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Guest Post: Preliminary Admissibility Rulings: An Additional Hurdle in the ICC’s Race to Justice

[By Santiago Vargas Niño, LLB & BA in Political Science, Universidad de los Andes, Colombia; LLM (Cum Laude), Universiteit Leiden, The Netherlands; Former Intern, Legal Assistant & Assistant Legal Officer of the OTP of the ICC]

Last Thursday, 9 November 2017, Pre-Trial Chamber (“PTC”) III of the International Criminal Court (“Court”) issued a public redacted version of its 25 October 2017 decision authorising the Office of the Prosecutor (“Prosecution”) to commence an investigation into the situation in Burundi. While this possibility had been anticipated by Sergey Vasiliev, it has received the kind of attention that is usually reserved for big surprises. And rightly so. Pursuant to Article 127 of the Rome Statute (“Statute”), the notice of withdrawal deposited by Burundi on 27 October 2016 would have become effective a mere two days after PTC-III decided to grant the  Prosecution’s request. The Court’s ability to exercise its jurisdiction over crimes allegedly committed in Burundi while it was a State Party was saved at the eleventh hour. Naturally, this has raised some eyebrows.

Of particular note is the interesting debate between Kevin Jon Heller and Dov Jacobs on the interpretation of Article 18 in the context of a proprio motu investigation, which I encourage the reader to consult in full. In a nutshell, professor Heller suggests that the Prosecution must notify a State Party of its decision to request authorisation to commence an investigation. This would afford the concerned State an opportunity to challenge the Prosecution’s finding with regard to the admissibility of a situation before a formal investigation is launched, while preventing duplicative considerations of the matter by the PTC. Professor Jacobs replies that such notification should be requested only after the PTC has granted the Prosecutions application under Article 15. In his view, Article 18 contains a limited procedure aimed at obtaining a preliminary ruling on admissibility which is independent from the authorisation to initiate an investigation. Naturally, this would allow the State to avail itself of a request for deferral of an already authorised investigation on constantly evolving complementarity grounds.

I wish to devote a few lines to my understanding of Article 18 before presenting three thoughts on the continuing discussion about its application: (i) the lack of foundation, in the Court’s core legal documents and its jurisprudence, for what may seem like a sound policy; (ii) the importance of maintaining the clear statutory distinction between preliminary examinations and investigations, and; (iii) the checks on the Prosecution’s discretion to initiate proprio motu investigations.

Under Article 18 the Prosecution shall notify a State Party or a State that would normally exercise jurisdiction over Article 5 crimes that: (i) it determined that there would be a reasonable basis to commence an investigation into a situation referred by the State, or; (ii) it initiated a proprio motu investigation. Within one month of this notification, the concerned State “may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to [relevant] criminal acts”. My emphasis shows the optional nature of this procedure. Faced with such request, the Prosecution shall defer to national proceedings unless the PTC, “on the application of the Prosecutor, decides to authorize the investigation.” In this scenario, which covers State referrals and proprio motu investigations alike, the PTC “shall consider the factors in article 17 in deciding whether to authorise an investigation” pursuant to Rule 55(2) of the Rules of Procedure and Evidence (“RPE”). It does not have to weigh other criteria enshrined in Article 53 of the Statute. In fact, neither Article 18 nor its attendant RPE make a single reference to articles 15 or 53. The PTC is only called to rule on the complementarity aspect of admissibility.

This is in line with the intentions drawn from the scarce legislative history of the provision. The US Delegation introduced it “to provide for a procedure, at the outset of a referral, which would recognize the ability of national judicial systems to investigate and prosecute the crimes concerned (…) when no particular suspects had been identified, and a State’s right to launch full-scale investigations” (A/CONF.183/C.1/SR.11; emphasis mine). Despite the lack of substantive debate on the provision (A/CONF.183/C.1/SR.29), it was ultimately approved as an additional safeguard of the principle of complementarity (A/CONF.183/C.1/SR.35) and in the spirit of compromise (A/CONF.183/C.1/SR.36). Being part of a “package” upon which the delegations gathered in Rome agreed at the last minute (A/CONF.183/C.1/SR.42), it is no surprise that Article 18 creates a redundancy in the admissibility assessment. Its interaction with other provisions of the constitutive instrument of the Court was never truly debated. Nevertheless, it is the law.

Therefore, I agree with professor Jacobs’ characterisation of Article 18 as comprising “a limited procedure to be followed for a preliminary ruling on admissibility which (…) is self-contained.”

But there is something appealing about professor Heller’s position. If the Prosecution had to notify the concerned State of its intention to request a formal investigation before filing an Article 15 application, the State would have a month to decide whether it raised any objections based on the existence of national proceedings, and the PTC would be able to assess admissibility on the basis of more comprehensive submissions from both sides of the aisle. Unfortunately, this position lacks a solid foundation in the law of the Court. Nothing in articles 15 or 53 of the Statute, rules 48 or 50 the RPE, regulations 31, 44 or 49 of the Regulations of the Court or Regulation 29 of the Regulations of the Office of the Prosecutor imposes a duty to notify the States about a decision to request permission to open an investigation. Furthermore, the Prosecution did not consider itself bound to notify the governments of Kenya, Côte d’Ivoire or Georgia of the applications filed before various PTCs to commence investigations in their territories.  Lastly, none of the Chambers seized of the Prosecution’s requests chastised it for failing to notify the States of its intention to initiate investigations. All I found when I looked at the practice of the Court were empty spaces on the notification pages.

Actually, professor Heller’s interpretation of Article 18 stems solely from his peculiar approach to Article 15.

Professor Heller cites Article 15(6) to argue that, by receiving information under articles 15(1) and 15(2) of the Statute, the Prosecution has initiated an investigation. An equally plain reading of Article 18 would suggest that a parallel duty to notify concerned States would arise as soon as a situation caught the Prosecutor’s eye. Yet he acknowledges that “notification cannot be required every time the OTP decides to advance a preliminary examination (…) The better interpretation of Art. 18 is that notification is required once the OTP has decided to ask the PTC to authorize an investigation.”

Not only is that moment different to the “initiation” of an investigation, both under articles 15 and 18, thus rendering any claims of “natural” interpretation of the Statute inane, but professor Heller’s amalgamation of preliminary examination and investigation flies in the face of Article 15(3). This provision orders the Prosecution to submit a request for authorisation if it concludes that there is a reasonable basis to proceed with an investigation. Years of unchallenged practice have led to the understanding that such conclusion can only be reached through the preliminary examination, a stage that precedes the opening of an investigation and that is described by Article 15(2) – not by Article 15(1). Professor Heller’s argument also discounts the significance of Article 15(4), which squarely attributes the power to authorise the “commencement” (i.e. “initiation”) of an investigation to the PTC, and which conditions it upon the Prosecution’s demonstration that there is a reasonable basis to proceed under Article 53(1).

Furthermore, equating the launch of a preliminary examination with the artificial “initiation” of an investigation under Article 15(1) is extremely risky. If that were the case, the Prosecution should not have rushed to apply for authorisation to commence an investigation in Burundi before 25 October 2017 because its preliminary examination would have constituted a “criminal [investigation] (…) which [was] commenced prior to the date on which the withdrawal became effective” under Article 127. Such interpretation would also allow the Prosecution to exercise its powers under Article 54, as professor Jacobs puts it, since the moment: “an OTP investigator sitting in front of his computer in The Hague [starts] downloading HRW and Amnesty International reports.”

There is no reason to consider that PTC-III erred in concluding that “as soon as a [PTC] has authorized the commencement of an investigation, the Prosecutor must notify States (…) in order to enable it to assert its primary jurisdiction.” That is, in fact, the moment in which a proprio motu investigation initiates under Article 15 and, consequently, the time of activation of the Prosecution’s duty pursuant to Article 18(1). Once again, I agree with professor Jacobs: “all procedural steps of Article 15 need to have been followed (including the formal authorisation) before the notification obligation of Article 18 kicks in.”

This does not mean, however, that States are deprived of checks on the Prosecution’s discretion in the context of proprio motu investigations. In the first place, the preliminary examination process is designed to encourage the provision of concrete and specific information on the progressive steps taken by the State to ensure domestic accountability for international crimes. States should use this opportunity to prove the action, willingness, and capacity of their courts to act in the face of atrocities. In the second place, the Prosecution must hold itself to the requisite burden of proof before lodging an Article 15(3) application. In practice, this is done through the adoption and consideration of Article 17 and Article 53(1) reports at the conclusion of phases 3 and 4 of the preliminary examination respectively. The evaluation of the work of the Jurisdiction, Complementarity and Cooperation Division by the Chief Prosecutor constitutes an internal control mechanism that should not be overlooked. Thirdly, the PTC conducts its examination of the Prosecution’s request as an impartial and independent arbiter of the rule of law under the Statute, representing not only itself but also the community of States Parties. It is entitled to stop the Prosecution dead on its tracks if it fails to show that the situation is or would be admissible.

Some States gathered in Rome intended to further restrain the action of the Prosecution. Others wanted to protect the fragile consensus reached on 17 July 1998. They agreed on a compromise imposing a fourth check on the Prosecution’s discretion, which follows the authorisation decision but precedes any admissibility challenges raised under Article 19: the capacity to request the Prosecution to defer an investigation upon being notified of its commencement pursuant to Article 18. While I recognise that this may invite a duplicative, albeit more focussed, exercise of the PTC’s supervisory powers over the Prosecution, that is no excuse to do away with the law. PTC-III did not deprive Burundi of its right to control the Prosecution’s discretion. That was a self-inflicted wound that resulted from the State’s sovereign decision to withdraw from the Statute.

On a final note: had Burundi wanted to save itself “the indignity of a formal investigation”, it should have brought to justice the people responsible for the grave crimes that the Prosecution will now have to investigate against all odds of success.

A short rejoinder to Kevin Jon Heller on Burundi and the ICC [UPDATED]

Following my post yesterday where I raised doubt about Kevin’s interpretation of Article 18 of the Rome Statute as requiring the OTP to inform Burundi that it intended to file a request to open a formal investigation prior to the filing of such request, Kevin has kindly taken the time to respond (disagree).

This seems like one of those rare times where I’m sure we’ll have to agree to disagree, but I just want to make three short points.

First of all, in relation to this point raised by Kevin:

As I pointed out in my previous post, Art. 15 not only specifically distinguishes between the OTP initiating an investigation proprio motu (paragraph 1) and the PTC authorizing the commencement of that investigation (paragraph 4), it specifically deems the former but not the latter part of the preliminary-examination process (paragraph 6). Paragraph 6 makes no sense if “initiates” in paragraph 1 refers to all of the steps in Art. 15, including authorization.

I agree with Kevin that, textually, Article 15(6) seems to suggest that the “initiation of an investigation” seems to be part of the PE, while the authorisation is something else. But I think that if that is really what the drafters had in mind, then I have two follow up questions :

1) Let’s assume I’m wrong that 15(1) does not apply to the whole procedure of Article 15. In that case, what does “initiation of an investigation” actually mean if it does not mean a formal investigation into a situation? This is never defined in the Statute, in the case law, or in Kevin’s original post. I think it is too vague a concept, with no particular timeframe or delineations to be able to trigger any legal obligation to notify.

2) The consequence of Kevin’s interpretation is that while the OTP can wait, before notifying under 18(1), to open a formal investigation into a situation after a State referral, it must do so while it is still doing the analysis under Article 53 in case of proprio motu. This seems an unjustified difference. Especially as, technically, PEs and trigger mechanisms are two different things. PEs exist in all situations and are done in application of Article 53, not Article 15. So during a PE, there is always a possibility that a State referral takes place. So if Kevin is right, then if during a PE there is no referral, then there is a moment when the OTP will have to notify a State at some point under Article 18(1), but if suddenly there is a State referral, the obligation would evaporate. This all seems very complicated in my view, for a solution presented as simple by Kevin.

Second of all, in relation to Kevin’s point that:

Equally problematic is Dov’s insistence that Burundi will be able to challenge the validity of the proprio motu investigation even though the PTC has already formally authorized it. Dov’s argument to that effect is strangely devoid of any reference to the actual language of Art. 19; he simply says that “’case’ in the Rome Statute does not really mean ‘case’ in the context of admissibility questions.” If Dov believes that Art. 19 allows a state to shut down an already-authorized proprio motu investigation by invoking complementarity, he should make the argument. In my view, nothing in Art. 19 permits such a challenge, given that the Article is limited — both in name and in terms of its specific provisions — to cases. Art. 19(2) is particularly revealing in that regard, as it specifically limits jurisdiction and admissibility challenges to “[a]n accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58” (subparagraph a) or “[a] State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted” (subparagraph b).

One, I never said that a State can “challenged the validity of a proprio motu investigation” or “shut down an already authorised proprio motu investigation” by invoking complementarity. That is not the function of admissibility challenges.

Two, it would be cumbersome and too long here to enter into a long discussion on admissibility challenges here, but I do believe that the current case law of the Court would allow a State to challenge admissibility before a formal case is brought, because “case” is interpreted broadly in that context. The simple fact that admissibility is evaluated in a Article 15(4) decision, despite no formal cases exist at this point in time, proves that (see Kenya decision for how the PTC at the time justified this approach). As I said in my post, I disagree with this, but that is the current framework at the ICC.

Third of all, when Kevin says that:

My (textually sound) interpretation of Art. 18’s notification process makes much more sense, because it means that the PTC will only address complementarity once, before it authorizes a proprio motu investigation.

1) This might be true, but common sense is not necessarily a good guiding principle to interpret the Rome Statute unfortunately and 2) I think Kevin’s approach ignores the fact that complementarity is a dynamic process and does not lend itself easily to a once and for all decision. So even if Kevin is right, this does not mean that the PTC will not have to entertain additional admissibility challenges later on in the procedure.

To be continued…

[UPDATE: an additional argument in favour of my interpretation of Articles 15 and 18 is the following.

Article 18(2) says that the Prosecutor shall notify the State when “the Prosecutor initiates an investigation pursuant to articles 13 (c) and 15“. Now, we’ve already seen the ambiguity in Article 15(6). However, I just realised that there is no ambiguity in Article 13(c): ” The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: […] c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.”

Note that here “initiated an investigation” refers to the entirety of Article 15, not just 15(1), which should be the case if Kevin is right that the initiation of an investigation is not the whole process (including the PTC decision), but one step of the PE. This therefore seems to support my interpretation that the initiation of an investigation proprio motu mentioned in Article 15(1), is what comes out of the whole process of Article 15 being followed.

All in all, I think that Kevin, while having accurately noted the language of Article 15(6), which is the basis of his interpretation, is doomed to have to ignore the rest of the statute, in order to avoid the conclusion that, as he puts it, “Paragraph 6 makes no sense if “initiates” in paragraph 1 refers to all of the steps in Art. 15, including authorization”. I think that this might well be the case, but it might make more sense to accept that, than to consider that the rest of the Statute makes no sense…]

Burundi withdraws from the ICC: what next for a possible investigation?

On the 26 october 2017, Burundi’s withdrawal from the Rome statute became effective, making it the first State ever to leave the Court. Strangely, there has been no official declaration from either the Court or the OTP at this point.

Al Jazeera reports that : “Burundi’s withdrawal doesn’t affect the preliminary examination of the country’s situation already under way by the court’s prosecutor, ICC spokesman Fadi El Abdallah told The Associated Press.”.

Moreover, Benjamin Durr got the following email from the Public Affairs unit of the ICC:

ICC reaction to burundi

Despite what some have called the defeaning silence coming from the OTP, the withdrawal is widely commented upon by ICL observers and stakeholders who, for the most part, regret that Burundi has chosen the path of impunity. The withdrawal raises a certain number of legal questions that have been at the heart of discussions on the social media in the past few days and which I want to address briefly here.

  • What happens to the existing preliminary examination?

As is well known, Burundi has been under a preliminary examination by the OTP since April 2015. From a legal perspective, the withdrawal does not affect the preliminary examination. It does not put an end to it automatically, nor does it force the OTP to end it.

The real question is whether the withdrawal affects the possibility for the OTP to actually open a formal investigation at a later stage, which is my next point.

  • Does the withdrawal affect the capacity of the OTP to request the opening of a formal investigation?

The answer to this question depends on the interpretation one adopts of Article 127(2) of the Rome Statute, which provides that:

Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it 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.

I should note at this point that I’m assuming that no steps have indeed been taken by the OTP to obtain a decision from a Pre-Trial Chamber to be able to open a formal investigation. There has been some speculation on whether the OTP might have made such a request confidentially. However, this has not been done in the past to my knowledge (Kenya, Georgia, Côte d’Ivoire), and I wonder what would be the justification for that.

If the OTP has indeed proceeding confidentially, then one might very well consider that the pending decision could indeed be a matter under consideration by the Court for the purposes of Article 127(2).

If no steps have been taken, I refer you, for the interpretation of Article 127(2), to the excellent post done by Alex Whiting last year and my own thought on the matter which I published here at the time.

I noted in that respect that:

The key issue is what is covered by the expression “any matter already under consideration by the Court”. Alex Whiting makes the argument that this expression is broad enough to cover preliminary examinations by the OTP. Possibly, he is right from a linguistic point of view. However, I have a difficulty with the idea that such an informal phase as a preliminary examination (which might simply involve an OTP investigator sitting in front of his computer in The Hague downloading HRW and Amnesty International reports) might have such massive consequences as trumping the decision of a State to withdraw from the Rome Statute.

I also noted that:

One last point that could favour a more limited, rather than broad interpretation of Article 127(2), is the formulation used in other versions of the Rome Statute. For example, the French version of the Statute says that: “le retrait n’affecte en rien la poursuite de l’examen des affaires que la Cour avait déjà commencé à examiner avant la date à laquelle il a pris effet”. The word “affaires” (cases) seems narrower that “any matter”. This is obviously not decisive and a comparison in the other official language could be interesting.

I continue to believe that one year later. I don’t believe a PE initiated unilaterally by the OTP, with no particular applicable legal framework and no direct legal consequences can decently be considered as a “matter already under consideration by the Court”. The OTP is not the Court, it is one organ of the Court

[UPDATE: Over at opinio juris, Kevin Jon Heller provides a very useful detailed analysis of whether the “Court” in Article 127(2) refers to the judiciary, or includes the OTP as well. I think he convincingly shows that one cannot assume that Article 127(2) applies to matters under consideration by the OTP, rather than more strictly by the Judges by listing a number of provisions of the Rome Statute where the “Court” refers to the judiciary in a more narrow sense when it comes to procedural matters.]

The OTP is simply doing its basic job of looking at various events going on worldwide to see if actual formal action under the Rome Statute is required. That cannot possibly have as a consequence to negate the effect of Article 127(2). If such a broad interpretation of Article 127(2) were to be adopted, nothing would prevent the OTP from announcing that it is conducting preliminary examinations into all State parties, thus making sure that there would be no legal consequences of a withdrawal whatsoever. That seems a little far fetched.

It should also be noted that nothing prevents the OTP from technically opening an PE into a situation involving a none State party, or even only none State parties. This would arguably be a waste of time, but there is no legal impediment with that. And the reason is that PE don’t have a formal legal existence and, more importantly, do not create obligations on anyone, States included.

Delphine Carlens, of FIDH, with whom I discussed the matter briefly on twitter suggested the following supporting argument:

Article 70 of the Vienna Convention provides that:

Consequences of the termination of a treaty

1. Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention:

(a) releases the parties from any obligation further to perform the treaty;

(b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.

2. If a State denounces or withdraws from a multilateral treaty, paragraph 1 applies in the relations between that State and each of the other parties to the treaty from the date when such denunciation or withdrawal takes effect.

On principle, I very much like the idea of bringing the VCLT into play, because one tends to forget that the Rome Statute is after all a treaty, and does not exist, particularly when it comes to the relationship between States and the international organisation, in a legal vacuum.

My initial reaction here is to consider that the reference to the VCLT might not be very useful. Indeed, it does not help interpret Article 127 per se, because if one agrees with me that the OTP declaring that it is conducting a preliminary examination does not create any “right, obligation or legal situation” under the Rome Statute, then Article 70(1)(b) simply does not apply.

However, on second thought I wonder if I might not be framing the question in wrong terms. Indeed, if one forgets the issue of the existence of a PE for one second, one could wonder if the “legal situation” that was created through the execution of the treaty is not simply the fact that, under Article 12, the ICC would have jurisdiction over crimes committed in the territory of Burundi or by nationals of that State because Burundi was a State party at the time of the commission of the alleged crimes. As a consequence, of this approach the ICC would still have jurisdiction even after withdrawal, irrespective of the existence of a PE or not.

I don’t know if this argument would be persuasive in front of Judges, or would have the support of other State parties. Indeed, Article 127 is a lex specialis on the consequences of withdrawal, a situation which, it could be argued, removes completely the applicability of Article 70 of the VCLT. And because Article 127 makes no mention of surviving jurisdiction, then it might be a little far-fetched to read it back into it.

[UPDATE: Another difficulty that would need to be addressed is the time when jurisdiction is to be determined. Is it determined at the time of the commission of the crimes or at the time of the judicial decision to exercise jurisdiction? This is important to establish, because if it is the latter, then the Burundi withdrawal would in fact remove the capacity for the Court to exercise jurisdiction. Despite the basic nature of the question, I’m not aware of any judicial pronouncements on the matter at the ICC (readers, feel free to point me in the right direction).

Does the wording of the Statute help in any way? To some extent.

Indeed, it should be recalled that through a weird semantic trick, Article 12 turns out to be not strictly a jurisdictional provision: it is titled “preconditions to the exercise of jurisdiction”, which makes it out to be more of a procedural provision that a jurisdictional one. As a result, Article 12 does not actually say that the Court has jurisdiction over crimes committed on the territory of a State party or by a national of a State party, which is what you would expect from a jurisdictional provision. Article 12 says that the Court can only exercise jurisdiction if the State of nationality or the territorial State is a Party to the Statute. This would logically suggest that the adequate time to determine whether the pre-conditions of Article 12 are met, is when the Court is considering exercising jurisdiction, not when the crimes were actually allegedly committed.

I also want to point out that I’m in no way advocating a teleological interpretation of Article 12, or jurisdiction more generally, along the lines that not interpreting it in a certain way would lead to impunity, and therefore would not be acceptable. Whatever some people may think of sovereignty as an archaic concept in international law, it is still a fundamental right of States to decide whether they want to be bound by a treaty or not and I don’t believe that the “fight against impunity” can trump that.]

Despite these difficulties, the jurisdictional approach might be worth a try, as it is somewhat more convincing that the “PE = matter under consideration” approach. Moreover, everybody I know, academics and Judges alike, does consider Article 12 as a jurisdictional clause, despite its clear wording to the contrary. So, even if I’m right, nobody might actually care. Therefore this approach might actually provide the “progressive approach” of the interpretation of the Statute that HRW is calling for.

I should note that I’m not sure this is the argument actually put forward by the FIDH, because it seems to rely, in its press release, on the existence of a PE: “Since proceedings (a preliminary examination in this case) were initiated prior to the date of Burundi’s effective withdrawal, the Prosecutor could request the opening of an investigation into international crimes committed before 27 October 2017 ( Article 127(2) of the ICC Statute)”. So FIDH is welcome to use this new argument from now on!

[UPDATE: i’ve just come accross this analysis from Amnesty International which puts forward the same idea, but still seems to link jurisdiction and the existence of a PE, which I think in fact possibly weakens the argument. And I strongly disagree with the suggestion that a PE creates an obligation to cooperate on the part of States.]

One last note on this: if the Public Affairs email reproduced above is to be believed, it seems that someone at the Court thinks this is a viable interpretation of Article 127(2), when it is said that: ” In accordance with Article 127.2 of the Rome Statute, Burundi’s withdrawal does not affect the jurisdiction of the Court with respect to crimes alleged to have been committed during the time it was a State Party, namely up until 27 October 2017″.

This is a strong position to put forward, and I’m surprised it is not shared officially by someone more “senior” at the Court. Right now, it remains unclear whether this is a shared court-wide position, more particularly if it is the official position of the OTP. Some formal declaration would be welcome in that respect.

  • What about other cooperation obligations which Burundi might have?

It should be noted as an aside that Burundi still has an obligation to cooperate in relation to criminal investigations and proceedings which were commenced prior to the date on which the withdrawal became effective.

Which means that if a matter of cooperation arises in any current case or situation at the Court, Burundi would have to cooperate with the ICC, for example in assisting a current investigation.

Arguably, this would also apply in relation to the execution of an arrest warrant, for example of Omar Al Bashir of Sudan. This is of course particularly ironic, given the fact that the withdrawal was surely in part justified on the basis of opposition to that specific arrest warrant…

in memoriam of Cherif Bassiouni

It is with great sadness that we all learnt last night the passing away of Cherif Bassiouni, one of the giants of international law and international criminal law. He really needs no introduction, but I wanted to offer some concluding feelings.

He was a great jurist, a great scholar and writer. Possibly more importantly, he was a great inspirer. His writings have moved generations of scholars and practitioners into trying to make a difference. He was the perfect and healthy symbiosis between utopia and realist understanding of our world. Cherif Bassiouni was always promoting justice, peace and tolerance but was never preachy about it. He didn’t need to, because he made things sound so natural. God knows I tend not to be easily taken into idealist visions of the world, justice and the future (some would even say that I am cynical). But Cherif was different. Listening to him, you were taken into his words and left with no doubt that everything was possible, even when going back into the world.

Cherif Bassiouni was a key personality in my own professional career. Attending the Syracusa ICL Summer School in 2007 was a founding moment in confirming my decision to do international criminal law and in my love for pleading (I sulked for 24 hours because I didn’t win the Moot Court…).

I usually don’t make personal remarks here, but Syracusa was also important in my personal life. I met my future wife there and some of the people I met there, I still count as my closest friends. Cherif Bassiouni brought people together in many ways…

Ten years later, this summer 2017, I had the privilege of being invited to teach at the ICL Summer School and to meet Cherif one last time. We had a dinner in honor of Judge van den Wyngaert where he made a kind and inspirational speech before we shared moments of joy and singing in probably 12 different languages, a perfect symbol of the diversity surrounding Cherif. I will always remember that evening fondly. Below is a picture Raymond Savadogo, an attendee at the summer school, took as a memorandum (and yes, Judge van den Wyngaert is indeed holding a guitar, but that is a story for another time…).

I cannot claim that we were friends, but the few time we met and had the chance to talk, there was always a sense that he cared and that nothing else mattered for that moment. He was, simply speaking, a truly remarkable human being.

Cherif Bassiouni will be missed by all who had the honor of meeting him and knowing him. There are few people I would say this about, but I am proud to be part of his legacy and to carry it forward.

bassiouni

 

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

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

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

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

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

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

  1. Was there a duty to arrest Bashir?

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

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

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

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

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

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

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

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

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

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

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

I have two problems with the Majority’s approach.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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