“the [AU]  Commission to consider seeking an advisory opinion from the International Court of Justice regarding the immunities of state officials under international law.”

As has been the pattern over the past three or four years, the AU Assembly has, at its biannual meetings, adopted a number of decisions regarding cases at the  International Criminal Court. In the latest meeting,  the AU Assembly reiterated its request that the UN Security Council defer the proceedings against Sudanese President Bashir in accordance with Article 16 of the Rome Statute. It also “ urge[d] all [AU] Member States to comply with [AU] Assembly Decisions on the warrants of arrest issued by the ICC against President Bashir of the Sudan pursuant to Article 23(2) of the [AU] Constitutive Act and Article 98 of the Rome Statute of the ICC.” Those prior decisions had called on African States not to comply with the request by the ICC for the arrest and surrender of Bashir.

The AU Assembly’s latest decision on the ICC proceedings are different from prior decisions in that this time around, there is no call for deferral of the ICC proceedings arising out of the situations in Kenya or in Libya (as had been called for in earlier decisions). This absence should be seen as improving the tone of the African reaction to ICC proceedings. It is now clear that the AU’s objections, at least at present, are really only with respect to one case – the Bashir case. The other difference in the AU Assembly decision is the call for an advisory opinion from the ICJ on the immunities of State officials under international law. Although the AU decision does not make this clear, presumably what the AU wants is an opinion that would clarify the immunity (or otherwise) of State officials from prosecution by the ICC and from enforcement action taken by States acting at the request of the ICC. Given the context of the decision, it does not seem to be the case that the AU wants the ICJ to rule on the immunity of state officials from the jurisdiction of other States that are not acting at the behest of the ICC. In any case, the ICJ, in the Arrest Warrant Case (DRC v Belgium), has already set out its view on aspects of immunity of state officials from the jurisdiction of other States.

The ICC Pre-Trial Chamber ruled, just last December, on the immunity of President Bashir from ICC Prosecution and from arrest in ICC State parties (see my comments on those decisions here). Asking the ICJ to provide an advisory opinion on this issue would be akin to trying to appeal the decisions of the ICC Pre-Trial Chamber to the ICJ rather than to the ICC Appeals Chamber. It would be an express invitation for judicial confrontation. I discuss below whether there is any real prospect of the ICJ rendering an advisory opinion on the immunity of State officials from ICC prosecution or arrest for the purposes of ICC prosecution. In my view, there is no legal bar to the Court deciding on this issue. The main obstacle would be whether African States can muster enough political support within the United Nations to get the request for an advisory opinion.

AU Commission Press Release on ICC Pre-Trial Chamber’s Decisions on Bashir’s Immunity

Prior to the AU Summit, the AU Commission issued a press release on January 9 reacting to the decisions of the ICC regarding the immunity of Bashir. In the Press Release,

“the African Union Commission expresses its deep regret that the decision has the effect of:

(i) Purporting to change customary international law in relation to immunity ratione personae;

(ii) Rendering Article 98 of the Rome Statute redundant, non-operational and meaningless;

(iii) Making a decision per incuriam by referring to decisions of the African Union while grossly ignoring the provisions of Article 23 (2) of the Constitutive Act of the African Union, to which Chad and Malawi are State Parties, and which obligate all AU Member States ‘to comply with the decisions and policies of the Union’.”

With regard to point (1) the AU Commission takes exception to the ICC Pre-Trial Chamber’s decision that “that customary international law creates an exception to Head of State immunity when international courts seek a Head of State’s arrest for the commission of international crimes.” The AU Commission argues that:

“As a general matter, the immunities provided for by international law apply not only to proceedings in foreign domestic courts but also to international tribunals: states cannot contract out of their international legal obligations vis-à-vis third states by establishing an international tribunal. Indeed, contrary to the assertion of the ICC Pre-Trial Chamber I, article 98(1) was included in the Rome Statute establishing the ICC out of recognition that the Statute is not capable of removing an immunity which international law grants to the officials of States that are not parties to the Rome Statute. This is because immunities of State officials are rights of the State concerned and a treaty only binds parties to the treaty. A treaty may not deprive non-party States of rights which they ordinarily possess. In this regard, it is to be recalled that the immunity accorded to senior serving officials, ratione personae, from foreign domestic criminal jurisdiction (and from arrest) is absolute and applies even when the official is accused of committing an international crime.”

As I explained in my post in December commenting on the ICC decision, I agree with these points regarding the applicability of international law immunities before international tribunals. However, I have also argued that the ICC Pre-Trial Chamber could simply have said that the effect of the referral of the Darfur situation by the UN Security Council has the consequence that Sudan is bound by the Statute (including by the removal of immunity in Art. 27). The effect of this would mean that Sudan is to be regarded as being in the same position as a State party to the Rome Statute. In its press release, the AU Commission engages with this argument of mine, and disagrees with me. They argue that:

“The Security Council has not lifted President Bashir’s immunity either; any such lifting should have been explicit, mere referral of a “situation” by the UNSC to the ICC or requesting a state to cooperate with the ICC cannot be interpreted as lifting immunities granted under international law. The consequence of the referral is that the Rome Statute, including article 98, is applicable to the situation in Darfur.

Can the ICJ Decide on Immunity of State Officials Sought by the ICC?

The ICC Pre-Trial Chamber’s Decisions and the AU Commission response form the background to the AU summits call for an advisory opinion by the ICJ. The AU summit asks the AU Commission to consider seeking an advisory opinion from the ICJ. Under Article 96 of the UN Charter  and Art. 65 of the Statute of the ICJ, only organs of the United Nations or UN specialised agencies may be authorised by the UN General Assembly to request advisory opinions. So the AU Commission cannot itself seek an advisory opinion from the ICJ. For a request to be made,  it would most likely have to come from either the General Assembly or the Security Council. It is unlikely that the Security Council would seek an advisory opinion on this question since the advisory opinion is an attempt to do what the Security Council has thus far failed to do (to stop the case against Bashir). Any request would more likely come from the General Assembly, where African States might be able to muster greater support for an ICJ advisory opinion.

A significant issue that would arise in seeking an advisory opinion would be what question or questions should be put to the ICJ. Christopher Gevers in an interesting post at the War and Law blog notes that:

“If an advisory opinion is sought it could address a broad range of legal issues such as (i) immunity before international courts under international law (although this was addressed obiter in the Arrest Warrant case, it might be further clarified), (ii) immunity under the Rome Statute, both generally and in respect of cooperation obligations on states in particular, and (iii) the effect (if any) of Security Council resolutions referring matters to the Court on (i) and (ii).”

Christopher also explores the different options for taking the matter ot the ICJ and notes that in addition to the advisory opinion route, “Sudan could bring a case against an ICC state party – in particular those countries subject to PTC decisions such as Kenya and Malawi.” The problem with this option is that if the decision goes against Sudan, that State would be bound by the adverse decision.

A further option is that the matter is referred to the ICC Assembly of States Parties under Art. 119(2) of the Rome Statute under which any dispute relating to the interpretation or application of the ICC Statute, other than those concerning the judicial functions of the ICC, may be referred to the Assembly of States Parties. The Assembly may either seek to settle the dispute itself or make recommendations as to how it may be settled, including referral to the ICJ. One issue that arises here is whether the dispute should be regarded as concerning a judicial function of the ICC, in which case the Assembly does not have competence to deal with it. In any case, the Assembly cannot itself refer a matter to the ICJ. All  that this provision means is that the Assembly may recommend that disputing parties refer a dispute under the Rome Statute to the ICJ.

Assuming that  a request for an advisory opinion is made by the UN General Assembly, the ICJ would undoubtedly have jurisdiction to render the opinion since the request would deal with a legal question. However, as the ICJ has stressed in several advisory opinions, the fact that it has jurisdiction to render an advisory opinion does not mean that it will. The Court has a discretion to refuse to render an advisory opinion since Article 65 of its Statute only says that it “may” give an advisory opinion requested of it. Though the Court has this discretion it is one that is very rarely exericised. I think I am right in saying that the ICJ has never exercised this discretion though the PCIJ did refuse to render an opinion in the Eastern Carelia case. The Court has stated in many cases that giving advisory opinions requested by UN organs represents the Court’s participation in the activities of the UN and, that in principle, such a request should not be refused. The ICJ has gone on to say that there must be “compelling reasons” for it to exercise this discretion. Even if the request came from the General Assembly, the fact that Bashir case arises out of a Security Council referral to the ICC or that the case would involve interpretation of UN Security Council resolutions referring the situation would not be sufficient grounds for the Court to refuse to give the opinon (see the Kosovo Advisory Opinion).

One issue that might lead the Court to refuse to render an opinion on this question might be considerations of judicial comity. In other words, it remains to be seen whether the Court would be happy to be used as a form of appellate court over the ICC.  Some might feel it inappropriate for the ICJ to be used in this way. There have been different views among ICJ judges as to whether steps can and should be made to put the ICJ at the apex of a judicial structure involving international courts. Judge Guillaume, former ICJ President, was of the view that steps should be taken to allow other internationl courts to request advisory opinions from the ICJ on question of general international law (Guillaume ‘The Future of International Judicial Institutions’ (1995) 44 ICLQ 848 and ‘Advantages and Risks of Proliferation: A Blueprint for Action’ (2004) 2 Journal of Intl Criminal Justice 300). However, Judge Higgins, also a former ICJ President, thought that the suggestion of institutionalising the ICJ as a sort of appeals court (or court to whom others referred questions of general international law) was unworkable (see Higgins, “A Babel of Judicial Voices? Ruminations from the Bench”, (2006) 55 ICLQ 791). It remains to be seen whether there would be political will to use the ICJ in this way. However, if such will did exist, I would not have thought that it is inconsistent with the ICJ’s role as a Court of Justice for it to decide on matters that have been decided on by other tribunals. For one thing, the ICJ would be able to decide on the matter from the perspective of customary international law without being specifically tied to the provisions of the Rome Statute.

Further details of the position can be found here.

The Cambridge Journal of International and Comparative Law is a newly established double-blind peer reviewed, open-access journal which aims to publish high-end legal scholarship. It has a broad focus on international and comparative law and a particular focus on publishing work that examines the intersection of different international, domestic and transnational legal regimes. The Journal aims to become a platform for constructive and critical dialogue between the well-established academics and practitioners on the one side and the younger generations on the other. It will have two substantive issues per year and a annual special issue, which will critically examine the decisions of the UK Supreme Court from the preceding judicial year. The CJICL is the only journal to produce a full issue review of the previous three terms of the work of the UK Supreme Court.

“The ICJ, a civil court open only to States for contentious proceedings and to certain organs and institutions of the United Nations system for advisory proceedings, should not be confused with the other ⎯ mostly criminal ⎯ judicial institutions based in The Hague and adjacent areas, such as the International Criminal Tribunal for the former Yugoslavia (ICTY, an ad hoc court created by the Security Council), the International Criminal Court (ICC, the first permanent international criminal court established by treaty, which does not belong to the United Nations system), the Special Tribunal for Lebanon (STL, an independent judicial institution composed of Lebanese and international judges, which is not a United Nations tribunal and does not form part of the Lebanese judicial system), or the Permanent Court of Arbitration (PCA), an institution founded in 1899, which is independent of the United Nations.”

This paragraph, which now appears at the bottom of each ICJ press release, was probably drawn up because the folk at the ICJ have become tired of people confusing that court with other international courts. I sympathise with them. I suspect that I am not the only one who gets frustrated with the media confusing the different international tribunals. All too often there is talk of people being prosecuted by the ICJ when what is meant is the ICC or perhaps the ad hoc tribunals. Or sometimes the confusion is the other way with references to the ICC when what is meant is an inter-State ICJ case. In December last year, I gave an interview in the Guardian newspaper on wikileaks revelation that the CIA had been spying on senior UN staff and permanent representatives of other Security Council members. In that interview, I spoke about possible violations of the UN – US Headquarters Agreement and the UN General Convention on Privileges and Immunities. I then made reference to the  provision in the latter which allows for binding advisory opinions from the ICJ in the event of dispute regarding the application of the convention.  I was dismayed when the article appeared and it stated that the US actions could lead to ”prosecution at the international criminal court”!

This confusion, of course, exists also in the mind of the general public. A few years ago, I was in the Hague and running late for a meeting at the Peace Palace (where the  ICJ is). I jumped into a taxi and told the driver I wanted to go to the ICJ. After a little while I realised that I did not recognise the route he was taken. When I asked him about the route, his response was something to the effect “but this is the quickest route to the ICC”.

“The crimes were perpetrated during attacks upon the towns and villages of Kodoom, Bindisi, Mukjar and Arawala in the Wadi Salih and Mukjar Localities of West Darfur. The attacks followed a common pattern: the Government of Sudan forces surrounded the villages, the Air Force dropped bombs indiscriminately and foot soldiers, including Militia/Janjaweed, killed, raped and looted the entire village, forcing the displacement of 4 million inhabitants. Currently, 2.5 million remain in camps for Internally Displaced Persons.

In the “Prosecution v. Harun & Kushayb” case, Pre-Trial Chamber I ruled that Local Security Committees coordinated these attacks. They were supervised by State Security Committees which reported to Mr. Harun, who in turn, according to the evidence, reported to Mr. Hussein”

These statements regarding the prior Prosecutor v Harun & Kushayb case are simply inaccurate. Moreover, the Office of the Prosecutor at the ICC must know or should know that they are inaccurate. The statement in the press release referring to that earlier decision is to a decision of the Pre-Trial Chamber on a request for an arrest warrant. Those decisions are made ex parte and on the basis of the prosecutor’s application. No detailed arguments are heard and no alternative evidence is led. In these decisions, the Pre- Trial chamber does not (or at least, it should not) make any definitive rulings. The standard that is required under Art. 58 of the ICC Statute for such a decision is that there are “reasonable grounds to believe” that the crime has been committed. This is a  low standard.  It is lower than the “substantial grounds to believe” that the crime has been committed which is required for a confirmation of charges and lower than the standard of “beyond reasonable doubt” which is required for a conviction (see the ICC Appeals Chamber decision in Prosecutor v. Bashir, (Arrest Warrant Appeal), 2010, para 30). Even after the Pre-Trial Chamber has issued an arrest warrant on the basis of reasonable grounds to believe that an accused has commited crimes, it may then later decide in confirmation of charges proceedings that there are no substantial grounds to believe what it had earlier held there were reasonable grounds to believe. This happened just this month in the Mbarushimana case. And of course, even if it confirms charges it may actually decide to acquit.

It really is quite shocking that the ICC will suggest that a decision for an arrest warrant is a ruling that certain things happened. But this is not the first time this has happened. The ICC Prosecutor, Luis Moreno-Ocampo wrote an article in the Guardian Newspaper last year saying that the ICC found Sudanese President Bashir and his forces responsible for atrocities in Darfur (see my earlier post here). Of course, all the ICC Chamber had done was to issue a request for a warrant applyng the reasonable gronds to believe standard.

These inaccurate statements about what the ICC has found are troubling because they are issued to the press with the intent that they be disseminated around the world. Issuing false statements about what the Court has held is clearly prejudicial to the accused. A judicial institution should do better than that. The statements are also troubling because they appear to suggest that either those who write these press statements are not knowledgeable about the Court’s own procedure or they are wilfully misrepresenting the facts. I very much doubt that it could be the latter. However, I would call on the ICC to issue a press release correcting their earlier press release. If they don’t want to be regarded as wilfully issuing false information which prejudices defendants, they should  issue a correction which is disseminated as widely as the original misleading press release.

PS: In a post on his blog, Bill Schabas has noted that the absence of a genocide charge for the Sudanese Defence Minister is incoherent with the approach taken by the Prosecutor with regard to Sudanese President Omar Bashir given that both are accused of overseeing essentially the same attacks

Which ICJ Judges or ICJ ad hoc judge have been the child of an ICJ Judge or ICJ ad hoc Judge?

To clarify, both the parent and the child have sat on the ICJ bench as either a judge or an ad hoc judge. Answers in the comments box below please!

UPDATE : Thanks for the responses. Yes the answers are indeed the Lauterpachts (Sir Hersch and Sir Eli) and Jules Basdevant and Suzanne Bastid. Jules Basdevant was Judge (and President) of the ICJ (I don’t think he was on the PCIJ) and his daughter Suzanne Bastid was indeed the first woman to sit on the ICJ as an ad hoc judge.

Neither René-Jean Dupuy nor Pierre-Marie Dupuy have sat as ad hoc judges at the ICJ.

If readers are still interested in this theme, I would like to know which children of ICJ Judges have gone on to careers as public international lawyers.

Which judges of the ICJ had served as ad hoc judges at the ICJ prior to their election to the ICJ?

Wim Muller was very quick off the mark in noting that on the ICJ current bench, Bernardo Sepúlveda-Amor (Mexico) was an ad hoc judge in the Avena case (Mexico v. USA) before being elected to the Court. Thanks to Martin Cabrera for also noting that Judge Antônio  Cançado Trindade was also an ad hoc  judge in the Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) case before his election to the Court. If one includes Gaja (who joins in February), five of the Judges on the current bench had previously served as ad hoc judges. Apart from Gaja, Antônio  Cançado Trindade and  Sepúlveda-Amor, the other two are:

-Judge Mohamed Benouna [Frontier Dispute (Benin/Niger]; and

Judge Yusuf in the Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France)

What is interesting is that by my reckoning, apart from these  5 current judges, there had previously only been seven other judges who had served as ad hoc judges before they were elected to the Court. Thanks to Martin Cabrera for pointing out two of them: They are (1) Judge Roberto Ago (Italy) in the Arbitral Award (Honduras v. Spain) (2) Judge Federico de Castro in the Barcelona Traction case (I have to admit I missed him out on the list I had constructed). The others are (3) Judge Evensen (Norway) in Continental Shelf (Tunisia/Libya); (4) Judge Mosler (Germany)  in North Sea Continental Shelf cases; (5) Judge Nagendra Singh (India) in the ICAO Council Case (India v. Pakistan) ; (6) Judge Jean Spiropoulous (Greece) in the Ambatielos Case (Greece v. UK); and (7) Judge Muhammad Zafrulla Khan in the SouthWest African Cases and the Trial of Prisoners of War case (Pakistan v. India). Readers, have I missed any out?

It is interesting to note that it is now much more common than was previously the case  for ICJ judges not only to have previous experience on another international tribunal but also to have prior experience as an ad hoc Judge at the ICJ. Why might this be so? With regard to experience on prior international tribunals the answer probably lies in the fact that there are more international tribunals than was previously the case. But what about prior experience as an ad joc judge? Is it just the case that States now value prior judicial experience than they previously did. To answer that question one might have to consider which candidates who had been ad hoc judges were not elected (there have been some). Perhaps the answer lies in the fact that there are now more ICJ cases than was the case before meaning that more candidates for election to the ICJ have experience of being an ad hoc judge.

One thing is that is absent at the ICC when compared with the ICJ is the convention that there is a judge from each of the permanent members of the UN Security Council. Of course, only two members of the Council are parties to the ICC Statute (the UK and France). Even so, there is no presumption that judges of that nationality will be elected. In the latest elections, the UK candidate was elected but the French candidate was not. He was outvoted in round 14 by the candidate from Nigeria and then withdrew.

The new judges are:

- CARMONA, Anthony Thomas Aquinas
  Group of Latin American and Caribbean States (Trinidad and Tobago),
   list A, male
 
- DEFENSOR-SANTIAGO, Miriam
  Group of Asia-Pacific States (Philippines), list B, female
 
- EBOE-OSUJI, Chile
  Group of African States (Nigeria), list A, male
 
- FREMR, Robert
  Group of Eastern European States (Czech Republic), list A, male
 
- HERRERA CARBUCCIA, Olga Venecia
  Group of Latin American and Caribbean States (Dominican Republic),
  list A, female
 
- MORRISON, Howard 
  Group of Western European and Other States (United Kingdom),
  list A, male

Which judges of the ICJ had served as ad hoc judges at the ICJ prior to their election to the ICJ?

Note that I am asking for ICJ judges who were appointed ad hoc judges before they became full time judges on the ICJ. I am excluding those ad hoc judges who were appointed as such after they had been ICJ judges. There are many in the latter category. Gilbert Guillaume, former ICJ president is currently an ad hoc judges in three cases now before the Court. Judge Sir Robert Jennings was ad hoc Judge in the Lockerbie case after leaving the court. Judges Keba Mbaye, Ajibola, Sette-Camara, Ruda and others were also ad hoc judges after leaving the ICJ.

Thanks also to Tobias and Markos for the names of Lord McNair and Judge Mbaye. However, as Tobias and Markos note, these are examples of Judges going on to international tribunals after they left the ICJ.

The names of other ICJ judges with prior international judicial experience are Sir Humphrey Waldock, who was a Judge and President of the European Court of Human Rights prior to going to the ICJ and President Guerrero who was the first President of the ICJ. The last one is particularly tricky as Judge Guerrero was the last President of the Permanent Court of International Justice. Judge Guerrero was also Vice President of both the PCIJ and the ICJ. Though the ICJ was the continuation of the PCIJ they were technically separate courts so he counts as one who was another international tribunal prior to election to the ICJ.

Other Judges with experience of international judicial or quasi-judicial tribunals prior to going to the ICJ would be Judge Petren (Sweden) who had been a member (and President) of the European Commission of Human Rights and a Judge at the United Nations Administrative Tribunal. Incidentally, Waldock had also been member and President of the European Commission of Human Rights before going to the ECtHR and the ICJ. Judge Higgins had also been a member of the Human Rights Committee before election to the ICJ. I don’t count judges who had served on international arbitral tribunals or conciliation commissions as they were not standing courts or tribunals.

It is interesting to see that most of the British Judges at the ICJ have either had prior international judicial experience or gone to an international tribunal after leaving the ICJ. The exceptions are Hersch Lauterpacht (who sadly died while at the ICJ) and Robert Jennings.