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…

International Justice Tribune Podcast on ICC withdrawals and Africa Bias

For those who are interested, I recently did an interview for a new International Justice Tribune podcast series on recent developments at the ICC, including the reason why some States are leaving the Court and whether the ICC is biased against Africans. The discussion also goes into the political motivations of referrals and budgetary issues.



Some additional thoughts on African withdrawals from the ICC

It has been a few days since Burundi and South Africa announced that they were withdrawing from the ICC. I commented on the issue when first hearing the news. Since then, Gambia has joined these two States (and some predict that more will follow). Since then, there has been a wave of international reactions which have triggered the following reactions of my own.
  • does this issue deserve such reactions?
I must say that I’m particularly surprised at the international reaction to the withdrawals of Burundi, South Africa and now Gambia. Of course, it’s a major event for the ICC itself, but that this not necessarily mean that it would get attention from mass media as well. This shows that, on some level, the ICC has managed to make itself part of the conversation, which I suppose it can be congratulated for.
But it also shows that this is all symbolic and an exercice in PR. Indeed, arguably, the concrete effects of the ICC in world affairs since its creation is incidental. At best it has deflected attention from actual discussions about stopping the commission of mass atrocities (as I argued here in relation to Syria).
I know some friends which have researched this issue extensively might disagree, but I think that if you did a counterfactual scenario of how things would be in the world if the ICC did not exist, I’m afraid the world, and even the situation countries where the ICC is actually investigating, would sadly look more or less exactly as it does now…
A number of reactions share the hyperbolic idea that these African States are betraying victims around the world. This is a peculiar statement on a number of levels.
First of all, it suggests that the ICC is solely about the victims. For example, this is how the EU Statement on the issue describes the ICC: ” The International Criminal Court (ICC) is a key institution to assist citizens achieve justice when confronted with the most serious crimes, where this is not possible at the national level”. Unsurprisingly for those who follow this blog regularly, I disagree. The ICC is not some administrative body that “assist citizens achieve justice”.  Criminal law is triggered in the name of a community as a whole, not individual victims. Ironically, as I pointed out on twitter, claiming to bring justice to millions of victims, while a PR victory on some level (see above), is probably the biggest PR mistake that the ICC has made. The ICC, even at the best of its efficiency, will never bring justice to millions of victims worldwide. It cannot possibly do that, especially if by justice, we mean something broader than just criminal punishment (see the difficult discussions on reparations in the Lubanga and Katanga cases). As aptly put by Thijs Bouwknegt:
Second of all, behind this moral judgment, there is some kind of implication that the ICC is the only international legal instrument dealing with international crimes. That is of course not the case. The international legal framework applicable to international crimes is still there, more particularly, the States that have withdrawn from the ICC still have a certain number of duties to prosecute under customary law for a vast array of international crimes. And as mentioned above, it’s not like the ICC had achieved that much in the past 15 years…
Third of all, when it comes to the ICC, if anyone has betrayed victims, it’s the OTP, not individual States. Indeed, in 14 years of existence, the ICC has rendered 5 judgments for 4 convictions, which have all been frought with controversy in terms of the choice of charges (See Lubanga and the question of sexual violence and the Al Madhi case who was charged with what is essentially a victimless crime), quality of investigations and evidence (see Lubanga and Katanga) or poor legal construction of the case (see Katanga and Bemba). And all this without even mentioning serious fair trial concerns. It’s not South Africa’s fault that the OTP has decided to give Colombia as much time as possible in preliminary examination, while rushing head first into other situations. It’s not South Africa’s fault that Nigeria has been under preliminary examination for 6 years now or that it took 3 years for the OTP to issue a one-page rejection of the 2009 Palestinian 12(3) declaration that a first year international law student could have written.
  • Do ICL commentators have to have a position?
One last point: it seems that a lot of commentators don’t only comment, but also express (explicitly or implicitly) a  clear opposition to withdrawals. I was not going to react to that, because I’m used to it by now, but then I saw this extremely interesting question by Barrie Sander on Twitter:

I think this question reveals a real problem in a international criminal scholarship: that a number of authors have a normative bias towards the system, be it positive (most of the time) or negative (on occasion). This is even true of some Crits, who more often than not do have some normative agenda, as I’ve argued here.

I’ve always thought that scholars should not have a normative agenda when analysing particular questions. What I mean by that is that their possible normative preferences (which everybody has I suppose) cannot be a methodological tool to research a question.

In line with this, I would say that I neither “support” or “oppose” withdrawal from the ICC. I personnally do not care what these States do. The real question is how I assess their conduct, i.e, what methodological/disciplinary angle do I adopt to comment on what is going on. For example, as I’ve said before, I consider that from an international law perspective, the case law of the ICC is contrary to customary law in relation to immunities. Which means that I agree, from a legal point of view, with South Africa’s position that abiding by ICC case law could lead it to violate other obligations under international law. But it does not mean that I “support” their withdrawal from the Court. Another example, suggested on twitter by Barrie Sander, is that one can very well challenge some assumptions about how ICL works and what is should or can achieve, without being “for” or “against” ICL from a normative point of view. Our job is to identify the logical inconsistencies of a field, not to support or oppose it. In the same way, it’s not because I find some of the critics of South Africa misplaced that I “support” South Africa…

This question clearly goes beyond the issue of some African countries withdrawing from the ICC, but it is a fundamental question because it ultimately, I believe, affect the credibility of the commentator and more importantly the relevance of the analysis put forward. Also, normative biases often go hand in hand with a complete absence of self-reflection and doubt (which is at the heart of the scientific method according to Descartes, among others), which can lead to blindness about actual challenges to that particular normative project, which in turn can only weaken it. As I pointed out in my previous post, I think that the arrogance of some defenders of ICL about its inevitability and moral superiority will ultimately be its downfall… a downfall I neither “support” nor “oppose”…