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Home Articles posted by Alexandre Skander Galand

A Hidden Reading of the ICC Appeals Chamber’s Judgment in the Jordan Referral Re Al-Bashir

Published on June 6, 2019        Author: 

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On 6 May 2019, the Appeals Chamber of the International Criminal Court (ICC) issued the Judgment in the Jordan Referral re Al-Bashir Appeal. It found that Jordan had no ground to refuse to execute the request by the ICC for arrest and surrender of Omar Al-Bashir, the then Head of State of Sudan – a State not party to the Rome Statute.  In this highly controversial judgment, the Appeals Chamber held that ‘[t]here is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court.’ (par. 1, 113) Endorsing the ICC Pre-Trial Chamber I’s 2011 Malawi Non-Cooperation Decision, the Appeals Chamber furthermore held that ‘[t]he absence of a rule of customary international law recognising Head of State immunity vis-à-vis international courts is relevant […] also for the horizontal relationship between States when a State is requested by an international court to arrest and surrender the Head of State of another State.’ (par. 114)  

The Chamber could have ended its judgment on the issue of immunities there, as this finding on customary international law, if correct, would seem to dispose of the matter. However, it decided to also consider the position taken  by Pre-Trial Chamber II in the Jordan Non-Cooperation Decision, that the immunity of the Sudanese President was removed by virtue of the Security Council (SC) resolution referring the situation in Darfur to the ICC.

In this post, I will argue that the Chamber not only confirmed the legal validity of what has been termed the ‘Security Council route’ – as developed in the Jordan & South Africa Non-Cooperation Decisions – but actually upheld that it is such reasoning that must be applied at the horizontal level to displace the immunity of a Head of State of a non-party State. I will show that this conclusion flows from the Joint Concurring Opinion of 4 of the 5 Appeals Chamber judges (Judges Eboe-Osuji, Morrison, Hofmański and Bossa) – constantly referred to in the main Judgment for further elaboration – and the recently issued Q&A regarding the Appeals Chamber Judgment. Read the rest of this entry…

 

Looking for Middle Ground on the Immunity of Al-Bashir? Take the Third ‘Security Council Route’

Published on October 23, 2018        Author: 

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On 10-14 September, the Appeals Chamber (AC) of the International Criminal Court (ICC) held hearings in the appeal of Jordan against the decision of Pre-Trial Chamber (PTC) II entitled ‘Decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender o[f] Omar Al-Bashir’ of 11 December 2017’. As Talita De Souza Dias aptly showed in her recent post, one of the most debated issues during the hearings was whether the Security Council (SC) can implicitly waive the immunities of non-party States’ high-ranking officials when it refers a situation to the ICC. I agree with Talita’s findings on the permissibility of implicit derogations from immunities but I will argue that it is not Article 27(2) that renders the immunity of Al-Bashir inapplicable at the domestic level. Rather, it is the effect of Article 89 (1) on ‘Surrender of persons to the Court’ that makes his immunity of no avail before a domestic jurisdiction enforcing the ICC arrest warrant. In making this argument, I will propose a variant of the ‘Security Council Route’ that is different from those hitherto recognised in the literature or by the ICC.

Readers will recall that there are two main theories regarding the (in)applicability of immunities in domestic proceedings for arrest and surrender to the ICC of a state official ordinarily entitled to international law immunities. First, there is the theory that there is a customary exception to the immunity of heads of States for ‘proceedings before certain international criminal courts’. Read the rest of this entry…

 

Prosecuting ‘The Beatles’ before the ICC: A Gateway for the Opening of an Investigation in Syria?

Published on April 19, 2018        Author: 

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Calls have been mounting for Alexanda Kotey and El Shafee Elsheikh, two fighters captured by the Syrian Kurds, to be tried in the UK, the US, or at the International Criminal Court (ICC) in The Hague. Kotey and Elsheikh were part of a group of four Islamic State militants known as ‘the Beatles’ (because of their British accents). Although not particularly high ranking within ISIS, the Beatles are infamous for their role in the imprisonment, torture and killing of Western hostages. There is reason to believe that they are responsible for war crimes and crimes against humanity. 

The purpose of this post is to examine the feasibility and propriety of bringing the Beatles before the ICC for trial. Kotey and Elsheikh have been stripped of their British citizenship so as to stop them from re-entering the UK. The UK defence minister, Tobias Ellwood, is however arguing that Kotey and Elsheikh should be tried by the ICC. Kotey himself affirmed that a trial at the ICC ‘would be the logical solution.’ As of now, the Syrian Kurds do not seem to have received a request for the surrender of the two fighters to the Court.

The Temporal Scope of the ICC’s Personal Jurisdiction Read the rest of this entry…

 
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The Situation Concerning the Mavi Marmara at the ICC: What might the next move of the Prosecutor be?

Published on March 22, 2016        Author: 

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In early summer 2010, around fifty people were seriously injured and ten Turkish nationals died on a vessel which was part of the ‘Freedom Flotilla’: the Mavi Marmara ship. The incident saw the establishment of a UN Human Rights Council fact-finding mission, a separate panel of inquiry appointed by the UN Secretary-General, a Turkish Commission and a Israeli Commission of Inquiry (aka “Turkel Commission”). The Israeli Defense Force (IDF)’s storming of the ‘Freedom Flotilla’, have subsequently been subject to judicial proceedings both domestically in Turkey, and internationally at the International Criminal Court (ICC).

In May 2014, four arrest warrants were released by Istanbul’s Seventh High Criminal Court against former IDF Chief of Staff Gabi Ashkenazi, former Navy Chief Eliezer Marom, former Military Intelligence Chief Amos Yadlin and former Naval Intelligence chief Avishai Levy. A year earlier, on 14 May 2013, a referral was received by the ICC Office of the Prosecutor (OTP) from the authorities of the Comoros, a State Party to the Rome Statute of the ICC, in relation to the Humanitarian Aid Flotilla’s incident (registered vessels situation). Six months after Turkey issued its arrest warrants, the OTP announced in its report under Article 53 (1) Rome Statute that it had decided not to investigate the registered vessels situation.

OTP’s decision not to investigate was based on the ‘gravity’ criteria of the Rome Statute. According to the OTP, ‘the potential case(s) likely arising from an investigation into this incident would not be of “sufficient gravity” to justify further action by the ICC.’ In so doing, the OTP did not consider the other two criteria for declining to investigate, namely, complementarity and the interests of justice. As Kevin Jon Heller predicted, the Comoros ‘appealed’ the OTP’s decision and on 16 July 2015, the ICC Pre-Trial Chamber (PTC) requested the Prosecutor to reconsider its decision not to open an investigation. Acting under Article 53 (3) (a), the PTC took issue with several aspects of the OTP’s decision not to investigate (see comments here and here).

In this post, my aim is to analyze the OTP’s decision not to investigate on the basis of gravity and the PTC’s request to the OTP to reconsider its decision. I argue that OTP’s gravity assessment was hasty and came at the expense of assessing the potential complementarity of the Turkish proceedings. Read the rest of this entry…

 

The Situation Concerning the Islamic State: Carte Blanche for the ICC if the Security Council Refers?

Published on May 27, 2015        Author: 

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At a meeting of the UN Security Council held on 27 March 2015, the possibility of a referral to the International Criminal Court (ICC) of the situation relating to the so-called Islamic State (IS aka ISIS, ISIL, or Daesh) was vigorously discussed. At that meeting, which was convened by France and chaired by French Foreign Minister Laurent Fabius (who had travelled to New York specifically to preside over the meeting), more than a dozen of States lined up to call for a Council referral. However, confusion seemed to rein over what should be referred to the ICC. While most States appealed for a referral of the situation in Syria, some urged a referral of the situation in Iraq, others called for a referral of the situation in both States, and, finally, a few remained purposefully vague by calling for a referral of ‘the situation’, ‘the matter’, and even ‘the cases’ to the ICC. One issue was, however, clear: the reason to refer a situation to the ICC would be to make members of IS accountable for the crimes they committed.

This discussion about the possibility of prosecuting IS members at the ICC raises the question whether “situations” referred to the ICC must be defined by reference to a given territory. Is it possible to refer a worldwide situation relating to a group to the Court? Or must the situation referred be one occurring in a particular geographical location or in a particular state?

On 8th April 2015, ICC Prosecutor Fatou Bensouda stated that she will not open a preliminary examination concerning alleged crimes committed by IS, unless Iraq or Syria or the Security Council (SC) provide jurisdiction to the ICC. As Barrie Sander has noted this statement was an attempt by the Prosecutor to pressure States and, especially, the Security Council, to assume their responsibility and confer jurisdiction on the ICC over this situation.

Despite the Prosecutor’s ‘clarification’, neither Iraq nor Syria or the Security Council has yet taken action. Subsequent to her statement, Lithuania, Chile and the UK’ representatives at the UN have continued to push for a Council referral of the situation in Syria to the ICC – but to no avail. The position of Russia and China concerning a referral of Syria is known. They vetoed a similar attempt last year. One may think that the recent attempts to refer IS are trying to push through the window what some members of the Council were unable to push through the door in 2014. However, there is a difference. A Security Council referral of the crimes committed by IS tout court would enable the Prosecutor to charge members of IS not only for crimes committed in Syria or in Iraq but also for crimes committed in Libya, Yemen, Tunisia, France, and why not in the United States. Read the rest of this entry…

 
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