Peek-A-Boo: ICC authorises investigation in Burundi, some thoughts on legality and cooperation

jack in the box

On 27 October 2017, Burundi’s withdrawal from the International Criminal Court became effective, making it the first State to leave the Court. This led to a flurry of commentaries on whether the OTP would be able to open an investigation into the situation after the withdrawal (see here for my own post, here for Kevin Jon Heller at opinio juris and here and here for Sergey Vassiliev also at opinio juris).

I was quietly preparing to engage in a debate with Sergey about his arguments, when the ICC decided to make all our posts irrelevant, or at least mostly theoretical in one dramatic peek-a-boo moment: on 9 november 2017, PTC III of the ICC made public a decision that was rendered on 25 octobre 2017 (so 2 days before the withdrawal) authorising the OTP to open a formal investigation in the situation of Burundi, based on a request filed ex parte by the OTP on 5 september 2017.

This of course radically changes the situation, because we all assumed that there was little likelihood that such an ex parte request did exist, let alone did we expect that a decision had already been rendered.

There is a lot to say about the decision and I just want to share a few first thoughts. Continue reading

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.



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…

Some thoughts on a better use for the ICC budget

Every year, when ASP season at the ICC comes around, it is accompanied by the usual discussions about the budget of the Court. This year’s ASP was a little different with the question of African withdrawals taking the spotlight, but it does not change the fact that the budget remains a regular concern for all observers.

Matt Brown, over at opinio juris, has very clearly set out the problem. It is particularly striking to note that the ICC, with its wide geographical mandate, is functioning with less budget than the ICTY or the ICTR in their heyday, despite the fact that these two institutions were essentially dealing with what at the ICC would be one situation.

The absurdity of the situation is even bigger when observing the daily work of the Court. For example, it appears that the ICC, with its quite considerable workforce, does not have enough budget to run 3 trials at the same time. Not 20 trials, 3 trials. This is absolutely ridiculous.

Of course, this does raise another question, more tricky perhaps: how efficiently is the ICC budget used? Indeed, it’s one thing to consider that the ICC’s budget is too small, and that is arguably true, but it should not be a reason to put under the rug any obligation of self-reflection by the institution itself on how that budget is used.

To take the previous example, I cannot believe that not having the staff to hold three trials at once is only a budgetary issue. The whole point of the ICC is to hold trials! How can it be that this has not been prioritized internally? There are countless sections and sub-sections of the registry whose role, let’s be honest, is quite peripheral to the core activities of the Court. They should be the ones to be understaffed.

This of course highlights a broader issue with the ICC: it has transformed over the years (or was it always like that?) into a Brazil-like bureaucracy, as is always the risk with this kind of institution. As a result, administrative management, rather than being a tool for a fairer process, sometimes seems to have become an objective in its own right, where calendars are set for court hearing, for example, not in order to respect the rights of the Defense, or even to accomodate more generally the parties and participants, but in light of budgetary concerns, space availability, technical difficulties, etc. This is particularly problematic when talking about a judicial institution that has, at least in theory, sets itself the goal of achieving justice in full respect for fair trial principles.

On a lighter note, I have a small suggestion in terms of the budget. I follow the ICC newsfeed, and twitter, and I have the feeling that every second week, the Prosecutor, Fatou Bensouda, is travelling the world for various events in order to promote the ICC, with groundbreaking statements about ending impunity or the fact that children are our future. But the Prosecutor of the ICC should not be a PR representative of the Court. This should be done by its President or the Registry’s outreach section. The Prosecution is merely one organ of the Court and one party to the criminal trial. It should focus on this function, full stop. I am sure that the travel budget of Fatou Bensouda would be sufficient to hire an court usher to be able to hold 3 trials at the same time…