Monthly Archives: November 2015

The Comoros situation, the Pre-Trial Chamber and the Prosecutor: the Rome Statute’s system of checks and balances is in good health

On 6 November 2015 the Appeals Chamber of the International Criminal Court (ICC) wrote a new chapter in the saga on the situation ‘with respect to the 31 May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for Gaza Strip’. The Chamber, by 3 votes to 2, dismissed the Prosecutor’s appeal against the Pre-Trial Chamber’s “Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation”. [1]

From a procedural point of view, it all began in May 2013, when a State Party to the ICC, namely, the Union of the Comoros, referred the Israeli raid on the aid flotilla consisting of vessels registered in Greece, Comoros and Cambodia to the Court. Then, on 6 November 2014, the ICC Prosecutor, Fatou Bensouda, announced her decision under article 53(1) ICC Statute not to proceed with an investigation. She argued that, pursuant to article 17(1) (d) ICC Statute, none of the cases that could potentially arise from this situation would have been of sufficient gravity as to require further action by the Court. In July 2015, following an application filed by the Union of the Comoros, Pre-Trial Chamber I, for the first time since the Court’s establishment, asked the ICC Prosecutor to reconsider her decision. Judge Kovács issued a partly dissenting opinion.

Some criticised the pronouncement of the Pre-Trial Chamber and described it as ‘a deeply problematic and extremely dangerous decision — nothing less than a frontal assault on the OTP’s prosecutorial discretion’. What is certain is that the whole procedural history, including the Appeals Chamber’s most recent decision, shows how delicate the issues at stake are; they might have significant implications in terms of both international, and ICC internal, politics. However, one could look at all these decisions as the lens through which to measure the state of ICC system’s health.

First, the Rome Statute provides for a well-balanced system of relations between the diverse institutional actors involved, including the Prosecutor and the Pre-Trial Chamber.[2] The Appeals Chamber’s decision, along with its procedural background, has simply proved how all actors played their statutory role and contributed to keeping the ICC as a living, but well-balanced, system.

Second, despite the fact that the drafters of the ICC Statute are usually deemed to have successfully created a statute that complies with the certainty of law – as required by the principle of legality,[3] this procedural querelle stems from a lack of clarity in the relevant statutory provisions, namely, articles 53(3)(a) and 82(1)(a) ICC Statute. This is also reflected in the Appeals Chamber’s narrow majority which last 6 November adopted the decision in question. However, the Appeals Chamber’s judges have contributed to the maintenance of the ICC system, being called upon to decide on an issue which the ICC Statute does not regulate expressis verbis. This shows how, despite the drafters’ efforts to draft a comprehensive Statute, the ICC judges nevertheless exercise quite a significant interpretative function which, in certain cases, might be such as to be considered a creative interpretation.[4]

In particular, before the Appeals Chamber, the Prosecutor argued that, pursuant to article 82(1)(a) ICC Statute, she could appeal the Pre-Trial Chamber’s decision because, from a substantive perspective, the Pre-Trial Chamber’s decision constituted a decision on admissibility, even if it did not fulfil the formalities of an admissibility decision.[5] The Prosecutor had, in fact, based her decision not to proceed with an investigation exclusively on the absence of the required gravity under article 17 (1)(d) ICC Statute. As a consequence, Pre-Trial Chamber I, in its decision, had focused on admissibility as well.[6]

On the other hand, the Union of Comoros and the victims’ representatives considered that the Pre-Trial Chamber’s decision was not a decision on admissibility and, therefore, it could not be appealed by the Prosecutor. Indeed, since according to article 82 (1)(a) ICC Statute, the Prosecutor is only allowed to appeal against decisions on jurisdiction and admissibility, the possibility for the prosecutor’s appeal to be considered at all depended on the very nature of the Pre-Trial Chamber’s decision. Should this have been considered a decision on admissibility, it would also have been regarded as a ‘final’ decision (subject to appeal) whose legal nature would have then turned out to be a review decision binding on the prosecutor. Put otherwise, the statutory lacuna consisting of the absence in article 82(1)(a) ICC Statute of an express provision for an appeal of any Pre-Trial Chamber’s decision pursuant to article 53(3)(a) [7] could have opened a breach in the system of checks and balances regulating the relations between the Prosecutor and the Trial Chamber. This would have attributed more power to the Trial Chamber.

The Appeals Chamber however affirmed as follows:

In the Appeals Chamber’s assessment, the distinction between the powers of the Pre-Trial Chamber under article 53 (3)(a) and (b) reflects a conscious decision on the part of the drafters to preserve a higher degree of prosecutorial discretion regarding decisions not to investigate based on the considerations set out in article 53 (1)(a) and (b) of the Statute. Indeed, under article 53 (3)(a) of the Statute, the Prosecutor is obliged to reconsider her decision not to investigate, but retains ultimate discretion over how to proceed. [8]

As a result, the majority dismissed the Prosecutor’s appeal against the Pre-Trial Chamber’s decision, having considered the latter as not being a decision on admissibility. In this regard, it is interesting to note that the two dissenting judges, Judge Silvia Fernández De Gurmendi and Judge Christine Van Den Wyngaert, have instead underlined how the Court’s previous ‘jurisprudence does not address the novel circumstances at hand in which the Prosecutor decides not to open an investigation in a situation on grounds of inadmissibility of potential cases within that situation.’ [9] They thus concluded that ‘[a] novel question […] arises in relation to which neither article 18 nor article 19 is applicable’. [10] Accordingly, they concluded that ‘[t]his novel approach requires the focus to be on the subject-matter of the impugned decision in order to determine whether the essence of the decision pertains to admissibility.’ [11]

Therefore, by filing an appeal relying on article 82 (1)(a) ICC Statute, Bensouda successfully led the Appeals Chamber to clarify an aspect which, so far, has been considered to be ‘completely unclear’. [12] In so doing, the Court has provided an answer to the two underlying questions on the legal nature and the consequences, vis-à-vis the Prosecutor, of a decision issued by the Pre-Trial Chamber pursuant to article 53(3)(a) ICC Statute. In other words, with the Appeals Chamber’s decision to dismiss the Prosecutor’s appeal, the Prosecutor obtained the express recognition that, under article 53(3)(a), the Prosecutor retains the ultimate discretionary power to decide whether or not to proceed with an investigation of a situation referred to the Court by either a state party or the UN Security Council; the Pre-Trial Chamber cannot impose a duty upon the Prosecutor to re-open an investigation.

It remains to be seen whether, following her reconsideration, the Prosecutor will decide to open an investigation over the facts at issue or whether she will reach the very same conclusions that she came to in November 2014. With respect to the latter scenario, Spain might provide Bensouda with a new ground to support her decision. Indeed, in relation to the very same facts of the Comoros situation, Spanish judge Jose de la Mata asked to the relevant national authorities to be notified if ever Netanyahu and six other Israeli officers are  going to be present within the Spanish territory. Under the new Spanish ley de justicia universal, judge de la Mata cannot proceed with the investigations until the relevant people find themselves in Spain. In future, should the circumstances arise that would trigger the proceedings in Spain, the ICC Prosecutor might rely on article 17(1)(a) and consider that a State which has jurisdiction over cases that could possibly arise from the situation has already been conducting investigations or prosecutions.[13]

In conclusion, the complex procedural history relating to the Comoros situation shows that the system of checks and balances provided by the ICC Statute does work correctly. Indeed, one should see the tension between the Prosecutor and the Pre-Trial Chamber as a signal of the ICC being in good health, and not vice versa. In the present case such a tension has led the judges from the Appeals Chamber to interpret the Statute so as to fill a legislative lacuna. After all, the function of a judge, especially at the international level, still requires quite a significant creative effort.

[1] ICC-01/13-1-Anx1. See also ICC-01/13-1-Anx2, p. 2.

[2] See, e.g., Antonio Cassese, The Human Dimension of International Law: Selected Papers of Antonio Cassese (OUP 2008) 517-8; Cassese (ed), The Oxford Companion to International Criminal Justice (OUP 2009) 459.

[3] See, e.g., Flavia Lattanzi and William Schabas (eds), Essays on the Rome Statute of the International Criminal Court (Vol. I, Editrice Il Sirente 1999) 215.

[4] See, e.g., the Pre-trial interpretation of ‘self-referrals’ and their compatibility with article 14 ICC Statute. William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Cambridge University Press 2010) 311.

[5] Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, (Decision on the admissibility of the Prosecutor’s appeal against the “Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation”) ICC-01/13 OA, Appeals Chamber (6 November 2016) at 17.

[6] cf Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, (Joint Dissenting Opinion of Judge Silvia Fernández De Gurmendi and Judge Christine Van Den Wyngaert attached to the Decision on the admissibility of the Prosecutor’s appeal against the “Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation”) ICC-01/13-51-Anx, Appeals Chamber (6 November 2016) at 12.

[7] Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia (n 5) at 55.

[8] ibid at 59.

[9] Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia (n 6) at 24.

[10] ibid.

[11] ibid at 26.

[12] William Schabas, An Introduction to the International Criminal Court (4th Edition, Cambridge University Press 2011) 258.

[13] See, Schabas (n 4) 340.

[14] None of the victims was in fact a Spanish citizen.

[15] Stephen Macedo, ‪Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law (University of Pennsylvania Press 2006) 73.bensouda


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Time and definitions in the interpretation of the ECHR. ‘Private life’ and the legal recognition of post-operative transsexuals


The European Court of Human Rights (ECtHR) has jurisdiction over all matters concerning the interpretation of the European Convention of Human Rights (ECHR) and its Protocols,1 but neither the ECHR nor its Protocols give any indication as to the appropriate interpretative techniques. In principle, being an international treaty, the ECHR should be interpreted in accordance with the Vienna Convention on the Law of Treaties 1969 (VCLT).2 However, it has been rightly pointed out that the ECtHR pays only ‘lip-service’ to the interpretative tools of the VCLT.3 The reason lies in the peculiar nature of the European Convention of Human Rights, a law-making, human rights treaty,4 that can hardly be interpreted with the traditional tools of International Law (mainly borrowed by the private law of contracts).5 Therefore, the Court has autonomously developed its own interpretative methodology.

Within this methodology, a central role is played by the principle of evolutive interpretation, according to which ‘the Convention is a living instrument which … must be interpreted in the light of present-day conditions’.6 For this reason, the Court’s evaluation of the infringement of human rights develops in accordance with the changes occurring in the domestic law of the member States and in society.7 The present contribution aims at providing a better understanding of how time significantly impacts evolutive interpretation, and how the latter relates to other interpretative principles.

The analysis focuses on the extension of the notion of ‘private life’ (Article 8 ECHR) to cover certain rights pertaining not only to sexuality, but also to the legal recognition of post-operative transsexualism. The ECtHR’s case law on this topic is an interesting example of evolutive interpretation, because the inclusion of the rights of transsexuals came as a result of a progressive shift in the European judges’ attitude. Furthermore, the extension has been facilitated by the peculiar notion of ‘private life’, thus demonstrating the connection of evolutive interpretation with the autonomous notion principle.

Private life and sexuality

Article 8 ECHR protects the right to respect for private and family life, home and correspondence. Each element of the right has an autonomous meaning under the ECtHR’s case law, because the definition of the legal terms within the European Convention is held to be independent from that in use among State Parties (‘autonomous notions’ principle).8

With regard to the notion of ‘private life’, the ECtHR has established that this concept ‘is a broad term not susceptible to exhaustive definition”.9 Furthermore, it has held that ‘it would be too restrictive to limit the notion to an “inner circle” in which the individual may live his own personal life as he chooses’, and that ‘respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.’10 Accordingly, the Court acknowledges that ‘private life’ is a notion encompassing not only rights relating to the personal identity of individuals (e.g.: name, honour, reputation)11 but also those pertaining to their social identity. On this basis, the Court recognised the rights associated with the free manifestation of sexual orientation relatively early.12 On the other hand, the extension of ‘private life’ to include the legal recognition of post-operative transsexualism occurred at a much later stage.

Rights of post-operative transsexuals

One of the very first cases in which the Court was faced with a request to protect the rights of transsexuals was the 1986 case concerning Rees, a British citizen who had undergone a female-to-male operation.13 He complained that no provision under British law allowed transsexuals to obtain a modification of their birth certificate in accordance with their new sex. This had certain implications e.g., on their right to marry and on their pension rights. Therefore, in the applicant’s opinion, the lacuna in the British law had infringed upon his right to respect for private life, protected by Article 8 ECHR.

The Court pointed out that the notion of ‘respect’ for private life was not ‘clear-cut’ and that there was little common ground among the Contracting States with regard to the rights of transsexuals, since the domestic law of most States was still ‘in a transitional stage’.14 As a consequence, the Court held that Article 8 ECHR could not be extended so far as to require the United Kingdom to adopt ‘detailed legislation as to the effects of the change in various contexts and as to the circumstances in which secrecy should yield to the public interest’, at least ‘for the time being’.15 At the same time, the Court pointed out that the Convention ‘has always to be interpreted and applied in the light of current circumstances’. On this basis, the Court declared that appropriate legal measures should ‘be kept under review, having regard particularly to scientific and societal developments’.16

In the subsequent case of Cossey (a male-to-female transsexual, complaining about the same lacuna in British law) in 1990, the Court noted that there had been no significant developments since the Rees case. There was still the same ‘diversity of practice’ among Member States, and a departure from the Court’s earlier decision was not justified since there was no change in the ‘present-day conditions’.17 This conclusion, however, was coupled with many dissenting opinions which pointed out the ‘clear developments’ in the law of some Member States, or expressed a desire for a stronger activism by the Court.18

In the 1998 Sheffield & Horshman case, the Court recognized an increased social acceptance of transsexualism, and an increased recognition of the problems which postoperative transsexuals encounter.19 However, the majority of the Court’s judges were still not convinced that the legislative European trends were sufficient to establish the existence of any common European approach to the recognition, at law, of postoperative gender status.20 The rejection of the applicants’ claims was accompanied, again, by dissenting opinions.

The slow, but evident, evolution in the Court’s attitude towards the rights of transsexuals culminated in 2002, with its judgement in the Goodwin case.21 Here, the Court recognized ‘the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of postoperative transsexuals’. The consequence was that the unsatisfactory situation in which postoperative transsexuals lived was considered to be ‘no longer sustainable’, and a violation of Article 8 ECHR was finally declared.22


The right to legal recognition of post-operative transsexualism took twenty years to be established. It is worth noting that the extension of the protection afforded by Article 8 ECHR has been favoured by the ‘undefined’ nature of the notion of private life. Indeed, the evolutive interpretation of the Convention is more easily achieved when legal concepts lack a clear definition. From this point of view, it can well be said that the autonomous notion principle allows the Court to retain a power of non-definition of certain notions, facilitating the extension of those notions to the changing needs of society. Accordingly, one should never look at the developments of the Court’s case law without examining, first, the extent to which the Convention notions are (un)defined; the principle of evolutive interpretation should always be considered together with the autonomous notions principle.

To conclude, time manifests the limits of a historically determined text such as the European Convention of Human Rights. The ECtHR reacts to these limitations by adapting the text to the changing needs of society. The result is assisted by the margin of discretion retained by the Court on the limits of the Convention notions, which, in turn, is strengthened by the autonomous notion principle.

1 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as emended) (ECHR), Art 32

2 United Nations, Vienna Convention on the Law of Treaties (VCLT) 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331

3 I SINCLAIR, The Vienna Convention on the Law of Treaties (Manchester, 2nd ed, MUP 1984) 140

4 Wemhoff v Germany (1968) Series A no 7

5 LG LOUCAIDES, The European Convention on Human Rights. Collected Essays (Leiden, 2007) 10

6 Tyrer v United Kingdom (1978), Series A no 26, par 31; Marckx v Belgium (1979), Series A no 31, par 41

7 Dudgeon v United Kingdom (1981), Series A no 45, par 23

8 Marckx v Belgium (1979) Series A no 31, para 31; Engel And Others v The Netherlands (1976) Series A no 22, para 81. On this topic, see eg: G. Letsas, The Truth in Autonomous Concepts: how to interpret the ECHR, in European Journal of International Law, 15, 2004, p 279

9 Niemietz v Germany (1992) Series A no 251-B, par 29

10 Niemietz v Germany (1992) Series A no 251-B, par 29

11 Burghartz v Switzerland (1994), Serie A n 280-B; Sanchez Cardenas v Norway, App no 12148/03, ECHR 2007; Pfeiffer v Austria, App no 12556/03, ECHR 2007 ; Schussel v Austria (dec), App no 42409/98, ECHR 2002

12 Niemietz v Germany (1992) Series A no 251-B; Dudgeon v UK (1981) Series A no 45

13 Rees v United Kingdom (1986) Series A no 106

14 Rees, par 37

15 Rees, par 44

16 Rees, par 47

17 Cossey v United Kingdom (1990) Series A no 184, par 40

18 Cossey, (1990) Series A no 184 (Judges Macdonald & Spielmann) (Judge Martens)

19 Sheffield & Horshman v United Kingdom, ECHR 1998-V

20 Sheffield & Horshman, par 57-60

21 Goodwin v United Kingdom, ECHR 2002-VI

22 Goodwin, par 84-90

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