Category Archives: ICC

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…

1 Comment

Posted in bashir, ICC, immunities

Tagged , ,

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…

10 Comments

Posted in African Union, bashir, ICC, immunities

Tagged , , ,

A brief comment on the Chui Appeals Judgment at the ICC

Posted on March 17, 2015 | 2 comments

Recent weeks have been quite busy and I’ve had no time to blog, despite some important decisions coming out, such as the Appeals Judgment in the Chui case or the Appeal Judgment on reparations in Lubanga.

In what promises to be my shortest post ever, I still wanted to put out there a couple of thoughts on the Chui Judgment.

It confirms the acquittal, but Judges Tarfusser and Trendafilova provide an interesting dissent with their take on the application of the standard of proof and the issue of the supposed violations of the fair trial rights of the Prosecution. They raise important issues which continue to spark debate in the practice of the Court.

On the question of the assessment of evidence, it is the classical question of what it means to assess the evidence “as a whole”, the Trial Chamber being criticised by the dissenters for having excluded some evidence in isolation of other evidence. It’s a difficult question, but personally I’ve always been skeptical of the “overall assessment” approach, which is a possible way for judges to avoid discussing the credibility of individual pieces of evidence and put forward a general impressionist understanding of the case, which is then difficult to challenges.

On the question of the fair trial rights of the Prosecution, I continue to think that the concept makes no sense. The Prosecution represents the institution and cannot technically have rights. Rights are there for the accused, not for the prosecuting authority. Ultimately, this might of course just be a question of semantics, in the sense that there exist procedural guarantees in-built in the trial process which can benefit both Prosecution and Defense. But I do think that conceptually, it is important to be very precise on the langage used.

2 Comments

Posted in Chui, ICC

Tagged ,

Are all crimes committed in Palestine between 2002 and 2014 now beyond the reach of the ICC? Possibly.

Posted on January 6, 2015 | 8 comments

I wish all the readers of this blog a very happy New Year and thank you for your support over the years. Do not hesitate to spread the word about spreading the jam!

The new year started with a bang: Palestine has decided to join the International Criminal Court (ICC). It seems unavoidable to write about the issue and there have been a flurry of commentaries in the past week (more particularly see the great overviews from David Luban at Just Security and Amanda Taub at Vox) which comprehensively cover a number of legal issues that arise now and are likely to arise in the future. I won’t re-hash these issues now, as there will be ample time to do so when (if) the time comes.

The one point I want to focus on here is the question of Palestine’s retroactive acceptance of jurisdiction back to last summer.  Indeed, in addition to joining the ICC (which, on principle, only has prospective effect as per Article 11(2) of the Rome Statute), Palestine also lodged a declaration under Article 12(3) accepting the Court’s jurisdiction back to the 13 June 2014, in order to cover last summer’s war in Gaza.

This raises the interesting question of whether Palestine can actually do this and whether this falls within the parameters of both Article 12(3) and 11(2). Continue reading →

8 Comments

Posted in ICC, palestine

Tagged ,

Guest Post: A Matter of Distinction Part II: participation of children in hostilities following the Lubanga Appeal Judgment

Posted on December 19, 2014 | Leave a comment

[I’m delighted to welcome Catherine Harwood again with her thoughts on the recent Lubanga Judgment’s take on active participation in hostilities]

  • Introduction

On 1 December 2014, the Appeals Chamber of the International Criminal Court dismissed Mr Lubanga’s appeals against conviction and sentence. Mr Lubanga had been convicted of the war crimes of enlisting and conscripting of children under the age of fifteen years and “using them to participate actively in hostilities” under Article 8(2)(e)(vii) of the Rome Statute, and was sentenced to 14 years imprisonment.

Mr Lubanga’s grounds of appeal included that the Trial Chamber had misconstrued the concept of ‘active participation in hostilities’ in Article 8(2)(e)(vii). In a previous post I discussed his appeal and supported the distinction made by the Chamber between ‘active participation’ in Article 8(2)(e)(vii) and other manifestations of ‘active’ or ‘direct’ participation in hostilities in international humanitarian law (IHL). I cautioned against the adoption of a unitary concept, writing that it was preferable to retain this distinction in light of the drafting history and purpose of Article 8(2)(e)(vii). I argued in favour of a bifurcated approach “in order to discourage the use of children in roles that place them in harm’s way, while also preserving their status as protected persons until they participate directly in hostilities.”

This contribution follows up on that post, after the delivery of the Appeal Judgment. In upholding the  conviction and sentence, the Appeals Chamber endorsed the distinction between ‘active participation’ in Article 8(2)(e)(vii) and the notion of ‘direct participation in hostilities’. However, it concluded that the Trial Chamber had erred in its interpretation of ‘active participation’. This contribution argues that despite some elements of ambiguity, the Appeals Chamber’s ‘link to combat’ approach is workable and appropriately connected to the underlying protective purpose of the prohibition. Continue reading →

Leave a comment

Posted in ICC, icl, IHL, lubanga

Tagged , , , ,