Tag Archives: immunities

Guest post: The Appeals Chamber’s Chastisement of PTC II for its Article 87(7) Referral Gameplaying

Posted on May 8, 2019 | 1 comment

[Hemi Mistry is an Assistant Professor in Law at the University of Nottingham, where she researches and teaches in the area of international criminal justice. Her current research focuses upon how judicial procedure before international courts and tribunals affects how those institutions pursue their mandates. She wishes to thank Dov Jacobs for hosting this guest post.]

It’s a been a fiery time in the world of ICL: first, the decision by Pre Trial Chamber (PTC) II not to authorise an investigation into the situation in Afghanistan situation and second, this week’s bumper decision by the Appeals Chamber (AC) in Al Bashir, concerning Jordan’s non-cooperation in the execution of the arrest warrant for Omar Al Bashir and – more widely – the matter of immunities under customary international law. With the judicial division of the ICC seemingly intent upon institutional (self-)immolation, the international legal Blogosphere and Twittersphere have watched on (and fanned the flames) in horror. Amidst the flames, I wish to highlight one important aspect of Monday’s AC decision which represents a positive development in the Court’s caselaw. Specifically, this post concerns the Appeal Chamber’s reversal, by majority, of PTC II’s decision under Article 87(7) to refer Jordan’s non-cooperation in the arrest and surrender Omar Al Bashir to the UN Security Council and ICC Assembly of States Parties. Against the backdrop of the bigger ‘immunities’ question (for first of what will likely be many takes, see Jacobs and Akande) and the post-Afghanistan decision ‘crisis’, the corrective issued by the AC may at first glance appear to be a case of fiddling while Rome burns. However, as I will argue, this aspect of the AC decision represents an important attempt by the Chamber to reign in, or at least draw a line under, one of the most problematic and (excuse the pun) unruly traits in recent PTC decision-making. But first, a lot has happened, so to understand the significance of this week’s decision it is necessary to go back to basics…settle in for a story…

Article 87(7) represents one of the limited number of tools available to the ICC to respond to failures by its States Parties to comply with their obligations under the Rome Statute and to provide cooperation to the Court in the forms requested by its organs. It reads:

Where a State Party fails to comply with a request to cooperate by the Court contrary to the provision of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.

Article 87(7) determinations of non-cooperation and referrals to the Security Council have become a standard response to the failure by States Parties to arrest and surrender Omar Al Bashir upon his presence within their jurisdictions. The first three ‘referrals’ of non-cooperation by PTC I of Sudan in Harun and Ali Kushayb and of Kenya and Chad in Al Bashir, all issued in 2010, were not technically referrals under Article 87(7), but the exercise rather a summarily-claimed inherent power to ‘inform’ the Security Council of the accused’s presence upon the territory of a State Party, or the situation-State. However since then, PTC II, initially configured as PTC I, made three Article 87(7) referrals of Sudanese non-cooperation in violation of its obligation to cooperate with the Court established under Security Council Resolution 1593: two in Al Bashir (here, and here) and one in Hussein (here). Further to this, Chambers have issued non-cooperation decisions against eight States Parties for their failures to arrest and surrender Al Bashir upon his presence within their respective jurisdiction: Chad (2011, and 2013),  Malawi (2011), Nigeria (2013), the DRC (2014), South Africa (2015), Uganda (2016), Djibouti (2016), and Jordan (2017). In all but two instances (Nigeria (2013) and South Africa (2015)) of these instances of non-cooperation the Chamber went on to refer that non-cooperation to the Security Council and the Assembly of States Parties. Monday’s AC decision, however, reverses the PTC’s decision to refer Jordan’s non-cooperation to the Security Council.

PTC II’s caselaw on Article 87(7) is characterised by two themes: 1) Its growing frustration with the failure of states to engage with – even acknowledge – their obligations to cooperate under the Rome Statue, and 2) the PTC’s growing frustration with the Security Council and its failure to do anything to follow up on the Chamber’s referrals once they had been made. These frustrations manifested themselves in a number of ways. One way has been the gradual escalation in the language and detail with which the Chamber exhorts the responsibility of both States Parties and the Security Council to cooperate with and support the Court. Another way this frustration has manifested is the Chamber’s attempt to leverage whatever coercive tools it has within the Rome Statute toolkit to nudge States Parties towards increasing constructive engagement with the Court around the matter of cooperation, with the ultimate goal being fulfilment of cooperation requests. One such tool is the discretionary component of Article 87(7).

The early jurisprudence in Al Bashir adopted a straightforward interpretation of Article 87(7). The permissive, or discretionary, nature of the power to determine non-cooperation and refer was not acknowledged and, instead, once the Chamber had established the State Party was under an obligation to cooperate and two had failed in fact to provide that cooperation, the referral of that finding of non-cooperation was automatic (see, for example, Chad (2011, and 2013),  Malawi (2011)). In these early decisions the Chamber was presented with quite straightforward non-cooperation: the states in question simply did not engage with or acknowledge their obligations under the Statute, asserting instead the immunity of then-President Al Bashir. With non-cooperation findings and referrals stacking up and gathering dust untouched by the Security Council, in 2013 the Chamber was presented with a new situation when, for the first time, it was presented with non-cooperation by a State Party – Nigeria – which did, at least, acknowledge and accept its obligations under the Statute, which professed its commitment to fulfilling those obligations and which provided explanations for its failure on that occasion meet the Court’s cooperation request. In response, for the first time the PTC acknowledged the permissive ‘may’ in Article 87(7) and in doing so emphasised the discretionary nature of its powers under Article 87(7) (para.10). Although it appeared to implicitly acknowledge that Nigeria’s failure to arrest and surrender had been a breach of its obligations to cooperate, the Chamber did not make a formal finding to that effect. Instead, after ‘taking note’ of the explanation offered by Nigeria for its inaction, it concluded simply that ‘it is not warranted in the present circumstances to refer the matter’ (para.13).

Yet, the following year, when the DRC argued that the Chamber should not refer its non-cooperation in materially similar circumstances to Nigeria and having made similar representations as to its good faith commitment to its obligations under the Rome Statute, the Chamber refused to follow its Nigeria decision. Rather, it did two things. First, it appeared to distinguish DRC’s non-cooperation on the facts: referring in its dispositive paragraphs to the ‘deliberate’ refusal of the DRC to arrest and surrender Al Bashir, and elsewhere in the decision it described the DRC’s explanation for its non-cooperation as ‘unconvincing’ (para.13). With no objective difference between the motives of, and explanations provided by, Nigeria and the DRC respectively, it would seem that this distinction on the facts was made on the basis of a subjective assessment of the good faith credentials of the relevant parties. The exercise of discretion on this basis is not itself problematic – indeed the value of judicial discretion is in its ability to allow judges to be responsive to the circumstances of the decision at hand. However, the Chamber’s refusal to be convinced by the DRC’s explanation for its non-cooperation is itself difficult to accept given that the previous year it was ready to accept on face value that same explanation when offered by the Nigerians. That aside, the most problematic aspect of the Court’s decision in the DRC case is the second thing it did: it introduced a new and additional obligation, the obligation to consult with the Chamber in accordance with Article 97 of the Statute. On the basis of two findings – 1) the ‘deliberate’ failure to arrest Al Bashir (which was no more deliberate than Nigeria’s failure) and 2) the DRC’s failure to engage in Article 97 consultations, the Chamber referred the DRC’s non-cooperation to the Security Council, even though no mention of Article 97 was ever made in the previous Nigeria decision. It is this manoeuvre by the Court – the moving of the goalposts for the exercise of its judicial discretion – that is difficult to accept as legitimate.

Up until now, the structure of the Chamber’s analysis under Article 87(7) had been broadly the same. Notwithstanding the implicit acknowledgement of Nigeria’s factual non-cooperation, in all cases, the Chamber swept together the non-cooperation finding and the referral of that finding. However, in 2015, PTC II once again departed from its caselaw, confronted now by a state – South Africa – whose own Supreme Court had determined that it had failed to provide cooperation to the Court, contrary to its obligations under the Statute. Yet, not only did South Africa itself advance this Supreme Court ruling as evidence of its commitment to its obligations under the Statute and – more broadly to the rule of law – it had gone further, and had engaged the process of consultations under Article 97 which the Chamber had, in its DRC decision, identified as a decisive factor in the exercise of judicial discretion. Thus, the Chamber was forced to uncouple the non-cooperation finding and the referral: it made the finding of fact that South Africa had failed to cooperate in accordance with its obligations under the Statute, but nevertheless it decided not to refer that finding to the Security Council.

Having moved the goalposts once in the DRC decision, and having exhausted the (very limited) panoply of obligations under the Rome Statute that it could add to the justifications for the exercise of its discretion in South Africa and in doing so move the goalposts again, the PTC II had – it appeared – exhausted the leveraging potential of its discretion under Article 87(7). Yet, when it came to address Jordan’s failure to arrest and surrender Al Bashir in 2017 although Jordan had objectively overcome all the hurdles set out by the PTC II in Nigeria, then DRC and South Africa, the PTC refused to follow its decision in South Africa. Instead, it determined that what Jordan claimed was engagement with the consultation process in Article 97 was not, in fact, engagement with the consultation process (para.46-49). It further argued that Jordan could not have engaged in consultations for the purpose of Article 97 because the obstacle impeding cooperation that it advanced as the subject of those consultations – i.e. the question of immunities – had been addressed, resolved and removed in the course of the consultations on the same matter undertaken by South Africa (para.54-55). Now, therefore, it would seem that if Jordan wished to invoke the consultation procedure to qualify for the Chamber’s consideration of not to refer its non-cooperation, it needed to have come up with a novel obstacle to cooperation to consult over. Yet again, the goalposts were moved. This manoeuvre was one step too far and, on Monday, the AC reversed the PTC’s decision to refer Jordan’s non-cooperation. Not only did the AC conclude that the PTC made an ‘error’ in mischaracterising Jordan’s attempts to engage the Article 97 consultation process, but that the differential treatment of Jordan and South Africa constituted ‘an abuse of judicial discretion’ (para 210-211).

This aspect of the AC decision, and especially the strongly worded rebuke of the PTC’s conduct, should be welcomed. On one hand, the Chamber’s experiment with leveraging its discretion to refer non-cooperation to the Council to influence the behaviour – even if it is just the argumentative behaviour – of States Parties was partly successful. The DRC – rather than not engaging with the cooperation obligation – acknowledged, like Nigeria did, its obligation under the Rome Statute, stated its commitment to its Rome Statute obligations, but explained the practical impediments to its ability to discharge those obligations at the case at hand. Similarly, Jordan sought to engage the same consultation process under Article 97. Even though, as the Chamber itself pointedly observed, the Council has consistently failed to act upon its referrals – such that there is little ‘hard’ consequence from such a referral – States Parties, first the DRC and more recently Jordan, have taken steps to align their non-cooperation with that of Nigeria and South Africa to avoid a referral to the Security Council. Whereas PTC I has argued that the referral under Article 87(7) are meant to be ‘value neutral’ and ‘not designed to sanction or criticise the requested State’ (para.33) (in the same breath, however, it appeared to concur with PTC II in characterising the referral power as a tools ‘“to use at a certain point in time as a last resort measure or as part of a comprehensive strategy to promote cooperation (para.24)), it would seem that PTC II has had some success in persuading States Parties that a non-referral is a ‘carrot’ worth striving (or at least arguing) for.

On the other hand, having achieved that, the Chamber’s refusal to treat like cases alike and its frustration of the legitimate expectation of states, simply, reeks of bad faith. One of the fundamental tenants of the rule of law is the expectation that, under the rule of law, like cases will be treated alike. It is one if not the factor that distinguishes the politics of legality from those other – less desirable – forms of politics that legality exists in opposition to (Shklar 1964). It is through the giving of reasons that legitimate expectations are created and stability and predictability in the exercise of judicial discretion are guaranteed. In the face of the considerable political, diplomatic and – indeed – legal controversies arising out of the Al Bashir arrest warrant, it was reasonable for states to look to the PTC’s caselaw for guidance and to rely upon that caselaw. The development of – and adherence to – stable and predictable principles might do little to incentivise the kinds of changes in state behaviour (i.e. the movement towards cooperation) that the strategy of leveraging its discretion has been aimed towards. Arguably, for this reason, the experiment with decoupling of the non-cooperation determination and the referral to leverage the referral discretion was always doomed to folly. However, PTC I has also accepted the decoupling of the non-cooperation determination and the Security Council referral, having characterised non-cooperation findings as value neutral objective assessments of fact (Al Islam 2014 at para.23) and referrals as ‘one of the tools available to the Court “to use at a certain point in time as a last resort measure or as part of a comprehensive strategy to promote cooperation”’ (Al Islam 2014 at para.23). As such, the discretionary nature of the referral determination is likely here to stay and, going forward, Chambers need to develop transparent principles to guide that discretion if they are to rebuild some of the trust of States Parties. In the face of the failure of the Security Council to take political action in response to PTC, the manoeuvring of the goalposts for the Article 87(7) non-referral was clearly a proactive attempt to enhance the effectiveness of the Court. However, judicial chambers are not the Security Council or the Assembly of States Parties; they are judicial bodies, not political bodies. With the composition of PTC II now changed, this week’s decision by the AC reminds the new crop of judges that – going forward – if they too wish to engage in politics, they must play the game of legality and abide by the basic rules of that game.

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You have just entered Narnia: ICC Appeals Chamber adopts the worst possible solution on immunities in the Bashir case

Posted on May 6, 2019 | 6 comments

This morning, 6 May 2019, the Appeals Chamber issued its Judgment on the Appeal filed by Jordan against an 11 december 2017 decision by Pre-Trial Chamber II whereby it was found that Jordan failed to comply with an order to arrest and transfer Bashir to the ICC because Bashir did not benefit from Head of State immunity in the context of a UNSC Referral. As a consequence, Jordan’s non-cooperation was referred to the UNSC and the ASP.

It was a long-awaited decision, touching upon fascinating issues of public international law, treaty interpretation, customary international law, effects of UNSC resolutions, etc. The process that led to the Judgment was itself fairly novel, the Appeals Chamber having invited and received amicus briefs from the AU, the Arab League and a dozen law professors, who, in addition to their written briefs, were heard and questioned by the Chamber at length over several days in September 2018.

This is a really difficult blog post to write, because the Judgment comes at the conclusion of 8 years of debates (since the 2011 Malawi decision), with many sub-plots and twists. Explaining comprehensively why this is a terrible decision therefore would ideally require some prior knowledge of what the stakes are and would require me to fill way too many pages for a blog.

Therefore, for a comprehensive overview of the issues and explanations of why the reasoning of the Appeals Chamber is not convincing, I simply refer you to the innumerable blog posts I’ve written on the topic (particularly my initial reaction to the Malawi decision back in 2011, which is relevant here given the fact that the Appeals Chamber dug it up from nowhere) and my comprehensive chapter on the issue (an earlier draft of which you can find here).

What I will do here is simply pick and choose some particular problematic or noteworthy aspects of the Chamber’s reasoning.

First of all, at the heart of the Appeals Chamber’s reasoning is the conceptual idea that there exists a concept of “international tribunal” that is not simply the “pooling” of the exercise of jurisdiction by States (see par. 115 of the Judgment). These “international tribunals” would have a different nature and would therefore not be subject to the same rules of international law than States are, which allows the Appeals Chamber to say that while Head of State immunity continues to apply between States, it does not apply before international tribunals. However, this reasoning is very problematic. Indeed, it relies on a moral, rather than legal basis, as seen in the claim that “international tribunals” act in the name of the “international community as whole” rather than individual States. But what is the “international community” as a whole from a legal perspective? It is of course never defined in the Judgment.

Moreover, where does the “pooling” of jurisdiction end and the “international tribunal” start? For example, if France and Belgium, who separately would not be able to arrest and prosecute a foreign head of State, create an “international tribunal” through a bilateral agreement, would that new institution be able to prosecute that same Head of State? I doubt it, because States cannot grant to an IO a power they do not possess. This is basic common sense. You can’t just avail yourself of this simple rule by essentially claiming the moral high ground. Also, what arrogance to claim that you are acting in the name of the “international community as a whole”, especially when you see in practice the opposition that exists to the ICC (whether it is justified or not is another issue).

Given the reasoning adopted by the Appeals Chamber on this point, I find it somewhat ironic that the Judges go on the explain that “The law does not readily condone to be done through the back door something it forbids to be done through the front door” (par. 127). Not only is there a slight Judge Dredd feeling about this sentence (who is the “law” exactly? “I am the law!”), but it is exactly what the Judges did to remove immunity in the first place: treaty rules might be a problem? let’s use the back door of the “international tribunal” and magically go through the cupboard into the magical Narnia world when standards rules of international law disappear under the benevolent gaze of the “international community as a whole”…

The key issue should not so much be what an abstract category of “international tribunal” would look like, but rather, in each specific circumstances how a tribunal was created and what effects it might have on third States. This requires no creativity whatsoever, but simply a basic application of public international law rules. In the case of the ICC, as a treaty body, there is simply no reason why it should bind third States and that should be the end of the discussion (the PTC in the Rohinga decision attempted to justify that the ICC could have an effect on third-States as an IO with objective legal personality, but their reasoning was not very convincing either). 

Second of all, as a consequence of the Judgment, Article 98(1) is rendered mostly meaningless. Of course, Article 98(1) does not actually list what immunities need to be respected by cooperating States, but it is somewhat difficult to imagine that if the drafters of the Rome Statute really thought that Article 27 removed all immunities, even in the horizontal relationship between States, as an established rule of customary international law, it would have bothered to introduce Article 98(1) in the first place.

Third of all, the consequences for third States are quite big.

1) this Judgment means that immunities cannot be claimed by nationals of non-State parties, even when the situation is not referred to the Court by the UNSC. In other words, even if a situation is opened through a State referral or a proprio motu decision by the Prosecutor, State Parties would have to arrest and surrender nationals of non-State parties who would otherwise benefit from immunity.

2) This is probably one of the weirdest consequences of the Judgment: because the Appeals Chamber claims the existence of a rule not just in the Rome Statute, but in customary international law, that there are no immunities before “international tribunals”, one could arguably claim that the obligation to arrest and surrender a person would rest not only on State parties but also on non-State parties, because customary law is binding on all States… this is of course a ridiculous proposition, but it shows the absurdity of the Judgment.

Fourth, I note that the AC makes no mention of the Malabo Protocol, which explicitly provides for Head of State immunity. Presumably, by the AC’s standards, the tribunal constituted by the Malabo Protocol would be an “international tribunal”. Therefore, it would be acting in the name of the “international community as a whole”, in claiming that immunities exist before “international tribunals”. Why would this not equally be evidence of a contrary customary international law?

Fifth, I note that the Appeals Chamber mentions in one paragraph that Jordan’s obligation to cooperate would also stem from the Convention against Genocide. This was the position taken in a separate opinion to the South Africa decision by Judge Brichambaut (see my commentary here). I was not entirely convinced by the argument at the time, but at least the Judge made an effort to analyse the Genocide Convention specifically and explain how it would be related to the Rome Statute. Here, there is no such effort and it is impossible to understand what the relevance of the Genocide convention is in the current proceedings. Maybe it was included as a possibility in a earlier draft of the Judgment and someone forgot to remove it, because as it stands, these few lines, which seem to be added as an afterthought, with no explanations, 1 footnote and no references, are completely useless.

Sixth, I don’t have much to add that I haven’t said in the past to the analysis provided by the Appeals Chamber of the “UNSC route”. Just a few quick thoughts:

1) It’s not entirely clear why the AC bothers with this section of the Judgment at all, given that the questions raised become essentially moot given the customary law avenue taken by the Chamber.

2) I do note that the reasoning provided by the AC is interesting when it comes to determine under what sections of the Rome Statute Soudan would be obliged to cooperate with the Court. I must say that on first reading, I am convinced with the argument according to which, given the language of the UNSC Resolution, Soudan would have to respect the cooperation provisions relating to State parties rather than non-State parties. However, this does not automatically mean that Soudan would be bound by Article 27, and on this the Judgment is less convincing.

3) I also note that the AC did not follow my friendly advice: it did not actually asked those States on the UNSC who wrote the referral if in fact they did intend to remove immunities. This would have been all the more interesting as some of these States have made public Statements to the contrary (see here).

Seventh, in relation to the referral of Jordan to the ASP and the UNSC, I remain a bit lost at what the legal framework is. In such discretionary matters, it seems more of a divination exercise than one of legal reasoning, so I don’t have much to say about that. I just wonder, maybe naively, when a referral will ever be justified. Indeed, when the Jordan cooperation issue comes up, there is 7 years of constant (if not consistent) case-law asking State parties to arrest and surrender Bashir. I have all the sympathy in the world for Jordan’s legal position, which I mostly share, but practically, in those circumstances, it is difficult to see Jordan’s non-cooperation as anything else but a clear refusal to comply with a clear order from the Court. How is that not sufficient for a referral? I’m wondering, but this is just me thinking out loud, whether the real issue is to avoid that this discussion be forced on the ASP/UNSC, bodies which might make statements that the Judges would not want to hear. Indeed, it would not look good if the UNSC or the ASP (under the pressure of the AU States) actually came out in defense of Jordan…

Eighth, while I have yet to read the separate opinion (I might blog on it later), I am not sure what to make of its existence. Indeed what are we taking about?  it is a separate concurring opinion which focuses on written by 4 of the 5 judges in relation to the 2  grounds of appeal for which the decision was unanimous. So basically, did the 5th Judge not agree with the content of the separate opinion? because if she had, it would be signed by all 5 judges, concurring with themselves and then this would just be another part of the Judgment… Also, as also noted by Hemi Mistry, there are regular cross-references between the Judgment and the concurring opinion, which raises the question of the exact status of the document. I hope to have more clarity when I actually read it.

In conclusion (for now), I honestly believed that the AC would play it safe and stir away for the Customary Law route. I was wrong. As noted by Dapo Akande, this radical view justifies even more that the AU move for an ICJ advisory opinion on the matter. They have nothing to lose now.

From the perspective of the ICC, the Appeals Chamber has sadly confirmed I was right when I chose “the frog that wanted to be an ox” title, for my book chapter on immunities. This is again a case of the ICC Judges trying to be more (and to make the Court be more) than it actually is. In the fable, the frog actually exploded at the end… it’s of course just a metaphor, but given recent developments at the Court, it’s increasingly becoming a concrete risk for the institution.

 

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Posted in African Union, ICC, immunities, Security Council, UNSC

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Immunities and the ICC: my two-cents on three points

Posted on September 10, 2018 | 1 comment

Today and the next few days, the Appeals Chamber is hearing oral submissions on the question of whether Bashir, from Sudan, has immunity from arrest and surrender to the ICC, as the sitting head of State of a non-State party. This promises to be a interesting debate, with contributions from Jordan, the AU and a handful of international law professors who are for the most part recognised experts on this question. To move the debate along, the Appeals Chamber has issued a list of questions to be addressed by the participants.

I will obviously not take the time to give my take on all the questions. My views are well know on this issue, as I’ve developed many times in the past (see here and here for example).

I just wanted to react quickly on three particular aspects of the question.

  • Is the “international” character of the ICC relevant ?

A number of the questions put to the participants relate to the question of whether the fact that the ICC is an “international court” can affect the rules that apply in relation to immunities. This argument was put forward explicitly at the Special Court for Sierra Leone to justify the absence of immunities for Taylor and is regularly considered in the litterature, relying on an obiter from the ICJ Immunities where it was said that: “Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction” (par. 61).

I’ve never been convinced by this argument. Ascribing an “international court” label to an institutional does not magically displace all rules of international law, allowing such an institution to suddenly do things that the individual States that created it could not do.

Moreover, the ICJ was simply acknowledging the fact that certain international institutions did not provide for head of State immunity. It certainly did not provide a normative view on the matter. interestingly, in its lists of questions, the Appeals Chamber claims that “The International Court of Justice in the Arrest Warrant case refers to a potential exception to Head of State immunity under customary international law”. However, the ICJ does no such thing, and does not even use the word “exception” in the relevant paragraph.

  • What role for the “fight against impunity” in the interpretation of the Rome Statute?

One of the Appeals Chamber’s questions reads as follows:

According to  article  31  of  the Vienna  Convention  on  the Law of Treaties,  the  provisions  of  a  treaty  must  be  interpreted  in  the  light  of  its  context,  including  the  preamble,  and  its  object  and  purpose. What  is  the  significance  of  such  a  contextual interpretation of the Statute, in the light of its object and purpose as set out in its preamble,  namely  ‘to put  an  end  to  impunity  for  the perpetrators  of  [the  most  serious  crimes  of  concern  to  the  international community  as  a  whole]  and  thus  contribute  to  the  prevention  of  such crimes’, in the determination of the appeal?

My short answer is: none. I’ve always objected to the use of the vague notion of the “end of impunity” to justify any particular interpretation of the Rome Statute. Not only is it more often than not justified to adopt interpretations of the Statute which are against the Accused, but, more importantly, I do not think the “fight against impunity” is technically an object and purpose of the Statute to be taken into account for the purposes of Article 31 of the Vienna Convention (a minority view on this topic, I know). Saying this confuses the specific object and purpose of the Rome Statute as a legal instrument (conducting criminal trials) and the more general moral/political goal (ending impunity).

Confusing the two is like claiming that the object and purpose of a hammer is to build a house, rather than specifically to put nails in a wall. Focusing on the “build a house” aspect tells you absolutely nothing on what a hammer is actually meant to do concretely, because what is actually important to understand the hammer is the “put nails in the wall” aspect. The same is true of the ICC: relying on the “fight against impunity” gives you no indication on how the ICC is actually meant to work, and therefore is simply an excuse for Judges to put their own moral agenda in the mix. This should of course not be allowed.

  • Interpreting UNSC Resolutions

The immunities debate has involved a great deal of discussion on what the UNSC actually intended to do when it adopted UNSC Resolution 1593. Irrespective of my own interpretation of the Resolution, I’ve always found it puzzling that we need to fill pages and pages of cabbalistic linguistic intepretations of the Resolution, when all we need to do is ask the UNSC what it actually meant to say. The UNSC is just there! Just put the question to it, or at least to some of its member States. It shouldn’t have to be that complicated: “Did you intend to displace international rules of immunity, or not?”. Whether the UNSC has the power to do so is an entirely different question (I would argue that it doesn’t), but maybe is there no issue to discuss in the first place. In this sense, it would have been interesting for the Appeals Chamber to specifically invite the UNSC and /or its member States at the time of the adoption of the Resolution to provide the Judges with some clarity on the matter.

In that respect, Benjamin Durr recently reported that:

With Patryk Labuda rightly commenting that:

Indeed, the Foreign Ministry statement, although couched in diplomatic terms, could suggest that the Chinese do no agree with the removal of Bashir’s immunity. This is not definitive proof of what the Resolution actually means, especially because China does not speak for the other members of the UNSC, but it could definitely be taken into account in the decision making process.

[UPDATE: Alex Galand has kindly pointed out to me on twitter that in fact both China and Russia have recently clearly stated that Head of State immunity remains, irrespective of a UNSC Resolution:

More food for thought for the Appeals Chamber which should absolutely be taken into account!]

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Posted in ICC, immunities, Uncategorized

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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

Posted on July 6, 2017 | 4 comments

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…

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

Posted on June 14, 2015 | 1 comment

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…

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