The Principle of Legality in the ICC’s Appeals Judgment on Abd-Al-Rahman’s Jurisdictional Challenge: A Follow-up on Merits and Shortcomings

The recent judgment of the Appeals Chamber of the International Criminal Court (ICC, the Court) in the case of Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”) has already given rise to heated academic commentary and critique (see here and here). As readers may recall from previous posts on this blog, this was a judgment on an interlocutory appeal challenging the Court’s jurisdiction to hear the case against Abd-Al-Rahman on the basis of, inter alia, a violation of the principle of legality or nullum crimen sine lege. According to the Defence, since Sudan was and is not a party to the Rome Statute, Ali Abd-Al-Rahman could be held responsible for crimes ‘defined in Sudanese national law or, at least, in the international law in force that applied to Sudan at the time of the offences’ (§ 21). The Pre-Trial Chamber rejected this challenge on the basis that Abd-Al-Rahman’s charges satisfied the version of the principle of legality embodied in Article 22(1) of the ICC Statute, i.e. his conduct fell within the provisions of the Statute at the time of the events (§§ 36-42).

As Milanović, Akande, Galand (see here and here), and myself (see here and here, forthcoming with Brill in 2022) have argued before, although this self-contained approach is what a prima facie reading of Articles 21(1)(a), 22(1), and 24(2) of the Statute would yield, it is neither consistent with the principle of legality as it exists in international human rights instruments and customary international law, nor with the Statute’s own commitment to afford primacy to ‘internationally recognized human rights’ under Article 21(3). The Appeals Chamber recognised as much in its judgment (Judge Ibañez dissenting on this point), and held that: ‘In interpreting article 22(1) of the Statute in a manner consistent with human rights law, a chamber must look beyond the Statute to the criminal laws applicable to the suspect or accused at the time the conduct took place’ (§86, emphasis added).

In this follow-up post, I outline what are, in my view, the merits and shortcomings of this interlocutory appeal judgment, as well as the next steps that Trial Chamber I should take to ensure full consistency with the principle of legality in general international law as the case against Ali Abd-Al-Rahman proceeds to trial. 

Merits

As hinted at earlier, and as Lentner suggests in his post, the Appeals Chamber’s finding that the principle of legality under international human rights law must be relied on, at least in cases arising from UNSC referrals and involving events that occurred in the territory of a non-state party, is a step in the right direction. Likewise, I cannot fault the Chamber’s conclusion that said version of the principle requires the Court ascertain if the charges against the accused find a legal basis in rules of international or domestic law applicable to the accused at the time of the events (§§ 86-87).

I also think that the Appeals Chamber’s use of the test of accessibility and foreseeability, developed in the case law of the European Court of Human Rights (ECtHR) (from the infamous SW v UK case till the very recent Advisory Opinion requested by Armenia, § 72) and borrowed by a number of international criminal tribunals is not without merit. This is because, in contrast to Galand’s, my reading of the Appeals Judgment is that the test was not used by the Chamber to assess whether the Rome Statute was accessible and foreseeable to the accused (or anyone else in Sudan for that matter), an approach advanced by some academic commentators (see e.g., Schabas, at 57) – note that this approach is distinct from the view that the states parties to the Rome Statute prescribed its criminal provisions to the entire world at the Rome Conference (on this, see here and here, Chapter 5). In fact, this approach of holding that ‘the Rome Statute was accessible and foreseeable worldwide’ is so distinct from the reasoning provided by the Majority of the Appeals Chamber that it was endorsed by Judge Ibañez at the heart of her partial dissent. According to her: ‘The content of the Statute, including in particular the crimes under its jurisdiction and the applicable penalties, has been public since its adoption. […] Therefore the law was public and known for Sudan and the accused. (§ 95, emphasis added)

As I have explained elsewhere (see here), and I believe Galand agrees, this approach is not convincing because a necessary pre-requisite for the application of the accessibility and foreseeability test that the criminal law in question be previously applicable to the accused. Simply put, for a criminal provision to be accessible and foreseeable, it must be binding on the accused in the first place, whether under domestic or international law (see, e.g., Article 15(1) of the International Covenant on Civil and Political Rights).

In my view, this is precisely what the Appeals Chamber found when it held that:

‘In applying the foreseeability test to this case, the Appeals Chamber finds that Mr Abd-Al-Rahman was reasonably capable of taking steps to comprehend and comply with his obligations under international law, and he was capable of appreciating the attendant penal consequences.’ (§ 88, emphasis added)

In other words, the Appeals Chamber was assessing whether the criminal laws applicable to the accused at the time of the conduct, in casu, applicable rules of international law (not the Rome Statute), were accessible and foreseeable to him at the time of the events. In fact, the Appeals Chamber even went beyond the ECtHR’s test by assessing whether an ordinary person in the accused’s shoes (i.e., a non-commissioned officer in the military and the head of the Janjaweed militia in Sudan) was ‘in a position to understand and comply with his obligations in armed conflict under international law’ (§89). As I have argued elsewhere, the ECtHR’s traditional accessibility and foreseeability test falls short of ensuring full compliance with the principle of legality because, rather than focusing on the reasonable, ordinary person in the circumstances of the accused, it bases the test on what a hypothetical lawyer could have advised them. For those reasons, I do not think that the Appeals Chamber was wrong in applying a modified, stronger version of the accessibility and foreseeability test to assess the legality of Abd-Al-Rahman’s charges.

In the same vein, unlike Lentner and Galand have argued, I do not view the Appeal’s Chamber reliance on the Rome Statute’s substantive criminal provisions as amounting to a blanket or irrebuttable presumption that the Statute was foreseeable to the accused or that the Statute embodies customary international law. This is because the Appeals Chamber itself acknowledges that ‘some areas of the Statute exceed or deviate from customary international law’ (fn 162). On my reading of the judgment, what the Appeals Chamber does is to use the Rome Statute as strong evidence of the customary status of its substantive criminal provisions, which is by no means wrong. After all, as the Appeals Chamber noted, ‘the crimes under the Statute were intended to be generally representative of the state of customary international law when the Statute was drafted’ (§ 89) (see here, here, and here).

Shortcomings

Now, I do agree with Lentner that the Appeals Chamber left a number of open questions with this judgment, including whether or not the UNSC has prescribed the Rome Statute to the situation in Darfur, Sudan prospectively (on this, see here, here and here).  And I agree with Galand that the Court needs to ensure that all the charges against Abd-Al-Rahman do not go beyond or are not more severe than the crimes and modes of liability applicable to the accused under international or domestic law.

Although the Appeals Chamber recognises that this assessment must be undertaken at some point, it refused to do so because the defence did not specify the exact ways in which the charges against Abd-Al-Rahman go beyond applicable rules of international law:

‘The Appeals Chamber recognises that only once a link is drawn with the charges in this case can the question of the legality of the charges be definitively answered. However, on appeal, the Defence has not indicated that the Pre-Trial Chamber erred in confirming jurisdiction in respect of any of the specific charges that Mr Abd-Al-Rahman faces.’ (§ 91, emphasis added)

In fact, I believe the Appeals Chamber missed an opportunity to make this assessment on the occasion of this jurisdictional challenge. This is because, as I have argued elsewhere (see here and here, Chapter 4), even though the retrospective exercise of jurisdiction does not per se amount to a breach of the principle of legality, questions of subject-matter jurisdiction and applicable law overlap before any criminal court. Indeed, if the Court is not competent to apply a certain provision, whether because it would breach the principle of legality or because the Statute does not authorise its application (as is the case of domestic law, per Article 21(1)(c)), then it must find that it lacks jurisdiction to adjudicate facts that are criminal only pursuant to said provision. Moreover, the Appeals Chamber has the final word on questions of law, and this is a significant issue affecting other ICC cases.

Nevertheless, unlike the Defence has argued (§ 21), in the case of Abd-Al-Rahman, this does mean that the Appeals Chamber should have found that it lacked jurisdiction to hear all charges because they do not exactly match applicable international or domestic law. Rather, the Chamber should only have dismissed the charges that go beyond or are more severe than the corresponding crimes and modes of liability under applicable international or domestic law, where a violation of the principle of legality would lie. And looking at the charges levelled against Abd-Al-Rahman, it seems that only those relating to torture as a crime against humanity (which under custom requires a specific purpose that the Rome Statute does away with), rape as a war crime and a crime against humanity (which under custom does not include oral sex), and persecution on the basis of gender or through hate speech acts (whose customary status is still debatable), require a more careful legality assessment. All other charges, at least at first glance, do not seem to be more serious than analogous crimes and modes of alibility applicable under customary international law.

Moving forward, Trial Chamber I should not limit itself to this ‘compatibility check’ between the accused’s charges under the Statute and applicable international law or domestic law. Instead, as I have argued before (see here and here, Chapter 7), to ensure full compliance with the principle of legality in international law, the ICC – and any other criminal court for that matter – should avoid retroactively recharacterising the crimes and modes of liability under the applicable law as crimes under the Statute. This is because retroactive recharacterisation of crimes, if not done carefully, might lead to the application of more serious criminal provisions or labels than those previously binding on the accused (see here). To avoid these outcomes in the Abd-Al-Rahman case, as well as in other cases arising from UNSC referrals, the Court should apply pre-existing international law, including customary international law and applicable treaties, as such, similarly to the ad hoc tribunals. After all, at least in my view, UNSC referrals ought to be seen as purely jurisdictional instruments, which means that they do not, as a general rule, prescribe the Rome Statute to the situation in question (on this, see also here, here and here).

Conclusion

In a nutshell, I believe the Appeals Judgment on Abd-Al-Rahman’s jurisdictional challenge is overall a very welcome move, bringing the ICC closer together with general international law and, most importantly, international human rights law. However, it is also a missed opportunity to do better in ensuring full compliance with those rights that the Court and its Statute have subscribed to, especially the principle of legality.