally problematic neither a finding that the amnesty was politically illegitimate. As I noted in the conclusion of my chapter, it is “entirely possible to ascertain that amnesties for crimes within the jurisdiction of an international tribunal should not be recognized, while still leaving open the question of the validity in international law of that amnesty, or its political legitimacy ».

As a consequence of this, I obviously think that the majority in the Libya decision followed the wrong methodology in assessing the amnesty that Gadafi might have benefited from. They did not need to fill pages upon pages with other decisions that pronounced on the legality of similar amnesties, because that was not relevant for the admissibility assessment.

In the reasoning of the majority, one sentence struck me as problematic: « The Chamber believes that there is a strong, growing, universal tendency that grave and systematic human rights violations – which may amount to crimes against humanity by their very nature – are not subject to amnesties or pardons under international law » (par. 61).

I’ve always been irritated by Judges talking about « tendencies » when it comes to the content of the law (the same goes for other similar expressions, my favourite being that something is a « crystallising » norm). Their job is to determine the content of law as a judicial organ, not comment on a hypothetical law formation process.

You might say that I’m ignoring the very nature of customary law formation by saying this. But the judges themselves never explicitly situate themselves in such a discussion: they never even mention customary law (except in quoted excerpts from other courts and tribunals) and at no point conclude on the customary law status of the alleged prohibition of amnesties.

Instead, they use the very convenient trick of referring to Article 21(3), which asks Judges to interpret the Statute consistently with internationally recognised human rights. However, this is flawed because the Judges are not technically interpreting anything here, let alone the Statute. They are pronouncing on the international legality of a domestic amnesty law. I doubt this is the purpose of Article 21(3).

As a concluding point, I note that the majority’s developements on amnisties would appear all the more theoretical given that there appears to be some confusion about whether Gadafi in fact benefited from the amnesty law at all.

Indeed, the Defence claims he did (admissibility challenge, par. 26). However, the decision itself claims, based on what the Libyan authorities told the ICC, that Gadafi has not in fact benefited from this law because the crimes he was charged with were explicitly excluded from the law. Moreover, nothing seems to indicate in the decision itself that Gadafi benefited from the law for the crimes falling within the ICC arrest warrant. If that is the case, and more importantly, if this is what the majority believes to be true, it’s not entirely clear why they embark in the discussion on the legality of the amnesty at all.

It would not be the first time that Judges at the ICC bring in an irrelevant « sexy » issue in a decision, maybe to make themselves feel like they are contributing to the greater good of international justice rather than being perceived as boring technicians of international criminal procedure. But by refusing to accept what they are, and seeing themselves as something else, some international judges sometimes comes dangerously close to not actually doing what they were elected for, to the detriment of all Parties involved and, ultimately, to the ICC itself.

Follow-up post on Amnesties in Uruguay: when popular sovereignty defies human rights actvitists

I’ll be posting in Libya in the coming days, but for now a short follow up on the Amnesty law in Uruguay

A while back, I posted on the Uruguay amnesty law which has been universally condemned by rights groups and, at the time, found unconstitutional. In March, the Inter-American Court of Human Rights apparently condemned the law as well and in April, the Uruguay senate voted to overturn the law.

Well, last week, a vote in the House of Representatives to repeal the law failed. Apparently, there is some support for that law in the country, which, as I mentioned in my initial post, was approved twice by referendum.
Whatever one thinks of the law itself, there is clearly a clash of logics here. On the one hand, the universalist approach to human rights and on the other, the question of popular sovereignty. Indeed, this law is clearly not being imposed from the top by a dictatorial regime. It is, as far as I can tell, a reasonably functioning democracy. This certainly raises the question of the limits of outside intervention when a population chooses a certain path for itself and I find it disturbing that, in an era where “local ownership” is the new catchphrase, human rights activists are so adamantly trying to force a certain mechanism on a country which so clearly does not want it.

Amnesty law Found Unconstitutional in Uruguay: Victory for Human Rights, but what about popular sovereignty?

On monday, the Supreme Court of Uruguay issued a decision condemning the 1986 amnesty law for crimes commited under the military regime that was in power until 1985. I’m not familiar with the constitutional framework in Uruguay and the legal consequences of the decisions. Some report that the law was declared “unconstitutional” (see here): does it mean that the law is immediately inapplicable? Others report that the law was “annuled” (see here). I haven’t read the decision (if someone has it in English, i’d appreciate receiving it!) but apparently, the Court invoked Uruguay’s human rights obligations to respect victim’s right to reparations and to know the truth.

This is a new decision in the trend against amnisties in international law, and is, in this sense not particularly groudbreaking. I won’t go into a debate here on the general question of Amnisties (I invite you to read my forthcoming paper on this). What strikes me more particularly in this case, beyond the legal technicalities, is that the law was upheld by referendum, not once, but twice, the last time as recently as 2009, despite strong opposition from rights groups. I find it a little disturbing, in the broader political scheme of things, that the democratic popular expression of opinion be given so little consideration. In 2009, after the referendum, the regional director of HRW said that: “let’s not forget that  accountability is not a popular contest that should be decided by majorities”. Actually, it kind of is. Society makes a choice to criminalize some conducts and not others. And the least worst way we have come up to evaluate support for such choices is requiring a majority. In other words democracy. What kind of arbitrary criteria allows HRW to decree that democracy is a good thing, except when people don’t vote “right”? If the referendum had gone the other way, I’m sure that same person would have applauded the popular support against amnisties.

It is a difficult balance to be struck between majority decisions and minority opinions in any democracy, and a harder balance even between human rights and political compromise in situations of transitions, and I  certainly do not claim to have the answer. But as a rule, I would tend to give quite some credit to the free expression of public opinion as a starting point. The majority principle (with qualifiers or not), is effective in that it allows institutions to move forward. Whereas, minority power can only lead to political stalemate. This is of course schematic, and doesn’t mean that there shouldn’t be any normative framework (both procedural and substantial) surrounding the exercice of democratic expression. But as a rule of thumb, I have difficulty seeing how a law disapproved by a majority can be politically legitimate.

This reasoning of course implies adopting a collective/social contract approach to political analysis, which is a little removed from the individual approach, where rights emerge from above and social relationships are totally depoliticised. Indeed, how could they not be where the origin of rights is transcendental, rather than emerging from some form of popular consensus? you cannot argue with a priori morality. I find it ironic that such effort was put by intellectual and political leaders over the centuries to free themselves from the Church by breaking down the conflation between the temporal power and the spiritual power, only to see the latter re-enter through the prism of Universal Human Rights in recent years. Apparently, nothing much has changed since the Middle Ages…

War Don Don: Raising questions about the SCSL

Last night, in the context of the Movies that Matter festival that opened in The Hague, I saw the documentary called War Don Don, which followed several actors involved in the Issa Sessay trial at the Special Court for Sierra Leone. The film was interesting in many ways, most notably in not trying to take sides.

For one, it gives an opportunity to both the defense team and the prosecutors to express their views. This allows us to see how personal such a trial can be, with one Prosecutor, David Crane, saying that he looked into Sessay’s eyes and saw no soul, and the lead defense counsel, Wayne Jordash, saying how likeable Sessay was and how in other circumstances they could have been friends. Both statements can be unsettling, but I must say, and this is probably my defense bias, that I’m much more uneasy with Crane’s statement, because this quasi-religious crusade of Good Vs Evil transpired in court, when he referred to Dante’s inferno in his opening statement.
More generally, I tend to side with the criticism of the prosecution case of JCE that seems to strip all political motive from the actions of the RUF. The fact that the country was, and still is, a corrupt ridden place, where basic social welfare is not insured, which could explain that part of the population might legitimately want to get rid of their leaders, is generally absent from the story as told by the prosecution. Moreover, I’ve always been struck by the parallels in narrative between Sierra Leone and Rwanda. Indeed, the story of greed and power grabbing as sold to us by the SCSL, with Foday Sankho being an outsider financed by a foreign head of state, Charles Taylor, can very well apply to Kagame and Museveni. But the genocide that occurred in Rwanda has been clouding the issue, which means that while Kagame and Museveni are in power and will probably never face trial for having destabilised the whole region for so long, Foday Sankho died in custody and Charles Taylor is currently in the UN Detention center in the Hague…

Another issue raised in the movie is the question of the rights of the defense. I’ve never worked at the the SCSL, but everybody i’ve met from the institution and a lot of the decisions i’ve read so far seem to show that the legal reasoning is often sloppy and doesn’t give a very positive image of the Court’s capacity to render justice in a satisfying way. As pointed out by Jordash at one point, what is even more worrying is the institution’s incapacity to reflect on its own flaws…

The question of Peace and Justice is also present in the documentary. How much credit should Sessay have received for enacting the disarmament of the RUF after Sankho’s death? Apparently, he got none and is going to spend most of the rest of his life in jail. What message does it send to future negotiators? Should they not sign a peace treaty, given that they will end up in court anyway? The question arose at the Special Court with the issue of the amnesty granted by the Lomé peace agreement. In a notably badly reasoned series of decisions, the SCSL rejected its application. This was legally justified by the Statute itself, but is this extreme position of the international legal community against amnesties really politically sound (as well as not necessarily being legally so absolutely clear, as I argue in an upcoming publication)?

Another issue is the question of the goals of international justice. One example is the opening statement by the President of the Chamber who starts by saying that the tribunal is there for “justice for victims and reconciliation”. I find that quite shocking. That the moral background of international tribunals is broader societal aims is one thing. That such a goal is the only statement made during the opening line of the trial itself by the presiding judge is another. Trial transcripts of international trials are full of these examples.
Another example, at several moments in the film, the question of truth is mentioned. Jordash regrets that the way the judges conducted the trial did not lead to truth, except if the defense team does “a good job”. Later, he denounces the arrogance of people from the outside wanting to tell a population about its own history. During the debate after the film, I asked him if a criminal trial should at all be about the “truth”. It should be about the innocence or guilt of an individual in an adversarial system that cannot be tailored for establishing a neutral historical truth. This idea is an illusion of the transitional justice field and allegedly justifies the right of victims to get a trial.

Which leads me to the last interesting aspect. The film shows interviews of Sierra Leonians which illustrate the difficulty in identifying exactly what the victims want and how they feel. One man wishes Sessay to spend the rest of his life in jail, while one woman calls for forgiveness. This highlights one fallacy of debates in the field of international criminal justice, that there is this monolithic discourse of Victims who would all want the same thing: international prosecutions. This is a handy argument, because it takes the moral high ground and portrays any doubter as a cynical cold-hearted person. But ultimately, it does not really help in advancing the resolution of the difficult issues surrounding the implementation of international justice.