Category Archives: bashir

Guest post: The Appeals Chamber’s Chastisement of PTC II for its Article 87(7) Referral Gameplaying

Posted on May 8, 2019 | 1 comment

[Hemi Mistry is an Assistant Professor in Law at the University of Nottingham, where she researches and teaches in the area of international criminal justice. Her current research focuses upon how judicial procedure before international courts and tribunals affects how those institutions pursue their mandates. She wishes to thank Dov Jacobs for hosting this guest post.]

It’s a been a fiery time in the world of ICL: first, the decision by Pre Trial Chamber (PTC) II not to authorise an investigation into the situation in Afghanistan situation and second, this week’s bumper decision by the Appeals Chamber (AC) in Al Bashir, concerning Jordan’s non-cooperation in the execution of the arrest warrant for Omar Al Bashir and – more widely – the matter of immunities under customary international law. With the judicial division of the ICC seemingly intent upon institutional (self-)immolation, the international legal Blogosphere and Twittersphere have watched on (and fanned the flames) in horror. Amidst the flames, I wish to highlight one important aspect of Monday’s AC decision which represents a positive development in the Court’s caselaw. Specifically, this post concerns the Appeal Chamber’s reversal, by majority, of PTC II’s decision under Article 87(7) to refer Jordan’s non-cooperation in the arrest and surrender Omar Al Bashir to the UN Security Council and ICC Assembly of States Parties. Against the backdrop of the bigger ‘immunities’ question (for first of what will likely be many takes, see Jacobs and Akande) and the post-Afghanistan decision ‘crisis’, the corrective issued by the AC may at first glance appear to be a case of fiddling while Rome burns. However, as I will argue, this aspect of the AC decision represents an important attempt by the Chamber to reign in, or at least draw a line under, one of the most problematic and (excuse the pun) unruly traits in recent PTC decision-making. But first, a lot has happened, so to understand the significance of this week’s decision it is necessary to go back to basics…settle in for a story…

Article 87(7) represents one of the limited number of tools available to the ICC to respond to failures by its States Parties to comply with their obligations under the Rome Statute and to provide cooperation to the Court in the forms requested by its organs. It reads:

Where a State Party fails to comply with a request to cooperate by the Court contrary to the provision of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.

Article 87(7) determinations of non-cooperation and referrals to the Security Council have become a standard response to the failure by States Parties to arrest and surrender Omar Al Bashir upon his presence within their jurisdictions. The first three ‘referrals’ of non-cooperation by PTC I of Sudan in Harun and Ali Kushayb and of Kenya and Chad in Al Bashir, all issued in 2010, were not technically referrals under Article 87(7), but the exercise rather a summarily-claimed inherent power to ‘inform’ the Security Council of the accused’s presence upon the territory of a State Party, or the situation-State. However since then, PTC II, initially configured as PTC I, made three Article 87(7) referrals of Sudanese non-cooperation in violation of its obligation to cooperate with the Court established under Security Council Resolution 1593: two in Al Bashir (here, and here) and one in Hussein (here). Further to this, Chambers have issued non-cooperation decisions against eight States Parties for their failures to arrest and surrender Al Bashir upon his presence within their respective jurisdiction: Chad (2011, and 2013),  Malawi (2011), Nigeria (2013), the DRC (2014), South Africa (2015), Uganda (2016), Djibouti (2016), and Jordan (2017). In all but two instances (Nigeria (2013) and South Africa (2015)) of these instances of non-cooperation the Chamber went on to refer that non-cooperation to the Security Council and the Assembly of States Parties. Monday’s AC decision, however, reverses the PTC’s decision to refer Jordan’s non-cooperation to the Security Council.

PTC II’s caselaw on Article 87(7) is characterised by two themes: 1) Its growing frustration with the failure of states to engage with – even acknowledge – their obligations to cooperate under the Rome Statue, and 2) the PTC’s growing frustration with the Security Council and its failure to do anything to follow up on the Chamber’s referrals once they had been made. These frustrations manifested themselves in a number of ways. One way has been the gradual escalation in the language and detail with which the Chamber exhorts the responsibility of both States Parties and the Security Council to cooperate with and support the Court. Another way this frustration has manifested is the Chamber’s attempt to leverage whatever coercive tools it has within the Rome Statute toolkit to nudge States Parties towards increasing constructive engagement with the Court around the matter of cooperation, with the ultimate goal being fulfilment of cooperation requests. One such tool is the discretionary component of Article 87(7).

The early jurisprudence in Al Bashir adopted a straightforward interpretation of Article 87(7). The permissive, or discretionary, nature of the power to determine non-cooperation and refer was not acknowledged and, instead, once the Chamber had established the State Party was under an obligation to cooperate and two had failed in fact to provide that cooperation, the referral of that finding of non-cooperation was automatic (see, for example, Chad (2011, and 2013),  Malawi (2011)). In these early decisions the Chamber was presented with quite straightforward non-cooperation: the states in question simply did not engage with or acknowledge their obligations under the Statute, asserting instead the immunity of then-President Al Bashir. With non-cooperation findings and referrals stacking up and gathering dust untouched by the Security Council, in 2013 the Chamber was presented with a new situation when, for the first time, it was presented with non-cooperation by a State Party – Nigeria – which did, at least, acknowledge and accept its obligations under the Statute, which professed its commitment to fulfilling those obligations and which provided explanations for its failure on that occasion meet the Court’s cooperation request. In response, for the first time the PTC acknowledged the permissive ‘may’ in Article 87(7) and in doing so emphasised the discretionary nature of its powers under Article 87(7) (para.10). Although it appeared to implicitly acknowledge that Nigeria’s failure to arrest and surrender had been a breach of its obligations to cooperate, the Chamber did not make a formal finding to that effect. Instead, after ‘taking note’ of the explanation offered by Nigeria for its inaction, it concluded simply that ‘it is not warranted in the present circumstances to refer the matter’ (para.13).

Yet, the following year, when the DRC argued that the Chamber should not refer its non-cooperation in materially similar circumstances to Nigeria and having made similar representations as to its good faith commitment to its obligations under the Rome Statute, the Chamber refused to follow its Nigeria decision. Rather, it did two things. First, it appeared to distinguish DRC’s non-cooperation on the facts: referring in its dispositive paragraphs to the ‘deliberate’ refusal of the DRC to arrest and surrender Al Bashir, and elsewhere in the decision it described the DRC’s explanation for its non-cooperation as ‘unconvincing’ (para.13). With no objective difference between the motives of, and explanations provided by, Nigeria and the DRC respectively, it would seem that this distinction on the facts was made on the basis of a subjective assessment of the good faith credentials of the relevant parties. The exercise of discretion on this basis is not itself problematic – indeed the value of judicial discretion is in its ability to allow judges to be responsive to the circumstances of the decision at hand. However, the Chamber’s refusal to be convinced by the DRC’s explanation for its non-cooperation is itself difficult to accept given that the previous year it was ready to accept on face value that same explanation when offered by the Nigerians. That aside, the most problematic aspect of the Court’s decision in the DRC case is the second thing it did: it introduced a new and additional obligation, the obligation to consult with the Chamber in accordance with Article 97 of the Statute. On the basis of two findings – 1) the ‘deliberate’ failure to arrest Al Bashir (which was no more deliberate than Nigeria’s failure) and 2) the DRC’s failure to engage in Article 97 consultations, the Chamber referred the DRC’s non-cooperation to the Security Council, even though no mention of Article 97 was ever made in the previous Nigeria decision. It is this manoeuvre by the Court – the moving of the goalposts for the exercise of its judicial discretion – that is difficult to accept as legitimate.

Up until now, the structure of the Chamber’s analysis under Article 87(7) had been broadly the same. Notwithstanding the implicit acknowledgement of Nigeria’s factual non-cooperation, in all cases, the Chamber swept together the non-cooperation finding and the referral of that finding. However, in 2015, PTC II once again departed from its caselaw, confronted now by a state – South Africa – whose own Supreme Court had determined that it had failed to provide cooperation to the Court, contrary to its obligations under the Statute. Yet, not only did South Africa itself advance this Supreme Court ruling as evidence of its commitment to its obligations under the Statute and – more broadly to the rule of law – it had gone further, and had engaged the process of consultations under Article 97 which the Chamber had, in its DRC decision, identified as a decisive factor in the exercise of judicial discretion. Thus, the Chamber was forced to uncouple the non-cooperation finding and the referral: it made the finding of fact that South Africa had failed to cooperate in accordance with its obligations under the Statute, but nevertheless it decided not to refer that finding to the Security Council.

Having moved the goalposts once in the DRC decision, and having exhausted the (very limited) panoply of obligations under the Rome Statute that it could add to the justifications for the exercise of its discretion in South Africa and in doing so move the goalposts again, the PTC II had – it appeared – exhausted the leveraging potential of its discretion under Article 87(7). Yet, when it came to address Jordan’s failure to arrest and surrender Al Bashir in 2017 although Jordan had objectively overcome all the hurdles set out by the PTC II in Nigeria, then DRC and South Africa, the PTC refused to follow its decision in South Africa. Instead, it determined that what Jordan claimed was engagement with the consultation process in Article 97 was not, in fact, engagement with the consultation process (para.46-49). It further argued that Jordan could not have engaged in consultations for the purpose of Article 97 because the obstacle impeding cooperation that it advanced as the subject of those consultations – i.e. the question of immunities – had been addressed, resolved and removed in the course of the consultations on the same matter undertaken by South Africa (para.54-55). Now, therefore, it would seem that if Jordan wished to invoke the consultation procedure to qualify for the Chamber’s consideration of not to refer its non-cooperation, it needed to have come up with a novel obstacle to cooperation to consult over. Yet again, the goalposts were moved. This manoeuvre was one step too far and, on Monday, the AC reversed the PTC’s decision to refer Jordan’s non-cooperation. Not only did the AC conclude that the PTC made an ‘error’ in mischaracterising Jordan’s attempts to engage the Article 97 consultation process, but that the differential treatment of Jordan and South Africa constituted ‘an abuse of judicial discretion’ (para 210-211).

This aspect of the AC decision, and especially the strongly worded rebuke of the PTC’s conduct, should be welcomed. On one hand, the Chamber’s experiment with leveraging its discretion to refer non-cooperation to the Council to influence the behaviour – even if it is just the argumentative behaviour – of States Parties was partly successful. The DRC – rather than not engaging with the cooperation obligation – acknowledged, like Nigeria did, its obligation under the Rome Statute, stated its commitment to its Rome Statute obligations, but explained the practical impediments to its ability to discharge those obligations at the case at hand. Similarly, Jordan sought to engage the same consultation process under Article 97. Even though, as the Chamber itself pointedly observed, the Council has consistently failed to act upon its referrals – such that there is little ‘hard’ consequence from such a referral – States Parties, first the DRC and more recently Jordan, have taken steps to align their non-cooperation with that of Nigeria and South Africa to avoid a referral to the Security Council. Whereas PTC I has argued that the referral under Article 87(7) are meant to be ‘value neutral’ and ‘not designed to sanction or criticise the requested State’ (para.33) (in the same breath, however, it appeared to concur with PTC II in characterising the referral power as a tools ‘“to use at a certain point in time as a last resort measure or as part of a comprehensive strategy to promote cooperation (para.24)), it would seem that PTC II has had some success in persuading States Parties that a non-referral is a ‘carrot’ worth striving (or at least arguing) for.

On the other hand, having achieved that, the Chamber’s refusal to treat like cases alike and its frustration of the legitimate expectation of states, simply, reeks of bad faith. One of the fundamental tenants of the rule of law is the expectation that, under the rule of law, like cases will be treated alike. It is one if not the factor that distinguishes the politics of legality from those other – less desirable – forms of politics that legality exists in opposition to (Shklar 1964). It is through the giving of reasons that legitimate expectations are created and stability and predictability in the exercise of judicial discretion are guaranteed. In the face of the considerable political, diplomatic and – indeed – legal controversies arising out of the Al Bashir arrest warrant, it was reasonable for states to look to the PTC’s caselaw for guidance and to rely upon that caselaw. The development of – and adherence to – stable and predictable principles might do little to incentivise the kinds of changes in state behaviour (i.e. the movement towards cooperation) that the strategy of leveraging its discretion has been aimed towards. Arguably, for this reason, the experiment with decoupling of the non-cooperation determination and the referral to leverage the referral discretion was always doomed to folly. However, PTC I has also accepted the decoupling of the non-cooperation determination and the Security Council referral, having characterised non-cooperation findings as value neutral objective assessments of fact (Al Islam 2014 at para.23) and referrals as ‘one of the tools available to the Court “to use at a certain point in time as a last resort measure or as part of a comprehensive strategy to promote cooperation”’ (Al Islam 2014 at para.23). As such, the discretionary nature of the referral determination is likely here to stay and, going forward, Chambers need to develop transparent principles to guide that discretion if they are to rebuild some of the trust of States Parties. In the face of the failure of the Security Council to take political action in response to PTC, the manoeuvring of the goalposts for the Article 87(7) non-referral was clearly a proactive attempt to enhance the effectiveness of the Court. However, judicial chambers are not the Security Council or the Assembly of States Parties; they are judicial bodies, not political bodies. With the composition of PTC II now changed, this week’s decision by the AC reminds the new crop of judges that – going forward – if they too wish to engage in politics, they must play the game of legality and abide by the basic rules of that game.

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The ICC and immunities, Round 326: ICC finds that South Africa had an obligation to arrest Bashir but no referral to the UNSC

Posted on July 6, 2017 | 4 comments

Today, the International Criminal Court issued a decision on whether South Africa was under an obligation to arrest the President of Sudan when he visited South Africa in 2015 in execution of two ICC arrest warrants.

I have blogged extensively about this issue in the past (here, here and here, for example). There have been a number of decisions in relation to this saga in the past few years, 2 notable ones being the decision issued against Malawi in 2011 and the decision issued against the DRC in 2014. These two decisions, while reaching the same result, had different legal explanations to offer and everyone was awaiting eagerly to see if this new decision would follow either of the previous decisions or take a different route.

Before analysing the decision, it should be said that I find it quite pedagogic, clear and easy to follow, even if I disagree with it. I think this should be noted, as both the Malawi and the DRC decisions were, putting aside the substance, quite confused in their drafting.

One should also welcome the fact that this decision was adopted following a actual procedure where all parties were heard extensively, which is also a welcome development.

Let us now move on to the substance, first whether South Africa had an obligation to arrest Bashir and second whether its non compliance should lead to a referral to the UNSC or the ASP.

  1. Was there a duty to arrest Bashir?

It should be noted from the outset, that in my view, South Africa clearly had a duty to arrest Bashir from a purely procedural perspective. Indeed, there have been enough decisions from ICC Chambers calling on the arrest of Bashir in various situations for there to be no doubt as to the obligation of States in that respect. South Africa’s disagreement with all those decisions, while I agree with it on the substance, does not allow it to simply ignore them in the context of the Rome Statute legal framework.

This being said, how does the Chamber revisit the immunity question?

First of all, the decision affirms that there is no rule of customary international law that removes the immunity of sitting heads of State from arrest in relation to international crimes, “even when the arrest is sought on behalf of an international court” (paragraph 68). This quite clearly puts to rest the idea that somehow, using the expression “international court” suddenly magically removed the normal application of international law, an idea that many, including the judges in the Malawi decision in 2011, had defended, based on a more than unconvincing reading of, among other sources, the ICJ Arrest Warrant case.

Second of all, the decision explains at length what is mostly uncontroversial: State parties who have signed the Rome Statute have accepted the removal of immunities under Article 27, and therefore cannot claim immunities as an obstacle for cooperation under Article 98. This is a conclusion reached by everyone until now, but it’s no harm in recalling it clearly in a judicial setting.

The real question is how the immunity of a sitting head of State of a non State Party is removed, and this is where the decision enters murkier waters in my view.

Let’s start with the majority reasoning which focuses on the effect of Security Council referrals. What does the majority say? the core of the reasoning can be found in paragraph 88 of the decision:

The Chamber finds, by majority, that the necessary effect of the Security Council resolution triggering the Court’s jurisdiction in the situation in Darfur and imposing on Sudan the obligation to cooperate fully with the Court, is that, for the limited purpose of the situation in Darfur, Sudan has rights and duties analogous to those of States Parties to the Statute.

As acknowledged by the Majority in the following paragraph: “this is an expansion of the applicability of an international treaty to a State which has not voluntarily accepted it as such”.

This reasoning takes the 2014 DRC decision to the next level: in that earlier decision, while relying on the UNSC referral, the Chamber had not as far as to claim that Sudan had obligation akin to a State party. In that earlier decision, the Chamber has taken a more modest approach, that of an implicit waiver of immunity (paragraph 29):

the “cooperation of that third State [Sudan] for the waiver of the immunity”, as required under the last sentence of article 98(1) of the Statute, was already ensured by the language used in paragraph 2 of SC Resolution 1593(2005). By virtue of said paragraph, the SC implicitly waived the immunities granted to Omar Al Bashir under international law and attached to his position as a Head of State.

Here, the Majority says that once Sudan is considered by a State party through the effect of the UNSC Resolution, Article 27 applies to it, and therefore, just as with State parties, there is no longer any issue of immunity to be considered. In other words, because there is no issue of immunity in the first place, there is no need to consider an implicit or an explicit waiver of it (see paragraph 96).

I have two problems with the Majority’s approach.

First of all, and for more details on my view you can read my article on the issue, while I take issue with the whole UNSC referral mechanism itself, I have even stronger reservations with the idea that the UNSC can make a State akin to a Party to a treaty it didn’t sign. The UNSC might have exorbitant powers within the UN framework under Chapter VII (a statement which could itself be challenged), but it does not, in my view, have the power to set aside general rules of international law, such as the relative effect of treaties. Ultimately, the UNSC is simply an organ of an international organisation.

The sole argument presented by the Majority that “the finding of the majority of the Chamber in this respect is in line with the Charter of the United Nations, which permits the Security Council to impose obligations on States” (paragraph 89) falls in that respect short of a solid legal explanation. When you look at the unique reference in the footnote, it is to a paragraph of the ICJ Namibia advisory opinion recalling the binding nature of UNSC Resolutions on member states. This is not the issue here. Nobody says that the UNSC resolution is not binding, what is at stake is exactly what are the legal consequences of the Resolution. It’s quite surprising that while the decision, as I said at the beginning, is quite pedagogic and takes the time to explain its reasoning, there is no acknowledgment of any counter arguments to its position on such a fundamental issue.

Second of all, and maybe less importantly, I’m not sure the reasoning holds in relation to the first part of the decision. Indeed, the Majority can only say that the consequence of considering Sudan like a State Party is the removal the question of immunities because it said in the first part of the decision that States who sign the Rome Statute, and in particular its Article 27 on the irrelevance of official capacity necessarily agree not to invoke immunities in their original relationships with other States under Article 98(1). Any other interpretation of the Statute would make no sense. What the Majority does not say, maybe for a reason, is that this analysis obviously flows from the idea that States intended the Statute to be operational. Which means that the argument only works because States consent to the framework they themselves designed. And because Darfur did not consent to the Rome Statute, then this argument does not work because you cannot attribute to Darfur even a fictional intent for the Rome Statute to be a coherent text which would allow for the Majority’s understanding of the relationship of Article 27 and 98 in relation to State parties to apply to Sudan.

As a final note on the majority view on immunities, one can wonder how this decision reflects on Judge Tarfusser’s understanding of consistent legal reasoning. Indeed, Judge Tarfusser was on all three immunities decisions, which all have different legal reasonings. He was on the bench in the 2011 Malawi decision which took the customary law approach to the matter (approach ignored in the 2014 DRC decision and explicitly rejected in today’s South Africa decision) and he was on the bench in the 2014 DRC decision which, as mentioned above, clearly took the “implicit waiver of immunities by the UNSC” approach , an approach that is now set aside in the more comprehensive approach in the South Africa decision. This is not the first time this happens, as I’ve pointed out in the past, that Judge Tarfusser adopts (or at least approves as part of the majority) different approaches in different decisions. While one can understand that a Judge changes his mind it would have been interesting to have a clear acknowledgement of this and an explanation of the reasons why.

Moving on to the separate opinion of Judge Brichambaut. I should say that I comment based on the reading out of the decision, because the written text is not available yet. I’ll be sure to change anything here that is not exact based on the written text when it comes out.

[Update: in light of the now available written version of Judge Brichambaut’s minority opinion, I now include some edits to my original post below which are warranted out of fairness to Judge Brichambaut’s position. Out of transparency, I keep my original analysis for the record. Please also note that my more positive take on the minority opinion is in no way due to the fact that Judge Brichambaut was kind enough to quote my article on a couple of occasions… ]

Judge Brichambaut says (at the end but it would have been more logical at the beginning I think) that in light of the conflicting arguments of the Parties in the procedure, he cannot conclude that arguments based on the UNSC Referral or customary law provide an adequate answer on whether Bashir had immunity under international law. On customary law, he makes an interesting point on the fact that States are clearly uneasy in arresting a sitting head of States and that only one State (Belgium) filed submissions in the South Africa proceedings, which shows that there is no clear opinio juris (a term he doesn’t use, but it is what he means I think) for the removal of the immunity for international prosecutions under customary international law.

[Update: the minority opinion explains all of this at length. I do not have much to add. Three things: 1) it’s apparent that Judge Brichambaut has adopted a clear and transparent methodology to address these issues, which makes the reading of the opinion very easy. 2) The discussion is balanced and well documented 3) I particularly like the discussion on whether the involvment of an “international court” changes anything to the discussion, although I would have been curious to know on what side of the discussion Judge Brichambaut actually falls…] 

So what is his legal basis for concluding that South Africa should have arrested Bashir?

Judge Brichambaut’s approach is based on a combined reading of Articles 4 and 6 of the Genocide Convention. According to Article 4: “Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals”. According to Article 6, “Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction”.

For Judge Brichambaut, article 4 means that States accept the removal of immunities and that because the ICC is an “international penal tribunal” as envisioned by Article 6, the removal of immunity also applies there. Because Sudan and South Africa are both parties to the Genocide convention, the issue of immunities is therefore moot according to him.

There are a certain number of difficulties with this reasoning. First of all, it ignores the fact that Article 6 provides for territorial jurisdiction, not anything resembling universal jurisdiction. So, I find it a slightly too rapid conclusion to say that Article 4 means removal of all immunities under international law automatically in relation to all States.

[Update: in the minority opinion, Judge Brichambaut provides at length his explanation (which is no longer “slightly too rapid”) on why Article 4 should be interpreted as removing immunities for constitutionnally responsible leaders and I must say that it is quite convincing.] 

Second of all, bringing in the “international penal tribunal” question, I think the issue would have deserved more discussion. Indeed, is any international tribunal with jurisdiction over genocide an “international penal tribunal” in the sense of Article 6? This is what the Judge seems to imply, but I’m not convinced. Mustn’t there be at least some explicit mention of Article 6 in the instrument creating a tribunal for it to fit under this Article?

[Update: the minority opinion explains, with reference to ICJ case law, why the ICC should be considered as an “international penal tribunal” for the purposes of Article 6 of the genocide convention. I still believe that formally, some explicit intent to create such a tribunal with reference to Article 6 should be required, but maybe I am being too formalistic…]

Third of all, and perhaps more importantly, this does not solve the problem of Sudan’s lack of consent to be bound by the Rome Statute. There is a missing link in the reasoning of the Judge. Others, like Matthew Gillet, have adopted a similar reasoning to Judge Brichambaut, but have tried to fill this logical gap by referring to the effect of the UNSC referral. I explain here (section 4.3) why this is not entirely convincing, but at least there is an attempt to solve the consent problem. Judge Brichambaut does no such thing.

[Update: In fact, Judge Brichambaut does address the issue by referring to the effect of the UNSC Referral as conferring jurisdiction over the situation in Darfur to the ICC and Sudan’s obligation to accept that under Chapter VII (see paragraph 15 of the minority opinion). As developed elsewhere, I’m not entirely convinced by the argument. More specifically here, I’m puzzled at how Judge Brichambaut on the one hand refuses to draw a definite conclusion on the legal effects of a UNSC resolution when it comes to analysing the approach of his colleagues, but accepts simply that Sudan should be deemed to have accepted the ICC’s jurisdiction simply by reference to Chapter VII. Does that not equally apply to the duty to cooperate?] 

Fourth of all, if Judge Brichambaut were to be right, this would have some interesting procedural consequences. Indeed, if the only reason for removing the immunity of Bashir is the fact that the arrest warrant includes genocide charges, then does it mean that Bashir still benefits from immunity for the other charges (war crimes and crimes against humanity)? I do not see any other consequence of Judge Brichambaut’s approach and I wonder if this is what he had in mind.

[Update: this issue is not addressed in the minority opinion. Maybe an addendum in the future?…]

To summarise on the question of the removal of Bashir’s immunity after this decision: we now have three pre-trial chamber decisions (therefore of same legal value) providing three different legal reasonings for the removal of Bashir’s immunity, plus, as an added bonus, a separate opinion with a fourth approach. In this context, the decision’s claim that “any possible ambiguity as to the law concerning South Africa’s obligations has been removed” is somewhat a little hasty in my view…

2. Whether a referral to the UNSC or the ASP was warranted.

The second question that needed to be addressed by the Chamber was whether, having found that South Africa had not complied with its obligation to arrest and surrender Bashir, it should be referred to the UNSC or the ASP.

The Chamber, using its discretion, finds that it shouldn’t based on two arguments: 1) that South Africa displayed a positive attitude towards the Court in the procedure and 2) that a referral would be pointless in this case because South Africa has now understood and that the UNSC or the ASP would do nothing anyway.

As to the first argument, I fail to see its relevance. It is hypocritical to say that South Africa did not know for sure that it should have arrested Bashir in 2015, at least under the Rome Statute, given the numerous decisions to that effect in relation to numerous States. The slowness of the South African domestic legal processes which was also put forward and accepted by the Judges is not an excuse either, in light of an uncontroversial rule of international law: a State cannot invoke a domestic situation to explain its non compliance with an international obligation.

UPDATE: And I of course forgot to mention the most obvious point: referral to the UNSC or the ASP will indeed not help to obtain cooperation from South Africa… simply because Bashir left the country over two years ago! Which shows the slight absurdity of the whole process…

As to the second argument, While I can buy the idea that maybe South Africa has understood now (only time will tell) I find the second part, that the UNSC or the ASP will not do anything anyway, a little bit puzzling. Of course, I agree with the Chamber’s factual assessment: clearly, a referral to the UNSC or the ASP is pointless because neither body has the spine (to be polite) to take any action against a State. However, the answer as Judges should not be to decline to refer a State and therefore empty Article 87(7) of any effect forever, but to actually refer the State and call upon these bodies to do their job (just as Fatou Bensouda has done with the UNSC over lack of cooperation in relation to Darfur for the past few years).

The Chamber’s reasoning would be a little bit like saying: the ICC is clearly not meeting its expectations as an international institution, particularly in terms of deterrence, so what’s the point of prosecuting anyone anymore? wait… I think I might be onto something here…

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The EU supports Bashir’s arrest by South Africa… and get the law somewhat confused

Posted on June 14, 2015 | 1 comment

The EU has just released a press statement supporting the idea that South Africa should arrest Bashir and send him to the ICC. The statement reads as follows:

Committed to preventing crimes against humanity, war crimes and genocide, and to avoiding impunity for the perpetrators of such crimes, the EU confirms its continuing support for the ICC and its work.

Full cooperation with the ICC is a prerequisite for the Court’s effective functioning.

In accordance with established approach of the EU and its Member States, the EU expects South Africa, a founding State Party of the Court, to act in accordance with UN Security Council 1593, in executing the arrest warrant against any ICC indictee present in the country.

This press release shows some of the confusion on the applicable legal framework when it comes to the ICC and Security Council referrals. Indeed, a Security Council referral simply allows the Court to exercise jurisdiction in a given situation and from then on, it is the Rome Statute that kicks in. Therefore, if South Africa were to arrest and surrender Bashir (which I think it doesn’t have to as argued previously), it would be acting “in accordance” with the Rome Statute, not the UN Security Council Resolution. In fact, if you read the UNSC Resolution, it does not create any obligations for any State other than Sudan (whether it could in fact create obligations even for Sudan under the Rome Statute is another debate).

So, irrespective of the political dimensions of this situation, it seems that as usual, there is not much attention to being precise on the law…

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Does South Africa have an obligation to arrest and surrender Bashir to the ICC? no

Posted on June 14, 2015 | 10 comments

I’ve been unable to blog in the past few months due to work, but I could not avoid the ongoing story about Sudan’s Bashir current visit to South Africa for the AU summit and whether he will/should be arrested to be sent to the ICC. A few hours ago a South African judge ordered that Bashir not leave the country until it rules on whether to send him the The Hague. This is obviously a momentous decision politically, and will be even more so if he is indeed arrested.

What interests me here is the legal situation under international law and the Rome Statute (I should point out that I am not familiar with South African law and whether under domestic legislation there would be an obligation to arrest and surrender Bashir). In that respect, the twittosphere is replete with claims that South Africa is indeed under an obligation to arrest Bashir.

The ICC has said so much on a number of occasions. Regular readers of this blog will remember how in 2011, the ICC unconvincingly relied on a flimsy customary law argument to conclude that Malawi was under an obligation to arrest Bashir. In 2014, the ICC changed its approached and adopted a marginally more compelling argument based on the compulsory nature of Chapter VII resolutions and repeated it just a few days ago.

However, I think this is legally inaccurate, or at least not as clear as everybody says it is, as I argued in a paper that was just published in a new edited collection on the ICC (you can download the SSRN version here). I am not going to reproduce the whole argumentation here and invite you to read the paper.

The bottom line of my argumentation is that the fact that the situation of Darfur was referred to the ICC through a UNSC Resolution does not change the fact that the original source for the removal of immunity, if any, is the Rome Statute itself and more particularly its article 27. As a result, invoking chapter VII powers does not solve the problem that Sudan is not a party to the Rome Statute and has therefore not accepted the removal of Bashir’s immunity for the purposes of ICC prosecution. Moreover, Article 98 of the Rome Statute requires that existing rules of immunity under international law be respected when cooperating with the Court. As I believe, contrary to what some NGOs and some scholars would like us to think, that there still exists an absolute immunity for sitting heads of state under international law, even for international crimes, South Africa is barred from arresting Bashir.

As I note in my article, the question of immunities and the ICC, and more generally the question of immunities and international crimes, is a typical example of wishful thinking human rights activism, with a massive disconnect between the reality of international law and the way some would prefer it to be. That is not in itself a problem. There is no harm in advocating for change. What I find disingenuous is when it is argued that things have already changed. That is simply not true.

I don’t know if anyone in the South African judiciary reads this blog, but they have until tomorrow to get up to speed on the actual applicable law (from me and others) in order for any decision they adopt to be legally accurate, if not politically fashionable. To be continued…

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Posted in African Union, bashir, ICC, immunities

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A Sad Hommage to Antonio Cassese: The ICC’s confused pronouncements on State Compliance and Head of State Immunity

Posted on December 15, 2011 | 7 comments

This week, Pre-Trial Chamber I of the International Criminal Court has been busy reprimanding African States for non-cooperation in executing the Arrest Warrant against Sudan President, Omar Al Bashir. On Monday it issued a decision on the failure of Malawi to comply and yesterday, a similar decision was issued in relation to Chad (decision in French).

This could have been a fairly innocuous event. In the past 18 months, the PTC has on several occasions taken notice of the presence of Bashir in an African country (Tchad and Kenya in August 2010, Djibouti in May 2011). Each time, in short decisions, the judges found that these countries had not complied with their obligation under the statute as State parties to enforce the arrest warrant against the Sudanese president. So the two decisions this week would seem to fall in line with these previous findings, a normal day at the office so to speak.
Of course, the question still remains whether State parties are 1) actually under an automatic obligation under the Statute to execute an arrest warrant and 2) whether the general requests for the arrest and surrender of Bashir to all States that the Pre-Trial Chamber issued in 2009 and 2010 (respectively here and here) are actually in conformity with the Statute. I have already argued that the answer is negative on both counts because Article 89(1) provides that you need a request from the Court to have an obligation under the Statute and that, for the sentence “…any State on the territory of which that person may be found” (as opposed to just “any State”) to make any sense, the request must be specific and specifically justified, rather than be general and preemptive. This is confirmed by the very specific information that must be provided with the request under Article 91.
But again, the two recent decisions would generally be old news already if they had followed the exact same approach as previous ones.

However, the Pre-Trial Chamber has decided to be bolder this time and address the question of head of State immunities, both under Article 27(2) of the Statute and in relation to Article 98(1) of the Statute, and the articulation between the two. The reasoning of the Chamber is so confused and unsatisfactory that it is difficult to know where to start.

Before I move to the heart of the discussion, I wanted to point a minor procedural issue, but that is illustrative of the general sloppiness of the drafting. When a Chamber makes a finding of non-compliance with a request for cooperation under Article 87(7), Regulation 109 of the Regulations of the Court (drafted by the Judges themselves) provides that the President shall refer the matter to the ASP or the UNSC. However, the Malawi decision ignores this and orders that the Registrar transmit the decision. This is all the more surprising, that the Chad decision (in French) actually uses the correct procedure and explicitly refers to Regulation 109 to ask the president to transmit the decision. This inconsistency comes up, despite the bench being composed of the same judges. Apparently, the francophone Assistant Legal Advisers at the Court are more knowledgeable than the anglophone ones…

But let’s now come to the question of Articles 27 and 98(1), relating to head of State immunities.

  • The discussion of Article 27

First of all, the judges consider the issue of Immunity of Heads of States in International Proceedings (§§22-36 of the Malawi decision. In the remainder of the post, I will refer to this decision, which is broadly reproduced in the Chad one).
Going back as far as 1919, the PTC refers to a string of international judgments (Nuremberg, Tokyo, ICTY and even ICJ), statutes of international tribunals (ICTY, ICTR, SCSL) and other documents (Principles of International Law recognised in the Charter of the Nuremberg Tribunal, Draft Code of Crimes against the Peace and Security of Mankind) to conclude that (§36):

“Therefore, the Chamber finds that the principle in international law is that immunity of either former or sitting Heads of State can not be invoked to oppose a prosecution by an international court. This is equally applicable to former or sitting Heads of States not Parties to the Statute whenever the Court may exercise jurisdiction.”

 The Chamber seems to think that the sheer number of references will make their argument compelling. But this is a typical judicial application of the “cheerleader effect“: all the references look good together, but taken separately might not be so convincing. Indeed, the references actually concern two distinct issues. The first one, which is dealt with in Article 27(1) of the ICC Statute, is whether official capacity can remove the criminal responsibility of a person. The second one, dealt with under Article 27(2) of the ICC Statute, is whether head of State immunity can prevent an international Court from exercising jurisdiction. There is no debate about the first question in the current case, only about the second one so the following references are just irrelevant: Statute of the IMT, Statute of the Tokyo Tribunal, UN Principles, Code of Crimes, ICTY Statute, ICTR Statute and SCSL Statute. Which leaves us with more or less one relevant source, which is the ICJ Arrest Warrants Case.

In any case, from a methodological point of view, it is puzzling why the Chamber actually engages in these developments. As is often the case in international criminal decisions, there is a very “flexible” approach to the sources of law. The PTC does not, at any point, justify why these references are even invoked. This is especially troubling at the ICC, because the drafters of the Rome Statute, contrary to those of others Statutes of international criminal tribunals, actually chose to include an explicit provision on the Applicable law, which clearly provides (Article 21(1)(a)) that the Statute, RPE and Elements of Crimes are the first documents to be considered. Article 27(2) clearly says that head of State immmunity “shall not bar the Court from exercising its jurisdiction over such a person”. There was no reason whatsoever to give a lecture in the history of international prosecutions to reach the conclusion that is already mandated by the Statute.

One could of course question whether applying 27(2) to the Heads of States of non-State parties is contrary to international law, but that is not the judges’ problem. I’ve argued elsewhere that the whole UNSC referral mechanism is somewhat contrary to international law. But once the case actually comes before a Chamber, the judges are bound by the Statute and should apply 27(2). Should this mean that the ICC, as an institution, would be violating international law is not the judge’s concern. Sudan should raise the question of the responsibility of the ICC, as an International organization, or even its member States, which would be a nice case of Shared Responsibility. But again, not an issue for the judges. In this sense I actually agree with the Tadic Trial Chamber, which refused to consider the legality of the creation of the ICTY. It was not its function to do so.
But I digress. In a nutshell, the PTC could have just referred to 27(2) and moved on (although the whole discussion on 27(2) is in my opinion irrelevant, but more on that later).

  • Articulation with 98(1)

Article 98(1)provides that:

“The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.”

 The Chamber considers that there is a tension between 27(2) and 98(1) (§37). To solve this tension, it further pushes its reasoning in relation to international prosecutions of heads of States. Stating that there has been an increase in Head of State prosecutions by international courts (citing Taylor, Gbagbo and Gaddafi), the PTC says that this has gained “widespread recognition as accepted practice” (§39). This practice is further illustrated by the ratification by 120 States to the Rome Statute (and therefore to article 27(2)) and by the fact that some Security Council members who have not joined the Court have agreed to refer situations to the Court. The judges therefore conclude, in what can only be described as “armchair legal reasoning”, that (§42):

“The  Chamber  considers  that  the  international  community’s  commitment to rejecting  immunity in  circumstances  where  international  courts seek  arrest for international crimes  has  reached a critical mass. If it ever was  appropriate to say so, it is certainly no longer appropriate to say that customary international law immunity applies in the present context.”

 There would certainly be a lot to say about the Chamber’s approach to determining the content of customary law, although it does at least refer to State practice, which is far less egregious than what the Special Tribunal for Lebanon did last year, when referring to the practice of international courts not contested by “States, non-state actors and other interested parties”, to determine the existence of a customary norm. The key point, however, is that the practice that is referred to, is only evidence of the potentially customary nature of Article 27(2). It does not, as the Court affirms, relate to the question of the arrest and surrender  of an accused.

In this sense, I believe that there is in fact no tension between 27(2) and 98(1), because these two provisions are not about the same thing! Article 27(2) relates to the jurisdiction of the Court itself and 98(1) to obligations of States in relation to other States in general international law. Moreover, if the drafters of the Rome Statute believed that the inclusion of Article 27(2) meant automatically that there was an obligation to cooperate with the ICC irrespective of head of State immunity of non-State parties, why include Article 98(1) at all? It would make no sense.

So clearly, the Court has in fact brought into the discussion Article 27(2), when it should have kept its discussion limited to 98(1). The only relevant reasoning that would have been acceptable was whether, given the phrasing of 98(1), there is a crystallizing rule under international law that head of State immunity does not carry in the national context, which would therefore remove the difficulty with 98(1). This would have involved a more serious discussion of the Arrest Warrant Case, and evolution since then. But again, this is sadly not what the Chamber did, instead rendering a muddled and inappropriate decision.

This is all the more inappropriate given the fact that the Chamber, in considering the obligations of Malawi, makes a key finding (even if it had been said before) on the application of Head of State immunity to a defendant in a procedure that is not designed for that, which raises questions in relation to the rights of the defense, given that the Office of the Public Counsel for the Defense does not seem to have been involved in the discussions and that this is not a decision which is subject to appeal under Article 82. In that respect, one can even question whether the term “decision” is appropriate for such a document. Indeed, Article 87(7) does not even seem to describe a formal procedure. It refers to “a finding” of non-compliance, rather than a “decision”, whereas the Statute uses the word “decision” in most of the Statute, and only uses the term “finding” twice, in relation to evidence, and in the context of Article 87(7). The French version, which says that the Court “peut prendre acte” of the non-compliance, leans even more to the less formal nature of the determination. As for the question of Regulation 109, this might seem like a detail, but it does contribute to the general impression of a less than precise job that is reflected in the heart of the discussion, as illustrated previously.

  • A sad hommage to Antonio Cassese?

The explicit reference to the late Antonio Cassese, not only in a footnote, but in the main text (§34), can only mean that this decision is seen as an hommage to one of the most active proponents of judicial creativity. But it is likely that the former President of the ICTY and STL, although he might agree with the final result, would himself cringe at the less than convincing legal reasoning of the Pre-Trial Chamber.

This Decision might be a testimony that his legacy of creativity lives on, but without his talent, judgments that were, despite the criticism that could be leveled at them, judicial symphonies, when crafted by him, sound like children randomly hitting the keys of an out-of-tune piano, when crafted by others.

UPDATE 1: For other critical assessments of the decisions, see Professor Schabas and Dapo Akande, who are both skeptical about the court’s reasoning.

UPDATE 2: in relation to Regulation 109, there has been a corrigendum to the original decision which correctly asks the President (and not the Registry) to refer the matter to the ASP and UNSC.

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Posted in bashir, ICC, soudan