Category Archives: libya

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.

Why a Syria UNSC Referral to the ICC is not necessarily a good idea (and why we should be allowed to say that)

I’ve so far stayed away from the online discussions on the draft resolution for a UN Security Council Referral of the Syria situation. My impression was that any comment on the content of the draft was essentially science fiction, as there is little chance that the Resolution will pass, given that Russia is likely to veto it.

(on the substance, briefly, 1) I don’t share Kevin Jon Heller’s criticism of the UNSC not wanting to finance their referrals. The drafters of the Rome Statute wanted UNSC referrals, I think it was a bad idea, and possibly one that is contrary to international law, but they got it and cannot now complain, in my opinion and 2) in relation to possible limitations to the personal jurisdiction of the Court in the Resolution, I already expressed here, in relation to Libya, my thoughts that such limitation does not render the referral illegal, it merely raises a question of opposability in case someone falling within it were to be prosecuted)

However, given the last few days of online frenzy on the promotion of the referral in preparation for tomorrow’s vote, it is difficult to resist any longer. As summarized here, nearly 60 countries seem to support the referral as well as a high number of NGOs, who consider that a referral is the best way to bring justice to victims of the Syrian civil war. This is creating considerable peer pressure and States who do not publicly support this effort are considered to be necessarily “wrong”:

I am however not convinced by this quasi-unanimous call for the ICC to intervene in Syria, and this for several reasons.

1) From the perspective of the ICC

I don’t really see why the ICC would want to get involved in that situation. While a referral might be publicly welcomed by Court officials, I can only imagine the anxiety attacks that people at the institution, especially at the OTP, must be going through at the mere thought of the referral being approved. Investigating crimes in a serious manner in Syria right now would be a logistical nightmare, that probably would make Darfur look like a walk in the park.

Putting logistics aside, I’ve heard people say that this would be an opportunity for the ICC to get out of Africa. But I don’t see how this would be a good place to start, given the complex geopolitical considerations at play in the region. I think that dragging the ICC into this seriously polarized political conflict would ultimately (rightly or wrongly, but that is not the point) affect its credibility. I recently told a diplomat I met in the Hague that if his country really supports the ICC, it should oppose a referral of the Syria. I hope he did…

2) From a broader perspective: the ICC and conflict resolution

More generally, I naively remain amazed at how the ICC has now automatically become part of all conversations on any conflict situation. It is too big a discussion to go into here in too much detail, but the ICC has been integrated in all kinds of debates about transitional justice, jus post bellum and RP2. However, the link between international prosecutions and political transitions remains to be convincingly established in my opinion. Or at the very least, someone should justify on more solid ground than “we need to bring justice to victims” why such prosecutions can and should have such a central role in conflict and post-conflict situations.

This is particularly true in a case of ongoing crisis as in Syria. I don’t honestly see how a referral to the ICC will make any difference to the humanitarian crisis that has been unfolding for the past years. It looks like a veil for the inactivity of the international community in not doing anything to put an end to the atrocities. When someone is being beaten up in the street, you don’t send a judge, you send a policeman.

In relation to this,  supporters of the referral mention a possible deterrent effect. But this argument is always very shaky. Even if one buys the idea (disputed by many) that criminal law in general can have a deterrent effect, this will only be the case in a pacified society when criminal activity is the exception rather than the norm. This is hardly transposable to a conflict situation, where there is hardly any social contract remaining in which a pacified and socially accepted application of criminal law might have a deterrent effect.

In addition to that, I don’t see the evidence of such an effect to date. I must have missed the memo that shows that eastern Congo, the Central African Republic, Darfur or Uganda are now havens of peace thanks to ICC intervention…

This is not to say that accountability issues should not be part of the discussion at all. There is no denying that impunity no longer seems to be a credible policy option in any political transition. But there is a important chronological dimension that cannot be ignored. There is a right timing for implementing the different components of a transition, and, to make things more complicated, that timing is never the same in each case. But we do need to accept that not everything can be done immediately in dealing with a situation such as Syria. My feeling is that the most irrelevant action to take right now is a referral to the ICC. Other actions (military and/or diplomatic) would seem to be obvious priorities here. And I suspect that these considerations, rather than some vicious moral failure, lies at the heart of why virtuous states such as Sweden or Canada are not supporting the referral at this point in time.

Mark Kersten is, as usual, more careful and measured than I am in discussing this issue here, noting that we don’t know enough on the possible positive or negative effects of ICC intervention in various situations. This might be true to some extent, but I do think that the burden lies on those supporting the ICC to show that it does indeed have the promised positive effect.

In that respect, what ultimately continues to bother me is that supporters of the ICC have, in my opinion, oversold what this Court can do. As a result, the first thing you see in the press when some unrest occurs somewhere is a call for the ICC to intervene (see recently in Ukraine). This leads, in my view, to a dumbing down of discussions of complex situations, which need to be broken down into digestible “good vs bad” and “victim vs perpetrator” categories which simply do not reflect the reality of what is going on, nor help make policy choices and as a consequence prepare a manageable political transition. Indeed, not everything can be seen through the lens of international criminality when dealing with a political situation. If not, because both sides to a conflict are likely to commit crimes, does it mean that one supports no one? It’s like saying that because both sides in the second world war committed war crimes, that we cannot choose sides between them. Of course we can.

Some years ago, when the Ivory Coast post-electoral violence was unfolding, I asked the question of how to distribute responsibility among a myriad of possible entities. Ultimately, it raises the following question: if all those who committed crimes in civil wars are put in jail, who will be in charge of the transition? It might seem like a simplistic question, but I still have not received an adequate answer…


Khaddafi Arrest Warrant: Some Thoughts on the arrest "obligations" and Crimes against humanity as the new "crime of crimes"

In my last post, I considered one of the political aspects of the indictment against Khaddafi in relation to the Peace vs. Justice debate.
Today, some quick thoughts on the legal dimension of the request for arrest warrants. The situation in Libya indeed raises a number of interesting issues which I am particularly fond of. I won’t delve  into the question of the actual legality of security council referrals. I’ve said in the past that I was skeptical about the mechanism as a whole, because i don’t believe the SC has the power to bind a state not party to a treaty to that treaty, and more particularly discussed the legality of Resolution 1973 here (don’t forget to read the comments section, it raises some quite interesting ideas on the extent of Security Council powers. 
I also will not insist on the issue of head of state immunity that is raised here, for the second time at the ICC after the Bashir case. Dapo Akande, over at EJIL Talk! argues that because SC resolution binds Libya to the Statute of the ICC, it must abide by article 27 which removes immunity. Needless to say, given my previous remarks, that I disagree with this analysis. At best, SC 1973 obliges Libya to cooperate with the Court, but within the limits of its international rights and is not bound by the actual content of the Statute.
  • Third State obligations in relation to arrest warrants

One notable point that comes up in relation to the request for the arrest warrants is what they would, if granted, require of other states. As I have argued before, I don’t believe that the issuance of an arrest warrant automatically creates an obligation for state parties to the ICC to arrest the person in the absence of a specific request under 89(1). Moreover, I have also argued that the general requests to all states under 89(1), irrespective of actual knowledge of the presence of the accused on the state’s territory, seemed contrary to the drafting of that article. This argument seemed to me like a shot in the dark, given the practice of the court in wholesale notifications… But apparently the ICC Prosecutor agrees with me (which also means that for once, I agree with the ICC Prosecutor…)! Indeed, in the request for arrest warrants, the Prosecutor points out in the request that : 

65. The Office submits that, if this Application is granted and the Court proceeds to issue warrants of arrest, the Court should exclusively transmit a request for the arrest of the suspects to Libyan authorities.
66. This would conform with the requirements of Article 89(1) which provides “The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person”. Addressing a request at this stage to other States on whose territory, according to the information available, the suspects are not physically present would appear superfluous and contrary to the express scheme foreseen in Part 9. 

Dapo Akande finds this position strange, because it suggests that the approach adopted in the Bashir case was contrary to the statute. But I think that the Prosecutor is perfectly right in his reading of article 89(1) and that indeed, the previous practice of the court was contrary to the statute. Apparently, someone at the OTP is reading this blog and some credit would have been nice…
  • Crimes against Humanity as the new crime of choice?

A second notable point is the crimes for which the warrants are sought. The “Tripoli Three”, as Mark Kersten has aptly named them, would be charged, according to the request, for two counts of crimes against humanity. This raises a number of questions. The first one relates to the question of whether counts of war crimes could also have been possible (see Dapo Akande’s discussion of whether there was in fact an armed conflict in Libya at the relevant times for the acts under consideration). 
More generally, I think it shows a recent trend towards crimes against humanity becoming the new ideal crime of international justice. Indeed, it seemed that crimes against humanity had lost their appeal, more particularly in relation to genocide, as the debate surrounding the Bashir arrest warrant showed. But now, it is back in fashion, especially in the new context of wanting the ICC to deal with the “arab spring” and more generally with situations of internal crack down of political opposition. 
Indeed, Crimes against humanity have the benefit of not needing the special intent of genocide (and generally being more adequate for criminal law than genocide, as I’ve argued elsewhere). Moreover, they don’t require an armed conflict, which are usually hard to identify in the situations of popular uprising that we are witnessing now. 
Of course, there still remains the question of establishing the widespread and systematic nature of the attacks (with the corresponding knowledge), as required by article 7(1) of the Statute. But even this is turning out to be not so much of a problem if the threshold is lowered, as was the case in the Kenya situation, thus allowing for systematic human rights violations to be “caught” under the umbrella of crimes against humanity. I had strong doubts about the Pre-Trial Chamber’s approach back then, and still do, but if the trend is confirmed, then Crimes against Humanity have found a new youth and may even becoming the new “crime of crimes”.

A short Comment on Libya, Hypocrisy and Selective Outrage

I am usually not a big fan of “double-standard” discussions, which are usually the source of endless “why here and not there” debates, which are often ultimately excuses either for inaction or for diminishing the importance of a specific action. But I must admit the current situation (pun intended, see previous post) in Libya does lend itself pretty well to this type of analysis.

For one, the referral by the UN Security Council (extensively discussed from a legal perspective here), begs the question of when a situation rises to the point of justifying a referral. William Schabas raised this point in his own comments:

But if the Security Council will move in this way given reports of devastating attacks on civilians, why did it not move in the same way the last time there were such attacks in the same region? I’m referring to Gaza and operation Cast Lead which took place only two years ago, and only hundreds of kilometres away from where Gaddafi is currently massacring his own people.

 Although I do not share the typical demagogic singling out of Israel (to stay in line with this post, why mention that situation, rather than an other?), it is a valid question generally. There are a number of situations since the entry into force of the Rome Statute which might have warranted referrals, not just Gaza, but also Ivory Coast, or Sri Lanka, for example. Usually the answer to this is that whoever asks the question is being naive and that it’s a question of politics. Maybe. But it doesn’t mean that the question shouldn’t be asked. In relation to this, and linked to the debate I was having in the comments section of my previous post, I believe that given the extensive power given to the Security Council under Chapter VII, 1) that chapter should be redrafted to provide for clearer safeguards and guidelines on its use, and 2) the UNSC should be reformed to avoid its overtly political use by the veto-wielding powers. I know that is being naive too, but there is no harm in being a dreamer once in a while…

Second of all, the UN General Assembly has voted to suspend Libya from the Human Rights Council. Of course, one can wonder with the International law Prof Blog, why it got elected there in the first place. And it becomes even more laughable when you actually read the composition of the Council. It is presided by Thailand, with its spotless human rights record. Cuba, a paragon of democracy, provides a vice-president, so does Slovakia, a country which has not be singled out by UN Bodies and the Council of Europe for practicing forced sterilization on Roma women. Other members include such such human rights safe-havens as Russia, Saudi Arabia, China and Pakistan. Past members included Algeria, Egypt, Tunisia and Sri Lanka. The members of the defunct Commission on Human Rights all had equally good track records in terms of Human Rights. So the singling out of Libya for a suspension makes perfect sense.

I am not saying that identifying this hypocrisy would justify in any way not reacting to what is happening in Libya. in simple terms, it’s not unfair to get caught, just because others haven’t. But one must take a step back and reflect on the reasons why a cause gets a spotlight at a given moment, and others do not. Actors on the international scene “choose” a topic and it suddenly enters the zeitgeist. There is a complex sociological web of political actors, NGOs, media outlets which frame priorities and frame minds to look in a certain direction and not another, as the over-emphasis on Darfur and its “genocide debate” or on Israel and anything it does, shows. Not to sound cynical or anything, but some causes sell when others don’t. And this applies to NGOs as well, which, in the darker corners of the castles where they put away their shining armors when the night comes, discuss humanitarian markets and compete for them for donations and exposure, in order to sell their own causes as others would sell used cars. But that is maybe a little too cynical, and I’m, once again, straying off topic.

Libya and the ICC: On the Legality of any Security Council Referral to the ICC

The UN Security Council resolution on Libya has received a lot of exposure in the past few days. Most notable international law blogs have commented upon it. I more strongly recommend Xavier Rauscher’s posts over at the International Jurist (here and here), Kevin John Heller’s insights over at Opinio Juris, Marko Milanovic’s take at EJIL Talk! and William Schabas’ thoughts. Given this amount of analysis, I thought I would avoid blogging just to repeat what everyone had said.

but there is one issue that has not been discussed and that is the legality of the referral mechanism as a whole.

As the readers of this blog might know, I remain convinced that the power given to the Security Council, by a treaty other than the UN Charter to effectively make that treaty binding on a non-State party is contrary to international law. I discussed this issue before in relation to the Darfur referral (here and here). You could tell me that I should let bygones be bygones, that the system exists and that I should just live with it. But, I realized I couldn’t do so when reading the debate over at Opinio Juris on the “legality” of the following paragraph of the Resolution:

6. Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State.

The debate turned around the question of whether this limitation was “lawful” or of “dubious legality” and “ultra vires”. And then I asked myself a very simple question? “ultra vires” and “unlawful” in relation to what law or power? It cannot be the ICC Statute, because the UN Security Council is not bound by the ICC Statute, it is only bound by its constitutive treaty, i.e. the UN Charter. And it cannot be the UN Charter, because there is famously no boundaries to the use of Chapter VII. So the UN Security Council can say what it wants and the whole debate actually shows the legal absurdity of the whole UNSC referral system.

Which brings me back to my initial point, the legality under international law of the mechanism as a whole. I cannot see in what reading of the general rules of the international law, the Security Council can be empowered to make a treaty binding on a State without its consent. Even more so if this power does not arise from the UN Charter itself.

If I do play along with the existing system for one minute, I still don’t see the problem with paragraph 6 from the ICC’s perspective. Kevin John Heller put forward a hypothetical scenario in this respect:

 What would happen in the following, obviously fanciful, scenario?  Gaddafi is toppled and turned over to the ICC, which initiates a prosecution against him. The SC authorizes a peacekeeping mission in Libya, and during the mission a US peacekeeper commits a war crime.  The ICC prosecutes him, concluding that paragraph 6 has no legal force. If the paragraph is not severable and the referral is void, what happens to the prosecution of Gaddafi?

But there are no formal requirements for the content of a referral in the Statute other than the fact that it must be done under Chapter VII. More generally, referrals, whether from States or the UNSC, are not “binding” and don’t have “legal force”. They can say what they want, and therefore no issues of “legality” actually arise. As long as a “situation” is referred, as defined by the Statute, it only triggers the Prosecutor to move along, and ultimately, his prosecutorial discretion will prevail and any case that arise will be evaluated within the ICC framework based on its jurisdictional criteria. The Prosecutor has said so much in his policy paper on preliminary examinations, where he points out, for example, that he is not bound by a list of possible indictees that a UN report or a truth commission will have set up, or limited to prosecuting one side of a conflict (although this is factually what he has done in Uganda, but that is a different issue). Bottom line, the ICC is not bound by any frivolous extra bits in a referral. Once a State or the UN Security Council has referred a situation, limiting prosecution to blonds with green glasses, or blue men from Mars is not unlawful. It’s just irrelevant.
To those who would argue that SC referrals are different that other referrals because they concern non-State parties to the ICC, I would answer that is exactly why you should have refrained from putting it in the Statute in the first place. Once it is in there, the same rules apply in my opinion.

UPDATE: I’ve continued debating this in the comments section of Opinio Juris, which compels me to make Three extra points here. 1) There is no statutory definition of a “situation” and the case law is quite vague on this issue, so I’m surprised at the over-reliance on this term in the analysis, when the term itself is so empty. 2) more generally, I insist that this is not an issue of legality, in the absence of any “legal nature” of the referral and conditions of its “legality”. Referrals are essentially political triggers that don’t need to conform to any legal guidelines and previous practice shows that. The Uganda referral mentioned a vaguely defined region (‘northen Uganda’) and limited the crimes to those committed by the LRA. 3) linked to the previous one, there are other ways of dealing with the issue that the “legality/illegality” approach. To take Kevin’s above quoted hypothetical, a Libyan defendant who would contest the referral would just receive the answer that he fits within the limits of the referral. It is only if a UN peacekeeper from the US (for example) is prosecuted that he might claim the protection of the resolution, with the Court considering that the paragraph is either “operable”n or “inoperable”.

In conclusion, save for contesting the mechanism as a whole, I think that there is nothing wrong with the SC referral as it stands.