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The ICC and US Retaliatory Visa Measures: Can the UN Do More to Support the Privileges & Immunities of the Prosecutor?

Published on April 23, 2019        Author:  and

On 12 April 2019, the ICC Pre-Trial Chamber II decided to reject the Prosecutor’s request to open an investigation into the situation in Afghanistan on the grounds that an investigation would not be “in the interests of justice,” though it found that the case otherwise satisfied the requirements of jurisdiction and admissibility set forth in the Rome Statute (see recent posts here). The ruling came on the heels of the US revocation on 5 April of ICC Prosecutor Fatou Bensouda’s visa for entry to the US, and prior US threats to take action against the ICC for examining the situations in Afghanistan and Palestine.

While the Pre-Trial Chamber (PTC) made no direct mention of recent US hostility towards the ICC, it appears to have implied, and others have suggested (here, here, and here), that such pressure played a role in the decision. As the PTC noted, “subsequent changes within the relevant political landscape both in Afghanistan and in key States (both Parties and non-Parties to the Statute), coupled with the complexity and volatility of the political climate still surrounding the Afghan scenario, make it extremely difficult to gauge the prospects of securing meaningful cooperation from relevant authorities for the future […]” (para. 94).

Senior US officials were quick to claim victory and take credit for the development, ostensibly linking US pressure to the outcome. Alluding to a potential appeal of the PTC decision, as well as the Prosecutor’s preliminary examination into the situation in Palestine, President Trump menaced that US actions against the ICC could continue: “any attempt to target American, Israeli or allied personnel for prosecution will be met with a swift and vigorous response.”

This post considers how the United Nations can—and may be obliged to—play a bigger role in helping to protect the Prosecutor and her team from one form of this US hostility towards the Court: visa restrictions. Despite US obligations under the US-UN Headquarters Agreement to allow the transit of individuals conducting business at UN Headquarters, some ambiguity surrounds the question of when and under what conditions the US will allow the Prosecutor access to Headquarters now that her visa has been revoked. Read the rest of this entry…

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Not just another ‘crisis’: Could the blocking of the Afghanistan investigation spell the end of the ICC? (Part II)

Published on April 20, 2019        Author: 

Part II of this post addresses the larger implications of the PTC’s decision. For part I discussing its treatment of the ‘interests of justice’, see here .

Justice and pragmatism

In my previous post, I argued that, as a result of the Pre-Trial Chamber’s incorrect interpretation of the ‘interests of justice’ standard, extra-legal considerations controlled the outcome of its determination. This part shows why this is problematic in terms of the legitimacy of the Court and of the broader project it symbolizes. 

But first, is there no silver lining and nothing to defend in the PTC’s decision to deny authorization of the investigation in Afghanistan? As noted elsewhere, the ‘crises’ in international criminal justice tend to consolidate members of the epistemic and support communities around the institutions while also bringing the existing ideological and other fault lines into sharper relief. There is no uniform consensus on the PTC decision either.

Some (mostly US-based) commentators suggest that the PTC’s decision on the Afghanistan probe was overdetermined, understandable, and thus, in a way, justifiable. After all, it was a well-known fact—even prior to the unequivocal statements by John Bolton in September 2018 and Mike Pompeo in March 2019—that the US would not tolerate the prospect of the ICC Prosecutor investigating the conduct of its armed forces and CIA personnel. Most recently, the US government’s hostility towards the Court took the form of overt pressure and visa restrictions meant to dissuade the ICC staff from (and punish it for) pursuing that course of action. The judges’ blocking the investigation is not merely caving to pressure, the argument goes, but it is ‘caving to reality’: a prudent step towards de-escalation and much-needed institutional adjustment (see Bosco and Buchwald). This is what the triumph of pragmatism over the idealistic and over-reaching attempts to bring accountability for the alleged crimes in Afghanistan looks like. It is warranted by the need for the Court to better prioritize its work, focus on the more tangible goals, and direct its scarce resources to situations ‘where there exists some meaningful prospect of success’ (Whiting). This makes sense, particularly considering the Court’s poor track record in terms of securing convictions over the past years in situations seemingly less complex than that of Afghanistan.

It may well be that the Afghanistan investigation would not have led to prosecutorial success or even any cases at all. There is also no doubt that the opening of the investigation would have led to further escalation with the US and seriously complicated the situation for the Court and for its employees. It is also highly likely that the Prosecutor would continue facing serious difficulties obtaining cooperation of the relevant actors in the situation – the factor of some pertinence to the interests of justice. That said, this remains an assumption – and a questionable one at that when it comes to the investigation of the Taliban crimes.

The realist arguments are not patently misconceived or groundless (or at least, not all of them). The problem is that, even assuming arguendo that those concerns may be considered as validly falling within the ‘interests of justice’ (which they arguably may not), they are still hard to accept from a normative and legal policy angles. Importantly, as already noted in the debates, the non-authorization of the Afghanistan investigation effectively rewards non-cooperation and political pressure by states.Furthermore, while it might be more appropriate for those considerations to inform the discretionary decisions of the Prosecutor, it is disconcerting to see their trickling into the key paragraphs of the PTC Decision (paras 91-95). As the more diplomatic Alex Whiting put it, ‘[t]he ICC judges grappled with these realities more openly than we’re often accustomed’.

The implications of this are consequential and problematic. 

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Not just another ‘crisis’: Could the blocking of the Afghanistan investigation spell the end of the ICC? (Part I)

Published on April 19, 2019        Author: 

This is a two-part post on the PTC’s Afghanistan non-investigation decision. Part I discusses the PTC’s analysis of the interests of justice requirement. Part II will focus on the decision’s broader implications.  

Judicial meltdown

The Decision of Pre-Trial Chamber II of 12 April 2019 to turn down the Prosecutor’s 20 November 2017 Request for authorization to commence an investigation in Afghanistan came as a shock to many observers. It is the anti-climax of more than a decade-long preliminary examination by the Office of the Prosecutor and one-and-a-half years of judicial deliberations. Although it was always within the range of possibilities that the PTC would decline, it was the least expected outcome. In her Request, the Prosecutor had shown—and the Chamber agreed—that there existed reasonable grounds to believe that crimes within the ICC’s jurisdiction had been committed in the situation since 1 May 2003 and the potential cases would have been admissible before the Court. The judges differed from the Prosecutor in one decisive respect on which the rejection essentially—and problematically—rests: the opening of the investigation would not have satisfied Article 53.1.c of the Statute, i.e. there were substantial reasons to believe that the investigation would not serve the “interests of justice”.

It is far from clear whether the Prosecutor will be able or indeed willing to appeal the PTC Decision (my preliminary answer is no on both points). Moreover, Article 15.4 authorizes the Prosecutor to file a new request ‘based on new facts or evidence regarding the same situation’. While this could be the way to resuscitate the procedure, it is uncertain whether the OTP would consider using it – or whether ‘new’ facts or evidence could show a change in relevant circumstances (see para. 94) and reverse the PTC’s ‘interests of justice’ assessment. The other avenue discussed on Twitter would be for one or more of the States Parties to refer the situation in Afghanistan to the Prosecutor, thus enabling her to circumvent the authorization obstacle. The problem would be to find such a State Party, that would be prepared to take on the wrath of the US. Palestine and Venezuela come to mind but the discussion whether hinging this investigation on those states’ referral is optimal or desirable is rather left for another day. As matters stand, it is more likely than not that the PTC’s decision has effectively sealed the fate of situation in Afghanistan before the ICC.

‘Crisis’ has been the buzzword courtesy the ICC for some time now. But this is not your average ‘crisis’. Many of the flaws in the PTC’s decision have been helpfully dissected by Heller, Jacobs, Labuda, Rona, de Vos and other commentators. However, the ruling is not just unnerving on multiple counts of form and substance. A thinly-guised surrender to power politics, it is nothing short of a judicial meltdown. Its significance and implications for the institution and international criminal justice more generally are profound, fitting neatly in the patterns decried in the ‘radical critiques’ of international criminal law.

This (first) part of the post shows how the PTC’s treatment of the ‘interests of justice’ requirement went astray, bringing legally irrelevant desiderata within the judicial determination. Part II of the post offers a few unconsoling thoughts on the impact of the Afghanistan decision on the ICC’s credibility and what it may bode for the future of international criminal justice.   Read the rest of this entry…

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The ICC Pre-Trial Chamber Decision on the Situation in Afghanistan: A Few Thoughts on the Interests of Justice

Published on April 18, 2019        Author:  and

There has been a storm of criticism of the decision of Pre-Trial Chamber (PTC) II of the International Criminal Court (ICC, the Court) to reject the Prosecutor’s request for authorisation of an investigation into the situation of Afghanistan. As discussed previously on this blog (see here), the basis of the PTC’s decision was that the initiation of said investigation was not in the ‘interests of justice’, in accordance with Articles 15(4) and 53(1)(c) of the Rome Statute. The criticisms have targeted almost every aspect of this decision. In particular, questions have been raised as to whether the PTC has the power to review the Prosecutor’s decision to initiate an investigation which she considered was in the interests of justice, as opposed to a decision that it an investigation is not (see here, and here). Some have also challenged the merits of this decision on various grounds, in particular, that it would introduce non-legal considerations into an assessment that has been and ought to be narrowly circumscribed, or that the PTC could not simply conduct a de novo review of the Prosecutor’s inherently discretionary decision (see here and here). Others have presented a more systemic critique that underlying this decision is the message that all that states need to do in order to avoid an ICC investigation is to refuse to cooperate with the Court (see here and here). It has also been suggested that this decision is part of a broader effort by ICC judges to control the Prosecutor’s investigative priorities (see here).  

In this two-part post, we seek to contribute to the ongoing discussions by offering some thoughts on two particular points of contention. In this first post, we offer some comments on the PTC’s decision regarding the interests of justice. In particular, (a) we argue that the PTC did have the power, under Art. 15(4) of the Statute, to review whether the interests of justice should bar the opening of an investigation, and (b) while noting the problems with taking lack of state cooperation and budgetary issues into account in this decision, we argue (building on our earlier work here and here) that there might be circumstances where it is appropriate for the PTC and the Prosecutor to take such issues into account as a part of the interests of justice analysis.

Our second post will consider the way in which the PTC decision dealt with international humanitarian law, and more specifically, the territorial scope of application of war crimes in non-international armed conflicts (NIAC).  Read the rest of this entry…

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A Neo-Colonial Court for Weak States? Not Quite. Making Sense of the International Criminal Court’s Afghanistan Decision

Published on April 13, 2019        Author: 

The International Criminal Court (ICC)’s involvement in Afghanistan has received a great deal of attention ever since the Prosecutor announced she would seek to initiate an investigation in November 2017. Rightly or wrongly, what made this inquiry so contentious was not the suffering of millions of Afghan people, but rather the alleged war crimes of a few dozen American nationals. Judging by most of the commentary, analysts worried primarily about one question: would the ICC be able to hold to account powerful states and their citizens?

Yesterday’s decision does not inspire confidence in that regard. Pre-Trial Chamber II unanimously agreed that an investigation into crimes against humanity and war crimes allegedly committed on the territory of Afghanistan was not in the ‘interests of justice’. This came as a surprise, to put it mildly. Against the backdrop of the ICC’s evolving institutional dynamics, this post will argue that, while the Afghanistan decision should not be viewed simply as a capitulation to great power interests, it foreshadows a reckoning with various assumptions that have guided the Prosecutor’s work and civil society support for the Court since 2003.

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The Hole in the Doughnut – The OTP Strategic Plans and Self-Regulatory Actions in International Criminal Law

Published on April 10, 2019        Author:  and

The past months have been turbulent at the ICC. The shower of critiques seems to have obscured that, although it is already April 2019, the OTP has not yet published its 2019-2021 Strategic Plan. The Strategic Plan is the main document through which the OTP publicizes its strategy and policies (see Regulation 14 of the Regulations of the Office of the Prosecutor). The goal of the Strategic Plan is to provide ‘transparency and clarity’ on the OTP work, making its actions predictable and allowing others to ‘plan their actions taking into consideration the Office’s work’ (para. 11, 2009-2012 Strategic Plan).

The first Strategic Plan was published in 2006 and, since then, three more came out (2009-2012, 2012-2015, and 2016-2018). In October 2018, the ASP Committee on Budget and Finance reported that it had been informed by the OTP that ‘the Strategic Plan for 2019-2021 is about to be finalized, after the completion of an internal consultation process within the OTP’ (para. 58) and that a draft would be circulated in November 2018 among relevant stakeholders. In December of the same year, the ASP stressed that it is expecting the Strategic Plan for 2019-2021 to be published at the end of the first quarter of 2019. Five months later and at the end of the first quarter, here we are, with no public Strategic Plan in sight. The Court may be facing another turbulence soon.

The Prosecutor has broad discretionary powers to select situations and cases, and enjoys great administrative independence. With the exception of budget approval and management oversight by the ASP (art. 112(b) and (d) of the Statute), other ICC organs cannot limit nor direct the actions of the OTP, and the Prosecutor has full authority over the administration of the OTP and of its resources. However, as per arts. 4 and 34 of the Statute, the Prosecutor is still a public official, and the OTP is still an organ of an international organization. Their freedom to administrate their resources and actions is therefore limited to their institutional functions and roles. 

Dworkin described discretion as a doughnut hole: it does not exist except as an open surrounded by a restrictive belt Read the rest of this entry…

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Colombia: Time for the ICC Prosecutor to Act?

Published on April 2, 2019        Author:  and

The controversy evolving around the role and competence of the Colombian Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, SJP) has reached a new peak: Colombian President Iván Duque initiated a frontal attack against the Jurisdiction’s statutory law that goes beyond all previous assaults directed against the country’s Transitional Justice (TJ) system. We argue in this post that the current developments are an alarming threat to the Colombian peace process, and that President Duque’s most recent intent to impede the proper functioning of SJP has the potential to challenge any meaningful existence of that jurisdiction. Ultimately, we argue that this highly critical situation could (and probably should) prompt the Prosecutor of the ICC to take action.      

Previous attempts to weaken the Transitional Justice Process

It is not the first time that President Duque has attempted to undermine the country’s TJ-process. During his election campaign in August 2018, he announced that he would seek amendments to the Final Peace Agreement which was reached in 2016 between the Colombian government  and the Revolutionary Armed Forces of Colombia – Peoples Army (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo, FARC-EP). After his election, Duque’s parliamentary group in the Colombian Congress (Centro Democrático, CD) has turned his words into action launching a proposal for a constitutional amendment that would deny all TJ-organs (including the SJP) access to confidential information affecting national security. The proposal would inhibit the work of all TJ-mechanisms and thus amounts to a frontal attack on the whole system, as has been commented in a previous post.

In October 2018, a new proposal issued by the Colombian Congress suggested the creation of special chambers within the SJP with the sole competence to try members of the Colombian Armed Forces. As a sort of military jurisdiction, whose impartiality and independence is more than questionable, it would unduly privilege members of the Armed Forces involved in international crimes. Thereby, it further threatens to undermine the SJP’s crucial function as the single mechanism responsible to bring all parties of the conflict to justice.

Even though the Colombian Congress has not adopted both proposals so far, they evince the government’s obvious intent to undermine the SJP’s constitutional framework and hinder its proper functioning.

The latest attack on the Special Jurisdiction for Peace

On 10 March, the government doubled down on its attempts to derail Colombia’s TJ-system: President Duque partially objected to the Statutory Law on the Administration of Justice of the SJP Read the rest of this entry…

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Some Reactions to Douglas Guilfoyle’s Posts on the Troubles of the ICC

Published on April 1, 2019        Author: 

Editor’s note: This post is a response to Douglas Guilfoyle’s recent three part series: ‘This is not Fine: The ICC in Trouble‘ (Part I, Part II, Part III).

It is as if someone at the Court saw Douglas Guilfoyle’s first post here at EJIL:Talk! on the ICC’s troubles and decided that it was crucial to immediately prove him right. 

Last week, on the 22 march 2019, the Court made public a decision from the plenary of Judges allowing Judge Ozaki, who is sitting in the Ntaganda case (currently in the deliberations phase), to also commence her duties as the Japanese ambassador to the Republic of Estonia concurrently to her function as an ICC Judge. Here is not the place to analyse this decision, but it is for me symptomatic of the bubble in which the institution (here the Judges) lives where they seem blind to outside perceptions. Indeed, how can the vast majority of Judges not see that for most people the exercise of a political/diplomatic function is by its very nature incompatible with a judicial function? As noted by the three judges who dissented: 

For the minority, it was evident that the performance of an executive or political function for a State Party by an individual who remained a Judge of the Court was entirely likely to affect public confidence in judicial independence.

This decision is proof – if there was any need for more than provided in the Court’s practice in the past 15 years – of the relevance and timeliness of the 3-part blog series by Douglas explaining why the ICC is not fine and what should be improved. It is a thoughtful and detailed analysis of the Court’s woes and I agree both with its general evaluation and with most of the specific points raised. 

In this post, I would like to humbly propose not so much a response, but a reaction to some of the arguments put forward.

The Utility or Futility of the Pre-Trial Chamber

I would tend to agree with Douglas that today, one has the feeling that the confirmation of charges phase is a waste of time, for example because decisions on the confirmation of charges actually provide very little guidance on the content of the charges (including modes of liability) and relevant evidence. The process appears cumbersome and long and in need of a reform. I would not, however, be as critical as Douglas for a series of reasons. Read the rest of this entry…

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Part III- This is not fine: The International Criminal Court in Trouble

Published on March 25, 2019        Author: 

Editor’s note: This is the final post in a three-part series. Parts I and II are available here and here.

In this final reflection I would like to offer some concluding remarks based on my previous two posts. Those posts do not break any new ground for those who follow the International Criminal Court closely. However, they represent my attempt to step back and examine some of the Court’s troubles more holistically. Indeed, they barely scratch the surface of various matters one could explore in such a series.

The basic fact remains that in 20 years and almost two complete prosecutorial terms, the Court that ostensibly exists to fight impunity and prosecute those most responsible for the crimes of greatest concern to the international community has managed only three convictions for core international crimes. Of these one was a guilty plea (Al Mahdi), one controversially involved the Court’s judges saving a collapsing case by recharacterizing the mode of liability after the presentation of argument and evidence had concluded and without hearing further argument on point (Katanga), and one took six years to result in a single conviction for the recruitment of child soldiers (Lubanga).

This is not a record of success. The argument I have put forward is first that there are real questions as to whether the Court’s job is possible to do on the present conditions. In my first post I argued that many of the defences made of the Court are simply articulations of the structural requirements for success which are not present. In my second post, I argued that even given those structural limitations it is not obvious that the Court as presently constituted is up to the task. The OTP appears unable to consistently mount successful and convincing cases. While the first Prosecutor must certainly take much of the blame, the second does not appear to have had much success righting the ship. Just as worrying, however, appears to be the breakdown in trust between the OTP and Chambers. Beyond the examples given in my second post, the Pre-Trial Chamber has attempted to circumscribe prosecutorial discretion or direct the course of investigations both in relation to the Cormoros and Bangladesh situations. Further, there are very worrying signs of a breakdown in collegiality among the ICC judges which is damaging both the formal coherence of court decisions and its wider legitimacy. This is before we even touch on the Court’s unsightly history of internal employment litigation and pay disputes, and now reports that the ICC mismanaged property in the Bemba case frozen to provide for any reparation orders. The allegation is that over 10 years Mr Bemba’s property was “left to devalue, dissipate or simply rot.” From the outside, the picture is one of dysfunction.

What is to be done? As foreshadowed, I think the answer has to be found in a guiding ethic of modesty and collegiality. I will address this in terms of institutional design, investigations and evidence, and judicial culture. The temptation will be to double down and push harder in the present direction of travel. This would be a mistake. The Court is facing a legitimacy crisis. To survive as an institution, the court is going to need to start making some compromises with reality.

Institutional design

In retrospect, elements of the Court’s design were from the outset overambitious or over-complicated. 

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Part II- This is not fine: The International Criminal Court in Trouble

Published on March 22, 2019        Author: 

Editor’s note: This is Part II of a three-part series. Part I is available here.

Part I of these reflections focused upon the structural constraints faced by the International Criminal Court as a whole. Within this framework, I wish to focus upon the role of individuals and officeholders in the courts success or failure within those constraints, with a focus on the office of the prosecutor and the judges of the court (Chambers). This post thus sets out to address questions of the Court’s internal workings, practices and culture. In relation to the OTP, I will focus on questions of strategy and management; in respect of chambers, questions of collegiality and assessment of evidence. Space precludes an evaluation of the Registry’s contribution to the court’s present woes beyond my earlier allusion to the well-known, long and expensive series of employment law cases brought against it which followed from a previous registrar’s restructuring exercise. Again, little here will seem especially new to close observers of the Court, the point is to pull together a worrying cluster of issues for a broader audience. Warning: long post ahead.

The Office of the Prosecutor (OTP)

It is worth acknowledging both the enormous power of the role of an international prosecutor, and the very great difficulties in doing the job successfully. As Stahn notes, the Prosecutor is the engine of international criminal tribunal proceedings. He or she conducts investigations, selects defendants, brings cases to trial. In doing so, it is common for prosecutors to say that they are only following the law or evidence, but in practice they have substantial discretion in case and defendant selection. In addition, obtaining defendants and evidence requires, in practice, the cooperation of States. Thus, prosecutors’ work ‘is inherently linked to politics due to the political context of crimes, the politics behind institutional engagement and their large degree of choice.’ That said, international prosecutions are hard. Gathering evidence in conflict zones is hard. Operating in the face of government obstruction is hard. And the reality of selective justice at the international level means prosecutors will always be open to criticisms of partiality or lacking independence. It’s a challenging job. Much was going to depend on the ICC Assembly of State Party’s choice of prosecutor in 2003.

The first Prosecutor

The first Prosecutor of the International Criminal Court, Luis Moreno-Ocampo, was during his tenure an Olympian figure; though the verdict of history on his achievements looks increasingly likely to be that of Ozymandias. 

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