Ruto Required to attend ICC Trial (for the moment)

Posted on October 25, 2013 | Leave a comment

This morning the Appeals Chamber delivered its Judgment in the Ruto case on the Trial Chamber’s decision to excuse him for most of his trial. It found that 1) The Rome Statute (Article 63(1)) does allow a person to be excused from his trial in exceptional circumstances, contrary to what the Prosecutor had argued and 2) the Trial Chamber abused its discretion in excusing Ruto for most of his trial even before the start of it. As a result, the Trial Chamber decision was reversed.

Just a few thoughts on the interpretation of Article 63(1) and what this means for Ruto and Kenyatta.

1) The interpretation of Article 63(1)

This article provides that: “The accused shall be present during the trial.” In a nutshell, the question is whether this means that this is a duty and that he cannot be excused (which is what the Prosecutor argued) or whether this is a right that can be waived (which is what Ruto argued). I won’t go into the details of the argumentation on both sides, but for those who have an interest in question of interpretation international law, and as pointed out by William Schabas, these decisions, especially the Kenyatta one, provide some interesting insights on how to interpret the Rome Statute.

I have a lot of sympathy for the Trial Chamber’s interpretation of the Statute, in terms of common sense and policy, but I must say that the Prosecutor, as well as the Appeals judges who issued the separate opinion this morning have a strong case. The fact is that the Statute does not provide for this kind of excusal and Article 63(2) which explicitly provides for one situation of removal from court suggests that if other exceptions were considered, they should have been put in the Statute. The result of ignoring this is that we have a Trial Chamber and an Appeals Chamber disagreeing about something that does not exist and discussing the conditions of the exercise of a discretion that is not provided for in the Statute.

This is not the first time that this happens. ICC judges have invented powers for themselves out of thin air before, and then disagreed on how to exercise them. For example in relation to conditional release, which is not provided for in the Statute or in relation to abuse of process proceedings, again not provided for in the Statute. It is a little bit like Asimov and Philip K. Dick arguing about how to design an alien spaceship… it’s fun to listen to, but ultimately you cannot say that one is right or wrong because neither argument is grounded in reality…

At the end of the day, the criteria laid down by the Appeals Chamber for the exercise of discretion in excusing a person is no less or no more arbitrary than those adopted by the Trial Chamber and in this case, I don’t see how this is not the Appeals Chamber substituting, on the substance, its own opinion to that of the Trial Chamber.

2) What does it mean for Ruto and Kenyatta?

The obvious reading of the judgment would be that Ruto now has to attend his trial. This is not entirely true. The Appeals Chamber reversed the Trial Chamber decision on the basis that they erred in the exercise of their discretion. This means that the Trial Chamber could very well revisit the issue in light of today’s judgment and, applying the new criteria laid down and possibly concluding, while phrasing it differently, that Ruto needn’t participate at various stages of the proceedings. The result might be the same, it will just be more time consuming because rather than 1 decision, there will be dozens of them.

What about Kenyatta? His Trial Chamber issued a decision excusing him from his Trial last Friday, along the same lines as the Ruto decision. The Trial Chamber decision is an interesting academic exercise in treaty interpretation, but is even less legally technical in explaining the specific circumstances allowing an excusal that the Ruto decision. Which means that there is little doubt that the Appeals Chamber Judgment today would apply to it.

So what happens now? The logical thing to do would be that the Trial Chamber reconsider its decision in light of the Appeal Chamber’s Judgment. However, this is not procedurally possible as there is no provision on reconsideration in the Statute.

This means that the “long route” needs to be taken, with that the Prosecutor applying for leave to appeal the decision and, if granted, leading to the Appeals Judgment most certainly reversing the decision. This long process could have been avoided if the Trial Chamber had waited for the Appeals Chamber Judgment, as the Prosecutor had requested, but who cares about judicial economy?

If this goes to the Appeals Chamber, the appeal will probably be given suspensive effect, so Kenyatta will be required to attend his trial. It should be noted that the Trial Chamber does not have to grant leave to appeal, so if it really disagrees with the Appeals Chamber, it can just ignore its Judgment and move forward. This is unlikely to happen of course, but would be interesting to witness on such an important issue.

3) A broader comment on Kenya and the ICC

This judgment of course needs to be read in light with the general context surrounding Kenya and the ICC, and more particularly the attempt by the African Union to get the cases against Ruto and Kenyatta “frozen” by the UNSC, as I discussed here.

Interestingly, in a separate opinion in the Kenyatta decision last week, Judge Eboe-Osuji seemed to suggest that excusal from the trial was the best solution between no prosecution at all and full presence which would disrupt the exercise of his presidential functions by Kenyatta. If we buy this argument, then there is no longer any middle ground solution here and the only option left is a deferral of the case.

On this point, I take the opportunity of answering a question I got after my previous post on whether this situation would actually fall within Chapter VII (threat to peace). First of all, there is in fact no control of UNSC use of Chapter VII, so it doesn’t really matter what I think. If the UNSC thinks it’s a threat, then it’s a threat. Second of all, this is something we can argue about forever because I think that in the past, Chapter VII was arguably used in situations that did not justify it.

Finally, if one does want to debate it, I think that Kenya’s best ally in arguing for this is ICC Prosecutor Bensousa! Indeed, in her most remarkable press release after the Westgate incident, she suggested that this could be considered as an international crime and therefore of concern to the ICC and the international community as a whole. If the Prosecutor of the ICC thinks so, then why should the UNSC not consider the same event as being a threat/breach to the peace justifying a deferral of the cases allowing Ruto and Kenyatta to deal with the situation?

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Guest Post: Great power v small state: some parallels between the Arctic Sunrise case (Netherlands v Russia) and Philippines v China

Posted on October 24, 2013 | 4 comments

Wim Muller is an Associate Fellow with the International Law Programme at Chatham House. He recently defended his doctoral thesis on China and international law at the European University Institute in Florence. All views expressed in this post are personal.

Yesterday, it was announced that Russia is rejecting the jurisdiction of the International Tribunal for the Law of the Sea (ITLOS) in the Arctic Sunrise case, initiated against it by the Netherlands after the Russian authorities detained the Greenpeace ship and its crew during a protest against oil drilling in the Kara Sea. This case has garnered a lot of attention, especially in the Netherlands and Russia, where it is part of a series of issues unhappily coinciding with the official celebration of Russian-Dutch relations, including vocal protests by Dutch nationals against laws restricting gay rights in Russia, the brief forceful arrest of an allegedly drunk Russian diplomat by police in his home in The Hague two weeks ago, and an attack by unknown intruders on his Dutch counterpart in his Moscow apartment two weeks later.

This modest contribution only aims to shed some light on several legal and legal-political aspects of the case by offering a brief analysis of the arguments used by the Russian Federation against ITLOS jurisdiction and its procedural consequences. In particular, I’d like to draw attention to a parallel between Russian behaviour in the Arctic Sunrise case and the Chinese attitude in the ITLOS arbitration initiated against it by the Philippines earlier this year. Both states may be following a path first set out almost thirty years ago by the United States, which is hampering the effectiveness of international judicial institutions to this day.

  • Russian objections to jurisdiction

According to a statement (in Russian, Google translation here) on the Russian foreign ministry website, Russia does not accept the jurisdiction of ITLOS in this case due to the reservation it made upon ratification of the United Nations Convention on the Law of the Sea (UNCLOS) in 1997, which excludes ITLOS jurisdiction in cases involving the implementation of sovereign rights and jurisdiction. It appears that this refers specifically to the part of the reservation which concerns

disputes concerning military activities, including military activities by government vessels and aircraft, and disputes concerning law-enforcement activities in regard to the exercise of sovereign rights or jurisdiction […].

According to Russia, this is the case here as the activities by the Greenpeace activists violated Russian law on the exclusive economic zone and the continental shelf and have led to criminal investigations. (The original charges for piracy were dropped yesterday in favour of a hooliganism charge.) In its request for provisional measures, this rather broad assertion of jurisdiction by the Russian authorities is cited as one reason by the Dutch government to initiate the proceedings in question.

In an earlier statement of claim directed at the Russian government and annexed to the request, the Dutch government pre-emptively stated (at para. 13) that the jurisdiction of the arbitral tribunal is not affected by the Russian declaration, claiming that its reach is limited to the subject matter of the section of UNCLOS under which the provision applies. In the Dutch view, this is limited to marine scientific research and fisheries and cannot apply to other disputes, which would be in contravention of Article 309 UNCLOS, a provision invoked by both parties to assert that reservations and declarations can be made which are not expressly permitted by the Convention.

  • Parallels with Philippines v China

Disagreement about whether an international judicial institution has jurisdiction is the rule rather than the exception; most inter-state cases go through a jurisdictional phase before arriving at the merits. However, normally it is up to the judicial institution in question to establish whether the arguments made are valid and if it does indeed have jurisdiction. This is not happening in the Arctic Sunrise case. In addition to announcing that it does not accept the jurisdiction of the arbitral panel, Russia also stated that it will not participate in any of the proceedings and remains open to other means of settling the dispute. In a legal context, one would expect the state party to respect the authority of the institution in question by allowing it to reach a decision first and then to abide by it.

In this respect, Russia’s behaviour runs parallel to the attitude taken by China when the Philippines filed an UNCLOS arbitration case against it in January over the countries’ competing territorial claims about the Nansha or Spratly islands, which are located in the South China Sea and claimed by both states. On 19 February 2013, China notified the Philippines that it “rejects and returns the Philippines’ Notification and Statement of Claim”. In the view of the Chinese government, “[t]he note and related notice not only violate the consensus enshrined in the Declaration on the Conduct of Parties in the South China Sea (DOC) [a common declaration by the ASEAN states and China in which they resolve to settle disputes through ‘consultation and dialogue’ – WM] , but are also factually flawed and contain false accusations.” Its spokesman also reiterated China’s commitment to addressing the dispute through bilateral talks. Despite China’s rejection of the arbitration, the arbitration proceedings have moved forward, with the appointment of more arbitrators in March and April. The Chinese government has continued to insist that the arbitral tribunal would not have jurisdiction as the dispute between China and the Philippines is about territory, while the UNCLOS procedures have to do with the law of the sea.

The provisions of Annex VII to UNCLOS allow arbitration proceedings to go forward upon the request of the initiating party, as has happened in the case of the Philippines. It can be expected that the Dutch case will also proceed without Russian cooperation and participation. In both cases, the tribunals will have to satisfy themselves that they have jurisdiction and that the claim is well founded in fact and law. The lack of participation of one party does however cast doubt on the relevance of the outcome of the proceedings.

  • Non-participation as a great power prerogative

In a typically tendentious post on Opinio Juris, Julian Ku (who has earlier blogged extensively on the Philippines-China case) also notes the parallel in behaviour between Russia and China and suggests that China may have “started a trend”, especially since Russia has been participating in UNCLOS proceedings in the past. Ku may have identified the beginning of this “trend” almost 30 years too late and be mistaken on who initiated it. Although Russia may well feel strengthened by the Chinese attitude in the Philippines case, its attitude with regard to other international institutions, such as the European Court of Human Rights, has also been problematic in sensitive cases (although the picture is more nuanced than it is sometimes presented). At the same time, both countries’ attitudes can also be seen as typical great power behaviour, as both P5 states may be following an example set by a fellow permanent member of the Security Council in 1985, when the United States walked out of the proceedings in the Nicaragua case following its unsuccessful challenge to the ICJ’s jurisdiction. Although the United States did participate in the hearings on preliminary objections, a difference with the current cases is that in the UNCLOS context decisions on jurisdictional arguments are usually rendered together with the merits. Arguably, walking away in the midst of proceedings is even more damaging than not participating to begin with.

Non-participation in judicial proceedings, even if a state previously consented to a tribunal’s jurisdiction, may well be the prerogative of powerful states in cases in which they feel they have more to lose than to gain from participation. (An example of non-participation which I consider irrelevant here is that of Israel in the advisory case on the legal consequences of the Wall case, since the case was not an adversarial one and Israel had never consented to anything to begin with.) Both with regard to Russia and China, a historical legacy of distrust of the international system, which is perceived to be rigged in favour of the West, is often cited as at least a partial explanation. The Nicaragua case should put the lie to that argument, since although the United States set a bad example for powerful states to follow, it also showed that the leading Western power was not immune to an adverse judgment by an international judicial institution. The challenge therefore remains to convince governments that it is in their interest, not only in the long term (as no state remains powerful forever) but also in the short term to participate to strengthen that elusive notion of the international rule of law.

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The ICC and Africa: In defense of the African Union

Posted on October 23, 2013 | 2 comments

The past few weeks have provided a lot interesting developments on the question of the relationship between the ICC and Africa, understandly linked to the trials of Kenyatta and Ruto at the ICC. At the Extraordinary Session of the Assembly of the African Union earlier this month, a decision was issued calling for, among other things, 1) the adoption of a policy at the ICC for not prosecuting sitting head of states and 2) more particularly in the Kenyan situation, for the cases against Kenyatta and Ruto to be deferred in application of Article 16 of the Rome Statute. Just a couple of days ago, a letter was sent to the President of the Security Council asking it to act accordingly.

These developments have received a lot of criticism from a number of organisations that see this as a step back in the move forward to fight impunity. However, I think that some perspective needs to be reinjected in the discussion.

  • Two preliminary points

Before commenting on this, two preliminary points. First of all, there is no doubt that, as a matter of law, the ICC can prosecute sitting heads of state in light of Article 27 of the Statute. This might be a contested issue for non-state parties such as Sudan, but is unquestionable for a state party who has accepted this when joining the Court. So the African Union suggestion for not prosecuting sitting heads of state would be a purely prosecutorial policy issue, not a legal issue.

Second of all, I’m not a big fan of the unsurprising anti-colonial rhetoric that follows discussions on the issue. Last May, the Ethiopian Prime Minister said that “the process has degenerated into some kind of race hunting”. More recently, the address from Kenyatta at the AU Summit was full of this kind of rhetoric. I’m personally not entirely convinced that this criticism is true. I wrote a couple of posts on the issue a few years back (here and here) which stress this point.

More importantly, I think this is not a very useful approach because it clouds the fact that the problems with the ICC, while revealing themselves in relation to Africa today, are actually more structural. Making this an African problem is in my view short-sighted. Indeed, the tension between peace and justice, the critical discussion of the poor prosecutorial record in building cases, the poor exercise of prosecutorial discretion or the legal ambiguities of the Rome Statute itself are of concern to everyone, not just Africa.

So after this long introduction, a short defense of the African Union position on the two points mentioned above: immunity for sitting heads of states and deferral of the Kenya cases.

  • Granting ICC immunity to sitting heads of State?

On the first point, I don’t see the argument as being so scandalous on principle. Any first year international law student will (or at least should) learn within a few weeks that the personal immunity of sitting heads of state (i.e, the immunity from arrest and prosecution for any act, whether official or private, committed while still in office) is absolute in foreign courts, even for international crimes, in order to allow them to properly exercise their functions in the international arena. There have been some developments on the functional immunity of state officials (i.e, immunity that covers certain acts even when having left office), but no such developments in relation to personal immunity.

Of course, this applies only to inter-state relations and protects the person from domestic prosecutions. International tribunals are arguably different, as the ICJ pointed out in the Arrest Warrant Case. Moreover, Kenya signed and ratified the Rome Statute, in full cognizance of Article 27. Nonetheless, I do think it is useful to recall that the position of the AU is the standard position of international law on this issue, and that international tribunals are the exception. This might make human rights activists cringe, but that is the reality of the law.

And it should be pointed out that this is exactly the logic behind the Pre-Trial Chamber’s recent excusal of Kenyatta from his trial, where the judges affirmed that:

Whenever a national trauma is inflicted upon a country, the eyes of the nation invariably turn to one person—the executive head of state or govemment—with questions and for answers and demands for solutions and hopes of future safety. It is so with natural disasters or massive accidents or intentional acts of terror. But there is much more that the executive head of state or govemment must do in good faith, often unsung and out of sight, to prevent national traumas. And, beyond the management and prevention of emergencies, he or she does so much more. Indeed, the functions of the executive head of state of the average nation will be too numerous to list here. In the outlines, the picture is usefully framed in the following words of Vattel, writing in his Law of Nations: ‘a faithful administrator, to watch for the nation, and take care to preserve it, and render it more perfect; to better its state, and to secure it, as far as possible, against everything that threatens its safety or its happiness.’ Hence, the sovereign functions of an executive head of state or govemment are significantly different from those of any other citizen—even of those who run the most important commercial enterprises within the state.

  • Deferring the cases of Ruto and Kenyatta

On the second point, that of the possible use of Article 16, I don’t see what is so shocking either. This article provides that:

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

It was a strongly contested provision during the negotiations and was perceived as an unacceptable intrusion of politics in the legal process. Ultimately, it was a compromise between those who wanted no Security Council involment at all, and those who argued that investigations should be approved by the Security Council before being able to proceed further (as Article 23 of the 1994 Draft Statute for the ICC actually proposed for situations already being dealt with by the UNSC).

However, we are not in Rome anymore and Article 16 does exists. Those saying that it should never be used because it would lead to impunity seem to be missing this simple point: apparently, for some people, it is sometimes preferable to delay prosecutions in order to favour other interests. You cannot just claim that it cannot be used and that’s it. For example, Richard Dicker from Human Rights Watch has claimed that: “This request comes from out of bounds; the Kenyan president seems determined to forestall his day in court”. This is not useful. Of course Kenyatta wants to “forestall his day in court”, that is the whole point of Article 16! The real question is when will it ever be considered to not be “out of bounds” ?

Given this fact, and following this logic, I don’t see what would be so wrong to use the article now. Isn’t that exactly what it was designed for, whether the human rights activists like it or not? Indeed, delaying the prosecution of a sitting head of state for a limited period of time, in a difficult political and social climate, who has been elected by the population despite his indictment at the ICC does not seem entirely unreasonable to me.

There is of course no easy answer to this tension between, to put it simply, Peace vs. Justice (or even any answer at all). But this is an important normative and philosophical debate on perceptions and approaches to (criminal) justice in the international sphere. This debate deserves more subtle debators than the human rights radicals on the one side and the anti-colonial preachers on the other.

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Posted in African Union, ICC, immunities, international law, Kenya

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Humanitarian Intervention and Use of Force: Thinking outside the box of the UN Charter (a short comment on Koh, Heller, Kaye and Stahn)

Posted on October 11, 2013 | Leave a comment

I’ve been following with much interest the debate initiated by Harold Koh on the legality of humanitarian intervention under international law over at the Just Security Blog and to which such esteemed scholars as Kevin Jon Heller, David Kaye and Carsten Stahn have responded, prompting a response by Harold Koh.

I resisted until now entering the fray of the discussion, because it seemed to me that, albeit very brilliantly, these authors were basically covering familiar ground and points of contention in the ongoing discussion on this issue. I tend to agree that one should be clear on the distinction between law and policy, and be clear on the fact that the latter having absolutely no obligation to abide by the current state of the former. In relation to policy, I personally have no opinion on what is preferable and will leave this to my colleagues, who actually have an influence in policy discussions…

What triggers this post is a small methodological point on the framing of the argumentation and possible confusion between the UN Charter and general international law. Indeed, the heart of the legal discussion seems to be how to interpret Article 2(4) of the UN Charter which relates to the prohibition of the threat or use or force, and whether this might be read to allow some limited forms of humanitarian intervention outside a UNSC Chapter VII authorization. The “textualists” (Heller, Kay, Stahn) say that cannot, while the “progressist” (Koh) thinks that it is, based both on a reading of the UN Charter and its objectives and examples of developing practice in that direction.

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Some Thoughts on Social Media and Academics: will all academics need to do it in the future?

Posted on October 8, 2013 | Leave a comment

It’s fitting, I think, that my first post on my the new site should be about the question of social media and academics. I was on a panel discussion organized by the School of Human Rights Research at the university of Utrecht on the issue today, along with Antoine Buyse from the prestigious ECHR Blog and Laura van Waas from the Statelessness Programme Blog of Tilburg University.

A number of issues were addressed, such as how to choose and use particular types of social media platforms (such as twitter, facebook and blogging) and how to valorize your work and reach out to different audiences. All this was addressed by a very good presentation by Jessica Dorsey, from the Asser Institute, who has truckloads of experience in this field already, particularly for her excellent work over at Opinio Juris.

More generally, the discussion brought to mind some thoughts, which I had already partly discussed here, and which are all linked to the basic idea that these new online forms of academic expression are here to stay. This has a number of consequences.

1) This phenomenon cannot be ignored by traditional actors in the field, who must acknowledge that there is no going back from the age of blogs and authors wanting their drafts on SSRN very quickly. Of course, this has consequences for the whole market structure and dynamics and it is a problem, in terms of copyright for example, but the issue must be tackled head on, if not everybody will lose from the situation.

2) One particular way in which I think blogs will have an impact on traditional publishing is on certain types of articles. For me, the casenote will be less and less valuable in a print edition of a journal that comes out every 3 months. By that time, dozens of blogs have produced extensive commentary on particular judgements or cases. Only more in-depth pieces which include the judgment in broader discussions will make sense on such a long publishing timescale.

3) Funnily enough, I see a lot of publications in a number of (even prestigious journals) which originated as blogpost and frankly don’t seem to have been changed much from their online publication to print, other than some footnotes being added. I don’t know if it is a good thing or not, but it is a point rarely made.

4) New forms of collaborations must be developed, even more than they have been in recent years. In that spirit, a number of journals, including the Leiden Journal of International Law, organize regular online symposiums on Opinio Juris on some of its articles which bring in some element of dynamic debate to the more in-depth process that goes into writing and understanding an article. Other forms of collaboration could include the possibility for allowing online responses to published articles, and rejoinders, as is done on EJIL Talk!.

And now for a wild prediction. I’m wondering if within a few years, this kind of skill will not become an essential part of the basic package that might be expected from academics, maybe not on the same level, but along with research skills, capacity to publish traditional articles and teaching. And I mean this both from a technical point of view and one the substance. From a technical point of view, there will come a point where not knowing how to use twitter or promote your work on internet might be just as much a handicap as not knowing how to use a computer. On the substance, writing for the internet requires certain skills which are not the same as traditional academic writing. In this sense, I think that the idea that some people have expressed in the past that any schmuck with a keyboard can write something online without the safeguards of peer-review or traditional codes of academic writing is somewhat misplaced. Indeed, ultimately, for all forms of expression, the litmus test of quality is always the same one: is your audience happy or not? On this, there is no difference between traditional academia and online blogging in answering the age-old question: are you good at what you do or not?

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