Take the Long View of International Justice

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Last week there was much coverage about South Africa’s intended withdrawal from the Rome Statute of the International Criminal Court (ICC), as well as potential withdrawals by other states, including Burundi. The dominant theme in the media coverage was that this is a “major blow” or “devastating blow” to the ICC. I am hesitant about some of the gladiatorial metaphors. I suggest there are differences between a setback for the International Criminal Law (ICL) project, for human beings, and for the ICC. I also suggest a measured perspective, placing these events within a very long, turbulent, contested tale of human governance.

Historic perspective on a long-term project

Our lives are short and history is long. The tumults of our times loom correspondingly large to us, but the longer view can put crises in context. For example, many current criticisms of ICL reflect impatience and indignation that a fully-fledged, mature, international rule of law with global compliance has not been built in a few years. But it took centuries to produce current configurations of state governance and rule of law – the idea that human institutions might try to provide a better approximation of justice in human lives. And even after centuries of practice, errors, disasters, lessons and successes, the state law system is very, very far indeed from perfected. ICL itself is one effort to ameliorate to those flaws. We happen to be alive during a significant renovation in a centuries-old system.

My point is: past innovations in human governance took centuries, not months. They involved much contestation. If people see ICL in historical perspective, they will not expect quick fixes or linear progress. ICL entails politically, sociologically, legally and intellectually difficult and contestable changes to entrenched systems. There will be lessons to learn and criticisms to absorb. If it succeeds, it will do so after lurches, setbacks and pushbacks. Comfortingly, on the biggest scale, human governance has been moving in a positive direction for a long time.


A setback for the project and for humans, but the Court is a court

Second, the currently dominant narrative of a blow to the ICC strikes me as misguided and problematic, because it identifies the wrong object. I believe that withdrawals would be a setback for the project of ICL. And I think it would also be a setback for human beings (because I believe that ICL is net beneficial for human beings). But I think it is misguided to speak of a court as having interests, in the way people seem to be describing.

The ICC is a court. It will continue to carry out its legally assigned mandate: to deal with cases within its jurisdiction. Even if more African states withdraw, the Court will still have more work than it can handle. The Court will move on to other situations, of less extreme gravity but still quite grave enough to warrant action. Situations of more moderate scale and gravity may prove much more manageable for investigation and prosecution. Greater regional diversity of selected situation will result. The Court will continue to serve states, the United Nations, and ultimately to human beings within its jurisdiction. And if withdrawing states decide someday to rejoin the Statute, then their people will once again have the ICC backstopping national courts in responding to atrocities.

Withdrawal is new, because consent is new

Third, withdrawal is unprecedented for an ICL institution, because it has never been allowed before. Previous ICL institutions also provoked extreme controversy, but states had no option to leave. Many Germans were opposed to the Nuremberg Tribunal, Japanese to the Tokyo Tribunal, Serbs and Croats to the ICTY, and Rwanda clashed fiercely with the ICTR. They had good and bad reasons. Would there have been withdrawals if they had been allowed? Almost certainly yes.

The ICC is a new experiment. It is based in consent, either through ratification or through UN member state acceptance of collective security action. Consent is required for legal legitimacy in the contemporary international legal setting. ICC membership asks a great deal of state leaders. It means accepting the possibility of having one’s officials (or oneself) investigated and prosecuted. Thus it pits self-interest against comparatively nebulous social and normative aspirations. Time will tell which wins out.


What lessons should be drawn from withdrawals? The answers should not be hasty. When the USA withdrew from the International Court of Justice (ICJ) because it did not like losing in the Nicaragua case, it diminished the credibility of the USA, not the ICJ. We need to carefully disentangle: (a) well-founded concerns; (b) concerns that are held in good faith but ultimately not well-founded; (c) pretexts to protect leaders who prefer not to be held accountable for killing hundreds or even thousands of their citizens.

The argument given by South Africa was that the ICC should not request arrest of a head of state. While I personally think that the ICC’s 2014 legal conclusion on immunities is basically sound, the policy concern here is at least understandable. Perhaps a consultation mechanism to allow certain contacts with persons subject to arrest warrants would be a justifiable balance with other important aims.

The current backdrop is the concern that the ICC is biased against Africans. The ICC response is that most interventions were requested by the African states themselves, and that it has responded to the gravest admissible situations within the Court’s jurisdiction. I think it is regrettable that so many people dismiss the Court’s explanation without serious factual engagement. I think that tendency has impoverished the conversation. Nonetheless, there is still an understandable grievance even if one does not endorse the accusations of rule-twisting. Eight out of nine situations on one content is not diverse. I think admissible situations should not be prioritized only by gravity; it can be argued that regional diversity is a factor under “interests of justice”, to better promote lasting respect for international justice.

I hope that discussions will try to distinguish the three types of concerns and respond thoughtfully. Further, regardless of one’s views on the project, it likely helps to be mindful that this is part of a process unfolding over centuries.

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Roger O'Keefe says

October 24, 2016

Dear Darryl and Dapo
Thanks to both of you for your posts, which as usual lend thoughtfulness and sobriety to a debate characterized by knee-jerk reaction and shrillness.
Darryl, I agree that everyone should take a deep breath and calm down. As I say in the final lines of International Criminal Law (OUP 2015), para 14.108, 'it is too early to write off a body designed to be permanent. An eye to the longue durée would lend perspective'.
That said, and as much as I think that the South African government is acting hastily, unhelpfully and perhaps not in the utmost good faith, is not a key element of the background here, Darryl and Dapo, a legal (and not simply political) reality that can no longer be ignored, namely that—as evidenced by the actions of African states jointly and severally and by the signal inaction of the Security Council in response to the repeated pleas of the Pre-Trial Chamber—a substantial number of states parties to the Rome Statute, not to mention the Security Council itself, simply do not accept the correctness of any of the three and a half different ratios served up, with alienating self-righteousness, by the PTC in Al-Bashir and, more generally, do not accept that the referral of a situation by the Security Council has the effect, in and of itself, of somehow rendering inapplicable the immunities owed to third states (viz states not parties to the Statute) by states parties in respect of those third states’ officials, as safeguarded by article 98(1). (Although this hardly matters, I myself have never subscribed to the belief that a Security Council referral does anything more, in and of itself, than set in train the usual procedure and engage the Court’s usual powers under the Statute, including the limitation on those powers represented by article 98(1); and I believe that the more specific arguments advanced by the PTC in Al-Bashir deserve to make the Court a laughing stock. See International Criminal Law (OUP 2015), paras 14.90 and 14.91-14.98. Sure, should the Council decide that all UN member states that are parties to the Rome Statute shall cooperate with the ICC, notwithstanding article 98(1), by arresting and surrendering to the Court anyone for whose arrest it has issued a warrant, states parties to the Statute would be obliged to do as the Council decided. But the Council has not done this.)
Putting it bluntly, for how long can the Court refuse to take cognizance of the fact that its entrenched position, which has brought us to this pretty pass, is rejected out of hand by a sizeable chunk of the interpretative community whose acceptance of its jurisprudence is the arbiter of its claim to authority and by the same Security Council for whom it claims to speak?
With warmest wishes and no desire to enter into the substance of the legal debate over Security Council referrals,

Darryl says

October 24, 2016

Thank you Roger. You make an excellent point, as always. The immunity issue is one on which people have so many divergent but reasonable views, that it clearly falls within the class of good faith questions that we need at least to have the open-minded talk about. Perhaps a good route is the proposal by the AU, highlighted by Dapo, to refer the question to the ICJ. That way we all get an independent arbiter to weigh in and maybe reduce the controversy.

(Parenthetically, I think my legal reading is the same as Dapo's. I think the game changer is not the referral per se, but "shall cooperate fully". To me that puts Sudan in the same obligations as a State Party. Waiver is not needed from states parties. "Fully" means not just Part 9 but all the cooperation obligations throughout the Statute (anything less would not be "fully"). This was the same formula by the UNSC that seemed uncontroversially to remove HOS immunity for Milosevic. But, I do warmly concede, there are lots of very reasonable good faith views on this, so clarification would be helpful.)

Roger O'Keefe says

October 25, 2016

Thanks very much, Darryl.
I agree completely about referral to the ICJ. And while I also agree that the point is one on which people of good faith can differ, I do get the feeling that at least some governments on the African continent are exploiting the legal doubt for ulterior motives.
My own view, as expressed in International Criminal Law (2015), para 14.97, is that the Security Council's decision that Sudan must cooperate fully makes not the slightest difference to the immunity question. A state not party to the Statute cannot be mystically transmuted into a state party by the Security Council or anyone else, as much as my Catholic upbringing teaches me that mystical transmutation is not impossible. A third state - the language of international law for as state not party to a treaty, as made clear in article 34 of the VCLT, and the language used in article 98(1) - remains a third state, with all that this entails under article 98(1). Here is what I write, speaking of the upshot for a state party that has received a request for surrender of a third-state official:

"It is not apparent why a decision by the Security Council that Sudan must cooperate fully with and provide any necessary assistance to the Court should be taken to mean that such cooperation and assistance has ipso facto been obtained, as article 98(1) requires in relation to a third state’s waiver of immunity before the Court may proceed with a request to a state party for the surrender of a serving or former official of the third state. It would doubtless be open to the Security Council, acting under chapter VII of the UN Charter, to decide that the state party in question must surrender the person to the Court notwithstanding article 98(1) and the immunity and inviolability owed by the state party to the third state in respect of the person. But the Security Council has not done this in this case. As the Pre-Trial Chamber implicitly acknowledges, article 98(1) remains applicable. As such, the Court must first obtain Sudan’s cooperation for the waiver of the immunity from foreign criminal jurisdiction and inviolability from foreign measures of constraint from which it is entitled under international law to see its head of state benefit; and the fact remains that the Court has not obtained Sudan’s cooperation for such a waiver. Indeed, it is yet to invite such cooperation, as provided for in article 87(5)."

But, yes, the best place to settle the matter is in the ICJ.
Best wishes to you and Dapo

Roger O'Keefe says

October 25, 2016

PS First, Milosevic was arrested and surrendered by his own state, so international legal immunities were irrelevant to this question. Secondly, what would have removed Milosevic's immunity in the context of surrender by another member state of the UN was the combined effect of para 4 of SC res 827 (1993), article 29 of the ICTY Statute, article 25 of the UN Charter and the absence from the ICTY Statute of anything like article 98(1). As for his immunity before the Tribunal itself, ditto, except replace the last factor with the absence from the Statute of any provision for the availability of immunity before the Tribunal (and, although the provision does not in fact refer to immunity, article 7(2) of the Statute).

Darryl says

October 25, 2016

Thanks, I see how you see it, and I see how that coheres. We're away from the post topic but maybe I can shed light on the other view. "Third state" doesn't means non-party state; for the latter the Statute uses the term "State which is not a party to the Statute". "Third state" is the standard term in MLATs for a state other than the requestor-requestee, and the Part 9 drafters used that standard term. At the PrepCom (pre-ASP) states had a meeting about what this means when the third state is already subject to ICC obligations (eg. do you still need waiver, can they withhold it?). The quick consensus was "no", because they have no immunities opposable to the ICC. We probably should have written it in a RPE but it seemed so settled. Anyway, obviously the text now is open to the interpretive community to read it how they will. Including your understandable construction!

Roger O'Keefe says

October 25, 2016

Thanks, Darryl. What strikes me about what you say is not the apparent understanding at the PrepComm, which in terms of the rules of treaty interpretation may well be neither here nor there, unless it falls within VCLT, art 31(3)(a). What strikes me is the contrast between 'third State' in art 98(1) and 'State which is not a party to the Statute' elsewhere in the Statute, the latter forming part of the context within which 'third State' in article 98(1) must be read. This certainly bodes ill for my reading of 'third State', even if it perhaps does not render it completely untenable. (Hail Mary ...)
That said, even were I to be wrong on the meaning of 'third State' in article 98(1), we are still left in a position where, as I see it, article 98(1) applies and renders invalid the PTC's requests to states parties for the surrender of Al-Bashir. A request to a state party for Al-Bashir's surrender requires that state party 'to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person ... of a third State' (meaning, on your reading, simply any other state), in the words of art 98(1), and, even though the third state in question is required to cooperate with the ICC by dint of the express statement to this effect in para 2 of SC res 1593 (2005), the obdurate fact remains that the Court has not 'obtain[ed] the cooperation of that third State for the waiver of the immunity'. Telling someone to do something is not the same as their having done it, as parents know only too well. Nor has the Security Council decided that, notwithstanding article 98(1), states other than Sudan shall cooperate with the ICC in the surrender of Al-Bashir, although it could do this if it wanted to. In short, even if 'third State' in article 98(1) means what you say, I believe that my essential point - namely that the UNSC has not, by mere dint of referring the situation in Darfur and deciding that Sudan shall cooperate, created a situation in which article 98(1) does not apply in the usual way.
I may be holed below the waterline but, being a string swimmer, I live to fight another day!
Warmest wishes
PS For the avoidance of doubt, I reserve my position for now on the meaning of 'third State' in art 98(1)!

Roger O'Keefe says

October 25, 2016

Corrigendum: That should read 'strong' swimmer, not 'string' swimmer. I prefer a more generous cut in a swimming costume.

Roger O'Keefe says

October 25, 2016

PPS My substantive conclusion should read:

"In short, even if ‘third State’ in article 98(1) means what you say, I believe that my essential point – namely that the UNSC has not, by mere dint of referring the situation in Darfur and deciding that Sudan shall cooperate, created a situation in which article 98(1) does not apply in the usual way – holds good."

And, of course, the more basic point of my original comment was that, whatever I or you or the PTC may think, African states and the Security Council seem not to buy the argument that SC res 1593 (2005), including para 2, in any way affects the straightforward application of article 98(1) of the Rome Statute.

Thanks to you and everyone for their patience.
Roger, over and out.

Carsten Stahn says

October 26, 2016

Thanks for a great post, Darryl: Dag Hammarskjold just tuned in on the crisis. He recalled what he said 60 years ago, in October 1956 before the GA: The principles of the Rome Statute are, by far, greater than the Organization in which they are embodied, and the aims which they are to safeguard are holier than the policies of any single nation or people.