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The Interests of Justice- where does that come from? Part II

Published on August 14, 2019        Author: 
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Editor’s Note: This is part II of a two-part post. Read part I here.

After tracing the drafting history of article 53 of the Statute in part I of this post, part II is dedicated to the consequences that may be drawn from the relevant drafting history for the application of the “interests of justice” criterion.

The  “Interests of Justice”: a Criterion for a Limited Use

While the preparatory works of the Statute reveal that the drafters intended to provide for an “interests of justice” criterion, it is clear that they also intended to restrict its use, especially at the stage of the initiation of the investigation. This seems logical, as such a criterion was originally proposed only with regard to the initiation of prosecutions.

This conclusion arises from a comparison of the draft Statute as it stood on 18 June 1998 with the text of article 53 adopted during the last week of the Rome Conference. Such a comparison shows radical changes during the negotiations in Rome: (i) a negative formulation was finally adopted, whereas a positive determination was required from the Prosecutor at the beginning of the Rome Conference; (ii) the text of article 53(1)(c) was amended to start with the necessity to first consider factors militating in favour of an investigation (“the gravity of the crime and the interests of victims”); and (iii) a high threshold was inserted in relation to the “interests of justice” criterion (“substantial reasons”) in comparison to the relatively low threshold (“reasonable basis”) for the two other criteria provided for in article 53(1)(a) and (b). In addition to those changes, the drafters also adopted a specific mechanism of judicial review under article 53(3)(b) of the Statute with regard to the “interests of justice” criterion, which the Pre-Trial Chamber may initiate proprio motu.

Although the vagueness of the “interests of justice” criterion is regrettable, the absence of a specific definition in the Statute was “compensated” by the procedural compromise described in the preceding paragraph, which aimed to limit the use of interests of justice criterion and prevent its abuse. As mentioned already in the part I of this post, it was this procedural compromise that alleviated, to a certain extent, the concerns expressed by several delegations during the negotiations with regard to the existence of this criterion, and finally allowed its adoption in Rome. Read the rest of this entry…

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The Interests of Justice- where does that come from? Part I

Published on August 13, 2019        Author: 
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There has been much debate about the decision issued by Pre-Trial Chamber II rejecting the request by the Office of the Prosecutor to open an investigation into the situation in Afghanistan because such an investigation would not serve “the interests of justice”.

Despite the recent surge in academic interest in this criterion, which appears in article 53 of the Rome Statute (the “Statute”) of the International Criminal Court (the “ICC” or “Court”), not much has been written about its origins (for an exception, see here). Yet, the drafting history of the “interests of justice” criterion is highly instructive for its application. Accordingly, this post is divided in two parts: the first part will trace the drafting history of the “interests of justice” criterion; the second part will provide an interpretation of this criterion as informed by its drafting history.

It is worth recalling that the negotiations on the Rome Statute started on the basis of a project which was developed and finally adopted in 1994 by the International Law Commission (“ILC”). This project was discussed first in the context of an ad hoc Committee established by the United Nations General Assembly, which convened in April and August 1995. Then, a Preparatory Committee was established by the same Assembly, which convened twice in 1996, three times in 1997 and once in 1998. It is the final report of that Committee in April 1998 which was the basis for the negotiations during the Rome Conference, which took place from 15 June until 17 July 1998. Those formal sessions were completed by intersessional meetings during which useful progress was made.

The Draft Statute of the International Law Commission

There was no mention of the criterion of “interests of justice” in the Draft Statute for an International Criminal Court adopted by the ILC (“ILC Draft Statute”) in July 1994. Article 26 (‘Investigation of alleged crimes’) of the Draft Statute did not require the Prosecutor to consider specific criteria in deciding whether to initiate an investigation. This provision simply stated that the “Prosecutor shall initiate an investigation unless the Prosecutor concludes that there is no possible basis for a prosecution under this Statute and decides not to initiate an investigation”, in which case the Prosecutor had to inform the Presidency accordingly Read the rest of this entry…

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The Ituri Conundrum: Qualifying Conflicts between an Occupying Power and an Autonomous Non-State Actor

Published on July 15, 2019        Author: 
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Last week, Trial Chamber VI of the International Criminal Court (ICC) issued the long-awaited judgment in the Ntaganda case. The judges found the defendant guilty on all 18 counts, including the ICC’s first ever conviction for sexual slavery. Although the Chamber is yet to resolve matters related to sentencing and reparations, the decision marks an important milestone in the proceedings, which began with an arrest warrant issued back in August 2006 (Mr Ntaganda surrendered himself to the ICC in March 2013).

Readers of this blog will be familiar with the case as well as with some of the controversies surrounding its progress. In brief, Bosco Ntaganda was the Deputy Chief of Staff of the Patriotic Forces for the Liberation of Congo (FPLC), the armed wing of the Union of Congolese Patriots (UPC). The UPC/FPLC was one of the armed groups involved in the so-called Ituri conflict, which took place between 1999 and 2003 in the Ituri region in the north-eastern Democratic Republic of the Congo (DRC). Before the ICC, Mr Ntaganda was charged with 13 counts of war crimes and five counts of crimes against humanity, all allegedly committed in Ituri between 2002 and 2003.

The judgment, which fills over 500 pages, no doubt deserves careful scrutiny before any general pronouncements can be made as to its overall quality and rigour. Instead of analysing the judgment as a whole, this post focuses on a narrow question related to the Chamber’s legal qualification of the conflict in Ituri at the material time (discussed in paras 699–730 of the judgment). In particular, I am going to look at how international humanitarian law (IHL) qualifies conflicts between an occupying power and an autonomous non-State actor. The analysis builds on my research into complex conflict situations, which was published as part of my recent book on Internationalized Armed Conflicts in International Law (OUP 2018, especially chapter 3).

The situation in Ituri between 2002 and 2003 was notoriously convoluted, Read the rest of this entry…

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Clarifying the Contours of the Crime of Starvation

Published on June 27, 2019        Author:  and
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The Lack of Prosecutions

Starving civilians as a method of warfare has long been prohibited and criminalised across the full spectrum of international legal frameworks, yet despite this criminalisation and its grave human cost, there has yet to be a prosecution of starvation on the international level. Consequently, the crime and its intersection with a wide range of other violations remain entirely unexplored.

The crimes that have oc­cupied the international courts are those most frequently associated with an ongoing armed conflict. Whether the persecutory rapes in Bosnia, the slaughter in Rwanda, or the amputations of civilians in Freetown in Sierra Leone. This is the type of criminal conduct that appears to have shaped the perception of the type of deaths and injury that are most appropriate for prosecution in modern international criminal courts, with starvation languishing on the margins of prosecutorial imagination and practice.

In a legal policy paper recently issued by Global Rights Compliance (GRC), we set out in more detail the reasons behind the dearth of prosecutions and explore the paths to prohibition and accountability for the widespread and systematic death and suffering that it causes worldwide, with a focus on criminal prosecutions.

The F Word – The Return of Famines

Famines have returned and they strike where accountability (political or criminal) fails. In 2017 the UN identified four situations of acute food insecurity that threatened famine or breached that threshold, in north-eastern Nigeria, Somalia, South Sudan and Yemen. In December 2018 famine was formally declared across regions of Yemen, this is likely to be the famine that will define this era. Starvation is also being used as a weapon of war in Syria and the Democratic Republic of Congo. The Gaza Strip and in Venezuela also suffer from the manipulation, obstruction and politicization of food and humanitarian aid. Read the rest of this entry…

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Interests of Justice? The ICC urgently needs reforms

Published on June 11, 2019        Author: 
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The demands for an “independent evaluation” through a small group of experts, formulated by four former presidents of the Assembly of State Parties of the International Criminal Court (ICC) and accompanied by several critical blogs (see, inter alia, here, here, here and here) is the outcome of several controversial court decisions and the Court’s manifest problem in its decision-making process, i.e., its serious governance problems.

Probably the most controversial decision, made on 12 April 2019, concerns the rejection by Pre-Trial Chamber (PTC) II of the Prosecutor’s application of the initiation of a (formal) investigation into the Afghanistan situation involving crimes allegedly committed by the Taliban, Afghan and US military forces. The PTC based its decision on a broad interpretation of the ambiguous concept of “interests of justice” (Art. 53(1)(c) Rome Statute) and the expected lack of cooperation by Afghanistan and the USA, allegedly resulting in limited chances of a successful investigation. Thereby the Chamber converts the interests of justice concept into a utilitarian efficiency clause which is predicated on the possible success of the proceedings. Not only is this difficult to reconcile with the rationale of the said concept but also incompatible with the wording of Art. 53(1)(c) which links the “interest of justice” to, inter alia, the gravity of the crime and the interests of the victims. Yet, both of these criteria speak for the opposite result than that reached by the Chamber, namely the opening of the formal investigation. For the gravity of the crimes is acknowledged by the Chamber itself and the victims’ interests are reflected by the submission of information by hundreds of them during the preliminary examination. If a Chamber considers that despite the existence of gravity and interests of victims “an investigation would not serve the interests of justice”, i.e. “nonetheless” (Art. 53(1)(c)) the existence of these criteria, it must show that there are more important “substantial reasons” which displace the prima facie interests of justice (derived from gravity and victims’ interests) in favour of opening a formal investigation. In other words, while the term “nonetheless” makes clear that there may be countervailing considerations which may speak against the opening of an investigation despite gravity and victims’ interests, these countervailing considerations must be thoroughly substantiated and, at any rate, do not turn the interests of justice clause into a mere, free floating policy factor which gives a Chamber an unfettered discretion (see also Ambos, Treatise International Criminal Law Vol. III, 2016, p. 390). The present Chamber fails to grasp these complexities and therebyshows a lack of sensibility with regard to the “interests of justice” concept. Thus, it is not surprising that the decision has met serious criticisms in the international criminal law blogsphere (see here, here, here and here) and the Prosecutor filed a leave to appeal request on 7 June 2019. The most recent Appeals Chamber decision from the 6 May 2019, denying the personal immunity of the then Sudanese President Al-Bashir and interpreting the non-immunity rule of Art. 27 Rome Statute as one of customary law, has also received some criticism (see here and here) but ultimately deserves support (see here and here) since it confirms the historical (Nuremberg) trend of non-immunity in international criminal justice. Read the rest of this entry…

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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…

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Whither the Aspirational ICC, Welcome the ‘Practical’ Court?

Published on May 22, 2019        Author: 
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What is the promise of the International Criminal Court (ICC)? What do we, as observers, scholars, and constructive critics of the Court, believe that the ICC should do in a world of populism, altered balances of power, and persistent atrocity? Why has the Court been able to achieve so little and what would be required, in terms of new strategies and reforms, to build a better ICC? What do we believe that the institution should look like in the future? What is our vision of the ICC?

Over the past few weeks, EJIL:Talk! has hosted a number of thoughtful and thought-provoking essays seeking to answer some of these questions. With this piece, I want to ask admittedly less than legal questions: is the ICC becoming a less aspirational institution and can we balance the aspirations of ICC justice with the need to deliver meaningful accountability?

The Shadow of Expectations

It is now conventional wisdom that, for the majority of its existence, the ICC and its backers promised too much to too many. As is often pointed out, the Court and its most fervent champions set expectations that the ICC could never meet. They insisted that the Court would end impunity for international crimes, put victims front and center in all of its work, transcend global power relations, deter mass atrocities, hold the most powerful to account, promote reconciliation… you name it. It’s a laundry list of things that the ICC didn’t achieve because it couldn’t achieve them. It should never have been asked to.

The ICC hasn’t been a panacea for political ills such as violent political conflict or social challenges such as reconciliation. Unmet expectations have thus left many proponents privately regretful of having espoused unrealistic expectations about the Court and worrying about the disappointment that ensued. Now, the aim of many – both inside and outside of the ICC – is to focus on being realistic and on what the Court can realistically achieve. But there may be a cost to bending too far towards practicality: the loss of an institution that is meaningfully aspirational. The goal must be to strike a balance practicality and aspiration. Read the rest of this entry…

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To be a Party or not to be a Party: Malaysia’s envisaged ‘withdrawal’ from its (pending) accession to the Rome Statute

Published on May 14, 2019        Author:  and
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As inter alia confirmed by its recent judgments concerning the Afghanistan situation and the Al Bashir case, the ICC currently finds itself in truly turbulent times. What is more, is that the Rome Statute has turned out to be a real treasure trove when it comes to the international law of treaties. This includes, inter alia, the ratification of the Rome Statute by Palestine and the ensuing question as to whether the accession by Palestine ought to be counted towards the quorum of 30 ratifications of the Kampala Amendment so as to provide for its entry into force (see here), as well as other intriguing questions of treaty law raised by the Kampala compromise on the crime of aggression and the way in which to eventually amend the Rome Statute (see here). The withdrawals by Gambia and South Africa, which both later, albeit for different reasons, ‘withdrew from their respective withdrawals’ before they even became effective (see here and here), as well as Burundi’s withdrawal in October 2017 (see here), and most recently that by the Phillipines, again raised various issues of treaty law. 

Yet another question of treaty law relating to the Rome Statute is emerging. After having submitted its instrument of accession to the UN Secretary General on 4 March 2019 (see here), which in accordance with Art. 126 (2) of the Rome Statute means that Malaysia would have formally become a State Party on 1 June 2019, the Malaysian Prime Minister announced on 5 April 2019 the Malaysian government’s decision to, as he put it, ‘rescind its membership of the Statute’. Read the rest of this entry…

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Comments Off on To be a Party or not to be a Party: Malaysia’s envisaged ‘withdrawal’ from its (pending) accession to the Rome Statute

Reforming the International Criminal Court: Is it Time for the Assembly of State Parties to be the adults in the room?

Published on May 8, 2019        Author: 
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The self-inflicted misfortunes of the International Criminal Court continue. The recent Pre-Trial Chamber decision not to authorise the opening of an investigation in Afghanistan has already generated considerable controversy (see here, here, here, here and here). The rather surprising news that Judge Ozaki would be allowed to continue to serve part time on the Court while becoming Japan’s ambassador to Estonia has also drawn criticism. And, of course, on Monday the Al Bashir immunity decision was handed down. Amidst the hubbub, one other development has gone relatively unremarked. The first four presidents of the ICC Assembly of States Parties (ASP) have released a joint op-ed through the Atlantic Council entitled “the International criminal court needs fixing”. For present purposes, it is enough to note several key points.

The op-ed calls for “an independent assessment of the court’s functioning by a small group of international experts”. This call appears triggered by the Afghanistan decision which they see as expressing “a lack of confidence that the Court could successfully carry out the job.” The rest of the piece pursues two central points – and a cluster of worrying claims. Read the rest of this entry…

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ICC Appeals Chamber Holds that Heads of State Have No Immunity Under Customary International Law Before International Tribunals

Published on May 6, 2019        Author: 
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The Appeals Chamber of the International Criminal Court (ICC) has, this morning, issued what seems to be an extremely controversial decision on Head of State Immunity. At the time of writing, the full written judgment is not yet available in the appeal by Jordan against the decision of the Pre-Trial Chamber referring that state to the UN Security Council for failing to arrest then President of Sudan, Omar Al Bashir when he attended an Arab League Summit in March 2017.  However, in the oral and written summary of the judgment, delivered this morning by the President of the Court, Judge Chile Eboe-Osuji, the Appeals Chamber appears to have held that under customary international law, heads of state have no immunity from criminal prosecution international criminal courts. The provision in Article 27(2) of the ICC Statute that “Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person” , according to the summary of the judgment:

“represents more than a stipulation in treaty law. The provision also reflects the status of customary international law, as it concerns the jurisdiction that an international criminal court is properly entitled to exercise.”

In so holding, the Appeals Chamber, once again changes the basis on which the ICC has held that the Sudanese (now former) President was not immune from the arrest in ICC states parties that he visited (for a quick overview of the Court’s previous inconsistent decisions, see this AJIL Unbound piece). Indeed the Appeals Chamber appears to explicitly endorse the much criticised decision of Pre-Trial chamber I in the Malawi Decision. The Summary states that:

“39. In this regard, the Appeals Chamber is fully satisfied that the pronouncements made by the Pre-Trial Chamber I in the Malawi Referral Decision — and those made by the Appeals Chamber of the Special Court for Sierra Leone in the case of Charles Taylor (who was indicted before that international court when he was the sitting President of Liberia) — have adequately and correctly confirmed the absence of a rule of customary international law recognising Head of State immunity before international courts in the exercise of proper jurisdiction. 
40. The effect of absence of a rule of customary law recognising Head of State immunity, in relation to international courts, is not readily avoided through the backdoor: by asserting immunity that operates in the horizontal relationship between States, in a manner that would effectively bar an international court from exercising its jurisdiction over the person whose arrest and surrender it has requested. The law does not readily condone something to be done through the backdoor, if the law has forbidden the thing to be done through the front door.”

This is stunning and appears to be deeply misguided. It is also, in my opinion, a very dangerous and unwise move for the Court to make. This reasoning appears to assert that parties to the Rome Statute, have, by creating the Court, taken away the rights of non-party states under international law. Dangerous because this reasoning is likely to stiffen opposition to the Court by non-parties. The John Bolton’s of this world and many people far more reasonable will point to this ruling to set out precisely why it is important to oppose this court and other international criminal courts. As I stated here many years ago, the Malawi decision was a terrible one.  It was very poorly reasoned and roundly criticised by others as well (see Bill Schabas and Dov Jacobs). It is extremely disappointing to see it resurrected. Not least because the issue of the immunity of heads of state before international criminal courts is not what is at issue in these cases. What was is at issue is the immunity of heads of states from arrest by other states acting at the request of an international criminal court. That the head of state may not have immunity before the international criminal court does not, without more, say anything about whether he or she may have immunity before a foreign state.

Read the rest of this entry…

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