Is the ICTY ashamed by its own Seselj judgment?

Today, the ICTY issued its Judgment in the Seselj case. The Judgment of acquittal on all counts came as a shock to many observers. Followers of this blog will know that I believed Seselj should have been released years ago, when one of the Judges on the Trial Chamber, Judge Harhoff, was recused (see here, here, and here). I’ll return to the content of the Judgment in the coming days. One thing that struck me today is how the ICTY communications office has dealt with the acquittal.

If you look at the home page of the ICTY, there is no mention of the outcome of the Judgment, despite the Seselj case being one of the most important cases at the ICTY since it was created.

Basically, the first news about the Judgment to appear on the ICTY news page was not the outcome of the Judgment, but the OTP press release regretting the acquittal. I found this a little strange and tweeted:

Some would say that I was just being paranoid and that this does not mean anything.

However, a few hours later, the next news item was still not the outcome of the Judgment, nor was it the fact that the Judgment was now available online. No, it was a link the summary of the dissenting opinion of Judge Lattanzi, who would have convicted Seselj for all but one count. It’s still the case on the website now, but here’s the screenshot for posterity:

Capture d'écran 2016-03-31 17.04.11

This “choice” by the ICTY media office makes it even more obvious for me that the ICTY is officially trying to put the acquittal under the rug.

As an additional confirmation, I checked the twitter feed of the ICTY. While, for the Karadzic Judgment, the ICTY did live tweeting, concluding with the following tweets:

for the Seselj Judgment, things were very different:

Capture d'écran 2016-03-31 17.06.12

As this screenshot shows, there is simply the announcement that the Judgment is scheduled, then no indication of the actual outcome, followed by the OTP press release.

Just to be sure one more time that I was not dreaming, I went back to the 15 December 2015 when the Stanisic and Simatovic Appeals Judgment was issued, and the ICTY news feed did indicate back then the outcome of the Judgment:

So, clearly, there is a decision made here to minimise the Judgment that was issued today. In other words, the ICTY seems to be ashamed by a Judgment rendered officially by one of its Chambers. Unsurprisingly, I find this absolutely appalling and it is a shameful conduct. The ICTY, as an institution, should stick by the decisions that it delivers, whatever the outcome. I have blackened dozens of pages and spent liters of saliva over the years, trying to explain to everyone that in a criminal law system that is healthy, we should respect the outcome of trials, even when it is an acquittals.

And then, the ICTY shows a total lack of respect for itself. What’s the point in trying in that case?

6 Quick Thoughts on the Karadzic Judgment

Today, the ICTY issued its long awaited Judgment in the Karadzic case. Given its length, over 2500 pages, this post can obviously not provide any comprehensive analysis of the Judgment. I do however want to share 6 quick initial and general thoughts :

  • As noted, the Judgment is very long. This might seem a little shocking at first, but given the length of the trial, the huge body of evidence adduced from the trial and the crimes covered, its length can be understandable. Which does not mean that this is not problematic. There has to be something wrong with a system, from the OTP charging strategy, to the case management by the Judges, for such a Judgment to be rendered. Nobody is going to read 2500 pages and questions can certainly be asked about the pedagogic effect of international judgments.
  • Which brings me to my second point: the fundamental question of the usefulness of international judgments generally. Indeed, following the build-up to the delivery of the Judgment in the general media, it was obvious that Karadzic was already considered to be guilty. All that everybody expected was a formal confirmation of their view that this was indeed the case and nobody would have accepted an acquittal (as shown by initial reactions to the acquittal of Karadzic on one count of genocide, or the “inadequate” 40 year prison sentence). This means that in fact, there is an expectation of conviction and the idea that an acquittal is not an option. This shows in fact very little respect for the criminal law process, based on the presumption of innocence.
  • Rather unsurprisingly, the Chamber acquitted Karadzic for the Count of Genocide in relation to the Municipalities. This is unsurprising because the Chamber had already dismissed this Count under Rule 98(bis), before being overturned by the Appeals Chamber. There is now consistent case-law that there was no genocidal intent in the rest of Bosnia and I remain surprised at the criticism leveled at the ICTY on this point: clearly, ICTY Judges, who in the past have stretched the definitions of crimes, modes of liability and acceptable evidence beyond recognition to cast as wide a net as possible in the “fight against impunity”, can hardly be considered as genocide apologists and if they have not found evidence of genocidal intent in so many cases, it must mean something.
  • I look forward to the Appeals process. Given the fact that Appeals Chamber has already decided that there is sufficient evidence of genocidal intent for the Municipalities Count when overturning the 98bis decision, it is easy to guess that the OTP will appeal that acquittal. Also, there seem to have been countless disclosure violations by the Prosecution (108 (!)motions were filed by Karadzic to that effect, a lot of them successful). Peter Robinson, Karadzic’s legal advisor, has been documenting them on his twitter feed. One tweet, posted on the eve of the Judgment, if true, certainly raises question about the fairness of the process:
  • As an aside to the delivery of the Judgment, the ICTY sealed a solid victory in its fight against impunity, by getting the Dutch authorities to arrest Florence Hartmann (images of her arrest here), a French journalist who was fined 7000 euro for publishing information in a book on the content of confidential decisions of the ICTY (images of her arrest here). The fine was later commuted to a 7-day prison sentence. This is rather ridiculous, and I’m sure that the ICTY has better things to do that this… or maybe not.
  • And a final fun fact: a search for “Mladic” in the Judgment comes up with 1883 hits… Anybody care to take bets on the outcome of that trial?



ICTY orders retrial of acquitted defendants in unconvincing Judgment

Yesterday, the ICTY Appeals Chamber rendered its Judgment in the Stanisic and Simatovic case. Both defendants had been acquitted of all charges in the Trial Judgment (part 1 and part 2). They were acquitted under JCE liability because their mens rea to contribute to The JCE was not established beyond reasonable doubt. They were also acquitted for aiding and abetting liability because their acts were not specifically directed at the commission of crimes. This is explained by the fact that the Trial judgment came out in the period of time between the Perisic appeal Judgment which got the ball roling on the need for the “specific direction” requirement in aiding and abetting liability and the Sainovic Appeal Judgment which promptly batted the requirement out of the park.

The Appeals Judgment quashes both acquittals and orders a retrial. While I can imagine that attention will naturally focus on the aiding and abetting part of the Judgment, given all the heated debates on the “specific direction” requirement (see Marko Milanovic here and Kevin Jon Heller here), the Judgment actually delivers some other interesting gems.

  • The flawed reasoning on JCE

The reason for quashing the JCE acquittal is somewhat puzzling to me. Indeed, the Appeals Chamber doesn’t seem to have any quarrel with the factual assessment done by the Trial Chamber in determining the absence of the required mens rea of the accused. For the AC, the problem lies with the fact that the TC should not have entered findings on the mens rea of the accused on the basis of the « alleged JCE » as argued by the Prosecutor, but first entered findings on the actual elements of the JCE. Here is the relevant passage (par. 82):

The Trial Chamber was therefore required to examine whether Stanisic’s and Simatovic’s shared intent to further that common criminal purpose could be inferred from their knowledge combined with their acts as well as from their words and interactions with other individuals, after having established the existence and scope of the common criminal purpose shared by a plurality of persons. In other words, without making findings on the existence and scope of the common criminal purpose shared by a plurality of persons, the Trial Chamber could not assess Stanisic’s and Simatovic’s words in the context of “that purpose and whether their acts contributed to that purpose and, consequently, it could not properly adjudicate whether Stanisic’s and Simatovic’s mens rea for JCE liability could be inferred from the circumstances.

There is both a legal and a logical problem with this reasoning.

Legally speaking, there is not one footnote in support of this affirmation. This beats even Perisic and its reliance on a single sentence from the Tadic Judgment to justify the specific direction requirement. In fact, in his dissenting opinion, Judge Afande provides several examples of TCs proceeding in this manner.

Logically speaking, I have a problem with the underlying idea. Indeed, what the AC is essentially saying is that a TC must make findings about all elements on a mode of liability before pronouncing itself on one of them. I’m not sure this makes sense. Imagine the following scenario. A man is accused of selling a car to a group of people allegedly sharing a criminal intent to rob a bank. However, his lawyer proves that this man had no knowledge of or intent to contribute to any criminal activity when he sold the car. This should be case closed, right? who cares whether the group of people exist, or if they actually did share a criminal purpose. Not according to the AC which would still require that the judge establish whether there is a group of people and whether that group of people is acting with a criminal purpose. That is not really efficient practice in my view. If we push the logic, and take an even simpler example, it means that if a man is accused of killing his wife in Paris with a gun and he has an alibi that puts him in New York at the time of the alleged crime, a Judge would still have to determine that the wife has indeed been killed by gunshot, even though there is no chance that the accused was involved in the crime, alleged or actual.

More importantly perhaps, there is an underlying implicit view of the role of the Judge in the criminal proceedings. What the majority of the AC are saying is that the Judge is expected to determine the existence of a common criminal purpose (including its scope and its members) based on the evidence adduced by the Prosecutor. This finds support in the OTP appeal arguments (par. 62) : «In the view of the Prosecution, without making findings on the existence of a common criminal purpose, its scope, members who shared it, and the conduct which contributed to it, and without a reasoned opinion on these essential elements, the Trial Chamber could not correctly decide on Stanisic’s and Simatovic’ s shared intent to further the common criminal purpose».

However, technically, there isn’t « a » common criminal purpose, there is « the » common criminal purpose alleged by the Prosecutor. He has the burden of proof, and he constructs the indictment. The only role of the Judge is to determined whether the allegations are proven beyond reasonable doubt, not whether the evidence brought by the prosecutor proves something, whatever it is. From this point of view, the TC was not incorrect in taking as a starting point the common criminal purpose that the Prosecutor alleged, with an alleged scope and composition. In other words, the Judges already knew the scope and composition of the common criminal purpose : the one put forward by the Prosecutor. That is the one that was relevant for the charges brought against the Accused. Maybe the evidence shows several other common criminal purposes, with different scopes and compositions, but that is in my view not in the least bit relevant if the Prosecutor did not plead them. I insist : he has the burden of proof and the judges are not there to subsitute their own legal understanding of the facts and evidence to fit their own personal common criminal purpose.

  • The order for retrial

Concerning the order of a retrial, it is quite a massive decision to decide to start from scratch such a long process. It also conveniently gives work to the MICT for a few years.

Essentially, the AC considers that it would be too difficult and too much work to go through the whole case record to make the necessary missing findings that it considered were not made by the TC. In that respect, I note an interesting argument raised by Judge Agius in his separate and partly dissenting opinion.  He considers that the Majority should have done a review of the evidence in order to assess whether the error of law that they identified in fact had an impact on the outcome of the trial judgment in order to invalidate it (par. 10): « I respectfully believe that it is most unfortunate that the Majority neither attempts to conduct a review, nor offers any explanation as to how the Trial Chamber’s error invalidated its findings with respect to Stanisic’s and Simatovic’s mens rea ». This is for me a convincing argument. The Appeals process is not complete until it is determined that, but for the error of law, the Judgment would have been different. However, rather surprisingly, Judge Agius then goes on the actually follow the Majority in ordering the retrial for the following reasons : «At this stage of the Tribunal’s mandate, and with one member of this Bench only mandated to serve until the end of the year, I am fully aware that there is no time for the Appeals Chamber to conduct the exercise of review itself even if I were to convince my Colleagues that such an exercise was a preferable and appropriate exercise of the Appeals Chamber’s powers. I also find myself in the absolute minority on this issue- It is for these reasons, after having given due consideration to matters such as fairness to the accused, the interest of justice, the circumstances of the case in hand, and considerations of public interest, that I join the Majority in ordering a retrial in this case».

This reasoning is particularly unconvincing. Once it is established that doing the review was a legal obligation on the part of the AC in order to invalidate the decision, then the failure to do so is illegal (and not « unfortunate » as noted by Judge Agius). End of discussion. If Judge Agius truly believes that, then the fact that the mandate of one judge is ending is irrelevant. That is a human ressources argument that has no place in a legal argument. Even less convincing is that fact that he is in the minority. Following that logic, there would never be any dissenting opinions!

  • The new death of “specific direction”?

Finally, in relation to «specific direction», there isn’t in fact much to say. Given the composition of the bench, there was little doubt that there would be majority to follow Sainovic rather than Perisic (see Marko and Kevin on the process that led to the composition of this bench). And unsurprisingly, Judge Agius dissented. I won’t go into the debate on the requirement here, but two points can be made in relation to the Judgment.

First of all, it is interesting to note the very pragmatic approach of Judge Afande in his dissent. He essentially does not take sides on the debate on whether « specific direction » is a legal requirement of aiding and abetting liability (whether as part of the actus reus or the mens rea). Rather, he puts forward a pragmatic and practical argument, similar to the one found in Perisic : there are factual situations where, in the absence of a discussion of « specific direction », it is impossible for a Judge to determine that the only reasonable inference of the facts is that the accused had the requisite mens rea or actus reus to aid and abet the commission of the crimes charges. It is a case-specific evaluation that depends on the facts. While this reasoning does not « solve » the legal question that plagued the Perisic and Sainovic Judgments, it does explain why I believe that the discussion on «specific direction» is not as dead as some would like it to be. As ICL has a tendency to cast the net of responsibility in always a wider range, there will always factual scenarios which create unease with finding criminal responsibility among some Judges and these Judges will always need to resort to arguments (call it «specific direction» or something else) to keep ICL in check.

Second of all, in the particular circumstances of this case one can note that the AC casually discards the lex mitior argument presented by Simatovic who considered that if there was going to be a retrial on aiding and abetting liability, the most favorable law should apply, i.e the version with «specific direction». The Appeals Chamber answers that because «specific direction» was never a part of aiding and abetting liability, there was no more favorable law to apply. On a basic level I understand the position of the AC, once you accept the legal analysis on specific direction. However, the problem I have is on the finding of the error of law in the first place. When the TC issued its Judgment, it was applying the law as it was bound to apply it, that is the one stated by Appeals Chamber of ICTY, the highest Chamber of the tribunal. For all intents and purposes, «specific direction» was part of aiding and abetting liability in the period of time between Perisic and Sainovic so there was no error of law at the time of the Judgment. In the same way that the OTP could not obtain the reconsideration of the Perisic Judgment after Sainovic came out, I think that Stanisic and Simatovic should have remained acquitted on that count.

In conclusion, this AC Judgment is not extraordinarily convincing, especially on JCE. I hope the international community of commentators and general media reacts as strongly as it did on the Perisic Judgment. Sadly, I doubt it, because the bad guys are back in jail, so everything is back to normal…

ICC Judges ask the Prosecutor to reconsider decision not to investigate Israeli Gaza Flotilla conduct

Readers of this blog will recall that in 2013 the Comoros referred to the Prosecutor of the International Criminal Court the situation regarding what happened in 2010, when Israeli forces boarded several ships (the so called “freedom flotilla“) that were trying to “break” the blockade on Gaza. The operation took place on the high seas and led to a number of deaths and alleged human rights abuses.

In November 2014, the Prosecutor declined to open an investigation on the basis on a gravity assessment under Articles 53 and 17 of the Rome Statute.

Last week, Pre-Trial Chamber I of the ICC added a new twist to the story and requested that the Prosecutor reconsider her decision not to open an investigation in the situation.

This is the first time that such a decision is rendered and it therefore gives some insight into how such a review should be conducted.

I am actually of two minds about the decision. Indeed, while I find the minutiae of the decision sloppy and unconvincing (1) I found reasons, despite myself, to legally defend it (2).

  1. The sloppy details of the decision

Kevin Jon Heller, over at Opinio Juris, has produced a first commentary of the reasoning of the judges and I will not rehash his points here, as I agree with all of them. I’ll just add a few points of my own on a couple of issues.

First of all, Kevin notes that the PTC’s definition of “persons most responsible” is “bizarre”. The OTP had said that the investigation would likely not touch upon high ranking officials, to which the PTC responded:

the conclusion in the Decision Not to Investigate that there was not a reasonable basis to believe that “senior IDF commanders and Israeli leaders” were responsible as perpetrators or planners of the identified crimes does not answer the question at issue, which relates to the Prosecutor’s ability to investigate and prosecute those being the most responsible for the crimes under consideration and not as such to the seniority or hierarchical position of those who may be responsible for such crimes.

 For Kevin, this means that:

Imagine two situations based on the scenario above. In Situation 1, the low-level soldiers acted alone. In Situation 2, the low-level soldiers executed the civilians because their superiors ordered them to. According to the PTC, there is no gravity difference between an OTP investigation focusing on the low-level soldiers in Situation 1 and an OTP investigation focusing on the superiors in Situation 2, because in each situation the OTP would be investigating the individuals “most responsible” for executing the civilians. That defies common sense.

 Actually, I think that Kevin is reading more sense into the decision that there actually is on that point. Indeed, let’s take a step back and wonder simply what does the expression “Prosecutor’s ability to investigate and prosecute those being the most responsible for the crimes under consideration” actually mean? I would imagine that going after those “most responsible for the crimes under consideration” is what the prosecutor’s job is, right, for any crime? How is that an actual gravity criteria? It’s just common sense. Or should we focus on the word “ability”? in that case, as Israel is unlikely to hand over anyone to the ICC, then the Prosecutor certainly has no “ability” to prosecute anyone in relation to the flotilla. Ultimately, this might be a reason to investigate (or not) in the abstract, but I don’t see how this has anything to do with any meaningful definition of gravity… So, following up on Kevin’s point, it’s not that the PTC’s approach our common sense idea of gravity, it’s that it has absolutely nothing to do with gravity in the first place…

As an aside, it should be noted that the PTC’s interpretation of “persons most responsible” is actually at odds with the case law of other chambers, more particularly that of Pre Trial Chamber II in the Kenya situation and despite it actually being quoted as a source for this criteria. Indeed, in the decision to open an investigation in the situation in Kenya, PTC II found that, specifically when discussing gravity:

“With respect to the first element concerning the groups of persons likely to be the focus of the Prosecutor’s future investigations, the supporting material refers to their high-ranking positions, and their alleged role in the violence, namely inciting, planning, financing, colluding with criminal gangs, and otherwise contributing to the organization of the violence. This renders the first constituent element of gravity satisfied.”

This is not the first time that there would be discrepancies in the case law, or even that chambers would refer to other chambers to make them say something else than they actually said. More surprising here is that Judge Cuno Tarfusser was sitting on both decisions! Either he had a change of heart on this (and some explanation might have been welcome), or his former position slipped his mind, which is somewhat troublesome…

Kevin also notes that the PTC confuses situational and case gravity. Which is true. As I noted back in November, it is the Prosecutor herself who opened that door by comparing the situation to the Abu Garda case. So we have the Prosecutor and the PTC both misunderstanding the difference between situational and case gravity… and coming up with different conclusions!

In a follow up post, Kevin focuses on the troublesome concluding paragraph of the decision:

“As a final note, the Chamber cannot overlook the discrepancy between, on the one hand, the Prosecutor’s conclusion that the identified crimes were so evidently not grave enough to justify action by the Court, of which the raison d’être is to investigate and prosecute international crimes of concern to the international community, and, on the other hand, the attention and concern that these events attracted from the parties involved, also leading to several fact-finding efforts on behalf of States and the United Nations in order to shed light on the events”.

Not only, on a general level, and as pointed out by Kevin, international attention and perceived gravity don’t necessarily go hand in hand (some would say this is particularly true when it comes to Israel, but that is a different debate…), but the PTC seems to be trying to resurrect the “social alarm” criteria of gravity that was killed off by the Appeals Chamber as early as 2006.

One last point which has always irritated me in gravity assessments: the use of the impact on victims. The victims and their family always suffer from the commission of crimes. How is that a relevant criteria, especially as you will never see an international judge come out publicly to say that “the suffering of this victim is worse than the suffering of that victim”. This is a valid point of course and I’m not disputing it. But we should stop pretending that the gravity threshold has any meaning in that case.

  1. The defensible general approach to review taken by the PTC

Beyond those additional points on what Kevin said in his posts, I would like to spend the rest of the this commentary on the general approach taken by the Chamber in relation to reviews of decisions not to open an investigation.

In that respect, while I do not like it one bit, I’m afraid I have to say that it does find support in the logical inconsistencies of the Rome Statute, which was perhaps a historical political compromise in 1998, but continuously reveals itself to be a legal Frankenstein.

Two particular aspects of the decision illustrate this.

  • On the standard of review

It is impossible to determine a standard of review in the abstract. It is necessarily related to the discretion afforded to the body whose decision is under review. It is therefore necessary to understand the nature of OTP discretion under article 53 before determining what a Chamber can do in reviewing it.

In that respect, the majority essentially claims that the OTP has no discretion under article 53, other than through the interests of justice:

 “The Chamber recognises that the Prosecutor has discretion to open an investigation but, as mandated by article 53(1) of the Statute, that discretion expresses itself only in paragraph (c), i.e. in the Prosecutor’s evaluation of whether the opening of an investigation would not serve the interests of justice. Conversely, paragraphs (a) and (b) require the application of exacting legal requirements.”

This is a perfectly reasonable reading of the statute. Article 53 refers back to article 17, and article 17 criteria of admissibility have been the object of a considerable number of judicial decisions and clarifications in virtually all the cases and situations at the ICC (a lot of these decisions can be criticized on a number of levels, but that is not the point here). It would therefore seem strange that when an actual admissibility challenge is raised, the judges get the last word, but when the prosecutor does an assessment under article 53, it would be fully discretionary.

To be clear, I believe that the Prosecutor should have discretion in its decision to open an investigation both in a situation and a case. In France, and other civil law countries, it is called l’opportunité des poursuites. Within that discretion, there are a number of factors that could be taken into account, such as ressources, or gravity (but not the article 17 gravity), but these would be policy criteria rather than strict legal criteria.

The reason there is a problem here is that the OTP should never have had an actual legal obligation to assess admissibility in its decision to open an investigation. It’s not his job. It is the role of judges to assess admissibility.

However, once you put article 53 in the statute, with reference in it to clear legal criteria defined elsewhere in the Statute, this, in my view necessarily implies both very limited discretion and therefore a strong judicial review. Indeed, what is the point in having article 53 in the statute if there is no judicial review? Without that, it is just literature.

On a similar point, I’ve never believed that admissibility should be looked at in the situation phase, whatever the referral mechanism used. I know that the statute seems to require it. As noted above it is required from the prosecutor under article 53. Moreover, it is also required from the PTC in the context of an article 15(4) decision to open a proprio motu investigation. Indeed, while article 15 actually doesn’t refer to article 53 or article 17, rule X of the RPE sends back to article 53, and therefore to article 17.

But this makes little sense for me. Article 17 refers to the admissiblity of a “case” and it is only through a clintonian trick that this has been applied to situations because “case” doesn’t necessarily mean “case”. Beyond that, it leads to some absurd results whereby situations might not be admissible, whereas individual cases are. For example, in Colombia, the OTP has always claimed that it cannot move forward because of complementarity, while NGOs have convincingly argued that certain crimes (false positives) have been systematically ignored and would warrant an ICC intervention. Another example is Ivory Coast. If the Prosecutor were to request the opening of an investigation today, given all the steps apparently being taken locally, the situation might arguably be deemed inadmissible. Yet the Laurent Gbagbo, Simone Gbagbo and Blé Goudé cases have all been declared admissible.

Another reason why I do not like admissibility assessments at the situation phase is that it pushes in the direction of becoming a monitoring body for entire domestic judicial systems, rather than looking at what is being done in a particular case. However, that is not the ICC’s mandate (even if some would like it to be). The ICC is not there to check whether a country that is transitioning from a civil war has put in place an adequate accountability mechanism for dealing with the perpetrators of mass atrocities.

As a result of this legal framework, the complementarity assessment at the situation phase is always going to be a little broad, a little vague, and therefore a little meaningless in terms of legal certainty. It’s not the judges’ fault, but that of the drafters of the Rome Statute.

  • On the gravity assessment

The same is true of the gravity threshold. In the abstract, this criterion makes sense. It is meant to give some flexibility in not pursuing cases that would not be worth the money spent, given the limited ressources of the Court. You do not want to spend millions on investigating an isolated cross border incident between two states, which might technically be a war crime, when a genocide is going on at the other end of the world. The problem is that nobody is going to come out publicly to claim that some crimes are worse than others. The answer you will get when you enter this discussion usually is: “all the crimes within the jurisdiction of the court are grave, that’s why we have the ICC in the first place”. Fair enough, but as a result, we don’t seem to be anywhere closer to actually defining gravity as a legal criteria now, than we were in 1998.

Indeed, the gravity threshold has been a nightmare to define by the judges at the ICC. I cannot go through all the case law here, but it has gone all over the place over the years. For example, the “most responsible” criteria was first introduced by PTC I to not issue a warrant against Ntaganda, but that was overturned on appeal. It was however reintroduced at the situation level by the Kenya decision, which is what the Comoros decision relies on. And now we have a new definition of it.

Another example is the criteria of “social alarm” also introduced by PTC I in 2006, and also rejected on appeal in no uncertain terms: “As to the “social alarm” caused to the international community by the relevant conduct […] the Pre-Trial Chamber has not explained from where it derived this criterion. It is not mentioned in the Statute at all. […] the criterion of “social alarm” depends upon subjective and contingent reactions to crimes rather than upon their objective gravity.” Despite this, “social alarm” seems to be reintroduced here to some extent by the PTC.

Beyond the confusion, the common point of all these decisions is however that gravity has never been successfully pleaded at the ICC to defeat the court’s exercise of jurisdiction, because that would be insensitive to whomever suffered from those crimes. As I noted at the time of the OTP decision not to open an investigation, gravity is essentially in the eye of the beholder and there is no way around that problem… except if you give one beholder the duty to draft clear legal criteria of gravity, which will necessarily not please everyone, but at least give some flesh to the concept. Until then, we will have endless and ultimately pointless discussions on the gravity threshold at the ICC, the definition of which will always be changing to make sure it is never applied, therefore making it simply meaningless.

As an aside, this statutory silence also explains the confusion between situational and case gravity. Indeed, we actually don’t have much of a clue what a situation is when reading the Rome Statute. As a result, while the Flotilla incident would seem to be closer to our idea of a “case” than that of a “situation”, there is no fundamental legal obstacle for it not to be a situation under the statute.

This is why I cannot really fault, once again, the judges of the PTC on principle, because the drafters created the space for them to say exactly what they want about gravity. Next time they should do a better job.

  1. A concluding recurring question

While this issue is not dealt with in the decision, I take the opportunity, one more time, to ask always the same question: how is the Gaza situation (blockade, NIAC, IAC, occupation, all or none of the above, etc.) legally relevant to the assessment of what happened on the boats? Indeed, it is certainly politically relevant, but legally, we have the army of one state attacking the ship of another state in international waters. What’s that got to do with Gaza?

This is what I said in 2014:

“Of course, the flotilla’s aim was to break the blockade. But this is a political aim and it does not necessarily make it legally relevant. If not, the relevance of the Israel-Palestine conflict as a contextual element would entirely depend on the subjective claims of the people on the boat, which is surely a little vague. Moreover, by that standard, if Israel were to board a ship just leaving the territorial waters of France of Argentina (thousands of kilometers away), heading to Gaza with the claimed objective of breaking the blockade, would the reasoning still work? I doubt it. In light of this, the single paragraph proposed by the OTP on the nexus to the armed conflict (§128) is not entirely satisfactory.

Of course, I am probably missing something obvious here. Too many intelligent and competent people in too many institutions have reached this conclusion for there to be a problem. As the famous breakup line goes: it’s not you, it’s me! So I look forward to readers out there to enlighten me…”

I’m still waiting for the light…

The EU supports Bashir’s arrest by South Africa… and get the law somewhat confused

The EU has just released a press statement supporting the idea that South Africa should arrest Bashir and send him to the ICC. The statement reads as follows:

Committed to preventing crimes against humanity, war crimes and genocide, and to avoiding impunity for the perpetrators of such crimes, the EU confirms its continuing support for the ICC and its work.

Full cooperation with the ICC is a prerequisite for the Court’s effective functioning.

In accordance with established approach of the EU and its Member States, the EU expects South Africa, a founding State Party of the Court, to act in accordance with UN Security Council 1593, in executing the arrest warrant against any ICC indictee present in the country.

This press release shows some of the confusion on the applicable legal framework when it comes to the ICC and Security Council referrals. Indeed, a Security Council referral simply allows the Court to exercise jurisdiction in a given situation and from then on, it is the Rome Statute that kicks in. Therefore, if South Africa were to arrest and surrender Bashir (which I think it doesn’t have to as argued previously), it would be acting “in accordance” with the Rome Statute, not the UN Security Council Resolution. In fact, if you read the UNSC Resolution, it does not create any obligations for any State other than Sudan (whether it could in fact create obligations even for Sudan under the Rome Statute is another debate).

So, irrespective of the political dimensions of this situation, it seems that as usual, there is not much attention to being precise on the law…