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Home International Tribunals Archive for category "International Criminal Court"

The scope of ICC jurisdiction over the crime of aggression: a different perspective

Published on September 29, 2017        Author: 

In his post of 26 June 2017 Dapo Akande asks:

“Are nationals of states that do not ratify or accept the Kampala amendments, and which also do not opt out of ICC jurisdiction as provided for in those amendments, subject to ICC jurisdiction over aggression in cases where the situation is referred to the Court by a state, or the prosecutor takes up the matter proprio motu?”

Why does the answer to this question matter? “No” means that an ICC state party that has ratified the amendments will enjoy the Court’s judicial protection only if it falls victim to aggression by one of the other (currently) 33 ratifying states. It would be an opt-in regime for potential aggressor states, and in fact, they could at any time later opt-out again (opt-in-opt-out). “Yes” means that such protection extends to aggression committed by any of the 123 other ICC states parties – of course with the significant caveat they can still opt out. That would be an opt-out regime. All of this of course only in the absence of a referral by the UN Security Council, which would make state consent a moot point.

The issue is currently discussed by ICC states parties in view of the activation decision to be taken in December 2017. I am therefore happy to explain why I think the answer is “yes”, even though Dapo gave a thoughtful argument for “no”. Read the rest of this entry…

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Who is the victim of cultural heritage destruction? The Reparations Order in the case of the Prosecutor v Ahmad Al Faqi Al Mahdi

Published on August 25, 2017        Author: 

On 17 August 2017, Trial Chamber VIII of the ICC issued its Reparations Order in the Al Mahdi case. The Chamber found that Al Mahdi was liable for 2.7 million euros for (a) the damage caused by the attack of nine mosques and the Sidi Yahia Mosque door; (b) the economic loss caused to the individuals whose livelihoods depended upon the tourism and maintenance of these ‘Protected Buildings’ and to the community of Timbuktu as a whole; and (c) the moral harm caused by the attacks, as illustrated by one of the victims quoted in the order: “My faith is shattered. My family fled [.] […] I lost everything and all my faith” (at §85).

The Reparations Order builds upon the reparations principles established in Lubanga and Katanga. However, it is also one of the few opportunities public international law has had to pronounce upon appropriate reparations for heritage destruction—forming part of the string of ‘firsts’ involved in Al Mahdi thus far.

Who is a ‘relevant victim’ of cultural heritage destruction?

The Chamber identified three groups of victims: the inhabitants of Timbuktu, as the direct victims of the crime; the population of Mali; and, notably, the international community. The latter category is a new element in the reparations jurisprudence of the Court, and its inclusion in the present Order seems to be mostly a consequence of the particular category of crime the Chamber was dealing with. Read the rest of this entry…

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The Al-Werfalli Arrest Warrant: Denial of Fair Trial as an Additional Allegation and a Hint at a Possible Defence

Published on August 23, 2017        Author: 

Last week, the International Criminal Court (ICC) issued an arrest warrant in the Libya Situation against Mahmoud Al-Werfalli. The arrest warrant alleges that Al-Werfalli is criminally responsible for the war crime of Murder, in a non-international armed conflict, pursuant to Article 8(2)(c)(i) of the Rome Statute, in relation to the alleged summary execution of 33 persons. Based on the facts laid out in the arrest warrant, the ICC Office of the Prosecutor (OTP) could also have alleged that Al-Werfalli is criminally responsible for the war crime of “sentencing or executing without due process” (“denial of fair trial”) pursuant to Article 8(2)(c)(iv) of the Rome Statute. This choice would be novel in modern international criminal law practice. However, it has been done in other jurisdictions (See J. DePiazza, “Denial of Fair Trial as an International Crime — Precedent for Pleading and Proving it under the Rome Statute” 15 Journal of International Criminal Justice (2017)). Another interesting element of the arrest warrant is that it hints at a possible defence to any eventual charge of murder or denial of fair trial – mistake of fact.

According to the arrest warrant, Al-Werfalli is a Commander in the Al-Saiqa Brigade, an elite unit reported to comprise 5,000 soldiers. In May 2014, the Brigade joined “Operation Dignity”, with other armed elements, for the reported purpose of fighting terrorist groups in Benghazi. The operation continued until at least 18 March 2017. In this context, the arrest warrant alleges that, in seven separate incidents, 33 persons who were either civilians or persons hors de combat, were detained and then executed. It is alleged that they were either executed personally by Al-Werfalli or on his orders. The arrest warrant further alleges that “[t]here is no information in the evidence to show that they have been afforded a trial by a legitimate court, whether military or otherwise” (Arrest Warrant, para. 10). Read the rest of this entry…

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The ICC’s immunity debate – the need for finality

Published on August 11, 2017        Author:  and

In a judgment given last month, on 6 July, the Pre-Trial Chamber of the International Criminal Court (ICC) confronted the vexed legal question of immunities for heads of state who are alleged to have committed international crimes. It did so in a case involving South Africa’s failure to arrest President Bashir of Sudan when he attended the AU heads of summit meeting in Johannesburg in June 2015.

While Judge Marc Perrin de Brichambaut wrote a separate opinion, the three-panel Pre-trial Chamber (PTC) reached the unanimous conclusion that South Africa had failed to comply with the request that had been issued by the ICC to arrest Bashir for serious crimes allegedly committed in the Darfur region of Sudan. The PTC found that states parties to the Rome Statute, such as South Africa, are required to arrest and surrender Bashir to the ICC where he is found in their territory.

We are not here debating the merits or otherwise of the PTC decision. It is enough to stress that the judgment comes at a fraught political time for the ICC, and its relationship with African states and the AU. The impetus for this joint piece arises from the legitimate and expressed concerns of African states parties (like South Africa) regarding their obligations to cooperate with the ICC in surrendering heads of states of non-state parties (like Sudan) to the Court in the light of, inter alia, the rules of customary international law on immunities.

The technical legal issues relate to the relationship between Articles 27 and 98 of the Rome Statute, which has been raised by a number of African states, particularly South Africa in relation to the Bashir case, as well as the African Union (AU). The subject has been a central concern of the AU as well as ICC member-states seeking measures to reform and improve the ICC. The concern, in a nutshell, is how to balance the obligations owed to the ICC to arrest heads of state, with the customary international law immunities that are ordinarily accorded to such officials. African states have felt the brunt of what have been described as “competing obligations” – being pulled in one direction to assist the ICC, and in the other direction by customary international law duty to respect official immunities. In recent times, Jordan, regarded by many as a friend of the ICC and the first Arab state to ratify the Rome Statute, has also had to confront the tension between the Rome Statute duty to arrest Al Bashir and the duty under customary international law to respect his immunities.

In the lead-up to the PTC’s finding on 6 July, South Africa had been invited by the ICC to make submissions to the PTC explaining its reasons for failing to arrest Bashir. The Prosecutor of the ICC filed submissions in response. And the PTC also admitted the Southern Africa Litigation Centre (the NGO that had brought cases in South Africa’s courts successfully challenging the government’s failure to arrest Bashir) to make submissions [all available here].

We were on opposing sides as lawyers in that dispute (with Tladi acting for the government, and du Plessis acting as counsel for SALC). We nevertheless now write jointly (and in our personal capacities) because of a shared belief that there remains a need for the dispute to be resolved finally through judicial means.  Read the rest of this entry…

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Why the ICC won’t get it right – The Legal Nature of UN Security Council Referrals and Al-Bashir Immunities

Published on July 24, 2017        Author: 

As readers of this blog probably know, the issue of personal immunities of Sudanese President Al-Bashir is highly controversial (see here, here, here, here, here, here, here and here). In particular, previous rulings by the ICC’s Pre-Trial Chambers have been criticized for their incorrect, inadequate and/or inconsistent reasoning for concluding that personal immunities do not apply in case of Sudanese President Omar Al Bashir.

On 6 July 2017, the Pre-Trial Chamber II issued yet another set of arguments for the same conclusion (here), while Judge Marc Perrin de Brichambaut issued a minority opinion disagreeing with the majority’s reasoning (here). In essence, the PTC II, by majority, held that

because the rights and obligations as provided for in the Statute, including article 27(2), are applicable to Sudan (by imposition of the Security Council acting under Chapter VII of the UN Charter), the immunities of Omar Al-Bashir as Head of State do not bar States Parties to the Rome Statute from executing the Court’s request of his arrest and surrender (para 107)

Disagreeing with the majority decision, Judge Brichambaut found that “the current state of the law does not allow a definite answer to be reached in relation to the question of whether this resolution removes the immunities of Omar Al Bashir” (para 83). However, Judge Brichambaut finds that

The combined effect of a literal and contextual interpretation of article IV of the Genocide Convention, in conjunction with an assessment of the object and purpose of this treaty, lead to the conclusion that Omar Al-Bashir does not enjoy personal immunity, having been “charged” with genocide within the meaning of article VI of the Genocide Convention. (para 100)

In this blog post, I am not addressing the decision or the minority opinion specifically (as I am sure others will do so shortly). Rather, I wish to present a theory of the legal nature of SC referrals, without which, the ICC will not get the issues surrounding Bashir’s immunities right. Read the rest of this entry…

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The ICC Assembly of States Parties Prepares to Activate the ICC’s Jurisdiction over the Crime of Aggression: But Who Will be Covered by that Jurisdiction?

Published on June 26, 2017        Author: 

The states parties to the Statute of the International Criminal Court have been meeting in New York recently to begin discussions that it is hoped will lead to a decision at this December’s Assembly of States Parties to activate the Court’s jurisdiction over the crime of aggression. These discussions are taking place seven years after the ICC states parties, meeting in Kampala, Uganda, adopted a series of amendments to the ICC Statute dealing with the crime of aggression. Those amendments remedied the failure to agree in 1998 in Rome on the definition of the crime of aggression and the conditions under which the Court can exercise jurisdiction over aggression. However in Kampala, states parties decided that the Court’s exercise of jurisdiction over aggression would require 30 ratifications or acceptances [(Arts. 15 bis (2); Arts. 15ter (2), ICC Statute], and could not happen prior to the taking of a decision by the states parties to activate that jurisdiction, with such decision not to be taken before 1 January 2017 [(Arts. 15bis (3); Arts. 15ter (3), ICC Statute]. In Kampala states parties “Resolved to activate the Court’s jurisdiction over the crime of aggression as early as possible” [Resolution RC/Res. 6]. States parties now face the moment of decision.

It was a privilege to be invited to a meeting of states parties held on June 2, at the UN Headquarters in NY, to present my views on what has turned out to be the most contentious question in the current discussions about aggression: who will be subject to the ICC’s jurisdiction with respect to the crime of aggression? It should be recalled that states parties to the Rome Statute may choose to opt out of the ICC’s jurisdiction over aggression under Art. 15bis (4) of the amended ICC Statute by simply lodging a declaration with the Registrar of the Court. However, some states that have not yet ratified the amendments are of the view they should not be required to opt out in order for their nationals to be exempt from ICC jurisdiction over aggression. Thus, the most important question on which there are different views among state parties is this:

Are nationals of states that do not ratify or accept the Kampala amendments, and which also do not opt out of ICC jurisdiction as provided for in those amendments, subject to ICC jurisdiction over aggression in cases where the situation is referred to the Court by a state, or the prosecutor takes up the matter propio motu?

In summary, my view on that question, which I will set out below, is that the Court will not have jurisdiction in such a situation. Read the rest of this entry…

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Chechnya’s Anti-Gay Purge: Crimes Against Humanity

Published on May 9, 2017        Author: 

Despite widespread condemnation from the U.N., Council of Europe, E.U., United States, and other countries, a brutal campaign against gay men in Chechnya continues. The abuses take the form of abduction-style detention, enforced disappearances, torture, and killings. Considering the systematic features and the brutality of the abuses, Chechnya’s anti-gay campaign amounts to crimes against humanity, and it demands proper condemnation and response from the international community.

Crimes against humanity, as an international crime, has been defined in various statues and law commissions’ proposals since 1945. They each have their own distinctive feature tailored to the specific historical context during which they were drafted. For example, the Nuremberg Charter and the International Criminal Tribunal for the former Yugoslavia (ICTY) Statute’s definition require the element “in armed conflicts”, while the International Criminal Tribunal for Rwanda (ICTR) Statute requires a discriminatory intent. This note uses the definition in Article 7 of the Rome Statue of the International Criminal Court (ICC): “any of the acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack,” followed by specific acts listed in sub-paragraphs. This definition has been almost entirely adopted by the International Law Commission in its latest version of draft articles on crimes against humanity (note: the proposed draft articles are still in work progress).

Murder, Imprisonment, Torture, Enforced Disappearance, and Other Inhumane Acts

The argument that the Chechnya’s campaign against gay men constitutes crimes against humanity as the criminal acts listed in Article 7.1 (a), (e), (f), and (i) is quite straightforward. There has been credible reporting on abuses committed against gay men in Chechnya, including abduction, imprisonment, enforced disappearances, torture, and killings. All the described abuses have been approved by Chechen local government, with Moscow turning a blind eye to them. In many cases, violations were directly committed by Chechen security forces. Read the rest of this entry…

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The Evacuation of Eastern Aleppo: Humanitarian Obligation or War Crime?

Published on March 14, 2017        Author: 

On March 1, the UN Independent International Commission of Inquiry on the Syrian Arab Republic (“the Commission”) released a report on the horrific events that unfolded in Aleppo last year until it was captured by the Syrian governmental forces. The Aleppo report covers acts which may amount to violations of international human rights law or international humanitarian law (IHL), committed by all warring parties between 21 July and 22 December 2016. The Commission, whose reports will be instrumental for ongoing and future efforts to hold perpetrators accountable, should be commended for collecting and analyzing such an impressive amount of information in so little time.

The Aleppo report contains an appalling catalogue of allegations of egregious violations, including attacks against civilian infrastructures, hospitals, a UN/SARC humanitarian convoy and the use of chemical weapons. One allegation in particular caught the attention of the media: the Commission argues that the evacuation of eastern Aleppo amounts to the war crime of forced displacement. The Commission’s claim may at first seem astonishing not only because it stands in stark contrast with the then prevailing narrative of a humanitarian evacuation designed to alleviate human suffering, but also because the evacuation was based on an agreement between the warring parties – which means that opposing parties would have jointly committed a war crime. This post examines, on the basis of publicly available information, the legal foundation of this serious allegation.

The evacuation agreement

The evacuation of the rebel-held parts of the eastern districts of Aleppo was agreed between the warring parties as part of a cease-fire deal brokered by Russia and Turkey on 15 December 2016. The fall of this key rebel stronghold marked a major victory for the government forces, but it also offered rebels a safe passage into other rebel-held areas elsewhere in Syria. By 22 December, more than 35,000 people had been evacuated from the besieged areas of Aleppo to Idlib province (for the most part) or to western Aleppo. Read the rest of this entry…

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Unconstitutional and Invalid: South Africa’s Withdrawal from the ICC Barred (For Now)

Published on February 27, 2017        Author: 

On 22 February 2017, the South African High Court handed down a significant decision invalidating South Africa’s notice of withdrawal from the International Criminal Court (ICC). The case was brought by the official opposition party, the Democratic Alliance, and joined by a number of civil society actors. The court’s conclusion that prior parliamentary approval was necessary before South Africa could withdraw from the ICC bears similarities to the recent decision of the UK Supreme Court on the UK’s withdrawal from the European Union.

The South African judgment concerned the decision of the Minister of International Relations and Cooperation to send a notice of withdrawal to the UN Secretary-General in October 2016 (see my previous post on this for more details), without prior announcement that the government had decided to withdraw from the ICC, nor any public consultation on the matter. The government’s reasons for leaving the ICC, as surveyed by Dapo, had centred on the claim that the Rome Statute and the South African legislation domesticating the Rome Statute (the ‘Implementation of the Rome Statute of the International Criminal Court Act of 2002’), required the government to arrest sitting African heads of State, contrary to customary international law rules on immunity. This, it was argued, undermined South Africa’s peace-making efforts on the Continent. These issues had come to a head during President Bashir’s visit to South Africa in June 2015, when South Africa had failed to execute outstanding ICC arrest warrants against him. This led to non-cooperation proceedings against South Africa at the ICC (which will take place in April), and South African High Court and Supreme Court of Appeal decisions holding the government’s failure to arrest President Bashir to be unconstitutional. The pushback was not well received by the South African Executive.

Given the 12-month notice period prescribed in Article 127(1) of the Rome Statute of the ICC, South Africa was set to leave the court in October 2017. However, the High Court decision has, at the very least, pushed back the timeline for withdrawal (absent a rapid successful appeal by the government). It also presents an important, and perhaps final, opportunity to engage the government concerning its decision to leave the ICC. Here I give a brief overview of the decision, highlighting certain issues concerning parliamentary involvement in treaty withdrawal, and discuss some possibilities for persuading South Africa to retain its membership in the ICC.

The High Court Decision

The High Court was faced with a question similar to that decided by the UK Supreme Court in the recent Brexit decision – can the Executive withdraw from an international treaty, which had been ratified and domesticated by Parliament, without prior Parliamentary approval? The question is not directly addressed by the South African Constitution, which contains no explicit provision on treaty withdrawal, and had not yet received judicial attention. Like the UK Supreme Court, the South African High Court answered in the negative. It held that since section 231(2) of the South African Constitution requires Parliamentary approval for treaties subject to ratification, this section also by implication requires the consent of Parliament to withdraw from such treaties. Therefore, the notice of withdrawal was unconstitutional and invalid. Read the rest of this entry…

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Post-Truth and International Criminal Tribunals

Published on February 20, 2017        Author: 

With all the daily going-ons of our new era of resurgent populist nationalism, it’s no wonder that concepts such as ‘post-truth’ and ‘alternative facts’ are so very much en vogue, or that Orwell’s 1984 and other dystopian classics are once more hitting the best-seller lists. But the sad truth is that there’s nothing really new about ‘post-truth’, except that it is today afflicting developed, democratic societies that until now did not experience the phenomenon, or at least did not experience it in full force.

Trump photographed at Mar a Lago with Japanese Prime Minister Shinzo Abe during the news of North Korean missile launch. Photograph: Erika Bain. Source: https://www.theguardian.com/us-news/2017/feb/13/mar-a-lago-north-korea-missile-crisis-trump-national-security#img-2

Nor did post-truth start in these societies just out of the blue – it was preceded by decades of democratic de-norming, institutional erosion, increasing polarization and identity politics (think, for example, of how climate change became a point of polarized partisan politics in the US, or of the distorting power and influence of the (mainly right-wing) tabloid press in the UK).

Even in democracies politicians are not a species generally known for its love of the truth. It is no wonder then that in a favourable climate a sub-species of particularly cynical manipulators who are either ready to routinely lie outright or are just simply indifferent to the truth will emerge. Coupled with the natural inclination of the human mind to evaluate evidence in a biased way and to reason about it in a way that confirms pre-existing beliefs and protects one’s sense of identity, in much (most?) of the world post-truth politics are the rule, rather than the exception. Trump may be the most important exponent of the current wave of mendacious populism, but he is hardly avant-garde. For decades now, for example, many of the Balkan states have experienced their own ego-maniacal, soft-authoritarian mini-Trumps, and let’s not even mention all of the Putins, Dutertes and Erdogans out there.

Which brings me to my point. Post-truth and alternative facts have historically been perfectly standard when it comes to inter-group conflicts, especially in societies which are not genuinely pluralist. Pick any random group conflict in the world, and you are likely to find that each group lives and breaths its own particular truth. In our international legal community, many have thought that it is the role of international criminal courts and tribunals to generate the ‘real’ truths that will eventually garner acceptance in societies riven by conflict. Unfortunately, however, there is little evidence that such truth-generating potential is anything but theoretical.

Read the rest of this entry…

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