Tag Archives: icc

Burundi withdraws from the ICC: what next for a possible investigation?

On the 26 october 2017, Burundi’s withdrawal from the Rome statute became effective, making it the first State ever to leave the Court. Strangely, there has been no official declaration from either the Court or the OTP at this point.

Al Jazeera reports that : “Burundi’s withdrawal doesn’t affect the preliminary examination of the country’s situation already under way by the court’s prosecutor, ICC spokesman Fadi El Abdallah told The Associated Press.”.

Moreover, Benjamin Durr got the following email from the Public Affairs unit of the ICC:

ICC reaction to burundi

Despite what some have called the defeaning silence coming from the OTP, the withdrawal is widely commented upon by ICL observers and stakeholders who, for the most part, regret that Burundi has chosen the path of impunity. The withdrawal raises a certain number of legal questions that have been at the heart of discussions on the social media in the past few days and which I want to address briefly here.

  • What happens to the existing preliminary examination?

As is well known, Burundi has been under a preliminary examination by the OTP since April 2015. From a legal perspective, the withdrawal does not affect the preliminary examination. It does not put an end to it automatically, nor does it force the OTP to end it.

The real question is whether the withdrawal affects the possibility for the OTP to actually open a formal investigation at a later stage, which is my next point.

  • Does the withdrawal affect the capacity of the OTP to request the opening of a formal investigation?

The answer to this question depends on the interpretation one adopts of Article 127(2) of the Rome Statute, which provides that:

Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.

I should note at this point that I’m assuming that no steps have indeed been taken by the OTP to obtain a decision from a Pre-Trial Chamber to be able to open a formal investigation. There has been some speculation on whether the OTP might have made such a request confidentially. However, this has not been done in the past to my knowledge (Kenya, Georgia, Côte d’Ivoire), and I wonder what would be the justification for that.

If the OTP has indeed proceeding confidentially, then one might very well consider that the pending decision could indeed be a matter under consideration by the Court for the purposes of Article 127(2).

If no steps have been taken, I refer you, for the interpretation of Article 127(2), to the excellent post done by Alex Whiting last year and my own thought on the matter which I published here at the time.

I noted in that respect that:

The key issue is what is covered by the expression “any matter already under consideration by the Court”. Alex Whiting makes the argument that this expression is broad enough to cover preliminary examinations by the OTP. Possibly, he is right from a linguistic point of view. However, I have a difficulty with the idea that such an informal phase as a preliminary examination (which might simply involve an OTP investigator sitting in front of his computer in The Hague downloading HRW and Amnesty International reports) might have such massive consequences as trumping the decision of a State to withdraw from the Rome Statute.

I also noted that:

One last point that could favour a more limited, rather than broad interpretation of Article 127(2), is the formulation used in other versions of the Rome Statute. For example, the French version of the Statute says that: “le retrait n’affecte en rien la poursuite de l’examen des affaires que la Cour avait déjà commencé à examiner avant la date à laquelle il a pris effet”. The word “affaires” (cases) seems narrower that “any matter”. This is obviously not decisive and a comparison in the other official language could be interesting.

I continue to believe that one year later. I don’t believe a PE initiated unilaterally by the OTP, with no particular applicable legal framework and no direct legal consequences can decently be considered as a “matter already under consideration by the Court”. The OTP is not the Court, it is one organ of the Court

[UPDATE: Over at opinio juris, Kevin Jon Heller provides a very useful detailed analysis of whether the “Court” in Article 127(2) refers to the judiciary, or includes the OTP as well. I think he convincingly shows that one cannot assume that Article 127(2) applies to matters under consideration by the OTP, rather than more strictly by the Judges by listing a number of provisions of the Rome Statute where the “Court” refers to the judiciary in a more narrow sense when it comes to procedural matters.]

The OTP is simply doing its basic job of looking at various events going on worldwide to see if actual formal action under the Rome Statute is required. That cannot possibly have as a consequence to negate the effect of Article 127(2). If such a broad interpretation of Article 127(2) were to be adopted, nothing would prevent the OTP from announcing that it is conducting preliminary examinations into all State parties, thus making sure that there would be no legal consequences of a withdrawal whatsoever. That seems a little far fetched.

It should also be noted that nothing prevents the OTP from technically opening an PE into a situation involving a none State party, or even only none State parties. This would arguably be a waste of time, but there is no legal impediment with that. And the reason is that PE don’t have a formal legal existence and, more importantly, do not create obligations on anyone, States included.

Delphine Carlens, of FIDH, with whom I discussed the matter briefly on twitter suggested the following supporting argument:

Article 70 of the Vienna Convention provides that:

Consequences of the termination of a treaty

1. Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention:

(a) releases the parties from any obligation further to perform the treaty;

(b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.

2. If a State denounces or withdraws from a multilateral treaty, paragraph 1 applies in the relations between that State and each of the other parties to the treaty from the date when such denunciation or withdrawal takes effect.

On principle, I very much like the idea of bringing the VCLT into play, because one tends to forget that the Rome Statute is after all a treaty, and does not exist, particularly when it comes to the relationship between States and the international organisation, in a legal vacuum.

My initial reaction here is to consider that the reference to the VCLT might not be very useful. Indeed, it does not help interpret Article 127 per se, because if one agrees with me that the OTP declaring that it is conducting a preliminary examination does not create any “right, obligation or legal situation” under the Rome Statute, then Article 70(1)(b) simply does not apply.

However, on second thought I wonder if I might not be framing the question in wrong terms. Indeed, if one forgets the issue of the existence of a PE for one second, one could wonder if the “legal situation” that was created through the execution of the treaty is not simply the fact that, under Article 12, the ICC would have jurisdiction over crimes committed in the territory of Burundi or by nationals of that State because Burundi was a State party at the time of the commission of the alleged crimes. As a consequence, of this approach the ICC would still have jurisdiction even after withdrawal, irrespective of the existence of a PE or not.

I don’t know if this argument would be persuasive in front of Judges, or would have the support of other State parties. Indeed, Article 127 is a lex specialis on the consequences of withdrawal, a situation which, it could be argued, removes completely the applicability of Article 70 of the VCLT. And because Article 127 makes no mention of surviving jurisdiction, then it might be a little far-fetched to read it back into it.

[UPDATE: Another difficulty that would need to be addressed is the time when jurisdiction is to be determined. Is it determined at the time of the commission of the crimes or at the time of the judicial decision to exercise jurisdiction? This is important to establish, because if it is the latter, then the Burundi withdrawal would in fact remove the capacity for the Court to exercise jurisdiction. Despite the basic nature of the question, I’m not aware of any judicial pronouncements on the matter at the ICC (readers, feel free to point me in the right direction).

Does the wording of the Statute help in any way? To some extent.

Indeed, it should be recalled that through a weird semantic trick, Article 12 turns out to be not strictly a jurisdictional provision: it is titled “preconditions to the exercise of jurisdiction”, which makes it out to be more of a procedural provision that a jurisdictional one. As a result, Article 12 does not actually say that the Court has jurisdiction over crimes committed on the territory of a State party or by a national of a State party, which is what you would expect from a jurisdictional provision. Article 12 says that the Court can only exercise jurisdiction if the State of nationality or the territorial State is a Party to the Statute. This would logically suggest that the adequate time to determine whether the pre-conditions of Article 12 are met, is when the Court is considering exercising jurisdiction, not when the crimes were actually allegedly committed.

I also want to point out that I’m in no way advocating a teleological interpretation of Article 12, or jurisdiction more generally, along the lines that not interpreting it in a certain way would lead to impunity, and therefore would not be acceptable. Whatever some people may think of sovereignty as an archaic concept in international law, it is still a fundamental right of States to decide whether they want to be bound by a treaty or not and I don’t believe that the “fight against impunity” can trump that.]

Despite these difficulties, the jurisdictional approach might be worth a try, as it is somewhat more convincing that the “PE = matter under consideration” approach. Moreover, everybody I know, academics and Judges alike, does consider Article 12 as a jurisdictional clause, despite its clear wording to the contrary. So, even if I’m right, nobody might actually care. Therefore this approach might actually provide the “progressive approach” of the interpretation of the Statute that HRW is calling for.

I should note that I’m not sure this is the argument actually put forward by the FIDH, because it seems to rely, in its press release, on the existence of a PE: “Since proceedings (a preliminary examination in this case) were initiated prior to the date of Burundi’s effective withdrawal, the Prosecutor could request the opening of an investigation into international crimes committed before 27 October 2017 ( Article 127(2) of the ICC Statute)”. So FIDH is welcome to use this new argument from now on!

[UPDATE: i’ve just come accross this analysis from Amnesty International which puts forward the same idea, but still seems to link jurisdiction and the existence of a PE, which I think in fact possibly weakens the argument. And I strongly disagree with the suggestion that a PE creates an obligation to cooperate on the part of States.]

One last note on this: if the Public Affairs email reproduced above is to be believed, it seems that someone at the Court thinks this is a viable interpretation of Article 127(2), when it is said that: ” In accordance with Article 127.2 of the Rome Statute, Burundi’s withdrawal does not affect the jurisdiction of the Court with respect to crimes alleged to have been committed during the time it was a State Party, namely up until 27 October 2017″.

This is a strong position to put forward, and I’m surprised it is not shared officially by someone more “senior” at the Court. Right now, it remains unclear whether this is a shared court-wide position, more particularly if it is the official position of the OTP. Some formal declaration would be welcome in that respect.

  • What about other cooperation obligations which Burundi might have?

It should be noted as an aside that Burundi still has an obligation to cooperate in relation to criminal investigations and proceedings which were commenced prior to the date on which the withdrawal became effective.

Which means that if a matter of cooperation arises in any current case or situation at the Court, Burundi would have to cooperate with the ICC, for example in assisting a current investigation.

Arguably, this would also apply in relation to the execution of an arrest warrant, for example of Omar Al Bashir of Sudan. This is of course particularly ironic, given the fact that the withdrawal was surely in part justified on the basis of opposition to that specific arrest warrant…

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…