Self Promotion: Who is in charge of the charges at the ICC?

Posted on December 21, 2011 | Leave a comment

I’ve just published on SSRN the draft of my upcoming chapter in the THE ASHGATE RESEARCH COMPANION TO INTERNATIONAL CRIMINAL LAW: CRITICAL PERSPECTIVES (William A. Schabas, Niamh Hayes, Yvonne McDermott and Maria Varaki, eds.).  In it, I consider the powers of the various organs of the ICC in defining, amending and recharacterizing the charges, especially the infamous Regulation 55 which was at the heart of the controversy surrounding the attempt by the Trial Chamber in Lubanga to introduce new charges of sexual violence during the trial and which I commented on here and here.


Here is the abstract:

One issue that has come to the fore in the early practice of the International Criminal Court (ICC) is the question of who determines the content of the charges against an accused individual and the scope and timing of any amendments that are to be made. The importance of this issue is threefold. First, having a clear framework for the amendment of charges is important from the point of view of the accused. If he or she is to have adequate time for the preparation of the defence, it is important that there be some certainty as to the charges resting against him or her, without running the risk of multiple amendments. Second, the issues are illustrative of the more general concern in the ICC Statute to achieve a balance between legal certainty and judicial efficiency. The former requires that as few amendments as possible be allowed the more advanced the proceedings are, whereas the latter opens to door to some flexibility to avoid acquittals based on a faulty determination of the charges. Third, as will be illustrated in the course of the chapter, it more generally highlights the difficult balance of power to be struck between various organs of the Court, not just between the Prosecutor and the Chambers, but also between the Pre-Trial Chamber and the Appeals Chamber, and begs the question as to whether the judges of the ICC ought to have the final say in matters that might seem to relate more to a legislative rather than judicial function.

Please don’t hesitate to circulate, and all comments are welcome!

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Posted in Bemba, ICC, lubanga

A Sad Hommage to Antonio Cassese: The ICC’s confused pronouncements on State Compliance and Head of State Immunity

Posted on December 15, 2011 | 7 comments

This week, Pre-Trial Chamber I of the International Criminal Court has been busy reprimanding African States for non-cooperation in executing the Arrest Warrant against Sudan President, Omar Al Bashir. On Monday it issued a decision on the failure of Malawi to comply and yesterday, a similar decision was issued in relation to Chad (decision in French).

This could have been a fairly innocuous event. In the past 18 months, the PTC has on several occasions taken notice of the presence of Bashir in an African country (Tchad and Kenya in August 2010, Djibouti in May 2011). Each time, in short decisions, the judges found that these countries had not complied with their obligation under the statute as State parties to enforce the arrest warrant against the Sudanese president. So the two decisions this week would seem to fall in line with these previous findings, a normal day at the office so to speak.
Of course, the question still remains whether State parties are 1) actually under an automatic obligation under the Statute to execute an arrest warrant and 2) whether the general requests for the arrest and surrender of Bashir to all States that the Pre-Trial Chamber issued in 2009 and 2010 (respectively here and here) are actually in conformity with the Statute. I have already argued that the answer is negative on both counts because Article 89(1) provides that you need a request from the Court to have an obligation under the Statute and that, for the sentence “…any State on the territory of which that person may be found” (as opposed to just “any State”) to make any sense, the request must be specific and specifically justified, rather than be general and preemptive. This is confirmed by the very specific information that must be provided with the request under Article 91.
But again, the two recent decisions would generally be old news already if they had followed the exact same approach as previous ones.

However, the Pre-Trial Chamber has decided to be bolder this time and address the question of head of State immunities, both under Article 27(2) of the Statute and in relation to Article 98(1) of the Statute, and the articulation between the two. The reasoning of the Chamber is so confused and unsatisfactory that it is difficult to know where to start.

Before I move to the heart of the discussion, I wanted to point a minor procedural issue, but that is illustrative of the general sloppiness of the drafting. When a Chamber makes a finding of non-compliance with a request for cooperation under Article 87(7), Regulation 109 of the Regulations of the Court (drafted by the Judges themselves) provides that the President shall refer the matter to the ASP or the UNSC. However, the Malawi decision ignores this and orders that the Registrar transmit the decision. This is all the more surprising, that the Chad decision (in French) actually uses the correct procedure and explicitly refers to Regulation 109 to ask the president to transmit the decision. This inconsistency comes up, despite the bench being composed of the same judges. Apparently, the francophone Assistant Legal Advisers at the Court are more knowledgeable than the anglophone ones…

But let’s now come to the question of Articles 27 and 98(1), relating to head of State immunities.

  • The discussion of Article 27

First of all, the judges consider the issue of Immunity of Heads of States in International Proceedings (§§22-36 of the Malawi decision. In the remainder of the post, I will refer to this decision, which is broadly reproduced in the Chad one).
Going back as far as 1919, the PTC refers to a string of international judgments (Nuremberg, Tokyo, ICTY and even ICJ), statutes of international tribunals (ICTY, ICTR, SCSL) and other documents (Principles of International Law recognised in the Charter of the Nuremberg Tribunal, Draft Code of Crimes against the Peace and Security of Mankind) to conclude that (§36):

“Therefore, the Chamber finds that the principle in international law is that immunity of either former or sitting Heads of State can not be invoked to oppose a prosecution by an international court. This is equally applicable to former or sitting Heads of States not Parties to the Statute whenever the Court may exercise jurisdiction.”

 The Chamber seems to think that the sheer number of references will make their argument compelling. But this is a typical judicial application of the “cheerleader effect“: all the references look good together, but taken separately might not be so convincing. Indeed, the references actually concern two distinct issues. The first one, which is dealt with in Article 27(1) of the ICC Statute, is whether official capacity can remove the criminal responsibility of a person. The second one, dealt with under Article 27(2) of the ICC Statute, is whether head of State immunity can prevent an international Court from exercising jurisdiction. There is no debate about the first question in the current case, only about the second one so the following references are just irrelevant: Statute of the IMT, Statute of the Tokyo Tribunal, UN Principles, Code of Crimes, ICTY Statute, ICTR Statute and SCSL Statute. Which leaves us with more or less one relevant source, which is the ICJ Arrest Warrants Case.

In any case, from a methodological point of view, it is puzzling why the Chamber actually engages in these developments. As is often the case in international criminal decisions, there is a very “flexible” approach to the sources of law. The PTC does not, at any point, justify why these references are even invoked. This is especially troubling at the ICC, because the drafters of the Rome Statute, contrary to those of others Statutes of international criminal tribunals, actually chose to include an explicit provision on the Applicable law, which clearly provides (Article 21(1)(a)) that the Statute, RPE and Elements of Crimes are the first documents to be considered. Article 27(2) clearly says that head of State immmunity “shall not bar the Court from exercising its jurisdiction over such a person”. There was no reason whatsoever to give a lecture in the history of international prosecutions to reach the conclusion that is already mandated by the Statute.

One could of course question whether applying 27(2) to the Heads of States of non-State parties is contrary to international law, but that is not the judges’ problem. I’ve argued elsewhere that the whole UNSC referral mechanism is somewhat contrary to international law. But once the case actually comes before a Chamber, the judges are bound by the Statute and should apply 27(2). Should this mean that the ICC, as an institution, would be violating international law is not the judge’s concern. Sudan should raise the question of the responsibility of the ICC, as an International organization, or even its member States, which would be a nice case of Shared Responsibility. But again, not an issue for the judges. In this sense I actually agree with the Tadic Trial Chamber, which refused to consider the legality of the creation of the ICTY. It was not its function to do so.
But I digress. In a nutshell, the PTC could have just referred to 27(2) and moved on (although the whole discussion on 27(2) is in my opinion irrelevant, but more on that later).

  • Articulation with 98(1)

Article 98(1)provides that:

“The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.”

 The Chamber considers that there is a tension between 27(2) and 98(1) (§37). To solve this tension, it further pushes its reasoning in relation to international prosecutions of heads of States. Stating that there has been an increase in Head of State prosecutions by international courts (citing Taylor, Gbagbo and Gaddafi), the PTC says that this has gained “widespread recognition as accepted practice” (§39). This practice is further illustrated by the ratification by 120 States to the Rome Statute (and therefore to article 27(2)) and by the fact that some Security Council members who have not joined the Court have agreed to refer situations to the Court. The judges therefore conclude, in what can only be described as “armchair legal reasoning”, that (§42):

“The  Chamber  considers  that  the  international  community’s  commitment to rejecting  immunity in  circumstances  where  international  courts seek  arrest for international crimes  has  reached a critical mass. If it ever was  appropriate to say so, it is certainly no longer appropriate to say that customary international law immunity applies in the present context.”

 There would certainly be a lot to say about the Chamber’s approach to determining the content of customary law, although it does at least refer to State practice, which is far less egregious than what the Special Tribunal for Lebanon did last year, when referring to the practice of international courts not contested by “States, non-state actors and other interested parties”, to determine the existence of a customary norm. The key point, however, is that the practice that is referred to, is only evidence of the potentially customary nature of Article 27(2). It does not, as the Court affirms, relate to the question of the arrest and surrender  of an accused.

In this sense, I believe that there is in fact no tension between 27(2) and 98(1), because these two provisions are not about the same thing! Article 27(2) relates to the jurisdiction of the Court itself and 98(1) to obligations of States in relation to other States in general international law. Moreover, if the drafters of the Rome Statute believed that the inclusion of Article 27(2) meant automatically that there was an obligation to cooperate with the ICC irrespective of head of State immunity of non-State parties, why include Article 98(1) at all? It would make no sense.

So clearly, the Court has in fact brought into the discussion Article 27(2), when it should have kept its discussion limited to 98(1). The only relevant reasoning that would have been acceptable was whether, given the phrasing of 98(1), there is a crystallizing rule under international law that head of State immunity does not carry in the national context, which would therefore remove the difficulty with 98(1). This would have involved a more serious discussion of the Arrest Warrant Case, and evolution since then. But again, this is sadly not what the Chamber did, instead rendering a muddled and inappropriate decision.

This is all the more inappropriate given the fact that the Chamber, in considering the obligations of Malawi, makes a key finding (even if it had been said before) on the application of Head of State immunity to a defendant in a procedure that is not designed for that, which raises questions in relation to the rights of the defense, given that the Office of the Public Counsel for the Defense does not seem to have been involved in the discussions and that this is not a decision which is subject to appeal under Article 82. In that respect, one can even question whether the term “decision” is appropriate for such a document. Indeed, Article 87(7) does not even seem to describe a formal procedure. It refers to “a finding” of non-compliance, rather than a “decision”, whereas the Statute uses the word “decision” in most of the Statute, and only uses the term “finding” twice, in relation to evidence, and in the context of Article 87(7). The French version, which says that the Court “peut prendre acte” of the non-compliance, leans even more to the less formal nature of the determination. As for the question of Regulation 109, this might seem like a detail, but it does contribute to the general impression of a less than precise job that is reflected in the heart of the discussion, as illustrated previously.

  • A sad hommage to Antonio Cassese?

The explicit reference to the late Antonio Cassese, not only in a footnote, but in the main text (§34), can only mean that this decision is seen as an hommage to one of the most active proponents of judicial creativity. But it is likely that the former President of the ICTY and STL, although he might agree with the final result, would himself cringe at the less than convincing legal reasoning of the Pre-Trial Chamber.

This Decision might be a testimony that his legacy of creativity lives on, but without his talent, judgments that were, despite the criticism that could be leveled at them, judicial symphonies, when crafted by him, sound like children randomly hitting the keys of an out-of-tune piano, when crafted by others.

UPDATE 1: For other critical assessments of the decisions, see Professor Schabas and Dapo Akande, who are both skeptical about the court’s reasoning.

UPDATE 2: in relation to Regulation 109, there has been a corrigendum to the original decision which correctly asks the President (and not the Registry) to refer the matter to the ASP and UNSC.

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Posted in bashir, ICC, soudan

The ICC should resist its "Boy Scout Mentality" in relation to Vatican "Crimes against Humanity" for child abuse

Posted on September 15, 2011 | Leave a comment

Cross posted on the Invisible College

Earlier this week, the Center for Constitutional Rights (CCR) submitted, on behalf of the Survivors Network of Those Abused by Priests, a communication  to the International Criminal Court requesting that an investigation be opened for Crimes against Humanity committed by high-level Vatican officials.
In a nutshell, the submission argues that there is evidence of widespread and systematic abuse (both rape and torture) of a civilian population by priests in a number of countries and that the Vatican, and more specifically Joseph Ratzinger, both in his former capacity as Prefect of the Congreation of the Doctrine of the Faith, and current capacity as Pope Benedict XVI, should be held liable for covering this up, even to the point of promoting it (this last point is a little ambiguous and I’ll return to it later).

This idea has been floating around for a while now. Geoffrey Robertson published a book last year arguing for such an approach. I remain skeptical however and think that there are a number of difficulties with the submission.

As a preliminary remark, one should remember that the Prosecutor is under no obligation to proceed from here, neither to open a preliminary examination, nor, of course, to open a formal investigation. The submission by the CCR does not “trigger” the jurisdiction of the ICC, as would a referral by a State Party of the Security Council, and the OTP is not even under an obligation to respond to the submission (although it claims that, for reasons of transparency, it generally will “aim” to respond to communications).

I would like to comment on three aspects: jurisdiction, the scope of the situation, and finally on whether the crime is actually constituted.

  • Jurisdiction

First of all, it should be pointed out that the Prosecutor, should it proceed with an investigation, would only be able to look into crimes that were committed after the entry into force of the Statute in July 2002. Moreover, he will only be able to look at alleged crimes that took place, either on the territory of a State Party or by a national of a State Party. In this sense, it explains why the Communication includes the United States and one alleged american perpetrator, to the extent that the crimes in the US could have been committed by nationals of State Parties and that the American Citizen might have committed crimes on the territory of State Parties.

  • The scope of the situation

Second of all, the submission raises the question of the scope of the “situation” that would be the object of an investigation. Traditionally, situations have been expected to be limited in some way, especially from a territorial perspective. Up to now, this has been the case for all the situations looked into by the Court. The CCR submission, if it was followed would therefore be a first in the history of the Court, by defining a situation through a unity of crimes and alleged perpetrators exclusively, rather than through a territorial criteria. It should be pointed out that this is an implicit consequence of the reasoning of the CCR, because they don’t actually explicitely deal with this issue. Three brief comments on this.
1) One should remember that the ICC Statute does not define what a situation is. Therefore, as I’ve discussed before in relation to the Libya Referral, any challenges to the scope of a situation faces this difficulty of having no statutory guidelines on which to base such a challenge. The case-law has suggested some limitations to the scope of a situation, but these are vague enough for anybody to argue that they could be extended to cover the events in the current submission.
2) It remains that there might be a difficulty with the submission when one considers not so much the concept of “situation” in general, but consider it in relation to the other ICC distinction, namely a “case”. Indeed, I might not be able to define a situation, but what the CCR is describing in its communication certainly appears to me to be a “case”: they identify a crime, the perpetrators and the mode of liabity. In this sense, the OTP, even should it accept a broader approach to a “situation”, would be in violation of the Statute and the rights of the defense should it define the situation in the terms used by the CCR.
3) Which leaves the question open of how this situation would be phrased. One option would be to open a distinct investigation into each of the countries named by the CCR, but in practice, it would still require that it be shown that the crime is constituted based on a transnational policy.

  • Is the alleged crime of “Crimes against Humanity” actually constituted? (and another rant on the confusion between HR and ICL…)

Which brings me to my third point : there is the major issue of whether Crimes against Humanity are indeed constituted. There is no doubt that the abuse in the catholic church has been widespread and systematic. Where the communication fails to convince, is on the organizational element required by the Elements of the Crimes in the following way:

“Attack directed against a civilian population”[…] is understood to mean a course of conduct […] pursuant to or in furtherance of a State or organizational policy to commit such attack. […] It is understood that “policy to commit such attack” requires that the State or organization actively promote or encourage such an attack against a civilian population.

A footnote to this paragraph specifies that:

A policy which has a civilian population as the object of the attack would be implemented by State or organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of governmental or organizational action

How does this apply to the current situation? For one, no one seems to be arguing that the Vatican set up an actual policy to perpetrate widespread and systematic abuse against persons in the care of priests. It is their “deliberate failure to take action” which is put forward. However, even if the conduct of Church authorities is subject to criticism, I think it falls short of showing that it was “consciously aimed at encouraging such attack”. In this sense, when the communication says that the Vatican has been dealing with such situations in ways that ensured such violence would continue”, I think it still does not establish intent, even by omission.

In relation to this, the reasoning of the CCR is even more confusing as regards the modes of liability put forward. Indeed, the CCR is clearly confusing the constitutive elements of the crime and the modes of liability. Let me explain. The CCR considers three possible modes of liability: superior responsibility (Article 28), contribution (25(3)(d)) and aiding and abetting (25(3)(c)). All these modes of liability have in common to be “subsidiary” to the main crime, which still has to be constituted. But the CCR does not do that. It would have to show that independently of the Vatican, its officials are claimed to “only” be the accomplice, the priests that committed the abuse acted under a plan or policy that they had set up, which, again, is not argued here. Indeed, without an established Vatican policy there is nothing that links the individual cases of abuse in a sufficiently organisational way to constitute a crime against humanity.

The consequence of this is that the Vatican officials are either responsible for “direct” commission under 25(3)(a), or not responsible at all. But they cannot be held complicit for a crime that is not constituted independently  of them. Which leaves us with one, arguably progressive, but at least coherent way of putting the case forward. It is the systematic cover up of this widespread abuse that constitutes the crime against humanity, not the abuse itself. This would mirror the development under human rights law of positive obligations, whereby if the State does not prevent the violation of a right under the ECHR, for example, by a third party, it is held responsible for the violation of that right. This reasoning would at least solve the issue of the modes of liability and the constitution of the crime.

However, and regular readers of this blog won’t be surprised, I am not in favour of such an approach. This communication illustrates once again the slow (and apparently inevitable) blurring of the line between human rights and international criminal law. For me, widespread and systematic human rights violations do not necessarily constitute crimes under international law. These are related, but conceptually distinct domains that should remain distinct. In relation to this, it is unsurprising that the Communication relies heavily on the ICC Pre-Trial Chamber decision that authorized the opening of the investigation in the Kenya situation. I criticised it at the time, agreeing with the dissenting opinion of Judge Kaul, for broadening too much the scope of Crimes against Humanity. I expressed similar doubts in relation to the reference to Crimes against Humanity in the Libyan Arrest warrants. In a way, you can’t blame the CCR for its communication. It’s a direct consequence of all-encompassing conceptually blurred approach to crimes against humanity by the ICC judges themselves that is to blame. The conduct of the Church in past decades is certainly appalling, requires the utmost attention and should be dealt with accordingly, but, but I remain convinced that the ICC is not the right forum.

Hopefully, the Prosecutor and judges will not fall victim once again to the “boy scout mentality”, which leads them to systematically want to save the world with two twigs and a piece of rope, even if someone else might have a far better set of tools…

UPDATE: Of course, another angle to approach this is from a PR perspective. It is clearly the ambition of the CCR to get media attention over the issue. This plays into the general trend of trying to get the ICC involved in every situation, to get some news coverage. Indeed, no situation seems to escape this trend (Palestine, Syria, Tunisia…). As discussed above, I disagree with this conceptually, but I have to admit that it is certainly effective. Thanks Joe for pointing this out.

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Posted in Crimes against Humanity, ICC, Vatican

Chutzpah at the ICTY: OTP motion to severe Mladic Indictment

Posted on August 17, 2011 | 4 comments

I have been offline for a while now, too busy in the “real world” to blog on some of the issues that came up in recent months.

However, I couldn’t really resist commenting on this piece of news: the ICTY Prosecutor filed a motion yesterday requesting a severance of the Mladic indictment to do two separate trials. This is the OTP’s overview of its own motion:

1. The Prosecution seeks leave to: (a) sever the Second Amended Indictment (“Indictment”) against Ratko Mladic into two indictments (“Srebrenica” and “Sarajevo, Municipalities and Hostages”); (b) have the Srebrenica indictment tried first, followed by the Sarajevo, Municipalities and Hostages indictment […]

2. The Prosecution has considered several options for proceeding against Mladic. Factors which have been taken into account include Mladic’s arrest at this late stage of the Tribunal’s mandate, the need to ensure justice for the victims, the desirability of commencing a trial as soon as possible, and the need to plan for the contingency that Mladic’s health could deteriorate. In the circumstances, severance of the Indictment and conducting two focused trials will best serve the interests of justice. 

3. Such an approach will maximise the prospect of justice for the victims, enable more effective management of the two separate trials and best allow the proceedings to be adapted in case of unforeseen contingencies. It is also consistent with the Rules of Procedure and Evidence (“Rules”) and will not unfairly prejudice the Accused’s rights.

Several brief thoughts :

1) On the substance of the indictments, the Prosecutor justifies the possibility of a severance by basically saying that there was no overarching Joint Criminal Entreprise (JCE) in Bosnia, contrary to what he had argued in the amended indictment of last June (§5):

Radovan KARADZIC and,  as of  12  May  1992,  Ratko  MLADIC,  were  key  members  of  an  overarching joint criminal  enterprise  which  lasted  from  at  least  October  1991  until  30 November  1995.  Their  objective  was  the  permanent  removal  of  Bosnian Muslims  and  Bosnian  Croats  from  Bosnian  Serb-claimed territory  in  BiH through crimes charged in this indictment.

The story now is that the JCE to eliminate the Bosnian Muslims in Srebrenica is unrelated (or in the words of the Prosecutor “not part of” and “not a foreseeable consequence of”) to the JCE to permanently remove all Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory. This basically looks like confirmation from the prosecutor that Srebrenica was a one-off genocidal event… or is it? because there are also counts of genocide under the proposed Municipalities indictment. So if I understand correctly, there is genocidal intent in both cases, but they are unrelated… I find that a little confusing. As Professor Schabas was quoted saying in a recent Economist article: “either there was a general bid to exterminate or there was not” and severing the two seems extremely artificial.

2) I won’t really comment on the practical justifications given by the prosecutor to hold two trials instead of one (interests of justice, interests of victims, manageability…). One can only wonder why, if these issues are so important, this has not been the practice in the past? I was under the impression that the ICTY was always acting in the interests of justice and of the victims, and that the efficient administration of justice was a permanent key consideration for the Court. But I must have been mistaken.

3) What puzzles me the most is the Procedure and timing of the motion. As the Prosecutor’s immediate recourse to “inherent powers doctrine” shows (§21 of the motion), there is no actual textual basis for the severance in the founding documents. I generally don’t like the use of this shaky doctrine by international criminal tribunals, but let’s play along for the sake of argument.
The real issue is timing. I find that this motion shows the  chutzpah of the Prosecutor, and ultimately of the ICTY, should the severance be accepted. Indeed, let’s look at the timeline for a second. The first indictment against Mladic was filed some 15 years ago.The Prosecutor, filed an revised indictment in May 2010, which was only approved nearly a year on in May 2011, so that gave him time to reconsider his approach. More importantly, Mladic was rushed through the initial appearance (with the playing-to-the-media-i’m-reading-ALL-the-charges show from Judge Orie)  and the ridiculously hasty pleading proceedings (with the removal of Mladic from the courtroom at his own request), his request for additional time to read and understand the charges having been denied. Everything was rushed along, probably in the “interests of justice”. And now, the Prosecutor suddenly decides to change his mind and hold 2 trials, because of these same “interests of justice”? Whatever the practical merits of that solution, I find the Prosecutor’s conduct quite careless, especially in light of the ICTY’s attitude towards Mladic, which seems to indicate that a Court having conducted dozens of trials is suddenly having first date jitters when it comes to this defendant.

4) On a final and related note, I’m still in favour, at least in theory, of joining the Karadzic and Mladic trials, especially if Srebrenica is tried separately. On top, from what I understood, the Karadzic Chamber has not even started hearing evidence on Srebrenica (someone correct me if I’m wrong). As I’ve said elsewhere, these this is essentially the same case, from a narrative point of view. If the “interests of justice” are so important, then I believe both cases should indeed be joined.

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Posted in icty, karadzic, mladic

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

Posted on June 1, 2011 | 1 comment
In my last post, I considered one of the political aspects of the indictment against Khaddafi in relation to the Peace vs. Justice debate.
Today, some quick thoughts on the legal dimension of the request for arrest warrants. The situation in Libya indeed raises a number of interesting issues which I am particularly fond of. I won’t delve  into the question of the actual legality of security council referrals. I’ve said in the past that I was skeptical about the mechanism as a whole, because i don’t believe the SC has the power to bind a state not party to a treaty to that treaty, and more particularly discussed the legality of Resolution 1973 here (don’t forget to read the comments section, it raises some quite interesting ideas on the extent of Security Council powers. 
I also will not insist on the issue of head of state immunity that is raised here, for the second time at the ICC after the Bashir case. Dapo Akande, over at EJIL Talk! argues that because SC resolution binds Libya to the Statute of the ICC, it must abide by article 27 which removes immunity. Needless to say, given my previous remarks, that I disagree with this analysis. At best, SC 1973 obliges Libya to cooperate with the Court, but within the limits of its international rights and is not bound by the actual content of the Statute.
  • Third State obligations in relation to arrest warrants

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

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

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

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

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