Category Archives: ICC

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.

Some thoughts on the legal consequences of the Philippines leaving the Rome Statute

On Sunday 17 march 2019, the Philippines’ withdrawal from the Rome Statute became effective, without the country’s Supreme Court having ruled on the domestic legality of the withdrawal (see Priya Pillai here and here).

As noted by Kevin Jon Heller last week, we were all waiting to see if the Court would pull another Burundi-type decision on the Philippines, with a Pre-Trial Chamber authorising the opening of a formal investigation before the withdrawal came into effect.

Yesterday, 18 march 2019, the ICC Prosecutor, through the ICC twitter account, issued the following statement:

D19aBxxWoAMkR6d.jpg large

 

First of all, as noted by others, this statement seems to suggest that the OTP has not requested the opening of a formal investigation. It might be interesting to know why this choice was made, but the OTP is unlikely to communicate on this matter.

More importantly, this makes the discussions we were having last year before the Burundi decision on how the withdrawal would affect the Court’s jurisdiction for crimes allegedly committed while the State was still a party to the Statute far less theoretical. Alex Whiting, Kevin Jon Heller, Sergey Vassiliev and myself had all weighted in on the issue.

In relation to that, the Prosecutor claims in her statement that: “Pursuant to article 127.2 of the Statute, and based on prior ICC judicial ruling in the situation in Burundi, the Court retains its jurisdiction over crimes committed during the time in which the State was party to the Statute and may exercise this jurisdiction even after the withdrawal becomes effective.”.

Fatou Bensouda is probably relying on paragraph 24 of the decision to open an investigation in the Burundi situation:

The Chamber finds that the jurisdiction of the Court prior to the entry into effect of a withdrawal must be determined in light of article 127(1), second sentence, of the Statute. This provision stipulates that a withdrawal takes “effect one year after the date of receipt of the notification”. On this basis, a withdrawing State remains, for all intents and purposes, a State Party in the period between the communication of the notification of withdrawal and the end of the ensuing one-year interval. Therefore, by ratifying the Statute, a State Party accepts, in accordance with article 12(1) and (2) of the Statute, the jurisdiction of the Court over all article 5 crimes committed either by its nationals or on its territory for a period starting at the moment of the entry into force of the Statute for that State and running up to at least one year after a possible withdrawal, in accordance with article 127(1) of the Statute.32 This acceptance of the jurisdiction of the Court remains unaffected by a withdrawal of the State Party from the Statute. Therefore, the Court retains jurisdiction over any crimes falling within its jurisdiction that may have been committed in Burundi or by nationals of Burundi up to and including 26 October 2017. As a consequence, the exercise of the Court’s jurisdiction, i.e. the investigation and prosecution of crimes committed up to and including 26 October 2017, is, as such, not subject to any time limit.

There is however a basic problem with this reasoning, which I had already started explaining here: it conflates what are in fact three separate concepts in the Rome Statute:  jurisdiction, preconditions to the exercise of jurisdiction and exercise of jurisdiction. And this distinction, in my view, has consequences on how we interpret the Statute, in particular when it comes to the effect of withdrawal.

  • jurisdiction: this term can be technically applied to three articles in the Rome Statute: Article 5 (material jurisdiction), Article 11 (temporal jurisdiction) and Article 25(1) (personal jurisdiction).
  •  Preconditions to the exercise of jurisdiction: This is Article 12, which relates to two such preconditions: territory and nationality. I know this is somewhat controversial, but technically, territory and nationality are not framed in the Rome Statute as jurisdictional criteria, but as preconditions to the exercise of jurisdiction. In that respect, one can note the difference in language between Article 12(1), which states that a State Party “accepts the jurisdiction of the Court with respect to the crimes referred to in article 5” and Article 12(2), which simply States that to exercise its jurisdiction, the Court must verify that the conduct occurred on the territory of a State party or that the alleged perpetrator was a national of a State party (except in the case of a UNSC referral). There is no question here of a State party accepting any sort of territorial or nationality jurisdiction, contrary to the material jurisdiction of the Court.
  • Exercise of jurisdiction: this is Article 13 and relates to the trigger mechanisms, i.e, referral of a situation by a State, the Security Council or request to open an investigation proprio motu by the Prosecutor.

The consequence of this distinction is the following: while I’m willing to accept that possibly a State which becomes a party to the Rome Statute accepts the jurisdiction of the Court for crimes committed while it was a State party, I do not believe this extends to acceptance that the Court can exercise jurisdiction indefinitely for these crimes, even after a withdrawal. Because the criteria of Article 12(2) (nationality and territory) are preconditions to the exercise of jurisdiction, they need to be assessed at the moment when the Court is considering whether to to exercise jurisdiction. This comes out clearly from the language of the chapeau of Article 12(2): there must first be one of the three trigger mechanism of Article 13, before checking whether territory and/or nationality is an issue. As a result, I would say that verification of whether the conduct was committed on the territory of a State party or was that of a national of a State party happens at the time of the decision, not a the time of the commission of the crime.

One can note that Article 12(2) indicates that the Court can exercise jurisdiction “if one or more of the following States are Parties to this Statute”. The use of the present tense (“are”) seems to suggest contemporaneity with the assessment.

One final argument: the interpretation suggested by the Pre-Trial Chamber, if followed, would have as a consequence to strip of any meaning the last line of Article 127(2) which famously provides that a withdrawal shall not ” prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective”. Whatever the interpretation one adopts of a “matter which was already under consideration by the Court”, what would be the point of such a provision in the first place, if at any time after the withdrawal, the Court could initiate an investigation into crimes allegedly committed prior to the withdrawal?

On balance, I therefore believe that the reasoning given in the Burundi decision and on which the Prosecutor relies on here is based on an unconvincing reading of the Rome Statute and is once again an ill-conceived attempt by the Court to extend its jurisdiction to situations which are beyond its reach.

As a side note, given the complexity of the manner, I would expect more professionalism from the CICC which simply claims that “According to the ICC’s treaty, the withdrawal will not impact any on-going consideration of alleged crimes committed before the withdrawal entered into force.” This is neither the language of the Rome Statute, nor the language of the Burundi decision. This is a situation where advocacy slides dangerously into the realm of misinformation in my view.

 

 

Unsurprising and unsatisfactory: ICC Pre-Trial Chamber orders joinder of Yekatom and Ngaissona cases

Yesterday, Pre-Trial Chamber II at the International Criminal Court ordered the joinder of the cases against Alfred Yekatom and Patrice-Edouard Ngaissona. There was little doubt that this would happen for any follower of the proceedings, but this does not make the outcome satisfying both in terms of the process followed and the legal framework applied.

1) The process

In relation to the process, the circumstances in which the decision was rendered are more than problematic for two reasons in particular:

  • On 4 February 2019, Patrice-Edouard Ngaissona’s Counsel filed a request to withdraw, indicating his incapacity to treat the case “diligently”. On 7 February 2019, the Pre-Trial Chamber decided that the withdrawal would only take effect on 12 February 2019, after the filing of the Defense submissions on the joinder. So basically, the Pre-Trial Chamber forced a lawyer who admitted himself his incapacity to deal with the case to file observations on a fundamental issues that could affect the entire conduct of the proceedings for years to come, instead of postponing the process to allow the new Counsel to properly assess the situation and file observations. This is incomprehensible. It will be interesting to see if the new Counsel for Ngaissona will make a point of providing observations on the issue for the record or not.
  • According to the filing by Alfred Yekatom’s Counsel, they have not even received  an unredacted version of the arrest warrant against Patrice-Edouard Ngaissona, the OTP requests for arrest warrants against both suspects and the evidence supporting those requests, let alone received a document containing the charges. How could the Defense teams provide any kind of meaningful observations in those conditions?

If this is the attitude that this PTC is going to adopt throughout the process in relation to the exercise by the Defence of their right to participate actively in the proceedings, it is quite worrying.

In that respect, I noticed that throughout the decision, the PTC refers to the suspects solely by their last name (“Yekatom” and “Ngaissona”), not “Mr”, not even their first name. I obviously have not read every filing at the ICC, but I would say that this is unusual practice. This might seem like a detail, but I find that this shows a notable lack of respect for the suspects.

2) The Law.

The reason that the outcome of the decision is unsurprising is that the Pre-Trial Chamber essentially follows the Katanga and Chui precedent. However, this does not make it any more legally convincing today than in 2008. Indeed, the Katanga and Chui precedent is far from convincing from a legal point of view and should not have been followed. It would be too long to explain all the reasons why in detail, I will propose just a few quick thoughts.

But before that, a small caveat: my point here is not to express a normative opinion on the theoretical desirability for Judges to be allowed to join cases during the confirmation of charges process. There are probably, as always, good reasons for and against such a possibility.

My point is more basic: the Rome Statute does not legally allow for such a joinder and the Katanga and Chui and now Yetakom and Ngaissona precedents are unconvincing in that respect. why?

To start with the most obvious point: the PTC in Katanga (as the current PTC) never explained how provisions on joinder explicitly contained in Article 64 relating to the powers of the TRIAL chamber can somehow magically be considered to be applicable by the Pre-Trial Chamber. There isn’t any more clarity in the 8-page (of which only two are operative!) Appeals Judgment on joinder in the Katanga and Chui case. The reasoning of these chambers is a little hard to follow, but there seems to be two main arguments made:

a) The fact that the provisions on joinder are included in the part of the Statute that regulates the “Trial” (rather than the confirmation phase) does not ” does not preclude joint proceedings at the Pre-Trial stage, but rather supports the general rule that there is a presumption of joint proceedings for persons prosecuted jointly”. This is rather strange reasoning. first of all, how can the explicit inclusion of a provision in the “Trial” Part of the Statute (just as Rule 136 is explicitly in the “Trial Procedure” chapter of the RPE) logically be proof that it can be applied in other phases? it does not make sense. Second of all, the reasoning is very obviously circular: there is no “general rule that there is a presumption of joint proceedings for persons prosecuted jointly” in the Statute or the RPE, this is invented by the Judges based on their own interpretation of the first sentence of Rule 136, despite the fact that Rule 136 also only seems to apply to the “trial procedure” (see below on this). They cannot then pretend that they didn’t just do that and say: “look, we’re right, Rule 136 supports the general rule”. Essentially, what the Judges are saying is: “Rule 136 supports the general rule we just invented based on our reading of Rule 136, so this means we can interpret Rule 136 as applying in pre-trial, which in turn supports the general rule we just invented based on our interpretation of Rule 136…etc.”. This is obviously not satisfactory.

b) All these Judges pretended to apply the Vienna Convention in order to “interpret” the Rome Statute and claimed that their interpretation of the Statute allowed them to advance the “object and purpose” of the Statute. But this is in my view a dishonest application of the “object and purpose” idea in order to ignore what the treaty actually says. Judges can claim that they were just “interpreting” the Statute, but they are essentially rewriting the Statute, which is obviously beyond their mandate. Whatever one thinks of the Rome Statute and its inadequacies (which are numerous and I never shy away from pointing them out), this does not mean that the Judges get to ignore what they don’t like.

Moving on to my second, related, point: how can there be a joinder of “charges” (as per the explicit language of Article 64(5) of the Rome Statute), when the charges are not even known because the Prosecutor has not even filed a Document containing the Charges? The language of the Statute is clear: you need to know what the charges are before you join them. One could even argue that joinder of “charges” can only happen in relation to “charges” actually confirmed by a PTC. This interpretation would be consistent with the fact that power to join charges is only granted to the Trial Chamber, i.e, after the confirmation of charges phase.

And finally a last point: the whole reasoning of the PTC in Katanga and Chui followed here by PTC II in fact revolves around their interpretation of the first sentence of Rule 136 which provides that “Persons accused jointly shall be tried together”, and which led the Judges to consider that this ” establishes a presumption for joint proceedings for persons prosecuted jointly”. There are a number of problems with this “presumption of joint proceedings”: 1) as noted before, Rule 136 applies to the trial phase, not the confirmation of charges phase. Therefore, the term “tried” should be interpreted restrictively to apply to the actual “trial”, not generally to “proceedings” 2) along the same lines, “accused jointly” does not necessarily mean “accused jointly by the Prosecutor“, but whose charges have be joined according to Article 64(5). This interpretation finds support in the French version of the Rules which provides that “Les accusés dont les charges ont été jointes sont jugés ensemble”. This clearly indicates that there should first be a joinder of charges, before a presumption of a joint trial can be considered.

Of course, you could say that I am being a little unfair with the PTC. It’s not this PTC’s fault that there is precedent for what they decided and it should not be controversial for them to follow this precedent. However, with the Rome Statute having celebrated its 20-year birthday last year, it is time for the ICC to grow in maturity and move away from the practices that tarnished its image as a credible legal institution during its youth, rather than reproduce the same mistakes. Otherwise, there is the risk that the institution will move straight from growing pains to midlife crisis…

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

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

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

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

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

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

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

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

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

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

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

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

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

  • Interpreting UNSC Resolutions

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

In that respect, Benjamin Durr recently reported that:

With Patryk Labuda rightly commenting that:

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

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

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

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

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

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

  • The procedural framework

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

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

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

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

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

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

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

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

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

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

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

  • The objective legal personality of the Court

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

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

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

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

  • Concluding thought

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