The International Criminal Court in Turbulent Times [1st ed.] 978-94-6265-302-3;978-94-6265-303-0

Table of contents :
Front Matter ....Pages i-xx
Introduction (Gerhard Werle, Andreas Zimmermann)....Pages 1-8
The International Criminal Court 20 Years After Rome – Achievements and Deficits (Chang-ho Chung)....Pages 9-22
Withdrawal from the International Criminal Court: International and Domestic Implications (Hannah Woolaver)....Pages 23-42
African Regional Developments – Challenge or Chance for the International Criminal Court? Three Courts in One: The African Criminal Court (Marshet Tadesse Tessema)....Pages 43-59
Immunity of High-Ranking Officials Before the International Criminal Court – Between International Law and Political Reality (Gerhard Kemp)....Pages 61-82
The International Criminal Court and Nationals of Non-Party States (Yaël Ronen)....Pages 83-110
The International Criminal Court and the Security Council – The International Criminal Court as a Political Tool? (Robert Frau)....Pages 111-130
The International Criminal Court Reparations Scheme – A Yardstick for Hybrid Tribunals? (Philipp Ambach)....Pages 131-144
The International Criminal Court and Substantive Criminal Law: Progressive Development or Cautious Reluctance? (Volker Nerlich)....Pages 145-153
Activating the Crime of Aggression Amendments: A Look Ahead (Leena Grover)....Pages 155-172
Back Matter ....Pages 173-174

Citation preview

International Criminal Justice Series

Volume 23

The International Criminal Court in Turbulent Times

Gerhard Werle Andreas Zimmermann Editors

International Criminal Justice Series Volume 23

Series Editors Gerhard Werle, Berlin, Germany Moritz Vormbaum, Münster, Germany

Series Information The International Criminal Justice Series aims to create a platform for publications covering the entire field of international criminal justice. It, therefore, deals with issues relating, among others, to: – – – –

the work of international criminal courts and tribunals; transitional justice approaches in different countries; international anti-corruption and anti-money laundering initiatives; the history of international criminal law.

It is peer-reviewed and seeks to publish high-quality works emanating from excellent scholars.

Editorial Office Prof. Dr. Gerhard Werle Humboldt-Universität zu Berlin Faculty of Law Unter den Linden 6, 10099 Berlin, Germany [email protected] [email protected]

More information about this series at http://www.springer.com/series/13470

Gerhard Werle Andreas Zimmermann •

Editors

The International Criminal Court in Turbulent Times

123

Editors Gerhard Werle Faculty of Law Humboldt University of Berlin Berlin, Germany

Andreas Zimmermann Faculty of Law University of Potsdam Potsdam, Germany

ISSN 2352-6718 ISSN 2352-6726 (electronic) International Criminal Justice Series ISBN 978-94-6265-302-3 ISBN 978-94-6265-303-0 (eBook) https://doi.org/10.1007/978-94-6265-303-0 Published by T.M.C. ASSER PRESS, The Hague, The Netherlands www.asserpress.nl Produced and distributed for T.M.C. ASSER PRESS by Springer-Verlag Berlin Heidelberg © T.M.C. ASSER PRESS and the authors 2019 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. This T.M.C. ASSER PRESS imprint is published by the registered company Springer-Verlag GmbH, DE part of Springer Nature The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany

Foreword

The International Criminal Court After 20 Years: The Possible Way Ahead The topic ‘ICC after 20 years: The Possible Way Ahead’ clearly aims at the future of the International Criminal Court (ICC).1 Unfortunately, the future is uncertain. But this does not mean that we are at its mercy. If we want to shape the future we need to revive the vision for the ICC, that vision that brought the ICC into existence. Visions are not utopias; they are strategies for action and can mobilise unexpected forces. The future is of course rooted in a proper understanding of the present. Such stocktaking is the subject of this conference. Insofar I will try to interweave my thoughts with some of its topics. The conference labels the current state of affairs regarding the ICC as ‘turbulent times’. Well, there is nothing wrong with that. However, I am doubtful if this expression is apt to distinguish the present from any time in the past or the expectable future. I am not sure we can really trust that the times for the ICC will ever be calm and settled. Let me come back to that in a moment. Incidentally, I am glad that the organisers did not choose the expression ‘crisis’ as the motto of the conference because looking back at the discussions of the past years you could get the impression that the ICC is not only the first permanent international criminal court, but also the first international court in a permanent crisis. I want to present an alternative narrative to such negative descriptions and convey a more optimistic and gripping outlook for the future. The often heard notion ‘crisis’ is regularly attributed to withdrawals and threats to withdraw from the Rome Statute. Withdrawals are of course a problem for the ICC. The less States parties, the less the Court can claim universality and the more difficult it is to achieve the goal to end impunity for the most horrendous crimes. At the same time, withdrawals are of course the sovereign right of States parties, and, 1

This Foreword reflects a speech the author gave on 31 May 2018 in The Hague in the framework of the conference entitled The International Criminal Court in Turbulent Times.

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as a result, the right to withdraw is immanent to any international treaty. Other international entities, like the European Union and the United Nations Educational, Scientific and Cultural Organisation, recently have painfully experienced this phenomenon too. But withdrawals or threats to withdraw are not a sign of a ‘crisis’ of the ICC. Instead, they tell us more about the situation in the States parties in question. If you will: withdrawals are rather a sign of a ‘crisis’ in the concerned State than at the ICC. Withdrawals certainly do not influence our judicial work and should not influence our policies. If we tried to accommodate States parties’ interests in order to keep them in the Rome Statute system, we would betray our mandate. The difficult situations in which the Court may find itself at times are meant to happen. The Court is supposed to render displeasing and uncomfortable decisions. Challenging discussions regarding the question in which situation the Office of the Prosecutor decides to commence an investigation, or regarding cooperation of States and immunities of high-level officials, like sitting President al-Bashir, are a natural consequence of our mandate and the statutory framework. The Court is not meant to be a comfort zone. It must remain a staunch defender of those principles enshrined in the Rome Statute and not dither and waver in reaction to the current international political climate. I am convinced that in the long run, the Court will benefit from being perceived as a principled and firm judicial institution. Instead of focusing its efforts on preventing withdrawals, the ICC should actively try to promote universality. It should make efforts to motivate more States to become parties to the Rome Statute. There are a lot of blank spots on the map that have to be filled or where I see at least potential to fill them. I am not talking about powerful States or those that want to be seen as such. However, there are a lot of other States that might be willing to break free from the firm grip of more powerful States, that might decline to let other States dictate to them what to do and what not to do. Potential candidates, I would think of at first, are the 30 States which have signed the Statute but have not yet ratified it. In some regions of the world, for example in Asia, respective initiatives are under way; we have to support and intensify them. Actively engaging to let States join the Rome Statute is definitely better than waiting until the political environment changes. It should also be mentioned that the ICC is one of few international institutions where all States parties actually have—and not only on paper—an equal right to voice their position or concerns on any matter of substance irrespective of how big, powerful or rich they are. That is a striking difference to most international organisations which are actually governed by the political, military and economic powers. With regard to substantive criminal law, it seems unlikely—given the current diplomatic landscape—that the Rome Statute will evolve to include entirely new crimes beyond those in Article 5 of the Statute. It is likelier to see smaller amendments to existing types of crimes (such as new prohibited weapons in the war crimes provision) or understand a certain conduct that could constitute a new type of crime as falling under an existing crime, for example interpreting certain acts of terrorism as crimes against humanity. Allow me to say in this respect that the Court

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will sometimes not be able to satisfy urgent calls for intervention by civil society and activists—the mandate of the Court must be carefully preserved and fulfilled and should not be overstretched. The activation of the exercise of the crime of aggression is an important step in the Court’s operation. The Court will have to amend quickly its legal instruments, if deemed necessary, in order to be prepared for the moment it is seized with a question involving this crime. It will inevitably involve sensitive issues and touch upon interests of States. Admittedly, it is not likely that the Court will have many such cases as the procedural preconditions and legal requirements of the crime are rather high. If it comes to that at all the Security Council will play procedurally a crucial role in the exercise of jurisdiction over the crime of aggression. It is the hope that the Security Council will fulfil its responsibilities, if it decides to make use of its prerogative responsibly and timely. I have to admit that such hope might not seem realistic in the light of the present dynamics in the Security Council. It is regrettable that there is a blockade of certain Security Council members regarding referrals of situations, for example in Syria. It is also rather disappointing that the Security Council has not reacted to the ICC’s numerous decisions in relation to findings of non-cooperation of certain States. Yet, in case times are changing, the ICC has to be ready. And looking back on the past decades, and I only mention the fall of the Berlin Wall and the collapse of the Soviet Union, I would not dare say that any current political state of affairs remains forever. However, it should also not be forgotten that the ICC will have a problem of credibility as long as three out of the five permanent members are not parties to the Rome Statute but are entitled, together with others, to refer situations to the Court. This is a point of criticism which I often have to face in discussions about the ICC. It is true that this can be seen as a structural deficit of the Rome Statute. Yet, complaining about it will get us nowhere. The Rome Statute still remains a big accomplishment; it was the best what could be achieved under the conditions of Realpolitik: it is either this Court with all its limitations and assets or none at all. There might also be a bright side, albeit only faintly glowing: if the big powers were States parties to the Rome Statute, chances would be high that they would dominate the institution and attempt to politicise judicial proceedings. Since they are not, the ICC does not have to cater to their wishes. Ultimately, it is the Chief Prosecutor who decides if she initiates an investigation upon referral by the Security Council. If this legal power is applied confidently, it can be an effective means to counter possible considerations by members of the Security Council to use the ICC as a political tool. Let me stick for a moment to the problem of referrals and its consequences. I would like specifically to address the critique by some African States and the African Union that the ICC is targeting Africa. I will not repeat all the amply-known arguments that can be brought forward against this reproach. It may be sufficient to cite late Kofi Annan who said: ‘It is not Africa that is hostile to the Court, only certain leaders’. Allow me to address at least one accusation that is frequently repeated in this context, namely that the ICC is a ‘Western-led

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institution’ that pursues ‘neo-colonial goals’. Nothing could be more wrong. This contention is demagogic and clearly led by the interests of those, who use this kind of propaganda for their own purposes. Twenty-three per cent of the ICC’s staff comes from Africa, often in high-level positions; four of the 18 judges come from Africa. The two most important positions at the Court, the President and the Chief Prosecutor, are African. In the light of these facts, it is not an exaggeration to say that you will not find any other international organisation like the ICC where people from the African continent have more influence and Western powers have less. That said, it is true that most of the situations and all of the cases that we currently deal with originate from Africa. This is not a satisfying state of affairs, given the global situation. It is important for the future that the ICC is able to demonstrate that it is not exclusively responsible for Africa. This is of course easier said than done. Attempts to go outside Africa are there—I only mention preliminary examinations or investigations in the situations in Afghanistan, Georgia, Ukraine, Palestine, the Philippines and Venezuela—but we all know that such steps are extremely difficult. In these situations, political resistance is particularly fierce and political support and cooperation often insufficient or non-existent. However, the ICC should not be disheartened. It must remain relevant in the international discourse. The Court, including the Office of the Prosecutor, must be seen as reacting more timely to international developments and conflict situations—the latest request regarding the Rohingya people could be a promising step in the right direction. During this conference, Panel 2 addressed the topic: ‘Are regional developments in Africa a challenge or a chance for the ICC?’ It is clear that the Court will only be able to address selected cases in conflict situations; it is not designed to prosecute hundreds of persons in one situation. Regional courts may therefore prove to be useful means to effectively share the burden with the Court in certain situation and complement the ICC. The 2014 Malabo Protocol, which provides for an International Criminal Court Section in the yet-to-be established African Court of Justice and Human Rights, grants in Article 46A bis immunity to sitting Heads of State and other senior State officials during their tenure of office. This is a de facto assurance of impunity for the most powerful and often most responsible. This gap might leave room for the ICC to prosecute exactly such persons. The principle enshrined in Article 27 of the Statute that the official capacity as Head of State or Government shall in no case exempt a person from criminal responsibility and that immunities under national or international law shall not bar the Court from exercising its jurisdiction over such a person has to be preserved under all circumstances. The same applies to any political attempts to shield Heads of State and senior State officials from prosecution or arrest for crimes against humanity, war crimes and genocide. It is sort of expected that the ICC in principle welcomes new ad hoc or hybrid tribunals because they share the burden with the Court. Well, I am not entirely convinced. You have to assess this on a case-by-case basis. There might be situations where such tribunals are a meaningful complement to the ICC. However, it seems to me that the practical and political problems are often underestimated.

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Hopes that such regional projects may be free of political influence and more efficient may prove ultimately to be utopian. Moreover, it should not be forgotten that the ICC was created as a permanent international criminal court to make ad hoc solutions expendable. Ad hoc tribunals and hybrid courts tend to endanger the sustainability of the ICC, and I sometimes cannot avoid the impression that they are meant to do exactly that. Hence, whenever a perceived need for such ad hoc tribunals arises, reflection is required as to why the ICC couldn’t serve as a pre-existing solution. I want to point out that in recent years the Court has significantly expedited its proceedings and made them much more efficient. It has proven that it is able to deliver justice in a timely manner and at the same time upholding the high standards of due process as foreseen in the Rome Statute. It might also turn out as an illusion that ad hoc tribunals (or hybrid courts) are more cost-effective than the ICC. We are told that the ICC is expensive. In a way this is true but there are good reasons for it. The logistical effort to keep things going in a multitude of different situations and cases is huge; unfortunately, I do not have the time to dwell on that. It is of course self-evident that the ICC has to account for the money of the taxpayers it spends. However, the costs should also be put into perspective: the annual budget of the ICC is roughly the same as the annual budget for the fire brigade in the city of Berlin (EUR 140 million compared to EUR 147 million). If you think that this is apples compared with oranges, here are some figures comparing different apples: to date, the ICC Chambers have been assigned with 14 situations; active proceedings are ongoing in at least ten cases. The International Residual Mechanism for Criminal Tribunals has a biannual budget of EUR 100 million, EULEX Kosovo and the Kosovo Specialist Chambers a combined annual budget of roughly EUR 90 million. I want to make some very brief remarks on complementarity. The ICC can have considerable positive impact on national justice. As a recent study by Human Rights Watch has shown, there are serious obstacles to justice in national courts. It also concluded that the ICC Prosecutor can have particular influence on situation countries during preliminary examinations. Her efforts can prompt States to pursue their own investigations, thus diminishing the need for the ICC to step in. These efforts to encourage successful local proceedings should be intensified by the ICC, such as through dialogue or reverse cooperation by the Court, and supported by States parties. The Court must also remain an authoritative source for relevant case law regarding crimes and modes of liability for domestic prosecutors and courts. The Court must therefore identify its relationship with national authorities by sharing information on case law and best practices. Creative solutions should be found by States, universities and civil actors to disseminate broadly the jurisprudence of the Court. To this effect, it would be helpful to make international criminal law, and the law of the ICC in particular, part of the university curricula. Given the complementarity system upon which the ICC operates, the law of the ICC should also be a mandatory component in the education and training of national judges and prosecutors.

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Let me conclude with a few general remarks: I think it is fair to say that the current trend in international affairs is not in favour of international organisations and entities; it is not in favour of a global order governed by internationally recognised rules. Nationalism and ruthless enforcement of national interests seem to be predominant. The ICC also feels this tendency. Realpolitik fights back vehemently against the loss of sovereignty, power and influence. The challenges of the Court are enormous, the resistance is huge, we act constantly under the pressure to demonstrate legitimacy, and we sometimes have to fight against exaggerated expectations. However, nobody could have expected that it would be easy to break with the culture of impunity for international crimes that existed for thousands of years. Resistance and setbacks had to be and have to be expected. The evolution of international criminal justice was never and will never be a linear progress. Let us not forget that the existence of the ICC and its operations are an essential contribution to the rule of law in international affairs. This is something the States parties can and should be proud of. The activities of the Court are also a sign that the universality of human rights moves on. The sheer concept of penalising crimes against humanity before a permanent international criminal court underscores the recognition of rights belonging to all human beings without distinction. Insofar, the ICC constantly reflects the close relationship with human rights law and international humanitarian law in terms of goals, values and terminology. Further proof for the dissemination of the Court’s principles is the fact that many States parties have incorporated international crimes into their domestic legal framework. This is also a contribution by the States parties to the rule of law in international affairs, to the development of a global legal culture. All of this is even more remarkable since it was achieved against the resistance of the so-called super powers. For the first time the victims have the right to participate in proceedings and the possibility to receive reparations in case of a conviction. Those who have suffered, those who have experienced first-hand the worst human rights violations imaginable, are not only the mere objects of scrutiny by the parties and the judges any more but they are active participants in the proceedings. This is a major progress in international criminal law that should not be belittled. By recognising and conceding the victims independent procedural rights in criminal proceedings against the alleged perpetrator, the concept of human rights is significantly expanded. Lastly, in the discussions about the ICC, I too often notice a kind of negativism, displeasure, fatigue or a lack of vision. Yet, pessimism and anxiousness paralyse the courage that is needed to cope with the problems of the future. What we need— more than ever—is the power and the will to stay the course for the ICC. We have to shape the future and not succumb to the imposition of current political circumstances. When I speak of ‘we’ I am referring to all those favourable to the ICC. I mean primarily the States parties themselves, the Court and its principals. I also mean civil society and—yes—I mean the academic world that supports critically the cause of the ICC, represented by many distinguished professors in this room. I know we have a tedious task ahead of us but this has never been different in the history of the Court and it will never be any different in the future.

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And it is worth to support the ICC and the idea it symbolises. At the end of my remarks, I want to recall the emblematic words of the Preamble of the Rome Statute: ‘That the most serious crimes of concern to the international community as a whole must not go unpunished’. Let us try to make ‘possible ways ahead’ become a reality in the future. Thank you. The Hague, The Netherlands

Bertram Schmitt Judge, International Criminal Court

Acknowledgements

This book is based on the conference The International Criminal Court in Turbulent Times, which was organised by Prof. Gerhard Werle (Humboldt University of Berlin) and Prof. Andreas Zimmermann (University of Potsdam) at the German Embassy to the Netherlands in The Hague on 31 May and 1 June 2018. We as editors are therefore grateful for the hospitality and support provided by Ambassador Dirk Brengelmann and his entire staff and, in particular, Dr. Reinhard Hassenpflug, Legal Adviser of the German Embassy, as well as Ms. Sabine Könen and Ms. Barbera Kuppens-Keizer. Ms. Tanja Altunjan, Dr. Leonie Steinl (both Humboldt University of Berlin) and Konrad Neugebauer (University of Potsdam) were extremely helpful in providing input during the preparation of the programme, and when it came to summarising and reporting about its results, while Ms. Ullrike Schiller shouldered all organisational matters in an extraordinary manner. The editors would also like to thank all the people supporting the editing process of this publication, namely Justine Badura, Jan Eiken, Mehmet Baran Ersan, Christine Götz, Nora Jauer, Patricia Kröger and Nella Sayatz, as well as, first and foremost, Mr. Jürgen Bering. Last but certainly not least, the editors are greatly indebted to the German Foundation for Peace Research whose financial support made the conference that formed the basis for this publication possible. Berlin, Germany Potsdam, Germany January 2019

Gerhard Werle Andreas Zimmermann

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Contents

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1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Gerhard Werle and Andreas Zimmermann

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The International Criminal Court 20 Years After Rome – Achievements and Deficits . . . . . . . . . . . . . . . . . . . . . . . . . Chang-ho Chung

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Withdrawal from the International Criminal Court: International and Domestic Implications . . . . . . . . . . . . . . . . . . . . . Hannah Woolaver

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4

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African Regional Developments – Challenge or Chance for the International Criminal Court? Three Courts in One: The African Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Marshet Tadesse Tessema Immunity of High-Ranking Officials Before the International Criminal Court – Between International Law and Political Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Gerhard Kemp The International Criminal Court and Nationals of Non-Party States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Yaël Ronen

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The International Criminal Court and the Security Council – The International Criminal Court as a Political Tool? . . . . . . . . . . . . . . 111 Robert Frau

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The International Criminal Court Reparations Scheme – A Yardstick for Hybrid Tribunals? . . . . . . . . . . . . . . . . . . . . . . . . 131 Philipp Ambach

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The International Criminal Court and Substantive Criminal Law: Progressive Development or Cautious Reluctance? . . . . . . . . 145 Volker Nerlich

10 Activating the Crime of Aggression Amendments: A Look Ahead . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 Leena Grover Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

Editors and Contributors

About the Editors Gerhard Werle is Professor of German and International Criminal Law, Criminal Procedure and Modern Legal History at the Humboldt University of Berlin. Andreas Zimmermann is Professor of International and European Law at the University of Potsdam, Germany and Director of the Potsdam Centre of Human Rights.

Contributors Philipp Ambach International Criminal Court, The Hague, The Netherlands Chang-ho Chung International Criminal Court, The Hague, The Netherlands Robert Frau European University Viadrina, Frankfurt (Oder), Germany Leena Grover Tilburg University, Tilburg, The Netherlands Gerhard Kemp Alexander von Humboldt Research Fellow, Humboldt Universität zu Berlin, Berlin, Germany; Stellenbosch University, Stellenbosch, South Africa Volker Nerlich International Criminal Court, The Hague, The Netherlands Yaël Ronen Hebrew University of Jerusalem, Jerusalem, Israel Marshet Tadesse Tessema Hawassa University, Awasa, Ethiopia Gerhard Werle Humboldt University of Berlin, Berlin, Germany Hannah Woolaver University of Cape Town, Cape Town, South Africa Andreas Zimmermann University of Potsdam, Potsdam, Germany

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Abbreviations

ACC ACHPR ACJHR African Court AU art(s). ASP ch DIPA DPRK DRC EAC ECCC ed(s) edn. EU ICC ICJ ICTR ICTY IIIM

KSC Malabo Protocol

African Criminal Court African Court on Human and Peoples’ Rights African Court of Justice and Human Rights African Court of Justice and Human and Peoples’ Rights African Union Article(s) Assembly of States Parties Chapter Diplomatic Immunities and Privileges Act 37 of 2001 Democratic People’s Republic of Korea Democratic Republic of Congo Chambres africaines extraordinaires (Extraordinary African Chambers) Extraordinary Chambers in the Courts of Cambodia Editor(s) Edition European Union International Criminal Court International Court of Justice International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 Kosovo Specialist Chambers and Specialist Prosecutor’s Office Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human and Peoples’ Rights

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Merger Protocol n no(s) OTP p(p) P5 para(s) SCA SCC SCSL STL TEU TFV UK US VCLT

Abbreviations

Protocol on the Statute of the African Court of Justice and Human Rights Footnote Number(s) Office of the Prosecutor Page(s) Permanent Members of the UN Security Council Paragraph(s) South African Supreme Court of Appeal Cour pénale spéciale Centrafricaine (Special Criminal Court for Central African Republic) Special Court for Sierra Leone Special Tribunal for Lebanon Treaty on European Union Trust Fund for Victims United Kingdom United States Vienna Convention on the Law of Treaties

Chapter 1

Introduction Gerhard Werle and Andreas Zimmermann

Contents 1.1 1.2 1.3 1.4

Reflections on Achievements and Challenges .................................................................. Effects of the Changing Global Political Framework....................................................... Relationship vis-à-vis Other Actors .................................................................................. Specific Legal Questions ...................................................................................................

2 4 5 6

On the eve of the 20th anniversary of the adoption of the Rome Statute of the International Criminal Court (ICC), the conference, the results of which are published hereinafter, held in the premises of the German embassy in The Hague on 31 May and 1 June 2018, brought together leading scholars and eminent practitioners from the field of international criminal law and focused on questions of international criminal law in its global political dimensions. It aimed to analyse and evaluate the current and future challenges the ICC is facing after 15 years of operation. Undeniably, no international criminal court has ever operated in non-turbulent times. Nevertheless, within the current global context, the ICC stands at a turning point. It was established in 1998 despite considerable resistance from many powerful political players such as the United States, the Russian Federation, India and China. Today, several States parties, particularly African States, which represent the largest regional group and which have been among the most dedicated supporters of the ICC’s establishment, have voiced serious criticism. Many of these States accuse the Court and its Prosecutor of political bias for almost exclusively selecting situations on the African continent. In 2016, these developments culminated in three notices of withdrawal from the ICC, namely on the part of Burundi, South Africa and The Gambia. Burundi’s withdrawal took effect in October 2017. Nevertheless, the Court opened an investigation into events prior to this date. South Africa and G. Werle (&) Humboldt University of Berlin, Berlin, Germany e-mail: [email protected] A. Zimmermann University of Potsdam, Potsdam, Germany e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 G. Werle and A. Zimmermann (eds.), The International Criminal Court in Turbulent Times, International Criminal Justice Series 23, https://doi.org/10.1007/978-94-6265-303-0_1

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G. Werle and A. Zimmermann

The Gambia have since revoked their withdrawals and the “mass exodus” many had feared did not occur. Still, the possibility of further withdrawals remains, and indeed the Philippines have withdrawn from the ICC in March 2019. These developments illustrate that the growing discontent among at least a certain number of States parties continues to constitute a major challenge for the ICC. The scope and limits of the Court’s work are determined by its States parties. Its success in playing a meaningful role in the fight against impunity for the most serious crimes is dependent upon the States parties’ confidence. The future development and the impact of the ICC – as the first permanent international criminal court – will depend on the development of its jurisprudence and its way of dealing with politically contested issues. The contributions in this book analyse some of the most frequent points of contention such as Head of State immunities, an issue of continued relevance and particular controversy. They also discuss the current developments in their historical perspective. Many of these contentious questions were already raised during the negotiation process leading to the adoption of the Rome Statute but continue to pose immense challenges for the Court to this day. This is illustrated by the negotiations leading to the activation of the Court’s jurisdiction as far as the crime of aggression is concerned. Furthermore, within a changing global political framework, some of the most urgent challenges concern the ICC’s relationship not only to its States parties, but also to third States and regional or international institutions and actors, including the African Union, as well as the Security Council. What has the ICC been able to achieve in the past 15 years? How valid is the critique the ICC is confronted with? How can and should the ICC sustainably deal with the considerable political implications of its decisions in any stage of the proceedings? These are the questions that the contributors to this book seek to answer from their respective backgrounds as academics and practitioners in the field of international criminal justice. Cases and literature cover the period up to December 2018.

1.1

Reflections on Achievements and Challenges

The first part of this book deals with the reflections on the achievements and challenges of the first twenty years of the Rome Statute. In the foreword to this book, Bertram Schmitt, Judge at the ICC Trial Division, stresses that there is a need to revive the vision for the ICC. He reflects on the discussions about the ICC’s status in the past years and criticises the rather negative description of the ICC as a court in permanent crisis. Judge Schmitt argues that the withdrawals and threats of withdrawals of States parties do not necessarily lead to a ‘crisis’ of the ICC; instead, he suggests that they are a sign of ‘crisis’ in the States in question. In his view, withdrawals do not and should not influence the ICC’s judicial work. Instead of pleasing States parties in order to prevent withdrawals, he urges that the ICC should continue to render potentially uncomfortable decisions

1 Introduction

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and remain a staunch defender of the principles underlying the Rome Statute. Furthermore, he proposes that the ICC should work towards universality by motivating more States to become parties to the Rome Statute. With regard to the role of the UN Security Council, Judge Schmitt acknowledges that the present power dynamics pose challenges for the ICC. Still, he highlights that the independence of the ICC Prosecutor ensures that the ICC is not used as a political tool. Pertaining to the critique voiced by some African States and the African Union, Judge Schmitt strongly dismisses the view that the ICC is a ‘Western-led’ or ‘neo-colonial’ institution. Nevertheless, he stresses the need for the ICC to react more rapidly to conflict situations outside Africa in order to convince those who criticise its Africa-dominated work. Moreover, Judge Schmitt discusses the potential role of regional or hybrid institutions, underlining the importance of the ICC as a permanent court, which in his view is a more practical and sustainable solution than ad hoc tribunals. Judge Schmitt concludes that while the ICC, like many international organisations, is certainly facing resistance and tendencies of nationalism, this does not come as a surprise: setbacks were and are to be expected when striving to end impunity for international crimes. Despite the challenges, Judge Schmitt asserts that the ICC has contributed to the rule of law in international affairs and the universality of human rights and deserves the support of its States parties as well as civil society and the academic world. Chang-ho Chung, Judge at the ICC Pre-Trial Division, analyses achievements and deficits of the ICC twenty years after its establishment. He identifies current challenges the ICC is dealing with, as well as opportunities to increase the Court’s impact. With regard to the ICC’s alleged lack of efficiency, he points to the possibilities and responsibilities of the ICC judges to improve the proceedings and enhance the Court’s performance. Additionally, Judge Chung emphasises the significant role of victims in the ICC proceedings, recalling that the victim participation regime in the Rome Statute constitutes a major innovation and contribution to the development of international criminal law. At the same time, Judge Chung demands that the Court and its hearings are brought closer to the victims in the situation countries, possibly by even constituting hybrid trial chambers at the ICC. Judge Chung also calls for further improvements of the ICC’s e-court system in order to provide full access to information for all institutions involved in the judicial process, arguing that this will support their efficiency and effectiveness. Furthermore, Judge Chung points out the possibility of strengthening the ICC by supporting the relationship between the Court and the States parties through information and experience sharing and by enhancing cooperation with regional courts. He asserts that this, among other suggested measures, could lead to an enhancement of cooperation from the States parties, which is crucial for the Court’s success. As a ‘new idea forward’, Judge Chung suggests expanding the subject-matter jurisdiction of the ICC to other crimes, such as human trafficking, arms trade and environmental crime by individuals and even corporations. In conclusion, Judge Chung does not doubt the relevance of the ICC and its work for the future, but at the same time proposes specific ideas to ensure its sustainability.

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Effects of the Changing Global Political Framework

The second part of the book focuses on the effects of the changing global political framework, dealing with implications of the withdrawals, African regional development and the question of immunities. Hannah Woolaver, Associate Professor at the University of Cape Town, South Africa, analyses international and domestic implications of withdrawals from the ICC. Woolaver first sketches an overview of the past withdrawals and threats of withdrawals. Between 2016 and 2018, Burundi, South Africa, The Gambia and the Philippines have given notifications of withdrawal, though South Africa and The Gambia have since revoked their withdrawals. Woolaver then discusses the legal implications of withdrawals under Article 127 of the Rome Statute. She explains that States cannot free themselves from any pre-withdrawal obligations, namely financial obligations and duties to cooperate with regard to investigations begun prior to the termination of the ICC membership. With regard to the ICC’s jurisdiction after a State’s withdrawal, Woolaver analyses the meaning of the phrase ‘matter under consideration by the court’ contained in Article 127 of the Rome Statute. She then focuses on the question whether a withdrawal notification can be revoked before the withdrawal takes effect, highlighting similar questions with regard to other treaties, as well as the European Union. Pertaining to the domestic level, Woolaver discusses consequences on the implementation of international criminal law in domestic jurisdiction as well as the constitutionality of withdrawals. She concludes that withdrawals will lead to a wide range of international and domestic consequences for the States and the ICC itself. As such, she asserts that the Court must take the States’ concerns seriously in order to prevent further withdrawals. Marshet Tadesse Tessema, Assistant Law Professor at Hawassa University, Ethiopia, discusses African regional developments in international criminal law and the concept of the African Criminal Court as a challenge or chance for the ICC. Tadesse Tessema describes the envisaged establishment of the African Criminal Court through the Malabo Protocol, which, once it has entered into force, would further expand the jurisdiction of the proposed African Court of Justice and Human and Peoples’ Rights by adding a criminal division. He states that the idea of creating an African Criminal Court with jurisdiction over the four core crimes, as well as further crimes such as unconstitutional changes of government, terrorism and corruption is not only the result of the tense relationship between the African Union and the ICC but has been raised since the 1970s, long before the establishment of the ICC. Tadesse Tessema then discusses the envisaged Court’s jurisdiction as well as the immunity clause contained therein, which in his view is unacceptable and to be dismissed. Furthermore, Tadesse Tessema analyses the Court’s relationship to domestic jurisdictions, which is guided by the principle of complementarity, as well as to the ICC. He concludes that while the immunity clause represents a serious drawback, the proposed African Criminal Court should not be prematurely dismissed on the grounds that its establishment appears to be a response to the conflict between the African Union and the ICC. Instead, Tadesse

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Tessema asserts that the establishment of regional mechanisms like the African Criminal Court constitutes a progressive step for the international criminal justice system and should be encouraged. Gerhard Kemp, Law Professor at Stellenbosch University, South Africa deals with the question of immunity of high-ranking officials before the ICC in a legal and political context. Kemp asserts that this debate concerns more than a mere legal-technical interpretation of the Rome Statute. He situates the debate within the context of the political reaction regarding the ICC’s alleged ‘bias against Africa’, as well as the complicated relationship between the ICC and the African Union. Kemp critically analyses the ICC’s decisions on non-cooperation against Malawi, Chad, the Democratic Republic of the Congo, South Africa and the Kingdom of Jordan in relation to the arrest warrant of Sudanese President Omar al-Bashir. He also discusses relevant decisions by the Supreme Court of Appeal of South Africa and the Nairobi Appeal Court, which affirmed the respective State’s duty to arrest President al-Bashir. With regard to the inconsistent reasoning of past ICC decisions, Kemp welcomes the appeal lodged by the Kingdom of Jordan before the ICC, and expresses his hope for a clear and principled decision that will serve as guidance for future ICC practice, as well as for domestic jurisdictions. He also calls for a broader legal, policy and political debate in order to find a sustainable way forward for the ICC, which is dependent on State cooperation for its goal of ending impunity.

1.3

Relationship vis-à-vis Other Actors

The third part of the book deals with the relationship of the ICC vis-à-vis States parties, third States, as well as regional and international institutions and actors from a legal perspective. Yaël Ronen, Professor of International Law at the Academic Centre for Science and Law in Hod Hasharon, Israel, focuses on the ICC’s jurisdiction over nationals of non-party States and analyses legal, practical and political challenges which the prosecution of crimes by nationals of non-party States at the ICC may induce. To begin with, Ronen offers an overview of situations at the ICC that currently involve, or have involved, nationals of non-party States acting on the territory of a State party, namely Russian citizens in Georgia and Ukraine, US citizens in Afghanistan, Israeli citizens in Palestine and on board a ship flying the flag of the Comoros, citizens of Myanmar in Bangladesh, and finally DPRK citizens in the Republic of Korea. Ronen stresses that non-party States, particularly the United States, have prominently voiced their objections to jurisdiction over their nationals, but asserts that a State’s lack of consent is not, in itself, reason to reject the ICC’s power to try non-party State nationals. Ronen then discusses three legal issues that may arise with respect to the prosecution of nationals of non-parties, illustrating their relevance to current situations. In this regard, she analyses whether the prosecution of non-party State nationals for non-customary crimes violates, first, the prohibition on retroactive criminalisation or, second, the requirement of foreseeability in criminal

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law. Third, Ronen discusses the claim that rulings of the Court regarding non-party State nationals may violate the rights of that State on the basis of the Monetary Gold principle. Ronen concludes that prosecutions of crimes committed by nationals of non-party States pose legal and practical challenges. She asserts that the ICC should act sensitively with regard to these challenges in order to avoid accusations of overreaching. Robert Frau, Senior Research Associate at the European University Viadrina, Frankfurt (Oder), Germany, focuses on the relationship between the ICC and the Security Council of the United Nations and raises the question whether the ICC is used as a political tool. Frau asserts that the permanent members of the Security Council use the mechanism of referrals to the ICC not only for altruistic reasons, but also for self-serving purposes. Considering this, Frau analyses the two Security Council referrals concerning Darfur (Sudan) and Libya with regard to their respective historical and political background, the current status of the two situations and the actions of the permanent members in the follow-up to the referrals. He particularly criticises the Security Council’s lack of support for the ICC in these situations. Frau then discusses the proposed referrals in respect of the Democratic People’s Republic of Korea, Syria and Myanmar and illustrates the reasons for the respective failures of the referrals, particularly the contrasting policy goals of the permanent members of the Security Council. Additionally, Frau highlights the ‘use’ of the ICC as a political tool in the context of the relationship between Africa and the ICC, referring to the failed arrest of Sudanese President Omar al-Bashir in South Africa, as well as the withdrawals and threats of withdrawals from the ICC. To conclude, Frau underlines that the Security Council, as a political body, takes decisions for political reasons.

1.4

Specific Legal Questions

The book concludes by discussing specific legal questions, which are paramount for the further development of the ICC. Philipp Ambach, Chief of the Victims Participation and Reparations Section in the Registry of the International Criminal Court, analyses the ICC’s reparations scheme and raises the question whether it can serve as a yardstick for hybrid tribunals. He describes the establishment of the ICC not only as a revolutionary contribution to international criminal justice in general but also, and especially, as a revolution for victim participation in the proceedings and the possibility for victims to obtain reparations. Ambach delineates the ICC’s victim participation and reparations regime during the different stages of the proceedings and highlights the key role of the Trust Fund for Victims in ICC proceedings with an ‘assistance and reparations mandate’. He asserts that, in contrast to the ICC, reparations regimes are rarely developed at hybrid courts. To illustrate this, Ambach refers to different examples of reparation regimes and their challenges and deficits at hybrid courts,

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such as the Special Tribunal for Lebanon, the Extraordinary Chambers in the Courts of Cambodia and the Extraordinary African Chambers. In his view, the different regimes show that there is no common trend emerging regarding a specific scope or procedure. According to Ambach, key challenges relate to reliable funding and management of expectations. He concludes that it is too early to tell whether the ICC’s reparations regime can serve as a yardstick, underlining the importance of sustainable long-term strategies for meaningful reparations for victims. Volker Nerlich, Legal Adviser at the International Criminal Court, questions whether the ICC’s approach towards substantive criminal law has been one of progressive development or of cautious reluctance. He observes that the ICC’s jurisprudence on substantive international criminal law, in contrast to that of the ad hoc tribunals, has been rather limited and that the Court has so far not diverged substantially from the ad hoc tribunals’ decisions. Nerlich notes that the approach to drafting the Rome Statute was significantly different from that of the ad hoc tribunals’ Statutes. Rather than setting out the Court’s jurisdiction in general terms, as was the case in the Statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda, the Rome Statute, which was the result of extensive negotiations, lays down specific definitions of crimes as well as detailed rules on modes of liability and other matters of substantive law. In its jurisprudence, the Court aims to avoid fragmentation and strives to consolidate the crimes’ definitions. Nerlich lists judgments in which definitions of crimes have been addressed in order to illustrate the ICC’s intention not to diverge unnecessarily from the case law of the ad hoc tribunals. At the same time, he points out that the ICC did show progress in areas not illuminated by the case law of the ad hoc tribunals, for example with regard to modes of liability. In conclusion, Nerlich asserts that the detailed description of the crimes in the Rome Statute and the Elements of Crimes limits opportunities for progressive development in substantive jurisprudence, which is why game changing moments such as the ICTY’s Tadić decision are not to be expected from the ICC. Leena Grover, a Canadian lawyer currently working at Tilburg University, discusses potential implications of the activation of the crime of aggression amendments for the Court, for the Assembly of State Parties, for individual States and their citizens, as well as for international law in general. Grover points out that, in the light of the controversy surrounding the definition of the crime and particularly the scope of the ICC’s jurisdiction, it will be for the judges to settle on the most coherent interpretation of the Rome Statute, the aggression amendments and the activation decision. With regard to the role of the Assembly of States Parties, Grover describes the difficult process of negotiating the activation of the aggression amendments, highlighting the shift in the political climate and a growing scepticism towards multilateral treaty regimes. Concerning potential implications for States and individuals, Grover asserts that in order to deter acts of aggression, it is imperative that States enact domestic legislation on the crime of aggression. Finally, pertaining to international law in general, Grover describes the negotiators’

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intention to stick closely to existing custom, ensuring that individual criminal responsibility remains limited to conduct that falls within the hard core of international law on the illegal use of force and rises to a sufficiently high level of intensity. Grover concludes that activating the crime of aggression completes the Rome Statute and strengthens the ICC, particularly in times of turbulence.

Gerhard Werle is Professor of German and International Criminal Law, Criminal Procedure and Modern Legal History at the Humboldt University of Berlin, Germany, and Director of the African-German Research Network for Transnational Criminal Justice. Andreas Zimmermann is Professor of International and European Law at the University of Potsdam, Germany, and Director of the Potsdam Centre of Human Rights.

Chapter 2

The International Criminal Court 20 Years After Rome – Achievements and Deficits Chang-ho Chung

Contents 2.1 Efficiency ........................................................................................................................... 2.2 Victims............................................................................................................................... 2.3 E-Court .............................................................................................................................. 2.4 States.................................................................................................................................. 2.5 New Ideas Forward ........................................................................................................... 2.6 Conclusion ......................................................................................................................... References ..................................................................................................................................

10 14 15 16 18 20 21

Abstract Established by the Rome Statute, the International Criminal Court has fulfilled, to some extent, the expectations for which it was created. However, there are still many challenges for the Court to achieve its full potential. The Court and other relevant stakeholders, such as States and civil society, should continue working to address those challenges and provide the Court with the necessary tools to meet all the expectations for which it was created. From my standpoint, as a judge at the ICC, I have identified several procedural and practical issues on which we could focus in order to make the Court more meaningful in the current geopolitical situation.










Keywords International Criminal Court Rome Statute Judicial efficiency Trust Fund for Victims E-court Non-States parties International environmental criminal law










Established by the Rome Statute, the International Criminal Court (ICC) has fulfilled, to some extent, the expectations for which it was created. However, there are still many challenges for the Court to achieve its full potential. The Court and other C. Chung (&) International Criminal Court, The Hague, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 G. Werle and A. Zimmermann (eds.), The International Criminal Court in Turbulent Times, International Criminal Justice Series 23, https://doi.org/10.1007/978-94-6265-303-0_2

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relevant stakeholders, such as States and civil society, should continue working to address those challenges and provide the Court with the necessary tools to meet all the expectations for which it was created. From my standpoint, as a judge at the ICC, I have identified several procedural and practical issues on which we could focus in order to make the Court more meaningful in the current geopolitical situation.

2.1

Efficiency

The ICC, as most of the international criminal tribunals, such as the Extraordinary Chambers in the Courts of Cambodia where I also had the pleasure to work, faces many criticisms. Criticism about efficiency of the ICC proceedings has been a matter of much interest and concern of States and NGOs. It is my opinion that not only States should take measures to address this criticism. ICC judges can play a leading role in making the Court more efficient. This is the case because ICC judges have not only the capability, but also the responsibility, to make it possible. As ICC judges, we have the capacity to improve the court proceedings simply by improving our practices without any amendment to the Rome Statute or the Rules of Procedure and Evidence. In this regard, it is important for judges to develop effective judicial tools to make the entire procedure more stable, predictable and transparent. Judges may sometimes take a rather narrow perspective to deal with specific issues at particular stages of the proceedings. It is necessary for judges to keep in mind the larger picture of the proceedings to make it more efficient and effective. Many efforts have already been carried out by different stakeholders. For example, States thought the Assembly of States Parties to the Rome Statute (ASP), the Court’s governing body, should establish the Study Group on Governance.1 This Study Group was created ‘to conduct a structured dialogue between States Parties and the Court with a view to strengthening the institutional framework of the Rome Statute system and enhancing the efficiency and effectiveness of the Court while fully preserving its judicial independence …’;2 and ‘to facilitate [that] dialogue … with a view to identifying issues where further action is required, in consultation with the Court, and formulating recommendations to the Assembly through the Bureau.’3 The Study Group on Governance decided to organize its work in different clusters throughout the years. However, a specific cluster to deal with matters of efficiency of the Court was always present. Since the time of its

1

ICC ASP, Establishment of a study group on governance, 10 December 2010, Resolution ICC-ASP/9/Res.2. 2 Ibid. 3 Ibid.

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creation the Study Group has produced several reports4 on different matters to address the enhancement of the efficiency of the criminal process. Moreover, the ASP organised different plenary sessions on the ‘Efficiency and effectiveness of court proceedings’. For example, on 24 November, 2015, the ‘Panel discussion on the Efficiency and Effectiveness of Court Proceedings’ was held at the fourteenth session of the ASP.5 Following the success of this first plenary session on the matter, on 22 November, 2016, a plenary discussion on the specific topic of performance indicators for the ICC was held during the fifteenth session of the ASP. During that plenary session, it was possible to identify the major challenges as well as the venues for improvement in order to achieve efficiency.6 However, the matter was not discussed in the plenary of the ASP session of 2017. The Court has also taken several steps to enhance its efficiency. Since 2008, the Court has formally started a process to improve its efficiency.7 One of the measures taken was to create a Court-wide Working Group on Efficiencies, comprising representatives from the different organs of the Court.8 The objective of this Working Group was to consider possibilities for increased efficiency within the current legal framework, the financial implications of judicial decisions and the need for amendments to the Court’s legal texts.9 Furthermore, following the advice from the Committee on Budget and Finance, a subsidiary mechanism that advises the ASP on budgetary matters, the Court issued a ‘Report of the Court on measures to improve clarity on the responsibilities of the different organs’,10 which was key to address the inefficiency associated with lack of clarity in the roles of the ICC organs. The issue of efficiency was one of the key matters in the agenda of former ICC president Judge Silvia Fernández de Gurmendi. During her statement at the ASP plenary of 2015, she highlighted the importance of the matter by saying that ‘[i]t is essential that the Court addresses the perception that [its] proceedings are too lengthy and not as efficient and effective as they should be’.11 The ICC judges have

4 ICC ASP, Report of the Bureau on the Study Group on Governance, 22 November 2011, ICC-ASP/10/30; Report of the Study Group on Governance on rule 132bis of the Rules of Procedure and Evidence, 1 November 2012, ICC-ASP/11/41; Report of the Bureau on Study Group on Governance, 15 October 2013, ICC-ASP/12/37; Report of the Bureau on Study Group on Governance, 28 November 2014, ICC-ASP/13/28; Report of the Bureau on the Study Group on Governance, 16 November 2015, ICC-ASP/14/30; Report of the Bureau on the Study Group on Governance, 14 November 2016, ICC-ASP/15/21. 5 ICC ASP Study Group on Governance 2015. 6 ICC ASP Secretariat 2016. 7 ICC ASP, Status Report on the Court’s investigations into efficiency measures for 2010, 6 May 2019, ICC-ASP/8/6. 8 Ibid., para 11. 9 Ibid. 10 ICC ASP, Report of the Court on measures to improve clarity on the responsibilities of the different organs, 3 December 2010, ICC-ASP/9/34. 11 Fernández de Gurmendi 2015. See also ICC 2015a.

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thus made collective efforts to enhance the efficiency and effectiveness of the court proceedings by adopting best and harmonized practices and revising working methods.12 As the former president said, ‘enhancing the Court’s efficiency and effectiveness remains [a] top priority’.13 These efforts to increase and develop the capacity of the Court as a whole should be continued. One key action taken to address this matter was the creation of the Working Group on Lessons Learnt. This Working Group is composed of judges and its objective is to propose reforms or consider proposals of reform to enhance efficiency of the ICC procedures. It is important to mention that a holistic practice-based approach was taken in order to produce a greater change in the way on how the ICC works. Since 2015, the ICC judges have held a retreat once a year, where we try to harmonize our practices on procedural matters at all stages of the proceedings. I proposed, for instance, publishing guidelines with harmonized practices of judges. As a result, we now have the Chambers’ Practice Manual, which is a public document.14 This manual was welcomed by the ASP who also encouraged us, the ICC judges, to continue our work on practice issues.15 These harmonized practices have already solved many issues and enhanced the efficiency and effectiveness of the Court. One of them, for example, is the binding nature of the facts and circumstances confirmed at the pre-trial stage. The ICC judges made it clear that as only the description of the facts and circumstances in the charges is binding on the Trial Chamber, the charges confirmed in the confirmation decision shall be clear and unambiguous, and must be distinguished from the reasoning: The description of the facts and circumstances in the charges as confirmed by the Pre-Trial Chamber is binding on the Trial Chamber. Any discussion in terms of form of the charges (clarity, specificity, exhaustiveness, etc.) and in terms of their scope, content and parameters ends with the confirmation decision, and no issues in this respect can be entertained by the Trial Chamber. As clarified above, this requires that the charges presented by the Prosecutor and those finally confirmed by the Pre-Trial Chamber are clear and unambiguous, and that any procedural challenge to the formulation of the charges be brought before the Pre-Trial Chamber, at the latest, as objections under rule 122(3) of the Rules. Correspondingly to the distinction between the charges presented by the Prosecutor and the Prosecutor’s submissions in support of the charges, in the confirmation decision the charges confirmed by the Pre-Trial Chamber must be distinguished from the Chamber’s reasoning in support of its findings.16

12

Fernández de Gurmendi 2015. Ibid. 14 ICC 2017. 15 ICC ASP, Strengthening the International Criminal Court and the Assembly of States Parties, 24 November 2016, Resolution ICC-ASP/15/Res.5. 16 ICC 2017, pp. 16–17. 13

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This should avoid any following litigations to verify the confirmed charges in the confirmation decision during the trial stage. Another issue that was addressed was the different understanding as to Regulation 55 of the Regulations of the Court. This regulation reads in its relevant parts that the Trial Chamber ‘may change the legal characterisation of facts’ in accordance with the crimes and/or modes of liability charged as long as it does not ‘exceed[] the facts and circumstances described in the charges and any amendments to the charges’ and that the Trial Chamber gives the participants notice and opportunity to make submissions. The ICC judges made it clear that the Pre-Trial Chamber will confirm alternative charges including alternative modes of liability when the evidence is sufficient to sustain each alternative: In the charges, the Prosecutor may plead alternative legal characterisations, both in terms of the crime(s) and the person’s mode(s) of liability. In this case, the Pre-Trial Chamber will confirm alternative charges (including alternative modes of liability) when the evidence is sufficient to sustain each alternative. It would then be the Trial Chamber, on the basis of a full trial, to determine which one, if any, of the confirmed alternative is applicable to each case. This course of action should limit recourse to regulation 55 of the Regulations, an exceptional instrument which, as such, should be used only sparingly if absolutely warranted. In particular, it should limit the improper use of regulation 55 immediately after the issuance of the confirmation decision even before the opening of the evidentiary debate at trial.17

This should limit recourse to Regulation 55 of the Regulations of the Court. The Chamber’s Practice Manual is a tangible example on how judges can contribute, through the use of their discretion to decide some procedural matters, to the enhancement of the efficiency of the Court’s proceedings. Another important action taken by the Court was the development, during 2015– 2016, of performance indicators for the Court’s activities. The purpose of the indicators is to allow both the Court and its stakeholders to measure the progress made in terms of the efficiency, effectiveness, productivity and quality of its work. In order to produce the indicators, the Court identified the four key goals as critical to assessing the performance of the ICC as a whole: (1) The Court’s proceedings are expeditious, fair and transparent at every stage; (2) The ICC’s leadership and management are effective; (3) The ICC ensures adequate security for its work, including protection of those at risk from involvement with the Court; and (4) victims have adequate access to the Court.18 During the fifteenth session of the ASP, the former ICC President introduced the ‘Court’s Second Report on Performance Indicators for the International Criminal Court’.19 This was the first time that the judicial activities of the ICC were presented through performance indicators. I believe that it is fundamental that the Court continues to collect all relevant data to make this qualitative and quantitative analysis of the activities of the Court possible. 17 18 19

Ibid., p. 19. ICC 2015b. See also Fernández de Gurmendi 2015, p. 8. ICC 2016.

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Notwithstanding the many actions that have been taken to enhance the effectiveness of the Court as well as the notable achievements to date in this regard, there are still some issues of concern in which all relevant stakeholders should continue to work on. For this reason, I consider that seeking ways to improve the efficiency of the Court should continue to be a matter of high priority for States and the Court. Agreeing with the ‘holistic practice-based approach’ mentioned above, I consider that there is still a lot of work to be done by the ICC judges in order to identify best practices and harmonisation across the different Chambers and Divisions. Such work will continue to enhance the efficiency of the Court and we, the ICC judges, should lead this process.

2.2

Victims

The concept of ‘victims of unimaginable atrocities that deeply shock the conscience of humanity’20 was one of the main motivations for the creation of the Court during the Rome Conference. The United Kingdom, for instance, proposed that ‘[t]he Court should have power to award reparations to victims’.21 Likewise, the Observer for the Victims’ Rights Working Group, stressed that ‘there would be no justice without justice for victims’.22 The United States also made important contributions for reparations in cases with ‘more than a few victims’.23 This provision intends that where there are only a few victims the Trial Chamber may make findings about their damage, loss and injury. Where there are more than a few victims, however, the Trial Chamber will not attempt to take evidence from or enter orders identifying separate victims or concerning their individual claims for reparations. Instead, the Trial Chamber may make findings as to whether reparations are due because of the crimes and will not undertake to consider and decide claims of individual victims. In similar fashion, where there are more than a few victims, this provision will not authorize their separate appeals to the Appeals Chamber. It is anticipated that the Rules will limit the number of victims who can appeal and will require that if there are large numbers of victims, their appeals will be jointly represented by a single representative.24

While brief, the significance of the US proposal lies on its reference to situations where reparations are due to a high number of victims. In fact, reflecting on the importance of this explanatory footnote, as kept in the Report of the Working Group on Procedural Matters, it was cited in the Appeals Chamber’s ‘Judgment on

20

Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS. 90 (entered into force 1 July 2002) (Rome Statute), preamble. 21 UN 1998a, p. 67, para 37. 22 Ibid., p. 90, para 77. 23 US 1998, n 2. 24 Ibid.

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the appeal of the victims against the “Reparations Order”’, in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi.25 The possibilities for victims to participate during the Court’s proceedings and to seek reparations were coined in the Rome Statute as one of the most unique and important advances in the role of victims under international criminal law. The ICC judges have already rendered many decisions and harmonised practices on victim participation process. In particular, the ICC judges have focused on simplifying the participation process to give as many victims the opportunity to become participants. However, the ICC judges need to do more to enhance the sense of involvement or sense of ownership of the people in situation countries by bringing the Court closer to the victims. In addition to those outreach programs and site visits, the ICC judges should continue to look at possibilities of holding certain hearings such as opening or closing statements in situation countries. We can explore the possibility of amending the Rome Statute to constitute a hybrid trial chamber at the ICC where one national judge from the situation country could be appointed as trial judge. Meanwhile, as the implementation of reparation for victims in the field is the role of the Trust Fund for Victims (TFV), the TFV has developed its own measures to implement the reparation order as efficiently as possible and to provide the assistance mandate for victims in a timely manner. However, as the TFV is in charge of not only implementation of reparation but also fundraising for itself, more innovative ideas for fundraising of the TFV need to be developed for the future.

2.3

E-Court

As the entire ICC court process is already technically accomplished by relying on the electronic court system, it is very much important to update and upgrade the ICC e-court system on a regular basis. The big advantage of the ICC e-court system is that the system has been developed from the beginning to cover all organs of the Court which are involved in the judicial process; chambers, prosecution, defence, victims representatives and registry. As a result, information sharing and flowing is taking place very smoothly throughout all these organs. For example, disclosure of evidence between the prosecution and defence takes place by simply allowing the defence to get access to the evidence database of the prosecution. All case records or submissions produced by all bodies including judges’ decisions are filed into the record management database of the registry, and then distributed to the people at court entitled to be notified of such case record. For the purpose of protection, participation and reparation of victims, information of tens of thousands of victims

25

See ICC, The Prosecutor v. Ahmad Al Faqi Al Mahdi, Judgment on the appeal of the victims against the ‘Reparations Order’, 8 March 2018, ICC-01/12-01/15-259, n 176 referring to UN 1998b, p. 5, n 6 and Schabas 2016, p. 1138.

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are collected by way of digital technology and managed in a victim database of the registry. However, as the ICC organs have different roles with independent mandates, the development of the e-court system requires cooperation and coordination at all levels. Starting from the development of the ICC Case Law Database by Chambers, the ICC judges and the Court must continue upgrading the e-court system by effectively integrating all of the jurisprudence and practices of the Court into the e-court system.

2.4

States

The ICC is different from most international organisations since, because of its mandate of exercising criminal jurisdiction over individuals, it is not only an international organisation but also a criminal court. This particularity makes the relationship of the Court with States different from the relationship of States with other international organisations. The Court depends heavily on States’ cooperation, as it does not have its own police force or any law enforcement structure at its disposal. Without the States Parties, the Court cannot fulfil its mandate. The relationship between the ICC and non-States parties is very important as well. When the UN Security Council refers situations to the Court as well as when a non-State party makes a declaration under Article 12(3) of the Rome Statute, such States are required to cooperate with the Court. Moreover, in many other situations, the Court needs to reach an agreement with non-States parties in order to achieve results.26 This need of cooperation becomes very clear especially regarding the arrest and surrender of individuals under an ICC arrest warrant, freezing of assets and access to the territory or documents to the parties and participants to the proceedings. Therefore, ICC judges and the Court need to enhance the dialogue with States. Unfortunately, there is still a lot of work to be done in different areas. One area that I consider very important is the accessibility of States parties to information about what the ICC judges and the Court have achieved. A way to address this lack of accessibility would be to convey to the States parties such information in a user-friendly way. This can be achieved by improving the way on how the ICC presents its information. The ICC website provides all kinds of information about the Court, including evidence and filings, decisions and orders of the judges, and information about the work of the different organs of the Court. Making the ICC website more accessible and user-friendly should be one of the priorities to enhance the relationship with States. In addition to the website, the Court should notify relevant information directly to the States parties’ focal points in a timely manner and such information should be delivered in a language that is easy to understand

26

Gallant 2003.

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for that State. The Court should work together with the President of the ASP to make this possible. Currently, 122 countries are States parties to the Rome Statute. Out of them 33 are African States, 18 are Asian-Pacific States, 18 are from Eastern Europe, 28 are from Latin American and Caribbean States, and 25 are from Western European and other States.27 For the Court to be truly effective and fulfil those expectations for which it was created, it is important that it becomes universal. This is, that all States ratify the Rome Statute and provide jurisdiction of the Court over the international crimes committed in their territories or by its nationals. Having the universality and cooperation objectives in mind, the ICC judges and the Court should develop targeted strategies that may continuously build relevance and confidence between the Court and States. Specially for achieving universality, regional strategies, receiving the input from key ‘friendly’ States from each region should be developed. Regarding the enhancement of cooperation, country-specific strategies should be drawn in agreement with such State focal points and with information received by other relevant stakeholders such as international and national civil society. When working towards the enhancement of the Court’s relationship with States, we should always keep in mind that the ICC is complementary to the States’ national judicial systems.28 This means that States have the primary obligation to prosecute international crimes and only if the State is unwilling or unable to prosecute those crimes, the ICC could do so.29 For that reason, the ICC judges and the Court need to support States’ efforts to develop self-initiative ownership over the investigation and prosecution of core crimes in compliance with international standards by providing wide assistance to States. It is already provided in the Rome Statute that the Court can cooperate with States sharing information to conduct their investigations.30 I believe that the Court can do much more. Exchanges of expertise and experience not only regarding prosecutorial strategies and evidence presentation can be done. There is a need to exchange the knowledge that has been developed at the Court and in the different States in areas such as court management, witness protection, victims’ participation and reparation, outreach to affected communities, detention, etc. The Court should always be available for States when they request this type of support in order to enhance their national judicial mechanisms. Moreover, in order to comply with their obligation to prosecute international crimes, States must criminalise the crimes included in the Rome Statute in their domestic legal orders and incorporate the relevant general principles of international

27

See the website of the ASP: https://asp.icc-cpi.int/en_menus/asp/states%20parties/Pages/the% 20states%20parties%20to%20the%20rome%20statute.aspx. Accessed 7 January 2019. 28 Rome Statute, above n 20, preambular para 10 and Article 1. 29 Ibid., preambular paras 4 and 6 and Article 17. 30 Ibid., Article 93(10).

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criminal law into their penal codes.31 This is an area in which the ICC could also assist States by providing a model law of implementation of the Rome Statute. This model law could provide the basis for many States to work on their implementation legislation which is, in many cases, needed before the State can ratify. The model law could also include provisions regarding cooperation with the ICC, which facilitate the application of Articles 86 and 88 of the Rome Statute into the national legislation. The Court has many qualified and experienced lawyers that could help develop this model taking into consideration the different legal systems of the world as well as the ASP languages. Finally, the ICC judges and the Court also should contribute to the reconciliation of divided societies at a more fundamental level by addressing the root causes to the commission of core crimes, including through outreach activities, educational initiatives and information dissemination. This element should be included in the strategies developed to achieve other priorities.

2.5

New Ideas Forward

To keep the Court and international criminal law up to date, we need to consider the ways in which armed conflict or simply mass crimes are developing, even outside of the context of armed conflicts and widespread or systematic attacks against the civilian population. After all, ‘[h]owever much care were taken in establishing a list of all the various forms of infliction, one would never be able to catch up with the imagination of future torturers who wished to satisfy their bestial instincts’.32 We should explore the possibility of amending the Rome Statute to expand the subject-matter jurisdiction of the ICC to other crimes, such as human trafficking, arms trade and environmental crime by individuals and, to the extent possible, corporations too.33 The 1994 draft of the Rome Statute included jurisdiction over certain treaty crimes – those that constitute exceptionally serious crimes of international concern defined by treaties.34 The criteria for inclusion in the list were ‘that the crimes are themselves defined by the treaty so that an international criminal

31

The German Code of Crimes against International Law of 26 June 2002 (Bundesgesetzblatt 2002 I, 2254) may serve as an example. See Werle and Jeßberger 2014, marginal nos. 395–427. 32 Pictet 1952, p. 54. See also ICTY, The Prosecutor v. Timohir Blaškić, Judgement, 3 March 2000, IT-95-14-T, para 186. 33 An interesting model of extending international criminal jurisdiction is provided for by the African Union’s Malabo Protocol of 2014. The envisaged African Criminal Court shall have jurisdiction over legal persons as well as over the crimes of unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes and illicit exploitation of natural resources. For the Malabo Protocol, see Werle and Vormbaum 2017. 34 Schloenhardt 2005, p. 112.

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court could apply that treaty as law in relation to the crime,’ and ‘[the] treaty created either a system of universal jurisdiction based on the principle aut dedere aut judicare or the possibility for an international criminal court to try the crime, or both, thus recognizing clearly the principle of international concern’.35 Under the current framework, many forms of human trafficking would not be punishable as such, and thus most incidences would not be able to be prosecuted internationally. Similarly, some commentators argue that ‘[e]nvironmental damage per se does not yet amount to an offence under international criminal law’.36 Likewise, while the final draft of the Rome Statute included a provision that provided for the direct criminal liability of corporation,37 and despite the fact that there was a working paper on the ICC jurisdiction over a ‘juridical person’ – a corporation whose main objective was to ‘seek private profit or benefit’,38 the proposal was withdrawn for the lack of majority support. The 2016 Policy Paper from the Office of the Prosecutor (OTP) has given some hope to advocates of criminalizing these new international crimes. The OTP Policy Paper does emphasize gender crimes, stating that in examining the manner of commission of the crime to be used in weighing their gravity for case selection, elements of particular cruelty include ‘the use of rape and other sexual or gender-based violence.’39 And in determining charges against the accused, ‘[t]he Office will pay particular attention to crimes that have been traditionally under-prosecuted, such as crimes against or affecting children as well as rape and other sexual and gender-based crimes’.40 Similarly, looking at the gravity of the crime,41 the policy paper states that [t]he impact of the crimes may be assessed in light of, inter alia, the increased vulnerability of victims, the terror subsequently instilled, or the social, economic and environmental damage inflicted on the affected communities. The office [of the prosecutor] will give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.42

35

International Law Commission 1994. Smith 2016, p. 46. 37 Ezeudu 2011, p. 51. The provision read as follows: ‘5. The Court shall also have jurisdiction over legal persons, with the exception of States, when the crimes committed were committed on behalf of such legal persons or by their agencies or representatives. 6. The criminal responsibility of legal persons shall not exclude the criminal responsibility of natural persons who are perpetrators or accomplices in the same crimes.’ 38 Haigh 2008, p. 202. 39 ICC OTP 2016, pp. 13–14. 40 Ibid., p. 15. 41 Regulation 29(2) stipulates that factors that guide the assessment include the scale, nature, manner of commission and impact of the crimes. 42 ICC OTP 2016, pp. 4–5 (emphasis added). 36

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The environment is also mentioned when weighing the gravity of the crime in terms of the manner of its commission: ‘Crimes committed by means of, or resulting in, the destruction of the environment’.43 Under the current statutory framework, however, the prosecution of these crimes depends on the existing definitions of crimes against humanity and war crimes, which, inter alia, require either widespread/systematic attacks on the civilian population or the existence of an armed conflict, respectively. Many of the situations where corporations or individuals traffic arms or people, let alone environmental crimes, take place outside of armed conflicts or widespread/systematic attacks. Stand-alone definitions of these crimes under the Rome Statute would enable the international community to directly address such conducts. Such a definition could follow the one used in the UN Protocol, which defines Trafficking in Persons as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.44

Similarly, the 1991 Draft Code of Crimes against Peace and Mankind by the International Law Commission considered including ‘wilfully causing or ordering the causing of widespread, long-term and severe damage to the natural environment,’ but the consensus was that such crimes could be included under Crimes against Humanity or War Crimes if they were severe enough.45

2.6

Conclusion

I have no doubt that important values of the Rome Statute and important goals of the ICC may remain as they are for the next 20 years. However, since the mandate of the ICC is limited to pursuing individual criminal responsibility for international crimes only, the ICC should also find ways to deal with crimes or human rights violations that, under the current framework, do not reach the level of international crimes or cannot be covered by the ICC. For this purpose, I would like to propose some ideas for the future of the ICC. Firstly, we can explore the possibility of amending the Rome Statute to expand the subject-matter jurisdiction of the ICC to such as human trafficking, arms trade and environmental crimes by individuals and, possibly, corporations. Secondly, we can explore the possibility of strengthening cooperation with regional human rights courts. Regional human rights courts are different from the ICC in that they are pursuing State responsibility. But by enhancing cooperation with regional human 43 44 45

Ibid., pp. 13–14. UNGA 2001, Article 3. See International Law Commission 1996. See also Schloenhardt 2005, p. 112.

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rights courts, we can facilitate their pursuing of State responsibility for those crimes or human rights violations that cannot be covered by the ICC. In this regard, I have emphasized the necessity of establishment of the regional human rights court in Asia-Pacific region. Considering its population size, economic development and passion of younger generations, there is even greater need to establish the regional human rights court in Asia-Pacific region than ever. Finally, there is also the need to continue working on strengthening the ICC system. This can be achieved by enhancing: (1) the efficiency of the Court proceedings taking a holistic, practice-based approach; (2) the relationship with States through regional and country specific strategies, information and experience sharing as well as addressing together the root-cause of crime; and (3) ownership of the people in situation countries by bringing the Court closer to the victims with more effective outreach programs, site visits and in-situ hearings as well as by exploring the possibility of amending the Rome Statute to constitute a hybrid trial chamber at the ICC where one national judge from the situation country could be appointed as trial judge.

References Ezeudu M-J (2011) Revisiting corporate violations of human rights in Nigeria’s Niger Delta region: Canvassing the potential role of the International Criminal Court. African Human Rights Law Journal 11:23–56 Fernández de Gurmendi S (2015) Remarks to the Assembly of States Parties in relation to Cluster I: Increasing the efficiency of the criminal process. https://asp.icc-cpi.int/iccdocs/asp_docs/ ASP14/ASP14-PD-EFEC-President-ENG.pdf. Accessed 7 January 2019 Gallant K (2003) The International Criminal Court in the system of states and international organizations. Leiden Journal of International Law 16:553–591 Haigh K (2008) Extending the International Criminal Court’s jurisdiction to corporations: Overcoming complementarity concerns. Australian Journal of Human Rights 14:199–219 ICC (2015a) Enhancing the Court’s efficiency and effectiveness – a top priority for ICC officials. https://www.icc-cpi.int/Pages/item.aspx?name=pr1177. Accessed 7 January 2019 ICC (2015b) Report of the Court on the development of performance indicators for the International Criminal Court. https://www.icc-cpi.int/itemsDocuments/Court_reportdevelopment_of_performance_indicators-ENG.pdf. Accessed 7 January 2019 ICC (2016) Second Court’s report on the development of performance indicators for the International Criminal Court. https://www.icc-cpi.int/Pages/item.aspx?name=second-courtsreport-of-performance-indicators. Accessed 7 January 2019 ICC (2017) Chamber’s Practice Manual. ICC Assembly of States Parties Secretariat Summary of the panel discussion on Performance Indicators for the International Criminal Court, held at the eighth meeting of the fifteenth session of the ASP in The Hague on 22 November 2016. https:// asp.icc-cpi.int/iccdocs/asp_docs/ASP15/ICC-ASP15-SGG-PD-Summary-ENG.pdf. Accessed 7 January 2019 ICC Assembly of States Parties Study Group on Governance (2015) Cluster I: Increasing the efficiency of the criminal process, Panel discussion on the Efficiency and Effectiveness of Court Proceedings, held at the tenth meeting of the fourteenth session of the ASP in The Hague on 24 November 2015. https://asp.icc-cpi.int/iccdocs/asp_docs/ASP14/ASP14-PD-EFEC-SummaryENG.pdf. Accessed 7 January 2019

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ICC OTP (2016) International Criminal Court, Policy Paper on Case Selection and Prioritisation. https://www.icc-cpi.int/itemsDocuments/20160915_OTP-Policy_Case-Selection_Eng.pdf. Accessed 7 January 2019 International Law Commission (1994) Draft Statute for an International Criminal Court. http://legal. un.org/ilc/texts/instruments/english/commentaries/7_4_1994.pdf. Accessed 7 January 2019 International Law Commission (1996) Draft Code of Crimes against the Peace and Security of Mankind with commentaries. http://legal.un.org/ilc/texts/instruments/english/commentaries/7_ 4_1996.pdf. Accessed 7 January 2019 Pictet J (1952) Commentary on the Ist Geneva Convention of 12 August 1949. International Committee of the Red Cross, Geneva Schabas W (2016) The International Criminal Court: A commentary on the Rome Statute, 2nd edn. Oxford University Press, Oxford Schloenhardt A (2005) Transnational organised crime and the International Criminal Court: Developments and debates. University of Queensland Law Journal 24:93–122 Smith T (2016) Creating a framework for the prosecution of environmental crimes in international criminal law. In: Schabas W (ed) The Ashgate research companion to international criminal law. Routledge, London and New York, pp 45–62 UN (1998a) Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Official Records Volume II. UN Doc A/CONF.183/13 (Vol. II) UN (1998b) Report of the Working Group on Procedural Matters. UN Doc A/CONF.183/C.1/ WGPM/L.2/Add.7 UNGA (2001) Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, GA Res. 25, annex II. UN Doc A/55/49 (Vol. I) (2001) US (1998) Proposal submitted by the United States of America on Article 73: Reparations to Victims. UN Doc A/CONF.183/C.1/WGPM/L. 69. https://www.legal-tools.org/en/doc/e7b969/. Accessed 7 January 2019 Werle G, Jeßberger F (2014) Principles of international criminal law, 3rd edn. Oxford University Press, Oxford Werle G, Vormbaum M (2017) The African Criminal Court: A Commentary on the Malabo Protocol. T.M.C. Asser Press, The Hague

Chang-ho Chung is a Judge of the International Criminal Court (ICC) serving in the Trial Division. Prior to his appointment to the ICC, he served as a United Nations International Judge in the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) in Phnom Penh, Cambodia for three and a half years. At the ECCC, he was a member of both the Rules and Procedure Committee and the Judicial Administration Committee. Prior to this, Judge Chung served as a judge in the Republic of Korea from 1993. From 2008 to 2009 he served as a Legal Advisor and Korean Delegate to the United Nations Commission on International Trade Law (UNCITRAL) at the Embassy of the Republic of Korea and Permanent Mission in Vienna, Austria. Judge Chung holds a B.A. in Law and an LL.M. in International Law from Seoul National University. He has also been a Research Scholar at the London School of Economics and Political Science (2001), as well as at the University of Hong Kong (2005). The views expressed herein are those of the author alone and do not reflect the views of the ICC.

Chapter 3

Withdrawal from the International Criminal Court: International and Domestic Implications Hannah Woolaver

Contents 3.1 Introduction........................................................................................................................ 3.2 Overview of State Withdrawals from the International Criminal Court.......................... 3.3 International Legal Implications of Withdrawal ............................................................... 3.3.1 Pre-Existing Obligations under the Rome Statute ................................................. 3.3.2 Jurisdiction of the Court......................................................................................... 3.3.3 Can Withdrawal Be Withdrawn? ........................................................................... 3.4 Domestic Legal Implications............................................................................................. 3.4.1 Domestication of International Crimes .................................................................. 3.4.2 Constitutionality of Withdrawal ............................................................................. 3.5 Conclusion ......................................................................................................................... References ..................................................................................................................................

24 25 27 28 30 36 38 38 39 42 42

Abstract Withdrawal from the Rome Statute was not a question that received a great deal of attention during the drafting process at the Rome Conference. The final draft of the main provision on withdrawal, Article 127 of the Rome Statute, was presented on the last day of the Conference, and therefore not subject to extensive debate outside of the Preparatory Committee. In light of the recent accumulating practice under Article 127, detailed questions about the scope of Member States’ right to withdraw, as well as the consequences of States’ withdrawal from the Rome Statute have begun to emerge. It is therefore an opportune moment to examine the implications of withdrawal from the ICC, from both the international and domestic perspectives.







Keywords International Criminal Court Rome Statute Treaty withdrawal South Africa Burundi The Gambia The Philippines













H. Woolaver (&) University of Cape Town, Cape Town, South Africa e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 G. Werle and A. Zimmermann (eds.), The International Criminal Court in Turbulent Times, International Criminal Justice Series 23, https://doi.org/10.1007/978-94-6265-303-0_3

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3.1

H. Woolaver

Introduction

The International Criminal Court (ICC) is intended to be a permanent judicial institution, with the aim of eventually acquiring jurisdiction over every State in the world through the ratification of its founding instrument, the Rome Statute.1 Its membership grew at an unexpectedly high rate after the finalisation of the Statute in 1998. The ICC currently has 123 Member States, representing all regions of the world. However, lately the growth in membership has stalled, and in 2017, Burundi became the first State to formally withdraw from the Rome Statute. In addition, three other countries have given notifications of withdrawal – though two of these have been revoked. Thus, the focus has now shifted, at least in part, from questions of ratification and domestication of the Statute to the regulation of State withdrawal. Withdrawal from the Rome Statute was not a question that received a great deal of attention during the drafting process at the Rome Conference. The final draft of the main provision on withdrawal, Article 127 of the Rome Statute, was presented on the last day of the Conference, and therefore not subject to extensive debate outside of the Preparatory Committee.2 In light of the recent accumulating practice under Article 127, detailed questions about the scope of Member States’ right to withdraw, as well as the consequences of States’ withdrawal from the Rome Statute have begun to emerge. It is therefore an opportune moment to examine the implications of withdrawal from the ICC, from both the international and domestic perspectives. This chapter will proceed in three parts. First, an overview of the recent practice concerning State withdrawals from the ICC is provided. Next, the implications of withdrawal in the international sphere will be examined, including the consequences of withdrawal for former Member States’ obligations under the Rome Statute, and the impact on the ICC’s jurisdiction. Subsequently, the domestic implications of exiting the Rome Statute, namely the impact on domestic jurisdiction over international crimes, and the possibility of domestic constitutional challenges against withdrawal from the ICC, are explored. Given the integration between domestic and international legal systems that is contemplated in the Rome Statute, the implications of State withdrawal from the Court are more wide-ranging than might be assumed.

1

Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (Rome Statute). 2 See Schabas 2016, p. 1535.

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Overview of State Withdrawals from the International Criminal Court

For the first 13 years of its existence, no State had ended its membership of the ICC. Thus, the nuances of the withdrawal provisions lay largely unexamined and untested. However, in 2016 three States sent notifications of withdrawal to the United Nations Secretary-General under Article 127 of the Statute. The first was South Africa on 19 October 2016,3 followed closely by Burundi on 27 October 2016,4 and then The Gambia on 10 November 2016.5 After doing so, the African Union (AU) – which had long called for AU Member States not to cooperate with the ICC’s proceedings against African Heads of State,6 and eventually called for mass withdrawal of AU member States from the ICC due to the Court’s alleged ‘targeting’ of African leaders7 – lauded these three States as ‘pioneer implementers of the [African Union’s] Withdrawal Strategy’.8 However, despite the proximity of their notifications of withdrawal, there does not appear to be a basis to conclude that there was a coordinated plan of action between Burundi, South Africa and The Gambia. Indeed, these States had distinct reasons motivating their decision to withdraw: Burundi was the subject of a preliminary examination by the ICC Prosecutor; and South Africa was being sanctioned in its own domestic courts as well as before an ICC Pre-Trial Chamber for its refusal to execute the ICC’s arrest warrants against President al-Bashir of Sudan during his visit to South Africa in June 2015. Only The Gambia was not implicated in ongoing proceedings related to the Rome Statute – though there were widely-reported allegations of torture by the government of then-President Jammeh, which it was claimed might amount to crimes against humanity.9 The Gambia echoed earlier statements by the AU, justifying its withdrawal on the basis of allegations of racism against the Court, calling the ICC the ‘international Caucasian Court’.10 3 See South Africa, Declaratory Statement on the Decision to Withdraw from the Rome Statute of the International Criminal Court, 19 October 2016, C.N.786.2016.TREATIES-XVIII.10 (Depositary Notification). 4 See Burundi, Withdrawal from the Rome Statute of the International Criminal Court, 27 October 2016, C.N.805.2016.TREATIES-XVIII.10 (Depositary Notification). 5 See Gambia, Withdrawal from the Rome Statute of the International Criminal Court, 10 November 2017, C.N.862.2016.TREATIES-XVIII.10 (Depositary Notification). 6 See, e.g., African Union, Ministerial Meeting of African States Parties to the Rome Statute of the ICC, 8–9 June 2009, MinICC/Legal. 7 Afrian Union Assembly, Draft Decision on the International Criminal Court, 30–31 January 2017, Assembly/AU/Draft/Dec.1(XXVIII)Rev.2. 8 Ibid. 9 See, e.g., https://www.amnesty.org/en/countries/africa/gambia/report-gambia/. Accessed 5 January 2019. 10 Hersher R (2016) Gambia Says It Will Leave The ‘International Caucasian Court’. https:// www.npr.org/sections/thetwo-way/2016/10/26/499433335/gambia-says-it-will-leave-theinternational-caucasian-court?t=1538042097754. Accessed 5 January 2019.

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Despite all three States issuing their withdrawals within a month of each other, only Burundi ultimately ended its membership of the Court. Both South Africa11 and The Gambia12 revoked their notifications of withdrawal before they took effect – that is, before the one-year waiting period prescribed in Article 127 of the Rome Statute had elapsed. South Africa did so in compliance with a domestic court judgment holding that the decision to withdraw from the ICC was ‘unconstitutional and invalid’,13 while The Gambia revoked its withdrawal after the election of President Barrow, ending 22 years of rule by Jammeh. The South African government had announced its intention to pursue withdrawal again in the future, though the position of the current government led by President Ramaphosa remains unclear.14 In contrast, President Barrow’s government has renewed its commitment to the ICC, stating: ‘As a new government that has committed itself to the promotion of human rights … we reaffirm The Gambia’s commitment to the principles enshrined in the Rome Statute of the International Criminal Court.’15 The AU’s ‘mass withdrawal’ strategy then has thus far only resulted in a single State ending its status as an ICC Member State. Most recently, the Philippines became the fourth State to issue a notification of withdrawal under Article 127. As with Burundi, this was a response to the opening of a preliminary examination into alleged crimes in the Philippines by the ICC Prosecutor. Its notification did not make reference to the examination into ICC crimes in the Philippines, rather stating that its ‘decision to withdraw is the Philippines’ principled stand against those who politicize and weaponize human rights’.16 The notification was issued on 17 March 2018, and so will take effect on 17 March 2019, provided that it is not revoked in the interim. In the past two-year period, then, a substantial amount of practice under Article 127 of the Rome Statute has amassed. As a result, questions of interpretation of the withdrawal provisions have arisen, particularly in relation to the consequences of

11

See South Africa, Withdrawal of Notification of Withdrawal from the Rome Statute of the International Criminal Court, 7 March 2017, C.N.121.2017.TREATIES-XVIII.10 (Depositary Notification). 12 See Gambia, Withdrawal of Notification of Withdrawal from the Rome Statute of the International Criminal Court, 10 February 2017, C.N.62.2017.TREATIES-XVIII.10 (Depositary Notification). 13 South Africa, North Gauteng High Court, Pretoria, Democratic Alliance v. Minister of International Relations and Cooperation and Others (Council for the Advancement of the South African Constitution Intervening), Judgment, 22 February 2017, [2017] ZAGPPHC 53 (Democratic Alliance). See further discussion below. 14 Quintal G (2017) ANC is sticking to its guns on ICC withdrawal. https://www.businesslive.co. za/bd/politics/2017-07-04-anc-is-sticking-to-its-guns-on-icc-withdrawal/. Accessed 5 January 2019. 15 Kennedy M (2017) Under New Leader, Gambia Cancels Withdrawal From International Criminal Court. https://www.npr.org/sections/thetwo-way/2017/02/14/515219467/under-newleader-gambia-cancels-withdrawal-from-international-criminal-court. Accessed 5 January 2019. 16 See Philippines, Withdrawal from the Rome Statute of the International Criminal Court, 17 March 2018, C.N.138.2018.TREATIES-XVIII.10 (Depositary Notification).

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withdrawal for former Member States’ obligations under the Rome Statute, the impact on the ICC’s jurisdiction, and the right to unilaterally revoke a State’s withdrawal from the Rome Statute. These issues will be discussed in the following sections.

3.3

International Legal Implications of Withdrawal

The Rome Statute provides for a right of withdrawal of Member States in Article 127, which reads: 1. A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date. 2. A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.

Thus, Article 127(1) establishes the procedure necessary to effectuate withdrawal. First, States are required to give written notice of withdrawal, to be sent to the treaty depositary. A one-year notice period will begin upon receipt of the notification, unless a longer period is established by the withdrawing State. The State’s withdrawal will only take effect after the notice period has elapsed. Article 127(2) then regulates the consequences of withdrawal in terms of the State’s obligations under the Statute and the jurisdiction of the ICC, which will be discussed in detail below.17 The Statute then only establishes procedural and temporal limits on Member States’ right to withdraw. There is no substantive limitation on withdrawal. In particular, there is no requirement that withdrawal be initiated for a ‘proper purpose’ – thus, a State that withdraws in order to avoid the Court’s exercise of jurisdiction in relation to crimes committed in its territory or by its nationals is free to do so, as long as the formal requirements of Article 127 are respected. It is therefore important to understand the legal implications of withdrawal for States’ pre-existing commitments under the Rome Statute, as well as the scope of the ICC’s jurisdiction.

17

It should also be noted that Article 122 of the Rome Statute provides for withdrawal in the case of amendment of the Statute, which will not be discussed in this chapter.

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3.3.1

Pre-Existing Obligations under the Rome Statute

While exiting the Rome Statute will terminate the State’s duties under the treaty prospectively, Member States cannot free themselves from obligations that were incurred prior to the date on which their withdrawal took effect. This is made explicit in Article 127(2), quoted above, which states that all obligations arising during the State’s membership persist to bind the State post withdrawal. It further specifies that financial obligations accrued, as well as cooperation obligations concerning investigations and other proceedings which were commenced, prior to withdrawal shall continue to bind the State after withdrawal. As acknowledged by the Pre-Trial Chamber in the Burundi Authorisation Decision,18 this reflects the general treaty law position set out in Article 70 of the Vienna Convention on the Law of Treaties (VCLT) regarding consequences of the termination of treaties, which provides: 1. Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention: (a) releases the parties from any obligation further to perform the treaty; (b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.19

Thus, Member States are bound to pay any financial contributions set in the Assembly of State Parties’ budget prior to the State’s withdrawal, even if the period of the current budget extends after withdrawal takes effect.20 This includes financial obligations accrued during the notice period, that is, after notification of withdrawal has been given, but before it comes into force. Provided the obligations – including financial obligations – were accrued ‘while it was a Party to the Statute’, Article 127 (2) ensures the continuing binding force thereof. Article 127(1) makes clear that the State only stops being a party to the Statute after the notice period is complete and the notice of withdrawal takes effect. Of course, after the State’s withdrawal is complete, it can no longer be bound to new financial obligations. Withdrawal then inevitably reduces the monetary resources available to the Court. In addition to financial obligations, Article 127 also specifically refers to the withdrawing State’s duties of cooperation. Such duties again continue to bind the State post withdrawal if they were accrued prior to withdrawal. However, the date of accrual of cooperation obligations may be more complex to determine than financial obligations. Article 127(2) states that cooperation obligations will continue to bind the State if they are ‘in connection with criminal investigations and ICC, Situation in the Republic of Burundi, Public Redacted Version of ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Burundi’, ICC-01/17-X-9-US-Exp, 9 November 2017, ICC-01/17-X (Burundi Authorisation Decision), para 25. 19 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) (VCLT). 20 Clark 2016, p. 2323. 18

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proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective’. Thus, if an investigation or other form of proceeding is started before the State’s withdrawal takes effect, including within the notice period,21 any cooperation obligation related to those proceedings, as regulated by Part 9 of the Rome Statute, continues to bind the State even after its membership has ended. This interpretation has recently been confirmed by the Pre-Trial Chamber in the Burundi Authorisation Decision. Burundi had issued its notification of withdrawal on 27 October 2016, which took effect one year later on 27 October 2017. During the notice period, the Office of the Prosecutor requested authorisation to open an investigation into the situation in Burundi. This was approved by the Pre-Trial Chamber – after the notice of withdrawal was given, but before the date on which Burundi’s withdrawal would take effect. It was held that Burundi’s cooperation obligations stemming from this investigation and any related subsequent proceedings would continue to bind Burundi after its withdrawal from the Court. As put by the Chamber, [A]ny obligations on the part of Burundi arising out of the Chamber’s article 15(4) decision would survive Burundi’s withdrawal. The reason is that the present decision is delivered prior to the entry into effect of Burundi’s withdrawal on 27 October 2017. Accordingly, it cannot be disputed that … an investigation into the situation in Burundi would commence prior to the date on which the withdrawal became effective. Therefore, subsequent to the entry into force of its withdrawal, Burundi’s obligation to cooperate with the Court in relation to such an investigation … remains in effect for as long as the investigation lasts and encompasses any proceedings resulting from the investigation.22

Thus, a situation country which is bound by the Rome Statute cannot escape cooperation obligations stemming from investigations begun prior to termination of its ICC membership, even if the investigations are authorised after notice of withdrawal has been given. Article 127(2) will also apply to cooperation obligations of Member States other than the situation country. For example, as noted above, South Africa attempted to withdraw from the ICC in October 2016, which would have taken effect in October 2017. However, as discussed in further detail below, South Africa eventually revoked its notification of withdrawal before it took effect. At the time of its notification of withdrawal, South Africa, like all ICC Member States, was under an obligation to arrest and surrender President al-Bashir of Sudan to the Court, as a result of arrest warrants which had been approved by the Pre-Trial Chamber in 2009 and 2010 – indeed, this obligation was seemingly the major reason for South Africa’s decision to leave the ICC. Nonetheless, even had South Africa successfully ended its ICC membership, the international obligation to arrest President al-Bashir would have persisted to bind the State, as it stemmed from the pre-withdrawal proceedings.

21 22

See Schabas 2016, p. 1536. Burundi Authorisation Decision, above n 18, para 26.

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Given the continuing binding force of all cooperation obligations connected to proceedings commenced prior to the State’s withdrawal, the scope of these obligations may be unpredictable. For example, there will be instances in which investigations have been commenced prior to the effective date of withdrawal, but specific forms of cooperation connected to those proceedings materialise after the State’s ICC membership ends. As made clear in Part 9, Member States are under an obligation to cooperate with any commenced investigation or proceeding, which then gives rise to specific cooperation obligations such as the surrender of evidence. In these cases, it appears that Article 127(2) gives binding force to these new specific cooperation obligations on the former ICC Member State. As long as the proceedings in relation to which the State had a duty to cooperate were commenced prior to withdrawal, any cooperation obligations related thereto will bind the State, even if the specific obligations in question are imposed after withdrawal. As already quoted, the Pre-Trial Chamber in the Burundi decision held that ‘subsequent to the entry into force of its withdrawal, Burundi’s obligation to cooperate with the Court in relation to [an investigation commenced prior to withdrawal] … remains in effect for as long as the investigation lasts and encompasses any proceedings resulting from the investigation’. Thus, specific cooperation obligations, including the execution of arrest warrants or surrender of nationals, related to pre-existing investigations or proceedings will bind the State even if issued after withdrawal takes effect. However, any proceedings initiated after the State’s withdrawal will not give rise to cooperation obligations of the former State party.23 State withdrawal, therefore, shrinks the scope of the Court’s authority. As such, the territorial reach of the Court’s power to, inter alia, obtain custody of accused individuals, evidence, and witness testimony is reduced. Withdrawal therefore impedes the ability of the Court to carry out effective investigations and prosecutions of those responsible for crimes within its jurisdiction.

3.3.2

Jurisdiction of the Court

In addition to regulating the withdrawing State’s pre-existing obligations under the Rome Statute, Article 127(2) also addresses the impact of a Member State’s withdrawal on the scope of the Court’s jurisdiction. As previously noted, it states that withdrawal ‘shall [not] prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.’ This provision requires some examination in order to determine its intended effect. 23

The current situation in relation to the Philippines must therefore be considered in light of this. At the point of writing, only a preliminary examination has been commenced. Thus, if an investigation is not initiated before the Philippines’ withdrawal takes effect on 17 March 2019, it will not be subject to an obligation to cooperate with those proceedings.

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The primary question is whether the Court is able to exercise jurisdiction after the State has withdrawn from the ICC over alleged crimes committed its territory, or by its nationals, while the State was a party to the Statute. Article 127(2) clearly permits at least a limited scope of jurisdiction over such events – namely in the case of ‘any matter which was already under consideration by the Court’ before the date of effective withdrawal. This in turn gives rise to two further questions: first, what qualifies as a ‘matter under consideration by the Court’ such as to explicitly remain subject to the jurisdiction of the Court post-withdrawal; and whether the Court retains any residual jurisdiction over other matters after the State has withdrawn. Each of these will be addressed in turn.

3.3.2.1

What Is a ‘Matter Under Consideration by the Court’

As noted above, Article 127(2) explicitly retains the Court’s jurisdiction over ‘any matter which was already under consideration by the Court’ before the State’s withdrawal. Much therefore turns on what is a ‘matter’ and which organs constitute the ‘Court’ for the purposes of this provision. It has been debated whether this includes only formal investigations that have been authorised or commenced and are therefore under the consideration of a judicial chamber, or whether it can be expansively interpreted to include preliminary examinations under the ‘consideration’ of the Prosecutor. The Statute does not adopt a specific definition of ‘matters’, and indeed the term is used in a wide variety of ways in different provisions. In the context of Article 127(2), then it is unclear whether it is intended to refer narrowly to a formal investigation, or is used more generally to include a preliminary examination. In addition, the ‘Court’ is defined in more and less expansive ways throughout the Statute. While at times the ‘Court’ is used to refer only to judicial chambers,24 and even in distinction from the Prosecutor,25 Article 34 defines the Court to include the Presidency, the Chambers, the Office of the Prosecutor and the Registry. Unfortunately, the travaux préparatoires do not assist in clarifying the intended meaning of either term under discussion in Article 127(2). Further, the Court in the Burundi Authorisation Decision did not give guidance on this issue – doing so was not necessary, given that a formal investigation was authorised prior to Burundi’s withdrawal. However, we can gain interpretative guidance from the context of Article 127(2).26 It is suggested that to interpret this provision to include mere preliminary examinations as ‘matters under consideration by the Court’, allowing a formal investigation to be commenced concerning the former Member State’s territory or nationals after the 24

See, e.g., Rome Statute, above n 1, Article 17 on admissibility. E.g., ‘The Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility. In proceedings with respect to jurisdiction or admissibility, those who have referred the situation under article 13, as well as victims, may also submit observations to the Court.’ Ibid., Article 19(3). 26 VCLT, above n 19, Article 31(1) and (2). 25

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State has ended its membership of the ICC, would be undesirable. This is because the State would not be under an obligation to cooperate with the Court in relation to the investigation or subsequent prosecution – such obligations only arise when an investigation is commenced.27 As per Article 127(2), since there would be no cooperation obligation that was accrued before the State ended its membership, there is no such obligation that can continue to bind the State after its withdrawal. Thus, even if the Court was empowered to commence an investigation after the State’s withdrawal, without a concomitant obligation on the State to cooperate, it would likely be practically impossible to, inter alia, obtain the necessary custody of the accused, evidence, or witnesses. The textual context of this provision indicates then that we should interpret the temporal scope of the ICC’s power to commence investigations coterminously with the scope of its power to impose new cooperation obligations – that is, extending through the notice period, but ending at the effective date of withdrawal. At the very least, it is clear that if an investigation has been authorised prior to the effective date of withdrawal – as in the case of the Burundi investigation – this constitutes a ‘matter under consideration by the Court’, and thus remains subject to the Court’s jurisdiction post-withdrawal. Thus, if an investigation into the situation in the Philippines had been commenced before its notification of withdrawal takes effect on 17 March 2019, it is clear that the Court would have been able to continue to exercise jurisdiction over the investigation and any resulting prosecution. However, as it appears that the current preliminary examination was ongoing at the date of withdrawal, the Court may be called on to determine authoritatively whether this is sufficient to constitute a ‘matter under consideration of the Court’. The ICC Prosecutor has asserted that the preliminary examination will continue, despite the Philippines’ withdrawal.28

3.3.2.2

Other Matters

A related question is whether the Court could exercise jurisdiction over alleged crimes within the territory or committed by nationals of former Member States after they withdraw from the Court, even if the ‘matter’ was commenced wholly after the effective date of withdrawal. Indeed, the Pre-Trial Chamber in the Burundi decision held: The Chamber finds that the jurisdiction of the Court prior to the entry into effect of a withdrawal must be determined in light of article 127(1), second sentence, of the Statute. This provision stipulates that withdrawal takes ‘effect one year after the date of receipt of the notification’. On this basis, a withdrawing State remains, for all intents and purposes, a State Party in the period between communication of the notification of a withdrawal and the end of the ensuing one-year interval. Therefore, by ratifying the Statute, a State Party

27 See Rome Statute, above n 1, Article 86: ‘States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.’ See Burundi Authorisation Decision, above n 18, para 26. 28 https://af.reuters.com/article/worldNews/idAFKCN1QZ28M.

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accepts, in accordance with article 12(1) and (2) of the Statute, the jurisdiction of the Court of all article 5 crimes committed with by its nationals or on its territory for a period starting at the moment of the entry into force of the Statute for that State and running up to at least one year after a possible withdrawal, in accordance with article 127(1) of the Statute. This acceptance of the jurisdiction of the Court remains unaffected by a withdrawal of the State Party from the Statute. Therefore, the Court retains jurisdiction over any crimes falling within its jurisdiction that may have been committed in Burundi or by nationals of Burundi up to and including 26 October 2017. As a consequence, the exercise of the Court’s jurisdiction, i.e. the investigation and prosecution of crimes committed up to and including 26 October 2017, is, as such, not subject to any time limit.29

Thus, the Court has asserted that, in principle, it retains jurisdiction indefinitely over alleged crimes committed in States’ territory or by their nationals during the period which States are party to the Rome Statute, regardless of whether or not the State later ends its membership of the Statute. This approach is consistent with Article 70 VCLT, quoted above. When a State ratifies the Rome Statute, it accepts the exercise of the Court’s jurisdiction over Statute crimes committed within its territory and/or by its nationals. This amounts to the creation of a ‘legal situation’ through the execution of the treaty prior to its termination. Thus, the continuing existence of the ICC’s jurisdiction over such crimes reflects the VCLT’s provision that withdrawal does not affect such legal situations unless the treaty provides otherwise. Nonetheless, the retention of jurisdiction over such crimes in the abstract does not entail the availability of mechanisms to trigger the exercise of jurisdiction over those crimes. As noted above, Article 127(2) only seems to allow the triggering of jurisdiction in relation to crimes that were the subject of investigation or prosecution (or perhaps preliminary examination) prior to the State’s withdrawal. It has therefore been assumed that any other matters cannot be subject to the consideration of the Court, applying a contrario reasoning – because Article 127(2) explicitly enables the continued exercise of jurisdiction over matters initiated prior to withdrawal, it necessarily excludes consideration of matters initiated post-withdrawal. Notably, however, the ICJ recently rejected precisely this type of a contario reasoning when interpreting a similarly-worded treaty withdrawal provision. In the Nicaragua v. Colombia case, Nicaragua sought to rely on the Pact of Bogota as the basis for the jurisdiction of the Court. Article XXXI of the Pact acted as consent to the jurisdiction of the ICJ per Article 36(2) ICJ Statute. Colombia had given notice of denunciation of the Pact of Bogota on 27 November 2012. The proceedings in the ICJ had been instituted by Nicaragua on 26 November 2013. Article LVI of the Pact of Bogota governs denunciation thereof in the following terms: The present treaty shall remain in force indefinitely, but may be denounced upon one year’s notice, at the end of which period it shall cease to be in force with respect to the State denouncing it, but shall continue in force for the remaining signatories. The denunciation shall be addressed to the Pan-American Union, which shall transmit it to the other Contracting Parties.

29

Burundi Authorisation Decision, above n 18, para 24. Emphasis in original.

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H. Woolaver The denunciation shall have no effect with respect to pending procedures initiated prior to the transmission of the particular notification.30

Thus, paragraph one of Article LVI establishes a one-year notice period for withdrawal from the treaty as a whole. However, Colombia argued that the second paragraph established that no further proceedings could be initiated after notice of withdrawal was received – that is, that the deadline for the initiation of proceedings was the date of transmission of the notice of denunciation, even though the denunciation itself would only take effect one year later. The ICJ summarised Colombia’s argument on this issue as follows: Colombia’s argument is that if one applies an a contrario interpretation to the second paragraph of Article LVI, then it follows from the statement that ‘denunciation shall have no effect with respect to pending procedures initiated prior to the transmission of the particular notification [of denunciation]’ that denunciation does have an effect upon procedures instituted after the transmission of that notification. In the case of proceedings at the Court commenced after that date, Colombia maintains that they would, therefore, fall outside the jurisdiction conferred by Article XXXI.31

Thus, Colombia argued that no proceedings could be initiated after the receipt of its notice of denunciation on 27 November 2012 – which would therefore exclude the proceedings at issue. The ICJ ultimately rejected Colombia’s approach to the interpretation of Article LVI, specifically rejecting the a contrario reasoning advanced: Colombia’s argument regarding the interpretation of the second paragraph of Article LVI is based not upon the ordinary meaning of the terms used in that provision but upon an inference which might be drawn from what the paragraph does not say. That paragraph is silent with regard to procedures initiated after the transmission of the notification of denunciation but before the expiration of the one-year period referred to in the first paragraph of Article LVI. Colombia asks the Court to draw from that silence the inference that the Court lacks jurisdiction in respect of proceedings initiated after notification of denunciation has been given … even though the Pact remains in force for the State making that denunciation, because the one-year period of notice stipulated by the first paragraph of Article LVI has not yet elapsed. … The second paragraph of Article LVI is open to a different interpretation … . According to this interpretation, whereas proceedings instituted before transmission of notification of denunciation can continue in any event and are thus not subject to the first paragraph of Article LVI, the effect of denunciation on proceedings instituted after that date is governed by the first paragraph. Since the first paragraph provides that denunciation terminates the treaty for the denouncing State only after a period of one year has elapsed, proceedings during that year are instituted while the Pact is still in force. They are thus within the scope of the jurisdiction conferred by Article XXXI.32

30

Organization of American States, American Treaty on Pacific Settlement, opened for signature 30 April 1948, OAS Treaty Series No. 17 (entered into force 6 May 1949), Article LVI. 31 ICJ, Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, 17 March 2016, 2016 ICJ Reports 3, para 39. 32 Ibid., paras 36 and 39.

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In favouring its interpretation, the Court held that the second paragraph was merely emphasising for the sake of clarity that proceedings initiated before the transmission of denunciation would not be affected by denunciation, rather than establishing a prohibition on initiating proceedings after the date of the notice of denunciation. It thus held that jurisdiction in the present case could be founded in the Pact of Bogota. If this interpretative approach is applied to the second paragraph of Article 127 (2) Rome Statute, then the consideration of crimes in the territory or by nationals of former Member States initiated after the date of withdrawal may become possible. As with the relevant provision of the Pact of Bogota, Article 127(2) is, strictly speaking, silent with regards to the consideration of matters initiated after the date of effective withdrawal. Thus, if the ICJ’s approach is applied to this provision, arguably it need not be interpreted to establish a bar on consideration of such matters. However, there is a key difference between the withdrawal provisions of the Pact of Bogota and the Rome Statute that must be taken into account. The ICJ rejected the proposed a contrario reasoning in order to interpret the deadline for the initiation of new matters subject to the Court’s jurisdiction so as to be coterminous with the State’s withdrawal from the treaty as a whole. Further, the Court relied on the fact that if the a contrario reasoning was applied, it would mean that almost all of the key provisions of the treaty – namely those dealing with dispute resolution – would not apply in the 12-month notice period, despite the fact that the withdrawing State remained a party to the treaty during that year. This was held to be contrary to the object and purpose of the treaty, which was to facilitate the peaceful resolution of disputes between the parties. Thus, the ICJ interpreted Article LVI to establish a deadline for initiating new proceedings under the Pact of Bogota to be the same as the date on which the State’s treaty denunciation takes effect. In contrast, if we reject the a contrario interpretation of Article 127(2), it would extend the ICC’s right to consider proceedings initiated beyond the termination of the State’s membership of the Rome Statute. Thus, the effect of this interpretation would be fundamentally different from that sought to be achieved by the ICJ in the Colombia v. Nicaragua case. Indeed, it is rather the application of the a contrario interpretation of Article 127(2) that sets the end of the ICC’s right to consider matters within the withdrawing State’s jurisdiction so as to align with the end of the State’s membership of the Rome Statute. Furthermore, the interpretation of this provision must take into account the textual context, including the provisions regulating the jurisdictional triggers themselves. While the ICC’s jurisdiction may in principle continue after the State’s withdrawal,33 the Rome Statute makes clear that the availability of the jurisdictional triggers of State referral and proprio motu investigation by the Prosecutor are contingent on the State of nationality or territoriality currently being a party to the

33

Olasolo 2005 describes this as ‘dormant jurisdiction’.

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Statute.34 These are of course the only two jurisdictional triggers that are relevant to the case of a withdrawing State, as non-party status is irrelevant in the case of Security Council referral. Without the availability of these triggers, the Court cannot exercise its jurisdiction.35 Applying the accepted methods of treaty construction, seeking to give meaning to each provision and to read each in light of the treaty as a whole, Article 127(2) should be interpreted so as to be compatible with the provisions on the jurisdictional triggers – that is, to exclude consideration of matters initiated wholly post-withdrawal. Thus, while jurisdiction may persist in the abstract after the State’s withdrawal, the initiation of new matters subject to the Court’s jurisdiction will not be possible, as the jurisdictional triggers only apply to the State while it is a party to the Rome Statute. Article 127 should therefore be interpreted so as to preclude consideration of matters initiated post-withdrawal – that is, adopting the a contrario reading of the relevant clause. Of course, if the former State party later re-joins the Rome Statute, that would revive the availability of the State referral or proprio motu jurisdictional triggers. Given the ICC’s retention of jurisdiction over crimes committed during the previous period during which the State was bound by the Statute, this would allow the fresh initiation of investigations or prosecutions concerning these crimes per Articles 12, 13, and 127 of the Rome Statute.

3.3.3

Can Withdrawal Be Withdrawn?

The final international legal implication that will be discussed here is the possibility of revoking the State’s notification of withdrawal once it is issued under Article 127 of the Rome Statute, but before it takes effect after the one-year notice period. Article 127 is silent as to the issue of the revocability of notifications of withdrawal, and no mention of the issue is made in the travaux préparatoires. It is thus unclear whether the drafters intended for Member States to be able to reverse their decision to leave the Rome Statute. Generally, the law of treaties allows States to do so; Article 68 VCLT provides that an instrument of withdrawal ‘may be revoked at any time before it takes effect’. Similar questions recently arose in relation to other prominent treaties, including the right of withdrawal from the European Union. Article 50 of the Treaty on European Union (TEU), which regulates States’ right to leave the Union is, like

See Rome Statute, above n 1, Articles 12 and 13. Article 12(2)(a) states: ‘In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute’ (emphasis added). 35 An issue which appears to be neglected by Clark when he asserts that Article 127(2) does not preclude the exercise of jurisdiction over matters initiated wholly after the State’s withdrawal takes effect, see Clark 2016, p. 2324. 34

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Article 127 Rome Statute, silent on the revocability of a notice of withdrawal from the treaty. In light of the United Kingdom’s recent triggering of Article 50, a debate ensued as to whether the EU Member States have the right to revoke an Article 50 notification before the effective date of withdrawal. It was argued, on the one hand, that unilateral revocation is permitted by Article 50 TEU as long as it is done before the withdrawal takes effect,36 while on the other, it was argued that revocation would only be possible upon negotiation and agreement with the other EU Member States.37 The European Court of Justice has recently held that a Member State may unilaterally revoke an Article 50 notice, provided that they do so before their withdrawal became effective.38 While it may have been unclear at the time of drafting the Rome Statute,39 the position is now settled because of subsequent practice under the treaty.40 Two notifications of withdrawal, those from The Gambia41 and South Africa,42 have been revoked by the States which issued them. Both revocations were issued before the notification of withdrawal took effect. Given that the one-year notice period has now elapsed since the original notifications of withdrawal were issued, and both The Gambia and South Africa remain ICC Member States,43 it is clear that their revocations were considered to be effective.

36 See, e.g., Friel 2004, p. 638: ‘at any stage the withdrawing State could withdraw the withdrawal, provided it does so before two years have elapsed’. 37 See, e.g., Stephen Weatherill quoted in Peers S (2018) Can an Article 50 notice of withdrawal from the EU be unilaterally revoked? http://eulawanalysis.blogspot.co.za/2018/01/can-article-50notice-of-withdrawal.html. Accessed 5 January 2018. 38 CJEU, Wightman and others v. Secretary of State for Exiting the European Union, Judgement, 10 December 2018, Case C-621/18 ECLI:EU:C:2018:999, paras 66–67. 39 Though some assumed that notifications of withdrawal could take place. See, e.g., Clark 2016, p 2323: ‘While the article is silent on the matter, it must surely be the case that a State could withdraw its notification at any time before the withdrawal becomes effective.’ 40 See VCLT, above n 19, Article 31(3)(b) on subsequent practice as a tool of interpretation of treaties. 41 The Gambia sent its notification of withdrawal on 10 November 2016 (see Gambia, Withdrawal from the Rome Statute of the International Criminal Court, 10 November 2017, C.N.862.2016. TREATIES-XVIII.10 (Depositary Notification)) and revoked its withdrawal on 10 February 2017 (see Gambia, Withdrawal of Notification of Withdrawal from the Rome Statute of the International Criminal Court, 10 February 2017, C.N.62.2017.TREATIES-XVIII.10 (Depositary Notification)). 42 South Africa sent its notification of withdrawal on 19 October 2016 (see South Africa, Declaratory Statement on the Decision to Withdraw from the Rome Statute of the International Criminal Court, 19 October 2016, C.N.786.2016.TREATIES-XVIII.10 (Depositary Notification)) and revoked its withdrawal on 7 March 2017 (see South Africa, Withdrawal of Notification of Withdrawal from the Rome Statute of the International Criminal Court, 7 March 2017, C. N.121.2017.TREATIES-XVIII.10 (Depositary Notification). 43 See treaty status. https://treaties.un.org/Pages/ShowMTDSGDetails.aspx?src=UNTSONLINE&tabid= 2&mtdsg_no=XVIII-10&chapter=18&lang=en. Accessed 5 January 2019.

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Domestic Legal Implications

Along with the legal implications for States’ international obligations and the ICC, withdrawal from the Rome Statute can lead to significant implications within the withdrawing States’ domestic legal order. Such implications will of course depend to a certain extent on the constitutional and legislative framework within each individual State. However, there are common issues that are likely to be encountered by withdrawing States, including the impact on domestic jurisdiction over international crimes, and questions concerning the constitutionality of withdrawal from the treaty.

3.4.1

Domestication of International Crimes

A significant implication of Member States’ withdrawal from the ICC is the potential impact on the State’s domestic jurisdiction over international crimes. This is because a number of Member States have domesticated the Rome Statute in legislation that not only establishes procedures for cooperation with the ICC, but also domesticates the Rome Statute crimes of genocide, war crimes and crimes against humanity into domestic law. For many States, the implementation of the Rome Statute into municipal law was the first time that domestic jurisdiction over these international crimes was asserted. In particular, the domestication of the Rome Statute has led to the resurgence of assertions of universal jurisdiction over international crimes. As a result, withdrawal from the Rome Statute may not only reduce the ICC’s jurisdiction, but also the scope of domestic jurisdiction over international crimes. Whether this is the case will depend on the manner in which the Rome Statute was domesticated. In South Africa, for instance, the Implementation of the Rome Statute of the International Criminal Court Act of 2002 plays a dual role of creating domestic jurisdiction over genocide, crimes against humanity and war crimes, including on the basis of universal jurisdiction, as well as establishing mechanisms to ensure that its cooperation obligations under the Rome Statute can be implemented domestically. Thus, when South Africa issued its notification of withdrawal, it was unclear whether this would also result in the repeal of the domestic jurisdiction over international crimes. Indeed, this lack of clarity was one basis for the judicial invalidation of the decision to withdraw from the ICC in the Democratic Alliance case, which is discussed in detail below. The South African High Court held that because of the uncertain impact of withdrawing from the ICC on the status of the domestic implementing legislation, the decision to withdraw without prior parliamentary approval was ‘procedurally irrational’. Had the notice of withdrawal taken effect before Parliament had decided to repeal the Rome Statute Implementation Act, which was plausible as things stood, this would have resulted in a legal quagmire. According to the court:

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[T]here would be clumsy piece-meal processes, with undesirable and embarrassing outcomes for South Africa. … The question should be: what is so pressing for the national executive about withdrawal from the Rome Statute which cannot wait for our legislative processes (and possibly judicial pronouncements) to take their course? All these, in our view, point to one conclusion: the prematurity and procedural irrationality of the lodging of the notice of withdrawal by the national executive without first consulting parliament. This unexplained haste, in our view, itself constitutes procedural irrationality.44

Thus, clarifying the status of domestic jurisdiction over international crimes will be a prerequisite to any future withdrawal from the Rome Statute for South Africa. In contrast, other countries that have sought to withdraw from the ICC, such as the Philippines, have not integrated their domestication of cooperation obligations with the creation of domestic jurisdiction over international crimes. While the Philippines does have legislation asserting universal jurisdiction over genocide, crimes against humanity and ‘crimes against international humanitarian law’,45 it did not implement its cooperation obligations into domestic law. In its notification of withdrawal, the Philippines in fact referred to its legislation establishing jurisdiction over international crimes, stating that ‘The Government affirms its commitment to fight against impunity for atrocity crimes, notwithstanding its withdrawal from the Rome Statute, especially since the Philippines has a national legislation punishing atrocity crimes.’46 Perhaps ironically, then, the withdrawal from the ICC of the Philippines, and other countries that domesticated the substantive ICC crimes without cooperation legislation, will be less damaging to efforts to fight impunity for international crimes. For such States, it will be easier to maintain domestic jurisdiction over international crimes as the relevant legislation will not be repealed in order to facilitate withdrawal from the Court.

3.4.2

Constitutionality of Withdrawal

A further implication of ICC withdrawal that has arisen is the availability of domestic constitutional challenges to the State’s denunciation of the Rome Statute. As noted above, such a challenge was made, and upheld, in a South African domestic court, leading to the government’s revocation of withdrawal. The requirement of the one-year notice period in Article 127 of the Rome Statute facilitated the constitutional challenge before South Africa’s withdrawal took effect – and creates the possibility that similar challenges could be made in other withdrawing ICC Member States as well. This possibility is augmented by the

44

Supra n 13, paragraph 70. Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity. https://www.lawphil.net/statutes/repacts/ra2009/ra_9851_2009.html. Accessed 5 January 2019. 46 Philippines, Withdrawal from the Rome Statute of the International Criminal Court, 17 March 2018, C.N.138.2018.TREATIES-XVIII.10 (Depositary Notification). 45

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high-profile nature of other recent domestic court decisions on the constitutionality of treaty withdrawal, particularly the Miller decision of the UK Supreme Court concerning the United Kingdom’s withdrawal from the European Union. In June 2015, President Bashir of Sudan visited South Africa to attend the African Union Summit. President Bashir, being subject to two ICC arrest warrants, was at risk of arrest and surrender to the ICC by South African authorities during this visit.47 However, the South African government failed to do so, which was held to violate South Africa’s domestic and international law obligations by domestic courts48 as well as a Pre-Trial Chamber of the ICC.49 Soon thereafter, the South African Minister of Justice announced that South Africa would withdraw from the ICC, and sent a formal notification of withdrawal as required by Article 127 Rome Statute in October 2016.50 However, before the one-year notice period elapsed, the Democratic Alliance (DA), the official opposition party of South Africa, challenged the constitutionality of the withdrawal in a judicial review action. The DA based this challenge on two main grounds: first, that the failure to obtain prior legislative approval of the withdrawal rendered the decision procedurally invalid; and second, that withdrawal from the ICC was a substantive violation of the Bill of Rights. The High Court held in favour of the applicants on procedural grounds, but did not address the substantive challenge. Since the South African Constitution contains no express provisions on treaty denunciation, the court relied on a constitutional interpretation extending the requirements of parliamentary ratification of treaties in Sections 231(1) and (2) to the context of treaty withdrawal.51 The court set out a strict separation of powers between the Executive and Parliament in treaty-making: the Executive can only sign treaties, while parliamentary approval is needed for ratification, which, according to the Court, is always required to bind the State to 47

ICC, Prosecutor v. Omar Hassan Ahmad Al Bashir, Warrant of Arrest for Omar Hassan Ahmad Al Bashir, 4 March 2009, ICC-02/05-01/09-1; ICC, Prosecutor v. Omar Hassan Ahmad Al Bashir, Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir, 12 July 2010, ICC-02/ 05-01/09-95. 48 South Africa, Supreme Court of Appeal, The Minister of Justice and Constitutional Development v. The Southern African Litigation Centre, Judgment, 15 March 2016, 2016 (3) SA 317 (SCA); South Africa, North Gauteng High Court, Pretoria, Southern Africa Litigation Centre v. Minister of Justice and Constitutional Development and Others, Judgment, 24 June 2015, 2015 (5) SA 1 (G.P). 49 ICC, The Prosecutor v. Omar Hassan Ahmad Al-Bashir, Decision under Article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir, July 6 2017, ICC-02/05-01/09. 50 South Africa, Declaratory Statement on the Decision to Withdraw from the Rome Statute of the International Criminal Court, 19 October 2016, C.N.786.2016.TREATIES-XVIII.10 (Depositary Notification). 51 Constitution of South Africa § 231(1), (2). See Democratic Alliance, above n 13, para 51: ‘It should … be borne in mind that prior parliamentary approval is required before instruments of ratification may be deposited with the United Nations. From that perspective, there is a glaring difficulty in accepting that the reverse process of withdrawal should not be subject to the same parliamentary process.’

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the treaty.52 Thus, the court reasoned that parliamentary approval must also be necessary to terminate these treaties, as ‘there is no cogent reason why the withdrawal from such agreement should be different’.53 The court also held that the failure to repeal the domesticating legislation before withdrawal from the Rome Statute amounted to ‘procedural irrationality’, as discussed above, amounting to a separate basis of invalidity of the decision.54 As a result of the finding that the withdrawal was procedurally invalid, the Court ordered the executive to revoke the instrument of withdrawal, and required any future withdrawal to be preceded by Parliamentary approval and repeal of the domestic legislation implementing the Rome Statute.55 The government complied with this order, revoking its notification of withdrawal in March 2017.56 As noted above, the applicants in Democratic Alliance also challenged the decision to withdraw from the ICC on substantive grounds. They argued that, even if parliamentary approval had been obtained prior to the Executive’s notification of withdrawal, this would be unconstitutional because it would constitute a ‘retrogressive measure’ in the protection of the rights in the South African Bill of Rights, and therefore contrary to the constitutional obligation to ‘respect, protect, promote and fulfil’ these rights in Section 7(2) of the Constitution.57 The High Court declined to address these substantive challenges, given the procedural invalidity of the withdrawal decision.58 The importance of this decision resonates beyond South Africa, and provides a possible template for challenges to the withdrawal of other State parties from the Rome Statute, facilitated by the requirement of the 12-month notice period in Article 127 of the Statute. Indeed, various civil society groups initiated a judicial challenge to the Philippines’ withdrawal from the ICC, arguing that the termination of the Rome Statute is unconstitutional. The grounds of challenge substantially echoed those put forward by the applicants in the Democratic Alliance case, including asserting the need for parliamentary approval of withdrawal in order for such action to be procedurally valid, though the Philippines’ withdrawal took effect before a decision in the case was reached. Of course, the applicability of the reasoning of the South African High Court to other jurisdictions will depend on the constitutional framework in the State in question. However, the South African case has illustrated the availability of possible domestic methods of redress against executive action to withdraw from the ICC, particularly when such action is undertaken unilaterally without legislative involvement.

52

Democratic Alliance, above n 13, paras 51–57. Ibid., para 57. 54 Ibid., para 70. 55 Ibid., paras 53, 84. 56 See South Africa, Withdrawal of Notification of Withdrawal from the Rome Statute of the International Criminal Court, 7 March 2017, C.N.121.2017.TREATIES-XVIII.10 (Depositary Notification). 57 Democratic Alliance, above n 13, para 72. 58 Ibid., paras 75–76. 53

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Conclusion

The withdrawal of Member States from the ICC undermines the narrative that the Court represents the pinnacle of the international criminal justice movement, stretching back to the International Military Tribunal at Nuremberg. The withdrawal of Member States from the Rome Statute has wide-ranging implications, in both the international and domestic legal spheres. The consequences of withdrawal go beyond simply barring the Court from exercising jurisdiction over the territory or nationals of the withdrawing State. Instead, withdrawal also leads to a reduction, inter alia, of the territorial reach of the ICC’s arrest warrants and other forms of judicial cooperation, of the Court’s financial resources and possibly also of the number of domestic jurisdictions available to prosecute international crimes. This domino effect of withdrawal is in part due to the various legal mechanisms used in the Rome Statute to integrate the national and international legal obligations of Member States in relation to the complementarity principle, and cooperation obligations. As a result, State withdrawal may have a severe impact on the overall effectiveness of the Court. It is therefore crucial that the precise scope of the withdrawal provisions is settled and properly understood by Member States. Equally, these grave implications of withdrawal underscore the need for the Court to take Member States’ concerns regarding claims of bias and unequal application of the Rome Statute seriously – even if these claims at times appear to be made in a self-serving manner – to forestall, as far as possible, future State withdrawals from the Rome Statute of the International Criminal Court.

References Clark R (2016) Article 127: Withdrawal. In: Triffterer O, Ambos K (eds) The Rome Statute of the International Criminal Court, a commentary, 3rd edn. Beck, Munich, pp 2322–2324 Friel RJ (2004) Secession from the European Union: Checking out of the proverbial cockroach motel. Fordham International Law Journal 27:590–641 Olasolo H (2005) The triggering procedure of the International Criminal Court. Nijhoff, Leiden Schabas W (2016) The International Criminal Court: A Commentary on the Rome Statute, 2nd edn. Oxford University Press, Oxford

Hannah Woolaver is an Associate Professor in Public International Law at the Law Faculty of the University of Cape Town. Her research interests lie in public international law, focusing on the relationship between international law and domestic law, the law on the use of force, and international criminal law. Prior to joining the UCT Law Faculty in 2012, she completed her Ph.D. in international law at the University of Cambridge, B.C.L. at the University of Oxford, and LL.B. at the University of Durham. Dr. Woolaver is currently a Visiting Professor at the Faculty of Law, University of New South Wales, Australia, and has previously been a Visiting Scholar at the Faculty of Law, University of Toronto.

Chapter 4

African Regional Developments – Challenge or Chance for the International Criminal Court? Three Courts in One: The African Criminal Court Marshet Tadesse Tessema

Contents 4.1 4.2 4.3 4.4 4.5 4.6

Setting the Context: The Establishment of the African Criminal Court.......................... Historical Background to the Establishment of the African Criminal Court................... Structure and Jurisdiction of the African Criminal Court ................................................ Immunity in the Statute of the African Court .................................................................. The ACC as a Complementary Court: Complementarity Principle................................. The Relationship of the African Criminal Court and the ICC: Are They Competing Courts?............................................................................................................................... 4.7 Concluding Remarks ......................................................................................................... References ..................................................................................................................................

44 46 47 52 54 55 57 58

Abstract The Malabo Protocol expands the jurisdiction of the proposed African Court of Justice and Human and Peoples’ Rights by adding a criminal division to the planned general affairs and human rights sections. Consequently, the Court will have three sections, namely the General Affairs Section, the Human and Peoples’ Rights Section and the International Criminal Law Section. It remains to be seen whether such a unique amalgamation of three courts into one continental court is going to be an effective approach in dealing with the three general matters under the subject matter jurisdiction.







Keywords International Criminal Court African Union African Court of Justice and Human and Peoples’ Rights Malabo Protocol African Criminal Court Immunity










M. T. Tessema (&) Hawassa University, Awasa, Ethiopia e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 G. Werle and A. Zimmermann (eds.), The International Criminal Court in Turbulent Times, International Criminal Justice Series 23, https://doi.org/10.1007/978-94-6265-303-0_4

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Setting the Context: The Establishment of the African Criminal Court

Akin to regional organisations of other continents, the African Union (AU) also has courts among its principal organs. There are two courts under the AU system, namely the African Court on Human and Peoples’ Rights (ACHPR), which was established by the 1998 Protocol to the Banjul Charter;1 and the African Court of Justice, which was established by the AU Constitutive Act.2 The ACHPR complements the protective mandate of the African Commission on Human and Peoples’ Rights by issuing binding decisions on human rights matters. The ACHPR has subject matter jurisdiction over human rights issues3 whereas the jurisdiction of the African Court of Justice is over general affairs such as inter-State disputes.4 Currently, under the AU system the ACHPR is the only functional continental court on the continent. In 2008, with a view to establishing one continental court, the AU adopted the Protocol on the Statute of the African Court of Justice and Human Rights (Merger Protocol).5 The idea was to merge the abovementioned two courts into a single court and to create an African Court of Justice and Human Rights (ACJHR). The

1 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, opened for signature 10 June 1998 (entered into force 25 January 2004) (1998 Protocol to the Banjul Charter). It entered into force in January 2004. The Court became functional in 2008. The status list of the Protocol is available at https://au. int/en/treaties/protocol-african-charter-human-and-peoples-rights-establishment-african-courthuman-and. Accessed 7 January 2019. The Court is situated in Arusha, Tanzania. It has given several decisions. For more, visit http://www.african-court.org/en/. Accessed 7 January 2019. 2 Organization of African Unity, Constitutive Act of the African Union, opened for signature 1 July 2000 (entered into force 26 May 2001), Article 5; African Union, Protocol of the Court of Justice of the African Union, opened for signature 11 July 2003 (entered into force 11 February 2009) (Statute of the African Court of Justice). The Court was established by the 2003 Protocol. The Protocol as the applicable law of the Court entered into force in 2009, after the adoption of the 2008 Merger Protocol. https://au.int/en/treaties/protocol-court-justice-african-union. Accessed 7 January 2019. Although the Protocol has been ratified by the required 15 African States, the African Court of Justice has not been operationalised by the AU. The plausible reason being, the merger project of the two judicial institutions began before the 2003 Protocol of the Court of Justice entered into force. 3 1998 Protocol to the Banjul Charter, above n 1, Articles 2 and 3. See also African Union, Protocol on the Statute of the African Court of Justice and Human and Peoples’ Rights, Annex to the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, opened for signature 27 June 2014 (Statute of the African Court), Articles 17(2) and 28. 4 Statute of the African Court of Justice, above n 2, Article 19; Statute of the African Court, above n 3, Articles 17(1) and 28. 5 African Union, Protocol on the Statute of the African Court of Justice and Human Rights, opened for signature 1 July 2008. The AU adopted this Protocol in Sharm El Sheikh, Egypt.

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merged court will have two sections, namely ‘the general affairs’ and ‘the human rights’ sections. The Merger Protocol is yet to enter into force.6 In June 2014, at Malabo in Equatorial Guinea, the 25th Ordinary Session of the AU Assembly of Heads of State and Government adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human and Peoples’ Rights (Malabo Protocol), which in its annex includes the Statute of the African Court of Justice and Human and Peoples’ Rights.7 The Malabo Protocol purports to amend the 2008 Merger Protocol which has not entered into force. Like the Merger Protocol, the Malabo Protocol requires 15 ratifications to enter into force.8 At the time of writing, no African State has ratified the Malabo Protocol.9 The Malabo Protocol expands the jurisdiction of the proposed African Court of Justice and Human and Peoples’ Rights further (African Court)10 by adding a criminal division to the planned general affairs and human rights sections.11 Consequently, the African Court will have three sections, namely the General Affairs Section, the Human and Peoples’ Rights Section and the International Criminal Law Section, the African Criminal Court (ACC) – the ACC is not a distinct court rather it refers to the International Criminal Law Section of the African Court. This makes the African Court three courts in one. It remains to be

6

Article 9 requires 15 ratifications for it to enter into force. Over nine years since its adoption, only six countries have ratified the 2008 Merger Protocol, namely Benin, Burkina Faso, Liberia, Libya, Mali and Congo. https://au.int/en/treaties/protocol-statute-african-court-justice-and-humanrights. Accessed 7 January 2019. 7 African Union, Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, opened for signature 27 June 2014 (Malabo Protocol). 8 Ibid. 9 At the time of writing 11 countries have signed the Malabo Protocol, namely Benin, Chad, Congo, Ghana, Guinea-Bissau, Kenya, Mauritania, Sierra Leone, Sao Tome and Principe, Uganda and Comoros. https://au.int/en/treaties/protocol-amendments-protocol-statute-african-court-justiceand-human-rights. Accessed 7 January 2019. The fact that there has not been a single ratification, let alone the required 15 ratifications, indicates lack of political will to set up and operationalise the African Court. 10 In the Malabo Protocol, the name of the Court with the expanded sections is changed to African Court of Justice and Human and Peoples’ Rights. See Malabo Protocol, above n 7, Articles 1 and 8; Statute of the African Court, above n 3, Article 2. Although adding the word ‘peoples’, which was omitted in the 2008 Merger Protocol from the nomenclature of the Court, is apt due to the (unique) third generation rights in the African Charter on Humans and Peoples’ Rights, it is doubtful if this name of the new court could fully capture the nature of the African Court. The name omits the newly added criminal section of the Court. Admittedly, it would be too long to use ‘African Court of Justice and Human and Peoples’ Rights and International Crimes’ as a name for the Court. However, it would have been less problematic and misleading had the name of the Court been limited to ‘African Court’, instead of using the current nomenclature which does not fully describe the nature of the new court (with three sections). 11 Malabo Protocol, above n 7, Article 3; Statute of the African Court, above n 3, Article 16.

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seen whether such a unique amalgamation is going to be an effective approach in dealing with the three general matters under the subject matter jurisdiction of the African Court.12

4.2

Historical Background to the Establishment of the African Criminal Court

The idea of establishing an African criminal court precedes not only the recent rancour between the AU and the International Criminal Court (ICC)13 but even the establishment of the ICC.14 The idea of an African Criminal Court dealing with international crimes can be traced to the early 1970s when African States proposed a court to deal with the crime of apartheid.15 Several attempts were made to achieve this end since the 1970s.16 For instance, during the discussion that led to the adoption of the African Charter on Human Rights, the idea of establishing a regional criminal court was discussed; however, the idea was not accepted because it was thought to be premature.17 In 2006, the AU Committee of Jurists that was formed to advise the AU on the mechanism to reckon with crimes committed by Hissène Habré, the former President of Chad, suggested a regional criminal court in Africa to investigate and prosecute international crimes.18 The idea to establish an African criminal court started bearing fruit in 2009 when the AU Assembly entreated the AU in consultation with the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights ‘to examine the implications of the Court [ACJHR] being empowered to try serious crimes of international concern such as genocide, crimes against humanity and war crimes, which would be complementary to national jurisdiction and processes for fighting

12

Some scholars have raised concerns on the merger of the three African judicial institutions into a single court. Abass argued that ‘the combination of civil and criminal jurisdictions through the General Affairs Section, the Human and Peoples’ Rights Section, and the International Criminal Law Section, in a single court is not only almost unprecedented in international judicial practice, but is also fraught with myriad substantive and procedural problems that the Court, under the current proposal, will be unable to handle’. Abass 2017, p. 14. Viljoen also argued that such amalgamation is unprecedented and it has negative impacts on the ratification of the Protocol as it gives an ‘all-or-nothing option or choice to African states’. Viljoen 2012. 13 See Abass 2013, p. 28. 14 Deya 2012, pp. 22 et seq. 15 Abass 2017, pp. 15–18. 16 Ibid., pp. 15–16. 17 Ibid., p. 15. 18 African Union Committee of Eminent African Jurists 2006, paras 34 and 35.

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impunity’.19 This led to the adoption of the Malabo Protocol which added a criminal section to the two sections of ACJHR. According to the drafter of the Malabo Protocol, three main precursors led to the establishment of the African Criminal Court, namely:20 (1) the ‘abuse’ of universal jurisdiction by Western States; (2) the problem encountered in bringing Hissène Habré to book; and (3) the necessity to give effect to Article 25(5) of the AU Charter which requires the perpetrators of unconstitutional changes of government to be tried before the competent court of the AU.21 These resulted in the adoption of the Malabo Protocol in 2014 that amended the 2008 Merger Protocol and its 2008 Statute and empowered the African Court with criminal jurisdiction. It is true that the establishment of a regional criminal court in Africa has a historical background that precedes the adoption of the Rome Statute; however, the strained relationship of the AU and the ICC can be considered as an immediate trigger for the adoption of the Malabo Protocol in such meteoric drafting and deliberation processes.22

4.3

Structure and Jurisdiction of the African Criminal Court

As mentioned above the African Court is comprised of three sections, namely, the General Affairs Section, the Human and Peoples’ Rights Section, and the International Criminal Law Section.23 In other words the African Court is a result of an

19 African Union Assembly, Decision on the Report of the Commission on the Meeting of African States Parties to the Rome Statute of the International Criminal Tribunal (ICC), Assembly/AU/ Dec.245(XIII) Rev.1, 1–3 July 2009, para 5. See also Abass 2017, p. 12. 20 See Deya 2012, pp. 22 et seq.; du Plessis 2012. See also African Union-European Union Expert Group 2009; Murungu 2011, pp. 1067–1088. 21 African Union, African Charter on Democracy, Elections and Governance, opened for signature 30 January 2007 (entered into force 15 February 2012) (African Charter). See also Abass 2017, pp. 18–20. 22 Abass considers the Malabo Protocol a protest treaty. ‘Protest treaties are mostly statement making and grandstanding. They are treaties fuelled by momentary passion rather than a thorough appreciation and genuine desire for legislation. The Draft (Malabo) Protocol is one such treaty.’ Abass 2013, p. 42. Since the process of drafting and adopting the Statute was rushed and far from being opaque and participatory, instead cobbled together at great speed, it is hardly possible to speak with certainty about the actual votes by which the Statute was adopted, the deliberations, positions of each AU member State during the deliberations, and the sources that the drafters employed for the crimes (and other principles) inculcated in the Statute. The travaux préparatoires or documents of deliberations of the Protocol and its annex have not been made public yet. For more on the simmering tension between the AU, some African States and the ICC see the chapters in the edited book Werle et al. 2014 and Tessema and Vesper-Gräske 2016. 23 Statute of the African Court, above n 3, Article 16(1). Article 1 of the Statute defines Section as ‘the General Affairs or Human and Peoples’ Rights or International Criminal Law Section of the Court’.

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amalgamation of the African Court of Justice (General Affairs Section),24 the ACHPR (Human and Peoples’ Rights Section)25 and an African Criminal Court (International Criminal Law Section).26 These three courts have original and appellate jurisdiction over all three subject matters, namely human rights, general affairs and international crimes.27 The African Court has the following organs:28 The Presidency,29 the Office of the Prosecutor,30 the Registry,31 and the Defense Office.32 The ACC has three chambers, namely, the Pre-Trial, the Trial and the Appellate Chamber.33 The Statute also clearly states the composition and functions of each chamber.34 The Malabo Protocol vests the ACC with criminal jurisdiction over international and transnational crimes.35 Succinctly put, the ACC has subject matter jurisdiction over 14 crimes.36 These are genocide,37 war 24

Ibid., Articles 17(1) and 21(1). Ibid., Articles 17(2) and 21(2). 26 Ibid., Articles 17(3) and 21(3), (4) and (5). 27 Malabo Protocol, above n 7, preambular para 17 and Article 3; Statute of the African Court, Articles 18, 28(d), 34B and 46H(1). 28 Malabo Protocol, above n 7, Article 2. The Assembly of Heads of State and Government of the AU is given the power to establish a trust fund. Statute of the African Court, above n 3, Articles 45 & 46M. 29 Malabo Protocol, above n 7, Article 2(1); Statute of the African Court, above n 3, Article 22. 30 Malabo Protocol, above n 7, Article 2(2); Statute of the African Court, above n 3, Article 22A. 31 Malabo Protocol, above n 7, Article 2(3); Statute of the African Court, above n 3, Article 22B. 32 Malabo Protocol, above n 7, Article 2(4); Statute of the African Court, above n 3, Article 22C. 33 Statute of the African Court, above n 3, Articles 16(2) and 19. Article 19bis provides for the mandates of the chambers. 34 Ibid., Articles 19bis and 21. 35 Malabo Protocol, above n 7, Article 3; Statute of the African Court, above n 3, Articles 17(3) and 28A. 36 See Statute of the African Court, above n 3, Article 28A. 37 Ibid., Article 28B defines genocide. The definition is similar to the definitions of the crime in Article II of the Genocide Convention and Article 6 of the Rome Statute (Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (Rome Statute)). The Statute of the African Court explicitly lists: ‘Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity’ as objective elements of the crime. Statute of the African Court, above n 3, Article 28B(f). This is not a novel creation of the Statute but a progressive clarification. It is not novel because in the jurisprudence of the International Criminal Tribunal for Rwanda it had already been established that acts of ‘serious bodily and mental injuries’ can be interpreted to cover rape and other acts of sexual violence under the crime of genocide. It is stated that ‘rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities. Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole … . Sexual violence was a step in the process of destruction of the Tutsi group – destruction of the spirit, of the will to live, and of life itself.’ International Criminal Tribunal for Rwanda, Prosecutor v. Akayesu, Trial Judgement, 2 September 1998, ICTR-96-4-T, paras 731– 732. See also International Criminal Tribunal for Rwanda, Prosecutor v. Clément Kayishema and Obed Ruzindana, Trial Judgement, 21 May 1999, ICTR-95-1-T, para 95; International Criminal 25

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crimes,38 crimes against humanity,39 the crime of unconstitutional changes in government,40 piracy,41 terrorism,42 mercenarism,43 corruption,44 money laundering,45 trafficking in persons,46 trafficking in drugs,47 trafficking in hazardous wastes,48 illicit exploration of natural resources49 and aggression.50 Most of these crimes are transposed with no or minor modifications from other treaties to the Statute of the African Court. The definitions of most of the transnational crimes in the Statute are verbatim copies of definitions in so-called suppression conventions – which are not criminal law conventions.51 Thus, they are not only marred with blind spots but also do not meet requirements set out for criminal laws—they are not clear

Tribunal for Rwanda, Prosecutor v. Emmanuel Rukundo, Trial Judgement, 27 February 2009, ICTR-2001-70-T, paras 574–575; International Criminal Tribunal for Rwanda, Prosecutor v. Alfred Musema, Trial Judgement, 27 January 2000, ICTR-96-13-T, para 933. See also Ambos 2017, p. 39. The Statute has one serious flaw in relation to the crime of genocide. Incitement to commit genocide is not criminalised as a crime. See Statute of the African Court, above n 3, Articles 28B and 28N. 38 Statute of the African Court, above n 3, Article 28D of the Statute. This provision of the Statute is a slight modification of the Geneva Conventions and Rome Statute, above n 36, Article 8. In this regard, the Statute failed to remedy the deficiency of the Rome Statute in respect of the classification or structure of war crime offences. Be this as it may, the Statute of the African Court under Article 28D(g) criminalises the use of nuclear weapons and other weapons of mass destruction. Besides, the Statute laudably increased the age of child soldiers, from 15 to 18 years of age. For more, see Ambos 2017, pp. 42–49. 39 Statute of the African Court, above n 3, Article 28C. Modelled upon Rome Statute, above n 36, Article 7. The Statute of the African Court broadened the chapeau of the Rome Statute by adding ‘a wide spread or systematic attack or enterprise … .’ See Ambos 2017, pp. 40–42. 40 Statute of the African Court, above n 3, Article 28E. Cf. African Charter, above n 20, Article 23. See also Kemp and Kinyunyu 2017, pp. 60–68. 41 Statute of the African Court, above n 3, Article 28F. Cf. Article 101 of the 1982 United Nations Convention on the Law of the Sea. 42 Ibid., Article 28G. Compare Article 1(3) with Article 2 of the 1999 Organisation of African Unity Convention on the Prevention and Combating of Terrorism. 43 Ibid., Article 28H. Cf. Article 1 of the 1977 Organisation of African Unity Convention for the Elimination of Mercenarism in Africa. 44 Ibid., Article 28I. Cf. Article 4 of the 2003 African Union Convention on Preventing and Combating Corruption. 45 Ibid., Article 28I bis. Cf. Article 6 of the 2003 African Union Convention on Preventing and Combating Corruption. 46 Ibid., Article 28J. 47 Ibid., Article 28K. 48 Ibid., Article 28L. 49 Ibid., Article 28L bis. 50 Ibid., Article 28M. 51 For instance, the definitions of corruption and money laundering are borrowed from the 2003 African Union Convention on Preventing and Combating Corruption. Compare Article 4 of that convention with Statute of the African Court, above n 3, Articles 28I and 28I bis.

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and precise and hence fail to meet the standard demanded by the legality principle. In addition, some of the transnational crimes, such as money laundering are narrowly defined. For instance, the predicate offence of the crime of money laundering is unjustifiably limited to corruption.52 The other flaws of the Statute are that it does not provide grounds that exclude criminal liability, lacks provisions on the general mental element, and also does not state whether the crimes under the subject matter jurisdiction of the ACC can be barred by a statute of limitations. As regards the four core crimes, the ACC has overlapping jurisdiction with the ICC.53 The other ten (transnational) crimes under the subject matter jurisdiction of the ACC are not covered by the ICC Statute, hence the ICC lacks (subject matter) jurisdiction over these crimes. The African continent has prosecutorial interest over these economic crimes because of their pervasiveness and detrimental effects in the continent. The inclusion of transnational crimes under the jurisdiction of the ACC is a progressive step. However, some of the crimes have serious definitional flaws. The ACC has personal jurisdiction not only over natural persons54 but also legal persons. This is one of the substantive innovations of the Statute of the African Court and it is a progressive step in ensuring corporate criminal liability.55 In terms of the models of attributing corporate criminal liability, the Statute of the African Court chose, rightly so, the organisational model over the derivative model.56 In the organisational model, liability is derived from the fault of the organisation itself. According to the derivative model on the other hand, liability of a corporation would emanate from the fault of individuals within the structure of a corporation.57 Needless to say, the ACC does not have retroactive jurisdiction. Put differently, the temporal jurisdiction of the ACC is limited to crimes committed after the entry

52 Ibid., Article 28I bis. The reason for this problem is that the definition of money laundering is copied from the African Union Convention against Corruption. The drafters did not modify the definition so as to widen the scope of the predicate offence of the crime. This is simply a result of poor draftsmanship. 53 The two courts have overlapping jurisdiction in the following scenarios: (a) over core crimes perpetrated by nationals of an African State which is party to the ICC; (b) over core crimes perpetrated in the territory of an African State that is party to the ICC; or in the case of a referral by the Security Council over core crimes perpetrated in an African State (non-party to the Rome Statute). 54 Statute of the African Court, above n 3, Articles 1(3) 28N, 46B and 46C. Pursuant to Article 46D of the Statute, the ACC does not have jurisdiction over individuals who were under the age of 18 years at the time of commission of the crimes under the jurisdiction of the Court. 55 Ibid., Article 46C. 56 Ibid., Article 46C(2) and (3). For more on corporate criminal liability, see Kyriakakis 2016, pp. 19–23. 57 Kyriakakis 2016, p. 22.

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into force of the Malabo Protocol.58 Akin to the ICC, the ACC does not have universal jurisdiction. The ACC can only assert jurisdiction over a case if one of the following conditions is met (provided that admissibility tests are also met59): (a) The alleged crime is perpetrated on the territory of State party – territoriality principle.60 The territory of a State includes its land, aircraft and vessels. (b) The alleged crime is perpetrated by national of a State party – active personality or nationality principle.61 (c) The victim of the crime is a national of a State party – passive personality principle;62 or (d) The acts are of extra-territorial nature, are committed by non-nationals of a State party and threaten a vital interest of that State – protective principle.63 Under the Rome Statute, the passive personality and the protective principle are not recognised as grounds for asserting jurisdiction by the ICC. Thus, the ACC has broader grounds for exercising jurisdiction. The trigger mechanisms of situations before the ACC are State referrals,64 referrals by the Assembly of Heads of State and Government of the AU,65 referrals by the Peace and Security Department of the AU66 and proprio motu.67 In the case of the ICC the competence to refer a situation is not vested with the UN General Assembly but lies exclusively with the UN Security Council68 However, the Statute of the African Court empowered, rightly so, the Assembly of Heads State and Government of the AU (which is a regional counterpart of the UN General Assembly) to trigger a situation before the ACC. In general, compared to the ICC, the ACC has jurisdiction over wide ranges of crimes and persons. The personal jurisdiction of the ACC is not confined to natural persons; rather it also includes juridical persons. In addition, the ACC may exercise jurisdiction on the bases of the territoriality, active and passive personality or protective principles.

58 Statute of the African Court, above n 3, Article 46E, Malabo Protocol, above n 7, Article 6bis and 11. 59 Admissibility tests are enshrined in Statute of the African Court, above n 3, Article 46H(2), (3) and (4). 60 Ibid., Article 46E bis(2)(a). 61 Ibid., Article 46E bis(2)(b). 62 Ibid., Article 46E bis(2)(c). 63 Ibid., Article 46E bis(2)(d). In addition, States that are not parties to the Statute can also accept the ACC’s jurisdiction on an ad hoc basis. See ibid., Article 46E bis(3). 64 Ibid., Article 46F(1). 65 Ibid., Article 46F(2). 66 Ibid. 67 Ibid., Article 46F(3) and 46G. 68 Rome Statute, above n 36, Article 13(b).

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Immunity in the Statute of the African Court

The Statute of the African Court incorporates internationally accepted principles of international criminal law.69 These principles include rights of accused persons,70 non bis in idem,71 individual criminal responsibility, irrelevance of official position, superior responsibility and irrelevance of superior orders.72 As a rule, the Statute of the African Court equally applies to all persons irrespective of their official position.73 However, Article 46A bis grants immunity to certain State officials. In other words, immunity of some State officials bars the ACC from exercising its jurisdiction over them. The provision states that ‘no charges shall be commenced or continued before the Court against any serving AU Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior State officials based on their functions, during their tenure of

69 UNGA 1946. See also Inter-American Court of Human Rights, Almonacid-Arellano et al. v. Chile, Preliminary Objections, Merits, Reparations and Costs, 26 September 2006, IACHR Series C No. 154, para 98. 70 Statute of the African Court, above n 3, Article 46A. 71 Ibid., Article 46I. 72 Ibid., Articles 28B, 46B and 46C. Compared to Article 25 of the Rome Statute, the modes of participation in the Statute of the African Court are not well-structured. Article 46B of the Statute of the African Court is a mishmash of different concepts. First, the title of the provision which reads ‘Individual Criminal Responsibility’ is a repetition, if not confusing, in light of Article 28B which reads ‘Modes of Liability’. Second, Article 46B(1) should have been part of Article 28B. Third, Article 46B(2) should have been made a second paragraph of Article 46A bis since it is about the (ir)relevance of official capacity. Fourth, Article 46B(3) should have been made an independent provision which deals with the responsibility of military commanders and other superiors. Article 46B(3) does not make a distinction between military and civilian superiors, which it should have done. Fifth, Article 46B(4) deals with a distinct concept – a ground which does not exclude criminal liability. The defect of this subparagraph is that it does not mention certain instances that relieve criminal liability of a person who has committed a crime pursuant to an order of a superior. Given that several conducts of transnational crimes which are not manifestly unlawful are included in the Statute, the grounds that exclude liability in case of crimes committed pursuant to superior orders should have been mentioned. Put differently, adopting an ‘absolute liability’ approach is not a viable approach given the wide range of crimes under the subject matter jurisdiction of the ACC. Cf. Rome Statute, above n 36, Article 33. Ordering as a distinct mode of participation is not provided under Article 28B of the Statute of the African Court. Interestingly, conspiracy to commit the crimes referred in Article 28A of the Statute is clearly criminalised. See Statute of the African Court, above n 3, Article 28N(iii); see also Okoth 2014 for a general discussion on conspiracy. For a detailed discussion on individual criminal responsibility and the principles of international criminal law in general, see Werle and Jessberger 2014, pp. 192–224; Cassese 2013, pp. 161–198; Ambos 2016; Ambos 2013, pp. 102–264; Ratner et al. 2009, pp. 6– 26; Schabas 2011, pp. 224–231; Bassiouni 2013, pp. 59–61. 73 Statute of the African Court, above n. 3, Article 46B(2).

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office’.74 This is the most problematic and arguably poisoned chalice. Some view the provision as a way of evading responsibility by African leaders by shielding themselves against the ACC.75 They view Article 46A bis as an infringement on the principles of the Constitutive Act of the AU and a justification for prevalence of impunity in Africa.76 Others view the provision as legally justified under international law.77 Granting immunity for sitting senior officials insulates the most common perpetrators of the crimes from accountability and makes the ACC a court for investigation and prosecution of middle level and ordinary Africans. The author argues that extending immunity against investigation and prosecution of perpetrators of core crimes before international (or regional) courts is unacceptable and a retrogressive step.78 It undermines the whole idea of establishing a regional arrangement to investigate and prosecute international and transnational crimes.79 Even though granting immunity is undesirable, as regards the transnational crimes under the subject matter jurisdiction of the ACC, granting personal immunity for incumbent Heads of State and ministers for foreign affairs is less problematic. The inclusion of immunity in the Statute of the African Court, however, does not warrant the disapproval and dismissal of the regionalisation of international criminal law in general and the establishment of the ACC in particular.80

74

Ibid., Article 46A bis. Kenyans for Peace with Truth and Justice 2016; Naidoo and Murithi 2016, p. 5. 76 Human Rights Watch 2014; Report of the Conference on ‘Understanding the Malabo Protocol: The Potential, The Pitfalls, and Way Forward for International Justice in Africa’ (2016) http:// www.hrforumzim.org/wp-content/uploads/2016/11/Malabo-Protocol-Communique.pdf. Accessed 7 January 2019; Amnesty International 2016, pp. 6 and 11. 77 Tladi 2017, pp. 204–213. 78 ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, 14 February 2002, ICJ Reports 2002:3, paras 21–22; ICJ, Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, 4 June 2008, ICJ Reports 2008:177; House of Lords, R v. Bow Street Magistrate (ex parte Pinochet) 20 November 1998, (2000) 1 AC 147, pp. 407–433; Cassese 2013, pp. 318–322; Werle and Jessberger 2014. 79 As regards the perpetrators of core crimes, if the jurisdictional requirements are met, the ICC can still investigate and prosecute those officials who enjoy immunity before the ACC. The immunity clause in the Statute of the African Court cannot insulate the leaders from accountability before the ICC. 80 As noted by Sirleaf: ‘The knee-jerk dismissiveness toward the regional criminal court because of the immunity provision has blinded commentators. This has led to the failure to consider how the regionalization of international criminal law could uniquely position regional mechanisms between the system established by the Rome Statute of the ICC and national judicial systems – not to be merely complementary or reinforcing, but as essential parts of a robust system of global justice.’ Sirleaf 2016, p. 703. See also Jackson 2016, pp. 1062–1070. 75

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The ACC as a Complementary Court: Complementarity Principle

The ACC does not have primacy jurisdiction over national criminal jurisdictions; rather it serves as a complementarity court.81 The Statute of the African Court mentions and regulates complementarity jurisdiction of the Court in a separate provision.82 The ACC exercises jurisdiction to complement national courts of the States parties, and ‘the Courts of the Regional Economic Communities, where specifically provided for by the Communities’.83 In complementarity jurisdiction, the duty to investigate and prosecute perpetrators of crimes is primarily the role of the States parties, and not that of the court.84 The complementarity principle, by which the ACC is guided, is put into practice by applying admissibility criteria to a case. The admissibility tests under the ACC and ICC statutes are similar.85 As a complementarity court, the ACC shall determine a case inadmissible where: (a) a case is being investigated by a State provided that the State is not unwilling or unable; (b) the State has investigated the case and decided not to prosecute unless the State is unwilling or unable; (c) The person has been tried for conduct which is the subject of the complaint; or (d) if the ACC finds the case of not sufficient gravity.86 The ACC is a court of last resort, not a competing court with national criminal jurisdiction. The ACC exercises its jurisdiction when there is unwillingness (including inactivity) or inability on the part of the State which has jurisdiction to investigate or prosecute the perpetrators of the international and transnational crimes.87

81 Malabo Protocol, above n 7, preambular para 17; Statute of the African Court, above n 3, Article 46H. Unlike the ACC, the International Criminal Tribunals for Rwanda and the former Yugoslavia operated on the basis of primacy jurisdiction. See Article 9(2) of the Statute of the International Criminal Tribunal for the former Yugoslavia and Article 8(2) of the Statute of the International Criminal Tribunal for Rwanda. Akin to the ACC, the ICC operates as a complementary court to domestic courts of States parties. See Rome Statute, above n 36, Article 17. See also Philippe 2006, pp. 380–438. 82 Statute of the African Court, above n 3, Article 46H(1). 83 Ibid. 84 Van der Wilt 2011, pp. 1047–1048. 85 Compare Statute of the African Court, above n 3, Article 46H(2) with Rome Statute, above n 36, Article 17. 86 Statute of the African Court, above n 3, Article 46H. 87 Ibid., Article 46H(3) and (4); Constitutional Court of South Africa, National Commissioner of South African Policy Service v. Southern African Human Rights Litigation Centre and Another, Judgment, 30 October 2014, [2014] ZACC 30, paras 29, 31 and 34; Supreme Court of Appeal of South Africa, The Minister of Justice and Constitutional Development v. The Southern African Litigation Centre (867/15), Judgment, 15 March 2016, [2016] ZASCA 17, paras 1, 35, 54, 91 and 199.

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The Statute also provides for the definition of unwillingness88 and inability.89 Having regard to the recognised principles of due process under international law, a State is considered unwilling if: (a) a State concerned conducts proceedings to shield its nationals from criminal liability for the crime referred to in Article 28A; (b) proceedings have been delayed unjustifiably where such a delay is inconsistent with the intent to bring such a person to justice; or (c) proceedings were not or are not being conducted impartially or independently and thus inconsistent with intent to bring a person to justice.90 To determine inability of the State concerned, the Court shall take into consideration factors such as substantial or total failure or inaccessibility of the State’s national judicial system.91The ACC shall also consider a State as unable when it fails to obtain the accused or necessary evidence to conduct its proceedings.92 The ICC’s threshold of ‘genuinely’ unwilling or unable to carry out the investigation or prosecution does not form part of Article 46H.93 The author argues that the omission of the word ‘genuinely’ from the Statute of African Court does not cause a serious problem. The reason being, if the investigation or prosecution by a concerned State is not genuine, it still can be considered as unwillingness, based on the parameters provided in the Statute. These are proceedings conducted to insulate a person from criminal liability or unjustified delay or lack of impartiality and independency. Thus, the absence of ‘genuinely’ does not have substantial consequence. That said, the Statute of the African Court is silent on the relationship between the ACC with the ICC. Although the Statute of African Court clearly regulates its complementarity relationship with national criminal jurisdiction and other courts of regional economic communities, it does not mention the ICC and the Rome Statute, let alone regulates the ACC’s relationship with the ICC.

4.6

The Relationship of the African Criminal Court and the ICC: Are They Competing Courts?

The ICC and the ACC have overlapping jurisdiction as far as the four core crimes are concerned. For instance, both courts have jurisdiction over any or all of the core crimes perpetrated on the territory of a State party or by a national of a State party

88

Statute of the African Court, above n 3, Article 46H(3). Ibid., Article 46H(4). 90 Ibid., Article 46H(3)(a), (b) and (c). 91 Ibid., Article 46H(4). 92 Ibid., Article 46H(4). 93 Abass 2017, p. 26; Trendafilova 2014, pp. 22–26; Jessberger and Geneuss 2012, pp. 1087– 1088; van der Wilt 2017, pp. 193–194. Pertaining to the ICC rules and rulings on admissibility criteria, see Schabas and El Zeidy 2016. 89

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through the statutes of both courts.94 In such a case, the question that needs to be tackled is which of the two courts can assert jurisdiction if a dispute arises. It is worth mentioning that such a regional arrangement has not been foreseen by the Rome Statute – it does not say a word about a regional criminal court. Needless to say, the Rome Statute does not explicitly regulate the relationship of the ICC and a regional criminal court. The Statute of the ACC also does not address its relationship with the ICC. Due to the absence of a clear provision in the Statute of the ICC, which addresses the ICC’s relationship with regional arrangements, some have questioned the legality of establishing a regional criminal court like the ACC.95 However, there is no (international) legal prohibition whatsoever, including the Rome Statute, that inhibits establishing a regional arrangement that has jurisdiction over core crimes which are also under the jurisdiction of the ICC. Although the ICC Statute is silent on the relationship it has with a regional tribunal, this can be resolved by broadly interpreting the ICC Statute.96 Since States are the prime forum for investigation and prosecution of core crimes, they can exercise their criminal jurisdiction directly or by way of establishing a regional criminal court, like the ACC. By doing so, States have delegated their power to the ACC; as a result, a genuine prosecution by a legally constituted regional criminal court should make a case inadmissible before the ICC. Jackson argues, rightly so, that ‘a genuine criminal prosecution by a lawfully constituted regional tribunal means that the case is being … prosecuted by a State which has jurisdiction over it for the purposes of Article 17(1)(a)’. This means Article 17 of the Rome Statute also applies to determining the admissibility of a case before the ICC if the case is currently being or has been investigated or prosecuted by the ACC. Put otherwise, the inactivity of the ACC or the partiality of the investigation or prosecution of the ACC would make a case admissible before the ICC. For instance, the ACC cannot exercise jurisdiction over sitting senior State officials who have perpetrated core crimes since these officials enjoy personal immunity. This does not affect the jurisdiction of the ICC. There is no personal immunity which bars the ICC from exercising its jurisdiction over perpetrators of core crimes. Hence, when the ACC is barred by an immunity clause from exercising its jurisdiction over senior State officials who have allegedly committed core crimes, the ICC can serve as a mechanism to fill this impunity gap by ensuring effective prosecution of these officials. Therefore, the two courts can serve as adjunct institutions in the fight against impunity for perpetrators of crimes of the most serious concern for the international community. Thus, even though the relationship of such regional arrangements with the ICC is not explicitly addressed in the Rome Statute, nor by the Statute of the African Court, there is no convincing ground for the ICC to reject such a regional arrangement as long as the latter meets international standards in investigating and prosecuting perpetrators of core crimes – because such regional arrangements are an extension of States’ rights (and duties) to investigate atrocity crimes. The legality of

94 95 96

See generally Abass 2013, pp. 48–49. Murungu 2011, p. 1081 Jackson 2016, p. 1062.

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establishing a regional criminal court like the ACC which has an overlapping jurisdiction with the ICC is unquestionable. Thus, the ACC should be viewed as adjunct to the ICC, rather than as a challenge and a substitute which undermines the ICC and thereby poses a threat to the objectives of the ICC.

4.7

Concluding Remarks

In June 2014, the Assembly of the AU adopted the Malabo Protocol which created the African Court by adding an International Criminal Law Section to the already existing jurisdiction of the ACJHR (General Affairs and Human Rights). The Statute of the African Court vests the ACC with criminal jurisdiction over 14 crimes. The Statute has made several progressive steps such as the inclusion of corporate criminal liability and raising the age of child soldiers to 18 years, not to mention the inclusion of ten transnational crimes under the jurisdiction of the ACC. Nonetheless, the incorporation of an immunity clause is a serious drawback and a retrogressive step in the fight against impunity. The meteoric adoption of the Malabo Protocol at the height of the simmering tension between the AU, some African States and the ICC as well as the immunity provision indicate that the Protocol is a response to the ICC’s investigation against sitting African leaders. However, this cannot serve as a legitimate ground to dismiss the regionalisation of international criminal law by way of creating the ACC. Regardless of the factors that triggered the establishment of the ACC, such a regional arrangement is a useful addition, if not a regional innovation, to international criminal justice. In other words, it is a positive regional development towards ensuring accountability for serious human rights violations. Thus, regionalisation of enforcement mechanisms of international criminal justice should be promoted as a progressive development. The ACC and the ICC have overlapping jurisdiction over the four core crimes that involve African States and nationals. But the two courts should not be considered competing entities. By establishing the ACC, the African States, including the African States parties to the ICC, have delegated their duties to investigate and prosecute core crimes to the ACC, hence genuine investigation and prosecution by the ACC is tantamount to investigation and prosecution by States. This means such a case is inadmissible before the ICC. Therefore, the ICC should be considered as a complementary court to the ACC. Thus, the two courts can not only co-exist but can also supplement each other in the fight against impunity. Therefore, with all its defects, imperfections and limitations, the establishment of the ACC should not be dismissed; instead it should be promoted and supported as a useful regional mechanism to the enforcement of international criminal justice. Simply put, such a regional arrangement should be considered as an adjunct, not a substitute, to the ICC, nor as a competing judicial institution. The ICC serves as complementary to the ACC. Thus, those who cannot be prosecuted before the ACC because of the immunity provision are prosecutable before the ICC.

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References Abass A (2013) The proposed international criminal jurisdiction for the African Court: Some problematical aspects. Netherlands International Law Review IX:27–50. Abass A (2017) Historical and political background to the Malabo protocol. In: Werle G, Vormbaum M (eds) The African Criminal Court: A Commentary on the Malabo Protocol. T.M.C. Asser Press, The Hague, pp 772–826. African Union Committee of Eminent African Jurists on the Case of Hissène Habré (2006) Report of the Committee on the Case of Hissène Habré. https://www.peacepalacelibrary.nl/ebooks/ files/habreCEJA_Repor0506.pdf. Accessed 7 January 2019. African Union-European Union Expert Group (2009) Report on the Principle of Universal Jurisdiction. https://www.africa-eu-partnership.org/en/stay-informed/publications/au-eu-expertreport-principle-universal-jurisdiction. Accessed 7 January 2019. Ambos K (2013) Treatise on international criminal law, vol. I: Foundations and general parts. Oxford University Press, Oxford. Ambos K (2016) Article 25. In: Triffterer O, Ambos K (eds) The Rome Statute of the International Criminal Court: A commentary, 3rd edn. Hart Publishing, New York, pp 979–1029. Ambos K (2017) Genocide (article 28b), crimes against humanity (article 28c), war crimes (article 28d) and the crime of aggression (article 28M). In: Werle G, Vormbaum M (eds) The African Court: A commentary on the Malabo Protocol. T.M.C. Asser Press, The Hague, pp 31–55. Amnesty International (2016) Malabo Protocol: Legal and institutional implication of the merged and expanded African Court. Bassiouni MC (2013) Introduction to international criminal law, 2nd revised edn. Martinus Nijhoff Publishers, Boston. Cassese A (2013) International criminal law, 3rd edn. Oxford University Press, Oxford. Deya D (2012) Worth the wait: Pushing for the African Court to exercise jurisdiction for international crimes. Open Space Issue 2:22–26. du Plessis M (2012) Implications of the AU decision to give the African Court jurisdiction over international crimes. ISS Africa, Paper No 235. Human Rights Watch (2014) Statement regarding immunity for sitting officials before the expanded African Court of Justice and Human Rights. Jackson M (2016) Regional complementarity: The Rome Statute and public international law. Journal of International Criminal Justice 14:1061–1072. Jessberger F, Geneuss J (2012) The many faces of the International Criminal Court. Journal of International Criminal Justice 10:1087–1088. Kemp G, Kinyunyu S (2017) The Crime of Unconstitutional Change of Government (article 28E). In: Werle G, Vormbaum M (eds) The African Court: A Commentary on the Malabo Protocol. T.M.C. Asser Press, The Hague, pp 57–70. Kenyans for Peace with Truth and Justice (2016) Seeking justice or shielding suspects? An analysis of the Malabo Protocol on the African Court. Kyriakakis J (2016) Article 46C: Corporate criminal liability at the African Criminal Court. https://ssrn.com/abstract=2970864. Accessed 7 January 2019. Murungu CB (2011) Towards a Criminal Chamber in the African Court of Justice and Human Rights. Journal of International Criminal Justice 9:1067–1088. Naidoo P, Murithi T (2016) The African Court of Justice and Human Rights and the International Criminal Court: Unpacking the political dimensions of concurrent jurisdiction. The Institute for Justice and Reconciliation, Policy Brief No 20. Okoth J (2014) The crime of conspiracy in international criminal law. T.M.C. Asser Press, The Hague. Philippe X (2006) The principles of universal jurisdiction and complementarity: How do the two principles intermesh? International Review of the Red Cross 8:380–438. Ratner SR et al (2009) Accountability for human rights atrocities in international law: Beyond the Nuremberg legacy, 3rd edn. Oxford University Press, Oxford.

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Schabas W (2011) An introduction to the International Criminal Court, 4th edn. Cambridge University Press, Cambridge. Schabas W, El Zeidy M (2016) Article 17. In: Triffterer O, Ambos K (eds) The Rome Statute of the International Criminal Court: A commentary, 3rd edn. Hart Publishing, New York, pp 781–831. Sirleaf MVS (2016) Regionalism, regime complexes, and the crisis in international criminal justice. Columbia Journal of Transnational Law 54:667–777. Tessema MT, Vesper-Gräske M (2016) Africa, the African Union and the International Criminal Court: Irreparable fissures? FICHL Policy Brief Series No 56. Tladi D (2017) Immunities (article 46A bis). In: Werle G, Vormbaum M (eds) The African Criminal Court: A Commentary on the Malabo Protocol. T.M.C. Asser Press, The Hague, pp 203–217. Trendafilova E (2014) Africa and the International Criminal Court: A judge’s perspective. In: Werle G et al (eds) Africa and the International Criminal Court. T.M.C. Asser Press, The Hague, pp 21–33. UNGA (1946) Affirmation of the principles of international law recognized by the Charter of the Nuremberg Tribunal, Resolution 95(1), UN Doc A/RES/1/95. van der Wilt H (2011) Universal Jurisdiction under Attack: An Assessment of African Misgivings towards International Criminal Justice as Administered by Western States. Journal of International Criminal Justice 9:1047–1048. van der Wilt H (2017) Complementarity Jurisdiction (article 46H). In: Werle G, Vormbaum M (eds) The African Criminal Court: A Commentary on the Malabo Protocol. T.M.C. Asser Press, The Hague, pp 187–202. Viljoen F (2012) AU Assembly should consider human rights implications before adopting the amending merged African Court Protocol. AfricLaw. https://africlaw.com/2012/05/23/auassembly-should-consider-human-rights-implications-before-adopting-the-amending-mergedafrican-court-protocol/. Accessed 7 January 2019. Werle G, Jessberger F (2014) Principles of international criminal law, 3rd edn. Oxford University Press, Oxford. Werle G et al (eds) (2014) Africa and the International Criminal Court. T.M.C. Asser Press. The Hague.

Marshet Tadesse Tessema is an Assistant Professor at the School of Law, Hawassa University, Ethiopia. Before that he was an Assistant Professor of Law at Jimma University, Ethiopia. He holds a doctor iuris from Humboldt University of Berlin and an LL.M. from University of the Western Cape.

Chapter 5

Immunity of High-Ranking Officials Before the International Criminal Court – Between International Law and Political Reality Gerhard Kemp

Contents 5.1 The ICC in a Tight Spot ................................................................................................... 5.2 Of ‘Lesser Nations’, Travel Maps and the Man in the Middle ....................................... 5.3 The Immunities Debate in the Context of a Complicated Africa-ICC Relationship ....................................................................................................................... 5.4 South Africa’s Failure to Arrest President Omar Al-Bashir ............................................ 5.5 ICC Pre-Trial Chamber II Finds Against South Africa ................................................... 5.6 The Nairobi Appeal Court (Kenya) Follows Its South African Counterpart with Regards to the Inapplicability of Immunity as an Obstacle to Cooperate with the ICC..................................................................................................................... 5.7 The Jordan Appeal Before the ICC Appeals Chamber ................................................... 5.8 Concluding Remarks ......................................................................................................... References ..................................................................................................................................

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76 78 80 82

Abstract The series of ICC decisions on non-cooperation by a number of States parties in light of their failure to arrest President Omar al-Bashir of Sudan (who is indicted for war crimes, crimes against humanity and genocide) for trial at the ICC, has resulted in a broader debate about the legal and political context in which the ICC operates. The debate on immunity of high-ranking officials before the ICC concerns more than a legal-technical exegesis of the Rome Statute; it is about finding a principled legal answer to a difficult question situated in a complex political reality. It is about giving guidance to domestic courts and justice systems, which are at the coalface of the Rome Statute’s cooperation regime. The ICC Appeals Chamber has an opportunity to provide both legal clarity and direction.

G. Kemp (&) Alexander von Humboldt Research Fellow, Humboldt Universität zu Berlin, Berlin, Germany e-mail: [email protected] Stellenbosch University, Stellenbosch, South Africa © T.M.C. ASSER PRESS and the authors 2019 G. Werle and A. Zimmermann (eds.), The International Criminal Court in Turbulent Times, International Criminal Justice Series 23, https://doi.org/10.1007/978-94-6265-303-0_5

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An Advisory Opinion by the ICJ on the matter of immunities could also be helpful. The aim should not be to appease opportunistic political sensibilities of disgruntled States, but rather to find a way forward for the ICC, which is totally dependent on State cooperation for its goal of ending impunity for war crimes, crimes against humanity, genocide and aggression.







Keywords Immunity International Criminal Court State cooperation Arrest and surrender Head of State Customary international law




5.1







The ICC in a Tight Spot

The subtitle of this chapter – ‘Between International Law and Political Reality’ – can be read in a number of different ways. For one, I don’t think it is simply a binary clash with international law on the one side and political reality on the other. For instance, there are ideological and political clashes within international law, and the notion of a singular political reality can, of course, be challenged. But for purposes of this discussion I will assume that we are, broadly speaking, dealing with the following situation, namely: the International Criminal Court’s (ICC’s) current position on immunity of high-ranking officials has to be understood in light of two competing or clashing worlds: the world of international criminal law (which is primarily concerned with the fight against impunity,1 and thus biased against

It should be noted that when it comes to the interpretation of the Rome Statute, the ‘fight against impunity’ as an object and purpose of the Statute and thus of significance for a proper contextual interpretation of the Statute, is contentious. In ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, The Hashemite Kingdom of Jordan’s Notice of Appeal of the Decision under Article 87(7) of the Rome Statute on the Non-Compliance by Jordan with the Request by the Court for the arrest and Surrender of Omar Al-Bashir; or, in the Alternative, Leave to Seek Such an Appeal, 18 December 2017, ICC-02/05-01/09-312 (Jordan Appeal), the Appeals Chamber has issued a list of questions to be addressed by the parties and participants. One of the questions relates to the broad aim of the ICC ‘to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole and thus contribute to the prevention of such crimes’. The Appeals Chamber asks what the significance of such a contextual interpretation of the Rome Statute is and refers specifically to the broad aim ‘to put an end to impunity’. This question is linked to Article 31 of the Vienna Convention on the Law of Treaties, which requires treaties to be interpreted in the light of their context, including the preamble, and their objects and purpose. Commentators like Dov Jacobs argue that ‘the use of the vague notion of “the end of impunity” to justify any particular interpretation of the Rome Statute’ is not acceptable. For Jacobs, the ‘fight against impunity’ is not really an object and purpose of the Rome Statute, because such an approach ‘confuses the specific object and purpose of the Rome Statute as a legal instrument (conducting criminal trials) and the more general moral/political goal (ending impunity)’. See Jacobs D (2018) Immunities and the ICC: my two-cents on three points. https://dovjacobs.com/ 2018/09/10/immunities-and-the-icc-my-two-cents-on-three-points/amp/?_twitter_impression=true. Accessed 7 January 2019. My own view is perhaps the more mainstream one, namely that the Rome Statute, in the broad and ‘constitutional’ sense, has as a foundational object the end of impunity. This broad goal 1

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immunities); and the world of international politics, which clearly incorporates, rhetorically but also substantively, a body of international law favouring States and their interests, including immunities for senior officials, as confirmed in the Arrest Warrant case before the International Court of Justice (ICJ).2 So, we are dealing with a rather squeezed, confused, cornered or even compromised ICC, caught up in the turbulence caused by clashing legal and political forces and interests. In the Jordan Appeal, the ICC Appeals Chamber has an opportunity to bring some clarity, but could, of course, also add to the turbulence and controversy. The Appeals Chamber decision was not yet available at the time of writing, although some of the submissions presented to the Chamber will be considered here. There is an international context to the current debate on immunities and the ICC. But before I address that, I want to take a step back and present the current impasse from a domestic point of view. I want to present a view from the South – and by this I mean a view from Africa. More specifically: South Africa and Kenya, where the clash between law and politics in the matter of personal immunities of a visiting Head of State accused by the ICC Prosecutor of atrocity crimes, were on full display in the domestic courts, national media and political discourse. Both States are States parties to the Rome Statute of the ICC. Both States have domesticated the Rome Statute via implementation legislation, thus providing for optimal domestic legal frameworks for cooperation with the ICC. And, in both States it was necessary for senior courts to pronounce on the unwillingness of the executive branches to arrest and transfer President Omar al-Bashir of Sudan to the ICC. Perhaps both case studies are microcosms of the ICC and the broader Assembly of State Parties’ immunities predicament.

should, of course, not play the determinative role in individual criminal cases where the object is first and foremost to determine individual criminal responsibility. An acquittal can obviously then not be construed as in conflict with the stated goal of the Rome Statute to end impunity. I do believe, however, that the goal and purpose to end impunity, as articulated in the preamble of the Rome Statute, has relevance and meaning in the context of the immunities issue. This issue concerns the key question of the class of accused persons that can appear before the ICC; it also concerns a key issue regarding the duties of States, thus constituting a ‘constitutional’ issue. But, again, ‘impunity’ is not a trump card to win against all the odds. It is the goal, but that goal must be reached within the confines of the Rome Statute and other relevant legal frameworks, including customary international law. 2 ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, 14 February 2002, 2002 ICJ Reports 3, para 51. Certain holders of high-ranking office in a State – a group wider than Heads of State, Heads of Government and Ministers of Foreign Affairs – enjoy personal immunity from criminal jurisdiction of foreign States. See also developments regarding the ICJ’s Immunities and Criminal Proceedings (Equatorial Guinea v. France), filed June 2016 – criminal proceedings in France against the Second Vice-President of Equatorial Guinea.

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5.2

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Of ‘Lesser Nations’, Travel Maps and the Man in the Middle

Omar al-Bashir, the sitting president of Sudan, is the central character in the unfolding legal and political drama concerning the ICC’s ability to effect arrest warrants for a Head of State of a non-party State. Indeed, a number of States parties to the Rome Statute, including South Africa, and more recently, the Kingdom of Jordan, were found to be in violation of their obligations under the Rome Statute when they failed to arrest and transfer al-Bashir to the ICC. The question of how States parties will react to a visit by the President of Sudan has become a board-game of sorts for international lawyers, with the ‘Mapping Bashir’ project3 now providing in graphic form the legal and political world which President al-Bashir and the ICC inhabit. The point is that President al-Bashir seems increasingly less concerned about his travel plans; while the ICC seems in need of clear legal direction. The outcome of the Jordan Appeal will presumably help. Whether, in addition to the ICC Appeals Chamber decision, an ICJ Advisory Opinion on the matter of immunities is needed or helpful is debatable. I will return to the issue of legal clarity by way of conclusion. Before I get to the pertinent legal issues, it is necessary to frame the immunities debate in terms of the vertical and horizontal dynamics at work. First, it is necessary to highlight the advent of international courts, including the ICC, as an important achievement of the international criminal justice aim to end impunity for the most serious crimes under international law. But there is an ironic twist which is relevant for our present discussion. Samuel Moyn, in his discussion of Jenny Martinez’s book The Slave Trade and the Origins of International Human Rights Law (2011), in which she describes the historical roots of modern international courts (going back to the British anti-slavery tribunals and commissions) points to the irony contained in Martinez’s book, namely that ‘Africans were freed thanks to international law’, but, Moyn proceeds to point out that the reader might be ‘surprised to learn that the International Criminal Court, which came into being in 2002 in a completely new context, so far has indicted only Africans’.4 By September 2018 Moyn’s observation was still valid. On balance, Moyn finds Martinez’s reasons for the ascendency of international (criminal) courts not very persuasive. He finds Kathryn Sikkink’s historical argument for understanding the ascendency of international courts, as presented in her book The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (2011), more persuasive. In essence, Sikkink’s thesis is that the ascendency of international courts must be understood in light of the existence of domestic courts which were willing (and able) to hold political leaders accountable for atrocity crimes. More relevant, for our purposes, is Moyn’s observation that Sikkink, unlike Martinez, is acutely aware of the problem

3 4

http://www.mappingbashir.org/. Accessed 7 January 2019. Moyn 2014, pp. 77–78.

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at the heart of modern international criminal justice, and the ICC in particular: ‘originally promoted by lesser nations, the ICC has become a forum for accusing their leaders alone’.5 Concluding his critical assessment of both Martinez’s and Sikkink’s books, Moyn observes that the reason to study the past and present of international criminal courts ‘ought to be not just to register their heroic possibilities but also to acknowledge their humbling limitations’.6 It is of course precisely because of the perceived ‘bias against Africa’ – the continent which, at the time of writing, is still the sole provider of accused persons before the ICC that there is a growing animosity between the African Union (AU) and a significant number of individual African States on the one hand, and the ICC on the other.7 And the sitting president of Sudan remains the most prominent subject of an ICC arrest warrant to date. One simply cannot divorce the important question of immunities before the ICC from the political reaction in Africa which helped to push the question of immunities to the forefront in the first place.

5.3

The Immunities Debate in the Context of a Complicated Africa-ICC Relationship

At the 30th AU Summit of Heads of States and Government held in January 2018, the AU Assembly committed to seek an Advisory Opinion from the ICJ regarding the issue of Head of State immunity before the ICC.8 This decision was in follow-up of the AU Assembly request in 2012 for the AU Commission to consider seeking an Advisory Opinion of the ICJ on the matter of immunities.9 At the time the proposal was not well received and no further action was taken. However, since then the political dynamics have changed, especially after President al-Bashir’s visit to Johannesburg in June 2015 and South Africa’s failure to arrest him and hand him over to the ICC, as requested by the ICC. The decision to seek an Advisory Opinion from the ICJ on the issue of immunities must also be seen against the backdrop of the confirmation of charges against Kenyan President Uhuru Kenyatta and his deputy, William Ruto, in 2012;10 a development which also rattled the political 5

Ibid., p. 83. Ibid., p. 84. 7 For more on this, see chapters 11–13 in Werle et al. 2014, pp. 179–228. 8 AU Assembly, Decision on the International Criminal Court, 28–29 January 2018, Assembly/ AU/Dec.672 (XXX), para 5 (ii). 9 AU Assembly, Decision on the Progress Report of the Commission on the Implementation of the Assembly Decisions on the International Criminal Court (ICC), Assembly/AU/Dec.397 (XVIII), para 10; Akande 2012. 10 For a detailed commentary on the deteriorating relationship between the AU and the ICC, see generally van der Vyver 2011. Charges against Kenyatta and Ruto were withdrawn in 2014 and 2016 respectively due to insufficient evidence, but the arrest warrant against al-Bashir remains a contentious issue. 6

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elites not only in Kenya but across the African continent.11 The 2018 AU Decision therefore seeks to involve not only the judicial forums but also relevant political and diplomatic structures in order to convey the concern about the impact of the perceived incompatible provisions in the Rome Statute as they pertain to immunities: The African State Parties to the Rome Statute … request the ICC Assembly of State Parties to convene a working group of experts from its member states to propose a declaratory/ interpretative clarification of the relationship between Article 27 (irrelevance of official capacity) and Article 98 (Cooperation with respect to waiver of immunity and consent to surrender) and other contested issues relating to the conflicting obligations of state parties to cooperate with the ICC.12

While the AU has sought to get an Advisory Opinion on the matter of immunities, its own position has been consistent and clear, at least since 2009, when the matter of President al-Bashir became a prominent bone of contention. The AU Assembly adopted a decision that no AU Member State should cooperate with the ICC regarding the warrant of arrest that had been issued against al-Bashir, on the basis of Article 98(1) of the Rome Statute.13 For its part, as we know, the ICC has handed down a number of decisions on non-cooperation against African States following their failure to arrest al-Bashir when he visited their territories. The ICC view that emerged from these cases was that Article 98(1) of the Rome Statute does not negate the obligation on State parties to arrest and surrender al-Bashir to the ICC.14 The ICC decisions on non-cooperation, leading up to the decision against South Africa in 2017, prompted a more hard-line response from the AU. In 2009 the AU Assembly adopted a decision on non-cooperation with the ICC regarding the arrest warrant issued against President al-Bashir. It was decided that, ‘the AU Member 11 It is no coincidence that Kenya has become a prominent player in the immunities debate, pushing for the UN General Assembly to seek an ICJ advisory opinion on immunities of Heads of State before international criminal tribunals. See Menya W (2017) Kenya pushes Africa agenda on immunity for its heads of State. https://www.nation.co.ke/news/Africa-agenda-on-immunity-forits-heads-of-State/1056-4750340-view-asAMP-6r3g66z/index.html?_twitter_impression=true. Accessed 7 January 2019. 12 AU Assembly, Decision on the International Criminal Court, 28–29 January 2018, Assembly/ AU/Dec.672 (XXX), para 5(i). 13 AU Assembly, Decision on the Meeting of African State Parties to the Rome Statute of the International Criminal Court (ICC), July 2009, Assembly/AU/Dec 245 (XIII), para 10. 14 ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, 15 November 2011, ICC-02/05-01/09-139 (Non-Cooperation Malawi); Decision pursuant to Article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir, 13 December 2011, ICC-02/05-01/09-140 (Non-Cooperation Chad); Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court, 9 April 2014, ICC-02/05-01/09-195 (Non-Cooperation DRC); Decision under Article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir, 6 July 2017, ICC-02/05-01/ 09-302 (Non-Cooperation South Africa).

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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 Al Bashir of the Sudan’.15 Since then, the AU Assembly has consistently affirmed its position on non-cooperation. In a decision adopted in January 2012, the Assembly stated that it, Reaffirms its understanding that article 98 (1) was included in the Rome Statute establishing the ICC out of recognition that the Statute is not capable of removing an immunity which international law grants to the officials of States that are not parties to the Rome Statute, and by referring the situation in Darfur to the ICC the UN Security Council intended that the Rome Statute would be applicable, including article 98.16

The AU Decision furthermore urged Member States of the AU to comply with all previous decisions on non-cooperation regarding the arrest warrants against President al-Bashir.17 The AU’s position, informed by general principles of international law, entails that incumbent Heads of State are immune from the jurisdiction of the ICC. The AU Assembly noted with respect to the proceedings against President Kenyatta of Kenya and his deputy before the ICC in its 2013 Decision on Africa’s Relationship with the ICC that the indictment of sitting Heads of State was contrary to the customary international law position on the immunities of sitting Heads of State and other senior officials. The Decision stated that the AU ‘[r] eaffirms the principles deriving from national laws and customary international law by which sitting Heads of State and other senior state officials are granted immunities during their tenure of office’.18 While the AU position on immunities and non-cooperation has solidified (at least since 2009), the emerging ICC jurisprudence on immunities, non-cooperation and the relevant international law principles and interpretation of the Rome Statute, has revealed initial inconsistencies and makes an Appeals Chamber decision even more important. Since the first arrest warrant against President al-Bashir was issued in 2009, he has visited a number of countries in Africa, the Middle-East and elsewhere including Malawi, Chad, Kenya, South Africa and Jordan. None of these States attempted to arrest al-Bashir. The ICC has held in the decisions on non-cooperation by the African States and by the Kingdom of Jordan that Article 98(1) of the Rome

15 AU Assembly, Decision on the Meeting of African State Parties to the Rome Statute of the International Criminal Court (ICC), July 2009, Assembly/AU/Dec 245 (XIII), para 10. For a detailed overview of this Decision, see generally Tladi 2009. 16 See AU Assembly, Decision on the Progress of the Report of the Commission on the Implementation of the Assembly Decisions on the International Criminal Court (ICC), January 2012, Assembly/AU /Dec.397 (XVIII), para 6. 17 Ibid., para 8. See also AU Assembly Decision on the Progress Report of the Commission on the Implementation of the Previous Decisions on the International Criminal Court (ICC), 30–31 January 2015, Assembly/AU/Dec.547 (XXIV), para 10. 18 See AU Assembly, Decision on the Progress of the Report of the Commission on the Implementation of the Assembly Decisions on the International Criminal Court (ICC), January 2012, Assembly/AU/Dec.397 (XVIII), para 9.

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Statute does not absolve States form their obligation to arrest and surrender President al-Bashir. However, the ICC’s reasoning was not always consistent. The first in the line of decisions was the Decision on Non-Cooperation by Malawi which was delivered in 2011.19 This was the first instance in which the ICC addressed the issue of President al-Bashir’s immunity in a detailed fashion. The ICC’s Pre-Trial Chamber I held that Malawi had failed to cooperate with the ICC by not arresting al-Bashir when he visited the country in October 2011.20 In this instance the ICC reasoned that there was an exception under customary international law to Head of State immunity where an international court requests the arrest of a Head of State for international crimes. The ICC furthermore reasoned that Article 98(1) of the Rome Statute did not apply because there was an exception to the customary international law position concerning Head of State immunity. Thus, according to the ICC, there could be no construction of a conflict between the obligation of Malawi to arrest al-Bashir and customary international law.21 Not surprisingly, this reasoning by the ICC (what one could almost call ‘wishful thinking’) has been criticised by several commentators. The most pertinent point of criticism was that the ICC in the Malawi-case has failed to directly address the question of the meaning of Article 98(1) vis-à-vis the duty of States to cooperate with the ICC.22 Pre-Trial Chamber I adopted the same reasoning for its Decision on Non-Compliance by Chad in 2011 and held that Chad had failed to comply with its obligations under Article 86 of the Rome Statute to cooperate with the Court in the arrest and surrender of President al-Bashir.23 By 2014 the reasoning of the ICC in its line of non-cooperation decisions started to shift. Pre-Trial Chamber II had the opportunity to address another instance of an African State party’s failure to arrest President al-Bashir, this time by the Democratic Republic of Congo (DRC).24 Pre-Trial Chamber II held that the DRC had failed to cooperate with the ICC when al-Bashir visited its territory, but based its decision this time on different reasoning compared to the earlier decisions involving Malawi and Chad.25 In the DRC decision Pre-Trial Chamber II held that the UN Security Council Resolution 1593 of 2005 which obliged Sudan to fully

19

Non-Cooperation Malawi, above n 14. Ibid., para 12. 21 Ibid., para 43. 22 See, e.g., Akande 2011 (the author argued that the Pre-Trial Chamber erred when it held that an exception exists in customary international law to the immunity of Heads of State before international courts); Tladi 2013 (arguing that the reasoning provided by the Court failed to address Article 98 of the Rome Statute). 23 Non-Cooperation Chad, above n 14, paras 9 and 13. A further decision on non-cooperation by Chad was issued by Pre-Trial Chamber II in March 2013 (ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir, 26 March 2013, ICC-02/05-01/09-151). 24 Non-Cooperation DRC, above n 14. 25 Ibid., para 34(a). 20

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cooperate with the Court explicitly waived al-Bashir’s immunity.26 And thus started a line of reasoning which, together with the question concerning the potential horizontal application of Article 27(2) of the Rome Statute (i.e., the relations between States), forms the crux of the case presently before the Appeals Chamber in the Jordan Appeal. The reasoning regarding the legal effect of Resolution 1593 was not regarded as necessarily on firmer ground, compared to the ‘customary international law exception’ rationale, which played a decisive role in the Malawi and Chad cases. Indeed, some commentators pointed out that only Sudan had the legal power to waive the immunities attached to incumbent President al-Bashir.27 In the Pre-Trial Chamber Decision on Non-Cooperation by South Africa of July 2017, it was held that South Africa had failed to cooperate with the Court as it did not arrest al-Bashir when he visited the country to attend an AU Summit in June 2015.28 In yet another, perhaps more nuanced version of the post-Malawi, Chad and DRC decisions, the ICC Pre-Trial Chamber in the South Africa matter again based its decision on the fact that President al-Bashir does not enjoy immunity, but this time on the basis that the effect of the Security Council referral of al-Bashir’s case to the ICC was to place Sudan in an analogous position to that of a State party, and that Article 27(2) of the Rome Statute would apply, thus rendering al-Bashir’s immunities before the ICC inapplicable.29 Again, some commentators criticised the ICC for failing to address the interpretation, scope and meaning of Article 98 of the Rome Statute.30 Indeed, the story of the shifting rationale for finding against non-cooperative States without providing clear and consistent reasons, left commentators like Paola Gaeta to conclude that, ‘[t]he highly political tension between the African Union and the [ICC] on this and other matters is far from being settled and the jurisprudence of the Court which is not impeccable certainly won’t help to alleviate this’.31 In many respects the Omar al-Bashir saga is as good an illustration of the ‘humbling limitations’ of the ICC as one can get. The legal principles regarding Head of State immunity, in conjunction with the political context in which immunity became the wrench which could destroy or at least drastically slow the turning wheels of justice, will be considered with reference to three forums of adjudication: The Supreme Court of Appeal of South Africa, the ICC and the Kenyan Court of Appeal sitting in Nairobi. By way of conclusion some of the pertinent issues raised before the Appeals Chamber in the Kingdom of Jordan matter will be considered to

26 Ibid., paras 29 and 31. For a detailed commentary on the Chamber’s decision, see de Hoogh and Knottnerus 2014; Gaeta 2014. 27 de Hoogh and Knottnerus 2014. For a similar view, see Gaeta 2014. 28 Non-Cooperation South Africa, above n 14. 29 Ibid., paras 88, 91–93. For a detailed commentary on this decision, see Knottnerus 2017. 30 See Knottnerus 2017 (arguing that the reasons given by the Court for the decision are not legally convincing, and that the Court still failed to clarify the meaning of Article 98). 31 Gaeta 2014.

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suggest a way forward, not only for Africa and the ICC, but indeed for the ICC and the broader international political and legal community.

5.4

South Africa’s Failure to Arrest President Omar Al-Bashir

South Africa has failed to arrest President Omar al-Bashir when he was visiting the country between 13 and 15 June 2015 to attend an AU Summit which was being held in Johannesburg. South Africa was not the first country which failed to comply with an ICC request for the arrest and surrender of al-Bashir.32 However, South Africa was the first State party to the Rome Statute to seek from the ICC a final legal determination on the extent of its obligations to execute a request for the arrest and surrender of President al-Bashir. That legal determination was done by Pre-Trial Chamber II in its Decision Under Article 87(7) of the Rome Statute on the Non-Compliance of South Africa with the ICC Request for the Arrest and Surrender of al-Bashir of 6 July 2017.33 But even before the ICC decision on the matter, South Africa’s own courts pronounced on the government’s apparent failure to comply with an ICC request. The South African Supreme Court of Appeal (SCA), the second most senior court in the country,34 delivered judgment in the matter of Minister of Justice and Constitutional Development and others v. SALC and others on 15 March 2016.35 The key issue was whether the South African authorities acted consistent with their obligations under the Rome Statute and the Implementation of the Rome Statute of the ICC Act 27 of 2002. At the heart of the case before the South African SCA was the question whether President al-Bashir was protected against possible arrest and surrender because of immunity. The SCA considered two legal sources for immunity against arrest and detention of a visiting Head of State, namely customary international law and the Diplomatic Immunities and Privileges Act 37 of 2001 (DIPA). Section 4(1)(a) of DIPA provides that a Head of State is immune from the criminal and civil jurisdiction of the Courts of the Republic and enjoys such privileges as Heads of State enjoy ‘in accordance with the rules of customary international law’. Section 4(2) of the Implementation of the Rome Statute Act appears to remove immunity of Heads of State in the context of the prosecution of international crimes in South Africa (a statutory provision which opens a whole different can of worms and which no

For other findings on non-cooperation, see Non-Cooperation Malawi, above n 14; Non-Cooperation Chad, above n 14; Non-Cooperation DRC, above n 14. 33 Non-Cooperation South Africa, above n 14. 34 The Constitutional Court is the apex court. 35 South Africa, Supreme Court of Appeal, The Minister of Justice and Constitutional Development v. The Southern African Litigation Centre, Judgment, 15 March 2016, 2016 (3) SA 317 (SCA) (Minister of Justice v. SALC). 32

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doubt would be highly controversial from a customary international law point of view, not to mention diplomatic relations between South Africa and Sudan). But does this provision also remove the immunity of a Head of State from arrest in South Africa to be prosecuted at the ICC? The SCA, with reference to the Implementation Act and the Constitution of South Africa (which incorporates international law into domestic law) answered in the affirmative.36 Although the SCA found the rationale for its decision in the construction of the Implementation Act, read with South Africa’s treaty obligations under the Rome Statute, the Court also made some valuable, albeit contested comments about the meaning and relevance of customary international law in the context of the debate about immunities. Customary international law is law in South Africa,37 and as such directly enforceable in the courts, unless it is inconsistent with the Constitution or an Act of Parliament. The SCA demarcated their customary international law analysis in narrow terms, as follows: The narrow issue is whether there is now an international crimes exception to the principle of head of state immunity, enabling a state or national court to disregard such immunity when called upon by the ICC to assist in implementing an arrest warrant. The argument proceeded, as does this judgment, on the basis that once a head of state has been brought before the ICC no plea of head of state immunity can be invoked. But, as a number of commentators have pointed out, that does not necessarily mean that a state is entitled to ignore head of state immunity when requested to cooperate with the ICC to bring such a person before it. It is in this context that the question of an international crimes exception to head of state immunity arises.38

The SCA proceeded to discuss the development and present state of customary international law on the question of immunities and the prosecution of Heads of State for the most serious crimes under international law. The SCA referred, inter alia, to academic commentary as well as case law of the ICJ, the European Court of Human Rights and some domestic courts. The SCA, despite its apparent desire to find a more progressive state of customary international law, was unable to do so. The SCA held that it is not the task of domestic courts, including senior courts like the SCA, to develop customary international law. Rather, it is the task of domestic courts to discern the existing state of the law. The SCA quoted, with approval, Lord Hoffmann’s pronouncement in the UK House of Lords decision in Jones v. Ministry of the Interior of the Kingdom of Saudi Arabia: ‘It is not for a national court to “develop” international law by unilaterally adopting a version of that law which, however desirable, forward-looking and reflective of values it may be, is simply not accepted by other states.’39

36

Ibid., para 61. Section 232 Constitution of the Republic of South Africa, 1996. 38 Minister of Justice v. SALC, above n 35, para 69. 39 UK House of Lords, Jones v. Ministry of the Interior of the Kingdom of Saudi Arabia; Mitchell v. Al-Dali, 14 June 2006, [2006] UKHL 26, para 63, quoted in Minister of Justice v. SALC, above n 35, para 74. 37

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The SCA thus refused to contemplate the development of customary international law to include the non-applicability of immunities in the context of crimes under international law. With reference to the view of international courts, the SCA noted40 that the ICC, in the DRC Non-Cooperation case, affirmed the view expressed by the ICJ in the Arrest Warrant case. The ICC in the DRC Non-Cooperation case held: At the outset, the Chamber wishes to make clear that it is not disputed that under international law a sitting Head of State enjoys personal immunities from criminal jurisdiction and inviolability before national Courts of foreign States even when suspected of having committed one or more of the crimes that fall within the jurisdiction of the Court.41

The SCA further noted42 that the ICJ in the Arrest Warrant case (on which the ICC in the DRC Non-Cooperation case relied) recognised that high-level officials entitled to immunity ratione personae may be subject to criminal proceedings before international criminal tribunals (such as the ICC) where these tribunals have jurisdiction. This, in itself, does not constitute an exception to the customary international law position on immunities. The SCA explained as follows: There is a difference between saying that an international tribunal, having jurisdiction and constituted on terms that specifically exclude reliance on any principles of immunity, provides an exception to the customary international law rule that heads of state enjoy immunity ratione personae, and saying that a national court asked to provide assistance to that international tribunal is likewise not bound by the customary international law rule. It is the latter proposition with which we are concerned. And it is of great importance that in two instances in dealing with the arrest and surrender of President Al Bashir, the ICC did not found its decisions on that proposition. Instead it held that President Al Bashir does not enjoy any such immunity, because the Security Council removed it by way of Resolution 1593 (2005).43

It should be noted that the SCA was also fully aware of the ICC’s departure from the Malawi Non-Cooperation decision, where the ICC still held that ‘customary international law creates an exception to Head of State immunity when international Courts seek a Head of State’s arrest for the commission of international crimes’.44 The SCA thus concluded that the ICC’s position is that President al-Bashir ‘would enjoy head of state immunity, were it not … for the fact that it has been waived by the Security Council’.45 Considering the SCA’s survey of developments in customary international law, including the views of international tribunals on the subject, the SCA concluded, with apparent regret, that at this stage of the development of customary international law there is no international crimes exception to the immunity and

40 41 42 43 44 45

Minister of Justice v. SALC, above n 35, para 75. Non-Cooperation DRC, above n 14, para 25. Minister of Justice v. SALC, above n 35, para 76. Ibid., para 77. Ibid., para 82, referring to Non-Cooperation Malawi, above n 14, paras 37–43. Minister of Justice v. SALC, above n 35, para 82.

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inviolability that Heads of State enjoy when visiting foreign countries and before foreign national courts.46 Since customary international law provided no exception to the immunity from arrest and detention that President al-Bashir would normally enjoy while on a visit to South Africa, the SCA next turned to the Implementation of the Rome Statute of the ICC Act 27 of 2002 to determine whether a possible statutory exception to Head of State immunity exists under South African law. Section 4 of the Implementation Act provides for the inapplicability of immunity as a defence if a person is tried before a South African court on charges of genocide, war crimes and crimes against humanity. For the SCA it would constitute an anomaly if Section 4 of the Implementation Act would only apply if a person is being tried before a South African court, but would not exclude immunity when that person is sought by the ICC. The language and spirit of the Implementation Act simply dictates an interpretation in favour of the inapplicability of immunities – whether for purposes of a trial before a South African court or for purposes of cooperation between South Africa and the ICC. The SCA held: [W]hen South Africa decided to implement its obligations under the Rome Statute by passing the Implementation Act it did so on the basis that all forms of immunity, including head of state immunity, would not constitute a bar to the prosecution of international crimes in this country or to South Africa cooperating with the ICC by way of the arrest and surrender of persons charged with such crimes before the ICC, where an arrest warrant had been issued and a request for cooperation made.47

South Africa’s apparent departure, via the Implementation Act, from the international norm is, for the SCA at least, a matter of ‘national pride’ and ‘not a matter of concern’.48 But the SCA was clearly mistaken, or overly optimistic at best, in their view that South Africa’s robust international criminal law cooperation regime is indeed a matter of uniform ‘national pride’. Indeed, it became abundantly clear that the ANC, South Africa’s governing party, no longer shares the SCA’s enthusiasm for the Implementation Act’s goal of ending impunity, even if it involves the inapplicability of immunities, including Head of State immunity. The International Crimes Bill [B37-2017], which was published in the wake of the ANC’s December 2017 renewal of its commitment to withdraw South Africa from the ICC, will, if adopted, repeal the Implementation Act of 2002. The International Crimes Bill also constitutes a clear break with the Implementation Act’s anti-impunity clause, and will accordingly not apply to persons who are immune from the criminal jurisdiction of the courts of South Africa in accordance with customary international law or as provided for in the Diplomatic Immunities and Privileges Act of 2001.49

46

Ibid., para 84. Ibid., para 103. 48 Ibid. 49 South Africa, International Crimes Bill B37-2017, Section 3(1). http://www.justice.gov.za/ legislation/bills/2017-b37-ICBill.pdf. Accessed 7 January 2019. The bifurcated Preamble of the Bill contains two parts: four paragraphs on the need to end impunity and to hold those responsible 47

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Should the International Crimes Bill, in enacted form, ever come before the SCA, can it be assumed that the judges would be less thrilled with the legislative turn, away from fighting impunity towards a more traditional position on immunities, in line with customary international law? It may not matter, of course. For now, the SALC-precedent stands; and from everything that we can observe the South African government and the governing party’s legislative efforts will seek to avoid another al-Bashir episode at all costs. This is so, because the government suffered a defeat at the domestic level, where the SCA held that the government’s conduct was inconsistent with South Africa’s obligations in terms of the Rome Statute and with the Implementation of the Rome Statute of the ICC Act 27 of 2002, and thus unlawful; and the government later also lost at the international level, where ICC Pre-Trial Chamber II held that South Africa failed to comply with its obligations under the Rome Statute by not executing the ICC’s request for the arrest of President al-Bashir and his surrender to the ICC while he was visiting South Africa in June 2015.50 It is a similar finding against the Kingdom of Jordan which is currently before the ICC Appeals Chamber, and which is briefly discussed below.

5.5

ICC Pre-Trial Chamber II Finds Against South Africa

I will not discuss all the legal issues raised in the South Africa case before the ICC, suffice to note a few important observations by the ICC which are relevant for present purposes. First, regarding customary international law, the ICC noted that there appears to be no rule in customary international law that would ‘exclude immunity for Heads of State, even when their arrest is sought for international crimes by another State, even when the arrest is sought on behalf of an international court’ (including the ICC).51 So, if customary international law provides for the for the worst crimes under international law to account, including South Africa’s obligations in this regard; and then a second, qualifying part of the Preamble which reminds the reader/interpreter that – ‘the Republic of South Africa is a founder member of the African Union; the Republic of South Africa plays an important role in resolving conflicts on the African continent and encourages the peaceful resolution of conflicts wherever they occur; the Republic of South Africa, in exercising its international relations with heads of state of foreign countries, in particularly heads of foreign countries in which serious conflicts occur or have occurred, is hindered by the Implementation of the Rome Statute of the International Criminal Court Act, 2002, which together with the Rome Statute of the International Criminal Court compel South Africa to arrest heads of state of foreign countries wanted by the International Criminal Court for the crime of genocide, crimes against humanity and war crimes and to surrender such persons to the International Criminal Court, even under circumstances where the Republic of South Africa is actively involved in promoting peace, stability and dialogue in those countries; and the Republic of South Africa wishes to give effect to the rule of customary international law which recognises the diplomatic immunity of heads of state in order to effectively promote dialogue and the peaceful resolution of conflicts wherever they may occur, but particularly on the African continent.’ 50 Non-Cooperation South Africa, above n 14. 51 Ibid., para 68.

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immunities of Heads of States from arrest by other States, is there any possibility to derogate from the general regime on immunities52 when the ICC seeks the arrest and surrender of a person enjoying immunity as a Head of State? The ICC identified Article 27(2) and its relationship with Article 98(1) of the Rome Statute as the relevant legal framework for analysis and interpretation. Article 27(2) provides for the irrelevance of immunities for purposes of the exercise of jurisdiction over individuals by the ICC. Article 27(2), according to the ICC, has two effects: In a vertical sense it affects the relationship between a State party and the ICC; horizontally it affects inter-party relationships between States parties to the Rome Statute.53 The vertical application entails that any immunity belonging to a State party is irrelevant and cannot be raised as a ground for refusing the arrest and surrender of a person sought by the ICC. In the horizontal sense it means that one State party cannot refuse to arrest and surrender an individual on the grounds that such an individual benefits from immunities which stem from an official capacity in another State party.54 Of course, the situation in the al-Bashir matter concerned the Head of State of a non-party State – Sudan. Hence the applicability of Article 98(1) of the Rome Statute. In terms of this provision, no State party (such as South Africa) can be required to act inconsistently with its obligations under international law with respect to a non-party State (such as Sudan). Thus, the ICC may not ‘without first obtaining a waiver of immunity, request a State Party to arrest and surrender the Head of State of a State not party to the [Rome] Statute’.55 As a waiver in the case of President al-Bashir was out of the question, the ICC turned to the effect of UN Security Council Resolution 1593 (2005)56 as a possible way around the Article 98(1) impasse. This Resolution requires Sudan to fully cooperate with the ICC. The ICC understood this to mean that the Resolution not only triggered the jurisdiction of the ICC, but also imposed on Sudan an obligation vis-à-vis the ICC to cooperate fully, which includes that Sudan has an obligation to

52

It should be noted that immunity ratione personae from foreign criminal jurisdiction as enjoyed by serving Heads of State, is well-established under international law. And this includes immunity from foreign criminal jurisdiction for international crimes. The category of officials who enjoy this form of immunity goes beyond Heads of State and includes other high-ranking officials, including, at present, Heads of Government, defence ministers, and ministers for commerce and international trade. See Crawford 2012, pp. 499–500; UK House of Lords, R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet, Judgment, 25 November 1998, [2000] 1 AC 61, pp. 147, 244, 261, 265, 268–269, 277; France, Court of Appeal of Paris, Gaddafi case, Appeal judgment, 13 March 2001, 125 ILR 490; Belgium, Court of Cassation, Re Sharon and Yaron, Judgment, 12 February 2003, 127 ILR 110; UK, Tatchell v. Mugabe, Judgment, 2004, 136 ILR 572. See also Arrest Warrant, above n 2, p. 25. 53 Non-Cooperation South Africa, above n 14, para 76. 54 Ibid., para 79. 55 Ibid., para 82. 56 For the text of the Resolution, see https://www.icc-cpi.int/NR/rdonlyres/85FEBD1A-29F84EC4-9566-48EDF55CC587/283244/N0529273.pdf. Accessed 7 January 2019.

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arrest and surrender their own president, Omar al-Bashir, to the ICC.57 Sudan can thus not claim, vis-à-vis the ICC, Head of State immunity regarding President al-Bashir. But what about State parties like South Africa? The ICC held that, because of the Security Council Resolution, Article 27(2) applies to Sudan; and the immunities of President al-Bashir do not apply vis-à-vis State parties (like South Africa) when they are requested by the ICC to arrest and surrender him to the ICC. This reading by the ICC of the effect of Resolution 1593, which triggered Article 27 with respect to Sudan, means that Article 98(1) becomes inapplicable at the horizontal level since there is no immunity to waive. States parties are thus free to execute the ICC’s request for cooperation in the form of arrest and surrender of a sitting Head of State, and Sudan’s rights under international law are not violated by the requested State.58

5.6

The Nairobi Appeal Court (Kenya) Follows Its South African Counterpart with Regards to the Inapplicability of Immunity as an Obstacle to Cooperate with the ICC

On 16 February 2018 the Nairobi Court of Appeal delivered judgment in the matter of The Attorney General and others v. The Kenya Section of International Commission of Jurists.59 The issue before the court was whether Kenya, as a State party to the Rome Statute, has a duty to arrest and surrender President al-Bashir of Sudan to the ICC. The court noted that al-Bashir has visited Kenya on at least one previous occasion while the Kenyan authorities were aware of the two warrants to arrest al-Bashir. The occasion was the celebration of the promulgation of Kenya’s new Constitution on 27 August 2010. The Nairobi Appeal Court summarised the political and legal dilemma as follows: Kenya clearly found itself in a rare geopolitical predicament when it was requested by the ICC to effect the arrest and surrender of President Al Bashir. The choice was between cooperating with the ICC and remaining true to the African Union resolution not to cooperate with ICC. In view of the law that we have set out in this judgment, the former was the only tenable legal choice for Kenya; that is, to demonstrate its commitment to champion the fight on global impunity. But by inviting President Al Bashir to the inauguration of a new Constitution, which ironically has one of the most progressive Bill of Rights in the region, the Government of Kenya itself acted with impunity and joined States like Malawi, Djibouti, Chad, Uganda and the Democratic Republic of Congo … against

57

Non-Cooperation South Africa, above n 14, para 92. Ibid., para 93. 59 Kenya, Court of Appeal at Nairobi, Civil Appeal 105 of 2012 & Criminal Appeal 274 of 2011 (Consolidated), Attorney General & 2 others v Kenya Section of International Commission of Jurists, Judgment, 16 February 2018 [2018] eKLR. 58

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which the ICC has issued non-cooperation decisions and reported their failures to arrest President Al Bashir to the Security Council as well as the Assembly of States Parties.60

It should be noted that Kenya, like South Africa, has fully domesticated the Rome Statute. In the case of Kenya, it is done via the International Crimes Act 16 of 2008. This Act has the overall objective to put ‘an end to impunity for the most serious crimes of concern to the International Community as a whole’.61 The most remarkable aspect of the Nairobi Appeal Court’s decision is, arguably, not its interpretation of Kenya’s treaty obligations under the Rome Statute, or the authorities’ duties under the implementation legislation, but rather the court’s views on the scope of customary international law. First, the Appeal Court noted that all States, including Kenya, have a duty under customary international law to arrest or prosecute President al-Bashir for the crimes under international law which attract universal jurisdiction. These crimes, according to the court, include the crimes of genocide, crimes against humanity, war crimes, torture, piracy and slavery.62 The Appeals Court then proceeded to cite the judgment by the South African Supreme Court of Appeal and the decision by Pre-Trial Chamber II of the ICC (the South Africa decision), which we have discussed above. The Nairobi Appeals Court noted that both the South African SCA and the ICC Pre-Trial Chamber have confirmed that sitting Heads of State would ordinarily enjoy immunity under customary international law, thus making an arrest without a waiver impossible. The Nairobi Appeals Court then noted the effect of the UN Security Council Resolution, which essentially provided for the inapplicability of any immunities which Sudan may have claimed vis-à-vis States like South Africa and Kenya – both States parties to the Rome Statute. The Nairobi Appeal Court, with somewhat confusing and cavalier reasoning, reached the following conclusion: For Kenya the Rome Statute, which is a higher norm than the [Security Council Resolution], and customary international law imposed an overriding obligation to cooperate. Under customary international law, the UN Charter, the Rome Statute and the International Crimes Act, and as a UN Member State it was legitimate for Kenya to disregard President Al Bashir’s immunity and execute the ICC’s request for cooperation by arresting him, because under the concept of pacta sunt servanda embodied in Article 26 of the Vienna Convention on the Law of Treaties, ‘[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith.’63

The Appeals Court in Nairobi thus held that the Kenyan Government’s failure to arrest President al-Bashir breached relevant international instruments, the Kenyan Constitution and national legislation.

60 61 62 63

Ibid., Ibid., Ibid., Ibid.,

pp. 47–48. p. 8. p. 49. pp. 56–57.

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The Jordan Appeal Before the ICC Appeals Chamber

The ICC decisions on the non-compliance of States with the request for the arrest and surrender of Omar al-Bashir, including the most recent finding against the Kingdom of Jordan,64 point to a general trend and a degree of consistency regarding outcome. However, as the ICC Malawi, Chad, DRC, South Africa and Jordan decisions, as well as the two domestic decisions in South Africa and Kenya have shown, the reasoning of the various courts were not always consistent, or even coherent. And while South Africa was the first State party to argue their non-compliance case in a full hearing before the ICC, that country decided against appealing the eventual decision of the ICC, thus depriving the Appeals Chamber of an opportunity to further grapple with the controversial application by the Pre-Trial Chamber of Articles 27(2) and 98(1) of the Rome Statute, as well as the impact of Security Council Resolution 1593 (2005) on all of this. It is therefore to be welcomed that Jordan has lodged an appeal.65 Of significance is the ICC’s openness to accept submissions by amici curiae on the merits of the legal questions presented in the appeal. Given the political and legal issues at stake (not least of all the relationship between the AU and the ICC), it is to be welcomed that the AU was specifically invited to present the Appeals Chamber with submissions. The oral hearings at the Jordan Appeal, which were concluded on 14 September 2018, were supplemented by further written submissions by the participants, including the AU. From the AU Commission’s Supplementary Submission66 it is clear that the AU is not arguing for a two-tier immunities regime before the ICC: one for State parties and one for non-party States. Indeed, the AU seems to find guidance in the object and purpose of the Rome Statute, thus adopting a broader interpretation of Article 27 to exclude ‘immunities for all individuals before the ICC irrespective whether the official is from a State that is party or not to the Rome Statute’.67 This, however, is not the crux of the controversy that brought the issue of immunities to the centre of the cases before the Pre-Trial Chambers and the Appeal Chamber, as well as the domestic cases (South Africa and Kenya) that we have

64

ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision under Article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender or Omar Al-Bashir, 11 December 2017, ICC-02/05-01/09-309. 65 ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, The Hashemite Kingdom of Jordan’s appeal against the ‘Decision under Article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender of Omar Al-Bashir’, 12 March 2018, ICC-02/05-01/09-326. 66 ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Supplementary African Union Submission in the ‘Hashemite Kingdom of Jordan’s Appeal Against the “Decision under Article 87(7) of the Rome Statute on the Non-Compliance by Jordan with the Request by the Court for the Arrest and Surrender of Omar Al-Bashir”’, 28 September 2018, ICC-02/05-01/09-389 (AU Supplementary Submission in the Jordan-Appeal). 67 Ibid., para 4 (emphasis in original).

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discussed. Of concern is the practical, political and legal dilemma of how to get the Head of the State not party to the Rome Statute to the ICC in the first place, that is, without violating existing immunities under international law. And the latter concern must, of course, be balanced with the duty of States parties to the Rome Statute to cooperate in the arrest and surrender of individuals, as contained in Part 9 (and qualified by Article 98) of the Rome Statute. So it is not so much the relationship between the accused and the ICC (which is provided for in Part 3 of the Rome Statute, including Article 27) that is problematic. Indeed, the AU position is that Article 27(2) does not unduly restrict the vertical application of this article to high ranking officials of States parties.68 It is the application of Article 98 which is the problem, and the question is whether UN Security Council Resolution 1593 provides for a way around the Article 98 obstacle. The AU has contended in its submission and supplementary submission to the Appeals Chamber that Resolution 1593 does not ‘expressly or implicitly waive the immunities of Sudan’.69 These submissions were based on the AU’s reading of Resolution 1593, which, according to the AU, should be interpreted in light of the ordinary language as well as the object, purpose and drafting history of the Resolution. While the broad aim of the Resolution is certainly to urge States to cooperate with the ICC in the Darfur situation, it was the AU’s submission that the duty to cooperate extends only to the Government of Sudan and the other parties to the conflict in Darfur. Thus, the duty to cooperate does not extend to States not party to the Rome Statute which ‘have no obligation under the Statute’.70 But Sudan (not a party to the Rome Statute) has a duty to cooperate with the ICC flowing from Resolution 1593 (read with Article 25 of the UN Charter) and in accordance with Article 86 of the Rome Statute.71 Where does that leave States like South Africa, Kenya and Jordan (all States parties to the Rome Statute)? The AU argues that the UN Security Council Resolution’s language of ‘urging’ means that ‘all States and concerned regional and other international organizations were encouraged ˗ not obligated ˗ to also “cooperate fully”’.72 The AU thus submitted that any urging of States such as Jordan must, ‘in line with Article 98(1) of the Rome Statute – respect its customary international law obligations owed to other states such as Sudan’.73 The AU was not alone in its position regarding the ‘mandatory versus coercive effects’ of Security Council decisions under Chapter VII of the UN Charter (which includes 68

Ibid., para 10. ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, The African Union’s Submission in the “Hashemite Kingdom of Jordan’s Appeal Against the ‘Decision under Article 87(7) of the Rome Statute on the Non-Compliance by Jordan with the Request by the Court for the Arrest and Surrender of Omar Al-Bashir’, 16 July 2018, ICC-02/05-01/09-370, paras 44–55; AU Supplementary Submission in the Jordan-Appeal, above n 66, para 17. 70 AU Supplementary Submission in the Jordan Appeal, above n 66, para 18. 71 Ibid., para 20. 72 Ibid., para 22 (emphasis added). 73 Ibid. 69

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the issuing of Resolution 1593). One of the other amici in the Jordan Appeal, Professor Roger O’Keefe, also argued that there are mandatory as opposed to coercive effects flowing from Security Council Chapter VII decisions.74 In retrospect, one can certainly fault the ambivalent language of Resolution 1593. Perhaps the Security Council should have made it crystal-clear what was expected of all UN members with regards the situation in Darfur and cooperation with the ICC, especially as it pertains to any immunities. But Resolution 1593 must be interpreted on the basis of what it says, not what it should have said; so the AU submission, again referring to ‘a plain reading of the text of Resolution 1593’, pointed out that the Security Council ‘did not choose to impose any legally binding decisions on all UN Member States in relation to the Darfur referral.’ Indeed, it ‘only imposed a decision to fully cooperate on Sudan’.75 The net effect of the AU’s submission, then, is that Resolution 1593 should not be interpreted as a way around Article 98 of the Rome Statute and Jordan’s obligations vis-à-vis Sudan. It is so that the Security Council (or its members) was not specifically invited by the ICC Appeals Chamber to make any submissions regarding the meaning of Resolution 1593. However, at least two of the permanent members – Russia and China – are on record that, in their view, Head of State immunity remains intact, regardless of any Security Council Resolution.76

5.8

Concluding Remarks

The Omar al-Bashir saga is about more than a legal-technical interpretation of the Rome Statute. As illustrated in this paper with reference to two African States – South Africa and Kenya – the al-Bashir matter has triggered constitutional issues; questions concerning the rule of law; questions about the scope of customary international law; the past, present and continued relationship between these States and others (like Jordan) and the ICC; legislative reform; and, perhaps more ominously, a souring of the political mood vis-à-vis the ICC, collectively at the level of the African Union, and individually in States like South Africa77 and Kenya, as well as States outside of Africa such as Jordan.

74

ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Transcript, 12 September 2018, ICC-02/05-01/09-T-8-ENG ET WT 12-09-2018 1/109 SZ PT OA2, p. 74, lines 12–25 and p. 75, lines 1–5; p. 76 lines 1–25. 75 AU Supplementary Submission in the Jordan Appeal, above n 66, para 25. 76 See comments and references by Jacobs D (2018) Immunities and the ICC: my two-cents on three points. https://dovjacobs.com/2018/09/10/immunities-and-the-icc-my-two-cents-on-threepoints/amp/?_twitter_impression=true. Accessed 7 January 2019. 77 South Africa’s decision in 2016 to withdraw from the ICC, a decision which was reaffirmed in December 2017, flows directly from the al-Bashir debacle. The immunities issue has consistently been the raison d’être for South Africa’s attitude towards the ICC in the aftermath of President al-Bashir’s visit to that country in 2015. For more on South Africa’s tempestuous recent

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It is submitted that, whatever the outcome of the Jordan Appeal, a much broader legal, policy and political debate is necessary to reconstitute the institutional and legal order in which the question of immunities of high-ranking officials before the ICC will play out in future. The quest to end impunity is real and not fleeting. The role of NGO’s in international criminal law litigation in the two case studies of South Africa and Kenya illustrate the broad movement at grassroots level to end impunity. And, the very foundations of the Rome Statute consist of the quest to hold those responsible for the worst crimes under international law to account. And this, according to the Rome Statute, includes the possibility to try sitting Heads of State for the crimes within the jurisdiction of the ICC. The solution, it seems, is not for the courts – at national and international levels – to try and stretch the law in order to get around a principle as fundamental as the customary international law recognition of immunity ratione personae. It seems to me that the ICC decisions on non-cooperation, including the most recent decisions on South Africa and Jordan, are neither legally defensible nor politically sustainable. There is a duty on States parties to cooperate fully with the ICC. Without that obligation the ICC will obviously not be able to function. But the way in which the ICC has interpreted a UN Security Council Resolution’s ambiguous wording to construct a circumvention of the well-established international law principles on immunities, cannot stand. The Security Council must have made it crystal-clear what the expectation was regarding Head of State immunity (and other relevant immunities, for that matter). We now know – ex post facto – what at least two permanent members of the Security Council think, and they want all States which are cooperating with the ICC in the Darfur-situation to respect Sudan’s immunities. Perhaps this is an instance where the political goalposts have shifted, but this is the reality in which the ICC operates. I don’t want the ICC Appeals Chamber to tailor its decision in the Jordan Appeal to suit the international politics of the day, but the political reality makes it even more important for the Appeals Chamber to recognise the weaknesses in the legal architecture, of which the problematic wording of Resolution 1593 is an integral part. Beyond the ICC, an Advisory Opinion by the International Court of Justice, as proposed by the AU, may go some way to get legal clarity and a broader level of acceptance of the proper understanding of the scope of immunities under customary international law.78 This will also help domestic courts (such as the courts in Kenya and South Africa which had to grapple with complex issues of international law and politics) to be guided by a coherent and clear statement on the law regarding the immunity of high-ranking officials. Since a request for an ICJ Advisory Opinion will first have to be debated in the UN General Assembly, one can expect a certain level of political support and legitimacy regarding the eventual legal outcome. For now, we can hope for a clear and principled decision by the ICC Appeals Chamber.

relationship with the ICC, and the ongoing debate about withdrawal from the Rome Statute, see Kemp 2017. 78 See also comments by Akande 2016.

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A continuation of the status quo should not be an option, because that may turn out to be the final straw for many States that were waiting for a reason to withdraw from the ICC.

References Akande D (2011) ICC issues detailed decision on Bashir’s immunity (…at long last…) But gets the law wrong. EJIL:Talk! https://www.ejiltalk.org/icc-issues-detailed-decision-on-bashir% E2%80%99s-immunity-at-long-last-but-gets-the-law-wrong/. Accessed 7 January 2019 Akande D (2012) The African Union’s response to the ICC’s decision on Bashir’s immunity: Will the ICJ get another immunity case? EJIL:Talk! https://www.ejiltalk.org/the-african-unionsresponse-to-the-iccs-decisions-on-bashirs-immunity-will-the-icj-get-another-immunity-case/. Accessed 7 January 2019 Akande D (2016) An International Court of Justice Advisory Opinion on the ICC Head of State Immunity issue. EJIL:Talk! https://www.ejiltalk.org/an-international-court-of-justice-advisoryopinion-on-the-icc-head-of-state-immunity-issue/. Accessed 7 January 2019 Crawford J (2012) Brownlie’s principles of public international law, 8th edn. Oxford University Press, Oxford de Hoogh A, Knottnerus A (2014) ICC issues new decision on Al Bashir’s immunities – but gets the law wrong… again. EJIL:Talk! https://www.ejiltalk.org/icc-issues-new-decision-on-albashirs-immunities-%E2%80%92-but-gets-the-law-wrong-again/. Accessed 7 January 2019 Gaeta P (2014) Guest post: The ICC changes its mind on the immunity from arrest of President Al Bashir, but it is wrong again. Opinio Juris. https://www.opiniojuris.org/2014/04/23/guest-posticc-changes-mind-immunity-arrest-president-al-bashir-wrong/. Accessed 7 January 2019 Kemp G (2017) South Africa’s (possible) withdrawal from the ICC and the future of the criminalization and prosecution of crimes against humanity, war crimes and genocide under domestic law: A submission informed by historical, normative and policy considerations. Washington University Global Studies Law Review 16(3):411–438 Knottnerus A (2017) The immunity of Al Bashir: The latest jurisprudence of the ICC. EJIL:Talk! https://www.ejiltalk.org/the-immunity-of-al-bashir-the-latest-turn-in-the-jurisprudence. Accessed 7 January 2019 Moyn S (2014) Human rights and the uses of history. Verso, London and New York Tladi D (2009) The African Union and the ICC: The battle for the soul of international law. South African Yearbook of International Law 34:57–69 Tladi D (2013) The ICC Decision on Chad and Malawi: On cooperation, immunities and article 98. Journal of International Criminal Justice 11:199–221 van der Vyver J (2011) Prosecuting the President of Sudan: A dispute between the African Union and the International Criminal Court. African Human Rights Law Journal 11:683–698 Werle G et al (2014) Africa and the International Criminal Court. T.M.C. Asser Press, The Hague

Gerhard Kemp is Professor of Law at Stellenbosch University, South Africa and Alexander von Humboldt Research Fellow at the Humboldt-Universität zu Berlin, Germany.

Chapter 6

The International Criminal Court and Nationals of Non-Party States Yaël Ronen

Contents 6.1 Introduction........................................................................................................................ 84 6.2 Situations Involving Nationals of Non-Party States Acting on the Territory of a State Consenting to Jurisdiction................................................................................................. 85 6.2.1 Georgia/Russia (Under Investigation) .................................................................... 85 6.2.2 Afghanistan/United States (Request for Authorisation for Investigation)............. 86 6.2.3 Palestine/Israel (Preliminary Examination) ............................................................ 86 6.2.4 Ukraine/Russia (Preliminary Examination)............................................................ 87 6.2.5 Bangladesh/Myanmar (Preliminary Examination) ................................................. 88 6.2.6 Republic of Korea/Democratic People’s Republic of Korea (Decision Not to Investigate) ......................................................................................................... 88 6.2.7 Comoros/Israel (Decision Not to Investigate)........................................................ 89 6.3 Challenges in Prosecuting Nationals of Non-Parties........................................................ 89 6.3.1 Non-Customary Crimes and the Prohibition on Retroactive Criminalisation....... 89 6.3.2 Simultaneous Application of Different Criminal Codes........................................ 94 6.3.3 Impact of the Court’s Work on the Rights and Interests of Non-Party States..... 99 6.4 The Way Forward ............................................................................................................. 106 References .................................................................................................................................. 107

Abstract This chapter examines three legal issues that may arise with respect to prosecution before the ICC of nationals of non-parties. One concerns the prohibition on retroactive criminalisation; another is the simultaneous applicability of different criminal codes; and a third is a potential violation of the rights of the non-party States. The chapter examines these questions by reference to situations presently under preliminary examination or investigation by the Office of the Prosecutor.

Y. Ronen (&) Hebrew University of Jerusalem, Jerusalem, Israel e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 G. Werle and A. Zimmermann (eds.), The International Criminal Court in Turbulent Times, International Criminal Justice Series 23, https://doi.org/10.1007/978-94-6265-303-0_6

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Keywords International Criminal Court Rome Statute Non-States parties ICC Statute Georgia Palestine Afghanistan Comoros Ukraine Myanmar Israel Russia




6.1



















Introduction

The International Criminal Court (ICC) is gradually expanding its reach. It began by exercising power upon the express request by States (through self-referral), later relying on consent given in principle to its jurisdiction through ratification of, or accession to, the Statute.1 The Court is now moving to more controversial assertion of power, including in situations involving nationals of non-party States (non-parties), not shying away even when those are major world powers. As a matter of positive law, consent to jurisdiction by the State of nationality of an alleged perpetrator is not a requisite for jurisdiction.2 The Statute provides for jurisdiction based on the consent of the State on whose territory the conduct in question occurred, or on referral by the Security Council.3 Nonetheless, prosecution of crimes committed by nationals of non-party States may present the Court with various challenges. Some are legal, relating to the rights of defendants or of their States of nationality; some are practical, resulting primarily from the fact that non-parties are under no obligation to cooperate with the Court; and others are political, such as placing the Court on a potential collision course with the relevant States. In the latter two areas, non-party status is only one of a host of potentially relevant factors. Lack of cooperation, for example, is neither exclusive to non-parties nor unavoidable in the relations with them. Similarly, the significance of disputes with non-parties varies widely, depending on the particular States and interests involved. Practical and political challenges should therefore be considered not in the abstract but by reference to particular situations. In contrast, the legal aspects of the Court’s exercise of jurisdiction over nationals of non-parties raise questions of principle. This chapter examines some of these questions, including by reference to situations presently under preliminary examination or investigation by the Office of the Prosecutor (OTP), or before the Court. To set the scene, Sect. 6.2 offers a brief review of situations involving nationals of non-parties that are or have been subject to preliminary examination or investigation by the OTP. Section 6.3 is the heart of the chapter, and examines the extent to which the fact that potential defendants are nationals of a non-party State may impact on their individual rights and on the rights of their States of nationality.

1 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (ICC Statute). 2 E.g., ICC OTP, Public Redacted Version of ‘Request for Authorisation of an Investigation Pursuant to Article 15’ (Situation in Afghanistan), 20 November 2017, ICC-02/17-7-Conf-Exp, para 44. 3 ICC Statute, above n 1, Articles 12 and 13.

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Section 6.3.1 concerns a potential violation of the prohibition on retroactive criminalisation in certain circumstances if non-party nationals are prosecuted for non-customary crimes. Section 6.3.2 concerns the consequences of differences in the scope of application between the ICC Statute and the law of international armed conflict for non-party nationals, again with regard to non-customary crimes. Section 6.3.3 turns to consider the claims that rulings of the Court regarding nationals of non-party States may violate the rights of those States, principally on the basis of the Monetary Gold principle. Section 6.4 concludes.

6.2

Situations Involving Nationals of Non-Party States Acting on the Territory of a State Consenting to Jurisdiction

Jurisdiction over nationals of non-parties may exist when the State on whose territory a crime has allegedly been committed consents to jurisdiction, either by joining the ICC Statute or through an ad hoc declaration under Article 12(3); or when a situation is referred to the ICC by the Security Council.4 This section briefly introduces situations that have so far reached the organs of the Court that are based on the consent of the territorial State and involve nationals of other States as alleged perpetrators. At the time of writing, five situations are subject to OTP action. In two other situations where jurisdiction over nationals of non-party States would have hinged on a territorial link, the OTP has concluded the preliminary examinations with a decision not to proceed to investigation.

6.2.1

Georgia/Russia (Under Investigation)

On 27 January 2016 the Court granted the Prosecutor’s request for authorisation to open an investigation into the situation in Georgia. The investigation concerns crimes against humanity and war crimes allegedly committed between 1 July and 10 October 2008 in the context of an international armed conflict. Georgia has been party to the ICC Statute since 1 December 2003. The alleged crimes are attributed to the Georgian armed forces, to South Ossetian forces, and to Russian armed forces. The latter are described as having been involved, alongside South Ossetian forces, in the commission of war crimes of wilful killing, destruction of property and pillage. The OTP’s description of this involvement is cautious,5 focusing primarily on failure to prevent attacks, although the request for authorisation notes that 4 Another possibility is jurisdiction based on an Article 12(3) declaration by a non-party State whose nationals are alleged to have committed crimes on the territory of another non-party. To date there have not been any Article 12(3) declarations based exclusively on the nationality link. 5 Tsereteli 2016.

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at least some members of the Russian armed forces participated in the commission of the alleged crimes.6 The OTP also examined allegations of indiscriminate and disproportionate attacks as well as sexual and gender-based violence by Russian forces, but did not consider that it had sufficient information to pursue an investigation. However, since the authorisation extends to all crimes within the jurisdiction of the Court committed within the parameters of the situation, the eventual investigation could ultimately extend also to these allegations.7

6.2.2

Afghanistan/United States (Request for Authorisation for Investigation)

On 20 November 2017 the OTP requested the Court’s authorisation to proceed with an investigation into the situation in Afghanistan in the period since 1 July 2002, specifically of crimes allegedly committed on the territory of Afghanistan since 1 May 2003, as well as in Poland, Romania and Lithuania. Afghanistan has been party to the ICC Statute since 1 May 2003. The Statute entered into force for Poland and Romania on 1 July 2002, and for Lithuania on 1 August 2003.8 The conduct which the OTP wishes to investigate includes alleged crimes against humanity and war crimes by Afghani nationals; and war crimes of torture, outrages upon personal dignity and rape and other forms of sexual violence in the context of a non-international armed conflict, allegedly committed by members of the US armed forces on the territory of Afghanistan, and by members of the CIA both in Afghanistan and on the territory of the other States parties.9

6.2.3

Palestine/Israel (Preliminary Examination)

On 16 January 2015 the OTP opened a preliminary examination into the Palestine situation.10 This situation comprises three issues: the West Bank and East Jerusalem, the Gaza hostilities in 2014, and events in the Israel-Gaza border in 2018. The Court’s jurisdiction is based on a Palestinian declaration of 1 January 2015 under Article 12(3) of the Statute, accepting the jurisdiction of the ICC over ICC OTP, Corrected Version of ‘Request for Authorisation of an Investigation Pursuant to Article 15’, 16 October 2015, ICC-01/15-4-Corr, paras 137–140. 7 ICC, Decision on the Prosecutor’s request for authorization of an investigation (Situation in Georgia), 27 January 2016, ICC-01/15 paras 35, 63. 8 ICC OTP 2017, paras 234–235. 9 ICC OTP, Public Redacted Version of ‘Request for Authorisation of an Investigation Pursuant to Article 15’ (Situation in Afghanistan), 20 November 2017, ICC-02/17-7-Conf-Exp, paras 187– 252 (Afghanistan Request). 10 ICC OTP 2015. 6

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alleged crimes committed ‘in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014’; and on Palestine’s accession to the Statute,11 which entered into force on 1 April 2015.12 With respect to the West Bank and East Jerusalem, alleged war crimes which involve Israeli nationals include settlements activities, forced removal as well as demolition of property, and eviction of Palestinians from homes.13 Alleged crimes against humanity which involve Israeli nationals include the crimes of persecution, transfer and deportation of civilians, and apartheid.14 With respect to the Gaza hostilities of 2014 and to the 2018 violence, alleged crimes were committed both by members of Palestinian armed groups and by members of the Israel Defense Forces, but the OTP has not yet indicated specific crimes.15

6.2.4

Ukraine/Russia (Preliminary Examination)

The situation in Ukraine has been under preliminary examination since April 2014. It is based on two Ukrainian declarations under Article 12(3). One is from 17 April 2014, accepting the jurisdiction of the Court over alleged crimes committed on Ukraine’s territory from 21 November 2013 to 22 February 2014. The other declaration is from 8 September 2015, accepting the Court’s jurisdiction in relation to alleged crimes committed on Ukraine’s territory from 20 February 2014 onwards.16 The Ukraine situation concerns events surrounding the Maidan protest, events in Crimea, and the fighting in Eastern Ukraine. Russian nationals are implicated as perpetrators only with respect to events in Crimea, where crimes allegedly committed by them include forced conscription, transfer of part of the civilian population of the Russian Federation into Crimea, and of part of the population of Crimea outside that territory, seizure of properties, and persecutory acts against Tatars.17 Other crimes which the OTP mentions without specifying whether alleged perpetrators are Russian or Ukrainian separatists include torture and other forms of ill treatment, deprivation of fair trial and deprivation of liberty.18 With regard to the

11

Palestine, President of the State 2014; ICC 2015. Since the present analysis is not concerned with the particulars of the Palestine situation, it will proceed on the assumption that the accession is valid and effective. See ICC OTP 2018, para 268 regarding challenges to the Court’s jurisdiction and its scope 13 ICC OTP 2018, paras 269–271. 14 ICC OTP 2018, para 271. 15 Ibid., paras 261–267, 274, 275. 16 ICC OTP 2018, paras 59–62. 17 ICC OTP 2016, paras 152–176, ICC OTP 2017, paras 97–103, ICC OTP 2018, paras 75–82. 18 ICC OTP 2018, paras 76, 78, 69. 12

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fighting in Eastern Ukraine, Russia’s involvement is examined in the context of exercising overall or direct control over local armed groups in Eastern Ukraine.19

6.2.5

Bangladesh/Myanmar (Preliminary Examination)

The OTP has been looking into allegations of crimes committed since August 2017 against the Rohingya population of Myanmar.20 Myanmar is not a party to the ICC Statute. Following a request by the OTP, the Court has ruled that a crime of deportation initiated in a non-party State and completed in a State party fell within the parameters of Article 12(2)(a) of the Statute.21 On this basis and since Bangladesh has been party to the Statute since 2010, the OTP opened a preliminary examination into the situation in Bangladesh, which it defined as deportation of members of the Rohingya community into Bangladesh as a crime against humanity. The alleged perpetrators are Myanmar nationals.

6.2.6

Republic of Korea/Democratic People’s Republic of Korea (Decision Not to Investigate)

In December 2010 the OTP opened a preliminary examination regarding two incidents which took place in 2010 on the territory of the Republic of Korea, which had likely been instigated by DPRK nationals.22 The two incidents are the sinking of the South Korean Cheonan warship and the shelling of South Korea’s Yeonpyeong Island. The Republic of Korea is party to the ICC Statute since 13 November 2002. The DPRK is not party to the Statute. The OTP ultimately held that it did not have a reasonable basis to believe that either incident constituted a crime within the jurisdiction of the Court,23 and therefore concluded its examination.

19

ICC OTP 2016, para 170 and ICC OTP 2018, para 72 respectively. The OTP did not characterise its activities as a preliminary examination (but rather as a pre-preliminary examination) until Pre-Trial Chamber I confirmed in September 2018 that the Court had jurisdiction over the matter. In the confirmation ruling the Court stated that there was no such thing as a pre-preliminary examination. ICC, Decision on the ‘Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute’, 6 September 2018, ICC-RoC46(3)-01/18-37, para 82 (Myanmar Ruling). ICC OTP 2018, paras 19, 30 dates the beginning of the preliminary examination to 18 September 2018 (leaving the basis of OTP activity until then unclear). 21 Myanmar Ruling, ibid., paras 64, 72. 22 ICC OTP 2014b, para 7. 23 Ibid, paras 2, 57, 70, 81, 82. 20

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Comoros/Israel (Decision Not to Investigate)

In May 2013 the OTP opened a preliminary examination with respect to the 31 May 2010 Israeli interception of a humanitarian aid flotilla bound for the Gaza Strip.24 Of the eight vessels which originally set sail, three were registered in States parties, namely the Comoros, Cambodia and Greece. In 2014 the OTP determined that there was a reasonable basis to believe that war crimes had been committed on board the Comoros-registered Mavi Marmara in the context of an international armed conflict,25 but the situation was not of sufficient gravity to justify further action by the Court.26 The OTP then announced the closure of the preliminary examination. Following a request submitted by Comoros and confirmed by the Court27 the OTP reviewed its decision, but did not alter it.28 The Union of Comoros appealed the OTP’s decision.29 The Court granted the appeal request in part, and ruled that the OTP should further reconsider its original decision.30 At the time of writing, an OTP’s appeal on this ruling is pending.31

6.3 6.3.1

Challenges in Prosecuting Nationals of Non-Parties Non-Customary Crimes and the Prohibition on Retroactive Criminalisation

The present section examines the consequences for nationals of non-party States of applying the ICC Statute retroactively. Such application could follow Security Council referrals and Article 12(3) declarations.32 This section considered whether

24

ICC OTP 2017, para 314. Ibid., para 329. 26 ICC OTP 2014a, paras 14, 19, 24. 27 ICC, Situation on the Registered Vessels of the Union of the Comoros, The Hellenic Republic and the Kingdom of Cambodia, Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation, 16 July 2015, ICC-01/13-34. 28 ICC OTP 2017, paras 335–340, 344. 29 Comoros, Public Redacted Version of ‘Application for Judicial Review by the Government of the Union of the Comoros’ ICC-01/13-58-Red, 23 February 2018. 30 ICC PTC I, Decision on the ‘Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute’”, ICC Doc ICC-RoC46(3)-01/18. 31 ICC OTP, Request for Leave to Appeal the ‘Decision on the ‘Application for Judicial Review by the Government of the Union of the Comoros’ ICC-01/13’. 32 Milanović 2011; Milanović 2012; Akande 2018; Broomhall 2016, p. 956, marginal no 20 also cites the two scenarios but given that he rejects the direct applicability of the Statute to individuals, it is not clear why only these cases present problems. Zimmermann argues that Article 12(3) declarations should only operate prospectively, Zimmermann 2013, pp. 309–318. For a contrary view, see Stahn et al. 2005, pp. 429–431. The OTP’s practice with respect to Ukraine and Palestine 25

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such application can be reconciled with the prohibition on retroactive criminalisation. This prohibition is stipulated in ICC Statute Article 22(1), which provides that a person may be criminally responsible under the Statute only if ‘the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court’. This provision corresponds to the principle of nullum crimen sine lege in international human rights law and in international criminal law, which inter alia prohibits retroactive criminalisation.33 It has been queried whether it suffices that the conduct be within the subject matter jurisdiction of the Court (at the time of commission) for the condition of non-retroactivity under Article 22 to be fulfilled, or whether other jurisdictional aspects also have to be fulfilled. Since the term ‘crime within the jurisdiction of the Court’ appears in the heading of Article 5 of the Statute, which deals only with subject matter jurisdiction, one view is that subject matter jurisdiction suffices to fill Article 22’s requirement. However, given that the Statute’s drafters have generally rejected the universal approach to ICC jurisdiction that this view reflects, the better view seems to be that the conduct must also be within the temporal, geographical and personal jurisdiction of the Court.34 Non-retroactivity therefore entails that the conduct be criminal in the territory where it is carried out at the time of its commission (or with respect to the person committing it, an option which is not relevant to nationals of non-party States). Insofar as concerns conduct that was already criminalised under customary international law at the time of its commission, this requirement does not raise particular concerns. Customary international crimes are prohibited universally and are therefore punishable in any territory,35 regardless of the perpetrator’s nationality and whether the Statute as such was applicable in the terrritory at the time of commission or not.36

situations appears to reject Zimmermann’s view. Additional instances where the Statute might apply ex post facto, for States parties, are continuing crimes committed before its entry into force. Scharf 2001b, pp. 79–80. 33 UNGA 1948, Article 11(2), International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR), Article 15. Whether the principle is a customary international criminal law may be disputed, but ICC Statute Article 22 explicitly applies it with respect to the ICC. Gallant 2009, chapter 7; Worster 2011, Bartels 2017, pp. 153–154. 34 Broomhall 2008, p. 723, marginal no 33. 35 This analysis is premised on the proposition that, generally, the Statute is directly applicable to individuals. Milanović 2011; Milanović 2012, pp. 173–175; Akande 2013, p. 49; Akande 2018. 36 Given that no prosecution would date further back than 2002, the question as to the precise time in which a conduct became criminal under customary international law is largely superfluous. However, if a Statute crime was not customary in 2002 but has since then become customary, the precise time in relation to the time of alleged commission would become highly pertinent. One example might be the war crime of attacking peacekeeping personnel and objects, see discussion in Bartels 2017, pp. 169–172. Another example might be disproportionate attacks on civilians.

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But not all of the Statute’s substantive criminal provisions are customary.37 The Statute lists various non-customary crimes and crimes of controversial status,38 particularly since the addition of crimes in 2010 and 2017.39 Some of the non-customary crimes may be grounded in prior treaties, such as Additional Protocol I,40 others are grounded only in the ICC Statute. With respect to the latter, non-retroactivity depends specifically on the Statute having been applicable in the territory of the State where the act was carried out at the time that it was carried out. When jurisdiction is based on a State being party to the Statute, the latter’s criminal prohibitions apply prospectively in its territory.41 Accordingly, holding individuals 37 The work of the Preparatory Committee on the Establishment of an International Criminal Court was premised on all the crimes included within the Court’s subject matter being customary in nature. Zimmermann 2016, p. 113, marginal no 2. Cryer maintains that criminal prohibitions that had not been customary previously, crystallised as such through the adoption of the ICC Statute. Cryer 2014, p. 267. See Bartels 2017, p. 165 n 102 for other authors who consider the crime section of the Statute to reflect customary international law. 38 For controversy over the customary character of recruitment of children and attacks against peacekeepers, see ICC ASP, Report of the Working Group on Amendments, 15 November 2017, ICC-ASP/16/22, para 14, Bartels 2017 and Akande 2018. Other crimes the customary status of which is highly disputed are enforced pregnancy (Article 8(2)(b)(xii); the transfer of civilian population to occupied territory (Article 8(2)(b)(viii)) (Jia 2009, pp. 163, 164 and specifically ‘indirect’ transfer of population, Cassese and Gaeta 2013, pp. 80–81); intentionally launching an attack in the knowledge that such attack will cause incidental loss of life to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated (Article 8(2)(b)(iv)) (Bartels 2017, p. 166); Rape and other forms of sexual violence (Article 8(2)(b) (xxii)) (Cottier and Mzee 2016, p. 476); enforced disappearances; apartheid (Article 7(1)(j)) (Dugard and Reynolds 2013, p. 883 citing Cassese 2008); other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health (Article 7(1)(k)) (Grover 2010, p. 562, Bartels 2017, p. 160); torture not by or with the acquiescence of an official (Article 7(1)(f), Article 8(2)(a)(ii), 8(2)(c)(1)) (cf. ICTY, Prosecutor v. Anto Furundžija, Judgement, 10 October 1998, IT-95-17/1 (Prosecutor v. Furundžija), para 162). Elements of crimes may also be non-customary, such as the chapeau of Article 7 and the threshold of a non-international armed conflict, Jia 2009, pp. 163, 164. As for modes of participation: non-customary forms include the notion of commission through another (Article 25(3)(a)) (Milanović 2011, p. 38). 39 Employing poison or poisoned weapons; employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; and employing bullets which expand or flatten easily in the human body, all in non-international armed conflict (ICC ASP 2010); and employing biological weapons; employing weapons that escape detection by X-rays, and employing laser weapons designed to cause permanent blindness (ICC ASP 2017). 40 The next section examines the relationship between treaties on the law of armed conflict and the ICC Statute as sources of substantive obligations. 41 Theoretically, Article 22 may be satisfied if the conduct is criminalised under the domestic law of the territorial State even if not under the Statute. However, the likelihood that conduct which is not regarded as a crime under customary international law be prohibited domestically and only then incorporated in the Statute is small. Accordingly, the assumption is that for the purposes of Article 22 criminalisation of non-customary crimes should be sought primarily through applicability of the Statute in the relevant territory.

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responsible for acts committed while in the territory of a State party raises no risk of retroactivity, regardless of their nationality. In contrast, when jurisdiction is based on Security Council referrals (Article 13(b)) or on an ad hoc declaration (Article 12 (3)), the Statute may be applied ex post facto. If such application includes prosecution of acts that are criminalised only by virtue of the Statute, prosecution may run into conflict with the prohibition on retroactivity, because at the time of their commission, such acts did not constitute crimes in the territory in which they were committed (nor with respect to the alleged perpetrator’s State of nationality). This issue concerns prosecution of any person that was not a national of a State party at the time of commission, including nationals of a declaring or referred State. In the Ukraine and Palestine situations, for example, retroactivity could be a concern with regard to Ukrainians and Palestinians as well as to Russians and Israelis. This matter of potential retroactivity has been addressed by various scholars. Marko Milanović maintains that the appropriate way to avoid retroactive criminalisation is to regard the Statute as directly applicable as substantive law only with respect to States parties to the Statute. In other circumstances, namely following Security Council referrals or Article 12(3) declarations, the Statute should be regarded as only jurisdictional, and the Court should apply customary law. Milanović sees this as a preferable middle way between allowing prosecution under the Statute only for acts that are criminalised under customary international law; and maintaining that all crimes under the Statute are applicable directly and universally (since 1 July 2002), including to non-parties and their nationals.42 Bartels identifies the same problem and proposes that retroactive criminalisation should be achieved through the Court’s scrutiny whether the alleged crime was customary at the time of commission.43 The two approaches differ significantly. Milanović’s proposal is to regard Security Council referrals and Article 12(3) declarations as a normatively distinct category from other assertions of jurisdiction. Such a distinction has no basis or support in the Statute. Moreover, this proposal is over-inclusive, as not every Security Council referral or Article 12(3) declaration necessarily operates retroactively. For example, the second Ukrainian declaration provides the Court with jurisdiction prospectively. Bartels avoids these obstacles by not framing the issue as a jurisdictional matter. His proposal nonetheless encounters the drawback highlighted by Milanović, that it invites the Court to impose customary status on to every crime. Both proposals encounter a further difficulty: there is no basis in the Statute for engaging with the question of the customary (or other) character of a norm.44 Article 21 requires that the ICC apply the Statute in ‘the first place’, with customary law constituting only a secondary source. In the 42 Milanović 2011, p. 52. The latter is nonetheless the view held by some, e.g., Scharf 2001a, pp. 375–376. 43 Bartels 2017. 44 ICC, Prosecutor v. Bosco Ntaganda, Second decision on the Defence’s Challenge to the Jurisdiction of the Court in Respect of Counts 6 and 9 (Situation in the Democratic Republic of the Congo), 4 January 2017, ICC-01/04-02/06, para 35. https://www.icc-cpi.int/CourtRecords/ CR2017_00011.PDF. Accessed 3 January 2019.

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circumstances described here, there appears to be no justification for having recourse to this secondary source. In the two situations in which the OTP and the Court have so far expressed themselves directly on jurisdiction over non-party nationals – Afghanistan/United States and Bangladesh/Myanmar – jurisdiction is based on accession to the ICC Statute by the territorial States prior to the commission of the alleged crimes. Accordingly, neither situation raises an issue of retroactive jurisdiction over non-customary crimes. It is therefore not surprising that neither organ has engaged with the difficulty raised above or with the proposals for resolving it. Retroactive criminalisation could have been an issue in other situations already before the Court that involve nationals of non-party States, where jurisdiction has been obtained following a Security Council referral or an Article 12(3) declaration.45 The situation in Darfur permits retroactive jurisdiction from 31 March 2005 back to 1 July 2002,46 and concerns, inter alia, the war crimes of rape and intentionally directing attacks against a peacekeeping mission, and inhumane acts as a crime against humanity. In the Ahmad Harun and Hussein cases, charges for rape and inhuman acts date back to 2003.47 In contrast, in the Banda case, the specific attack for which charges were filed took place in 2007, by which time the applicability of the Statute was no longer retroactive.48 The Libya situation may also raise a retroactivity concern. This situation was referred to the ICC on 26 February 2011, granting the Court jurisdiction from 15 February 2011. The arrest warrant issued in the Khaled case concerns the period from that early date.49 One of the crimes alleged is ‘other inhumane acts’ as a crime against humanity.50 Accordingly, there is a brief period for which jurisdiction could be exercised retroactively with regard to non-customary crimes. Finally, an Article 12(3) declaration lodged by Cote D’Ivoire on 18 April 2003 grants the Court retroactive jurisdiction from 1 July 2002 onwards, but the charges actually brought forward by

45

These situations are not reviewed above because they involve nationals only of the referred or declaring states. 46 UNSC 2005, para 1. 47 ICC, Prosecutor v. Ahmad Muhammad Harun (Situation in Darfur, Sudan), Warrant of Arrest for Ahmad Harun, 27 April 2007 ICC-02/05-01/07 Counts 14, 17, 43, 48, ICC. https://www.icccpi.int/CourtRecords/CR2007_02902.PDF. Accessed 3 January 2019; Prosecutor v. Abdel Raheem Muhhamad Hussein, Warrant of Arrest for Abdel Raheem Muhammad Hussein, ICC-02/ 05-01/12, counts viii, ix, https://www.icc-cpi.int/CourtRecords/CR2012_03573.PDF. Accessed 3 January 2019. 48 ICC PTC I, Public Redacted Version, Corrigendum of the ‘Decision on the Confirmation of Charges’, Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus (Situation in Darfur, Sudan), ICC-02/05-03/09. https://www.icc-cpi.int/CourtRecords/CR2011_ 02580.PDF. Accessed 3 January 2019. 49 E.g., ICC, Warrant of Arrest for Al-Tuhamy Mohamed Khaled with under Seal and Ex Parte Annex, ICC-01/1-01/13. https://www.icc-cpi.int/CourtRecords/CR2013_03122.pdf. Accessed 3 January 2019. 50 Ibid, paras 2, 8.

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the OTP concern events occurring as late as 2010–2011, and moreover, the crimes at issue are of customary character.51 Of the situations involving nationals of third states, the matter may arise in both the Ukraine and the Palestine situations, where jurisdiction is based on Article 12(3) declarations with retroactive effect, and where the customary status of some of the alleged crimes is at least disputed. These crimes include the transfer of civilian population to the occupied territory (explicitly referred to in the Ukraine (Crimea) situation, and alluded to in the Palestine situation by the term ‘settlements activities’); apartheid (in the Palestine situation);52 and enforced disappearance (in the Ukraine situation).53 For Palestine the period of retroactive jurisdiction extends from 1 April 2015 back to 13 June 2014, and for Ukraine (Crimea) it extends from 8 September 2015 back to 20 February 2014. However, in both cases the alleged crimes were (and some are) still being committed in a period when jurisdiction was no longer retroactive (for Palestine, from the time it acceded to the Statute; and for Ukraine, from the date of the second declaration, which also operates prospectively). Therefore potential indictments need not be retroactive. Whether any person is actually indicted for non-customary crimes committed before the prospective applicability of the Statute began will only become clear when specific charges are filed.

6.3.2

Simultaneous Application of Different Criminal Codes

A separate challenge relating to the prosecution of nationals of non-party states concerns the difference in the scope of application between the law of international armed conflict and its related criminal prohibitions, and the ICC Statute. This discrepancy gives rise to concern specifically with regard to non-customary war crimes allegedly committed during an international armed conflict. Members of the armed forces of a non-party operating on the territory of a State party may not be aware that they are subject to the ICC Statute’s prohibitions, because they are subject to a different criminal code on the basis of their nationality. Of the situations presently under consideration, this issue may arise in the context of Georgia, Palestine and Ukraine. The ICC Statute applies (inter alia) on a territorial basis, to any person operating in the territory of States parties, regardless of their nationality. In contrast, the provisions of treaties regulating armed conflict (the Geneva Conventions, Additional Protocol I and others) and the crimes associated with them apply on a personal basis, to persons affiliated with the State party.54 There are therefore two criminal regimes: one that

51

https://www.icc-cpi.int/cdi. Accessed 3 January 2019. ICC OTP 2018, para 271. 53 ICC OTP 2018, para 75. For the non-customary character of this crimes, see above n 38. 54 But see Sivakumaran 2006, who considers that in an internal armed conflict, non-State armed groups are bound by the law of armed conflict on the basis of legislative jurisdiction, according to which the State binds all individuals within its territory upon ratification of a treaty. 52

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applies on the basis of nationality, and another that applies on the basis of the place of conduct. The question is which of the two regimes should apply to nationals of non-party States. Formally, the two regimes can apply simultaneously. Although the ICC Statute is more comprehensive in terms of defining crimes than are the treaties on the law of armed conflict, there is no contradiction between the two sets of crimes. In practice, however, there is a complicating factor, which is that individuals may legitimately not be aware that they are subject to the ICC Statute. It is here that the special character of war crimes in international armed conflict plays in. Generally it is for individuals to ascertain the criminal law applicable in the territory where they operate, whether it be domestic law or international law.55 However, insofar as concerned members of the armed forces, their knowledge of the obligations and prohibitions that apply to them in an international armed conflict is itself a matter regulated by international law. This is because the law of international armed conflict imposes an exceptional obligation on States to instruct their armed forces on, and disseminate among the civilian population, the obligations and prohibitions under the law of international armed conflict.56 Needless to say, States are obligated to instruct on, and disseminate, the prohibitions to which they themselves have subscribed.57 Accordingly, members of the armed forces of a non-party acting on the territory of a State party may have a false sense of being well informed about the

ICCPR, above n 33, Article 15(1) provides that ‘[n]o one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed’, implying that there is constructive knowledge of criminal law, both domestic and international. 56 This obligation derives from Common Article 1 of the Geneva Conventions, to ‘ensure respect’ for the Conventions ‘in all circumstances’ (ICRC 2016, paras 146, 151) and is further detailed in First Convention, Article 47; Second Convention, Article 48; Third Convention, Article 127; Fourth Convention, Article 144. These provisions are supplemented by Additional Protocol I, Article 83; Additional Protocol II, Article 19. Similar provisions are The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, Article 25; The 1999 Second Protocol to The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, Article 30; The 1980 Convention on certain Conventional Weapons, Article 6; Second Amended Protocol to the Convention on Certain Conventional Weapons, Article 14; Protocol IV to the Convention on Certain Conventional Weapons, Article 2. Rules 142, 143 of the ICRC study consider the obligations to instruct and disseminate to be customary. This implies that the obligation extends to instruction also of norms beyond treaties which expressly contain the obligations. The ILC’s Draft Articles on Crimes Against Humanity stipulate that each State undertakes to prevent crimes against humanity, in conformity with international law, including through effective legislative, administrative, judicial or other preventive measures in any territory under its jurisdiction. This could encompass an obligation of instruction similar to the one under the law of armed conflict. Texts and Titles of the Draft Preamble, the Draft Articles and the Draft Annex Provisionally Adopted by the Drafting Committee on First Reading, Article 4. A/CN.4/L.892 http://legal.un.org/docs/index.asp?symbol=A/CN.4/L.892. Accessed 3 January 2019. 57 Scharf notes with respect to Additional Protocol I to which the United States is not party, that the United States already applies it as a matter of policy (aside from his view that the Protocol reflects customary law) in order to coordinate its actions with NATO members. Scharf 2001b, pp. 93–94. 55

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applicable criminal law, having been specifically instructed in international criminal law by the sending State, which acted in compliance with an international legal obligation incumbent upon it. As a matter of fact, a similar problem could arise also with regard to defendants who are nationals of States parties. They may receive instruction on ICC crimes, but as interpreted by their sending State, an interpretation which may differ from that of the Court. Such defendants might argue that they had been explicitly instructed on, and legitimately expected, the applicability only of the latter interpretation. However, despite the apparent similarity, the two situations differ qualitatively. First, instruction of ICC crimes is not mandated by international law but is a matter of policy. Relatedly, States parties which have voluntarily subjected their nationals to the law and power of the Court, should arguably present their nationals with the full picture of the law, in the widest sense, including its interpretation of that law, even if they have reservations as to that interpretation. The same is not true for non-party States, which have made no undertaking in this context, for themselves or on behalf of their nationals. In practice, the problem raised here concerns a very small fraction of crimes, namely non-customary war crimes grounded only in the Statute. It does not even concern crimes which are grounded in identical terms in a treaty on the law of armed conflict to which the relevant non-party State is party. If they are grounded there, the non-party State is obligated to instruct its armed forces on these crimes irrespective of the ICC’s power. If members of such armed forces are subsequently indicted under the ICC Statute for those crimes, they cannot plead ignorance of the prohibition (only of its formal source). Such a plea would be legitimate only when the sending State has not subscribed to any instrument criminalising the conduct. For example, such would be the case in the Palestine situation with regard to the crime of transfer of population to occupied territories. Israel is not party to Additional Protocol I which criminalises the conduct. Even with respect to the Ukraine situation, the crime may be more expansive under the Statute than under Additional Protocol I (to which Russia is party), as it also includes indirect transfer.58 With regard to the situation in Georgia, the crime of disproportionate attacks would raise concern, since this conduct is not criminalised in Additional Protocol I. Non-party States are faced with two policy options: one, to continue instructing their armed forces only on the law applicable to them under treaties to which they have subscribed, leaving their nationals vulnerable to prosecution under prohibitions of which they were unaware; the other, to instruct their armed forces on the law applicable in prospective States of destination, depending on whether the latter are parties to the ICC or not. In fact, to be on the safe side, non-party States should perhaps always instruct on the ICC Statute, in case the conflicts in which they are

58

The doubt being whether the addition in ICC Statute Article 8(2)(b)(viii) is an innovation or an elaboration of the prohibition under the Fourth Geneva Convention. On this, see Ronen 2017.

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involved become subject to the Court’s jurisdiction ex post facto, through a Security Council referral or an Article 12(3) declaration.59 One might suggest that a non-party State always has a third option, which is to refrain from operating extraterritorially in the first place, in which case members of its armed forces would not become subject to the Court’s jurisdiction through the territorial link. According to this view, if a State decides on taking extraterritorial action it bears the risks attached, including in the criminal law field. However, this proposition assumes that extraterritorial action is entirely a matter of policy, and that the international community has no interest in protecting or facilitating such extraterritorial action. That may not always be the case. For example, while States are never obligated to operate extraterritorially, they may carry out operations extraterritorially by necessity (and right) in self-defence (and might not even have the opportunity to instruct their forces one way or another). In such circumstances, there is no reason to attach a legal cost to conduct that is lawful, legitimate and in some cases desirable.60 More generally, the practical implication of all these options is that a formalistic and exhaustive application of the Statute effectively circumvents the latter’s non-acceptance by States. While such States cannot be said to be formally bound by the ICC Statute, effectively they would have to toe the line and to incorporate the Statute into their instruction on the law of armed conflict and its consequences in the criminal field. One view may be that the overarching goal of putting an end to impunity61 calls for giving maximal effect to jurisdictional provisions and enhancing the universality of the regime, at least in practice. However, jurisdictional provisions were never intended to manipulate non-parties into adhering to the Statute contrary to their wish. So long as a group of States (parties) can force the legal regime on other States which have legitimately made the choice of rejecting it, the debate is at best an arm-twisting exercise. Since the problem raised here is not inherent in the Statute but a result of the circumstances of particular defendants with regard to specific crimes, perhaps in seeking to address it weight should be put on the factual and legal exceptions for excluding criminal liability, and specifically on the exclusion based on mistake of law. Ostensibly, this route is blocked, since Article 32(2) of the Statute provides that a mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. However, this provision does not address the argument that defendants may raise, that they altogether did not know that the Statute was applicable to them. The question is whether it is possible to interpret Article 32(2) as denying mistake of 59 In 2006 the Israel Defense Forces instructed the military forces operating in Lebanon on the law applicable in the ICC, anticipating the possibility of an Article 12(3) Declaration by Lebanon. 60 See also Scheffer 1999b, p. 533 (‘The illogical consequence imposed by Article 12, particularly for non-parties to the Treaty, will be to limit severely those lawful, but highly controversial and inherently risky, interventions that the advocates of human rights and world peace so desperately seek from the United States and other military powers’). 61 ICC Statute, above n 1, preambular para 5.

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law as an exclusionary ground only when the mistake concerns the criminality of the act under the Statute, a contrario allowing this exclusion when other mistakes of law are invoked. As with regard to Article 22, adoption of such an interpretation would depend on whether the phrase ‘a crime within the jurisdiction of the Court’ in Article 32(2) is read as referring only to subject matter jurisdiction, or rather more widely, to the applicability of the Statute. If the former (and wider) reading of the exclusion is adopted, then perhaps a mistake of law would be ground for excluding responsibility when the mistake concerns not subject matter but personal jurisdiction. One argument against this narrow reading could be that consistent linguistic interpretation requires that the same meaning be attached to the phrase ‘a crime within the jurisdiction of the Court’ in both Articles 22 and 32(2), thereby calling for the wider reading of the phrase. Other rules of interpretation may also support the wider reading of the exclusion. One is the rule of strict construction in favour of the defendant.62 Accordingly, while in the context of Article 22 a wider interpretation of the phrase is appropriate (since it expands the scope of nullum crimen sine lege), with regard to Article 32(2) it is the narrower interpretation that is appropriate (since it maximises the circumstances excluding responsibility). Be that as it may, the drafters of the Statute did not actually engage with the possibility that the mistake of law would concern applicability of the Statute as such. Too much significance should therefore not be attached to the literal meaning of the phrase ‘a crime within the jurisdiction of the Court’. The question is rather one of identifying the object and purpose of the Statute. Moreover, the turn to circumstances excluding individual criminal responsibility may be misplaced to begin with. The principle underlying the grounds for excluding criminal responsibility is their contingency upon the circumstances in which a particular crime has been committed. To rely on Article 32 to resolve systemic structural or legal complexities would go against this principle. The lack of awareness by individual defendants that the Statute is applicable to them is not a matter of personal circumstances. The problem concerns an ‘outer’ dimension of the Court’s jurisdiction, resulting from the fact that the regime is not entirely a self-contained one, and from the structural gaps between different bodies of international law. It should therefore be addressed in principled terms of the applicability of the regime, directly and explicitly. According to some views this has actually already been done to some extent in the context of the applicability of the 2010 and 2017 amendments. To start, Article 121(5) of the Statute provides that the Court would not exercise its jurisdiction regarding a crime covered by amendments when committed by nationals of States parties that had not accepted the amendments, or on the territories of such states. Article 121(5) applies only to non-amending States parties. Accordingly, nationals of States that are not party to 62 Explicit in ibid., Article 22(2) with regard only to the definition of crimes. However, with regard to grounds excluding criminal responsibility, it has been suggested that there is room for application of the principle to exclusionary grounds upon which defendants might in principle rely in deciding their course of conduct. Broomhall 2016, pp. 960–961, marginal nos. 36–39. This is precisely the scenario at hand.

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the Statute itself would be unreservedly subject to ICC jurisdiction with respect to new crimes, just as with respect to original Statute crimes. They are, in this sense, more vulnerable to prosecution than nationals of States parties. However, in both 2010 and in 2017 when the Assembly of States Parties (ASP) adopted amendments the Statute which incorporated new, non-customary war crimes,63 the adopting resolutions contained identical statements that the ASP was ‘confirming its understanding that in respect to this amendment the same principle that applies in respect of a State Party which has not accepted this amendment applies also in respect of States that are not parties to the Statute’. These statements put nationals of non-parties in the same position as non-amending States parties.64 The legal effect of these statements is doubtful, because they are contained only in the preambles of the adopting resolutions and have not been incorporated in the Statute.65 They nonetheless reflect an appreciation that some restraint is appropriate when asserting jurisdiction in situations involving non-party States. With regard to future additions of crimes to the Statute, statements such as those of 2010 and 2017 can be incorporated into the operative part of the amendment. An amendment would obviously also be required with regard to crimes already incorporated in the Statute, but here the matter is more complicated. Such an amendment cannot operate only as between or with respect to amending States. To be valid and effective, it would require acceptance by all States parties.

6.3.3

Impact of the Court’s Work on the Rights and Interests of Non-Party States

The most prominent objection to the ICC’s exercise of jurisdiction over nationals of non-parties has been voiced by the United States.66 The legal ground given for this objection is that ‘[i]t is a fundamental principle of international law that a treaty is binding only on its parties and that it does not create obligations for non-parties without their consent. The Rome Statute cannot be interpreted as disposing of rights of … a non-Party without [its] consent.’67 More recently, Myanmar presented its objection to the assertion of jurisdiction over alleged deportation of individuals from Myanmar to Bangladesh, explicitly citing Article 34 of the 1969 Vienna Convention

63

Above text to n 39. ICC ASP 2010, preambular para 2; ICC ASP 2017, preambular para 2. 65 Heller 2018. Complex questions arise with respect to the crime of aggression, in respect of which the Statute makes explicit provisions. There is controversy over how the amendments apply to non-party States and to States who join the ICC Statute after the amendments’ entry into force. 66 Scheffer 1999a. 67 US Delegation to ICC ASP 2017. 64

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on the Law of Treaties (VCLT).68 Neither State has clarified in what way the Statute purports to dispose of their rights contrary to the pacta tertiis nec nocent nec prosunt principle. Madeline Morris and Ruth Wedgewood have presented two arguments. One is premised on the ICC’s jurisdiction deriving from delegation by States of their domestic jurisdiction (a view that the OTP seems to share69). According to this argument, which the OTP rejects, States parties do not have the power to delegate their criminal jurisdiction over persons who are not their own nationals unless the State of nationality consents to that delegation; and even if States parties do have that power, they cannot delegate this jurisdiction to an international criminal tribunal. The other argument is that if the Court exercises jurisdiction over a national of a non-party who has acted pursuant to the official policy of that non-party, the Court would be violating the Monetary Gold principle.70 These arguments have been refuted in the past by academic commentators as a matter of both doctrine and pre-ICC practice.71 The OTP and the Court have also rejected the objections to jurisdiction over nationals of non-party States, although they did so in a manner which sheds little light on their principled position on the matter. In the request for authorisation to open an investigation regarding the Afghanistan situation the OTP argued that its position, that the ICC Statute envisages jurisdiction over nationals of non-party States, was supported by a textual analysis of the Statute; and noted that various other treaty regimes envisage the exercise of domestic jurisdiction over non-party nationals, as well as the delegation of jurisdiction to an international tribunal.72 These brief words do not really respond to the critique. First, the objection to the exercise of jurisdiction over nationals of non-party States is not that the Statute as such does not permit such exercise, but that this permission is contrary to general international law. Accordingly, to prove that the Statute’s wording is intended to grant the permit merely establishes the ground for objection, rather than responds to it. Similarly, the fact that regimes exist that are similar to that of the ICC does not necessarily render the exercise of criminal jurisdiction over nationals of non-parties lawful; it may merely indicate a wider flaw. In the absence of relevant State practice, it is difficult to hold that these regimes have brought about a change to the customary law prohibition which the commentators allege. Second, the OTP’s argumentation seems to focus on the exercise of jurisdiction by States, while the controversy focuses on the delegation of States’ jurisdiction to an international tribunal. On this matter the OTP mentions only one instance, the delegation to the International Military Tribunal, which is the

68

Annex E to Prosecution Notice of Documents for Use in Status Conference, ICC-RoC46(3)-01/ 18-27-AnxE and 17 August 2018 Notice, ICC-RoC46(3)-01/18-36, cited in Myanmar Ruling, above n 20, n 54 and 55. 69 Afghanistan Request, above n 9, para 45. 70 Morris 2001; Wedgwood 2001. 71 Akande 2003, pp. 635–637; Scharf 2001a; La Haye 1999. More recently and briefly, see Pomper 2017. 72 Afghanistan Request, above n 9, paras 44–45.

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least persuasive example even according to those who generally view such delegation as permissible.73 The Court addressed the VCLT Article 34 argument in its ruling on the OTP’s request in the Myanmar situation. It acknowledged the ‘paramount importance’ of the principle of pacta tertiis nec nocent nec pro sunt, but added that this principle has exceptions, citing VCLT Article 38 on the binding character of customary norms, and the primacy of peremptory norms. The Court then proceeded to assert its objective international personality, emphasising the universal character of its underlying purposes and the customary character of the norms that it enforces.74 This assertion seems to go to the invocation of the exceptions to VCLT Article 34, but again, it does not respond to the critique. Neither the universal character of the Court’s underlying purposes nor the customary character of Statute norms75 render the Court’s adjudicative powers universal. The Court itself noted that the objective legal personality does not mean ‘unconditional erga omnes jurisdiction’. The elaboration of that personality is therefore largely superfluous and does not determine the extent of the Court’s powers over non-party nationals.76 More importantly, any discussion of exceptions to VCLT Article 34 is contingent upon establishing that Article 34 is pertinent to begin with, namely that the Statute actually disposes of non-party States’ rights or creates obligations for them. The Court indicates neither. Strangely, the examples it offers of its potential effect on non-parties are limited to instances where those States choose to be affected.77 These therefore do not demonstrate an objective personality. Notwithstanding the shortcoming of this reasoning, it is correct that the ICC’s power to prosecute and try a State’s nationals without that State’s consent is not, in itself, a disposition of that State’s rights. States do not have a right that their nationals not be prosecuted other

73

Akande 2003, pp. 627–628. Myanmar Ruling, above n 20, paras 34–49. 75 Much of this chapter concerns the significance of the non-customary norms. This does not detract from the consensus regarding the status of the majority of the substantive crimes under the Statute. 76 Myanmar Ruling, above n 20, para 49. Nonetheless, The Court does turn to what seems to be an assertion of universal jurisdiction, when it states that the ICC devolved from the international penal tribunal envisaged in the 1948 Genocide Convention, which ‘is an instrument of quasi-universal participation nowadays’ and whose competences and working principles were intended to be similar to those that the ICC holds. Ibid., para 40. This reliance on the 1948 Convention is disturbing on many levels. First, the notion that the Statute is to be interpreted according to a plan of action mentioned in an earlier treaty on which it built historically has no ground in the rules on treaty interpretation. Second, the historical underpinnings of the ICC cannot serve to establish its powers if those are legally flawed. Third, on the merits of the argument, the 1948 Convention is pertinent at most to jurisdiction over the crime of genocide (to which the ruling does not pertain). Finally, ironically the Court cites the jurisdictional provision of the 1948 Convention, which explicitly limits the Court’s jurisdiction to ‘those Contracting Parties which shall have accepted its jurisdiction’. While this provision does not necessarily exclude the power to try third State nationals, it certainly does not reflect the universality claimed by the Court. 77 Ibid., paras 46–47. 74

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than with their consent.78 Accordingly there is no ground to reject wholesale the Court’s power to try non-party nationals. At the same time, the exercise of jurisdiction over nationals of non-party States may raise difficulties in discrete circumstances. One of the characteristics of the crimes under the ICC’s jurisdiction is that their perpetrators often act not as private persons but in their capacity as State organs. In some instances, individuals’ conduct may even reflect State policy. This has brought Madeline Morris to argue that by prosecuting nationals of non-parties for conduct that constitutes State policy, the ICC would be forcing non-party States to have their legal disputes resolved through adjudication rather than through other avenues of dispute resolution which international law offers them, and also that such prosecution would constitute judgment on the international responsibility of such States, in violation of the Monetary Gold principle.79 This argument can be broadened, since ICC determinations ostensibly have consequences for States also on issues other than responsibility for wrongful acts. For example, in the context of the Palestine situation, an ICC ruling on whether Israeli settlements are located on Palestinian territory would reflect on the borders of Israel.80 To begin with, it should be noted that these concerns may arise also when the ICC’s findings concern the conduct of States that are parties to the Statute; these States also have not waived their discretion regarding the means of resolving inter-State disputes. But as a matter of positive law, it is clear that the drafters had considered the possibility that interests of States – parties and non-parties alike – would be implicated in proceedings, but did not regard this as an obstacle to jurisdiction. Rather, safeguards against incursion on issues of State responsibility are already built into the Statute, through the right to challenge jurisdiction under Article 19. From a strict legal perspective, since the ICC only has jurisdiction to try individuals, its pronouncements on State responsibility have no normative force.81 In the criminal context State conduct is, with a few exceptions considered below, a factual rather than a legal element. The Court’s findings would therefore serve factual, not legal, purposes. This would not be an exceptional occurrence. International tribunals often make decisions based on findings of fact relating to actors not before them. For example, rulings of the European Court of Human Rights on the legality of various forms of transfer of individuals from Member States to third States may involve findings of fact regarding practices in those third States. The characterisation of such practices as infringements on rights protected under the European Convention on Human Rights has legal implications only for the Member State litigating before the Court. It has no direct bearing on the legality

78 79 80 81

As implied without explanation in US Delegation to ICC ASP 2017. Morris 2001, pp. 15–21. Kontorovich 2013. For a response, see Ronen 2014. Mégret 2001, p. 254.

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of conduct or of the international responsibility of the third State.82 This is the case even when that third State is bound by a customary law prohibition equivalent to the Convention one (such as the prohibition on torture). Granted, the situation before the ICC is different from the situation before human rights institutions, in that the latter examine the situation in third States in order to determine the obligations of States appearing before them to protect individuals, the ICC would examine the situation pertaining to non-parties in order to determine its power to try a person. But the different import of the findings does not alter their character as factual ones. That said, the moral and political weight of the Court’s findings should not be underestimated. One needs only to observe the consequences that the International Criminal Tribunal for the former Yugoslavia’s jurisprudence has had on general international law, for example on classification of armed conflicts, or on the attribution to States of the conduct of non-State actors, to appreciate the weight that international tribunals have in shaping international legal relations outside the court room.83 Beyond these general considerations, there are exceptional crimes under the ICC Statute, for which State policy is not only a possible contextual element but a legal element. These are the crimes of aggression (Article 8bis) and the transfer by an occupying power of its civilian population into occupied territory (Article 8(2)(b) (viii)). The latter is of particular interest given its inclusion in the Ukraine situation and probably also in the Palestine one. Another candidate for inclusion in this exceptional category is the crime of apartheid (Article 7(2)(h)), mentioned in the Palestine situation.84 With regard to these crimes it is impossible to dismiss the significance of potential Court pronouncements regarding State conduct as merely factual. The crime of aggression is defined as an individual’s perpetration of an act of aggression, namely the use of force in a manner inconsistent with the UN Charter 82

The European Court of Human Rights has been explicit on this issue: ‘The Court further reiterates that expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, … . Similarly, Article 2 of the Convention and Article 1 of Protocol No. 13 prohibit the extradition or deportation of an individual to another State where substantial grounds have been shown for believing that he or she would face a real risk of being subjected to the death penalty there … . In this type of case the Court is therefore called upon to assess the situation in the receiving country in the light of the requirements of the above Articles. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the Contracting State’. ECtHR, Al-Saadoon and Mufdhi v. the United Kingdom, Judgment, 4 October 2010, Application No 61498/08, paras 123, 124. 83 The exchange between the ICJ and International Criminal Tribunal for the former Yugoslavia might demonstrate that the ICJ is not bound by the Tribunal’ jurisprudence, but it demonstrates even more forcefully that even the ICJ cannot ignore this jurisprudence. 84 ICC Statute, above n 1, Article 7(2)(h). Since it is defined as ‘an institutionalized regime’ of systematic racial oppression and domination it may hinge on the existence of a State structure. Stahn 2018, p. 69.

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and in a manifest ‘violation’ of it. Since an act of aggression is defined as an unlawful conduct on the part of a State, a finding that it has taken place inherently entails and contains a legal determination regarding State conduct. Thus, if the Court had had jurisdiction over the crime of aggression when carried out by nationals of non-parties, and could have determined that a non-party has committed an act of aggression, the Monetary Gold principle would have indeed been compromised.85 But unlike all other crimes, the Statute’s provisions on the crime of aggression explicitly exclude jurisdiction when the crime is committed by nationals of a non-party (or on its territory).86 Accordingly, there is no danger of the Court violating the Monetary Gold principle. The crime of transfer of population into occupied territory also contains State conduct as a legal element. This is explicit in Article 8(2)(b)(viii), which defines the crime as ‘[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the occupied territory it occupies’ (emphasis added). Strictly speaking, however, a determination as to individual responsibility does not require a prior finding of international responsibility by the State, but only of conduct; and the standards for individual criminal responsibility and for international State responsibility are different, for example in terms of circumstances excluding responsibility.87 In fairness, however, the likelihood is small that an individual would be held criminally responsible for conduct attributed to the State, without the State also being implicitly implicated in a wrongful act. The formalistic distinction is narrow, and in practice, the ramifications of the Court’s pronouncements may far exceed the narrow legalistic findings. In conclusion, as a matter of law, a distinction needs to be made between Court determinations regarding State conduct that have normative consequences, and factual determinations. As a matter of practice, the rulings of the Court may have an extra-legal effect that far surpasses its formal competence. All these issues call for great caution on the part of the Court. Against this background it is also appropriate to consider another argument raised by the United States, regarding complementarity. The United States argues that a determination by the Court on complementarity is unwarranted in the case of a non-party State, since such a State has not consented to the ICC’s evaluation of its 85 Akande 2003, p. 637. Others regard the exclusion of jurisdiction over nationals of non-parties and territory as merely a matter of political expediency. Kreß and von Holtzendorff 2010, pp. 1215–1216. Politi 2012, p. 277. 86 ICC Statute, above n 1, Article 15bis(5). There is no parallel provision in Article 15ter, where it is assumed (although not articulated), that the Security Council referral would be based on the Security Council itself making the determination regarding aggression, obviating the issue of the Court violating the Monetary Gold principle. 87 Ronen 2014, pp. 19–21. The disagreement between the ICJ and the International Criminal Tribunal for the former Yugoslavia on the appropriate test for determining State responsibility for acts of non-State actors demonstrates well that the analysis for criminal law purposes and for State responsibility purposes can differ greatly. ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, 2007 ICJ Reports 43, para 403.

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accountability efforts.88 To the extent that this statement alleges a violation of State rights, it should be clarified that States do not have a right with regard to complementarity. Complementarity is a mechanism geared primarily (although not exclusively) for avoiding excessive burden on the Court. Moreover, a determination regarding complementarity is a factual one. If the Court determines that a State has been unwilling or unable to conduct appropriate proceedings, that is not a legal evaluation of the State’s accountability efforts. It is true that in practice the only way in which a State, including a non-party, can protect its nationals from prosecution by the Court would be by adopting the latter’s standards. But first, States do not have an obligation to protect their nationals from prosecution. If they may choose to do so, it is as a matter of policy. Second, international human rights law is gradually creating an obligation on States to take domestic measures to ensure domestic accountability for international crimes.89 Notwithstanding the previous section’s cautionary call against an approach which effectively coerces non-parties into abiding by a treaty to which they have not subscribed, there is a marked difference between a State being coerced into following a treaty to which it has not formally adhered, and a State being coerced into taking measures that are becoming obligatory under international law. A non-party State would nonetheless have a legitimate objection to having to adopt the Court’s standards for what are appropriate domestic accountability measures, so long as those are commensurate with the universal standard on the matter. A seemingly related argument is that divergence of views between a non-party State and the ICC on appropriate domestic measures may result in a person being prosecuted by the ICC despite having already been subject to domestic proceedings. This is said to be a violation of due process rights, which according to this argument, a non-party State can prevent only by adopting the Court’s complementarity standards.90 This argument reflects some confusion arising from the fact that the criteria for complementarity are identical to those that delineate the ne bis in idem principle. The principle of complementarity concerns ICC-State relations.91 It does not generate a right of individuals to be accountable only or primarily in their State of nationality. The right that individuals do have is merely not to be tried within the same national jurisdiction for crimes of which they have already been convicted or acquitted by final judgment.92 This right is protected under the ICC Statute, in Article 20(3),

88

US Delegation to ICC ASP 2017. Bernard 2011, p. 867 agrees that a decision on complementarity which rests on non-compliance by a domestic court with international human rights standards would constitute a ‘significant new dimension’ to the Court, but does not consider it unlawful, since she does not consider such a decision to be binding on the State. Bernard does not distinguish States parties from non-parties. 89 Human Rights Committee 2018, paras 27–29. 90 E.g. the ‘same person same conduct’ test. 91 For a number of wider concepts of complementarity, see Stahn 2018, p. 222. None of them concern the individual. 92 ICCPR, above n 33, Article 14(7).

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independently of the admissibility criteria.93 Article 20(3) is even more generous towards defendants than the general ne bis in idem rule, because it does not clearly require a final conviction or acquittal to preclude ICC proceedings, and it applies across jurisdictions, including those of non-party States.94 The strict ‘same person same conduct’ standard adopted by the Court for complementarity,95 which may be too narrow in that context, actually corresponds exactly to the ne bis in idem principle.96 In conclusion, divergence of views between the ICC Statute and non-party States on appropriate domestic measures to combat impunity does not imply a risk of violating due process rights. It may nonetheless have an indirect effect of pressuring non-party States to conform as a matter of policy with ICC norms with regard to domestic enforcement. It is not clear that this is an undesirable outcome that should be avoided.

6.4

The Way Forward

The analysis above indicates that while the ICC has the power to prosecute crimes committed by nationals of non-parties, exercise of this power may present legal and practical challenges. These challenges might not arise in every case involving nationals of non-parties, but should be borne in mind by the OTP and by the Court so as to ensure that individual rights are not violated. Some of these challenges may be addressed through interpretation of the Statute, others by exercising discretion in drafting indictments in specific instances. Other difficulties may be unavoidable unless the Statute is amended. More generally, these challenges indicate that while non-party States cannot argue that the Statute is imposed on them formally, they may find that they have to fall in line with the ICC’s norms and standards for policy reasons. The organs of the Court should be extremely sensitive to the need to focus on individual conduct and rights so as to avoid accusations of overreaching. This need is particularly strong given the fact that in practice, the territorial link to jurisdiction has in many instances proven rather tenuousness. In four of the seven situations involving nationals of non-parties that have been examined by the OTP, territorially-based jurisdiction is controversial: with respect to Comoros, one might query the effectiveness of the territorial link on which the situation hangs; with respect to Palestine, the statehood on which the territorial link hangs is nominal. With respect to the situations in Palestine and in Afghanistan there is controversy over the scope of jurisdiction that may be delegated, which might require the Court

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ICC Statute, above n 1, Article 20(3). Tallgren and Coracini 2016, pp. 920–921, marginal nos. 35–36. 95 ICC, Prosecutor v. Lubanga, Decision on the Prosecutors Application for a warrant of arrest, Article 58 (Article 58 Decision), 24 February 2006, ICC-01/04-01/06, para 38. 96 On policy issues in this respect, see Rastan 2008, pp. 436–440. 94

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to rule on the very rationale of its own jurisdiction. No less significant is the case of Myanmar, where the ‘situation’ was obviously tailored to fit the constraints on jurisdiction with respect to conduct taking place almost exclusively in the territory of a non-party. As a result, it only covers the crime of deportation, even though as the OTP itself mentions, the Rohingya crisis ‘potentially bears the “hallmarks of a genocide”’.97 All this does not mean that territorially-based jurisdiction should not be relied upon. But it does call for utmost adherence by the OTP and Court to fundamental principles of international and criminal law. Progress towards the ultimate goal of the Court’s project, to create a universal normative and institutional criminal order, is a constant struggle between conflicting motivations: to push the limits of existing law, or to minimise radicalness in order to entice the more reticent States into joining the regime voluntarily.98 Whether it is politically wiser for the Court to avoid pursuit of situations involving non-party States or to take on such situations depends both on an assessment of likely outcomes and on a value judgment of how the Court should project itself. With respect to the principled issue regarding jurisdiction over non-parties, the die was cast at the outset, once it was decided to establish an international tribunal. To exempt nationals of non-parties from jurisdiction would have constituted a retrograde step even if the Court is not yet universal.99 But this does not exempt all organs of the Court from acknowledging potential dangers to the rights of potential defendants who are nationals of non-parties and of the States themselves, and to exercise their power with care so as not to infringe upon them.

References Akande D (2003) The jurisdiction of the International Criminal Court over nationals of non-parties: Legal basis and limits. Journal of International Criminal Justice 1:618–650 Akande D (2013) Sources of international criminal law. In: Cassese A (ed) The Oxford companion to international criminal justice. Oxford University Press, Oxford, pp 41–53 Akande D (2018) Customary international law and the addition of new war crimes to the Statute of the ICC. EJIL:Talk! https://www.ejiltalk.org/customary-international-law-and-the-addition-ofnew-war-crimes-to-the-statute-of-the-icc/. Accessed 3 January 2019 Bartels R (2017) Legitimacy and ICC jurisdiction following Security Council Referrals: Conduct on the territory of non-party states and the legality principle. In: Hayashi N, Bailliet C (eds) The legitimacy of international criminal tribunals. Cambridge University Press, Cambridge, pp 141–178 Bernard D (2011) Ne bis in idem – Protector of defendants’ rights or jurisdictional pointsman. Journal of International Criminal Justice 9:863–880

97 ICC, Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, 9 April 2018, ICC-RoC46(3)-01/18-1, para 2, citing Special Rapporteur on the situation of human rights in Myanmar 2018, paras 43, 65. 98 Mégret 2001, pp. 266–268. 99 Akande 2003, pp. 649–650.

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Broomhall B (2008) Article 22. In: Triffterer O (ed) Commentary on the Rome Statute of the International Criminal Court: Observers’ notes, article by article, 2nd edn. Beck, Munich, pp 713–730 Broomhall B (2016) Article 22. In: Triffterer O, Ambos K (eds) Commentary on the Rome Statute of the International Criminal Court: A commentary, 3rd edn. Beck, Munich, pp 949–966 Cassese A (2008) International criminal law, 2nd edn. Oxford University Press, Oxford Cassese A, Gaeta P (2013) Cassese’s international criminal law, 3rd edn. Oxford University Press, Oxford Cottier M, Mzee S (2016) Article 8. In: Triffterer O, Ambos K (eds) Commentary on the Rome Statute of the International Criminal Court: Observers’ notes, article by article, 3rd edn. Beck, Munich, pp 295–579 Cryer R (2014) The ICC and its relationship to non-states parties. In: Stahn C (ed) The law and practice of the International Criminal Court. Oxford University Press, Oxford, pp 259–280 Dugard J, Reynolds J (2013) Apartheid, international law, and the Occupied Palestinian Territory. European Journal of International Law 24:867–913 Gallant KS (2009) The principle of legality in international and comparative criminal law. Cambridge University Press, Cambridge Grover L (2010) A call to arms: Fundamental dilemmas confronting the interpretation of crimes in the Rome Statute of the International Criminal Court. European Journal of International Law 21:543–583 Heller K J (2018) Why the new weapons amendments (should) apply to non-states parties. Opinio Juris. http://opiniojuris.org/2018/01/02/the-bizarre-and-ineffective-preamble-to-the-weaponsamendments/. Accessed 3 January 2019 Human Rights Committee (2018) General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life. UN Doc CCPR/C/ GC/36 Advance Unedited Version. https://tbinternet.ohchr.org/Treaties/CCPR/Shared% 20Documents/1_Global/CCPR_C_GC_36_8785_E.pdf. Accessed 3 January 2019. ICC ASP (2010) Resolution RC/Res.5, Amendments to article 8 of the Rome Statute. https:// treaties.un.org/doc/source/docs/RC-Res.5-ENG.pdf. Accessed 3 January 2019 ICC ASP (2017) ICC-ASP/16/Res.4, Resolution on Amendments to Article 8 of the Rome Statute of the International Criminal Court. https://asp.icc-cpi.int/iccdocs/asp_docs/Resolutions/ ASP16/ICC-ASP-16-Res4-ENG.pdf. Accessed 3 January 2019 ICC OTP (2014a) Situation on Registered Vessels of Comoros, Greece and Cambodia, Article 53 (1) Report. https://www.icc-cpi.int/iccdocs/otp/otp-com-article_53(1)-report-06nov2014eng. pdf. Accessed 3 January 2019 ICC OTP (2014b) Situation in the Republic of Korea, Article 5 Report. https://www.icc-cpi.int/ iccdocs/otp/sas-kor-article-5-public-report-eng-05jun2014.pdf. Accessed 3 January 2019 ICC (2015) Press Release: The State of Palestine accedes to the Rome Statute. https://www.icc-cpi. int//Pages/item.aspx?name=pr1082_2. Accessed 3 January 2019 ICC OTP (2015) Press Release: The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination of the situation in Palestine. https://www.icc-cpi. int/Pages/item.aspx?name=pr1083. Accessed 3 January 2019 ICC OTP (2016) Report on Preliminary Examination Activities 2016. https://www.icc-cpi.int/ iccdocs/otp/161114-otp-rep-PE_ENG.pdf. Accessed 3 January 2019 ICC OTP (2017) Report on Preliminary Examination Activities 2017. https://www.icc-cpi.int/ itemsDocuments/2017-PE-rep/2017-otp-rep-PE_ENG.pdf. Accessed 3 January 2019 ICC OTP (2018) on Preliminary Examination Activities 2017. https://www.icc-cpi.int/ itemsDocuments/181205-rep-otp-PE-ENG.pdf. Accessed 3 January 2019 ICRC (2016) Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 2nd edn. Geneva Jia B B (2009) The International Criminal Court and third states. In: Cassese A (ed) The Oxford companion to international criminal justice. Oxford University Press, Oxford, pp 160–167 Kontorovich E (2013) Israel/Palestine – The ICC’s uncharted territory. Journal of International Criminal Justice 11:979–999

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Kreß C, von Holtzendorff L (2010) The Kampala compromise on the crime of aggression. Journal of International Criminal Justice 8:1179–1217 La Haye E (1999) The jurisdiction of the International Criminal Court: Controversies over the preconditions for exercising its jurisdiction. Netherlands International Law Review 46:1–25 Mégret F (2001) Epilogue to an endless debate: The International Criminal Court’s third party jurisdiction and the looming revolution of international law. European Journal of International Law 12:247–268 Milanović M (2011) Is the Rome Statute binding on individuals? (And why we should care). Journal of International Criminal Justice 9:25–52 Milanovic M (2012) Aggression and legality: Custom in Kampala. Journal of International Criminal Justice 10:165–187 Morris M (2001) High crimes and misconceptions: The ICC and non-party states. Law and Contemporary Problems 64:13–66 Palestine, President of the State (2014) Declaration accepting the jurisdiction of the International Criminal Court. https://www.icc-cpi.int/iccdocs/PIDS/press/Palestine_A_12-3.pdf. Accessed 3 January 2019 Politi M (2012) The ICC and the crime of aggression: A dream that came through and the reality ahead. Journal of International Criminal Justice 10:267–288 Pomper S (2017) USG statement on Int’l Criminal Court probe into alleged U.S. war crimes is missing some things. Just security. https://www.justsecurity.org/49360/usg-statement-intlcriminal-court-probe-alleged-u-s-war-crimes-missing-2/. Accessed 3 January 2019 Rastan R (2008) What is a ‘case’ for the purpose of the Rome Statute? Criminal Law Forum 19:435–448. Ronen Y (2014) Israel, Palestine and the ICC – Territory uncharted but not unknown. Journal of International Criminal Justice 12:7–35 Ronen Y (2017) Taking the settlements to the ICC? Substantive issues. AJIL Unbound 111:57–61 Scharf MP (2001a) Application of treaty-based universal jurisdiction on nationals of non-party states. New England Law Review 35:363–382 Scharf MP (2001b) The ICC’s jurisdiction over the nationals of non-party states: A critique of the U.S. position. Law and Contemporary Problems 64:67–117 Scheffer DJ (1999a) The United States and the International Criminal Court. American Journal of International Law 93:12–22 Scheffer D J (1999b) U.S. policy and the International Criminal Court. Cornell International Law Journal 32:529–534 Sivakumaran S (2006) Binding armed opposition groups. International and Comparative Law Quarterly 55:369–394 Special Rapporteur on the situation of human rights in Myanmar (2018) Advanced unedited version of the report of the Special Rapporteur, UN Doc A/HRC/37/70 Stahn C (2018) A critical introduction to international criminal law. Cambridge University Press, Cambridge. Stahn C et al (2005) The International Criminal Court’s ad hoc jurisdiction revisited. American Journal of International Law 99:421–431 Tallgren I, Resinger Coracini A (2016) Article 20. In: Triffterer O, Ambos K (eds) Commentary on the Rome Statute of the International Criminal Court: A commentary, 3rd edn. Beck, Munich, pp 899–931 Tsereteli N (2016) Pre-Trial Chamber of the International Criminal Court authorizes initiation of investigation in Georgia. EJIL:Talk! https://www.ejiltalk.org/pre-trial-chamber-of-theinternational-criminal-court-authorizes-initiation-of-investigation-in-georgia/. Accessed 3 January 2019 UNGA (1948) Universal Declaration of Human Rights, Resolution 217 A(III) UNSC (2005) Resolution 1359, UN Doc. S/RES/1359 US Delegation to ICC ASP (2017) Statement on Behalf of the United States of America, 16th Session of the Assembly of States Parties. https://www.justsecurity.org/wp-content/uploads/

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2017/12/united-states-statement-international-criminal-court-icc-afghanistan-december-2017. pdf. Accessed 3 January 2019 Wedgwood R (2001) The irresolution of Rome. Law and Contemporary Problems 64:193–214 Worster W T (2011) On the purposes of legality and its applicability to international law. Journal of International Criminal Justice 9:973–979 Zimmermann A (2016) Article 5. In: Triffterer O, Ambos K (eds) Commentary on the Rome Statute of the International Criminal Court: A commentary, 3rd edn. Beck, Munich, pp 111– 126 Zimmermann A (2013) Palestine and the International Criminal Court quo vadis?: Reach and limits of declarations under article 12(3). Journal of International Criminal Justice 11:303–329

Yaël Ronen Professor of International Law, Academic Center for Science and Law, Hod Hasharon; Research Fellow, Minerva Center for Human Rights, Hebrew University of Jerusalem, Israel. I am grateful to Carsten Stahn for his comments on an earlier draft. Usual caveats apply.

Chapter 7

The International Criminal Court and the Security Council – The International Criminal Court as a Political Tool? Robert Frau

Contents 7.1 Introduction........................................................................................................................ 7.1.1 Background............................................................................................................. 7.1.2 Terminology............................................................................................................ 7.2 Referrals............................................................................................................................. 7.2.1 Darfur (Sudan), Resolution 1593 (2005) ............................................................... 7.2.2 Libya, Resolution 1970 (2011) .............................................................................. 7.3 Failed Referrals.................................................................................................................. 7.3.1 Democratic People’s Republic of Korea................................................................ 7.3.2 Syria ........................................................................................................................ 7.3.3 Myanmar................................................................................................................. 7.3.4 Excursus: The International Criminal Tribunal for Malaysia Airlines Flight MH17...................................................................................................................... 7.4 Africa and the ICC ............................................................................................................ 7.4.1 The Case of South Africa ...................................................................................... 7.4.2 States Quitting the ICC .......................................................................................... 7.5 Conclusion ......................................................................................................................... References ..................................................................................................................................

112 112 112 113 113 116 119 119 121 123 125 126 126 128 128 129

Abstract The permanent members of the Security Council use and attempt to use the ICC in two ways. First, referring a situation to the ICC may be based on altruistic reasoning. Second, and in contrast, States may vote for a referral because of egoistic reasons. In those cases, a State attempts to improve its own agenda. However, sometimes both goals overlap. One State may attempt to follow both aims or one State follows an altruistic motivation while the other keeps on an egoistic path. This holds true not only for referrals to the ICC but for draft referrals as well, when the failure of the resolution is the goal of the sponsors. In other R. Frau (&) European University Viadrina, Frankfurt (Oder), Germany e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 G. Werle and A. Zimmermann (eds.), The International Criminal Court in Turbulent Times, International Criminal Justice Series 23, https://doi.org/10.1007/978-94-6265-303-0_7

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instances, States ignore the ICC, which may also be understood as an instrumentalisation of the Court.









Keywords International Criminal Court Security Council Security Council Resolutions Permanent Members Referrals Deferral Darfur Libya Democratic People’s Republic of Korea Syria Myanmar Malaysia Airlines flight MH17 South Africa







7.1 7.1.1



















Introduction Background

When the Security Council adopted Resolution 1593 (2005), referring the situation in Darfur (Sudan) to the International Criminal Court (ICC), this resolution was hailed as a major success for the ICC. Specifically, the US position, abstaining from the vote in the Council, was regarded as a step away from its adverse ICC policy. The second referral of a situation by the UN Security Council to the ICC famously occurred during the Arab Spring when in February 2011 the situation in Libya was referred for criminal investigation. Here, the Security Council ‘interfered’ in an ongoing civil war with the ultimate aim to restore peace and security in the region. Both referrals were hailed as major successes of the ICC. On the other hand, several draft resolutions referring situations in other countries were vetoed by permanent members of the Security Council (P5), leading to accusations of politically motivated referrals or protection of specific nationals by certain powerful States. Moreover, the African Union (AU)’s criticism of the ICC is widely known. Whether or not there are merits to the claims, the AU and its Member States regularly condemn the work of the ICC and label it as an imperialist and racist instrument. In sum, it seems as if the Security Council is not just an institution of international justice, but a political tool in the game between powers that be.

7.1.2

Terminology

‘Political tool’ is understood to reference an instrument that is used not as a means in itself, but as a means to achieve additional goals that lie beyond the scope of the instrument. Broken down with regard to the ICC, its main thrust is the administration of international criminal justice. This is evidenced by the preambular paragraphs, which speak of ‘effective prosecution’ and a ‘lasting respect for and the enforcement of international justice’. The present contribution does not deal with this

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primary aim of the ICC; in other words, it is not focused on the achievement of international justice. Instead, it deals with the use of the ICC for goals distinct from criminal prosecution. Those ends may be subdivided into two categories which may be characterised as ‘altruistic’ or ‘egoistic’. ‘Altruistic’ meaning that the ICC and its procedures are used to further goals outside of the ICC Statute and not directly benefiting the State utilising the ICC. In essence, this means the enforcement of human rights law and the maintenance of international peace and security as understood to be the mandate of the UN Security Council, (Article 24(1) UN Charter). ‘Egoistic’ meaning that a State uses or attempts to use the ICC to strengthen its own position. This selfish ambition typifies this use of the ICC, a State acting primarily with its own interest in mind. Still, both ends may overlap. For example, a State may for egoistic reasons choose to subscribe to the advancement of human rights around the globe, for domestic reasons or to polish its own reputation. Still, this policy would benefit the individuals concerned as well. Even if there is no clear-cut distinction between the two categories of goals, this basic division will be the matrix against which the actual use of the ICC is measured. It also needs to be kept in mind that the Security Council as an inherently political body in which members, permanent or not, are guided by their own policies, thus virtually always following political reasoning. In the following analysis, three phenomena will be analysed. First, the actual referrals to the ICC and, second, the failed draft referrals are assessed. Here, the analysis will focus on the P5. Third and finally, the opposition by the AU and its Member States will be addressed.

7.2

Referrals

7.2.1

Darfur (Sudan), Resolution 1593 (2005)

7.2.1.1

Background

After a long history of tensions and incidents of local violence within the population of Darfur in western Sudan, the scale of violence increased in the 1980s.1 When the civil war in southern Sudan found an end in the 2004 peace treaty between the Sudanese central government and the Sudan People’s Liberation Army, the central government used its freed resources to wage war in Darfur. Its involvement exacerbated the tensions and the conflict turned into a non-international armed

1

Detailed history in De Waal 2005; Flint and De Waal 2005; Prunier 2006; Frau 2010, pp. 300 et seq.

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conflict by April 2003. The violence reached a level that could not have been ignored any longer. Consequently, Darfur appeared on the stage of world politics:2 The US House of Representatives adopted a resolution, declaring the atrocities that were unfolding in Darfur as genocide;3 then-US Secretary of State Colin Powell described the situation in Darfur as ‘genocide’4 and finally then-US President George W. Bush repeated the US stance during his address to the 59th UN General Assembly.5 When the French-drafted resolution was subject to the vote within the Council, the United States abstained, as did China and Russia as well as Algeria and Brazil.6 The other two permanent members of the Security Council voted in favour of the referral. Thus, in March 2005 the Security Council referred the Situation in Darfur since 1 July 2002 to the ICC with Resolution 1593 (2005). The pause to US opposition had been widely applauded. Still, the US ambassador during the meeting emphasized the fundamental opposition of the United States against the ICC. She founded the US abstention on the need to end impunity in Sudan and the expectation of political oversight.7 However, while the abstention led to the first referral of the Security Council to the ICC, the US position may have been influenced by the fact that China allegedly had an interest in Darfur’s Oil and the United States could not let that stand.8 China in turn would have rather seen domestic prosecutions in Sudan.9 Its ambassador pointed out that China ‘had no alternative but to abstain.’ The obvious alternative of voting no was not addressed. The Russian ambassador also pointed out the need to punish perpetrators of crimes, but he did not mention the ICC explicitly.10 The United Kingdom and France both based their vote on the need to end impunity.11

7.2.1.2

Status of the Situation

Today, 13 years after the referral, the situation is dead, and it has been dead for several years. Arrest warrants and summons to appear have been issued since 2007 against six persons involved on all sides of the conflict. In one case, the charges

2

With regard to US politics Straus 2005, pp. 128 et seq. US Congress, H. Con. Res. 467, 7 September 2004. The resolution was not adopted by the US Senate. 4 US Secretary of State Colin L. Powell 2004. 5 US President George W. Bush 2004. 6 UNSC 2005, p. 2. 7 Ibid., p. 3. 8 Kreß 2008, p. 325. 9 UNSC 2005, p. 5. 10 Ibid., p. 10. 11 Ibid., pp. 7–8. 3

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were not confirmed by the Pre-Trial Chamber12 and in another the proceedings were terminated after the death of the suspect.13 In all other cases, the suspects remain at large and, in some instances, in office. Most prominently, the President of Sudan, Omar al-Bashir, remains at large and travels freely at least through Africa, although there has been an arrest warrant since 2009. With this in mind and after years of being left alone by the international community, the Office of the Prosecutor (OTP) shifted its resources away from the Darfur situation. In her statement presenting the 20th report to the UN Security Council pursuant to Resolution 1593 (2005), dating December 2014, the Prosecutor has hibernated all investigation regarding Darfur. Since then, the Office is trying to push the existing cases and is continuously monitoring the situation. Unless there was a ‘change in attitude and approach to Darfur’14 within the Council, the OTP will have nothing to report back to the Council.

7.2.1.3

Approach by the P5 and Sudan

Some permanent members of the Security Council regularly regret the fact that progress has not been achieved; they repeat their commitment to a follow-up process after a referral. Namely France and the United Kingdom voice their disappointment within Security Council meetings.15 However, the Council members do not address those questions in a meaningful manner. No progress has been made in establishing a follow-up process. Not just that, the communications received by the ICC in cases where non-compliance with international obligations by Member States had been communicated to the Council are ignored by the Security Council. This is also due to the policies of other permanent members to the Security Council, which maintain their opposition to the ICC’s actions with regard to Darfur. China emphasises the respect for the sovereignty of Sudan.16 In comparison with statements by Russia, this criticism seems subtle and careful. The Russian representative in the Council recently averred that the ICC was not capable of effectively carrying out the tasks that the Security Council had originally entrusted upon it.17 Similarly, the US upholds its ‘long-standing and principled objection to any ICC

12

ICC, The Prosecutor v. Bahr Idriss Abu Garda, Decision on the Confirmation of Charges, 8 February 2010, ICC-02/05-02/09. 13 ICC, The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Decision Terminating the proceedings against Mr. Jerbo, 4 October 2013, ICC-02/05-03/09. 14 ICC Office of the Prosecutor 2014, para 4. 15 Most recently UNSC 2018d, pp. 5–6. 16 Most recently ibid., p. 9. 17 Ibid., p. 17.

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investigation or other activity concerning United States personnel, absent US consent or Security Council referral.’18 Sudan regularly participates in Security Council meetings regarding the situation and never misses a chance to condemn the ICC, its work and its staff. It bases its criticism on the inapt argument of national sovereignty. Sudanese officials regularly bash the Prosecutor when she is reporting to the Security Council. One has to keep in mind that the government in Khartoum is still lead by Omar al-Bashir, a prime suspect of the ICC. It does not come as a surprise that the foreign service of Sudan follows a policy of fundamental and remorseless opposition against the ICC.19

7.2.1.4

Conclusion

What does it mean for the topic at hand? The situation in Darfur was without a doubt a situation that merited a response by the Security Council. Several hundred thousand casualties, more than two million internally displaced persons and around three hundred thousand refugees in neighbouring Chad fall under ‘threat to the peace’ as demanded by Article 39 UN Charter. Consequently, the Security Council was free in how it addressed this threat. When it opted for the referral as a measure under Article 41 UN Charter, the Council incorporated the referral as a political tool in the toolbox of Chapter VII in order to restore international peace and security. It can be seen as a use of the ICC for altruistic ends, meaning the referral was supposed to serve the interests of international justice. At the same time, at least for the United States, egoistic motivation cannot be denied. Those findings do not hold true for the following years. The Council was not and is not prepared to support the ICC in any way, shape or form. It does not use the ICC at all, including as a political tool.

7.2.2

Libya, Resolution 1970 (2011)

7.2.2.1

Background

The Arab Spring of 2011 inter alia took place in Libya where it started out as peaceful protests. However, the condition worsened rapidly and escalated quickly into a non-international armed conflict20 just briefly before the Security Council referred the situation to the ICC with Resolution 1970 (2011). With this resolution the ICC gained jurisdiction over the situation in Libya since 15 February 2011. Resolution 1970 (2011) was partially modelled after Resolution 1593 (2005),

18 19 20

Ibid., p. 14. Ibid., p. 17; UNSC 2017a, p. 17. Brunner and Frau 2011, pp. 194 et seq.

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specifically the part including the referral. In comparison with Resolution 1593 (2005), Resolution 1970 (2011) was significantly longer, for it included more measures under Article 41 UN Charter, such as arms embargoes, travel bans and asset freezes with regard to the ruling family and its confidants. During the debate about the draft resolution, a sense of urgency was overwhelming. The representative of the United Kingdom criticized the government of Libya at the time and deplored the violence against protesters.21 The US ambassador highlighted the fact that Resolution 1970 (2011) included a vast array of measures and pointed out that Libyan leadership should be held responsible for the atrocities.22 In a similar vein, the Russian ambassador condemned the violence and called upon the Libyan government to cease its actions.23 Neither the United States nor Russia, nor China mentioned the ICC in a substantial manner. Only the French ambassador pointed out that another reason for the ICC’s existence could be found with the Libyan situation. It must be mentioned that the Libyan representative in New York had fallen off from the Gaddafi regime and begged the Security Council for the adoption of the resolution.24

7.2.2.2

Status of the Situation

Today, Libya remains a ‘priority situation’ for the OTP.25 In stark contrast to the Darfur situation, achievements are made in this scenario. Most recently, after almost six years of no actual work in Libya due to security reasons an OTP team has visited Libya in March 2018.26 The ICC had issued five warrants of arrests. In one case, proceedings against one of the three suspects, Muammar al-Gaddafi, were terminated after his death.27 The case against a second suspect in this case, Abdullah al-Senussi, was declared inadmissible because of domestic proceedings against him.28 Proceedings against

21

UNSC 2011, p. 2. Ibid., p. 3. 23 Ibid., pp. 3 et seq. 24 Ibid., p. 7. 25 ICC Office of the Prosecutor 2017a, para 2. 26 Ibid., para 9. 27 ICC, The Prosecutor v. Muammar Mohammed Abu Minyar Gaddafi, Saif al-Islam Gaddafi and Abdullah al-Senussi, Decision to Terminate the Case against Muammar Mohammed Abu Minyar Gaddafi, 22 November 2011, ICC-01/11-01/11. 28 ICC, The Prosecutor v. Muammar Mohammed Abu Minyar Gaddafi, Saif al-Islam Gaddafi and Abdullah al-Senussi, Decision on the admissibility of the case against Abdullah al-Senussi, 13 November, 2013 ICC-01/11-01/11; (decision by the Trial Chamber upheld by the Appeals Chamber) ICC, The Prosecutor v. Muammar Mohammed Abu Minyar Gaddafi, Saif al-Islam Gaddafi and Abdullah al-Senussi, Judgment on the appeal of Mr. Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October 2013 entitled ‘Decision on the admissibility of the case against Abdullah Al-Senussi’, 24 July 2014, ICC-01/11-01/11. 22

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the third suspect in this first case, Saif al-Islam Gaddafi, were stalled because he was detained by the Abu-Bakr al-Siddiq Brigade of Zintan, Libya, until summer of 2017. Since then, he had reportedly been granted an amnesty by the local (de facto) authorities. The OTP is still working to ensure his appearance in The Hague. In two other cases, two further suspects have been identified and warrants of arrest have been issued. Both suspects remain at large.

7.2.2.3

Approach by the P5

Similarly to the Darfur situation, the Security Council as such is hesitant to support the ICC concerning Libya. During the 25th report of the OTP to the Security Council in May 2018 it was evident that the views of some permanent members of the ICC did not evolve but became more explicit.29 Russia turned the tables and insisted that the ICC should change its attitude towards the Security Council and not vice versa.30 Its ambassador avowed that Russia would do anything to ‘avoid repeating the unsuccessful experiment of referring Security Council issues to the ICC’.31 The US representative reiterated principled US concerns with the ICC’s work in general and with regard to Afghanistan in particular as long as US personnel was involved.32 France stated that the ICC had not reached its full potential yet but was already established as a tool to maintain international peace and security.33 France and the United Kingdom pledged their support of the ICC.34 The Prosecutor regularly urges all States including the members of the Security Council to help the efforts by her office.35 She is discontent with the lack of cooperation by Libya and the Council itself, which does not follow-up on its referral.36

7.2.2.4

Conclusion

The non-international armed conflict of 2011 in Libya escalated quickly. It is debatable whether or not at the date of referral the situation really amounted in its gravity and severity to a situation that merited a referral. Still, the situation

29

China just reiterated that its position regarding the ICC had not changed, UNSC 2018c, p. 15. Ibid., pp. 6 et seq. 31 Ibid., p. 7. 32 Ibid., p. 8. 33 Ibid., p. 10. 34 Ibid. pp. 6, 11. 35 ICC Office of the Prosecutor 2017b, paras 23, 30; ICC Office of the Prosecutor 2017c, paras 27, 35 et seq.; ICC Office of the Prosecutor 2017d, paras 16, 40. 36 Lately ICC Office of the Prosecutor 2017a, para 49. Cf. also ICC Office of the Prosecutor 2017c, para 36. 30

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deteriorated, and core crimes were committed during the conflict, making the situation fall under the ambit of Article 39 UN Charter. Comparable to the Darfur situation, the Security Council does not support the ICC in its work on the referral. The ICC is mentioned rarely in Security Council resolutions.37 Overall, the members of the Security Council use debates about the ICC as an occasion to restate their general stance towards the ICC but do not delve deeper into its work. One major factor in the current Libyan conflict is the role of Khalifa Haftar, head of the Libyan National Army. In this position, he is superior to Al-Werfalli who is wanted with an arrest warrant by the ICC.38 Haftar is allegedly supported by Russia and France. During a recent stay in Paris, French authorities failed to address the issue with him. And although not subjected to an arrest warrant himself, Haftar could play a role in enforcing the ICC’s arrest warrant. That is why the Prosecutor calls on all States, especially members of the Security Council, to assist in arresting Al-Werfalli.39 In this regard, the ignorance of the ICC contributes to domestic policies of the P5. Again, the result is mixed. Some permanent members of the Security Council tried to secure human rights and humanitarian law with the referral, aiming at altruistic goals. Especially with regard to the missing follow-up procedure, other permanent members seem to hinder such a process for egoistic reasons.

7.3

Failed Referrals

In addition to the referrals made by the Security Council, its members in some instances include a referral to the ICC in draft resolutions. When these drafts failed to be adopted, the referral failed as well. Three cases should be mentioned.

7.3.1

Democratic People’s Republic of Korea

The case of the Democratic People’s Republic of Korea (DPRK), or North Korea, poses many challenges to the international community, most blatantly of course the case of nuclear (dis)armament,40 which can be left aside here. Next to this matter, 37

UNSC 2014a, para 3; UNSC 2015a, para 7; UNSC 2015b, para 10; UNSC 2015c para 14 note the work of the ICC and the importance of Libya’s cooperation with the ICC and in addition call upon the government to cooperate. 38 ICC, The Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli, Warrant of Arrest, 15 August 2017, ICC-01/11-01/17. 39 ICC Office of the Prosecutor 2017a, para 22; cf. also the report itself ICC Office of the Prosecutor 2017e, para 14. 40 Cf. most recently Resolution 2407 (2018).

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the international community has focused on other tasks as well, namely the situation of human rights in the DPRK. In 2014 the Commission of Inquiry on Human Rights in the DPRK delivered its report to the Human Rights Council.41 The Commission of Inquiry found systematic, widespread and gross human rights violations by the DPRK as a matter of policy. As such, the findings by the commission gave reasonable grounds to assume that crimes against humanity were committed and hence that individual criminal responsibility existed.42 In order to ensure responsibility the Commission suggested, inter alia, a referral of the situation in the DPRK to the ICC by the Security Council.43 Other organs of the UN have subscribed to this view. Most importantly, the UN General Assembly has adopted the core findings of the Commission of Inquiry.44 Particularly the General Assembly condemns the human rights violations which may amount to crimes against humanity.45 It submitted the report to the Security Council and encouraged the Council to consider referring the situation to the ICC.46 When the Security Council debated the Commission’s findings and the General Assembly resolution, the possibility of referral to the ICC was discussed. The ambassadors of France, the United States and the United Kingdom entertained the thought of referral.47 China and Russia on the other hand maintained that the situation was politicised, and the Security Council had no mandate to interfere. Thus, China threatened to oppose any document coming out of the Council.48 A referral was consequently not made. Moreover, not even a draft resolution containing a referral was prepared by a member of the Security Council. In the following years the Security Council never addressed the referral of the DPRK situation again. China and Russia were successful in threatening their veto. In light of the ICC’s lacking success after a referral, such vocal opposition in the first place seems to exaggerate the effects of a Security Council decision. Experience shows that if the Security Council does not follow up on the referral, effective criminal prosecution by the ICC remains a rare phenomenon even if a Security Council referral does exist. The same holds true for the conflict in Syria.

41

Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea (2014). 42 Ibid., para 74. 43 Ibid., para 94(a). 44 UNGA 2014. 45 Ibid., para 1. 46 Ibid., para 8. 47 UNSC 2014d, pp. 11–12, 15. 48 Ibid., pp. 16, 19.

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7.3.2

Syria

7.3.2.1

Background

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Bone of contention within the Security Council has been the ongoing conflict in Syria. This conflict has its origins in the Arab Spring of 2011 and as of September 2018 caused several hundred thousand casualties,49 six million internally displaced persons and five million refugees.50 The calls for a referral to the ICC by the Security Council are too numerous to mention. Two recent demands shall suffice. First, the most recent report of the Independent International Commission of Inquiry on the Syrian Arab Republic lamented at the beginning of 2018 that (e)fforts to promote criminal accountability through the International Criminal Court have not been successful so far, despite the best efforts of the Human Rights Council, the Commission, a large number of Member States committed to the promotion of international justice and countless civil society groups. Attempts to refer the situation in the Syrian Arab Republic to the International Criminal Court have never made it past the floor of the Security Council.51

The commission is desperate, it seems, and sees no chance of success for a draft referral. Second, the UN Secretary General has repeatedly called for the referral of the situation to the ICC. Most recently, he repeated his call to the members of the Security Council at the beginning of 2018.52 Still, António Guterres’ advice was not followed by the Security Council. Despite these demands and calls, a referral by the Security Council seems highly unlikely given the fact that one proposal was rejected four years ago.

7.3.2.2

Draft Referral S/2014/348

In their draft resolution of 201453 State sponsors envisaged a referral prepared by France54 of the situation in Syria since March 2011 to the ICC.55 The details were written following the wording of Resolution 1593 (2005) and Resolution 1970 (2011). The French representative stressed the fact that both resolutions passed and

49

Estimates gathered by Wikipedia, https://en.wikipedia.org/wiki/Casualties_of_the_Syrian_ Civil_War. Accessed 7 January 2019. 50 Estimates gathered by Wikipedia, https://en.wikipedia.org/wiki/Refugees_of_the_Syrian_ Civil_War. Accessed 7 January 2019. 51 Independent International Commission of Inquiry on the Syrian Arab Republic 2018, para 11. 52 UNSG 2018e, para 45. 53 UNSC 2014b. 54 UNSC 2014c, p. 12. 55 UNSC 2014b, para 2.

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that there was no reason to not pass this draft.56 Both European permanent members of the Security Council as well as the United States voted in the affirmative. However, Russia and China vetoed the draft which therefore was not adopted.57 Russia put the blame on France which, in the Russian view, delivered a blow to P5 unity within the Security Council. Russia cited the example of Resolution 1970 (2001), which did not foster peace and security in the Libyan civil war and in which the ICC failed its mandate miserably.58 Its ambassador feared a referral would open the gates to a military intervention in Syria, similar to the approach taken three years earlier. Russia disapproved of double standards, supposedly lived by the United States and the United Kingdom which were allegedly keen to see other nationals investigated and prosecuted but try to shield their own actions from ICC prosecution. China based its veto on principled reservations regarding the ICC.59 Additionally, it sensed that a political solution would be seriously hampered if members of some delegations were under criminal investigation during peace talks. It comes to no surprise that the Syrian representative present in the meeting bashed out against the draft as well.60 The reasons presented by Russia and China contain some truth to them. Still, it is widely assumed that Russia is shielding the government of Bashar al-Assad from outside interference. It seems as if both proponents and opponents of a referral use the measure as a political tool. France along with the United Kingdom and the United States attempts to use the ICC as an altruistic political tool, pushing for the adherence to human rights and humanitarian law in Syria and seeing the ICC as a means to ensure compliance. This applies especially to France, which has drafted most of the referrals made up until today. Still, all three are probably using the draft as a means of egoistic politics as well. The three permanent members of the Security Council were well aware that a draft referring the situation to the ICC had no real chance to be adopted. Thus, the three States created an opportunity for themselves to blame Russia and China for not pushing for justice and accountability as well as destroying another chance to stop the war in Syria. Russia and China claim to follow altruistic aims as well, in their case State sovereignty. While it is true that State sovereignty remains at the heart of international law, their reasoning is not convincing. First, their ‘principled concerns’ were not a reason to veto the referrals of Darfur and Libya. Second, the power to interfere with State sovereignty is precisely at the core of the UN Charter dealing with the Security Council (Article 2(7) UN Charter). State sovereignty is an alibi to veto a referral, and a bad one at that it is. Hence, Russia and China use the veto as a political tool for their respective self-interest. It is not the referral itself, but the stop of the referral that is at the heart of their politics.

56 57 58 59 60

UNSC 2014c, p. 3. Ibid. Ibid., pp. 12 et seq. Ibid., p. 13. Ibid., p. 16.

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Side Note: The International Impartial and Independent Mechanism

The 71st UN General Assembly established the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 (IIIM).61 It is tasked to prepare files and does not conduct criminal investigations or trials. The resolution foresees no relation to the ICC. Still, among other States Russia and China voted against the draft with France, the United Kingdom and the United States voting in its favour.62

7.3.3

Myanmar

7.3.3.1

Background

In the summer of 2017 tensions between the Myanmar central government, including its armed and police forces, and the ethnic minority of the Rohingya exploded into massive violence, purportedly amounting to crimes against humanity. Human Rights Watch estimates that around 340 villages were destroyed by Myanmar armed forces and about 650.000 persons fled to neighbouring Bangladesh.63 These and prior incidents gave the Human Rights Council as well as the General Assembly reason to put Myanmar on their respective agenda. The General Assembly deplored the situation in the country and urged its authorities to take action.64 The fact-finding mission of the UN Human Rights Council has no access to Myanmar. Still, it conducted several hundred interviews with affected persons outside of the country. When the head of the fact-finding mission briefed the Human Rights Council in March 2018, he stated that the evidence pointed at the likely commission of crimes under international law.65

7.3.3.2

Debates in the Security Council

The Security Council has not debated Myanmar after this briefing. The last debate took place one month prior to this briefing, when the situation in Myanmar was

61

UNGA 2017a. UNGA 2016, pp. 29–30. 63 Human Rights Watch 2017. 64 UNGA 2017b, para 1. 65 Statement by Marzuki Darusman, Chairperson of the Independent International Fact-Finding Mission on Myanmar, at the 37th session of the Human Rights Council, 12 March 2018. 62

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already dreadful. The difficult situation in Myanmar and its volatility are known to the members of the Security Council. After all, a presidential statement of November 2017 outlines the dangers of the situation.66 Still, the representatives of the P5 did not even reference the ICC during their meetings.67 It was up to two non-permanent members who brought the possibility of ICC investigation into the arena.68 Nevertheless, the Security Council has not referred the situation to the ICC.

7.3.3.3

Possible Jurisdiction of the ICC…

Even though a Security Council referral seems highly unlikely given the attitude of the P5 towards the ICC in general and with regard to Myanmar in particular, the ICC may still exercise jurisdiction over actions connected to the incidents in the country. Bangladesh joined the ICC in March 2010.69 According to the ICC Statute, the ICC has jurisdiction over such conduct that either occurred on the territory of Bangladesh (Article 12(2)(a) ICC Statute) or was committed by a national of Bangladesh (Article 12(2)(b) ICC Statute). Trying to clear the way for a possible ICC situation, the Prosecutor asked the Pre-Trial Division for a ruling under Article 19(3) ICC Statute, clarifying the jurisdiction of the Court. The Prosecutor stated that in order to fulfil the requirement of Article 12(2)(a) ICC Statute at least one of the crime’s elements must occur on the territory of a State party.70 Hence, the ICC should enjoy jurisdiction over the crime of deportation under Article 7(1)(d) ICC Statute regarding the refugees in Bangladesh. Just recently the Pre-Trial Chamber affirmed the ICC’s jurisdiction.71

7.3.3.4

…and a Possible Deferral by the Security Council?

This possible way matters for the present topic because the Security Council may use its power to defer an investigation taking place at the ICC. Article 16 ICC Statute allows for the Security Council to stop individual72 proceedings. The 66

UNSC 2017b. Cf. UNSC 2018b, pp. 5 et seq. 68 Cf. the statements of the representatives of Sweden (Ibid., p. 10) and the Netherlands, which urged Myanmar to accept the jurisdiction (Ibid., p. 12). Cf. also the statement by Uruguay (UNSC 2018a, p. 17). 69 https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter= 18&clang=_en. Accessed 7 January 2019. 70 ICC, Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, 9 April 2018, ICC-RoC46(3) 01/18-3, para 28. 71 ICC, Decision on the ‘Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute’, 6 September 2018, ICC-RoC46(3)-01/18, paras 52 et seq. 72 Schabas 2016, p. 437. 67

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Security Council used this measure in the very early days of the ICC when in 200273 and 200374 it precipitately requested a halt on all procedures involving nationals of non-Member States to the ICC. Given the ICC jurisdiction via the State party Bangladesh, individual Member States may sponsor a draft revitalising this provision and halting (or trying to halt) investigation and prosecution with regard to the Myanmar situation. It needs to be noted that the Security Council has not opted for the power of deferral during the last 15 years. In other words, the other side of the coin to the referral power is not a political tool used by the Council. This can be explained straightforwardly: A Council which does not follow up on its referrals does not need to defer prosecution.

7.3.4

Excursus: The International Criminal Tribunal for Malaysia Airlines Flight MH17

On 17 July 2014 Malaysia Airlines MH17 was shot down over the territory of Ukraine, killing all 298 persons on board. One year later, several States, both members and non-members of the Security Council, sponsored a draft resolution covering the incident.75 This proposal under Chapter VII UN Charter envisaged an international criminal tribunal with the proposed statute annexed to the resolution, creating jurisdiction over the incident in regard to war crimes as closer defined, crimes against the safety of civil aviation and crimes under Ukrainian law (Article 1 (1) Draft Statute). The draft was vetoed by Russia and thus failed to be adopted (Article 27(3) UN Charter).76 Russia based its negative vote on several grounds, including the experience with the two ad hoc tribunals, other instances in which downing of airliners were not investigated and the belief that the instance did not cross the threshold of Article 39 UN Charter.77 No State mentioned a referral to the ICC as an alternative. This was an obvious choice to consider, given that Ukraine attempted to accept the ICC’s jurisdiction under Article 12(3) ICC Statute in April 2014,78 and again in September 2015,79 extending the time frame referred to the ICC. Aside from the Ukrainian declaration, the Security Council could still have opted for a referral instead of the establishment of a new ad hoc tribunal. Even in the face

73 74 75 76 77 78 79

Resolution 1422 (2002) of 12 July 2002. Resolution 1487 (2003) of 12 June 2003. UNSC 2015d. Cf. already Resolution 2166 (2014) of 21 July 2014. UNSC 2015e, p. 3. Ibid., p. 5. Ukraine, Embassy to the Kingdom of the Netherlands 2014. Ukraine, Minister for Foreign Affairs 2015.

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of challenges regarding the ICC’s jurisdiction (i.e., gravity)80 a Security Council referral to the ICC would probably not have caused more challenges than the creation of a new court. Sarah Williams has pointed out that the ICC was not the preferred accountability mechanism for the affected States.81 Maybe the successful implementation of the resolution was not the goal. After all, States knew Russia would veto the resolution and neither the referral nor the establishment would have happened. Comparable to the failed Syrian referral, the creation of the ad hoc body was a political measure without any real chance of success. To summarize, the members of the Security Council did not use the ICC or the threat of referral in the incident of Malaysia Air MH17.

7.4

Africa and the ICC

In recent years, several of the AU’s Member States have taken a confrontational stance towards the ICC. The African Union itself regularly issues statements condemning the ICC and its alleged focus on Africa. Whether or not this is true should not be analysed here. The activities of the ICC with regard to Africa merit attention in two other regards.

7.4.1

The Case of South Africa

7.4.1.1

Al-Bashir’s Failed Arrest in South Africa

South Africa has been a State party since 2000. Consequently, it has been and is under the treaty obligation to cooperate with the ICC. When Omar al-Bashir visited the country in 2015 for an AU summit, its government and the authorities were well aware of the pending arrest warrant against him. Nevertheless, al-Bashir was not arrested and could leave the country during domestic court proceedings, which dealt with the lack of action by South Africa. The North Gauteng High Court ordered the government to prevent al-Bashir from leaving the country.82 After this judgment was not executed by the authorities, al-Bashir left the country. In a later judgment, the High Court bashed out against the government and considered the conduct unlawful. The High Court based its judgement on the incorporation of international law, namely the ICC Statute, into domestic law by virtue of constitutional law. Al-Bashir did not enjoy immunity under international law; 80

Williams 2016, pp. 216 et seq. Ibid., p. 224. 82 South Africa, North Gauteng High Court, Pretoria, Southern Africa Litigation Centre v. Minister of Justice and Constitutional Development and Others, Judgment, 24 June 2015, 2015 (5) SA 1 (G.P). 81

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consequently, he did not enjoy immunity under domestic law. The High Court closed its reasoning with alarming words: A democratic State based on the rule of law cannot exist or function, if the government ignores its constitutional obligations and fails to abide by court orders. A court is the guardian of justice, the corner-stone of a democratic system based on the rule of law. If the State, an organ of a State or State official does not abide by court orders, the democratic edifice will crumble stone-by-stone until it collapses and chaos ensues.83

The government did not act according to such a high standard. In preparation of the AU summit it was well aware of the arrest warrant. Confronted with the question of whether to grant immunity or to arrest al-Bashir, the cabinet basically took a vote.84 In this sense, the South African Government took a political approach to international justice.

7.4.1.2

Withdrawal from the ICC and Withdrawal from the Withdrawal

In South Africa, the aforementioned incident led the government to quit the ICC. In October 2016, the government informed the UN Secretary General as required by Article 127(1) ICC Statute of its withdrawal from the ICC.85 The reasoning included allegations of unfair applicability, lack of credibility and acceptability of the ICC Statute. Later, the government had to rescind its declaration and in March 2017 it declared its withdrawal from the withdrawal.86 Reason for this was that the withdrawal itself required prior approval by the South African government. Because this did not happen, the withdrawal had to be rescinded.

7.4.1.3

Conclusion

South Africa’s government politicised the ICC and the unresolved arrest warrant. It took a political decision to not follow its treaty obligations. This lead to domestic disturbances, culminating in the withdrawal which than had to be withdrawn itself. The government acted contrary to international and domestic law in order to deal with the ICC. Those actions used or attempted to use the ICC, its existence and the specific case in a political fashion. 83

Ibid., para 37.2. Ibid., para 21. 85 South Africa, Declaratory Statement on the Decision to Withdraw from the Rome Statute of the International Criminal Court, 19 October 2016, C.N.786.2016.TREATIES-XVIII.10 (Depositary Notification). 86 South Africa, Withdrawal of Notification of Withdrawal from the Rome Statute of the International Criminal Court, 7 March 2017, C.N.121.2017.TREATIES-XVIII.10 (Depositary Notification). 84

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States Quitting the ICC

The governments of other African States were or are convinced that the ICC is trying to exercise politically charged justice, or to be frank, racist and imperialistic justice. Even though these suspicions are ultimately flawed, this is the perceived or imagined reality in those governments. Comparable to the withdrawal by South Africa, The Gambia has also declared its withdrawal from the ICC.87 However, after the government changed, the withdrawal was withdrawn again in early 2017.88 Burundi has stuck with its decision. Its withdrawal89 became effective in late 2017 and the State has now left the ICC. Burundi officials are under investigation by the ICC Prosecutor, which most likely plays a role in the country’s decision to leave the ICC. In March 2018 the (admittedly non-African) government of the Philippines has declared its withdrawal from the ICC.90 Basis for the exit is the allegation that human rights were ‘politicized and weaponized’. In these examples the common denominator is that all States had ‘troubles’ with the ICC. In the case of South Africa, it was non-compliance with an arrest warrant, in other cases the ICC has investigated or is investigating a situation in the respective country. Withdrawal seems like a clear exit strategy for the affected countries. Thus, quitting the ICC is a genuinely egoistic move.

7.5

Conclusion

Permanent members of the Security Council use the ICC as a political tool. Here, two different but overlapping uses can be identified. The first use attempts to foster altruistic interests. Examples are the referrals of the situations in Sudan and Libya. The second use tries to advance egoistic policies. Again, both referrals may be cited as examples. In some instances, States propose a referral to the ICC perfectly knowing that the draft will fail. Failed referrals are not per se political moves, but in the specific cases where the veto was evident or looming, it was. In these cases, those States create a scapegoat, namely the vetoing powers, which can be made responsible for the failure. This is also an egoistic use of the ICC.

87 Gambia, Withdrawal from the Rome Statute of the International Criminal Court, 10 November 2017, C.N.862.2016.TREATIES-XVIII.10 (Depositary Notification). 88 Gambia, Withdrawal of Notification of Withdrawal from the Rome Statute of the International Criminal Court, 10 February 2017, C.N.62.2017.TREATIES-XVIII.10 (Depositary Notification). 89 Burundi, Withdrawal from the Rome Statute of the International Criminal Court, 27 October 2016, C.N.805.2016.TREATIES-XVIII.10 (Depositary Notification). 90 Philippines, Withdrawal from the Rome Statute of the International Criminal Court, 17 March 2018, C.N.138.2018.TREATIES-XVIII.10 (Depositary Notification).

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It needs to be mentioned that States do not seize every opportunity to (ab)use the ICC for their policies. In particular, no State attempts to propose a deferral according to Article 16 ICC Statute. Given the fact that the Security Council is a political body, every decision taken by the Council has a political dimension to it. The analysis shows that the ICC by the P5 is at times used as a political tool to further egoistic and altruistic aims.

References Brunner M, Frau R (2011) Die Maßnahmen des Sicherheitsrates der Vereinten Nationen in Bezug auf Libyen 2011 [The measures of the UN Security Council concerning Libya 2011]. Humanitäres Völkerrecht – Informationsschriften, pp 192–201 Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea (2014) Report of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, UN Doc A/HRC/25/63 De Waal A (2005) Famine that kills: Darfur, Sudan, 1985–1986. Oxford University Press, Oxford Flint J, De Waal A (2005) Darfur – A short history of a long war. Zed Books, London Frau R (2010) Das Verhältnis zwischen dem ständigen Internationalen Strafgerichtshof und dem Sicherheitsrat der Vereinten Nationen [The relationship between the International Criminal Court and the United Nations Security Council]. Duncker & Humblot, Berlin Human Rights Watch (2017) World Report 2018 ICC Office of the Prosecutor (2014) Statement to the United Nations Security Council on the Situation in Darfur, pursuant to UNSCR 1593 (2005). https://www.icc-cpi.int/Pages/item.aspx? name=stmt-OTP-20th-report. Accessed 7 January 2019 ICC Office of the Prosecutor (2017a) Statement to the United Nations Security Council on the Situation in Libya, pursuant to UNSCR 1970 (2005). https://www.icc-cpi.int/Pages/item.aspx? name=180509-otp-stat-UNSC-lib. Accessed 7 January 2019 ICC Office of the Prosecutor (2017b) Twelfth Report of the Prosecutor of the International Criminal Court to the United Nations Security Council Pursuant to UNSCR 1970 (2011). https://www.icc-cpi.int/iccdocs/otp/16-11-10_OTP-rep-UNSCR-1970_ENG.pdf. Accessed 7 January 2019 ICC Office of the Prosecutor (2017c) Thirteenth Report of the Prosecutor of the International Criminal Court to the United Nations Security Council Pursuant to UNSCR 1970 (2011). https://www.icc-cpi.int/iccdocs/otp/otp-rep-unsc-lib-05-2017-ENG.pdf. Accessed 7 January 2019 ICC Office of the Prosecutor (2017d) Fourteenth Report of the Prosecutor of the International Criminal Court to the United Nations Security Council Pursuant to UNSCR 1970 (2011). https://www.icc-cpi.int/iccdocs/otp/otp-unsc-lib-11-2017-ENG.pdf. Accessed 7 January 2019 ICC Office of the Prosecutor (2017e) Fifteenth Report of the Prosecutor of the International Criminal Court to the United Nations Security Council Pursuant to UNSC 1970 (2011). https://www.icc-cpi.int/itemsDocuments/180509-otp-rep-UNSC-lib-ENG.pdf. Accessed 7 January 2019 Independent International Commission of Inquiry on the Syrian Arab Republic (2018) Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc A/HRC/37/72 Kreß C (2008) Der Internationale Strafgerichtshof und der Sicherheitsrat der Vereinten Nationen [The International Criminal Court and the United Nations Security Council]. In: Kempf E et al (eds) Verstehen und Widerstehen – Festschrift Christian Richter II. Nomos, Baden-Baden

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Prunier G (2006) Darfur. Der ‘uneindeutige’ Genozid [Darfur. The ‘ambiguous’ genocide]. Hamburger Edition, Hamburg Schabas W (2016) The International Criminal Court. A commentary, 2nd edn. Oxford University Press, Oxford Straus S (2005) Darfur and the genocide debate. Foreign Affairs 84:122–133 Ukraine, Embassy to the Kingdom of the Netherlands (2014) Declaration by Ukraine lodged under art. 12 (3) of the Rome Statute. https://www.icc-cpi.int/itemsDocuments/997/declaration RecognitionJuristiction09-04-2014.pdf. Accessed 7 January 2019 Ukraine, Minister for Foreign Affairs (2015) Declaration by Ukraine lodged under art. 12 (3) of the Rome Statute. https://www.icc-cpi.int/iccdocs/other/Ukraine_Art_12-3_declaration_08092015. pdf#search=ukraine. Accessed 7 January 2019 UNGA (2014) Resolution 69/188, UN Doc A/RES/69/188 UNGA (2016) Meeting Records, Seventy-first Session, 66th Plenary Meeting, 21 December 2016, UN Doc A/71/PV.66 UNGA (2017a) Resolution 71/248, UN Doc A/RES/71/248 UNGA (2017b) Resolution 72/248, UN Doc A/RES/72/248 UNSC (2005) Meeting Records, 5158th Meeting, 31 March 2005, UN Doc S/PV.5158 UNSC (2011) Meeting Records, 6491st Meeting, 26 February 2011, UN Doc S/PV.6491 UNSC (2014a) Resolution 2144, UN Doc S/RES/2144 UNSC (2014b) Draft Resolution, UN Doc S/2014/348 UNSC (2014c) Meeting Records, 7180th Meeting, 22 May 2014, UN Doc S/PV.7180 UNSC (2014d) Meeting Records, 7353rd Meeting, 22 December 2014, UN Doc S/PV.7353 UNSC (2015a) Resolution 2213, UN Doc S/RES/2213 (2015) UNSC (2015b) Resolution 2238, UN Doc S/RES/2238 UNSC (2015c) Resolution 2259, UN Doc S/RES/2259 UNSC (2015d) Draft Resolution, UN Doc S/2015/562 UNSC (2015e) Meeting Records, 7498th Meeting, 29 July 2015, UN Doc S/PV.7498 UNSC (2017a) Meeting Records, 8132nd Meeting, 12 December 2017, UN Doc S/PV.8132 UNSC (2017b) Statement by the President, UN Doc S/PRST/2017/22 UNSC (2018a) Meeting Records, 8133rd Meeting, 12 December 2018, UN Doc S/PV.8133 UNSC (2018b) Meeting Records, 8179th Meeting, 13 February 2018, UN Doc S/PV.8179 UNSC (2018c) Meeting Records, 8250th Meeting, 9 May 2018, UN Doc S/PV.8250 UNSC (2018d) Meeting Records, 8290th Meeting, 20 June 2018, UN Doc S/PV.8290 UNSG (2018e) Report on the Implementation of Security Council resolutions 2139 (2014), 2165 (2014), 2191 (2014), 2258 (2015), 2332 (2016) and 2393 (2017), UN Doc S/2018/60 US President George W. Bush (2004) President Bush’s Speech to the United Nations. https://www.theguardian.com/world/2004/sep/21/iraq.usa3. Accessed 7 January 2019 US Secretary of State Colin L. Powell (2004) Testimony Before the Senate Foreign Relations Committee. https://2001-2009.state.gov/secretary/former/powell/remarks/36042.htm. Accessed 7 January 2019 Williams S (2016) MH17 and the International Criminal Court: A suitable venue? Melbourne Journal of International Law 17:210–237

Robert Frau is Associate Professor (‘Privatdozent’) at the European University Viadrina, Frankfurt (Oder). In the summer semester of 2019 he will be Guest Professor at the Law Faculty of the Free University Berlin.

Chapter 8

The International Criminal Court Reparations Scheme – A Yardstick for Hybrid Tribunals? Philipp Ambach

Contents 8.1 Introduction........................................................................................................................ 131 8.2 The ICC’s Reparations Function and Hybrid Regimes in Place ..................................... 133 8.2.1 The ICC Regime .................................................................................................... 133 8.2.2 Select Hybrid Courts’ Reparation Regimes ........................................................... 137 8.3 Challenges.......................................................................................................................... 141 8.4 Conclusion ......................................................................................................................... 143 References .................................................................................................................................. 143

Abstract The chapter explores whether the ICC’s specific nature as a permanent international criminal court with a plurality of stakeholder States can provide an example solution for reparations regimes of future international(ised) criminal justice solutions, or whether other concepts should (also) be considered.




Keywords International Criminal Court Rome Statute Reparations Hybrid courts Trust Fund for Victims




8.1





Victim participation


Introduction

The establishment of the International Criminal Court (ICC) was something of a revolution – as far as there can be any in the field of international criminal law and justice. It perpetuated and solidified the concept of an international criminal tribunal trying individuals for crimes under international law – a path trodden by the UN P. Ambach (&) International Criminal Court, The Hague, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 G. Werle and A. Zimmermann (eds.), The International Criminal Court in Turbulent Times, International Criminal Justice Series 23, https://doi.org/10.1007/978-94-6265-303-0_8

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Security Council in establishing the International Criminal Tribunals for the former Yugoslavia and for Rwanda1 in the mid-nineties. Both tribunals served as judicial ad hoc solutions to immediate threats to international peace and security.2 The creators of the ICC took it one step further in establishing the first ever permanent international criminal court. And so it happened that the International Criminal Court3 was established in 1998 through an international treaty, the Rome Statute, to try individuals accused of committing the most serious crimes of concern to the international community.4 However, the ICC also established something new and unbeknown to the governing frameworks of the UN ad hoc tribunals – and the International Military Tribunal or the Nuremberg International Military Tribunal for the Far East for that matter – namely victim participation in the proceedings and the possibility for victims to get redress through reparations in case the accused is convicted. For the previous ad hoc tribunals, the only way for victims to participate in the criminal proceedings was as a witness – provided they could indeed testify to facts relevant to the case at hand. States supporting this new chapter of international criminal institutionalism thus expressed their joint conviction that modern international criminal justice as exercised by the ICC does not only have a general-preventative and retributive character, but also focuses on redress and restorative justice for victims.5 The ICC’s victim focus did not remain lofty resolution language in preparatory documents, but was translated into a powerful normative framework inserting a strong victim component into criminal trials before the ICC, and notably providing them with a role of their own right in the criminal process. In doing so, the ICC set a trend for subsequent hybrid internationalised courts and tribunals which sport rather inclusive victim participation regimes and address reparations. The Extraordinary Chambers in the Courts of Cambodia (ECCC), the Special Tribunal for Lebanon (STL), the Kosovo Specialist Chambers and Specialist Prosecutor’s Office (KSC) and the Cour pénale spéciale Centrafricaine (Special Criminal Court for Central African Republic, SCC) all contain specific provisions on victim participation and, to varying degrees of detail, on reparations. Similarly, the African Union-sponsored Chambres africaines extraordinaires (Extraordinary African Chambers, EAC), established to try former Chadian dictator Hissein Habré, provided for victim participation and a reparations regime subsequent to the accused’s conviction.6 1

For the International Criminal Tribunal for the former Yugoslavia UNSC 1993; for the International Criminal Tribunal for Rwanda UNSC 1994 (together: UN ad hoc Tribunals). 2 Their jurisdiction entailed war crimes, crimes against humanity and the crime of genocide. 3 General information on the ICC is available at https://www.icc-cpi.int. Accessed 7 January 2019. 4 See Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (Rome Statute), preambular para 4. 5 Donat-Cattin 2016, marginal nos 3 et seq. 6 See Statute of the Extraordinary African Chambers within the courts of Senegal created to prosecute international crimes committed in Chad between 7 June 1982 and 1 December 1990 (unofficial translation of the French original) (EAC Statute), Articles 14 (victim participation), 27,

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Of all aforementioned courts, the ICC reparations regime still remains the most inclusive with a remarkable additional feature, the Trust Fund for Victims. Victims in several cases have begun or are beginning to receive reparations pursuant to relevant orders by different Trial Chambers of the ICC. The Trust Fund has become a key module in the reparations framework, being tasked with the implementation of reparations in all cases before the ICC that have reached this stage. Now let us zoom out: it is an unfortunate fact of current times with multilateralism in decline and waning State interest to submit themselves to international regulatory regimes that the ICC’s present number of States parties – in mid-2019 still at 122 – will not rise much in the years to come.7 In particular, powerful and influential States like China, Russia and the United States are unlikely to engage positively with the ICC – not least because their interests may be affected by preliminary examinations and investigations of the ICC in several situations. Yet, grave crimes continue to be committed on a large scale, and the need for (post-) conflict criminal justice is rising rather than declining. Hybrid internationalised courts will continue to be the most powerful answer to mass violence where national justice systems fail or are too weak to render meaningful, independent and impartial justice. Accepting that the reparative aspect of justice has become a natural ingredient of internationalised criminal justice mechanisms, the question is whether the ICC system – or certain key features thereof – can and should be used as a template solution for future hybrid courts. In the following it shall be explored whether the ICC’s specific nature as a permanent international court with a plurality of stakeholder States can indeed provide an example solution for reparations regimes, or whether other concepts should (also) be considered.

8.2 8.2.1

The ICC’s Reparations Function and Hybrid Regimes in Place The ICC Regime

It is important to note that all the aforementioned courts and tribunals provide for sophisticated victim participation regimes in the judicial proceedings, many with resemblance to the ICC framework, or key aspects thereof. Article 68(3) of the Rome Statute provides that ‘[w]here the personal interests of the victims are 28 (reparations regime including the establishment of a trust fund). https://www.hrw.org/news/ 2013/09/02/statute-extraordinary-african-chambers. Accessed 7 January 2019; EAC, Ministère Public c. Hissein Habré, Jugement, 30 Mai 2016 (Habré). http://www.chambresafricaines.org/pdf/ Jugement_complet.pdf. Accessed 7 January 2019. 7 In fact, in mid March 2019 the Philippines’ withdrawal from the Rome Statute will come into effect pursuant to Article 127(1) of the Rome Statute, leaving the number of ICC State Parties at 122.

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affected, the Court shall permit their views and concerns to be presented and considered’. Victims’ personal interests are thus not limited to reparation issues and should, as a general rule, be construed in an appropriately broad sense.8 Victim participation, as has been ruled in various proceedings before the ICC, needs to be ‘meaningful’ as opposed to ‘purely symbolic’.9 This same logic also needs to apply to reparations. During the trial the role of victims in ICC proceedings is limited to the presentation of their views and concerns; participating victims are not parties to the proceedings, but merely ‘participants’ with corresponding procedural rights (and obligations).10 This is different in reparations proceedings, where the victims’ role is notably increased to one of a party to the proceedings. Article 75 of the Rome Statute provides the fundamental premise on reparations, that in case of a conviction a Chamber may determine the scope and extent of any damage, loss and injury to, or in respect of, victims; it ‘may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation’.11 By way of law and practice, at the ICC a procedural ‘reparations phase’ of many months has followed final guilty verdicts on the merits. These proceedings can be broadly subdivided into two main phases:12 (1) the phase prior to the Chamber’s acceptance of the Trust Fund’s reparations implementation plan (the latter being drafted in accordance with the Chamber’s

8 ICC, The Prosecutor v. Thomas Lubanga Dyilo, Decision on victims’ participation, 18 January 2008, ICC-01/04-01/06-1119, para 98. 9 Ibid., para 85; ICC, The Prosecutor v. Thomas Lubanga Dyilo, Judgment on the appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, 11 July 2008, ICC-01/04-01/06-1432 (Lubanga Appeal Decision), para 97; The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Order on the Organisation of Common Legal Representation of Victims, 22 July 2009, ICC-01/04-01/07-1328, para 10(a); Decision on the modalities of victim participation at trial, 22 January 2010, ICC-01/04-01/ 07-1788-tENG, para 57; The Prosecutor v. Jean-Pierre Bemba Gombo, Decision on common legal representation of victims for the purpose of trial, 10 November 2010, ICC-01/05-01/08-1005, para 9(a). 10 The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, 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’, 16 July 2010, ICC-01/04-01/07-2288 (Katanga and Ngudjolo Appeal Decision), para 39. This general principle is premised on Article 66(2) of the Statute which provides that ‘[t]he onus is on the Prosecutor [and not (also) victims’ representatives] to prove the guilt of the accused’. This interpretation is further supported by the disclosure regime established in Rules 76 to 84 of the ICC Rules, which as the Appeals Chamber has noted is ‘directed towards the parties and not victims’, Lubanga Appeal, above n 9, para 93, confirmed in Katanga and Ngudjolo Appeal Decision, above n 10, para 74. 11 Rome Statute, above n 4, Article 75(2). 12 See on the general subdivision of the reparations stage in phases: ICC, Joint Report of the Court and the Trust Fund for Victims on foreseeable administrative and operational cost implications of reparations, CBF/30/8, 2018, referred to in ICC-ASP/17/5, Annex IX (on file with the author).

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reparations order previously issued). In particular prior to issuing its reparations order, the Chamber collects relevant information from the parties and other sources in order to issue said order. It has to be noted that the Chambers have made good use of their procedural options: pursuant to Rule 97(2) of the ICC Rules, Chambers may ‘appoint appropriate experts to assist [the judges] in determining the scope, extent of any damage, loss and injury to, or in respect of victims, and to suggest various options concerning the appropriate types and modalities of reparations’.13 Chambers made use of this option in Bemba and Al Mahdi. Also, Chambers ‘may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States’.14 There has been a rich discussion to date on the case record regarding quite a number of substantial, procedural and technical questions regarding reparations. This includes also the scope and kind of reparations, as well as the differentiation between individual and collective reparation awards.15 As mentioned above, the victims’ role in this phase is ‘uplifted’ to a party to the proceedings (represented through their legal representative16) because in these proceedings victims are direct beneficiaries and their input is crucial for the Chamber – and the Trust Fund as appropriate – to tailor the reparation order (Chamber) as well as concrete measures (generally the Trust Fund) to victims’ needs. During this phase, and up until the acceptance by the Chamber of the Trust Fund’s draft implementation plan, a variety of issues may be – and has been – litigated. (2) During the reparations implementation phase, any litigious court proceedings have come to an end and are replaced by an administrative process of implementation of reparation measures previously approved by the Chamber. Where permitted by the latter, the Trust Fund may still admit victim applicants into reparation programmes, again through an administrative admission procedure. This approach has been followed in Lubanga and Al Mahdi.17 Despite the

13 ICC ASP, Rules of Procedure and Evidence, Rule 97(2) (ICC Rules). https://www.icc-cpi.int/ iccdocs/pids/legal-texts/rulesprocedureevidenceeng.pdf. Accessed 7 January 2019; see also the similar provision in Rule 168 of the KSC Rules of Procedure and Evidence Before the Kosovo Specialist Chambers, (KSC Rules). https://www.scp-ks.org/en/documents/rules-procedure-andevidence-kosovo-specialist-chambers-including-rules-procedure. Accessed 7 January 2019. The ICC provision also obliges the chamber to invite observations from the convicted person, victims or their legal representatives, and other interested persons or States (‘shall invite, as appropriate’). The KSC merely speaks of ‘may invite’ (emphasis added). 14 Rome Statute, above n 4, Article 75(3). 15 ICC Rules, above n 13, Rule 97(1). For relevant jurisprudence in this regard, see the reparations orders in Lubanga, Katanga and Al Mahdi and relevant decisions of the Appeals Chamber on appeals in all three cases (an Appeals Chamber decision on the appeal against the Lubanga reparations order still outstanding at the time of writing (May 2019)). 16 Ibid., Rule 91. 17 This admission procedure may generate a residual amount of litigation where the convict challenges the admission decision of new reparation applicants. See the litigation mechanism as outlined in ICC, The Prosecutor v. Ahmad Al Faqi Al Mahdi, Reparations Order, 17 August 2017,

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ICC’s existence since 2002, experience in this phase is rather limited; at the time of writing, the implementation of reparations in Lubanga and Katanga is ongoing, and commencing in Al Mahdi. In no case, the entire process has been finalised as yet. As alluded to supra, the key enabler of reparations in ICC proceedings is the Trust Fund for Victims: foreseen in Article 79(1) of the Rome Statute ‘for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims’,18 and established by the ICC’s Assembly of States Parties through a resolution in the early life of the ICC,19 the Trust Fund has two institutional mandates: (a) to provide physical or psychological rehabilitation or material support for the benefit of victims and their families (‘assistance mandate’);20 and (b) when a Chamber makes an order for reparations against a convicted person and orders that the award be deposited with or made through the Trust Fund21 (‘reparations mandate’).22 Article 75(2) mirrors the second mandate in that it provides the Chamber with the capacity to ‘order that the award for reparations be made through the Trust Fund provided for in article 79’.23 When called upon by the Chamber (which has become the consistent practice of Chambers in all reparations proceedings before the ICC), the Trust Fund first assesses what resources it has at its disposition (for the largest part voluntary contributions, but its funds could also include any property and proceeds from the convicted person) and then proposes to the Chamber how to apply the available funds in its implementation plan.24

ICC-01/12-01/15-236. For Lubanga, see The Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber II, Rectificatif de la «Décision fixant le montant des réparations auxquelles Thomas Lubanga Dyilo est tenu», ICC-01/04-01/06-3379-Red-Corr, 21 December 2017, paras 293 et seq., referring also to its Decision of 13 July 2017, ICC-01/04-01/06-3338-tENG, para 11. 18 Rome Statute, above n 4, Article 79(1) (emphasis added). 19 ICC ASP, Establishment of a fund for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims, 9 September 2002, Resolution ICC-ASP/1/Res.6. 20 ICC ASP, Regulations of the Trust Fund for Victims, Resolution, Resolution ICC-ASP/4/Res.3 (ICC Regulations), Regulation 50(a). https://www.icc-cpi.int/NR/rdonlyres/0CE5967F-EADC44C9-8CCA-7A7E9AC89C30/140126/ICCASP432Res3_English.pdf. Accessed 7 January 2019. 21 Pursuant to ICC Rules, above n 13, Rule 98(2)-(4). 22 ICC Regulations, above n 20, Regulation 50(b). 23 This is in particular – but not necessarily – so when ‘the number of the victims and the scope, forms and modalities of reparations makes a collective award more appropriate.’ Rome Statute, above n 4, Article 75(2); ICC Rules, above n 13, Rule 98(3). 24 ICC Regulations, above n 20, Regulations 43-44. When drafting an implementation plan, the Trust Fund takes into account, inter alia, ‘the nature of the crimes, the particular injuries to the victims and the nature of the evidence to support such injuries, as well as the size and location of the beneficiary group’; the plan also outlines the suggested methods for implementation, ibid., Regulations 54, 55, 69.

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Contrary to victim participation frameworks at hybrid courts, their reparation regimes are much less developed, differ in many fundamental aspects and, importantly, have generated little to no jurisprudence beyond the ICC. Questions range from the scope of reparations over the kind of reparations (material redress v. symbolic reparations) to the question where to actually claim reparations from (the convict, a trust fund for victims, and/or relevant State compensation proceedings). Other than for the aspect of retributive justice through participation in the proceedings, there would seem to be more reticence by the creators of hybrid courts to ascribe to victims the role of potential beneficiaries of reparative justice through an international criminal justice mechanism. A fundamental driver in this equation certainly is the high potential of frustration since the gap between harm/damage and available funds may be impossible to bridge. This point shall be elaborated on further below.

8.2.2

Select Hybrid Courts’ Reparation Regimes

In the following, an exemplary set of currently operating hybrid internationalised criminal court regimes shall be briefly touched upon regarding their relevant provisions and frameworks regarding reparations for victims of crimes subject to these courts’ jurisdictions. The STL25 is an internationalised ad hoc tribunal that was set up to try the alleged perpetrators of a terrorist attack on the former prime minister of Lebanon, Rafik Hariri.26 The STL Statute recognises the institute of compensation to victims.27 Accordingly, the STL may identify victims who have suffered harm as a result of the convict’s crimes and submit this information to national authorities so that a victim (or persons claiming through the victim) ‘may bring an action in a national court or other competent body to obtain compensation’.28 In other words, the STL framework will not make any determination regarding any individual claims for compensation and other forms of remedy. It will not issue an order as to the convict’s liability either. Interestingly, the Statute avoids the term ‘reparation’ and uses ‘compensation’ instead, a term known and used in national compensation 25

The STL was established by United Nations Security Council Resolution 1757 of 30 May 2007 following an Agreement between the United Nations and the Lebanese Republic pursuant to Security Council Resolution 1664 (2006) of 29 March 2006; see UNSC 2007 as well as UNSC, Statute of the Special Tribunal for Lebanon, Attachment to Resolution 1757, UN Doc. S/RES/ 1757 (STL Statute). https://www.stl-tsl.org/en/documents/statute-of-the-tribunal/223-statute-ofthe-special-tribunal-for-lebanon. Accessed 7 January 2019. 26 The STL applies provisions of the Lebanese Criminal Code, including the prosecution and punishment of acts of terrorism and crimes and offences against life and personal integrity. 27 STL Statute, above n 25, Article 25. 28 Ibid., Article 25(3). For the purpose of reparations in national proceedings, ibid., Article 25(4) is to be considered as final and binding for national authorities. See also STL, Rules of Procedures and Evidence (STL Rules), Rule 86(G). https://www.stl-tsl.org/images/RPE/20140403_STL-BD2009-01-Rev-6-Corr-1_EN.pdf. Accessed 7 January 2019.

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programmes. Yet, victim claimants have to have suffered harm from one of the crimes subject to criminal conviction, i.e., the logic of Article 75 of the ICC Statute is followed. The ECCC were created by way of an international agreement to try international crimes committed during the Khmer Rouge regime in the 1970s in Democratic Kampuchea.29 At the ECCC, victims are participating in proceedings as ‘Civil Parties’. They are vested with the right to seek collective and moral reparations in case of a conviction.30 Any monetary payments to Civil Parties are explicitly excluded by the Internal Rules.31 One form of the aforesaid moral reparations may be publication of the judgment in appropriate media, or the funding of a non-profit activity or service to the benefit of victims.32 In addition, the ECCC’s Internal Rules ascribe an additional competence to the Registry’s Victim Support Section to develop ‘non-judicial programs and measures addressing the broader interests of victims. Such programs may, where appropriate, be developed and implemented in collaboration with governmental and non-governmental organisations external to the ECCC.’33 This may include exhibitions, discussion fora on developments regarding reparations in ECCC proceedings, workshops and radio programmes.34 In addition, the ECCC Internal Rules explicitly foresee that reparation awards can only be issued where sufficient ‘external funding’ can be secured and proven by victim counsel.35 Further, the ECCC’s Supreme Court Chamber clarified that the ‘possibility to bring the civil action before civil courts, envisaged under domestic law’, is not precluded for Civil Parties before the ECCC.36 In other words, while not making any statutory provision as to the legal value of recognised victim status in an ECCC judgment before domestic courts, the

29 The ECCC were established through an agreement between the Cambodian government and the United Nations, to try the most responsible perpetrators for alleged crimes committed between 17 April 1975 and 6 January 1979 during the leadership of the Khmer Rouge in Democratic Kampuchea. See the tribunal’s official website: https://www.eccc.gov.kh/en/introduction-eccc. Accessed 7 January 2019; see also Ambach 2006. 30 Pursuant to ECCC, Internal Rules (ECCC Internal Rules), Rule 23quinquies. https://www.eccc. gov.kh/en/document/legal/internal-rules. Accessed 7 January 2019, such collective and moral reparations need to ‘acknowledge the harm suffered by Civil Parties as a result of the commission of the crimes for which an Accused is convicted and … provide benefits to the Civil Parties which address this harm.’ See Ibid., Rules 23(b), 23quinquies(1) and (2). 31 Ibid., Rule 23quinquies(2). 32 Ibid., Rule 23(11), (12); see also ECCC, The Prosecutor v. KAING Guek Eav, Direction on Proceedings Relevant to Reparations and on the Filing of Final Written Submissions, 27 August 2009, Case No. 001/18-07-2007-ECCC/TC, E-159. See also ECCC Internal Rules, above n 30, Rule 101(6)(g). 33 ECCC Internal Rules, above n 30, Rule 12bis(4). 34 See relevant news clips on the VSS’s website: https://www.eccc.gov.kh/en/organs/victimssupport-section. Accessed 7 January 2019. 35 ECCC Internal Rules, above n 30, Rule 23quinquies(3)(b). 36 ECCC, The Prosecutor v. KAING Guek Eav, Judgment, 3 February 2012, Case No. 001/ 18-07-2007-ECCC/SC, case file F-28, para 643.

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ECCC also foresees victims’ option to claim compensation for the harm suffered from crimes that were dealt with before the ECCC. The KSC are an international unit embedded into the national court system of Kosovo.37 They have jurisdiction over crimes against humanity, war crimes and other crimes under Kosovo law committed between 1 January 1998 and 31 December 2000.38 For the KSC, the trial judgment may ‘include a decision on the scope and extent of any damage, loss and injury to, or in respect of, Victims and will state the principles on which it is acting’,39 comparable to the ICC40 and the ECCC.41 As at the ICC, where the KSC issues a guilty verdict, it may make its ‘Reparation Order’42 directly against that accused specifying appropriate reparation to, or in respect of, victims collectively or individually.43 Akin to the ICC logic, reparations have to come ‘from an accused’,44 provided the guilt is established. The KSC framework even provides for the option of a separate ‘reparation phase’ of proceedings.45 Yet, despite heavily resembling the inclusive reparations framework of the ICC, the KSC does not provide for any other funding source for awards than the convict’s means or indeed national courts and compensation programmes.46 In order to enable victims to (also) seek reparations through relevant domestic civil litigation, a certified copy of the judgment as well as an indication of the damage caused to the victims may be transmitted, upon application of victims’ counsel, to the competent authorities of any State (n.b., not just the national system of Kosovo!), or directly to the victims affected.47 It remains unclear, however, what the legal value of such a document will be in third country legal systems.

37 The KSC were established following an agreement between the President of Kosovo and the High Representative of the European Union for Foreign Affairs and Security Policy in 2014; see the Exchange of Letters: https://www.scp-ks.org/en/documents/kosovo-law-ratification-exchangeletters-23-apr-2014. Accessed 7 January 2019; regarding the KSC’s integration into the Kosovo judicial system, see Kosovo, Law on Specialist Chambers and Specialist Prosecutors Office, Law No.05/L-053, Articles 1(2), 3(1) (Kosovo Law). https://www.scp-ks.org/en/documents/lawspecialist-chambers-and-specialist-prosecutors-office-3-aug-2015. Accessed 7 January 2019. 38 The temporal/subject-matter jurisdiction relates to allegations reported in Council of Europe Parliamentary Assembly 2011. 39 Kosovo Law, above n 37, Article 22(7). 40 Rome Statute, above n 4, Article 75. 41 ECCC Internal Rules, above n 30, Rule 101(6)(g). 42 Kosovo Law, above n 37, Article 44(6), comparable to Rome Statute, above n 4, Article 75(2). 43 Kosovo Law, above n 37, Article 22(8). Pursuant to KSC Rules, above n 13, Rule 168, the chamber may appoint experts to assist in determining the scope of any damage and suggest options of appropriate – individual or collective – reparations; this is similar to the relevant provision of ICC Rules, above n 13, Rule 97(2). 44 Kosovo Law, above n 37, Article 22(3). 45 Ibid., Article 22(7). 46 ‘Where appropriate, the [KSC] may refer the Victims to civil litigation in the other courts of Kosovo’, ibid., Article 22(9); ibid., Article 22(10). 47 Ibid., Article 22(10); KSC Rules, above n 13, Rule 167.

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The Extraordinary African Chambers were created pursuant to an agreement between Senegal and the African Union in February 2013 to prosecute the ‘person or persons’ most responsible for international crimes committed in Chad during former Chadian President Hissein Habré’s time in office.48 The EAC’s statute provides subject-matter jurisdiction over the crimes of genocide, crimes against humanity, war crimes and torture. The trial began on 20 July 2015 and ended on 11 February 2016 with a conviction and sentence for Habré to spend the rest of his life in prison.49 On 27 April 2017, an appeals court confirmed the verdict and ordered Habré to pay approximately 123 million euros in victim compensation.50 More than 4,000 victims were permitted to participate in proceedings as civil parties. The EAC Statute provides that reparation measures awarded by the chambers are restitution, compensation and rehabilitation.51 Importantly, the statute also provides that ‘they are open to all victims, individually or collectively, whether or not they participated in the proceedings before the Extraordinary African Chambers’.52 This statutory provision stipulates that participation at trial is not a necessary precondition for reparations. While the ICC framework operates in a similar fashion, it is less explicit in expressing that victim participation and reparations are indeed separate, independent rights of victims. As the only court after the ICC, the EAC created a trust fund tasked with (a) raising relevant funds; and (b) disbursing awards to victims. The Special Court for the Central African Republic53 was created through an agreement of the Central African leadership with the UN Mission for the Central African Republic.54 Article 40(2) of the agreement establishes a civil party regime at the SCC, albeit without further elaborating. For the SCC, the applicable national code of criminal procedure stipulates that reparation measures can be sought through civil action claims before national courts.55 It is being discussed to establish a trust fund for the benefit of victims of crimes adjudicated by the SCC.56

48

The exact temporary scope is between 7 June 1982 and 1 December 1990. See Human Rights Watch 2014. 49 See Habré, above n 6. For further background information, see Human Rights Watch 2016. 50 The EAC Appeals Chamber awarded 82 billion francs CFA (approximately US$154 million) to 7,396 named victims. See Human Rights Watch 2018. 51 EAC Statute, above n 6, Article 27(1). 52 Ibid., Article 28(2). 53 See http://www.cps-rca.cf/en/accueil. Accessed 7 January 2019. 54 Central African Republic, Loi Organique No 15.003 portant creation, organisation et fonctionnement de la cour penale special, 3 June 2015. MINUSCA news, Signature d’un accord relatif à l’opérationnalisation de la Cour pénale spéciale de la RCA, 26 August 2016. https://minusca. unmissions.org/signature-d%E2%80%99un-accord-relatif-%C3%A0-lop%C3%A9rationnalisationde-la-cour-p%C3%A9nale-sp%C3%A9ciale-de-la-rca. Accessed 7 January 2019. 55 Central African Republic, Loi N°10.002, 6 January 2010, Article 2. 56 Regarding the potential outline of such a trust fund, see infra.

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Challenges

From this cursory overview of the above hybrid courts it is apparent that there is a landscape of different reparation frameworks. The STL refers to national courts for any compensation and does not even foresee a reparations order;57 the ECCC does provide for the issuance of an order in case of a conviction, but stops short of any material reparations for individual victims; and the KSC also provides for a reparations order (in addition to referring to the possibility of compensation claims before domestic courts); but neither of the three contemplate a trust fund where the convicted person has no funds to pay for a reparation award.58 These different regimes show that while elements of the ICC framework have been replicated to varying degrees, there is no common trend emerging (yet) regarding a specific scope or procedure. In addition, the in-built limitations of existing reparation frameworks point towards a fundamental – common – challenge, namely the question of funding. Where a court suggests through its governing texts that victims may benefit from reparations at the end of the process, the question of availability of funds needs to be contemplated in the same manner. Experience from the UN ad hoc tribunals as well as the ICC and other hybrid courts has demonstrated that in most cases, a person convicted before an international(ised) court after many years of judicial proceedings will have no more funds available to fund any reparation awards to victims. The ICC and the EAC are in this respect pioneers in that they both operate in conjunction with a trust fund for victims. Yet, in terms of financial capacity, the ICC is playing in a different league, with a budget of over 147 million Euros59 and six field offices in different countries providing relevant logistical assistance to the Trust Fund as necessary, and a Trust Fund with a Secretariat funded through assessed contributions of ICC States Parties amounting to a yearly budget of 2.5 million Euros only in 2018.60 While the ICC has time to test and develop programmes, hybrid courts usually do not since they are created ad hoc to fit one specific context. In addition, they are often time-pressed, and the funding philosophy will be much more restrictive and short-termed than for the ICC. An interesting problem may arise where a (hybrid) court’s case ends in an acquittal. International(ised) trials last for years, as the experience of not only the ad hoc UN tribunals and the ICC, but also of hybrid courts like the SCSL, ECCC or STL has shown. Victim participants may be in the thousands and where their long

57

STL Statute, above n 25, Article 25(3); STL Rules, above n 28, 2009, Rule 86(G). For the KSC, see KSC Rules, above n 13, Rule 168(1). 59 See ICC ASP 2017 (approving for the AICC’s annual budget 2018 appropriations totalling €147,431,500). 60 See Approved Programme Budget for 2018 of the International Criminal Court, 14 March 2018, ICC-ASP/16/10, table 1, p. 6. The proposed secretarial budget for 2019 is at just over 4 million Euros, see ICC-ASP/17/10. 58

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wait for tangible redress is being frustrated with a perfectly legitimate yet catastrophic outcome, even the most inclusive outreach campaign will be set for failure in their attempts to explain to victims that an acquittal is a possible outcome of any criminal trial. At the ad hoc UN tribunals, the occasional acquittal could be countered with a high conviction rate in the total of cases heard. In addition, since these tribunals did not feature reparations, expectation management was not facing such a high burden. At the ICC, the Trust Fund stepped in just after the acquittal in the Bemba case in the summer of 2018 and indicated that it intends to provide some redress to victims (including the more than five thousand victims admitted as such in the Bemba proceedings) through its assistance mandate. It is hoped that beginning in the latter half of 2019, victims will thus be able to receive some redress for the harm they suffered (as recognised by the Trial Chamber) despite the Bemba proceedings having ended in an acquittal. Yet, the establishment of such a trust fund and, importantly, the availability of funds for such assistance operations will remain an exception for hybrid courts. The challenge of funding leads to another overarching topic that unites all hybrid courts in their different outlines of redress mechanisms, alongside the ICC: how to render reparations meaningful? Great expectations risk to be raised among affected communities where a hybrid court’s statute only so much as contains a provision on reparations, compensation or any other terminology that points towards redress for victims other than the – potential – satisfaction to see the accused convicted and punished. Reparations represent a novel feature in the international(ised) criminal court landscape and have much more impact amongst the affected communities than what many legal professionals, policy-makers, State representatives and diplomats may expect when creating a hybrid court’s legal framework. The mere fact that a court refers to national compensation possibilities before domestic civil courts may be a source of frustration where such a mechanism remains ink on paper because salient claims are not responded to by national courts. Similar effects can be expected where national compensation programmes are envisaged at the beginning of a court’s life span but never materialise despite the best intentions of lawmakers at the time of agreement. Where a court fails to fulfil the expectations of its major local constituency, and indeed its stakeholders where the court is embedded in a national court system, it may thus be deprived of its local legitimacy altogether and be bound to fail even if it secures a high conviction rate. Another key success factor in the context of any victim participation/reparations regime of an international(ised) court is a far-sighted strategy on how to manage expectations. There needs to be a coherent long-term strategy how to reach out to victims continuously and explain potential benefits and options for redress, but also how to underline potential spoilers such as trial duration, the legitimate option of an acquittal at the end of a judicial process and finally the fact that reparations, even if provided for in the relevant statute, may not materialise due to a lack of resources.

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Conclusion

It transpires from the brief analysis in this contribution that there currently exists a rather wide range of different options how hybrid courts can tackle – and are testing – the viability of a functioning reparations framework. Approaches reach from inclusive frameworks akin to the ICC reparations regime to more cautious provisions that merely refer to – potential – national compensation schemes in the host State or indeed third States. It is difficult if not impossible at present to define one ‘preferable’ system, partly due to situational specifics, but partly also due to the fact that we have seen reparations so far only before the ECCC and the ICC, and regarding the ICC the framework is still being tested and different approaches are being followed. It is thus too early to tell whether the ICC system can serve as a yardstick beyond the ‘architectural basics’ pertaining to relevant definitions of victims, procedural participatory rights of victims’ counsel and general principles pertaining to reparations as stipulated in Lubanga and ensuing cases. However, what is fundamental to acknowledge is that no matter which system is established, the framework needs to be sustainable from a long-term perspective. Where a reparations regime remains lip service and lacks meaningfulness to victims, the system risks to only re-traumatise the latter, and the legitimacy of the entire court is at stake.

References Ambach P (2006) Die ‘Extraordinary Chambers in the Courts of Cambodia’ - endlich Gerechtigkeit?: das lange Tauziehen zwischen den Vereinten Nationen und Kambodscha um wirkungsvolle internationale Strafgerichtsbarkeit [The ‘Extraordinary Chambers in the Courts of Cambodia’ – justice after all?: The long tug of war between the United Nations and Cambodia for an effective international criminal jurisdiction]. In: Informationsschriften Humanitäres Völkerrecht 19(3):168–178 Council of Europe Parliamentary Assembly (2011) Inhuman treatment of people and illicit trafficking in human organs in Kosovo Doc 12462. http://assembly.coe.int/nw/xml/XRef/X2HXref-ViewPDF.asp?FileID=12608&lang=en. Accessed 7 January 2019 Donat-Cattin D (2016) Article 68. In: Triffterer O, Ambos K (eds) The Rome Statute of the International Criminal Court – A commentary, 3rd edn. Beck, Munich, pp 1681–1711 Human Rights Watch (2014) Senegal: New court to try Chad ex-dictator in Senegal. https://www. hrw.org/news/2012/08/22/senegal-new-court-try-chad-ex-dictator-senegal. Accessed 7 January 2019 Human Rights Watch (2016) Q&A: The case of Hissène Habré before the Extraordinary African Chambers in Senegal. https://www.hrw.org/news/2016/05/03/qa-case-hissene-habre-extraordinaryafrican-chambers-senegal#3. Accessed 7 January 2019 Human Rights Watch (2018) Hissène Habré case: Trust fund for victims. https://www.hrw.org/ news/2018/02/07/hissene-habre-case-trust-fund-victims. Accessed 7 January 2019 ICC ASP (2002) Establishment of a fund for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims, Resolution ICC-ASP/1/Res.6. https://asp.icccpi.int/iccdocs/asp_docs/Resolutions/ICC-ASP-ASP1-Res-06-ENG.pdf. Accessed 7 January 2019

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ICC ASP (2017) Resolution of the Assembly of States Parties on the proposed programme budget for 2018, the Working Capital Fund for 2018, the scale of assessment for the apportionment of expenses of the International Criminal Court, financing appropriations for 2018 and the Contingency Fund, Resolution ICC-ASP/16/Res.1. https://asp.icc-cpi.int/iccdocs/asp_docs/ Resolutions/ASP16/ICC-ASP-16-Res1-ENG.pdf. Accessed 7 January 2019 UNSC (1993) Resolution 827, UN Doc S/RES/827 UNSC (1994) Resolution 955, UN Doc S/RES/955 UNSC (2007) Resolution 1757, UN Doc S/RES/1757

Philipp Ambach is Chief of the Victims Participation and Reparations Section in the Registry of the International Criminal Court. Previously, he worked in the Presidency of the ICC as the President’s Special Assistant for more than five years until November 2016. Before that, for four years he held the position of associate legal officer in the Appeals Chamber of the ICTY, ICTR, as well as in the Registry of the ICTY. On the domestic level, after finishing his Master’s degree in law at the Humboldt University of Berlin (Germany), he was accepted at the Cologne Public Prosecutor’s Office. He holds a doctor iuris in international criminal law from the Freie Universität Berlin.

Chapter 9

The International Criminal Court and Substantive Criminal Law: Progressive Development or Cautious Reluctance? Volker Nerlich

Abstract The question of whether the International Criminal Court’s approach towards substantive criminal law has been one of progressive development or of cautious reluctance may seem peculiar at first sight: the principle of strict construction of criminal law would seemingly stand in the way of any ‘progressive development’ of the ICC’s substantive criminal law through jurisprudence, while ‘cautious reluctance’ is also not something that one would usually expect from a criminal court. Nevertheless, an analysis of the ICC’s first jurisprudence discloses that there are indeed areas in which the ICC has adopted a ‘cautious’ approach, following closely the jurisprudence of the ad hoc international criminal tribunals, while in other areas, the jurisprudence has identified new, progressive approaches. What is clear, however, is that the Court has generally been interpreting the legal definitions of the crimes under its jurisdiction strictly and closely to the text, in keeping with the principle of strict construction of criminal law, as enshrined in Article 22 of the Rome Statute.







Keywords International Criminal Court Rome Statute Customary international law Progressive development Substantive criminal law Joint criminal enterprise










The question of whether the International Criminal Court’s (ICC’s) approach towards substantive criminal law has been one of progressive development or of cautious reluctance may seem peculiar at first sight: the principle of strict construction of criminal law, a human right that is also reflected in Article 22 of the Rome Statute, would seemingly stand in the way of any ‘progressive development’ of the ICC’s substantive criminal law through jurisprudence, while ‘cautious reluctance’ is also not something that one would usually expect from a criminal court.

V. Nerlich (&) International Criminal Court, The Hague, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 G. Werle and A. Zimmermann (eds.), The International Criminal Court in Turbulent Times, International Criminal Justice Series 23, https://doi.org/10.1007/978-94-6265-303-0_9

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But, of course, in the field of international criminal law, things are not as simple as that. The jurisprudence of the ad hoc international criminal tribunals has undoubtedly ‘progressively developed’ substantive international criminal law. To mention but a few examples, the International Criminal Tribunal for the former Yugoslavia (ICTY) found in 1995 in the Tadić case that the notion of war crimes was applicable to violations of humanitarian law in non-international armed conflict,1 despite a contemporaneous finding by the International Committee of the Red Cross that the notion of war crimes was limited to international armed conflicts.2 In the same case, the ICTY identified in 1999 ‘joint criminal enterprise’ as a mode of criminal liability under customary international law, which became one of the cornerstones of establishing liability at the ad hoc tribunals.3 Before that judgment, the term ‘joint criminal enterprise’ was not known in international criminal law. Similarly, the International Criminal Tribunal for Rwanda (ICTR) in its first case, the Akayesu case, defined the crime of rape in what one may call progressive manner and found that rape may be a means to commit the crime of genocide.4 Generally speaking, the early jurisprudence of the ICTY and ICTR was marked by decisions that set out broad legal principles and rules, even if this was not necessarily called for by the case before it.5 This was arguably required because of the relative novelty of the discipline of international criminal law and the low density of regulation in the statutes of the ad hoc tribunals. Thus, while the ad hoc tribunals – and in particular their appeals chambers – were often referring to post-World War II cases to ground their decisions, the jurisprudence of the ICTY and the ICTR has, without doubt, ‘progressively developed’ substantive international criminal law.6 At the same time as the ad hoc international criminal tribunals were shaping and developing the definitions of international crimes and modes of liability through their early jurisprudence, States were negotiating the statute of what should become the ICC. The approach to the Rome Statute differed significantly from that of the ad hoc tribunals: rather than contending themselves to setting out the Court’s

1 ICTY, The Prosecutor v. Dusko Tadić, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, IT-94-1, paras 65 et seq. 2 See Meron 1995, p. 559. 3 ICTY, The Prosecutor v. Dusko Tadić, Judgement, 15 July 1999, IT-94-1 (Tadić 1999), paras 185 et seq. 4 ICTR, The Prosecutor v. Jean-Paul Akayesu, Judgement, 2 September 1998, ICTR-96-4, para 731. 5 See Cassese 2008, p. 5, noting that ‘[g]iven the characteristics of the evolution of [International Criminal Law], it should not be surprising that even the recent addition of the sets of written rules referred to above has not proved sufficient to build a coherent legal system, as is shown by the heavy reliance by the newly established international courts upon customary rules or unwritten general principles’. It is of note that the author – who was also one of the most prominent judges of the ICTY – referred to the desire to build a coherent legal system. See also ibid., pp. 26–27 on the role of judicial decisions in the identification of the applicable law. 6 On the development of international criminal law by the ad hoc tribunals, see, for instance, Heinsch 2007; Robinson and MacNeil 2016, pp. 191–211; Swart 2010, pp. 459–486.

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jurisdiction in relatively general terms, as was the case in the ICTY and ICTR Statutes, the definitions of crimes, modes of liability and other rules of substantive criminal law in the Rome Statute were detailed and specific, often adopted only after extensive negotiations.7 The definitions of crimes were further detailed in a subsidiary instrument, the Elements of Crimes. Thus, in the Rome Statute and the Elements of Crimes, certain important decisions regarding substantive criminal law with which the ad hoc tribunals had struggled were already made – for instance regarding war crimes in non-international armed conflict, the definitions of certain elements of crimes against humanity, etc. One might thus say that, while the ad hoc tribunals were progressively developing substantive international criminal law through their jurisprudence, for the ICC this happened through the adoption of the Rome Statute. Where does this leave us now with regard to the jurisprudence of the ICC since the first decisions were issued in 2004? Has it contributed to the progressive development of substantive international criminal law? Or has the Court been reluctant in that regard? The amount of case law the ICC has produced so far that deals with substantive international criminal law is limited. Notably, the definitions of only relatively few crimes have been addressed in trial or appeal judgments. They include: – In the Lubanga case, the definition of the war crime of enlisting, conscripting and using child soldiers was explored – here, both the trial and the appeals judgments have clarified important aspects of this crime.8 – In the Katanga case, the definitions of murder, rape and sexual slavery as war crimes and crimes against humanity were addressed, as well as the definitions of the war crimes of pillaging, destruction of enemy property, attacks against the civilian population and enlisting conscripting and using child soldiers.9 However, as neither party appealed the conviction of Katanga, the Trial Chamber’s findings on these definitions were not subjected to appellate scrutiny. – In the Bemba case, the Trial Chamber analysed the definitions of the war crimes and crimes against humanity of murder and rape as well as the definition of the war crime of pillage.10 The Appeals Chamber’s judgment, which reversed Bemba’s conviction, did not address the definitions of these crimes.11 7

See, e.g., Kirsch and Robinson 2001, pp. 78 et seq. ICC, The Prosecutor v. Thomas Lubanga Dyilo, Judgment pursuant to Article 74 of the Statute, 14 March 2012, ICC-01/04-01/06-2842 (Lubanga TC Judgment); Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction, 1 December 2014, ICC-01/04-01/06-3121-Red (Lubanga AC Judgment). 9 ICC, The Prosecutor v. Germain Katanga, Judgment pursuant to Article 74 of the Statute, 7 March 2014, ICC-01/04-01/07-3436-tENG (Katanga TC Judgment). 10 ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Judgment pursuant to Article 74 of the Statute, 21.03.2016, ICC-01/05-01/08-3343 (Bemba TC Judgment). 11 See ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s ‘Judgment pursuant to Article 74 of the Statute’, 8 June 2018, ICC-01/05-01/08-3636-Red. 8

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– In the Al Mahdi case, the Trial Chamber addressed the definition of the war crime of attacking protected cultural objects under Article 8(2)(e)(xii) of the Statute;12 the judgment was not appealed. – In the Ntaganda case, the Trial Chamber addressed in an interlocutory decision on the jurisdiction of the Court the interesting question of whether the ICC has jurisdiction over rape and sexual slavery if the victims belonged to the same armed group as the perpetrators of the alleged crimes; the Appeals Chamber also addressed this question in its judgment on an interlocutory appeal.13 In addition to these and other decisions of the Trial Chambers and the Appeals Chamber, the Pre-Trial Chambers of the Court have issued several decisions on, for example, applications for warrants of arrest or on the confirmation of charges that contain sometimes very detailed analyses of the definitions of crimes.14 If one analyses the jurisprudence on the definition of crimes under international law that the ICC has produced so far, it is possible to identify a characteristic: the apparent desire not to diverge unnecessarily from the case law of the ad hoc tribunals if this case law concerned the same crimes as those before the ICC. Indeed, the jurisprudence of the ICC on the definitions of crimes is replete with references to judgments and decisions of the ICTY and ICTR, as well as of internationalised criminal tribunals such as the Special Court for Sierra Leone (SCSL).15 This case law is often simply adopted or referenced in footnotes without much, or indeed any, further discussion.16 The areas of substantive criminal law that have caused most controversy relate to crimes the definitions of which in the Rome Statute are different from those in the ICTY and ICTR Statutes or jurisprudence. Notably, Article 7(2) of the Rome Statute contains, as part of the definition of the ‘attack against a civilian population’ as part of the contextual element of crimes against humanity, a reference to acts 12 ICC, The Prosecutor v. Ahmad Al Faqi Al Mahdi, Judgment and Sentence, 27 September 2016, ICC-01/12-01/15-171. 13 ICC, The Prosecutor v. Bosco Ntaganda, Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9, 4 January 2017, ICC-01/04-02/06-1707; Judgment on the appeal of Mr Ntaganda against the ‘Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9’, 15.06.2017, ICC-01/04-02/06-1962 (Ntaganda AC Decision). 14 See, e.g., ICC, The Prosecutor v. Thomas Lubanga Dyilo, Public Redacted Version of Decision on the Prosecutor’s Application for a warrant of arrest, Article 58, 10 February 2006, ICC-01/ 04-01/06-1-Corr-Red; Decision on the confirmation of charges, 29 January 2007, ICC-01/04-01/ 06-803-tEN (Lubanga Confirmation Decision); The Prosecutor v. Jean-Pierre Bemba Gombo, Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo, 10 June 2008, ICC-01/05-01/08-14-tENG; Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15.06.2009, ICC-01/05-01/08-424 (Bemba Confirmation Decision). 15 On the role of precedent from the ad hoc tribunals for the ICC, see Nerlich 2009. 16 See, e.g., Lubanga TC Judgment, above n 9, para 609, n 1781; Katanga TC Judgment, above n 10, paras 765 et seq., n 1813, 1814, 1826, 1827, 1839, 1840, etc.; Bemba TC Judgment, above n 11, paras 88 et seq., n 247, 249, 254, 255.

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being committed ‘pursuant to or in furtherance of a State or organizational policy to commit such attack’. This ‘policy requirement’ was found by the ICTY Appeals Chamber not to be part of the legal elements of crimes against humanity17 – despite it having been included in the Rome Statute. At the ICC, the interpretation of the policy element was a major bone of contention in the Kenya cases, with a strong dissenting opinion by Judge Hans-Peter Kaul as to how strictly this element should be interpreted.18 The question also sparked an intense academic debate.19 It is arguably no surprise that such controversy should have arisen in relation to an issue that diverges from the jurisprudence of the ad hoc tribunals. Another instance that sheds some light on the ‘progressiveness’ or otherwise of the ICC’s jurisprudence in areas not illuminated by the case law of the ICTY and ICTR (though there was some case law from the SCSL) is the Court’s interpretation of the war crime of active use of child soldiers in the Lubanga case. The Lubanga Trial Chamber had interpreted the term ‘active use in hostilities’ as including any support to combatants provided by children that exposed them to real danger as a potential target.20 The Appeals Chamber found this approach to be incorrect and instead adopted a definition that was closer to the text of the definition of the crime, as set out in the Statute, requiring that there must be ‘a sufficiently close relationship between the activity of the child and the hostilities’.21 On that basis, it found that, contrary to the Trial Chamber’s finding, the formation of a military unit comprising principally children under the age of 15 years did not amount to their ‘active use in hostilities’ and that the Trial Chamber therefore erred in this regard.22 Thus, the Appeals Chamber’s interpretation appears to have remained at the more ‘cautious’ end of the scale, highlighting the need for an interpretation that does not inappropriately expand the textual and contextual meaning of the elements of the crime. Another interesting example relating to the interpretation of substantive criminal law by the Chambers of the ICC is the above-mentioned Ntaganda case. The issue that arose was whether the war crimes of rape and sexual slavery could potentially apply to situations where the victims of these crimes were members of the same armed force or group as the perpetrators. The argument that had been put forward by the defence for Ntaganda was that international humanitarian law – and therefore the law of war crimes – generally protected only enemy combatants and civilians,

17 See ICTY, The Prosecutor v. Kunarac et al., Judgement, 12 June 2002, IT-96-23 & 23/1, para 98. Critical of this jurisprudence: Schabas 2008. 18 ICC, The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, 8 March 2011, ICC-01/09-01/11-1; Dissenting Opinion by Judge Hans-Peter Kaul to Pre-Trial Chamber II’s ‘Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang’, 15 March 2011, ICC-01/09-01/11-2. 19 See, e.g., Jalloh 2013; Kress 2010; Rodenhäuser 2014; Werle and Burghardt 2012. 20 Lubanga TC Judgment, above n 9, paras 621 et seq. 21 Lubanga AC Judgment, above n 9, paras 329 et seq. 22 Ibid., para 338.

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and that combatants from the ‘same side’ were therefore excluded from its reach. In agreeing with the Trial Chamber’s holding that, contrary to the defence’s submission, victims of the war crimes of rape and sexual violence could indeed be members of the same armed force or group as the perpetrators, the Appeals Chamber carefully examined and interpreted the Statute, including its drafting history, as well as the relevant rules of international humanitarian law.23 While the Appeals Chamber’s determination may, on its face, appear ‘progressive’, the judgment reflects a rather ‘cautious’ approach to the interpretation of the substantive crimes, in keeping with the principle of strict construction: the starting point – and indeed the end point – of the Appeals Chamber’s analysis was the Rome Statute’s text, interpreted in the context of relevant rules and principles of international humanitarian law. While the ICC has thus mostly followed the ICTY and ICTR jurisprudence in relation to the definitions of the substantive crimes and adopted ‘cautious’ interpretations when that jurisprudence provided no guidance, the picture is somewhat different when it comes to modes of liability. The Court’s jurisprudence in this regard is rich and relates to various forms of participation in the commission of crimes, as well as in an analysis of superior responsibility under Article 28 of the Rome Statute.24 Again, not only the Trial Chambers and the Appeals Chamber have contributed to this jurisprudence, but also the Pre-Trial Chambers. Generally, this jurisprudence tended not to follow the jurisprudence of the ad hoc tribunals as regards modes of liability as closely as it did in relation to the definitions of crimes. This should not come as a big surprise because the relevant provisions in the Rome Statute – Articles 25(3) and 28 – differ significantly from the pertinent provisions in the ICTY and ICTR Statutes.25 The most pronounced departure from the jurisprudence of the ad hoc tribunals related to the above-mentioned ‘joint criminal enterprise’ doctrine. At least theoretically, it would have been possible for the ICC to adopt this jurisprudence as a form of ‘commission’ liability under Article 25(3)(a) of the Statute or to consider it as included under Article 25(3)(d). However, instead of incorporating the ‘joint criminal enterprise’ approach into the Rome Statute, the early jurisprudence of the Pre-Trial and Trial Chambers expressly rejected it and replaced it with another approach, the ‘control over the crime’ theory that had initially been developed by the German academic Claus Roxin.26 This latter approach was eventually confirmed by the Appeals Chamber in the Lubanga case. The Appeals Chamber analysed the overall 23

Ntaganda AC Decision, above n 14, paras 46 et seq. See, e.g., Lubanga Confirmation Decision, above n 15, paras 317 et seq.; Lubanga TC Judgment, above n 9, paras 917 et seq.; Lubanga AC Judgment, above n 9, paras 434 et seq.; Katanga TC Judgment, above n 10, paras 1366 et seq., and 1616 et seq.; Bemba Confirmation Decision, above n 15, paras 404 et seq.; Bemba TC Judgment, above n 11, paras 170 et seq. On this jurisprudence, see, for example, Jessberger and Geneuss 2008; van der Wilt 2009; Werle 2007. 25 See UNSC 1993, Article 7 and UNSC 1994, Article 6. 26 See Lubanga Confirmation Decision, above n 15, paras 317 et seq.; Lubanga TC Judgment, above n 9, paras 917 et seq. 24

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interpretation of Article 25(3) of the Statute and the interrelationship between modes of liability stipulated therein in quite some detail. In contrast, the adoption of the ‘control over the crime’ theory was explained in relatively few words: The Appeals Chamber merely stated that it amounted to ‘a convincing and adequate approach to distinguish co-perpetration from accessorial liability because it assesses the role of the person in question vis-à-vis the crime’.27 What led the ICC to reject the approach of the ICTY and ICTR in relation to modes of liability and develop its case law into a different direction is difficult to determine. It must be noted, however, that by the time the ICC applied Article 25(3) of the Rome Statute for the first time, the notion of ‘joint criminal enterprise’ had come under severe criticism in academic literature.28 This may have contributed to the ICC emancipating itself from the ad hoc tribunals’ jurisprudence on modes of liability and adopting a different approach.29 To conclude, it is difficult to give a comprehensive answer to the question of whether the ICC has adopted, in respect of substantive criminal law, an approach of ‘progressive development’ or one of ‘cautious reluctance’. As so often in the law, the correct answer is probably, ‘it depends’. What is clear, however, is that the Court has generally been interpreting the legal definitions of the crimes under its jurisdiction strictly and closely to the text, in keeping with the principle of strict construction of criminal law, as enshrined in Article 22 of the Rome Statute. The detailed description of crimes in the Rome Statute and in the Elements of Crimes has thus effectively limited the room for much ‘progressive development’ through jurisprudence. As a result, while the Court’s jurisprudence over the first 16 years of its existence is impressive, there has not been any Tadić moment so far, no

27

Lubanga AC Judgment, above n 9, para 469. See, e.g., Badar 2006; Danner and Martinez 2005; van der Wilt 2007; van Sliedregt 2007. Note that the Extraordinary Chambers in the Courts of Cambodia rejected the extended form of ‘joint criminal enterprise’ (‘JCE III’, see Tadić 1999, above n 4, paras 204 et seq.), finding that there was an insufficient basis in customary law for it. See ECCC, Case of Nuon Chea and Khieu Samphan, Appeal Judgement, 23 November 2016, Case No 002/19-09-2007-ECCC/SC, paras 768 et seq.; ECCC, Case of Ieng Sary et al., Decision on the Appeals against the Co-Investigating Judges Order on Joint Criminal Enterprise (JCE), 20 May 2010, Case No 002/19-09-2007-ECCC/OCIJ, paras 36 et seq. 29 It may also be noted in this context that the ICC was not only reluctant to follow the ad hoc tribunals’ approach regarding modes of liability: a similar trend can be observed, in particular in the early jurisprudence, in relation to procedural law. This is not only the case in areas where there is a clear difference in the procedural provisions applicable at the ICC on the one hand and at the ICTY and ICTR on the other hand. Even in relation to procedural issues that are not specifically regulated in the Court’s legal instruments, the ICC jurisprudence has often not followed the case law of the ad hoc tribunals – a prominent example of this being the early ICC jurisprudence on witness proofing. See ICC, The Prosecutor v. Thomas Lubanga Dyilo, Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, 30 November 2007, ICC-01/04-01/06. This decision sparked a lively scholarly debate. See, e.g., Karenmaker et al. 2008a; Ambos 2008; Karenmaker et al. 2008b; Jordash 2009; Jackson and Brunger 2015. It must be underlined that fragmentation is less problematic in the field of procedural law. See Nerlich 2013. 28

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judgment that fundamentally changed the way we think about substantive international criminal law. Perhaps the closest the Court has come to this is its jurisprudence on modes of liability, as well as the recent judgments in the Ntaganda case on potential victims of the war crimes of rape and sexual slavery. It might also be unrealistic to expect of the ICC jurisprudence another Tadić. The real game changer was, after all, the adoption of the Rome Statute 20 years ago.

References Ambos K (2008) Witness proofing at the International Criminal Court: A reply to Karenmaker, Taylor, and Pittman. Leiden Journal of International Law 21:911–916 Badar M E (2006) ‘Just convict everyone!’ – Joint perpetration: From Tadić to Stakić and back again. International Criminal Law Review 6:293–306 Cassese A (2008) International criminal law, 2nd edn. Oxford University Press, Oxford Danner A M, Martinez J (2005) Guilty associations: Joint criminal enterprise, command responsibility, and the development of international criminal law. California Law Review 93:75–169 Heinsch R (2007) Die Weiterentwicklung des humanitären Völkerrechts durch die Strafgerichtshöfe für das ehemalige Jugoslawien und Ruanda [The development of international humanitarian law through the International Criminal Tribunals for the former Yugoslavia and Rwanda]. Berliner Wissenschaftsverlag, Berlin Jackson J, Brunger Y (2015) Witness Preparation in the ICC: An Opportunity for Principled Pragmatism. Journal of International Criminal Justice 13:601–624 Jalloh C C (2013) What makes a crime against humanity a crime against humanity? American University International Law Review 28:381–441 Jessberger F, Geneuss J (2008) On the application of a theory of indirect perpetration in Al Bashir: German doctrine at The Hague? Journal of International Criminal Justice 6:853–869 Jordash W (2009) The practice of ‘witness proofing’ in international criminal tribunals: Why the International Criminal Court should prohibit the practice. Leiden Journal of International Law 22:501–523 Karenmaker R et al (2008a) Witness proofing in international criminal courts: A critical analysis of widening procedural divergence. Leiden Journal of International Law 21:682–698 Karenmaker R et al (2008b) Witness proofing in international tribunals: A response to Ambos. Leiden Journal of International Law 21:917–923 Kirsch P, Robinson D (2001) Reaching compromise at the Rome Conference. In: Cassese A et al (eds) The Rome Statute of the International Criminal Court, Volume I. Oxford University Press, Oxford, pp 67–91 Kress C (2010) 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. Leiden Journal of International Law 23:855–873 Meron T (1995) International criminalization of internal atrocities. American Journal of International Law 89:554–577 Nerlich V (2009) The status of ICTY and ICTR precedent in proceedings before the ICC. In: Stahn C, Sluiter G (eds) The emerging practice of the International Criminal Court. Martinus Nijhoff Publishers, Leiden, pp 305–325 Nerlich V (2013) Daring diversity – Why there is nothing wrong with ‘fragmentation’ in international criminal procedures. Leiden Journal of International Law 26:777–781 Robinson D, MacNeil G (2016) The Tribunals and the renaissance of international criminal law: Three themes. American Journal of International Law 110:191–211

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Rodenhäuser T (2014) Beyond state crimes: Non-state entities and crimes against humanity. Leiden Journal of International Law 27:913–928 Schabas W (2008) State policy as an element of international crimes. Journal of Criminal Law and Criminology 98:953–982 Swart M (2010) Judicial lawmaking at the ad hoc tribunals: The creative use of the sources of international law and ‘adventurous interpretation’. Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 70:459–486 UNSC (1993) Statute of the International Criminal Tribunal for the former Yugoslavia. http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf. Accessed 3 January 2019 UNSC (1994) Statute of the International Criminal Tribunal for Rwanda. http://legal.un.org/avl/ pdf/ha/ictr_EF.pdf. Accessed 3 January 2019 van Sliedregt E (2007) Joint Criminal Enterprise as a Pathway to Convicting Individuals for Genocide. Journal of International Criminal Justice 5:184–207 van der Wilt H (2007) Joint criminal enterprise: Possibilities and limitations. Journal of International Criminal Justice 5:91–108 van der Wilt H (2009) The continuous quest for proper modes of criminal responsibility. Journal of International Criminal Justice 7:307–314 Werle G (2007) Individual criminal responsibility in Article 25 ICC Statute. Journal of International Criminal Justice 5:953–975 Werle G, Burghardt B (2012) Do crimes against humanity require the participation of a state or a ‘state-like’ organization? Journal of International Criminal Justice 10:1151–1170

Volker Nerlich is a Legal Adviser at the International Criminal Court and honorary professor at the Humboldt University of Berlin. He holds a doctor iuris from Humboldt University of Berlin and an LL.M. from the University of the Western Cape. The views expressed are those of the author and cannot be attributed to the International Criminal Court.

Chapter 10

Activating the Crime of Aggression Amendments: A Look Ahead Leena Grover

Contents 10.1 Introduction...................................................................................................................... 10.2 The Court......................................................................................................................... 10.3 The Assembly of States Parties ...................................................................................... 10.4 States and Individuals...................................................................................................... 10.5 International Law............................................................................................................. 10.6 Conclusion ....................................................................................................................... References ..................................................................................................................................

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Abstract In the early hours of 15 December 2017 at the United Nations’ headquarters in New York, the Assembly of States Parties to the Rome Statute (ASP) decided to activate the crime of aggression amendments. With the aggression mandate in Article 5(2) of the Rome Statute fulfilled, this treaty is finally complete. States have managed to negotiate a definition of the crime of aggression with accompanying elements of crimes and interpretive understandings that can be applied by judges of the Court for the purpose of making findings of individual culpability. The Court’s jurisdiction over this crime has also been established and activated, making it the first permanent international court possessing such jurisdiction. The amendments are the product of negotiations that were open to all States At the workshop, ‘The ICC in Turbulent Times’, I was invited to debate with Harold Koh the significance of the activation decision, whether it represents a keystone or final straw for the Rome Statute of the International Criminal Court. This contribution grew out of that presentation. For their constructive feedback on my presentation, I sincerely thank Stefan Barriga, Harold Koh and Christian Wenaweser. For their helpful comments on this chapter, I am most grateful to Dapo Akande, Roger Clark and Claus Kreß. This chapter is written in my personal capacity and does not necessarily reflect the views of the Permanent Mission of Liechtenstein to the United Nations. L. Grover (&) Tilburg University, Tilburg, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 G. Werle and A. Zimmermann (eds.), The International Criminal Court in Turbulent Times, International Criminal Justice Series 23, https://doi.org/10.1007/978-94-6265-303-0_10

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and began in 1999. They are the product of decisions by States parties to the Rome Statute that were adopted by consensus. All of this suggests that activation of the aggression amendments in 2018 was a constitutional moment in the history of international criminal justice that invites critical reflection on the future. In this contribution, the potential implications of the aggression amendments for the Court, for the ASP, for individual States and their citizens, as well as for international law generally will briefly be considered.







Keywords International Criminal Court Rome Statute Crime of aggression Kampala amendments Vienna Convention Subsequent agreement




10.1







Introduction

In 1955, Judge Röling of the Far East Tribunal rightly stated that finding a generally acceptable definition of the crime of aggression ‘would be a remarkable and astonishing thing’.1 Fast forward to 2010 in Kampala, Uganda, and many Review Conference delegates privately shared this sentiment; it would be a huge feat to achieve agreement on a definition for the Rome Statute of the International Criminal Court, let alone conditions for the Court’s exercise of jurisdiction over this crime. But that’s exactly what happened when the Review Conference adopted by consensus a set of amendments to the Rome Statute. These amendments define the crime and the Court’s jurisdiction over it, stipulating that this jurisdiction will be exercised once thirty States ratify the amendments, which occurred in 2016, and the Assembly of States Parties to the Rome Statute (ASP) takes an activation decision after 1 January 2017.2 In the early hours of 15 December 2017 at the United Nations’ headquarters in New York, the ASP adopted this activation decision, which took effect on the twentieth anniversary of the Rome Statute’s adoption, 17 July 2018.3 With the aggression mandate in Article 5(2) of the Rome Statute fulfilled, this treaty is finally complete. States have managed to negotiate a definition of the crime of aggression with accompanying elements of crimes and interpretive understandings that can be applied by judges of the Court for the purpose of making findings of individual culpability. The Court’s jurisdiction over this crime has also been established and activated, making it the first permanent international court possessing such jurisdiction. The amendments are the product of negotiations that were open to all States and began in 1999. They are the product of decisions by States parties to the Rome

1 Röling 1955, p. 167. For an excellent summary of historic milestones leading up to activation of the Court’s jurisdiction over the crime of aggression, see also Kreß 2018. 2 ICC ASP, The Crime of Aggression, Resolution RC/Res.6, 11 June 2010. 3 ICC ASP, Activation of the Jurisdiction of the Court over the Crime of Aggression, Resolution ICC-ASP/16/Res.5, 14 December 2017 (Activation Decision).

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Statute that were adopted by consensus. All of this suggests that activation of the aggression amendments in 2018 was a constitutional moment in the history of international criminal justice that invites critical reflection on the future. In this contribution, the potential implications of the aggression amendments for the Court, for the ASP, for individual States and their citizens, as well as for international law generally will briefly be considered.

10.2

The Court

The definition of the crime of aggression has been extensively analysed and it is ultimately for judges of the Court to interpret its scope and apply it.4 Whatever interpretation is given to this crime and its elements, it seems highly unlikely that the Court’s exercise of jurisdiction over it will cause it to wade into legally grey areas and thereby unduly politicise its work. The general gravity threshold in Article 5(1) of the Rome Statute obliges the Court to exercise its jurisdiction over the most serious iterations of crimes within its jurisdiction. Additionally, the element of a State act of aggression contains a high legal and factual threshold, requiring that the act ‘by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations’.5 Procedurally, the Court is also insulated from grey legal areas when its jurisdiction is triggered by a State party referral or the Prosecutor’s proprio motu investigation of this crime. The Pre-Trial Division acts as a filter to determine whether an investigation may proceed if the Security Council has not determined that an act of aggression has occurred.6 And irrespective of whether such a determination has been made, the Court’s independence from other organs when adjudicating this crime is expressly retained in a ‘without prejudice’ clause.7 To allay any lingering concerns that States parties may have, the Office of the Prosecutor may wish to draft a policy paper indicating that its investigations into this crime will be limited to the hard core of international law on the use of force, which may evolve over time,8 and stay away from legally controversial uses of force, such as humanitarian intervention.

4

See Kreß and Barriga 2016. Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (as amended as of 29 November 2010), Article 8bis(1). https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/ RomeStatutEng1.pdf. Accessed 3 December 2018. This is complemented by Interpretive Understanding 6, which limits aggression to ‘the most serious and dangerous form of the illegal use of force’ in light of ‘all of the circumstances of each particular case, including the gravity of the acts concerned and their consequences, in accordance with the Charter of the United Nations’. 6 Ibid., Article 15bis(8). 7 Ibid., Article 15bis(9). 8 On intertemporality and crimes in the Rome Statute, including the crime of aggression, see Grover 2014, chapter 9. 5

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In addition to interpreting the definition of the crime of aggression and its elements,9 the Court is expected to interpret the scope of its jurisdiction over this crime. This determination will be particularly challenging where a national or the territory of a State party is implicated that has not ratified the aggression amendments and jurisdiction has been triggered by a State party referral or the Prosecutor’s investigation proprio motu. Indeed, it was precisely these scenarios that dominated a year-long negotiation effort leading up to the ASP’s activation decision at the end of 2017.10 According to some States, led most notably by France and the United Kingdom and including Canada, Colombia, Japan and Norway, the Rome Statute and aggression amendments bar the Court from exercising its jurisdiction in these circumstances. According to the majority of States parties, including Argentina, Botswana, Liechtenstein, Samoa, Switzerland and Slovenia, the Rome Statute and aggression amendments permit the Court to exercise its jurisdiction in these circumstances if: (1) one year has passed since 30 States parties ratified the aggression amendments (Article 15bis(2)); (2) the ASP has adopted an activation decision (Article 15bis(3)); and (3) the non-ratifying State party has not opted out of the Court’s jurisdiction over this crime by lodging a declaration with the registrar (Article 15bis(4)). In a recent article, Dapo Akande and Antonios Tzanakopoulos apply rules of treaty interpretation in the Vienna Convention on the Law of Treaties (1969) to delve into this debate. They argue that, in the aforementioned scenarios, the Court should rule that it is not permitted to exercise its jurisdiction over the nationals and territory of non-ratifying States parties.11 However, their careful analysis seems incomplete in one important respect and somewhat inconsistent in another. They correctly look to the Rome Statute to try and determine how the mandate in Article 5 of the Statute can be fulfilled. However, their interpretive analysis of the Statute seems incomplete insofar as they opt not to consider illuminating ‘supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, … to determine the meaning when the interpretation according to article 31: (a) Leaves the meaning ambiguous or obscure…’.12 As Roger Clark has expertly explained,13 the Rome Statute contains within it a fundamental ambiguity regarding how to fulfil the mandate in Article 5(2), which states: The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such

9

Grover 2016. ICC ASP, Report on the Facilitation on the Activation of the Jurisdiction of the International Criminal Court over the Crime of Aggression, ICC-ASP/16/24, 27 November 2017; Kreß 2018. 11 Akande and Tzanakopoulos 2018. 12 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), Article 32 Vienna Convention (emphasis added). 13 Clark 2009, pp. 421–425; Clark 2018. 10

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a provision shall be consistent with the relevant provisions of the Charter of the United Nations.

If one reads Articles 5, 12 and 121(3) of the Rome Statute, they expressly suggest that States consented in Rome to the Court exercising jurisdiction over the crime of aggression, and that a definition as well as conditions for the Court’s exercise of this jurisdiction need to be ‘adopted’ by the ASP before this jurisdiction can be exercised. Although Article 121(3) permits decisions to be adopted on the basis of a two-thirds majority vote, the politically contentious nature of the aggression amendments would support adoption by consensus. However, Article 121 (5) literally suggests the opposite, that States did not consent to granting the Court jurisdiction over the crime of aggression in Rome, and that this jurisdiction can only be exercised over States parties that ratify the aggression amendments at some point in the future. Article 121(5) provides: Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.

Why this ambiguity? In fact, the final clauses of the Rome Statute, including Article 121(5), were being negotiated before the compromise proposal of the Non-Aligned Movement on the crime of aggression was incorporated into the final text of Article 5.14 Stated differently, the drafting group working on Article 121(5) did not have a chance to consider the revised text of Article 5(2), which now included a reference to the crime of aggression. The latter was added parallel to, meaning without coordination or consultation, the second sentence being added to Article 121(5), which was thought to apply to new crimes not mentioned in the Statute, such as terrorism. The public record available indicates no effort to clarify the exact relationship between Articles 5 and 121, including para 5.15 As such, when all of these provisions are read together, a fundamental ambiguity arises in that the crime of aggression is simultaneously a crime that has been within the Court’s jurisdiction since 1998, awaiting only the adoption of a definition and conditions for the exercise of that jurisdiction by consensus (Articles 5, 12 and 121(3)), and a new crime that remains to be added to the Court’s jurisdiction by amendment and future ratification by each State to which this jurisdiction will apply (Article 121(5)). In turn, the relevant provisions of the Rome Statute simultaneously embody an exception to Article 40(4) of the Vienna Convention on treaty amendments not legally binding non-ratifying States parties (Articles 5, 12 and 121(3)), and respect

14 15

Clark 2009, ibid., pp. 423–424. Ibid., p. 421, n 38.

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for this general rule (Article 121(5)).16 Like the paradox that is Schrödinger’s cat, this vexing half-in and half-out dilemma results in the crime of aggression being both alive and dead in the Rome Statute as of 1998. Not surprisingly, this situation was known to the delegates and generated reasonably compelling arguments by advocates on both sides that were discussed over years leading up to the Review Conference in Kampala.17 Despite all of this debate and careful analysis, there remained no prospect of either side convincing the other of its ‘correct’ position, which ironically confirmed the existence of ambiguity. The amendments adopted at the Review Conference therefore contain the only solution that was possible – to recognise both positions as plausible, which they are in light of the actual text of the Rome Statute and the aforementioned drafting history. Until the box is opened, Schrödinger’s cat is both alive and dead. Similarly, until the Court decides otherwise, the crime of aggression is both in and out of the Rome Statute in 1998. Accordingly, those who argue that, jurisdiction over the crime of aggression was granted to the Court in Articles 5 and 12 in 1998, have Articles 15bis(2) and (3), which recognise that all States parties to the Rome Statute are bound by the aggression amendments once 30 States ratify them and an activation decision is taken. By not making jurisdiction subject to ratification by an allegedly aggressing State party, the spirit of Articles 5 and 12 is respected. Similarly, for those who argue that States did not consent in 1998 to granting the Court jurisdiction over the crime of aggression, Article 15bis(4) protects this position by enabling States parties to submit an opt-out declaration with the Court’s registrar. The opt-out ensures that the Court’s exercise of jurisdiction over the crime of aggression is subject to (presumed) State party consent granted after 1998, thereby respecting the spirit of Article 121(5), second sentence.18 Without any mendacity, this outcome was a good faith effort on the part of all States to reach a difficult compromise, adopted by consensus, on a critical issue for which the text of the Rome Statute itself, unintentionally rather than constructively, contains a profoundly ambiguous answer. It is therefore not particularly helpful for either side to cherry pick references in the aggression amendments that support their position, as the package of amendments is intended to respect both positions while not allowing either to wholly swallow the opposing view. The years following Kampala were intended to provide States with some political and legal breathing room, to allow them to prepare for the Court’s exercise of jurisdiction over the crime of aggression (e.g., parliamentary debate, enacting

Vienna Convention, above n 13, Article 40(4): ‘The amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement; article 30, paragraph 4(6), applies in relation to such State.’ 17 See Barriga and Kreß 2011, in particular Princeton Report, ibid., pp. 451–453. 18 Barriga 2017. See also Akande 2010: ‘There is perhaps another view that would argue that it is consistent with Art. 121(5) for all States parties who do not opt out to be bound. On this view, one would have to argue that a State party is presumed to accept the amendment unless it opt outs. So only those who opt out are to be regarded as not accepting the amendment and in that way the principle of consent is maintained though consent is presumed.’ 16

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domestic legislation, laying the groundwork for ratification or opt-out, etc.). However, these intervening years and the requirement of an activation decision also meant that States especially unhappy with the compromise reached in Kampala could make a backdoor attempt to revisit it in the text of what was supposed to be a pro forma activation decision.19 In November 2016, the ASP agreed to establish a facilitation, based in New York, open only to States Parties, to discuss activation of the Court’s jurisdiction over the crime of aggression, in accordance with resolution RC/Res.6 [the Kampala aggression amendments], which will make every effort to reach consensus and will submit a written report directly to the Assembly ahead of its sixteenth session.20

In this Resolution, it was agreed that the activation decision should respect the textual integrity of the aggression amendments – not unlike the requirement in Article 9(3) of the Rome Statute that the Elements of Crimes must be consistent with the Statute – and that it should ideally be adopted by consensus. During the year-long facilitation process leading up to the activation decision adopted in December 2017, both sets of views on the jurisdiction dilemma were aired once again and further creative efforts at compromise were attempted by those who sought to respect the reasonableness of both sets of arguments, thereby retaining the spirit of the Kampala compromise.21 However, France and the United Kingdom were resolute in their view that the second sentence of Article 121(5) must be literally applied to the crime of aggression, thereby ignoring the delicate package of compromises struck in Articles 15bis and 15ter of the Rome Statute. Ultimately, their hard-line stance prevailed in the text of the activation decision, which the ASP adopted by consensus. However, this formal textual victory was immediately undermined by States who took the floor to express their views on the continued textual integrity of the Kampala amendments.22 Over the objections of France and the United Kingdom, these States also insisted that the activation decision provide as follows: the ASP ‘Reaffirms paragraph 1 of article 40 and paragraph 1 of article 119 of the Rome Statute in relation to the judicial independence of the judges of the Court’.23 Accordingly, the Court must determine its own jurisdiction over this crime. This leads to the puzzling arguments put forward by Akande and Tzanakopoulos. They submit that the second sentence of Article 121(5) of the Rome Statute applies to the 19 Barriga and Blokker 2016, p. 633. The authors analogise the activation decision to a ‘flick [of] the switch’. This view is confirmed by conditions for the Court’s exercise of jurisdiction over the crime of aggression, which allow for States to ratify the aggression amendments prior to an activation decision being taken. 20 Emphasis added. ICC ASP, Strengthening the International Criminal Court and the Assembly of States Parties, Resolution ICC-ASP/15/Res.5, 26 November 2016, annex I, para 18(b). 21 Kreß 2018, pp. 10–11. These proposals are also on file with the author. 22 Stürchler 2018. Upon adoption of the activation decision, some States that supported the Kampala opt-out compromise understandably sought to benefit from the literal application of Article 121(5), second sentence, by expressing views to that effect. Notes on file with author. 23 Activation Decision, above n 3, para 3.

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Court’s exercise of jurisdiction over this crime if the Court’s jurisdiction is triggered by a State party referral or the Prosecutor’s proprio motu investigation. According to them, this is because inter alia the entire text of Article 121(5) applies to the crime of aggression, unless it is ‘amended through the amendment procedures provided for in the Statute or through some other legally binding instrument or process.’24 The implication of this reasoning is that Article 15bis of the Rome Statute adopted by consensus at the Review Conference could not ‘amend’ Article 121(5) nor could it constitute a ‘legally binding instrument or process’. However, when defending their view that the Court’s jurisdiction over the crime of aggression can be triggered by a Security Council referral, even for a situation involving a national or territory of a State party that has not ratified the aggression amendments, Akande and Tzanakopoulos argue that the amendments on aggression constitute a broad, perhaps universally shared, understanding among states parties to the Rome Statute that the second sentence of Article 121(5) was not to be regarded as applying to Security Council referrals. This understanding of the meaning of Article 121(5) is confirmed in the second paragraph of the Kampala Understandings.25

In other words, Article 15bis does not constitute a subsequent agreement on the operation of Article 121(5) for purposes of two jurisdictional triggers – State party referrals and the Prosecutor’s investigations proprio motu – but Article 15ter and its accompanying Interpretive Understanding 2 do constitute such a subsequent agreement with respect to Security Council referrals. For Akande and Tzanakopoulos, the crucial distinction seems to lie in the absence of a single State objecting to the idea that the second sentence of Article 121(5) does not apply to the crime of aggression when the UN Security Council refers a situation to the Court. However, the aggression amendments were always understood to be a package of compromises with nothing being agreed to until agreement on everything was reached.26 By allowing Article 15ter to retain its legal force while claiming that there is no agreement on the meaning of Article 15bis, the integrity of the negotiations as a whole is compromised. If the Court were to take such a view, one can well imagine States insisting that Article 121(5), second sentence, be literally applied to Article 15ter. Indeed, 35 States ratified the aggression amendments prior to the activation decision, relying on the finality of the compromises agreed to in Kampala and adopted by consensus, as well as the absence of States objecting to the jurisdictional regime it creates.27 Not one of these States submitted an Interpretive Understanding accompanying their ratification

24

Akande and Tzanakopoulos 2018, p. 952. Ibid., pp. 953–954. 26 Barriga and Kreß 2011. This phrase was repeatedly invoked throughout the negotiations. See, e.g., 2009 Chairman’s Paper, ibid., pp. 637–640, para 4. 27 The Global Campaign for Ratification and Implementation of the Kampala Amendments on the Crime of Aggression: https://crimeofaggression.info/the-role-of-states/status-of-ratification-andimplementation/. Accessed 7 May 2019. 25

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clarifying their understanding of the Court’s jurisdiction. If Akande and Tzanakopoulos are correct that there was no subsequent agreement on this issue owing to the objections of some States after 2010, why did none of the ratifying States reassert their understanding of Article 15bis? As of 11 April 2019, 37 States have ratified the aggression amendments and there are at least 28 States parties that are actively working to ratify them.28 The absence of States’ objections and Interpretive Understandings, as well as the swiftness of ratification efforts are all suggestive of the Kampala compromise being a ‘clear expression’ of the will of States in a treaty text.29 The filing of opt-out declarations by Kenya in 2015 and Guatemala in 2018 also evidences this clarity.30 At the end of the day, it will be for the Court to settle on the most coherent interpretation of the Rome Statute, aggression amendments and accompanying interpretive understandings,31 as well as the activation decision and subsequent expressions of views by States. Akande and Tzanakopoulos rightly question whether the activation decision, also technically adopted by consensus, can be treated as a subsequent agreement in light of so many States immediately expressing views contrary to its text.32 At the same time, judges should be loath to completely ignore its substance in their deliberations. As James Crawford states, the concept of a level playing field entails ‘at least some elements of the rule of law, including respect for concluded agreements’.33 If this is the case, and as contemplated in the Resolution on the facilitation process, does the activation decision respect and accord with the aggression amendments concluded in Kampala? Indeed, if the activation decision is literally applied by the Court, it gives rise to three jurisdictional issues that were settled in Kampala and not seriously debated in New York, which suggests that the activation decision does not accord with the aggression amendments.34 Further, given the uncertainty that the activation decision ironically generated in the quest for certainty, the Court’s findings on jurisdictional

28 Ibid., Albania, Australia, Bolivia, Brazil, Bulgaria, Burundi, Dominican Republic, Ecuador, Greece, Honduras, Hungary, Italy, Lesotho, Madagascar, Mongolia, Montenegro, New Zealand, Paraguay, Peru, Romania, Senegal, Serbia and Venezuela. For seven States parties, the process is in its early stages: Ghana, Guatemala, Japan, Mexico, Moldova, Republic of Korea and Tunisia. 29 Akande and Tzanakopoulos 2018, p. 951. 30 Kenya 2015; Guatemala 2018. 31 Grover 2016, pp. 399–404. 32 Akande and Tzanakopoulos 2018, pp. 943–946. 33 Crawford 2018, p. 4. 34 Akande and Tzanakopoulos 2018, p. 943 claim that the Court’s jurisdiction over the crime of aggression is unclear with respect to: (1) new States parties to the Rome Statute; (2) non-States parties; and (3) States parties that have not ratified the aggression amendments but for whom a situation is referred to the Court by the Security Council. However, all of these jurisdictional questions were debated leading up to and in Kampala. Very deliberate decisions were taken on all of them (e.g., deliberately removing the Article 12(3) declaration option for non-States parties with respect to the aggression regime as States considered it unfair for non-States parties to benefit from the regime without being themselves bound by it).

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issues should take care that the principle of legality and the rule of law are respected. For example, the Court could decide that its ruling on jurisdiction will not take effect until a specified date, thereby allowing States parties a grace period to ensure that their jurisdictional choices will be recognised by the Court in light of its judgment. The Court is now the first neutral, permanent, arms-length international body with jurisdiction to adjudicate the crime of aggression. Unlike individual States, whether perpetrators, victims or third parties, and unlike the ASP, UN Security Council, or other international political organ, the Court’s judges have no political stake in determinations of acts or crimes of aggression. The politics of the activation decision serve to underline the importance of this development.

10.3

The Assembly of States Parties

Leading up to and at the Review Conference, delegates representing States of all sizes and geopolitical strengths with all manner of political interests and concerns worked incredibly hard to successfully negotiate and adopt the aggression amendments by genuine consensus. Through patience and perseverance, delegates constructively engaged with one another in a good faith effort to bridge their differences, making difficult compromises along the way that ultimately challenged the realist narrative of international law.35 Professional relationships forged over these years undoubtedly contributed to this dynamic. Precisely because no State party was fully satisfied with the aggression amendments, they evidence the ideal of consensus-based decision-making, which forces painful compromises to ensure that all States parties can adopt the final negotiated text. By 2017, however, when the terms of the activation decision were being negotiated, the tenor of the negotiations had changed. In the room, 70% of the delegates had not been present prior to or in Kampala. And in some States, there seemed to be a growing turn to nationalism and scepticism about the benefits of multilateral treaty regimes. While the majority of States sought to respect the compromise language in the Kampala amendments through a simple activation decision, or else introduce new compromise language that would, again, respect the reasonably differing views of States parties on the jurisdictional issue described above,36 France and the United Kingdom insisted that clarity and certainty could only be achieved by expressly recognising the literal application of Article 121(5), second sentence, to the crime of aggression.37 This argument was advanced against

35

Grover 2011. The author’s notes and those of other members of the Liechtenstein delegation of these explanations of vote are on file with the author. 37 See Stürchler 2018, for a summary of the number of States comprising the majority. 36

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the backdrop of R (Miller) v. Secretary of State for Exiting the European Union (2017).38 For these States parties, there was no compromise solution, just a take it or leave it stance, which revealed how consensus-based decision-making is also able to ensure that powerful minority States’ views are respected: The consensus system assures that decision-making at a multilateral negotiation of a convention will not be dominated by the numerical superiority of any group of nations. Rather, procedural significance will be given to the variations in the power of nations. Since it is difficult to obtain acceptance of voting systems that overtly recognize the differences in nations’ importance, the consensus approach permits the maintenance of an egalitarian procedure which in practice may assure that multilateral negotiations reflect the real geopolitical power of the participating nations.39

To better respect the sovereign equality of States, unanimous voting requirements in the League of Nations were abandoned by States in favour of two-thirds majority voting at the United Nations.40 While majority voting procedures can lead to a significant number of minority views being ignored, the activation decision reveals how consensus-based decision-making can enable a powerful minority to overrule the will of the majority. Going forward, the ASP may wish to critically reflect on its deep commitment to consensus-based decision-making. It could be helpful for the ASP to articulate the interests and goals that underlie this practice when making politically sensitive decisions, which may in practice compete with one another (e.g., respecting the sovereign equality of States, protecting the legitimacy of the Court, advancing the universal quality of the Court’s work, achieving legal certainty and integrity befitting a permanent international criminal court, rather than settling on the lowest common denominator, etc.). It might also be useful to consider whether there are any circumstances when such a decisionmaking process is not appropriate, because those interests are unduly compromised in a text that will be applied by the Court for decades to come. Crawford has referred to international law as a ‘sedimentary formation’ with solid foundational layers but also top layers that are easier to erode, for example through treaty withdrawal or non-ratification.41 With the successful conclusion of the crime of aggression negotiations and until the Court rules on its jurisdiction over this crime, all that is left is for States parties to ratify and implement the 38

UK Supreme Court, R (on the application of Miller and another) (Respondents) v. Secretary of State for Exiting the European Union (Appellant), Judgment, 24 January 2017, [2017] UKSC 5. Following executive notification to withdraw from the European Union pursuant to Article 50 of the Treaty on European Union, the United Kingdom Supreme Court ruled that withdrawal under Article 50 could not be based on the Crown’s prerogative but instead required parliamentary action. In December 2017, it could not have been far from the minds of the UK delegates in New York whether opting out of the aggression regime in accordance with Article 15bis(4) of the Rome Statute is analogous to treaty withdrawal and therefore also requires parliamentary action, which would presumably attract greater public scrutiny than non-ratification of the aggression amendments if Article 121(5), second sentence, was literally applied to them. 39 Charney1978, p. 43. 40 UN Charter Article 18; Rosenne 1954, pp. 312–313. 41 Crawford 2018, p. 21.

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amendments and thereby fulfil the commitments they have repeatedly made to be subject to the Court’s jurisdiction over this crime – commitments made in Rome in 1998, in Kampala in 2010 and again in New York in 2017. To prevent the erosion of these commitments, the ASP may wish to establish a monitoring mechanism that can receive individual reports from States parties that describe, first, the steps they are taking to ratify and/or implement the amendments, and second, any assistance they may need to facilitate these processes (e.g., commentary explaining the definition to legislators, drafting assistance and so on).

10.4

States and Individuals

There have been nearly 3,000 armed conflicts since 1946, the vast majority of which have been intra- rather than interstate.42 Of the 126 international armed conflicts since 1946, 21 involved at least one of the five permanent members of the UN Security Council (P5 States).43 And since 1989, interstate armed conflicts account for 911,409 battlefield deaths out of a total of 1,356,952 arising from all armed conflict.44 For those hoping that the Court’s jurisdiction over the crime of aggression might help to deter acts of aggression, this data offers three insights into its potential impact. First, most armed conflicts are not interstate, meaning international law on the use of force and, by extension, the crime of aggression, are inapplicable to them. Second, the majority of interstate conflicts that have occurred since 1946 did not directly involve a P5 State. While it is true that some of these interstate conflicts may have been supported by one or more of the P5 States, the data suggests that there remain many interstate conflicts that could be referred to the Court by the Security Council where an act of aggression has allegedly occurred. Third, if the crime of aggression amendments can deter even a small fraction of acts of aggression, they will have achieved a great deal, as interstate armed conflicts account for nearly 67% of all battlefield deaths since 1989 while comprising only 16.7% of all armed conflicts since 1946.45 In addition to the Court’s jurisdiction over the crime, those States that enact national legislation on the crime of aggression can empower their courts to check

42

UCDP Dyadic Dataset, version 18.1. http://ucdp.uu.se. Accessed 5 January 2019; Harbom et al. 2018. The UCDP defines conflict as: ‘a contested incompatibility that concerns government and/or territory where the use of armed force between two parties, of which at least one is the government of a state, results in at least 25 battle-related deaths.’ These were organised conflicts that were mostly State-based, although some were between non-State actors or one-sided. 43 http://ucdp.uu.se. Accessed 5 January 2019. 44 UCDP Battle-Related Deaths Dataset, version 18.1 and using the best estimate of battlefield deaths (bdbest). http://ucdp.uu.se. Accessed 5 January 2019. Pettersson and Eck 2018. 45 The UCDP database used does not contain an assessment of the legality of the initial use of force. It is therefore not possible, without further analysis, to determine how many battlefield deaths since 1989 can be traced to armed conflicts involving an act of aggression.

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the war-making powers of their leaders. As Harold Koh pointed out in his seminal 1997 article on why States obey international law: ‘this overlooked process of interaction, interpretation, and internalization of international norms into domestic legal systems is pivotal to understanding why nations “obey” international law, rather than merely conform their behavior to it when convenient.’46 In many jurisdictions, judicial deference to the executive branch is considered appropriate to ensure a swift response to activities that threaten the nation. The definition of the crime of aggression can appropriately constrain the executive and legislative branches of government by removing as options gross violations of the law on the use of force. Going forward, cases like R (Al Rabbat) v. Westminster Magistrates Court (2017) in the United Kingdom will continue to highlight the need for domestic criminalisation of the crime if citizens wish to hold government leaders criminally accountable for alleged acts of aggression.47 As of 11 April 2019, 8 States have enacted domestic criminal legislation incorporating the definition of the crime of aggression in the Rome Statute,48 16 States are committed to enacting domestic legislation or amending existing laws to better reflect this definition,49 and 32 States have criminal legislation on the crime of aggression that pre-dates the Rome Statute definition but may overlap with it.50 Pending further implementation efforts, the definition still remains useful to State department lawyers and policy-makers. This internationally agreed upon definition can inform advice given to governments on the legality of contemplated uses of force. On its own, this is a major step to advance the post-1945 world order ‘plan’ to restrict uses of force except in cases of individual or collective self-defence, or with Security Council authorisation.51

46

Koh 1997, p. 2603. UK High Court of Justice Divisional Court of the Administrative Court, R (Al Rabbat) v. Westminster Magistrates Court, Judgment, 31 July 2017, [2017] EWHC 1969 (Admin). The High Court ruled that PM Tony Blair cannot be prosecuted for the crime of aggression, as it is not criminalised under English law. Parliamentary action is required for domestic criminalisation. 48 https://crimeofaggression.info/the-role-of-states/status-of-ratification-and-implementation/. Accessed 7 May 2019. Luxembourg, Slovenia, Croatia, Czech Republic, Ecuador, Samoa, Austria and The Former Yugoslav Republic of Macedonia. 49 Ibid., Belgium, Botswana, Chile, Costa Rica, Greece, Guatemala, Honduras, Lithuania, Madagascar and Peru. Ibid: ‘In some countries, implementing legislation or possible changes to existing laws are expected to be considered after ratification, e.g. in Argentina, Germany, Liechtenstein, Switzerland, Trinidad and Tobago and Uruguay.’ 50 Ibid., Armenia, Azerbaijan, Bangladesh, Belarus, Bosnia and Herzegovina, Bulgaria, Croatia, Cuba, Czech Republic, Estonia, Germany, Georgia, Hungary, Kazakhstan, Kosovo, Latvia, Lithuania, The Former Yugoslav Republic of Macedonia, Moldova, Mongolia, Montenegro, Paraguay, Poland, Russian Federation, Serbia, Slovakia, Slovenia, Tajikistan, Timor-Leste, Ukraine, Uzbekistan and Vietnam. For a rich comparative study of domestic legislation on aggression, see Reisinger Coracini 2016. 51 Crawford 2018, p. 4. 47

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In some countries, the ballot box may also serve as a bulwark against acts of aggression. To be sure, a great deal of work remains to be done to educate citizens about the aggression amendments, to popularise them. If this difficult work is done, however, then informed citizens can possibly use their votes to hold elected leaders accountable for manifestly illegal and intense uses of force against other States in the same way they might for human rights violations, war crimes and crimes against humanity. Indeed, as knowledge of and reference to the aggression amendments becomes more widespread over time, States that claim exceptional status in relation to them risk a normative reckoning both within the international community and amongst their informed domestic constituencies.

10.5

International Law

The definition in the Rome Statute contains widely-accepted elements for discussing and debating which set of facts amounts to a crime of aggression. It should inform national and international discourse about crimes and acts of aggression for years to come. Indeed, this treaty definition is presumptively reflective of custom, thereby binding non-States parties under general international law.52 Those involved in the negotiations will know that the majority of States strongly preferred that the definition stick as closely as possible to existing custom. This intention is manifested in several drafting choices and means that the Rome Statute definition will be important and useful in situations that may not fall within the Court’s jurisdiction.53 In terms of drafting choices, there is Article 15ter, which recognises the jurisdiction of the Court over the crime of aggression in situations referred to it by the UN Security Council involving the nationals or territory of any State. In other words, the definition legally binds nationals of non-States parties, which is suggestive of its customary legal status. Second, the leadership element of the definition ensures that only the most senior government officials, those who are in a position to decide on an act of aggression, can be held criminally liable. Third, the definition attempts to track the text of UN General Assembly Resolution 3314 of 1974 to the extent that this is reasonable for a judicial body exercising criminal jurisdiction over individuals. Fourth, the definition contains a high legal and factual threshold for the requisite element of a State act of aggression. Fifth, Interpretive

52 On the rebuttable legal presumption that the definitions of crimes in the Rome Statute are consistent with definitions for these crimes under customary international law, see Grover 2014, chapter 9, section 9.2.2; Grover 2016, p. 392 (crime of aggression). On the treaty definition of act of aggression being reflective of custom, see Kreß 2016, pp. 421–422; Akande and Tzanakopoulos 2016, p. 225. 53 Commenting on the possible crystallisation of this definition into custom, Bing Bing Jia similarly posited that the ‘impact of that development may dwarf the significance of specific instances in which the ICC exercises jurisdiction’ over this crime. Jia 2015, p. 570.

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Understanding 6, which was introduced by the United States in Kampala, reinforces the customary scope of the definition. It limits aggression to ‘the most serious and dangerous form of the illegal use of force’ and calls on the Court to determine whether on act of aggression has occurred by considering ‘all of the circumstances of each particular case, including the gravity of the acts concerned and their consequences, in accordance with the Charter of the United Nations’. Finally, it has been argued that the rejection by States parties in Kampala of an Interpretive Understanding proposed by the United States confirms that the Rome Statute definition is intended to reflect custom.54 Together, these features ensure that individual criminal responsibility is limited to conduct that: (1) squarely falls within the hard core of international law on illegal uses of force; and (2) rises to a sufficiently high factual intensity in terms of the gravity and scale of impact that the use of force has. For all of these reasons, States can also rest assured that the definition in no way creates a back door in the Rome Statute for indirectly litigating borderline or legally contested uses of force under general international law, such as anticipatory self-defence, self-defence against non-state armed attacks, and humanitarian interventions.55 If the customary presumption were ever to be successfully rebutted with respect to a particular element of the crime in the Rome Statute as applied to particular facts, that element still has the potential to crystallise into custom. Ratification of these amendments by a large number of States parties, as well as their repeated invocation by (and with respect to the conduct of) States that are not subject to the Court’s State referral and proprio motu investigation jurisdictional triggers over this crime will ensure that any initially non-customary element finds its way into general international law. Nothing in Article 10 of the Rome Statute or analogous Understanding 4, which was introduced by the United States in Kampala and adopted along with the aggression amendments, can prevent such crystallisation from occurring if States support this development.56 The definition of the crime of aggression contains no lingering ambiguities that can be negotiated away. Any residual ambiguities are analogous to those contained in the definitions of other international crimes and are necessary for ensuring that the law can, long-term, evolve to keep pace with legal and societal developments. Consider for example Article 7(1)(k) of the Rome Statute, which includes as a crime against humanity ‘Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health’. This provision ensures that, as customary law on crimes against humanity develops,

54

Kreß 2016, p. 422. Kreß 2018, p. 16. There is also Article 31(3) of the Rome Statute, which the United States insisted be included with a view to justifying uses of force: ‘At trial, 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.’ 56 Grover 2016, pp. 390–392. 55

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it can be captured by the Rome Statute.57 A tolerable degree of vagueness is also useful for capturing normative and technological developments. For example, war crimes definitions in Article 8 of the Rome Statute contain threshold phrases such as ‘great suffering’, ‘serious injury’, ‘serious violations’ and ‘outrages’ upon personal dignity. If judges can be entrusted to interpret these phrases, they can also be entrusted to determine whether an act of aggression under Article 8bis(1), ‘by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.’ Finally, to argue that this threshold will somehow have a chilling effect, for example by preventing uses of force that are intended to prevent atrocity crimes, misses the point of criminalisation.58 As Lord Morris frankly stated: ‘those who skate on thin ice can hardly expect to find a sign which will denote the precise spot where he [sic] will fall in’. In other words, to argue that uses of force that fall within a grey area under international law might be avoided as a result of the aggression amendments is not a weakness or shortcoming. As the US Supreme Court has pointed out, the greatest concerns arising from vagueness in a criminal prohibition do not have to do with a defendant avoiding what he or she considers to be desirable conduct. Rather, they have to do with a defendant abstaining from exercising a fundamental right.59

10.6

Conclusion

Activation of the aggression amendments on 17 July 2018 should be remembered as a day when the keystone in the Rome Statute architecture was finally set in place, when States took one historic step forward to transition from the ‘law of force’ to the ‘force of law’, as Nuremberg Prosecutor Benjamin Ferencz puts it.60 Indeed, this keystone holds special meaning for many African and Arab States whose membership in the Rome regime was absolutely conditional upon inclusion of this crime in the Statute in 1998. At a time when the Court’s relationship with some of these countries is turbulent, marking the twentieth anniversary of the Rome Statute by fulfilling this promise to them can only strengthen the Court and advance the international criminal justice enterprise.

57

ICC ASP 2002, Article 7, Introduction. Grover 2016, pp. 381–384. 59 US Supreme Court, Grayned v. City of Rockford, Judgment, 25 June 1972, 408 US 104 (1972), p. 109. Ibid., p. 110: ‘Condemned to the use of words, we can never expect mathematical certainty from our language. The words of the Rockford ordinance are marked by flexibility and reasonable breadth, rather than meticulous specificity, but we think it is clear what the ordinance as a whole prohibits.’ 60 Benjamin Ferencz: http://www.benferencz.org. Accessed 5 January 2019. 58

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References Akande D (2010) What exactly was agreed in Kampala on the crime of aggression? EJIL:Talk! https://www.ejiltalk.org/what-exactly-was-agreed-in-kampala-on-the-crime-of-aggression/. Accessed 7 May 2019 Akande D, Tzanakopoulos A (2016) The International Court of Justice and the concept of aggression. In: Kreß C, Barriga S (eds) The crime of aggression: A commentary. Cambridge University Press, Cambridge, pp 214–232 Akande D, Tzanakopoulos A (2018) Treaty law and the ICC jurisdiction over the crime of aggression. European Journal of International Law 29:939–959 Barriga S (2017) The scope of ICC jurisdiction over the crime of aggression: A different perspective. EJIL:Talk! https://www.ejiltalk.org/the-scope-of-icc-jurisdiction-over-the-crimeof-aggression-a-different-perspective/. Accessed 7 May 2019 Barriga S, Blokker N (2016) Conditions for the exercise of jurisdiction based on state referrals and proprio motu investigations. In: Kreß C, Barriga S (eds) The crime of aggression: A commentary. Cambridge University Press, Cambridge, pp 621–645 Barriga S, Kreß C (eds) (2011) Travaux préparatoires on the crime of aggression. Cambridge University Press, Cambridge Charney J (1978) United States interest in a convention on the law of the sea: The case for continued efforts. Vanderbilt Journal of Transnational Law 11:39–75 Clark R (2009) Ambiguities in articles 5(2), 121 and 123 of the Rome Statute. Case Western Reserve Journal of International Law 41:413–427 Clark (2018) Exercise of jurisdiction over the crime of aggression (International Criminal Court). In: Max Planck Encyclopedia of International Procedural Law (forthcoming, on file with author) Crawford J (2018) The current political discourse concerning international law. The Modern Law Review 81:1–22 Grover L (2011) Taking traditional realism seriously—A case study of the negotiations and resolution on the crime of aggression. ESIL 2011 4th Research Forum 1–21 Grover L (2014) Interpreting the crimes in the Rome Statute of the International Criminal Court. Cambridge University Press, Cambridge Grover L (2016) Interpreting the crime of aggression. In: Kreß C, Barriga S (eds) The crime of aggression: A commentary. Cambridge University Press, Cambridge, pp 375–411 Guatemala (2018) Declaration of non-acceptance of jurisdiction of the International Criminal Court in respect of the crime of aggression made by the Republic of Guatemala in accordance with articles 5, 12, 15bis(4) and 121(5) of the Rome Statute. https://www.icc-cpi.int/iccdocs/ other/20180206142750_ENG.pdf. Accessed 7 May 2019 Harbom L et al (2018) Dyadic dimensions of armed conflict, 1946–2007. Journal of Peace Research 45:697–710 ICC ASP (2002) Elements of Crimes. https://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf. Accessed 7 May 2019 Jia B (2015) The crime of aggression as custom and the mechanisms for determining acts of aggression. American Journal of International Law 109:569–582 Kenya (2015) Declaration of non-acceptance of jurisdiction of the International Criminal Court pertaining to the crime of aggression pursuant to paragraph 4 of article 15 bis of the Rome Statute. https://www.icc-cpi.int/iccdocs/other/2015_NV_Kenya_Declaration_article15bis-4.pdf. Accessed 7 May 2019 Koh H (1997) Review essay: Why do nations obey international law? Yale Law Journal 106:2599–2659 Kreß C (2016) The state conduct element. In: Kreß C, Barriga S (eds) The crime of aggression: A commentary. Cambridge University Press, Cambridge, pp 412–564 Kreß C (2018) On the activation of ICC jurisdiction over the crime of aggression. Journal of International Criminal Justice 16:1–17

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Kreß C, Barriga S (eds) (2016) The crime of aggression: A commentary. Cambridge University Press, Cambridge Pettersson T, Eck K (2018) Organized violence, 1989–2017. Journal of Peace Research 55:535–547 Reisinger Coracini A (2016) (Extended) synopsis: The crime of aggression under domestic criminal law. In: Kreß C, Barriga S (eds) The crime of aggression: A commentary. Cambridge University Press, Cambridge, pp 1038–1078 Röling B (1955) On aggression, on international criminal law, on international criminal jurisdiction. Nederlands Tijdschrift voor Internationaal Recht 2:167–196 Rosenne S (1954) United Nations Treaty practice. Recueil des Cours 86(II):275–444 Stürchler N (2018) The activation of the crime of aggression in perspective. EJIL:Talk! https://www. ejiltalk.org/the-activation-of-the-crime-of-aggression-in-perspective/. Accessed 7 May 2019

Leena Grover is a Canadian lawyer and Associate Professor of International Law at Tilburg University. As legal adviser to the chief negotiators on the crime of aggression from 2007 to 2010, she assisted with drafting the aggression amendments to the Rome Statute. She is also the author of Interpreting Crimes in the Rome Statute of the International Criminal Court (Cambridge University Press, 2014).

Index

A Ad hoc tribunal, 125, 137 African Court of Justice, 4, 43–45, 48 African Court of Justice and Human Rights, 44, 45 African Court on Human and Peoples’ Rights (ACHPR), 44, 46, 48 African Criminal Court (ACC), 4, 5, 18, 44–48, 50–57 African Union (AU), 2–5, 18, 25, 26, 40, 44–47, 51–53, 57, 65–67, 69, 70, 76, 78–81, 112, 113, 126, 127, 132, 140 Aggression, 2, 7, 8, 49, 62, 99, 103, 104, 155–170 Al-Bashir, 5, 6, 25, 29, 40, 61–70, 72–80, 115, 116, 126, 127 Arrest warrant, 5, 16, 25, 29, 30, 40, 42, 53, 63, 65–67, 71–73, 75, 93, 114, 115, 119, 126–128 B Bangladesh, 5, 88, 93, 99, 123–125, 167 Burundi, 1, 4, 24–26, 28–33, 128, 163 E E-Court, 3, 15, 16 Environment, 19, 20, 91 Extraordinary African Chambers (EAC), 7, 132, 140, 141 Extraordinary Chambers in the Courts of Cambodia (ECCC), 7, 10, 132, 138, 139, 141, 143, 151

F Fragmentation, 7, 151 G Gambia, The, 1, 2, 4, 25, 26, 37, 128 Gender-based crimes, 19 H Habré, 46, 47, 132, 140 Human rights, 3, 20, 21, 26, 43–46, 48, 52–54, 57, 64, 71, 90, 97, 102, 103, 105, 107, 113, 119–123, 128, 140, 146, 168 Human trafficking, 3, 18–20 I International humanitarian law, 39, 150 International Law Commission, 19, 20 J Joint criminal enterprise, 146, 150, 151 K Kampala, 156, 160–164, 166, 169 Kenya, 45, 63, 66, 67, 76–81, 149, 163 Kosovo Specialist Chambers and Specialist Prosecutor’s Office (KSC), 132, 135, 139, 141 L Libya, 6, 45, 93, 112, 116–119, 122, 128

© T.M.C. ASSER PRESS and the authors 2019 G. Werle and A. Zimmermann (eds.), The International Criminal Court in Turbulent Times, International Criminal Justice Series 23, https://doi.org/10.1007/978-94-6265-303-0

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174 M Malabo Protocol, 4, 18, 43, 45, 47, 48, 51, 53, 54, 57 Money laundering, 18, 49, 50 Myanmar, 5, 6, 88, 93, 99–101, 107, 123–125

Index Special Tribunal for Lebanon (STL), 7, 132, 137, 141 Subsequent agreement, 162, 163 Syria, 6, 120–122 T Terrorism, 4, 18, 49, 137, 159 Trust fund, 6, 15, 48, 132–137, 140–142

P Performance indicators, 11, 13 Philippines, The, 2, 4, 26, 30, 32, 39, 41, 128, 133 Practice Manual, 12, 13

U Ukraine, 5, 87–89, 92, 94, 96, 103, 125, 167

R Regulations of the Court, 13 Rule of law, 3, 80, 127, 163, 164

V Vienna Convention on the Law of Treaties (VCLT), 28, 33, 36, 77, 100, 101, 158

S Sierra Leone, 45, 148 South Africa, 1, 4–6, 25, 26, 29, 37–41, 54, 63–67, 69–71, 73–81, 126–128 Special Criminal Court for the Central African Republic (SCC), 132, 140

W Withdrawal, 1, 2, 4, 23–42, 80, 127, 128, 133, 165 Witness proofing, 151