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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…

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.

 

 

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…

Does South Africa have an obligation to arrest and surrender Bashir to the ICC? no

I’ve been unable to blog in the past few months due to work, but I could not avoid the ongoing story about Sudan’s Bashir current visit to South Africa for the AU summit and whether he will/should be arrested to be sent to the ICC. A few hours ago a South African judge ordered that Bashir not leave the country until it rules on whether to send him the The Hague. This is obviously a momentous decision politically, and will be even more so if he is indeed arrested.

What interests me here is the legal situation under international law and the Rome Statute (I should point out that I am not familiar with South African law and whether under domestic legislation there would be an obligation to arrest and surrender Bashir). In that respect, the twittosphere is replete with claims that South Africa is indeed under an obligation to arrest Bashir.

The ICC has said so much on a number of occasions. Regular readers of this blog will remember how in 2011, the ICC unconvincingly relied on a flimsy customary law argument to conclude that Malawi was under an obligation to arrest Bashir. In 2014, the ICC changed its approached and adopted a marginally more compelling argument based on the compulsory nature of Chapter VII resolutions and repeated it just a few days ago.

However, I think this is legally inaccurate, or at least not as clear as everybody says it is, as I argued in a paper that was just published in a new edited collection on the ICC (you can download the SSRN version here). I am not going to reproduce the whole argumentation here and invite you to read the paper.

The bottom line of my argumentation is that the fact that the situation of Darfur was referred to the ICC through a UNSC Resolution does not change the fact that the original source for the removal of immunity, if any, is the Rome Statute itself and more particularly its article 27. As a result, invoking chapter VII powers does not solve the problem that Sudan is not a party to the Rome Statute and has therefore not accepted the removal of Bashir’s immunity for the purposes of ICC prosecution. Moreover, Article 98 of the Rome Statute requires that existing rules of immunity under international law be respected when cooperating with the Court. As I believe, contrary to what some NGOs and some scholars would like us to think, that there still exists an absolute immunity for sitting heads of state under international law, even for international crimes, South Africa is barred from arresting Bashir.

As I note in my article, the question of immunities and the ICC, and more generally the question of immunities and international crimes, is a typical example of wishful thinking human rights activism, with a massive disconnect between the reality of international law and the way some would prefer it to be. That is not in itself a problem. There is no harm in advocating for change. What I find disingenuous is when it is argued that things have already changed. That is simply not true.

I don’t know if anyone in the South African judiciary reads this blog, but they have until tomorrow to get up to speed on the actual applicable law (from me and others) in order for any decision they adopt to be legally accurate, if not politically fashionable. To be continued…