The International Criminal Court in Search of its Purpose and Identity 9780415747776, 9781315780634

Table of contents :
Cover
Title Page
Copyright Page
Table of Contents
Acknowledgements
Contributors
Abbreviations
‘One, no one and one hundred thousand’: Reflections on the multiple identities of the ICC
PART I Crimes and modes of liability
1 The case for inclusion of terrorism in the jurisdiction of the International Criminal Court
2 Command responsibility, joint commission and ‘control over the crime’ approach in the first ICC jurisprudence
PART II Rights of the accused and of victims
3 The right not to be tried twice for international crimes: An overview of the ne bis in idem principle within the Statutes of the ICC and the international criminal tribunals
4 Balancing rights of the accused with rights of victims before the International Criminal Court
5 Lubanga Decision on victims’ reparations: Handing off the hot potato?
PART III The relationship between the International Criminal Court and States
6 Building national capacity for the ICC: Prospects and challenges
7 Has the ICC unfairly targeted Africa or has Africa unfairly targeted the ICC?
8 Transitional justice in the DRC: The 2014 Amnesty Law and the principle of complementarity – Quid Juris?
PART IV Applicable law and judicial creativity
9 The first Decision on Sentence of the International Criminal Court in the Lubanga case: Great (Unmet) expectations
10 The confirmation of charges at the International Criminal Court: A tale of two models
11 From Lubanga to Ruto: Witness proofing under the applicable law of the ICC
12 General principles of law in the early jurisprudence of the ICC
Index

Citation preview

The International Criminal Court in Search of its Purpose and Identity

The International Criminal Court (ICC) is the first permanent international criminal tribunal, which has jurisdiction over the most serious crimes of concern to the international community as a whole: genocide, crimes against humanity, war crimes, and crimes of aggression. This book critically analyses the law and practice of the ICC and its contribution to the development of international criminal law and policy. The book focuses on the key procedural and substantive challenges faced by the ICC since its establishment. The critical analysis of the normative framework aims to elaborate ways in which the Court may resolve difficulties which prevent it from reaching its declared objectives in particularly complex situations. Contributors to the book include leading experts in international criminal justice, and cover a range of topics including, inter alia, terrorism, modes of liability, ne bis in idem, victims’ reparations, the evidentiary threshold for the confirmation of charges, and sentencing. The book also considers the relationship between the ICC and States, and explores the impact that the new regime of international criminal justice has had on countries where the most serious crimes have been committed. In drawing together these discussions, the book provides a significant contribution in assessing how the ICC’s practice could be refined or improved in future cases. The book will be of great use and interest to international criminal law and public international law. Triestino Mariniello is a Senior Lecturer in Law at Edge Hill University, UK.

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Available: International Law and the Third World Reshaping Justice Edited by Richard Falk, Balakrishnan Rajagopal and Jacqueline Stevens International Legal Theory Essays and Engagements, 1966–2006 Nicholas Onuf The Problem of Enforcement in International Law Countermeasures, the Non-Injured State and the Idea of International Community Elena Katselli Proukaki International Economic Actors and Human Rights Adam McBeth The Law of Consular Access A Documentary Guide John Quigley, William J. Aceves and S. Adele Shank State Accountability under International Law Holding States Accountable for a Breach of Jus Cogens Norms Lisa Yarwood International Organizations and the Idea of Autonomy Institutional Independence in the International Legal Order Edited by Richard Collins and Nigel D. White Self-Determination in the Post-9/11 Era Elizabeth Chadwick

Participants in the International Legal System Multiple Perspectives on Non-State Actors in International Law Jean d’Aspremont Sovereignty and Jurisdiction in the Airspace and Outer Space Legal Criteria for Spatial Delimitation Gbenga Oduntan International Law in a Multipolar World Edited by Matthew Happold The Law on the Use of Force A Feminist Analysis Gina Heathcote The ICJ and the Development of International Law The Lasting Impact of the Corfu Channel Case Edited by Karine Bannelier, Théodore Christakis and Sarah Heathcote UNHCR and International Refugee Law From Treaties to Innovation Corinne Lewis Asian Approaches to International Law and the Legacy of Colonialism The Law of the Sea, Territorial Disputes and International Dispute Settlement Edited by Jin-Hyun Paik, Seok-Woo Lee, Kevin Y L Tan The Right to Self-determination Under International Law “Selfistans,” Secession, and the Rule of the Great Powers Milena Sterio Reforming the UN Security Council Membership The Illusion of Representativeness Sabine Hassler Threats of Force International Law and Strategy Francis Grimal The Changing Role of Nationality in International Law Edited by Alessandra Annoni and Serena Forlati Criminal Responsibility for the Crime of Aggression Patrycja Grzebyk

Regional Maintenance of Peace and Security under International Law The Distorted Mirror Dace Winther International Law-Making Essays in Honour of Jan Klabbers Edited by Rain Liivoja and Jarna Petman Resolving Claims to Self-Determination Is There a Role of the International Court of Justice? Andrew Coleman The Rise of Tamil Separatism in Sri Lanka From Communalism to Secession Gnanapala Welhengama and Nirmala Pillay The United Nations and Collective Security Gary Wilson Justice for Victims before the International Criminal Court Luke Moffett Public-Private Partnerships and Responsibility under International Law A Global Health Perspective Lisa Clarke Cultural Diversity in International Law The Effectiveness of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions Edited by Lilian Hanania Incitement in International Law Wibke K. Timmermann The Cuban Embargo under International Law El Bloqueo Nigel D. White Resisting United Nations Security Council Resolutions Sufyan Droubi

The Changing Nature of Customary International Law Methods of Interpreting the Concept of Custom in International Criminal Tribunals Noora Arajärvi Forthcoming titles in this series include: Technology and the Law on the Use of Force New Security Challenges in the Twenty First Century Jackson Maogoto International Law and Boundary Disputes in Africa Gbenga Oduntan Justice in International Law The Legal, Political, and Moral Dimensions of Indigenous Peoples’ Rights Mauro Barelli Means of Transportation and Registration of Nationality Transportation Register by International Organizations Vincent P. Cogliati-Bantz The International Criminal Court in Search of its Purpose and Identity Edited by Triestino Mariniello Power and Law in International Society How International Law Influence International Relations Mark Klamberg The Responsibility to Protect in International Law An Emerging Paradigm Shift Susan Breau Legal Accountability and Britain’s Wars 2000–2014 Peter Rowe

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The International Criminal Court in Search of its Purpose and Identity

Edited by Triestino Mariniello

First published 2015 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2015 selection of editorial material, Triestino Mariniello; individual chapters, the contributors The right of Triestino Mariniello to be identified as editor of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-0-415-74777-6 (hbk) ISBN: 978-1-315-78063-4 (ebk) Typeset in Baskerville MT by RefineCatch Limited, Bungay, Suffolk, UK

Contents

Acknowledgements Contributors Abbreviations ‘One, no one and one hundred thousand’: Reflections on the multiple identities of the ICC

xi xii xvii

1

TRIESTINO MARINIELLO

PART I

Crimes and modes of liability 1

The case for inclusion of terrorism in the jurisdiction of the International Criminal Court

15

17

HARMEN VAN DER WILT AND INEZ BRABER

2

Command responsibility, joint commission and ‘control over the crime’ approach in the first ICC jurisprudence

39

CHANTAL MELONI

PART II

Rights of the accused and of victims 3

The right not to be tried twice for international crimes: An overview of the ne bis in idem principle within the Statutes of the ICC and the international criminal tribunals

59

61

STEFANO MANACORDA AND GIULIO VANACORE

4

Balancing rights of the accused with rights of victims before the International Criminal Court MORRIS A. ANYAH

79

x

5

Contents

Lubanga Decision on victims’ reparations: Handing off the hot potato?

108

PAOLO LOBBA

PART III

The relationship between the International Criminal Court and States 6

Building national capacity for the ICC: Prospects and challenges

131

133

OLYMPIA BEKOU

7

Has the ICC unfairly targeted Africa or has Africa unfairly targeted the ICC?

147

LYAL S. SUNGA

8

Transitional justice in the DRC: The 2014 Amnesty Law and the principle of complementarity – Quid Juris? 174 PATRICIA PINTO SOARES

PART IV

Applicable law and judicial creativity 9

The first Decision on Sentence of the International Criminal Court in the Lubanga case: Great (Unmet) expectations

191

193

SILVIA D’ASCOLI

10 The confirmation of charges at the International Criminal Court: A tale of two models

217

TRIESTINO MARINIELLO AND NICCOLÒ PONS

11 From Lubanga to Ruto: Witness proofing under the applicable law of the ICC

242

SARAH FINNIN

12 General principles of law in the early jurisprudence of the ICC

263

MOHAMED ELEWA BADAR AND NOELLE HIGGINS

Index

283

Acknowledgements

On 26 April 2013, Edge Hill University hosted an international conference titled ‘The First Ten Years of the International Criminal Court: Achievements and Challenges’. This book includes conference proceedings, as reviewed and amended by their authors, as well as further invited contributions. It was a great occasion to host the Vice-President of the ICC, Judge Cuno Tarfusser. My most sincere thanks to him for accepting our invitation and providing an outstanding keynote speech on the opportunities and challenges of the ICC. Funding for the organization of this event was generously provided by Edge Hill University under the REF Investment Fund. In this regard, I wish to express my gratitude to the Dean of the Faculty of Arts and Sciences, Prof. George Talbot, and the Head of Department of Law and Criminology, Prof. Franco Rizzuto, for their exceptional support for this conference. My thanks also to the Research & Enterprise Support Office, in particular its Director, Dr Nikki Craske, for continuous assistance. I was honoured to work with academics and practitioners who are among the major experts in international criminal law. My deepest gratitude goes to all the contributors, who shared with us their expertise and views on the law and practice of the ICC. I sincerely hope that the publication of this book constitutes a starting point of a path that will lead us to share our research interests, and develop collaborative projects. I wish also to thank the Routledge editorial assistant, Dr Mark Sapwell, for his invaluable support, and Mr Mark de Barros for his constant and irreplaceable help. My thanks also to Dr Peter Langford for his precious advice during the organization of the conference. For all the rest, my most heartfelt thanks are for Giulia, source of inspiration and poetry.

Contributors

Editor Triestino Mariniello holds a PhD in International Criminal Law from the University of Naples 2 and an LLM in Human Rights Law from Queen Mary University of London. His research interests focus on international criminal law, criminal justice and human rights, international humanitarian law and European criminal law. Triestino’s academic writing has appeared in a variety of journals, including the American Journal of International Law and Nordic Journal of International Law. He has also been involved in a number of collaborative projects organized, inter alia, by European University Institute, College de France and University of Paris 1. Triestino is editor of the Current Developments of the International Criminal Court section of the International Human Rights Law Review. He has been a visiting researcher at the Humboldt University of Berlin and Grotius Centre for International Legal Studies, Leiden University. He has also been a guest lecturer in numerous universities in Italy, the United Kingdom and Sweden. Triestino is a qualified barrister in Italy and he has served as a visiting professional and associate legal officer at the Pre-Trial Division of the International Criminal Court. He has been consulted as an expert in criminal justice and human rights by governmental and non-governmental organizations, such as the International Bar Association, Italian Ministry of Defence, Italian Training School for Judges and Prosecutors, and the International Observatory on Human Rights. He joined the Department of Law and Criminology at Edge Hill University in September 2012, teaching on the LLM in International Justice and Human Rights.

Contributors Morris A. Anyah is an attorney who specializes in complex trials and appeals before national and international courts. He has served as counsel for victims before the International Criminal Court and as defence counsel for former Liberian President Charles Taylor before the Special Court for Sierra Leone. He has also served as a Legal Officer within the Office of the Prosecutor at the ICTY, and argued significant genocide cases on appeal before the ICTR Appeals Chamber. He is admitted to several Bars in the United States and is currently in private legal practice in Chicago.

Contributors xiii Mohamed Elewa Badar is a Reader in comparative and international criminal law and Islamic law at Northumbria Law School, Northumbria University, Newcastle. He is the author of The Concept of Mens Rea in International Criminal Law (Hart Publishing, 2013) and has published 30 articles in refereed journals and chapters in books. His work was cited and quoted by the International Criminal Tribunal for the former Yugoslavia, the International Criminal Court, the United Nations Extraordinary Chambers in the Courts of Cambodia, the United Nations International Law Commission, the Supreme Court of Argentina and by distinguished scholars. Dr Badar is a member of the Editorial Board and Reviewer of the International Criminal Law Review and the International Human Rights Law Review. Olympia Bekou is Professor of Public International Law and Head of the International Criminal Justice Unit of the University of Nottingham Human Rights Law Centre. She has also held fellowship and visiting positions in Germany, Australia, France and Turkey, where she researched and taught international criminal law. Olympia has extensive experience in the management of large research grants and is currently leading a number of capacitybuilding projects. She has provided research and capacity-building support for 63 States, through intensive training to more than 75 international government officials, drafted assistance to Samoa, Fiji and Jamaica, and has been involved in training the Thai Judiciary. She has also undertaken capacitybuilding missions in post-conflict situations such as Uganda, the DRC and Sierra Leone. Olympia is responsible for the National Implementing Legislation Database of the International Criminal Court’s Legal Tools Project and is Deputy Director of the Case Matrix Network. Inez Braber graduated from the University of Amsterdam School of Law in 2013 with a specialization in international terrorism. She studied in Italy and the Netherlands, is currently finishing her Master’s thesis in philosophy on Hannah Arendt and human rights, and plans to pursue a PhD in international criminal law at the University of Amsterdam with Professor Van der Wilt. She is a reporter for the International Criminal Court project of Oxford University Press and works as a professional chef. Silvia D’Ascoli is an Italian lawyer and international criminal attorney with expertise in the fields of international criminal law and human rights. Since 2007, Silvia has served as Legal Officer for the Office of the Prosecutor (OTP) of the UN International Criminal Tribunal for the former Yugoslavia (ICTY). In this capacity, Silvia has worked for both the Trial and the Appeals Section of the OTP, focusing on war crime cases concerning Kosovo and Bosnia. She is currently working on the case Prosecutor v Ratko Mladi´c. Silvia received her PhD in Law from the European University Institute (Florence, Italy), in 2008. She regularly publishes in international legal journals and is the author of a monograph on Sentencing in International Criminal Law (Hart Publishing, 2011). Since 2011, she has been a visiting lecturer in human rights and international tribunals at the Université Catholique de Lille & Paris (Faculté Libre de Droit

xiv

Contributors de Lille, France). Silvia is also a member of the Justice Rapid Response’s Roster of Experts for human rights investigations in conflict zones.

Sarah Finnin is currently employed as an Associate Legal Officer with the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia. Sarah received a PhD in Law from the University of Melbourne in 2011. Her thesis, Elements of Accessorial Modes of Liability: Article 25(3)(b) and (c) of the Rome Statute of the International Criminal Court, was published by Martinus Nijhoff in 2012. Sarah worked as a Prosecutor based in Alice Springs in the Northern Territory of Australia between 2011 and 2013. She acted as Senior Associate to Justice Lex Lasry of the Supreme Court of Victoria between 2007 and 2009. In 2004, 2005 and 2007, Sarah made three extended visits to Washington DC to work with the Office of the Chief Defense Counsel for the US Office of Military Commissions. She was engaged as a research assistant at the Asia Pacific Centre for Military Law throughout her undergraduate and postgraduate studies. Noelle Higgins is a Senior Lecturer in the Law Department at Maynooth University, Ireland. She previously studied and worked in the Irish Centre for Human Rights at the National University of Ireland, Galway. Her main areas of teaching and research are international criminal procedure and international humanitarian law. Paolo Lobba is a Research Fellow at the University of Bologna (Italy). He holds a PhD in Criminal Law and Procedure from Bologna University in co-tutelle with Humboldt-University Berlin, and has been admitted to the Italian Bar Association since 2011. He worked with the United Nations in Phnom Penh (Cambodia), where he assisted the Extraordinary Chambers in the Courts of Cambodia as Associate Legal Officer. In this capacity, he was assigned to the appellate proceedings in the Duch case, dealing especially with the issues of jurisdiction, illegal detention, sentencing and victims’ reparations. Thanks to a number of research grants, including a 10-month post-doctoral scholarship awarded by the German public institution DAAD, he worked with Professor Gerhard Werle at the Humboldt-University Berlin, addressing a wide range of international criminal law questions. His doctoral dissertation analysed the crime of Holocaust denial (and that of other serious crimes) in Europe, examining not only domestic legislation and case law, but also relevant European Union acts and the jurisprudence of the European Court of Human Rights. Stefano Manacorda (BA University of Naples; LLM Université Paris 1 Panthéon-Sorbonne; PhD University of Florence) is Professor in Criminal Law at the University of Naples 2, where he is also the director of the doctoral programme. Currently he is also a visiting Professor at the Ecole de droit de la Sorbonne, Université Paris, and previously he was visiting Professor at the University of Paris II Panthéon-Assas, at the University of Geneva and the Institut d’Etudes Politiques, Sciences Po in Paris. He has published extensively in the fields of European, Comparative and International Criminal Law. His

Contributors xv research focuses mainly on corporate criminal liability (Preventing Corporate Corruption. The Anti-Bribery Compliance Model, Springer, 2014; La responsabilité pénale des personnes morales: perspectives européennes et internationales, Société de Législation Comparée, 2013), the protection of cultural heritage (Crime in the Art and Antiquities World. Illegal Activities in Cultural Property and Criminal Policy Responses, Springer, 2011) and the right to life (ɜ Devoir de punir ? ɝ Le système pénal et la protection internationale du droit à la vie, Société de Législation Comparée, 2013). Chantal Meloni teaches International Criminal Law at the University of Milan. She is a lawyer and holds a PhD in comparative criminal law from the University of Pavia. In 2006/2007 she worked at the ICC as Legal Assistant in Chambers. She is currently at the Humboldt University of Berlin as an Alexander von Humboldt fellow. Her research interests focus on international criminal law, accountability mechanisms, individual responsibility for international crimes and the protection of victims of international crimes. She is the author of Command Responsibility in International Criminal Law (T.M.C. Asser, 2010) and of several scientific articles published in international journals and collective volumes. She is also the co-editor of Is There a Court for Gaza? A Test Bench for International Justice (T.M.C. Asser/Springer, 2012). Patricia Pinto Soares has a PhD in Law from the European University Institute, and is currently working as a human rights officer in DRC. Previously, she worked as a legal officer at INTERPOL. During the academic year 2009– 2010, she was a researcher at the Center for Transatlantic Relations of SAIS Johns Hopkins University, in Washington DC. She further worked at an international law firm in Lisbon, and gained experience at the Extraordinary Chambers of the Court of Cambodia, in Phnom Penh, in 2007. Niccolò Pons is an Associate Legal Officer in Pre-Trial Division, Chambers of the International Criminal Court. He previously worked for a Trial Chamber of the Court. Mr Pons is also a Project Consultant for the Fondazione Istituto Gramsci in Rome, Italy, and a lecturer in international criminal procedure at the United Nations Interregional Crime and Research Institute in Turin, Italy. In addition, he is enrolled as an expert/instructor for the Antonio Cassese Initiative for Justice, Peace and Humanity. Mr Pons holds an LLM in international humanitarian law from the Geneva Academy of International Humanitarian Law and Human Rights. He has published in the field of international criminal law and procedure. Lyal S. Sunga is a Visiting Professor at the Raoul Wallenberg Institute (RWI) for Human Rights and Humanitarian Law in Lund, Sweden, and Special Advisor on Human Rights and Humanitarian Law at the International Development Law Organization in Rome, Italy. He specializes in international human rights law, international humanitarian law and international criminal law, and holds a Bachelor of Arts (Carleton), Bachelor of Laws (Osgoode Hall Law School), Master of Laws in International Human Rights Law (Essex) and PhD in International Law (The Graduate Institute of International Studies). He has

xvi

Contributors given presentations, university courses, lectures and training, and conducted human rights technical assistance in more than 50 countries. From 1994 to 2001, Dr Sunga was Human Rights Officer at the UN Office of the High Commissioner for Human Rights in Geneva, in which capacity he investigated facts and responsibilities relating to the 1994 genocide in Rwanda for the UN Security Council’s Commission of Experts on Rwanda. In 2007, he served as Coordinator for the UN Human Rights Council’s Group of Experts on Darfur. Over the last 25 years, he has worked or consulted with the UN Security Council, UNOHCHR, UNDP, UNDEF, UNU, UNHCR, UNITAR, UNODC, the ILO, EU, IDLO and Swiss Development Cooperation, as well as with National Human Rights Commissions in the Russian Federation, Ethiopia, Uganda, Nigeria, Bangladesh and Nepal. Sunga has authored two books on international criminal law and publishes widely on such issues as the use of force in international relations, humanitarian intervention, truth and national reconciliation, human security, and techniques of human rights monitoring, investigation and reporting.

Giulio Vanacore has been a post-doctoral researcher in Criminal Law at the University of Urbino since April 2013 (research project on complementarity before the International Criminal Court). He graduated summa cum laude in 2008 at University of Naples Federico II. After three academic years (2008– 2011), he wrote a PhD thesis in criminal law titled ‘The Admissibility Assessment Before the International Criminal Court and the First Case Law: A Model of Complementarity’. He has been collaborating with Department Chairs of International, Comparative and Italian Criminal Law at the University of Naples 2 and at the University of Urbino, as well as with the Department Chair of International Law at University of Naples Federico II. In 2012, he worked as an intern for the United Nations International Criminal Tribunal for the former Yugoslavia Trial Chambers. In 2013, he participated in an Italian government commission of experts, instituted by the Italian President of the Council of Ministers, with the aim of studying and amending several criminal provisions on organized crime, mafia and economic crimes. Harmen van der Wilt is Professor of International Criminal Law at the Amsterdam School of Law, University of Amsterdam. His research interests include concepts of criminal responsibility in international criminal law, domestic prosecutions of international crimes, legal reaction to terrorism, International Criminal Law and legal philosophy, history in the courtroom, European Arrest Warrant and transnational crimes. Van der Wilt is a member of the editorial board of the Journal of International Criminal Justice and the Netherlands Yearbook of International Law. He has been a member of the Research council of the EU(F7)-project on the European Arrest Warrant and a member of the Steering Committee of F7 project DOMAC (Impact of International Courts on Domestic Procedures in Mass Atrocity cases). Van der Wilt has been an ad litem Judge in the Criminal Court of Roermond and is currently an ad litem judge in the Extradition Chamber of the District Court in Amsterdam.

Abbreviations

ASP AU CAR DDRRR DRC ECCC ECtHR ELN FARC FARDC FDLR FNI FPLC FRPI ICC ICJ ICT ICTJ ICTR ICTY IHL ILC JCE LRA LRV MLC MNLA NGO OIC OPCV

Assembly of States Parties to the Rome Statute African Union Central African Republic Disarmament, Demobilization, Repatriation, Reintegration and Resettlement Democratic Republic of the Congo Extraordinary Chambers in the Courts of Cambodia European Court of Human Rights Ejército de Liberación Nacional Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo Forces Armées de la République Démocratique du Congo Forces Démocratiques pour la Libération du Rwanda Front des Nationalistes et Intégrationnistes Forces Patriotiques pour la Libération du Congo Force de Résistance Patriotique de l’Ituri International Criminal Court International Court of Justice International Criminal Tribunal International Center for Transitional Justice International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia International Humanitarian Law International Law Commission Joint Criminal Enterprise Lord’s Resistance Army Legal Representative of the Victims Mouvement pour la Libération du Congo National Movement for the Liberation of Azawad non-governmental organization Organisation of the Islamic Conference Office of Public Counsel for the Victims of the International Criminal Court

xviii

Abbreviations

OTP PCIJ PNC RPE SCSL STL TFV TRC UN UNHCR UNOCHA UPC VCLT VWU

Office of the Prosecutor of the International Criminal Court Permanent Court of International Justice Police Nationale Congolaise Rules of Procedure and Evidence of the International Criminal Court Special Court for Sierra Leone Special Tribunal for Lebanon Trust Fund for Victims Truth and Reconciliation Commission United Nations United Nations High Commissioner for Refugees United Nations Office for Coordination of Humanitarian Affairs Union des Patriotes Congolais Vienna Convention on the Law of Treaties Victims and Witnesses Unit of the International Criminal Court

‘One, no one and one hundred thousand’ Reflections on the multiple identities of the ICC Triestino Mariniello National sovereignty and beyond: The establishment of the International Criminal Court The International Criminal Court (ICC) is the first permanent international criminal tribunal, which has jurisdiction over the most serious crimes of concern to the international community as a whole: genocide, crimes against humanity, war crimes, and crime of aggression. By signing and ratifying the Rome Statute, States voluntarily accept a limitation to their sovereignty. The willing delegation of competence over (international) crimes by States to a supranational institution constitutes a revolutionary development in international (criminal) law. Indeed, the International Military Tribunals for Nuremberg and the Far East were created by the Allies, for the purposes of bringing the leaders of Nazi Germany and the Empire of Japan to justice. The International Criminal Tribunals for the Former Yugoslavia and Rwanda were established by the UN Security Council in order to prosecute those responsible for international crimes committed in the Former Yugoslavia and Rwanda. In contrast, the ICC is a treaty-based tribunal with competence limited to core crimes perpetrated either on the territory of a Member State to the Rome Statute or by nationals of a Member State. It embodies the main legacy of the International Military Tribunal of Nuremberg, providing that ‘crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced’.1 In distinction to its predecessors, which were imposed by victor countries or by a political body, such as the UN Security Council, with restricted democratic representativity, the ICC was established by the same States that have primary jurisdiction over crimes committed and freely renounce their status as the sole holders of the right to exercise the jus puniendi. This innovation is extremely significant considering that criminal law has historically been the most self-contained part of a domestic justice system, constituting one of the most central expressions of the socio-cultural identity of a country.2 The

1 Judgment of the International Military Tribunal, in The Trial of German Major War Criminals: Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, Part 22, London, 1950, 447. 2 David Garland, The Culture of Control. Crime and Social Order in Contemporary Society (OUP 2001) 29.

2

Triestino Mariniello

authority to determine the boundaries of individual liberty, through the definition of criminal conduct, is a central element of a State’s absolute sovereignty, without any international or supranational restriction. In accordance with the complementarity principle enshrined in Article 17 of the Rome Statute, Member States retain primary competence over a case concerning the alleged commission of genocide, crimes against humanity and war crimes. However, these States admit the possibility that their jurisdiction over core crimes may be transferred to an international institution, when they are unwilling or unable to carry out the investigation or prosecution. Thus, the key question is the following: why establish a supranational justice system with competence over such a ‘narrow’ category of crimes? International crimes differ from ordinary crimes punishable before domestic systems, due to their massive nature. Such core crimes ‘could not occur without the organized cooperation of many, often numbering in the several thousands . . . Their cooperation takes innumerable forms, and a satisfactory method for ascribing particular harms to specific defendants is not always readily at hand’.3 As enshrined in the Preamble to the Rome Statute, the jurisdiction ratione materiae of the Court is limited to the most serious crimes of concern to the international community as a whole. The Preamble, therefore, appears to provide a type of jurisdictional threshold, which, on the basis of the gravity of the crimes, draws a borderline between core crimes punishable before the ICC, and other treaty crimes, as well as ordinary crimes, still falling within domestic jurisdiction. The decision to confine the ICC’s competence to core crimes reveals the willingness to exclude from its purview criminal cases of individual deviance, considered less serious and, therefore, belonging to the sole competence of domestic justice systems. Crimes within the ICC’s jurisdiction are held to threaten fundamental values of peace, security and the well-being of the world. In other words, a penal system with potential universal jurisdiction has, as its main purpose, to protect those fundamental values, which are essential for all mankind. The significance of such values confers upon the supranational organization the legitimacy to replace States in the exercise of the jus puniendi, and therefore erode their sovereignty in the area of criminal law. Thus, on behalf of the international community, the ICC has the duty to deal with acts that transcend the interests of States and, as such, affect mankind as a whole.

An identity crisis for the ICC The Rome Statute establishes a potential universal validity for the principle of individual criminal accountability for perpetrators of international crimes. Civil society, scholars and practitioners welcomed the establishment of a permanent international criminal tribunal with great enthusiasm. The Court was greeted as a fundamental step in the evolution of the universal system of human rights

3 Mark Osiel, ‘The Banality of Good: Aligning Incentives against Mass Atrocity’ in (2005) 105 Columbia Law Review 1751, 1752–1753.

Reflections on the multiple identities

3

protection and in the fight against impunity for core crimes. Scholars took the opportunity to label the ICC as the realization of the Kantian ideal of perpetual peace through law.4 Professor and Judge Cassese emphasized that ‘The ICC, with its drive to universality, constitutes the only true and fully-fledged realization of the ideal of justice. Hence, the contention is warranted that the mere establishment and existence of the ICC is a stupendous value per se’.5 The same Preamble to the Statute reflects the significant expectations placed on the ICC, by stating that the Court has to end the impunity for the perpetrators of core crimes, and contribute to the prevention of such crimes. Beyond the traditional objectives of a domestic criminal justice system, such as general deterrence, retribution for wrongdoing, incapacitation and rehabilitation, international criminal tribunals are ascribed several additional goals.6 Indeed, a permanent Court has to address the threat that crimes in question pose to peace and security, and stop ongoing conflicts.7 It should contribute to national reconciliation in postconflict societies, and avoid future conflicts.8 In addition, the Court should provide satisfaction to victims of international crimes. In this regard, the ICC appears to propose itself as the proper forum for the specific voice of the victims of core crimes, who are entitled to claim both their rights to participation in the criminal proceedings and also to reparation for the harm suffered.9 In regard to ‘positive complementarity’, it is expected that the ICC will contribute to capacity building, by strengthening States’ ability to successfully investigate and prosecute international crimes.10 The Court is also called to assume a pedagogical role, by propagating universal human rights.11 Finally, it is argued that international criminal tribunals have to provide historiographical reconstruction of the events in a country troubled by civil or international conflicts.12

4 Mireille Delmas-Marty, ‘Ambiguities and Lacunae. The International Criminal Court Ten Years On’ in (2013) 11 Journal of International Criminal Justice 553. 5 Antonio Cassese, ‘Achievements and Pitfalls of the ICC Five Years On’ in Gabriella Venturini and Stefania Bariatti (eds), Liber Fausto Pocar (Giuffré 2009) 147. 6 For a detailed critical analysis of the myriad of objectives ascribed to ICTs, see Mirjan Damaška, ‘What is the Point of International Criminal Justice?’ in (2008) 83(1) Chicago-Kent Law Review 329. 7 M. Cherif Bassiouni, ‘Searching for Peace and Achieving Justice: The Need for Accountability’ in (1996) 59 Law and Contemporary Problems 9. 8 Carsten Stahn, ‘How is the Water? Light and Shadow in the First Year of the ICC’ in (2011) 22 Criminal Law Forum 175. 9 With regard to the victims’ right to express their views and concerns before the ICC, see Article 68(3) of the Statute. Article 75 establishes principles related to reparations. 10 Olympia Bekou, ‘Building National Capacity for the ICC: Prospects and Challenges’, Chapter 6 of this book. 11 Mirjan Damaška (n 6) 343–347. 12 Christine Van den Wyngaert, ‘International Criminal Courts as Fact (and Truth) Finders in PostConflict Societies: Can Disparities with Ordinary International Courts Be Avoided?’ in (29 March– 1 April 2006) 100 Proceedings of the Annual Meeting (American Society of International Law) 63. See also Mario Bettati and Bernard Kouchner, ‘Pour l’arrêt des massacres en Syrie, saisissons la Cour pe.nale internationale’, Le Monde, 3 June 2012, available at www.lemonde.fr/idees/article/2012/06/13/ pour-l-arret-des-massacres-en-syrie-saisissons-la-cour-penale-internationale_1717632_3232.html.

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Therefore, the Court appears as a single body with a multiplicity of identities: a criminal court dealing with individual criminal responsibility; a form of restorative justice, which – as a forum for victims to express their views and concerns – contributes to reconciliation; a pedagogic institution strengthening the public sense of accountability for human rights violations; in cases of referrals by the Security Council, an organ of international security with the duty to restore peace between nation-states;13 a human rights court with the main purpose to protect human dignity; a historian vested with the authority to make an objective record of events; and an agency engaging in activities which enhance the effectiveness of national jurisdictional capacity to prosecute serious crimes.14 The multiplicity of these conceptions of the ultimate goal of the ICC have led to an inevitable identity crisis of a body that increasingly perceives itself (and is perceived) as ‘One, No One and One Hundred Thousand’.15 ‘One’ is the identity of an institution which, despite dealing with the most serious violations of human rights, remains a criminal tribunal, whose main goal is to determine individual guilt. ‘No one’ refers to the identity of the ICC outside the African context, because of the total absence of the Court in extra-African conflict scenarios, where core crimes have allegedly occurred. In other words, a Court appears without identity and legitimacy each time the Prosecutor selects individuals to bring to justice in light of their citizenship, rather than on the objective basis of the acts committed. ‘One hundred thousand’ are those identities that reflect the several objectives provided by the same Court as well as scholars, States and civil society. However, whereas for Pirandello’s novel, the multiplication of identities entails also a positive process of self-awareness for the main character (Vitangelo Moscarda), for the ICC, this uncertainty in relation to the Court’s purpose and identity poses significant anxieties for its work and future impact, in particular considering the strong tensions among the different conceptions of its ultimate goal. In addition, this lack of clarity regarding the goals and challenges for the ICC constitutes one of the main reasons for which initial enthusiasm has, in a relatively short period, disappeared, increasingly turning to gradual disenchantment. The unrealistic expectations placed on the ICC as a new civilizing institution, which could have been a definitive cure for radical evil, have inevitably caused disappointment.16

13 George P. Fletcher and David Ohlin, ‘The ICC – Two Courts in One?’ in (2006) 4 Journal of International Criminal Justice 428. 14 See Report of the Bureau on Stocktaking: Complementarity, ‘Taking Stock of the Principle of Complementarity: Bridging the Impunity Gap’, ICC-ASP/8/51, 18 March 2010. 15 This is the title of the famous novel written by Luigi Pirandello. See Luigi Pirandello, One, No One, One Hundred Thousand (Eridanos Press 1990). 16 Florian Jessberger and Julia Geneuss, ‘Down the Drain or Down to Earth? International Criminal Justice under Pressure’ in (2013) 11 Journal of International Criminal Justice 501.

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The tortuous path of the ICC in its early existence It seems that after the initial euphoria, scholars have suddenly become aware that the ICC may not achieve all those divergent objectives. Indeed, more than a decade after its establishment, both the law and practice of the first permanent international criminal tribunal have generated strong criticism even among its most fervent supporters.17 One of the most frequent criticisms of the ICC is its over-concentration on African States, which has resulted in increased tensions between the African Union and the Court.18 The geographical focus on African situations has been strongly criticized, given that all eight situations before the ICC concern African States.19 Critics have also identified ambiguous or non-exhaustive motivations provided by the Prosecutor not to commence investigations in some specific contexts. Following communications by 240 non-governmental organizations (NGOs), the Prosecutor admitted that there was a reasonable basis to believe that British troops had committed war crimes within the context of the armed conflict in Iraq.20 Nonetheless, he decided to not open an investigation, since the crimes were not sufficiently serious in light of the gravity threshold under Article 17(1)(d) of the Statute.21 The Prosecutor found that the court had to focus on other situations, such as Uganda and Congo, characterized by the presence of many more victims. Unconvincingly, he relied on an improper comparison between the specific case in Iraq and the general situation in Uganda and Congo.22 For the alleged war crimes perpetrated during the Israeli military operation in Gaza (Cast Lead), it took three years for the prosecutor’s office to issue a two-page decision,23 which arguably delegated to political bodies (such as the Assembly of State Parties or UN General Assembly) the competence to clarify a legal concept: whether Palestine may be considered a State within the normative framework of the Rome Statute.24 With regard to the cases, the so-called one-sided investigation – in other words, the decision of the Prosecutor to investigate only those crimes committed by members belonging to one of the parties involved in the alleged commission of crimes – has attracted considerable criticism. For instance, it is argued that, in the

17 See, inter alia, William A. Schabas, ‘The International Criminal Court at Ten’ in (2011) 22 Criminal Law Forum 493. 18 William A. Schabas, ‘The Banality of International Justice’ in (2013) 11 Journal of International Criminal Justice 545. 19 Florian Jessberger and Julia Geneuss (n 16). 20 Office of the Prosecutor, Letter Concerning Communication on the Situation in Iraq, the Hague, 9 February 2006, 8. 21 Ibid, 8–9. 22 William A. Schabas, ‘The International Criminal Court at Ten’ (n 17) 506. 23 Office of the Prosecutor, Situation in Palestine, 3 April 2012, available at www.icc-cpi.int/NR/ rdonlyres/C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG. pdf. 24 John Dugard, ‘Palestine and International Criminal Court: Institutional Failure or Bias?’ in (2013) 11 Journal of International Criminal Justice 563.

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Ugandan situation, the Prosecutor completely ignored that most of the serious crimes were being committed by the pro-government forces.25 A second cause of concern for the ICC is (the lack of) State co-operation. The Court’s decisions have to be effected by domestic authorities. In other words, the Court is dependent upon domestic authorities for the collection of evidence, the compelling of persons, the security of witnesses, the forfeiture of assets, the execution of arrest warrants and the surrender of persons. The lack of support from domestic authorities has prevented the Court from implementing the arrest warrant in the case against Al Bashir, President of Sudan.26 The inability of the Court to apprehend suspects affects the credibility of the international justice system and denies the possibility of justice to the victims of the most serious crimes. In addition, one of the prevalent concerns in The Hague is the length of proceedings. After 12 years, the ICC has yet to complete a single case fully. Since its establishment, the Court has made only three trial judgments: two convictions and one acquittal. All these cases are still pending before the Appeals Chamber.27 Lubanga spent more than six years in detention before his conviction.28 Katanga was surrendered to the Court in 2007 but was not sentenced until seven years later, on 23 May 2014.29 In the Gbagbo case, pre-trial judges needed three years in order to confirm the charges.30 In the Prosecutor v Kenyatta case, the beginning of the trial has been scheduled two-and-a-half years (7 October 2014) after the charges were confirmed by Pre-trial Chamber II.31 Even recognizing that the duration of international criminal proceedings is typically longer than domestic justice, it cannot be denied that one of the main challenges of the Court will be to reduce the length of trials, taking into account that the expeditiousness of criminal proceedings constitutes in primis an essential component of the right to a fair trial. Moreover, the early practice of the ICC has revealed enormous difficulties in obtaining evidence in situations of ongoing conflict. Strict confidentiality restrictions have undermined transparency and disclosure when information has been shared. In the Lubanga case, the first issues concerning the conduct of the investigation carried out by the Prosecutor arose with regard to the controversial use of intermediaries as investigators by proxy for the office of the Prosecutor. The

25 William A. Schabas, ‘The International Criminal Court at Ten’ (n 17) 505. 26 Prosecutor v Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir, Pre-trial Chamber I, 12 July 2010. 27 The Court has convicted Thomas Lubanga Dyilo and Germain Katanga, whereas it has acquitted Mathieu Ngudjolo Chui. 28 Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-2842, Judgment pursuant to Article 74 of the Statute, Trial Chamber (Lubanga Judgment), 14 March 2012. 29 Prosecutor v Katanga and Ngudjolo, ICC-01/04-01/07-3484, Décision relative à la peine (article 76 du Statut), Trial Chamber II, 23 May 2014. 30 Prosecutor v Laurent Gbagbo, ICC-02/11-01/11-656-Red, Decision on the confirmation of charges against Laurent Gbagbo, Pre-trial Chamber I, 12 June 2014. 31 Prosecutor v Uhuru Muigai Kenyatta, ICC-01/09-02/11-908, Decision on Prosecution’s applications for a finding of non-compliance pursuant to Article 87(7) and for an adjournment of the provisional trial date, Trial Chamber V(B), 31 March 2014.

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question of the reliability and credibility of such intermediaries became a contentious issue at the outset of the trial, when the first child soldier witness recanted his evidence, and claimed that an intermediary had instructed him to lie.32 Trial Chamber I devoted a considerable part of the judgment to the conduct of the investigation by the Prosecutor, including its impact on the conduct of the trial and on the evaluation of the evidence.33 The Trial Chamber criticized the Prosecutor’s approach of delegating its investigative responsibilities to intermediaries, who contacted a series of unreliable witnesses.34 Finally, if analysed within the framework of the fundamental rights of the accused, the recent practice of the Court appears concerning – in particular, the application in the Katanga case of Regulation 55 of Regulations, which provides the Trial Chamber with the authority to change the legal characterization of facts.35 It is worrisome that the re-characterization of mode of liability upon which Katanga’s trial was based occurred more than a year after the evidentiary stage of the trial had been completed. Despite the seriousness of such concerns, an assessment of the ICC’s practice must acknowledge two attenuating circumstances. First, institutions such as this, whose role is to provide lasting hallmarks, require a period of consolidation before springing into full action.36 For instance, the European Court of Human Rights, which is now considered one of the main actors on the stage of the protection and development of human rights, needed some decades before fully expressing its potentialities. Second, the complexity of the ICC’s role cannot be ignored, as it deals with crimes that are often related to State policy and interests. Core crimes falling within the jurisdiction of the ICC constitute forms of macro-criminality, which find rich soil in exceptional political circumstances at a domestic level. Such circumstances are expressed either in the tolerance of heinous acts or directly in the involvement of States’ authorities in their perpetration. The experience of the Second World War, the former Yugoslavia and Rwanda, as well as of the majority of situations before the ICC, for instance, reveal how such crimes are committed within the context of domestic justice systems presenting evident contrasts with the moral values supporting the jus gentium.

Methodological reflections On 26 April 2013, Edge Hill University hosted an international conference titled ‘The First Ten Years of the International Criminal Court: Achievements and

32 Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-2434-Red2, Redacted Decision on Intermediaries, Trial Chamber I, 31 May 2010. 33 Lubanga Judgment (n 28), paras 178–477. 34 Ibid, para 482. 35 Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Decision on the implementation of Rule 55 of the Regulations of the Court and severing the charges against the accused persons, ICC-01/ 04-01/07-3319-tENG/FRA, AC, 17 December 2012. 36 Antonio Cassese (n 5) 155.

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Challenges’. This anniversary constituted an important occasion to provide a critical analysis of the lacunae and ambiguities in the Statute. The conference brought together scholars and practitioners in order to assess critically the law and practice of the ICC throughout the 10 years since its establishment. It analysed the Court’s contribution to the development of international criminal law, and the impact of its activities in countries where the most serious crimes have been committed. The critical approach by scholars and practitioners to the significant difficulties (both procedural and substantive) faced by the ICC in its early existence constitutes an indispensable instrument in outlining the possibilities for the refinement and improvement of the Court’s practice in future cases. Indeed, the number of limitations characterizing the ICC’s work does not absolve us from our duty to elaborate constructive suggestions, which can enhance the permanent international criminal justice system. In other words, the critical assessment by practitioners and academics appears necessary to highlight the limits of the Court’s practice and contribute to its progress. In this regard, it is opportune to emphasize that the critical approach adopted here differs from the one followed by a part of academic literature, which is inclined to opt for the abolition of every form of international criminal justice.37 These views mainly highlight the lack of legitimacy of institutions such as the ICC, which are seen as the representative of powerful States and, as such, an expression of neo-imperialistic dominance. This critical perspective insistently emphasizes the necessity to explore ‘possible complicities of ICL in injustice, conflict, exclusions . . .’.38 These radical critics of international criminal justice place into question the legitimacy of ICTs from an external perspective, since the critique is not developed through concentration on the detailed mechanics of their operation. In contrast, the methodology adopted in this book differs from such existing literature, as it does not propose an a priori rejection of the ICC’s normative framework. While retaining a strong critical perspective, the internal analysis of this normative framework aims to elaborate on ways in which the ICC may resolve difficulties that prevent it from reaching its declared objectives in particularly complex situations. It appears necessary to explore the challenges posed by the ICC’s normative system. It is true that some weaknesses characterizing the ICC can hardly be improved. This results from the fact that it is impossible for the ICC to enforce international criminal law without the States’ co-operation, which is dependent on the unstable reserve of political will. Therefore, it would be utopian to expect the emergence of a perfect international criminal justice system, strictly based on the rule of law, exercising its role in the isolated, rarefied forum of The Hague, far from the volatile world of international politics. However, it is no less certain that academics and practitioners are able to intervene to contribute to the

37 See, inter alia, Antoine Garapon, Crimini che non si possono né perdonare né punire. L’emergere di una giustizia internazionale (Il Mulino 2004). 38 Christine Schwöbel, ‘Introduction’ in Christine Schwöbel (ed.) Critical Approaches to International Criminal Law. An Introduction (Routledge 2014) 1.

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ICC’s capabilities of pursuing its obligations, by reducing some weaknesses characterizing its law and practice. Therefore, the idea of organizing the conference and publishing this book situated itself upon the fundamental presupposition that individuals are criminally liable for collective and massive phenomenon of violence.39 While the ICC’s early operation is characterized by more shadows than light, the international criminal justice system established by the Rome Statute constitutes – in several conflict situations – the only valid and necessary instrument to establish individual criminal responsibility. The Court will not constitute the answer that can end States’ practices of impunity for core crimes.40 As emphasized by Akhavan, ‘International criminal justice must be situated as simply one tool among a broader set of tools to confront mass atrocities, a measure of last resort in the hierarchy of responses’.41 Still, the Court can undertake its role in strengthening the sense of accountability for international crimes by stigmatizing these acts as contrary to the fundamental values of the international community. Beyond the actual effect of the ICC’s decision in relation to potential criminals, the Court could serve, for the entire collectivity of States, as an important pedagogical device for the acknowledgment of the values protected by international criminal justice. Due to the development in international criminal law, massacres that have been historically unleashed under the cover of State sovereignty are now considered genocide, crimes against humanity, war crimes and aggression. The ICC can contribute to eradicating the abusive use of State sovereignty to cover gross criminality. For this reason, the existence of international criminal law may not be confined to purely normative development in international legal instruments and academic commentary, but must also materialize itself as law in action. As genocide, crimes against humanity and war crimes continue to be perpetrated, the abolition of forms of justice like the ICC would constitute a regressive and anachronistic step for the international community as a whole. The existence of international criminal law as justice is the central challenge for the Court in the future.

Overview of central themes This book includes conference proceedings, as reviewed and amended by their authors, as well as further invited contributions. The book is written by experts in international criminal justice, both leading practitioners and prominent scholars, who provide new and original research on the law and practice of the Court. The critical assessment from both inside and outside the Court appears, indeed,

39 With regard to individual criminal responsibility in international criminal law, see Stefano Manacorda, Imputazione Collettiva e Responsabilità Personale. Uno studio sui paradigmi ascrittivi nel diritto penale internazionale (Giappichelli 2008). 40 M. Cherif Bassiouni, ‘The ICC – Quo Vadis?’ (2006) 4 Journal of International Criminal Justice 421, 426. 41 Payam Akhavan, ‘The Rise, and Fall, and Rise of International Criminal Justice’ in (2013) 11 Journal of International Criminal Justice 527.

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necessary to identify the limits of the Court’s practice, and to redefine and improve such practice. This book is structured by four central themes: (i) (ii) (iii) (iv)

crimes and modes of liability; rights of the accused and victims; the relationship between the International Criminal Court and States; and applicable law and judicial creativity.

The Court has already contributed significantly to the development of both substantive and procedural international criminal law, for instance, with regard to individual criminal responsibility, crimes, mens rea, victims’ rights, disclosure, the complementarity principle, the role of pre-trial chambers, evidentiary issues and interlocutory appeals. The ICC’s early practice has fostered interesting perspectives on the theorization and conception of substantive issues, such as definition of crimes and modes of liability. For instance, with regard to the latter, for the first time in international criminal justice, the ICC has applied the ‘control over the crime’ theory, in order to distinguish the commission of a crime as a principal, under Article 25(3)(a), from accessorial liability pursuant to Article 25(3)(b)(c)(d). Beyond the possibility of distinguishing between principals and accessories to the crime, this theory allows one to extend liability, as a principal, to those individuals who, in spite of their absence from the scene of the crime, control or mastermind its commission, since they decide whether and how the offence will be committed. The first part of the book includes two chapters examining extremely complex issues in international criminal justice: the limited jurisdiction ratione materiae of the ICC and the concept of indirect co-perpetrator under Article 25(3)(a). In particular, in Chapter 1, van der Wilt and Brabez advocate the inclusion of terrorism in the jurisdiction of the ICC, in order to plug a jurisdictional loophole. Taking the striking analogy between terrorism and war crimes as their point of departure, the authors argue that it is rather arbitrary to make jurisdiction depend on the crossing of the line of armed conflict. Moreover, in the case of terrorism, weak States are often incapable of prosecuting and trying the culprits, and this situation reinforces the case for inclusion of terrorism as a separate crime in the jurisdiction of the ICC. In Chapter 2, Meloni focuses on the first applications before the ICC both of the mode of liability of (indirect) co-perpetration under Article 25(3)(a), and of command responsibility under Article 28 of the ICC Statute. She finds that there is a tendency, both at the ad hoc tribunals (with regard to the JCE doctrine), and now at the ICC (with regard to indirect co-perpetration), to overextend the notion of ‘commission of the crime’. In this context, command responsibility, on the contrary, seems to have lost its charm and is so far almost without application before the ICC. The second part of the book develops particularly challenging issues for the Court: ensuring an effective protection of the rights of the accused and victims. Criminal law constitutes the Magna Charta for the accused, and, therefore, the respect of his/her substantive and procedural rights assumes central relevance in

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every democratic penal system based on the rule of law. Still, such fundamental rights are always prone to be deprived of their meaningful protection in the context of international criminal justice, where the seriousness of the crimes may entail a weakening of individual guarantees. However, despite the gravity of core crimes, for the purposes of legitimacy and fairness, the ICC should strive to retain a predominant emphasis on due process. Chapter 3 focuses on ne bis in idem, by finding that whereas in the traditional perspective, ne bis in idem is mainly a criterion for allocating criminal jurisdiction, with the passage from the ICT Statutes to the ICC Statute, the rationale of ne bis in idem as a fundamental human right has acquired increasing relevance. According to Manacorda and Vanacore, such a conclusion is particularly true in relation to the ‘upward’ dimension: a new judgment occurring at the international level after a national decision on the same facts will infringe a basic fundamental rule of the Accused. For the ‘downward dimension’ (a new judgment occurring at the national level after a decision on the same crime has been taken before an international Court), instead, the rationale of the principle admittedly remains the traditional one, with transparent preference for the domestic jurisdictions. They are allowed to retry the individual even when the international criminal jurisdiction has already issued a final judgment with regard to the same person and to the same facts. The ICC establishes an unprecedented system for victims’ rights in relation to both their participation and reparation. Finding a proper balance between victims’ rights and the rights of the accused is one of the main challenges that the Court will face in the future. In Chapter 4, Anyah examines the evident dichotomy between upholding the rights of the accused before the ICC and effectuating the participatory rights granted to victims under the Rome Statute. Article 68(3) of the Rome Statute is identified as the nexus of recurring tensions that have arisen due to this dichotomy, given the requirement that where the personal interests of victims are affected, victims’ views and concerns are to be presented and considered in appropriate stages of proceedings, in a manner not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. This chapter posits that focusing the analysis on the broader issues of a search for the truth and a fair and impartial trial (of which prejudice to the accused is a constituent part) is the preferred approach and one that is consonant with envisaging theoretical and practical scenarios where effectuating the participatory rights of victims could equally serve to uphold the rights of the accused. Lobba examines the decision establishing the principles to be applied to reparations. In Chapter 5, he argues that, although this decision was overshadowed by ICC pronouncements concerning the accused’s criminal responsibility and sentencing, it deals with an aspect unanimously considered to be central to the success of the court, namely, reparations for victims of serious crimes. This chapter seeks to assess critically the principles outlined by the decision, drawing a fruitful parallel between such findings and the solutions adopted by the ECCC, with a view to elaborating guidelines that may assist the court in the (pending) appeal against the said decision.

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The third part of this book explores the relationship between the ICC and States. Under the complementarity principle, Member States to the Statute still retain primary jurisdiction over the alleged commission of core crimes. In other words, the ICC’s role is confined to supplementing national courts, when a State is unwilling or unable to carry out genuinely the investigation or prosecution. This emphasizes the relevance of domestic authorities for the purposes of enforcing international criminal law. Indeed, as stressed by the Preamble, for the most serious crimes of concern to the international community as a whole, effective prosecution must be ‘ensured by taking measures at the national level and by enhancing international cooperation’;42 a State has the duty to ‘exercise its criminal jurisdiction over those responsible for international crimes’.43 The criminal justice system provided by the Rome Statute relies on the presumption that domestic courts are in a position to conduct criminal proceedings more effectively than an international tribunal. Chapter 6 focuses on the prospects and challenges associated with capacity building for the International Criminal Court. It highlights the centrality of this issue for the success of the ICC’s mission. How and to what extent can States better accomplish the role they have been assigned by the Rome Statute? Bekou reviews the key challenges faced by institutions at the national level, namely the complex nature of the international criminal justice process, the lack of resources, skills and expertise required for the investigation and prosecution of international crimes, and the relative incapacity of national justice institutions, and explores how States can better overcome them to fulfil their role under the Rome Statute. In the specific situation in the Democratic Republic of Congo (DRC), where the former prosecutor began his first investigations, Chapter 7 assesses the extent to which the 2014 Amnesty Law may trigger the ICC’s jurisdiction, under the principle of complementarity. Pinto Soares examines the main features of this law, followed by its contextualization within the framework of its legal predecessors and the lessons learned therefrom. She argues that while the 2014 law offers, in its legal text, a pro-accountability groundwork, its generic content, the structural weaknesses of the country and the mutually exclusive understanding of the DRC government concerning the binomial peace-justice may provide leeway for impunity to continue. The decision to start investigations and prosecutions only for crimes committed in the territory of African countries has attracted considerable criticism, namely by the African Union and single Member States, as well as scholars and NGOs. In Chapter 8, Sunga critically assesses whether the ICC has unfairly targeted Africa or, to the contrary, Africa has unfairly targeted the ICC. He argues that this critical question reaches to the heart of the ICC’s legitimacy as the world’s preeminent institution for international criminal justice and, therefore, anyone concerned about the fairness and effectiveness of international criminal justice

42 Preamble to the Rome Statute. 43 Ibid.

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must pay careful attention to it. This chapter considers how the ICC has applied the complementarity principle, and recalls the situations the ICC has been investigating thus far to assess whether it has been unfairly targeting situations in Africa, or, on the other hand, whether Africa actually might, in fact, have been targeting the ICC. It is true that the Rome Statute strives to provide an exhaustive list of applicable sources under Article 21, and it also codifies, for the first time, general principles of criminal law, which should reduce the notorious discretion of international judges. This appears essential in order to provide legal certainty, and therefore construct a fairer criminal justice system. In addition, the Rules of Procedure and Evidence aim to establish detailed rules before the Court. However, it is no less certain that both the Statute, which constitutes the synthesis of a diplomatic compromise, and the Rules are still characterized by a number of lacunae and ambiguities. No doubt the idea of a judge, as a mere bouche de la loi, whose role is confined to mechanically applying clear and exhaustive laws, remains an unrealizable Enlightenment ideal. Nonetheless, such lacunae and ambiguities characterizing the applicable law pursuant to Article 21 constitute sources of unacceptable judiciary discretion and, as such, foster significant inconsistencies in the Court’s practice. Therefore, the fourth part of the book concentrates on the judicial creativity in the ICC’s practice with respect to a number of crucial issues both substantive and procedural. In particular, this part of the book focuses on the ICC’s very first sentence in the case against Thomas Lubanga Dyilo, issued on 10 July 2012. Chapter 9 critically analyses the process followed by the Trial Chamber in reaching its decision, the sentencing principles applied, the relevant factors considered and the cumulative sentence of 14 years’ imprisonment imposed. D’Ascoli finds that the ICC met a few expectations, but failed to meet many others in its first sentence. For instance, according to her, both the impact of sentencing factors on the determination of sentence and the length of the sentence itself remain unexplained. In Chapter 10, Mariniello and Pons critically assess whether, and to what extent, the requirement that the investigation should be ‘largely completed’ before the confirmation of charges hearing, and that the Prosecutor must accordingly present her strongest possible case, are consistent with the legal framework of the Statute. In this regard, they examine the ICC’s recent approach in light of the limited scope and purpose of the confirmation of charges as well as the discretion that the legal framework of the ICC appears to confer on the prosecutor in the choice of the type and amount of evidence to rely on, in order to meet the ‘substantial grounds to believe’ threshold. Therefore, they find that this recent approach entails the concrete risk to transform the confirmation of charges into a trial, with the consequence of prejudicing the screening role of the Pre-trial Chamber and, ultimately, to affect the expeditiousness of the proceedings. With no clear guidance as to what methods (if any) may be used to prepare witnesses in the Rome Statute or Rules of Procedure and Evidence, ICC Chambers have examined whether there is any basis for the practice of proofing in the applicable sources of law set out in Article 21(1)(b) and (c) of the Rome Statute. The lack

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of any general principle of law derived from national legal systems allowing substantive preparation of witnesses led the Lubanga Pre-trial and Trial Chambers to conclude that there was no basis for the practice of witness proofing at the ICC, despite its regular use before the ad hoc tribunals. More recently, however, the Ruto and Kenyatta Trial Chambers have followed the example of the ad hoc tribunals in interpreting the silence of the court’s statutory provisions as conferring flexibility regarding the conduct of proceedings. In Chapter 11, Finnin compares the two approaches, and commends the Ruto and Kenyatta Trial Chambers on the use of their discretion with respect to trial management to develop an approach to witness preparation which is unique to the ICC, and responsive to the particular characteristics of the cases its hears. Finally, in Chapter 12, Badar and Higgins examine the use of general principles as a source of international criminal law, and analyse how international tribunals have identified such principles. In particular, the chapter focuses on the framework of the ICC and its early jurisprudence, to assess to what extent the Court can, and has, resorted to general principles as a source of law. It highlights the importance of general principles to ensure the dynamic development of international criminal law, and argues that further research in the field of comparative law is required in order to bring clarity to the methodology of identifying these principles.

Part I

Crimes and modes of liability

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1

The case for inclusion of terrorism in the jurisdiction of the International Criminal Court Harmen van der Wilt and Inez Braber

Introduction Large parts of Africa are currently plagued by endemic violence. These conflicts differ in intensity and causes, but have some features in common. While the official government is involved in most cases, the contenders include a motley crowd of militias, armed rebel groups and protagonists of organized crime, vying for power and resources. Moreover, the parties do not only carry out attacks against each other, but also often terrorize the civilian population. These dire situations epitomize the growing problem of failed States. A number of these situations are investigated or prosecuted by the ICC. Some of them have even been referred by the States themselves, which suggests that they deem themselves insufficiently equipped to enforce the criminal laws rigorously within their sovereign realm.1 Until now, the ICC’s efforts to administer justice on the African continent have not been a stroll in the park. Initially triggered by the Court’s decision to issue an arrest warrant against Sudan’s incumbent president Omar Al Bashir, the ICC and African States have embarked on a course of increasing animosity.2 The AU has been a harsh critic of the Court, accusing it of ‘neo-colonialism’ and bias and urging member States not to co-operate with the

1 Currently, eight ‘situations’ are under scrutiny at the ICC. Sudan and Libya were referred to the ICC by a Resolution of the Security Council; in the cases of Kenya and Ivory Coast the Prosecution made use of its authority to start an investigation proprio motu (Article 15(1) of the Rome Statute) and in the cases of the Congo, Uganda, Central African Republic and Mali the States themselves referred the situation to the ICC. In its letter of referral, the Democratic Republic of Congo candidly avowed that ‘les autorités compétentes ne sont malheureusement pas en mesure de mener des enquêtes sur les crimes mentionnés ci-dessus ni d’engager les poursuites nécessaires sans la participation de la Cour Pénale Internationale’; Letter from M. Joseph Kabila, to ICC Prosecutor Luis Moreno Ocampo (3 March 2004), reclassified as public pursuant to Decision ICC-01/04-01/06, ICC-01/04-01/06-39-AnxB1. 2 For a comprehensive survey and analysis of the feud between the ICC and the AU, see Manisuli Ssenyonyo, ‘The Rise of the African Union Opposition to the International Criminal Court’s Investigations and Prosecutions of African Leaders’ (2013) 13 International Criminal Law Review 385–428.

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Court.3 African States, such as Chad and Malawi, have indeed followed suit by withholding assistance from the Court. Scholars have censured the Prosecutor’s selection of accused, pointing in particular to the practice of ‘self-referrals’, which would serve as a convenient tool for governments to draw attention to the misdeeds of their adversaries, while keeping out of reach themselves.4 The result has been controversial international criminal justice, developing at a slow pace, with only a small number of accused in the docks.5 This chapter argues that, even if the relations and ensuing co-operation with African States significantly improves, the ICC’s ability to prosecute non-State actors would still be structurally hampered, at least in cases where such actors operate outside the context of an armed conflict. After all, the subject matter jurisdiction of the ICC includes – apart from genocide – war crimes and crimes against humanity, which require either the existence of an armed conflict or a powerful organization with State-like features. Although the authors acknowledge that expanding the Court’s jurisdiction to include a separate crime of terrorism is not a panacea that solves all problems, we move to defend that position for two reasons. First of all, intermittent terrorist attacks on civilians in a context of virtual anarchy breeds similar human suffering and social disruption as analogous attacks in an armed conflict and it would therefore be rather arbitrary to make jurisdiction dependent on the existence of an armed conflict. Second, the impotence of the State to protect its own citizens has always been advanced as one of the strongest justifications for legal intervention by the international community – next to the State’s oppression of its citizens – and the former is precisely the situation that many parts of Africa currently face. In short, we think it is time that terrorism enters the realm of international crimes stricto sensu. This chapter is structured in the following manner: first we discuss terrorism as a war crime. We then investigate the question of where international humanitarian law (IHL) draws the line between erratic outbursts of violence and armed conflict. Next we explore the issue of whether terrorism might be qualified as a crime against humanity. We go on to address why terrorism in peacetime has been excluded from the jurisdiction of the ICC, while also touching upon the vexing task of rendering a satisfactory definition of terrorism. We will then briefly discuss the similarities between terrorism and war crimes/crimes against humanity. Lastly, we conclude with some reflections. 3 In a resolution adopted in July 2009, the AU ASP ‘decided that in view of the fact that the request of the African Union has never been acted upon, the AU Member States shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar El Bashir of The Sudan’. Decision on the Report of the Commission on the Meeting of African States Parties to the Rome Statute of the International Criminal Tribunal (ICC), 3 July 2009, Assembly/AU/Dec.245(XIII) Rev.1, para 10. 4 See William Schabas, ‘ “Complementarity in Practice”: Some Uncomplimentary Thoughts’ (2008) 19 Criminal Law Forum 5, 22. 5 At the time that this chapter was finalized, the ICC had rendered only one judgment in the case against Thomas Lubanga (Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-2842, Judgment pursuant to Article 74 of the Statute, Trial Chamber I, 14 March 2012).

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Terrorism as a war crime6 It is a fallacy to argue that terrorism can only legally be considered as a criminal offence in peacetime. Article 4(d) of the Statute of the ICTR explicitly qualifies ‘acts of terrorism’ as a serious violation of article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims and of Additional Protocol II thereto of 8 June 1977 over which the ICTR has jurisdiction. Given that the ICTR only has jurisdiction over offences committed in a noninternational armed conflict, the Statute qualifies terrorism as a war crime in a non-international armed conflict.7 Whereas terrorism is not explicitly mentioned in the Statute of the ICTY, the Appeals Chamber of the ICTY concluded in Galic´ that terrorization of the civilian population, committed during an armed conflict, has crystallized into a war crime under customary international law.8 The ICTY Appeals Chamber affirmed the ruling of the Trial Chamber that terrorization of the civilian population constituted a serious infringement of a rule of international humanitarian law, to wit Article 51(2) of the First Additional Protocol that prohibits ‘acts or threats of violence the primary purpose of which is to spread terror among the civilian population’.9 The Trial Chamber had already clarified that the relevant provisions in the Additional Protocols purported to extend the protection of civilians from terrorism, as Article 33 of Geneva Convention IV had only a limited scope, protecting a subset of civilians in the hands of the Occupied Power.10 Consequently, Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II address all persons – belligerents, civilians and organized groups alike – and implore them to renounce from acts of terrorism in the territory of the parties to an armed conflict.11 That the violation of these essential rules of international humanitarian law entailed individual criminal responsibility could, in the opinion of the ICTY Appeals Chamber, be inferred from ‘state practice indicating an intention to criminalize the prohibition, including statements by government officials and international organizations, as well as punishment of violations by national courts and military tribunals’.12 After a comprehensive

6 This section partially draws on Harmen van der Wilt, ‘Self-referrals as an indication of the inability of states to cope with non-state actors’, in Carsten Stahn and Mohammed El Zeidy, The Practice of the International Criminal Court, 2014 (forthcoming), Oxford: Oxford University Press. 7 In Article 3(d) of the Statute of the SCSL, acts of terrorism feature as a war crime (in a noninternational armed conflict) as well. 8 Prosecutor v Galic´, IT-98-29-A, Judgment, Appeals Chamber, 30 November 2006, paras 91–98 (‘Galic´ Appeal Judgment’). The Trial Chamber, while recognizing that the ICTY had jurisdiction over terror as a war crime under Article 3 of its Statute, had still left the question of the customary international law nature of the crime of terror in abeyance, Prosecutor v Galic´, IT-98-29-T, Judgment and Opinion, 5 December 2003, para 138 (‘Galic´ Trial Judgment’). 9 Article 13(2) of the Second Additional Protocol reads exactly the same. 10 Galic´ Trial Judgment (n 8), para 120. 11 See also Antonio Cassese, ‘The Multifaceted Criminal Notion of Terrorism in International Law’ (2006) 4(5) Journal of International Criminal Justice 933, 944. 12 Galic´ Appeal Judgment (n 8), para 92.

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scrutiny of these instruments and decisions, the Appeals Chamber concluded that customary international law indeed imposes individual criminal liability for violations of the prohibition of terrorist acts against a civilian population. Article 8 of the Rome Statute does not mention terrorism as a war crime. However, both State officials and non-State actors could be exposed to the ICC’s jurisdiction if they have been involved in ‘intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities’, which is qualified as a war crime both in international armed conflicts (Article 8(2)(b)(i) of the Rome Statute) and in non-international armed conflicts (Article 8(2)(e)(i) of the Rome Statute). The actus reus corresponds with mainstream definitions of terrorism, but the specific intent to ignite fear in or intimidate the civilian population is absent. Another war crime that closely resembles an act of terrorism in peace time is hostage-taking, which requires an intention ‘to compel a State, an international organization, a natural or legal person or a group of persons to act or refrain from acting as an explicit or implicit condition for the safety or the release of such person or persons’.13 Although terrorism does not feature as a separate offence in the Rome Statute, there are equivalent war crimes that materially cover the same unlawful conduct. One could even wonder whether the comprehensive regulation of war crimes which is predicated on the rich normative framework of international humanitarian law does not obviate the need for identifying terrorism as a distinct war crime.14 However, if the ICC’s jurisdiction with respect to the crime of terrorism – and arguably other international criminal tribunals as well – is dependent on the existence of an armed conflict, it is obviously of paramount importance to inquire when the threshold of armed conflict is reached. It is to this question that we will now turn.

Armed conflict as a legal category under IHL and ICL The necessity of defining and delineating the concept of armed conflict emerged when the State Parties negotiating the terms of the Geneva Conventions of 1949 decided to include a ‘codex’ on minimum provisions that the parties to a noninternational armed conflict had to observe in view of the protection of noncombatants. While section 2 of this well-known Common Article 3 expressly stipulated that its application would not affect the legal status of the Parties, some

13 Elements of Crimes – ICC, ICC-ASP/1/3, U.N. Doc. PCNICC/2000/1/Add.2 (2000), Article 8(2)(c)(iii). 14 Compare with Claudia Martin, who quotes approvingly the International Committee of the Red Cross, stating that ‘once the threshold of an armed conflict has been reached, there is little added value in designating acts of violence against civilians or civilian objects as “terrorists”’. Claudia Martin, ‘Terrorism as a crime in international and domestic law: open issues’, in Larissa van den Herik and Nico Schrijver (eds), Counter-Terrorism Strategies in a Fragmented International Legal Order, 2013, Cambridge: Cambridge University Press, p 649.

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States expressed concern, arguing that these proposals would bestow moral legitimacy upon criminal groups and hamper governments in their measures of legitimate repression. It was feared that the arrangement would ‘cover all forms of insurrections, rebellion and the break-up of states and even plain brigandage’.15 In an effort to allay the apprehensions of opponents, a Special Committee of the Diplomatic Conference confirmed that Common Article 3 would not include ‘terrorism’ and incidental riots or insurrections, but would instead only apply ‘to conflicts which, though internal in character, exhibited the features of real war’.16 With regard to the actors, the Special Committee alluded to well-organized insurgents who wield control over (part of) the territory and population and have the power to contend the State’s monopoly of violence. In their attempt to enhance the protection of civilians and other vulnerable categories during hostilities, the international criminal tribunals have considerably widened the scope of the concept ‘armed conflict’. While an exhaustive analysis of this intriguing topic is beyond the ambit of this chapter, we will briefly refer to some decisions that highlight the difference with the prior approach.17 In Tadic´, the ICTY Appeals Chamber entered into uncharted waters and propounded a definition that would serve as an authoritative point of departure for later judgments. According to the Appeals Chamber, an armed conflict exists ‘whenever there is a resort to armed forces between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’.18 In relation to non-international armed conflicts, the definition clarified two aspects. First of all, armed conflicts can occur without any involvement of the official government and can therefore occur between insurgent groups inter se. This extension of the scope of Additional Protocol II, which only applies if the central government is one of the warring parties, reflects the sensitivity of the problem of failed States.19 Second, in order to qualify as an armed conflict, two cumulative conditions must be satisfied: a) the armed forces should display a certain level of organization, and b) the fighting should have a certain degree of intensity. As these criteria are clearly still rather vague, they require further elaboration and interpretation in practice.20

15 Jean S. Pictet (ed.), Commentary IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1958, Geneva: ICRC, p 32. 16 Ibid, p 33. 17 For a comprehensive and seminal discussion of the topic, see Anthony Cullen, The Concept of Non-International Armed Conflict in International Humanitarian Law, 2010, Cambridge: Cambridge University Press (‘Cullen’). For a concise survey, see Dieter Fleck, The Handbook of International Humanitarian Law, 2nd edn, 2010, Oxford: Oxford University Press, Chapter 2. 18 Prosecutor v Tadic´, IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995, para 72. 19 Cullen (n 17) pp 146–148. 20 Compare Prosecutor v Rutaganda, ICTR-96-3, Judgment and Sentence, Trial Chamber I, 6 December 1999, para 93: ‘The definition of an armed conflict per se is termed in the abstract, and whether or not a situation can be described as an “armed conflict”, meeting the criteria of Common Article 3, is to be decided upon on a case-by-case basis.’

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In Limaj, the Trial Chamber had the opportunity to flesh out these standards when determining whether an armed conflict had existed between the Kosovo Liberation Army (KLA) and Serbian armed forces.21 The organizational strength of the KLA was measured in terms of its capacity to wield internal control over its people, to formulate and execute concerted military action and to operate in unity with respect to its external relations.22 The Trial Chamber also shed light on the requirements in the realm of intensity of the conflict, mentioning, among others, the frequency and seriousness of armed clashes, the mobilization of elite military groups and the effects on the civilian population.23 In helpfully summarizing the factors that should be taken into account when assessing the intensity of the hostilities, the Trial Chamber in Boskoski & Tarculovski frequently referred to the Limaj judgment: the number of civilians forced to flee from the combat zones; the types of weapons used, in particular the use of heavy weapons, and other military equipment, such as tanks and other heavy vehicles; the blocking or besieging of towns and the heavy shelling of these towns; the extent of destruction and the number of casualties caused by the shelling or fighting; the quantity of troops and units deployed; existence and change of frontlines between the parties; the occupation of territory, and towns and villages; the deployment of governments forces to the crisis area; closure of roads; cease fire orders and agreements, and the attempts of representatives from international organizations (such as the SC) to broker and enforce cease-fire agreements.24 The requirements with respect to what exactly constitutes an ‘organization’ can be categorized into five factors: i) the presence of a command structure, ii) the capability of the group to carry out operations in an organized manner, iii) the level of logistics, iv) the level of discipline and the ability to implement the basic obligations of Common Article 3, v) the ability to speak with one voice.25 While the level of organization and the intensity of the conflict are both indispensable conditions, the requirements as to the geographical and temporal scope of the conflict have been watered down in recent case law. The application of international humanitarian law does not depend on the actual occurrence of hostilities

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Prosecutor v Limaj et al, IT-03-66-T, Judgment, Trial Chamber II, 30 November 2005. Ibid, paras 46, 125. Ibid, paras 146, 150, 166. Prosecutor v Boskovski & Tarculovski, IT-04-82-T, Judgment, Trial Chamber II, 10 July 2008, para 177. The authors are obliged to Miss Annemarie van Zeeland, LLM, who drew our attention to this case. 25 International Law Association, Final Report on the Meaning of Armed Conflict in International Law, The Hague Conference (2010) 21.

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in a particular place. The regime of IHL would govern acts and relations related to the conflict, whenever the existence of an armed conflict in a wider geographical area had been established, ‘in order for norms of international humanitarian law to apply in relation to a particular location, there need not be actual combat activities in that location. All that is required is a showing that a state of armed conflict existed in the larger territory of which a given locality forms part’.26 As to the temporal aspect, the Inter-American Commission on Human Rights was quite willing to expand the application of international humanitarian law to a short-lived insurrection at the La Tablada military base.27 Although the concept of (non-international) armed conflict has expanded over time, clear-cut requirements as to the level of organization and intensity still prevail. Moreover, there is an obvious correlation between these parameters. Generally, non-State actors can only engage in prolonged armed struggles if they possess sufficient military strength to defy governmental forces or other groups of similar prowess. The concept of armed conflict is thus predicated on a certain equality of arms between adversaries. It follows that no armed conflict exists when the armed rebel group is no match for official power, or conversely, when the victims of its violence are unable to defend themselves, such as in the case of unprotected civilians. These considerations put the relationship between terrorism and armed conflict into proper perspective. Most terrorist groups will not have the capacity to engage in protracted battles against government forces, due to their lack of organizational strength. This was also acknowledged by the Trial Chamber in Tadic´, when it held that ‘In an armed conflict of an internal or mixed character, these closely related criteria are used solely for the purpose, as a minimum, of distinguishing an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law’.28 The situation in the Central African Republic provides a case in point. Referring to the clashes between Muslims and Christians, the Crisis Group has recently observed that ‘the Seleka, a loose coalition of armed groups that took power in a March 2013 coup, has broken up into multiple armed factions, whose thuggery has triggered violent reactions amongst the population’.29 One would be inclined to doubt whether any of these splinter groups would display the organizational features as required under the Limaj/Boskovski case law. The conclusion is clear: if intermittent attacks by militias do not reach the threshold of an armed conflict, either because they do not meet the required level of intensity or because of the group’s poor organization, these attacks would not qualify as war crimes and the ICC would therefore lack jurisdiction.

26 Prosecutor v Kordic´ & Ðerkez, IT-95-14/2-T, Judgment, Trial Chamber, 26 February 2001, para 27. 27 Inter-American Commission of Human Rights, Juan Carlos Abella v Argentina, Case 11.137, 18 November 1997, Report No. 55/97, paras 155, 156. 28 Prosecutor v Tadic´, IT-094-1-T, Opinion and Judgment, Trial Chamber, 7 May 1997, para 562 (emphasis added). 29 African Briefing No. 96, 2 December: Central African Republic: Better Late than Never.

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Terrorism as crime against humanity? An alternative option would be to classify terrorist acts as crimes against humanity. The ICTY Trial Chamber in Blagojevic´ indeed included terrorization of the civilian population under the heading of ‘persecution’ as a crime against humanity, provided it was carried out with discriminatory intent.30 Referring to the judgment in Galic´ and citing the relevant provisions of the Additional Protocols of the Geneva Conventions, the Blagojevic´ Trial Chamber defined the elements of ‘terrorizing the civilian population’ as follows: a) Acts or threats of violence; b) The offender willfully made the civilian population or individual civilians not taking part in hostilities the object of those acts or threats; and c) The acts or threats of violence were carried out with the primary purpose of spreading terror among the civilian population.31 The idea that terrorism could qualify as a crime against humanity has received broader support in legal literature. In the wake of 9/11, several distinguished lawyers and politicians have defended this position, pointing to the magnitude and extreme gravity of the attack.32 However, 9/11 was obviously a singular event of huge scope and impact. Whether terrorism could more generally and inherently be considered a crime against humanity is more controversial.33 A sweeping answer to the issue is impossible; it all depends on the question whether the terrorist assault meets the contextual elements of crimes against humanity. Article 7 of the Rome Statute defines a crime against humanity as an act that is part of a widespread or systematic attack, directed against a civilian population, with knowledge of the attack. Moreover, for the ICC to exercise jurisdiction, the attack must be ‘pursuant to or in furtherance of a State or organizational policy’. The latter requirement is arguably the largest obstacle. The disjunctive phrasing – State or organizational policy – already suggests that perpetrators of crimes against humanity might include private organizations.34 The pertinent question, however, is what level of organizational

30 Prosecutor v Blagojevic´ and Jokic´, IT-02-6-T, Judgment, Trial Chamber I(A), 17 January 2005. 31 Ibid, para 589. 32 Antonio Cassese, ‘Terrorism is Also Disrupting Some Crucial Legal Categories of International Law’ (2001) 12(5) European Journal of International Law 993, 994–995; see also Nico Keijzer, ‘Terrorism as a crime’, in Wybo P Heere (ed.), Terrorism and the Military: International Legal Implications, 2003, Oxford: OUP, pp 126, 127. 33 For a positive answer, see Marcello Di Filippo ‘Terrorist Crimes and International Co-operation: Critical Remarks on the Definition and Inclusion of Terrorism in the Category of International Crimes’ (2008) 19(3) European Journal of International Law 533, 566: ‘I deem it possible to accommodate terrorism in the framework of crimes against humanity, provided that a liberal reading of the nature of possible perpetrators is adopted and a wide interpretation of the magnitude threshold is followed.’ For a far more sceptical view, see William Schabas, ‘Is Terrorism a Crime Against Humanity?’ (2002) 8 International Peace Keeping 255.

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proficiency non-State actors must achieve in order to fall under Article 7. In confirming the charges against Jean-Pierre Bemba Gombo (‘Bemba’), the ICC Pretrial Chamber addressed the concept of ‘policy’, indirectly shedding some light on the nature of ‘organization’: the requirement of a “State or organizational policy” implies that the attack follows a regular pattern. Such a policy may be made by groups or persons who govern a specific territory or by an organization with the capability to commit a widespread or systematic attack against a civilian population. The policy need not be formalized. Indeed, an attack which is planned, directed or organized – as opposed to spontaneous or isolated acts of violence – will satisfy this criterion.35 In the Kenya decision, the ICC Pre-trial Chamber dealt with the issue of the necessary features of organizations that would potentially be covered by Article 7 of the Rome Statute, ending up divided. The bone of contention was whether such organizations should display State-like qualities. The majority of the Pre-trial Chamber in Bemba confirmed the decision that the litmus test for an ‘organization’ in the sense of Article 7 Rome Statute is whether the group ‘has the capability to perform acts which infringe on basic human values’.36 The Pre-trial Chamber specified this finding by identifying a non-exhaustive list of factors: (i) whether the group is under a responsible command, or has an established hierarchy; ii) whether the group possesses, in fact, the means to carry out a widespread or systematic attack against the civilian population; iii) whether the group exercises control over part of the territory of a State; iv) whether the group has criminal activities against the civilian population as a primary purpose; v) whether the group articulates, explicitly or implicitly, an intention to attack a civilian population; vi) whether the group is part of a larger group, which fulfills some or all of the aforementioned criteria.37

34 This was corroborated by the International Law Commission, which has determined that ‘the article (on crimes against humanity, addition HvdW/IB) does not rule out the possibility that private individuals with de facto power or organized in criminal gangs or groups might also commit the kind of systematic or mass violations of human rights covered by the article; in that case, their acts would come under the Draft Code’. Yearbook of the International Law Commission 1991, vol. 2 (Part 2), Document A/CN.4/Ser.A/1991/Add.1 (part 2), 103. 35 Prosecutor v Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Decision Pursuant to Article 61(7), (a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, Pretrial Chamber II, 15 June 2009, para 81. 36 Situation in the Republic of Kenya, ICC-01/09-19-Corr., Decision Pursuant to Article 15 of the Rome Statute on the authorization of an investigation into the situation in the Republic of Kenya, Pretrial Chamber II, 31 March 2010, para 93. 37 Ibid.

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Obviously, this definition suffers from a degree of circular reasoning. Question: Who qualifies as a (potential) perpetrator of crimes against humanity? Answer: Those who have the capacity to commit such crimes. Consequently, the circle of perpetrators is dependent on the interpretation of the category itself – in particular on the question of what constitutes a ‘widespread or systematic attack’. However, it would be rather unfair to dispose of the Kenya decision with such a sophism. After all, the elliptic definition contains a number of useful indicia that serve as guidelines for the identification of organized groups that would have sufficient capacities to attack civilians on a large scale. Moreover, for Judge HansPeter Kaul, the approach of the majority was too liberal. Judge Kaul suggested a more rigorous standard and argued that the organization should exhibit some of the characteristics of a State.38 His opinion has received support in legal literature, which signifies that the discussion on the proper limits of organizations that might engage in crimes against humanity has probably not ended.39 For our discussion, it is important to notice that the organizational requirements for the assessment of crimes against humanity – responsible command, control over part of territory – are strongly reminiscent of the corresponding conditions for belligerent groups in armed conflicts.40 It follows that a non-State group that lacks the organizational proficiency to trigger an ‘armed conflict’ – and that is therefore technically unable to commit war crimes – would equally fail to qualify as a perpetrator of crimes against humanity in ‘peacetime’.41 As such non-State armed groups remain beyond the jurisdictional reach of the ICC, it should be investigated whether there are good reasons to expand the jurisdiction of the ICC to include a separate crime of terrorism.

Terrorism as a separate offence in ‘time of peace’: In search of a definition As we mentioned in the introduction, the ICC does not have jurisdiction over the discrete crime of terrorism. In practice, the Court is structurally hampered to

38 Ibid, Dissenting Opinion of Judge Hans-Peter Kaul, para 51. 39 See, for instance William Schabas, ‘Prosecuting Dr Strangelove, Goldfinger and the Joker at the International Criminal Court: Closing the Loopholes’ (2010) 23(4) Leiden Journal of International Law 847–854; see also Clauss Kress, ‘On the Outer Limits of Crimes Against Humanity: The Concept of Organization within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision’ (2010) 23(4) Leiden Journal of International Law 855–873. 40 Kress (n 39) 826 (who correctly observes that ‘[Kaul’s] definition mirrors that of a party to a noninternational armed conflict, as contained in Article 1(1) of the Second Additional Protocol to the Geneva Conventions, with one (significant) exception that territorial control is not needed’). Remarkably, the requirement of territorial control is indeed absent in Judge Kaul’s definition, while it features as one of the indicia in the circumscription of the Majority. 41 Even those who favour a broad interpretation of crimes against humanity candidly admit this. See Di Filippo (n 33) 568: ‘it must be conceded that a certain tension arises between the traditional conception of crimes against humanity and the emerging notion of core terrorism as far as the issue of possible perpetrators is concerned.’

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prosecute non-State actors when they operate outside the context of an armed conflict. How the exclusion of terrorism from the Rome Statute came to be the case is neatly set out by Van der Vyver, who notes that terrorism was deliberately omitted from the subject matter jurisdiction of the ICC, partly because the United States approached the very first sessions of the Ad Hoc Committee on a Permanent International Criminal Court with the express mission of excluding the crime of terrorism from the proposed subject matter jurisdiction.42 The main reason for the United States’ request was its concern that the inclusion of the terrorism as a crime could undermine its own extensive investigative efforts undertaken in its national prosecutions of international terrorists.43 However, during the Rome Conference, several States that were later to become party to the ICC (Spain, Algeria, India, Sri Lanka, Barbados, Dominica, Jamaica, Trinidad and Tobago, and Turkey) submitted proposals to give the ICC jurisdiction over the crime of terrorism. However, because the proponents for the inclusion of terrorism were unable to garner sufficient support from other delegates,44 and due to widespread disagreement about the exact definition and required elements of the crime, terrorism was left out of the Rome Statute. This is illustrative of a long-standing state of affairs in the global sphere: it can hardly be kept a secret that for decades, the international community has been extremely divided in its quest for a broadly acceptable definition of terrorism in international law and upon the ambit of application of a Convention based on a shared definition.45 This comes as no surprise, since on the domestic level there is also a broad range of slightly different legal definitions of terrorism.46 Regional organizations such as the European Union and the Organization of American States do not address the issue in exactly the same terms, and there is no lack of divergent documents on terrorism in the international legal sphere either.47 This makes sense. The opinion on ‘punishable’ behaviour is largely dependent on the position a State has in the web of international relations. Elements of international power conflicts and political issues are closely intertwined with the idea of terrorism. Diversity is inherent to the international legal system and fragmentation between countries regarding what is illegitimate behaviour is unavoidable. It is nonetheless paramount, especially with regard to the debate on a universal

42 Johan D. van der Vyver, ‘Prosecuting Terrorism in International Tribunals’ (2010) 24(2) Emory International Law Review 527, 533–535. 43 United States Comments to Ad Hoc Committee Report, U.N. GAOR, 50th Sess., 27–29, U.N. Doc. A/AC.244/1/Add.2 (1995). 44 Van der Vyver (n 42) 539. 45 Mahmoud Hmoud, ‘Negotiating the Draft Comprehensive Convention on International Terrorism’ (2006) 4 Journal of International Criminal Justice 1031. 46 Alexandra V Orlova and James W. Moore, “‘Umbrellas” or “Building Blocks”?: Defining International Terrorism and Transnational Organized Crime in International Law’ (2005) 27 Houston Journal of International Law 287–290. 47 Inter alia the sectoral international treaties, which can be consulted at http://untreaty.un.org/ English/Terrorism.asp.

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definition on terrorism, to agree on a common denominator. Because terrorism is predominantly an international phenomenon, consensus is essential to counter this transnational crime adequately. Notwithstanding the dissidence on the operational definition, the phenomenon of terrorism undeniably exists. Within academic discourse, however, there are contrasting perspectives on whether a general definition exists in international law at all.48 Terrorism remains a diffuse concept, especially since the conduct generally falls between what could be considered as political expression on one end of the spectrum and as criminal conduct on the other. It is, however, one of the more serious contemporary challenges currently facing the international community of States. The international community has thus far attempted to respond to the terrorist threat by devising a patchwork of (sectoral and regional) treaties,49 a so-called piecemeal approach. The global normative framework surrounding terrorism is therefore rather fragmented and suffers from a lack of coherence. Some academics attribute the failure of States to agree upon an adequate terrorism definition to the constantly evolving nature, diversity and ability to take many forms of the phenomenon itself, which makes it doubtful that a checklist definition will completely and effectively capture terrorism’s essential components forever.50 However, this is a fundamental problem inherent to all issues of law demarcation and is by far not limited to terrorism. However, to a certain extent, terrorism can indeed be considered as an international crime, and a myriad of legal academics emphasize the growing need to define the phenomenon. Drawing the matter of terrorism into the realm of international criminal law is arguably the best way to do so, especially because the law of self-defence as enshrined in Article 51 of the Charter of the United Nations cannot be invoked vis-à-vis non-State actors. Even though such a conclusion is inevitable when one sees the normative order of the world only or mostly in terms of the rights and duties of the States, the price for an overly strict conservative doctrinarism on such matters is the incapacity of international law to address appropriately some of the most pressing developments in the world, such as terrorism.51 This need becomes even more pressing given the fact that acts of 48 With regard to the mentioned ‘numerous’ international (sectoral) treaties that deal with and prohibit terrorism in particular circumstances, de Londras notes that ‘The conclusion and ratification of these treaties reflect the fact that the difficulty in international law is not with the principle that terrorism ought to be prohibited as a matter of law, but rather with the task of coming to an agreement on what terrorism is as a general matter. Thus, while we have prohibited terrorism in discrete circumstances and of particular types as a matter of positive law, we have not managed to formulate a treaty-based crime of terrorism per se.’ Fiona de Londras, ‘Terrorism as an international crime’, in William A. Schabas and Nadia Bernaz (eds), Routledge Handbook on International Criminal Law, 2010, London: Routledge, p 169. 49 Inter alia the sectoral international treaties, which can be consulted at http://untreaty.un.org/ English/Terrorism.asp. 50 Orlova (n 46) 284. 51 Lauri Mälksoo, ‘Contemporary Russian perspectives on non-state actors: fear of the loss of state sovereignty’, in Jean d’Aspremont, (ed.), Participants in the International Legal System, 2nd edn, 2013, London: Routledge, p 136.

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terrorism occurring outside armed conflicts are, as demonstrated here, nearly impossible to counter adequately. As long as the terrorist activity bears no relation to a situation of war, the perpetrators of the act cannot be brought to justice through existing institutions of international criminal law. Nevertheless, international criminal jurisdiction over acts of terrorism falling just short of the threshold for a situation of armed conflict currently does not exist, since a fundamental condition to adorn the ICC eventually with jurisdiction over terrorism is first and foremost reaching international consensus over the exact definition of terrorist crimes, which has, as said, proven to be a highly demanding task. Most of the initially well-intentioned international negotiations tend to reach stalemate on a handful of clashing suppositions: first, whether there exists such a thing as acts of terrorism committed by the State; second, whether the global community should make an exception for legitimate ‘freedom fighters’;52 and thirdly, what the relationship should be between the envisioned legally binding instrument of international criminal law (such as a tribunal of international criminal law) and the already existing sectoral treaties dealing with terrorism. As long as States do not reach a minimal consensus on this, no universal treaty rules laying down a comprehensive definition can evolve either. Additionally, academics also disagree over the exact elements of the crime, such as whether a transnational dimension is required in order for acts to qualify as international terrorism.53 Nevertheless, even though it is indisputable that a part of terrorist conduct transcends national borders, when one directs one’s attention to the current poignant developments in the Central African Republic, it is apparent that doing away with

52 Most Islamic States feel compelled to argue that ‘freedom fighters’, when availing themselves of traditional ‘terrorist’ activity, can indeed be excused from the condemnation of terrorism. Curiously enough, however, the UN General Assembly in its 1994 Resolution repeated its ‘unequivocal condemnation of all acts, methods and practices of terrorism’ and this declaration did not feature, for the very first time, any reference to peoples’ ‘legitimate struggle for freedom and independence’. G.A. Res. 49/60, 49th Sess., Article 1(3), U.N. Doc.A/RES/49/60 (1994). Likewise, the 2004 Security Council Resolution 1566, which calls upon all States to combat terrorism regardless of its cause or motivation, reiterates the broad definition from the 2002 United Nations Convention for the Suppression of the Financing of Terrorism and makes no exception for ‘freedom fighters’ of any kind. Of the Security Council resolutions calling for action against terrorism, this one is the most fierce, and includes three cumulative conditions. UN S.C. Res. 1566, U.N. Doc. S/RES/1566 (2004), first paragraphs. 53 According to Di Filippo, it is not. He claims that a particularly serious violation of human rights, such as happens when innocent civilians are harmed due to acts of terrorism, is of common concern for the international community of States, similar to the present international approach to perceived crimes against humanity. It is immaterial whether such heinous crimes are committed within the confines of a single State or not. This strikes us however as a possibly highly controversial approach. Di Filippo (n 33) 545. Cassese argues that the transnational nature is a necessary component of acts of international terrorism, and refers to Article 3 of the Convention for the Suppression of the Financing of Terrorism (‘This Convention shall not apply where the offence is committed within a single State, the alleged offender is a national of that State and is present in the territory of that State and no other State has a basis . . . to exercise jurisdiction’). Cassese (n 11) 938.

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the transnational requirement is the only means of holding the perpetrators accountable. The impotence of a State to protect its own citizens has always been advanced as one of the strongest justifications for legal intervention by the international community – next to the State’s oppression of its citizens – and the former is precisely the situation that large parts of Africa are struggling to overcome. This issue is further complicated by the often promulgated, parallel belief that another distinctive feature of terrorism should lie in the presence of an organization actually carrying out acts of serious violence. This is because where people perceive the presence of a group behind acts of violence and the probability of the repetition of similar acts, the spread of terror is more evident than it would otherwise be when it is an act carried out by an isolated agent.54 However, this supposedly mandatory element of the crime reflects again the threshold needed for a war crime to qualify as actually occurring during a situation of armed conflict, to wit, a certain degree of intensity and a basic degree of organization, respectively. When taking the contemporary situation in the Central African Republic into account once again, a strong degree of organization between the insurgent individual groups would be difficult to prove, which again implies that the perpetrators of these serious acts of violence enjoy impunity. Returning to possible future consensus on a definition of international terrorism, Di Filippo offers a quite interesting approach. He attempts to counter the perceived incoherent treatment by the international community regarding the definition of the criminal notion of terrorism and the abuse of the term ‘terrorism’ in the course of the debate.55 To this end, Di Filippo puts forward a proposed definition that does not recognize the perpetrator’s motivations as materially relevant, but instead regards the value infringed upon as overwhelmingly important. This approach allows him to minimize the relevance of some historically heavily propagated arguments such as the existence and inclusion of State terrorism and the treatment of freedom fighters.56 To this end, the propagated definition consists not of an allencompassing description of possible terrorist offences, but rather of a core notion: the ‘lowest common denominator approach’. Regarding the exact substance of this ‘core’ definition, Di Filippo emphasizes the harm done to innocent civilians as the fundamental essence of terrorist acts and accordingly the most pressing reason to criminalize such behaviour. Also, since in criminal law a certain precision is required, due to the principle of nullum crimen sine lege and the strict constitution of penal statutes, the search for a unitary or all-encompassing notion of terrorism in criminal law terms risks being incomplete or too advanced because of different underlying policy choices: Higgins and Baxter, for example, came to the conclusion that in general international law, terrorism as such has no specific legal meaning.57 A less ambitious

54 55 56 57

Di Filippo (n 33) 545. Ibid, p 533. Ibid. Richard R. Baxter, ‘A Skeptical Look at the Concept of Terrorism’ (1974) 7 Akron Law Review 380; Rosalyn Higgins, ‘The general international law of terrorism’, in Rosalyn Higgins and Maurice Flory (eds), Terrorism and International Law, 1997, London: Routledge, pp 13, 27–28.

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approach could therefore be even more useful, with a core definition that still leaves open the possibility of adding more elaborate notions by (restricted groups of) States for the benefit of their own regional or domestic prosecutorial mechanisms. It is interesting to note that the fundamental notion of Di Filippo’s approach hardly shares any characteristics with the only stronghold currently existing with regard to the actual existence of terrorism as a discrete international crime, namely the landmark decision by the STL – with Antonio Cassese as its intellectual father. Echoing the arguments of its presiding judge, Cassese, the STL Appeals Chamber held, in a 2011 interlocutory decision,58 that terrorism had indeed crystallized to form a distinct international crime under rules of customary international law.59 In this ruling, the STL ventured into unmarked territory, diving straight into the exact definition of terrorism as a discrete crime. Article 2 of the Statute of the STL provides an authoritative definition of terrorist acts in peace time under customary international law. However, Article 2 utilizes domestic Lebanese law as a basis for this definition, and alludes exclusively to relevant provisions of the Lebanese Criminal Code (more specifically, Article 314 of the Code), instead of the applicable international law. The three constitutive elements of the crime of terrorism as provided for in Article 314 of the Lebanese Criminal Code are (i) an act, whether constituting an offence under other provisions of the [Lebanese] Criminal Code or not; which is (ii) intended to ‘cause a state of terror’; and (iii) the use of a means ‘liable to create a public danger’.60 Because the STL Statute does not establish an elaborate definition of terrorism, its judges were left with the task of deciding exactly that. However, the STL Appeals Chamber stated that both international conventions and customary law would guide the Tribunal’s interpretation of the domestic Lebanese criminal law,61 astonishingly implying that a definition of terrorism has indeed emerged under customary international law. In its own words, it elaborates this decision as follows: . . . a number of treaties, UN resolutions, and the legislative and judicial practice of States evince the formation of a general opinio juris in the international community, accompanied by a practice consistent with such opinio, to the

58 UN STL, STL-11-01/I, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Appeals Chamber, 16 February 2011. 59 Manuel J. Ventura, ‘Terrorism According to the Special Tribunal for Lebanon’s Interlocutory Decision on the Applicable Law: A Defining Moment or a Moment of Defining?’ (2011) 9(5) Journal of International Criminal Justice 1021, 1022. 60 STL Appeals Chamber Decision (n 58), para 49. Lebanese case law shows a narrow interpretation of this third element: the means employed must be similar to those included in Article 314 of the Lebanese Criminal Code. 61 Ibid, para 45. ‘It is not a question of untethering the Tribunal’s law from Lebanese provisions. It is rather that as domestic law those Lebanese provisions may be construed in the light of and on the basis of relevant international rules. Thus when applying the law of terrorism, the Tribunal may “take into account relevant applicable law”, but only as an aid to interpreting relevant provisions of the Lebanese Criminal Code.’

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The Appeals Chamber thus glossed over all the global bones of contention relating to definitional issues of terrorism and proposed, by pointing to the Nicaragua case,63 that discrepancies are not fatal to formation of customary rules because general practice consistent with the relevant custom is quite sufficient. Most interestingly, the essence of its conclusion was the removal of the political motive requirement, which it viewed as a ‘discrepancy covered by the Nicaragua principle’.64 Based on this, one could indeed make a case for the existence of a customary international legal rule on the prohibition of the crime of terrorism. However, several legal scholars argue that the STL definition is problematic because it is both under- and over-inclusive.65 Also, no emphasis is placed on what intuitively strikes one as the most horrendous element of terrorist behaviour: the direct harm done to innocent and defenceless civilians.

Terrorism within the taxonomy of international crimes Defining terrorism is thus surrounded by complicated circumstances. When one regards the position of terrorism within the taxonomy of international crimes, a cynosure of the discussion on whether terrorism should be designated as an international crime is the prevalent nature of the traditional ‘international crimes’. Subsequently, the actual legal consequences of such an ‘international crime’ qualification are particularly relevant. Nagle predicates that international ‘core’ crimes are ‘broadly defined as encompassing criminal acts that threaten the international

62 Ibid, paras 83, 85, 86. Some national courts have also recognized that there exists a crime of terrorism under customary international law, including the Supreme Court of Canada in Suresh v Canada (Suresh v Canada (Minister of Citizenship and Immigration), 2002 1 S.C.R. 3, Judgment (11 January 2002), paras 96, 98). This is a flagrant turn away from the earlier jurisprudence of Tel Oren v Libyan Arab Republic, where a U.S. Federal Court of Appeal denied in 1984 the existence of a customary rule. Tel-Oren v Libyan Arab Republic, 726 F.2d 774, 806–807 (D.C. Cir. 1984). 63 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) 1986 I.C.J. 14, paras 183–186 (June 27). Paras 98, 186: ‘The Court does not consider that, for a rule to be established as customary, the correlative practice must be in absolutely rigorous conformity with the rule.’ 64 STL Appeals Chamber (n 58), para 100. 65 Matthew Gillett and Matthias Schuster, ‘Fast-track Justice: The Special Tribunal for Lebanon Defines Terrorism’ (2011) 9(5) Journal of International Criminal Justice 989–1020.

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community as a whole or acts that threaten its most fundamental values’.66 As demonstrated in this chapter, a significant parallel between the legal elements and intricacies of crimes against humanity, war crimes and terrorism respectively is undeniable. We are gradually witnessing an erosion of the legal distinction between ‘standard’ transnational crimes and the traditional international core crimes, which paves the way gradually to begin considering the inclusion of terrorism with already codified core crimes. The essential question concerning at which point terrorism deviates from the traditional core crimes is, therefore, difficult to answer. Compared with the international community’s stance on crimes against humanity and genocide, the consensus on what exactly constitutes a terrorist offence is less extensive. However, even with regard to the abhorrent nature of crimes against humanity and genocide, international positions are divided. Notwithstanding, a proper definition of terrorism per se in the criminal law framework is not merely a semantic, symbolic or superfluous exercise. First, the perception that everyone already agrees upon these ‘core cases’ cannot withstand careful scrutiny. In addition, the alarming label ‘terrorist’ adds an extra incentive to afford substantial attention to such violent conduct. The task of solicitously defining the offence is critical, both from the standpoint of the legal regulation of the phenomena and of lawful responses to them, since without this, ambiguities and consequently shortcomings are created that allow terrorists to slip through cracks in the law, as is currently the case in large parts of Africa. A downside of prosecuting terrorists domestically through the existing sectoral treaties is their fragmented nature and their general, vague terms, which only add to uncertainty regarding the confines of criminal behaviour. Especially in international criminal law, with its underlying principle of nullum crimen sine lege, clarity and certainty about prohibited conduct is essential. The current prevarication leads to legal grey areas that both the terrorists and the victim States can exploit. An example would be the enforcement mechanism in counterterrorism treaties, which consists of the duty of States either to prosecute or to extradite international terrorists – but there is no consensus on whether this aut dedere, aut iudicare maxim is an actual norm under customary international law.67

66 This is on the grounds that ‘the values and interests transcend individual goals, national borders, and sovereignty limitations because they are common to and affect all nations equally. Even if international crimes only occur in a few nations, their immediate and direct effect endangers the well being of the world as a whole and threatens the international peace and security of mankind. In such events, the international community, through the authority of the United Nations Security Council, acquires a legitimate right to intrude in the sacrosanct sovereignty of a nation and may take punitive measures, such as . . . establishing an ad hoc tribunal, or authorizing a national or international force to arrest an indicted suspect’. Luz E Nagle, ‘Terrorism and Universal Jurisdiction: Opening a Pandora’s Box?’ (2011) 27(2) Georgia State University Law Review 339, 341. 67 ‘Aut dedere, aut iudicare’ (the duty to ‘either extradite or prosecute’ in international law) is primarily inspired by the aim of preventing trials in absentia. Harmen van der Wilt, ‘Universal Jurisdiction Under Attack, An Assessment of African Misgivings towards International Criminal Justice as Administered by Western States’ (2009) 9(5) Journal of International Criminal Justice 1043, 1050.

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Be that as it may, fundamentally, a prohibition on terrorist activity in international law already exists, and because international law places the obligation on all States to adhere to and enforce rules of international law, it automatically follows that States cannot sit back impassively, but must act in accordance with their legal duty. A generally accepted definition painting terrorists as criminals is the most effective way to enforce these obligations. In the current state of affairs, the obfuscation around a clear definition of terrorism precludes any legal institution from taking effective measures to combat it, which in turn leads to a complete inability of the international community to punish perpetrators and prevent terrorist attacks,68 whereas the creation of a comprehensive international terrorist regime, including judicial institutions, can only assist in the fight against terrorism and cannot be said to be either harmful or an impediment to said cause.69 The current lack of an accurate and effective agreed-upon definition of terrorism in international law merely provides an excuse for States to ignore their international legal obligations.70 Regardless of the general will of States to bring terrorists to justice, due to the lack of an international consensus on how exactly to do this, efforts to reach this objective are currently not very useful.71

Terrorism within the spectrum of international crimes: Some final reflections The impetus to include terrorism as a separate crime under the jurisdiction of the ICC has a dual source. For one thing, the STL has propounded an authoritative definition of terrorism in peace time under customary international law. Second, most terrorist attacks can probably not be qualified as meeting the necessary threshold for an armed conflict, either because they lack the required intensity, or because the perpetrators do not meet the level of organization that the law of war attaches to belligerents.72 For this very reason, most acts of terrorism could not be assimilated to crimes against humanity either. As terrorism engenders similar levels of pain and suffering among the (civilian) population, there are good reasons for plugging this jurisdictional loophole.

68 Michael Lawless, ‘Terrorism: An International Crime?’ (2008) 9 Canadian Military Journal 139, 155 (www.journal.forces.gc.ca/vo9/no2/05-lawless-eng.asp), accessed 7 May 2013. 69 Ibid, 149. 70 Ibid, 155: ‘The lack of an accepted common definition of terrorism that could become the basis to create a comprehensive international legal regime to combat terrorism is more an excuse than a legitimate impediment.’ 71 Ibid, 142. 72 In this context it is interesting to refer to the reservation of the United Kingdom to Article 1(4) and Article 96(3) of Additional Protocol I: ‘It is the understanding of the United Kingdom that the term “armed conflict” of itself and in its context denotes a situation of a kind which is not constituted by the commission of ordinary crimes including acts of terrorism whether concerted or in isolation.’

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The similarities between terrorism and war crimes have frequently been observed.73 The analogy may serve as a useful point of departure for the demarcation of terrorism as a separate crime under the jurisdiction of the ICC de lege ferenda. The gist of war crimes is that violence is employed against vulnerable people who are hors de combat or that cruel and barbaric means are applied during combat. In the case of terrorism, these prohibited methods and means of warfare and the targeting of non-combatants combine, as terrorism implies by definition, the attack on civilians with the intent to create widespread fear. The dolus specialis – intimidation or terrorization of the general public – is sometimes considered to be problematic from a criminal law perspective, in view of its emphasis on subjective intentions.74 But if we accept that this specific intent can be deduced in retrospect from the objective situation, rather than that it should serve as a tool to widen the net of criminal law repression by prematurely imputing bad intentions to would-be terrorists, these objections can be partially obviated.75 According to the STL, political motive is not a necessary element of terrorism under customary international law. Slightly inconsistent with this view, the STL still acknowledged that the purpose of terrorist acts could either be spreading terror among the population or compelling a government or an international organization to perform or abstain from performing an act. After all, while blackmailing a government with the threat of a terrorist attack for purely financial gains is certainly feasible, pressure on public officials is mainly exercised with the goal of forcing them to change their policy. We would be in favour of removing the second prong of the terrorist’s presumed objective – compelling a government to perform or abstain from performing an act – from the definition of terrorism as a separate crime under the jurisdiction of the ICC. In our opinion, the protection of civilians and other vulnerable groups from heinous crimes is the main object and purpose of the ICC, in light of the Preamble to the Rome Statute. Moreover, such a narrow definition of terrorism would immunize the ICC from taking sides in internal political strife. The fact that the Statute’s definition would deviate from the definition under customary international law would not create any

73 One of the pioneers is Eric David, ‘Le terrorisme en droit international (definition, incrimination, repression)’ in Pierre Mertens, (ed.), Réflexions sur la definition et la repression du terrorisme, 1974, Collection Bruxelles 1973, ed. De l’Université de Bruxelles Brussels, p 125. See also Marco Sassòli, ‘Terrorism and War’ (2006) 4(5) Journal of International Criminal Justice 959, 979 (Sassòli correctly points out that the strict separation between the ius ad bellum and the ius in bello serves as an adequate rebuttal of those who always advance the just cause of ‘freedom fighters’ as an alibi to engage in terrorism). 74 See in particular George Fletcher, ‘The Indefinable Concept of Terrorism’ (2006) 4(5) Journal of International Criminal Justice 894, 902–903. 75 In a similar vein, Di Filippo (n 33) 544: ‘The intention of spreading terror should mainly be inferred from the material features of the conduct: experience shows that, when civilians are hit in the normal course of their everyday affairs in an indiscriminate and possibly massive way, we can speak of terrorist activities, due to the fact that individuals feel insecure about their lives and basic rights.’

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impediments whatsoever, as Article 10 of the Rome Statute explicitly allows the ICC to stray from international law.76 A similar line of reasoning could be followed in the assessment of the question of whether terrorist acts must have a transnational element in order to qualify as an international crime under the jurisdiction of the ICC. As indicated earlier, the STL Appeals Chamber considered the transnational nature of a terrorist act to be a prerequisite for it to enter the realm of customary international law. However, the analogy with war crimes committed in the context of a non-international armed conflict militates against such a restriction. It would make no sense to acknowledge the suffering of civilians resulting from war crimes during a civil war and the concomitant interest of the international community in their repression, while denying such commitment in the case of ‘domestic terrorism’.77 Perhaps the most difficult issue is whether and, if so, to what extent the ICC should only have jurisdiction over terrorist acts if they are committed by an organization. Di Filippo defends this position, holding that ‘where people perceive the presence of a group behind acts of violence and the probability of the repetition of similar acts, the spread of terror is more evident, if compared with the action of an isolated agent’.78 While this reasoning has some merit in view of the psychology of terrorism, its factual correctness cannot be ascertained easily. A stronger argument in favour of some organizational requirement would in our view be that national jurisdictions would generally encounter more difficulty in repressing terrorist organizations by means of criminal law than single perpetrators. Obviously, we would defeat our previous position that terrorism cannot be equated with crimes against humanity, if we were to attach exaggerated requirements to the level of organization. An adequate standard might be the definition of ‘organized criminal group’ in the United Nations Convention against Transnational Crime.79 The presentation of the ICC as a default option in case of failing national jurisdictions comports with our general perception that terrorism bears a strong resemblance to the classic ‘core crimes’, not only in a phenomenological sense but also from a criminal law enforcement point of view. It is too easily assumed that national States are usually both willing and able to prosecute and try the suspects of terrorism. In our view, such an opinion has to be qualified and nuanced.

76 Article 10 Rome Statute provides that ‘nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for other purposes than this Statute’. 77 For a similar point of view, see Di Filippo (n 33) 548: ‘Moreover, the emphasis put on the safeguarding of individuals’ essential rights indicates that the adherence of the international community to this notion is not subject to aspects such as the transnational nature of the conduct.: a particularly serious violation of human rights is of common concern for the international community even though it occurs in a context which is “purely” internal to a single state.’ 78 Di Filippo (n 33) 545. 79 United Nations Convention against Transnational Crime, U.N. GOAR, 55th Sess., U.N. Doc.A/ Res/55/25 (2001). Article 2(a) of that Convention defines an ‘organized criminal group’ as a ‘structured group of three or more persons. Existing for a period of time and acting with the aim of committing one or more serious crimes or offences established in accordance with this Convention’.

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Bibliography Baxter, Richard R, ‘A Skeptical Look at the Concept of Terrorism’ (1974) 7 Akron Law Review 380. Cassesse, Antonio, ‘Terrorism is Also Disrupting Some Crucial Legal Categories of International Law’ (2001) 12(5) European Journal of International Law 993. Cassesse, Antonio, ‘The Multifaceted Criminal Notion of Terrorism in International Law’ (2006) 4(5) Journal of International Criminal Justice 933. Cullen, Anthony, The Concept of Non-International Armed Conflict in International Humanitarian Law, 2010, Cambridge: Cambridge University Press. David, Eric, ‘Le terrorisme en droit international [definition, incrimination, repression]’, in Mertens, Pierre (ed.), Réflexions sur la definition et la repression du terrorisme, 1974, Collection Bruxelles 1973, ed. de l’Université de Bruxelles, Brussels, p 125. De Londras, Fiona, ‘Terrorism as an international crime’, in Schabas, William A and Bernaz, Nadia (eds), Routledge Handbook on International Criminal Law, 2010, London: Routledge, p 169. Di Filippo, Marcello, ‘Terrorist Crimes and International Co-operation: Critical Remarks on the Definition and Inclusion of Terrorism in the Category of International Crimes’ (2008) 19(3) European Journal of International Law 533. Fleck, Dieter, The Handbook of International Humanitarian Law, 2nd edn, 2010, Oxford: Oxford University Press. Fletcher, George, ‘The Indefinable Concept of Terrorism’ (2006) 4 Journal of International Criminal Justice 894. Gillet, Matthew and Schuster, Matthias, ‘Fast-track Justice: The Special Tribunal for Lebanon Defines Terrorism’ (2011) 9(5) Journal of International Criminal Justice 989. Higgins, Rosalyn, ‘The general international law of terrorism’, in Higgins, Rosalyn and Flory, Maurice (eds), Terrorism and International Law, 1997, London: Routledge, p 13. Hmoud, Mahmoud, ‘Negotiating the Draft Comprehensive Convention on International Terrorism’ (2006) 4 Journal of International Criminal Justice 1031. Keijzer, Nico, ‘Terrorism as a crime’, in Heere, Wybo P (ed.), Terrorism and the Military: International Legal Implications, 2003, Oxford: Oxford University Press, p 126. Kress, Clauss, ‘On the Outer Limits of Crimes against Humanity: The Concept of Organization within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision’ (2010) 23(4) Leiden Journal of International Law 855. Lawless, Michael, ‘Terrorism: An International Crime?’ (2008) 9 Canadian Military Journal 139. Mälksoo, Lauri, ‘Contemporary Russian perspectives on non-state actors: fear of the loss of state sovereignty’, in d’Aspremont, Jean (ed.), Participants in the International Legal System, 2nd edn, 2013, London: Routledge, p 136. Martin, Claudia, ‘Terrorism as a crime in international and domestic law: open issues’, in van den Herik, Larissa and Schrijver, Nico (eds), Counter-Terrorism Strategies in a Fragmented International Legal Order, 2013, Cambridge: Cambridge University Press, p 649. Moore, James W and Orlova Alexandra V, “‘Umbrellas” or “Building Blocks”?: Defining International Terrorism and Transnational Organized Crime in International Law’ (2005) 27 Houston Journal of International Law 267. Nagle, Luz E, ‘Terrorism and Universal Jurisdiction: Opening a Pandora’s Box?’ (2011) 27(2) Georgia State University Law Review 339. Pictet, Jean S (ed.), Commentary IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1958, Geneva: ICRC, p 32.

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Sassòli, Marco, ‘Terrorism and War’ (2006) 4(5) Journal of International Criminal Justice 959. Schabas, William A, ‘Is Terrorism a Crime Against Humanity?’ (2002) 8 International Peace Keeping 255. Schabas, William A, “‘Complementarity in Practice”: Some Uncomplimentary Thoughts’ (2008) 19 Criminal Law Forum 5. Schabas, William A, ‘Prosecuting Dr Strangelove, Goldfinger and the Joker at the International Criminal Court: Closing the Loopholes’ (2010) 23(4) Leiden Journal of International Law 847. Ssenyonyo, Manisuli, ‘The Rise of the African Union Opposition to the International Criminal Court’s Investigations and Prosecutions of African Leaders’ (2013) 13 International Criminal Law Review 385. Van der Vyver, Johan D, ‘Prosecuting Terrorism in International Tribunals’ (2010) 24 Emory International Law Review 527. Van der Wilt, Harmen, ‘Universal Jurisdiction Under Attack, An Assessment of African Misgivings towards International Criminal Justice as Administered by Western States’ (2009) 9(5) Journal of International Criminal Justice 1043. Van der Wilt, Harmen, ‘Self-referrals as an indication of the inability of states to cope with non-state actors’, in Stahn, Carsten and El Zeidy, Mohammed, The Practice of the International Criminal Court, 2014 (forthcoming), Oxford: Oxford University Press. Ventura, Manuel J, ‘Terrorism According to the Special Tribunal for Lebanon’s Interlocutory Decision on the Applicable Law: A Defining Moment or a Moment of Defining?’ (2011) 9(5) Journal of International Criminal Justice 1021.

2

Command responsibility, joint commission and ‘control over the crime’ approach in the first ICC jurisprudence Chantal Meloni

Introduction The challenge of bringing to justice high-level individuals responsible for the commission of international crimes has been only partially accomplished over the last two decades. Whereas, on the one hand, it is now possible to bring high-profile perpetrators, such as State leaders like Hissène Habré, Slobodan Milosevic, Jean Kambanda, Charles Taylor and Omar Al Bashir, before international courts and tribunals (something unthinkable before the Pinochet case), on the other hand, it is notoriously difficult to assess the criminal responsibility of such high-level perpetrators.1 More generally, it is hazardous to frame the individual responsibility for macrooffences as war crimes, crimes against humanity or genocide pursuant to the modes of participation typically known in domestic criminal law. The problematic attribution of individual criminal liability for ‘joint commission’ of such crimes – in other words, by a number of people acting at different levels pursuant to a common plan – has been regulated by various courts and tribunals via different legal doctrines which also involved forms of collective responsibility, broad accomplice liability and variations of command responsibility bordering strict liability.2 The tendency we observed in the last years, both at the ad hoc tribunals and now at the ICC (at least on the side of the Prosecutor),3 is to overstretch the notion

1 This chapter is partly based on previous works where I already had the opportunity to elaborate on these concepts; in particular see Chantal Meloni, Command Responsibility in International Criminal Law, 2010, T.M.C. Asser; Stefano Manacorda and Chantal Meloni, ‘Indirect Perpetration Versus Joint Criminal Enterprise: Concurring Approaches in the Practice of International Criminal Law?’ (2011) 9(1) Journal of International Criminal Justice 159 (‘Manacorda and Meloni’); see also Chantal Meloni, ‘Fragmentation of the notion of co-perpetration in international criminal law?’, in Larissa van den Herik and Carsten Stahn (eds), The Diversification and Fragmentation of International Criminal Law, 2012, Martinus Nijhoff. 2 Such practice, however, was in contrast with the principle of individual and culpable responsibility that has been recognized in international criminal law since Nuremberg; for a brief excursus may I refer you to Meloni 2010 (n 1) 23 et seq. 3 This tendency is to be seen, for instance, in the Katanga and Ngudjolo case, where both defendants were charged as principals, and, more precisely, as indirect co-perpetrators, under Article 25(3)(a)

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of ‘commission of the crime’ (and thus principal liability), so as to include forms of participation in the common plan that would be more properly framed as accessorial (and thus secondary) liability under domestic criminal law. The case law of the ICTY has developed the JCE, which, thanks to its ‘mutual attribution’ mechanism, was extensively used to charge as perpetrators individuals who did not perform the actus reus of the crime. JCE however, was immediately rejected by ICC judges.4 Instead, the ICC judges adopted a sophisticated form of co-perpetration, which is based on the notion of ‘control over the crime’. Such a legal theory, heavily influenced by the German ‘Dogmatik’, was welcomed at the time of the very first ICC decisions, but is currently experiencing criticism and resistance even from within the Court itself, especially with regard to the combined form of ‘indirect co-perpetration’.5 Parallel to that, we can note that the mode of liability of command or superior responsibility – which was considered a very helpful tool before the ad hoc tribunals during their first years of activity, to convict superiors for the crimes of their subordinates – seems to have lost its charm and has so far been scarcely applied before the ICC. Notably, command responsibility is also based on the concept of control: more precisely the possession of ‘effective control’ over subordinates is what triggers the responsibility of the commanders for not having prevented or repressed the crimes committed by subordinates. In this framework, the next paragraphs will deal with the first applications before the ICC of both the mode of liability of (indirect) co-perpetration under Article 25(3)(a) of the ICC Statute (‘Statute’), and command responsibility under Article 28 of the Statute, in order to outline current problematic issues vis-à-vis the judicial determination of the responsibility of high-ranking perpetrators for the commission of international crimes.

Who is (the most) responsible for the commission of international crimes? The difficulties encountered in establishing the individual criminal responsibilities following the commission of international crimes are well known. War crimes, crimes against humanity and genocide (the so called ‘core crimes’) are characterized

of the ICC Statute. The acquittal of Mathieu Ngudjolo in December 2012 and the recent partial acquittal of Germain Katanga, whose responsibility was for the remaining part reclassified and downgraded from principal liability to accessory liability, are clear signs that the ICC prosecutorial policy went too far in the effort to classify the responsibility of the suspects as the ‘most serious one’, and eventually was not able to substantiate the charges. See pp 53–56 of this chapter. 4 In particular, it seems that the Court refused to accept the JCE doctrine as a form of principal liability pursuant to Article 25(3)(a) of the ICC Statute. The JCE could perhaps find some application as a residual mode of accomplice liability under Article 25(3)(d). See Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-803, Decision on the Confirmation of Charges, Pre-trial Chamber I, 29 January 2007, paras 336–337 (‘Lubanga Decision’). 5 See pp 53–56 of this chapter.

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as mass crimes involving multi-level responsibilities.6 Typically, they are jointly committed by a plurality of persons organized vertically and horizontally; thus the classical criminal accountability mechanisms, built around the individual perpetrator, do not fit well with the complex net of contributions and responsibilities that exist behind the commission of such crimes. Even concepts, such as ‘the perpetrator’, ‘the aider and abettor’, ‘the instigator’ and ‘the accomplice’, developed by criminal law scholars and adopted by domestic legislation to regulate participation in the crime, appear weak and sometimes odd when applied to such large-scale crimes.7 In this context, it is well recognized that not only those who physically committed the criminal acts, but also those who controlled the crime’s execution in different ways, even being remote from the crime, shall be considered as perpetrators.8 Indeed, given the complexity of the context of international crimes, it is often not who physically commits the criminal acts, but rather the individual who ordered, masterminded or planned the crimes committed (physically by others) who bears the most blame (and therefore deserves greater punishment). Therefore, there is a tendency in international criminal law to broaden the boundaries of commission or more generally to extend the concept of perpetration for the sake of justice. For instance, such a tendency can be seen in the ICTR Appeals Chamber judgment in the Seromba case. Seromba, a Catholic priest, was convicted in the first instance for aiding and abetting genocide by virtue of his role in the destruction of the Church of Nyange Parish, in which Tutsi refugees were killed. Seromba was sentenced to 15 years’ imprisonment. The Appeals Chamber quashed the judgment, however, and instead held that Seromba was responsible for (among other charges) committing genocide and sentenced him to life imprisonment. The Appeals judges recalled that ‘committing’ shall not be limited to

6 See Gerhard Werle, Principles of International Criminal Law, 2009, T.M.C. Asser, p 293; Kai Ambos, Der allgemeine Teil des Völkerstrafrechts. Ansätze einer Dogmatiesierung, 2002, Dunker & Humblot, p 50 et seq. 7 On the difficulties of applying the rules and categories on criminal participation developed at the domestic level to international crimes and vice versa, see Alberto Di Martino, ‘La disciplina del concorso di persone’, in Antonio Cassese, Mario Chiavario and Giovannangelo De Francesco (eds), Problemi attuali della giustizia penale internazionale, 2005, Giappichelli, p 189 et seq. (with reference to the Italian system); Kai Hamdorf, ‘The Concept of a Joint Criminal Enterprise and Domestic Mode of Liability for Parties to a Crime: A Comparison of German and English Law’ (2007) 5(1) Journal of International Criminal Justice 208. 8 Cf. Héctor Olásolo and Ana Pérez Cepeda, ‘The Notion of Control of the Crime and its Applications by the ICTY in the Stakic Case’ (2004) 4(4) International Criminal Law Review 475–480 (‘Olásolo and Cepeda’). With reference to war crimes, for instance, given that the actual perpetrators (i.e. the ones who physically committed the criminal acts), are normally the low-ranking soldiers, there is a risk that, if the domestic categories on participation were to apply, the commanders and the senior leaders (i.e. the ones that masterminded or planned the systematic commission of the crimes and organized their execution) might be convicted merely as accomplices or participants.

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physical or direct perpetration of the act and that other acts can also be considered as direct perpetration of the crime of genocide.9 The prosecutors’ and judges’ aim is to avoid convicting individuals who are rightly considered as the ones bearing the most blame (military commanders, political leaders, those who made the decisions), but who did not directly commit the crime (being normally removed from the actual commission of the crimes), as mere accessories rather than principals and consequently sentencing them for ‘secondary responsibilities’ pursuant to the domestic principles of criminal participation. However, the difficulties in translating the legal categories of responsibility into sentencing criteria before international tribunals should also be taken into account.10 It shall be noted in this regard that a lower sentence does not always follow from accomplice liability, as shown, for instance, by the conviction and sentencing of Charles Taylor to 50 years of prison for aiding and abetting, before the SCSL.11 As for the domestic level, in the Anglo-American system, for instance, accomplices are convicted of the offence they have participated in and are punished as principals. In theory, the same occurs in civil law systems, which are based on a unitary model of participation – as is the case in the Italian system – and thus do not make a distinction between principal and secondary liability.12 In fact, the problem of categorizing each mode of liability is particularly sensitive within those legal systems that differentiate between the criminal

9 Prosecutor v Seromba, ICTR-2001-66-A, Judgment, Appeals Chamber, 12 March 2008, para 161. In the case at stake, although the accused did not personally drive the bulldozer that destroyed the church, the Chamber found that he ‘fully exercised his influence over the bulldozer driver’, who accepted Seromba’s authority and followed his directions. The judges concluded that the accused ‘approved and embraced as his own’ the decision to destroy the church in order to kill the Tutsi refugees, therefore becoming a principal perpetrator and not merely an aider and abettor. The Chamber also found that Seromba possessed the requisite mens rea for genocide, in that he acted with the intent to destroy, in part, the Tutsi group. 10 Prosecutor v Krnojelac, IT-97-25-T, Judgment, Trial Chamber II, 15 March 2002, para 77: ‘This Trial Chamber does not hold . . . the need to fit the facts of the particular case into specific categories for purpose of sentencing. There are for example circumstances in which a participant in a joint criminal enterprise will deserve greater punishment than the principal offender deserves. The participant who plans a mass destruction of life, and who orders others to carry out that plan, could well receive a greater sentence than the many functionaries who between them carry out the actual killing. Categorising offenders may be of some assistance, but the particular category selected cannot affect the maximum sentence which may be imposed and it does not compel the length of sentences which will be appropriate in the particular case.’ Similar considerations, on the attempt to categorize the different types of offenders, were expressed by Judge Hunt in his separate opinion in the Prosecutor v Milutinovic et al, IT-99-37-AR72, Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, Appeals Chamber, 21 May 2003, para 31. More recently, and with regard to the ICC, see the Separate Opinion of Judge Adrian Fulford to Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06, Judgment Pursuant to Article 74 of the Statute, Trial Chamber I, 14 March 2012 (‘Lubanga Judgment’). 11 Prosecutor v Taylor, SCSL-03-01-T, Sentencing Judgment, Trial Chamber, 30 May 2012, para 29. 12 For an overview of the different models of participation, see Elies van Sliedregt, Individual Criminal Responsibility in International Law, 2012, OUP.

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responsibility of perpetrators and of accomplices (in other words, between principal and accessorial liability).13 Briefly said, in the international macro-criminal context, specific problems arise when attributing criminal responsibility to individuals involved in the joint commission of crimes, where a plurality of persons acted with a common plan. Such difficulties consist in particular in distinguishing between perpetration (as a form of principal liability which also includes co-perpetration, indirect perpetration and the debated indirect co-perpetration under Article 25(3)(a) of the Statute) and mere participation (as a form of secondary liability) in the common plan. As anticipated, the ICC in its first jurisprudence heavily relied on the Germaninspired doctrine of ‘control over the crime’, whereby the ‘essential contribution to the crime’ was set to be the distinguishing factor between principal and accessories. As we shall see, however, the concept of ‘control’ connotes that this mode of liability before the ICC is far from being clearly established. Before delving into an analysis of this mode of liability, let us first have a look at the command responsibility doctrine, and its first interpretation by the ICC.

The rare application of ‘command responsibility’ before the ICC Mechanisms that extend the scope of individual criminal responsibility beyond one’s own actions are not unusual in international criminal law: one of these is the so-called command responsibility doctrine, a mode of liability which originated long ago in the military context.14 Eventually, command or superior responsibility (its parallel in the civilian context) made its way into international humanitarian law and subsequently into international criminal law. Command responsibility had already been applied by the criminal tribunals created after the Second World War (including at Nuremberg and Tokyo), but it was only through the extensive jurisprudence of the ad hoc tribunals in the 1990s that its elements were clarified.15 The ICTY, in particular, charged and convicted many defendants for war crimes under Article 7(3) of the ICTY Statute. Moreover, it was the ICTY’s jurisprudence that clarified once and for all the applicability of the doctrine to civilian superiors, a critical landmark in international criminal law. However, over the last few years it appears that command responsibility has been less and less successful in prosecution strategy, and that charges brought alternatively under Article 7(1) and 7(3) of the ICTY Statute have almost always ended in a conviction under the former provision. This is the result of the ‘success’ enjoyed by the JCE doctrine at

13 This is the so-called ‘differentiated participation model’, which draws a distinction between the principal (who actually commits the crime) and the secondary party (who contributes in other ways to the crime), and distinguishes between different degrees of assistance. The distinction in the degree of participation is normally reflected in the sentence. See Hans H Jescheck and Thomas Weigend, Lehrbuch des Strafrechts, Allgemeiner Teil, 1996, Dunker & Humblot, 684–697. 14 For the historical evolution of command responsibility, refer to Meloni 2010 (n 1) 33–76. 15 Ibid, p 77.

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the ad hoc tribunals: indeed, from a probative point of view, the JCE doctrine generally offers advantages.16 Thus, since it is easier to convict individuals under the JCE doctrine, command responsibility was very often absorbed by the former. In this sense it can be said that JCE eroded command responsibility, covering situations that would have possibly fallen under the scope of application of Article 7(3) of the ICTY Statute. As we shall see, something similar seems to be happening today before the ICC, with regard to interpretations that overextend the meaning of Article 25(3)(a) ICC Statute so as to cover under ‘commission’ also situations that would better fit under command responsibility or modes of accessory liability provided for by Article 25(3)(b) or (c) of the ICC Statute.17 A detailed provision on command responsibility is contained in Article 28 of the ICC Statute. The norm provides that a military commander or a non-military superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces or subordinates under his or her effective command and control (or effective authority and control in case of a non-military superior) as a result of his or her failure to exercise control properly over such forces. Commanders and/or superiors will be responsible if they fail to take all necessary and reasonable measures within their power to prevent or repress commission of subordinates’ crimes or to submit the matter to the competent authorities for investigation and prosecution. The provision is divided into two parts. While subsection (a) concerns military commanders, or those who effectively act as such, subsection (b) deals with the responsibility of civilian superiors, identified in a residual way vis-à-vis the provision in subsection (a). The latter provision is a novelty in the codification of the doctrine of command responsibility. It is the result of a proposal put forward by the United States delegation, which considered it correct to provide for a separate provision that takes into account the difference between the powers of control of a military commander and those of a civilian superior. The latter was thought to enjoy a lesser degree of control and influence over its subordinates.18 Both forms of superior responsibility are built on common elements, but there are also significant differences, most prominently respecting the knowledge requirement/ subjective element. Whereas, to be responsible, it is required that the military commander either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes, for the civilian superior it is required that he or she either knew or consciously disregarded information that clearly indicated that subordinates were committing

16 See Mark J Osiel, ‘Modes of Participation in Mass Atrocity’ (2005) 38 Cornell International Law Journal 793. 17 In this regard it is very interesting the recent judgment delivered in the case of the Prosecutor v Germain Katanga, ICC-01/04-01/07-3436, Judgment Pursuant to Article 74 of the Statute, Trial Chamber II, 7 March 2014 (‘Katanga Judgment’) and annexed Dissenting Opinion of Judge Van den Wingaert. 18 See, in this regard, Kai Ambos, ‘Superior responsibility’, in Antonio Cassese, Paola Gaeta and John RWD Jones (eds), The Rome Statute of the International Criminal Court, 2002, OUP, p 848 et seq.

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or about to commit such crimes. Moreover, in the case of a non-military superior, the crimes must concern activities that were within the effective responsibility and control of the superior. By means of Article 28, the drafters of the ICC Statute have provided for a far more complete and detailed provision on superior responsibility than the previous instruments, requiring a very precise establishment of its constitutive elements. Despite the ICTY’s extensive elaboration, many issues concerning the doctrine of command responsibility are still open for interpretation, especially with regard to civilian superiors. In fact, the application of this form of liability is not yet clear, which might explain in part why the ICC only once resorted to this mode of liability during the first 10 years of its activity. This is not the place for a detailed analysis of each individual element of command responsibility under the ICC Statute.19 Yet some brief observations can be made on the Bemba Gombo proceedings (the first case dealing with Article 28 of the ICC Statute), which can be useful to illustrate the dilemmas that judges may face when dealing with the doctrine of command responsibility. The Bemba Gombo case The first (and so far only) interpretation of Article 28 of the ICC Statute was in the context of the decision confirming the charges against Mr Jeanne Pierre Bemba Gombo on 15 June 2009.20 Originally, the Prosecutor had charged Bemba Gombo with criminal responsibility as a co-perpetrator under Article 25(3)(a) of the ICC Statute. However, following a request by the Chamber in this sense,21 the Prosecutor submitted an amended charging document where the responsibility of Bemba Gombo for the alleged crimes was framed ‘in the alternative’ as command or superior responsibility under Article 28(a) or (b) of the Statute. As a result of the three-day hearing,22 Bemba Gombo was set to stand trial for murder, rape and pillaging, as war crimes and crimes against humanity, due to his alleged responsibility under Article 28 of the Statute. The trial started in November 2010 and was ongoing when this chapter was finalized. In the decision confirming the charges, Bemba Gombo was described as the de jure Commander-in-Chief of the political–military movement MLC in the CAR. To reach this conclusion, the Pre-trial Chamber judges considered that Bemba Gombo had the following powers: to issue orders that were complied with; to appoint, promote, dismiss,

19 For an extensive analysis on the point, see Meloni 2010 (n 1) 139. 20 Prosecutor v Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, Pre-trial Chamber II, 15 June 2009 (‘Bemba Decision’). 21 ‘It appears to the Chamber that the legal characterisation of the facts of the case [might] amount to a different mode of liability under article 28 of the Statute’; see Prosecutor v Jean-Pierre Bemba Gombo, ICC-01/05-01/08-388, Decision Adjourning the Hearing pursuant to Article 61(7)(c)(ii) of the Rome Statute, Pre-trial Chamber III, 3 March 2009, para 46. 22 The confirmation of charges hearing against Bemba Gombo was held from 12 to 15 January 2009.

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arrest, detain and release other MLC commanders; and ultimately to prevent and repress the commission of crimes. Bemba Gombo was believed to have retained his effective authority and control over MLC troops throughout the military intervention in the CAR, having the material ability to contact his Commander of Operations and to make the decision to withdraw his troops from the field. The judges found sufficient evidence to believe – for the purpose of the confirmation of charges – that the accused knew that MLC troops were committing or were about to commit crimes23 and that he failed to take all necessary and reasonable measures within his power to prevent or repress the commission of crimes, because ‘he disregarded the scale and gravity of crimes and opted for measures that were not reasonably proportionate to those crimes’.24 Article 28 of the Statute has been interpreted by the ICC Pre-trial Chamber as a form of criminal responsibility based on a legal obligation to act, which is composed of very specific elements. Having determined that Bemba Gombo fell under the notion of military or military-like commander, the Chamber limited itself to the analysis of the first paragraph of Article 28.25 The judges held that the category of military-like commanders may encompass superiors who have control over irregular forces, such as rebel groups or paramilitary units, the latter including armed resistance movements and militias structured in military hierarchy and having a chain of command. Thus, the expressions ‘effective command and control’ and ‘effective authority and control’ are to be interpreted as alternatives having the same meaning but referring to distinct groups of commanders. While command is applicable to military commanders stricto sensu, or de jure, authority refers to military-like or de facto commanders. In this sense, the words ‘command’ and ‘authority’ were thought not to imply a different standard of control. The ICC judges referred to ICTY case law to define the concept of ‘effective control’, which lies at the very heart of the doctrine of command responsibility. Following the ad hoc tribunals’ definition, the notion of effective control was described as the material ability to prevent and punish the commission of the offences; the Chamber also listed several factors that can indicate the existence of the superior– subordinate relationship.26 With regard to ‘successor command responsibility’ – one of the hot issues before the ICTY – the ICC Chamber established (correctly in our view) that there must be temporal coincidence between the superior’s detention of effective control and the criminal conduct of his or her subordinates. The judges acknowledged the existence of a minority opinion in the case law of the ad hoc tribunals, according to which it is sufficient that the superior had effective control over the perpetrators at the time at which the superior is said to have failed to exercise his or her powers

23 Bemba Decision (n 20), para 489: this paragraph of the Bemba Decision lists the factors from which the Chamber derived Bemba Gombo’s actual knowledge about the occurrence of the crimes. 24 Bemba Decision (n 20), para 495. 25 Ibid, para 407. 26 Ibid, paras 415–417.

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to prevent or to punish27 (regardless of whether he or she had the control at the time of the commission of the crime, as the majority of the ICTY jurisprudence instead required), but they rejected it on the basis of the language used by Article 28 of the ICC Statute. Indeed, the provision at issue requires that the subordinates’ crimes be committed ‘as a result of his or her failure to exercise control properly’, thus requiring that the suspect had effective control ‘at least when the crimes were about to be committed’.28 As for the element of causality – another hot issue – the Chamber interpreted Article 28 of the ICC Statute as requiring a causality link between the superior’s dereliction of duty and the underlying crimes.29 The element of causality as such was only referred to the commander’s duty to prevent the commission of future crimes. The judges nonetheless found that the failure to punish, being an inherent part of the prevention of future crimes, would be in a way causal vis-à-vis the subordinates’ crimes, in the sense that the failure to take measures to punish the culprits is likely to increase the risk of commission of further crimes in the future.30 Having considered that ‘the effect of an omission cannot be empirically determined with certainty’ and thus that ‘there is no direct causal link that needs to be established between the superior’s omission and the crime committed by subordinates’,31 the Chamber found that because a conditio sine qua non causality requirement (or ‘but for test’) would be impossible to fulfil with regard to a conduct of omission, it was only necessary to prove that the commander’s omission increased the risk of the commission of the crimes charged in order for the causality nexus to be fulfilled.32 However, the reasoning of the judges lacks some clarity as to the hypothetical assessment of causality, which is surely hypothetical in cases of omission, but is hypothetical also respecting acts of commission. In our view, the hypothetical nature of the assessment shall not be the decisive argument to adopt the ‘risk increasement test’ and reject the ‘but for test’.33

27 Reference is made to the following ICTY case: Prosecutor v Oric´, IT-03-68, Judgment, Appeals Chamber, 3 July 2008, Declaration of Judge Shahabudden and partially Dissenting Opinion and Declaration of Judge Liu, 65–85. 28 Bemba Decision (n 20), para 419. 29 Ibid, para 423. 30 Reference is made in the Bemba Decision to similar findings contained in the ICTY jurisprudence, and in particular in the Hadzihasanovic case; however, as we have already clarified on other occasions, this finding is tricky because tends to confuse the responsibility of the superior for the subordinates’ crimes that have already been committed with the risk of commission of future crimes. It shall be recalled that no responsibility arises pursuant to the command responsibility doctrine for the mere lack of control of the superior over the subordinates, as long as the crimes are not actually committed: see Meloni 2010 (n 1) 165–167. 31 Bemba Decision (n 20), para 425. 32 Ibid, para 426: ‘To find a military commander or a person acting as a military commander responsible for the crimes committed by his forces, the Prosecutor must demonstrate that his failure to exercise his duty to prevent crimes increased the risk that the forces would commit these crimes.’ 33 On the point see Kai Ambos, ‘Critical Issues in the Bemba Confirmation Decision’ (2009) 22(4) Leiden Journal of International Law 721–722.

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Regarding the mental element of command responsibility, the Chamber certainly clarified that strict liability is not admitted under Article 28 of the ICC Statute. Two standards of culpability are possible for military commanders: actual knowledge (knew) or negligence (should have known). Actual knowledge cannot be presumed but can be obtained by way of direct or circumstantial evidence, as decided by the ad hoc tribunals. The Chamber, however, oddly noted that the knowledge required respectively under Articles 30(3) and 28(a) of the ICC Statute would be different, since the former is applicable to the forms of participation as provided for in Article 25 of the Statute, while, under Article 28, the commander does not participate in the commission of the crime.34 This finding is unconvincing in our opinion. Regardless of whether command responsibility is considered to be a form of participation in the subordinates’ crimes or a distinct mode of liability, it is unclear why the cognitive element, knowledge, under Article 30 of the Statute should be different from knowledge under Article 28 of the Statute.35 More convincingly, in our view, it can be argued that it is not the knowledge but rather its object (also called mental object) that is different under the two provisions: in the case of Article 30, the mental object is the crime as such, whereas under Article 28, what the superior needs to know is the criminal conduct of his or her subordinates.36 In order to define the ‘should have known’ standard, the ICC judges referred again to the ICTY jurisprudence.37 The Chamber, while acknowledging that a difference exists between the ‘had reason to know’ and the ‘should have known’ standards, unfortunately did not consider it necessary to elaborate any further. In any case, what emerges clearly is that under the ‘should have known’ standard, the superior is found to be negligent in failing to acquire knowledge of his [or her] subordinates’ illegal conduct. In the view of the Court, the ‘should have known’ standard requires ‘an active duty on the part of the superior to take the necessary measures to secure knowledge of the conduct of his [or her] troops and to inquire, regardless of the availability of information at the time of the commission of the crimes’.38 However, among the indicia relevant for the determination of this negligence standard, the Chamber mentions the same circumstances that are also mentioned with reference to the proof of actual knowledge through circumstantial evidence.39 This practice of referring to the same factors to establish the actual knowledge or the negligent standard – typical of the ICTY jurisprudence – creates, in our view, confusion within distinct mens rea standards, obliterating any differences that may exist. Another debatable finding of the Bemba Gombo decision is considering the failure to punish past crimes of subordinates as an indication of a risk that future crimes

34 35 36 37 38 39

Bemba Decision (n 20), para 479. See Ambos 2009 (n 33) 719–721. See Meloni 2010 (n 1) 188. In particular, reference is made to the Blaskic case; see Bemba Decision (n 20), para 432. Ibid, para 433. Such circumstances are: (i) that the superior had general information to put him or her on notice of crimes committed or of the possibility of occurrence of unlawful acts; and (ii) that such available information was sufficient to justify further inquiry; see ibid, para 434.

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will be committed, thus warranting the conclusion that the superior knew or at least should have known about the crimes.40 With regard to the conduct-element of command responsibility, the Chamber considered that the three duties arise for the superior at different stages: (a) before the commission of the crime(s), the superior has the duty to prevent; (b) during their commission, he or she has the duty to repress the crimes; and (c) after the crimes have been committed, the superior has the duty to submit the matter to the competent authorities. The Chamber further observed that the duty to repress encompasses the duty to stop ongoing crimes and the duty to punish the forces after the commission of crimes.41 In turn, the duty to punish is an alternative to the duty to refer the matter to the competent authorities. In the first case, the superior has the power to take the necessary measures, while in the second case, the superior does not have the ability to do so and can, therefore, only submit the matter to the competent authorities. The powers also vary according to the position of the superior in the chain of command. From this schema the judges draw the conclusion that ‘thus, a failure to fulfil one of these duties is itself a separate crime under art. 28(a) of the Statute’ and, therefore, that a military commander can be held responsible for one or more breaches of duty under Article 28(a) of the ICC Statute in relation to the same underlying offence.42 The Chamber correctly held that a failure to prevent the crimes cannot be cured by fulfilling the subsequent duty to repress or submit the matter to the competent authorities. However, to impose cumulative convictions on the same superior for the same subordinates’ crimes on the basis of the different duties is not convincing from two points of view: first, because such a notion is inconsistent with an understanding of command responsibility as a mode of liability (as it actually is under Article 28 of the ICC Statute and as the Court confirmed in this decision); and second, because it does not appear to be respectful of the criminal law principles on concurrence of offences.43 With regard to the possible overlapping of Articles 28 and 25(3) of the ICC Statute, the first jurisprudence of the ICC excluded the possibility of trying an individual for the same facts under both modes of liability. In the Bemba Gombo case, the amended charging document submitted to the Pre-trial Chamber by the Prosecutor charged the suspect ‘primarily’ with criminal responsibility as a co-perpetrator under Article 25(3)(a) or ‘in the alternative’ under command or superior responsibility as provided by Article 28(a) or (b) of the Statute.44

40 Reference made to the SCSL, specifically Prosecutor v Sesay et al., SCSL-04-15-T, Judgment, 2 March 2009, para 311. 41 Bemba Decision (n 20), para 439. 42 Ibid, para 436. 43 On the concursus delictorum, see Ambos 2009 (n 33) 723. 44 See Amended Document containing the charges filed on 30 March 2009, the Prosecutor v Jeanne Pierre Bemba Gombo.

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At the outset of their legal reasoning, the judges found that in order to establish the responsibility of the suspect, Article 28 represents an alternative to Article 25 of the ICC Statute, thus excluding the possibility of cumulative charges (and convictions) under different modes of liability for the same crimes. This position is to be welcomed, especially in light of the rights of the defence, which were often neglected by the ad hoc tribunals’ practice of cumulative and imprecise charges at the indictment stage. Moreover, the ICC pre-trial judges clearly affirmed that an assessment of the responsibility under Article 28 should be only secondary to an assessment of responsibility under Article 25. If there was evidence of any active involvement of the suspect in the commission of the crimes, the charges against him or her should be brought under the latter provision rather than under Article 28 of the ICC Statute.45 In sum, it emerges that command responsibility and responsibility for commission regarding the same defendant for the same facts are never cumulative. From this conclusion, along with the circumstance that the elements of command responsibility under Article 28 of the ICC Statute are not easy to prove at trial, let us foresee that the mode of liability under Article 28 of the ICC Statute will generally be left aside by the Prosecutor. Similar to what happened before the ICTY, it is likely that command responsibility before the ICC will often be absorbed into a form of liability covered by Article 25(3) of the ICC Statute.

The ‘control over the crime’ doctrine of perpetration and the creation of indirect co-perpetration before the ICC As already mentioned, the first ICC jurisprudence showed no hesitation in rejecting the much-criticized JCE doctrine, which had been established by the ad hoc tribunals. Instead of adopting the JCE doctrine, the ICC, at the outset, opted for a complex doctrine to deal with the cases of joint commission of crimes and more generally to categorize the various forms of participation in the crime pursuant to Article 25(3) of the ICC Statute. To overcome the lax criteria and lack of precision that were typical of the JCE approach, ICC judges have, from the very outset in Lubanga, based the distinguishing criterion between principals and accessories on the concept of ‘control over the crime’. This would entail both an objective and a subjective element: the former consisting of the appropriate factual circumstances for exercising

45 Bemba Decision (n 20), para 342. ‘An examination of Mr. Jean-Pierre Bemba’s alleged criminal responsibility under article 28 of the Statute, would only be required if there was a determination that there were no substantial grounds to believe that the suspect was, as the Prosecutor submitted, criminally responsible as a co-perpetrator within the meaning of article 25(3)(a) of the Statute for the crimes set out in the Amended DCC (document containing the charges).’ See also paras 402–403.

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control over the crime; and the latter consisting of the awareness of such circumstances.46 This ‘new doctrine’ was immediately regarded by criminal law specialists and scholars as a step forward from the JCE. Indeed, it was more consistent with the letter of the ICC Statute and more in line with the principles of precision, legality and culpability. However, not everyone was happy with this highly dogmatic ‘control over the crime’ approach. As we shall see, strong criticism has been raised also by members of the Court, including Judge Fulford, who in the Lubanga judgment appended an interesting dissenting opinion on this point.47 The notion of control over the crime, in its ‘original’ elaboration by Pre-trial Chamber I, can present different features depending on the form of perpetration under Article 25(3)(a).48 More precisely, as was affirmed in the Lubanga Decision, to have control over the crime means: (i)

in the direct perpetration (or commission of the crime as an individual), to physically carry out the objective element of the offence; (ii) in the indirect perpetration (or commission through another person), to have the control of the will of those who carry out the objective elements of the offence; and (iii) in the co-perpetration (or commission jointly with others), to have along with others control over the offence by reason of the essential tasks assigned to them.49 Meanwhile, as many scholars have pointed out, the influence of the famous theories of German scholar Claus Roxin is clearly recognizable, and in particular his doctrine of ‘control over an organizational apparatus’, although with certain adaptations.50 Notably, Professor Roxin himself has, in the meanwhile, taken part in the most recent legal debate, in order to stress the differences with his theory.51 46 Lubanga Decision (n 4), para 331. For an elaboration on the concept of ‘organised and hierarchical apparatus of power’, see Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07717, Decision on the Confirmation of Charges, Trial Chamber I, 20 September 2008, paras 511–514 (‘Katanga and Ngudjolo Decision’). 47 See Jens D Ohlin, Elies van Sliedregt and Thomas Weigend, ‘Assessing the Control-Theory’ (2013) 26(3) Leiden Journal of International Law 725 (‘Ohlin, van Sliedregt and Weigend’). 48 As was already mentioned, Article 25(3)(a) provides for (i) direct perpetration; (ii) perpetration through another person or indirect perpetration; and (iii) joint commission or co-perpetration. See Gerhard Werle, ‘Individual Criminal Responsibility in Article 25 ICC Statute’ (2007) 5(4) Journal of International Criminal Justice 953. 49 Lubanga Decision (n 4), para 332. 50 See ibid, para 348 and footnote 425, where the Chamber notes that ‘according to Roxin, those who contribute only to the commission of a crime at the preparatory stage cannot be described as co-perpetrators even if they carry out tasks with a view to implementing the common plan’, but the Statute would not contain any such restriction. On the roots of the doctrine and the differences introduced in the international criminal law praxis, see Florian Jessberger and Julia Geneuss, ‘On the Application of the Theory of Indirect Perpetration in Al Bashir: German Doctrine at The Hague?’ (2008) 6(5) Journal of International Criminal Justice 853 (‘Jessberger and Geneuss’). 51 See Claus Roxin, ‘Zur neuesten Diskussion über die Organisationsherrschaft’ (2012) Goltdammer’s Archiv für Strafrecht 395 et seq.

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Similarly to Roxin’s treatise on indirect perpetration (mittelbare Taeterschaft durch die Kontrolle eine hierarchische Organization),52 the ICC judges believe it is possible to establish the parallel responsibility on two different levels – in other words, the responsibility of the leader and of the subordinate as indirect perpetrator (also called intellectual author) and direct perpetrator of the crime, respectively.53 Thus the leader’s control over the apparatus allows him or her to use subordinates as ‘a mere gear in a giant machine’ in order to produce the criminal result ‘automatically’.54 At the outset of the Lubanga case, no disagreement seemed to emerge among the judges of Pre-trial Chamber I as to the features of co-perpetration based on joint control over the crime under Article 25(3)(a) of the ICC Statute. As for the actus reus, the Lubanga Decision outlined the following elements as necessary: (a) the existence of an agreement or common plan (even implicit) between two or more persons; and (b) the coordinated essential contribution by each co-perpetrator resulting in the realization of the objective elements of the crime.55 In co-perpetration based on joint control over the crime: (i)

there is a division of the essential tasks for the purpose of committing a crime between two or more persons acting in a concerted manner; (ii) none of the participants has overall control over the offence, because they all depend on one another for its commission; and (iii) all of the participants share control, because each of them could frustrate the commission of the crime by not carrying out their task.56 As for the subjective elements, the Pre-trial Chamber set a high legal standard, affirming that ‘the theory of co-perpetration based on the joint control over the crime requires that all the co-perpetrators . . . be mutually aware of, and mutually accept, the likelihood that implementing the common plan would result in the realization of the objective elements of the crime’.57 Moreover, the judges required that each

52 Claus Roxin, ‘Straftaten im Rahmen organisatorischer Machtapparate’ (1963) Goltdammer’s Archiv für Strafrecht 193. 53 See Claus Roxin, Täterschaft und Tatherrschaft, 2006, Walter de Gruyter, p 245, as quoted in the Katanga and Ngudjolo Decision (n 46), para 515. 54 Katanga and Ngudjolo Decision (n 46), para 515. 55 Lubanga Decision (n 4), paras 343–348. Cf. ibid, paras 522–526. Therefore co-perpetration consists of the following objective elements: a plurality of persons; the existence of a common plan involving the commission of a crime; that the co-ordinated contribution of each member be essential to the realization of the common plan; and the joint control over the crime (i.e. the ability of each co-perpetrator to impede the realization of the common plan). 56 Ibid, para 342. 57 Notwithstanding the setting in principle of such a high standard, it seems that the Chamber erred in applying it to the facts of the Lubanga case. Pre-trial Chamber I in fact considered as being of ‘consequence’ (Article 30(2)(b)) the age of the children recruited, which should have been viewed

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co-perpetrator have the requisite mens rea for the crime in question: intent and knowledge under Article 30 of the ICC Statute unless a specific mens rea is required for that crime (for instance, the dolus specialis of genocide).58 A problem arose, however, with regard to the admissibility of the dolus eventualis as a sufficient standard with respect to this mode of liability.59 The Lubanga Decision seems to allow this,60 while the successive Katanga and Ngudjolo Decision, although not clear on the point, appears to take a step back by referring only to the ‘dolus directus of the second degree’.61 The creation of ‘indirect co-perpetration’ in the Katanga and Ngudjolo case Notably, indirect co-perpetration was still missing at the outset of this doctrine, as established in the Lubanga Decision. However, in the Katanga and Ngudjolo Decision, the same Chamber62 adopted a very sophisticated structure to impute criminal liability as co-perpetrators to individuals in positions of authority who used other individuals to further the common criminal plan: a sort of combined notion of ‘joint commission’ plus ‘commission through another’. The judges affirmed that ‘[t]hrough a combination of individual responsibility for committing crimes through another person together with the mutual attribution among the co-perpetrators at the senior level, a mode of liability arises, which allows the Court to assess the blameworthiness of “senior leaders” adequately’.63 The Chamber ‘created’

instead as a ‘circumstance’ (Article 30(3)), thus mixing the standard of negligence – sufficient with respect to the age of the soldiers enlisted or conscripted pursuant to Article 8(2)(b)(xxvi) – with the ‘awareness that the circumstance exists’ (cf. Lubanga Decision (n 4), para 404); see in this sense the remarks of Thomas Weigend, ‘Intent, Mistake of Law and Co-perpetration in the Lubanga Decision on Confirmation of Charges’ (2008) 6 Journal of International Criminal Justice, 471, 485. 58 Lubanga Decision (n 4), paras 349–367; see also Katanga and Ngudjolo Decision (n 46), para 527 et seq. 59 Cf. Weigend 2008 (n 57) 481–484. The author rightly points out that Article 30(2) of the Statute, however, ‘clearly indicates a restrictive approach as to extent of liability for intent: the lowest threshold of responsibility is for the actor to be aware that the consequence “will occur in the ordinary course of events”’. He continues: ‘The wording of article 30(2)(b) ICC Statute, in my opinion, precludes any extension of intent liability beyond consciously taking a “substantial risk” . . . If the actor is aware only of a non-substantial risk, and does not “intend” the consequence to come about (Article 30(2)(b), first alternative) he thus cannot be held responsible for an intentional offence. The same applies, of course, to co-perpetrators.’ 60 Lubanga Decision (n 4), para 352. 61 Katanga and Ngudjolo Decision (n 46), paras 530–531. 62 However, by then Pre-trial Chamber I was composed differently: Judge Claude Jorda was replaced in late 2007 by Judge Anita Usacka, who joined Judge Sylvia Steiner and Judge Akua Kuenyehia. 63 Katanga and Ngudjolo Decision (n 46), para 493 et seq. To a certain extent, such findings recall what was affirmed by the ICTY Appeals Chamber at the creation of the JCE doctrine in the Tadic´ case, namely that through this doctrine, it was put in practice the principle that ‘all those who have engaged in serious violations of international humanitarian law, whatever the manner in which they may have perpetrated, or participated in the perpetration of those violations, must be brought to justice’ (para 190). With regard to such findings of the ICTY, it has been observed that they revealed the ‘political mission’ of JCE, and its function vis-à-vis the wish to bring all ‘perpetrators’ to justice. In this sense see Weigend 2008 (n 57) 477.

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this mode of liability in order to convict as principals, under Article 25(3)(a) of the ICC Statute, the two accused for all of the crimes physically committed during the joint attack on the village by members of the two military organizations (the FRPI and the FNI),64 which each headed separately.65 In fact, although Katanga and Ngudjolo acted with a common plan,66 because of ethnic loyalties within their respective organizations, some of the members accepted orders only from the leader of their own ethnicity; thus not all of the physical perpetrators of the crimes were directly under the control of both leaders. The judges affirmed that an individual who has no control over the person through whom the crimes would be committed cannot be said to commit the crime by means of that other person. However, if he or she acts jointly with another individual – one who controls the person used as an instrument – these crimes can be attributed to him or her on the basis of mutual attribution.67 However, it is unclear whether this form of indirect co-perpetration is recognized in international criminal law.68 Before the ICC even began operating, the ICTY Trial Chamber in the Stakic case69 had already attempted to adopt the very same mode of liability.70 The Appeals Chamber, however, rejected it and found that ‘this mode of liability as defined and applied by the Trial Chamber, does not have support in customary international law or in the settled jurisprudence of this Tribunal’.71 ICC Pre-trial Chamber I, nevertheless, noted that ‘the question as to whether customary law admits or discards the joint commission through another person is not relevant for this Court’.72 The ICTY’s findings, indeed, are not binding on the

64 For a description of the abovementioned groups and the position of the two accused, see Katanga and Ngudjolo Decision (n 46), paras 5–10. 65 Ibid, paras 11–36. The charges brought against the two accused refer to a number of crimes committed by members of the FNI and FRPI during the attack on the Bogoro village, in the Ituri region on 24 February 2003. The criminal acts, amounting to war crimes and crimes against humanity, consisted inter alia of murders, wilful killings, inhumane acts, rapes, use of children in the hostilities and pillaging. 66 Ibid, para 33. The common plan consisted of indiscriminately attacking civilians not taking part in hostilities. 67 Ibid, para 493. 68 Arguments in this sense were raised by the defence counsel of Germain Katanga, who also argued that a correct interpretation of the Rome Statute, and in particular of Article 25(3)(a), would not allow for such a mode of liability. See Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ICC-0104-01-07-698, Defence Written Observations Addressing Matters that Were Discussed at the Confirmation Hearing, Pre-trial Chamber I, 28 July 2008, para 24. However, the Chamber found that a strict textual interpretation could allow for both interpretations; cf. Katanga and Ngudjolo Decision (n 46), paras 490–492. 69 The presiding judge of the Trial Chamber was the German Judge Schomburg. Prosecutor v Stakic, Judgment, IT-97-24-T, Trial Chamber III, 31 July 2003. 70 For a thorough analysis of the mode of liability adopted by the Trial Chamber in the Stakic case and of its origins, see Olásolo and Cepeda (n 8) 475 et seq. 71 Prosecutor v Stakic, IT-97-24-A, Judgement, Appeals Chamber, 22 March 2006, para 62. 72 Katanga and Ngudjolo Decision (n 46), para 508.

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Court, given the different system of sources and applicable law before the two Courts.73 Eventually, however, the critical approach to the indirect co-perpetration, as a combination of joint perpetration an indirect perpetration, has also been shared by several ICC judges, in particular Judge Van de Wyngaert. In her concurring opinion in the Ngudjolo judgment, she takes a very critical stance vis-à-vis this mode of liability, which she concludes is not covered under Article 25(3) ICC Statute.74 Indeed, a problem arises when separate modes of liability are combined, which, in Judge Van de Wyngaert’s view, can only be done when the elements of each mode of liability are established.75 However, as was correctly noted, ‘indirect co-perpetration involves something more than a straightforward application of the concepts of indirect and co-perpetration as those terms are used in Article 25 of the ICC Statute’.76 In fact, according to the judges’ abovementioned reasoning in Katanga and Ngudjolo, the mutual attribution of the acts of one’s troops to the other would be justified even if each of them had control over only his or her own troops (and not those of the other). As a matter of fact, the charges brought against the two accused on the basis of this complex form of co-perpetration did not pass the scrutiny of the Trial Chamber: Ngudjolo was fully acquitted in December 2012,77 while Katanga was partially acquitted in March 2014, and his overall responsibility dramatically downsized.78 In particular, the judges changed the legal characterization of the mode of liability initially applied to the defendant – in other words, indirect co-perpetration under Article 25(3)(a) of the Statute – and applied instead Article 25(3)(d) of the Statute. The latter provision envisages a different (and much less serious) mode of liability, which consists of accessoryship through a contribution made ‘in any other way’ (in other words, different to those included in the previous provisions) to the commission of a crime by a group of persons acting with a common purpose. The responsibility of Katanga was downsized because two essential elements of co-perpetration based on the control over the crime theory were missing. As explained by the Trial Chamber, the Prosecutor failed to prove that: (i) the Ngiti militia (whose ‘president’ was the accused) was an organized apparatus of power; and (ii) Germain Katanga wielded control over the militia so as to exercise control over the crimes within the meaning of Article 25(3) (a) of the ICC Statute.79

73 Ibid. 74 See Concurring Opinion of Judge Christine van den Wyngaert in Prosecutor v Mathieu Ngudjolo Chui, ICC-01/04-02/12, Jugement rendu en application de l’article 74 du Statut, Trial Chamber II, 18 December 2012, para 59 et seq. (‘Ngudjolo Chui Judgment’). 75 Ibid, para 62. 76 Ohlin, van Sliedregt and Weigend (n 47) 736. 77 Ngudjolo Chui Judgment (n 74). 78 Katanga Judgment (n 17). 79 Ibid.

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The practical reasons that initially prompted the Court to rely on this indirect form of co-perpetration are clear and have been analysed elsewhere.80 However, keeping in mind that ‘commission’ under Article 25(3)(a) of the ICC Statute entails the highest grade of liability and thus shall be constructed narrowly, it can be contended that indirect co-perpetration risks overly broadening the boundaries of this notion. In order to bring clarity around this mode of liability, authoritative scholars have introduced a useful differentiation between cases of proper indirect coperpetration and joint indirect perpetration.81 Further elaborations on the control over the crime approach, comprehensive also of the indirect co-perpetration form of liability, are contained in both the Darfur and the Kenya82 cases. Concerning the former, of particular relevance is the decision on the issuance of a warrant of arrest for Sudanese President Omar Al Bashir for war crimes and crimes against humanity committed by his forces in Darfur.83 Pursuant to Article 25(3)(a) of the ICC Statute, the Al Bashir Decision contemplates three different forms of perpetration (indirect perpetration, co-perpetration and indirect co-perpetration) attributable to the suspect, although the alleged crimes were physically committed by members of the Sudanese Armed Forces, their allied Militia Janjaweed and others belonging to the apparatus of the State of Sudan.84 The Chamber found that Al Bashir, as President of Sudan and Commander-in-Chief of the Sudanese Armed Forces, played an essential role in co-ordinating the design and the implementation of the common plan, which consisted in the unlawful attack on a part of the civilian population of Darfur belonging to specific ethnic groups.85 Unfortunately, the inconclusive findings on the point and the disagreement among the judges on the modes of liability at stake generated more doubts about indirect co-perpetration.86

80 Manacorda and Meloni (n 1) 171–175. 81 See Boris Burghardt and Gerhard Werle, ‘Die mittelbare Mittaterschaft. Fortentwicklung deutscher Strafrechtsdogmatik im Völkerstrafrecht?’, in Réné Bloy (ed.), Gerechte Strafe und legitimes Strafrecht: Festschrift für Manfred Maiwald zum 75. Geburtstag, 2010, 849–864. See also Thomas Weigend, ‘Perpetration through an Organization: The Unexpected Career of a German Legal Concept’ (2011) 9(1) Journal of International Criminal Justice 91. 82 See Prosecutor v Omar Al Bashir, ICC-02/05-01/09-3, Warrant of Arrest for Omar Hassan Ahmad Al Bashir, Pre-trial Chamber I, 4 March 2009 (‘Al Bashir Warrant of Arrest’); see also Prosecutor v Omar Al Bashir, ICC-02/05-01/09-95, Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir, Pre-trial Chamber I, 12 July 2010. 83 For a comment on the decision and a brief description of the underlying facts, see Boris Burghardt and Julia Geneuss, ‘Der Präsident und sein Gericht. Die Entscheidung des Internationalen Strafgerichtshofs über den Erlass eines Haftbefehls gegen Al Bashir’ (2009) Zeitschrift für Internationale Strafrechtsdogmatik (online) 126 et seq.; specifically on the modes of liability, see Jessberger and Geneuss (n 50) 853 et seq. 84 Al Bashir Warrant of Arrest (n 82), paras 209–223. 85 Ibid, paras 215, 221. 86 See in particular Al Bashir Warrant of Arrest (n 82), paras 211–213 and the Separate and Partly Dissenting Opinion of Judge Usacka, paras 103–104.

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Concluding remarks The debate that is currently ongoing at the ICC surrounding the interpretation of the modes of liability, in particular under Article 25(3)(a) of the Statute, is of the utmost importance. It blatantly exposes the difficulties related to the different approaches to criminal participation and the legal clash among the judges themselves, each of them coming from distinct and sometimes quite diverse legal traditions. In fact, as we noted at the outset of this chapter, the underlying question has to do with the allocation of blame within a complex constellation of responsibilities, to be assigned at different levels, up the chain of command. As was noted, the very same premise upon which the whole control over the crime approach appears to be based – in other words, that accessorial liability is equated to ‘lesser liability’ (vis-à-vis principal liability) – can be put into question.87 Moreover, as the dissenting opinions of Judge Fulford88 and of Judge Tarfusser89 demonstrate, no agreement has been reached inside the Court as to whether the different modes of liability automatically entail a scale of gravity that needs to be reflected in the level of the sentence handed down. This conclusion has been challenged – for instance, with regard to the mode of liability of ‘ordering’, which, according to the normative understanding of Article 25(3), shall be subordinated to the mode of liability of ‘commission’, but according to some judges cannot be considered as less grave as such.90 Even bigger questions arise with regard to the relation between Articles 25(3) and 28 of the ICC Statute, which will surely need to be investigated further in the coming years, while also taking into account the first jurisprudence on command responsibility, which is expected soon.91

Bibliography Ambos, Kai, ‘Superior responsibility’ in Cassese, Antonio, Gaeta, Paola and Jones, John RWD (eds), The Rome Statute of the International Criminal Court, 2002, OUP, Oxford, p 823. Ambos, Kai, Der allgemeine Teil des Völkerstrafrechts. Ansätze einer Dogmatiesierung, 2002, Dunker & Humblot, Berlin Ambos, Kai, ‘Critical Issues in the Bemba Confirmation Decision’ (2009) 22(4) Leiden Journal of International Law 715. Burghardt, Boris and Geneuss, Julia, ‘Der Präsident und sein Gericht. Die Entscheidung des Internationalen Strafgerichtshofs über den Erlass eines Haftbefehls gegen Al Bashir’ (2009) Zeitschrift für Internationale Strafrechtsdogmatik (online).

87 Ohlin, van Sliedregt and Weigend (n 47) 740–745. 88 See Separate Opinion of Judge Adrian Fulford, Lubanga Judgment (n 10). 89 Dissenting Opinion of Judge Cuno Tarfusser, Judgment on the appeal of Mr Germain Katanga against the decision of Trial Chamber II of 21 November 2012 entitled ‘Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons’, Appeals Chamber, 27 March 2012. For a different view on the issue, see Dissenting Opinion of Judge Van den Wingaert, Katanga Judgment (n 17). 90 Separate Opinion of Judge Adrian Fulford, Lubanga Judgment (n 10), para 7. 91 The trial in the Bemba case (based on Article 28 of the Statute charges) was, at the time that this chapter was finalized, almost concluded.

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Burghardt, Boris and Werle, Gerhard, ‘Die mittelbare Mittaterschaft. Fortentwicklung deutscher Strafrechtsdogmatik im Völkerstrafrecht?’, in Bloy, Réné (ed.), Gerechte Strafe und legitimes Strafrecht: Festschrift für Manfred Maiwald zum 75. Geburtstag, 2010, Dunker & Humblot, Berlin, p 849. Di Martino, Alberto, ‘La disciplina del concorso di persone’, in Cassese, Antonio Chiavario, Mario and De Francesco, Giovannangelo (eds), Problemi attuali della giustizia penale internazionale, 2005, Giappichelli, Torino, p 189. Hamdorf, Kai, ‘The Concept of a Joint Criminal Enterprise and Domestic Mode of Liability for Parties to a Crime: A Comparison of German and English Law’ (2007) 5(1) Journal of International Criminal Justice 208. Jescheck, Hans H and Weigend, Thomas, Lehrbuch des Strafrechts, Allgemeiner Teil, 1996, Dunker & Humblot, Berlin, p 684. Jessberger, Florian and Geneuss, Julia, ‘On the Application of the Theory of Indirect Perpetration in Al Bashir: German Doctrine at The Hague?’ (2008) 6(5) Journal of International Criminal Justice 853. Manacorda, Stefano and Meloni, Chantal, ‘Indirect Perpetration versus Joint Criminal Enterprise: Concurring Approaches in the Practice of International Criminal Law?’ (2011) 9(1) Journal of International Criminal Justice 159. Meloni, Chantal, Command Responsibility in International Criminal Law, 2010, T.M.C. Asser Press, The Hague Meloni, Chantal, ‘Fragmentation of the notion of co-perpetration in international criminal law?’, in van den Herik, Larissa and Stahn, Carsten (eds), The Diversification and Fragmentation of International Criminal Law, 2012, Martinus Nijhoff, Leiden, p 481. Ohlin, Jens D, Van Sliedregt, Elies and Weigend, Thomas, ‘Assessing the Control-Theory’ (2013) 26(3) Leiden Journal of International Law 725. Olásolo, Héctor and Cepeda, Ana Pérez, ‘The Notion of Control of the Crime and its Applications by the ICTY in the Stakic Case’ (2004) 4(4) International Criminal Law Review 475. Osiel, Mark J, ‘Modes of Participation in Mass Atrocity’ (2005) 38 Cornell International Law Journal 793. Roxin, Claus, ‘Straftaten im Rahmen organisatorischer Machtapparate’ (1963) Goltdammer’s Archiv für Strafrecht 193. Roxin, Claus, ‘Zur neuesten Diskussion über die Organisationsherrschaft’ (2012) Goltdammer’s Archiv für Strafrecht 395. van Sliedregt, Elies, Individual Criminal Responsibility in International Law, 2012, OUP, Oxford. Weigend, Thomas, ‘Intent, Mistake of Law and Co-perpetration in the Lubanga Decision on Confirmation of Charges’ (2008) 6 Journal of International Criminal Justice, 471. Weigend, Thomas, ‘Perpetration through an Organization: The Unexpected Career of a German Legal Concept’ (2011) 9(1) Journal of International Criminal Justice 91.Werle, Gerhard, ‘Individual Criminal Responsibility in Article 25 ICC Statute’ (2007) 5(4) Journal of International Criminal Justice 953. Werle, Gerhard, Principles of International Criminal Law, 2009, T.M.C. Asser Press, The Hague, p 293.

Part II

Rights of the accused and of victims

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3

The right not to be tried twice for international crimes An overview of the ne bis in idem principle within the Statutes of the ICC and the international criminal tribunals Stefano Manacorda and Giulio Vanacore*

Introduction The principle of ne bis in idem enshrined in all the international criminal law instruments has a ‘vertical’ dimension, concerning the relationship between a national and a supranational jurisdiction, as opposed to the ‘horizontal’ or ‘transnational’ dimension, related to the confrontation between States. Despite this common framework, the analysis of the relevant statutory provisions for the ad hoc ICTs and the ICC reveals two distinct sides of the concept. As far as the ‘downward’ dimension of the principle is concerned (arising from a first trial at the international level and a second trial at the national one), the regulation is identical in all of the Statutes. Conversely, with regard to its ‘upward’ face – regarding the hypothesis of a previous trial within the State and a subsequent one before an international court or tribunal – the legal discipline can differ. As we shall see, once the individual has been subjected to a proceeding for a common offence (murder, for instance) at the national level, he or she can be tried again for an international crime (in other words, an act of genocide, a crime against humanity or a war crime) before the ICTs. Such an obstacle also exists in order to proceed against him or her before the ICC. This divergence can be explained with the separated jurisdictional framework under which the international courts operate. The relationships with the domestic criminal authorities are indeed distinct: as everybody knows, primacy governs the allocation of jurisdiction for the ad hoc tribunals, while the so-called principle of complementarity rules the resolution of conflicts before the ICC. The willingness of the States of having their sovereignty guaranteed against a future, protagonist and overreacting ICC is one reason for this different regime.

* Both authors contributed to this work equally. Nonetheless, the first three sections are attributable to Prof Stefano Manacorda, and the latter three to Dr Giulio Vanacore.

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However, in our view, some other elements contributed to such a change in the legal discipline. In a more subtle way, one could argue that during the travaux préparatoires in Rome, a new and more suitable notion of the ne bis in idem principle arose. As a matter of fact, ne bis in idem can today also be seen as a fundamental right of the accused – when an individual has already been subjected to a national criminal proceeding, he or she has the ‘right not to be tried again at the international criminal floor’.1 In order to demonstrate this, several steps will be carried out. First, a presentation of the main arguments that provide a reinterpretation of the ne bis in idem principle as a fundamental right will be underlined: both the word ‘conduct’ in Article 20(3) of the ICC Statute and the elements arising from the new systematization of the provision on the principle within the Statute contribute to make ne bis in idem a fundamental right. Then, the analysis will consider the effects of domestic tribunals’ judgments (the ‘upward’ face of the ne bis in idem principle) where two differences are found in the statutes of the ICC and the ICTs. The first difference concerns the interpretation of the idem requirement: does it refer to the same ‘crime’ or ‘offence’ (which we term the ‘normative’ approach) or does it envisage an interpretation looking at merely ‘historic facts and individual conduct’ (which we term the ‘naturalistic’ or ‘factual’ approach)? A second difference takes into account the conditions relevant to allow for retrial, and in particular the concept of ‘shielding’ which is present in all three statutes, but with some crucial differences. Later, the chapter will shift its focus to the so-called ‘downward’ variant of the principle, regarding the res iudicata effects of judgments of the international adjudicating bodies vis-à-vis domestic courts. The discipline of the downward ne bis in idem is identical in all three relevant statutes. Nonetheless, an important point needs to be addressed concerning the power of the State to reformulate new charges against the individual who has already been tried before the international court or tribunal by simply relabelling the prosecuted offence.

1 This is probably the first rationale to take into account when examining the so-called ‘internal’ or ‘domestic’ ne bis in idem (i.e. the prohibition), envisaged by many domestic criminal legal instruments (such as Constitutions, substantive or procedural criminal codes, etc.) to prosecute an individual more than once upon the same grounds (nemo debet bis vexari pro una et eadem causa), within the same State jurisdiction, as well as to subject him or her to punishment several times (ne poena in idem). The rationale of ne bis in idem as firstly a human right is well synthesized in U.S. Supreme Court Justice Black’s words: ‘The State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty’ (Green v United States, 355 U.S. 187–188 (1957)). See also Immi Tallgren and Astrid R Coracini, ‘Ne bis in idem’ in Triffterer, O, Commentary on the Rome Statute of the International Criminal Court, 2nd ed, 2008, Munich: Beck/Hart, pp 671–672, margin 4 (‘Tallgren and Coracini’).

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The emerging meaning of the ne bis in idem principle as a fundamental right of the accused In the traditional perspective, ne bis in idem is – first of all – a criterion for allocating criminal jurisdiction. It provides an answer to the following question: which judge is the most suitable (either at the international or at the national level) to try the single perpetrator of an international crime?2 Immi Tallgren and Astrid Coracini, for example, explicitly affirm: when examined with regard to international criminal jurisdictions, the bis in idem situation reflects a more general confrontation between domestic and international competencies . . . The principle can be viewed as the last safeguard in allocating the tasks of national and international criminal justice . . . The explicit rationale is to avoid impunity, as stated in the Preamble of the ICC Statute, for example.3 However, through the passage from the ICT Statutes to the ICC Statute, the rationale of ne bis in idem as a fundamental human right has acquired increasing relevance. In order to achieve such a conclusion, two main arguments deserve consideration. First, from a textual point of view, in regulating the upward ne bis in idem, the ICC Statute refers to the term ‘conduct’ instead of ‘acts constituting serious violations of international humanitarian law’. Second, the principle has received a different collocation within the ICC Statute when compared to the Statutes of the ICTs. As far as the textual argument is concerned, Article 20(3) of the ICC Statute reads as follows: ‘No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct’ (emphasis added), while Articles 10(2) of the ICTY Statute and 9(2) of the ICTR Statute provide that ‘A person who has been tried by a national court for acts constituting serious violations of international humanitarian law may be subsequently tried by the International Tribunal’ (emphasis added). The use of different words to indicate the idem requirement corresponds – in our view – with an increasing ‘protective’ and ‘liberal’ value of the principle. The term ‘conduct’ is much

2 For the different rationales of ne bis in idem, see José L de la Cuesta, ‘Concurrent National and International Jurisdiction and the Principle “ne bis in idem” ’ (2002) 73 Revue Internationale de Droit Penal 710; Christine van den Wyngaert and Guy Stessens, ‘The International non bis in idem Principle: Resolving Some of the Unanswered Questions’ (1999) 48(4) International and Comparative Law Quarterly, 779, 781 et seq.; Gerard Conway, ‘Ne bis in idem in International Law’ (2003) 3(3) International Criminal Law Review 217, 222 et seq. 3 Tallgren and Coracini (n 1) 672. In a similar vein, Christine van den Wyngaert and Thomas Ongena, ‘Ne bis in idem Principle, Including the Issue of Amnesty’, in Antonio Cassese, Paola Gaeta and John RWD Jones, The Rome Statute of the International Criminal Court: A Commentary, 2002, Oxford: Oxford University Press, p 708 (‘Wyngaert and Ongena’).

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broader than ‘acts constituting serious violations of international humanitarian law’. Moreover, as we shall clarify, it refers to a factual approach and not to a normative one, as the ICC Statute prohibits retrying an individual for the same ‘fact’. As far as the systematic argument is concerned, the collocation of Articles 10 and 9 into the ICTY and ICTR Statutes, respectively, mirrors the intention of the drafters to consider ne bis in idem as a tool for solving jurisdictional conflicts. As a matter of fact, these norms are placed after Article 9 (ICTY Statute) and Article 8 (ICTR Statute) on concurrent jurisdiction (and on primacy), and before Article 11 (ICTY Statute) and Article 10 (ICTR Statute) concerning the structural organization of the tribunals. Such a placement merely reveals procedural rationale of ne bis in idem within the statutes of the ICTs. Conversely, the systematization of Article 20 into the ICC Statute is much more ambiguous. During the travaux préparatoires in Rome and in the previous committees, the correct placement of the provision concerning ne bis in idem was widely discussed.4 Finally, it was decided to insert it into the chapter dealing with jurisdiction, admissibility and applicable law. Article 20 is placed almost at the end of Part 2 and, in particular, just before the provision on sources of law to be applied by the Court judges (Article 21). On the one hand, the principle reveals itself as linked with the issues of complementarity, and, on the other hand, it is ‘physically’ close to the Article defining the law to be applied during ICC trials. As a consequence, ne bis in idem in the ICC Statute would have a double function: following its traditional aim, it would be a way of choosing the best adjudicating level to carry out the trial, related to the issues of jurisdiction and admissibility of situations and cases before the Court. In a more innovative way, by defining the choice of the forum, it would also define the applicable law, amounting to a basic international human right. Indeed, by scrutinizing the whole of the (global and regional) treaties dealing with human rights and explicitly taking into account ne bis in idem principle, one may cite Article 4 of the Seventh Additional Protocol of the European Convention on Human Rights,5 Article 14(7) of the International

4 It was debated whether to consider ne bis in idem as a general principle of criminal law, part of the procedural rules or part of the jurisdictional mechanism of the ICC. The 1994 ILC Draft Statute had placed its Article 42 on ne bis in idem in Part 5, regarding the Trial. The 1996 Preparatory Committee listed the principle as Article D under Part 3-bis, concerning General Principles of Criminal Law. The provision was finally moved to its current position, Part 2, on Jurisdiction, Admissibility and Applicable Law, thanks to the so-called Zutphen Draft. See Tallgren and Coracini (n 1) 680–682, for a summary of the preparatory development of the principle. See also Per Saland, ‘International criminal law principles’, in Roy SK Lee, The International Criminal Court: The Making of the Rome Statute, 1999, Alphen aan den Rijn: Kluwer Law International, p 216. 5 This disposition explicitly stipulates that conventional protection is offered as far as proceedings in the same State are concerned. As to the European Court of Human Rights case law on ne bis in idem, see the cases of Zolotukhin v Russia, App no 14939/03 (ECtHR, 10 February 2009); Fred Marguš v Croatia, App no 4455/10 (ECtHR, 13 November 2012); Grande Stevens v Italy, App No 18640, 18647, 18663, 18668, 18698/10 (ECtHR, 4 March 2014).

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Covenant on Civil and Political Rights and Article 50 of the 2000 Charter of Fundamental Rights of the European Union6 (which has since become binding within European Union after the Treaty of Lisbon).7 All these provisions could be cited as sources of applicable international law under Article 21 of the ICC Statute. Looking at this neglected rationale of ne bis in idem in international criminal law, it would be possible to frame the principle as a right of the accused, protecting him or her from further trial.

The ‘upward’ ne bis in idem before the ad hoc tribunals: ‘Ordinary offences’ are not an obstacle for a new trial As already mentioned, the so-called ‘upward’ face (in other words, from the State to the international judge) of the principle was enshrined for the first time in the law of international criminal tribunals (let aside some historical precedents),8 specifically in Articles 10(2) of the ICTY Statute and 9(2) of the ICTR Statute. Both statutory norms read: A person who has been tried by a national court for acts constituting serious violations of international humanitarian law may be subsequently tried by the International Tribunal only if: (a) the act for which he or she was tried was characterized as an ordinary crime; or (b) the national court proceedings were not impartial or independent, were designed to shield the accused

6 For a new and original interpretation of this norm, see Donato Vozza, ‘Verso un nuovo “volto” del ne bis in idem internazionale nell’Unione europea?’ (2010) 2 Rivista trimestrale di Diritto Penale Contemporaneo. 7 Ne bis in idem principle is normally deemed suitable only within the same jurisdiction. Even if provided by many international sources (like the ECHR Protocol or the Covenant), the ‘internal’ or ‘domestic’ face of the principle is the one that really prevails. Four main exceptions, at an international level, to the sole domestic application of the principle are contemplated by: 1) International Convention for the Suppression of the Circulation of and Traffic in Obscene Publications, signed in Geneva on 12 September 1923, Article 2; 2) SOFA Agreements and in particular the Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces, signed in London on 19 June 1951, Article VII, para 8; 3) Single Convention on Narcotic Drugs, signed in New York on 30 March 1961, Article 36; and 4) Convention on Psychotropic Substances, signed in Vienna on 21 February 1971, Article 22. 8 Obviously excluding the several draft statutes by the ILC (especially the 1993 and 1994 versions), which have never entered into force, and the statutes of the military tribunals set up in Nuremberg and Tokyo. Article 11 of the Nuremberg Charter explicitly authorized retrials and additional punishment of individuals already convicted by the international military tribunal due to their membership in a criminal group or organization for any other crime. See Tallgren and Coracini (n 1) 678, margin 14. In the trial against the German jurists, set up pursuant to Control Council Law No 10, it was criticized that a case could be ‘again tried in violation of the fundamental principles of justice that no man should be tried twice for the same offence’; TWC before the Nurnberg Military Tribunals under Control Council Law No 10, Vol III, 1147–1148 (1951).

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Idem is intended here with a ‘normative’ or ‘juridical’ characterization. The drafters of the Statutes of the ICTs used the terms ‘acts constituting serious violations of international humanitarian law’ instead of ‘conduct’ or ‘punishable acts’. It is only if the conduct for which the accused has been acquitted or convicted on the national level corresponds to a serious violation of international humanitarian law that a second trial before the relevant international criminal tribunal is prohibited. To preclude the second trial (which would correctly qualify the criminal conduct as an international offence) and, ultimately, to give effect to the underlying aim of ‘ending impunity’, ne bis in idem only applies when the individual has been previously acquitted or convicted for internationally labelled criminal acts. The same choice, as to a ‘normative’ approach of the idem condition, was subsequently made by the drafters of the 1996 Draft Code on Crimes against Peace and Security of Mankind. Article 12(2)(a) of the Draft Code envisages the upward ne bis in idem and reads: ‘An individual may not be tried again for a crime of which he has been finally convicted or acquitted by a national court except in some specific cases.’ Subparagraphs (a)(i) and (ii) provide the exceptions to the general prohibition of a second trial before an international criminal court or tribunal after a final acquittal or conviction by a domestic court. Particularly interesting for our discussion is the first exception found in subparagraph (a)(i). Here the norm admits a second trial before the international court when the act for which the person has been tried before the national court was characterized as an ordinary offence. This exception to the ne bis in idem principle perfectly overlaps with the ones provided by Articles 10(2)(a) and 9(2)(a) of the ICTY and ICTR Statutes.10

9 The entire Articles provide: ‘1. No person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the International Tribunal. 2. A person who has been tried by a national court for acts constituting serious violations of international humanitarian law may be subsequently tried by the International Tribunal only if: (a) the act for which he or she was tried was characterized as an ordinary crime; or (b) the national court proceedings were not impartial or independent, were designed to shield the accused from international criminal responsibility, or the case was not diligently prosecuted. 3. In considering the penalty to be imposed on a person convicted of a crime under the present Statute, the International Tribunal shall take into account the extent to which any penalty imposed by a national court on the same person for the same act has already been served.’ 10 The Statutes of the ICTs were adopted in 1993 and 1994 by the UN Security Council and therefore preceded the drafting of the 1996 Code, which never came into force. It can also be asserted that Articles 10 and 9 of the ICTY and ICTR Statutes resemble the corresponding provisions in the 1993 and 1994 ILC Draft Codes, thereby inspiring Article 12 of the 1996 ILC Draft Code, as well as Article 9 of the Statute of the SCSL which mirrored the ad hoc tribunals’ norms on ne bis in idem cited above. Vice versa, Section 11 of the Statute of the Special Panels with exclusive jurisdiction over serious criminal offences in East Timor is based on Article 20 of the Rome Statute.

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In conclusion, if a domestic court renders a judgment relating to conduct that does not qualify as an ‘international crime’, the principle cannot be invoked before the ad hoc international criminal tribunals (Articles 10(2)(a) of the ICTY and 9(2) (a) of the ICTR Statute). The legal reasoning behind such a decision does not exclusively relate to the principle of primacy, as opposed to the principle of complementarity. It is also linked to a precise conceptualization, enshrined in the ad hoc tribunals statutes, concerning the intimate diversity of international offences, essentially based upon the interests protected through their criminalization, vis-à-vis ordinary offences.11 Particularly relevant for legitimizing the choice of a ‘normative’ approach for the idem requirement is the praxis of referrals to national jurisdictions, set in motion by the ad hoc international criminal tribunals.12 One may think about the paradigmatic example of the Bagaragaza case before the ICTR.13 In that case, Norway requested that the Tribunal refer the case against the accused pursuant to Rule 11-bis of the Tribunal Rules of Procedure and Evidence. The judges refused to refer the case, since the relevant Norwegian domestic legislation did not provide for international crimes. In the Trial Chamber decision, the judges precisely held that: . . . the crimes alleged – genocide, conspiracy to commit genocide and complicity in genocide – are significantly different in terms of their elements and their gravity from the crime of homicide, the basis upon which the Kingdom of Norway states that charges may be laid against the Accused under its domestic law . . . Consequently, Michel Bagaragaza’s alleged criminal acts cannot be given their full legal qualification under Norwegian criminal law, and the request for the referral to the Kingdom of Norway falls to be dismissed.14 In the very same case, the ICTR Appeals Chamber added that ‘the protected legal values are different’ (emphasis added). The penalization of genocide protects

11 As to the difference between international and domestic legal qualifications of the criminal conducts, as far as the nature of the interests safeguarded is concerned, see e.g. Jann K Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions, 2008, Oxford: Oxford University Press, p 122 (‘Kleffner’). 12 As to the absence in the ne bis in idem principle, as codified by the ad hoc tribunals statutes and jurisprudence, of a ‘human right of the accused’ rationale, see Diane Bernard, ‘Ne bis in idem — Protector of Defendants’ Rights or Jurisdictional Pointsman?’(2011) 9(4) Journal of International Criminal Justice 863, 867–870. 13 Prosecutor v Michel Bagaragaza, ICTR-2005-86-R11bis, Decision on the Prosecution Motion for Referral to the Kingdom of Norway, Trial Chamber III, 19 May 2006 (‘Decision on the Prosecution Motion’). The judgment is also cited in Kleffner (n 11) 122. See also, for court practice, Prosecutor v Bagosora, ICTR-96-7-D, Decision on the Application by the Prosecutor for a Formal Request for Deferral, Trial Chamber I, 17 May 1996; Prosecutor v Musema, ICTR-96-5-D, Decision on the Formal Request for Deferral presented by the Prosecutor, Trial Chamber I, 12 March 1996. Cf. Wyngaert and Ongena (n 3) 719. 14 Decision on the Prosecution Motion (n 13), para 16.

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specifically defined groups, whereas the penalization of homicide protects individual lives.15 As a consequence, three differential factors can be used to trace the gap between an international crime and an ordinary offence: 1 2 3

constitutive elements; gravity (these two factors are highlighted by the ICTR Trial Chamber); and diversity of the juridical interests presided (this factor was cited by the ICTR Appeals Chamber).

The intention of the drafters of Articles 10 of the ICTY Statute and 9 of the ICTR Statute was to prevent perpetrators of acts constituting serious violations of humanitarian law from escaping international justice by qualifying their conduct as ordinary crimes. The aim was to avoid frustration of the very rationale underpinning the foundation of UN ad hoc tribunals: the prosecution and punishment of persons most responsible.

The ‘upward’ ne bis in idem before the ICC: Is the second trial absolutely barred? Shifting our focus to the ICC Statute, one notes that Article 20(3)16 disciplines the ‘upward’ ne bis in idem in contrast with the ‘downward’ one, contemplated instead by Article 20(2).17 When read together, Articles 17(1)(c)18 and 20(3) of the ICC Statute appear to envisage situations in which a trial is concluded for the same ‘conduct’ before a court other than the ICC. The term ‘conduct’ is radically different from the language used in the Statutes of the ICTs, both referring – as we said – to ‘acts constituting serious violations of international humanitarian law’. By using the words ‘same conduct’, the ICC Statute drafters seem to have opted for a ‘factual’ or ‘naturalistic’ approach in identifying the idem requirement: what is important is the ‘conduct’ for which the accused was tried, not the ‘label’ (as an

15 Prosecutor v Michel Bagaragaza, ICTR-2005-86-AR11bis, Decision on Rule 11bis Appeal, Appeals Chamber, 30 August 2006, para 17. 16 Article 20 (Ne bis in idem) of the ICC Statute reads: ‘3. No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice’ (emphasis added). 17 Article 20 (Ne bis in idem) of the ICC Statute reads: ‘2. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court’ (emphasis added). 18 Article 17 (Issues of admissibility) of the ICC Statute reads: ‘1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where . . . (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20 paragraph 3’ (emphasis added).

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ordinary offence or an international crime) used before domestic courts during the first trial.19 Bis in idem is prohibited before the ICC not only when the domestic (or, more generally, the other) court has tried the individual for a crime within the jurisdiction of the Court, but also when the first judgment was rendered for an ordinary offence.20 This interpretation is not uncontroversial, however. El Zeidy has challenged this position. He propounds for a reading of Article 20(3) allowing a second trial before the ICC when the domestic courts have characterized the facts as ordinary offences and not as international crimes proscribed within the Statute.21 El Zeidy concludes in favour of a ‘normative’ interpretation of the idem requirement in the upward ne bis in idem also before the ICC. El Zeidy bases his thesis upon two arguments. First, Article 20(3) of the ICC Statute refers to ‘conduct also proscribed under articles 6, 7 or 8’. Given that these norms only contemplate the crime of genocide, crimes against humanity and war crimes, the conduct charged and tried in the first (national) trial must also be listed within these specific provisions to preclude a second trial before the Court.22 Second, El Zeidy asserts that the Court cannot exercise jurisdiction over ordinary crimes. Article 20(3) regards ‘crimes within the jurisdiction of the Court’23 and Article 22(1) stipulates that ‘a person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court’. The distinguished author concludes by stating that reading the two norms together implies that the Court is not empowered to consider crimes labelled as ‘ordinary’ and, as such, cannot exercise jurisdiction over them.24 In our view, several arguments militate against such a thesis. On the one side, a literal reading of the word ‘conduct’ within Article 20(3) must prevail: indeed, the term ‘conduct’ appears for the very first time right in the ICC Statute. A provision identical to those contained in Articles 10(2)(a) of the ICTY Statute and 9(2)(a) of

19 Kleffner (n 11) 119–120, at 120 in particular: ‘The reference to “conduct” as opposed to “crimes” seems to indicate that the classification of such conduct as ordinary crimes under domestic law . . . is not sufficient to make Article 20(3) applicable and thus does not allow for a new trial before the ICC.’ See also Markus Benzing, ‘The Complementarity Regime for the International Criminal Court: International Criminal Justice between State Sovereignty and the Fight against Impunity’ (2003) 7 Max Planck United Nations Yearbook 591, 614–617; Florian Razesberger, The International Criminal Court – The Principle of Complementarity, 2006, Bern: Peter Lang, pp 153–155. 20 One may think about ‘intentional murder’ instead of murder as a crime against humanity or ‘grievous bodily harm’ or ‘assault’ instead of torture as a crime against humanity. 21 Mohamed El Zeidy, ‘The Principle of Complementarity: A New Machinery to Implement International Criminal Law’ (2002) 23 Michigan Journal of International Law 869, 933–935 (‘El Zeidy 2002’). 22 Ibid, 934. 23 It is worth noting that the words ‘crimes within the jurisdiction of the Court’ are used only in para 1 of Article 20 (as to ne bis in idem applied within the court, concerning a relation among trials all ‘internal’ to the ICC) and not in para 3. 24 El Zeidy 2002 (n 21) 934–935.

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the ICTR Statute is absent from the ICC Statute. These two last norms explicitly allow for a second trial before the ICTs if ‘the act for which (the accused) was tried (before the domestic court) was characterized as an ordinary crime’. As a consequence, the separation between the Statutes of the ICTs on the one hand and the ICC Statute on the other, with regard to the upward ne bis in idem, is crystal clear.25 On the other side, such an interpretation was confirmed in the Hadzihasanovic judgment handed down by ICTY Trial Chamber, where the trial judges included a brief passage on Article 20(3) of the ICC Statute. Specifically, the judges held that: unlike the prevailing practice at the Tribunal and at the ICTR, the ICC Statute provides that, in its relations with national jurisdictions, the principle of ne bis in idem will block a second prosecution if an Accused has already been tried in a national court for conduct also proscribed under the Statute. In so doing, the Statute of the International Criminal Court leaves the characterization of the crimes open to national courts. [emphasis added]26 These arguments contribute to strengthening the idea that the word ‘conduct’ merely refers to factual dimension. The new formulation of the idem requirement furthers the nature of the ne bis in idem principle in international criminal law as firstly a fundamental safeguard for individuals, and not only as a threshold to measure the sovereignty of States opposed to the sphere of action of international criminal courts. Thanks to this interpretation, the risk of trying an accused more than once before different jurisdictions may be strongly reduced.27 The affirmation by which no new trial before the ICC is permissible when the State has decided to try the same individual for a domestic offence is also supported

25 See Kleffner (n 11) 120–121. Kleffner also adds a teleological argument in favour of the ‘naturalistic’ interpretation of the word ‘conduct’ in Article 20(3). 26 Prosecutor v Enver Hadzihasanovic Amir Kubura, IT-01-47-T, Judgment, Trial Chamber II, 15 March 2006, para 257. 27 A position contrary to this whole theory is propounded by William Schabas, An Introduction to the International Criminal Court, 2001, Cambridge: Cambridge University Press, p 70. The distinguished scholar affirms that ‘trial for an underlying offence tends to trivialize the crime and contribute to revisionism or negationism. Many who violate human rights may be willing to accept the fact that they have committed murder or assault, but will refuse to admit the more grievous crimes of genocide or crimes against humanity. Yet murder is a very serious crime in all justice systems and is generally sanctioned by the most severe penalties’ (italics added). Therefore, a State could deliberately decide to charge an individual with ordinary crime, such a choice could hide ‘negationism’. This choice could also be dictated by some demand of proof dictated by prosecutorial strategies: accusations founded on an ordinary crime may be easier to demonstrate in the courtroom than those based on international crimes. Nevertheless, could either the political aim of a State (supporting negationism or revisionism) or the choices made by prosecutors affect the right of a person not to be subject to the stigmatization of criminal charges for the same fact more than once?

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by another argument, represented by the principle of complementarity, which highlights the transition from the ad hoc tribunals to the ICC. One of the rationales underlying the complementarity principle is that a certain level of ‘deference’ has to be afforded to national criminal jurisdictions.28 This means that the State plays a significant, if not primary, role in deciding how to charge criminal conduct, providing that it ends up with impunity for the most serious crimes envisaged by the Statute. As a corollary of this vision, a trial at the domestic level for an ordinary offence would not be a valid reason to trigger the complementary jurisdiction of the Court. In more technical terms, the rationale of the complementarity principle seems, as a first consequence, not to allow the Prosecutor to request (and the judges to issue) a declaration of admissibility, if the Prosecutor merely demonstrates that a national court has only tried the same individual for an ordinary offence. As a second consequence, the choice of a domestic court not to prosecute and try an accused for an international crime can never constitute the sole basis for a challenge by the Prosecutor against the inadmissibility of the case, under Article 19 of the Statute. In conclusion, the factual interpretation of the word ‘conduct’ in the ICC upward ne bis in idem is preferable since it is founded upon literal, jurisprudential and teleological arguments, and cannot be contradicted through different perspectives. The main corollary of the factual interpretation is, as mentioned above, the nature of ne bis in idem as a fundamental right of the accused.

Conditions to derogate the upward ne bis in idem in the Statutes of the ICTs and ICC Statutes A derogation regime to the ne bis in idem rule exists with regard to the ‘upward’ hypothesis. When a State has finally tried an accused, the ICTs as well as the ICC must control additional parameters before being entitled to frustrate ne bis in idem rule and retry the individual. Three points in this regard need to be addressed: 1 2

3

the ‘alternative nature’ or the ‘cumulativeness’ of the relevant conditions to allow a retrial; a useful comparison between Article 20(3) and Article 17(2) on ‘unwillingness’ of the State (to be proven by the Prosecutor in order for the case to be declared admissible); and the meaning and the proof of the ‘shielding’ condition.

Preliminarily, the normative discipline is the following. With respect to the ICTs, alternative conditions support a retrial: (a) the act for which the individual was tried (before the national court) was characterized as an

28 In a similar vein, see Mohamed El Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development and Practice, 2008, Leiden: Martinus Nijhoff.

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ordinary crime; or (b) the national court proceedings were not impartial or independent, were designed to shield the accused from international criminal responsibility, or the case was not diligently prosecuted. With regard to the ICC, the conditions to consent a bis in idem are contemplated by Article 20(3), which reads as follows: No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice. [emphasis added] With respect to the first point indicated above – concerning the ‘alternative nature’ or the ‘cumulativeness’ of the conditions to allow a retrial – the difference among the Statutes lies on a slightly different lexical framework of the relevant provisions. For the ICTY and ICTR, the drafters decided to allow the tribunals to retry an individual firstly when ‘the act for which (the accused) was tried was characterized as an ordinary crime’. Furthermore, there is the disjunction ‘or’ between the phrase ‘the national court proceedings were not impartial or independent, were designed to shield the accused from international criminal responsibility’ and the phrase ‘the case was not diligently prosecuted’. There seems to be an alternative: the Prosecutor needs to prove just one of the three mentioned conditions. Conversely, Article 20(3) of the ICC Statute distinguishes between the ‘shielding’ (found in Article 20(3)(a)) and the other conditions for retrial before the Court (20(3)(b)). Moreover, the conjunction ‘and’ links the phrase ‘(the proceedings) were not conducted independently or impartially in accordance with the norms of due process recognized by international law’ and the phrase ‘were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice’ in subparagraph (b).29 There does not seem to be an alternative between the last two conditions. Notwithstanding the shielding, partiality of the national proceedings and inconsistence with the intent to bring the perpetrator to justice are two negative requirements that must be met to permit a retrial before the Court. In sum, while before the ICTs the conditions appear to be alternative in nature, before the ICC, excluding the case of shielding, the conditions are articulated in a cumulative manner.

29 As to the meaning of the word ‘proceedings’ within the context of Article 20(3)(b), see El Zeidy 2002 (n 21) 935–940.

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The burden of proof to obtain a declaration of admissibility before the Court after the domestic trial is particularly strong: such a choice reveals once again the rationale of complementarity and a consequent favour for the proceedings held before national courts. Either the Prosecutor manages to demonstrate the purpose of shielding the accused, or she proves both the non-independence and the inconsistency with the aim of pursuing justice. Moreover, the independence or impartiality must be assessed by taking the international norms governing the rules of due process into account. As to the second point, Article 20(3)(a) and (b) resemble, to a certain extent, Article 17(2),30 which relates to the criteria of unwillingness with the aim of assessing the admissibility of a case. A brief comparison between these two provisions warrants some discussion. The reference to the principles of due process recognized by international law is made in the chapeau of Article 17(2): it means that all three criteria to prove unwillingness (Article 17(2)(a), (b) and (c)) must be verified having regard to principles of due process.31 Additionally, the reference to ‘norms of due process recognized by international law’ is envisaged only by Article 20(3)(b), so as to verify the absence of independence or impartiality at the domestic trial level. An additional difference refers with respect to the distinction between ‘principles’ and ‘norms’ of due process envisaged by the two provisions. The term principles is evidently broader than the term norms, as the latter is a concrete specification of the former. To verify that a previous domestic proceeding was not impartial or independent, in order to obtain a retrial before the Court (Article 20(3)(b)), the Prosecutor must demonstrate an infringement of a specific norm (and not of a generic principle) of international law regarding due process and in particular concerning the impartiality or independence of criminal proceedings. The burden of proof in this case is clearly higher than the one envisaged by Article 17(2). Here it is evident how the balance of complementarity tips again in favour of States’ sovereignty. To win the ‘admissibility battle’ before the Court, when a previous proceeding has taken place at the national level, the Prosecutor has to satisfy his or her burden of proof with respect to each and every condition: a) the negative requirement of independence or impartiality; b) the inconsistency of the proceedings with the bona fide intent to bring the perpetrator to justice; and,

30 The norm reads: ‘In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5; (b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.’ 31 For a discussion on which constitutes ‘principles of due process recognized by international law’, as far as Article 17(2) and unwillingness is concerned, see Kleffner (n 11) 127–134.

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c) the existence of a specific norm of international law that highlights the conflict between the abstract rule of impartiality and independence in criminal procedure and the trial conducted in the single instance. This strict discipline is clearly not only evidence of the strong presence of the complementarity principle as a ‘sword’ in States’ hands but also, in our view, an additional argument for a renewed rationale of ne bis in idem from the upward perspective. To put the domestic trial aside, the Prosecutor bears a substantial burden of proof, one higher than that which exists before the ICTs, and as a consequence the right of an accused not to be tried twice is less likely to be violated. Concerning the last point, with reference to the shielding condition (Article 20(3) (a)), we consider yet again the question of whether the domestic ‘shielding’ of an accused exists when the State fails to try the accused for international crimes and instead decides to proceed only with ordinary criminal charges. One may think about a case where a State decides to try an individual for assault and not for genocide.32 Does it suffice to meet the ‘shielding’ requirement and thereby render the retrial admissible before the Court? By simply looking at the words ‘for crimes within the jurisdiction of the Court’, it could be argued that because the State had the opportunity to charge the accused with the crime of genocide and nevertheless opted for the ordinary offence of assault, the ICC would be justified in retrying said accused for a crime ‘within the jurisdiction of the Court’. Trials (and judgments) for ordinary offences, instead of crimes ‘within the jurisdiction of the Court’, may create a screen that protects the perpetrator from international criminal accountability. However, this assertion is hardly reconcilable with the text of Article 20(3)(a), which reads ‘for the purpose of shielding’ (emphasis added). There is a clear reference to a finalistic approach here. The State needs to have opted to bring charges for a common offence and not for an international crime, with the concrete and specific aim of shielding the accused from true prosecution. It is necessary to demonstrate the State’s purposeful orientation underlying its jurisdictional action. The norm places upon the Prosecutor the burden of proving the intention and objective of the domestic jurisdictional organs in carrying out such decisions. The ‘purpose of shielding’ shares the same rationale of paragraph (3)(b), referring to ‘sham proceedings’: namely the rationale pursuant to which domestic systems used ‘the façade of legal proceedings to frustrate the ends of justice’.33

32 El Zeidy 2002 (n 21) 931, note 265. 33 Michael A Newton, ‘Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court’ (2001) 167 Military Law Review 20, 58–59. See also ibid, 931. (El Zeidy affirms that ‘when a domestic court has already tried a case, the complementarity mechanism, reflected in the ne bis in idem article, points to a test whether the national trial proceedings were bona fide. Thus the national judgment bars a prosecution by the Court except in the case of sham or show proceedings’ (emphasis added).)

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An identical discipline for the ‘downward’ ne bis in idem before all three international criminal jurisdictions Contrary to the upward face, the downward variant (from the international tribunal to the State) of the principle is articulated in an identical way in all of the statutes. In all three cases (Articles 10(1) of the ICTY Statute, 9(1) of the ICTR Statute and 20(2) of the ICC Statute), when the Tribunal or the Court has already tried a defendant, to apply the downward ne bis in idem, thereby preventing the State from retrying the individual, it is necessary that the crime (and not just the conduct) charged is the same. As to the ‘idem’ requirement, Article 20(2), on the downward ne bis in idem, contains the reference to ‘a crime referred to in article 5’ (emphasis added). Both Articles 10(1) of the ICTY and 9(1) of the ICTR Statutes refer to ‘acts constituting serious violations of international humanitarian law under the present Statute’ (emphasis added). A literal interpretation of all three provisions entails that the State is free to reformulate the charge against the accused by simply changing the label of the offence, from international to domestic and ordinary. The following example is useful: an accused could be acquitted of the crime of genocide before the Court if the dolus specialis was not concretely proven by the Prosecutor. Subsequently, a State could proceed to retry the same person for the ordinary domestic offence of intentional murder, supposing that the voluntary causation of death was the underlying offence of which he or she was acquitted before the Court. Here the legal qualification of the offence is different even if the facts and the personal conduct (together with the death and the causal link) were identical. If a diverse meaning has to be conceived between the terms ‘conduct’ and ‘crime’ used in the two separate paragraphs of Article 20, the conclusion is that a second trial for intentional murder, according to the example given, cannot be avoided.34 Some authors35 tried to prevent this danger of bis in idem, with the aim of better protecting the person against the abuse of a second trial. Some of them affirmed 34 In a similar vein, as long as in particular the ad hoc tribunals are concerned, see Cherif Bassiouni and Peter Manikas, The Law of the Criminal Tribunal for the Former Yugoslavia, 1996, Ardsley: Transnational Publishers, p 319; Dionysios Spinellis, ‘The ne bis in idem principle in “global” instruments’ (2002) 73 Revue Internationale de Droit Penal 1149–1150. In his report on the creation of the ICTY, the SecretaryGeneral held that ‘(a)ccording to the principle of non-bis-in-idem, a person shall not be tried twice for the same crime’ (Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808, U.N. Doc S/25704, 3 May 1994, para 66). The use of the words ‘for the same crime’ allegedly evokes a narrow (‘normative’) interpretation of the idem requirement, as to the ‘same offence’ and not to the ‘idem factum’ or the ‘same conduct’. Even Rule 13 of the Rules of Procedure and Evidence of the Tribunal relates to criminal proceedings ‘instituted against a person before a court of any State for a crime for which that person has already been tried by the Tribunal’ (emphasis added). 35 For a wider interpretation looking at the ‘historic’ or ‘factual’ approach even for the downward ne bis in idem, see Wolfgang Schomburg, ‘Konkurrierende nationale und internationale Strafgerichtsbarkeit und der Grundsatz “Ne bis in idem”’ in Jorg Arnold, Björn Burkhardt, Walter Gropp, Günter Heine, Hans-Georg Koch, Otto Lagodny, Walter Perron and Susanne Walther (eds), Fetschrift fur Albin Eser, 2005, Munich: C. H. Beck, 839–840; Eva Scheschonka, Der Grundsatz ne bis in idem im Volkerstraftrecht unter Besonderer Berucksichtigung der Kodifizierung durch das ICTY-Statut und das IStGH-Statut, 2004, Berlin: Lit-Verlag, p 224.

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that, in the example provided, dolus specialis does not distinguish the international crime of genocide from the national offence of homicide if the fact is the same.36 Dolus specialis required for genocide is not something extraneous from the conduct of the accused: it is part of the offence and as such it cannot be separated from the fact, representing instead a sort of mirror of the mens rea of the accused already reflected in the objective element of the crime, or actus reus. A second trial for homicide before a domestic court would then be impermissible, because there would be a bis even in this case, providing the overlapping coincidence not only of the fact but also of the crime (in other words, the ‘normative label’ of the fact). In sum, dolus specialis is not an autonomous element, sufficient in and of itself to render the juridical label independent from that of ordinary homicide, with the full application of ne bis in idem prohibition. Accepting such an assertion is, however, very difficult. Indeed the objection of dolus specialis as part of actus reus could be true for the crime of genocide, but certainly loses its force as far as chapeau elements of international crimes are concerned. One may think about the requirement of ‘armed conflict’ for war crimes and ‘widespread and systematic attack’ for crimes against humanity. In these last cases, the fact charged against the accused remains the same, but the crime undoubtedly changes, because chapeau elements are independent and extraneous from the individual conduct. Therefore, a previous conviction or acquittal by the ICC for the charge of murder as a war crime or a crime against humanity (supposing, for instance, that the acquittal was motivated with the absence of a contextual internal armed conflict or of a proven widespread or systematic attack against the civilian population) cannot prevent a State from instituting proceedings for ordinary murder. In this example, the conduct of killing remains identical, while the ‘crime’ for which the same person is accused again surely changes. It is true that this line of reasoning leads to the frustration of the right of the accused not to be tried twice for the same fact. Undoubtedly, the rationale of ne bis in idem as a fundamental personal guarantee loses its force when the downward face of the principle is at stake, notwithstanding if the accused is charged and tried before an ad hoc tribunal or before the International Criminal Court. Admittedly, no change has been made for the downward dimension of the principle from the drafting of the 1993 and 1994 Statutes of the ICTs to the 1998 drafting of the ICC Statute. The rationale of the principle remains the traditional one – in other words, a procedural key for allocating jurisdiction – with an evident preference for the domestic jurisdictions, which may retry an individual even when the international criminal jurisdiction has already issued a final judgment with regard to the same person and to the same facts. In this case, complementarity as the ‘sword’

36 See, in a similar vein, Susi Campanella, ‘Il ne bis in idem nella giustizia internazionale penale: riflessioni su un principio in itinere’, in Antonio Cassese, Mario Chiavario and Giovannangelo De Francesco, Problemi attuali della giustizia penale internazionale, 2005, Turin: Giappichelli Editore, pp 266–270.

The right not to be tried twice 77 in States’ hands has prevailed over the principle of ne bis in idem as a fundamental human right of the accused, and this frankly appears truly significant at least when the first trial before the international criminal tribunal or court has ended with a conviction.

Conclusion The rationale of ne bis in idem in international criminal law needs to be revisited, at least as long as the upward dimension (in other words, with a first trial before the domestic, or generally another, court) of the principle within the ICC Statute (Article 20(3)) is concerned. The principle is not exclusively a tool for the proper allocation of jurisdiction when an international offence is at issue. Ne bis in idem has a clear and pre-eminent dimension: an accused has a fundamental right not to be tried twice. This is likely to be confirmed by the reformulation of the idem requirement in Article 20(3) of the ICC Statute. In contrast to its ad hoc tribunals’ statutory counterparts, idem condition is framed as a ‘conduct’ and not as an ‘act constituting an infraction of international humanitarian law’ (in other words, an international offence) or as a ‘crime’. It so holds a naturalistic (or factual) connotation, in the ICC Statute, instead of a normative fashion, as is the case with the ICTs. Textual, jurisprudential and teleological arguments support such a thesis. The last of these arguments implies, as a corollary, an arising conceptualization of ne bis in idem as a right of the accused – he or she is indeed safer than before from the risk of being subjected to a second trial before an international court. This new interpretation of the principle is likely to be confirmed given the burden of proof lying on the Prosecutor of the ICC, and the onus of demonstrating the relevant conditions to obtain a retrial (including the State’s ‘purpose of shielding’ the accused through the criminal trial) is indeed stronger then the burden established by the Statutes of the ICTs. As far as the downward dimension is concerned, as seen above, the right to ne bis in idem is much more difficult to recognize. The application of the principle depends on the identity of the ‘crime’, and not of the mere ‘conduct’, charged at the domestic level after the trial by the international court or tribunal. In sum, the principle here is viewed as a relative one: the rights of the accused have probably been sacrificed in the name of the sovereign powers of the States. The result is, in truth, too problematic to be accepted, especially when a conviction has been handed down at the end of the first trial. In conclusion, it is all a matter of how the principle rationales are interpreted. However, the discourse on the rationales of the principle needs to be addressed through a comprehensive approach. We should overcome the differentiation between the different faces of ne bis in idem, trying to highlight and enforce its extent of guarantee for the person against the abuse of a second proceeding also at the supranational level. Time has come for an overall evaluation of ne bis in idem, with its intimate meanings, no longer with an exclusive reference to the domestic plane but rather with an expanded perspective and an open horizon, towards a truly international criminal perspective.

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Bibliography Bassiouni, Cherif and Manikas, Peter, The Law of the Criminal Tribunal for the Former Yugoslavia, 1996, Ardsley: Transnational Publishers. Benzing, Markus, ‘The Complementarity Regime for the International Criminal Court: International Criminal Justice between State Sovereignty and the Fight against Impunity’ (2003) 7 Max Planck United Nations Yearbook 591. Bernard, Diane, ‘Ne bis in idem — Protector of Defendants’ Rights or Jurisdictional Pointsman?’ (2011) 9(4) Journal of International Criminal Justice 863. Campanella, Susi, ‘Il ne bis in idem nella giustizia internazionale penale: riflessioni su un principio in itinere’, in Cassese, Antonio, Chiavario, Mario and De Francesco, Giovannangelo, Problemi attuali della giustizia penale internazionale, 2005, Turin: Giappichelli Editore, p 253. Conway, Gerard, ‘Ne bis in idem in International Law’ (2003) 3(3) International Criminal Law Review 217. De la Cuesta, José L, ‘Concurrent National and International Jurisdiction and the Principle “ne bis in idem” ’ (2002) 73 Revue Internationale de Droit Penal 710. El Zeidy, Mohamed, ‘The Principle of Complementarity: A New Machinery to Implement International Criminal Law’ (2002) 23 Michigan Journal of International Law 869. El Zeidy, Mohamed, The Principle of Complementarity in International Criminal Law: Origin, Development and Practice, 2008, Leiden: Martinus Nijhoff. Kleffner, Jann K, Complementarity in the Rome Statute and National Criminal Jurisdictions, 2008, Oxford: Oxford University Press. Newton, Michael A, ‘Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court’ (2001) 167 Military Law Review 20. Razesberger, Florian, The International Criminal Court – The Principle of Complementarity, 2006, Bern: Peter Lang. Saland, Per, ‘International criminal law principles’, in Lee, Roy SK, The International Criminal Court: The Making of the Rome Statute, 1999, Alphen aan den Rijn: Kluwer Law International, p 189. Schabas, William, An Introduction to the International Criminal Court, 2001, Cambridge: Cambridge University Press. Scheschonka, Eva, Der Grundsatz ne bis in idem im Volkerstraftrecht unter Besonderer Berucksichtigung der Kodifizierung durch das ICTY-Statut und das IStGH-Statut, 2004, Berlin: Lit-Verlag. Schomburg, Wolfgang, ‘Konkurrierende nationale und internationale Strafgerichtsbarkeit und der Grundsatz “Ne bis in idem”’, in Arnold, Jorg, Burkhardt, Björn, Gropp, Walter, Heine, Günter, Koch, Hans-Georg, Lagodny, Otto, Perron, Walter and Walther, Susanne (eds), Fetschrift fur Albin Eser, Munich: C. H. Beck, 2005, p 829. Spinellis, Dionysios, ‘The ne bis in idem principle in “global” instruments’ (2002) 73 Revue Internationale de Droit Penal 1149. Tallgren, Immi and Coracini, Astrid R, ‘Ne bis in idem’, in Triffterer, O, Commentary on the Rome Statute of the International Criminal Court, 2nd ed, 2008, Munich: Beck/Hart, p 669. Van den Wyngaert, Christine and Ongena, Thomas, ‘Ne bis in idem principle, including the issue of amnesty’, in Cassese, Antonio, Gaeta, Paola and Jones, John RWD, The Rome Statute of the International Criminal Court: A Commentary, 2002, Oxford: Oxford University Press, p 705. Van den Wyngaert, Christine and Stessens, Guy, ‘The International non bis in idem Principle: Resolving Some of the Unanswered Questions’ (1999) 48(4) International and Comparative Law Quarterly 779. Vozza, Donato, ‘Verso un nuovo “volto” del ne bis in idem internazionale nell’Unione europea?’ (2010) 2 Rivista trimestrale di Diritto Penale Contemporaneo.

4

Balancing rights of the accused with rights of victims before the International Criminal Court Morris A. Anyah

Introduction A unique feature of the Rome Statute of the ICC1 is its provision allowing victims to participate in proceedings before the Court in their own right as victims.2 Article 68(3) of the Statute mandates that where the personal interests of victims are affected, their views and concerns are to be presented and considered in appropriate stages of the proceedings, in a manner not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.3 The novelty of this provision is illustrated by the absence of similar provisions in the organic instruments of ad hoc international tribunals that pre-date the ICC, such as those for Rwanda,4 the former Yugoslavia5 and the International Military Tribunal at Nuremberg.6 The Statute thus ushered in a new era by affording victims of grave atrocities participatory rights that extend well beyond their traditional status as witnesses or observers in international criminal proceedings. With over a decade having passed since the Statute entered into force on 1 July 2002, it seems appropriate to take stock of how the participatory rights granted to victims have, in the practice and jurisprudence of the Court, been reconciled with the fundamental rights granted to the accused under the Statute. Review of the Court’s jurisprudence thus far confirms that criteria for balancing these competing rights are clearly discernible,

1 Rome Statute adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 17 July 1998, 2187 U.N.T.S. 90 (‘ICC Statute’). 2 See ICC Statute, Article 68(3). See also Prosecutor v William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11-460, Decision on Victims’ Representation and Participation, Trial Chamber V, 3 October 2012, para 26 (‘Ruto and Sang, 3 October 2012’). 3 ICC Statute, Article 68(3). 4 Statute of the International Criminal Tribunal for Rwanda, UN Sec. Council Res. 955, S/RES/955 (1994), 8 November 1994. 5 Statute of the International Criminal Tribunal for the former Yugoslavia (3 May 1993), UN Sec. Council Res. 827, S/RES/827 (1993), 25 May 1993, U.N. Doc. S/25704. 6 Charter of the International Military Tribunal, in Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945 – 1 October 1946, vol. I, pp 10–16, International Military Tribunal, Nuremberg 1947.

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with an evident concern regarding prejudice to the rights of the accused as a preeminent feature of the analysis. This chapter focuses on certain provisions of the Statute and the concomitant stage of the proceedings to which they apply, identifying those stages during which the tension between competing rights of victims and the accused are particularly heightened. It is argued that the overriding consideration when balancing competing rights ought to be a search for the truth and a fair and impartial trial (something broader than concern regarding prejudice to the rights of the accused), given that such an approach is consistent with envisaging theoretical and practical scenarios where effectuating the participatory rights of victims could equally serve to uphold the rights of the accused.

The pre-trial stage of the proceedings Victims’ applications to participate in proceedings Points of tension between rights granted to victims and those granted to the accused are evident from the earliest stages of proceedings before the Court, starting with the victim-application process. Rule 89(1) of the RPE requires victims who wish to present their views and concerns in a proceeding to apply in writing to the Registrar,7 who is then obliged to transmit the application to the relevant Chamber and provide copies to the Prosecution and Defence.8 They are both entitled to reply to the application,9 and the Chamber may reject the application on the basis of a request by either party, or on its own initiative, if it determines that the criteria of Article 68(3) have not been satisfied, or that the applicant is not a victim.10 There is no requirement that standard application forms be used in the application process,11 even though Regulation 86 of the Court prescribes the development and wide dissemination of such forms to individual and groups of victims, among others.12 Regulation 86 also prescribes the type of information that ought

7 Rules of Procedure and Evidence of the International Criminal Court, adopted by the Assembly of States Parties, First session, New York, 3–10 September 2002, ICC-ASP/1/3, as amended (‘Rules’). 8 Rule 89(1) of the Rules. See also Situation in the Democratic Republic of the Congo, ICC-01/04-73, Decision on Protective Measures Requested by Applicants 01/04-1/dp to 01/04-6/dp, Pre-trial Chamber I, 21 July 2005, 2 (‘Decision on Protective Measures Requested by Applicants’). 9 Decision on Protective Measures Requested by Applicants. 10 Rule 89(2) of the Rules. 11 See e.g. Situation in the Democratic Republic of the Congo, ICC-01/04-101-tEN-Corr, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, Pre-trial Chamber I, 17 January 2006, para 102. Cf. Situation in Darfur, Sudan, ICC-02/05-111-Corr, Corrigendum to Decision on the Applications for Participation in the Proceedings of Applicants a/0011/06 to a/0015/06, a/0021/07, a/0023/07 to a/0033/07 and a/0035/07 to a/0038/07, Pre-trial Chamber I, 14 December 2007, para 20. 12 Regulations of the Court, as adopted by the Judges of the Court on 26 May 2004, ICC-BD/01-0311, as amended through 2 November 2011 (‘Regulations’), Regulation 86. See Regulation 86(1).

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to be included in victims’ applications, regardless of whether the standard form or other application document is used.13 Importantly, Rule 89(1) is expressly subject to Article 68(1) of the Statute, which requires the Court to ‘take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses’.14 The manner in which this provision for protective measures is applied in practice – in other words, redactions by the Registry so as to expunge all information that might lead to the identification of victim-applicants – creates sufficient tension with the rights of the accused to warrant further examination.15 It is quite settled, in the jurisprudence of the court, that any information that could lead to the identification of a victim-applicant should be redacted from the application before disclosure to the Prosecution and the Defence.16 Thus, information regarding the name and address of the applicant, names of his or her parents, place and date of birth, tribe or ethnic group, occupation, features of the injury, loss or harm allegedly suffered which could identify the applicant, and the names of other victims or witnesses to the same incident are routinely subject to redaction.17 In recognizing the necessity for such redactions, Chambers of the Court engage in a weighing or balancing of relative interests between their obligation to provide for the protection and privacy of victims and witnesses18 on the one hand, and the right and ability of the Prosecution and the Defence to reply effectively to the applications (including objecting to the participation of particular victims or groups of victims) on the other.19 Some of the factors that the Chambers consider

13 Regulation 86(2) of the Regulations. 14 ICC Statute, Article 68(1). 15 See e.g. Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-1308, Decision inviting the parties’ observations on applications for participation, Trial Chamber I, 6 May 2008, paras 19–28 (‘Lubanga, 6 May 2008’); Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC-01/09-01/11-17, First Decision on Victims’ Participation in the Case, Pre-trial Chamber II, 30 March 2011, para 22 (‘Ruto, Kosgey and Sang, 30 March 2011’); and Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11-23, First Decision on Victims’ Participation in the Case, Pre-trial Chamber II, 30 March 2011, para 22 (‘Muthaura, Kenyatta and Ali, 30 March 2011’). 16 See Rule 89(1) of the Rules. See also Lubanga, 6 May 2008 (n 15), paras 19–30; and Prosecutor v Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, ICC-02/05-03/09-231, Decision on the Registry Report on six applications to participate in the proceedings, Trial Chamber IV, 17 October 2011, paras 31–37 (‘Banda and Jerbo, 17 October 2011’). 17 Lubanga, 6 May 2008 (n 15), paras 19–30; and Banda and Jerbo, 17 October 2011 (n 16), paras 31–37. 18 See e.g. ICC Statute, Articles 57(3)(c) and 68(1); and Rules 81(4), 86, and 89(1) of the Rules. 19 See Rules 89(1) and (2) of the Rules. See e.g. Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/ 06-1119, Decision on victims’ participation, Trial Chamber I, 18 January 2008, paras 127–131 (‘Lubanga, 18 January 2008’); Prosecutor v Jean-Pierre Bemba Gombo, ICC-01/05-01/08-807-Corr, Corrigendum to Decision on the participation of victims in the trial and on 86 applications by victims to participate in the proceedings, Trial Chamber III, 12 July 2010, paras 61–69 (‘Bemba, 12 July 2010’).

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include: the security risks being faced by the applicants;20 whether redactions are the only21 or most feasible22 measures available to protect the concerned applicants; the fundamental guarantee of a fair trial;23 the potential prejudice to the parties and other participants24 that the redactions and, consequently, anonymity of victims might create; and the nature of the stage of the proceedings during which applications are preliminarily assessed.25 The most significant counter-balancing factor that limits the scope of redactions (even in early stages of the proceedings) is arguably the ‘principle of proportionality’, which is rooted in the last sentence of Article 68(1), requiring that protective measures ‘not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial’.26 Thus, the Appeals Chamber has observed that protective measures should (i) restrict the rights of the suspect or accused only as far as is necessary and (ii) be put in place where they are the only sufficient and feasible measure.27 This prescription notwithstanding, and especially at the stage of the proceedings where a Chamber is merely undertaking a preliminary assessment on the merits of the applications,28 the balance tends to tilt in favour

20 Decision on Protective Measures Requested by Applicants (n 8) 4; Lubanga, 6 May 2008 (n 15), paras 19–30; and Lubanga, 18 January 2008 (n 19), paras 127–131; see also Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC-01/09-01/11-249, Decision on Victims’ Participation at the Confirmation of Charges Hearing and in the Related Proceedings, Pre-trial Chamber II, 5 August 2011, para 120 (‘Ruto, Kosgey and Sang, 5 August 2011’). 21 Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC-01/09-01/11-169, Decision on the Defence Requests in Relation to the Victims’ Applications for Participation in the Present Case, Pre-trial Chamber II, 8 July 2011, para 23 (‘Ruto, Kosgey and Sang, 8 July 2011’); Ruto, Kosgey and Sang, 5 August 2011 (n 20), para 113. 22 Lubanga, 6 May 2008 (n 15), para 24. 23 Lubanga, 18 January 2008 (n 19), para 131; Decision on Protective Measures Requested by Applicants (n 8) 4. 24 Lubanga, 18 January 2008 (n 19), para 131. 25 See e.g. Lubanga, 6 May 2008 (n 15), paras 19–30. 26 Lubanga, 6 May 2008 (n 15), para 25; Muthaura, Kenyatta and Ali, 30 March 2011 (n 15), para 22; and Ruto, Kosgey and Sang, 8 July 2011 (n 21), para 22; Ruto, Kosgey and Sang, 5 August 2011 (n 20), para 108. 27 Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-568 OA 3, Judgment on the prosecutor’s appeal against the decision of Pre-trial Chamber I entitled ‘Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81(2) and (4) of the Rules of Procedure and Evidence’, Appeals Chamber, 13 October 2006, para 37 (‘Lubanga, 13 October 2006’); Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-773 OA 5, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-trial Chamber I entitled ‘First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81’, Appeals Chamber, 14 December 2006, paras 33–34 (‘Lubanga, 14 December 2006’); Lubanga, 6 May 2008 (n 15), para 25. 28 See e.g. Lubanga, 6 May 2008 (n 15), paras 19–30; Banda and Jerbo, 17 October 2011 (n 16), paras 31–37; Prosecutor v Jean-Pierre Bemba Gombo, ICC-01/05-01/08-699, Decision defining the status of 54 victims who participated at the pre-trial stage and inviting the parties’ observations on applications for participation by 86 applicants, Trial Chamber III, 22 February 2010, paras 27, 33 (‘Bemba, 22 February 2010’); Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/0401/07-933-tENG, Decision on the treatment of applications for participation, Trial Chamber II,

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of victim-applicants and the redaction and non-disclosure of all identifying information to the defence. The following analysis is illustrative: . . . [I]n light of the specific nature, scope and purpose of the ruling on the victims’ applications for participation, the Single Judge is not persuaded that she shall restrict her analysis to the information provided by the applicants that has not been redacted in the version transmitted by the Registry to the parties.29 The Single Judge notes the provisions of articles 68(1) and 57(3)(c) of the Statute, which mandate the Court to take appropriate measures to protect, inter alia, the safety, privacy, physical and physiological well-being of the victims. The Single Judge is as well cognizant that, in accordance with the principle of proportionality enshrined in article 68(1) of the Statute, measures taken pursuant to this provision may restrict the rights of the suspect only to the extent necessary.30 In light of the nature/purpose and circumstances of the current proceedings, the Single Judge is convinced that the redactions applied in the victims’ application are indeed limited to what is strictly necessary in light of the security situation in Kenya and the applicants’ safety and do not unnecessarily restrict the rights of the Defence. In particular, the Defence has been provided with sufficient information in order for it to be able to determine whether the relevant criteria for an applicant to qualify as victim are fulfilled.31 The ‘principle of proportionality’ regarding protective measures, as enshrined in Article 68(1), is identical in terms to the proportionality principle regarding the presentation and consideration of victims’ views and concerns under Article 68(3).32 While both ‘principles’ are partly aimed at avoiding prejudice to, and achieving consistency with, the rights of the accused, the notion of guaranteeing an accused’s rights is undoubtedly part and parcel of ensuring that a trial is fair and impartial. Considering also that intrinsic to the trial process is a search for the truth, an analysis that is centred on achieving the overarching objectives of a fair and impartial trial, and the search for the truth, is more likely to strike the right balance between competing interests of victims and the accused, and yield equitable results, irrespective of the stage of the proceedings and the particular circumstances of each case.

26 February 2009, paras 49, 51–52 (‘Katanga and Ngudjolo Chui, 26 February 2009’); Muthaura, Kenyatta and Ali, 30 March 2011 (n 15), para 22; Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07-1206, Quatrième decision invitant les parties à présenter leurs observations relatives aux demandes de participation (règle 89-1 du Règlement de procédure et de preuve), Trial Chamber II, 12 June 2009, paras 11, 13 (‘Katanga and Ngudjolo Chui, 12 June 2009’). 29 30 31 32

Ruto, Kosgey and Sang, 8 July 2011 (n 21), para 20. Ruto, Kosgey and Sang, 8 July 2011 (n 21), para 22. Ruto, Kosgey and Sang, 8 July 2011 (n 21), para 23. See ICC Statute, Article 68(3).

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Victims’ applications to participate in proceedings and the prosecutor’s duty to disclose exculpatory evidence The narrow issues before a Chamber upon receipt of a victim’s application to participate in proceedings are the determinations of whether the criteria of Article 68(3) have been satisfied and the applicant falls within the definition of ‘victim’ in Rule 85(a).33 Yet broader considerations are no less important and relevant during such determinations, especially those pertaining to the timely disclosure of evidence between the parties and its potential nexus to the efficiency and fairness of the proceedings. From the Defence’s perspective, the contents of victims’ applications implicate matters that extend far beyond the preliminary issues of whether the criteria of Article 68(3) and Rule 85(a) have been fulfilled.34 The applications often include information that is prima facie crucial from the perspective of the Defence, even exempting the identities and addresses of the applicants from disclosure.35 Such information can have a direct bearing on the guilt or innocence of an accused and provide a wealth of information for the investigation and preparation of an accused’s defence. Invariably, some of that information could exculpate or mitigate the alleged criminal responsibility of the accused and would ordinarily be subject to disclosure by the Prosecution.36 Indeed, the Prosecution is required by Article 67(2) of the Statute to disclose, ‘as soon as [is] practicable’, evidence in its possession or control which ‘shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence’.37 The ‘disclosure of exculpatory evidence in the possession of the prosecution is a fundamental aspect of the accused’s right to a fair trial’,38 and is a logical corollary of the Prosecutor’s duty under Article 54(1)(a) to ‘investigate incriminating and exonerating circumstances equally’.39 In the context of victims’ applications, the information therein is not collected at the request or on the behalf of the Prosecutor40 and is subject to protective measures under Article 68(1), as of right, and not as favours to be granted to

33 See Rule 89(2) of the Rules. 34 See Rule 89(2) of the Rules. See e.g. Ruto, Kosgey and Sang, 8 July 2011 (n 21), para 8; Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11-164, Decision on the Defence Requests in Relation to the Victims’ Applications for Participation in the Present Case, Pre-trial Chamber II, 8 July 2011, para 7 (‘Muthaura, Kenyatta and Ali, 8 July 2011’). 35 Regulation 86(2) of the Regulations of the Court. 36 ICC Statute, Article 67(2). 37 ICC Statute, Article 67(2). 38 Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-1401, Decision on the consequences of nondisclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008, Trial Chamber I, 13 June 2008, para 92(i). 39 ICC Statute, Article 54(1)(a). 40 Ruto, Kosgey and Sang, 8 July 2011 (n 21), para 9.

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victims.41 The application of those measures results in the Prosecution receiving the same redacted versions of the applications as does the Defence, bearing in mind the principle of equality of arms between the parties.42 This has been the predominant practice of the Court thus far.43 It is perhaps not the most efficient one, however, nor would the analysis consistently yield the same results if broader notions of a fair and impartial trial, in the search for truth, were given sufficient weight during the preliminary assessment of the applications. Two decisions deviate from the predominant practice at the Court by ordering the disclosure of unredacted victim applications to the Prosecution pre-trial, even before the conferral of the ‘procedural status of victim’ on the applicants, in order to allow the Prosecution to fulfil its disclosure obligations under Article 67(2).44 Both decisions illustrate how the focus of the analysis can lead to different results. In ordering such disclosure, the Single Judge in both cases observed that information in the applications is relevant to the Prosecutor’s duty to investigate exculpatory circumstances,45 recalling also that the Prosecutor may request the presence of and question victims during his or her investigations, pursuant to Article 54(3)(b) of the Statute.46 The Judge observed that full disclosure is the normative principle while redactions are the exception,47 and that the Prosecution is an organ of the Court that is entrusted to protect, inter alia, victims, by virtue of Articles 54(1)(b) and 68(1) of the Statute.48 This autonomous duty to protect victims confirms the substantial difference between the Prosecutor and the Defence, in terms of their nature and role in the proceedings and, consequently, the principle of equality of arms would not be violated, were unredacted applications disclosed only to the Prosecutor.49 Significantly, the Judge grounded her ruling in a decision of the Appeals Chamber wherein it was observed that [T]he disclosure of exculpatory evidence is a right grounded not only in article 67(2) of the Statute, but also in the accused’s right to a fair trial under article 67(1) of the Statute . . .50

41 Lubanga, 18 January 2008 (n 19), para 129. 42 Banda and Jerbo, 17 October 2011 (n 16), paras 36–37. 43 See e.g. Banda and Jerbo, 17 October 2011 (n 16), paras 36–37; Lubanga, 6 May 2008 (n 15), para 30; Katanga and Ngudjolo Chui, 26 February 2009 (n 28), paras 49–52; Bemba, 22 February 2010 (n 28), paras 27, 33; Katanga and Ngudjolo Chui, 12 June 2009 (n 28), paras 11–13; Ruto, Kosgey and Sang, 30 March 2011 (n 15), para 22; and Muthaura, Kenyatta and Ali, 30 March 2011 (n 15), para 22. 44 See Ruto, Kosgey and Sang, 8 July 2011 (n 21); Muthaura, Kenyatta and Ali, 8 July 2011 (n 34). 45 Ruto, Kosgey and Sang, 8 July 2011 (n 21), para 11; Muthaura, Kenyatta and Ali, 8 July 2011 (n 34), para 10. 46 Ruto, Kosgey and Sang, 8 July 2011 (n 21), para 11; Muthaura, Kenyatta and Ali, 8 July 2011 (n 34), para 10. 47 Ruto, Kosgey and Sang, 8 July 2011 (n 21), para 15; Muthaura, Kenyatta and Ali, 8 July 2011 (n 34), para 14. 48 Ruto, Kosgey and Sang, 8 July 2011 (n 21), para 14; Muthaura, Kenyatta and Ali, 8 July 2011 (n 34), para 13. 49 Ruto, Kosgey and Sang, 8 July 2011 (n 21), para 14; Muthaura, Kenyatta and Ali, 8 July 2011 (n 34), para 13. 50 Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07-2288 OA 11, Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 22 January 2010 Entitled ‘Decision on the Modalities of Victim Participation at Trial’, Appeals Chamber, 16 July 2010, para 77 (‘Katanga and Ngudjolo Chui, 16 July 2010’).

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Morris A. Anyah [I]t is reasonable that, in particular where the submissions in the victims’ applications for participation indicate that victims may possess potentially exculpatory information, the Prosecutor’s investigation should extend to discovering any such information in the victims’ possession. Such information would then be disclosed to the accused pursuant to article 67 (2) of the Statute and rule 77 of the Rules of Procedure and Evidence.51

It is submitted that the Single Judge struck the proper balance between relevant competing interests in ordering the disclosure of the unredacted applications to the Prosecutor. That result is evidently a by-product of an analysis that was focused on the fundamental principles of fairness that undergird the disclosure regime under the Statute. Considerations regarding the stage at which the proceedings are: the limited scope and purpose behind the assessment of victims’ applications; the limited impact on an accused’s ability to reply to the applications (that is, ‘minimal’ prejudice to the accused’s rights) are all important, but they are easily outweighed by the fact that the trial process is a search for the truth and fundamental fairness requires timely disclosure of exculpatory evidence to the Defence, if an accused’s fair trial rights are to be ensured. The approach taken by the Single Judge in both cases stands in contrast to the typical approach taken by various Chambers of the Court when faced with Defence challenges to redactions in victims’ applications or requests for the disclosure of unredacted applications to the Prosecution, in order that the Prosecutor might fulfil his or her disclosure obligations under Articles 54(1)(a) and 67(2) of the Statute. Undergirding typical decisions by the Chambers is a graduated approach to the disclosure of victims’ identities to the parties (Prosecution and Defence alike) that is dependent on the stage at which the proceedings are when the issue is visited, and the extent, nature and circumstances of their participation.52 Thus, in denying a defence request for unredacted applications to be disclosed to the Prosecutor, in view of the Prosecutor’s obligation to disclose exculpatory evidence,53 one Chamber observed: At this early stage of the proceedings and on the basis of a preliminary assessment, non-disclosure of the victims’ identities and the linked material to the prosecution, the defence . . . is proportionate and necessary, and it will not materially undermine the fair-trial rights of the accused. At later stages of the proceedings, for those granted leave to participate, and depending on the

51 Katanga and Ngudjolo Chui, 16 July 2010, para 81. 52 Lubanga, 18 January 2008 (n 19), para 131; Bemba, 22 February 2010 (n 28), paras 24–26; Bemba, 12 July 2010 (n 19), paras 65–66. 53 See Prosecutor v Jean-Pierre Bemba, ICC-01/05-01/08-995, Observations de la Défense sur les 104 demandes de participation à la procédure enqualité de victims, Avec une annexe confidentielle A, 4 November 2010, paras 15–19; Prosecutor v Jean-Pierre Bemba, ICC-01/05-01/08-1009, Observations de la Défense sur les 82 demandes de participation à la procédure en qualité de victimes, 15 November 2010, paras 16–19.

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level of suggested participation by individual victims and the report of the VWU, this approach will be revisited on a case-by-case basis.54 This approach is substantially similar to that taken by Trial Chamber I in the Lubanga case.55 However, it is submitted that disclosure of unredacted applications to the Prosecutor should take place as a matter of course during the pre-trial stages of proceedings for a number of reasons: 1 2 3 4 5

6

to uphold the fundamental rights of the accused; the Chambers have a statutory duty to ensure that disclosure takes place in a timely and orderly manner; to ensure the expeditiousness of the proceedings by the avoidance of unnecessary delays; the potential to facilitate the identification of additional sources of inculpatory evidence by the prosecutor from so-called ‘dual-status’ victims;56 the real prospects of an evident decrease in the number of defence challenges to victims’ applications and the consequential increase in the number of participating victims and the efficiency of the proceedings; and the fact that the search for truth remains the overriding purpose of criminal trial proceedings.

It will be recalled that in addition to the right to a fair and impartial hearing,57 the minimum rights guaranteed an accused under Article 67 of the Statute include: the right to be informed promptly and in detail of the nature, cause and content of the charge against him or her;58 the right to adequate time and facilities for the preparation of the defence;59 and the entitlement to raise defences60 and present admissible evidence under the Statute.61 Furthermore, Article 61(3) requires the Prosecutor to disclose, to the Defence, the document containing the charges ‘on which the Prosecutor intends to bring the person to trial’62 and all evidence upon which the Prosecutor intends to rely at the Confirmation of the

54 Bemba, 22 February 2010 (n 28), para 31. 55 Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-2659-Corr-Red, Redacted version of the Corrigendum of Decision on the applications by 15 victims to participate in the proceedings, Trial Chamber I, 8 February 2011, para 37. 56 See e.g. Lubanga, 18 January 2008 (n 19), para 133; Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07-1788-tENG, Decision on the Modalities of Victim Participation at Trial, Trial Chamber II, 22 January 2010, para 110 (‘Katanga and Ngudjolo Chui, 22 January 2010’). 57 ICC Statute, Articles 67(1) and 64(8)(b). 58 ICC Statute, Article 67(1)(a). 59 ICC Statute, Article 67(1)(b). 60 ICC Statute, Article 67(1)(e). 61 ICC Statute, Articles 69(3) and 64(8)(b). 62 ICC Statute, Article 61(3(a).

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Charges hearing,63 ‘[w]ithin a reasonable time before the hearing’.64 Additionally, Rule 121(3) highlights the imperative of timely disclosure by requiring the Prosecutor to disclose ‘no later than 30 days before the date of the confirmation hearing, a detailed description of the charges together with a list of the evidence which he or she intends to present at the hearing’.65 To be sure, the possibility of guaranteeing the fundamental right of a fair and expeditious trial is rendered suspect whenever delay or other contingencies66 occasion the disclosure of documents that might contain exculpatory evidence to the Defence. Indeed, if there is fault to be found in the Single Judge’s decisions referred to above, it is that they were rendered several weeks after the transmittal of the first set of redacted victims’ applications to the parties and not proprio motu, but only as a consequence of requests by the Defence.67 Such passage of time undoubtedly leads to delay in the entire trial process, considering that unredacted applications subsequently have to be transmitted by the Registry to the Prosecutor, who will, in turn, require additional time to review them and disclose any exculpatory evidence to the Defence. The resulting delay to the defence in investigating disclosed exculpatory information is also quite obvious. The Prosecutor’s independent duty to protect victims’ privacy and security68 is one of two safeguards that readily come to mind to ensure that victim interests are upheld, despite the transmittal of unredacted applications to the Prosecutor. Another safeguard would be a requirement that the disclosure of exculpatory information in such applications to the defence be brought to the attention of the LRVs and, should there be an objection, the issue be placed for resolution before the Chamber to which the case is assigned.69 In the same vein, and in cases where the Prosecutor is minded to lead evidence at trial from a dual-status victim, one means of safeguarding the rights of the accused is the developed practice of the Court to require disclosure of the victim-witness’ identity70 and any statements given to the Prosecutor (or to the legal representative) to the Defence,

63 ICC Statute, Article 61(3(b). Regarding the ‘Confirmation of the Charges Hearing’, see Article 61 of the Statute and Rules 121–126 of the Rules. 64 ICC Statute, Article 61. 65 Rule 121(3) of the Rules. 66 Such as allowing for the passage of time to see what degree of participatory rights particular victims might seek at later stages of the proceedings. 67 See Ruto, Kosgey and Sang, 8 July 2011 (n 21); Muthaura, Kenyatta and Ali, 8 July 2011 (n 34); See ICC-01/09-01/11-92. 68 ICC Statute, Articles 54(1)(b) and 68(1). 69 Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-1637, Decision on the defence application for disclosure of victims applications, Trial Chamber I, 21 January 2009, paras 9–13 (‘Lubanga, 21 January 2009’). 70 See e.g. Katanga and Ngudjolo Chui, 22 January 2010 (n 56), paras 92–93; Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07-1665-Corr, Directions for the conduct of the proceedings and testimony in accordance with rule 140, Trial Chamber II, 1 December 2009, para 22 (‘Katanga and Ngudjolo Chui, 1 December 2009’).

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subject to any objection by the LRVs, who should be consulted before such disclosure.71 Most of the proposed reasons for transmitting unredacted applications to the Prosecutor are rooted in the basic notion that a trial is a search for the truth. Facilitating the disclosure of possible exculpatory evidence to the Defence and possible inculpatory evidence to the Prosecutor, while simultaneously reducing Defence objections to victims’ applications and increasing the efficiency of the proceedings, are all relevant to, and in furtherance of, the search for the truth. One Chamber has emphasized that ‘the search for truth is the principal goal of the Court as a whole’,72 and several provisions of the Court’s constitutive instruments lend indelible support to that proposition.73 It is submitted that where the search for the truth remains the primary consideration when balancing competing rights of victims vis-à-vis those of the accused, the proper equilibrium is likely to be consistently attained, irrespective of the factual idiosyncrasies of individual situations or cases. The confirmation of the charges hearing Article 61(1) of the Statute requires that a hearing be held before the Pre-trial Chamber to confirm the charges regarding which the Prosecutor intends to seek trial.74 The Prosecutor is required at the hearing to present ‘sufficient evidence’ in support of each charge to ‘establish substantial grounds to believe that the person committed the crime charged’.75 The person charged may object to the charges,

71 See e.g. Lubanga, 21 January 2009 (n 69), paras 9–13; See also Bemba, 12 July 2010 (n 19), paras 58–60; Prosecutor v William Samuel Ruto and Joshua Arap Sang, ICC-01/09-01/11-T-29-Red3-ENG, Trial Hearing Transcript, Trial Chamber V, 17 September 2013, 5–6. 72 Prosecutor v Jean-Pierre Bemba Gombo, ICC-01/05-01/08-55, Decision on the Evidence Disclosure System and Setting a Timetable for Disclosure between the Parties, Pre-trial Chamber III, 31 July 2008, para 11 (‘Bemba, 31 July 2008’). 73 See e.g. ICC Statute, Article 54(1)(a); Article 69(1), Article 69(3); and Rule 66(1) of the Rules. See also Regulation 43(a) of the Regulations of the Court. 74 See e.g. Prosecutor v Bahar Idriss Abu Garda, ICC-02/05-02/09-243-Red, Decision on the Confirmation of Charges, Pre-trial Chamber I, 8 February 2010 (‘Abu Garda, 8 February 2010’); Prosecutor v Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo, Pre-trial Chamber II, 15 June 2009 (‘Bemba, 15 June 2009’); Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07-717, Decision on the Confirmation of Charges, Pre-trial Chamber I, 30 September 2008 (‘Katanga and Ngudjolo Chui, 30 September 2008’); Prosecutor v Thomas Lubana Dyilo, ICC-01/04-01/06-803-tEN, Decision on the Confirmation of Charges, Pre-trial Chamber I, 29 January 2007; Prosecutor v Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, ICC-02/05-03/09-121-Corr-Red, Corrigendum of the ‘Decision on the Confirmation of Charges’, Pre-trial Chamber I, 7 March 2011 (‘Banda and Jerbo, 7 March 2011’); Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11-382-Red, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, Pre-trial Chamber II, 23 January 2012. 75 ICC Statute, Article 61(5).

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present evidence of his or her own, and challenge the Prosecutor’s evidence at the hearing.76 On the basis of the hearing, the Chamber is required to ‘determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged’.77 Notwithstanding the fact that the confirmation hearing is not a ‘trial before the trial’ or ‘mini-trial’,78 and that the Prosecutor may rely entirely on documentary or summary evidence without calling witnesses,79 the hearing is an important mechanism that is ‘designed to protect the rights of the Defence against wrongful and wholly unfounded charges’.80 It is thus an ‘essential stage’ of the proceedings.81 Article 68(3) and Rules 91 and 92 provide the legal framework through which victims’ views and concerns may be presented and considered during the confirmation hearing, where their personal interests are affected.82 The various Chambers of the Court have unfailingly found victims’ personal interests to be affected at the confirmation hearing and have deemed it an appropriate stage at which their views and concerns may be presented and considered.83 Decisions acknowledging victims’ right to participate at the hearing are usually accompanied by decisions that spell out the modalities of their participation at the hearing.84 Those modalities, or the participatory rights granted to victims at the hearing, generally include the right to attend the public parts of the hearing85 and the right for their legal representative(s) to:

76 ICC Statute, Article 61(6). 77 ICC Statute, Article 61(7); see e.g. Banda and Jerbo, 7 March 2011 (n 74), para 29; Bemba, 15 June 2009 (n 74), para 28. 78 See e.g. Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07-474, Decision on the Set of Procedural Rights Attached to Procedural Status of Victims at the Pre-trial Stage of the Case, Pre-trial Chamber I, 13 May 2008, para 100 (‘Katanga and Ngudjolo Chui, 13 May 2008’); Prosecutor v Bahar Idriss Abu Garda, ICC-02/05-02/09-136, Decision on victims’ modalities of participation at the Pre-trial Stage of the Case, Pre-trial Chamber I, 6 October 2009, para 4 (‘Abu Garda, 6 October 2009’). 79 ICC Statute, Article 61(5). 80 See Katanga and Ngudjolo Chui, 30 September 2008 (n 74), para 63; Abu Garda, 8 February 2010 (n 74), para 39. 81 Prosecutor v Thomas Lubana Dyilo, ICC-01/04-01/06-462-tEN, Decision on the Arrangements for Participation of Victims 1/0001/06, a/0002/06 and a/0003/06 at the Confirmation Hearing, Pre-trial Chamber I, 22 September 2006, 5 (‘Lubanga, 22 September 2006’). 82 ICC Statute, Article 68(3); see also Rule 91(2) of the Rules; Abu Garda, 6 October 2009 (n 78); Katanga and Ngudjolo Chui, 13 May 2008 (n 78), paras 153–159. 83 See e.g. Abu Garda, 6 October 2009 (n 78), paras 5, 16–20; Lubanga, 22 September 2006 (n 81) 5; Ruto, Kosgey and Sang, 5 August 2011 (n 20); Katanga and Ngudjolo Chui, 13 May 2008 (n 78), paras 159–161. See also Rule 91 of the Rules. 84 See Rules 89(1) and 91(2) of the Rules. See also Ruto, Kosgey and Sang, 5 August 2011 (n 20); Katanga and Ngudjolo Chui, 13 May 2008 (n 78); Abu Garda, 6 October 2009 (n 78); Prosecutor v Abdallah Banda Abakear Nourain and Saleh Mohammed Jerbo Jamus, ICC-02/05-03/09-89, Decision on Victims’ Participation at the Hearing on the Confirmation of Charges, Pre-trial Chamber I, 29 October 2010 (‘Banda Jerbo, 29 October 2010’). 85 See e.g. Prosecutor v Jean-Pierre Bemba, ICC-01/05-01/08-320, Fourth Decision on Victims’ Participation, Pre-trial Chamber III, 12 December 2008, para 101 (‘Bemba, 12 December 2008’); Prosecutor v Laurent Gbagbo, ICC-02/11-01/11-138, Decision on Victims’ Participation and Victims’

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(iii) (iv) (v)

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make opening and closing statements,86 and file written motions, responses and replies;87 have access to all public filings, decisions and documents in the case,88 all public evidence disclosed between the parties89 and transcripts of all public hearings;90 be notified of all proceedings before the Court,91 as well as public requests, motions, decisions and documents filed in the case;92 have access to the document containing the charges, even if it is marked confidential;93 and make oral submissions on fact and/or law94 and, following a successful application to question a witness at the hearing, put questions to the witness.95

Two issues that often create sufficient tension between rights which may be granted victims at the hearing and the rights of the accused are the right of victims to question witnesses at the hearing, and victims’ access to non-public

Common Legal Representation at the Confirmation of Charges Hearing and in the Related Proceedings, Pre-trial Chamber I, 4 June 2012, para 49 (‘Gbagbo, 4 June 2012’); Prosecutor v Callixte Mbarushimana, ICC-01/04-01/10-351, Decision on the 138 applications for victims’ participation in the proceedings, Pre-trial Chamber I, 11 August 2011, paras 41–43 (‘Mbarushimana, 11 August 2011’). 86 See Rule 89(1) of the Rules. See also Bemba, 12 December 2008 (n 85), para 102; Mbarushimana, 11 August 2011 (n 85), paras 41–43; and Ruto, Kosgey and Sang, 5 August 2011 (n 20), para 89. 87 See Rule 91(2) of the Rules. See also Regulation 24 of the Regulations of the Court; Mbarushimana, 11 August 2011 (n 85), paras 41–43; Abu Garda, 6 October 2009 (n 78), para 25. 88 See e.g. Bemba, 12 December 2008 (n 85), para 103; Mbarushimana, 11 August 2011 (n 85), paras 41–43; and Ruto, Kosgey and Sang, 5 August 2011 (n 20), paras 90–91. 89 See Bemba, 12 December 2008 (n 85), para 104; Mbarushimana, 11 August 2011 (n 85), paras 41–43; Ruto, Kosgey and Sang, 5 August 2011 (n 20), para 91. 90 See Rule 121(10) of the Rules. See also Bemba, 12 December 2008 (n 85), para 105; Mbarushimana, 11 August 2011 (n 85), paras 41–43; Ruto, Kosgey and Sang, 5 August 2011 (n 20), para 93; Gbagbo, 4 June 2012 (n 85), para 49. 91 See Rule 92(5)(a) and 92(7) of the Rules. See also Bemba, 12 December 2008 (n 85), para 107; Mbarushimana, 11 August 2011 (n 85), paras 41–43; Ruto, Kosgey and Sang, 5 August 2011 (n 20), para 95. 92 See Rule 92(5)(b) and 92(7) of the Rules. See also Bemba, 12 December 2008 (n 85), para 106; Mbarushimana, 11 August 2011 (n 85), paras 41–43; and Ruto, Kosgey and Sang, 5 August 2011 (n 20), para 95. 93 See e.g. Mbarushimana, 11 August 2011 (n 85), paras 44; Banda Jerbo, 29 October 2010 (n 84), para 68. 94 See Rule 91(2) of the Rules. See also Bemba, 12 December 2008 (n 85), para 108; Prosecutor v Abdallah Banda Abakaer Nourain, ICC-02/05-03/09-103, Decision on issues related to the hearing on the confirmation of charges, Pre-trial Chamber I, 17 November 2010, para 8; Mbarushimana, 11 August 2011 (n 85), paras 41–43. 95 See Rule 91(3)(a) and (b) of the Rules; Ruto, Kosgey and Sang, 5 August 2011 (n 20), para 100; Prosecutor v Francis Kirimi Muthaura, Uhuru Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11-267, Decision on Victims’ Participation at the Confirmation of Charges Hearing and in the Related Proceedings, Pre-trial Chamber II, 26 August 2011, para 117 (‘Muthaura, Kenyatta and Ali, 26 August 2011’).

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proceedings and confidential portions of the record of the case, including confidential inter partes disclosures. Turning first to the questioning of witnesses by victims, Rule 91(3) requires an application by the LRVs in such circumstances, demonstrating that the personal interests of the victims are affected by the issues under consideration, and a ruling on the application by the relevant Chamber.96 In ruling on the application, the Chamber is required to take these factors into consideration, in order to give effect to Article 68(3) of the Statute: the stage of the proceedings, the rights of the accused, the interests of the witnesses, and the need for a fair, impartial and expeditious trial.97 Directions on the manner and order of the questions, and the production of documents, may also be prescribed by the Chamber in the ruling.98 The application of Rule 91(3) in the practice of the Court evidences different analytical approaches regarding the right of victims to question witnesses at the hearing. Some decisions merely require that the prescribed procedure of Rule 91(3) be followed by the LRVs, thereby placing the Chamber in a position to consider the enumerated factors in the rule before deciding on a case-by-case basis whether and how such questioning might take place.99 Other decisions expressly or impliedly predicate the right of victims to question witnesses on whether the victims remain anonymous to the accused, bearing in mind the ‘fundamental principle prohibiting anonymous accusations’.100 Thus, LRVs may not question witnesses at the hearing, where the victims remain anonymous to the accused.101 The import of these decisions is that the procedure of Rule 91(3) could only be triggered in cases where a victim’s identity is known to the accused. The requirement of non-anonymity as a precondition to the questioning of witnesses by victims at the hearing does not appear to be grounded in any of the organic instruments of the Court. Such a conclusion is supported by three factors. First, the express terms of Rule 91(3) do not require non-anonymity of a victim as a precondition to the right to have the LRV question witnesses at the hearing. Second, it is questionable whether a teleological interpretation of Rule 91(3) vis-à-vis Rule 76(1)102 and Articles 67(1)(e)103 and 61(3)104 of the Statute would

96 97 98 99 100 101 102 103 104

See Rule 91(3) of the Rules. See Rule 91(3) of the Rules. See Rule 91(3) of the Rules. See e.g. Muthaura, Kenyatta and Ali, 26 August 2011 (n 95), para 117; Ruto, Kosgey and Sang, 5 August 2011 (n 20), para 100; Bemba, 12 December 2008 (n 85), paras 100–101. See e.g. Lubanga, 22 September 2006 (n 81) 7–8; Katanga and Ngudjolo Chui, 13 May 2008 (n 78), paras 178–184; Abu Garda, 6 October 2009 (n 78), paras 21–24. See e.g. Lubanga, 22 September 2006 (n 81) 7–8; Katanga and Ngudjolo Chui, 13 May 2008 (n 78), paras 178–184; Abu Garda, 6 October 2009 (n 78), paras 21–24. See Rules 91(3) and 76(1) of the Rules. This Article provides, in part, that an accused shall be entitled to examine or have examined, the witnesses against him or her. This Article requires, in part, that an accused be informed of the evidence the Prosecutor intends to rely on at the hearing ‘[w]ithin a reasonable time before the hearing’. See ICC Statute, Article 61(3)(b).

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warrant such a precondition, especially in cases where the Defence knows the identity of the witness being called to testify at the hearing. Third, and significantly, the practice of the Court permits, as an exception to the general rule requiring disclosure,105 the ‘non-disclosure of the identity of the witnesses on whom the Prosecutor intends to rely at the confirmation hearing’.106 Bearing these factors in mind, one could logically and reliably submit that such a jurisprudential precondition on rights expressly granted victims under the Rules is ultra vires Rule 91(3) of the Rules. Furthermore, such a precondition is most likely a by-product of an analytical approach that focuses predominantly on safeguarding the rights of the suspect in contradistinction to the overarching objective of the search for the truth or the equally laudable requirement of meaningful participation by victims. Indeed, victims’ participation at the hearing and other stages of the proceedings must be meaningful and not merely symbolic.107 This is necessary in order to vindicate what is perhaps the most fundamental interest of victims of mass criminal atrocities – that is, their right to the truth.108 The foregoing makes clear that requiring non-anonymity from victims if they are to be authorized to question witnesses at the hearing is inconsistent with their right to the truth and with the search for the truth – a co-equal component of which could result in vindicating the innocence of the suspect.109 The impact of the confirmation hearing on victims’ interests to identify those responsible for their harm, and have them prosecuted, cannot be overemphasized. Thus, an alternative and preferred approach would entail acknowledging, first, that participating victims are not to be equated with accusers within the legal framework of the Statute or the Rules110 and, second, that allowing the questioning of witnesses once the requirements of Rule 91(3) have been satisfied is consistent with the organic instruments of the Court,111 the search for the truth and the victims’ right to the truth, and could have at most a minimal impact on an accused’s right to a fair and expeditious hearing, given the time (and other) restrictions that could be placed on the examination of witnesses by the LRVs.112 105 See e.g. ICC Statute, Article 61(3) and Rule 76(1) of the Rules. 106 See Lubanga, 13 October 2006 (n 27), paras 34–35. 107 See e.g. Katanga and Ngudjolo Chui, 13 May 2008 (n 78), paras 51, 157; Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07-1328, Order on the organization of common legal representatives of victims, Trial Chamber II, 22 July 2009, para 10(a). 108 See e.g. Katanga and Ngudjolo Chui, 13 May 2008 (n 78), paras 31–36, 110; see also Guénaël Mettraux ‘Victims’ Participation in International Criminal Law’ (2010) 8 Journal of International Criminal Justice 75, 76–77. 109 Katanga and Ngudjolo Chui, 13 May 2008 (n 78), para 36. 110 Bemba, 12 December 2008 (n 85), para 99. 111 Bemba, 12 December 2008 (n 85), para 97. See also Lubanga, 18 January 2008 (n 19), para 26. 112 See e.g. Katanga and Ngudjolo Chui, 13 May 2008 (n 78), para 138 (time limitations); Rules 91(3)(b) of the Rules (manner and order of the questions); Abu Garda, 6 October 2009 (n 78), paras 23–24. See e.g. Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-2127, Decision on the Manner of Questioning Witnesses by the Legal Representatives of Victims, Trial Chamber I, 16 September 2009, paras 29–30 (‘Lubanga, 16 September 2009’).

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Turning to the issue of victims’ access to non-public documents and in camera or ex parte hearings at the confirmation stage of the case, the discernible and virtually uniform practice has been to grant the LRVs access to only the public proceedings and record of the case, including disclosed evidence between the parties that has been marked as ‘public’.113 The decisions typically note that either party retains the discretion to avail to the LRVs documents that are filed confidentially, by including the legal representative as one of those to whom the Registry should notify and serve the document.114 Furthermore, the relevant Chamber could, proprio motu, or upon receiving ‘a specific and motivated request’ from the LRVs, decide on a case-by-case basis whether to grant the LRVs access to in camera or ex parte proceedings and/or non-public documents.115 The basis for granting LRVs access to only the public record of the case is ostensibly the prohibition against anonymous accusations, as discussed above in the context of victims’ right to question witnesses at the confirmation hearing.116 Added to this, and in the specific context of restricting access by LRVs to inter partes disclosures, is the evident fact that the Statute and Rules envision disclosure as occurring only between the prosecutor and the suspect before the court.117 Indeed, victims are ‘participants’ and not ‘parties’ at all stages of proceedings before the Court, except in respect of an appeal brought on their behalf under Article 82(4) of the Statute.118 Although disclosure generally occurs only between the parties, the Registry and the Pre-trial Chambers are directly and intimately involved in the process. The Registry is responsible for facilitating the disclosure of evidence between the parties,119 given that all evidence is submitted by the parties to the Registry in

113 See e.g. Bemba, 12 December 2008 (n 85), paras 103–105; Mbarushimana, 11 August 2011 (n 85), paras 41–43; Ruto, Kosgey and Sang, 5 August 2011 (n 20), paras 90 – 93; Gbagbo, 4 June 2012 (n 85), para 49; Muthaura, Kenyatta and Ali, 26 August 2011 (n 95), paras 107–108, 110–111. 114 See e.g. Gbagbo, 4 June 2012 (n 85), para 56; Mbarushimana, 11 August 2011 (n 85), para 43; Muthaura, Kenyatta and Ali, 26 August 2011 (n 95), para 113; Bemba, 12 December 2008 (n 85), para 106; and Ruto, Kosgey and Sang, 5 August 2011 (n 20), para 96. 115 Muthaura, Kenyatta and Ali, 26 August 2011 (n 95), paras 109–110; Gbagbo, 4 June 2012 (n 85), para 57; Mbarushimana, 11 August 2011 (n 85), paras 42(8), 43; Abu Garda, 6 October 2009 (n 78), paras 15, 20. 116 See e.g. Katanga and Ngudjolo Chui, 13 May 2008 (n 78), paras 180–184; Muthaura, Kenyatta and Ali, 26 August 2011 (n 95), paras 99–101; Lubanga, 22 September 2006 (n 81) 7–8. 117 See e.g. ICC Statute, Articles 61(3), 67(1) and (2); Rule 76(1)-83 and Rule 121(2)(c) of the Rules. 118 See Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-2953 A A2 A3 OA21, Decision on the Admissibility of the appeals against Trial Chamber I’s ‘Decision establishing the principles and procedures to be applied to reparations’ and directions on the further conduct of proceedings, Appeals Chamber, 14 December 2012, para 67. 119 See e.g. Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11-48, Decision Setting the Regime for Evidence Disclosure and other Related Matters, Pre-trial Chamber II, 6 April 2011, para 6 (‘Muthaura, Kenyatta and Ali, 6 April 2011’); Bemba, 31 July 2008 (n 72), 22, para (a). See also Rule 121(10) of the Rules and Regulations of the Registry, ICC-BD/03-03-13, 5 December 2013 (‘ROR’), Regulations 15–19, 24–28 and 53(3).

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original form, along with an electronic copy.120 Subject to any restrictions imposed by the Chamber on particular items of evidence on grounds of confidentiality or the protection of national security,121 or vis-à-vis a particular party, the parties have access to the evidence through an electronic mechanism established by the Registry.122 With this in mind, it is submitted that LRVs ought to be granted access to the confidential record of the case (including inter partes disclosures) at the confirmation hearing for the same reasons that they routinely ought to be permitted to question witnesses during the hearing. That all proceedings before the Court are undertaken in the search of the truth, and that victims have a right to the truth, strongly implies that their participation at the confirmation stage cannot be deemed ‘meaningful’ in circumstances where neither they nor their counsel are privy – as of right or routine practice – to virtually all material that has been marked as ‘confidential’. Additionally, and for reasons provided below, there can be little or no practical prejudice to the fair trial rights of suspects, or to the expeditiousness of the proceedings, by virtue of granting LRVs access to the confidential record of the case. In theory, all material that makes up the public record of the case ought to be available to the general public and media representatives, upon request.123 That, in turn, means that victim-participants and their legal representatives are, in the absence of ‘specific and motivated requests’, to be decided on a ‘case-by-case basis’, on no better a footing than members of the general public with respect to their right of access to materials in the record of the case. That might at first not seem overly prejudicial to the participatory rights of victims, until one understands that in some instances, significant portions of the evidence for the hearing might be marked ‘confidential’.124 Also, it is not unusual for the Prosecution to rely on summary evidence125 and to heavily redact significant portions of its evidence for the hearing.126 Any resulting or potential prejudice from such reliance might fail

120 See e.g. Muthaura, Kenyatta and Ali, 6 April 2011 (n 119), para 16; Prosecutor v Bosco Ntaganda, ICC-01/0402/06-47, Decision Setting the Regime for Evidence Disclosure and other Related Matters, Pre-trial Chamber II, 12 April 2013, para 23; Bemba, 31 July 2008 (n 72), para 57; Regulation 28 of the ROR. An electronic photograph is often submitted in lieu of any tangible object. See Muthaura, Kenyatta and Ali, 6 April 2011 (n 119), para 16; Bemba, 31 July 2008 (n 72) 22, para (b). 121 See Rule 121(10) of the Rules. 122 See Muthaura, Kenyatta and Ali, 6 April 2011 (n 119) 12, para (h); ICC-01/05-1/08-55 (n 88), para 53. See Katanga and Ngudjolo Chui, 22 January 2010 (n 56), paras 122–124. 123 See Muthaura, Kenyatta and Ali, 6 April 2011 (n 119), para 21. 124 See e.g. Prosecutor v Uhuru Muigai Kenyatta, ICC-01/09-02/11-317-Corr, Corrigendum to the Decision on the Reclassification of Certain Items of Evidence and Certain Documents in the Record of the Case, Pre-trial Chamber II, 13 September 2011, para 6. 125 See ICC Statute, Article 61(5). 126 See e.g. Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11-109, Defence Request for Additional Information Concerning the ‘Prosecution’s First Application Pursuant to Rule 81(2) and Rule 81(4) for Redactions to Statements of Witnesses and Related Materials to be Relied Upon at the Confirmation Hearing and for Immediate Disclosure of the Redacted Materials, Pre-trial Chamber II, 8 June 2011, para 12.

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to provide a basis for arguing that such evidence ought to be disclosed to the LRVs; however, one basis for arguing in favour of such disclosure lies in the fact that the redacted and summary nature of the materials should presumably eliminate concerns about the security, safety or privacy of Prosecution witnesses. The result then, in practice, is that LRVs are often unaware of when the parties have filed evidence confidentially and certainly would not know the contents of such evidence. Furthermore, an LRV often would have met with only a small percentage of his or her victim-clients by the time of the confirmation hearing.127 This leaves the LRV in the highly undesirable and disadvantageous position of having to make a ‘specific and motivated request’ on a ‘case-by-case basis’ for access to evidence, the contents of which he or she does not know, but which must be demonstrably linked to the personal interests of victims,128 all in circumstances where he or she probably has not met hundreds of the affected victims. Rule 121(10) states that the ‘full and accurate record of all proceedings before the Pre-trial Chamber, including all documents transmitted to the Chamber pursuant to [Rule 121]’ may be consulted by victims or their legal representatives, as well as by the Prosecutor and the Defence.129 The ‘full record’ and ‘all documents’ to which Rule 121(10) refers includes all evidence disclosed between the Prosecution and the Defence for purposes of the confirmation hearing.130 And while Rule 121(10) renders such access subject to ‘any restrictions concerning confidentiality and the protection of national security information’, that limitation applies to the right of access granted to the Prosecutor, Defence and victims alike.131 As such, rather than provide a legal basis in support of denying victims access to the confidential record of the case, the rule prescribes that the opposite should be the norm.132 If LRVs are to represent their victim-clients ably and competently and, consequently, ensure that the laudable objective of meaningful participation is the norm and not the exception, they ought to be granted access to the confidential record of the case at the hearing. Such counsel must meet and often exceed the minimum requirements for counsel set out in Rule 22 of the Rules and Regulation 67 of the Regulations of the Court133 and, as officers of the Court, conditions could be placed on their right of access to confidential inter partes disclosures, prohibiting, for example, the sharing of such material with their victim-clients. Such an 127 See e.g. Prosecutor v William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11-292, Communication to the Chamber pursuant to the Chamber’s Decision of 5 August 2011, 25 August 2011, paras 3, 20 (noting that as of the date of that filing, the LRVs had been able to consult with 98 of her 327 victim-clients). 128 See e.g. Prosecutor v Uhuru Muigai Kenyatta, ICC-01/09-02/11-326, Decision on the Request for Access to Confidential Inter Partes Material, Pre-trial Chamber II, 14 September 2011, paras 12–13 (‘Kenyatta, 14 September 2011’). 129 Rule 121(10) of the Rules. 130 Rules 121(2)(c) of the Rules. 131 Rule 121(10) of the Rules. 132 Cf. Kenyatta, 14 September 2011 (n 128), para 11. 133 See e.g. Gbagbo, 4 June 2012 (n 85), para 41.

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approach would ameliorate concerns about the integrity and handling of such material, as well as the efficiency of the proceedings. Indeed, in the practice of the Court, a precedent exists for precisely such an approach.134 Concerns regarding the expeditiousness of the proceedings, should LRVs be granted access to confidential inter partes disclosures, need not arise since disclosure is undertaken and accessed electronically at the Court. It would merely entail granting the LRVs access to another dataset of electronic material on the Court’s Ringtail system135 and should not otherwise delay the proceedings. This is yet another reason that counsel strongly favour granting victims – or in this case, their legal representatives – access to the confidential record of the case even at the confirmation stage of the proceedings.

Trial proceedings The trial stage of the proceedings presents significant challenges in ensuring that, consistent with Article 68(3), the expression and consideration of victims’ views and concerns is not done in a manner that is inconsistent with, or prejudicial to, the rights of the accused and a fair and impartial trial.136 The practice of the Court evidences analytical approaches at trial that are arguably more centred on the search for the truth than is discernible during the pre-trial stage of the proceedings, perhaps because Article 69(3) of the Statute decidedly applies at trial.137 A review of relevant decisions confirms that with respect to most issues which arise at trial, the balance generally shifts in favour of fair and expeditious trials for the accused. Consensus on some issues in striking an appropriate balance The specific circumstances of each case notwithstanding, certain procedures and principles have gained much consensus in the Court’s decisions as mechanisms for maintaining an appropriate balance between fundamental rights of the accused and participatory rights of victims under the Statute. First, and for example, although LRVs are authorized to make opening and closing statements at trial, as allowed under Rule Article 89(1),138 Chambers often afford LRVs significantly less

134 See e.g. Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07-537, Decision on Limitations of Set of Procedural Rights for Non-Anonymous Victims, Pre-trial Chamber I, 30 May 2008, 12–13; Katanga and Ngudjolo Chui, 22 January 2010 (n 56), para 112. 135 See e.g. in respect of trial proceedings, Katanga and Ngudjolo Chui, 22 January 2010 (n 56), para 122; Ruto and Sang, 3 October 2012 (n 2), para 69. 136 ICC Statute, Article 68(3). 137 Katanga and Ngudjolo Chui, 13 May 2008 (n 78), para 110. 138 ICC Statute, Article 89(1). See also Katanga and Ngudjolo Chui, 22 January 2010 (n 56), para 68; Lubanga, 18 January 2008 (n 19), para 117; Katanga and Ngudjolo Chui, 1 December 2009 (n 70), 9.

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time for the closing statement than what is granted to the parties.139 This no doubt is consistent with victims’ status as ‘participants’ and not ‘parties’ at trial, while the parties who have led or challenged virtually all of the evidence correspondingly ought to be afforded more time during the closing summation. The positive implications for the expeditiousness of the proceedings – although arguably slight – are self-evident. Second is the fact that while LRVs may be authorized to question witnesses at trial, including the accused (consistent with the provisions of Rule 91(3) of the Rules),140 there is a presumption in favour of a neutral form of questioning.141 The rationale behind this limitation on the mode of questioning is the same as that behind other limitations on the scope of questions to be posed by LRVs. Both sets of limitations derive from the object and purpose of witness examinations by LRVs.142 More specifically, such questioning must have the ‘ascertainment of the truth’ as its main objective, since victims are not parties to the trial and may not serve to augment the Prosecutor’s case.143 As one Chamber has observed, questioning by LRVs ‘has been linked in the jurisprudence of the Trial and the Appeals Chambers to a broader purpose, that of assisting the bench in its pursuit of the truth’.144 Limitations on the scope of questioning by LRVs at trial are also evident in the Court’s decisions. In this regard, it has been observed that questions by LRVs should serve to clarify or complement evidence previously given by a witness.145 Additional limitations apply whenever LRVs ask questions of fact which extend beyond those covered during the examination-in-chief of a witness, such as: avoiding repetitive or duplicative questions vis-à-vis what was asked by the parties;146 limiting questions to matters in controversy between the parties unless it can be demonstrated that the questions are directly relevant to the interests of the victims;147 and demonstrating first that a witness gave evidence that directly goes against the interests of the victims before authorization may be granted to ask

139 See e.g. Prosecutor v Mathieu Ngudjolo Chui, ICC-01/04-01/07-3274, Ordonnance relative aux modalities de presentation des conclusions orales, Trial Chamber II, 20 April 2012, paras 6–8. See Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-2722, Order on the timetable for closing submissions, Trial Chamber I, 12 April 2011, para 7. 140 Lubanga, 16 September 2009 (n 112), para 21; Katanga and Ngudjolo Chui, 22 January 2010 (n 56), para 74. 141 Lubanga, 16 September 2009 (n 112), paras 28–30; Katanga and Ngudjolo Chui, 22 January 2010 (n 56), para 78; Katanga and Ngudjolo Chui, 1 December 2009 (n 70), para 91; and Bemba, 12 July 2010 (n 19), paras 38–40. See e.g. Lubanga, 16 September 2009 (n 112), para 30. 142 Lubanga, 16 September 2009 (n 112), paras 29. 143 Katanga and Ngudjolo Chui, 22 January 2010 (n 56), para 75. 144 Lubanga, 16 September 2009 (n 112), para 27. 145 Katanga and Ngudjolo Chui, 1 December 2009 (n 70), para 90. 146 Katanga and Ngudjolo Chui, 1 December 2009 (n 70), para 90; Ruto and Sang, 3 October 2012 (n 2), para 75. 147 Katanga and Ngudjolo Chui, 1 December 2009 (n 70), para 90; Ruto and Sang, 3 October 2012 (n 2), para 75.

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questions that go to the credibility or accuracy of a witness’ testimony.148 These additional limitations are no doubt precautionary and aimed at preventing the spectacle of LRVs serving, in effect, as auxiliary prosecutors during their examinations of witnesses at trial. A third issue with some evident consensus in the decisions involves the right of LRVs to attend and participate at the trial. That right, granted to LRVs under Rule 91(2) of the Rules, has been deemed to include in camera hearings under conditions defined by the Chamber,149 and closed or ex parte hearings on a case-bycase basis, depending on the prevailing circumstances.150 A notable and fourth issue at trial relates to Rule 77 and the right to inspect material in the possession or control of the Prosecutor.151 In this regard, a ‘triangular approach’ to disclosure typically prevails, in that the LRVs is granted access to certain materials in the Prosecutor’s case-file as an exception to the pre-trial proscription against access to inter partes disclosures.152 A request still has to be made by the LRVs and a demonstrable link established between the personal interests of the victims and the material in the Prosecution’s possession.153 This exception was deemed necessary as ‘a matter of general principle’, ‘in order to give effect to the rights accorded to victims under Article 68(3) of the Statute’.154 Perhaps a more far-reaching rationale for that exception derives from Article 69(3) and the authority it grants the Court to request the submission of all evidence it considers necessary for the determination of the truth.155 To the extent that Article 69(3) does not preclude the possibility of evidence being produced by victims at the request of the Chamber,156 it has been observed that such a possibility implies that victims also be afforded certain ‘disclosure rights’, with respect to the material contained within the Prosecution’s case-file.157 Indeed, and based largely on its interpretation of Article 69(3), the Appeals Chamber has held that the Statute and the Rules do not preclude the possibility of victims leading evidence regarding the guilt or innocence of the accused, or challenging the admissibility or relevance of evidence during the trial, where their personal interests are affected.158 148 Katanga and Ngudjolo Chui, 1 December 2009 (n 70), para 90. 149 Katanga and Ngudjolo Chui, 22 January 2010 (n 56), para 71. 150 Katanga and Ngudjolo Chui, 22 January 2010 (n 56), para 71; Lubanga, 18 January 2008 (n 19), para 113; Ruto and Sang, 3 October 2012 (n 2), para 71; and Bemba, 12 July 2010 (n 19), para 27. See also Rule 91(2) of the Rules. 151 See Rule 77 of the Rules. 152 See e.g. Katanga and Ngudjolo Chui, 13 May 2008 (n 78), paras 95–99; Lubanga, 18 January 2008 (n 19), para 111. 153 Lubanga, 18 January 2008 (n 19), para 111. 154 Lubanga, 18 January 2008 (n 19), para 111. 155 ICC Statute, Article 69(3). 156 Lubanga, 18 January 2008 (n 19), para 108. 157 Katanga and Ngudjolo Chui, 13 May 2008 (n 78), paras 96–98; Lubanga, 18 January 2008 (n 19), paras 108–111. 158 Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-1432 OA 9 OA 10, Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, Appeals Chamber, 11 July 2008, paras 93–105 (‘Lubanga, 11 July 2008’).

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This is highly significant and forms yet another (a fifth) set of issues regarding which there is some consensus in the decisions of the Court.159 It merits some additional discussion as follows. Victims’ ability to lead or challenge evidence at trial Victims’ ability to lead or challenge evidence is not unfettered and a number of safeguards are in place to ensure that a proper balance is achieved vis-à-vis other competing interests. For example, victims must make an application (with proper notice to the parties) which demonstrates that their personal interests are affected by the evidence or issue in question.160 Additionally, they must comply with any disclosure obligations or protection orders issued by the Chamber.161 It then falls to the Chamber to determine, on a case-by-case basis, the appropriateness of any such participation and its consistency with the rights of the accused and a fair trial.162 If the Chamber decides that the proposed evidence should be presented, it could, depending on the circumstances, ‘order one of the parties to present the evidence, call the evidence itself, or order the victims to present the evidence’.163 These safeguards have led the Appeals Chamber to conclude that granting victims the participatory right to lead evidence pertaining to the guilt or innocence of the accused, and to challenge the admissibility or relevance of the evidence, is not inconsistent with either the onus on the Prosecutor to prove the accused’s guilt or the rights of the accused and a fair trial.164 As can be imagined, a number of issues arise from the perspective of the Defence regarding such determinations. Some of those issues naturally would include concerns regarding victims serving as auxiliary prosecutors and the related dangers of repetitive or cumulative evidence being proffered. Inextricably related to those would be concerns about the expeditiousness of the proceedings and an accused’s right to be tried without undue delay under Article 67(1)(c) of the Statute, as well as his or her right to adequate time and facilities for the preparation of the defence under Article 67(1)(b) of the Statute. A practical and illustrative example of some of these issues involves testimonial evidence by ‘dual-status’ victims. Limitations regarding ‘dual-status’ witnesses Participating victims who are permitted to testify at trial must relinquish their anonymity to the Defence165 and their prior statements to the Prosecution or 159 See e.g. Lubanga, 18 January 2008 (n 19), paras 108–110; Katanga and Ngudjolo Chui, 22 January 2010 (n 56), paras 81–85; Bemba, 12 July 2010 (n 19), paras 29–37; Ruto and Sang, 3 October 2012 (n 2), para 77. 160 Lubanga, 11 July 2008 (n 158), para 99. 161 Lubanga, 11 July 2008 (n 158), para 104. 162 Lubanga, 11 July 2008 (n 158), para 104. 163 Lubanga, 11 July 2008 (n 158), para 100. 164 Lubanga, 11 July 2008 (n 158), para 104. 165 Katanga and Ngudjolo Chui, 1 December 2009 (n 70), para 22(c). See also ICC Statute, Article 67(1)(e).

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LRVs must be disclosed to the Defence.166 The Prosecution is also obliged to disclose any exculpatory information in such victims’ unredacted applications to the Defence.167 In the specific context of dual-status witnesses for the Prosecution, one Chamber relied on Rule 140(3)168 in directing that such witnesses not be privy to the testimony of other Prosecution witnesses or to the evidence in the case.169 Indeed, the LRVs were required to bring the contents of Rule 140(3) to the attention of any victim or witness the Chamber authorized to testify in response to a request from the LRVs.170 But setting aside those victim-witnesses for the Prosecution in its case-in-chief, additional issues arise in circumstances where the LRVs wish to have victimclients give evidence under oath or present their views and concerns to the Chamber in person.171 Starting with the Lubanga case, there has been much consensus in the decisions regarding the legal and factual considerations that apply when evaluating such requests by LRVs. The presentation of views and concerns by victims is considered to be equivalent to presenting submissions at trial; it is not the same thing as giving evidence under oath and, therefore, forms no part of the evidentiary record at trial.172 Furthermore, concerns regarding the impact on the fairness and expeditiousness of the proceedings if large numbers of victims were authorized to express their views and concerns in person led the Lubanga Chamber to conclude that it would ‘decide either proprio motu, or at the request of a party or participant, whether there should be joint representation and joint presentation of views and concerns by legal representatives at any particular stage in the proceedings’.173 Bearing in mind an accused’s right to be tried without undue delay and the concomitant duty on the Chamber to ensure the expeditiousness of the proceedings, fact-specific and case-by-case determinations are made on each application for the expression of views and concerns, taking into account the circumstances of the trial as a whole.174 Regarding victims giving evidence under oath at trial, the ‘overriding concern’ of Chambers has been that it proceed in an expeditious manner without adversely 166 167 168 169 170 171

See Katanga and Ngudjolo Chui, 16 July 2010 (n 50), para 75. Bemba, 12 July 2010 (n 19), paras 55–59. Rule 140(3) of the Rules. Katanga and Ngudjolo Chui, 22 January 2010 (n 56), para 114. Katanga and Ngudjolo Chui, 22 January 2010 (n 56), para 114. See Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-2032-Anx, Decision on the request by Victims a/0225/06, a/0229/06 and a/0270/07 to express their views and concerns in person and to present evidence during the trial, Trial Chamber I, 26 June 2009 (‘Lubanga, 26 June 2009’). See Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07-2517-tENG, Decision authorizing the appearance of Victims a/0381/09, a/0018/09, a/0191/08, and pan/0363/09 acting on behalf of a/0363/09, Trial Chamber II, 9 November 2010, paras 6, 8, 14–20. See Prosecutor v Jean-Pierre Bemba Gombo, ICC-01/05-01/08-2138, Decision on the supplemented applications by the legal representatives of victims to present evidence and the views and concerns of victims, Trial Chamber III, 22 February 2012, para 55 (‘Bemba, 22 February 2012’). 172 Lubanga, 26 June 2009 (n 171), para 26; Bemba, 22 February 2012 (n 171), paras 15–17, 19. 173 Lubanga, 18 January 2008 (n 19), para 116; Lubanga, 26 June 2009 (n 171), para 26. 174 Lubanga, 26 June 2009 (n 171), paras 21–22; Lubanga, 26 June 2009 (n 171), para 27.

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impacting the rights of the accused and a fair and impartial trial.175 Conditions and criteria are routinely applied to ensure a proper balance with the accused’s fundamental rights, especially where a victim would be testifying about the conduct of the accused.176 An example is the requirement that the proposed testimony assist the Chamber in the determination of the truth,177 in the sense of making a ‘genuine contribution to the ascertainment of the truth’.178 Also, the LRVs must explain the relevance of the proposed testimony and why it would be helpful to the Chamber to gain a better understanding of the facts.179 Not only must the proposed evidence affect the personal interests of the victim-witness, it also has to be directly related to the charges brought against the accused.180 And then there are three often-applied limitations requiring that: (i)

the evidence be consistent with the rights of the accused and a fair and impartial trial. This requirement includes the accused’s right to an expeditious trial as well as the right to have adequate time and facilities to prepare his or her defence according to Article 67(1)(b) of the Statute;181 (ii) victim-witnesses not be transformed into auxiliary prosecutors;182 and (iii) victim-witnesses not be anonymous to the defence.183 The impact of protective measures on the right to a public trial

Although victim-witnesses are required to relinquish their anonymity to the Defence before testifying, that does not mean they are no longer subject to protective measures while giving evidence. Rule 87 provides a vehicle for LRVs to apply for protective measures for victim-witnesses, or for the Chamber to do so on its own motion, after consultation with the VWU.184 Such measures may include anonymity to the public and use of a pseudonym while testifying,185 the redaction of any information in the public record that could identify the victim-witness,186

175 Katanga and Ngudjolo Chui, 1 December 2009 (n 70), para 21; Katanga and Ngudjolo Chui, 16 July 2010 (n 50), para 114. 176 Katanga and Ngudjolo Chui, 16 July 2010 (n 50), para 114. 177 Katanga and Ngudjolo Chui, 16 July 2010 (n 50), para 114. 178 Katanga and Ngudjolo Chui, 1 December 2009 (n 70), para 20; Bemba, 22 February 2012 (n 171), paras 18, 23(ii). 179 Katanga and Ngudjolo Chui, 1 December 2009 (n 70), para 20; Katanga and Ngudjolo Chui, 22 January 2010 (n 56), para 87. 180 Lubanga, 26 June 2009 (n 171), para 39; Lubanga, 11 July 2008 (n 158), paras 62–65. 181 Bemba, 22 February 2012 (n 171), para 23(i); Katanga and Ngudjolo Chui, 16 July 2010 (n 50), para 114; Katanga and Ngudjolo Chui, 1 December 2009 (n 70), paras 22(a), 23; Katanga and Ngudjolo Chui, 22 January 2010 (n 56), para 107. 182 Katanga and Ngudjolo Chui, 1 December 2009 (n 70), para 22(b). 183 Katanga and Ngudjolo Chui, 1 December 2009 (n 70), para 22(c); Bemba, 22 February 2012 (n 171), para 23(iii). 184 Rule 87(1) of the Rules. See also Lubanga, 26 June 2009 (n 171), para 12. 185 Rule 87(3)(a) and (d) of the Rules. 186 Rule 87(3)(a) of the Rules.

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the employment of electronic means for altering the sound of the victim’s voice or visual images of the victim,187 and hearing portions or all of the victims’ testimony in closed session.188 The impact of such protective measures on the right of the accused to a public trial are significant, in particular where portions of victims’ evidence are heard in closed or private session.189 The ‘public trial’ component to the right to a fair trial is particularly important in facilitating the search for the truth, in that members of the public could possibly come forward with evidence to rebut or clarify what evidence has been given by a victim-witness, were the public able to identify the testifying victim. This is one area where, by virtue of the participatory rights granted victims, the best that could arguably be hoped for is a minimization of the adverse consequences to an accused’s right to a fair trial, as is reflected in the Court’s decisions by the so-called ‘principle of proportionality’.190 Access by LRVs to the confidential record and inter partes evidence: Protective measures versus meaningful participation by victims The decisions of the Court provide differing rationales regarding the degree of access that LRVs should have to the non-public record of the case at trial (for example, confidential filings, decisions and other documents), including confidential inter partes disclosures and evidence. The trend has clearly been to grant LRVs access to such materials, but subject to differing conditions and qualifications, depending on the rationale that undergirds the granted access. A useful and concise summary of key decisions on this score is thus the following: In Lubanga, Trial Chamber I granted victims access, in defined circumstances, to confidential documents or information in the record, subject to relevant protective measures.191 In Katanga and Ngudjolo, Trial Chamber II decided that the legal representatives should have access to all confidential decisions and documents in the record of the case, with the exception of any document classified as ex parte, but restricted access to evidence to the legal representatives alone and not their clients [ICC-01/04-01/07-1788-tENG, paras 121–123]. In Bemba, Trial Chamber III decided that ‘in order to guarantee the effective expression of the views and concerns of participating victims, they are, through their legal representatives, to be notified in a timely manner of public and confidential filing [sic] whenever the Trial Chamber has resolved that their interests are engaged’ and ordered the parties and participating victims 187 188 189 190

Rule 87(3)(c) of the Rules. Rule 87(3)(e) of the Rules. ICC Statute, Article 67(1). See e.g. Lubanga, 13 October 2006 (n 27), para 37; Lubanga, 14 December 2006 (n 27), paras 33–34; Lubanga, 6 May 2008 (n 15), para 25. 191 Lubanga, 18 January 2008 (n 19), paras 106–107.

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The approach taken in Lubanga derives from a concern that confidential filings often contain sensitive information regarding national security, the protection of witnesses and victims, and the Prosecutor’s investigations.193 Such concerns form the basis for the qualification in Rule 131(2) on the right of the parties and the LRVs to consult the trial record, making it subject to ‘any restrictions concerning confidentiality and the protection of national security information’.194 But much as was argued above in connection with Rule 121(10) in the context of the pretrial record, the restrictions in Rule 131(2) ought to apply with equal force to the Prosecution and Defence alike, and not only to LRVs. It is thus questionable whether Rule 131(2) could serve as a legitimate basis for singling out the LRVs and presuming that they ought to have access only to public filings.195 The approach taken in Katanga was based on promoting ‘effective participation of victims at trial’196 and recognition of the fact that LRVs are obliged under Article 8(4) of the Code of Professional Conduct for counsel not to reveal the identity of protected witnesses and victims, or any confidential information that might reveal their identity or whereabouts.197 Significantly, the Katanga approach does not limit access to confidential filings, decisions and documents in the record to only LRVs with non-anonymous clients; instead it authorizes LRVs with both non-anonymous and anonymous victim-clients to have access to such documents.198 The Bemba Chamber granted LRVs access to confidential filings of relevance to the victims’ views and concerns, ‘in order to facilitate full participation by victims’ (for example, ‘guarantee the effective expression of the views and concerns of participating victims’) and because it was in the ‘interests of justice’ to do so.199 However, and much like in Katanga, not extending access beyond the LRVs to the victims themselves was borne out of a concern for preserving protective measures and the security of individuals or organizations.200 In a more recent decision of another Chamber, security concerns in the country where the victims reside

192 193 194 195 196 197 198 199 200

Ruto and Sang, 3 October 2012 (n 2) 28, footnote 33. Lubanga, 18 January 2008 (n 19), para 106. Rule 131(2) of the Rules. Lubanga, 18 January 2008 (n 19), para 106. Katanga and Ngudjolo Chui, 22 January 2010 (n 56), para 121. Katanga and Ngudjolo Chui, 22 January 2010 (n 56), para 120; Code, Article 8(4). Katanga and Ngudjolo Chui, 22 January 2010 (n 56), para 121. Bemba, 12 July 2010 (n 19), para 47. Bemba, 12 July 2010 (n 19), para 47.

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served as grounds for allowing only the LRVs (not the victim-clients) access to confidential filings, whenever the contents of such filings are relevant to the personal interests of the victims.201 The objective behind that decision was to ‘ensure that the participation by victims is meaningful’.202 What is clear from the rationales for granting LRVs access to the confidential record is the recognition in these decisions that such access is indispensable to effectuating the participatory rights granted to victims under the Statute. A delicate balance has, nonetheless, been struck – not necessarily with the rights of the accused in this instance, but with the need to preserve and protect individuals or other interests that are the subject of protective measures or confidential orders. Access by LRVs to the evidence disclosed between the parties has been justified in much the same terms as the access granted to LRVs to confidential filings, decisions and documents.203 LRVs have been granted access to the evidence of the parties, ‘in order to give full effect to victim participation at trial’.204 Such access has been granted to only the LRVs and not the victims themselves, for reasons owing partially to the protection of individuals and other interests.205 Furthermore, some Chambers make no correlation between an LRV’s access to inter partes evidence and whether his or her victim-clients are anonymous or not anonymous to the Defence;206 other Chambers ostensibly consider anonymity as weighing against granting LRVs access to such evidence.207 As a general matter, however, anonymity on the part of participating victims at trial is permissible,208 but it is made dependent on the nature and circumstances of their participation. Thus ‘[t]he greater the extent and the significance of the proposed participation, the more likely it will be that the Chamber will require the victim to identify himself or herself’.209

Appeals proceedings Generally, victims must apply for leave to participate in appeals, since they are not parties to the proceedings.210 The Appeals Chamber has articulated the applicable

201 Ruto and Sang, 3 October 2012 (n 2), paras 67–68. 202 Ruto and Sang, 3 October 2012 (n 2), para. 67. 203 See e.g. Katanga and Ngudjolo Chui, 22 January 2010 (n 56), para 122; Ruto and Sang, 3 October 2012 (n 2), para 69; Katanga and Ngudjolo Chui, 13 May 2008 (n 78) 38, footnote 104. 204 Katanga and Ngudjolo Chui, 22 January 2010 (n 56), para 122. 205 See e.g. Katanga and Ngudjolo Chui, 22 January 2010 (n 56), paras 120–123; ICC-01/09-01/11-460 (n 3), paras 68–69. 206 See e.g. Ruto and Sang, 3 October 2012 (n 2), paras 68–69; Prosecutor v Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, ICC-01/09-02/11-498. Decision on victims’ representation and participation, Trial Chamber V, 3 October 2012, para 68. 207 Katanga and Ngudjolo Chui, 22 January 2010 (n 56), para 122. 208 See e.g. Katanga and Ngudjolo Chui, 22 January 2010 (n 56), para 93; Lubanga, 18 January 2008 (n 19), paras 130–131; Bemba, 12 July 2010 (n 19), paras 61–69, 72–73. 209 Lubanga, 18 January 2008 (n 19), paras 131. See also Bemba, 12 July 2010 (n 19), para 72; Katanga and Ngudjolo Chui, 22 January 2010 (n 56), paras 92–93. 210 See ICC Statute, Article 82(1) and (2).

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criteria for evaluating such applications. These criteria vary slightly depending on the statutory basis upon which an appeal lies; they also clearly evidence the Appeals Chamber’s concern about ensuring that participation of victims is consistent with the requirements of Article 68(3) and not prejudicial to, or inconsistent with, the accused’s rights and a fair and impartial trial. In the context of appeals under Articles 82(1)(b) and 82(1)(d) of the Statute, for example, the Appeals Chamber has consistently required victims to satisfy the following four criteria before authorization to participate may be granted: (i) (ii) (iii) (iv)

those seeking participation must be victims in the case; their personal interests must be affected by the issues on appeal; their participation must be at an appropriate stage of the proceedings; and the manner of their participation should neither cause prejudice to, nor be inconsistent with, the rights of the accused and a fair and impartial trial.211

The Appeals Chamber has additionally prescribed that: [i]n seeking to demonstrate that their personal interests are affected, victims should generally ensure, inter alia, that express reference is made to the specific facts behind their individual applications, and the precise manner in which those facts are said to fall within the issue under consideration on appeal.212 Thus, determinations by Pre-trial Chambers under Rule 89(1) are not binding upon the Appeals Chamber in the context of interlocutory appeals: An interlocutory appeal . . . is a separate and distinct stage of the proceedings. The Appeals Chamber, pursuant to article 68(3), is required to determine whether the participation of victims in relation to that particular appeal is appropriate. It cannot automatically be bound by the previous determination of the Pre-Trial Chamber that it was appropriate for the victims to participate

211 See e.g. Prosecutor v Jean-Pierre Bemba Gombo, ICC-01/05-01/08-1597 26-09-2011OA 7, Decision on the Participation of Victims in the Appeal against the ‘Decision on Applications for Provisional Release’ of Trial Chamber III, Appeals Chamber, 14 July 2011 (filed 26 September 2011), para 7; Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/07-2124 OA 11, Decision on the Participation of Victims in the Appeal of Mr Katanga Against the ‘Decision on the Modalities of Victim Participation at Trial’, Appeals Chamber, 24 May 2010, para 5; Prosecutor v Laurent Gbagbo, ICC-02/11-01/11-491 OA 4, Decision on the application by victims for participation in the appeal, Appeals Chamber, 24 August 2013, para 9; Prosecutor v Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-70 OA, Decision on the Second Application by Victims a/0443/09 to a/0450/09 to Participate in the Appeal against the ‘Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir’, Appeals Chamber, 28 January 2010, para 9. 212 Prosecutor v Joseph Kony, Vincent Ottif Okot Odhiambo, Dominic Ongwen, ICC-02/04-01/05-324 OA 2, Decision on the participation of victims in the appeal, Appeals Chamber, 27 October 2008, para 13.

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before the court of first instance . . . [I]t it is for the Appeals Chamber to determine whether the participation of victims in a particular interlocutory appeal is appropriate.213

Concluding remarks This chapter has sought to analyse various decisions of the Court since the Statute took effect to identify points of tension between fundamental rights granted accused persons and participatory rights granted victims. Such points of tension have been identified in all three phases of the proceedings which were examined (pre-trial, trial and appeals), with the proviso in Article 68(3) of the Statute – that victim participation not be prejudicial to, or inconsistent with, the rights of the accused and a fair and impartial trial – identified as a consistent concern in decisions of the Court, regardless of the stage of the proceedings under consideration. In explicating the jurisprudential standards and procedures that have been employed as mechanisms for attenuating such points of tension and achieving a proper balance between competing rights, it has been argued that the search for truth and a fair and impartial trial ought to take precedence in the analytical process, over and above a narrower focus on the issue of prejudice to an accused’s rights. Such an approach would yield more predictable, uniform and fair results over time, regardless of the particular facts of each case.

213 Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-824 OA 7, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-trial Chamber I entitled ‘Décision sur la demande de mise en líberté provisoire de Thomas Lubanga Dyilo’, Appeals Chamber, 13 February 2007, para 43.

5

Lubanga Decision on victims’ reparations Handing off the hot potato? Paolo Lobba*

Introduction On its tenth anniversary the ICC (or ‘Court’) was rightly celebrated for delivering its first judgment, in the case of Thomas Lubanga Dyilo (‘the Accused’). Less celebrated but equally as important is the related Court’s ‘Decision Establishing the Principles and Procedures to be Applied to Reparations’ (‘Decision on Reparations Principles’ or ‘Decision’),1 given that reparations for victims is an aspect commonly considered critical to the success of this permanent institution, which pushes international justice beyond purely punitive responses to mass crime.2 The Decision on Reparations Principles comes as the last step of first-instance trial against the Accused, nearly five years after the proceedings before Trial Chamber I (‘the Chamber’ or the ‘Trial Chamber’) began.3 This Decision followed the Judgment4 – which declared that the Accused was responsible for the war crimes of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities – and the Sentencing Decision5 – which sentenced the Accused to 14 years in prison. The long-awaited Decision fell short of the expectations of scholars of the field and victims’ rights advocates. First, research efforts appear to be far inferior than

* The views expressed herein are those of the author alone and do not necessarily reflect the views of the ECCC or the UN in general. I am much indebted to HE Motoo Noguchi and Dr Elena Maculan for their valuable comments on an earlier version of this article. All errors and omissions remain mine alone. 1 Prosecutor v Thomas Lubanga Dyilo (‘Lubanga’), ICC-01/04-01/06-2904, Decision Establishing the Principles and Procedures to be Applied to Reparations, Trial Chamber I, 7 August 2012. 2 See e.g. Lubanga, ICC-01/04-01/06 (annexed to ICC-01/04-01/06-8-Corr, 24 February 2006), Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58, Pre-Trial Chamber I, 10 February 2006, para 136. 3 The first status conference before the Trial Chamber was held on 4 September 2007. The presentation of evidence, however, began on 28 January 2009. 4 Lubanga, ICC-01/04-01/06-2842, Judgment Pursuant to Article 74 of the Statute, Trial Chamber I, 14 March 2012 (‘Judgment’). 5 Lubanga, ICC-01/04-01/06-2901, Decision on Sentence Pursuant to Article 76 of the Statute, Trial Chamber I, 10 July 2012 (‘Sentencing Decision’).

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those demonstrated in the Judgment – for one thing, the Chamber sought little guidance in comparative law and practice, notably omitting any mention of the principles set out in the decisions of the UN-backed ECCC, which confronted similar issues. Second and foremost, apart from some intuitive declarations of a general nature, the thrust of the decision does not amount to much more than a delegation of power. Design and implementation of the reparation plan shall be carried out by the TFV, subject to the Chamber’s overall supervision. The present article purports to outline the main findings of the Decision on Reparations Principles and assess them against the broader context of developments in international law regarding the right to reparation for victims of serious crimes. In particular, it seeks first to evaluate whether the Chamber’s delegation of power is in conformity with relevant statutory provisions, and second, whether it is a desirable avenue to be followed in future cases. Furthermore, the article draws a parallel between the Decision’s principles and the solutions adopted under similar circumstances by the ECCC, outlining what lessons could have been learned – lessons that remain useful, given that the Lubanga appeal is still pending. This chapter is divided into four parts. First the relevant legal framework is set forth concerning reparations for victims of serious crimes, with special regard to the law applicable to proceedings before the ICC. I shall then describe the principles and rules of procedure established by the Decision. A critical assessment of the Decision’s findings follows, addressing the issue of whether the principles set out by the Chamber provide sufficient guidance for the TFV. Finally I focus on four questions, the resolution of which might provide the Appeals Chamber with valuable direction in the jurisprudence of the ECCC.

Legal framework The right to reparation for victims of serious crimes In the field of international law, the right to reparation has been well established since the 1928 judgment of the Permanent Court of International Justice in the seminal Chorzow Factory case.6 The judicial organ of the League of Nations held that (i) every violation of a right involves an obligation that a remedy be afforded, and (ii) the breach is to be redressed, in so far as possible, through restitutio in integrum – in other words, reparation must fully restore the prior lawful situation.7 Whereas the right to reparation may thus be considered firmly established, it was developed within general international law. It follows that its binding value remained confined to the realm of State responsibility, wherein only inter-State relations are envisaged. However, the principle that the damage resulting from wrongful acts must be made good has been declared by a conspicuous number of

6 Case Concerning Factory at Chorzow (Germany v Poland), 1928, P.C.I.J. (ser. A) No. 17. 7 Case Concerning Factory at Chorzow (Germany v Poland), paras 73, 125.

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global and regional human rights instruments, thereby leading to its gradual recognition as an essential element of international human rights law.8 A notable contribution to the development of the right to reparation in international human rights law has also been made by relevant provisions in regional human rights conventions9 and, most notably, by the jurisprudence of their respective specialized courts. In particular, the Inter-American Court of Human Rights has laid down a multifaceted catalogue of reparations measures, through a dynamic interpretation of the American Convention on Human Rights. In contrast, the right to reparation has long remained unknown to international criminal justice, in which participation of victims in proceedings was limited to witness testimony.10 However, even before – and independently from – the groundbreaking framework envisaged by the Statute of the ICC (‘the Statute’),11 provisions on reparations have been included in some of the legal compendia regulating international(ized) criminal tribunals.12 The right in question was likewise emphasized by acts of soft law.13

8 See e.g. Universal Declaration on Human Rights, G.A. Res. 217A (III), U.N. GAOR, 3rd Sess., U.N. Doc. A/810 (1948), Article 8; International Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171, Article 2(3); Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, 660 U.N.T.S. 195, Article 6; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 U.N.T.S. 85, Article 14(1); Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, 25 May 2000, 2171 U.N.T.S. 227, Article (4); International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, 2716 U.N.T.S., Article 24(5) and (5). See also United Nations Human Rights Committee, General Comment No. 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13, 26 May 2004, paras 15–16. 9 See e.g. American Convention on Human Rights, 22 November 1969, 1144 U.N.T.S. 143, Article 63(1); European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 221, Articles 13, 41. 10 The Statutes of both the ICTR and ICTY do not feature any provision envisaging a legal mechanism to redress the violations suffered by victims, save for (unapplied) norms concerning restitution of stolen property and limited regulations aimed to facilitate compensation at the domestic level (Rules of Procedure and Evidence of ICTY/R, Rule 106). On this point, see e.g. the recommendations advanced by the Presidents of the ICTY and ICTR to the Security Council: Letter from the Secretary-General to the President of the Security Council, U.N. Doc. S/2000/1063 (3 November 2000); Letter from the Secretary-General to the President of the Security Council, U.N. Doc. S/2000/1198 (15 December 2000). 11 Rome Statute of the International Criminal Court (17 July 1998), UN Doc A/CONF.183/9 of 17 July 1998, entered into force 1 July 2002 (‘ICC Statute’). 12 See e.g. Statute of the Special Tribunal for Lebanon (attached to the Security Council Res. 1757 (2007), U.N. Doc. S/RES/1757 (30 May 2007), Article 25(3); ECCC’s Internal Rules (‘ECCC IR’), Rules 23(1)(b) and 23 quinquies (Rev. 8); see also SCSL Agreement (Ratification) Act, 2002, Article 45. 13 See e.g. UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 60/147, UN GAOR, 60th Sess., U.N. Doc. A/RES/60/147 (21 March 2006); Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, G.A. Res. 40/34, UN GAOR, 40th Sess., U.N. Doc. A/RES/40/34 (29 November 1985).

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For a variety of reasons, however, reparations schemes attached to ad hoc international(ized) criminal tribunals have thus far attained little result in practice. That is why there were and still are great expectations raised by the novel system framed in the Statute of the ICC. The legal framework of victims’ reparations at the ICC While the focus here is to give a brief overview of the key features characterizing the system of reparations at the ICC,14 it should be borne in mind that the Statute marks a twofold radical turn toward an enhanced role of victims in international criminal justice. Not only does it delineate an innovative and comprehensive reparations process, but it also provides victims with significant participatory rights, permitting them to actively join the proceedings.15 The Statute and the ICC RPE contain few clauses devoted to the substantive and procedural issues relating to reparations, leaving their clarification for future case law. The opening provision of the Statute dealing with reparations is Article 75. Its first paragraph mandates that the Court establish principles concerning victims’ reparations, which may include restitution, compensation and rehabilitation. This precept is central to the object of the present article, since it was precisely pursuant to it that the Trial Chamber in Lubanga rendered its Decision on Reparations Principles – outlined and commented on below (p 114). Article 75(1) omits any specification as to the content and the scope of such principles; nor does it give guidance as to whether they should be established on a case-by-case basis or, rather, by means of general directions independent of a particular case or situation before the ICC.16 The provision only suggests that the

14 On the reparations regime before the ICC, see e.g. Eva Dwertmann, The Reparation System of the International Criminal Court, 2010, Leiden: Martinus Nijhoff; Hector Olásolo and Alejandro Kiss, ‘The Role of Victims in Criminal Proceedings Before the International Criminal Court’ (2010) 81 Revue internationale de Droit Pénal 128; David Donat-Cattin, ‘Article 75: reparations to victims’, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court. 2nd edn, 2008, Munich: Beck, p 1399; Marc Henzelin, Veijo Heiskanen and Guénael Mettraux, ‘Reparations To Victims Before the International Criminal Court: Lessons from International Mass Claims Processes’ (2006) 17(3) Criminal Law Forum 317; Carla Ferstman, ‘The Reparation Regime of the International Criminal Court: Practical Considerations’ (2002) 15(3) Leiden Journal of International Law 667; Claude Jorda and Jérôme De Hemptinne, ‘The status and role of the victim’, in Antonio Cassese, Paola Gaeta and John RWD Jones, (eds), The Rome Statute of the International Criminal Court: A Commentary, vol 2, 2002, Oxford: Oxford University Press, p 1387. 15 See e.g. ICC Statute, Article 68(3). 16 The Assembly of States Parties (‘ASP’) requested the Court ‘to ensure that Court-wide coherent principles relating to reparations [be] established’ (ASP, ICC-ASP/10/20, Resolution ICC-ASP/10/ Res.3, 20 December 2011, para 1). However, the Court thus far declined to issue case-independent guidelines, maintaining that ‘principles [will] be developed though the jurisprudence of the Court and finally unified by the Appeals Chamber’ (ASP, ICC-ASP/12/38, Report of the Bureau on Victims and Affected Communities and the Trust Fund for Victims, Including Reparations and Intermediaries, 15 October

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Court may assess the extent of any damage, loss and injury undergone by victims. In order to facilitate this evaluation, the Court may appoint appropriate experts.17 The drafters opted for a broad definition of the organ tasked to discharge the obligation under Article 75(1), given its reference to ‘the Court’ as a whole. As indefinite as this term might be, it seems clear that the determination of principles falls under the responsibility of the judiciary – the ICC trial and appeals chambers – excluding, notably, administrative organs such as the Registry and the TFV. Finally, it is worth stressing that, while the decision on principles is of a mandatory nature, a pronouncement on the specific modalities of reparations is merely permitted – not imposed – by the Statute, thus granting judges a wide margin of appreciation in the conduct of the reparations phase. The second paragraph of Article 75 confers on the Court the discretionary power to make a reparations order directly against the convicted person. In other words, the convicted person might be requested to bear the burden of reparations measures awarded to, and with respect to, victims. Such an order may only benefit a restricted class of victims, namely those affected by the crimes for which the convicted person was found responsible. In this case, sufficient evidence needs to be provided as to the harm suffered by individual applicants as a consequence of criminal acts attributed to the convicted person.18 The fact that reparations may be carried out through individual awards paid directly by convicted persons to eligible beneficiaries still appears to be a remote possibility. For one thing, given that the Court’s competence is focused on large-scale crimes, the precise assessment of harm, causal link, victims’ identity, appropriate modalities of redress and other requirements are expected to make the process extremely complex. Faced with this looming process, and mindful of the risk to be deflected from their core tasks, judges may prefer to delegate the implementation of reparation schemes to a more suitable organ. A further difficulty lies in the financial resources of convicted persons, unlikely to be capable of satisfying the demands of a considerable number of gravely harmed victims. Such are some of the reasons behind the second part of Article 75(2), which reads that ‘[w]here appropriate, the Court may order that the award for reparations be made through the [TFV]’. This might be the case where it is ‘impossible or impractical to make individual awards directly to victims’,19 or where ‘the number of victims and the scope, forms and modalities of reparations makes a collective award more appropriate’.20 Reparations may 2013, para 9). The Court has not excluded, though, that ‘the matter may be elucidated even further’, after the conclusion of pending cases (ASP, ICC-ASP/12/39, Report of the Court on Principles Relating to Victims’ Reparations, 8 October 2013, para 18). 17 18 19 20

RPE, Rule 97(2). ICC Statute, Article 75(2) in conjunction with RPE, Rule 85. RPE, Rule 98(2). RPE, Rule 98(3).

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also be put in place involving intergovernmental, international or national organizations.21 The TFV – one of the key innovations inserted into the Statute – is entrusted with a dual function. On the one hand, it shall assist the Court in implementing its reparations orders, thereby fulfilling a judicial mandate.22 On the other hand, it may – regardless of, and even prior to, a Court’s determination on the criminal responsibility of the accused23 – undertake activities ‘for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims’24 – the so-called assistance mandate.25 Whereas, in the latter case, implementation of victim-supportive projects is unrelated to the Court’s reparations orders, in the former the TFV acts upon delegation by the Court and is therefore subject to its directions, as substantiated in the decision(s) adopted pursuant to Article 75. The TFV is funded by: (i)

voluntary contributions (e.g. donations by governments, organizations and individuals); (ii) assets collected through fines or forfeiture, transferred to the TFV by a Court’s order pursuant to Article 79(2) of the Statute;26 (iii) resources collected through awards for reparations following a Court’s order pursuant to Rule 98 of the RPE; and (iv) eventual funds allocated by the Assembly of States Parties in addition to assessed contributions.27 Depending on which source funds originate from, different regimes apply, with varying degrees of discretion accorded to the TFV.

21 RPE, Rule 98(4). 22 ICC Statute, Articles 75(2) and 79(2); RPE, Rule 98(1)–98(4). 23 But see Regulations of the Trust Fund for Victims, annexed to ASP Resolution ICC-ASP/4/ Res.3, 3 December 2005 (‘TFV Regulations’), para 50(a)(ii) and (iii) (placing a duty on the Board of Directors of the TFV to notify the Court of any planned activity, so that the judges may evaluate whether such projects adversely impact ongoing proceedings). 24 ICC Statute, Article 79(1); RPE, Rule 98(5). 25 See e.g. Situation in the Central African Republic, ICC-01/05-39, Notification by the Board of Directors, TFV, 11 October 2012 (projects planned by the TFV aimed in particular at rendering assistance in support of victims of sexual and gender based violence in the Central African Republic) to which the Court, after an initial rejection in 2009 due to the proposals’ lack of specificity, did not object: Situation in the Central African Republic, ICC-01/05-41, Decision on the ‘Notification by the Board of Directors’, Pre-Trial Chamber II, 23 October 2012. Projects were presented by the TFV in 2008 (and not objected by the competent Chamber) also with regard to assistance activities to be performed in Uganda and in the Democratic Republic of Congo. For a recent account of the activities undertaken under the TFV’s assistance mandate, see ASP, ICC-ASP/12/14, Report to the [ASP] on the Projects and the Activities of the Board of Directors of the Trust Fund for Victims for the Period 1 July 2012 to 30 June 2013, 31 July 2013, paras 12 et seq. 26 See also ICC Statute, Article 77(2). 27 TFV Regulations, para 21.

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When dealing with resources collected through fines, forfeiture and awards for reparations – that is, resources seized from the accused – the TFV acts as a depository and must accomplish this function following the Court’s instructions. In this regard, a crucial role will be played by the decisions under Article 75(1). It must be emphasized that resources originating in awards for reparations are to be utilized solely for the benefit of victims directly or indirectly affected by the crimes committed by the convicted person.28 In contrast, ‘other resources’29 (primarily, voluntary contributions) may be destined to subsidize activities falling under the assistance mandate of the TFV – that is, independently of the Court’s proceedings. However, the TFV Board of Directors is invited to take into consideration the fact that such ‘other resources’ might be also needed to ‘complement’ the funds required to accomplish the Court-ordered Article 75-based reparation schemes.30 Therefore, it seems that the activities developed within the TFV assistance mandate should be conceived in such a manner so as to avoid the depletion of the Fund’s financial means (which are presumably limited), thereby maintaining a reasonable balance between the two functions of the TFV.31

The Decision on principles to be applied to reparations The Decision adopted in Lubanga pursuant to Article 75(1) of the Statute may be divided into two parts, the first one articulating substantive principles on reparations, and the second one laying down procedural aspects of the process. The Decision’s substantive principles First of all, the Chamber set out the applicable law, recognizing that the right to reparation is a ‘well-established and basic human right’, as confirmed by a multitude of international instruments and practices, from which it allegedly derived ‘guidance’.32 It then established a number of general principles about the modality in which victims may be involved in the process. In short:

28 29 30 31

TFV Regulations, para 46. RPE, Rule 98(5). TFV Regulations, para 56. Cf. Situation in the Democratic Republic of Congo, ICC-01/04-492, Decision on the Notification of the Board of Directors [. . .], Pre-Trial Chamber I, 11 April 2008, 7 (arguing that ‘the responsibility of the [TFV] is first and foremost to ensure that sufficient funds are available’ for Court-ordered reparation awards (emphasis added)). This approach is called into question by Carla Ferstman and Mariana Goetz, ‘Reparations before the International Criminal Court’, in Carla Ferstman, Mariana Goetz and Alan Stephens (eds), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity, 2009, Leiden: Martinus Nijhoff, pp 313, 346. 32 Decision (n 1), para 185.

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(i)

victims are to be treated with humanity, in a fair and equal manner, without adverse distinction on the grounds of gender, age, race, etc.;33 (ii) the Chamber persistently34 underlined, in particular, that reparations must be formulated and awarded on a non-discriminatory and gender-inclusive basis;35 and (iii) victims are to own the reparations proceedings, meaning that their participation should be facilitated and solicited throughout the whole process; in this regard, proposals must be drafted upon consultation with victims and must reflect their needs, and programmes cannot be implemented without the informed consent of the recipient.36 A significant finding concerns the identification of beneficiaries. Considering the limited scope of the charges brought against the Accused – echoed in the limited representativeness of victims who participated in the trial – the Chamber held that awards should target all victims, irrespective of whether or not they joined the proceedings or applied for reparations.37 Beneficiaries include direct and indirect victims as well as legal entities. Indirect victims are defined as individuals having a ‘close personal relationship’ with a direct victim, regard being had to the local understanding of the concept of family.38 Against this wide array of potential beneficiaries, the Chamber singled out some categories of victims to whom priority should be accorded. This group encompasses persons in a particularly vulnerable situation or in need of urgent assistance, such as victims of sexual- or gender-based violence, those requiring immediate medical care and severely traumatized children.39 The broad approach concerning the beneficiaries of reparations measures is echoed in the Chamber’s holdings relating to the form and modalities of reparations. Although a preference for collective awards clearly transpires from the Decision,40 the judges also left this issue open-ended, asserting that ‘[i]ndividual and collective reparations are not mutually exclusive, and they may be awarded concurrently’.41 Slightly lesser vagueness characterizes the Chamber’s determination concerning the modalities of reparations. Since restitution and compensation most likely

33 Decision (n 1), paras 190–192. 34 The Trial Chamber reiterated eleven times that reparations and related process must be framed in a gender-inclusive manner. 35 See e.g. Decision (n 1), paras 202, 211, 218, 227, 232, 243. 36 Decision (n 1), paras 202–206. 37 Decision (n 1), paras 187, 194, and fn. 383. 38 Decision (n 1), paras 194–197. See also Lubanga, ICC-01/04-01/06-1432, Judgment on the Appeal of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, Appeals Chamber, 11 July 2008; Lubanga, ICC-01/04-01/06-1813, Decision on ‘indirect victims’, Trial Chamber I, 8 April 2009, paras 51–52. 39 Decision (n 1), para 200. 40 Decision (n 1), paras 219, 274, 282, 289(c). 41 Decision (n 1), para 219.

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appeared as either unfeasible or inopportune under the circumstances,42 the Decision expressed implicit support for measures of rehabilitation, referring to medical, psychological, social and legal assistance.43 It also envisioned symbolic forms of redress, such as commemorations, the delivery of judgment and its dissemination, along with victim-supportive campaigns, outreach, and promotional and educational programmes at large.44 As for the causal link between the crime and the harm, the Chamber refrained from adopting a restrictive position, favouring yet again a flexible approach. Reparations thus are not limited to direct harm or the immediate effects of the crimes themselves, but should extend to any damage of which such crimes were the ‘proximate cause’.45 Flexibility also inspired the determination regarding the standard of proof to be applied to victims’ claims, which was identified as that of ‘a balance of probabilities’.46 Also noteworthy is the Chamber’s opinion on the impact that the Accused’s state of indigence has on reparations orders. The assessment that no income, assets or property of the Accused have been identified has, in the judges’ view, precluded the possibility of making an order against him. As a consequence, no obligation has been placed upon Lubanga, who may only consent to participate in symbolic reparations such as apology.47 That is why the Decision provided that reparations measures are to be not only entirely devised, but also funded by the TFV, which was instructed to have recourse to its ‘other resources’ (mostly consisting of voluntary contributions) to implement the awards, without prejudice to its assistance mandate.48 The Chamber declined to rule on the individual applications for reparations submitted by the victims, dictating that they instead be transmitted to the TFV for consideration in the design of the implementation plan.49 Competence and procedure in the implementation process The Decision’s main binding effect may be considered to be a delegation of power. The Chamber ordered that the reparations process be ‘dealt with principally by the TFV’,50 which it entrusted with broad discretion in relation to nearly the totality of issues pertaining to the design and implementation of reparations. In this respect, the Chamber tasked the TFV with:

42 43 44 45 46 47 48 49 50

Decision (n 1), paras 223, 226 and fn. 420. Decision (n 1), paras 232–236. Decision (n 1), paras 236–239. Decision (n 1), paras 249–250. Decision (n 1), para 253. Decision (n 1), paras 241, 269. Decision (n 1), paras 270–273. Decision (n 1), paras 284, 289(b). Decision (n 1), para 261.

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identifying localities and beneficiaries; assessing the harm suffered by victims; determining appropriate forms of reparations; and implementing reparations.51

The judges strongly recommended that, in the execution of these operations, the TFV be assisted by a ‘multidisciplinary team of experts’, and delegated to the TFV the task of selecting, appointing and overseeing said team, pursuant to Rule 97(2) of the RPE.52 Such considerable margin of appreciation bestowed on the TFV goes hand in hand with judicial supervision. Relying on Article 64(2) and (3)(a) of the Statute – general provisions on its functions and powers – the Chamber decided to remain seized of the process, thereby assuming a dual role in the reparations phase. On the one hand, such a role contemplates a monitoring function over the TFV, which is called upon to report regularly to the Chamber about progress of its delegated activities.53 On the other hand, the Chamber may always intervene to resolve any contested issues arising out of the work and the decisions of the TFV, in order to ensure that the process is conducted fairly and expeditiously, and fully respects the rights of the convicted person.54 In any event, these functions are to be undertaken by a newly composed Chamber.55 Finally, the Decision put forward the five-point implementation plan that must be carried out by the TFV, in cooperation with the Registry and the OPCV.56 The steps of the reparations process were outlined as follows: (i) (ii) (iii) (iv) (v)

identification of localities; consultation with victims and communities; assessment of harm undertaken by appointed experts; public meetings to explain reparations principles and procedure; and collection of proposals for collective reparations to be submitted to the Chamber for final approval.

Critical remarks on the (presumed) reparations order It should be noted, at the outset, that the Decision is not final given that appeals have been lodged by the Defence, OPCV and LRVs.57 Pending the outcome of

51 52 53 54 55 56 57

Decision (n 1), paras 266, 282–283. Decision (n 1), paras 263–265. Decision (n 1), paras 260, 286. Decision (n 1), paras 262, 286; ICC Statute, Article 64(2) and (3)(a). Decision (n 1), para 261. Decision (n 1), para 282. Lubanga, ICC-01/04-01/06-2917-tENG, Appeal of the Defence for Mr Thomas Lubanga against [the Decision], Defence, 6 September 2012; Lubanga, ICC-01/04-01/06-2909-tENG, Appeal

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such appeals – which have already been declared admissible pursuant to Article 82(4) of the Statute58 – the Decision’s effects have been suspended.59 In fact, the Appeals Chamber clarified that an order for reparations could never be executed unless and until a conviction becomes final.60 As described above, the Decision’s findings only rarely take the form of binding directions, for the most part consisting of broad-spectrum guidelines and recommendations to the TFV. The question therefore is whether this loosely framed delegation of power is permitted under the ICC legal framework and, if so, whether it was an adequate course of action. It was recalled61 that Article 75(1) of the Statute confers upon ‘the Court’ the task of establishing principles relating to reparations; hence it is a mandatory judicial function. On the other hand, the Statute and the RPE envision other evaluations that the Court is permitted – not obliged – to undertake, such as the assessments concerning the scope and extent of any damage, loss or injury, as well as the selection of appropriate types and modalities of reparations. In particular, the Court, after having performed its obligation to establish reparations principles, may further decide whether reparations: (i) are ordered directly against the convicted person or made through the TFV;62 (ii) entail individual or collective awards, or both;63 and/or (iii) involve restitution, compensation, rehabilitation or other modalities.64 It must be determined whether the Decision adequately discharged the duties placed upon the Court, and whether the tasks delegated to the TFV are just potentially, rather than necessarily, judicial in nature. This question is intertwined with the discussion surrounding the contentious legal characterization of the Decision as an ‘order for reparations’. The Trial Chamber rejected the Decision’s qualification as reparations order, maintaining that it only ‘establishe[d] principles and procedures relating to reparations, pursuant to Article 75(1)’.65 The Chamber thus implied that Article 75 of

against [the Decision], OPCV and Legal Representatives of Victims V02, 24 August 2012; Lubanga, ICC-01/04-01/06-2914-tENG, Appeal against [the Decision], Legal Representatives of Victims V01, 3 September 2012. 58 Lubanga, ICC-01/04-01/06-2953, Decision on the admissibility of the appeals against [the Decision] and directions on the further conduct of proceedings, Appeals Chamber, 14 December 2012 (‘Admissibility Decision’), paras 65–72. 59 Admissibility Decision, para 83. 60 Admissibility Decision, para 86. 61 See p 110 above. 62 ICC Statute, Articles 75(2) and 79(2); RPE, Rule 98(1)-(4). 63 RPE, Rules 97(1) and 98 (1)-(3). 64 ICC Statute, Article 75(1)-(2). 65 Lubanga, ICC-01/04-01/06-2911, Decision on the defence request for leave to appeal [the Decision], Trial Chamber, 29 August 2012, para 20.

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the Statute envisages two distinct decisions, namely the one establishing principles and the reparations order, which may either be adopted separately or be combined in a formally unique decision. The Appeals Chamber took the opposite view, stating that the Decision ‘is deemed to be an order for reparations’.66 In the Chamber’s opinion, two steps may be identified in the reparations process: the issuance of the reparations order; and the implementation of such an order.67 Since the Decision – notably in its second part – mandated that various implementation activities be undertaken by the TFV, and considering that the TFV may be seized of Court-ordered reparations proceedings only following the delivery of a reparations order, the Appeals Chamber found that the decision may be considered to be an order for reparations.68 Instead, the issue concerning the nature of the Trial Chamber’s final approval of the TFV-drafted implementation plan was left unsettled, which presupposes in any event the prior issuance of a reparations order.69 The TFV agreed with the Appeals Chamber in that the Decision is tantamount to an order for reparations.70 It further suggested that, in the absence of statutory provisions setting out the minimum level of specificity that is required of a reparations order, such an order may indeed contain minimal directions. Notably, a Trial Chamber could limit itself to order that reparations be made through the TFV, adding – as it did in the present case – that collective awards are preferable.71 In conclusion, it appears that, once reparations principles have been established, the main determination that necessarily falls upon the judiciary centres is whether, in the first place, reparations are to be awarded, and if so, whether they are to be borne by the convicted person or are instead to be made through the TFV. It seems also unambiguous that the level of specificity of a reparations order depends on the type of measures. In this regard, the TFV put forth that a more detailed order is required when individual awards are contemplated.72 Although the TFV’s position is reasonable, it is hereby submitted that the crucial factor lies above all in the extent to which the rights of the convicted person are affected by the order for reparations. The required threshold of precision must be proportionate to the impact that such an order will have on the rights of the convicted person (e.g. property rights). We must now apply these criteria to the present case. Apart from a wealth of vague recommendations, the core of the Decision lies in the Chamber’s preference for collective awards, without excluding individual measures, to be devised

66 67 68 69 70

Admissibility Decision (n 58), paras 51, 64. Admissibility Decision (n 58), para 53. Admissibility Decision (n 58), paras 51, 55, 57, 60. Admissibility Decision (n 58), paras 57, 63 and fn. 166. Lubanga, ICC-01/04-01/06-3009, Observations of the Trust Fund for Victims on the Appeals against [the Decision], TFV, 8 April 2013 (‘TFV Observations’), para 39. 71 TFV Observations, paras 50–51, 59, 63–64, 126. 72 TFV Observations, paras 59.

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and implemented by the TFV. The Decision also specifies which victims groups should be prioritized, within a wide and indefinite range of beneficiaries, which is coupled with remarkable flexibility in both standard of proof and criteria of causation.73 Since the ICC legal framework lacks any provisions drawing the minimum level of specificity required of a reparations order, the Decision on Reparations Principles – though unquestionably vague – does not contravene any explicit regulation that would invalidate it. As mentioned, however, an inherent limitation lies in the imperative that respect for the rights of the convicted person be secured throughout the whole process. In the case at hand, the decisive element does not lie as much in the forms or modalities of reparations as it does in the fact that they are not to be borne by Lubanga. Accordingly, there is only a minor risk that Lubanga’s rights are encroached upon. Hence, the Decision is a legitimate exercise of the Trial Chamber’s discretion. It remains to be seen whether the Decision represents an opportune choice, to be held as persuasive precedent in future cases. It is undisputable that the TFV has been vested with a high level of discretion over the determination of substantive issues – indeed, the TFV itself admitted that the directions contained in the Decision are ‘rather general’, and even ‘submitted that any further specifications by the Appeals Chamber’ would be appreciated.74 In principle, the primary drawback of delegating the design of the reparations scheme to the TFV revolves around the need to ensure that the rights of the convicted person are respected – a condition that, as said, has limited impact on the present case. It is possible to identify additional disadvantages of a TFV-led process vis-à-vis court-led proceedings. First, judicial procedure is by nature more protective of all parties’ right to be heard, ensuring fair, unrestricted and adversarial debate in the transparent and public arena of the courtroom. Second, a panel of judges is better suited to fulfil its duties with independence in comparison to an institution – the TFV – the mandate of which focuses on victims’ rights. In the present case, the allocation of power between the judiciary and the TFV appears to be reasonable, except for the identification of beneficiaries – reasonable so far as it concerns collective reparations, and yet deficient with regard to measures to be implemented on an individual basis. While an order for collective awards is not necessarily less specific than an order relating to individual claims,75 it is clear that individual awards touch upon the spheres of precisely identified victims in a more intense and personal manner than decisions affecting groups as a whole. It follows that victims feel personally affected by an order granting or declining individual measures. This is why they are likely to expect (and more easily accept) a decision taken by such an organ that is by definition the guardian of independence and fairness – in other words, the court.

73 See p 113 above. 74 TFV Observations (n 70), paras 67–68. 75 But see TFV Observations (n 70), para 59.

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In this respect, the Decision falls short of affording sufficient instructions as to where the line of demarcation is to be drawn: reparations programmes may include individuals who did not participate in the trial proceedings,76 localities that were not mentioned in the Judgment,77 harm of which the crimes were simply a proximate cause78 and, to a certain extent, crimes that were not charged.79 Most regrettably, the Chamber refrained from examining individual claims for reparations, and instead merely ordered that they be transmitted to the TFV for eventual consideration.80 In spite of the supervisory role retained by the court, it seems that the task of drawing the line that identifies the victims who are eligible to receive reparations ought to be accomplished by a judicial entity. At the very least, the Chamber should have ruled on individual applications, thereby granting (at least symbolic) recognition to the victims who decided to take up the risks involved in participating in the process and, after all, exercising a positive right enshrined in the Statute; a right that demands vindication rather than neglect.

Lessons (that could have been) learned from the Cambodian Extraordinary Chambers In outlining the principles to be applied to reparations, the Trial Chamber – bearing in mind Article 21(1)(b)–21(1)(c) and (3) of the Statute – stated that guidance was sought in international instruments and reports on human rights.81 In particular, the Chamber declared that it ‘has taken into account the jurisprudence of the regional human rights courts and the national and international mechanisms and practices’ that have been developed with regard to the right to reparation.82 This proclamation notwithstanding, the Decision unfortunately lacks any reference to the internationalized criminal court that for the first time ever dealt with, and disposed of, victims’ reparations in the field of international criminal justice – the ECCC.83 Fully operational since 2007, the ECCC was established in order

76 77 78 79 80 81 82 83

Decision (n 1), paras 187, 194. Decision (n 1), para 282. Decision (n 1), paras 249–250. Decision (n 1), paras 207–209. Decision (n 1), para 284. Decision (n 1), para 185. Decision (n 1), para 186. On the ECCC, see generally David Scheffer, ‘The Extraordinary Chambers in the Courts of Cambodia’ in M Cherif Bassiouni (ed.), International Criminal Law, 3rd edn, 2008, Leiden: Koninklijke Brill NV, p 219; Christoph Sperfeldt, ‘From the Margins of Internationalized Criminal Justice: Lessons Learned at the [ECCC]’ (2013) 11(5) Journal of International Criminal Justice 1111; Mohamed Shahabuddeen, ‘Teething Phase of the ECCC’ (2011) 10(3) Chinese Journal of International Law 469; Ernestine E Meijer, ‘The Extraordinary Chambers in the Courts of Cambodia for prosecuting crimes committed by the Khmer Rouge: jurisdiction, organization, and procedure of an internationalized national tribunal’, in Cesare PR Romano, André Nollkaemper and Jann K Kleffner (eds), Internationalized Criminal Courts, 2004, Oxford: Oxford University Press, p 207.

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to prosecute the senior leaders of the Khmer Rouge. Its legal framework envisages the participation of victims in the proceedings as civil parties (parties civiles), with the objective of claiming ‘moral and collective’ reparations.84 The goal of this section is to demonstrate that, given the similarities of the issues faced by the ICC in Lubanga and the ECCC in Duch, valuable guidance could have been drawn by the Trial Chamber (and should be drawn by the Appeals Chamber) with respect to: (i) (ii) (iii) (iv)

the notion of an indirect victim; a predilection for ‘inclusive’ awards; concrete measures of reparation; and the impact of the state of indigence of the convicted person.

The notion of an indirect victim The Trial Chamber defined indirect victims by introducing the criterion revolving around a ‘close personal relationship’ that must exist between direct and indirect victims.85 It also included, within such a category, individuals who suffered harm when helping or intervening on behalf of direct victims.86 The Decision, however, adumbrated that the court’s focus, in relation to indirect victims, was on the family members of direct victims.87 In the Duch case,88 the ECCC faced an analogous issue. It also had to define the contours of indirect victimhood for the purpose of addressing reparations claims. Indirect victims were defined relying on another yardstick: whether they could demonstrate the existence of a special bond of affection or dependency in relation to a direct victim.89 Following a substantive approach,90 the critical element was that indirect victims must have ‘personally suffered injury as a result of the crime committed against the direct victim’.91 Such injury cannot but flow from a personal bond of affection or dependency, which thus amounts to a necessary prerequisite. Therefore, on the one hand, immediate family members of direct victims may not be considered indirect victims if they did not suffer personal harm;92 on the other hand, indirect victimhood is an open-ended notion, embracing not only family

84 85 86 87 88

89 90 91 92

ECCC IR, Rules 23(1)(b) and 23 quinquies (Rev. 8). Decision (n 1), para 195. Decision (n 1), para 196. See Decision (n 1), para 195. Kaing Guek Eav alias ‘Duch’, ECCC, 001/18-07-2007-ECCC/TC, Judgment, 26 July 2010, Doc. No. E188 (‘Duch Trial Judgment’); Kaing Guek Eav alias ‘Duch’, ECCC, 001/18-07-2007-ECCC/ SC, Appeal Judgment, 3 February 2012, Doc. No. F28 (‘Duch Appeal Judgment’). Duch Trial Judgment (n 88), para 643; upheld in Duch Appeal Judgment (n 88), para 447. Duch Appeal Judgment (n 88), paras 411 et seq. Duch Appeal Judgment (n 88), para 418. However, immediate family members need not give evidence with regard to their special bonds of affection or dependence with direct victims: see Duch Appeal Judgment (n 88), paras 448–449.

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members but also any individual who can substantiate a personal bond of affection or dependency with a direct victim.93 Turning to the ICC system, the definition of victims contained in Rule 85(1)(a) of the RPE provides that they must have suffered harm resulting from the crimes, irrespective of whether direct and indirect victims are next of kin. The crux of this formulation rests on injury, thus it closely resembles the premise on which the ECCC relied in defining the notion of indirect victim. Accordingly, the Extraordinary Chambers’ case law may be a pertinent source of assistance in this matter as well. The Trial Chamber’s notion of ‘close personal relationship’ may coincide with that of ‘special bonds of affection or dependency’. However, the latter is more precise – first, it clearly extends to non-family members, and gives relevance also to economic bonds tying the individual applicant to the direct victim. Moreover, it has already been applied in practice, establishing a considerable number of guidelines.94 Hence it may provide valuable guidance in interpreting the standard developed at the ICC, especially when it comes to the concrete disposal of individual claims. A predilection for ‘inclusive’ awards The Trial Chamber avoided making a clear-cut decision identifying the group of victims and beneficiaries to which the reparations programmes will have to be addressed. However, the Decision did include some directions, namely that beneficiaries of awards should not be restricted to those who participated in the proceedings, and that collective, community-based reparations should be favoured.95 It was reported that this aspect of the Decision raised some criticism among victims in Ituri.96 Some of the persons affected by the crimes contended that only individual awards could satisfactorily address their needs. Further, they found it unfair that victims who joined the trial were put on the same footing as those who did not, objecting to the Trial Chamber’s all-encompassing approach to reparations’ beneficiaries. As anticipated, the ECCC is compelled by its controlling legal instruments to limit reparations to moral and collective awards. This constraint should not be seen as ‘an accidental event during the drafting of the Internal Rules, but as an

93 Duch Appeal Judgment (n 88), para 418. 94 Duch Trial Judgment (n 88), paras 644 et seq.; Duch Appeal Judgment (n 88), paras 353 et seq. See e.g. Duch Appeal Judgment (n 88), paras 558–563 (finding that, under the circumstances, a special bond of affection may have well existed between two nephews and their uncle, an individual who was arrested when they were aged 5 and 8 years old). 95 See pp 113–115 above. 96 Olivia Bueno, ‘Local Communities Divided on the Question of Reparations in the Lubanga Case’ (Lubanga Trial, 7 November 2012) (www.lubangatrial.org/2012/11/07/local-communities-dividedon-the-question-of-reparations-in-the-lubanga-case).

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appropriate response’ given the circumstances.97 The Supreme Court Chamber pointed out the sound reasons underlying the choice in favour of collective comprehensive redress – reasons that should persuade the ICC Appeals Chamber to defend the Trial Chamber’s approach on the point, resisting pressure from some victims’ groups. The Duch Appeal Judgment observed that the case involved ‘mass crimes, which, by their very nature, directly and indirectly affected, albeit to varying degrees, a large number of victims’.98 Considering that only a small portion of victims participated in the proceedings – let alone others who were not in a position to do so, or who remained unidentified – it would have been unreasonable and divisive to grant reparations that, although collective in nature, were intended to benefit only a part of potential beneficiaries (i.e. the applicants), excluding other eligible persons.99 As a result, the Supreme Court Chamber opted for the most inclusive measures of reparations – that is, those capable of redressing the harm of as many victims as possible.100 The approach adopted by the ECCC appears to be a principled one – perhaps the only possible one – in relation to cases involving crimes that affected thousands of victims, with only a few participating in the proceedings or even being identified.101 That is why the ICC – confronted by comparable challenges in Lubanga – should not retreat from its initial stance.102 Concrete measures of reparation Although the Decision leaves it to the TFV to select appropriate forms and modalities of reparations, it appears that the Trial Chamber is cognizant of the obvious constraints that make compensation and restitution unrealistic in the case at hand.103 The judges accordingly seem to be persuaded that only community-inclusive projects aimed at achieving rehabilitation will prove feasible.104

97 Christoph Sperfeldt, ‘Collective Reparations at the [ECCC]’ (2012) 12(3) International Criminal Law Review 457, 474. 98 Duch Appeal Judgment (n 88), para 659. 99 Also the Decision in Lubanga noted that ‘it would be inappropriate to limit reparations to the relatively small group of victims that participated in the trial’ (Decision (n 1), para 187; see also Decision (n 1), para 219). 100 Duch Appeal Judgment (n 88), para 659. 101 See Sperfeldt 2012 (n 97) 475; Sperfeldt 2013 (n 83) 1133–1134. 102 Indeed the reasons to adopt a collective approach that may be deduced from the Decision are similar to those characterizing the Cambodian context: see Decision (n 1), paras 219, 274, 288 and fn. 383 (mentioning: (i) uncertainty as to the number of victims; (ii) limited number of applicants and their scarce representativeness; (iii) considerable number of individuals affected by the crimes; (iv) costly and resource-intensive verification procedures; (v) limited financial resources, better used for the benefit of largest possible group of beneficiaries). 103 See p 113 above. 104 See p 113 above.

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Similarly, the ECCC had to unfold the concrete measures that could be awarded as collective reparations. Its findings tally, for the most part, with those foreshadowed by the ICC Trial Chamber, except for the restrictions flowing from the absence of an external implementing body such as the TFV, which prevented the Extraordinary Chambers from granting measures whose execution would require financial and organizational resources.105 That being said, there are two ways in which the ICC could learn from the Cambodian experience. First, even if medical and psychological care is indeed at the heart of victims’ basic needs,106 it has emerged from the comparative analysis conducted by the ECCC that such projects ‘require a sophisticated administrative structure to be implemented’,107 so much so that States or other external organizations were often involved in their actual implementation.108 The ICC should therefore take into account such questions of enforceability before nourishing great expectations on the part of victims – even more so given that the TFV is notoriously underfunded.109 This is not to say that medical and psychological care are inadequate forms of reparation in the case at hand – quite the contrary. But the ICC (and interested actors) should come to terms with the fact that a narrowly tailored approach concerning eligible beneficiaries is perhaps dictated by the circumstances. Second, in spite of its commitment to improve the position of victims, the Trial Chamber declined to rule on the individual claims for reparations. In contrast, both the Trial and Supreme Court Chambers of the ECCC endeavoured to examine each and every victim’s application, devoting a section of their judgments to a case-by-case analysis.110 This course of action appears to be strongly recommendable, and thus the ICC should follow suit, given the beneficial effects implied by this acknowledgement of harm. Indeed, as demonstrated by several surveys and criminological studies, it is critical for victims to be recognized and to be taken seriously – and such demand may even overshadow that for concrete measures of reparation.111 Considering that the number of applicants in

105 See Duch Appeal Judgment (n 88), paras 667–668, 692, 694. 106 Amissi M Manirabona and Jo-Anne Wemmers, ‘Specific Reparation for Specific Victimization: A Case for Suitable Reparation Strategies for War Crimes Victims in the DRC’ (2013) 13 International Criminal Law Review 977, 1005. 107 Duch Appeal Judgment (n 88), para 703. 108 Duch Appeal Judgment (n 88), paras 702–703 and case law thereby cited. 109 See e.g. the decisions taken during the 10th TFV Annual Board Meeting of 19, 20 and 21 March 2013, ; Human Rights Watch, ‘Turning Pebbles: Evading Accountability for Post-Election Violence in Kenya’ (2011) (www.hrw.org/sites/default/files/reports/kenya1211webwcover_0.pdf); Madegwa, Diana, ‘Kenya: Judiciary Begins Clearing Backlog of Cases’ (The Star, 14 January 2013) (http://allafrica.com/ stories/201301141355.html); Murithi Mutiga, ‘Kenya CJ vows to clear case log in 6 months’ (Daily Nation, 29 October 2011) (www.nation.co.ke/News/CJ-vows-to-clear-case-backlog-in-6months-/-/1056/1264108/-/ple9b7z/-/index.html; www.kenyalaw.org/kenyaLawBlog/?p=227). 14 Ministère de la Justice – Cellule Spécialie d’Enquête (http://justice-ci.org/cellule/76-personnelet-cadre-de-travail.html); Opération des Nations Unies en Côte d’Ivoire (ONUCI), ‘Étude d’Évaluations du Système Judiciaire Ivoirien’ (Juin 2007) (www.onuci.org/pdf/rulesrapport6.pdf); Opération des Nations Unies en Côte d’Ivoire (ONUCI), ‘Rapport sur la Situation des Établissements Pénitentiaires en Côte d’Ivoire’ (www.onuci.org/pdf/situationpenitentiaires.pdf); Human Rights Watch, ‘Turning Rhetoric into Reality: Accountability for Serious International Crimes in Côte d’Ivoire’ (2013) (www.hrw.org/reports/2013/04/04/turning-rhetoric-reality).

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justice is often coupled with absence of trust in the very justice and security institutions that would be responsible for delivering criminal accountability given that such institutions often play a role in sustaining regimes that promote systematic violence. However, encouraging local ownership over criminal justice for atrocities is important (if this is an option), as justice delivered closer to the area where crimes have been committed is more likely to contribute to societal reconciliation.15 The remoteness of international criminal justice efforts, both in terms of locality and in terms of the time it takes to conduct trials, be it before the ICC, the two ad hoc tribunals for the former Yugoslavia and Rwanda, or even the proceedings of hybrid institutions such as the SCSL and the STL, affects the way such efforts are perceived locally.16 Complementarity, by encouraging justice before national courts, aids in rendering the process of justice visible to the victims and affected communities.17 It is important to remember that the ICC has finite resources as well as a limited capacity.18 It cannot try all individuals accused of each and every crime falling within the Court’s jurisdiction. Complementarity therefore strives to bridge the ‘impunity gap’ that results from the prosecution of a handful of cases before the ICC and from the remainder of cases before national courts.19 The principle of complementarity, by engaging both national authorities and the Court in the pursuit of the objectives of universal accountability, essentially manages the workload of the Court. Further, where national judicial systems have the capacity to conduct effective investigations and prosecutions and there is political will to enable those proceedings to take place while in conformity with the rule of law, national proceedings (particularly those undertaken by the situation State) are likely to be more efficient and enjoy a greater chance of success. For example, national authorities have easier and more direct access to evidence and witnesses, and do not face the logistical challenges confronted by the ICC or by third party States that are not only more remote geographically, but that also rely on the full co-operation of the situation State to access said evidence and witnesses.20 However, the importance of national proceedings does not only concern domestic proceedings carried out by situation States. By incorporating the definitions of the core international crimes into domestic law, in order to grant national courts with jurisdiction over said crimes wherever they occur, the courts of all States can engage in the implementation of complementarity. Accordingly, while it is understandable to focus upon the establishment and functioning of the ICC as institutional milestones in the pursuit of accountability, 15 Chandra L Sriram, ‘Revolutions in Accountability: New Approaches to Past Abuses’ (2003) 19(2) American University International Law Review 301, 383. 16 Jane E Stromseth, ‘Pursuing Accountability for Atrocities After Conflict: What Impact on Binding the Rule of Law’ (2007) 38 Georgetown Journal of International Law 251, 260. 17 Mark Drumbl, Atrocity, Punishment and International Law, 2007, Cambridge: Cambridge University Press, p 148. 18 The ICC’s Budget for 2014 is EUR 121,656,200. See Resolution ICC-ASP/12/Res.1, 27 November 2013, paras 2–4. 19 Report of the Bureau on Stocktaking: Complementarity, ICC-ASP/8/51, 18 March 2010, para 3 (‘Report of the Bureau on Stocktaking’). 20 See OTP, Paper on some policy issues before the Office of the Prosecutor, September 2003, 4.

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the ICC is indeed a symbol of a much wider system of accountability. Properly understood, the success of the ICC as but one tool in the fight against impunity is dependent on the strength and success of the wider system within which it operates. Therefore, in order to support the ICC effectively, a State must be fully committed to the entire system of justice envisaged by the Court.

Is positive complementarity the answer? While complementarity is now firmly part of international criminal law vocabulary, positive complementarity is a much newer concept. Coined by the ICC OTP in 2006, ‘positive complementarity’ entails the active encouragement of States to conduct national proceedings, and, where appropriate, to provide the necessary assistance to enable them to do so.21 Until 2010, the notion of positive complementarity was primarily one of prosecutorial strategy. As explained by the OTP in 2006, positive complementarity ‘encourages genuine national proceedings where possible; relies on national and international networks; and participates in a system of international cooperation’.22 In 2010, delegates to the First Review Conference for the ICC prioritized positive complementarity in the stocktaking exercise that took place during the conference held in Kampala, Uganda. The conference delegates adopted a resolution on positive complementarity that transformed the previous prosecutorial strategy into a more holistic means by which to specifically strengthen the ICC system. Prior to Kampala, positive complementarity focused on the role that the ICC could play in strengthening national regimes. In 2010, a major shift took place in the way positive complementarity is understood. As the Bureau on Stocktaking made explicit in its report to the Review Conference: the Court is not a development agency . . . Activities aimed at strengthening national jurisdictions as set out in this chapter should be carried forward by States themselves, together with international and regional organizations and civil society, exploring interfaces and synergies with the Rome Statute system.23 Instead, and for the first time, positive complementarity was defined as: all activities/actions whereby national jurisdictions are strengthened and enabled to conduct genuine national investigations and trials of crimes included in the Rome Statute, without involving the Court in capacity building, financial support and technical assistance, but instead leaving these actions and activities for States, to assist each other on a voluntary basis.24

21 22 23 24

Report on Prosecutorial Strategy (n 8). Report on Prosecutorial Strategy, 5. Report of the Bureau on Stocktaking (n 19), para 4. Report of the Bureau on Stocktaking (n 19), para 16.

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By changing the understanding of positive complementarity, the onus to strengthen national capacity is placed upon States, international organizations and institutions, and civil society.25 Accordingly, by its resolution, the Review Conference:

• • •

recognized ‘the need for additional measures at the national level as required and for the enhancement of international assistance to effectively prosecute perpetrators of the most serious crimes of concern to the international community’;26 recognized ‘the desirability for States to assist each other in strengthening domestic capacity to ensure that investigations and prosecutions of serious crimes of international concern can take place at the national level’;27 and encouraged ‘the Court, States Parties and other stakeholders, including international organizations and civil society, to further explore ways in which to enhance the capacity of national jurisdictions to investigate and prosecute serious crimes of international concern’.28

Positive complementarity denotes the provision of technical and financial assistance to States in order to build their capacity to discharge their responsibility to investigate and prosecute international crimes. Positive complementarity can entail legislative assistance, technical assistance and capacity building, and assistance in terms of constructing physical infrastructure.29 Examples of technical assistance and capacity building include the training of law enforcement and judicial officials, defence counsel and forensic investigators, as well as the development of capacity to ensure the protection of victims and witnesses. Such support could take the form of supplying judges and prosecutors to assist national courts, creating specialist international crimes divisions or hybrid tribunals, or providing mutual legal assistance and co-operation to facilitate actual prosecutions. In terms of physical infrastructure, international crimes often occur in the context of periods of conflict and protracted insecurity. Positive complementarity can and should involve assisting with the (re)construction of the necessary infrastructure to establish an operational system of criminal justice.30 Above all, positive complementarity provides the basis on which all capacity building can be carried out.

25 26 27 28 29 30

ICC ASP, Resolution RC/Res.1, 8 June 2010, paras 3, 8. ICC ASP, Resolution RC/Res.1, 8 June 2010, para 3. ICC ASP, Resolution RC/Res.1, 8 June 2010, para 5. ICC ASP, Resolution RC/Res.1, 8 June 2010, para 8. Report of the Bureau on Stocktaking (n 19), para 17. Report of the Bureau on Stocktaking (n 19), para 17(c).

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Capacity building: Bridging the gap? Having established what positive complementarity entails, it is important to examine how to achieve this enhancement of national capacity. It should be stated at the outset that while complementarity involves both willingness and ability, any capacity building is more likely to benefit the latter than the former. Identifying the needs and gaps of a national criminal justice system independently of any assumed solutions31 is key to performing capacity building. The so-called ‘needs assessment’ has risen in importance, in recent years, not least because capacity-building schemes are linked to development funding. A needs assessment is a diagnostic process to determine needs, or ‘gaps’ between current conditions and desired or required conditions. Such an assessment is often conducted in order to solve or avoid current problems, to create or take advantage of a future opportunity, or to provide learning, development or growth.32 The availability of accurate and up-to-date information and factual data on the criminal justice system in a post-conflict country is a challenge all participants in the system face on a day-to-day basis. Many of the key challenges faced during the conduct of a needs assessment are indicative of the needs and gaps of the criminal justice system as a whole. For instance, in States where capacity is lacking, institutions rarely hold inventories of staff, equipment, buildings and facilities. Budgets are often unknown and few institutions have developed operational plans. Annual reports may be prepared and published one year, but not the next. The telecommunications infrastructure is limited and painfully interrupted by the conditions on the ground. Identifying the current and aspired conditions in a given criminal justice system is a first step in capacity building. A comparison between the current conditions and the desired conditions of the criminal justice system provides an accurate indication of the gaps and needs. Such needs affect the ability of a State to oversee investigations and prosecutions of core international crimes. In that context, it is important also to evaluate the underlying causes of the current conditions before proceeding with the identification of the possible solutions or steps to reduce the gaps between the current conditions and the desired conditions. This emphasis on needs assessment has been the subject of the ‘Greentree Process’, an initiative facilitated by the ICTJ. One of the initiatives being explored by the Greentree Process is the possibility of enhancing co-ordination in the implementation of the principle of positive complementarity by developing a

31 Roger Kaufman, ‘Strategic Thinking: A Guide to Identifying and Solving Problems’ [2006] jointly published by the American Society for Training & Development and the International Society for Performance Improvement; Roger Kaufman, Mega Planning: Practical Tools for Organizational Success, 2000, Thousand Oaks, CA: Sage Publications; Roger Kaufman, Change, Choices, and Consequences: A Guide to Mega Thinking and Planning, 2006, Amherst, MA: HRD Press. 32 Kavita Gupta, Catherine M Sleezer and Darlene F Russ-Eft, A Practical Guide to Needs Assessment, 2nd edn, 2007, San Francisco, CA: Pfeiffer, p 17.

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centralized system for the assessment of capacity building needs to strengthen the rule of law and justice systems and the deployment of assistance to meet those needs. Although discussions have been ongoing since 2010, with the first of the three high-level retreats convened at the Greentree Estate in New York, the process has yet to yield concrete outcomes.33 While knowing the precise needs that inhibit a national system in the pursuance of investigations and prosecutions is important so as to shape the form of capacity building, there is no single solution that could be employed. In fact, it is difficult to perform a wholly objective needs assessment. The biases of the assessor, as well as the very access to information he or she is given, are likely to affect the findings. In addition, a State’s need or sense of ownership and pride might not be conducive to such a holistic overview. States on the receiving end of capacity building should be given the opportunity to articulate what they perceive their needs to be and accordingly decide how much or how little capacity building they receive. In practice, capacity building is likely to be ad hoc in most instances. Even in situations where large rule of law programmes are in place34 there is always a need for specialized capacity building in distinct areas that may not fall within the remit of pre-planned activities. Moving away from assessing needs, an important aspect in terms of enhancing the prospects of capacity building is facilitating access to legal information relating to core international crimes. In order for law professionals to undertake their work effectively – for instance, drafting legal motions, arguments and decisions – it is important to have access to relevant legal information concerning the core international crimes and the way they have been dealt with by other national and international jurisdictions. Regardless of the nature of the legal system and whether a State follows the civil or the common law legal tradition, accessing information on genocide, crimes against humanity and war crimes is essential. Talented, well-educated legal professionals require access to legal information to discharge their duties effectively and efficiently. Such access to information normally comes in the form of a physical library, which may not be readily available, adequately stocked or up to date. It also comes in online resources, the majority of which are at a cost that is prohibitive to most users from war-torn countries or are affected by the lack or inadequacy of local infrastructures. Initiatives such as the ICC’s Legal Tools project,35 that provide access to such information free of charge, are therefore welcome and help level the playing field

33 For further information, see ICTJ and UN Development Programme, ‘Synthesis Report on “Supporting Complementarity at the National Level: From Theory to Practice”’ (Greentree III Conference, Manhasset, New York, October 2012) (www.ictj.org/sites/default/files/ICTJGlobal-Greentree-Two-Synthesis-Report-2011.pdf and https://ictj.org/sites/default/files/ICTJReport-Greentree-III-Synthesis-ENG-2012.pdf). 34 See Open Society Foundations, ‘Putting Complementarity into Practice: Domestic Justice for International Crimes in DRC, Uganda, and Kenya’ (2011) (www.opensocietyfoundations.org/ sites/default/files/putting-complementarity-into-practice-20110120.pdf). 35 ICC, Database .

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in that respect. Although it does not necessarily solve the problem of capacity building, access to legal information has the potential to improve the quality of investigations and prosecutions by facilitating the way core international crimes are processed at the national level. In addition to access to information, having the right skills and expertise is also important. However, unlike 20 years ago, where the adjudication of core international crimes at the international level was an experiment, there is now a wealth of documents, case law and useful information that has been produced by international criminal tribunals that could serve as a guide to national actors.36 Effectively transferring the expertise amassed by international courts is therefore essential and also constitutes a firm prospect in the enhancement of national capacity. However, the road to capacity building is paved with significant challenges that must be overcome. As mentioned in the section above, it is not just the lack or inadequacy of national legal frameworks enabling States to investigate and prosecute that becomes problematic when it concerns co-operation with the ICC or investigations or prosecutions. Having such legislation is a crucial first step in putting an end to impunity. There are many factors that may contribute to the slow pace of implementation. Drafting national legislation to incorporate the Statute into domestic law takes time. Even when the political will is present, reviewing the compatibility of existing legislation and the preparation of new legislative instruments and their subsequent approval by the relevant body (usually the national Parliament) normally takes a substantial amount of time. Moreover, in order to be carried out properly, implementation requires expert knowledge and adequate resources that are not always available. Furthermore, it should not be forgotten that the Rome Statute is a highly complex legal instrument that requires national drafters to possess an in-depth understanding of a variety of areas, such as criminal law and procedure, international law and process, human rights and humanitarian law.37 The lack of operational capacity, reflected in both physical and human infrastructure, constitutes a major challenge. Problems faced by domestic institutions operating in the context of a weak economy, lack of infrastructure, lack of confidence in the judicial structure and disputed authority are impediments to capacity building.38 Such operational capacity problems are likely to be particularly exacerbated where there may be a large backlog of cases, which is usually the case in the aftermath of a mass atrocity where criminal justice institutions with restricted

36 See, for instance, the ICTR/ICTY Case Law Database (http://unmict.org/cld.html). 37 See Olympia Bekou, ‘Building databases for the ICC Legal Tools project: data structures and the national implementing legislation database’, in Morten Bergsmo (ed.), Active Complementarity: Legal Information Transfer in Criminal Justice for Atrocities, 2011, Oslo: Torkel Opsahl Academic Publisher, pp 153, 159. 38 As such they had been highlighted at a special panel on complementarity hosted by South Africa and Denmark, the focal points for complementarity on 2 June 2010, in the course of the Review Conference.

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resources or expertise normally have limited capacity to process cases. Lack of training is also noteworthy here. Although the need for specific training is widely identified, it is important to encourage training that empowers national judicial systems to oversee justice at the national level without constant reliance on external actors. Getting this balance right, however, is not an easy task. Linked to this is also the issue of funding. In many instances, in order to build capacity, it is necessary to provide external funding to the State where the atrocities have occurred. This is because financial resources in a country that has suffered mass atrocity would not likely extend to the building of capacity, be it in terms of infrastructure or in terms of skills and expertise. Provision of financial support to the affected States enables them to participate in the system of international justice – by strengthening national capacity either to investigate and prosecute international crimes, or to co-operate with the ICC. Moreover, supporting civil society organizations in their activities is designed to strengthen and support the Rome Statute system for international justice at the grass-roots level. The work in which such organizations engage varies and can include political initiatives to promote the values, principles and objectives behind international justice and shared by the ICC – not only within civil society, but also among political decision makers at the national or regional level. Over the years, international donors have increasingly embraced the idea of building national capacity, and along with this came an acknowledgement that the provision for funding for capacity building is of paramount importance to the success of positive complementarity in practice. Linking capacity building to development aid is also an area that has increased in importance, as is forward planning and avoidance of duplication of mandate among donors.39 Due care should be taken not to limit the accessibility of grants and channel funding to those organizations that best fit the purpose of the activity proposed. It should be noted that the eligibility and capacity of organizations would not always match the criteria set by the international funder. Some flexibility in that respect may be necessary in order to widen the participation of actors, particularly from situation countries. A combination of funding cycles that allow for long-term planning, as well as initiatives that are shorter in length or issue-based, may be necessary, as the situation on the ground can be volatile and the capacity needs of national legal orders may change in ways that do not necessarily conform to funding patterns. Perhaps also mainstreaming the inclusion of positive complementarity work in other areas such as conflict prevention or peace building would constitute a further good avenue to enhance this type of work.

39 European Commission, ‘Joint staff working document on advancing the principle of complementarity: Toolkit for bridging the gap between international and national justice’ Brussels, 31 January 2013, SWD (2013), 26 final.

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Concluding remarks Building national capacity is a frontline issue in the field of justice for atrocities. The complementarity principle, envisaged in the Rome Statute, places national legal orders on a firm footing in terms of fulfilling their role within the Rome system of justice. The advancement of positive complementarity provides the necessary basis for the building of national capacity. The preceding sections have demonstrated that there are a number of challenges associated with putting the necessary structures and procedures in place to combat impunity while also highlighting some of the prospects. Overall, it is clear that with the ICC being functional, the focus should now shift from how best to provide the necessary assistance to how to bridge the gap between the ICC and the operational reality on the ground, so as to enable co-operation with the Court and allow for national investigations and prosecutions. Despite the considerable challenges and the pitfalls along the way, attaining a level of capacity able to deliver justice at the national level, while also responding to the needs of the victims and the wider aims of international criminal justice, is the way forward; this should be wholeheartedly encouraged.

Bibliography Bekou, Olympia, ‘Building databases for the ICC Legal Tools project: data structures and the national implementing legislation database’, in Bergsmo, Morten (ed.), Active Complementarity: Legal Information Transfer in Criminal Justice for Atrocities, 2011, Oslo: Torkel Opsahl Academic Publisher, p 153. Bergsmo, Morten, Helvig, Kjetil, Utmelidze, Ilia and Žagovec, Gorana, ‘The Backlog of Core International Crimes Case Files in Bosnia and Herzegovina’ (2009) Forum for International Criminal and Humanitarian Law Publication series, No. 3. Drumbl, Mark, Atrocity, Punishment and International Law, 2007, Cambridge: Cambridge University Press. Gupta, Kavita, Sleezer, Catherine M and Russ-Eft, Darlene F, A Practical Guide to Needs Assessment, 2nd edn, 2007, San Francisco, CA: Pfeiffer. Holmes, John T, ‘The principle of complementarity’, in Lee, Roy SK, The International Criminal Court: The Making of the Rome Statute, 1999, The Hague, London and Boston, MA: Martinus Nijhoff, p 41. Kaufman, Roger, Mega Planning: Practical Tools for Organizational Success, 2000, Thousand Oaks, CA: Sage Publications. Kaufman, Roger, Change, Choices, and Consequences: A Guide to Mega Thinking and Planning, 2006, Amherst, MA: HRD Press. Kleffner, Jann and Kor, Gerben, ‘Complementarity as a catalyst for compliance’, in Kleffner, Jann (ed.), Complementary Views on Complementarity – Proceedings of the International Roundtable on the Complementary Nature of the International Criminal Court, 2006, The Hague: T.M.C. Asser, p 79. Slaughter, Anne-Marie and Burke-White, William, ‘The Future of International Law is Domestic (or, the European Way of Law)’ (2006) 47 Harvard International Law Journal 327.

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Sriram, Chandra L, ‘Revolutions in Accountability: New Approaches to Past Abuses’ (2003) 19 American University International Law Review 301. Stahn, Carsten, ‘The Geometry of Transitional Justice: Choices of Institutional Design’ (2005) 18 Leiden Journal of International Law 425. Straus, Scott, ‘How Many Perpetrators Were There in the Rwandan Genocide? An estimate’ (2004) 6(1) Journal of Genocide Research 85. Stromseth, Jane E, ‘Pursuing Accountability for Atrocities After Conflict: What Impact on Binding the Rule of Law’ (2007) 38 Georgetown Journal of International Law 251.

7

Has the ICC unfairly targeted Africa or has Africa unfairly targeted the ICC? Lyal S. Sunga1

Introduction On 27 May 2013, the African Union expressed its concern over the misuse of indictments against African leaders,2 while Ethiopian Prime Minister Hailemariam Desalegn maligned ICC investigations as some kind of ‘race-hunting’.3 In an address to the African Union on 12 October 2013, Kenyan President Uhuru Kenyatta, whom the ICC charged as an indirect co-perpetrator for the crimes against humanity perpetrated in connection with 2007 post-election violence in Kenya,4 stated that ‘African sovereignty means nothing to the ICC and its patrons’,5 that people have termed this situation ‘race-hunting’ and that he found great difficulty adjudging them wrong. Kenyatta went on to say that the ICC ceased being the home of justice the day it became the toy of declining imperial powers.6 Has the ICC unfairly targeted Africa or, to the contrary, has Africa perhaps unfairly targeted the ICC? One certainly has to wonder. The ICC’s rendezvous with African politics reveals a chasm as wide and deep as the Great Rift Valley. From an optimist’s point of view, one can see Utopia off in the distance where every State has ratified and implemented the Rome Statute. In Utopia, the ICC operates universally, independently and objectively to deter major international

1 I wish to thank Dr Ilaria Bottigliero, Chief, Research and Learning/Policy Advisor to the DirectorGeneral, International Development Law Organization, Rome, Italy, and Dr Triestino Mariniello, for their very valuable comments on earlier drafts of this chapter. 2 African Union Decision on International Jurisdiction, Justice and The International Criminal Court (ICC) of 27 May 2013, Doc. Assembly/AU/13(XXI), 4. Botswana entered a reservation on the entire decision. 3 ‘African Union accuses ICC of “hunting” Africans’ BBC News (27 May 2013) (www.bbc.co.uk/ news/world-africa-22681894?print=true). 4 Prosecutor v Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, ICC-01/09-02/11-382-Red, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, Pre-trial Chamber II, 23 January 2012 (‘Kenyatta Confirmation of Charges Decision’). 5 Uhuru Kenyatta, ‘Africa: ICC Is a Toy of Declining Imperial Powers – Uhuru’ Capital FM (12 October 2013) (http://allafrica.com/stories/201310130069.html). 6 Kenyatta, ‘Africa: ICC Is a Toy of Declining Imperial Powers – Uhuru’.

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crimes, dispel impunity and safeguard world peace and security, exercising its jurisdiction on all continents with sole regard to the gravity of the crimes and equal respect and concern for human life everywhere. But a glance at everyday life in certain African countries confronts more of a Dystopian system of authoritarian governments, corrupt politicians, in some cases sustained insurgent campaigns, and militia forces of various alliances, clambering for power and launching offensives that torch homes and people. On 16 January 2014, Nigeria’s President Goodluck Jonathan dismissed all his military chiefs, while Nigerian jets strafed Cameroonian border posts in a bid to prevent Islamist fighters from Cameroon, Chad and Niger from lending their support to Boko Haram’s campaign to take over the northern half of Nigeria.7 On 17 January 2014, the Director of Operations for UNOCHA warned that the CAR might slide into genocide, as fighting intensified between Christian and Muslim militias and gangs who were roaming Bangui and other towns looking for people to attack and murder, and property to loot and burn.8 The same day, Ugandan President Yoweri Museveni confirmed that his troops had fought rebels in a heavy battle north of Juba, South Sudan, as part of a conflict that had broken out on 15 December 2013.9 Recent violence in numerous countries (such as Algeria, Angola, Burundi, the CAR, Côte d’Ivoire, the DRC, Egypt, Eritrea, Ethiopia, Kenya, Liberia, Libya, Mali, Nigeria, Rwanda, Sierra Leone, South Sudan, Sudan, Uganda and Zimbabwe) has, in one way or another, raised the question as to whether domestic courts are up to the task of prosecuting the perpetrators of such violence and ensuring that the rule of law, democracy and human rights do not fall victim to a climate of impunity. As of 1 September 2014, the ICC had begun investigating eight such situations. On 20 December 2013, Egypt’s Muslim Brotherhood’s Freedom and Justice Party submitted a complaint to the ICC alleging that the regime that had ousted the democratically elected Morsi government was responsible for murder, torture, arbitrary detention, enforced disappearances and systematic persecution of Morsi supporters.10 Preliminary investigations into the situations in Nigeria and in Guinea were also being undertaken. Yet in the almost 12 years since its establishment in July 2002, the ICC had, as of 1 September 2014, only commenced investigations into situations occurring in Africa, namely in the DRC, Uganda, the CAR, Darfur (Sudan), Libya, Kenya, Côte d’Ivoire and Mali. The reason for this exclusive focus on Africa was certainly

7 ‘Nigerian president replaces all his military chiefs’ The Guardian (16 January 2014) (www. theguardian.com/world/2014/jan/16/nigerian-president-chiefs-defence-army-navy-air-force). 8 ‘UN official sees risk of genocide in CAR’ Aljazeera (17 January 2014) (www.aljazeera.com/video/ africa/2014/01/un-official-sees-risk-gen); see also Thomas Fessy, ‘Central African Republic lynch mob “on the hunt” ’ BBC News (17 January 2014) (www.bbc.co.uk/news/world-africa-25772086). 9 ‘Yoweri Museveni: Uganda troops fighting South Sudan rebels’ BBC News (16 January 2014) (www.bbc.co.uk/news/world-africa-25759650). 10 ‘Egypt Muslim Brotherhood lawyers take case to ICC’ Gulf Times (7 January 2014) (www.gulftimes.com/region/216/details/376983/egypt-muslim-brotherhood-lawyers-take-case-to-icc).

Has the ICC unfairly targeted Africa? 149 not that the rest of the world was enjoying a perpetual state of Utopia. There were (and still are) many situations, such as in parts of Afghanistan, Pakistan, Mexico, Syria, Iraq, Bangladesh, Papua New Guinea and Colombia to name a few, that were chronically plagued with serious violations that seemed to qualify as crimes falling under the ICC’s jurisdiction. More than a half-century of serious and systematic violations perpetrated by the State of Israel in the Palestinian territories it occupied also appeared to be beyond the ICC’s reach. Despite the fact that the domestic authorities in such places failed to prosecute crimes under international law in conformity with international fair trial standards, the ICC had not launched investigations into any of them. To consider whether the ICC has unfairly targeted countries in Africa, it is first important to note the ICC’s application of the complementarity principle, which guides the ICC’s role and operation, including the Pre-trial Chamber’s decision on the Prosecutor’s proprio motu application to launch an investigation into the situation in Kenya. Next, it is useful to recall the situations the ICC has been investigating thus far to assess whether the ICC has been unfairly targeting situations in Africa, or to the contrary, whether Africa actually might in fact have been targeting the ICC.

The ICC Prosecutor’s strategic direction and the complementarity principle According to the Rome Statute, the ICC should not exercise jurisdiction over a situation unless and until it is clear that a State Party responsible for prosecuting the crimes in question is unable and/or unwilling to prosecute and punish the perpetrators. Instances of a State referring a situation occurring within its own territory to the ICC (in effect, referring itself), are based on the voluntary decision of that State, and are therefore generally less contentious than instances where the Security Council refers a situation to the ICC or the prosecutor requests to launch an investigation proprio motu, because in self-referrals, the State already recognizes its own inability to prosecute. In contrast, Security Council referrals or investigations initiated by the Prosecutor require the ICC’s own evaluation of the State’s unwillingness or inability to prosecute. According to Article 17(1)(a) of the Rome Statute, unwillingness and inability are relative and qualitative properties subject to an appreciation of degree. How do these indices guide the actual selection of situations for ICC investigation? Pretrial Chamber II’s decision of 31 March 2010 to approve the Prosecutor’s request to launch an investigation proprio motu into the 2007 post-election violence in Kenya offers good insight. Presiding Judge Ekaterina Trendafilova, forming the majority with Judge Cuno Tarfusser, observed: As for the ‘reasonable basis to believe’ test referred to in article 53(l)(a) of the Statute, the Chamber considers that this is the lowest evidentiary standard provided for in the Statute. This is logical given that the nature of this early stage of the proceedings is confined to a preliminary examination. Thus, the

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This relatively low standard is to be contrasted with those applicable to the confirmation of charges phase under Article 61(7) of the Statute. The Article 61(7) standard requires the availability of sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged. The highest evidentiary standard, as set out in Article 66(3), requires the Prosecutor to prove the guilt of an accused at trial beyond a reasonable doubt.12 To evaluate the information that the Prosecutor provided, the Chamber explained that it had to be satisfied that there existed a sensible or reasonable justification for a belief that a crime falling within the jurisdiction of the Court has been or is being committed.13 The Chamber also underlined the point that at the stage of proceedings concerning authorization of the Prosecutor’s request to launch an investigation, the question of reasonable basis to believe relates not to a particular criminal case, but to the situation as a whole in which a crime was alleged to have been committed, notwithstanding that Article 53(l)(b) of the Statute refers to cases rather than situations. This is important because the Court’s application of threshold criteria as to whether to approve a request to proceed with an investigation will almost always be more broad, more general and more flexible in relation to a situation, compared to those applied to a case. This is attributable to the fact that an investigation of an individual criminal act ipso facto requires safeguarding the suspect’s rights, and such a requirement demands greater specificity, precision and clarity in the application of the relevant legal norms – for example, with regard to charges, warrants, and indictments. Additionally, the Pre-trial Chamber stated that the ICC must determine: 1 2

whether the crimes fall within the ratione materiae jurisdiction of the Rome Statute (Article 53(1)(a)); whether national courts or other fora were already undertaking genuine prosecutions fairly and effectively in which case the ICC would not have to intervene (as per Article 53(1)(b) which refers back to Article 17);

11 Situation in the Republic of Kenya, ICC-01/09, Decision pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, Pre-trial Chamber II, 31 March 2010, para 27 (‘Decision on the Authorization of an Investigation into the Situation in the Republic of Kenya’). 12 Decision on the Authorization of an Investigation into the Situation in the Republic of Kenya, para 28. 13 Ibid. at para 35.

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whether there were any reasons why, in the interests of justice, the ICC should not exercise jurisdiction over the situation (as per Article 53(1)c)); and fourth, whether the case appeared to fall within the ICC’s jurisdiction (as per Article 15(4)).

On the basis of the information provided by the Prosecutor, the Pre-trial Chamber concluded that with regard to the post-election violence in Kenya, the ‘reason to believe’ requirement had been satisfied in relation to elements of various crimes against humanity, including murder, rape and other forms of sexual violence, forcible transfer of population and other inhumane acts causing serious injury, within the scope of the Rome Statute. It therefore authorized the Prosecutor to proceed with an investigation of the situation in Kenya, even enlarging the temporal scope of the investigation, from the requested period of 27 December 2007 to 28 February 2008, to the period between 1 June 2005 (when the Rome Statute entered into force vis-à-vis Kenya) and 26 November 2009, the date on which the Office of the Prosecutor filed its request for authorization to proceed. Judge Hans-Peter Kaul chose not to side with the majority, instead disagreeing with the Pre-trial Chamber’s finding that there was a reasonable basis to believe that murder, rape and other serious crimes were committed as part of an attack against any civilian population that was undertaken pursuant to or in furtherance of a State or organizational policy to commit such attack in the sense of Article 7(2) (a) of the Rome Statute. Judge Kaul cautioned that the demarcation between crimes of international concern should not be blurred with the ordinary crime of murder, which should instead be prosecuted under Kenyan criminal law,14 and he expressed his concern that disregarding the difference between crimes under international law and ordinary crimes would swamp the ICC, ultimately rendering it ineffective.15 Judge Kaul’s hesitation should not be dismissed lightly. Kenya has a functioning court system, an active national human rights commission, a vibrant press, substantial human rights promotion and protection, a strong tradition of the rule of law and democratic governance, although the political party system is admittedly relatively young and in general far from flawless. On the other hand, as will be discussed later, the crimes that were committed were numerous, serious and widespread, and it seems, quite possibly systematic, at least to some degree. By the time of the writing of this chapter, victims had not received adequate redress through any national means. Should the matter have been left to Kenya’s national system? Judge Kaul sounds an important caution that the ICC should not take up every situation at hand, even where the violations may be serious, if key elements to prove the crime are weak or missing.

14 Decision on the Authorization of an Investigation into the Situation in the Republic of Kenya, Dissenting Opinion of Judge Hans-Peter Kaul, paras 4, 7. 15 Ibid. at para 10.

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Has the ICC been too quick to jump in when national courts could have fairly, effectively and genuinely investigated and prosecuted Rome Statute crimes? It is important to consider the situations the ICC has been investigating and why, before analysing whether the hostile reactions to the ICC’s exercise of jurisdiction might be justified, and ultimately, whether the ICC has unfairly targeted Africa, or whether Africa has unfairly targeted the ICC.

Which situations has the ICC been investigating and why? An overview of preliminary investigations The Office of the Prosecutor indicated that it was conducting preliminary examinations into:

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Afghanistan, which ratified the Rome Statute on 10 February 2003. The Office was assessing whether national efforts to prosecute crimes under international law were genuine; Honduras, which ratified the Rome Statute on 1 July 2002. The Office concluded that there was no reasonable basis to believe that human rights violations surrounding a June 2009 coup d’état met the elements of Rome Statute crimes; Israeli-occupied Palestinian territories, with respect to the May 2010 raid carried out by Israel on the Humanitarian Aid Flotilla bound for the Gaza strip that involved registered vessels of Comoros, Greece and Cambodia – all Parties to the Rome Statute. The Office stated that it was seeking additional information in order to resolve key factual and legal ambiguities in order to determine whether there is a reasonable basis to believe that a crime within the jurisdiction of the Court had been committed; Republic of Korea, which ratified the Rome Statute on 13 November 2002, regarding the sinking of Cheonan, a South Korean warship, on 26 March 2010, and the shelling of South Korea’s Yeonpyeong Island on 23 November 2010, both allegedly by the Democratic People’s Republic of Korea, and about which the Office continued to seek further information with a view to deciding whether to proceed with an investigation; Colombia, under preliminary examination since June 2004, with regard to the conflict between the government on the one hand, and the FARC (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo) and ELN (Ejército de Liberación Nacional) rebel groups. The Office was consulting the government to ensure that genuine criminal proceedings were being carried out in Colombia including against individuals at the highest levels of responsibility; Georgia, which ratified the Rome Statute on 5 September 2003, with regard to violations surrounding clashes that took place from 7 to 12 August 2008 between Georgian armed forces and forces of South Ossetia, part of Georgian territory under Russian occupation which hosts an independence movement to break away from Georgia. Since the use of force involved the Russian Federation, the Office qualified the situation as an international armed

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conflict. The Office has been monitoring developments since 2008 to discern whether genuine national criminal investigations and prosecutions are being undertaken; Guinea, which ratified the Rome Statute on 14 July 2003, in relation to a massacre that the Government, which seized power in a December 2008 coup d’état, allegedly perpetrated on 28 September 2009 against opposition protestors, as well as other serious violations carried out in the aftermath of the massacre. The Office indicated that it was monitoring national criminal investigations and proceedings to gauge whether they were genuine; and Nigeria, which ratified the Rome Statute on 27 September 2001, concerning: inter-communal, political and sectarian violence in central and northern parts of the country; violence among ethnically based gangs and militias and/ or between such groups and the national armed forces in the Niger Delta; and alleged crimes arising from the activities of Boko Haram, a Salafi-jihadi Muslim group that operates mainly in north-eastern Nigeria, and the counterinsurgency operations carried out by the Nigerian security forces against Boko Haram. The Office indicated that it was monitoring whether Nigeria was carrying out genuine criminal investigations and prosecutions in relation to crimes allegedly committed by Boko Haram.16 Ukraine, which by 1 September 2014 had signed but not ratified the Rome Staute. On 17 April 2014, the Government of Ukraine requested that the ICC exercise jurisdiction over the situation in its territory with regard to Rome Statute crimes allegedly perpetrated in Ukrainian territory from 21 November 2013 to 22 February 2014. The prosecutor responded by announcing the launch of a preliminary investigation.17

The Office of the Prosecutor also pointed out that it had completed preliminary investigations into situations in Mali and Palestine. In both situations, the governments of Mali and Palestine referred the situations to the ICC. The situation in Mali has since become a full-scale investigation and the investigation into Palestine was suspended on grounds that it was a matter for the relevant bodies of the United Nations or the Assembly of States Parties to make the legal determination as to whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute, thereby enabling the Court to exercise jurisdiction pursuant to Article 12(1).18

16 OTP, Report on Preliminary Examination Activities 2013 (November 2013), (www.icc-cpi.int/ en_menus/icc/press%20and%20media/press%20releases/Documents/OTP%20Preliminary%20 Examinations/OTP%20-%20Report%20%20Preliminary%20Examination%20Activities%20 2013.PDF). 17 ICC Press Release, ICC-OTP-20140425-PR999, ‘The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination in Ukraine’, 25 April 2014 (www.icccpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr999.aspx). 18 ICC Press Release, ‘The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination in Ukraine’.

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Investigations The Prosecutor has conducted investigations in the Democratic Republic of Congo (DRC), Northern Uganda, the CAR and Mali, all four of which were referred to the ICC by the States themselves. Two more investigations were authorized by way of UN Security Council referral: Darfur (Sudan) and Libya. Only investigations into the situations in Kenya and Côte d’Ivoire arose from the initiative of the Prosecutor and were subsequently authorized by an ICC Pre-trial Chamber. Straightaway, the fact that six out of eight situations arose not from the ICC’s own initiative, but from either the concerned territorial States themselves or the Security Council, militates against the argument that the Prosecutor has unfairly targeted Africa, particularly bearing in mind ICC preliminary investigations into situations in other continents. However, there is another spin on the argument to the effect that it is not just the ICC itself, but the ICC in collusion with the UN Security Council, which together have unfairly targeted African countries, as evidenced by the fact that:

• • • •

the only situations that have proceeded beyond the ICC’s preliminary investigation phase have concerned only African countries; the Security Council referrals have concerned only African countries; the Prosecutor’s proprio motu investigations have been launched only in African countries; and the self-referral of some situations in African countries is the result of international interference and powerful donor country pressure.

Evaluating the broader version of the argument requires a closer look at the situations that have come under ICC purview, to explore whether the Security Council referrals, in addition to the Prosecutor’s actions in Kenya and Côte d’Ivoire, show that the international criminal justice system has targeted Africa. Uganda The first situation that came to the ICC’s attention concerned Uganda, which itself referred to the ICC. Uganda ratified the Rome Statute on 14 June 2002. In December 2003, Ugandan President Yoweri Museveni referred the LRA situation to the ICC19 when LRA leader, Joseph Kony, walked away from the government’s offer of amnesty to the LRA in exchange for a cessation of hostilities. In granting the Prosecutor’s application to issue an arrest warrant for Joseph Kony, ICC Pre-trial Chamber III noted evidence from reports of the Government of Uganda, the United Nations and its agencies, foreign governmental bodies,

19 ICC Press Release, ICC-20040129-44, ‘President of Uganda refers situation concerning Lord’s Resistance Army (LRA) to the ICC’, 29 January 2004.

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NGOs and world media, concerning the LRA’s alleged attacks on the Uganda People’s Defence Force and local defence units, as well as attacks carried out against civilian populations since at least 1987. The alleged attacks committed from the entry into force of the Rome Statute on 1 July 2002 included murder, abduction, sexual enslavement, mutilation, mass burnings of houses and looting of camp settlements as well as forcible recruitment of children to support LRA attacks on Ugandan armed forces and civilians.20 Joseph Kony was allegedly Chairman and Commander-in-Chief of the LRA, which operates as an army. He is suspected to have personally committed many of the crimes and also to have ordered the perpetration of other crimes. Arrest warrants for four other LRA commanders have also been issued, but one of these persons, Mr Raska Lukwiya, died on 12 August 2006. Once one of the ICC’s strongest African supporters, and the man responsible for referring the northern Uganda situation to the ICC, President Museveni has recently become one of the ICC’s strongest critics. In his speech to the UN General Assembly on 24 September 2013, Museveni bitterly denounced the ICC as a Western tool of neo-colonialism: The latest manifestation of arrogance is from the ICC in relation to the elected leaders of Kenya. Many African countries supported the setting up of ICC because we abhor impunity. However, the ICC in a shallow, biased way has continued to mishandle complex African issues. This is not acceptable. The ICC should stop. Our advice to them is from very capable actors who know what they are doing and saying. Kenya is recovering. Let her recover. We know the origin of the past mistakes. The ICC way is not the right one to handle those mistakes.21 Museveni’s statement in New York met with mixed reactions back in Kampala. Mr Norbert Mao, leader of the Democratic Party, for example, called Museveni’s position hypocritical, arguing that: this time Museveni is on the wrong side of history. Only the ICC can stand as a reminder to all perpetrators of impunity that there will be a day of reckoning. Museveni dreads the day of reckoning. That is his real problem with the International Criminal Court.22

20 See Prosecutor v Joseph Kony, ICC-02/04-01/05-53, Warrant of Arrest for Joseph Kony Issued on 8 July 2005 as amended on 27 September 2005, 27 September 2005, paras 5–7. 21 See Statement by H.E. Yoweri Kaguta Museveni, President of the Republic of Uganda at the 68th UN General Assembly, New York, 24 September 2013 (http://gadebate.un.org/sites/default/ files/gastatements/68/UG_en.pdf). 22 Norbert Mao, ‘Museveni was cheerleader of ICC; what went wrong?’ Saturday Monitor (22 October 2013) (www.monitor.co.ug/OpEd/Commentary/Museveni-was-cheerleader-of-ICC--what-wentwrong-/-/689364/2041572/-/j9y241z/-/index.html).

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Democratic Republic of Congo (DRC) On 19 April 2004, the ICC Prosecutor announced that he had received a signed letter from the President of the DRC, referring to the ICC crimes committed anywhere in DRC territory since the Rome Statute’s entry into force on 1 July 2002. In his letter, the President also pledged the co-operation of the Government of the DRC. Like the situation in Uganda, the roots of impunity in the DRC date back many years and involve a series of complicated factors. The UN Office of the High Commissioner for Human Rights’ Mapping Report, covering violations committed in the DRC between March 1993 and June 2003,23 documents the various phases of armed conflict during this period. In a 2007 report, the International Rescue Committee (IRC) stated that ‘Based on the results of the five IRC studies, we now estimate that 5.4 million excess deaths have occurred between August 1998 and April 2007’, and that an estimated 2.1 million of those deaths have occurred since the formal end of war in 2002.24 In its decision on the Prosecutor’s application to issue a warrant for the arrest of Thomas Lubanga Dyilo, Pre-trial Chamber I found reasonable grounds to believe that during various specified periods from July 2002 to December 2003, the FPLC – the military wing of the Union of Congolese Patriots – had repeatedly enlisted children under the age of 15, who were then trained in certain camps, and that Lubanga, as founder and Commander-in-Chief of the FPLC, was personally responsible.25 On 14 March 2012, Lubanga was convicted of the war crime of enlisting and conscripting children under the age of 15 into the FPLC and forcing them to fight in the DRC civil war being waged in Ituri Province. The ICC sentenced Lubanga to 14 years’ imprisonment. On 7 March 2014, Trial Chamber II found Germain Katanga guilty of the crime against humanity of murder and the war crimes of murder, attacking a civilian population, destruction of property and pillaging in the Ituri part of the DRC. The Judgment became final once both the Defence and the Prosecutor discontinued their appeals on 25 June 2014. Proceedings against a number of other indicted persons currently in custody were ongoing at the time this chapter was written.

23 OHCHR Report of the Mapping Exercise documenting the most serious violations of human rights and international humanitarian law committed within the territory of the Democratic Republic of the Congo between March 1993 and June 2003 (August 2010) (www.ohchr.org/ Documents/Countries/ZR/DRC_MAPPING_REPORT_FINAL_EN.pdf). 24 International Rescue Committee, Mortality in the Democratic Republic of Congo: An ongoing crisis (2007) (www.rescue.org/sites/default/files/migrated/resources/2007/2006-7_congomortalitysurvey.pdf); but see 2010 Human Security Report, which criticizes IRC’s methodology and argues that the death toll in the DRC has been far less (http://hsrgroup.org/human-securityreports/20092010/text.aspx). 25 Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-2, Warrant of Arrest in The Situation in the Democratic Republic of the Congo, Pre-trial Chamber I, 10 February 2006.

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Central African Republic The Government of the CAR, which ratified the Rome Statute on 3 October 2001 and therefore became subject to ICC jurisdiction as of the Statute’s entry into force, determined that its national system could not adequately address the high incidence of Rome Statute crimes being committed in its territory. On 22 December 2004, the Government decided to refer the situation to the ICC, but it was not until 22 May 2007 that the Prosecutor announced the launch of an investigation. On 22 May 2007, when the ICC Prosecutor announced the start of an investigation into the CAR situation, he noted that there were many allegations of rape and other acts of sexual violence perpetrated against hundreds of reported victims, and that his Office would also monitor crimes allegedly committed since the end of 2005: Some of the worst allegations relating to killing, looting and rape, occurred during intense fighting in October-November 2002 and in February-March 2003. Attacks against civilians followed a failed coup attempt; there emerged a pattern of massive rapes and other acts of sexual violence perpetrated by armed individuals. Sexual violence appears to have been a central feature of the conflict.26 The OTP’s press release also referred to credible reports of mass killings and high numbers of rapes committed against civilians, including elderly women, young girls and boys. Rapes were deliberately inflicted with aggravated cruelty, committed by multiple perpetrators in front of third persons with relatives sometimes forced to participate, and they resulted in severe stigmatization of victims and the spread of HIV.27 On the basis of the seriousness and scale of the alleged crimes, the OTP considered that an investigation should be undertaken, particularly in light of the position taken by the Cour de Cassation of CAR in April 2006 that national authorities were unable to get hold of or to prosecute criminal suspects, and that they were also unsuccessful in gathering evidence or conducting investigations. In his May 2013 report to the UN Security Council on children in armed conflict, Secretary-General Ban Ki-moon indicated that the UN continued to receive reports of grave violations perpetrated against children in the CAR throughout 2012 and that with 416,000 internally displaced persons and 26,000 refugees triggered by the LRA’s actions, the armed group remained a serious threat to civilians in the region.28 On 11 January 2014, the situation in CAR

26 ICC Press Release, ICC-OTP-20050107-86, ‘ICC Prosecutor receives referral concerning Central African Republic’, 7 January 2005. 27 ICC Press Release, ‘ICC Prosecutor receives referral concerning Central African Republic’. 28 Report of the UN Secretary-General to the Security Council on children in armed conflict; A/67/845BS/2013/245 of 15 May 2013, 86.

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had worsened to the point that foreigners were urgently evacuated from the country.29 President Michel Djotodia, who had seized power in March 2013 and ruled until regional powers pressured him to resign on 10 January 2014, fled to Benin.30 Darfur (Sudan) Darfur was the first situation that the UN Security Council referred to the ICC. The Government of Sudan signed the Rome Statute on 8 September 2000, but by 1 January 2014 had yet to ratify the Statute. A series of high-level UN investigative teams were established from 2004 to 2007 to focus on the Darfur situation, each confirming that serious human rights and humanitarian law violations which probably qualified as Rome Statute crimes had been committed, mainly by the Government of Sudan together with the Janjaweed and other pro-government militia. Such crimes included massacres, enforced disappearances, mass rape of women and children, and torture and summary or arbitrary executions.31 Importantly, from the point of view of the complementarity requirements for ICC jurisdiction, the High Level Mission’s report of 9 March 2007 confirmed that the justice system as a whole was unable or unwilling to pursue justice or prevent attacks,32 reiterating the very same findings previously established by the Security Council’s Commission of Inquiry on Darfur. On 31 March 2005, the Security Council adopted Resolution 1593, which took note of the Report of the International Commission of Inquiry on Violations of International Humanitarian and Human Rights Law in Darfur (S/2005/60). It also declared that the situation in Sudan continued to threaten international peace and security, and invoked Chapter VII of the UN Charter to refer the situation in Darfur since 1 July 2002 to the ICC Prosecutor. The Pre-trial Chamber found there were reasonable grounds to believe that the Janjaweed had carried out systematic or widespread attacks against the civilian population. It elaborated that during such attacks, the Sudanese armed forces and the militia/Janjaweed carried out persecution, murders, forcible transfers, imprisonment or severe deprivation of liberty, acts of torture, rapes and other inhumane acts against civilians primarily from the Fur, Zaghawa and Masalit

29 ‘Foreigners to be airlifted from CAR: Thousands of foreign nationals have sought shelter at an airport near the capital, seeking to flee the violence’ Aljazeera (11 January 2014) (www.aljazeera. com/news/africa/2014/01/foreigners-be-airlifted-from-car-201411162344202215.html). 30 ‘CAR ex-leader heads for exile in Benin’ Aljazeera (11 January 2014) (www.aljazeera.com/news/ africa/2014/01/car-ex-leader-exile-benin-201411115450653357.html). 31 See Report of the International Commission of Inquiry on Darfur to the United Nations SecretaryGeneral Pursuant to Security Council Resolution 1564 of 18 September 2004; see Report of the High-Level Mission on the Situation of Human Rights in Darfur pursuant to Human Rights Council decision S-4/101 (A/HRC/4/80). 32 A/HRC/4/80 (n 30) 46–51.

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populations.33 The ICC’s public indictment of President Omar Al Bashir of Sudan on 14 July 2008 was the first time the ICC ever indicted a sitting Head of State. A warrant for his arrest was issued on 4 March 2009.34 The Sudanese Government’s immediate reaction was to expel 10 (the number later rose to 13) humanitarian NGOs from Sudan, with 24 hours’ notice to leave the country. The UNOCHA immediately highlighted that the expulsion of 10 relief organizations from Sudan would leave hundreds of thousands of the most vulnerable civilians at risk. The organizations, which included Oxfam, CARE, MSF-Netherlands, Mercy Corps, Save the Children, the Norwegian Refugee Council, the International Rescue Committee, Action contre la faim, Solidarités and CHF International, had been ensuring that hundreds of thousands of internally displaced persons were receiving food, water and medicine in life-threatening circumstances. The NGOs concerned expressed their certainty that the notice to leave was linked directly to the arrest warrant for President Omar Al Bashir. The International Rescue Committee estimated that the Sudanese Government’s closing of its humanitarian assistance programmes in Darfur, and in North and East Sudan, jeopardized the lives of some 1.75 million people of all ages.35 Despite Khartoum’s manifestly cruel and vindictive move to punish almost two million of its own citizens by blocking access to urgent humanitarian assistance, the Arab League and the Organization of the Islamic Conference (OIC) expressed their unequivocal solidarity with the Government of Sudan and with President Al Bashir personally. On 18 March, Arab League Secretary General Amr Moussa stated that the Arab League was greatly disturbed by the ICC’s indictment of Bashir, and that the League supported Sudan’s sovereignty.36 For its own part, OIC Secretary General Ekmeleddin Ihsanoglu met with Sudanese President Omar Al Bashir and, following the meeting, stressed the OIC’s solidarity with Sudan, remarking, ‘The OIC was a good framework and essential to overcome the Darfur crisis as the conflicting parties in the Darfur region were all Islamic parties.’37

33 Prosecutor v Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muhammad Al Abd-al-rahman (“Ali Kushayb”), ICC-02/05-01/07, Warrant of Arrest for Ahmad Harun, Pre-trial Chamber, 27 April 2007; See also ‘Janjaweed leader is Sudan aide’ BBC World News (21 January 2008), which reported that the Sudanese authorities had given a senior government position to a man accused of coordinating the Janjaweed Arab militia in Darfur (http://news.bbc.co.uk/2/hi/africa/7199447. stm, accessed 8 August 2010). 34 Prosecutor v Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-95, Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir, Pre-trial Chamber I, 12 July 2010 (‘Second Arrest Warrant for Al Bashir’). 35 ‘Sudan: Aid agencies react to expulsions’ International Relief Information Network (5 March 2009) (www.irinnews.org/printreport.aspx?reportid=83311). 36 ‘Arab League, OIC, AU Reject the ICC Arrest Warrant Against Sudanese President Omar Al-Bashir’ Xinhua News Agency (29 March 2009) (http://news.xinhuanet.com/english/2009-03/29/ content_11095489.htm). 37 ‘OIC stresses solidarity with Sudan in spite of ICC decision’ Xinhua (14 March 2009) (http://news. xinhuanet.com/english/2009-03/15/content_11012374.htm).

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Sudan’s presidential envoy Awad Ahmed al-Jaz said in an interview with Xinhua that the ICC was a manifestation of neo-colonialism and that it created a dangerous precedent. He also said that the arrest warrant for Al Bashir ‘did not target the president himself but Sudan as a country that has made major achievement in the peace process on the African continent’, clearly implying that the ICC was destroying any chance of peace in Sudan. Further embellishing the point, the envoy imputed sinister motives to foreign elements: ‘the neo-colonialists want to take Sudan as an experimental field – once Sudan accepts the charge, they would apply similar penalty to the leaders of other countries whom they deemed “unpopular”.’38 Accordingly, he went on, the Sudanese Government had to reject the ICC’s decision firmly right from the start. The People’s Republic of China, a major investor in Sudan’s infrastructural development, quickly threw its support behind the Government of Sudan, similarly framing the ICC as a threat to peace.39 Predictably, the Russian Federation entered the fray as well, with the Foreign Ministry intoning, ‘It should also be remembered that Omar Al Bashir as the Head of a State which is not a party to the Rome Statute of the ICC enjoys the immunities of a top State official under general international law’; it also expressed its worries that the indictment would hamper peace efforts in Sudan.40 Amr Moussa went out of his way to reiterate the Arab League’s continuing support for Al Bashir on 30 March 2009 in the following terms, ‘We stress our solidarity with Sudan and our rejection of the ICC decision against President Omar al-Bashir.’ It was reported that President Omar Al Bashir ‘enjoyed warm support from fellow Arab League leaders during the gathering in Qatar’ and that ‘delegates repeatedly denounced the arrest warrant issued on March 4 by the ICC over alleged war crimes in Darfur’.41 On 12 July 2010, Pre-trial Chamber I issued a second arrest warrant for Omar Al Bashir, deciding that there were reasonable grounds to believe that Bashir was criminally responsible as an indirect perpetrator of acts of genocide by killing, genocide by causing serious bodily or mental harm, and genocide by deliberately inflicting conditions of life calculated to bring about physical destruction of a national, ethnical, racial or religious group as such within the meaning of the Rome Statute.42

38 ‘Sudan’s envoy: ICC’s warrant for Sudanese president manifestation of neo-colonialism’ Xinhua (28 March 2009) (http://news.xinhuanet.com/english/2009-03/28/content_11089837.htm). 39 ‘China regretful, worried about Sudan president arrest warrant’ Xinhua (5 March 2009) (http:// news.xinhuanet.com/english/2009-03/05/content_10946492.htm). 40 See ‘Statement by Russian MFA Spokesman Andrei Nesterenko Regarding the Issuance by International Criminal Court of an Arrest Warrant against Sudanese President Omar al-Bashir’ Information and Press Department, Ministry of Foreign Affairs of the Russian Federation, 5 March 2009 (www.un.int/russia/new/MainRoot/docs/off_news/050309/newen1.htm). 41 ‘Arab leaders reject arrest warrant against Sudan’s Bashir’ France 24 (30 March 2009). 42 See Second Arrest Warrant for Al Bashir (n 33).

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In 2010, the President of the AU,43 then President Bingu wa Mutharika of Malawi, contended that the indictment of Al Bashir was ‘undermining African solidarity and African peace and security’, and that it was unacceptable to issue a warrant for the arrest of a sitting Head of State.44 Kenya When Kenya ratified the Rome Statute on 15 March 2005, few probably would have guessed that the ICC would soon exercise jurisdiction over crimes connected to serious violence that was to follow the 2007 elections. The first multi-party elections in 1992, which were met with widespread scepticism inside and outside Kenya as to their fairness, were followed by serious outbreaks of violence resulting in approximately 2,000 deaths. Throughout the 1990s, party politics has proven highly contentious in Kenya.45 The Commission of Inquiry on Post Election Violence (also known as the Waki Commission), established to investigate the 2007 post-election violence, recounted: ‘Although he agreed to multi-party democracy, President Moi did not accept the idea that through this he might lose the presidency. Thus, it was in this period in the 1990s that violence became institutionalized during presidential and parliamentary elections.’46 The Waki Commission determined that a total of 1,133 people were killed in the postelection violence, with most of these deaths concentrated in the Rift Valley, Nyanza and in Nairobi Province. The report goes on to detail the number of persons injured, and how, noting that ‘[a] total of 117,216 private properties (including residential houses, commercial premises, vehicles, farm produce) were destroyed, while 491 government-owned properties (offices, vehicles, health centres, schools and trees) were destroyed’. Significantly, the Commission stated that it had received no evidence to suggest that civilians caused any gunshot injuries, which ‘validates the view that police action accounted for a good part of the post-election violence’.47 Moreover, the Commission found that the

43 See ‘AU chief condemns Bashir warrants African leaders attack International Criminal Court over moves against Sudan president’ Aljazeera (27 July 2010) (www.aljazeera.com/news/ africa/2010/07/2010726423699861.html). 44 ‘AU chief condemns Bashir warrants: African leaders attack International Criminal Court over moves against Sudan president’ Aljazeera (27 July 2010) (www.aljazeera.com/news/ africa/2010/07/2010726423699861.html). 45 See David W. Throup and Charles Hornsby, Multi-party politics in Kenya: The Kenyatta and Moi states and the Triumph of the System in the 1992 Election (Athens, OH: Ohio University Press, 1998); Godwin R. Murunga and Shadrack Wanjala Nasong’o, (eds), Kenya: The struggle for democracy (London: Zed Books, 2007). 46 Report of the Commission of Inquiry on Post Election Violence (Waki Commission Report) 2008, 35 (http://reliefweb.int/sites/reliefweb.int/files/resources/15A00F569813F4D549257607001F 459D-Full_Report.pdf). 47 Report of the Commission of Inquiry on Post Election Violence (Waki Commission Report) 2008, 345–346.

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post-election violence was strongly ethnically motivated. Contrary to claims that it was primarily spontaneous civilian-to-civilian aggression, ‘the pattern of violence showed planning and organization by politicians, businessmen and others who enlisted criminal gangs to execute the violence’, as indicated by warnings issued to the victims before the attacks, the mobilization and co-ordination of large numbers of attackers from locations outside the place of the attacks, evidence of arrangements to acquire, conceal and transport fuel and weapons, and the targeting of only certain ethnic group members and not others.48 Part IV of the Waki Commission report describes the acts and omissions of State agencies and the climate of impunity with respect to the post-election violence. It recommends the establishment of a Special Tribunal for Kenya to ensure prosecution of the ‘persons bearing the greatest responsibility for crimes’ relating to the post-election violence. Fully in line with Kenya’s international obligations under the Rome Statute, and consonant with the ICC’s complementarity principle, the Waki Commission further recommended that if for some reason, such tribunal was not established, or it did not function properly, then the list of individual suspects should be forwarded to the ICC for prosecution.49 On 26 November 2009, the ICC Prosecutor requested authorization to open an investigation into post-election violence of 2007–2008 in Kenya under Article 15 of the Rome Statute. Pre-trial Chamber II’s decision, discussed above (p 149) in relation to the practical application of the complementarity principle, approved the Prosecutor’s request to investigate. On 12 January 2013, in a remarkable turn of events, former rivals Uhuru Kenyatta and William Ruto, who allegedly led their respective Kikuyu and Kalenjin ethnic constituencies into clashes following the 2007–2008 elections, formed the Jubilee Alliance as a four-party coalition to contest the 2013 general elections. The elections, held on 4 March 2013, brought incumbent Kenyatta back to power as President of Kenya with Ruto serving as his deputy.50 On 27 May 2013, the African Union objected against the ‘misuse of indictments against African leaders’. It expressed its deep regret that ICC Pre-trial Chamber II and the Appeal Chamber, in decisions handed down on 30 May 2011 and 30 August 2011, respectively, ‘denied the right of Kenya to prosecute and try alleged perpetrators of crimes committed on its territory in relation to the 2007 post-election violence’.51 It was then that the Ethiopian Prime Minister, Hailemariam Desalegn, stated that the ICC process had ‘degenerated into some kind of race hunting’ of Mr Kenyatta and deputy William Ruto, despite

48 Report of the Commission of Inquiry on Post Election Violence (Waki Commission Report) 2008, 347. 49 Ibid. at 473; see Recommendation, para 5. 50 See ‘Official Election Results, County By County Tally’ Kenya Today (14 March 2013) (www.kenyatoday.com/politics/kenya-election-results-2013). 51 African Union, Decision on International Jurisdiction, Justice and the International Criminal Court (ICC) of 27 May 2013, Doc. Assembly/AU/13(XXI), 6.

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reconciliation between the Kalenjin and Kikuyu ethnic groups.52 On 12 October 2013, President Kenyatta himself addressed the African Union, whose fresh attack on the ICC is worth reproducing at length: Western powers are the key drivers of the ICC process. They have used prosecutions as ruses and bait to pressure Kenyan leadership into adopting, or renouncing various positions. Close to 70% of the Court’s annual budget is funded by the European Union. The threat of prosecution usually suffices to have pliant countries execute policies favorable to these countries. Through it, regime-change sleights of hand have been attempted in Africa. A number of them have succeeded. The Office of the Prosecutor made certain categorical pronouncements regarding eligibility for leadership of candidates in Kenya’s last general election. Only a fortnight ago, the Prosecutor proposed undemocratic and unconstitutional adjustments to the Kenyan Presidency. These interventions go beyond interference in the internal affairs of a sovereign State. They constitute a fetid insult to Kenya and Africa. African sovereignty means nothing to the ICC and its patrons. They also dovetail altogether too conveniently with the warnings given to Kenyans just before the last elections: choices have consequences. This chorus was led by the USA, Britain, EU, and certain eminent persons in global affairs. It was a threat made to Kenyans against electing my Government. My Government’s decisive election must be seen as a categorical rebuke by the people of Kenya of those who wished to interfere with our internal affairs and infringe our sovereignty.53 Kenyatta went on to condemn Western powers for applying double standards as regards their own international criminal adventures in relation to ‘Iraq, Syria, Libya, Afghanistan and other places’, and denounced the ICC for ‘race hunting’ Africans: America and Britain do not have to worry about accountability for international crimes. Although certain norms of international law are deemed peremptory, this only applies to non-Western states. Otherwise, they are inert. It is this double standard and the overt politicisation of the ICC that should be of concern to us here today. It is the fact that this court performs on the cue of European and American governments against the sovereignty of African States and peoples that should outrage us. People have termed this situation ‘race-hunting’. I find great difficulty adjudging them wrong.54

52 ‘African Union accuses ICC of “hunting” Africans’ BBC News (27 May 2013) (www.bbc.co.uk/ news/world-africa-22681894?print=true). 53 Uhuru Kenyatta, ‘Africa: ICC Is a Toy of Declining Imperial Powers – Uhuru’ Capital FM (12 October 2013) (http://allafrica.com/stories/201310130069.html). 54 Kenyatta, ‘Africa: ICC Is a Toy of Declining Imperial Powers – Uhuru’.

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Kenyatta concluded his diatribe with the following: ‘The ICC has been reduced into a painfully farcical pantomime, a travesty that adds insult to the injury of victims. It stopped being the home of justice the day it became the toy of declining imperial power.’ He also pointed out that the United States, China, Israel and India (and he could have also mentioned Russia) have all refused to ratify the Rome Statute.55 Around the same time, members of the African Union took steps to vest international criminal jurisdiction in the nascent African Court of Justice and Human Rights, basically to set up a regional alternative to ICC jurisdiction.56 At the sub-regional level, the Government of Kenya led a drive among members of the East African Community (Burundi, Kenya, Rwanda, Tanzania and Uganda) to confer international criminal jurisdiction upon the East African Court of Justice, and to have the ICC cases concerning post-election violence in Kenya transferred to it.57 In principle, the building up of alternatives to ICC jurisdiction to fight impunity should be supported because they fall in line with ICC complementarity, but only as long as such alternatives provide genuine, fair and effective

55 Kenyatta, ‘Africa: ICC Is a Toy of Declining Imperial Powers – Uhuru’. 56 Article 28A of the Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (as revised up to 15 May 2012) would confer international criminal jurisdiction to the Court over ‘persons’ for: genocide; crimes against humanity; war crimes; the crime of unconstitutional change of government; piracy; terrorism; mercenarism; corruption; money laundering; trafficking in persons; trafficking in drugs; trafficking in hazardous wastes; illicit exploitation of natural resources; and the crime of aggression. See the Draft Protocol; Exp/Min/IV/Rev.7, (http://africlaw.files.wordpress.com/2012/05/au-final-court-protocol-asadopted-by-the-ministers-17-may.pdf); See also Frans Viljoen, ‘AU Assembly should consider human rights implications before adopting the Amending Merged African Court Protocol’ AfricLaw: Advancing the Rule and Role of Law in Africa (23 May 2012) (http://africlaw.com/tag/ draft-protocol-on-amendments-to-the-protocol-on-the-statute-of-the-african-court-of-justice-andhuman-rights). 57 On 26 April 2012, the East Africa Legislative Assembly, meeting in Nairobi, Kenya, resolved that the East African Community Council of Ministers would request the transfer of proceedings for the four Kenyan individuals which the ICC accused in relation to the 2007 Kenyan post-election violence, from the ICC to the East African Court of Justice for violations of the East African Community Treaty. See Resolution of the Assembly Seeking the EAC Council of Ministers to Implore the International Criminal Court to Transfer the Case of the Accused Four Kenyans Facing Trial in Respect of the Aftermath of the 2007 Kenya General Elections to the East African Court of Justice and to Reinforce the Treaty Provisions, Hon. Dan Wandera Ogalo (www. eala.org/oldsite041111/key-documents/doc_details/266-resolution-seeking-to-try-kenya-2007general-elections-aftermath-accused-persons-at-eacj-not-icc.html); See also ‘Statement by the East Africa Law Society on the East Africa Legislative Assembly Resolution Seeking the East African Community Council of Ministers to Implore the International Criminal Court to Transfer the Cases of the Accused Four Kenyans Facing Trial in Respect of the Aftermath of the 2007 Kenya General Elections to the East African Court of Justice and to Reinforce the Treaty Provisions’ (www.eala.org/oldsite041111/media-centre/press-releases/349-rejoinder-statement-by-eals-onealas-resolution-seeking-the-transfer-of-the-cases-from-icc-to-eacj.html); See further several rejoinders between the East African Council of Ministers and the East African Law Society, (www. eala.org/oldsite041111/media-centre/press-releases/349-rejoinder-statement-by-eals-on-ealasresolution-seeking-the-transfer-of-the-cases-from-icc-to-eacj.html).

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prosecution and punishment of Rome Statute crimes. If international criminal jurisdiction were to be conferred upon either the African Court of Justice and Human Rights or the East African Court of Justice, their respective secretariat budgets, expertise and human resources would have to be increased massively to match their expanded responsibilities. One has to wonder whether Kenyatta and Ruto really intend to face international criminal justice at all, whether conducted by the ICC, the East African Court of Justice, or any other forum. On 26 October 2013, the East African Community’s Legislative Assembly heard a motion for a resolution to urge the ICC to defer the prosecutions against Kenyatta and Ruto.58 Libya The situation in Libya blew up during the Arab Spring protests that swept the Middle East and North Africa. By mid-February 2011, demands for reform in Tunisia, Egypt and some of the Gulf countries emboldened Libyans to call for constitutional reform and to mobilize against Colonel Muammar Gaddafi, who had ruled Libya for almost 42 years. The Gaddafi regime’s severe reaction to peaceful protestors only consolidated the political opposition. Opposition leaders formed a provisional government in Benghazi called the National Transitional Council, which declared its intention to overthrow Gaddafi’s government and prepare the country for democratic elections. On 25 February 2011, the UN Human Rights Council expressed its concern over gross and systematic human rights violations in Libya that included extrajudicial killings, arbitrary arrest and detention, systematic torture and armed attacks on civilians, which the Council warned could constitute crimes against humanity.59 The Human Rights Council established an international commission of inquiry to investigate the violations and to make recommendations for additional measures in order to ensure the accountability of perpetrators.60 The next day, the Security Council unanimously adopted Resolution 1970 which referred the situation to the ICC,61 enforced an arms embargo upon all UN Member States on direct or indirect supply of arms to Libya,62 put in place a

58 East African Community Legislative Assembly Motion for a Resolution Urging the International Criminal Court (ICC) to Defer the Criminal Cases Against the President and Deputy President of the Republic of Kenya; moved by Hon. Christophe Bazivamo and seconded by Hon. Mike K. Sebalu. 59 Human Rights Council resolution on the situation of human rights in the Libyan Arab Jamahiriya, A/HRC/S-15/1 of 3 March 2011, adopted on 25 February 2011. 60 Human Rights Council resolution on the situation of human rights in the Libyan Arab Jamahiriya, 11. 61 Human Rights Council resolution on the situation of human rights in the Libyan Arab Jamahiriya, 4–8. 62 Human Rights Council resolution on the situation of human rights in the Libyan Arab Jamahiriya, 9–14.

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travel ban on 16 members of the Gaddafi family and persons close to the regime,63 and froze the assets of six Gaddafi family members.64 In resolution 1973, adopted on 17 March, the Security Council condemned ‘the gross and systematic violation of human rights, including arbitrary detentions, enforced disappearances, torture and summary executions’, and urged the Libyan Government to comply with its humanitarian law obligations.65 Resolution 1973 also imposed a no-fly zone, took measures to ban flights inside and outside Libya, put in place further asset freezes and named specific individuals subject to these restrictions. A Commission of Inquiry fielded by the Human Rights Council reported in June 2011 that the Government and National Transitional Council estimated that between 10,000 and 15,000 people had been killed. Part IV of the report documented the Libyan Government’s numerous violations, which include: (i) excessive use of force against demonstrators; (ii) arbitrary detention and enforced disappearances; (iii) torture and other forms of ill-treatment; (iv) systematic denial of access to medical treatment; (v) suppression of the freedom of expression; (vi) attacks on civilians, civilian objects, protected persons and objects; (vii) use of prohibited weapons; (viii) use of mercenaries; (ix) abuse of the human rights of migrant workers; (x) sexual violence; and (xi) use of children in the armed conflict.66 The ICC Prosecutor then conducted a preliminary examination of the situation in Libya. It concluded on 3 March 2011 that there was a reasonable basis to believe that Rome Statute crimes had been perpetrated in Libya since 15 February 2011 and thereby launched a full investigation. On 16 May, the ICC Prosecutor applied to Pre-trial Chamber I for the issuance of warrants for the arrest of Muammar Gaddafi, his son Saif Al-Islam Gaddafi67 (who acted as de facto Prime Minister of Libya), and Abdullah Al-Senussi, head of Libyan intelligence, for crimes against humanity (murder and persecution) committed in Libya since 15 February 2011. Colonel Gaddafi was captured and killed by rebel forces in Sirte on

63 Human Rights Council resolution on the situation of human rights in the Libyan Arab Jamahiriya, 15, 16; see Annex I to the resolution. 64 Human Rights Council resolution on the situation of human rights in the Libyan Arab Jamahiriya, 17–21; see Annex II to the resolution. 65 Security Council Resolution 1973 of 17 March 2011, S/RES/1973 (2011). 66 See Report of the International Commission of Inquiry to investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya, A/HRC/17/44 of 1 June 2011, Summary. 67 The ICC seems to have departed from the UN standard spelling of ‘Qadhafi’.

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20 October 2011.68 As rebel forces gained the upper hand in Libya, Saif Al-Islam tried to escape to Niger with the help of four of his aides, but he was captured on 19 November about 650km from Tripoli and transferred to Zintan.69 On 23 January 2012, Libya announced that it intended to try Saif Al-Islam rather than to surrender him to the ICC for prosecution.70 The ICC’s warrant for Saif Al-Islam’s arrest and Libya’s declaration to try him put Libya and the ICC on a collision course over the issue of complementarity, in particular, concerning whether Saif Al-Islam could get a fair trial in Libya. Embarrassingly for Libya, Saif Al-Islam remained in the hands of militia in Zintan, who refused to surrender him to Libyan authorities in Tripoli for trial. This standoff called into question Libya’s effective control over its own territory as well as its ability to enforce criminal responsibility fairly and effectively for Rome Statute crimes.71 On 31 May 2013, Pre-trial Chamber I ruled on the admissibility of the case against Saif Al-Islam Gaddafi. It noted that Libya was not yet able to secure his transfer from the custody of the Zintan militia to Libyan authorities and that the Libyan Government was proposing to train Zintan brigade members to form a special judicial police contingent capable of guarding Gaddafi for transfer to Tripoli. The Chamber noted that the stalemate between the Zintan militia and Libyan authorities in Tripoli had not ceased since Saif Al-Islam Gaddafi’s arrest on 19 November 2011 and that ‘[t]he Chamber is not persuaded that this problem may be resolved in the near future and no evidence has been produced in support of that contention’.72 In addition to Libya’s inability to get hold of the suspect, the Chamber also expressed its doubts regarding Libya’s ability to obtain testimony and to appoint defence counsel, concluding, ‘Libya has been found to be unable genuinely to carry out the investigation or prosecution against Mr. Gaddafi.’73 Saif Al-Islam made brief court appearances in Zintan in May and December 2013, when the case was adjourned until February 2014, and by 1 September 2014, he had still not been transferred to Tripoli.74

68 See ‘Muammar Gaddafi killed as Sirte falls’ Aljazeera (20 October 2011) (http://english.aljazeera. net/news/africa/2011/10/20111020111520869621.html, accessed 20 October 2011). 69 Chris Stephen and and David Batty, ‘Saif al-Islam Gaddafi captured in Libya: Interim Tripoli government says son of Muammar Gaddafi was arrested while attempting to flee to neighbouring Niger’ The Guardian (19 November 2011) (www.theguardian.com/world/2011/nov/19/ saif-al-islam-gaddafi-captured). 70 Ali Shuaib, Sara Webb, Oliver Holmes and Ben Harding, ‘Libya says it, not ICC, will try Gaddafi’s son Saif al-Islam’ Reuters (23 January 2012) (www.reuters.com/article/2012/01/23/ us-icc-libya-idUSTRE80M1V820120123). 71 ‘Saif Al-Islam Gaddafi transfer for Tripoli hearing blocked’ BBC News (19 September 2013) (www. bbc.co.uk/news/world-africa-24161544). 72 Prosecutor v Saif al-Islam Gaddafi and Abdullah al-Senussi, ICC-01/11-01/11, Decision on the admissibility of the case against Saif Al-Islam Gaddafi, Pre-trial Chamber I, 31 May 2013, para 207. 73 Prosecutor v Saif al-Islam Gaddafi and Abdullah al-Senussi, ICC-01/11-01/11, Decision on the admissibility of the case against Saif Al-Islam Gaddafi, Pre-trial Chamber I, 31 May 2013, para 216. 74 ‘Gaddafi’s son briefly appears in Libyan court’ Associated Press (13 December 2013) (www. emirates247.com/news/gaddafi-s-son-briefly-appears-in-libyan-court-2013-12-13-1.531250).

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Abdullah Al-Senussi, the former Libyan head of intelligence wanted by the ICC for crimes against humanity, managed to get to Morocco and then fly to Mauritania in March 2012, where he was then arrested upon arrival at Nouakchott Airport. On 5 September, he was deported back to Libya for trial after assurances were given by Libya’s Prime Minister Abdurrahim el-Keib that ‘Abdullah Al-Senussi will have a fair trial according to international standards for human rights, the rights from which Libyans were deprived’.75 However, on 11 October 2013, Pre-trial Chamber I ruled that Libya was genuinely willing and able to prosecute Al-Senussi, and declared that the case was therefore inadmissible before the ICC. Côte d’Ivoire Long before the November 2010 elections, the Security Council had been concerned about the situation in Côte d’Ivoire. Following Côte d’Ivoire’s first elections in 10 years, held in November 2010, the nation’s Electoral Commission declared opposition leader Alassane Dramane Ouattara the winner over incumbent President Laurent Gbagbo. This declaration was backed by the UN Secretary-General, the European Union High Representative of the Union for Foreign Affairs and Security Policy, and several other governments. However, President Gbagbo rejected the election results and on 3 December, the Constitutional Court declared him the winner.76 With this contradictory development, certain tribal groups lined up behind the contending political parties and began to carry out massacres. In the first months of 2011, there were reports of systematic murder, torture, rape, summary executions and other atrocities.77 By February 2011, the UNHCR estimated that around 40,000 refugees had crossed into Liberia and another 38,500 had been displaced from their homes in the western part of Côte d’Ivoire, but had not yet left the country.78 On 25 March 2011, the Human Rights Council adopted Resolution 16/25, deciding to send an international commission of inquiry to investigate the postelection violence in Côte d’Ivoire and to identify individuals responsible for such acts with a view to bringing them to justice.79 A few days later, the Security Council

75 ‘Mauritania deports Libya spy chief Abdullah al-Senussi’ BBC News (5 September 2012) (www.bbc. co.uk/news/world-africa-19487228). 76 ‘Ivory Coast poll overturned: Gbagbo declared winner’ BBC News (3 December 2011) (www.bbc. co.uk/news/world-africa-11913832, accessed 1 October 2011). 77 See e.g. Amnesty International, ‘Côte d’Ivoire: Warning of “human rights catastrophe” as forces reach Abidjan’ (31 March 2011) (www.amnesty.org/en/news-and-updates/c%C3% B4te-d%E2%80%99ivoire-warning-%E2%80%98human-rights-catastrophe%E2%80%99-forcesreach-abidjan-2011-03-31, accessed 1 October 2011). 78 Mamadou Dian Balde, Jeff Crisp, Ewen Macleod and Vicky Tennant, ‘Shelter from the storm: A real-time evaluation of UNHCR’s response to the emergency in Côte d’Ivoire and Liberia’ UNHCR, PDES/2011/07, June 2011. 79 Human Rights Council Resolution 16/25 on the Situation of Human Rights in Côte d’Ivoire, A/ HRC/16/25 of 25 March 2011.

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condemned the serious violations of human rights and humanitarian law in Côte d’Ivoire and referred to the responsibility of parties to armed conflicts in order to protect civilians and ensure humanitarian access.80 In its June 2011 report, the Commission of Inquiry laid the blame for the serious violations of human rights and humanitarian law squarely on Gbagbo’s rejection of the election results, and it indicated that some of the violations might constitute war crimes and crimes against humanity.81 Côte d’Ivoire was not then a party to the Rome Statute (it has since ratified the Statute), but on 3 May 2011, President Ouattara requested that the ICC Prosecutor open an investigation.82 On 3 October 2011, ICC Pre-trial Chamber III authorized the Prosecutor to commence an investigation in Côte d’Ivoire with respect to crimes committed since 28 November 2010.83 On 3 June 2013, Pre-trial Chamber I adjourned the hearing to confirm the charges against Gbagbo, and at the time that this chapter was finalized, proceedings were still ongoing.84 Mali In April 1959, Senegal joined with French Sudan to form the Federation of Mali as a self-ruling territory and by March 1960, France assented to full independence to the Federation. On 20 June 1960, France recognized the Federation of Mali as a fully independent country with Modibo Keïta as its first President, and when Senegal withdrew from the Federation in August 1960, Mali declared its independence as the Republic of Mali on 22 September 1960.85 Since independence, the Tuareg people, concentrated in the northern part of the country, have carried out a series of rebellions against the Malian government – most notably in 1962–1964, 1990–1995, 2007–2009 and 2012.

80 Security Council Resolution 1975 of 30 March 2011, S/RES/1975 (2011), 10. 81 Rapport de la Commission d’enquête internationale indépendante sur la Côte d’Ivoire, A/ HRC/17/48 of 14 June 2011, 91. 82 On 23 June, the Prosecutor then requested ICC judges for authorization to initiate a criminal investigation into war crimes and crimes against humanity committed in Côte d’Ivoire since 28 November 2010. In his request for authorization, the Prosecutor cited reports that more than 3,000 individuals had been killed, 72 disappeared, and 520 people subjected to arbitrary arrest and detention in Côte d’Ivoire following the November 2010 election. More than 100 cases of rape were reported, but the Prosecutor indicated that the number of unreported incidents of rape was believed to be much higher. See Situation in the Republic of Côte d’Ivoire, ICC-02/11-3, Request for Authorization of an Investigation Pursuant to Article 15, Pre-trial Chamber III, 23 June 2011. 83 Situation in the Republic of Côte d’Ivoire, ICC-02/11-14, Decision pursuant to Article 15 of the Rome Statute on the authorization of an investigation into the situation in the Republic of Côte d’Ivoire, Pre-trial Chamber III, 3 October 2011, para 212. 84 Prosecutor v Laurent Gbagbo, ICC-02/11-01/11-432, Decision adjourning the hearing on the confirmation of charges pursuant to article 61(7)(c)(i) of the Rome Statute, Pre-trial Chamber I, 3 June 2013. 85 Mahamadou Maiga, Les peuples malien et africains: 50 ans d’indépendance ou de dépendance? (L’Harmattan 2012).

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The rebellions have mainly been due to the lack of economic development for the north, perceived decades of neglect, and a severe lack of public services such as hospitals, schools or police. The most recent rebellion, which eventually led to Mali’s self-referral to the ICC, began on 16 January 2012 and involved a number of Tuareg groups fighting for greater autonomy in the northern part of Mali, which is referred to as Azawad. On 22 March 2012, mutinous soldiers overthrew Malian President Touré due to his weak response to the crisis only a month before presidential elections were to take place. The soldiers set up the National Committee for the Restoration of Democracy and State and suspended the Constitution.86 By April 2012, the National Movement for the Liberation of Azawad (MNLA) established control over the Azawad region, including the cities of Kidal, Gao and Timbuktu, and declared independence from Mali.87 What was a primarily local conflict suddenly transformed into a matter of international concern with the intrusion of Ansar Dine, an extreme Islamist group that insisted on imposing Shari’a Law, and which had ties to the Movement for Oneness and Jihad in West Africa (MOJWA/MUJAO), allied to al-Qaeda in the Islamic Maghreb. In effect, by mid-July 2012, the MNLA felt that its movement for autonomy had been achieved and it called an end to its military offensive. However, its efforts were then hijacked by more extreme Islamist groups that favoured carrying out more extreme hostilities.88 The remarkable success of al-Qaeda in the Islamic Maghreb alarmed the international community and impelled the Government of Mali to request urgent military assistance to regain control over the northern part of the country. Responding to this request, French forces began attacking rebel positions on 11 January 2013, followed by a deployment of the African Union, which returned control over Azawad to the government of Mali by 8 February. In October 2013, UN and French forces launched large-scale military operations to prevent a resurgence of terrorist elements in northern Mali.89 Mali ratified the Rome Statute on 16 August 2000. In a letter dated 13 July 2012, the Minister of Justice of Mali asked the ICC Prosecutor to investigate the situation with regard to serious violations of human rights and humanitarian law committed in the country since January 2012, including summary executions of Malian soldiers, rape of women and girls, massacres of civilians, recruitment of child soldiers, torture, pillage, enforced disappearances, destruction of hospitals,

86 ‘Mali mutiny “topples” President Toure’ Aljazeera (22 March 2012) (www.aljazeera.com/news/ africa/2012/03/201232251320110970.html). 87 ‘Mali Tuareg rebels declare independence in the north’ BBC News (6 April 2012) (www.bbc.co.uk/ news/world-africa-17635437). 88 ‘Analysis: al-Qaeda goes full circle with attempt at political hijack of the Sahara’ The Telegraph (13 February 2013) (www.telegraph.co.uk/news/worldnews/africaandindianocean/mali/9868595/ Analysis-al-Qaeda-goes-full-circle-with-attempt-at-political-hijack-of-the-Sahara.html). 89 ‘UN and French forces in “large-scale” operation in Mali’ BBC News (24 October 2013) (www.bbc. co.uk/news/world-africa-24658349).

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courts, schools, headquarters of NGOs and international humanitarian organizations, churches, mausoleums and mosques, and war crimes.90

Conclusion To return to the question posed by this chapter’s title, Africa has not unfairly targeted the ICC, nor has the ICC unfairly targeted Africa. Many African governments supported the establishment of the ICC, making it as much their institution as that of any other continent. Several African governments, confronted with intractable campaigns of violence, insurgency, civil war, and severe, widespread, systematic and mass crimes, had the wisdom to refer situations in their territory to the ICC, to fight impunity and to appeal when necessary to the international community for military, economic and humanitarian assistance. The world might be less Dystopian if leaders in Afghanistan, India, Pakistan, Mexico, Syria, Iraq, North Korea, Myanmar, Bangladesh, Papua New Guinea, Colombia, the Philippines, Thailand, Peru, Turkey, China, Yemen and the Russian Federation showed the same commitment to the fight against impunity as have those African leaders who supported the ICC. European colonial domination, together with extreme human rights violations including centuries of slavery, perpetrated against millions of Africans, left deep psychic scars in the African cultural landscape, and this naturally forms a part of African political consciousness. Yet as struggles for independence against foreign domination fade from the horizon, African political leaders are less and less able to use colonialism as the ever-ready excuse for all of Africa’s current ills.91 Many post-independent African political leaders have concentrated power relentlessly in their own hands and imposed authoritarian rule that cannot credibly be blamed on the colonial legacy. Politicians in certain African countries have unscrupulously exploited the politics of resentment over double standards and African suffering from centuries of racism, to deflect attention away from the modern African Dystopia of governance without rule of law. Even if the ICC has not unfairly targeted Africa, ICC Prosecutor Ocampo’s thoroughly inept prosecutorial strategy made it seem that way. Issuing an open indictment instead of a sealed one against President Omar Al Bashir of Sudan put Al Bashir on full notice of the ICC’s intention to prosecute him and made it very difficult to arrest him. Predictably, Al Bashir refused all co-operation with the ICC and made its rejection a cause célèbre among certain African countries that could not afford to alienate Sudan economically, politically or diplomatically. It remains to be seen if and when the ICC will fully recover from the damage.

90 See Letter from Malick Coulibaly, Minister of Justice and Guardian of the Seal, ‘Renvoi de la situation au Mali’ (13 July 2012) (www.icc-cpi.int/NR/rdonlyres/A245A47F-BFD1-45B6-891C3BCB5B173F57/0/ReferralLetterMali130712.pdf). 91 See Chielozona Eze, ‘Resentment and the African Condition: An Inquiry’ (2005) 2(1) GEFAME Journal of African Studies (http://quod.lib.umich.edu/g/gefame/4761563.0002.105/-resentment-and-the-african-condition-an-inquiry?rgn=main;view=fulltext).

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As discussed above, the ICC has launched preliminary investigations in many countries outside Africa, but disconcertingly, for one reason or another, such efforts had not advanced significantly by the time this chapter was completed on 1 September 2014. Part of the reason could be attributed to the fact that in a number of the non-African situations, the domestic court systems and the capacity to investigate and prosecute Rome Statute crimes generally appeared to be in much better shape than those in the African countries under review. However, this did not seem to explain fully why none of the preliminary investigations outside Africa had proceeded further. Africa has not unfairly targeted the ICC, but some African political leaders, together with the African Union, the Arab League and the Organization of the Islamic Conference, most certainly have. The attacks on the ICC as a neocolonialist tool that hunts Africans, voiced by Sudan’s President Omar Al Bashir, Kenya’s President Uhuru Kenyatta, Ethiopian Prime Minister Hailemariam Desalegn and, more recently, even Ugandan President Yoweri Museveni, are inherently contradictory and nonsensical for several reasons. 1

2

3

4

5

They treat the governments of the self-referral countries of Uganda, CAR, the DRC and Mali as hapless dupes of the neo-colonial bogeyman and imply that their leaders have been so naive and weak so as to be capable of being manipulated in such a manner. The attacks peddle a Utopian vision of Darfur and Libya as places where violations were not really serious enough to warrant Security Council referral to the ICC, and where domestic courts could adequately enforce the criminal law, despite all credible and reasonable indications to the contrary. The attacks launched by certain African political leaders belie their claims to prioritize individual criminal responsibility, human rights, the rule of law and democratic governance, over their own personal and political self-interests. The complaints about the ICC have not come from victims or their representatives, nor in most cases from the general public, but from the very persons implicated in the crimes and sought by the ICC for prosecution, and by some of their closest supporters. The motives of persons indicted by the ICC to try to discredit the ICC should be painfully obvious. The ICC cannot be credibly attacked for applying the Rome Statute’s complementarity principle to situations where UN Security Council and Human Rights Council investigative missions, UN special rapporteurs, UN human rights treaty bodies, governments, independent experts, think tanks, NGOs and humanitarian aid agencies have all thoroughly documented in detail the government’s inability or unwillingness to prosecute Rome Statute crimes. Moreover, it is cynical in the extreme, for example, for Kenyatta and Ruto to claim that their cosy political agreement somehow makes it unnecessary either to enforce criminal responsibility for crimes against humanity or to provide full and meaningful redress for the victims and survivors of the post-election violence.

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The attacks on the ICC imply some sort of secret conspiracy on the part of Western countries to subjugate African countries. This is a nonsensical claim directly contradicted by the full range of diplomatic, economic, political, security and humanitarian engagement upon which both African and non-African countries depend to build prosperity, strengthen international and regional peace and security and to counter terrorism and other threats. Above all, the attacks of some African leaders show complete disregard for the thousands or millions of victims who deserve to see the perpetrators prosecuted for their crimes as well as for future generations who deserve to live in a society free from the fear of a repetition of genocide, war crimes and crimes against humanity, to enjoy their basic human rights and fundamental freedoms, and to be free of the oppressiveness of authoritarian government.

Bibliography Maiga, Mahamadou, Les peuples malien et africains: 50 ans d’indépendance ou de dépendance?, 2012, L’Harmattan, available for purchase in PDF form at www.editions-harmattan.fr/index. asp?navig=catalogue&obj=livre&no=36583. Murunga, Godwin R and Wanjala Nasong’o Shadrack (eds), Kenya: The Struggle for Democracy, 2007, London: Zed Books. Throup, David W and Hornsby, Charles, Multi-party Politics in Kenya: The Kenyatta and Moi States and the Triumph of the System in the 1992 Election, 1998, Athens, OH: Ohio University Press.

8

Transitional justice in the DRC The 2014 Amnesty Law and the principle of complementarity – Quid Juris? Patricia Pinto Soares

Introduction In February 2014, the new DRC Amnesty Law came into force. In view of the long-lasting conflict in the country and the persisting impunity that has accompanied international crimes and gross violations of human rights, this chapter examines the abovementioned Amnesty Law vis-à-vis the principle of complementarity and scrutinizes the extent to which the Law complies with the obligations determined by the Rome Statute. To this effect, this chapter begins by providing an analysis of Article 17 of the Rome Statute, with a focus on the accommodation of amnesties therein. It proceeds by expounding on the main features of the DRC Amnesty Law, followed by its contextualization within the framework of its legal predecessors and the lessons learned from this. The chapter concludes by submitting the author’s view on the potential of the 2014 Amnesty Law to contribute to peace and justice in DRC. In the concluding remarks, a few proposals regarding the Amnesty Law’s implementation are made, with a view to striving for compliance with the Rome Statute and reflect the interests of the DRC population.

The principle of complementarity The principle of complementarity is mirrored in preambular paragraph 10 and Article 1 of the Rome Statute. The terms for the operation of complementarity in concreto are enshrined in Article 17, which establishes the parameters for the inadmissibility of cases before the court. In accordance with this provision, when one of the crimes listed in Article 5 of the Statute is committed, the ICC is empowered to admit cases if: (i)

the competent States are inactive, unwilling or unable to genuinely investigate and prosecute; (ii) the initiation of proceedings would not contravene the ne bis in idem principle; or (iii) the gravity threshold that justifies the involvement of the ICC is met.

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The third condition lies very much within the discretion of the court and is not covered in the scope of this chapter. According to the principle of complementarity, the ICC is to step back whenever domestic systems are capable and willing to carry out proceedings. The concepts of ‘unwillingness’ and ‘inability’ aim at guaranteeing that the system will work efficiently, avoiding attempts to deceive or prevent the administration of justice. A situation in which a State’s judicial apparatus is destroyed because of conflict will generally be covered by the scope of ‘inability’ and the ICC should not face particular opposition with regard to exercising its jurisdiction. But what about, for example, a State whose judicial system is only partially disrupted and therefore capable of carrying out some investigations but reasonable doubts still persist with respect to their successful conclusion?1 The challenge during the negotiation of the Statute was to reconcile States’ sovereignty with regard to their primary right to investigate and prosecute with the full application of the principle of complementarity, which would permit the ICC to step in when States cannot or do not intend to complete the process. Therefore, the intention was for the ICC to be the judge of its own competence, which made it necessary to set forth the criteria upon which to infer States’ unwillingness and inability as objectively as possible. The negotiators of the Rome Statute agreed on the term ‘genuinely’ as the key to the interpretation of the criteria that would make complementarity a workable device. The adverb ‘genuinely’ is thus, in the framework of Article 17, the interpretative tool that permits both complementarity criteria (unwillingness and inability) to enforce the very principle of complementarity itself. That is, cases will be declared admissible only when domestic systems did not or are not genuinely investigating and prosecuting crimes over which the ICC has jurisdiction. As far as it is pertinent to the present analysis, Article 17 reads as follows: 1.

Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

1 John T. Holmes exemplifies with the following situation: ‘a State, completely engulfed in an armed conflict, may have police and prosecution personnel capable of investigating specific conduct and perhaps even laying charges in a case. However, the courts and judiciary may be totally destroyed, making prosecution impossible’. John T. Holmes, ‘Complementarity: National Courts versus the ICC’ in Antonio Cassese, Paola Gaeta, and John R.W.D. Jones, The Rome Statute of the International Criminal Court: A Commentary, vol 1 (2002), Oxford and New York: Oxford University Press, 670, 673.

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Patricia Pinto Soares (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; ... 2.

In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5; ...

3.

In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.

Article 17 outlines a two-step test whereby the court may declare a case to be admissible and open proceedings if: (i) competent States are inactive;2 or (ii) domestic proceedings have been, or are being, undertaken but the State is unwilling or unable genuinely to investigate and prosecute. When the first condition is satisfied, the ‘unwilling or unable’ test becomes irrelevant and does not play a role in the assessment of admissibility.3 Inactivity amounts to the total absence of proceedings or of any act that might lead to that effect regardless of whether the State is generally able and willing.4

2 ‘Inactivity’ as the rationale to support the opening of proceedings by the ICC results from the heading of paragraph 1: ‘the Court shall determine that a case is inadmissible’. The rule is that the court might step in. The provision determines the terms upon which a case shall be deemed inadmissible rather than the opposite. 3 Darryl Robinson, ‘The Mysterious Mysteriousness of Complementarity’ (2010) 21(1) Criminal Law Forum 67. Robinson explains in detail the two-step insight of Article 17 whereby inactivity undoubtedly dictates the admissibility of cases before the ICC (if gravity requirements are fulfilled). For the opposing view, considering that the OTP and Chambers’ decision according to which the inexistence of domestic proceedings falls within the scope of cases’ admissibility is a manifestation of judicial activism, see William Schabas, ‘Prosecutorial Discretion v. Judicial Activism’ (2008) 6(4) Journal of International Criminal Justice 731. 4 In the Katanga case, the Trial Chamber considered the case admissible because inter alia, the challenge had not been timely filed. Yet, it explained that even if this had not been the case, the ruling of admissibility would have still prevailed on the basis of a second form of unwillingness, not expressly stated in the Statute, where a State ‘chooses not to investigate or prosecute a person before its own courts, but has nevertheless every intention of seeing that justice is done’. Prosecutor v

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Regarding ‘unwillingness’ – to the extent that it is relevant for this analysis – Article 17(2) establishes that the intent to shield a person from criminal accountability is one of the factors allowing the admissibility of a case. It is therefore one of the fundamental aspects to genuineness as far as ‘willingness’ is concerned. ‘Inability’ addresses situations where the official structures of the State have collapsed. A State may indeed be willing to investigate and prosecute despite being practically unable. The destruction of the judicial system and the inexistence of courts, prosecutors or qualified legal personnel will lead, in principle, to the admissibility of a case on grounds of inability of the competent State. This notwithstanding, the need was felt to endow the ICC with more objective criteria in order to made the definition of ‘inability’ as precise as possible. In accordance with Article 17(3), inability may result from either a substantial or total collapse of national institutions. In the latter case, the State’s incapacity to investigate and prosecute is obvious. In the former, some doubts may arise. When asserting the incapacity of a specific judicial system, the ICC must ensure that at least one of the following factors exists: (i) the State is unable to obtain the accused; (ii) the State is unable to collect necessary evidence/testimony; or (iii) the State is unable to otherwise carry out the proceedings.5 Against this background, it would be pleonastic to consider that ‘unavailability’ amounts, just as ‘total or substantial collapse’ does, to physical or material factors, such as a lack of judges or judicial infrastructures. Rather, unavailability is a form of inability that refers to legal or procedural obstacles preventing the State from genuinely administering justice.6 Procedural unavailability includes, for instance, immunities determined by national law. Legal unavailability refers first to the lack

Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07-949, Motion Challenging the Admissibility of the Case by the Defense of Germain Katanga pursuant to Article 19(2)(a) of the Statute, Trial Chamber II, 11 March 2009, paras 4–6, 9, 14. Accordingly, the Chamber directly resorted to the second stage of the two-step admissibility test, applying the dichotomy of ‘unwilling or unable’ in the absence of proceedings. The Appeals Chamber endorsed the decision of the Trial Chamber on different grounds. It ruled that inactivity was the reason that the case against Mr. Katanga was declared admissible. Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07-1497 OA8, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on Admissibility of the Case, Appeals Chamber, 25 September 2009. 5 Because, for example, there are no qualified law professionals. 6 Markus Benzing, ‘The Complementarity Regime of the International Criminal Court: International Criminal Justice between State Sovereignty and the Fight against Impunity’ (2003) 7 Max Planck United Nations Yearbook 591, 614–616; Kevin J. Heller, ‘The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process’ (2006) 17 Criminal Law Forum 255, 255–266. By contrast, if a State prosecutes murder as an ordinary crime rather than as a war crime but the punishment reflects the gravity of the conduct, it seems that the admissibility test would be satisfied.

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of legal provisions applicable to the case in question that makes courts unable to ‘carry out their proceedings’ genuinely.7 Transitional justice, amnesties and alternative forms of justice ‘Transitional justice’ is a chapeau concept that refers to a range of approaches, mechanisms and comprehensive strategies that are used in post-conflict societies, in order to address gross human rights violations. Amnesties, pardons and alternative forms of justice – such as TRCs – are non-judicial avenues that fall under the transitional justice umbrella as much as judicial solutions. As a question of principle, the ICC does not stand against alternative forms of justice. This notwithstanding, the aim of the court is to ensure prosecution and punishment for perpetrators of the most serious crimes of international concern. Further, preambular Paragraph 6 of the Rome Statute reminds every State of its ‘duty to exercise its criminal jurisdiction’ over individuals who have committed massive crimes. The question arising is thus whether it is possible, and if so, how, to reconcile specific mechanisms of transitional justice that do not trigger criminal accountability, with the framework set forth in the Rome Statute and the fight against impunity. The Statute is silent in this respect, but there are elements that allow one to delineate a coherent policy. Article 17(1)(a) determines that the court may not step in if the case ‘is being investigated’ by a State, but it does not require that such an investigation be one of a criminal nature.8 However, this provision may not be read separately from the other paragraphs of Article 17,9 section (1)(b) of which conditions a decision of inadmissibility to proceedings whereby the State investigated but ‘decided not to prosecute’. This seems to imply that prosecution needs to be at least an available avenue at the end of a non-criminal investigation. This reading is consistent with Article 17(2)(b) of the Rome Statute, which provides that national proceedings may not be ‘inconsistent with an intent to bring the person concerned to justice’. By adopting models of transitional justice whereby alternative forms of justice may lead to criminal prosecutions (e.g. when at the end of its investigation a TRC has the power to recommend that a case be investigated and prosecuted), the tension between paragraphs 1 and 2 of Article 17 is

7 For a detailed analysis of the concept of ‘unavailability’, see William Schabas, An Introduction to the International Criminal Court, 2nd edn, 2004, Cambridge: Cambridge University Press, p 88. 8 The term ‘investigation’ seems however to exclude proceedings that do not cover an individualized scrutiny of the circumstances of specific crimes as it happens in the case of fact-finding oriented truth commissions. 9 Carsten Stahn, ‘Complementarity, Amnesties and Alternative Forms of Justice: Some Interpretative Guidelines for the International Criminal Court’ (2005) 3(3) Journal of International Criminal Justice 695, 711.

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resolved and the State solves external doubts concerning its willingness to administer justice genuinely.10 In assessing actual amnesties, the court should also consider the author of the crime. Article 17(1) of the Rome Statute refers to paragraph 1 of the Preamble, which states that the ICC should exercise jurisdiction over those ‘most responsible’.11 Importantly, there is a strong trend in international law contending that the duty of States to prosecute is binding only with respect to those most responsible for international crimes.12 Finally, the decision on whether alternative forms of justice prevent the ICC from stepping in shall consider the rationale of the principle of complementarity: an assessment must be made as to whether the abovementioned mechanisms were adopted in order to administer justice effectively in relation to actual cases13 (Articles 17(2)(b) and (c)) or to shield the person in question from justice (Article 17 (2)(a)) or amount to impunity in practice.14 As the Statute does not address amnesty and alternative forms of justice directly, it seems that whether or not action by the ICC can be prevented will depend on

10 This issue is related to whether sanctions that do not amount to criminal punishment can be taken into account by the court in order to consider the State able to undertake genuine proceedings. The East-Timor TRC would likely pass this test as it was limited to acts that did not amount to a serious criminal offence, see United Nations Transitional Administration in East Timor, UNTAET Regulation No 10/2001, 13 July 2001, Section 27.7, UNTAET/REG/2001/10 (‘UNTAET Regulation’). It is doubtful, however, that a general amnesty granted to perpetrators of core crimes without the possibility of criminal sanction would meet the requirements of Article 17. 11 See ICC Statute, Article 53(1)(c) which elects the gravity of the crime into guiding element when assessing admissibility conditions. 12 See Diane F. Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’ (1991) 100 Yale Law Journal 2537, 2599, sustaining that States may discharge their international obligations by prosecuting ‘those who were most responsible for designing and implementing a system of human rights atrocities or for especially notorious crimes that were emblematic of past violations. . . provided the criteria used to select potential defendants did not appear to condone or tolerate past abuses’. See also UN S.C. Res. 1329, U.N. Doc. S/RES/1329 (2000), wherein the Security Council acknowledged ‘the position expressed by the International Tribunals that civilian, military and paramilitary leaders should be tried before them in preference to minor actors’. The Statute of the SCSL conversely limits the jurisdiction of the court to ‘persons who bear the greatest responsibility for serious violations’ [Article 1 (1)]. 13 This was the framework of the truth commissions established in both Timor and South Africa. In South Africa, only 10% of the 7,000 people who applied for amnesty were exempted from criminal accountability. The Commission denied amnesty on different grounds, e.g. where there had been no full disclosure of information and no qualification of the acts as political crimes. See Truth Commission of South Africa Report, vol 2 (1998) 309. Conversely, see UNTAET Regulation (n 10), Section 27.6, obliging the East-Timor Community Reconciliation Panels to refer important evidence in respect of serious crimes to the Office of the Prosecutor. 14 States may be tempted to opt for quasi-amnesties where punishment after investigations is reduced to a minimum or even suspended in order to avoid imprisonment in practice. These mechanisms are contrary to the Rome Statute as they shield the guilty from justice. This solution was followed by President Uribe in Colombia and implemented through the Justice and Peace Law. See Margaret Popkin, ‘Latin America: The Court and the Culture of Impunity’ (2003) Crimes of War Project (https://crimesofwar.org/icc.magazine/icc-popkin.html).

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the exact structure of the truth and reconciliation commission. Importantly, the Chambers are competent, in light of the inherent powers of the Court and the need to establish its jurisdiction ex officio, to determine whether an amnesty or alternative forms of accountability satisfy the conditions of admissibility. Initially, amnesties are incompatible with the Statute inasmuch as they amount to de facto immunity (in violation of Article 27). Conversely, they are also contrary to the duty of States Party to the Rome Statute to exercise their criminal jurisdiction.15 Furthermore, whenever States are bound by treaty or customary obligations to prosecute (as happens with respect to core crimes), awarding amnesty is an objective indication of their unwillingness to bring perpetrators to justice, in particular when they are self-granted by the State directly implicated in the crimes committed. Therefore, the ICC should adopt a rigid approach with respect to amnesties granted by the territorial or national State that, having ratified the Statute, has freely agreed to stricter standards concerning the treatment reserved for international crimes. In addition, Article 21(1) and (3)16 determines that the ICC shall apply the Statute consistently with principles of international law. It can be contended that international law has evolved so as to consider amnesties prohibited for genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law.17 In line with this view, the court should reject amnesties as the basis for a ruling of inadmissibility unless such amnesties are accompanied by alternative forms of justice capable of leading to criminal accountability.

The 2014 Amnesty Law In January 2014, the Senate of the DRC adopted a new amnesty law (‘the Law’ or ‘Amnesty Law’), which is to apply to insurrectional acts, acts of war and political offences.18 The Law was promulgated by President Joseph Kabila and entered into force on 11 February 2014. According to the Law’s terms, authors,

15 ICC Statute, Preamble, para 6. 16 In particular, the duty of the court to interpret and enforce the Statute in accordance ‘with internationally recognized human rights’ shall be interpreted in light of the jurisprudence of the InterAmerican Court of Human Rights and the ECtHR as excluding blanket immunities. 17 See for example, Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, U.N. Doc. S/2000/915 (4 October 2000), para 23. In paragraph 22, the Secretary General clarified that ‘amnesty is considered a to be an accepted legal concept and a gesture of peace and reconciliation at the end of a civil war or an internal armed conflict but cannot be granted in respect of international crimes, such as genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law’. In 2004, the UN SecretaryGeneral elaborated even further on the matter and recommended a general non-recognition policy by the United Nations. See The Rule of Law and Transitional Justice in Conflict and PostConflict Societies, U.N. Doc. S/2004/616 (3 August 2004), para 64. 18 Document Législatif No 289/1 – Projet de Loi Portant Amnistie pour Faits Insurrectionnels, Faits de Guerre et Infractions Politiques, Sénat – Session Extraordinaire du 22 janvier 2014 (Commission politique, administrative et juridique) (‘Document Législatif’).

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co-authors and accomplices of any of the aforementioned infractions perpetrated in the DRC between 20 December 2005 and 20 December 2013 may be awarded amnesty.19 The Law specifically excludes from its scope of application the following: genocide, crimes against humanity, war crimes, torture, cruel, inhuman and degrading treatment, rape and other forms of sexual violence, conscription and enlistment of children, and ‘toutes autres violations graves, massives et caractérisées de droits humains’.20 Additionally, the Law stipulates that, with respect to offences covered by the amnesty, all ongoing investigations and prosecutions must immediately cease and convictions shall be reversed as never having occurred.21 The Law further determines that all those aiming to benefit from the Law shall take on a formal engagement, in writing, committing to abstain from reoccurring in the same offences, with failure to abide by such a pledge amounting to losing the protection afforded by the Law.22 It stipulates that the rights of victims to civil compensation and restitution are not jeopardized by the Law.23 The 2014 Amnesty Law vis-à-vis its predecessors With the aim of achieving peace and stability, the DRC had previously passed (before the 2014 Amnesty Law) similar prior legal measures exempting perpetrators from prosecution for specific acts committed in the framework of the longlasting Congo War. In 2003, a presidential decree granted amnesty, by temporary executive order following the 2002 Global and All-Inclusive Agreement.24 The 2003 Presidential Decree applied to acts of war, political breaches of the law and crimes of opinion occurring between 2 August 1998 and 4 April 2003. However, it excluded genocide, war crimes and crimes against humanity from its scope of application. In 2005, a law passed by the DRC transitional parliament abrogated the 2003 presidential decree, granting amnesty over the offences enshrined in the latter but extending the relevant time frame so as to include breaches committed from 20 August 2006 to 20 June 2005.25 It also allowed, with retroactive effect, for the pardon and commutation of convictions for the acts falling under the new amnesty law. On 7 May 2009, President Kabila promulgated another amnesty law, which was the most recent predecessor of the 2014 Amnesty Law and significantly similar in nature. However, unlike the 2014 Amnesty Law, the 2009 amnesty law embraced a strict jurisdictional ratione loci,26

19 20 21 22 23 24

Document Législatif, Articles 1 and 2. Document Législatif, Article 4. Document Législatif, para. 6 (Exposé des Motifs). Document Législatif, Article 5. Document Législatif, Article 6. Présidence de la République, Décret-loi No. 03-001 du 15 avril portant amnistie pour faits de guerre, infractions politiques et d’opinion. 25 Loi No 05/023 du 2005 portant amnistie pour faits de guerre, infractions politiques et d’opinion. 26 Loi No 09/003 du 7 mai 2009 portant amnistie pour faits de guerre et insurrectionnels commis dans les provinces du Nord Kivu et du Sud-Kivu.

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applying only to nationals living in the DRC or abroad as well as acts of war and insurrection perpetrated in the regions of North and South Kivu from June 2003 to the date of promulgation. Noting that, notwithstanding its limited temporal and geographical scope of application – which specifically excluded genocide, war crimes and crimes against humanity from its realm of application and did not prevent compensation to victims – the ICTJ criticized the 2009 amnesty law, since ‘[i]n practice . . . it perpetuates Congo’s pattern of rewarding violence and creates a blanket amnesty for scores of crimes perpetrated by rebel groups, the FARDC, militias and police alike’.27 The ICTJ went on to point out that rape and sexual violence victims – epidemic in the DRC – needed further protection since not all offences of this type qualify as crimes under international law. In this regard, some improvements are to be noted. For instance, the 2014 Amnesty Law expressly excludes rape and other forms of sexual violence from its application. The same happens with other categories of crimes such as torture and the conscription and enlistment of children. Another welcomed improvement in the 2014 Amnesty Law is that – as opposed to its 2009 predecessor – it provides a more specific definition of acts of war (i.e. actions taken in the course of war in compliance with the rules of international humanitarian law).28 However, this novelty does not solve all problems. One may not neglect the extremely complex structural context of the DRC, where both the armed forces (FARDC) and the police (PNC) are often accused of serious violations of human rights and international criminal law.29 Armed groups such the FDLR and the several factions of the Maï Maï continue, year after year, to escape the reach of security forces and dominate parts of the Congolese territory, often acting with the support – and even complicity – of fringes of the population (deeply divided due to intercommunity conflicts and different ethnic and tribal origins), which see these militias as protectors of their interests and beliefs. The same is valid with respect to several movements of local defence spread throughout the DRC, which developed as a response of the local youth to the inability and or unwillingness of the national forces to ensure the security of civilians. Reality demonstrates that

27 International Center for Transitional Justice (ICTJ), ‘Focus: 2009 DRC Amnesty Law – Amnesty Must Not Equal Impunity’ (2009) 1 (http://ictj.org/sites/default/files/ICTJ-DRC-AmnestyFacts-2009-English.pdf, accessed 26 April 2014). 28 Document Législatif (n 18), Article 3. 29 See e.g. United Nations Organization Stabilization Mission in the Democratic Republic of the Congo, ‘Report of the United Nations Joint Human Rights Office on Human Rights Violations perpetrated by Soldiers of the Congolese Armed Forces and the Combatants of the M23 in Goma and Sake, North Kivu Province, and in and around Minova, South Kivu Province, from 15 November to 2 December 2012’ (May 2013) 9–11 (http://reliefweb.int/sites/reliefweb.int/files/ resources/UNJHRO%20-%20HRVs%20Goma%20and%20Minova%20-%20May%202013. pdf, accessed 27 April 2014); Report of the United Nations High Commissioner for Human Rights on the situation of human rights and the activities of her Office in the Democratic Republic of the Congo, U.N. GAOR, Human Rights Council, 24th Sess., U.N. Doc. A/HRC/24/33 (2013) 6–9 (http://responsibilitytoprotect.org/OHCHR%20July%202013.pdf, accessed 27 April 2014).

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these movements are often responsible for serious human rights violations.30 Against this background, it seems that it would not be far-fetched to conceive that perpetrators of, for instance, arbitrary killings of civilians, would argue that their actions were to be covered by the Law, since the victims were actively taking part in hostilities or hiding the enemy. The latter scenario would not be unfeasible. One should not forget the highly insecure situation in some areas in Eastern Congo, which may lead civilians to hold weapons for self-protection, which could then be used as an excuse by the perpetrator. Likewise, arbitrary arrests on the grounds that the victim is hiding the enemy are not uncommon in the DRC. One could, of course, counter-argue that it would be for criminal investigations and procedures to clarify these situations. However, countries like the DRC, immersed in conflict for long periods, find their infrastructures extremely debilitated. Complex proceedings – such as those relating to international crimes and serious violations of human rights – require adequate training of the judicial and investigative staff, a robust system of victim and witness protection, professional methods of evidence collection, and a reliable and independent judiciary. Yet the DRC has a highly feeble police and military forces that are untrained and unequipped. The same remains true for military justice. The lack of means to carry out proper investigations is an additional factor that may not be neglected. Furthermore, there are several studies on the alleged corruption of police and military elements (including judges and prosecutors). There have been cases where the DRC judicial system, with the assistance of UN human rights experts, has striven to combat impunity. Yet such efforts have often been defeated by political interference, corruption and prison breaks.31 The 2014 Amnesty Law vis-à-vis the principle of complementarity Senior UN officials welcomed the parliamentary approval of the 2014 Amnesty Law as ‘the next step in bringing sustainable peace’.32 The author is of the view that stability and justice should go hand in hand, as intertwined and crucial elements in

30 Human Rights Watch, ‘Sexual violence by Local Defense Forces in North Kivu’ (2005) (www.hrw. org/reports/2005/drc0305/4.htm, accessed 27 April 2014). 31 The UN Special Rapporteur on the independence of judges and lawyers, Leandro Despouy, stated that interference by the executive and the army in judicial proceedings was ‘very common’ and that the DRC’s judicial system was rarely effective, with perpetrators of gross human rights violations generally going unpunished. UN Commission on Human Rights, ‘Report of the Special Rapporteur on the independence of judges and lawyers: Preliminary note on the mission to the Democratic Republic of Congo’, Leandro Despouy, U.N. Doc. A/HRC/4/25/Add.3 (24 May 2007) 3 (www.universalhumanrightsindex.org/documents/842/1134/document/en/pdf/text. pdf, accessed 27 April 2014). 32 ‘New DR Congo amnesty law welcomed by UN envoys’ (UN News, 5 February 2014) (www. un.org/apps/news/story.asp/story.asp?NewsID=47081&Cr=Congo&Cr1, accessed 26 April 2014).

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an efficient framework of transitional justice.33 It is hardly feasible that stability gained at the cost of justice – particularly with respect to gross human rights violations – may be long lasting. To the contrary, this is likely to create the ingrained feeling that brutal acts, as long and they maintain alive fear and terror, may always go unpunished. It is also probable that animosities and weakness will develop within the community, preventing empowerment and, consequently, social and economic development, which are – as in a vicious circle – engines for civil and social unrest, often culminating in armed conflict. Some might argue that the question is not one of refusing to carry out justice, but rather prioritizing peace, leaving justice for later. However, the latter approach usually amounts to no justice at all, either because there is no willingness to carry it out or because it is simply no longer feasible. Indeed, as time passes, memory fades away, witnesses move on or die, and evidence is lost. In line with this view, the question that needs to be addressed is whether the 2014 Amnesty Law goes hand in hand with justice. How is this question to be answered? It is contended that while the Law presents a programmatic framework that could permit prosecution of those most responsible for international crimes and grave violations of human rights, its terms are excessively generic. It incorporates a workable pro-justice framework as it expressly excludes perpetrators of international crimes from being beneficiaries. It goes beyond the Rome Statute in the sense that it makes no distinction concerning whether the perpetrators at stake are ‘those most responsible’. Accordingly, compliance with Article 17(1) is satisfied at the same time that it creates leeway for a meaningful contribution to closing the impunity gap given that the ICC may only deal with a handful of cases. Its terms are also consistent with the combined reading of Articles 17(1)(a)–17(1)(b) and 17(2)(b) as proposed above. Indeed, the Law does not even conceive of amnesty for genocide, war crimes and crimes against humanity. Thus, prosecution is not an available avenue but the only alternative if enough evidence is gathered. Yet it is submitted that both the recent implementing measures of the Law and the previous record of the DRC pose legitimate doubts concerning the extent to which it will not overlook justice demands. On 22 April 2014, the first list of beneficiaries of the 2014 Amnesty Law was released by the media – there were 51 individuals overall.34 According to reports, the list included

33 As noted by former UN Secretary-General Kofi Annan, ‘[j]ustice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives’, UN Sec. Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General, S/2004/616 (23 August 2004). In this sense, UN Secretary-General Ban Ki-moon stated: ‘the debate is no longer between justice and peace, but between peace and what kind of justice’, see ‘Honouring Geneva Conventions, Secretary-General says debate no longer between peace and justice but between peace and what kind of justice’ (UN News, 26 September 2009) (www.un.org/News/Press/docs/2009/sgsm12494.doc.htm, accessed 27 April 2014). 34 ‘DRC releases list of M23 amnesty beneficiaries’ (New Vision, 22 April 2014) (www.newvision.co.ug/ news/654768-drc-releases-list-of-m23-amnesty-beneficiaries.html, accessed 26 April 2014). On 25 April 2014, the list amounted to 271 beneficiaries, see ‘RDC: listes officielles de 271 bénéficiaires de la loi d’amnistie’ (Radio Okapi, 24 April 2014) (www.afriqueredaction.com/article-rdc-listesofficielles-de-271-beneficiaires-de-la-loi-d-amnistie-123433449.html, accessed on 26 April 2014).

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at least 15 members of the M23 movement.35 The question arises: on what basis was this selection made? What criteria were used? Was a committee established to assess whether any of the behaviour of such individuals amounted to a crime clearly excluded from the Amnesty Law’s scope of application? How can such a finding be established without a thorough assessment on a case-by-case basis, mostly in a country with such a debilitated investigative, prosecuting and judicial system? The Minister of Justice announced the establishment of a commission – purely political in nature – to assess applications submitted by individuals seeking to benefit from the Amnesty Law.36 Such a system seems hardly compliant with the terms of Article 17 of the Rome Statute. It is difficult to conceive that roughly 300 cases may be thoroughly examined in approximately two months. There is no stipulated mechanism of referral of cases to the judiciary if they are declared inadmissible under the Law. There is no transparency regarding the procedural and substantive analysis of applications. There are no checks and balances. The reason why such a commission of analysis was framed as a purely political one is also a mystery. The Law makes no reference or attribution to the Ministry of Justice in this sense. It should be noted that the 2002 Sun City Agreement – aimed at establishing a transitional government for the DRC – included provisions aimed at establishing a TRC. The Agreement also decided that a request would be made to the UN Security Council by the transitional government with respect to establishing an international criminal court for the DRC endowed with the necessary competence to take cognizance of crimes of genocide, crimes against humanity, war crimes, and mass violations of human rights committed or presumed committed since 30 June 1960, as well as those committed or presumed committed during the two wars of 1996 and 1998.37 Neither a TRC nor special chambers for such international criminal prosecutions have been established. Furthermore, if one takes as a framework of reference the predecessors of the 2014 Amnesty Law, which also excluded from their scopes of application war crimes and crimes against humanity but covered acts of war, the prospects for the Law’s implementation are not particularly promising. Indeed, little progress has been achieved in prosecuting international crimes. By the same token, the government has attempted to guarantee adherence to the transitional process by granting positions of responsibility – including within the security forces – to suspects of war

35 ‘RDC: listes officielles de 271 bénéficiaires de la loi d’amnistie’. 36 Agenzia Fides, ‘Vers la création d’une Commission Vérité, Justice et Réconciliation pour décider des bénéficiaires de l’amnistie?’ (5 February 2014) (www.fides.org/fr/news/37081-AFRIQUE_ RD_CONGO_Vers_la_creation_d_une_Commission_Verite_Justice_et_Reconciliation_pour_ decider_des_beneficiaires_de_l_amnistie#.U2Z0P6y5-0k). 37 UNGA, Annual Report of the United Nations High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the Secretary-General, Office of the United Nations High Commissioner for Human Rights (Analytical study on human rights and transitional justice: Addendum—Inventory of human rights and transitional justice aspects of recent peace agreements), U.N. Doc. A/HRC/12/18/Add.1 (21 August 2009) (www.unrol.org/files/96199_AHRC-12-18-Add1.pdf, accessed 27 April 2014).

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crimes and serious human rights abuses.38 The most blatant example of this policy is illustrated by the decision of dismissing justice in 2009 in the case of Bosco Ntaganda, an ICC suspect, and integrating him in the high ranks of the FARDC.39 The culture of impunity with regards to perpetrators of serious crimes and their integration into the armed forces has enabled them to reproduce their criminal patterns, by murdering, torturing and raping civilians.40 This approach gives rebels the perception that actively participating in armed conflict and adopting the cruellest and more violent methods will gain them bargaining power with the government. A former rebel incorporated into FARDC stated, as reported by Human Rights Watch, ‘[m]aybe if we had killed more people, I would have become a general’.41 Even when suspects are not integrated into the security forces but rather reintegrated into society, problems still remain. Competition for control over natural resources, land rights and ethnic tensions are other motors of conflict in the DRC. The settlement of warlords into society, subject to no kind of accountability, only perpetuates their belief of being untouchable by the law, failing to have any deterrent effect, and somehow empowering them to destabilize further any

38 Human Rights Watch, World Report 2005 (2005) 115 et seq. (www.hrw.org/legacy/wr2k5/ wr2005.pdf, accessed 27 April 2014). 39 Bosco Ntaganda, former CNDP chief of staff, allegedly responsible for international crimes, currently in custody of the ICC after having surrendered in 2013. Yet, in 2009, Bosco Ntaganda incorporated the high ranks of the FARDC, just to later rebel, desert, and lead the M23, one of the deadliest armed groups the DRC has faced. In August 2006, the ICC had issued an arrest warrant against Bosco Ntaganda, which the DRC government blatantly decided to disregard. In attempting to justify this violation of the Rome Statute, President Joseph Kabila maintained that the ‘demands of peace override the traditional needs of justice’. See ‘ “Peace before justice”, Congo minister tells ICC’ (Agence-France Presse, 12 February 2009). Prior to the unsealing of his arrest warrant, Bosco Ntaganda had already been implicated in brutal human rights abuses, including leading military operations in which hundreds of civilians were reportedly slaughtered on an ethnic basis, see Human Rights Watch, ‘Covered in Blood’ (July 2003) 23–27 (www.hrw.org/sites/ default/files/reports/DRC0703.pdf, accessed 27 April 2014). He was nonetheless one of the five Ituri leaders who, in December 2004, was granted the rank of general and integrated into the Congolese army, though he did not take up the post (until 2009). Human Rights Watch reported widespread and systematic human rights violations perpetrated by DRC forces under the command of Bosco Ntaganda, in 2009, in the framework of the Operation Kimia II (joint UN-FARDC operation) against the FDLR, including the killing and rape of hundreds of civilians. See Human Rights Watch, ‘Seductions of “Sequencing” – The Risks of Putting Justice Aside for Peace’ (December 2010) 15 and accompanying references (‘The Risks of Putting Justice Aside for Peace’) (www.hrw.org/sites/default/files/related_material/Sequencing%20Paper%2012.7.10. pdf, accessed 27 April 2014). 40 Anita Powell, ‘Congo ex-rebels accused of rape and killing’ (Associated Press, 18 May 2009), referring to reports of UN commanders in the DRC in the terms of which former rebels integrated into the FARDC continued to commit human rights violations as part of the Congolese army. See Risks of Putting Justice Aside for Peace (n 39) 11. See also Human Rights Watch, ‘DR Congo: Hold Army to Account for War Crimes’ (Press Release, 19 May 2009) (www.hrw.org/en/news/2009/05/19/ dr-congo-hold-army-account-war-crimes, accessed 27 April 2014); Human Rights Watch, ‘You Will Be Punished: Attacks on Civilians in Eastern Congo’ (December 2009) (www.hrw.org/en/ reports/2009/12/14/you-will-bepunished, accessed 27 April 2014). 41 Risks of Putting Justice Aside for Peace (n 39) 14.

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democratic and development efforts.42 It should be recalled that the DRC is currently undergoing a new DDRRR (Disarmament, Demobilization, Repatriation, Reintegration and Resettlement) process, making it possible for members of armed groups to integrate the FARDC without further legal action being taken against them. The integration of warlords such as Maï Maï self-proclaimed General Yakutumba into the FARDC (an individual and an armed group responsible for serious violations of human rights likely to amount to crimes against humanity or war crimes) is a highly puzzling conundrum. Mr Yakutumba would perhaps not qualify to benefit from the 2014 Amnesty Law, but can he nonetheless be awarded a high rank among the FARDC or simply return to civilian life with no accountability whatsoever? This seems to be the case. The very serious crimes for which Mr Yakutumba is allegedly responsible would not prima facie obstruct such a course of events, as the abovementioned case of Bosco Ntaganda illustrates. By the same token, it seems that if it has not yet happened, it is due to the fact that Mr Yakutumba himself has repeatedly refused to regroup and disarm. While the text of the Law appears to be highly demanding, the routine practice of the country casts reasonable doubt as to its intent and effet-utile. The Law is as undiscriminating in its text as the DRC is selective in its practice of dealing with suspects of international crimes.43 By giving a uniform and a State weapon to individuals such as Mr Yakutumba, the DRC is tacitly legitimizing his conduct. Thus, the 2014 Amnesty Law runs the risk of failing to prevent the DRC from being considered unwilling and or unable to investigate and prosecute under Article 17 of the Rome Statute. One may not forget that this provision does not operate in a vacuum. Its implementation is based on the existing domestic law as much as on the practice of the country. The debilitated infrastructure of DRC may lead, for instance, to an ICC ruling of admissibility of a case on the basis of inability of the country to carry out genuine prosecutions given that the capabilities of the judicial apparatus do not meet the necessary standards. The same may happen on the grounds of the unpreparedness of judges, prosecutors and criminal police. It could also lead to a ruling of lack of genuine willingness to investigate

42 Risks of Putting Justice Aside for Peace (n 39) 12–14, for further details on the integrations of warlords from Ituri and Katanga into the highest ranks of the FARDC and its devastating consequences. See also Human Rights Watch, ‘DR Congo: Mai Mai Warlord Must Face Justice’ (Press Release, 18 May 2006) (www.hrw.org/news/2006/05/18/dr-congo-mai-mai-warlordmust-face-justice, accessed 27 April 2014). 43 From a different viewpoint, it is noteworthy that the 2014 Amnesty Law has been strongly criticized for failing to abide by its own terms in the sense that it imposes the immediate release of prisoners, halting of procedures and suspension of investigations related to offences within its scope of application, e.g. of a political nature. Yet, thousands of individuals qualifying under the Law are still in prison. It has been pointed out that the additional verifications imposed by the Minister of Justice in their regard – in the context of the implementation of the Law and review of individual applications – is abusive and contra legem; CERJI (Centre d’Echanges pour des Reformes Juridiques et Institutionnelles), ‘Amnistie; Les Arretes du Ministre de la Justice et Droits Humains sont illegaux et consacrent une grave et massive violation des droits de l’homme’ (Communiqué de Presse, Kinshasa, 21 avril 2014) (copy with author).

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and prosecute if the ICC were to conclude that while the Law does not cover the crimes listed in Article 5 of the Rome Statute, the implementing measures adopted defeat that purpose. This would be the case if, for example, the list of beneficiaries of the 2014 Amnesty Law were to include those suspects most responsible for genocide, crimes against humanity and war crimes. The obscurity surrounding the review of individual applications under the 2014 Amnesty Law, the general terms of the latter, the abovementioned Congolese governmental policy that peace is to supersede justice and its puzzling DDRRR criteria legitimize fears regarding the outcomes of the implementation of the 2014 Amnesty Law.

Conclusion: some proposals It is submitted that while the Law offers an operative framework that could lead it to be compliant with the terms of Article 17 of the Rome Statute, its generic content, coupled with the structural weaknesses of the Congolese security forces and its judicial system, increase the likelihood that impunity will persevere. This could eventually be corrected through additional legal mechanisms – for instance, a memorandum of the Minister of Justice with a view to make the scope of the Law more precise, so as to close existing lacunae that may prevent filling in of the persistent impunity gap in DRC. A transparent and adversarial procedure for the review of applications aimed at benefiting from the Law should be established, preferably with the participation of well-trained judges, lawyers and criminal investigators. Perhaps this is an appropriate time to use the momentum created by the Law to establish a TRC, thus integrating the Amnesty Law into a more convincing transitional justice structure that would also serve to restore confidence amidst the long suffering endured by the Congolese people. More than an issue with the 2014 Amnesty Law, the author considers the debilitated infrastructures of the DRC to be problematic as well as the policies previously adopted by the government when facing peace-justice dilemmas. Combined, these elements may make it impossible for the Law to pass the Article 17 test. Were that the case, since the ICC is the judge of its own competence and is not bound by domestic laws, the ICC Prosecutor would encounter no obstacles before the court. In practice, however, it could be – as history as shown – extremely difficult to apprehend the suspects and collect evidence without the co-operation of the Congolese authorities. Hence, once again, justice would not be served, or at least not in a timely manner. Amnesty laws are unlikely to produce any longlasting benefit to societies unless they are accompanied by additional transitional justice measures. In the case of the DRC, these are urgently needed. A vetting system concerning integration of former militia men into the security forces is of utmost importance. A comparable cleansing of the FARDC and PNC is equally imperative. The ingrained culture of impunity for gross violations of human rights must be countered. A serious accountability effort should comprise the establishment of the long-discussed special chambers for the prosecution of international crimes. As mentioned, a TRC could also significantly benefit the country, but it should not preclude prosecution of serious crimes and referrals to the judiciary.

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The government must enable its judiciary and police – by training, equipment and vetting – genuinely to carry out and develop their work. It must further rethink its simplistic conception of the tandem peace-justice, realizing that the two terms are intertwined and relate to each other in the context of a dialogue rather than a competition. In the words of Philip Alston: Permitting key members of the military who are alleged to have committed war crimes, crimes against humanity and other serious offences to serve in the armed forces sends an immensely powerful message to the rest of the military. The message is that impunity rules and that brutality and power prevail over law. The slogan that peace will come first and justice later fundamentally misunderstands the dynamic involved. Peace will not come, nor will justice, until the Government and the international community take seriously the notion that those accused of heinous crimes must be indicted immediately. Giving individuals like Bosco Ntaganda, Innocent Zimulinda, Sultani Makenga, Bernard Byamungu and Salumu Mulenda a get out of jail free card, even if ostensibly ‘just for a few years,’ only serves to mock human rights. No amount of sophisticated strategic rationalization should be permitted to obscure that fact.44

Bibliography Benzing, Markus, ‘The Complementarity Regime for the International Criminal Court: International Criminal Justice between State Sovereignty and the Fight against Impunity’ (2003) 7 Max Planck United Nations Yearbook 591. Heller, Kevin J, ‘The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process’ (2006) 17 Criminal Law Forum 255. Holmes, John T, ‘Complementarity: national courts versus the ICC’, in Cassese, Antonio, Gaeta, Paola and Jones, John RWD, The Rome Statute of the International Criminal Court: A Commentary, vol 1, 2002, Oxford and New York: Oxford University Press, p 667. Orentlicher, Diane F, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’ (1991) 100 Yale Law Journal 2537. Robinson, Darryl, ‘The Mysterious Mysteriousness of Complementarity’ (2010) 21(1) Criminal Law Forum 67. Schabas, William, An Introduction to the International Criminal Court, 2nd edn, 2004, Cambridge: Cambridge University Press. Schabas, William, ‘Prosecutorial Discretion v. Judicial Activism’ (2008) 6(4) Journal of International Criminal Justice 731. Stahn, Carsten, ‘Complementarity, Amnesties and Alternative Forms of Justice: Some Interpretative Guidelines for the International Criminal Court’ (2005) 3(3) Journal of International Criminal Justice 695.

44 Press statement by Philip Alston, UN Special Rapporteur on extrajudicial executions. Mission to the Democratic Republic of the Congo, (5–15 October 2009) 8, available at www2.ohchr.org/ english/issues/executions/docs/PressStatement_SumEx_DRC.pdf (accessed 27 April 2014).

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Part IV

Applicable law and judicial creativity

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9

The first Decision on Sentence of the International Criminal Court in the Lubanga case Great (Unmet) expectations Silvia D’Ascoli*

Introduction On 14 March 2012, Trial Chamber I (‘the Chamber’) of the International Criminal Court (or ‘Court’) convicted Thomas Lubanga Dyilo (‘Lubanga’), the former President and founding member of the UPC, of war crimes committed from early September 2002 to 13 August 2003 in the Ituri region of the DRC. Specifically, the Chamber found Lubanga guilty as a co-perpetrator of the crimes of conscripting and enlisting child soldiers (children under the age of 15 years) into the FPLC and using them to actively participate in hostilities in the DRC, pursuant to Articles 8(2)(e)(vii) and 25(3)(a) of the Rome Statute of the ICC (‘Statute’).1 These crimes were the result of a common plan by Lubanga and his co-perpetrators to build an army for the purposes of establishing military control over the Ituri region.2 In a separate Decision on Sentence rendered on 10 July 2012, the Chamber sentenced Lubanga to a total sentence of 14 years’ imprisonment.3 Being the very first sentence pronounced by a Trial Chamber of the ICC, the Lubanga Decision on Sentence represented the first opportunity to see how the ICC would interpret and apply its provisions on sentencing. This chapter provides a critical analysis of the Chamber’s findings in the Decision on Sentence and explores the jurisprudential significance of the Decision. In particular, it analyses the following issues: sentencing principles and purposes of punishment; standard of proof for applicable circumstances; relevant sentencing factors; and the process of determination of the sentence. The chapter does not deal with the Judgment or its findings, and refers to such findings only insofar as they are necessary to understand the sentence imposed.

* The views expressed herein are those of the author alone and do not necessarily reflect the views of the International Tribunal or the UN in general. 1 Prosecutor v Thomas Lubanga Dyilo (‘Lubanga’), ICC-01/04-01/06-2842, Judgment Pursuant to Article 74 of the Statute, Trial Chamber I, 14 March 2012 (‘Judgment’), para 1358. 2 Judgment, para 1351. 3 Lubanga, ICC-01/04-01/06-2901, Decision on Sentence pursuant to Article 76 of the Statute, Trial Chamber I, 10 July 2012 (‘Decision’), para 107.

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The chapter concludes that, although the Chamber made some contributions to the clarification of the ICC provisions on sentencing, the Decision is disappointing for a number of reasons. Specifically, the Decision did not: (i) explore the purposes of punishment; (ii) comprehensively address sentencing factors and circumstances, nor address their relative weight; (iii) explain systematically and comprehensively how the judges decided upon the gravity of the crimes and the sentence imposed; or (iv) give sufficient weight to the gravity of the crimes. In approximately 35 pages, which represents a very condensed decision compared to approximately 600 pages of the Trial Judgment, the Chamber analyses the legal framework for sentencing, the gravity of Lubanga’s crimes and other relevant sentencing factors, as well as aggravating and mitigating circumstances; however, very little effort is devoted to explaining why the factors considered result in a sentence of 14 years’ imprisonment. The Decision thus fails to meet the expectations placed on the very first pronouncement on sentencing by the ICC, and it seems to bolster one of the main criticisms that has so far haunted sentencing in international criminal justice: when it comes to the determination of the final sentence and the number of years of imprisonment, trial chambers often seem to ‘simply pull the number out of the air’.4 The chapter is divided into three sections. First there is a brief overview of the legal framework on sentencing at the ICC through the relevant provisions of the Statute and its RPE. The author then analyses the Decision by discussing the relevant sentencing factors considered by the Chamber. Finally the author criticizes the process through which the Chamber arrives at the determination of the sentence.

The legal framework for sentencing at the ICC The applicable penalties and the procedure for sentencing are set out in several Articles of the ICC Statute. The basic penalty to be imposed by the ICC pursuant to Article 77 of its Statute is imprisonment, up to and including life imprisonment. Rather than setting out specific sentencing ranges and distinguishing between each specific offence, or at least between categories of offences, Article 77 only provides for two ‘ranges’ of imprisonment, namely imprisonment for a specific number of years not exceeding 30, and life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.5

4 Gideon Boas et al (eds), International Criminal Procedure, vol 3 (Cambridge: Cambridge University Press, 2011) 420–421. 5 Article 77(1)(a) and (b). The ‘extreme gravity of the crime’ is for example evidenced by the existence of one or more aggravating circumstances, as indicated by Rule 145(3) of the RPE.

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Further, the Statute also allows the Court to impose a fine, but only ‘in addition to imprisonment’ and not as an alternative to it.6 The vagueness of the penalty regime established by the Statute and the ample discretion left to judges to decide upon the ranges of ‘appropriate sentences’ have already been discussed and criticized elsewhere.7 Pursuant to Article 76 of the Statute, in the event of a conviction, the Trial Chamber is to establish the ‘appropriate sentence’ to be imposed in a separate phase, by taking into account the evidence presented and submissions relevant to sentencing made during the trial.8 There is the possibility of holding a distinct sentencing hearing following conviction, in order to hear any additional evidence or submissions that may be relevant to the sentence. This hearing, which is not mandatory, may be triggered by the request of either the Prosecution or the Defence, or may be initiated by the Trial Chamber on its own motion.9 In Lubanga, the Chamber indicated that, in the event of a conviction, it intended to hold a separate sentencing hearing.10 It is the author’s view that this procedure should always be followed, considering the importance of such hearings to consider sentencing matters in depth and to ensure that the Chamber does not neglect such issues. One of the purposes of a sentencing hearing is to provide the parties with the possibility of presenting specific submissions and/or additional evidence that may be relevant to the sentence. This additional evidence may concern the character of the convicted person, mitigating or aggravating factors, or other evidence specifically relevant for sentencing purposes. In fact, the Lubanga Defence requested to introduce additional evidence during the sentencing hearing.11 In particular, the Defence was granted leave to call two additional witnesses and introduce an additional document relevant to Lubanga’s time spent in detention in the DRC.12 The parties also filed ad hoc submissions with specific arguments

6 Article 77(2)(a); see also letter (b). Rules 146 and 147 of the RPE further specify the criteria and modalities for fines and orders of forfeiture. 7 Silvia D’Ascoli, Sentencing in International Criminal Law: The UN ad hoc Tribunals and future perspectives for the ICC (Oxford: Hart, 2011) 265; William A. Schabas, An Introduction to the International Criminal Court (4th edn, Cambridge: Cambridge University Press, 2011) 331; Faiza P. King and Anne-Marie La Rosa, ‘Penalties under the ICC Statute’ in Flavia Lattanzi and William A. Schabas, (eds), Essays on the Rome Statute of the International Criminal Court (L’Aquila: Il Sirente, 1999) 337–338. 8 Article 76(1). 9 Article 76(1), para 2. 10 This sentencing hearing was held on 13 June 2012. Lubanga, ICC-01/04-01/06-2871, Order fixing the date for the sentencing hearing, Trial Chamber I, 24 April 2012; Lubanga, ICC-01/04-01/ 06-2844, Scheduling Order concerning timetable for sentencing and reparations, 14 March 2012, para 4. Additionally, the Chamber indicated that evidence relating to sentence would also be admissible during the trial, for reasons of efficiency and economy. See also Decision (n 3), para 20. 11 Lubanga, ICC-01/04-01/06-2892, Requête de la Défence sollicitant l’autorisation de présenter des éléments de preuve supplémentaires lors de l’audience sur la peine prévue le 13 juin 2012, 3 June 2012. 12 Lubanga, ICC-01/04-01/06-2895, Order on the Defence request to present evidence during the sentencing hearing, Trial Chamber I, 11 June 2012; see also Decision (n 3), paras 10–11.

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on the sentence to be imposed, the gravity of the crimes, and mitigating and aggravating circumstances.13 Not having a proper sentencing hearing would constitute a disadvantage for both the Defence and the Prosecution. In fact, without such a hearing, submissions concerning sentencing run the risk of being vague and very limited, especially in lengthy and complex trials where the Prosecution and the Defence are focused on presenting evidence in support of their cases. Similarly, if sentencing matters were to be addressed in the closing arguments or in the final trial briefs of the parties together with all of the other submissions regarding individual criminal responsibility, charges, evidence and facts of the case, sentencing matters would be unlikely to receive sufficient attention and consideration. By way of comparison, at the ad hoc Tribunals – where the practice of holding separate sentencing hearings was allowed only in the initial cases14 – sentencing submissions have often been given scant attention in final briefs or closing arguments,15 and cases where no sentencing submissions were made at all were not infrequent.16 Separate sentencing hearings better serve the need for more detailed and comprehensive submissions on sentencing, gravity of the crime, and aggravating and mitigating factors. In determining the sentence, the Court must take into account the gravity of the crime and the individual circumstances of the convicted person, including mitigating and aggravating factors in accordance with the ICC RPE.17 Rule 145 specifies some of these circumstances and provides some indications about how the Court should determine the sentence. For instance, a fundamental principle is that the totality of the sentence must reflect the culpability of the convicted person,18 and that all relevant factors (e.g. mitigating and aggravating factors and

13 Lubanga, ICC-01/04-01/06-2881, Prosecution’s Sentence Request, 14 May 2012 (‘Prosecution’s Sentence Request’); ICC-01/04-01/06-2891-Red, Observations de la Défense sur la peine, 3 June 2012 (‘Observations de la Défense sur la peine’). 14 See e.g. former Rule 100, ICTY Rules of Procedure and Evidence (RPE), Rev 6, 6 October 1995: ‘If a Trial Chamber finds the accused guilty of a crime, the Prosecutor and the defence may submit any relevant information that may assist the Trial Chamber in determining an appropriate sentence.’ In July 1998, the RPE were amended to eliminate the possibility of a separate sentencing hearing and to unify the process by anticipating the presentation of evidence on sentencing matters to the trial proceedings and/or during the closing arguments of the parties, thus before the verdict on guilt or innocence. See current Rules 85 and 86. 15 See e.g. Prosecutor v Milutinovi´c et al, IT-05-87-T, Prosecution’s Final Trial Brief, 28 July 2008, paras 1099–1100; Prosecutor v Ðordevi´c, IT-05-87/1-T, Prosecution’s Public Redacted Final Trial Brief, 20 December 2011, paras 1353–1354. 16 See e.g. Prosecutor v Karera, ICTR-01-74-A, Appeal Judgment, Appeals Chamber, 2 February 2009, para 388; Prosecutor v Mrksi´c and Sljivancanin, IT-95-13/1-A, Appeal Judgment, Appeals Chamber, 5 May 2009, para 388 (with regard to the accused Sljivancanin); Prosecutor v Kalimanzira, ICTR-0588-T, Trial Judgment, Trial Chamber, 22 June 2009, para 743; Prosecutor v Bagaragaza, ICTR-0586-S, Sentencing Judgment, Trial Chamber, 17 November 2009, para 33. 17 Article 78(1); see also Rule 145 of the RPE. 18 Rule 145(1)(a) of the RPE.

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circumstances related to the accused or the crime) must be mutually balanced.19 Consideration must also be given to the degree of participation of the convicted person in the crime(s), the circumstances of the convicted person (e.g. age, education, social and economic conditions) and the crime (e.g. time, manner and location), and the harm caused to the victims and their families.20 The Court must also ensure that the sentence is proportionate to the crime.21 Finally, Article 78 also requires the Court to pronounce a separate sentence for each crime and then impose a joint sentence for all the convictions, specifying the total period of imprisonment. The maximum sentence ‘shall be no less than the highest individual sentence pronounced and shall not exceed 30 years’ imprisonment or a sentence of life imprisonment’.22

Findings (and lack thereof) of the Lubanga Chamber on sentencing The Chamber’s analysis in the Decision revolves around three main areas: (i) the principles and legal framework for sentencing; (ii) considerations of standards of proof; and (iii) relevant sentencing factors. Purposes of punishment The Chamber begins its analysis with a cursory review of the principles and the legal framework for sentencing at the ICC. This is where the reader would expect to find a discussion of the purposes of punishment within the ICC system, only to be disappointed. While the Chamber devotes 10 paragraphs to a brief review of the provisions of the Statute and RPE that regulate sentencing, only one very short paragraph discusses the purposes of punishment at the ICC. In this brief paragraph, the Chamber only refers to the Preamble of the Statute, which encompasses the two main rationales of criminal justice policy: retribution and deterrence.23 The Chamber simply recalls these two rationales without delving into further analysis and concludes that ‘The ICC was established “to these ends and for the sake of present and future generations” ’.24 In so doing, the Chamber confuses the underlying rationales for international justice – in other words, the reasons for having an international criminal court at all – and the

19 20 21 22

Rule 145(1)(b) of the RPE. Rule 145(1)(c) of the RPE. Article 81(2)(a). Article 78(3). Further, Article 78(2) provides that, in imposing a sentence of imprisonment, the Court shall deduct any time previously spent in detention in accordance with an order of the Court or in connection with conduct underlying the crime of which the accused has been convicted. 23 Preamble of the ICC Statute, paras 4–5. 24 Decision (n 3), para 16.

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specific aims of sentencing. The reader would expect an analysis of the latter in the very first Decision on Sentence delivered by a Trial Chamber of the ICC. In fact, the recognition of retribution and deterrence in the Preamble cannot be considered as the equivalent of a specific sentencing policy related to the purposes of punishment. Absent a provision in the Statute prescribing the goals to be considered in meting out penalties within the ICC system, the discussion of these specific purposes of punishment is expected and should be undertaken in sentencing decisions. The Lubanga Chamber fails to do so and this certainly represents a missed opportunity to clarify an important area of sentencing. Evidentiary standards Before analysing the specific factors relevant to sentencing, the Chamber makes three preliminary findings on: 1 2 3

facts and circumstances to be taken into account for the purposes of sentencing; standard of proof for aggravating and mitigating factors; and prohibition of double-counting.

First, the Chamber clarifies that the facts and circumstances to be considered during the sentencing hearing and thus to be taken into account for sentencing purposes pursuant to Rule 145 of the RPE can include facts and circumstances beyond those described in the charges.25 This principle is premised on the finding that the Defence has had adequate notice of the relevant matters, reasonable time and an opportunity to address the facts and circumstances that exceed those set out in the Confirmation Decision.26 At the outset, it is unclear whether this principle applies to both aggravating and mitigating circumstances. While the Chamber makes reference to both aggravating and mitigating factors when discussing how the Defence had adequate notice and a sufficient opportunity to address and respond to submissions and evidence related to sentencing,27 it later recalls this principle only with regard to mitigating factors.28 However, the point that aggravating factors can also include facts and circumstances beyond those described in the charges can be derived from the Chamber’s discussion of sexual violence as an aggravating factor.29 Considering the relevance of this principle on aggravating circumstances, and the considerable impact that these circumstances can have on the sentence pronounced, the Chamber should have engaged in a more in-depth analysis to clarify when aggravating factors can relate to facts and

25 26 27 28

Decision (n 3), para 29. Decision (n 3), paras 29–31. Decision (n 3), para 30. Decision (n 3), para 34 (‘The Chamber accepts that the mitigating factors are not limited to the facts and circumstances described in the Confirmation Decision’). 29 Decision (n 3), paras 67–69; see also infra, section on aggravating factors.

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circumstances beyond those described in the charges. It should have also made clear, for example, that the Prosecution cannot invoke as aggravating factors matters that were not alleged in the indictment against the accused, if the Prosecution did not clearly identify such matters at trial and if the Defence was not put on sufficient notice of them during the proceedings.30 Second, the Chamber clarifies the standard of proof for aggravating and mitigating factors. In fact, neither the Statute nor the RPE define the applicable evidentiary standards for these circumstances, and the parties in Lubanga had presented opposite views in that regard.31 Of note is the fact that the Prosecution argued that the Chamber should not follow the jurisprudence of the ad hoc Tribunals on the standard of proof ‘beyond reasonable doubt’ for aggravating factors but should make findings on both aggravating and mitigating factors on the basis of a ‘balance of probabilities’ standard.32 The Prosecution did not offer any reasoned argument for its submission that ‘this Court is not bound by [the jurisprudence of the ad hoc Tribunals on the ‘beyond reasonable doubt’ standard for aggravating factors] and there is good reason to depart from it’; nor does it cite to any authorities, doctrine or jurisprudence, in support of its submission that ‘the Chamber may find relevant aggravating factors, as well as mitigating ones, based on a standard of “balance of probabilities” ’.33 This is again one issue that should have been defined by the ICC Statute or RPE, in order to avoid uncertainty of interpretation and to provide the accused with precise standards in an area as fundamental as this. Aggravating and mitigating circumstances are in fact very significant and influential factors on sentencing. The Chamber, vesting itself with the power to ‘establish the standard of proof for the purposes of sentencing’,34 finds that aggravating circumstances must be proved beyond a reasonable doubt, since they ‘may have a significant effect on the overall length of the sentence’.35 As to mitigating circumstances, the Chamber – considering that the in dubio pro reo principle also applies at the sentencing stage of the proceedings – accepts that mitigating circumstances are to be established on a balance of probabilities standard.36 The Chamber also accepts that mitigating

30 The jurisprudence of the ad hoc tribunals is quite settled on this point. See e.g. Prosecutor v Semanza, ICTR-97-20-T, Judgment and Sentence, Trial Chamber, 15 May 2003, para 570; Prosecutor v Kunarac et al, IT-96-23-T, Judgment, Trial Chamber, 22 February 2001, para 850; Prosecutor v Delali´c et al, IT-96-21-A, Appeal Judgment, Appeals Chamber, 20 February 2001, paras 763–766. 31 See Lubanga, ICC-01/04-01/06-2868, Prosecution’s Submissions on the Procedures and Principles for Sentencing, 18 April 2012, para 25; see also Observations de la Défense sur la peine (n 13), paras 50–51. 32 Lubanga, Prosecution’s Submissions on the Procedures and Principles for Sentencing (n 31), para 25. 33 Lubanga, Prosecution’s Submissions on the Procedures and Principles for Sentencing (n 31). 34 Decision (n 3), para 33. 35 Decision (n 3), para 33. 36 Decision (n 3), para 34.

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factors are not limited to the facts and circumstances charged, particularly considering that Rule 145(2)(a)(ii) refers to the ‘convicted person’s conduct after the act’.37 Overall, the Chamber thus follows previous practice and reaffirms the standard of proof for aggravating and mitigating factors already consistently applied by the ad hoc Tribunals and the SCSL.38 Previous practice is followed also with regard to the third and last preliminary finding: the issue of double-counting. The Chamber finds that any factors taken into account when assessing the gravity of the crime will not be considered twice, and, as such, will not additionally be taken into account as aggravating factors, and vice versa.39 The Chamber relies on the findings of the Appeals Chamber of the ICTY to state the prohibition of double-counting.40 However, only one very brief paragraph is devoted to this important issue, and the Chamber does not even fully address the various implications of double-counting. Such implications include, for example: that the same fact shall not be considered as a constitutive element of two distinct circumstances; that circumstances which are already statutory elements of the offence shall not be additionally considered for aggravation of the sentence; and in a case of multiple charges and convictions, that a same fact shall not be considered both as a constitutive element of one offence and as an aggravating circumstance of another offence. Sentencing factors The relevant factors that the Chamber takes into account for sentencing purposes are: 1 2 3 4 5 6

the gravity of Lubanga’s crimes; the widespread nature of the crimes committed; Lubanga’s degree of participation and intent; Lubanga’s individual circumstances; aggravating circumstances; and mitigating circumstances.

37 Decision (n 3), para 34. 38 See e.g. Prosecutor v Delali´c et al., IT-96-21-A, Appeal Judgment, Appeals Chamber, 20 February 2001, para 763: ‘The Appeals Chamber agrees that only those matters which are proved beyond reasonable doubt against an accused may be . . . taken into account in aggravation of that sentence’; Prosecutor v Dragan Nikoli´c, IT-94-2-S, Sentencing Judgment, Trial Chamber, 18 December 2003, para 145; see also Prosecutor v Kajelijeli, ICTR-98-44A-A, Appeal Judgment, Appeals Chamber, 23 May 2005, para 294; Prosecutor v Serugendo, ICTR-2005-84-I, Sentencing Judgment, Trial Chamber, 12 June 2006, para 40; Prosecutor v Brima et al, SCSL-04-16-T, Sentencing Judgment, Trial Chamber, 19 July 2007, para 9 (‘Brima’). 39 Decision (n 3), para 35. 40 Decision (n 3), para 35 and fn 52 citing to the Judgment on Sentencing Appeal in the ICTY case Prosecutor v Momir Nikoli´c.

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Gravity of the crime After the preliminary findings on evidentiary standards outlined above, the Chamber moves to analyse the relevant sentencing factors to be taken into account pursuant to Article 78(1) of the Statute and Rule 145(1)(c), starting with the gravity of the crime. Not surprisingly, and again following previous practice,41 the Chamber states that the gravity of the crime is ‘one of the principal factors to be considered in the determination of the sentence’, and that the gravity should be proportionate to the crime and should reflect the culpability of the convicted person.42 The subsequent analysis of the gravity of the three specific crimes underlying Lubanga’s conviction (conscripting, enlisting and using children under the age of 15 to participate actively in hostilities) focuses on the vulnerability of children and the special protection that they should be accorded by the international community, an assessment that the Chamber bases on international treaties and expert witness evidence presented during trial.43 The Chamber’s consideration of the main historical objective underlying the prohibition against the use of child soldiers and war-related disorders and trauma suffered by former child soldiers constitutes a very compelling background to the Chamber’s findings on the gravity of the charged crimes. The seriousness of the crimes of conscripting and enlisting children is unquestionable and it is not surprising that the Chamber found these crimes to be serious, with particular regard to the extent of the damage caused. However, there is no substantial analysis devoted to the gravity of the specific crimes Lubanga is convicted of, their relative seriousness and the damage caused. Furthermore, the ascertained gravity of Lubanga’s crimes remains an empty statement where the Chamber does not seem to make concrete conclusions about this ‘seriousness’, especially in its determination of the penalty. In fact, as argued below, there is no specific discussion of how the gravity of Lubanga’s crimes, and the damage caused by such crimes, is reflected in and has impacted the length of the sentence imposed.44 Large-scale and widespread nature of the crimes committed The Chamber analyses the large-scale and widespread nature of the crimes committed in the context of ‘circumstances of manner, time and location of the

41 Decision (n 3) para 36 and fn 53 citing the Trial Chamber Sentencing Judgment in the ICTY case Prosecutor v Momir Nikoli´c. 42 Decision (n 3), para 36; see also Article 81(2)(a) of the Statute and Rule 145(1)(a) of the RPE. 43 Decision (n 3), paras 37–43. 44 The Prosecution has appealed the Chamber’s failure to give sufficient weight to the objective gravity of Lubanga’s crimes against child soldiers and to the damage caused by these crimes, especially considering the harm to the victims and their families. See Lubanga, ICC-01/04-01/06-2950, Prosecution’s Document in Support of Appeal Against the ‘Decision on Sentence pursuant to Article 76 of the Statute’ (ICC-01/04-01/06-2901), 3 December 2012 (‘Prosecution’s Appeal’), paras 2, 24–44.

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crimes’ pursuant to Rule 145(1)(c). While the Prosecution submitted that the crimes committed by Lubanga occurred on a large scale during the period of approximately one year and that the large numbers of child recruits demonstrated the widespread nature of the crimes,45 the Defence pointed out that the Chamber made no specific findings as to the proportion of child soldiers among the recruits.46 The findings of the Chamber with respect to this factor are puzzling insofar as the Chamber found in the Judgment that the recruitment of children under the age of 15 by the UPC/FPLC was ‘widespread’,47 and that a ‘significant’ number of children were used as military guards, escorts or bodyguards for the main staff commanders;48 however, apparently these findings were not sufficient to rely on during sentencing. The Chamber seems to accept the Defence’s submissions and states that it did not reach conclusions beyond reasonable doubt as to the precise number or proportion of the recruits under 15 years.49 The conclusion is even more cryptic than the analysis: ‘The Chamber, in passing sentence, has reflected its determination that the involvement of children was widespread.’50 The reader is left guessing as to what impact and weight, if any at all, this finding has on the final determination of the sentence. As discussed below, an exhaustive analysis of the impact of this (and other factors) on the length of the sentence imposed is nowhere to be found in the section that the Chamber devotes to the determination of the sentence. Degree of participation and intent of the convicted person At trial, Lubanga was convicted of all three charges of war crimes – that is, conscripting and enlisting children under the age of 15 into the FPLC, and using them to participate actively in hostilities within the meaning of Articles 8(2)(e)(vii) and 25(3)(a).51

45 46 47 48 49 50 51

Prosecution’s Sentence Request (n 13), paras 10–11. Observations de la Défense sur la peine (n 13), paras 9–13. Judgment (n 1), para 911. Judgment (n 1), para 857. Decision (n 3) paras 49–50. Decision (n 3), para 50. Judgment (n 1), para 1358. Of note, the Chamber’s re-characterization of the facts charged as relating only to a non-international armed conflict (Article 8(2)(e)(vii)), thereby reversing the Pretrial Chamber’s decision in this respect. On the re-characterization of facts, see e.g. Kai Ambos, ‘The First Judgment of the International Criminal Court (Prosecutor v Lubanga): A Comprehensive Analysis of the Legal Issues’ (2012) 12 International Criminal Law Review 115, 128–131 (‘Ambos’); Dov Jacobs, ‘A Shifting Scale of Power: Who is in Charge of the Charges at the International Criminal Court?’ in William A. Schabas et al (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Farnham: Ashgate, 2013), 205–222.

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The Prosecution had charged Lubanga under Article 25(3)(a) of the Statute as a direct co-perpetrator.52 The Chamber accepted the Pre-trial Chamber’s approach of the ‘control theory’ of liability according to which an essential contribution (one without which the crime would not have been committed) is required for responsibility to arise under Article 25(3)(a).53 It thus convicted Lubanga as a co-perpetrator who made an essential contribution to the common plan to build an army for the purpose of establishing and maintaining political and military control over the Ituri region of the DRC.54 However, the Chamber did not conclude that Lubanga meant to conscript and enlist children under the age of 15 and use them to participate in hostilities. Instead, it concluded that Lubanga was aware that, in the ordinary course of events, this would occur.55 Leaving aside considerations regarding the theory of co-perpetration as interpreted by the Chamber versus the ad hoc Tribunals’ JCE doctrine,56 the Chamber does not explore the significance of Lubanga’s degree of participation and intent for the purposes of sentencing. No real analysis is undertaken in this regard.57 After recalling the key factors establishing Lubanga’s participation and intent, the Chamber simply stated that ‘These conclusions have provided an important foundation for the sentence to be passed by the Chamber’,58 without further explanation or analysis.59 This is yet another missed opportunity to clarify how various degrees of involvement in crimes, as well as different levels of intent, impact the final sentence.

52 Lubanga, ICC-01/04-01/06-356, Document Containing the Charges, Article 61(3)(a), Pre-trial Chamber I, 28 August 2006, para 24 (refer to page 24 as well for counts); See also Prosecution’s Sentence Request (n 13), para 28. Pursuant to Article 25(3)(a), a person is criminally responsible if he or she ‘commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible.’ 53 Lubanga, ICC-01/04-01/06-803-tEN, Decision on the Confirmation of Charges, Pre-trial Chamber I, 29 January 2007, paras 334–335, 346–347. See also Judgment (n 1) paras 921–922, 996–999; see also Judgment (n 1), Separate and Dissenting Opinion of Judge Fulford, paras 9–18. 54 Judgment (n 1), paras 1356–1357. 55 Judgment (n 1), paras 1271–1279, 1351. 56 On the distinctions and implications of the two doctrines, see e.g. Thomas R Lieflander, ‘The Lubanga Judgment of the ICC: More than Just the First Step?’ (2012) 1(1) Cambridge Journal of International and Comparative Law 191, 203–208; Jens D. Ohlin, ‘Lubanga Decision Roundtable: Lubanga and the Control Theory’ (Opinio Juris, 15 March 2012) (http://opiniojuris. org/2012/03/16/lubanga-decision-roundtable-more-on-co-perpetration); Kevin J Heller, ‘Lubanga Decision Roundtable: More on Co-perpetration’ (Opinio Juris, 16 March 2012) (http://opiniojuris. org/2012/03/16/lubanga-decision-roundtable-more-on-co-perpetration); see also Ambos (n 51) 138–147. 57 Decision (n 3), paras 51–53. 58 Decision (n 3), para 53. 59 In its Appeal of the Decision on Sentence, the Prosecution argues that the Chamber failed to give sufficient weight to Lubanga’s degree of participation in the crimes. See Prosecution’s Appeal (n 44), paras 2, 36–37.

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Individual circumstances of the convicted person Pursuant to Article 78(1) of the Statute, the individual circumstances of the convicted person must be taken into account in determining the sentence. However, neither Article 78 nor Rule 145 of the RPE provide additional details or examples of these circumstances. Rule 145(c) only mentions that the Court shall give consideration to, inter alia, ‘the age, education, social and economic condition of the convicted person’. This is again one of the open-ended areas of sentencing that one would have expected to see addressed in a first decision on sentence by the ICC. Instead, the Chamber devotes three short paragraphs (which take up less than a page in total) to discussing Lubanga’s individual circumstances.60 The personal circumstances that the Prosecution presented as factors exacerbating Lubanga’s criminality were his age (he was 41 years old when the crimes were committed), education (a degree in psychology that allowed him to understand the gravity of his crimes, especially the impact on children) and his position as a leader of the community with supreme authority over the UPC/FPLC.61 The Chamber, without discussing these circumstances at all, simply concludes that Lubanga is ‘an intelligent and well-educated individual, who would have understood the seriousness of the crimes of which he has been found guilty. This marked level of awareness on his part is a relevant factor in determining the appropriate sentence’.62 Does this statement mean that the Chamber dismissed Lubanga’s age and position, to consider as relevant only his education and awareness of the seriousness of crimes? And, if so, to what degree was this ‘marked level of awareness’ a relevant factor in sentencing? These questions contribute to an already lengthy list of questions that remain unanswered in the Lubanga Decision. Aggravating circumstances Rule 145(2)(b) indicates some of the aggravating circumstances that the Court may take into account, as appropriate, in determining the sentence. The list is not exhaustive but includes: • • • •

60 61 62 63

prior criminal convictions of crimes of a similar nature to those under the jurisdiction of the Court; abuse of power or official capacity; victimization (for example, where multiple victims are concerned or where victims are particularly defenceless); and commission of the crimes with particular cruelty or for motives involving discrimination.63

Decision (n 3), paras 54–56. Prosecution’s Sentence Request (n 13), para 29. Decision (n 3), para 56. See Rule 145(2)(b) of the RPE.

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Some of these factors are addressed in the discussion of aggravating circumstances in the Lubanga Decision on Sentence. Some others are inexplicably omitted, as will be discussed. The Chamber analyses four aggravating circumstances: punishment; sexual violence; commission of the crime when the victims are particularly defenceless; and discriminatory motive. However, the Chamber is not satisfied that any of these circumstances should be treated as aggravating Lubanga’s sentence. The Chamber reached this conclusion because, in order to consider aggravating circumstances as established, it required proof that Lubanga intended or knew of the outcome of these aggravating circumstances, or that the aggravating circumstances could ‘otherwise be attributed to him in a way that reflects his culpability’.64 This is an odd standard, which results in the Prosecution having to prove the criminal responsibility of the accused for aggravating factors to the same mens rea standard applicable for convictions, as if the aggravating circumstances were separate charges.65 The Chamber’s analysis of these circumstances is thus problematic and begins with a discussion of ‘punishment’. The heading of this section is particularly unfortunate as it gives the impression that the underlying rationales for sentencing can be considered aggravating circumstances as well. In fact, what the Chamber discusses in the section entitled ‘punishment’ is the Prosecution’s submission that the harsh conditions and training regime in the military camps, as well as the brutal treatment and severe punishment of children, constitute aggravating factors for the purposes of sentencing.66 Although the Chamber recalls its finding that a number of child soldiers were subjected to a range of punishments during training at military camps, it dismisses this circumstance as not attributable to Lubanga’s responsibility for or awareness of these mistreatments in the ordinary course of the crimes. The Chamber thus decides not to take this circumstance into account as an aggravating factor in the determination of Lubanga’s sentence.67 The second circumstance that the Chamber analyses is the evidence produced during trial of sexual violence. Of note, the Chamber opens up the section regarding sexual violence with a strongly worded paragraph discussing the decision, or rather ‘failure’, of the ‘former prosecutor’ to charge sexual violence or rape at trial and, nonetheless, to make extensive submissions later that sexual violence should be considered as an aggravating factor for the purposes of sentencing.68 Irrespective of whether the Chamber’s approach criticizing prosecutorial discretion at trial is appropriate as a matter of policy, the finding that sexual violence is a relevant factor for sentencing purposes and that the Chamber is entitled to consider it under Rule 145(1)(c), in the context of the harm suffered by victims,

64 Decision (n 3), paras 59, 69, 74–75. 65 The Prosecution has appealed the Decision, inter alia, on the ground that the Chamber applied the wrong test to establish aggravating factors. See Prosecution’s Appeal (n 44), paras 7, 67–93. 66 Decision (n 3), paras 57–59. See also Prosecution’s Sentence Request (n 13), paras 18–22. 67 Decision (n 3), para 59. See also Prosecution’s Appeal (n 44), paras 67, 71–93. 68 Decision (n 3), paras 60, 67.

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manner of the crime and use of cruelty, should be welcome.69 This is also consistent with the Chamber’s previous findings that it is possible to consider, for sentencing purposes, facts and circumstances beyond those described in the charges, provided that certain procedural safeguards for the accused are in place.70 The Chamber analyses at some length the issue of sexual violence as an aggravating factor. However, it concludes that – on the basis of the totality of the evidence at trial – the link between the accused and sexual violence, in the context of the charges, has not been established. In particular, nothing suggested, in the Chamber’s view, either that sexual violence against child soldiers was so widespread that it could be characterized as occurring in the ordinary course of the implementation of the common plan for which Lubanga was responsible, or that Lubanga ordered or encouraged sexual violence, or was aware of it.71 The Chamber thus excluded the evidence of sexual violence from the assessment of Lubanga’s culpability for the purposes of sentencing.72 In her Dissenting Opinion, Judge Odio Benito argued that the sexual violence suffered by child soldiers should have been taken into consideration as a factor of gravity when determining the sentence, considering that the Chamber received ample evidence during trial on the punishments and harsh conditions in the military camps and the sexual violence suffered by child soldiers. Sexual violence would thus be part of the ‘harm caused to victims and their families’, requiring the Chamber to take such actions into account pursuant to Rule 145(1)(c) of the Rules.73 Undoubtedly, during trial, witnesses repeatedly raised the issue of child soldiers who suffered from sexual violence.74 The Chamber should have assessed the sexual violence evidence either in the context of the ‘harm caused to victims and their families’, or as part of its assessment of the gravity of the crime, or as an aggravating factor.75 The fact that the Chamber simply dismissed the sexual violence evidence under any possible characterization is worrisome.

69 Decision (n 3), paras 67–68. 70 The Lubanga Defence appealed the Decision, inter alia, on the ground that the Chamber found that it was entitled to consider for sentencing purposes facts and circumstances that exceed those set out in the charges. See Lubanga, ICC-01/04-01/06-2949-tEng, Mr Thomas Lubanga’s Appellate Brief Against Trial Chamber I’s 10 July 2012 Decision on Sentence, 3 December 2012 (‘Defence’s Appeal’), paras 97–108. 71 Decision (n 3), para 74. 72 Decision (n 3), para 75. The Prosecution has appealed the Decision, inter alia, on the ground that the Chamber applied the wrong test to establish aggravating factors or, in the alternative, that it failed to consider sexual violence as an aggravating factor. See Prosecution’s Appeal (n 44), paras 7, 67–93. 73 Decision (n 3), Dissenting Opinion of Judge Odio Benito, paras 1–8, 22. 74 Judgment (n 1), paras 890–896, 913, 1356–1357. 75 In this regard, see e.g. Brima (n 38), para 23; Prosecutor v Hadžihasanovic´ and Kubura, IT-01-47-A, Appeal Judgment, Appeals Chamber, 22 April 2008, para 317; Prosecutor v Vasiljevi´c, IT-98-32-A, Appeal Judgment, Appeals Chamber, 25 February 2004, para 157. See also Decision (n 3), para 44: The Lubanga Chamber briefly states to have considered the extent of the damage caused and the harm caused to the victims and their families at the end of the section devoted to ‘Gravity of the crime’. However, no explanation is given regarding which precise factors the Chamber considered and to what extent.

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The Chamber then turns to analyse the circumstance that the victims were particularly defenceless, only to find that the age of the child soldiers, some as young as five or six years, cannot be additionally considered as an aggravating factor, as it is already an element of the offence, thus relevant to determine the gravity of the crimes charged.76 If this is undisputed,77 what the Chamber seems to disregard is the specific vulnerability and defencelessness of the victims of Lubanga’s crimes. It appears that the Chamber automatically linked vulnerability and defencelessness to young age, thus already considering these factors as an element of the crimes charged. However, in the evidence presented at trial, the vulnerability and defencelessness of the victims of Lubanga’s crimes appeared as separate and distinct elements linked not only or necessarily to the young age of the victims, but also to their vulnerable condition and their position of subordination and relegation in the military camps.78 Again, a more in-depth analysis of the relevant factors in this regard, as well as the evidence presented at trial, should have resulted in a more focused discussion of these circumstances and in a different conclusion as to their relevance. The Chamber thus failed to consider and assess this relevant circumstance properly. Further, the Chamber considers the Prosecution’s submissions that the commission of the crimes involved discriminatory gender-based motives that should be treated as aggravating circumstances within the meaning of Rule 145(2)(b)(v).79 The Chamber concluded that there was no evidence that Lubanga deliberately discriminated against women in committing the offences and thus quickly dismissed ‘motive involving discrimination’ as a factor to be considered in aggravation of the sentence.80 Finally, there is no explanation of why the Chamber did not take into account other factors submitted by the Prosecution. For example, the Chamber failed to consider the ‘forced abductions and pressured recruitment’,81 the ‘impact of the crimes on the victims’,82 the ‘abuse of power or official capacity’83 and the ‘broader social impact of the crimes’.84 These factors are not considered at all in the

76 Decision (n 3), paras 77–78. 77 The Prosecution also recognized that the age of victims could not be considered an aggravating factor because it was an element of the crime. See Prosecution’s Sentence Request (n 13), para 38. 78 Judgment (n 1), paras 850–851, 885–886, 892, 79 Decision (n 3), paras 79–81. See also Prosecution’s Sentence Request (n 13), paras 35–36. 80 Decision (n 3), para 81. 81 See Prosecution’s Sentence Request (n 13), paras 13–17. 82 Prosecution’s Sentence Request (n 13), paras 23–27. Again, the Chamber briefly states to have considered the extent of the damage caused and the harm caused to the victims and their families at the end of the section devoted to ‘Gravity of the crime’. However, no explanation is given regarding which precise factors the Chamber considered and to what extent. See also Decision (n 3), Dissenting Opinion of Judge Odio Benito, paras 4–8, 19–22. 83 Prosecution’s Sentence Request (n 13), para 37. The Prosecution appealed the Chamber’s failure to consider Lubanga’s abuse of authority or trust in its Decision. See Prosecution’s Appeal (n 44), paras 56–66. 84 Prosecution’s Sentence Request (n 13), paras 39–40.

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Chamber’s analysis, either as aggravating circumstances or as part of the gravity of the crime. As an aside on aggravating circumstances, a criticism that should be lodged against the sentencing submissions of the Prosecution is that, having argued that aggravating circumstances should not be assessed under a ‘beyond reasonable doubt’ standard of proof, the Prosecution neglected to present solid evidence and sound submissions that would satisfy this standard, should their argument have failed. To the contrary, the Prosecution’s Sentence Request is characterized by very mild and brief submissions that lack structure and efficacy. This was remedied by the Prosecution’s submissions appealing the Decision.85 Mitigating circumstances Rule 145(2)(a) provides that the Court shall take into account, as appropriate, mitigating circumstances such as factors falling short of constituting grounds for exclusion of criminal responsibility (e.g. substantially diminished mental capacity or duress) and the convicted person’s conduct after the act, including any efforts by the accused to compensate the victims and any co-operation with the Court. The factors listed as mitigating have the sole purpose of providing guidance, since the Court has discretion to consider other factors besides those expressly mentioned. Other common factors that have been frequently considered as mitigating by the ad hoc Tribunals or the SCSL are: good character, personal and family circumstances, health conditions, young age or advanced age, remorse, admission of guilt or help offered to victims, and voluntary surrender. The analysis of mitigating circumstances in the Lubanga Decision on Sentence concerns the following mitigating circumstances: necessity, peaceful motives and cooperation of the accused with the Court. The Chamber’s analysis of these circumstances is problematic. First, its analysis appears rather brief, especially when considering all the factors discussed by the Lubanga Defence in its submission concerning sentencing.86 Additionally, the Chamber does not address the Defence’s submissions in detail. For example, the Chamber simply reiterates the Defence’s position on the necessity for Lubanga and others to build an army as a response to the situation in the Ituri region and threats received, and on his overall peaceful motives and his involvement in attempts to secure peace. However, the Chamber engages in no analysis of these factors and provides no reasons whatsoever regarding whether it is satisfied with their relevance and significance. The Chamber does not seem persuaded by the Defence’s arguments and appears to dismiss all of these factors;87 however, there is no specific motiva-

85 Cf. the sentencing submission in Prosecution’s Sentence Request (n 13) and Prosecution’s Appeal (n 44). 86 Observations de la Défense sur la peine (n 13), paras 86–109. 87 Decision (n 3), para 87.

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tion or reasoning given to explain the Chamber’s findings on the mitigating circumstances submitted by the Defence. The Chamber only ‘accepts that Mr Lubanga hoped that peace would return to Ituri’, but with the caveat that ‘this is only of limited relevance given the persistent recruitment of child soldiers during the period covered by the charges’.88 What is the actual meaning of the Chamber’s ‘acceptance’ of this circumstance? What is the mitigating value, if any, that this factor’s ‘limited relevance’ has on the determination of the years of imprisonment? We do not find answers to these questions, not even in the final section of the Decision devoted to the determination of the sentence. Also of concern, insofar as it remains a vague statement with no explanation or analysis provided, is the statement that the Chamber ‘has, however, reflected certain factors involving Mr. Lubanga in the aftermath of the offences’.89 First, it is not clear to which factors the Chamber refers. Second, it is equally unclear as to what ‘reflecting certain factors’ means in terms of sentencing, that is which weight – if any – these considerations had in mitigating (and thus reducing the length of) the final sentence. Vagueness in any finding relevant to sentencing should certainly be avoided. Further, no explanation is given as to why certain mitigating circumstances advanced by the Lubanga Defence are not addressed by the Chamber. For instance, the Chamber ignored Lubanga’s family situation, as a married father of eight children and guardian of another child, and his clean criminal record.90 The only mitigating circumstance that the Chamber seems to find relevant and applicable is Lubanga’s cooperation with the Court. While it rejects the Defence’s contentions that Lubanga’s sentence should be reduced on the basis of violations of his fundamental rights during trial,91 the Chamber acknowledges Lubanga’s ‘notable co-operation with the Court’, demonstrated by his respectful and co-operative behaviour throughout the proceedings.92 However, again the Chamber does not go farther than acknowledging this cooperation, nor does it assess the factor in detail or explain the weight given to a finding of cooperation. Instead, the Chamber takes another opportunity to belittle the work of the Prosecution at trial by listing the Prosecution’s procedural failures that resulted in onerous circumstances for Lubanga.93 Lacking a comprehensive explanation of what type of ‘consideration’ the Chamber gives to the mitigating circumstances, we would then expect to find a discussion of the weight attributed to such circumstances in the section devoted

88 89 90 91

Decision (n 3), para 87. Decision (n 3), para 91. Observations de la Défense sur la peine (n 13), para 109. Decision (n 3), paras 89–90. One of the grounds of the Defence’s appeal of the Decision is the Chamber’s refusal to take into account the numerous violations of Lubanga’s fair trial rights based on the fact that any time spent in detention, including during the trial, will be deducted from the sentence. See Defence’s Appeal (n 70), paras 26–79. 92 Decision (n 3), para 91. 93 Decision (n 3), letters a), b) and c).

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to the determination of the sentence, where again the reader’s expectations are disappointed.

Determination of the sentence Having considered all the factors discussed above, the Majority of the Chamber – Judge Odio Benito dissenting – sentenced Lubanga to a joint sentence of 14 years’ imprisonment, having found that the underlying penalties for each of the crimes of which Lubanga was convicted were 13 years’ imprisonment for conscripting children, 12 years’ imprisonment for enlisting children, and 14 years’ imprisonment for using children to participate in hostilities.94 The Chamber considered it inappropriate to impose a fine in addition to the term of imprisonment, ‘given the financial situation of Mr Lubanga’.95 Finally, it deducted from Lubanga’s sentence the time from his arrest until the date of the Decision.96 Why a sentence of 14 years’ imprisonment? The reader would expect to find an answer to this question in the relevant part of the Decision addressing the determination of the sentence. However, after almost 30 pages of discussion of relevant factors, the judges do not give any detailed explanation as to why 14 years (rather than 30 years, for example, as requested by the Prosecution) constitute a sentence that is appropriate to the crimes and individual criminal responsibility of Lubanga. No specific reasoning is developed for the determination of the sentence. The whole of the findings and explanation of the Chamber in this regard are to be found in the following paragraph: The Chamber has borne in mind the widespread recruitment and the significant use of child soldiers during the timeframe of the charges; the position of authority held by Mr Lubanga within the UPC/FPLC and his essential contribution to the common plan that resulted, in the ordinary course of events, in these crimes against children; the lack of any aggravating circumstances; and the mitigation provided by his consistent cooperation with the Court during the entirety of these proceedings, in circumstances when he was put under considerable unwarranted pressure by the conduct of the prosecution during the trial, as set out above.97 The Chamber also considers that a life sentence would be inappropriate given that it did not find any aggravating factors, in light of the requirement in Rule

94 Pursuant to Article 78(3) of the Statute: ‘When a person has been convicted of more than one crime, the Court shall pronounce a sentence for each crime and a joint sentence specifying the total period of imprisonment. This period shall not be less than the highest individual sentence pronounced and shall not exceed 30 years imprisonment or a sentence of life imprisonment in conformity with article 77, paragraph 1(b).’ 95 Decision (n 3), para 106. 96 Decision (n 3), para 108. 97 Decision (n 3), paras 97, 107.

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145(3) that a life sentence be ‘justified by the extreme gravity of the crime and the individual circumstances of the convicted person, as evidenced by the existence of one or more aggravating circumstances’.98 However, the Chamber does not explain why any other number of years of imprisonment would also be inappropriate, or why a 14-year sentence is the ‘appropriate sentence’. As is often the case with international sentencing, it ‘seems as though the trial chamber has simply pulled the number out of the air’.99 The Lubanga Decision is no exception to this observation. The Chamber, after the analysis of Lubanga’s individual circumstances, and relevant aggravating and mitigating factors, makes no attempt to explain why those factors required a sentence of 14 years, no less, no more. It does not explain the rationale or method behind the Chamber’s calculation, nor does it give any indication of how serious Lubanga’s contribution was to the common plan that resulted in the crimes against children. It does not indicate how much prison time was deducted for the mitigating circumstances that the Chamber found established, nor does it discuss in any form the concrete weight attributed to these factors. There seems to be logic in the progressive seriousness – in terms of number of years of imprisonment – of the three crimes of which Lubanga was convicted (12 years for enlisting children; 13 years for conscripting children; 14 years for using children to participate in hostilities), but the Chamber does not explain or clarify at all the difference in number of years sentenced between the three crimes. It also fails to link the determination of the sentence to an assessment of the gravity of the charged crimes or to the legal analysis of these crimes delivered in the Judgment.100 Further, circumstances that in the Judgment were considered more appropriate for assessment during the sentencing phase, like the ‘compulsory’ or ‘voluntary’ manner in which child soldiers were recruited,101 are ultimately not addressed by the Chamber. The Chamber’s initial statement that the crimes of conscripting and enlisting children and using them to participate actively in hostilities are ‘undoubtedly very serious crimes that affect the international community as a whole’102 finally appears to be an empty statement, considering that the Chamber does not seem to attribute any considerable weight to this statement in the determination of the sentence. In fact, ‘seriousness’ certainly applies to all crimes under the jurisdiction of the ICC. While the Lubanga Judgment seemed to have set a high threshold for the protection of children in armed conflicts by prohibiting any

98 Decision (n 3), para 96. 99 Boas (n 4) 420–421. 100 In the Judgment, the Chamber found that ‘conscription’ and ‘enlistment’ are both forms of recruitment, and that conscription presents the additional element of ‘compulsion’ (see Judgment (n 1), paras 607–608). It also found that the crimes of conscripting, enlisting and using child soldiers constitute three distinct crimes (Judgment (n 1), para 609). This confuses the concept of an offence with that of a particular conduct of an offence: see Ambos (n 51) 133. 101 See Judgment (n 1), para 617. 102 Decision (n 3), para 37.

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use of children in armed forces,103 the Decision on Sentence seems to dilute this threshold by making the punishment for such crimes a rather mild one. The threat of punishment that the Chamber associates with the crimes of enlisting, conscripting and using child soldiers does not seem to match the purported seriousness of the crimes.104 With regard to comparable cases from which the Chamber might have drawn useful guidance in terms of sentences imposed,105 the Chamber does not even seem to take into account properly, for sentencing purposes, the two judgments of the SCSL mentioned at the very beginning of its Decision as cases involving similar charges to the Lubanga case.106 These cases are the RUF case107 and the CDF case,108 where each count was addressed separately in the sentencing decision and where separate sentences were handed down for the crimes of enlisting and using child soldiers under the age of 15.109 However, once again the Chamber simply refers to these cases briefly, does not engage in any substantive analysis, and does not attempt to draw a distinction between the two cases to consider seriously which of the two (the RUF case or the CDF case) is more similar to the Lubanga case. Had the Chamber undertaken this comparison, instead of simply mentioning the two cases at the beginning of the Decision to show knowledge of comparable cases, it would have found that the facts of the CDF case were not the most similar to those of the Lubanga case,110 and that useful

103 Judgment (n 1), paras 617–631. 104 The Prosecution has appealed the sentence of 14 years’ imprisonment on the ground, inter alia, that this sentence is manifestly inadequate and disproportionate to the gravity of the crimes and amounts to a discernible error by the Chamber that requires the intervention of the Appeals Chamber. See Prosecution’s Appeal (n 44), paras 2–3, 20–23. 105 According to the ICTY Appeals Chamber, ‘a sentence should not be . . . out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences.’ See e.g. Prosecutor v Jelisic´, IT-95-10-A, Appeal Judgment, Appeals Chamber, 5 July 2001, para 96. 106 See Decision (n 3), paras 12–15. 107 Prosecutor v Sesay, Kallon and Gbao, SCSL-04-15-T (‘RUF case’), Judgment, Trial Chamber, 25 February 2009 (‘RUF Judgment’). 108 Prosecutor v Fofana and Kondewa, SCSL-04-14-T (‘CDF case’), Judgment, Trial Chamber, 2 August 2007 (‘CDF Judgment’). 109 RUF case, Sentencing Judgment, 8 April 2009 (‘RUF Sentencing Judgment’), pp 93–98 (Disposition); CDF case, Judgment on the sentencing of Moinina Fofana and Allieu Kondewa, 9 October 2007 (‘CDF Sentencing Judgment’), pp 33–34 (Disposition). 110 Allieu Kondewa was a priest (not a military or political leader with an overall co-ordinating role like Lubanga) convicted of, inter alia, enlisting child soldiers (CDF Judgment, paras 968–972). However, the Trial Chamber found that he never personally used children in hostilities, he expressed remorse, and had overall a limited role. Kondewa was thus sentenced to a total and concurrent term of imprisonment of eight years (see CDF Sentencing Judgment, paras 61–62, 65–66, 92–94, and page 34 (conviction)). This sentence was then increased on appeal to 20 years, as the Appeals Chamber found that the Trial Chamber was in error in taking into consideration ‘just cause’ and motive of civic duty as mitigating factors in sentencing (see CDF case, SCSL-0414-A, Appeal Judgment, 28 May 2008, paras 554–555 and pp 189–191).

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guidance in terms of sentencing was instead to be found in the RUF case.111 This is yet another example of the Chamber’s rushed or cursory analysis hindering sound conclusions. Moving to discuss the Dissenting Opinion of Judge Odio Benito to the Decision, the Judge agrees that there are no established aggravating circumstances and that Lubanga’s co-operation should be taken into account as a mitigating circumstance. What the Judge ‘strongly’ disagrees with is the Majority’s determination not to consider the harm and damage caused to victims and their families as a factor of gravity (pursuant to Rule 145(1)(c)), including the Majority’s disregard for sexual violence suffered by the victims of the charged crimes.112 Judge Odio Benito also expresses her ‘firm’ disagreement with the Majority’s decision to impose differentiated sentences for the three crimes of enlisting, conscripting and using children under the age of 15, and argues that the three crimes are all the result of the same plan implemented by Lubanga and should result in the same sentence length.113 The reasoning behind this argument is unclear: where different crimes result from the same criminal plan, would a murder or a rape not still be more serious than a theft or verbal offences? The reasoning applied in the Dissenting Opinion seems to suggest that all crimes implemented from the same plan would result in the same level of gravity, regardless of the seriousness or category of the underlying crimes. No explanation for this conclusion is found in the Dissenting Opinion. In any case, where Judge Odio Benito has good reasons to criticize the Majority’s failure to consider properly the harm and damage caused to victims and their families, the sentence that the Judge proposes as a result after considering this harm and damage caused is only a one-year increase: a sentence of 15 years’ imprisonment rather than 14.114 How is a simple increase of one year in the sentence more proportionate to the crimes found? Again, no explanation is given regarding how this increase is calculated. Thus, Judge Odio Benito seems eventually to agree with the Majority about the baseline of the sentence imposed; she would have only increased it by one year to take into account the harm caused to victims and their families. Against this background of uncertainty and lack of clarity regarding how the final sentence (i.e. number of years of imprisonment) is decided upon, what weight

111 In this case, two senior commanders, very much in a similar position to Lubanga, were convicted on one count of using children under the age of 15 years to actively participate in hostilities. Issa Sesay’s sentence for actively using children in hostility was 50 years imprisonment; Morris Kallon’s sentence for his involvement in the use of child soldiers was 35 years imprisonment. The circumstances of the crimes, like the involvement of the two accused, the organized and widespread use of child soldiers and the conditions in which recruitment and use of children occurred, were also very similar to the circumstances discussed by the Chamber in the Lubanga case. See RUF Sentencing Judgment, 8 April 2009, paras 7, 179–187, 212, 236. See also RUF case, SCSL04-15-A, Appeal Judgment, 26 October 2009, pp 477–480 (Disposition). 112 Decision (n 3), Dissenting Opinion of Judge Odio Benito, paras 1–2. 113 Decision (n 3), Dissenting Opinion of Judge Odio Benito, paras 3, 24–26. 114 Decision (n 3), paras 26–27.

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aggravating and mitigating factors are attributed, and what the relative gravity of the offences in the Statute is or should be, one can understand the Prosecution’s attempt to address these foreseeable issues of sentencing policy through the proposition of a starting point or ‘baseline’ to determine sentences. The Prosecution urged the Chamber to adopt a ‘baseline’ for sentences set at approximately 80 per cent of the statutory maximum – that is, 24 years – and that this baseline should then be adjusted to take into account any aggravating and mitigating circumstances and other relevant factors applicable to the case.115 In the Prosecution’s submissions, this would also avoid sentence discrepancies and would ensure that the Court’s sentences be sufficiently severe, thus reflecting the inner gravity and seriousness of the international crimes under the ICC’s jurisdiction.116 However, the Chamber found that no established principles of law or relevant jurisprudence under Article 21 of the Statute were offered by the Prosecution in support of its position.117 The Chamber did not seem interested in addressing consistency issues itself and thus found that an automatic starting point consisting of the same sentence for all offences – as proposed by the Prosecution – would clash with the principle that sentences passed by the Court should always be proportionate to the crime.118 However, despite this position, the Chamber does not find it important to discuss how and why a 14-year sentence is proportionate to the crimes of which Lubanga was found guilty. Whether the Prosecution’s approach and concerns will be re-submitted and eventually heeded in the ICC’s future practice remains to be seen. Certainly, the lack of a uniform system of gravity of offences, penalty ranges for different crimes, and aggravating and mitigating circumstances in international justice, and at the ICC, remains problematic; these issues should thus be tackled sooner rather than later.

Concluding remarks The analysis of the very first decision on sentence delivered by the ICC raises some questions. Has the Court applied sound sentencing principles and factors in its very first sentencing judgment? Has the Court satisfied the expectations linked to this first sentencing judgment? As discussed above, although the Chamber did make some relevant contributions to the clarification of the ICC provisions on sentencing (e.g. with regard to the standards of proof of sentencing factors and the issue of double-counting), overall these contributions appear rather modest and are undermined due to the lack of depth of the analysis that characterizes the determination of the sentence

115 See Lubanga, Prosecution’s Submissions on the Procedures and Principles for Sentencing (n 31), paras 4–5. 116 Lubanga, Prosecution’s Submissions on the Procedures and Principles for Sentencing (n 31), paras 3–5. 117 Decision (n 3), para 93. 118 Decision (n 3), para 93. See also Article 81(2)(a).

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and the final sentence imposed, which seems to disregard fundamental aspects of the gravity of the crimes. In particular, although the Chamber recognizes that the gravity of the crime is ‘one of the principal factors’ in sentencing, and that it should be proportionate to the crime and should reflect the culpability of the convicted person,119 the Chamber ultimately fails to give sufficient weight to the objective gravity of Lubanga’s crimes against child soldiers and the full extent of the damage caused by these crimes, especially when considering the harm to the victims and their families. Trial Chambers are certainly entitled to discretion in sentencing, but this discretion is not unlimited and must be supported by sound reasoning and thorough findings. However, the Lubanga Chamber shows a superficial approach to a number of issues – for example, to the purposes of punishment, the gravity of crimes, aggravating and mitigating circumstances, and the process of determining of the sentence. In all of these areas, the analysis is unsystematic and in some cases it rejects the parties’ submissions too lightly or reaches conclusions too quickly. For instance, the test applied by the Chamber to establish aggravating factors shows that this is an area deserving of greater attention by the ICC Trial and Appeals Chambers. In contrast with the Judgment, which often shows transparency and clarity in the analysis,120 the Decision seems to convolute rather than resolve issues relevant to the sentencing process. This practice is clearly not laudable in terms of clarity and fairness, for different reasons. First, the defendant, and the international community, should not be left guessing ‘how’ and ‘if’ a certain factor influenced a Trial Chamber’s sentence. Vagueness is always a negative feature of reasoning when it comes to sentencing. Second, when Trial Chambers do not specify the weight (if any) they give to certain circumstances, it becomes very difficult to verify on appeal whether the judges have abused their discretion and committed a discernible error or not. Considering its hurried and unconvincing legal findings, it is doubtful that the Lubanga Decision on Sentence will gain prominence or be a leading decision in the area of international sentencing. However, as one of the few positive observations, it is reassuring to see that the ICC is inclined to take into account the case law of other international tribunals (i.e. the ad hoc Tribunals and the SCSL) and, hopefully, to draw from some of their established jurisprudence and from the lessons learned through their practice. One of these lessons is that there certainly is a need for greater specificity regarding sentencing provisions and the trial chamber’s findings on sentencing. In fact, excessive focus on judicial discretion and individualization of sentences might come at the expense of the principles of proportionality and legal certainty to the point of questioning the fairness of sentencing in international criminal justice.

119 Decision (n 3), para 36. 120 Ambos (n 51) 152.

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Judges should thus be required to explain in detail the length of the sentence associated with a specific crime, and what increase or reduction is applied as a consequence of findings of aggravating and mitigating circumstances. This would enhance adherence to the fair trial principles of legal certainty and proportionality. While sentences should of course be individualized to the extent possible, a consistent interpretation and application of sentencing factors across cases (and across international tribunals and courts) is essential to ensure fairness in sentencing. The principle of equality before the law is best served through uniform sentences, to the extent possible, for all defendants convicted of the same type of offence in similar circumstances. One of the reasons for the existing criticisms levelled against sentences in international criminal justice is precisely the lack of clear principles or guidelines that would contribute to the clarity, consistency and proportionality of sentences imposed by international tribunals/courts. The ICC should thus embrace its mandate to formulate more detailed principles of sentencing, including principles on the specific purposes of punishment for international sentencing, on the gravity of crimes and related ranges of penalties, on the weight of aggravating and mitigating circumstances, and on modes of liability. Insofar as the Rome Statute merely provides a framework for sentencing and contains many grey areas or lacunae, the ICC in its first sentencing judgment missed an opportunity to establish a firm foundation for a sentencing practice at the Court based on sound and transparent sentencing principles, criteria and factors. The formulation of specific sentencing principles and criteria that would be applied in all cases before the Court would better contribute to the promotion of legal certainty, consistency and predictability of punishment in international criminal law.

Bibliography Ambos, Kai, ‘The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A Comprehensive Analysis of the Legal Issues’ (2012) 12 International Criminal Law Review 115. Boas, Gideon, Bischoff, James L and Reid, Natalie L (eds), International Criminal Procedure, vol 3, 2011, Cambridge: Cambridge University Press. D’Ascoli, Silvia, Sentencing in International Criminal Law: The UN ad hoc Tribunals and future perspectives for the ICC, 2011, Oxford: Hart. Jacobs, Dov, ‘A shifting scale of power: who is in charge of the charges at the International Criminal Court?’, in Schabas, William A, McDermott, Yvonne and Hayes, Niamh (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives, 2013, Farnham: Ashgate, p 205. King, Faiza P and La Rosa, Anne-Marie, ‘Penalties under the ICC Statute’, in Lattanzi, Flavia and Schabas, William A (eds), Essays on the Rome Statute of the International Criminal Court, 1999, L’Aquila: Il Sirente, p 311. Lieflander, Thomas R, ‘The Lubanga Judgment of the ICC: More than Just the First Step?’ (2012) 1(1) Cambridge Journal of International and Comparative Law 191. Schabas, William A, An Introduction to the International Criminal Court, 4th edn, 2011, Cambridge: Cambridge University Press.

10 The confirmation of charges at the International Criminal Court A tale of two models Triestino Mariniello and Niccolò Pons1 Introduction The role of the proceedings leading to the confirmation of charges hearing and the impact of the confirmation decision on the conduct of the trial has become so preponderant in recent years to the extent that its original purpose is now in question. The jurisprudence of the Court has consistently insisted on the importance of the role of the pre-trial judges in ensuring judicial economy when filtering between cases that are meritorious of being heard at trial and cases that are not. This function has been framed in the context of the limited purpose of the confirmation of charges hearing as opposed to trial proceedings. In exercising their mandate, various Pre-trial Chambers have explained their role with regard to the evaluation of the evidence presented by the Prosecutor to support the charges against the suspects. According to an established jurisprudence, in order to meet the evidentiary threshold for committing a suspect for trial, the Prosecutor does not have to tender more evidence than is, in her view, necessary, to prove that the charges should be confirmed. Pre-trial Chamber I in the Gbagbo case took a radical departure from the established view of the object and purpose of the confirmation of charges in its decision pursuant to Article 61(7) of the Statute. Specifically, Pre-trial Chamber I found that for the purposes of the confirmation of charges, the Prosecutor must present her strongest possible case based on a largely completed investigation. The Gbagbo Chamber adopted a rather strict approach in applying the standard of proof under Article 61(7) of the Statute to the evidence presented by the Prosecutor at the confirmation hearing. In particular, Pre-trial Chamber I evaluated the evidence not only for its probative value and its tendency to prove a given element of the crimes, but also from the perspective of how the Prosecutor conducted the investigation that ultimately led to the collection of the evidence presented to the Chamber.

1 The authors wish to express their gratitude and appreciation to Dr. Peter Langford, Dr. Paolo Lobba, and Dr. Donato Vozza for their comments on an earlier draft. The views expressed herein by Niccolò Pons are those of the author alone and do not necessarily reflect the views of the ICC.

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With the Adjournment Decision in the Gbagbo case, the Court is facing one of the most significant instances of divergence in case law in years, especially because such a decision involves a crucial phase of the proceedings. This chapter examines the reasons behind this evolution, which provides a stricter interpretation as to what evidence is required at the confirmation of charges stage, thus having a potentially significant effect on the applicable evidentiary standard of ‘substantial grounds to believe’ enshrined in Article 61 of the Statute. Specifically, this chapter argues that the departure from previous case law is due to several problems faced by the Prosecutor in different trials before the ICC. The Prosecutor’s supposed obligation, as inferred by the Gbagbo Pre-trial Chamber, to present all obtained evidence at the confirmation stage based on a largely complete investigation, resembles an attempt by the bench to supervise the conduct of the investigation by the Prosecutor, in order to prevent scenarios already experienced in other cases at the trial stage. This chapter critically assesses how the Gbagbo approach tends to mark a significant shift in the balance of the case preparation into the domain of pre-trial proceedings. Accordingly, if presented with sufficient evidence, the Pre-trial Chamber should only confirm the charges and commit the suspect for trial when the case is, in reality, at a rather advanced stage of preparation. The aim of this chapter is to question whether, and to what extent, the requirements that the investigation should be ‘largely completed’ before the confirmation of charges hearing, and that the Prosecutor must accordingly present her strongest possible case, are indeed consistent with the legal framework of the Statute. In this regard, this chapter critically examines the recent approach of Pre-trial Chamber I in light of the limited scope and purpose of the confirmation of charges, as well as the discretion that the legal framework of the ICC appears to confer upon the Prosecutor in her choice of the type and amount of evidence to rely on, in order to meet the ‘substantial grounds to believe’ threshold. Therefore, we conclude that the ICC’s recent approach entails the risk of transforming the confirmation of charges into a trial, resulting in potential prejudice to the screening role of the Pre-trial Chamber and, ultimately, to the expeditiousness of the proceedings.

The significance of the decision on the confirmation of charges within the ICC proceedings According to Article 61(1) of the Statute, ‘within a reasonable time after the person’s surrender or voluntary appearance before the Court, the Pre-trial Chamber of the ICC shall hold a hearing to confirm the charges on which the Prosecutor intends to seek trial’.2 The confirmation of charges is the stage where Pre-trial Chambers make their judicial screening as to which cases to send to trial. The Prosecutor and the Defence are the parties to the confirmation

2 ICC Statute, Article 61(1).

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hearing and as such, they may submit their evidence and call witnesses.3 Pursuant to Article 61(6) of the Statute, the suspect can also object to the charges, challenge the evidence presented by the Prosecutor and present evidence.4 In addition, victims who have suffered personal harm linked to the charges against the accused may participate in the confirmation proceedings through their legal representatives.5 Following an assessment of the evidence disclosed between the parties and communicated to the Chamber, judges may: (i) confirm the charges;6 (ii) decline to confirm the charges;7 or (iii) adjourn the hearing and request the Prosecutor to consider (a) providing further evidence or conducting further investigation with respect to a particular charge;8 or (b) amending a charge because the evidence submitted appears to establish a different crime within the jurisdiction of the Court.9 The establishment of a confirmation hearing before a three-judge Chamber has been strongly criticized by academic literature, arguing that it constitutes an excessively costly and time-consuming means to speed up the case and ensure the respect of the rights of the accused.10 Nonetheless, the confirmation of charges more appropriately reflects the need to regulate the delicate passage between the existence of reasonable suspicion that an individual has committed a crime (and the deprivation of his or her liberty, if necessary) and deciding to send his or her case to trial, in the event that the suspicion is strong enough to justify the initiation of a criminal trial. Statutory provisions and Rules provide that the confirmation of charges phase does not constitute a mere administrative formality. The early cases before the ICC demonstrate that Pre-trial Chambers have already declined to confirm the charges against four different suspects, by finding that there were not substantial grounds to believe that the suspects had committed crimes falling within the ICC’s jurisdiction.11 In preventing cases characterized by weak evidence from proceeding

3 4 5 6 7 8 9 10

ICC Statute, Article 61(5) and 61(6)(c). ICC Statute, Article 61(6)(a) and (b). ICC Statute, Article 68(3). ICC Statute, Article (61)(7)(a). ICC Statute, Article (61)(7)(b). ICC Statute, Article (61)(7)(c)(i). ICC Statute, Article 61(7)(c)(ii). William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford: Oxford University Press, 2010), 734. 11 The four suspects are: Abu Garda, see Prosecutor v Bahar Idriss Abu Garda, ICC-02/05-02/ 09-243-Red, Decision on the Confirmation of Charges, Pre-trial Chamber I, 8 February 2010 (‘Abu Garda Confirmation of Charges’); Mbarushimana, see Prosecutor v Callixte Mbarushimana, ICC-01/0401/10-465-Red, Decision on the confirmation of charges, Pre-trial Chamber I, 16 December 2011 (‘Mbarushimana Confirmation of Charges’); Ali, see Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai

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to trial, the confirmation of charges has shown its crucial function in serving the purpose of judicial economy, which is extremely important for an international tribunal facing long and expensive proceedings. The functions of Pre-trial Chambers under Article 61 have also appeared crucial in avoiding detention of the suspect pending trial. The confirmation of charges fulfilled its main objective to protect the rights of the accused against unfounded charges. This is particularly true in the Mbarushimana case, where the suspect was in detention pursuant to a warrant of arrest issued under Article 58(. . .).12 Indeed, by not sending Mbarushimana to trial, the confirmation decision prevented a potentially lengthy limitation of personal liberty in a case lacking sufficient evidence to establish that the suspect was criminally liable of war crimes and crimes against humanity.13 In addition, the relevance of the decision on the confirmation of charges goes beyond the pre-trial phase. Indeed, on the basis of the relevant normative framework provided by the Statute and RPE, the confirmation of charges also has significant weight in other stages of the proceedings. This was emphasized by the Trial Chamber III in the Bemba case, where the judges stated: the Confirmation Decision is the authoritative document for all trial proceedings. Thus, whenever the prosecution refers to the charges against the accused, this should be by way of the exact language of the Confirmation Decision, and with specific reference to the relevant paragraph.14 Although the Pre-trial Chambers and Trial Chambers are independent from one another, some decisions taken by the former (most notably the decision on the confirmation of charges), are binding and must, therefore, be complied with by Trial Chambers. The relationship between pre-trial and trial phases is not confined to the filtering function of Pre-trial Chambers. In the ICC’s jurisprudence on victims, it is well established that applicants may qualify as victims for the purpose of participating in the trial proceedings only when they have suffered

Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11-382-Red, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, Pre-trial Chamber II, 23 January 2012 (‘Muthaura, Kenyatta and Hussein Ali Confirmation of Charges’); Kosgey, see Prosecutor v William Samoei Ruto, Henry Kiporono Kosgey and Joshua Arap Sang, ICC-01/09-01/11-373, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, Pre-trial Chamber II, 23 January 2012 (‘Ruto, Kosgey and Arap Sang Confirmation of Charges’). 12 See Prosecutor v Callixte Mbarushimana, ICC-01/04-01/10-1-US, Decision on the Prosecutor’s Application for a Warrant of Arrest against Callixte Mbarushimana, Pre-trial Chamber I, 28 September 2010. 13 See Mbarushimana Confirmation of Charges (n 11). 14 Prosecutor v Jean-Pierre Bemba Gombo, ICC-01/05-01/08-836, Decision on the defence application for corrections to the Document Containing the Charges and for the prosecution to file a Second Amended Document Containing the Charges, Trial Chamber III, 20 July 2010, para 37.

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personal harm linked to charges confirmed against the accused.15 The determination by the Trial Chamber as to who can stand before the Court as a victim of the case must, therefore, comply with the decision on the confirmation of charges issued by the Pre-trial Chamber in that case. Most importantly, the decision on the confirmation of charges has a central role in determining and delimiting the factual subject matter of the case for the purposes of the trial. Charges are composed of both factual and legal elements. In this context, the Trial Chamber is prevented from exceeding the factual ambit as drawn in the confirmation of charges. According to Article 74(2), ‘the decision at trial shall not exceed the facts and circumstances described in the charges and any amendments to the charges’ (emphasis added).16 In addition, Regulation 55 of the Regulations of the Court (‘Regulations’) provides that the Trial Chamber may modify the legal characterization of facts, but it cannot exceed the facts and circumstances described in the charges and any amendments to the charges.17 For Judge Fulford: the power to frame and alter the charges is exclusively a function of the Pre-Trial Chamber. By Article 61(9), after the charges have been confirmed, control over them remains with the Pre-Trial Chamber until the commencement of the trial . . . [F]or additional charges, or to substitute more serious charges, there must be a further confirmation hearing.18 Therefore, for the purposes of the conviction of the accused, the Trial Chamber cannot rely on any facts that were not the subject of the charges. Trial Chamber I faced this issue in the Lubanga case. As to the specific conduct of Lubanga, the Prosecutor had decided to confine the charges against him to the enlistment, conscription and use of child soldiers.19 However, during the proceedings, the Trial Chamber, relying on Regulation 55, stated that it could take into account an additional legal re-characterization of the facts, in order to include also charges of inhumane treatment and or cruel treatment, and sexual

15 With the sole exception of the Decision in Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/ 06-1119, Decision on victims’ participation, Trial Chamber I, 18 January 2008. This decision was reversed by Appeals Chamber in Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-1432, Judgment on the appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, Appeals Chamber, 11 July 2008, para 3. 16 ICC Statute, Article 74(2). 17 Regulation 55. 18 Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-2054, Minority opinion on the ‘Decision giving notice to the parties and participants that the legal characterisation of facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court’, 17 July 2009, paras 13, 16. 19 See Triestino Mariniello, ‘Prosecutor v. Thomas Lubanga Dyilo: the First Judgment of the International Criminal Court’s Trial Chamber’ (2012) 1(1) International Human Rights Law Review 137.

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slavery.20 The Appeals Chamber reversed the decision, finding that the Trial Chamber’s approach would violate Article 74(2) of the Statute, since the charges confirmed against Lubanga did not mention sexual slavery, inhumane treatment and or cruel treatment.21 Thus, in the verdict against Lubanga, the Trial Chamber had to exclude that a decision pursuant to Article 74 could cover factual allegations potentially supporting sexual slavery, given that they had not been included in the decision on the confirmation of charges.22

The vague concept of ‘substantial grounds to believe’ According to Article 61(7) of the Statute, ‘the Pre-trial Chamber shall, on the basis of the hearing, determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged’.23 Despite the central role played by the confirmation of charges within the ICC proceedings, the Statute does not clarify the concept of ‘substantial grounds to believe’. In order to define the evidentiary threshold in question, judges relied on internationally recognized human rights jurisprudence on standards of proof, namely the ECtHR, finding that this test requires ‘strong grounds for believing’ or that ‘substantial grounds for believing’ have been shown.24 The Pretrial Chamber in the Bemba case provided a literal interpretation of the term ‘substantial’ as ‘significant’ or ‘solid’.25 Therefore, in order for the Prosecutor to meet this evidentiary burden under Article 61(7), she ‘must offer concrete and tangible proof demonstrating a clear line of reasoning underpinning its specific allegations’.26 The ICC Prosecutor proposed an interpretation of the evidentiary test under Article 61(7) based on the ICTY and ICTR prima facie factors, by raising

20 Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-2049, Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court, Trial Chamber I, 14 July 2009. 21 Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-2205, Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009, Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court, Appeals Chamber, 8 December 2009. 22 Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-2842, Judgment pursuant to Article 74 of the Statute, Trial Chamber, 14 March 2012 (‘Lubanga Judgment’). 23 ICC Statute, Article 61(7). 24 Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-803-tEN, Decision on the confirmation of charges, Pre-trial Chamber I, 14 May 2007, para 38 (‘Lubanga Confirmation of Charges’); Prosecutor v Katanga and Ngudjolo, ICC-01/04-01/07-717, Decision on the Confirmation of Charges, Pre-trial Chamber I, 30 September 2008, para 65 (‘Katanga and Ngudjolo Confirmation of Charges’). 25 Prosecutor v Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, Pre-trial Chamber II, 15 June 2009, para 29 (‘Bemba Confirmation of Charges’). 26 See Lubanga Confirmation of Charges (n 24), paras 38–39. This reasoning was upheld by the same Chamber in Katanga and Ngudjolo Confirmation of Charges (n 24), para 65.

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similarities between the confirmation of charges and confirmation of indictment before ad hoc tribunals.27 It is important to note that Rule 47(b) of the Rules of Procedure and Evidence (‘Rules’) of the ad hoc tribunals establishes that the Prosecutor may submit an indictment if he or she is satisfied that there is sufficient evidence providing ‘reasonable grounds for believing’ that a person has committed a crime falling within the jurisdiction of the tribunals.28 The same standard is applicable for establishing the existence of a prima facie case in order to confirm an indictment under 19(1) and 18(1) of the Statutes of the ICTY and the ICTR, respectively.29 The Prosecutor’s interpretation does not appear to be very persuasive. It is true that, while the ICC is not bound by the jurisprudence of the ICTY and ICTR, judges of the permanent tribunal have frequently referred to the practice of the ad hoc tribunals, namely in the area of substantive criminal law.30 However, the structural differences between the confirmation of indictment before the ICTY and ICTR, and the confirmation of charges before the ICC, preclude taking the ad hoc Statutes and Rules into account in order to interpret procedural rules under Article 61 of the Statute. Indeed, whereas the former is an ex parte procedure, which is conducted by one judge in the absence of the Defence,31 the latter is purposely established as a hearing, whereby the person charged has the right to be present and to contest the evidence before a Pre-trial Chamber composed of three judges.32 Such differences have recently been stressed by the Appeals Chamber in the Mbarushimana case, where the judges found the Prosecutor’s analogy inappropriate between the confirmation of charges hearing before the ICC, and the ICTY and ICTR procedures.33 Judges sitting in the Appeals Chamber refused to accept that the ICC was bound by the procedures of the ad hoc tribunals, which allow for a determination of whether cases can proceed without the evaluation of the

27 See Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-749, Prosecution’s Document Addressing Matters that were Discussed at the Confirmation Hearing, Pre-trial Chamber I, 4 December 2006, para 11. 28 Rule 47(b) of the ICTY and ICTR Rules of Procedures and Evidence. 29 See Gauthier de Beco, ‘The Confirmation of Charges before the International Criminal Court: Evaluation and First Application’ (2007) 7 International Criminal Law Review 469. 30 Gilbert Bitti, ‘Article 21 of the Statute of the International Criminal Court and the Treatment of Sources of Law in the Jurisprudence of the ICC’ in Stahn, Carsten and Sluiter, Goran (eds), The Emerging Practice of the International Criminal Court, 2009, The Hague: Martinus Nijhoff. 31 Article 19 of the ICTY Statute and Article 18 of the ICTR Statute. See also Rule 47(b) of the ICTY and ICTR Rules of Procedure and Evidence. 32 ICC Statute, Article 61(6). 33 Prosecutor v Callixte Mbarushimana, ICC-01/04-01/10-514, Judgment on the appeal of the Prosecutor against the decision of Pre-trial Chamber I of 16 December 2011 entitled Decision on the confirmation of charges, Appeals Chamber, 30 May 2012, para 43 (‘Mbarushimana Appeal Judgment’). For a description of this judgment, see Triestino Mariniello, ‘International Criminal Court: Selected Developments in 2012’ (2013) 2(2) International Human Rights Law Review 344, 351–353.

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credibility of evidence,34 whereas – at the confirmation of charges – the Pre-trial Chambers have the ability to assess the contested evidence and resolve ambiguities, contradictions, inconsistencies or doubts as to credibility introduced by the contestation of the evidence.35 In addition, ad hoc tribunals provide different evidentiary standards with respect to the confirmation of indictment. Indeed, the confirmation of charges requires a higher evidentiary threshold of ‘substantial grounds’ in place of the lower standard of ‘reasonable grounds’ for the purposes of confirming the indictment that exists at the ICTY and ICTR. Rather than having similarities with the confirmation of charges, the relevant test for the confirmation of indictment before the ICTY and ICTR presents similarities with the ‘reasonable grounds to believe’ standard in the meaning of Article 58(1)(a) of the Rome Statute.36 This provision concerning the issuance of an arrest warrant before the ICC requires a lower standard than the confirmation of charges.37 Thus, the test pursuant to Article 61(7) falls between the thresholds of ‘reasonable grounds to believe’, regarding the issuance of a warrant of arrest, and ‘beyond a reasonable doubt’, required by Article 66(3) for the conviction.38 Such evidence submitted to the Chamber must be analysed and assessed as a whole.39 Judges sitting in Pre-trial Chambers do not have the mandate to convince the Trial Chamber that the accused is guilty ‘beyond a reasonable doubt’ as required by Article 66(3). Nor do they have to anticipate whether the Trial Chamber will enter a conviction or an acquittal on all or part of the charges. Rather, the mandate of the pre-trial judges is to assess, at the moment they hear the case, whether there is sufficient evidence to establish substantial grounds to believe that the suspect committed each of the crimes charged and, accordingly, whether it is justified to start a trial and to hear the entirety of the evidence available, including (eventually) the live testimony of all witnesses. In concrete terms, however, the decision to confirm the charges and commit a suspect for trial has a number of implications that, technically, the pre-trial judges should not take into consideration in their legal assessment of the evidence, but that may nonetheless play an indirect and decisive role in their evaluation. These are, for example, the possibility that the accused will be kept in detention for several years while awaiting a judgment (should the grounds for detention remain), the need to put in place a series of protective measures for the witnesses and to call them live for testimony, the likely participation of a considerable number of victims in the proceedings given the widespread nature of the crimes usually charged before the ICC and, last but not least, the judicial and financial resources normally required by an international criminal trial.

34 35 36 37 38 39

Mbarushimana Appeal Judgment (n 33), para 43. Mbarushimana Appeal Judgment (n 33), para 40. Mbarushimana Appeal Judgment (n 33), para 43. Mbarushimana Appeal Judgment (n 33), para 43. Ruto, Kosgey and Arap Sang Confirmation of Charges (n 11), para 40. Lubanga Confirmation of Charges (n 24), para 38.

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From Lubanga to the Kenyan cases: The ‘traditional’ approach to the confirmation of charges The role of the proceedings leading to the confirmation of charges hearing and the impact of the confirmation decision on the conduct of the trial has become so preponderant in recent years to the extent that its original purpose is now in question. The established jurisprudence of the Court has consistently insisted on the importance of the role of the pre-trial judges in ensuring judicial economy when filtering between cases that are meritorious of being heard at trial and cases that are not. This function has been framed in the context of the limited purpose of the confirmation of charges hearing as opposed to trial proceedings. This is reflected in the different evidentiary thresholds applicable to these two stages. In exercising their mandate, various Pre-trial Chambers have explained their role with regard to the evaluation of the evidence presented by the Prosecutor to support the charges against the suspects. Pre-trial Chamber II stressed that it is ‘not the amount of Disclosed Evidence but its probative value [that] will prove essential and decisive for the Chamber when taking a decision [on the confirmation of charges]’.40 Pre-trial Chamber II acknowledged that: this approach enables the Chamber to make its determination pursuant to article 61(7) of the Statute even if the evidence as a whole relating to one charge lacks direct evidence, and is only supported by pieces of indirect evidence, provided that their probative value allows the Chamber to determine that the threshold established in that article is met.41 In the case of the Prosecutor v Adballah Banda and Saleh Jerbo (Banda and Jerbo case), Pre-trial Chamber I held that ‘the Prosecutor is not required to tender into the record of the case more evidence than is, in his view, necessary to convince the Chamber that the charges should be confirmed’.42 When referring to the possibility for the Prosecutor to use, under Article 61(5), summary evidence, Pre-trial Chamber I unequivocally stated that ‘the use of summary evidence is expressly allowed by the legal instruments of the Court and, accordingly, the prosecutor should not be unduly prejudiced as a result of using such evidence’.43 As clarified by the Appeals Chamber in Mbarushimana, the Prosecutor ‘need not submit more evidence than is necessary to meet the threshold of substantial grounds to believe’.44 Thus, so far, Pre-trial Chambers have simply confined themselves to evaluating the dossier of the case brought by the Prosecutor on the basis of the evidence

40 Bemba Confirmation of Charges (n 25), para 60. 41 Bemba Confirmation of Charges (n 25), para 54. 42 Prosecutor v Abdallah Banda and Saleh Jerbo, ICC-02/05-03/09-121-Corr-Red, Corrigendum of the ‘Decision on the Confirmation of Charges’, Pre-trial Chamber I, 8 March 2011, para 40. 43 Decision on the Confirmation of Charges (n 42), para 41. 44 Mbarushimana Appeal Judgment (n 33), para 47.

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submitted, without assessing whether the case was sufficiently investigated by the Prosecutor. The conduct of the investigation by the Prosecutor prior to the presentation of the case at the confirmation of charges hearing has been the object of findings of some Pre-trial Chambers. Judges have addressed the issues as to whether the screening role of the Pre-trial Chamber encompasses the power to assess the manner in which the Prosecutor conducted the investigation leading to the presentation of the case at the confirmation hearing. This assessment has resulted in the pre-trial judges being able to evaluate the product of the Prosecutor’s investigation – that is, the evidence – but not the conduct of the investigation itself. As underlined by Pre-trial Chamber II, ‘the scope of determination under article 61(7) of the Statute relates to the assessment of the evidence available and not the manner in which the Prosecutor conducted his investigations’.45 This is consistent with the view expressed by Pre-trial Chamber I, according to which: [A]t this stage of the proceedings . . . the manner in which the investigations were conducted can only be viewed in the context of the purpose of the confirmation hearing . . . It follows, therefore, that the Defence’s objection raised in this instance cannot in itself cause the Chamber to decline to confirm the charges on the basis of an alleged investigative failure on the part of the Prosecution. Rather, this objection may have an impact on the Chamber’s assessment of whether the Prosecutor’s evidence as a whole has met the ‘substantial grounds to believe’ threshold.46

Towards the levelling between pre-trial and trial proceedings: The Gbagbo approach A radical departure from the consolidated view of the object and purpose of the confirmation of charges occurred in the latest decision taken pursuant to Article 61(7) of the Statute by Pre-trial Chamber I in the Gbagbo case. Notably, Pre-trial Chamber I left the interpretation of the evidentiary threshold of ‘substantial grounds to believe’ virtually untouched.47 However, inferred from this provision is the Prosecutor’s alleged obligation to present the strongest possible case at the confirmation hearing, based on a largely completed investigation. The Pretrial Chamber I, thereby, arguably vested itself with the power to revise the manner in which the Prosecutor conducted the investigation in that case. The Majority of Pre-trial Chamber I, Presiding Judge Fernández dissenting, found that the evidence presented by the Prosecutor, viewed as a whole, ‘although

45 Ruto, Kosgey and Arap Sang Confirmation of Charges (n 11), para 51. 46 Ruto, Kosgey and Arap Sang Confirmation of Charges (n 11), paras 51–52. 47 See Prosecutor v Laurent Gbagbo, ICC-02/11-01/11-432, Decision adjourning the hearing on the confirmation of charges pursuant to Article 61(7)(c)(i) of the Rome Statute (‘Adjournment Decision’), Pre-trial Chamber I, 03 June 2013, paras 16–18.

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apparently insufficient, does not appear to be so lacking in relevance and probative value that it leaves the Chamber with no choice but to decline to confirm the charges under article 61(7)(b) of the Statute’.48 As a consequence, the Majority decided to adjourn the confirmation hearing pursuant to paragraph 61(7)(c)(i) of the Statute and request the Prosecutor to consider the possibility of conducting a more in-depth investigation or providing additional evidence with respect to specific issues.49 The approach taken by the Majority of Pre-trial Chamber I with regard to the evidence presented by the Prosecutor is of paramount interest. While acknowledging that Article 61(5) of the Statute only requires the Prosecutor to support each charge with ‘sufficient’ evidence, the Majority stated that ‘the Chamber must assume that the Prosecutor has presented her strongest possible case based on a largely completed investigation’.50 In the view of the Majority, this assumption reflects the need to ensure continuity in the presentation of the case and safeguards the rights of the Defence, ‘which should not be presented with a wholly different case at trial’.51 In addition, it ensures a rapid commencement of the trial, should the charges be confirmed, consistent with the right of the accused to be tried without undue delay, as enshrined in Article 67(1)(c) of the Statute.52 Elsewhere in the Adjournment Decision, the Majority of Pre-trial Chamber I underlined that the Prosecutor, when trying to meet the required evidentiary threshold for the contextual elements of crimes against humanity, chose to rely essentially on anonymous hearsay from reports prepared by NGOs, UN reports and press articles.53 The Chamber stressed that it was unable to attach much probative value to this material and, interestingly, pointed out that past jurisprudence of Pre-trial Chambers may have been forgiving in this respect, thus leading the Prosecutor not ‘to present all her evidence or largely complete her investigation’.54 The decision was subject to appeal by the Prosecutor and the Appeals Chamber rendered its Judgment on 16 December 2013, dismissing the appeal and confirming the findings of the Majority of Pre-trial Chamber I.55 Following the Appeals Chamber ruling, the Prosecutor filed a new Document Containing the Charges in accordance with Rule 121(3) of the Rules, together with a list of

48 49 50 51

52 53 54 55

Adjournment Decision (n 47), para 15. Adjournment Decision (n 47), para 44. Adjournment Decision (n 47), para 25. Adjournment Decision, para 25. See also Prosecutor v Uhuru Muigai Kenyatta, ICC-01/09-02/11-728, Decision on defence application pursuant to Article 64(4) and related requests, Trial Chamber V, 26 April 2013, paras 118–123. Adjournment Decision (n 47), para 25. Adjournment Decision (n 47), para 35. Adjournment Decision (n 47), para 37. Prosecutor v Laurent Gbagbo, ICC-02/11-01/11-572, Judgment on the appeal of the Prosecutor against the decision of Pre-trial Chamber I of 3 June 2013 entitled ‘Decision adjourning the hearing on the confirmation of charges pursuant to article 61(7)(c)(i) of the Rome Statute’, Appeals Chamber, 16 December 2013.

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evidence that she intends to rely on in support of the charges brought against the suspect. The Defence and the victims participating in the proceedings were given fixed time limits within which to respond. On the basis of all this material, the Chamber must issue a new decision pursuant to Article 61(7) of the Statute. The Adjournment Decision in the Gbagbo case triggers a number of important considerations on the structure of the proceedings before the ICC, in light of the respective rules that govern them.

An appraisal of the reasons behind the paradigm shift in the Gbabgo case The Gbagbo Chamber adopted a rather strict approach with respect to the application of the standard of proof under Article 61(7) of the Statute to the evidence presented by the Prosecutor at the confirmation hearing. This resulted, more generally, in questioning the nature and purpose of the confirmation of charges stage. In comparison with other cases before the Court, Pre-trial Chamber I has addressed the evidence not simply from the point of view of its probative value and the contribution that it makes to prove a given element of the crimes, but also through an evaluation of the conduct of the investigation leading to the evidence as its ultimate product. It is thus necessary to consider the procedural obstacles related to the conduct of the investigation that other cases, especially at the trial level, have encountered in the first ten years of activity of the Court. These obstacles may have had an indirect role in Pre-trial Chamber I’s decision to require the Prosecutor to present a very consolidated and well-structured case at the confirmation hearing. In the case of the Prosecutor v Thomas Lubanga (Lubanga case), the first issues concerning the conduct of the investigation carried out by the Prosecutor arose, in particular, with regard to the controversial use of intermediaries as investigators by proxy for the OTP. The question of the reliability and credibility of such intermediaries became a contentious issue at the outset of the trial, when the first child soldier witness recanted his evidence, and claimed that an intermediary had instructed him to lie.56 Trial Chamber I devoted a considerable part of the Judgment to the conduct of the investigation by the Prosecutor, including its impact on the conduct of the trial and on the evaluation of the evidence.57 The Trial Chamber criticized the Prosecutor’s approach of delegating its investigative responsibilities to intermediaries who contacted a series of unreliable witnesses.58 This had a negative impact on the expeditiousness of the proceedings. Indeed, due to the lack of a proper supervision of the main (three) intermediaries, the Trial Chamber was engaged in a lengthy assessment of the ‘inaccurate or dishonest’

56 Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-2434-Red2, Redacted Decision on Intermediaries, Trial Chamber I, 31 May 2010. 57 Lubanga Judgment (n 22), paras 178–477. 58 Lubanga Judgment (n 22), para 482.

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evidence submitted by a large number of individuals. According to the Trial Chamber, ‘the prosecution’s negligence in failing to verify and scrutinise this material sufficiently before it was introduced led to significant expenditure on the part of the Court’.59 On 18 December 2012, Trial Chamber II acquitted Mathieu Ngudjolo of seven counts of war crimes and three counts of crimes against humanity.60 The case essentially collapsed because the Prosecutor did not prove beyond reasonable doubt that Mr Ngudjolo was the lead commander of the Lendu combatants from Bedu-Ezekere at the time of the Bogoro attack, as charged by the OTP.61 This made the establishment of the individual criminal responsibility of Mr Ngudjolo under Article 25(3)(a) of the Statute impossible. Interestingly for the present discussion, Trial Chamber II delved into the shortcomings of the Prosecutor’s investigation, discussing the desirability of an improved understanding of the territory where crimes were allegedly committed, and addressing the appropriateness of calling more commanders as witnesses to testify. Essentially, the Prosecution relied almost entirely on the evidence of three key witnesses to prove a series of elements of the case, most notably the alleged position of authority of the accused. The Chamber’s findings that these witnesses were not credible resulted in Mr Ngudjolo’s acquittal.62 The path recently followed by the two cases arising out of the situation in the Republic of Kenya is not any more promising. Here, six suspects in two distinct cases were originally summoned to appear before Pre-trial Chamber II on 8 March 2011.63 The charges against four of them were confirmed on 23 January 2012, less than 10 months later.64 However, the trial against William Ruto and Joshua Sang did not commence until 10 September 2013, nearly 20 months after the confirmation of charges. The date of Uhuru Kenyatta’s trial is still a matter of discussion between the parties and the Chamber.65 It is noteworthy that both

59 Lubanga Judgment (n 22), para 482. 60 Prosecutor v Mathieu Chui Ngudjolo, ICC-01/04-02/12-3, Jugement rendu en application de l’article 74 du Statut, Trial Chamber II, 18 December 2012. 61 Prosecutor v Mathieu Chui Ngudjolo, Jugement rendu en application de l’article 74 du Statut, Trial Chamber II, para 503. 62 Prosecutor v Mathieu Chui Ngudjolo, Jugement rendu en application de l’article 74 du Statut, Trial Chamber II (n 61), para 503. See in particular the findings of the Trial Chamber II in paras 157–159, 189–190 and 218–219 of the Judgment. 63 Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01/0902/11-01, Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, Pre-trial Chamber II, 8 March 2011; and Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC-01/0901/11-01, Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Pre-trial Chamber II, 8 March 2011. 64 Ruto, Kosgey and Arap Sang, Confirmation of Charges (n 11); and Muthaura, Kenyatta and Hussein Ali Confirmation of Charges (n 10). 65 Prosecutor v Uhuru Muigai Kenyatta, ICC-01/09-02/11-893, Scheduling order and agenda for status conference of 5 February 2014, Trial Chamber V(B), 3 February 2014, para 1.

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cases suffered from several postponements, the withdrawal of the charges against Mr Muthaura, and other procedural obstacles, mostly related to the Prosecution’s need to conduct further investigation after the confirmation of charges phase, as well as its failure to disclose the evidence in a timely manner and in accordance with the statutory obligations.66 On the basis of the shortcomings and weaknesses in the Prosecutor’s investigation as found by different chambers of the Court, the Gbagbo Adjournment Decision sounds an alarm bell. In a way, the Prosecutor’s supposed obligation, as inferred by the Majority of Pre-trial Chamber I, to present all evidence in her possession at the confirmation stage based on a largely complete investigation, resembles an attempt by the bench to oversee the conduct of the investigation by the Prosecutor, in order to prevent scenarios already experienced in other cases at the trial stage.

Imposing a ‘largely complete investigation’ for the confirmation of charges: Light and shadow With the issuance of the Adjournment Decision in the Gbagbo case, the Court is facing one of the most significant divergences in its case law in years, especially because it touches upon a crucial phase of the proceedings. The traditional approach is characterized by a limited role of the Pre-trial Chambers as quick and efficient gatekeepers between cases that should go to trial and cases that should not advance to the trial stage. This implies that the Pre-trial Judges decide on the confirmation of charges as soon as possible after the suspect has made his or her first appearance before the bench. In other words, the case proceeds to trial as soon as it has a sufficiently defined structure from a factual and evidentiary point of view to meet the threshold of substantial grounds to believe and, accordingly, not to infringe upon the rights of the suspect.67 It is then the responsibility of the Prosecutor to investigate further and prepare the case for trial on the basis of the charges confirmed by the Pre-trial Chamber, without exceeding the facts and

66 Prosecutor v Uhuru Muigai Kenyatta, ICC-01/09-02/11-875, Notification of the removal of a witness from the Prosecution’s witness list and application for an adjournment of the provisional trial date, Office of the ICC Prosecutor, 20 December 2013. See also Prosecutor v Uhuru Muigai Kenyatta, ICC-01/09-02/11-728-Anx2, Concurring Opinion of Judge Christine Van den Wyngaert to the Decision on defence application pursuant to Article 64(4) and related requests, 26 April 2013. Judge Van den Wyngaert pointed to the failure of the Prosecutor to investigate properly the case pursuant to Article 54(1)(a) of the Statute prior to the confirmation of charges and that the ‘inordinate amount of totally new evidence’ disclosed to the accused at trial was an immediate consequence of this failure (para 5). 67 In favour of significantly expediting the proceedings leading to the confirmation of charges, especially by not requiring disclosure to the suspect of the entirety of the evidence collected by the Prosecutor, see War Crimes Research Office, The Confirmation of Charges Process at the International Criminal Court, Washington University College of Law, June 2008, 64 et seq. (www.wcl.american. edu/warcrimes/icc/documents/WCROReportonConfirmationofCharges.pdf).

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circumstances described in the charges, which represent the boundaries of the Prosecutor’s case, as established in Article 74(2) of the Statute. On the contrary, the Gbagbo approach tends to signal a significant shift in the balance of the case preparation into the domain of pre-trial proceedings. Accordingly, the Pre-trial Chamber should confirm the charges and commit the suspect for trial, should there be sufficient evidence to do so, only when the case is, in reality, at a rather advanced stage of preparation. This approach implies that: (i)

the investigations to gather the evidence, both incriminating and exculpatory, carried out by the Prosecutor are as complete as possible; (ii) the incriminating evidence collected is strong; and (iii) the confirmation of charges hearing is more complex than usual, given the amount of evidence that the parties will litigate, which may also induce the parties to call some witnesses to give live testimony. The expectation that the Prosecutor must present all her evidence at the confirmation of charges hearing, or her strongest case based on a largely complete investigation, appears to resemble more a desirable policy or practice that can, at best, be reasonably expected by an international prosecutor dealing with massive international crimes, rather than an obligation stemming from the ICC’s applicable law. This conclusion finds support primarily in the wording of the Appeals Chamber, which has addressed the matter more than once, yet always in nonbinding terms.68 In Mbarushimana, it was stated that, ‘the investigation should be largely completed at the stage of the confirmation of charges hearing. Most of the evidence should therefore be available, and it is up to the Prosecutor to submit this evidence to the Pre-trial Chamber’ (emphasis added).69 Previously, the Appeals Chamber held that ‘ideally, it would be desirable for the investigation to be complete by the time of the confirmation hearing’,70 specifying, however, that ‘this is not a requirement of the Statute’, and that the Prosecutor’s investigation ‘may be continued beyond the confirmation hearing’.71 In the same Judgment, the appeal judges recognized that ‘the threshold for the confirmation of charges . . . is lower than convictions . . . and may be satisfied before the end of the investigation’.72 From the above jurisprudence of the Appeals Chamber, it may be deduced

68 Prosecutor v Laurent Gbagbo, ICC-02/11-01/11-432-Anx-Corr, Dissenting Opinion of Judge Fernández, Pre-trial Chamber I, 6 June 2013, para 14 (‘Dissenting Opinion of Judge Fernández’). 69 Mbarushimana Appeal Judgment (n 33), para 44. 70 Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-568, Judgment on the Prosecutor’s appeal against the decision of Pre-trial Chamber I entitled ‘Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81 (2) and (4) of the Rules of Procedure and Evidence’, Appeals Chamber, 13 October 2006, para 54. 71 ‘Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81 (2) and (4) of the Rules of Procedure and Evidence’ (n 70), para 2. 72 ‘Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81 (2) and (4) of the Rules of Procedure and Evidence’ (n 70), para 56.

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that the Prosecutor does not have a legal obligation to present all her evidence at the confirmation of charges hearing, or that she put forth the strongest possible case based on a largely complete investigation. Yet, despite the approach in Gbagbo lacking an apparent legal foundation, strengthening the role of the confirmation of charges hearing and more generally of the pre-trial phase of a case might entail some advantages. Indeed, presenting the strongest possible case based on a largely complete investigation at the confirmation hearing should, in principle, contribute to the efficiency of the confirmation process and result in a shorter preparation phase after the charges are confirmed, before the formal commencement of the trial.73 As observed by one commentator, most of the time saved by preparing the case for trial would derive from an easier redactions and disclosure process, ‘as it may be expected that there are fewer differences between the Prosecutor’s case as presented at the confirmation hearing and at trial’.74 As a result, the Trial Chamber would not be inundated with a new amount of evidence for which the parties may request redactions to certain sensitive information before the start of the trial. Furthermore, the more advanced the case at the time of the confirmation hearing, the better the filtering function of the Pre-trial Chamber will be, as it will be better prepared to evaluate a more substantial amount of evidence and decide which cases are worthy of trial.75 Nevertheless, this is only an apparent advantage, given the delayed start of the trials before the ICC, and is rather intangible and difficult to measure in terms of judicial economy. Indeed, the Prosecutor is not prohibited, under the Statute and as confirmed by the Appeals Chamber, from conducting additional investigations after the charges are confirmed and before the trial begins. Notwithstanding the potential benefits of the Gbagbo approach, moving the balance of the pre-trial proceedings towards a ‘strongest possible case based on a largely complete investigation’ model would necessarily result in a number of undesirable consequences, which are outlined as follows. First, it would most likely result in a vast amount of evidence submitted to the Pre-trial Chamber. Hence, as a direct consequence, a more demanding process of evidentiary disclosure would be established, in the course of which the Chamber would have to authorize redactions of such evidence, as proposed by the Prosecutor, pursuant to Rule 81(2) and (4) of the Rules before disclosing said evidence to the Defence.76 This will, in turn, mean a longer overall confirmation of charges hearing for this evidence. Additionally, it will presumably entail a more complex decision under Article 61(7) of the Statute in order for the evidence to be evaluated and for the Chamber to decide whether there are substantial grounds to believe that the suspect has committed the crimes charged. In this

73 See Volker Nerlich, ‘The Confirmation of Charges Procedure at the International Criminal Court: Advance or Failure?’ (2012) 10(5) Journal of International Criminal Justice, 1339–1356, 1355. 74 Nerlich (n 73), 1355. 75 Nerlich (n 73), 1356. 76 Nerlich (n 73), 1352.

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regard, it should be emphasized that the suspect may be detained during the pretrial proceedings, if the grounds to deprive him or her of liberty still exist, as provided by Article 58(1)(b) of the Statute. Second, the presentation of an advanced case at the confirmation stage would have consequences for the evidence to be submitted in support of the charges, both from a qualitative and quantitative perspective. These consequences would ultimately lead to a distortion of the confirmation of charges hearing, contrary to the purpose of Article 61 of the Statute. In order to understand these implications, it should be recalled that one of the main differences between the legal architecture of the confirmation of charges hearing and the trial proceedings at the ICC is that the Statute and the RPE are more lenient with regard to the type and the quantity of evidence that can be presented by the Prosecutor at the confirmation hearing.77 Thus, the Prosecutor is free to present, at the confirmation hearing, certain types of evidence and, at the same time, to withhold others, without incurring any sanction for such decisions. More specifically, Article 61(5) of the Statute provides that the Prosecutor ‘may rely on documentary or summary evidence and need not call the witnesses expected to testify at the trial’.78 Furthermore, Article 61(5) and Rule 81(4) of the Rules have been interpreted as authorizing the non-disclosure of the identity of the witnesses whose statements the Prosecutor intends to submit in summary form.79 It follows that the quality of the evidence that the Prosecutor may present ‘to support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crimes charged’, as mandated by Article 61(5), is significantly lower than the evidence that is needed to prove that the accused is guilty beyond a reasonable doubt. This is not to say, however, that the Prosecutor will automatically obtain the confirmation of the charges by relying exclusively on documentary or summary evidence in support of her allegations. Nevertheless, it certainly indicates that this type of evidence may suffice in ‘offer[ing] concrete and tangible proof

77 See Nerlich, (n 73) 1343. For a discussion on the type of evidence that was used in the first confirmation hearing in the Lubanga case see Michela Miraglia, ‘Admissibility of Evidence, Standards of Proof, and Nature of the Decision in the ICC Confirmation of Charges in Lubanga’ (2008) 6(3) Journal of International Criminal Justice 489, 496–497 (‘Miraglia’). 78 ICC Statute, Article 61(5), second sentence. See also Prosecutor v Thomas Lubanga, ICC-01/ 04-01/06-774, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-trial Chamber I entitled ‘Second Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81’, Appeals Chamber, 14 December 2006, para 47. 79 The Appeals Chamber has stated that ‘[t]he presentation by the Prosecutor of summaries of witness statements and other documents at the confirmation hearing is permissible even if the identities of the relevant witnesses have not been disclosed to the defence prior to the hearing, provided that such summaries are used in a manner that is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial’. See Prosecutor v Thomas Lubanga, ICC-01/04-01/06773, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-trial Chamber I entitled ‘First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81’, Appeals Chamber, 14 December 2006, para 2.

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demonstrating a clear line of reasoning underpinning [the] specific allegations’80 so as to ‘thoroughly . . . satisfy [the Chamber] that the allegations are sufficiently strong to commit [the suspect] to trial’.81 After all, the rationale of Article 61(5) of the Statute is connected to the purpose of the confirmation of charges hearing in light of the established evidentiary threshold of substantial grounds to believe, namely to distinguish cases that are sufficiently strong to be sent to trial. The express authorization to rely on certain (more lenient) types of evidence to meet the substantial grounds to believe threshold seems also to find its foundation in the drafters’ minds at the Rome Conference, who considered Article 61(5) to be an appropriate solution to avoid the transformation of the confirmation hearing into a trial before the trial itself.82 Finally, this procedural structure also preserves the impartiality of the Trial Chamber seized of the case, because if the items of evidence relied on at the confirmation hearing were exactly or largely the same as those presented at trial, ‘the Pre-trial Chamber’s decision could influence the Trial Chamber thereby diminishing its “virginity” ’.83 A lengthy analysis of the probative value of the evidence presented by the Prosecutor as a result of a largely complete investigation would, therefore, fall short of findings that would be for the Trial Chamber to make instead of the Pre-trial chamber. Thus, a decision confirming the charges on the basis of nearly the same evidence presented at the trial stage finds little or no meaning, as it could appear as an anticipatory finding of the guilt of the suspect, even though, procedurally, the Pre-trial Chamber has no power to enter a conviction. As recalled by Judge Fernández in her Dissenting Opinion, the Preparatory Works (Travaux Préparatoires) to the Statute also seem to suggest that providing the Pre-trial Chamber (and, by implication, the Defence) with the entire case file of the Prosecutor was not considered to be an optimal solution, as it would have entailed unnecessary delays in the smooth conduct of the pre-trial proceedings ‘if the evidence collected in the case was excessive’.84 The evidence would be collected and disclosed at the pre-trial phase of the case only to be re-disclosed once again before the start of the trial, especially in instances where the Trial Chamber in the case has a different disclosure system. The litigation before

80 See Adjournment Decision (n 47), para 17, recalling the well-established jurisprudence on the interpretation of the substantial ground to believe threshold under article 61(7) of the Statute. See inter alia, Lubanga Confirmation of Charges (n 24), para 39; Katanga and Ngudjolo Confirmation of Charges (n 24), para 65; Abu Garda Confirmation of Charges (n 10), para 37; Mbarushimana Confirmation of Charges (n 11), para 40; Bemba Confirmation of Charges (n 25), para 29; Ruto, Kosgey and Arap Sang Confirmation of Charges (n 11), para 40. 81 Adjournment Decision (n 47), para 17; Lubanga Confirmation of Charges (n 24), para 39. 82 See Kuniji Shibahara, ‘Article 61: Confirmation of the charges before the trial’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court, 2008, Oxford: Hart, pp 783, 790. 83 Miraglia (n 77) 497. 84 See Report of the Preparatory Committee on the Establishment of an Intemational Criminal Court, vol I, para 232. See also Dissenting Opinion of Judge Fernández (n 68).

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the confirmation hearing and at the hearing itself would increase as a result of the more extensive investigations conducted by the Prosecutor and the subsequent disclosure of this evidence. This could potentially also multiply the number of interlocutory appeals lodged by the parties during the pre-trial stage of the case. In light of the foregoing considerations, what can be deemed as desirable or expected by the Prosecutor at the confirmation hearing is something antithetic to presenting all evidence or the strongest case based on a largely complete investigation. Rather, it would be suitable that the Prosecutor submit her case as soon as it is believed to be sufficiently supported by evidence, including the type of evidence expressly mentioned by Article 61(5) of the Statute, in order to meet the ‘substantial grounds to believe’ threshold. This approach seems also to comply with, and reconcile, different instances in the context of a criminal proceeding. On the one hand, the right of the victims to receive justice and to participate in the proceedings would be safeguarded and implemented within a reasonable time frame. On the other hand, insofar as there is sufficient evidence to satisfy the evidentiary threshold for a case to proceed to the trial phase, no prejudice to the rights of the Defence can occur, provided that the suspect has the opportunity to exercise his or her rights during the course of the pre-trial phase, as provided by Articles 61(6) and 67 of the Statute.

The decision on the confirmation of charges in search of its nature and purpose The traditional approach to the confirmation hearing and to its nature and purpose can be explained by referring to observations made by the different Pretrial Chambers in recent years. As clarified by a consolidated ICC jurisprudence, the starting assumption in these years has been that the confirmation hearing is neither a trial before the trial nor a mini-trial.85 Therefore, the confirmation hearing should not be a duplication of the trial, otherwise it would obviate the need to have a pre-trial stage of proceedings as provided for in the Statute. Thus, judges sitting in Pre-trial Chamber are not called to decide on whether the person is guilty beyond a reasonable doubt of the crimes allegedly committed. In other words, the Pre-trial Chamber does not have the authority to enter into a premature in-depth analysis of the guilt of the suspect or to evaluate whether the evidence is sufficient to sustain a future conviction at trial.86 By referring to the UN High Commission for Human Rights in the Lubanga case, Pre-trial Chamber I found that the confirmation of charges is limited to committing for trial only those suspects against whom sufficiently compelling

85 See, inter alia, Prosecutor v Katanga, ICC-01/04-01/07-412, Decision on the admissibility for the confirmation hearing of the transcripts of interview of deceased Witness 12, Pre-trial Chamber I, 18 April 2008, para 64. 86 Abu Garda Confirmation of Charges (n 11), para 40.

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charges going beyond mere theory or suspicion have been brought.87 Pre-trial Chambers have frequently highlighted that the confirmation hearing aims to protect the suspect ‘against wrongful prosecution and ensuring judicial economy by allowing to distinguish between cases that should go to trial from those that should not’.88 In this regard, it can be argued that the main purpose of the confirmation decision is to protect the rights of the Defence against wrongful and wholly unfounded charges by putting the Prosecutor’s work under early scrutiny. In order to achieve this objective, the confirmation hearing must ensure that ‘no case proceeds to trial without sufficient evidence to establish substantial grounds to believe that the person committed the crime or crimes with which he has been charged’.89 The Adjournment Decision in the Gbagbo case has changed this interpretation, opening the door to a completely new way of conducting the pre-trial stage and the confirmation hearing in particular. Both approaches to the confirmation of charges hearing have their own peculiar effects on the nature and purpose of the pre-trial stage of the proceedings before the ICC. The traditional approach interprets the confirmation hearing and its subsequent decision as a ‘ritual’ or ‘procedural’ decision, aiming at filtering the cases presented by the Prosecutor in such a manner so as to safeguard the right of the suspect against wrongful or frivolous prosecutions. It also preserves considerations of judicial economy, which justify the conduct of an entire trial only in cases of sufficiently well-founded allegations, bearing in mind the incompleteness of the investigations at the pre-trial stage of the proceedings. As the evidentiary threshold for confirming the charges and committing a suspect for trial is, by its very nature, lower than the standard of proof required to enter a conviction by a Trial Chamber, doubts concerning the facts as alleged by the Prosecutor against the defendant in light of the evidence presented will always remain at the end of the pre-trial phase, even when the charges are confirmed. The rationale of the traditional approach can thus be seen in assessing whether the allegations, as presented, are sufficiently strong so that resolving the natural contradictions of written evidence by calling witnesses to give live testimony would require a full trial. This interpretation reflects what can be referred to as the principle of non-superfluity of trial proceedings. According to this principle, the trial becomes the main forum in which the Trial Chamber, by way of fully testing the evidence in courtroom, ascertains the facts that were confirmed by the Pre-trial Chamber, which may not have been completely clarified due to the incompleteness of the investigation, the lower evidentiary threshold applicable at the pre-trial stage, and the different and more lenient type of evidence allowed at said stage. The Gbagbo approach certainly ensures a better safeguard of the rights of the suspect against wrongful or unfounded prosecutions, because the Pre-trial

87 Lubanga Confirmation of Charges (n 24), para 37. 88 Bemba Confirmation of Charges (n 25), para 28. 89 Katanga and Ngudjolo Confirmation of Charges (n 24), para 63.

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Chamber is called on to decide on the sufficiency of evidence to commit the person for trial on the basis of a largely complete investigation and, thus, on trialready evidence. However, this approach has the potential effect of transforming the confirmation decision from a ritual or procedural decision into a determination on the merits of the case and, therefore, oriented to a preliminary assessment of the guilt or innocence of the suspect. Accordingly, the confirmation of charges hearing would be grounded on an evaluation of the evidence collected by the parties in light of the likelihood of a conviction at trial, rather than on the nonsuperfluity of a trial, which would imply clearing up any contradiction encapsulated in the evidence. In this respect, it may also be noted that the procedural structure of trial proceedings before the ICC is closer to the adversarial system rather than the inquisitorial system. This means that the evidence is mainly elicited at trial by way of examination of the witnesses, whose written statements and other documentation have been used by the Pre-trial Chamber to confirm the charges against the suspect. Accordingly, the more conflated the investigation burden is for the Prosecutor at the confirmation hearing (thus making it closer to a miniature trial), the more likely the actual trial is to become a mere rubberstamping of the findings made by the Pre-Trial Chamber, or at least a superfluous re-discussion thereof.

An unsolved issue: The scope of the decision to adjourn the hearing The Majority of Pre-trial Chamber I, when adjourning the hearing pursuant to Article 61(7)(c)(i) of the Statute, requested that the Prosecutor ‘consider providing, to the extent possible, further evidence or conducting further investigation’ regarding a number of specific issues.90 It is of interest to analyze not just the reasons why Pre-trial Chamber I resorted to the mechanism provided for in Article 61(7)(c)(i) of the Statute, but in particular the modalities in which the Majority of the Chamber put this mechanism in place. The wording of this provision relates to providing further evidence or conducting further investigation ‘in respect of a particular charge’. It may be questioned whether the expression ‘in respect of a particular charge’ contemplates the possibility for the Pre-trial Chamber actually to list the precise issues in respect of which the further investigatory steps should be taken by the Prosecutor. In other words, this appears to be an instruction to the Prosecutor to undertake certain investigative activities as opposed to others, according to the issues that, in the view of the judges, must be investigated further and substantiated with evidence.91 This closely resembles the role of an investigative chamber, which is not contemplated by the Rome

90 Adjournment Decision (n 47), para 44. 91 See Adjournment Decision (n 47), para 44(6). As a matter of example, in respect of one of the incidents charges by the Prosecutor, the Majority of Pre-trial Chamber I requested ‘any forensic evidence indicating who fired the ammunitions and what their alleged target was’.

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Statute.92 It may be argued that, at best, the Pre-trial Chamber can, on the basis of the evidence presented at the confirmation hearing, find that one or more allegations underpinning the charges levied by the Prosecutor against the suspect merit further investigation. However, suggesting what investigative steps or what issues should be explored further (and how) by the Prosecutor could be said to undermine the independence of the OTP and prejudice the impartiality of the Pre-trial Chamber, which determines the confirmation of the charges. The clash with the independence of the Prosecutor is particularly striking, especially when seen from the vantage point of a Prosecutor’s liberty in terms of selection of the evidence at the confirmation hearing. Indeed, Article 61(5) of the Statute is designed to provide the Prosecutor with the options to call witnesses who offer live testimony at the confirmation hearing, to submit the witness statements taken from them or to otherwise submit summaries of their statement(s) in lieu of the whole statement.93 As a matter of prosecutorial policy, it is highly foreseeable that, at the pre-trial phase of a case, the Prosecutor will not opt to call any of her witnesses live, nor will she want at all to submit as evidence the material provided by some of the witnesses. In other words, the Prosecutor is likely to choose to rely on a given amount of evidence while preserving the rest (if any) for trial. This may be due to a number of reasons. First, calling a viva voce witness implies, for example, that in the event the charges are confirmed and the case proceeds to trial, the transcript of the testimony given at the confirmation of charges hearing will be taken into account by the Trial Chamber and the Defence will conduct its cross-examination based, inter alia, on the deposition that the witness provided before the Pre-trial Chamber, thereby potentially exposing the prosecution’s witness to contradictions and inconsistencies in his or her evidence. It is therefore generally in the interest of the Prosecutor not to call witnesses live at the pre-trial phase of the case. Second, the Prosecutor may not rely at all on some evidence, be it in the form of statements, sketches, maps or audio/video material provided by a given witness. One reason for this could be that additional protective measures may be required before safely disclosing his or her evidence to the Defence. Alternatively, the Prosecutor may wish to conduct further investigations regarding this specific witness and the related material, in order to verify his or her credibility and reliability, or to contact prospective potential witnesses who may be mentioned in such material. Third, as recalled above, calling live witnesses or relying on evidence with, in principle, a higher probative value is simply not required by the letter of Article 61(5) of the Statute, which allows the Prosecutor to submit only the evidence that she believes to be sufficient to meet the ‘substantial grounds to believe’ threshold for the charges to be confirmed.

92 See also Dissenting Opinion of Judge Fernández (n 68), para 51. 93 This scenario is particularly common in case the security situation of a witness remains volatile and does not warrant the disclosure to the defence of the entirety of the evidence provided by said person.

The confirmation of charges 239 Importantly, both the quality and the amount of evidence to be submitted for the purpose of the confirmation of charges hearing, and therefore to be disclosed to the Defence, are not directly proportional to the full exercise of the rights of the Defence. To put it differently, if the Prosecutor intends to rely on a relatively small amount of material at the confirmation hearing, for example, which consists only of indirect evidence, this is by itself not necessarily beneficial or prejudicial for the Defence. This is so upon the condition that the Prosecutor investigated incriminating and exonerating circumstances equally and, accordingly, communicated to the suspect the exculpatory material in her possession, as dictated by Article 54(1)(a) in combination with Article 67(2) of the Statute. In addition, should the Prosecutor consider that mainly documentary evidence is sufficient to support the charges brought against the suspect, this must be understood as a deliberate choice subject to the scrutiny of the evidence by the relevant Pre-trial Chamber.

Concluding remarks This study critically assessed the recent evolution of the ICC, which for the first time, in 2012, provided a stricter interpretation of the evidence that is required at the confirmation of charges stage. While the traditional approach is characterized by a limited role for the Pre-trial Chamber, the Gbagbo Decision tends to signal a significant shift in the balance of the case preparation into the domain of pre-trial proceedings. Indeed, by distorting the burden of the confirmation of charges hearing and overloading the pre-trial phase of a case, the Gbabgo approach appears to contradict what all Pre-trial Chambers had consistently stated previously, namely that the confirmation of charges hearing is not a mini-trial or a trial before the trial. While the departure exhibited in the Gbagbo case offers a series of plausible but hypothetical advantages and guarantees, it does not appear all that persuasive. The reasons for such criticism are four-pronged. First, in light of the normative framework provided by the Statute and Rules, the requirement that – for the purposes of the confirmation of charges – the Prosecutor must present all her evidence or her strongest case based on a largely complete investigation lacks any apparent legal basis. Second, a consequence of the Gbagbo approach would be a vast amount of evidence placed before Pre-trial Chamber. As a direct implication of the increased number of items collected, a heavier process of disclosure of evidence would be instituted, in the course of which the Chamber would have to authorize redactions of the evidence, as proposed by the Prosecutor, pursuant to Rule 81(2) and (4) of the Rules before disclosing it to the Defence. All of this would then necessarily result in a more complex confirmation hearing, in which the parties would most likely intend to litigate the charges at length, on the basis of the amount of evidence disclosed. Also, given the wider evidentiary record, the parties might opt for calling more live testimony by witnesses in order to prove or challenge the allegations made.

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Third, such an evolution arguably contrasts with Article 61(5) of the Statute. The express authorization to rely on certain (more lenient) types of evidence to meet the substantial grounds to believe seems also to find its foundation in the drafters’ minds at the Rome Conference, who viewed Article 61(5) as an appropriate solution to avoid the transformation of the confirmation hearing into a trial before the trial. Indeed, Article 61(5) was drafted in such a way so as to establish a limit on the amount of evidence presented before the Pre-trial Chamber. As this limitation could not be introduced by imposing an arbitrary amount of pages or items of evidence to be submitted at the confirmation hearing, it was simply suggested that a certain type of evidence would be sufficient, in principle, for a case to pass the scrutiny of the pre-trial judges and to proceed to trial. Fourth, the requirement that the items of evidence relied on at the confirmation hearing are exactly, or largely the same as those presented at trial, might entail the risk that the Pre-trial Chamber’s decision influences the conduct of the trial by the Trial Chamber, thereby diminishing its ‘virginity’. Indeed, the confirmation of charges hearing, which should primarily have a filtering function, would be transformed into an anticipation of the trial, and the decision under Article 61(7) of Statute would become a ‘miniature’ judgment so to speak, given that the evidentiary basis would be constituted by virtually the same amount of evidence that the Prosecutor would rely on at trial. The only differences between such a model of confirmation hearing and the proper trial would be that the confirmation proceedings would consist mostly of written and documentary evidence instead of being entirely based on oral evidence, and that no decision regarding the guilt or innocence of the suspect would be made at the confirmation stage. In conclusion, some questions arise as to the implementation of the Gbagbo approach in the practice of the case. How would a Pre-trial Chamber check, in the absence of an explicit legal foundation or a binding pronouncement by the Appeals Chamber, whether the Prosecutor complied with her obligation or expectation of presenting all her evidence or the best possible case based on a largely complete investigation? What standards, if any, would govern such an assessment? And what would be the procedural sanction to be imposed by the Chamber upon the Prosecutor for her failure to complete investigations at pre-trial stage? Declining to confirm the charges or adjourning the hearing may only be done based on the confirmation of charges hearing, and on whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged, as stated in Article 61(7) of the Statute.

Bibliography Bitti, Gilbert ‘Article 21 of the Statute of the International Criminal Court and the treatment of sources of law in the jurisprudence of the ICC’, in Carsten Stahn and Goran Sluiter (eds), The Emerging Practice of the International Criminal Court, 2009, The Hague: Martinus Nijhoff, p 281. de Beco, Gauthier, ‘The Confirmation of Charges before the International Criminal Court: Evaluation and First Application’ (2007) 7 International Criminal Law Review 469.

The confirmation of charges 241 Mariniello, Triestino, ‘Prosecutor v. Thomas Lubanga Dyilo: The First Judgment of the International Criminal Court’s Trial Chamber’ (2012) 1(1) International Human Rights Law Review 137. Mariniello, Triestino, ‘International Criminal Court: Selected Developments in 2012’ (2013) 2(2) International Human Rights Law Review 344. Miraglia, Michela, ‘Admissibility of Evidence, Standards of Proof, and Nature of the Decision in the ICC Confirmation of Charges in Lubanga’ (2008) 6(3) Journal of International Criminal Justice 489. Nerlich, Volker, ‘The Confirmation of Charges Procedure at the International Criminal Court: Advance or Failure?’ (2012) 10(5) Journal of International Criminal Justice 1339. Schabas, William, The International Criminal Court: A Commentary on the Rome Statute, 2010, Oxford: Oxford University Press. Shibahara, Kuniji, ‘Article 61: Confirmation of the charges before the trial’, in Triffterer, Otto (ed.), Commentary on the Rome Statute of the International Criminal Court, 2008, Oxford: Hart, p 783.

11 From Lubanga to Ruto Witness proofing under the applicable law of the ICC Sarah Finnin1

Introduction While some national systems view the substantive preparation of a witness’s testimony (‘witness proofing’) as unethical or even unlawful, others view it as essential to the proper preparation of a case for trial. For example, American and Australian lawyers would be loath to put a witness on the stand who has not been properly proofed. On the other hand, lawyers from jurisdictions such as the United Kingdom and many civil law systems are very uncomfortable with the practice, which they view as akin to coaching. Prosecution and Defence teams before the ICTY and the ICTR (collectively ‘the Tribunals’) have engaged in witness proofing since the tribunals’ inception.2 It therefore came as somewhat of a surprise when, in October 2006, Pre-Trial Chamber I questioned whether the practice should be permitted at the ICC in Lubanga, the first case to reach the confirmation stage.3 Since then, there have been a number of decisions at the pre-trial and trial levels regarding both the permissibility of witness proofing under the applicable law of the ICC, and the very merits of the practice. Those decisions have revealed two distinct understandings of the procedural framework of the Court, and the extent to which the judges themselves can shape those procedures in order to fulfill the Court’s functions under the Statute.

1 The views expressed herein are those of the author alone and do not necessarily reflect the views of the ICTY or the UN in general. I am grateful to Matthew Cross and Bridget Dunne for their comments on an earlier draft of this chapter. 2 See e.g. International Criminal Tribunal for the former Yugoslavia, ICTY Manual on Developed Practices (2009) 83; Prosecutor v Limaj, IT-03-66-T, Decision on Defence Motion on Prosecution Practice of Proofing Witnesses, Trial Chamber II, 10 December 2004, 2 (‘Limaj Decision’). 3 The Prosecution announced to Pre-Trial Chamber I at a status conference in October 2006 that it intended to conduct proofing sessions with the only witness scheduled to testify at the confirmation hearing: Prosecutor v Lubanga, ICC-01/04-01/06, Transcript of Hearing, Pre-Trial Chamber I, 26 October 2006, 11. Pre-Trial Chamber I requested that the Prosecution not under taking any proofing session until the matter was ruled upon by the Chamber: Prosecutor v Lubanga, ICC-01/0401/06-679, Decision on the Practices of Witness Familiarisation and Witness Proofing, Pre-Trial Chamber I, 8 November 2006, para 2 (‘Lubanga Pre-Trial Decision’).

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In a landmark decision in November 2006, Pre-Trial Chamber I in Lubanga ruled that witness proofing was not ‘admissible’ under any of the applicable sources of law set out in Article 21(1) of the Statute.4 The Chamber therefore ordered the Prosecution not to undertake the practice of ‘witness proofing’. Relying on the decision of Pre-Trial Chamber I in Lubanga, the accused in the Milutinovic´ case before the ICTY and the Karemera case before the ICTR requested orders prohibiting the Prosecution at those Tribunals from proofing witnesses. The Trial Chamber in Milutinovic´ rejected the request, upholding witness proofing as a ‘permissible practice under the law of the Tribunal’, which ‘does not per se prejudice the rights of the Accused’.5 The Karemera Trial Chamber also rejected the request, finding that the practice was ‘consistent with the specificities of the proceedings before the ad hoc Tribunals’.6 The Karemera decision was later affirmed on appeal.7 After the Lubanga case was assigned to a Trial Chamber, the Prosecution sought to address the issue of witness proofing once again. In November 2007, Trial Chamber I unanimously upheld the decision of Pre-Trial Chamber I, confirming that the practice of witness proofing is not permitted by the applicable sources of law set out in Article 21.8 Three years later, Trial Chamber III issued a decision in the Bemba case wherein the majority rejected the Defence’s request for authorization to contact witnesses immediately prior to trial in order to prepare them for their testimony.9 The majority noted that the issue of preparing witnesses for trial had already been addressed unanimously by other Chambers of the ICC, and there were no compelling reasons to depart from that ‘uncontroversial jurisprudence’.10 Judge Ozaki appended a partly dissenting opinion, in which she opposed the ‘summary prohibition’ on the practice of witness proofing.11

4 Lubanga Pre-Trial Decision (n 3), paras 28–42. 5 Prosecutor v Milutinovi´c, IT-05-87-T, Decision on Odjanic´ Motion to Prohibit Witness Proofing, Trial Chamber III, 12 December 2006, para 22 (‘Milutinovi´c Decision’). 6 Prosecutor v Karemera, ICTR-98-44-T, Decision on Defence Motion to Prohibit Witness Proofing, Trial Chamber III, 15 December 2006, para 17 (‘Karemera Trial Decision’). 7 Prosecutor v Karemera, ICTR-98-44-AR73.8, Decision on Interlocutory Appeal Regarding Witness Proofing, Appeals Chamber, 11 May 2007 (‘Karemera Appeal Decision’). 8 Prosecutor v Lubanga, ICC-01/04-01/06-1049, Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, Trial Chamber I, 30 November 2007 (‘Lubanga Trial Decision’). 9 Prosecutor v Bemba, ICC-01/05-01/08-1016, Decision on the Unified Protocol on the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, Trial Chamber III, 18 November 2010, paras 31–35 (‘Bemba Decision’). 10 Bemba Decision (n 9), para 34. 11 Prosecutor v Bemba, ICC-01/05-01/08-1039, Partly Dissenting Opinion of Judge Kuniko Ozaki on the Decision on the Unified Protocol on the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, Trial Chamber III, 24 November 2010, para 2 (‘Bemba Dissenting Opinion of Judge Ozaki’).

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In late 2012, the Prosecution in the two Kenya cases—Ruto and Kenyatta— argued before Trial Chamber V that a modification of the practice adopted by other Trial Chambers of the Court was warranted in part by the ‘acute witness management challenges’ presented by those cases.12 The combination of those challenges and the fact that Judge Ozaki was the presiding judge of Trial Chamber V made those cases a suitable vehicle to challenge the approach taken by the Lubanga Chambers with respect to witness proofing. In January 2013, Trial Chamber V issued largely identical decisions on witness proofing in the two Kenya cases.13 The Chamber rejected the approach established in Lubanga, instead following that reasoning found in Judge Ozaki’s partly dissenting opinion in Bemba over two years earlier.14 The Chamber concluded that it was ‘neither practical nor reasonable’ to prohibit the practice, and therefore allowed the parties to engage in witness proofing (under strict conditions) in the Kenya cases.15 This ruling was made on the basis of Article 64(2) of the Rome Statute,16 which Trial Chamber V interpreted as conferring on the Chamber the flexibility to adopt whatever measures it considers will best achieve the aim of a fair and expeditious trial. This chapter examines the decisions in Lubanga and Ruto, which represent different approaches to the applicable sources of law governing the procedural regime of the ICC. The chapter begins with a brief discussion of the practice of witness proofing, and what it entails. It then examines the decisions in Lubanga and Ruto in more detail. The chapter concludes with an analysis of the two approaches to the procedural regime of the Court: one strict, and one permissive. The chapter compares these approaches, and commends the Ruto Chamber for its use of discretion with respect to trial management to develop an approach to witness proofing

12 Prosecutor v Ruto and Sang, ICC-01/09-01/11-446, Prosecution Motion Regarding the Scope of Witness Preparation, Trial Chamber V, 13 August 2012, paras 2, 17, 21 (‘Ruto Prosecution Motion’). Although interference with witnesses is not unique to the Kenya cases, it has been a particular concern in those cases. The Prosecution reported that multiple witnesses had reported being offered bribes not to cooperate with the Prosecution and/or threats if they did cooperate: para 17. 13 Prosecutor v Ruto and Sang, ICC-01/09-01/11-524, Decision on Witness Preparation, Trial Chamber V, 2 January 2013 (‘Ruto Decision’). See also Prosecutor v Muthaura and Kenyatta, ICC-01/09-02/11588, Decision on Witness Preparation, Trial Chamber V, 2 January 2013, paras 15–26, 42–46. Trial Chamber V preferred the term ‘witness preparation’ over ‘witness proofing’: Ruto Decision, para 4. 14 Judge Eboe-Osuji appended a partly dissenting opinion, in which he concurred with the outcome of the Chamber’s decision and its reasoning, but disagreed ‘as regards their general prohibition of “practicing” of testimonies’: Prosecutor v Ruto and Sang, ICC-01/09-01/11-524, Partly Dissenting Opinion of Judge Eboe-Osuji, Trial Chamber V, 2 January 2013, paras 1, 49–53, 56 (‘Ruto Partly Dissenting Opinion of Judge Eboe-Osuji’). 15 Ruto Decision (n 13), para 50. Annexed to the decision was a Witness Preparation Protocol setting out permissible and prohibited conduct. 16 Article 64(2) provides: ‘The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses.’

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which is unique to the ICC, and responsive to the particular characteristics of the case before it.

Defining witness proofing In Lubanga, Pre-Trial Chamber I made the distinction between witness familiarization and witness proofing.17 According to the Chamber, witness familiarization ‘consists basically of a series of arrangements to familiarize the witnesses with the layout of the Court, the sequence of events that is likely to take place when the witness is giving testimony, and the different responsibilities of the various participants at the hearing’.18 The primary purpose of these measures is to reduce any anxiety on the part of the witness, which can result from the unfamiliar environment presented by the courtroom and its procedures. The focus is therefore on the witness (specifically, preparing the witness for the ‘experience of giving evidence’), and does not involve discussions about ‘proposed or intended evidence’.19 The benefit of familiarizing a witness with the process of testifying is generally acknowledged. Indeed, Pre-Trial Chamber I viewed it as not only ‘admissible’ under the Statute and RPE, but ‘mandatory’.20 At the ICC, it is also generally accepted that the VWU, in consultation with the party proposing the witness, is the organ competent to carry out witness familiarization.21 Witness proofing, on the other hand, is more focused on the witness’s anticipated testimony and, depending on the jurisdiction, involves varying degrees of substantive preparation of that testimony. Broadly speaking, it refers to ‘a meeting between a witness and the party calling that witness, taking place shortly before the witness’s testimony, for the purpose of discussing matters relating to the witness’s testimony’.22 It gives the party calling the witness an opportunity to inform him or her of the purpose of the trial and to put the witness’s particular role into perspective. It may also involve: asking the witness to read his or her prior statement; asking the witness if the statement is accurate and complete; clarifying any points of confusion, ambiguity, or differences in recollection; showing the witness exhibits likely to be used during testimony and asking the witness to comment on them; and informing the witness of appropriate and effective witness behaviour.23

17 Lubanga Pre-Trial Decision (n 3), paras 13–17. 18 Lubanga Pre-Trial Decision (n 3), para 15. 19 Lubanga Pre-Trial Decision (n 3), para 19, quoting R v Momodou [2005] EWCA Crim 177 (England and Wales) (‘Momodou’). 20 Lubanga Pre-Trial Decision (n 3), paras 20–23. 21 Lubanga Pre-Trial Decision (n 3), paras 24–25, 27. 22 Ruto Decision (n 13), para 4. 23 See e.g. ‘Witness Preparation Protocol’, paras 15–26, annexed to Ruto Decision (n 13); ‘Prosecutor’s Policy and Procedures: “Proofing Witnesses”’, para 7, annexed to Prosecutor v Haradinaj, Balaj and Brahimaj, IT-04-84-T, Prosecution’s Written Submissions in Response Opposing Verbatim Recording of ‘Proofing’ Sessions with Witnesses, 28 March 2007.

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Engaging in these activities has a number of potential benefits and corresponding risks.24 Prior to reviewing them, it must be acknowledged up front that any analysis of the merits of witness proofing is inevitably coloured by one’s national background, field of expertise and practical experience. As noted in the introduction, lawyers from certain national systems regard witness proofing as essential, while lawyers from other national systems consider it unethical. Similarly, a prosecutor may view proofing very differently than a defence lawyer, and an academic far removed from the courtroom may have a different perspective than a practitioner who works with witnesses on a regular basis. In addition, the way in which one measures the risks and benefits of engaging in witness proofing will depend on how one prioritizes the (somewhat competing) objectives of the legal and procedural framework (establishing the truth, ensuring a fair trial, protecting the rights of victims, among others). Finally, analysis of the merits is often based on anecdotal rather than empirical evidence, and is therefore inherently subjective. With that caveat in mind, below is a brief summary of the potential benefits and corresponding risks of witness proofing. On the one hand, reading and discussing a witness’s prior statement may assist in the process of human recollection, by allowing the witness to refresh his or her memory about events that may have happened many years ago. In addition, proofing gives the lawyer calling the witness the opportunity to explain the scope of the witness’s testimony, and the manner in which it will be led. For example, not all portions of a witness’s statement may be relevant to the charges ultimately proceeding to hearing, and some areas may be inadmissible for a variety of reasons. The lawyer may therefore wish to inform the witness of the areas of his or her statement that will not be covered in court. With respect to the manner in which the evidence will be led, the lawyer may wish to inform the witness of the broad order in which the areas of his or her statement will be addressed, and whether any exhibits will be used. In this manner, witness proofing can result in a witness testifying in a more structured, complete and efficient manner. It also allows the Prosecution to make a determination as to whether the witness is still capable of giving relevant, reliable and credible evidence in the case. Where the

24 For a detailed discussion of the risks involved in witness proofing, see Wayne Jordash, ‘The Practice of “Witness Proofing” in International Criminal Tribunals: Why the International Criminal Court Should Prohibit the Practice’ (2009) 22(3) Leiden Journal of International Law 501; Kai Ambos, “‘Witness Proofing” before the International Criminal Court: A Reply to Karemaker, Taylor, and Pittman’ (2008) 21(4) Leiden Journal of International Law 911; Kai Ambos, “‘Witness Proofing” before the ICC: Neither Legally Admissible nor Necessary’ in Carsten Stahn and Göran Sluiter (eds), The Emerging Practice of the International Criminal Court (The Hague: Martinus Nijhoff, 2009) 599. For a discussion of the potential benefits of witness proofing, see Ruben Karemaker et al, ‘Witness Proofing in International Criminal Tribunals: A Critical Analysis of Widening Procedural Divergence’ (2008a) 21(3) Leiden Journal of International Law 683 (‘Karemaker – A Critical Analysis’); Ruben Karemaker et al, ‘Witness Proofing in International Criminal Trials: Response to Ambos’ (2008b) 21(4) Leiden Journal of International Law 917; War Crimes Research Office, ‘Witness Proofing at the International Criminal Court’ (International Criminal Court Legal Analysis and Education Project, July 2009) (‘War Crimes Research Office – Witness Proofing’).

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witness is no longer able to do so, precious court time is saved by an early decision not to call the witness. On the other hand, while proponents of proofing insist that such preparation does not constitute a ‘rehearsal’ of the witness’s testimony,25 the fear is that such activities may cross the line into coaching, tampering, contamination or manipulation of the evidence. This type of conduct is universally prohibited. However, even where conducted properly, there is a fear that witness proofing could distort a witness’s evidence, thereby proving detrimental to the goal of establishing the truth. As the Court of Appeal of England and Wales explained in Momodou, even an honest witness may alter the emphasis of his evidence once he learns through proofing the significance of his testimony to the case, and the weaknesses inherent in that testimony.26 While measures may be put in place to prevent or expose deliberate forms of witness coaching, this more subtle form of influence is particularly difficult to uncover (in part because a witness ‘may not appreciate the fact [that it has occurred] and may be reluctant to accept it’).27 One additional benefit is that proofing allows for identification and disclosure of any additional information revealed during a proofing session. While the identification of new evidence (whether incriminatory or exculpatory) is certainly not a primary goal of the proofing process, it is sometimes unavoidable. Proofing ensures that such information is identified in advance of the witness testifying, to ensure the parties are not taken by surprise. This is vastly preferable to additional information being discovered for the first time in court, which may result in lengthy adjournments to allow the parties to adjust their cases. However, there remains a risk that the Prosecution may use the proofing process as an effort to rectify substandard investigations or to supplement its case with additional evidence, thereby prejudicing the Defence.28 Proponents of witness proofing at the international level argue that the peculiarities of international criminal proceedings pose unique problems for witnesses, which may be addressed by proofing. For example, cases before international courts and tribunals involve a large number of particularly vulnerable witnesses, coming from a variety of cultural and linguistic backgrounds, who are not familiar with the courtroom setting, and the manner of questioning.29 These witnesses may have to give complicated and detailed evidence through an interpreter, which may cover both crime-base and linkage evidence, requiring review of a large number of exhibits in a range of formats.30 There is heightened pressure in these

25 26 27 28 29

See e.g. Milutinovic´ Decision (n 5), para 16; Karemera Trial Decision (n 6), paras 11, 12, 15. Momodou (n 19), para 61. Jordash (n 24) 515. Jordash (n 24) 509–510, 515–520. Bemba Dissenting Opinion of Judge Ozaki (n 11), para 21; Ruto Prosecution Motion (n 12), para 24; Limaj Decision (n 2) 3; Prosecutor v Sesay, SCSL-04-15-T, Decision on the Gbao and Sesay Joint Application for the Exclusion of the Testimony of Witness TFI-141, Trial Chamber I, 26 October 2005, para 33. 30 Bemba Dissenting Opinion of Judge Ozaki (n 11), para 22.

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cases, given the international setting (with international media looking on) and the high stakes for entire communities or even countries. In addition, the scope of evidence can be quite broad—covering long periods of time in a witness’s past. Finally, the crimes occurred many years ago, and witness interviews also took place months or years before trial.31 Sometimes statements are taken at a time when the precise nature of the case is not yet known, or by investigators without legal training or precise directions regarding the scope of evidence required. By the time the matter comes to trial, the focus of the prosecution may be quite different from the focus of the initial investigation. As a result, a witness’s statement may be largely irrelevant or incomplete, depending on the questions they were asked. Their evidence therefore needs to be reviewed in light of the precise charges that are ultimately going to trial.32 In such a context, a meeting between a witness and the lawyer calling him or her can go a long way towards reducing the stresses involved in testifying, and ensuring the witness’s testimony is focused and coherent. However, many of these factors (in particular the vulnerability of the witness, and the high stakes involved) also work to increase the risk that a witness’s testimony may be improperly influenced. Having introduced witness proofing, the next part of this chapter analyses how the Chambers in Lubanga and Ruto treated the practice.

Competing approaches in Lubanga and Ruto Lubanga pre-trial and trial decisions It is well accepted that Article 21(1) of the Statute establishes a hierarchy of applicable sources of law, with the Statute holding the highest position in that hierarchy.33 Together with the Elements of Crimes and the RPE, the Statute represents the ‘proper law’ of the Court.34 The ICC Appeals Chamber has

31 Bemba Dissenting Opinion of Judge Ozaki (n 11), para 21; Limaj Decision (n 2) 2. 32 Bemba Dissenting Opinion of Judge Ozaki (n 11) para 21; Karemera Trial Decision (n 6), para 17; Limaj Decision (n 2) 2. See also Prosecutor v Bagosora, ICTR-98-41-T, Decision on Admissibility of Witness DBQ, Trial Chamber I, 18 November 2003, para 29. 33 See e.g. Per Saland, ‘International Criminal Law Principles’, in Roy SK Lee (ed), The International Criminal Court: The Making of the Rome Statute, 1999, The Hague: Kluwer Law International, pp 180, 213; Gilbert Bitti, ‘Article 21 of the Statute of the International Criminal Court and the Treatment of Sources of Law in the Jurisprudence of the ICC’, in Carsten Stahn and Göran Sluiter (eds), The Emerging Practice of the International Criminal Court, 2009, The Hague: Martinus Nijhoff, pp 285, 287–8; William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford: Oxford University Press, 2010) 385; Alain Pellet, ‘Applicable Law’ in Antonio Cassese et al (eds), The Rome Statute of the International Criminal Court: A Commentary, vol 2 (Oxford: Oxford University Press, 2002) 1051, 1077–1078; Margaret McAuliffe de Guzman, ‘Article 21: Applicable Law’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn, 2008, Oxford: Beck/Hart, pp 702, 704. 34 Pellet (n 33) 1054.

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confirmed the application of the VCLT to the interpretation of the Statute,35 Articles 31 and 32 of which lay down the fundamental rules of treaty interpretation and reflect customary international law.36 The application of the subsidiary sources of law set out in Article 21(1)(b) (‘applicable treaties and the principles and rules of international law’)37 and Article 21(1)(c) (‘general principles of law derived by the Court from national laws of legal systems of the world’) is subject to there being a gap or ‘lacuna’ in the Statute that cannot be filled by the application of general principles of treaty interpretation.38 Pre-Trial Chamber I in Lubanga emphasized that the expression ‘proofing of a witness’ cannot be found in the Statute, the RPE or the Regulations of the Court.39 Furthermore, the Chamber also found that the ‘goals and measures encompassed’ in witness proofing ‘are not covered by any provision of the Statute, the Rules or the Regulations’.40 This represented the extent of the Chamber’s textual, contextual and teleological analysis of the provisions of the proper law with regard to witness proofing.41 Thus, having found a ‘lacuna’, the Chamber moved immediately to consider the applicable law under Article 21(1)(b) and (c) of the Statute. When the matter came before Trial Chamber I, the Prosecution submitted that the fact that the term ‘witness proofing’ is not mentioned in the Statute and RPE does not preclude the Chamber from approving the practice. It noted that the Statutes of the Tribunals do not provide for the practice, yet the Tribunals still permit witness proofing. The Prosecution advanced a ‘textual argument’ based on reading Article 54(3)(b) of the Statute (which gives the Prosecution the power to request the presence of and question witnesses) in conjunction with Article 70

35 See e.g. Situation in the Democratic Republic of the Congo, ICC-01/04-168, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, Appeals Chamber, 13 July 2006, para 33. See also Lubanga Pre-Trial Decision (n 3), para 8. 36 See Territorial Dispute (Libyan Arab Jamahiriya v Chad) (Judgment) (1994) ICJ Rep 6, 21–2; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Judgment) (1995) ICJ Rep 6, 18. See also Richard Gardiner, Treaty Interpretation (Oxford: Oxford University Press, 2010) 15–16. 37 Pellet (n 33) 1071; Volker Nerlich, ‘The Status of ICTY and ICTR Precedent in Proceedings before the ICC’ in Carsten Stahn and Göran Sluiter (eds), The Emerging Practice of the International Criminal Court, 2009, The Hague: Martinus Nijhoff, pp 305, 313. 38 The reference to ‘rules of international law’ in Article 21(1)(b) is generally understood as a reference to rules of customary international law. Pre-Trial Chamber I took this position in Prosecutor v Al Bashir, ICC-02/05-01/09-3, Decision on the Prosecutor’s Application for a Warrant of Arrest, Pre-Trial Chamber I, 4 March 2009, paras 44, 126. The Appeals Chamber of the Court also appears to adopt this position: see e.g. Prosecutor v Lubanga, ICC-01/04-01/06-772 OA4, Judgment on the Appeal of Mr Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006, Appeals Chamber, 14 December 2006, para 34. 39 Lubanga Pre-Trial Decision (n 3), para 11. 40 Lubanga Pre-Trial Decision (n 3), para 28. 41 See Sergey Vasiliev, ‘Proofing the Ban on “Witness Proofing”: Did the ICC Get it Right?’ (2009) 20 Criminal Law Forum 193, 220–221 (arguing that the Pre-Trial Chamber failed to engage with a contextual and ‘object and purpose’ based analysis of the proper law of the Court with a view to ascertaining whether a gap exists).

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(which gives the Court jurisdiction over offences against the administration of justice) to demonstrate that the substantive preparation of witnesses for trial is ‘envisaged by the Statute’.42 Trial Chamber I considered this argument to be ‘untenable’.43 It held that nothing in the text of Article 54(3)(b) supports the proposition that proofing directly prior to giving evidence is permitted. Further, the Chamber held that ‘the mere fact that Article 70 does not expressly list a court preparation session between a witness and a party as an offence against the administration of justice does not necessarily mean the practice is permissible’.44 Trial Chamber I therefore agreed with Pre-Trial Chamber I’s conclusion that the Statute and RPE do not expressly provide for or justify the practice of witness proofing.45 With respect to subsidiary sources of law, the Prosecution argued before Pre-Trial Chamber I that witness proofing is ‘a widely accepted practice in international criminal law’ and should therefore be considered as part of the applicable law of the Court under Article 21(1)(b).46 Of the cases referred to by the Prosecution, the Chamber considered that only the Limaj Decision ‘expressly authorised’ witness proofing.47 It seemed to adopt the Defence’s position that the prevalence of witness proofing at the Tribunals was more a result of the ‘geographical makeup and hierarchy’ of the Prosecution sections of those Tribunals, than evidence of a widely accepted practice.48 The Chamber therefore found that the Prosecution’s assertion that the practice was widely accepted was ‘unsupported’.49

42 43 44 45 46

Lubanga Trial Decision (n 8), para 36. Lubanga Trial Decision (n 8), para 36. Lubanga Trial Decision (n 8), para 36. Lubanga Trial Decision (n 8), para 36. See e.g. Lubanga Trial Decision (n 8), paras 4, 29. The Prosecution’s Information on the Proofing of a Witness remains confidential: Prosecutor v Lubanga, ICC-01/04-01/06-638-Conf, Prosecution’s Information on the Proofing of a Witness, Trial Chamber I, 1 November 2006 (‘Prosecution Information’). 47 Lubanga Pre-Trial Decision (n 3), paras 30–32. 48 Lubanga Pre-Trial Decision (n 3), para 34. The Lubanga Defence submitted before Pre-Trial Chamber I that ‘the Limaj decision . . . arose from the fact that the predominantly English defence counsel were contesting a practice utilized by the predominantly American Prosecution team’: Prosecutor v Lubanga, ICC-01/04-01/06-653-Conf, Defence Response to Prosecution Information on Witness Proofing, 3 November 2006, quoted in ibid, fn 40. The Chamber also quoted an article written by an ICTY OTP Senior Trial Lawyer who stated that ‘this particular national difference has never been fully resolved by the OTP. Different trial Attorneys use different methods to prepare witnesses for trial’: para 36, quoting Minna Schrag, ‘Lessons Learned from ICTY Experience’ (2004) 2(2) Journal of International Criminal Justice 427. 49 Lubanga Pre-Trial Decision (n 3), para 33. In the Karemera Trial Decision (n 6), the ICTR Trial Chamber expressed the view that the process by which Pre-Trial Chamber I in Lubanga came to its decision was ‘not based on a comprehensive knowledge of the established practice of the ad hoc Tribunals’ (para 8). The Chamber stated that both it and the ICTY ‘have consistently allowed the practice of pretestimony interviews with witnesses’ (para 9). It explained that while it had not been the subject of specific case law at the ICTR, ‘witness preparation has been recognized in the jurisprudence in relation to how the content of an interview with a witness is to be disclosed’ (para 11). After analysing the ICTY jurisprudence, the Karemera Trial Chamber concluded that ‘a practice of preparing witnesses before they testify has developed and has been sanctioned by both ad hoc Tribunals’ (para 15).

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Pre-Trial Chamber I further found that the Prosecution’s submission ‘that the practice of witness proofing . . . is a special feature of proceedings carried out before international adjudicatory bodies due to the particular character of the crimes over which such bodies have jurisdiction’ was also unsupported.50 The Prosecution had argued that proceedings before international courts ‘typically cover a long period of time and witnesses may be called upon to testify about multiple events that took place years prior to their respective testimonies’.51 The Chamber considered that the fact that national jurisdictions have had primary responsibility for the investigation and prosecution of such crimes (based on the principle of complementarity) since 1998 ‘has not brought about a change in the approach taken by national jurisdictions vis-à-vis the practice of witness proofing’.52 In its submissions before Trial Chamber I, the Prosecution maintained that witness proofing was a well-established practice before the Tribunals. It noted that subsequent Tribunal decisions had not followed the decision of Pre-Trial Chamber I, which confirmed the legitimacy of the practice. In contrast to Pre-Trial Chamber I’s decision, Trial Chamber I accepted that, ‘as has been established by recent jurisprudence witness proofing is being commonly utilized at the ad hoc Tribunals’.53 However, the Chamber found that ‘this precedent is in no sense binding on the Trial Chamber at this Court’.54 While not excluding reference to sources under Article 21(1)(b) with respect to all procedural issues, the Chamber did not consider ‘the procedural rules and jurisprudence of the ad hoc Tribunals to be automatically applicable to the ICC without detailed analysis’.55 It stated: The ICC Statute has, through important advances, created a procedural framework which differs markedly from the ad hoc tribunals, such as, for example, in the requirement in the Statute that the prosecution should investigate exculpatory as well as incriminatory evidence, for which the Statute and Rules of the ad hoc tribunals do not provide. Also, the Statute seemingly permits greater intervention by the Bench, as well as introducing the unique element of victim participation. Therefore, the Statute moves away from the procedural regime of the ad hoc tribunals, introducing additional and novel elements to aid the process of establishing the truth. Thus, the procedure of preparation of witnesses before trial is not easily transferable into the system of law created by the ICC Statute and Rules. Therefore, while acknowledging the importance of considering the practice and jurisprudence at the ad hoc tribunals, the Chamber is not persuaded that the application of ad hoc procedures, in the context of preparation of witnesses for trial, is appropriate.56

50 51 52 53 54 55 56

Lubanga Pre-Trial Decision (n 3), para 34. Prosecution Information (n 46), para 15, quoted in Lubanga Pre-Trial Decision (n 3), fn 38. Lubanga Pre-Trial Decision (n 3), fn 38. Lubanga Trial Decision (n 8), para 43. Lubanga Trial Decision (n 8), para 44. Lubanga Trial Decision (n 8), para 44. Lubanga Trial Decision (n 8), para 45.

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The Chamber turned next to Article 21(1)(c), which permits the ICC to have recourse to general principles of domestic criminal law. As Raimondo explains, international criminal courts and tribunals resort to general principles primarily because international criminal law and procedure is a relatively new branch of international law, is somewhat rudimentary, and has developed largely by importing domestic criminal law concepts into the international realm and applying them by analogy. Thus, he explains, international courts and tribunals turn to general principles of law in order to fill legal gaps, interpret imprecise legal rules and reinforce legal reasoning.57 According to Pellet, identifying general principles of law requires a ‘triple mental operation’: ‘a comparison between national systems, the search for common “principles”, and their transposition to the international sphere’.58 With respect to the scope of the enquiry, it is not necessary to examine each and every legal system in order to identify a general principle of law. Rather, general principles can be derived from the ‘principal legal systems of the world’.59 There does not seem to be any basis, however, for the Court to derive a general principle from a subset of those principal legal systems. In other words, Article 21(1)(c) does not permit the Court to examine only those legal systems with procedures that mirror its own (for example, those that favour oral testimony) in order to derive a general principle on witness proofing. Such a principle would not be a ‘general principle of law derived . . . from national laws of legal systems of the world’ under the terms of Article 21(1)(c). Nevertheless, particular domestic law approaches to procedure can still be of assistance when seeking to develop an approach under the Statute. If nothing else, they provide a selection of tried and tested options on which the Court can draw in order to develop its own approach which is tailored to its very specific needs. With respect to the treatment of witness proofing in domestic jurisdictions, Pre-Trial Chamber I in Lubanga noted that ‘the delimitation of what is lawful (or at least what is required as professional good practice), what is contrary to the professional code of ethics, and what could even constitute a criminal offence, greatly differs from jurisdiction to jurisdiction’.60 According to the Chamber, the difference in approaches ‘have nothing to do with their legal tradition’, citing in particular England as a common law country that does not

57 Fabián Raimondo, General Principles of Law in the Decisions of International Courts and Tribunals (The Hague: Martinus Nijhoff, 2008) 73–74. 58 Pellet (n 33) 1073. 59 Pellet (n 33) 1073–1074 (‘This implies that it is not necessary to make a systematic comparison of all national legal systems, but only to ensure, by “polling”, that the norms in question are effectively found in the “principal legal systems of the world”. These can probably be reduced to a small number in the contemporary world: the family of civil-law countries, the common law, and, perhaps, Islamic law.’); Raimondo (n 57) 54 (‘the survey [need] not necessarily encompass all the national legal systems belonging to each legal family, but . . . can be limited to some of them—the most representative ones’). 60 Lubanga Pre-Trial Decision (n 3), para 12.

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allow the practice.61 The Chamber therefore considered that permitting witness proofing at the ICC ‘would amount to authorising a practice which is currently unethical or unlawful in numerous national jurisdictions’.62 The Chamber concluded that witness proofing ‘is not embraced by any general principle of law that can be derived from national laws of the legal systems of the world’.63 Trial Chamber I similarly found that ‘the various terms and definitions used nationally, as well as the lack of any coherent jurisprudence, render it difficult to determine the extent to which witness proofing can be considered an established practice’.64 While the Chamber recognized the fact that witness proofing was permitted in some domestic jurisdictions, it did not consider that a general principle of law allowing witness proofing could be derived from national legal systems worldwide, as required by Article 21(1)(c) of the Statute.65 Having found no source of law that explicitly provides for the practice of witness proofing, both Pre-Trial Chamber I and Trial Chamber I prohibited the Prosecution from engaging in the practice. Ruto trial decision In the Ruto and Kenyatta cases, the Prosecution sought modification of the ‘Familiarisation Protocol’66 applied by Trial Chambers I, II and III in previous cases before the Court in order to enable the party calling a witness to meet with him or her prior to testifying. The purpose of the meeting was defined more narrowly than in previous Prosecution submissions, and moved away from anything resembling a rehearsal of the witness’s testimony.67 Following Judge Ozaki’s lead, the Prosecution submitted that Article 64 gives the Chamber broad discretion to adopt procedures to facilitate the fair and expeditious conduct of the proceedings.68 Other than a brief reference in a footnote in the Prosecution’s written submissions before the Lubanga Trial Chamber,69

61 62 63 64 65 66

Lubanga Pre-Trial Decision (n 3), para 37. Lubanga Pre-Trial Decision (n 3), para 41. Lubanga Pre-Trial Decision (n 3), para 42. Lubanga Trial Decision (n 8), para 39. Lubanga Trial Decision (n 8), para 41. This is a document prepared by the VWU setting out the procedures to be used for witness familiarization, which is filed with the Chamber by the Registry. See e.g. Prosecutor v Ruto, ICC-01/0901/11-704, Victims and Witnesses Unit’s Amended Protocol on the Practices Used to Familiarise Witnesses for Giving Testimony, 24 April 2013. 67 Compare Prosecution Information (n 46), para 16, quoted in Lubanga Pre-Trial Decision (n 3), para 17 (‘Relying on the witness statement, the Prosecution’s Trial Lawyer puts to the witness the questions he/she intends to ask the witness during the witness’ testimony, and in the order as anticipated’) with Ruto Prosecution Motion (n 12), para 5 (‘Review the topics to be covered in examination and the likely topics of cross-examination’). 68 Ruto Prosecution Motion (n 12), paras 4, 9–10. 69 Prosecutor v Lubanga, ICC-01/04-01/06-952, Prosecution’s Submissions Regarding the Subjects that Require Early Determination: Procedures to Be Adopted for Instructing Expert Witnesses, Witness Familiarization and Witness Proofing, Trial Chamber I, 12 September 2007, fn 34.

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Article 64 had not been seriously considered in the context of witness proofing prior to Judge Ozaki’s opinion in Bemba.70 While Trial Chamber V agreed with previous Chambers that the Statute is ‘silent’ on the issue of witness proofing,71 it nevertheless found that Article 64(2) and 3(a) provide ‘ample authority for the Chamber to adopt a case-specific approach to the issue of witness preparation’.72 Article 64(2) provides that the Trial Chamber ‘shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses’. Article 64(3)(a) authorizes the Trial Chamber to ‘[c]onfer with the parties and adopt such procedures as are necessary to facilitate the fair and expeditious conduct of the proceedings’. According to Trial Chamber V, Article 64 ‘grants the Chamber flexibility in managing trials’.73 In language that mirrored that of Judge Ozaki’s earlier opinion in Bemba,74 the Chamber found that Article 64’s formulation: . . . makes clear that the Statute is neither an exhaustive nor a rigid instrument, especially on purely procedural matters such as witness preparation, and that silence on a particular procedural issue does not necessarily imply that it is forbidden. Article 64 is formulated so as to give judges a significant degree of discretion concerning the procedures they adopt in this respect, as long as the rights of the accused are respected and due regard is given to the protection of witnesses and victims.75 The Chamber therefore agreed with the Prosecution submission that it is ‘instructive’ in this regard to compare the practice followed by the Tribunals, whose Statutes and Rules, the Chamber noted, are also silent on this issue.76 The Chamber referred to the approach taken by the Appeals Chamber in Karemera, which held that Rule 89(B) of the ICTR Rules of Procedure and Evidence ‘generally confers discretion on the Trial Chamber to apply “rules of evidence which will best favour a fair determination of the matter before it and are consonant with the

70 See e.g. Lubanga Trial Decision (n 8), para 5 (listing what it considered to be the ‘relevant provisions’ of the Statute, namely Articles 21, 43(6), 54, 68 and 70(1)). The War Crimes Research Office did, however, recommend in July 2009 that the Court revisit the issue of witness proofing, which it argued could be permitted under Article 64(3)(a), see War Crimes Research Office – Witness Proofing (n 24). 71 Ruto Decision (n 13), para 26. 72 Ruto Decision (n 13), para 29. 73 Ruto Decision (n 13), para 27. 74 Bemba Dissenting Opinion of Judge Ozaki (n 11), para 10. 75 Ruto Decision (n 13), para 27. 76 Ruto Decision (n 13), para 28. See also Ruto Prosecution Motion (n 12), para 11 (submitting that while the jurisprudence of the Tribunals is not binding on the court, ‘it is instructive to consider the experience and practice of other courts that try similar cases’); Bemba Dissenting Opinion of Judge Ozaki (n 11), para 11.

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spirit of the Statute and the general principles of law”’.77 While noting that the Tribunals’ jurisprudence is not binding on the ICC, and that different statutory provisions apply, the Chamber found their interpretation of silence as conferring flexibility to be ‘meaningful when evaluating the silence in this Court’s analogous statutory provisions’.78 The Chamber therefore concluded that there was a ‘legal basis . . . to rule on witness preparation’.79 Trial Chamber V did not specifically address the argument made in Lubanga that the ICC operates under a different procedural framework to the Tribunals. In Bemba, however, Judge Ozaki stated she was ‘not convinced’ by the reasoning of Trial Chamber I in Lubanga which stated that the particular procedural provisions cited by that Chamber ‘have the effect of rendering witness proofing inappropriate, thus justifying the total ban on witness proofing before the Court’.80 Judge Ozaki stated: The procedural framework of the Court is different and more hybrid in nature than those of the ad hoc Tribunals. However, it does not mean that each and every rule of procedure before this Court must be in a perfect compromise between different domestic legal systems. Regarding the specific rules on the presentation of evidence through witnesses at the trial stage, ICC proceedings are closer to the adversarial legal system than to the inquisitorial system. One of the most relevant features, for the purposes of the present Opinion, is the principle of primacy of oral evidence, which is enshrined in Article 69(2) of the Statute. Most witnesses are called by one of the parties, although the Chamber has the authority to request any evidence it considers necessary for the determination of the truth. Therefore, the in-court evidence is primarily constituted with the questioning by the parties, participants and the Chamber, of witnesses called by the parties, pursuant to Rule 140(2) of the Rules. Although this does not mean that parties have any property in the witnesses they have called, such a system, in my opinion, is different from the practice of many civil law jurisdictions, where witnesses have been thoroughly questioned by a judge (juge d’instruction) mandated to instruct the case, and where statements produced by such examination are automatically included in the case file, as highly probative evidence at the

77 Karemera Appeal Decision (n 7), para 8, quoted in Ruto Decision (n 13), para 28. See also Bemba Dissenting Opinion of Judge Ozaki (n 11), para 12. 78 Ruto Decision (n 13), para 29. See also Bemba Dissenting Opinion of Judge Ozaki (n 11), para 11. Judge Ozaki went further in Bemba, expressing the opinion that the drafters of the ICC Statute intended the judges of the Court to benefit from the same procedural flexibility as enjoyed by the ICTY and ICTR, demonstrated by the language of Article 64 of the Statute. Therefore, I believe that this provision is the proper legal basis to provide the Court with the necessary adaptability to create a system of its own. Bemba Dissenting Opinion of Judge Ozaki (n 11), para 12. 79 Ruto Decision (n 13), para 30. 80 Bemba Dissenting Opinion of Judge Ozaki (n 11), fn 28.

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Similarly, Trial Chamber V noted that Article 69(2) establishes the principle of primacy of oral evidence.82 It therefore appears that a similar view underpins the Ruto Decision. Having determined that Article 64 provides a legal basis for the Chamber to rule on whether witness proofing is permitted in the exercise of its discretion to ensure that the trial before it is fair and expeditious, Trial Chamber V moved to consider ‘whether the practice should be adopted’ in the Kenya cases, based on the ‘potential merits and risks’ of witness proofing.83 The Chamber’s approach to witness proofing highlighted the particularities of international criminal proceedings that pose unique problems for witnesses, and the management of trial proceedings more generally.84 The Chamber found that these particularities increase the likelihood that witnesses will give testimony that is ‘incomplete, confused or ill-structured’.85 A witness who testifies in such a manner because of lack of preparation ‘is of limited assistance to the Chamber’s truth-finding function’.86 In the view of the Chamber, proofing permits a witness to ‘re-engage with the facts underlying their testimony’, aiding in the process of human recollection, and ensuring that their testimony is ‘structured and clear’.87 It is for this reason, the Chamber stated, that witness preparation is either allowed or encouraged in jurisdictions (such as the Tribunals) ‘where the principle of the primacy of orality is followed and where trials heavily rely on the examination of live witnesses through questioning by the parties’.88 The Chamber was therefore of the view that the practice of witness proofing, provided it is properly conducted, would likely ‘enhance the efficiency, fairness and expeditiousness’ of the Kenya trials.89 The Chamber took the view that ‘proper witness preparation also enhances the protection and well-being of witnesses, including by helping to reduce their stress and anxiety about testifying’.90 Indeed, Judge Eboe-Osuji viewed this as the

81 82 83 84

85 86 87 88 89 90

Bemba Dissenting Opinion of Judge Ozaki (n 11), ibid, para 20. Ruto Decision (n 13), para 31. Ruto Decision (n 13), para 30. Ruto Decision (n 13), para 36. For a discussion of these particularities, see text accompanying above (n 29) and following. See also Ruto Partly Dissenting Opinion of Judge Eboe-Osuje (n 14), para 8; Karemera Trial Decision (n 7), paras 8, 17 (expressing the view that proofing ‘is justified by the particularities of these proceedings that differentiate them from national criminal proceedings’). Ruto Decision (n 13), para 36. Ruto Decision (n 13), para 31. Ruto Decision (n 13), para 32. Ruto Decision (n 13), ibid, para 35. Ruto Decision (n 13). See also Bemba Dissenting Opinion of Judge Ozaki (n 11), para 21. Ruto Decision (n 13), para 37. See also Ruto Partly Dissenting Opinion of Judge Eboe-Osuji (n 14), paras 6–12; Bemba Dissenting Opinion of Judge Ozaki (n 11), para 24.

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principal benefit of witness proofing.91 For Trial Chamber V, the meeting between counsel and the witness during witness familiarization sessions conducted by the VWU is not a sufficient measure to protect the well-being and dignity of witnesses.92 Both the Prosecution and the Chamber were particularly concerned about these factors in the context of the Kenya cases, as well as with the need to allay any fears witnesses may have, and to inquire as to whether they had been interfered with since their last contact with the calling party.93 The majority of the Chamber found that in the Kenya cases, ‘witness preparation is even more crucial as a means to protect the well-being of witnesses, considering the specific situation in Kenya’.94 It considered that witnesses from Kenya who had expressed strong concerns in connection with their testimony ‘are likely to benefit from such pretestimony meeting with the calling party’.95 Trial Chamber V was not blind to the potential risks of witness proofing. However, with respect to the risk that a witness’s evidence may be distorted or influenced, the Chamber was ‘not convinced that this risk is any higher immediately prior to testimony than during the investigation phase’.96 Similarly, Judge Ozaki noted that by the time a witness gets to court, ‘most witnesses have been interrogated by NGOs, relief agencies, governments, or investigators, etc, which may have the effect of contaminating their testimony’. Judge Ozaki was therefore not persuaded that lawyers, ‘when and if bound by proper guidelines and codes of conduct, are more “contaminating” than investigators’.97 Appropriate safeguards could ensure that, if conducted properly, witness proofing would not result in a witness tailoring their testimony.98 The Defence expressed concern that witness proofing would be used to ‘reinterview witnesses with the aim of improving the . . . case’.99 The Chamber emphasized that witness preparation is ‘not meant to function as a substitute for thorough investigations, nor as a way to justify late disclosure’.100 It is clear from this statement that witness proofing is not to be conducted for the purpose of eliciting new

91 Ruto Partly Dissenting Opinion of Judge Eboe-Osuji (n 14), para 9. 92 Ruto Decision (n 13), paras 31–35, 37. See also Bemba Dissenting Opinion of Judge Ozaki (n 11), para 24; Limaj Decision (n 2) 3. 93 Similarly, Judge Ozaki in Bemba considered that ‘any ruling on witness proofing should be made after a careful review of the circumstances prevailing in each case before the Court’. She considered that the Bemba Trial Chamber should have made its own assessment of the issue, based on the specific circumstances of the Bemba case: Bemba Dissenting Opinion of Judge Ozaki (n 11), paras 7, 29. 94 Ruto Decision (n 13), para 37. Judge Eboe-Osuji did not concur as to the reference to the ‘specific situation in Kenya’ as, in his view, ‘the Chamber ha[d] not yet made a specific inquiry in that regard for the purposes of that determination’. 95 Ruto Decision (n 13), para 37. 96 Ruto Decision (n 13), para 39. 97 Bemba Dissenting Opinion of Judge Ozaki (n 11), fn 33. 98 Ruto Decision (n 13), para 39. 99 Ruto Decision (n 13), para 38. 100 Ruto Decision (n 13), paras 41–42.

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information. Rather, its purpose is to ensure that the other party is kept informed of any differences in the witness’s recollection at the earliest possible moment to allow adequate preparation and to avoid or reduce the effect of surprise.101 Mindful of the risk that witness proofing ‘could become an improper rehearsal of in-court testimony which may negatively affect the reliability of the evidence adduced at trial’, the Chamber put in place a number of safeguards to control the scope and methods of witness proofing.102 Those safeguards include: cross-examination, and questioning by the Chamber itself, of the witness about the proofing process;103 clear guidelines establishing permissible and prohibited conduct;104 and video-recording of proofing sessions.105

A restrictive or permissive approach to the procedural regime of the ICC The approach of the Lubanga Chambers to interpreting the proper law of the Court was restrictive, in that it interpreted ‘the lack of explicit authorization of proofing . . . as the absence of a legal basis for the practice, requiring the imposition of [a] ban’.106 This methodology of interpretation fails to account for the fact that the procedural rules laid down by the drafters of the Statute and the ASP in the RPE could not possibly regulate every aspect of the Court’s operation. The Court will not always be able to respond to the absence of express authorization for a practice by ruling it ‘inadmissible’. The Court must be free to adopt procedures that allow it to fulfil its functions under the Statute, rather than resorting to amending the proper law of the Court. Furthermore, while the Statute and RPE regulate the procedural law of the Court more strictly than the statutes and rules of previous international tribunals, absolute statutory regulation of procedure was not the intention of the drafters. Due to what Kress describes as the ‘fundamental compromise formula’ underlying the procedural law of the ICC which has created ‘constructive ambiguity’ at a number of ‘strategically important points’, the Statute leaves the judges discretionary power to find the appropriate balance between the adversarial and inquisitorial

101 Karemaker et al argue, in contrast, that an advantage of proofing is that it ‘generates more evidence for trial: Karemaker – A Critical Analysis (n 24) 694. See also Jordash (n 24) 509, 516–518. 102 Ruto Decision (n 13), para 44. See also Bemba Dissenting Opinion of Judge Ozaki (n 11), para 25. 103 Ruto Decision (n 13), para 45. See also Ruto Partly Dissenting Opinion of Judge Eboe-Osuji (n 14), para 33; Karemera Appeal Decision (n 7), para 13 (‘through careful cross-examination, a party can explore the impact of preparation on the witness’s testimony and use this to call into question the witness’s credibility’). See further Karemaker – A Critical Analysis (n 24) 695–696; Jordash (n 24) 514–515. 104 Ruto Decision (n 13) para 46. These were included in the witness preparation protocol annexed to the Decision. See also Bemba Dissenting Opinion of Judge Ozaki (n 11), paras 26–27. 105 Ruto Decision (n 13), para 47. See also Bemba Dissenting Opinion of Judge Ozaki (n 11), paras 26–27. 106 Vasiliev (n 41) 228.

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elements of procedural law.107 It is therefore up to the judges to work within the Statute and the RPE to shape the procedural law of the Court in a manner that best achieves the goal of fair and expeditious trials. The Ruto Chamber took a more permissive approach to interpreting the proper law of the Court. It viewed silence in the proper law as conferring flexibility, not limitations. Instead of viewing the Statute as an instrument that was drafted in a vacuum, Trial Chamber V drew on the context prevailing at the time the Statute was adopted. That included the significant practical experience of the Tribunals in managing complex and lengthy international trials.108 While it is true that the ICC’s procedural regime does differ in some important respects from that of the Tribunals, there are perhaps more similarities than differences. Thus, if, over decades of trial and error, the Tribunals have developed an approach to the investigation and prosecution of international crimes, it would be strange for the ICC to ignore such hard-learned lessons. This is not to say that the ICC should not scrutinize such approaches to determine whether they are sound and whether it would be appropriate to apply them given the particular language of the proper law of the Court, and the broader object and purpose of the Statute. Where the Tribunals’ approaches are both sound and appropriate, there is no reason for the Court to disregard them. This appears to be how the Ruto Chamber treated the jurisprudence of the Tribunals. While not viewing their jurisprudence as an independent source of law pursuant to Article 21(1), the Chamber considered the experience of those Tribunals in the context of its interpretation of specific provisions of the Statute. It therefore allowed the experiences of those Tribunals to inform the procedural framework of the ICC. Nevertheless, the Chamber still recognized that the ICC is a unique institution that requires a unique procedural regime. This is to be commended, as it allows the Court to determine its own approach to individual procedural issues, drawing from the range of options available, whatever their source may be. Indeed, use has already been made of Article 64(2) in other

107 Claus Kress, ‘The Procedural Law of the International Criminal Court in Outline: Anatomy of a Unique Compromise’ (2003) 1(3) Journal of International Criminal Justice 603–606. As Kress explains, the language used in the procedural law of the ICC ‘takes neither of the pure forms of the adversarial or inquisitorial models of criminal procedure, nor does it reflect any particular existing hybrid of the two systems’. Instead, it offers ‘a unique compromise structure’ which is ‘not only new but also truly unique’. See also Robert Heinsch, ‘How to Achieve Fair and Expeditious Trial Proceedings before the ICC: Is it Time for a More Judge-Dominated Approach?’ in Carsten Stahn and Göran Sluiter (eds), The Emerging Practice of the International Criminal Court (The Hague: Martinus Nijhoff, 2009) 479, 497 (‘the Rome Statute offers the unique possibility to construct sui generis trial proceedings for the future’). 108 Nerlich argues that the jurisprudence of the Tribunals may be applied by the Court even if that jurisprudence cannot be considered to represent part of customary international law, and therefore ‘rules of international law’ under Article 21(1)(b). According to Nerlich, principles of treaty interpretation support an argument that the Tribunals form part of the ‘context’ in which the Court’s instruments are to be interpreted. Nerlich (n 37) 317–320. See also Vienna Convention on the Law of Treaties 1969, 1155 U.N.T.S. 331, Article 31(3)(c).

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contexts. Most recently, the Appeals Chamber noted that Article 64(2) accords the Trial Chamber a ‘measure of flexibility in the management of proceedings’, including the possibility of continuing a trial in the absence of the accused.109 Of course, there are limits to a Trial Chamber’s discretionary power to manage the proceedings under Article 64. Article 64(1) provides that the functions and powers of the Trial Chamber must be exercised ‘in accordance with this Statute and the Rules of Procedure and Evidence’. Thus, while the Trial Chamber has the flexibility to regulate its own procedure, it must still exercise its discretion within the framework of the Statute and the RPE and create a procedural framework that is consistent with the object and purpose of the Statute.110 However, unlike in the case of the presence of the accused, which was expressly regulated by Article 63(1), the Statute and the RPE do not deal directly with proofing of witnesses. Thus, provided witness proofing is consistent with the Statute and the RPE, the Chamber is free to exercise its discretionary power to manage the proceedings by permitting such a practice. An assessment of the consistency of proofing witnesses with the Statute and the RPE is obviously something on which opinions will differ. Much will also depend on the particular features of the case. A case-by-case approach to witness proofing appears to be permitted by the terms of Article 64(3)(a), which allows the Trial Chamber to ‘adopt such procedures as are necessary to facilitate the fair and expeditious conduct of the proceedings’. Article 64(3), which applies ‘[u]pon assignment of a case for trial’ and concerns the power of the Trial Chamber ‘assigned to deal with the case’, does not envisage decisions with universal application to all cases. It envisages procedures that address the peculiarities of the case before the Chamber. This does, however, raise concerns about consistency of procedures amongst the several Trial Chambers, and lack of predictability for the parties, as well as the VWU. Perhaps a degree of uncertainty and inconsistency amongst Trial Chambers is the unavoidable cost of the flexibility that is necessary for the effective management of trials. Over time, through its own process of trial and error, the ICC may reach some consensus as to the best approach in this area, allowing for greater

109 Prosecutor v Ruto and Sang, ICC-01/09-01/11-1066 OA5, Judgment on the Appeal of the Prosecutor against the Decision of Trial Chamber V(a) of 18 June 2013 entitled ‘Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial’, Appeals Chamber, 25 October 2013, para 50. See also Prosecutor v Lubanga, ICC-01/04-01/06 OA13, Judgment on the Appeal of the Prosecutor against the Decision of Trial Chamber I entitled ‘Decision on the Consequences of Non-Disclosure of Exculpatory Materials Covered by Article 54(3)(e) Agreements and the Application to Stay the Prosecution of the Accused’, together with Certain Other Issues Raised at the Status Conference on 10 June 2008, Appeals Chamber, 21 October 2008 (confirming the Trial Chamber’s decision to stay the proceedings in order to ensure a fair trial pursuant to Article 64(2)). 110 Reinhold Gallmetzer, ‘The Trial Chamber’s Discretionary Power to Devise the Proceedings before it and its Exercise in the Trial of Thomas Lubanga Dyilo’ in Carsten Stahn and Göran Sluiter (eds), The Emerging Practice of the International Criminal Court, 2009, The Hague: Martinus Nijhoff, p 501.

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consistency across trials. Until then, and given the lack of any appeal proceedings on foot with respect to this issue,111 the experiment with witness proofing in the Kenya cases will be watched with interest.

Bibliography Ambos, Kai, “‘Witness Proofing” before the International Criminal Court: A Reply to Karemaker, Taylor, and Pittman’ (2008) 21(4) Leiden Journal of International Law 911. Ambos, Kai, “‘Witness Proofing” before the ICC: Neither Legally Admissible nor Necessary’ in Carsten Stahn and Göran Sluiter (eds), The Emerging Practice of the International Criminal Court, 2009, The Hague: Martinus Nijhoff, p 599. Bitti, Gilbert, ‘Article 21 of the Statute of the International Criminal Court and the treatment of sources of law in the jurisprudence of the ICC’, in Stahn, Carsten and Sluiter, Göran (eds), The Emerging Practice of the International Criminal Court, 2009, The Hague: Martinus Nijhoff, p 281. de Guzman, Margaret M., ‘Article 21: applicable law’, in Triffterer, Otto (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn, 2008, Oxford: Beck/Hart, p 701. Gallmetzer, Reinhold, ‘The Trial Chamber’s discretionary power to devise the proceedings before it and its exercise in the trial of Thomas Lubanga Dyilo’, in Stahn, Carsten and Sluiter, Göran (eds), The Emerging Practice of the International Criminal Court, 2009, The Hague: Martinus Nijhoff, p 501. Heinsch, Robert, ‘How to achieve fair and expeditious trial proceedings before the ICC: is it time for a more judge-dominated approach?’, in Stahn, Carsten and Sluiter, Göran (eds), The Emerging Practice of the International Criminal Court, 2009, The Hague: Martinus Nijhoff, p 477. Jordash, Wayne, ‘The Practice of “Witness Proofing” in International Criminal Tribunals: Why the International Criminal Court Should Prohibit the Practice’ (2009) 22(3) Leiden Journal of International Law 501. Karemaker, Ruben, Taylor III, B. Don and Pittman, Thomas Wayde, ‘Witness Proofing in International Criminal Tribunals: A Critical Analysis of Widening Procedural Divergence’ (2008a) 21(3) Leiden Journal of International Law 683. Karemaker, Ruben, Taylor III, B. Don and Pittman, Thomas Wayde, ‘Witness Proofing in International Criminal Trials: Response to Ambos’ (2008b) 21(4) Leiden Journal of International Law 917. Kress, Clauss, ‘The Procedural Law of the International Criminal Court in Outline: Anatomy of a Unique Compromise’ (2003) 1(3) Journal of International Criminal Justice 603. Nerlich, Volker, ‘The status of ICTY and ICTR precedent in proceedings before the ICC’, in Stahn, Carsten and Sluiter, Göran (eds), The Emerging Practice of the International Criminal Court, 2009, The Hague: Martinus Nijhoff, p 305. Pellet, Alain, ‘Applicable law’, in Cassese, Antonio, Gaeta, Paola and Jones, John RWD, (eds), The Rome Statute of the International Criminal Court: A Commentary, vol 2, 2002, Oxford: Oxford University Press, p 1051.

111 Prosecutor v Ruto, ICC-01/09-01/11-596, Decision on the Joint Defence Request for Leave to Appeal the Decision on Witness Preparation, Trial Chamber V, 11 February 2013.

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Raimondo, Fabián, General Principles of Law in the Decisions of International Courts and Tribunals, 2008, The Hague: Martinus Nijhoff. Saland, Per, ‘International criminal law principles’, in Lee, Roy SK (ed.), The International Criminal Court: The Making of the Rome Statute, 1999, The Hague: Kluwer Law International, p 189. Schabas, William, The International Criminal Court: A Commentary on the Rome Statute, 2010, Oxford: Oxford University Press. Schrag, Minna, ‘Lessons Learned from ICTY Experience’ (2004) 2(2) Journal of International Criminal Justice 427. Vasiliev, Sergey, ‘Proofing the Ban on “Witness Proofing”: Did the ICC Get it Right?’ (2009) 20 Criminal Law Forum 193.

12 General principles of law in the early jurisprudence of the ICC Mohamed Elewa Badar and Noelle Higgins

Introduction In this chapter, we will deal with the role of ‘general principles of law recognized by the major legal systems of the world’ as a source of international criminal law. ‘General principles of law’ have been identified and used as a source of law by international tribunals since the adoption of the Statute of the PCIJ in 1920 and have been used to fill gaps in international law with regard to issues on which no treaty or customary rules exist. In the field of international criminal law, general principles have also been identified as a source of law, and used for the same purpose, in the jurisprudence of the ICTY and the ICTR and in the Statute of the ICC. Despite numerous international tribunals having recourse to general principles when identifying applicable law, a ‘certain mysticism’1 attaches to them and many questions remain as to how general principles can, and should be used, to clarify and develop international law. In particular, uncertainty persists with regard to how general principles are to be identified and which techniques should be implemented to extract general principles from principles of domestic law. While general sources of law have the potential to play a very important role in the development of international criminal law by avoiding situations of non liquet, without clarification as to how such principles are to be identified, the full potential of this source of law cannot be exploited, which can impede the development and evolution of international criminal law. This chapter focuses on the use of general principles as a source of international criminal law and focuses on how international tribunals have dealt with the issue of identifying general principles through a review of national laws. Section 1 of the chapter provides a brief analysis of general principles as a source of public international law and discusses how the ad hoc tribunals have used general principles as a source in their jurisprudence, with a particular focus on the tribunals’ approach in identifying general principles. Section 2 then focuses on Article 21 of the ICC Statute which outlines the applicable law of the Court and analyses how general principles fit into the hierarchy of

1 Percy E. Corbett, ‘The Search for General Principles of Law’ (1961) 47 Virginia Law Review 811, 814 (‘Corbett’).

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sources set out in this provision. This chapter also provides an analysis of the methodology the Court uses in identifying general principles in the early jurisprudence of the ICC. The chapter concludes with some thoughts on how general principles can be better exploited to ensure the continuous and dynamic development of international criminal law at the ICC.

General principles as a source of law Public international law Two rationales have been identified for the recourse to general principles as a source of law. First, in any system of law a situation may arise where the court in considering a case before it realizes that there is no rule covering the exact issue.2 Shaw comments that ‘[s]uch a situation is perhaps even more likely to arise in international law because of the relative underdevelopment of the system in relation to the needs with which it is faced’.3 It is here that general principles of law come into play by filling the gaps. In addition, Corbett points to another role of general principles in asserting ‘the existence of universally valid law’.4 He refers to ancient Greece for examples of lawyers attempting to incorporate a ‘higher justice’ element into the law and states that ‘[n]o one has ever improved much on Aristotle’s instructions, in The Art of Rhetoric, to the advocate who, finding the precedents or code heavily against him, tries to persuade the court to “interpret” or ignore the enacted or judge-made law in favour of a higher justice’.5 Today, this latter rationale for reliance on general principles has been sidelined to a great extent and the main purpose for general principles lies in their ability to prevent situations of non liquet. Even prior to the adoption of the Statute of the PCIJ in 1920 (which contains the first conventional reference to ‘general principles of law’), the practice of applying general principles of law to inter-State disputes was already established.6 Article 38 of the Statute of the ICJ, which is based on Article 20 of the Statute of the PCIJ,7 sets out the currently accepted sources of international law. Article 38 was drafted to avoid situations of non liquet,8 and provided the ICJ significant discretion with regard to applicable law. Article 38(1) states that the Court will apply:

2 Malcolm N. Shaw, International Law (6th edn, Cambridge: Cambridge University Press, 2008) 98 (‘Shaw’); See also Frances T. Freeman Jalet, ‘The Quest for the General Principles of Law Recognized by Civilized Nations – A Study’ (1963) 10 UCLA Law Review 1041. 3 Shaw (n 2) 98. 4 Corbett (n 1) 811. 5 Corbett (n 1) 811. 6 Fabian Raimondo, General Principles of Law in the Decisions of International Criminal Courts and Tribunals (The Hague: Martinus Nijhoff, 2008) 8–17 (‘Raimondo’). 7 Statute of the Permanent Court of International Justice, 1920, 6 LNTS 390. 8 See Margaret M. de Guzman, ‘Article 21, Applicable Law’ in Otto Triffterer (ed), Commentary on the Rome Statute of the ICC, 2nd edn, 2008, Oxford: Hart, p 709, footnote 63 (‘Guzman’).

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a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. This list of sources has now been accepted as an iteration of sources of international law in general, and as evidence of customary law,9 not just as applied by the ICJ, although it has been criticized as ‘underinclusive and overly focused on the role of states as international actors’.10 There is no explicit hierarchy among the sources enumerated in Article 38.11 Schabas states that ‘[i]t is accepted that the three sources are of equal value and that there is no hierarchy among them, although case law has tended to give the third source, general principles of law, a rather marginal significance’.12 Indeed, the scope of Article 38(1)(c) has been a subject of controversy and uncertainty among international lawyers. Schlesinger notes that although international courts, including the ICJ, have referred to general principles of law on a number of occasions and have invoked these principles as a basis for their decisions, ‘if we read the opinions, we look in vain for an answer to the question: How did the Court know that the particular rule or principle it relied on was in fact a general principle of law recognized by civilized nations?’.13 Schlesinger adds that ‘[i]n case after case, the judge writing the opinion simply expressed a hunch, a hunch probably based upon the legal system or systems with which he happened to be familiar’.14 Thus, a clear methodology for deducing general principles of law was missing from international legal discourse. This gap has been somewhat remedied in recent years with the publication of important literature on this topic and decisions of international courts and tribunals.15 However, the need for additional comparative study of general principles is clear.

9 See Robert Jennings, and Arthur Watts, (eds), Oppenheim’s International Law, vol I, 9th edn, 1992, Oxford: Oxford University Press, pp 1, 24. 10 Gideon Boas, James L. Bischoff, Natalie L. Reid and B. Don Taylor III, International Criminal Law Practitioner Library Vol III: International Criminal Procedure, 2013, Cambridge: Cambridge University Press, p 3, footnote 2. See also Jonathan Charney, ‘Universal International Law’ (1993) 87 American Journal of International Law 529; Vladimir D. Degan, Sources of International Law (The Hague: Martinus Nijhoff, 1997). 11 On this point see Michael Akehurst, ‘The Hierarchy of the Sources of International Law’ (1975) 47(1) British Yearbook of International Law 273–285. 12 William Schabas, An Introduction to the International Criminal Court, 4th edn, 2011, Cambridge: Cambridge University Press, p 207 (‘Schabas’). 13 Rudolf B. Schlesinger, ‘Research on the General Principles of Law Recognized by Civilized Nations’ (1957) 51 American Journal of International Law 734 (‘Schlesinger’). 14 Schlesinger 734. 15 See Raimondo (n 6).

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Despite the flexibility and discretion conferred upon the Court in relation to sources, the ICJ was reluctant to use general principles when identifying the applicable law.16 While the Court has recognized the principle of equity17 and the principle to make reparations18 as general principles recognized by civilized nations among others, Friedmann opines that recourse to general principles has been limited. He provides two reasons for this, the first being that because traditional public international law was generally concerned with relationships between States, the need to resort to general principles was not great. In addition, Friedmann states that because international courts such as the ICJ depend on the consent of States for their jurisdiction and acceptability of their decisions, they must ‘exercise great caution in the application of general principles of law, lest they be accused of unauthorized exercise of international legislation’.19 Thus, the ICJ, it seems, was overly conscious of the potentially negative reaction of States to the Court’s use of its discretion in the identification of applicable law. Commenting in 1963, Friedmann stated that: the suspicion which states, especially those on the losing side, may entertain of indirect expansion of the scope of international law by a tribunal which depends upon the maximum amount of consent by its constituent members, no doubt largely accounts for the failure of the Court until now to make any significant use of this potentially very fertile source of development in international law.20 The role of general principles as a source of law There is no consensus among academics regarding the nature or quality of general principles as a source of international law. Some academics consider general principles to have little or no importance in international law. Voigt sets out a number of reasons as to the rationale for this opinion. She states: At a first glance, the normative force behind general principles appears to be limited of importance for three different reasons: firstly, international courts and tribunals have remained reluctant in their use and reference to general principles, secondly, general principles as such have limited use as independent formulations of enforceable obligations and have rarely been referred to as a basis for a legal claim, and thirdly, legal scholars have

16 See Wolfgang Friedmann, ‘The Uses of “General Principles” in the Development of International Law’ (1963) 57 American Journal of International Law 279 (‘Friedmann’). 17 Case Concerning the Continental Shelf (Tunisia v Libyan Arab Jamahiriya), 1982 ICJ 18, para 71. 18 Chorzow Factory Case (Merits), 1928 PCIJ (ser. A), No. 17, 29. 19 Friedmann (n 16) 279, 280. 20 Friedmann (n 16) 279, 280.

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contributed with their criticism to mark general principles a rather ‘ambiguous source of law’.21 International tribunals have illustrated a number of problems in utilizing general principles due to potentially negative reactions by States and also due to the uncertainty of their nature. The Pre-trial Chamber of the Extraordinary Chambers in the Courts of Cambodia stated that ‘it was unclear whether the “general principles of the law recognized by civilized nations” should be recognized as a principal or auxiliary source of international law’.22 On the other hand, Voigt’s own opinion is that ‘general principles constitute a crucial element of international law, without which its effective functioning would be jeopardized’.23 She states that ‘without general principles . . . progress and responsiveness of international law to modern challenges would be considerably constrained’.24 Additionally, she states that in the absence of general principles, ‘international law would be nothing but the law of consent and auto-limitation of States’.25 Akehurst agrees, stating that because general principles have to be derived from national law that is in force they are therefore ‘capable of undergoing a process of orderly change, as the municipal laws on which they are based are amended. In this way they respond to changing needs without throwing the law into uncertainty’.26 Similarly, Bassiouni states that with the increasing interdependence of States over time, treaties and customary rules may never be able to provide a complete answer to every potential international question which may arise and so it is therefore imperative to recognize that general principles can play a very important role in the development of international law, especially in areas such as human rights and transnational criminal justice.27 Thus, the potential of resorting to general principles as a source of public international law, and indeed, international criminal law, is clear. Identifying general principles of international law International tribunals and courts have accepted that in order for a principle recognized in domestic law to be accepted as a general principle of international

21 Christina Voigt, ‘The Role of General Principles in International Law and their Relationship to Treaty Law’ (Retfaerd Årgang 31 2008 No 2/121, 5) accessed 29 April 2014 (‘Voigt’). 22 Extraordinary Chambers in the Courts of Cambodia, 002/19-09-2007-ECCC/OPIJ, Public Decision on the Appeals against the Co-Investigative Judges Order on Joint Criminal Enterprise (JCE), Pre-trial Chamber, 20 May 2010, para 53. 23 Voigt (n 21) 5. 24 Voigt (n 21) 5. 25 Voigt (n 21) 6. 26 Michael Akehurst, ‘Equity and General Principles of Law’ (1976) 25 International and Comparative Law Quarterly 815 (‘Akehurst’). 27 M Cherif Bassiouni, ‘A Functional Approach to General Principles of International Law’ (1990) 11 Michigan Journal of International Law 768, 769.

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law it must be recognized by most but not all legal systems of the world.28 A US war crimes tribunal in the Hostages case stated: In determining whether . . . a fundamental principle of justice is entitled to be declared a principle of international law, an examination of the municipal laws of States in the family of nations will reveal the answer. If it is found to have been accepted generally as a fundamental rule of justice by most nations in their municipal law its declaration as rule of international law would seem to be fully justified.29 Other commentators, however, feel that such a detailed review is unnecessary and what is preferred is a representative survey.30 Commenting on the ICC system,31 Pellet states that it is not necessary to make a systematic comparison of all national legal systems, but only to ensure, by polling, that the norms in question are effectively found in the principal legal systems of the world. These, he believes, can probably be reduced to a small number in the contemporary world: the family of civil law countries, the common law and Islamic legal tradition.32 Raimondo described the process of identifying general principles as a bifurcated operation, involving a vertical move, which is the abstraction of a legal principle from the rules of national legal systems and the horizontal move, which consists of verifying that this principle is generally recognized among the nations of the world.33 When deriving general principles of law from national law, Raimondo states that there is no need to look ‘mechanically’ for replica rules in national laws, rather one should seek a common denominator between the laws in different legal systems.34 Therefore, minor differences in detail between the domestic laws of different States do not prevent the creation of general principles of law when there is an underlying common principle. In addition, a general principle of law can exist when different systems of municipal law achieve the same result by different means.35 Similarly, Pellet also divides the process of identifying general principles into a number of steps. The first step consists of a comparison of domestic legal systems,

28 Ilias Bantekas and Susan Nash, International Criminal Law (3rd ed, London: Routledge-Cavendish, 2007) 4. See also ibid 768. 29 USA v List (Hostages Case) (1949) 8 LRTWC 34, 49 (1948) 12 Annual Digest 632. 30 Francesco Capotorti, ‘Cours general de droit international public’ (1994) 248 Recueil des cours de l’Académie de droit international de la Haye, 9, 118; Fabian Raimondo (n 6) 54. 31 Alain Pellet, ‘Applicable Law’, in Antonio Cassese, et al (eds), The Rome Statute of the International Criminal Court: A Commentary, vol I, 2002, Oxford: Oxford University Press, p 1051, 1073 (‘Pellet’). 32 Pellet 1074–75. See also Philippe Kirsch, ‘The Development of the Rome Statute’, in Roy SK Lee, (ed.), The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results, 1999, The Hague: Kluwer Law International, p 456. 33 Raimondo (n 6) 1. 34 Raimondo (n 6) 49. 35 Akehurst (n 26) 815.

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the second consists of the identification of common principles, and the third is the transposition of these principles into the international sphere.36 He states that this ‘is not a simple question of logic’37 and highlights the comments of the ICTY that ‘domestic judicial views or approaches should be handled with the greatest caution at the international level lest one should fail to make due allowance for the unique characteristics of international criminal proceedings’.38 Despite the disagreement surrounding the nature and scope of general principles as a source of law, both international tribunals and the domestic legal systems of a number of States provide for the application of the general principles of law in the absence of specific legal provisions or custom.39 This chapter attempts to identify how general principles have been used as a source of international criminal law. International criminal law Given that international criminal law is a branch or subset of public international law, the sources of international law also apply to it, in other words those set out in Article 38 of the ICJ Statute, including general principles of law. However, with the establishment of international criminal tribunals, further attention was focused on the applicable law in these fora. Raimondo states that ‘the undeveloped nature of international criminal law, the imprecision of many of its legal rules, the need to make compelling legal arguments, and the existence of relevant domestic criminal law analogies have facilitated resort to and the subsequent application of general principles of law by international criminal courts and tribunals’.40 However, there is no explicit reference to sources of law in the founding instruments of the first international criminal tribunals, for example the Charter of the International Military Tribunal41 or the Charter of the International Military Tribunal for the Far East.42 Furthermore, none of the instruments setting up the hybrid tribunals, such as the Special Court for Sierra Leone,43 the Extraordinary

36 37 38 39 40 41

42 43

Pellet (n 31) 1073. Pellet (n 31) 1074. Prosecutor v Blasˆkic´, IT-95-14-AR108 bis, Appeals Chamber, 29 October 1997, para 23. Bin Cheng, General Principles of Law as applied by International Courts and Tribunals (Cambridge: Cambridge University Press 2006). Raimondo (n 6) 74. Charter of the International Military Tribunal annexed to the London Agreement of 8 August 1945. See Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945-1 October 1946, published at Nuremberg, Germany, 1947, vol I, Official Documents, 10. Charter of the International Military Tribunal for the Far East of 19 January 1946, amended 26 April 1946. Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone, 16 January 2002 (www.sc-sl.org/LinkClick.aspx?fileticket= CLk1rMQtCHg%3d&tabid=176).

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Chambers in the Courts of Cambodia,44 or the Special Tribunal for Lebanon,45 mention applicable law. Similarly, when the ICTY46 and ICTR47 were set up in the 1990s, no reference was made to sources of law in their statutes. Article 15 of the ICTY and Article 14 of the ICTR Statutes provide,‘[t]he judges of the International Tribunal shall adopt rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters’. General principles of criminal law are not referred to in this context. This is explicable, from Degan’s point of view, as ‘it did not seem appropriate to confer on Judges of the ad hoc Criminal Tribunals, who were elected by the UN General Assembly from a list proposed by the Security Council, to adopt rules of international criminal procedures in the domains in which, prior to the 1998 Rome Statute, there were no such codified rules’.48 Rather, these tribunals used Article 38 of the ICJ Statute as their guide to applicable law. The ICTY recognized that when its Statute was silent on a particular matter, it could have recourse to the other sources of law set out in the ICJ statute, including customary law and general principles.49 However, ‘[o]wing to the differences between international trials and trials at the national level, the ICTY has been chary of uncritical reliance on general principles taken from domestic legal systems and acontextual application of them to international trials’.50 Despite initial reluctance, both the ICTY and the ICTR have utilized domestic laws to aid them in identifying the applicable law.

44 Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia, as amended 27 October 2004 (www.eccc.gov.kh/sites/default/files/legal-documents/KR_Law_as_ amended_27_Oct_2004_Eng.pdf). 45 Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon, annexed to Resolution 1757 (2007) and adopted on 30 May 2007 by the Security Council of the United Nations. 46 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (ICTY), adopted by Security Council Resolution 827 (1993). 47 Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994 (ICTR), adopted by Security Council Resolution 955 (1994). 48 Vladimir D. Degan, ‘On the Sources of International Criminal Law’ (2005) 4 Chinese Journal of International Law 45, 56. 49 Prosecutor v Kupresˆkic´, IT-95-16-T, Judgment, Trial Chamber II, 14 January 2000, para 591 (‘Kupresˆkic´ Judgment’). 50 Robert Cryer, Håkan Friman, Darryl Robinson and Elizabeth Wilmshurst, An Introduction to International Criminal Law and Procedure (2nd ed, Cambridge: Cambridge University Press, 2010) (‘Cryer et al’); see Prosecutor v Erdemovic´, IT-96-22-A, Judgment, Separate and Dissenting Opinion of President Cassese, Appeals Chamber, 7 October 1997, para 5.

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The development of general principles of law in the ad hoc and hybrid tribunals In the case of Kupresˆkic´, the Trial Chamber set out the sources on which the ICTY could draw in the absence of a rule in the Tribunal’s Statute. It stated: any time the Statute does not regulate a specific matter, and the Report of the Secretary-General 51 does not prove to be of assistance in the interpretation of the Statute, it falls to the Tribunal to draw upon (i) rules of customary international law or (ii) general principles of international criminal law; or lacking such principles, (iii) general principles of criminal law common to major legal systems of the world; or, lacking such principles, (iv) general principles of law consonant with the basic requirements of international justice.52 In Furundžija, Trial Chamber II emphasized that the Court needed to look to a number of legal systems in searching for a ‘principle of criminal law common to the major legal systems of the world’.53 Specifically, it stated: Whenever international criminal rules do not define a notion of criminal law, reliance upon national legislation is justified, subject to the following conditions: (i) unless indicated by an international rule, reference should not be made to one national system only, say that of common-law or that of civillaw States. Rather, international courts must draw upon the general concepts and legal institutions common to all the major legal systems of the world. This presupposes a process of identification of the common denominators in these legal systems so as to pinpoint the basic notions they share; (ii) since ‘international trials exhibit a number of features that differentiate them from national criminal proceedings’, account must be taken of the specificity of international criminal proceedings when utilising national law notions. In this way a mechanical importation or transposition from national law into international criminal proceedings is avoided, as well as the attendant distortions of the unique traits of such proceedings.54 In the sentencing judgment in Erdemovic´, the Trial Chamber discussed the defences of duress, necessity and superior orders and held that ‘a rigorous and restrictive approach’ to this issue should be employed in line with the ‘general principle of law as expressed in numerous national laws and case law’.55 However, the Court 51 This referred to Report of the UN Secretary-General (S/25704), which can be considered as travaux préparatoires of the ICTY for interpretation purposes according to Article 32 of the Vienna Convention on the Law of Treaties 1969, 1155 U.N.T.S. 331. 52 Kupresˆkic´ Judgment (n 49). 53 Prosecutor v Furundžija, IT-95-17/1-T, Judgment, Trial Chamber, 10 December 1998, para 177. 54 Prosecutor v Furundžija, IT-95-17/1-T, Judgment, Trial Chamber, 10 December 1998, para 178. 55 Prosecutor v Erdemovic´, IT-96-22-T, Sentencing Judgment, Trial Chamber, 29 November 1996, para 19.

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in fact only relied on French law to support its conclusion. Equally unconvincing with regard to its survey of national laws, in this case the Trial Chamber dealt with the issues of scale of penalties applicable for crimes against humanity. The Court stated: ‘[a]s in international law, the States which included crimes against humanity in their national laws provided that the commission of such crimes would entail the imposition of the most severe penalties permitted in their respective systems.’56 However, the Court neglected to provide examples of these laws. Instead, it concluded that: there is a general principle of law common to all nations whereby the most severe penalties apply for crimes against humanity in national legal systems. It thus concludes that there exists in international law a standard according to which a crime against humanity is one of extreme gravity demanding the most severe penalties when no mitigating circumstances are present.57 The Court then went on to review the case law of the former Yugoslavia with regard to prison sentences before finding that this was ‘in fact a reflection of the general principle of law internationally recognized by the community of nations whereby the most severe penalties may be imposed for crimes against humanity’.58 Cassese notes on this point that: the Court not only failed to indicate on what national laws it had relied but also omitted to specify whether it had taken into account, in addition to general criminal legislation, national laws on war crimes as well as those on genocide, to establish whether these laws provide for penalties as serious as those amounting to crimes against humanity. It would therefore seem that the legal proposition set out by the Court does not carry the weight it could have, had it been supported by convincing legal reasoning.59 While the ICTY has recognized a number of general principles in its jurisprudence, such as in Tadic´ where it focused on the general principle whereby a tribunal must be established by law,60 and in the case of Blaskic´ when it stated that the proportionality of the penalty to the gravity of the crime is a general principle of criminal law common to the major legal systems of the world,61 it has nonetheless rejected, on a number of occasions, the existence of a general principle of law

56 Prosecutor v Erdemovic´, IT-96-22-T, Sentencing Judgment, Trial Chamber, 29 November 1996, para 30. 57 Prosecutor v Erdemovic´, IT-96-22-T, Sentencing Judgment, Trial Chamber, 29 November 1996, para 31. 58 Prosecutor v Erdemovic´, IT-96-22-T, Sentencing Judgment, Trial Chamber, 29 November 1996, para 40. 59 Antonio Cassese, International Criminal Law, 2003, Oxford: Oxford University Press, p 34 (‘Cassese’). 60 Tadic´ (Interlocutory Appeal), 2 October 1995, para 42. 61 Prosecutor v Blaskic´, IT-95-14-T, Judgment, Trial Chamber 3 March 2000, para 796.

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recognized by all nations.62 Indeed, the Erdemovic´ case illustrated that ‘at times there simply is no general enough principle to apply’.63 In the recent Šanovic´ case before the ICTY, the Appeals Chamber dealt with the national laws on aiding and abetting. The Chamber recalled that national legislation and case law may be relied on as a source of ‘international principles of rules in limited situations’.64 It continued that such reliance ‘is permissible only where it is shown that most, if not all, countries accept and adopt the same approach to the notion at issue. More specifically, it would be necessary to show that the major legal systems of the world take the same approach to that notion’.65 The review undertaken with regard to specific direction was comprehensive in scope and included an examination of the national laws of over 30 States from different legal traditions. The Appeals Chamber concluded that ‘[t]he survey of the above mentioned countries suffices for the Appeals Chamber to discern that requiring “specific direction” for aiding and abetting liability is not a general, uniform practice in national jurisdictions’.66 The issue of general principles has also been discussed to an extent before the SCSL in the Taylor case.67 In the Appeals Chamber the Defence relied on national laws in relation to forms of criminal participation. However, this strategy was unsuccessful because national laws were confused with the existence of customary law. The Chamber stated: Domestic law, even if consistent and continuous in all States, is not necessarily indicative of customary international law. This is particularly true in defining legal elements and determining forms of criminal participation in domestic jurisdictions, which may base their concepts of criminality on differing values and principles. Therefore, the reliance by the Defence on examples of domestic jurisdictions requiring or applying a ‘purpose’ standard to an accused’s mental state regarding the consequence of his acts or conduct is misplaced.68 It can be seen from this discussion that the practice of the ad hoc and hybrid tribunals has been inconsistent when utilizing general principles as a source of law. While these tribunals have recognized the need to resort to general principles in the absence of a treaty or customary rule, they have failed to develop a coherent

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Cassese (n 59) 35, footnote 26. Cryer et al (n 50) 12. Prosecutor v Šanovic´, IT-05-87-A, Judgment, Appeals Chamber 23 January 2014, para 1634. Prosecutor v Šanovic´, IT-05-87-A, Judgment, Appeals Chamber 23 January 2014, para 1634, footnotes omitted. 66 Prosecutor v Šanovic´, IT-05-87-A, Judgment, Appeals Chamber 23 January 2014, para 1646. 67 Prosecutor v Charles Taylor, SCSL-03-01-A-1389, Appeal Judgment, Appeal Chamber, 26 September 2013. 68 Prosecutor v Charles Taylor, SCSL-03-01-A-1389, Appeal Judgment, Appeal Chamber, 26 September 2013, para 429, footnote omitted.

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practice when identifying such principles. Chambers have, at times, correctly stated that a systematic review of principles common to various legal traditions is necessary in order to identify general principles of law, however, Chambers have also at times been neglectful of undertaking a comprehensive review of general principles in their judgments.

General principles as a source of law in the Statute of the International Criminal Court The importance of general principles as a source of international criminal law was recognized by the drafters of the ICC Statute. Article 21 of the ICC Statute contains the first codification of the sources of international criminal law69 and thus provides the Court with some discretion as to which source it can use. However, such discretion is limited as, unlike Article 38 of the ICJ Statute, Article 21 sets out a hierarchy of sources.70 Article 21 of the ICC Statute states: 1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. 2. The Court may apply principles and rules of law as interpreted in its previous decisions. 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status. Interestingly, the ILC’s Draft Statute for the ICC contained three sources of law but did not specify a hierarchy between them. These were (a) the Statute of the Court; (b) treaties and principles and rules of general international law; and (c) applicable rules of national law.71

69 Gerhard Hafner and Christina Binder, ‘The Interpretation of Article 21(3) ICC Statute Opinion Reviewed’ (2004) 9 Austrian Review of International and European Law 163. 70 Guzman (n 8) 704. 71 See Article 33, 1994 ILC Draft Statute, 103.

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As with Article 38 of the ICJ Statute, Article 21(1)(c) seeks to avoid situations of non liquet. McAuliffe de Guzman notes that one field in which the drafters of the Rome Statute anticipated a gap in the law was that of regulating the exclusion of criminal responsibility because, although Article 31 of the Rome Statute (which was drafted with the Erdemovic´ case in mind),72 sets out a number of defences, it also states that ‘the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 where such a ground is derived from applicable law as set forth in article 21’.73 One of the main issues to be addressed in the drafting of Article 21 was the question of how much discretion should be accorded to the judges. Indeed, the issue of judicial discretion ‘bears particular import in the context of international criminal law due to the mandates of nullum crimen sine lege’.74 McAuliffe de-Guzmann comments that ‘[t]he primary challenge faced in drafting article 21 was the need to adhere to the principle of nullum crimen sine lege in the context of the loosely structured international legal order, with no sovereign legislature’.75 During the Preparatory Committee two divergent views emerged on this issue. Some States felt that judicial discretion should be minimized as much as possible due to the requirements of the legality principle, and thus, that ‘[a]ny doubt as to the relevant legal provision should be resolved, according to this view, by direct application of the appropriate domestic law’.76 However, the other, and indeed, majority opinion view was the unique nature of international law required that judges be given discretion to apply general principles of international criminal law.77 A compromise between these two schools of thought resulted in Article 21 whereby judges have recourse to general principles of law only when the sources set out in Article 21(1)(a) and Article 21(1)(b) have failed,78 and indeed, so long as the general principle is in line with the human rights requirements set out in Article 21(3). Vasiliev notes that ‘Article 21 was included in the ICC Statute to create a solid, transparent and predictable legal regime equipped to deal with legal collisions and lacunae, while at the same time avoiding or diminishing the risk of judicial law-making’.79

72 See Prosecutor v Erdemovic´, IT-96-22-A, Judgment, Appeals Chamber, 7 October 1997, para 55. The Court discussed the defence of duress and stated that ‘no rule may be found in customary international law regarding the availability or the non-availability of duress as a defence to a charge of killing innocent human beings’. 73 Rome Statute, Article 31(3). 74 Guzman (n 8) 702. 75 Guzman (n 8) 704. 76 Guzman (n 8) 702. 77 See 1996 Preparatory Committee II, 103–105. 78 Vasiliev states that ‘[g]iven that the ICC positive law is a multilayered system with a high degree of “density” and precision of legal regulation, secondary and tertiary sources will have to be consulted only in rather exceptional circumstances’; Vasiliev, Sergey, ‘Proofing the ban on “witness proofing”: did the ICC get it right?’ (2009) 20(2) Criminal Law Forum 193, 212–213 (‘Vasiliev’). 79 Vasiliev 210.

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At the Rome conference, there was a divergence of opinion between States concerning how general principles would be found and applied. This was divided into two options in the Final Draft of the Statute. The first option provided that the ICC would apply general principles of law derived from national laws of the legal systems of the world, whereas the second option, which received less support, provided that the Court could apply national laws directly in a strict hierarchy. This entailed the Court first applying the law of the State where the crime was committed, next, the law of the State of nationality of the accused, and then the law of the custodial State.80 However, delegates opposing the direct application of national laws argued that that this would involve ‘inconsistent justice’ as different laws would be applied to different accused for the same conduct81 and in addition, direct application of national laws would ‘hinder the development of a coherent body of international criminal law’.82 Cassese states that a principle of criminal law will fall within the parameters of Article 21(1)(c) of the Statute ‘if a court finds that it is shared by common law and civil law systems as well as other legal systems such as those of the Islamic world, some Asian countries such as China and Japan, and the African continent’.83 He points out the trend in the literature criticizing the limitation of comparative legal analysis to civil and common law jurisdictions.84 In identifying general principles, ‘the judges of the ICC will be required to engage in comparative law analysis, but will have broad discretion to decide which national laws to include in that analysis’.85 Such comparative research, as noted by Ambos: must even go beyond the classical Anglo-American/Franco-Germanic divide, traditionally characterized by such opposites as inductive v deductive, common v written law, case v statute law, and even common sense v logic, and reach out to the increasingly important Islamic law or legal thought.86 Article 21(c) contains a special reference to national laws of States that would normally exercise jurisdiction. Schabas states that this reference is intriguing because ‘it suggests that the law applied by the Court might vary slightly depending on the place of the crime or the nationality of the offender’.87 Per Saland, who chaired the working group that negotiated this provision, comments that:

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See Preparatory Committee Draft, Article 20, p 54. Guzman (n 8) 704. Guzman (n 8) 704. Cassese (n 59) 32. See Ugo Mattei, ‘Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems’ (1997) 45 American Journal of Comparative Law 5. 85 Guzman (n 8). 86 Kai Ambos, Treatise on International Criminal Law: Foundations and General Part, vol 1, 2013, Oxford: Oxford University Press, p 77 (emphasis in the original, footnotes omitted) (‘Ambos’). 87 Schabas (n 12) 209.

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[t]here is of course a certain contradiction between the idea of deriving general principles, which indicates that this process could take place before a certain case is adjudicated, and that of looking also to particular national laws of relevance to a certain case; but that price had to be paid in order to reach a compromise.88 However, as noted by McAuliffe deGuzman, ‘[a]lthough this . . . raises the spectre that the Court will apply inconsistent law in different cases, that danger may be largely averted through the exercise of the Court’s broad discretion to decide when it is “appropriate” to refer to particular national laws’.89

ICC jurisprudence on general principles Given the fact that general principles of law were explicitly identified as a source of law in the Rome Statute, it is interesting to see if some of the inconsistency evident in the jurisprudence of the ad hoc and hybrid tribunals has been clarified in the case law of the ICC. Early jurisprudence of the court stresses the subsidiary nature of Article 21(1)(c) of the ICC Statute. In 2006, the Appeals Chamber ruled that the application of the third source of law, general principles of law, is subject to the existence of a gap in the Statute, thus clarifying the rationale for including general principles as a source of law in the Statute.90 Similarly, in Al Bashir, the Court held that Article 21(1)(b) and (c) can only be applied if there is a lacuna in the written law in the Statute, the Elements of Procedure and Crimes and the Rules and in addition if this lacuna cannot be filled by applying the criteria set out in Articles 31 and 32 of the VCLT and Article 21(3) of the ICC Statute.91 In coming to this decision, the Pre-trial Chamber focused on the wording of Article 21(1)(b) which states that sources other than those in Article 21(1)(a) can be used ‘where appropriate’. Based on his analysis of some early jurisprudence of the ICC, Bitti defined: a gap in the Statute as ‘an “objective” which could be inferred from the context or the object and purpose of the Statute, an objective which would not be given effect by the express provisions of the Statute or the Rules of

88 Per Saland, ‘International Criminal Law Principles’, in Roy SK Lee, The International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results, 1999, The Hague: Kluwer Law International, p 215. 89 Guzman (n 8) 704. 90 Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-722, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006, Appeals Chamber, 14 December 2006, para 34. 91 Prosecutor v Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-1, Decision on the Prosecutor’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Pre-trial Chamber I, 4 March 2009, para 126.

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In the Lubanga case (Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal),93 the ICC highlighted the exceptional nature of Article 21(1)(c) and undertook a rigorous and extensive review of national laws in its search for a general principle of law ‘allowing the reviewability of decisions of an hierarchically lower court disallowing an appeal to a higher Court’. Here, the Appeals Chamber stated that such a general principle cannot be identified, but only after an exhaustive review of the laws of 20 jurisdictions covering three different legal traditions, including Islamic legal tradition.94 This approach is significant, and illustrates the willingness of the Court to undertake a comprehensive analysis of a number of legal traditions in order to assess the existence of a general principle of law. This approach is clear in another decision in the same case, where the Court admonished the Prosecutor’s submissions on a limited number of jurisdictions in relation to Article 21(1)(c). In Lubanga (Decision on the Practices of Witness Familiarization and Witness Proofing), a number of national justice systems were discussed.95 In answer to the Prosecutor’s argument that witness proofing was a common practice in national systems, Trial Chamber I stated: the Trial Chamber does not consider that a general principle of law allowing the substantive preparation of witnesses prior to the testimony can be derived from national legal systems worldwide, pursuant to Article 21(1)(c) of the Statute. Although this practice is accepted to an extent in two legal systems, both of which are founded upon common law traditions, this does not provide a sufficient basis for any conclusion that a general principle based on established practice of national legal systems exists. The Trial Chamber notes that the prosecution’s submissions with regard to national jurisprudence did not include any citations from the Romano-Germanic legal system.96

92 Gilbert Bitti, ‘Article 21 of the Statute of the ICC and the Treatment of Sources of Law in the Jurisprudence of the ICC’ in Carsten Stahn and Göran Sluiter (eds), The Emerging Practice of the International Criminal Court (The Hague: Martinus Nijhoff, 2009) 285, 295. 93 Prosecutor v Lubanga, ICC-01/04-168, Decision Denying Leave to Appeal, Appeals Chamber, 13 July 2006, paras 13–14. 94 Prosecutor v Lubanga, ICC-01/04-168, Decision Denying Leave to Appeal, Appeals Chamber, 13 July 2006, paras 26–32. 95 Prosecutor v Lubanga, ICC-01/04-01/06-679, Decision on the Practices of Witness Familiarization and Witness Proofing, Pre-trial Chamber I, 8 November 2006, paras 35–37. 96 Prosecutor v Lubanga, ICC-01/04-01/06-1049, Decision Regarding the Practices Used to Prepare and Familiarize Witnesses for Giving Testimony at Trial, Trial Chamber I, 30 November 2007, para 41.

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However, further elucidation on what type of examination of national laws would have been appropriate was not forthcoming from the Chamber and thus it failed to seize an opportunity to clarify the nature of Article 21(1)(c).97 Vasiliev comments that ‘if the Chamber sought to establish . . . that there is a general principle proscribing proofing, its conclusion is not convincing, given the cursory and limited comparative research on the matter’.98 In Ruto and Sang,99 the Appeals Chamber stated that ‘reliance on national law and principles as per Article 21(1)(c) can only be sustained where they are shown to be reflective of a general principle of law derived from the major legal systems of the world’.100 However, the Appeals Chamber stated that the Prosecution had manifestly failed to prove the existence of this principle as they had only pointed to the practice of Germany, Kosovo, Montenegro, Bosnia and Herzegovina, and the United States which, according to the Appeals Chamber ‘is hardly reflective of a general principle of law’.101 However, once again, the Court did not further clarify the nature of the examination of general principles that it would find acceptable. Therefore, while the ICC has to date demanded comprehensive reviews of the legal systems belonging to various legal traditions when identifying general principles, it has yet to clarify the nature and scope of the required review. Further elucidation is needed from the Court to understand the meaning of ‘major legal systems of the world’ from which a general principle can be identified and also the extent of the examination of national laws required.

Conclusion General principles of law are legal principles recognized by the world’s major legal systems. Notwithstanding the subsidiary nature of ‘general principles of law’ as provided for in Article 21(1)(c) of the ICC Statute ‘they still possess a particular importance given the rudimentary status of written and unwritten ICL’102 and are of considerable significance to the development of international criminal law.103 However, as of yet, international criminal tribunals, including the ICC, have failed to develop a coherent approach to the identification of general principles in

97 Vasiliev (n 78) 225. 98 Vasiliev (n 78) 227. 99 Prosecutor v William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11-1001, Defence Response to the Prosecution appeal against the ‘Decision on the Prosecution’s Request to Amend the Updated Document Containing the Charges Pursuant to Article 61(9) of the Statute’, Appeals Chamber, 30 September 2013. 100 Prosecutor v Callixte Mbarushimana, ICC-01/04-01/10, Defence Response to Prosecution’s Application to File Additional Authority, Pre-trial Chamber, 3 November 2011, para 11. 101 Prosecutor v Callixte Mbarushimana, ICC-01/04-01/10, Defence Response to Prosecution’s Application to File Additional Authority, Pre-trial Chamber, 3 November 2011, para 11, footnote 19. 102 Ambos (n 86). 103 Gerhard Werle, Principles of International Criminal Law, 2009, The Hague: T.M.C. Asser Press, p 53.

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practice. While some statements of the Courts have emphasized the importance of undertaking an extensive review of the national laws of States of different families of law when identifying general principles, this has not always happened in practice and a definitive methodology has yet to be developed. Regarding the lack of consistency in identifying general principles under Article 38 of the ICJ Statute, both Schwarzengerger104 and Schlesinger contend that it was not the fault of the judges that they had to resort to hunches based on the legal system(s) with which they were familiar when identifying general principles, rather they blame the comparatists ‘who thus far have failed to give any concrete answers, based on comparative research, to the question: What are the general principles of law which are recognized by civilized nations?’105 We submit that today, the same problem remains in international criminal law with regard to general principles. Further research on the domestic systems belonging to various legal traditions by comparative lawyers is vital to the development of international criminal law. Such studies can inform and direct international tribunals, including the ICC, in the absence of treaty or customary rules. They can provide the ICC with a concrete and definite framework to interpret international criminal law and to ensure the consistent application of this body of law.106

Bibliography Ambos, Kai, Treatise on International Criminal Law: Foundations and General Part, vol 1, 2013, Oxford: Oxford University Press. Akehurst, Michael, ‘The Hierarchy of the Sources of International Law’ (1975) 47(1) British Yearbook of International Law 273. Akehurst, Michael, ‘Equity and General Principles of Law’ (1976) 25 International and Comparative Law Quarterly 815. Badar, Mohamed Elewa, The Concept of Mens Rea in International Criminal Law, 2013, Oxford: Hart. Bantekas, Ilias and Nash, Susan, International Criminal Law, 3rd edn, 2007, London: Routledge-Cavendish. Bassiouni, M. Cherif, ‘A Functional Approach to General Principles of International Law’ (1990) 11 Michigan Journal of International Law 768. Bitti, Gilbert, ‘Article 21 of the Statute of the ICC and the treatment of sources of law in the jurisprudence of the ICC’, in Stahn, Carsten and Sluiter, Göran (eds), The Emerging Practice of the International Criminal Court, 2009, The Hague: Martinus Nijhoff, p 281. Boas, Gideon, Bischoff, James L., Reid, Natalie L. and Taylor III, B. Don, International Criminal Law Practitioner Library Vol III: International Criminal Procedure, 2013, Cambridge: Cambridge University Press. Capotorti, Francesco, ‘Cours general de droit international public’ (1994) 248 Recueil des cours de l’Académie de droit international de la Haye 9.

104 Foreword by Schwarzenberger in Bin Cheng, General Principles of Law as applied by International Courts and Tribunals (Cambridge: Cambridge University Press, 2006) XII. 105 Schlesinger (n 13) 735. 106 Mohamed Elewa Badar, The Concept of Mens Rea in International Criminal Law, 2013, Oxford: Hart.

General principles of law 281 Cassese, Antonio, International Criminal Law, 2003, Oxford: Oxford University Press. Charney, Jonathan, ‘Universal International Law’ (1993) 87 American Journal of International Law 529. Cheng, Bin, General Principles of Law as Applied by International Courts and Tribunals, 2006, Cambridge: Cambridge University Press. Corbett, Percy E, ‘The Search for General Principles of Law’ (1961) 47 Virginia Law Review 811. Cryer, Robert, Friman, Håkan, Robinson, Darryl and Wilmshurst, Elizabeth, An Introduction to International Criminal Law and Procedure, 2nd edn, 2010, Cambridge: Cambridge University Press. De Guzman, Margaret M, ‘Article 21: applicable law’, in Triffterer, Otto (ed.), Commentary on the Rome Statute of the ICC, 2nd edn, 2008, Oxford: Hart, p 709. Degan, Vladimir D, Sources of International Law, 1997, The Hague: Martinus Nijhoff. Degan, Vladimir D, ‘On the Sources of International Criminal Law’ (2005) 4 Chinese Journal of International Law 45. Freeman Jalet and Frances T, ‘The Quest for the General Principles of Law Recognized by Civilized Nations – A Study’ (1963) 10 UCLA Law Review 1041. Friedman, Wolfgang, ‘The Uses of “General Principles” in the Development of International Law’ (1963) 57 American Journal of International Law 279. Hafner, Gerhard and Binder, Christina, ‘The Interpretation of Article 21(3) ICC Statute Opinion Reviewed’ (2004) 9 Austrian Review of International and European Law 163. Jennings, Robert and Watts, Arthur (eds), Oppenheim’s International Law, vol I, 9th edn, 1992, Oxford: Oxford University Press. Kirsch, Philippe, ‘The development of the Rome Statute’, in Lee, Roy SK (ed.), The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results, 1999, The Hague: Kluwer Law International, p 451. Mattei, Ugo, ‘Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems’ (1997) 45 American Journal of Comparative Law 5. Pellet, Alain, ‘Applicable law’, in Cassese, Antonio, Gaeta, Paola and Jones, John RWD (eds), The Rome Statute of the International Criminal Court: A Commentary, vol I, 2002, Oxford: Oxford University Press, p 1051. Raimondo, Fabian, General Principles of Law in the Decisions of International Criminal Courts and Tribunals, 2008, The Hague: Martinus Nijhoff. Saland, Per, ‘International criminal law principles’, in Lee, Roy SK (ed.), The International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results, 1999, The Hague: Kluwer Law International, p 189. Schabas, William, An Introduction to the International Criminal Court, 4th edn, 2011, Cambridge: Cambridge University Press. Schlesinger, Rudolf B, ‘Research on the General Principles of Law Recognized by Civilized Nations’ (1957) 51 American Journal of International Law 734. Shaw, Malcolm N., International Law, 6th edn, 2008, Cambridge: Cambridge University Press. Vasiliev, Sergey, ‘Proofing the ban on “witness proofing”: did the ICC get it right?’ (2009) 20(2) Criminal Law Forum 193. Werle, Gerhard, Principles of International Criminal Law, 2009, The Hague: T.M.C. Asser Press.

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Index

accomplices, perpetrators and 41, 42–3 ad hoc tribunals: development of general principles of law 271–4; right to reparation for victims 111; ‘upward’ ne bis in idem and derogation 65–8, 71–4 admissibility, declaration of 71, 73–4 Afghanistan 152 African Court of Justice and Human Rights 164–5 African States: criticisms of ICC 5–7, 17–18, 147–9, 171–3; investigations 154–71; national capacity 136–7; and preliminary investigations of non-African countries 152–3, 172; Prosecutor’s strategic direction and complementarity principle 149–52; see also specific countries African Union (AU) 17–18, 147, 162–3, 164, 172 aggravating circumstances 204–8 Akhavan, P. 9 Al Bashir case 56, 159, 160–1, 171 al-Qaeda, in Mali 170 Alston, P. 189 Ambos, K. 276 American Convention on Human Rights 110 amnesties see Democratic Republic of Congo (DRC) anonymity: redactions, victim-applicant identification 81–3; and witness questioning 92–3 Arab League 159, 160, 172 armed conflict, as legal category under IHL and ICL 20–3 assistance mandate, TFV 113, 114 Bagaragaza case 67–8 balancing rights of accused and victims 79–80; appeals proceedings 105–7;

confirmation of charges 89–97; consensus on issues in striking appropriate balance 97–100; ‘dualstatus’ witnesses/victim witnesses 100–3; impact of protective measures on right to public trial 102–3; LRVs’ access to non-public record and inter partes evidence 94–7, 103–5; pre-trial stage 80–97; prosecutor’s duty to disclose exculpatory evidence 84–9; trial proceedings 97–105; victims’ ability to lead or challenge evidence at trial 100–3; victims’ application to participate in proceedings 80–3, 84–9 Banda and Jerbo case 225 Bemba Gombo case 25, 45–50; confirmation of charges 220, 222; LRV access to confidential filings 103–4; witness proofing 254, 255–6 Bitti, G. 277–8 Blagojevi c´ case 24 Boskoski & Tarkulovski case 22, 23 Cambodian Extraordinary Chambers 121–7, 128, 267 capacity building see national capacity building Cassese, A. 3, 31, 272, 276 causality, superior’s dereliction of duty and underlying crimes 47 CDF case 212–13 Central African Republic (CAR) 157–8; terrorism 23, 29–30; see also Bemba Gombo case child soldiers 206, 207, 210, 211–12, 213 civil society organizations/NGOs 144, 159 civilian population 21, 22, 24, 25, 34, 35, 36 civilian superiors, military commanders and 44–5

284

Index

co-perpetration, ‘control over crime’ doctrine and 50–6 Colombia 152 command responsibility and joint commission 39–40; Bemba Gombo case 45–50; ‘command responsibility’, rare application of 43–5; ‘control over crime’ doctrine and co-perpetration 50–6; difficulties establishing individual responsibility 40–3; ‘indirect co-perpetration’ in Katanga and Ngudjolo cases 53–6 community-based reparations 123–4 complementarity principle: DRC, transitional justice 174–80, 183–8; national capacity building 134–40; Prosecutor’s strategic direction and 149–52; right not to be tried twice 71, 73–4, 76–7 conduct: right not to be tried twice 68–70, 71 confidential records see non-public documents confirmation of charges: balancing rights of accused and rights of victims 89–97; concept of ‘substantial grounds to believe’ 222–4; nature and purpose of decision 235–7; significance of decision 218–22; ‘traditional’ approach 225–6, 235–6 confirmation of charges (Gbabo approach) 217–18, 236–7, 239–40; criticisms 239–40; imposing ‘largely complete investigation’ 230–5; levelling between pre-trial and trial proceedings 226–8; reasons behind paradigm shift 228–30; scope of adjournment decision 237–9 ‘control over crime’ doctrine 50–6 Côte d’Ivoire 168–9; see also confirmation of charges (Gbabo approach) crime against humanity, terrorism as 24–6, 34 Darfur (Sudan) 158–61; Al Bashir case 56, 159, 160–1, 171 declaration of admissibility 71, 73–4 Degan, V.D. 270 Democratic Republic of Congo (DRC) 156; 2014 Amnesty Law 180–8; principle of complementarity 174–80, 183–8; proposals 188–9; transitional justice, amnesties and alternative forms of justice 178–80; see also Lubanga case/ Decision

derogation of ne bis in idem rule 71–4 ‘dolus specialis’ (genocidal intent) 75–6 double-counting, prohibition of 200 Duch case 122–3, 124, 126 due process principles 73 East African Court of Justice 164–5 El Zeidy, M. 69 El-Keib, A. (Prime Minister of Libya) 168 Erdemovi c´ case 271–3 evidence: Lubanga Decision on Sentence 198–200; see also balancing rights of accused and victims; confirmation of charges (Gbabo approach); witness proofing Extraordinary Chambers in the Courts of Cambodia (ECCC) 121–7, 128, 267 FARCD (DRC) 182, 186, 187, 188 Filippo, D. 30–1, 36 ‘freedom fighters’ 29, 30 Friedman, W. 266 funding: national capacity building 144; TVF 112–14, 116–17, 119–20, 121, 125, 126, 127 Furundžija case 271 Gaddafi, M. and family members 165–7 Gbabo case see confirmation of charges gender-based discrimination in sentencing 207 general principles of law 263–4, 279–80; development in ad hoc and hybrid tribunals 271–4; ICC jurisprudence 277–9; ICC Statute 274–7, 279; identifying in international law 267–9; international criminal law 269–70, 274; public international law 264–6; role as source of law 266–7; as source of law 264–77 Geneva Conventions and Additional Protocols 20–1, 24 genocidal intent (‘dolus specialis’) 75–6 Georgia 152–3 gravity of crime and sentencing 201, 215 Greentree Process 141–2 Guinea 153 Guzman, M. de 275, 277 Hadzihasanovic case 70 Honduras 152 Hostages case 268 Human Rights Watch 186

Index identity crisis 2–4 in camera hearings 94, 99 ‘inclusive’ awards 123–4 independence and impartiality 73–4 indigence of convicted person 126–7 indirect co-perpetration: ‘control over crime’ doctrine and 50–6; Katanga and Ngudjolo cases 53–6 indirect victim, notion of 122–3 individual circumstances and sentencing 204 individual responsibility, difficulties in establishing 40–3 International Center for Transitional Justice (ICTJ): criticism of DRC Amnesty Law 182; Greentree Process 141–2 International Court of Justice (ICJ) 264–6; Statute 269, 270, 280 International Criminal Court (ICC): critical and methodological approaches 7–9; criticisms of 5–7; establishment of 1–2; identity crisis for 2–4; see also Rome/ICC Statute international criminal and humanitarian law (ICL/IHL): armed conflict and terrorism 20–3, 28–9; right to reparation for victims 110 International Criminal Tribunal for the former Yugoslavia (ICTY): command responsibility and joint commission 40, 43–4, 46–7, 48, 50–1, 54–5; confirmation of charges 222–4; general principles of law 271–3; prohibition of double-counting 200; right not to be tried twice 64, 65–6, 68, 69–70, 72, 75; Statute 270; terrorism 19–21, 24 International Criminal Tribunal for Rwanda (ICTR) 19; confirmation of charges 222–4; right not to be tried twice 64, 65–6, 67–8, 69–70, 72, 75; Rules of Procedure and Evidence 254–5; Seromba case 41–2; Statute 270 international donors 144 investigations: African States 154–71; by intermediaries 6–7, 228–9; by Prosecutor 5–6; confirmation of charges (Gbabo approach) 230–5; preliminary 152–3, 172 Israeli-occupied Palestinian territories 152, 153 joint commission see command responsibility 39–40

285

joint criminal enterprise (JCE) doctrine 40, 43–4, 50–1 Kampala: First Review Conference 139–40 Karemera case 254–5 Katanga case 156; and Ngudjolo cases 6, 7, 53–6, 103, 104 Kenya 25–6, 149–51, 161–5, 229–30; Ruto case 253–8, 259–61 Kenyatta, U.M. (President of Kenya) 162–4, 165 Kenyatta case 147, 229–30, 244, 253 Korea 152 Kress, C. 258–9 Kupreski c´ case 271 large-scale and widespread nature of crimes 201–2 ‘largely complete investigation’, confirmation of charges (Gbabo approach) 230–5 Lebanon, Special Tribunal (STL) 31–2, 34, 35, 36 Legal Representative of Victims (LRV) 94–9, 103–5 length of proceedings 6 liability, modes of see command responsibility and joint commission Libya 165–8 Limaj case 22, 23 Lubanga case 6–7, 156; balancing rights of accused and victims 101, 103, 104; ‘control over crime’ doctrine 50–1, 52–3; witness proofing, pre-trial and trial decisions 248–53, 258, 278–9 Lubanga Decision on Reparations 108–9, 127–8; and Cambodian Extraordinary Chambers (ECCC) 121–7, 128; competence and procedure in implementation process 116–17; concrete measure 124–6; confirmation of charges 221–2, 228–9, 235–6; and general principles of law 278–9; ‘inclusive’ awards/community-based reparations 123–4; indirect victim, notion of 122–3; principles to be applied 114–17; reparation: legal framework 109–14; reparation order: criticisms (Appeals) 117–21; state of indigence of convicted person 126–7; substantive principles 114–16 Lubanga Decision on Sentence 193–4, 214–16; aggravating circumstances

286

Index

204–8; child soldiers 206, 207, 210, 211–12, 213; circumstances of victims 207; degree of participation and intent 202–3; determination of sentence 210–14; evidentiary standards 198–200; gender-based discrimination 207; gravity of crime 201, 215; individual circumstances 204; large-scale and widespread nature of crimes 201–2; legal framework 194–7; mitigating circumstances 208–10; ‘punishment’ 205; purposes of punishment 197–8; sentencing factors 200–10; sexual violence 205–6, 213 Mali 153, 169–71 Mao, N. 155 Mbarushimana case 220, 225, 231 mental element of command responsibility 48 methodological reflections 7–9 military commanders and civilian superiors 44–5 mitigating circumstances, sentencing 208–10 Museveni, Y. (President of Uganda) 155 Nagle, L.E. 32–3 national capacity building 133–4, 145; access to legal information 142–3; funding/international donors 144; identifying and assessing needs 141–2; lack of operational capacity 143–4; national legislation 143; positive complementarity 139–40; principle of complementarity and challenges of 134–9 national/domestic law: and international law 267–9; ne bis in idem principle 65–71, 73; witness proofing 252–3 ne bis in idem see right not to be tried twice neo-colonialism, accusations of 8, 17–18, 155, 160, 172–3 NGOs/civil society organizations 144, 159 Ngudjolo case 229; and Katanga case 6, 7, 53–6, 103, 104 Nigeria 153 non-public documents: LRVs’ access to 94–7, 103–5; victims’ access to 91–2, 94–7 ‘organization’, features of and definition of terrorism 22, 23, 24–6, 30, 36

Organization of the Islamic Conference (OIC) 159, 172 OTP see Prosecutor/Office of the Prosecutor Ozaki, Judge 243, 244, 253–4, 255–6, 257 Palestinian territories 152, 153 Pellet, A. 252, 268–9 Permanent Court of International Justice (PCIJ) 263, 264 positive complementarity 139–40 Pre-trial Chamber: balancing rights of accused and victims 80–97; Bemba Gombo case 25, 45–6; and trial decisions (Lubanga case) 248–53, 258, 278–9; see also confirmation of charges proportionality principle, victim-applicant identification and 81–3 Prosecutor/Office of the Prosecutor (OTP): duty to disclose exculpatory evidence 84–9; investigation of Central African Republic (CAR) 157; and Kenyan Presidency 163; one-sided investigation 5–6; positive complementarity 139; strategic direction and complementarity principle 149–52; use of intermediaries 6–7, 228–9; see also confirmation of charges public international law 264–6 ‘punishment’ 197–8, 205 ‘race hunting’, accusations of 147, 162–3 Raimondo, F. 268 rape see sexual violence/rape redactions, victim-applicant identification and ‘principle of proportionality’ 81–3 reparation: legal framework 109–14; see also Lubanga Decision on Reparation right not to be tried twice (ne bis in idem) 61–2, 77; ‘downward’ 75–7; as fundamental principle 63–5; ‘upward’, before ad hoc tribunals 65–8; ‘upward’, before ICC 68–71; ‘upward’, derogation in ICT and ICC Statutes 71–4 rights of accused and victims see balancing rights of accused and victims Rome/ICC Statute 1, 2–3, 5; general principles of law 274–7, 279; ratified countries 152–3; see also specific issues Roxin, C. 51–2 RUF case 212–13 Ruto case 253–8, 259–61

Index

287

Rwanda see International Criminal Tribunal for Rwanda (ICTR)

truth and reconciliation commission (TRC) 178–80, 188–9, 195

Saland, P. 276–7 Schlesinger, R.B. 265 sentencing see Lubanga Decision on Sentence Seromba case 41–2 sexual violence/rape 157, 182; sentencing 205–6, 213 ‘shielding’ condition for retrial 72, 73, 74 Special Court for Sierra Leone (SCSL) 212–13, 273 Special Tribunal for Lebanon (STL) 31–2, 34, 35, 36 Stakic case 54 State: duty to extradite or prosecute international terrorists 33–4; failure to protect and oppression of citizens 30; lack of co-operation 6; terrorism 29, 30; ‘unwillingness’ and ‘inability’ to enforce justice 175–8 ‘successor command responsibility’ 46–7 Sudan see Darfur (Sudan) Šanovic case 273

Uganda 154–5; First Review Conference, Kampala 139–40 Ukraine 153 United Nations (UN): General Assembly 155; Human Rights Council 165, 166, 168–9, 172; Security Council 154, 157, 158, 165–6, 168, 172, 185 United States (US): Hostages case 268; terrorism investigations 27

Tadic´ case 21, 23 Tallgren, I. and Coracini, A. 63 Taylor case 42, 273 terrorism 17–18; armed conflict as legal category under IHL and ICL 20–3; as crime against humanity 24–6, 34; search for definition 26–32; as war crime 19–20, 35; within spectrum of international crimes 34–6; within taxonomy of international crimes 32–4 transitional justice see Democratic Republic of Congo (DRC) Trendafilova, E. 149–50 Trust Fund for Victims (TFV) 112–14, 116–17, 119–20, 121, 125, 126, 127

Vasiliev, S. 279 victims: circumstances of (sentencing decision) 207; indirect 122–3; right to reparation 109–14 (see also Lubanga Decision on Reparation); see also balancing rights of accused and victims Voigt, C. 266–7 Waki Commission, Kenya 161–2 war crime, terrorism as 19–20, 35 witness familiarization 245 witness proofing 242–5; competing approaches 248–58; defining 245–8; Lubanga pre-trial and trial decisions 248–53, 258, 278–9; restrictive or permissive approaches to procedural regime 258–61; Ruto trial decision 253–8, 259–61 witnesses: ‘dual-status’ 100–3; LRV questioning of 98–9; reliability/ credibility 228–9; right of victims to question 91–3 Yugoslavia see International Criminal Tribunal for the former Yugoslavia (ICTY)