Category Archives: bashir

Miscellaneous ICC issues: a bit of a stretch…

The ICC has been very visibly active in the past week on a variety of issues. Each one could warrant a separate post, but for lack of time, I thought I’d share some random thoughts in one post.

The first issue is the request for cooperation put to the Central African Republic last week in light of the planned visit of Omar Bashir to the country. I’ve blogged before on the question of whether States have an automatic obligation under the Statute to give effect to an arrest warrant. I believe that they don’t, and that there should be a specific additional request to give rise to such an obligation. In the comments to that post I also wondered whether the general request for cooperation to all State parties was in fact in conformity with the Statute:

I’d still have one question on the use of article 89 by the Court in this wholesale way. 89(1) mentions a possibility to issue a request to “any State on the territory of which that person may be found”, rather than just “any State”. If the second part of the sentence is to have any legal meaning, it can’t just be all the countries in the world preemptively… Shouldn’t there be some reasonable indication of the presence of the accused on the territory of a State as a condition of the issuance of the request?

This applies, in my opinion, to the specific request put to CAR. Indeed, I find that the decision is unclear as to what the exact legal basis for the request is. It refers to articles 86, 89 and 97, without specifying what specific provision it relies on to request cooperation from a State on whose territory a person might travel. But I suppose I’m just being picky here…

The second issue relates to the annoucement from the OTP that they have opened a preliminary investigation into North Korea. As reported by Xavier over at International Jurist, Professor Schabas, and Kevin John Heller, this raises interesting  questions both politically and legally. I would tend to agree with KJH that it seems like a very premature announcement, in light of how recent the events are. I also doubt that the gravity threshold would be met. In terms of PR, it also marks a recent trend by the OTP in communicating much more on his work compared to a few years ago. Indeed, it took some years before the public was made aware of the scope of preliminary investigations, and we only saw two letters (Irak and Venezuela) where the OTP actually explained how he conducted his work in this very grey area of the proceedings.

The last issue relates to Ivory Coast. Deputy-Prosecutor Bensouda asked “political leaders to call on their supporters and fellow citizens to show restraint and avoid unrest”. I find this statement ironic in its underlying assumption that the ICC can foster peace, given that Ivory Coast made a declaration under 12(3), recognising the Court’s jurisdiction in April 2003, following the very serious unrest that took place at the end of 2002, without the OTP doing anything (visible). I’m also not entirely convinced that, as a judicial body, it is the ICC’s role, and more particularly the OTP’s one, to make such warnings. But I suppose the proponents of “positive complementarity” would disagree with me…
A point of interest is that the communication by Bensouda assumes that the 12(3) declaration still stands today. It certainly seems the case when you read it (in French), because it does say that it is for an “open-ended period”. But I find the langage used ambiguous because it refers to the events of september 2002, rather than any crime committed on the territory from that date. But I suppose the interpretation can go both ways and that Ivory Coast should have done a better job on the drafting if it wanted to avoid any ambiguity.

A couple of concluding points on the general impression that transpires from the three issues I considered briefly. I have the impression that the ICC is in a PR frenzy where it might be biting off more that it can chew. The Court is already struggling to conclude its first trial and has only just started its second one [UPDATE: as pointed out by a careful reader, Bemba is actually the 3rd trial, not the second. I forgot about Katanga and Chui.]. With the institution failing in its judicial function, one has to wonder whether it is wise for it to multiply its interventions in the political area (Ivory Coast) and into bordeline cases such as the North Korean one. Maybe I am not ambitious enough for the Court, but I believe that it should be more cautious at this (still) early stage of its existence.

Is Chad really under an obligation to arrest Bashir?

The news today has been filled with reports about the visit of President of Sudan, Omar Bashir, to Chad, and calls for Chad, which is a State Party to the ICC to arrest him. Beyond any discussion of the political opportunity of such an act, every commentary seems to take for granted that Chad is under a legal obligation to do so.

CNN has a “Court official” (probably OTP…) on the record saying that:

Chad is legally obliged to arrest Omar al-Bashir and hand him over to the International Criminal Court.

According to Human Rights Watch:

Chad should not flout its obligations to arrest al-Bashir if he enters Chad. 

 Same tune at Amnesty International:

If it were not to arrest him, Chad would violate its obligations under the Rome Statute of the International Criminal Court, which it ratified in November 2006.

 I’m not sure that’s actually true. Sure, the Statute, at Article 86 provides that (my emphasis):

States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.

 However, “in accordance with the provisions of the Statute”, there is in fact no automatic obligation to cooperate in relation to the execution of an arrest warrant. Indeed, Article 89 provides that the Court must make a request for cooperation to a State. The request must contain specific information outlined in Article 91 (such as a copy of the arrest warrant). Only then does the Statute provide (Article 89(1)) that (my emphasis):

States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.

To my knowledge, there hasn’t been such a request.

Second of all, even if the ICC had made a request for cooperation, the fact that Sudan is not a State Party can trigger the application of Article 98(1), according to which:

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.

It’s arguable that Bashir, as an acting head of State, does benefit from diplomatic immunity, in application of the ICJ Arrest Warrant Case (for a discussion of the immunity question in the Bashir case, see here). If that were the case, not only would Chad not be under an obligation to cooperate, but the request itself would be contrary to the Statute.

So, all in all it’s far less obvious than claimed, that Chad is in fact under an automatic obligation to arrest and surrender Bashir. Of course, in a week where the Prosecutor himself has publicly considered that the issuance of an arrest warrant is proof of guilt (See commentaries of this by William Schabas and Kevin John Heller), one stops being surprised by poor legal argumentation…

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

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

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

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

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

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

The Football World Cup and the ICC Bashir Arrest Warrant: what’s the link?

The last place where you would expect to read about the ICC would be in relation to football. However, according to news reports

South Africa invited Sudan’s Omar al-Bashir to the World Cup along with the rest of Africa’s leadership, but would arrest him should he take up the invitation, President Jacob Zuma said.
Bashir is wanted by the International Criminal Court on charges of war crimes. He rejected the charges of having ordered mass murder, rape and torture in western Darfur.
Zuma said in response to a question in Parliament that the country had a responsibility to arrest him should he accept the invitation and attend the June 11 opening ceremony.
“South Africa respects the international law and… we abide by the law,” he said.

Last week, a debate was sparked in some countries (Kenya for example) on attending his swearing-in ceremony (The US did send a junior diplomat, but claim it doesn’t mean anything). After last year’s AU declaration calling for not cooperating with the Court, these recent event show the actual ambiguity of African leadership towards the warrant. I wonder how long this will last. Not that I believe that all foreign policy should always be consistent, but inviting someone while telling him he’ll be arrested if he accepts is pushing diplomatic schizophrenia a little far…

of Zeitgeist and Law: The ICC Bashir Decision as an excuse to actually rant about Genocide…

Yesterday, the ICC Appeals Chamber issued its long-awaited Judgment on the Prosecutor’s appeal against Pre-Trial Chamber I’s refusal to allow the arrest warrant issued against President Bashir to cover Genocide charges. According to the Appelate judges, PTC I mis-applied the standard of proof at this stage of the proceedings by requiring that the genocidal intent be the only reasonable conclusion to be drawn from the evidence. The key argumentation by the Appeals Chamber is paragraph 33 where it states that:

“In the view of the Appeals Chamber, requiring that the existence of genocidal intent must be the only reasonable conclusion amounts to requiring the Prosecutor to disprove any other reasonable conclusions and to eliminate any reasonable doubt. If the only reasonable conclusion based on the evidence is the existence of genocidal intent, then it cannot be said that such a finding establishes merely “reasonable grounds to believe”. Rather, it establishes genocidal intent “beyond reasonable doubt”.”

Given this erroneous application of the standard of proof, the Chamber remands the matter to PTC I for a new decision, applying the right standard.

This case has created a lot of heated debate because it slots into a general debate about Genocide in Darfur. Scholars, practictioners, politicians have all contributed to the international cacophony surrounding this issue and it seems increasingly complicated to have any kind of clear discussion on the various components of the situation, given the array of political, moral and legal dimensions involved.

First things first, let’s start with the decision itself. The Judgment does not express an opinion on the substance of the evidence, and does not re-include genocide in the charges at this point. It merely considers the legal question of the correct standard of proof. And I find the argumentation quite convincing. PTC I had indeed, in my opinion, imposed too high a threshold on the Prosecutor for the issuance of an arrest warrant, which is a considerably early stage of the proceedings. Taken from a purely legal perspective, there is therefore nothing shocking about the decision.
Expanding our analysis to the general ICC framework, I agree with Professor Schabas that the Appeals Chamber is decidedly slow in its decision-making. I would also like to add that I am sometimes a little puzzled by its methodology. It often seems to be doing half the work, although not so much in this case, even if it could have been a little clearer on the actual content of the test to be applied by the Pre-Trial Chamber to establish the “reasonable grounds to believe”. One can recall its complete destruction of the gravity test proposed by the Pre-Trial Chamber in the early Lubanga/Ntaganda arrest warrant decisions, without giving any hint about what the appropriate test might be, with the consequence that the Article 17 gravity threshold has been completely stripped of any content, and has not been used by judges since.
However, I disagree that the issue should have been dropped at this stage, because the Prosecutor could have always added the charge later on in the proceedings in the event of Bashir’s arrest, as suggested by Alex De Waal, or because judges would have discretion to add a conviction for Genocide at the conclusion of the trial, evidence was brought forward to prove it, as suggested by Professor Schabas. Independently from the merits of the case, the Appeals Chamber pronounced itself on the applicable burden of proof under Article 58(1) of the ICC Statute which will hold for all cases at the ICC, not just the Bashir case. Also, I’m not sure about the possibility for judges at trial to add new charges, or convict someone for crimes that were not accepted at the confirmation of charges phase.
On the procedural aspect of the case, it does seem that the ICC framework, initially built to speed things up, is actually revealing itself to be extremely cumbersome. By multiplying the phases (pre-investigative, pre-trial, confirmation of charge, trial…) and the institutions (pre-trial chamber, trial chamber…) the drafters have multiplied the procedural hurdles and the risks of the whole process being bogged down. This is made more acute with the inclusion of victim participation with an increase in litigation to establish the exact nature of their contribution to the proceedings, although it can be expected that the case-law will settle at some point and the wheel won’t need to be reinvented every time a new case starts.

Finally, because a post of mine with no rant would not really be complete, I’d like to say a word about a word which for me is polluting discussions on Sudan: genocide. And this simple (ah ah) question: why is it so important to label as “genocide” what is happening in Darfur? There are several ways to approach the issue. From a legal perspective, there are various crimes under international criminal law and, whatever the proximity between them, more specifically in our case between genocide and crimes against humanity, it is only normal that the institutions dealing with these crimes call the actions by their right names. But the debate doesn’t stop here, of course. There is a moral stigma attached to genocide, which, for various reasons, is not attached to crimes against humanity. Why is that so? Kevin John Heller argues that:

“First, it is difficult to seriously maintain that there is no difference between charging someone with crimes against humanity and genocide.  There may be no difference in terms of the maximum  possible sentence, but it clear that genocide is viewed as far more serious than even the crime against humanity of extermination.  That’s why Raphael Lemkin coined the term “genocide.”  That’s why we have a Genocide Convention.  That’s why activists and scholars and governments put so much energy into ensuring that various situations — Saddam’s gassing of the Kurds, the Khmer Rouge’s “auto-genocide,” China’s treatment of Tibet, Australia’s treatment of aboriginals, etc. — are (or are not) labeled genocide instead of “mere” crimes against humanity.”

This is beside the point. For one, KJH is mixing two aspects of the question, that the crimes are different and that there is a hierarchy between the crimes. Of course the crimes have different elements. The question is why there is a hierarchy? And this is the second problem I have with KJH’s argumentation. He basically says that there is a hierarchy, because people think there is. That is not an answer. That a word enters the zeitgest for various socio-politico-moral reasons is not a objective explanation of why this is so. It’s like child soldiers which was the talk of the day for a while, now being replaced by forced marriage. The fact that the focus of activists and world opinion is on one of them rather than the other does not mean that there is an objective reason to have a hierarchy between the two. The same is generally true about any topic taken over by world opinion, whether a particular illness (why so much more money given for Aids than malaria, despite the heavier yearly death toll for the second?) or event (two similar natural catastrophes will often get varying media attention for no objective reason). As academics, we have to see beyond “world opinion” to look for reasons to explain how things are. Not doing so, is either naive or unprofessional.

Which brings me to my last comments. I personnally have always been weary of the crime of genocide. For one, in response to the hierarchy, I’m not convinced. I don’t see how it is worse to kill 1 million people indiscriminately (litterally denying them their humanity) or 1 million people because they are from a particular ethnic group. Who are we to judge on the loss of “diversity” that results from that? There is an unquestioned bias that is it worse to target a group, rather than individuals. I’ve never actually been convinced that my intent to kill is worse if I don’t like the person for a specific reason rather than no reason at all. I’d actually think that from a philosophical point of view, crimes against humanity would be more an affront to the rational cartesian mind because there would be no reason for the killing (i’m speaking in theory of course), whereas a genocide, however abhorrent, has some rationality behind it.
In fact, I think that what KJH and others are doing is mixing up sociology, which is essentially descriptive, and law, which is goal-oriented towards normativity, being the process through which moral conviction becomes obligatory conduct for all. For me, genocide needs a specific existence as a methodological tool to describe a social conduct and social reality that are different than other ones. It’s descriptive. Without the concept of genocide, you can’t understand the socio-historical aspects of some of the most brutal mass killings in history.
But should it be law, especially criminal law? The shock of the Shoah led world leaders to recognise the specificity of genocide. Their outrage was of course legitimate, but it maybe led them to adopting solutions the flaws of which are still burdening us today and are unlikely to disappear given the difficulty in changing such morally grounded opinions. But, I would nonetheless argue that genocide has, on balance, in fact very little place as a crime carrying individual criminal responsibility. For me, motive, as opposed to intent, is irrelevant for the purposes of criminal liability. It’s the same if I kill someone because he’s black, wearing green trousers, or just because I was in a bad mood. at best, it can come into play as aggravating circumstances, but not an element of the crime. More importantly, we are trying to “fit” what is fundamentally a collective socio-political endeavour into the criminal liability of one man.
It is bound to make everybody unsatisfied. Lawyers might feel that it is contrary to the rights of the defense, anthropologists suggest that the actual definition doesn’t take into account the social reality of genocide, activists try to “fit” situations in the definition of genocide to push for international intervention. But we all have to stop trying to fit everything into one accepted definition of the word. To anthropologists and sociologists, I would suggest that a criminal trial is never going to cover the social reality surrounding a genocide. It’s not its role, in the same way that a national criminal judge is not there to assess the 40 years of neglect from the State that created the context for this particular young individual from a difficult neighborhood to push the old lady under a bus. To Human Rights activists I would suggest that they are unnecessarily making their work harder by trying to apply  to collective situations of mass atrocities a definition that 1) is made for individuals and 2) the purpose of which is to be applied ex post facto in a court of law.
Of course, my solution to just scrap genocide as an international individual crime is totally unrealistic, but in the meantime I would suggest that the specifically criminal law aspect of genocide be kept to a minimum. And that sociologists, historians, activists, politicians stop locking themselves up in the legal debate and adopt the definition that fits their disciplines. Why is it so hard to accept that genocide can mean different things depending on the context? It is the case for so many words (causation, rationality, intent… all those words will have different meaning when you consider them in law or philosophy for example), why do we allow the debate on genocide to get floored by this illusionary search for a single cross-disciplinary definition?