Author Archives: Stefano Marinelli

The International Community’s Approach to Reprisals against the Use of Chemical Weapons in Syria: a Risk for the Jus ad Bellum Regime?

Introduction

On 26 June 2017, the Government of the United States of America issued a statement to inform that Syria appeared to be preparing a chemical attack, and to threaten the use of force if one took place. Earlier, on 28 May, the President of France similarly declared to be ready to use force as a reprisal against the use of chemical weapons by Syria. Both declarations followed the actual military intervention of 7 April, when the United States launched a missile strike against the Syrian airbase of Shayrat, claiming to be acting in response to an alleged chemical attack by Syrian forces in Khan Shaykhun.

Most commentators defined the attack as a clear violation of international law, perpetrated  in the absence of self-defence justification and without any Security Council authorisation, which – as detailed below – are the only two exceptions to the prohibition to use force foreseen by the UN Charter. Conversely, the vast majority of States condemned the use of chemical weapons allegedly used by Assad, but not the forcible countermeasure taken against it.

Several observers and scholars argued that the silence of the international community on the violation of the prohibition to use of force is shaping a new customary norm, allowing States to use force in case of grave violations of international law. This post will question this assumption, which bears the risk of a dangerous rift in the jus ad bellum regime.

The Attacks in Khan Shaykhun and Shayrat and the Reactions of the International Community

With the bombardment of Shayrat on 7 April 2017, the US directly used force, for the first time, against the Syrian army. The US presented the attack as a reaction to the alleged use of Sarin gas by Syrian forces in an airstrike in Khan Shaykhun three days earlier. The parties to the conflict did not agree on the dynamics of the events and no independent investigation confirmed the use of chemical weapons by the Syrian government, despite the mandate of the Organization for the Prohibition of Chemical Weapons-United Nations Joint Investigative Mechanism to monitor their use in Syria. The Organisation for the Prohibition of Chemical Weapons did find traces of Sarin in Khan Shaykhun, but could not state which party to the conflict was responsible for its use. The US and French intelligence blamed the Syrian Government for the attack, whereas Russia, and Syria itself, denied any responsibility of Assad’s Government.

The US attack was in fact criticised as an act of aggression by Syria, by its main allies in the area, Russia and Iran, and other States like North Korea. The legitimacy of the attack was firstly affirmed by the US and its allies in the area. Interestingly, most States not involved in the conflict criticised Syria for using chemical weapons, but not the US aggression in itself. US and French statements issued in the following months reiterated this position. This may suggest an acquiescence towards the legality of limited military interventions, or rather just a certain diplomatic tolerance for limited interventions, which are qualified as legitimate but not legal.

The prohibition to use force in international law and its exceptions

The prohibition to use force against the sovereignty of States is the cornerstone of the UN Charter, which prohibits the use of force at art. 2(4): “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”. The Charter foresees two limited exceptions: when the UN Security Council authorises States to take “action by air, sea, or land forces as may be necessary to maintain or restore international peace and security” (art. 42), and on the ground of self-defence (art. 51). The prohibition was reaffirmed by the International Court of Justice in several cases, and it may amount to a jus cogens norm.

The analysis of the compliance of the attack with the UN Charter is therefore uncontroversial: the US did not claim self-defence or seek a Security Council authorisation. The attack was consequently carried out in violation of the Charter.

However, a school of thought advocates the legitimacy of a third exception to the prohibition to use force. In the absence of self-defence claims and Security Council authorisation, a military intervention would be legitimate to respond to gross violations of international law involving atrocities perpetrated against civilian populations. The debate on the existence of such an exception usually refers to doctrine of humanitarian intervention. This doctrine has no generally shared definition – let alone recognition – in international law, but it is considered a particular form of use of force in a foreign State, characterised by a) the purpose to stop or oppose mass atrocities; b) the lack of consent of the State c) the absence of a legal mandate from the UN Security Council. Humanitarian intervention does not have a clear legal basis or a defined scope, but it is considered to involve a major military commitment, which comprehensively addresses the humanitarian crisis. In addition, humanitarian intervention concerns mass atrocities against civilian populations, which have taken place in Syria during the conflict, but without provoking interventions. Thus, the case at hand would not fall within the debate on humanitarian intervention – which was not invoked by the U.S. to justify the attack. The attack of 7 April on the Syrian base of Shayrat would rather constitute a single episode of forcible countermeasure against the use of chemical weapons.

Forcible countermeasures in international law

In cases of international wrongful acts, international law allows affected States to adopt countermeasures, subject to various limitations (e.g., the existence of a breach, the need of a prior demand for reparation, the necessity to comply with proportionality), including the prohibition to use force, as clearly stated in art. 50 the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission (ILC) in 2001. Thus, forcible countermeasures, sometimes referred to as reprisals, are in principle illegal under international law.

In the aftermaths of the 1998 NATO military intervention in Serbia, Antonio Cassese[1] – inter alia the first President of the ICTY – argued that a new international customary norm was in statu nascendi, modifying the status of the prohibition of forcible countermeasures in international law. According to this author, in cases of gross violations of human rights, the use of force as a countermeasure could be allowed, under certain conditions. Cassese acknowledged that this sort of derogation from the regulation of the use of force did not yet exist in international law[2] because of the lack of sufficient State practice, while there was already an opinio iuris ac necessitatis, given the diplomatic position of the majority of States concerning the NATO intervention.

Almost twenty years later, in the light of the development of the approach of States to the use of force, a consistent State practice did not evolve. The silence of States could arguably express an acquiescence to the adoption of forcible countermeasures against gross human rights violations. Even in this case, it would constitute an exception, and State practice does not show any crystallization of a similar customary norm.

In case of use of force without any Security Council authorisation, States have mostly relied on an extensive interpretation of the principle of self-defence. In contrast, States do not usually claim the possibility to use force as a reprisal for a violation of human rights.

Furthermore, in the last decades, the international community’s approach against military interventions like the bombing of Shayrat was strengthened by the criminalisation of the act of aggression. The crime of aggression was included in the Rome Statute of the International Criminal Court with a series of amendments at the 2010 Review Conference in Kampala. The ICC Assembly of States Parties is currently preparing to activate the Court’s jurisdiction over the crime. In its definition, the crime of aggression clearly covers actions like the 4 April attack on Syria.

Conclusion

To conclude, the statements against the use of chemical weapons by Syria raised the debate on the emergence of an opinion iuris allowing forcible countermeasures in case of gross violations of human rights. Still, the scarcity of State practice hinders the creation of a new customary norm which is capable to infringe the UN system of jus ad bellum. States do not seem ready to permit derogations from the prohibition to use force. In the lex lata, the bombardment of Shayrat, and the following threats to further use force against Syria constitute a clear violation of the jus ad bellum.

The absence of an explicit condemnation, without any consistent State practice, does not risk creating a customary derogation to the prohibition to use force as enshrined in the UN Charter with a new customary norm. Rather, it may suggest a certain diplomatic tolerance for limited interventions, which are sometimes defined as legitimate but not legal. This does not question the prohibition to use force, which is the key international rule to protect international peace and security.

[1]Antonio Cassese, ‘Ex iniuria ius oritur: Are We Moving Towards Legitimation of Forcible Humanitarian Countermeasures in the World Community?’ [1999] 10(1) European Journal of International Law 23-30

[2] Antonio Cassese, ‘A Follow Up: Forcible Humanitarian Countermeasures and Opinio Necessitatis’ [1999] 10 (4) European Journal of International Law 791-799; Bruno Simma, ‘NATO, the UN and the use of force: legal aspects’ [1999] 10(1) European Journal of International Law 1-22.

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The Approach to Deterrence in the Practice of the International Criminal Court

 

Introduction

Scholarship has been extensively exploring the theme of the capability of international justice to deter international crimes. At first, studies concerned the ad hoc tribunals,[1] then they focused on the International Criminal Court[2] (hereinafter ICC, or the Court).  The ICC is considered to be a major tool by which the international community can deter international crimes.  With “potentially unlimited geographic jurisdiction”,[3] the ICC raised higher expectations related to its power to deter atrocities worldwide.

Among scholars of different views, a general consensus can be identified, that is, despite skeptical or more optimistic approaches and findings, it is not possible, at the moment, to reach definitive conclusions about the deterrent power of the ICC, or of international justice in general. The reasons are to be found in the scarcity of data, given the relatively recent establishment of the Court, and in research methodology itself.[4]

This post will try to present the main aspects of the debate on the deterrent power of the ICC, and to offer an analysis of the use of the concept of deterrence in the ICC’s case law. It will show that the Court has consistently relied on deterrence as a key principle to determine sentences. In so doing, it has attempted to respond to the general expectations, even in the absence of certainty about the existence of a deterrent effect.

The deterrent effect of international justice: the main issues

The entire deterrence theory is based on the notion that the perpetrator is a rational actor who decides to perpetrate crimes following a cost-benefit analysis.[5] This is particularly questionable in the context of international crimes, where it is disputed whether the perpetration of atrocities implies the need to consider “the risk of prosecution against the personal and political gain of continued participation in ethnic cleansing and similar acts.”[6]

Deterrence is usually categorised as specific (dissuading the condemned individual to repeat the crime) or general (discouraging other people from engaging in the same conduct).[7] The particular nature of international crimes might raise a further aspect: “expressive”[8] or “social”[9] deterrence, which is possibly more effective than the “classic” or “prosecutorial” one. This angle, which can vary in the analysis of the authors but generally reflects the theory of positive general prevention, focuses on the “secondary stigmatising effects of the punishment”,[10] as “a consequence of the broader social milieu in which actors operate: it occurs when potential perpetrators calculate the informal consequences of law-breaking.”[11]

Jo and Simmons, focusing on the social angle and on certain categories of mens rea, submit that the deterrent effect of international justice varies according to the degree of accountability of the perpetrator and his/her interest in obtaining legitimacy. Consequently, state actors would be more deterrable than non-state actors.[12]

Furthermore, authors generally recognise that it is not the severity of the punishment which creates a deterrent effect but, rather, the likelihood of being prosecuted and condemned.[13] The issue is particularly relevant in international criminal law, in which uncertainty of punishment is inevitably higher than in it is in average national judicial systems. In Furundjiza, the International Criminal Tribunal for the former Yugoslavia plainly enunciated this aspect, together with the “expressive” value of an international judgment:

It is the infallibility of punishment, rather than the severity of the sanction, which is the tool for retribution, stigmatization and deterrence. This is particularly the case for the International Tribunal; penalties are made more onerous by its international stature, moral authority and impact upon world public opinion.[14]

Deterrence in the practice of the International Criminal Court

Deterrence is not specifically mentioned in the Rome Statute which, instead, makes reference, in the Preamble, to the prevention of international crimes, as a consequence of putting an end to impunity. Prevention and deterrence are sometimes used as synonyms, but their meaning is not completely interchangeable. The former is indeed wider and encompasses the latter, as there are forms of preventing crimes that are not related to judicial deterrence. It is fair to assume, nevertheless, that the aim “to put an end to impunity” and, consequently, “to contribute to the prevention” of international crimes, comprises the concept of deterrence.

The approach to deterrence in the practice of the Court may be analysed from two aspects. First, is whether deterrence ought to be considered as a criterion in the selection of cases to prosecute. Second, is whether deterrence is a key factor to be taken into account in determining sentences. While the former assumption appears to have been dismissed by both the Appeals Chamber and the Office of the Prosecutor, the latter constitutes a consistent practice of the Court.

In Lubanga,[15] the Pre-Trial Chamber affirmed that, to strengthen the effect of deterrence, the Court should focus only on high-ranking perpetrators, as individuals who can “prevent or stop the commission” of international crimes. The Appeals Chamber rejected this view, observing that the deterrent effect of the Court would be guaranteed only by avoiding any a priori exclusion of certain categories of perpetrators “from potentially being brought before the Court”.[16] The Prosecutor’s policy paper on case selection and prioritisation, issued in September 2016, seems to confirm the approach of the Appeals Chamber, i.e., that the deterrent function of targeting high ranking perpetrators is questionable, and lower-ranking perpetrators should not be excluded from prosecution in virtue of a contested deterrent effect.

Concerning the use of deterrence in determining sanctions, on 22 March 2017, the Trial Chamber in Bemba, consistently with the Court’s previous practice in Katanga[17] and Al Mahdi,[18] recognised deterrence, in both its general and specific effects, as one of the primary purposes of sentencing:

The primary purpose of sentencing […] is rooted […] in retribution and deterrence. With regard, in particular, to deterrence, the Chamber is of the view that a sentence should be adequate to discourage a convicted person from recidivism (specific deterrence) as well as to ensure that those who would consider committing similar offences will be dissuaded from doing so (general deterrence).

Conclusions

The debate on the possible deterrent power of the ICC, and of international justice in general, is open and a growing scholarship has been investigating the issue with various and original methodologies. In the absence of any definitive evidence on the issue, the Court has been maintaining deterrence among the primary purposes of its sentences, but this latter has not, so far, influenced the prosecutorial strategy.

The topic deserves further reflection, as new findings may acquaint the practice of the Court, thus making the ICC an effective tool for the prevention of atrocities.

[1] David Wippman, ‘Atrocities, Deterrence, and the Limits of International Justice’ [1999] 23(2) Fordham International Law Journal 12

[2] David Bosco, ‘The International Criminal Court and Crime Prevention: Byproduct or Conscious Goal?’ [2011] 19(2) Michigan State Journal of International Law 164

[3] Antonio Cassese, International Criminal Law (3rd edn, Oxford University Press 2013) 326

[4] William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) 61

[5] Ronald Akers, ‘Rational Choice, Deterrence, and Social Learning Theory in Criminology: The Path Not Taken’ [1990] 81(3) The Journal of Criminal Law and Criminology 65

[6] David Wippman n. 1

[7] Stephen L. Quackenbush, ‘General Deterrence and International Conflict: Testing Perfect Deterrence Theory’ [2010] 36 International Interactions.

[8] Kate Kronin-Furman, Amanda Taub, ‘Lions, Tigers and Deterrence, Oh My. Evaluating Expectations in International Criminal Justice’ in Yvonne McDermott, William Schabas (eds), The Ashgate Research Companion to International Criminal Law, Critical Perspectives, (Routledge, 2013)

[9] Hyeran Jo and Beth A. Simmons, ‘Can the International Criminal Court Deter Atrocity?’ [2016] 70 International Organization.

[10] Kate Kronin-Furman, Amanda Taub (n.8).

[11] Hyeran Jo and Beth A. Simmons (n.9).

[12] Hyeran Jo and Beth A. Simmons (n.9).

[13] Christopher W. Mullins and Dawn L. Rothe, ‘The Ability of the International Criminal Court to Deter Violations of International Criminal Law: a Theoretical Assessment’ [2010] 10 International Criminal Law Review.

[14] Furundžija (IT-95-17/1-T), Judgment, 10 December 1998, (1999) 38 ILM 317, para. 290.

[15]Lubanga (ICC-01/04–01/06–8), Decision on the Prosecutor’s Application for a Warrant of Arrest, 10 February 2006, paras. 54–5.

[16]Situation in the Democratic Republic of the Congo (ICC-01/04), Judgment on the Prosecutor’s Appeal Against the Decision of Pre-Trial Chamber I Entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58’, 13 July 2006, para. 73.

[17] Trial Chamber II, Prosecutor v. Germain Katanga, Decision on Sentence pursuant to article 76 of the Statute, 23 May 2014, ICC-01/04-01/07-3484-tENG-Corr, paras 37-38;

[18] Prosecutor v. Ahmad Al Faqi Al Mahdi, Judgment and Sentence, 27 September 2016, ICC-01/12-01/15-171, paras 66-67 bensouda

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The Policy Paper on Case Selection and Prioritisation: a (Vain?) Effort to Address Issues of Bias and Inefficiency

In September 2016, the Office of the Prosecutor (OTP) of the International Criminal Court (hereinafter, the ICC or “the Court”) published a Policy Paper on Case Selection and Prioritisation (“the Policy Paper” or “the document”).

The document follows a long series of papers on policy and strategy of the ICC Prosecution. By delivering such documents, the OTP aims to clarify some aspects of its work. This effort of transparency has the purpose of dissipating allegations of bias and managing public expectations towards the Court. The document was awaited to respond to criticisms commonly raised by observers. First, the lack of objectivity in the selection of cases, often targeting only one side within a situation, as detailed below. Second, the lack of efficiency in terms of quantitative results, with five completed trials in the Court’s first 15 years of work.

This post will argue that, despite the efforts of transparency of the OTP, the Policy Paper does neither fulfill expectations concerning the bias critique, nor does it offer valuable solutions to the problem of efficiency.

Selectivity – on the impossibility to reach impartiality through objective criteria

 The Policy Paper broadly reiterates the principles affirmed in the Rome Statute and confirmed by the practice of the Court: impartiality and objectivity, to avoid one-sided or biased case selection. Paragraph of the document 20 quotes:

“The Office will examine allegations against all groups or parties within a particular situation to assess whether persons belonging to those groups or parties bear criminal responsibility under the Statute. However, impartiality does not mean “equivalence of blame” within a situation. It means that the Office will apply the same processes, methods, criteria and thresholds for members of all groups to determine whether the crimes allegedly committed by them warrant investigation and prosecution.”

Although this principle is uncontroversial, the statement fails to address the issue of prosecutions and investigations targeting only one side within a situation, which appears to be an unfortunate pattern in the action of the Court. In cases where the Court’s jurisdiction was triggered through a self-referral (e.g. Uganda, the Democratic Republic of Congo, the Central African Republic, Ivory Coast and Mali), the OTP did not target any state official. To the contrary, it focused solely on the rebels, i.e. the non-state actors adversaries of the referring Government. Conversely, in the Darfur and Libya situations, referred by the UN Security Council, prosecutions disregarded crimes perpetrated against government officials. In Darfur, no charges were made for crimes committed against Sudanese troops; the only rebels who were indicted faced charges for attacking Peacekeepers. In Libya, prosecutions targeted only officials of the then Libyan Arab Jamahiriya.

From a legal point of view, the ICC Prosecutor has consistently proclaimed the duty to deal with all the groups and parties within a situation. This position has been clear since in the context of the first self-referral by the Government of Uganda in 2004. Under the principle of ‘‘symmetric interpretation’ of a referral enshrined in Rule 44(2) of the Rules of Procedure and Evidence, the Prosecutor clarified his mandate to impartially prosecute international crimes within the situation referred regardless of possible selectivity in the text of the referral. Yet, in practice, not only was the referral jointly announced in January 2004 by then Prosecutor Luis-Moreno Ocampo and Ugandan President Yoweri Museveni, but prosecutions have only targeted rebel leaders so far.

Beyond the Ugandan situation, it appears that the Court regularly joins the side of the subject referring the situation (i.e. the local Government or the Security Council; the Kenyan situation, triggered by the proprio motu initiative of the Prosecutor, makes exception). The reiteration of the OTP position on impartiality in the policy paper does not change the matter. Indeed, the bias issues of the ICC seem to have deeper institutional roots, which cannot be properly addressed by stating objective criteria in a policy paper.

 Efficiency – Lowering Ambitions to Meet Expectations?

The lack of efficiency in the first 15 years of the Court’s work can be assessed from a mere quantitative point of view, given the scarce number of completed trials, but also from a qualitative perspective. The most ambitious prosecutions have targeted high-profile individuals identified as the most responsible for the crimes investigated. Joseph Kony, Omar al Bashir, Uhuru Kenyatta and Muammar Gaddafi are distinct examples of senior figures that the ICC indicted, but could not apprehend and prosecute.

The main obstacle lies in the failure of States to cooperate with the Court on the field, to implement the arrest warrants and the decisions of the ICC. The discretionary power of the Prosecutor, still, allows her to focus on cases with a reasonable prospect of conviction. In particular, the Policy Paper states that:

“The Office may also decide to prosecute lower level-perpetrators where their conduct has been particularly grave or notorious.  The notion of the most responsible does not necessarily equate with the de jure hierarchical status of an individual within a structure, but will be assessed on a case-by-case basis depending on the evidence.”

This confirms a shift from the previous prosecutorial strategy, which implied to “investigate and prosecute those who bear the greatest responsibility” and was already mentioned in the Prosecutorial Strategy paper published in February 2010.

The purpose of the new strategy is clearly to privilege targeting individuals who are likely to appear on trial before the Court. This approach appears grounded from a legal point of view, as it does not contrast with the Rome Statute; and it seems desirable from a policy point of view, given the failures in the more ambitious prosecutions mentioned above.

However, this prosecutorial strategy has been the object of controversy within other international tribunals. At the ICTY, Prosecutor Goldstone decided to start prosecuting low-level perpetrators. His aim was both to respond to public pressure, which asked for prompt indictments, and to build stronger cases for future prosecutions against higher-level individuals. The ICTY Judges, nevertheless, explicitly objected to the strategy in a public statement and requested the Prosecutor to target high-level perpetrators. Judge Cassese defended the action as a means to safeguard respect  for the ICTY Statute[1]. The Prosecutorial strategy then shifted to focus on higher-level perpetrators.

At the ICC, the first trial seeming to implement the new strategy, against al Mahdi in the situation of Mali, has been criticised by scholars on various grounds. The strategy also reminds of the criticisms levelled against the low-level charges that the Prosecutor brought in the Lubanga case. Thomas Lubanga received the arrest warrant while he was detained, inter alia, for torture, and was convicted before the ICC to 14 years for the war crimes of enlisting and conscripting children.

Conclusions

The first independent permanent international criminal court has been surrounded by pressures and expectations since before its entry into force in 2002. The Court is often expected to achieve results beyond the scope of its mandate, for instance, when its action is invoked in the middle of an armed conflict, or to solve an international crisis. The efforts of the OTP to deliver information on its policy and strategy may indicate attention on outreach, to improve the public image of the Court.

The Policy Paper on Case Selection and Prioritisation appears as an attempt to justify the selectivity of cases through the introduction of an objective legal criteria. However, this does not respond to the problem of political interference with the Court, which still depends on the support of States and international organisations – and consequently on their political will –  to fulfill its mandate. Basically, the new prosecutorial strategy appears to be aimed at collecting a major number of convictions in a shorter time, at the detriment of the relevance and of the quality of the prosecution. This could betray a further lack of independence, this time from the pressure of international public opinion.

[1] “the Statutes of the international tribunals do set out some general guidelines, if only implicitly, by suggesting that they must prosecute the most serious international crimes. However, such guidelines are rather loose. It falls to the prosecutor, who enjoys immense discretion and total independence, to decide upon his or her strategy and to set the priorities and the main targets of prosecutorial action. […] the Judges as a whole are the only body that can try to reorient prosecutorial action so as to keep it within the Statute’s explicit or implied objectives.” A. Cassese, ‘The ICTY: A Living and Vital Reality’, (2004) 2(2) JICJ 585, at 587. A. Cassese, ‘The ICTY: A Living and Vital Reality’, (2004) 2(2) JICJ 585, at 587.

 

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The 2016 Rojava Social Contract: a Democratic Experiment of Civil and Social Rights in Northern Syria

The region of Rojava, in the north of Syria, also known as Syrian Kurdistan, received international attention for its innovative system of autonomous administration, which was self-proclaimed in January 2014. Through an original Constitution, the so-called Social Contract, the de facto authorities proposed a pioneering political system based on participatory democracy, gender equality, minority rights, ecology and secularism.

After a brief introduction on the region, this post will present the main point of interest from a human rights perspective: the Constitution of Rojava, whose last version, designated as the Social Contract of the Federation of Northern Syria – Rojava, was presented in July 2016. This analysis will then attempt to put the legal instrument in context, presenting its cultural origins. It will, finally, reflect upon the potential impact and broader political and cultural relevance of the political experiment.

The Self-Proclaimed Autonomous Federation of Northern Syria – Rojava

Following years of hostilities with governmental forces, in the context of the Syrian conflict which broke out in 2011, Rojava proclaimed its autonomy from the Syrian Government in January 2014. The Kurdish “Democratic Union Party” (PYD, Partiya Yekîtiya Demokrat‎) led the self-proclaimed autonomous region to elections and to the adoption of its first Constitution: the “Charter of the Social Contract”. The Charter promoted the democratic participation and human rights of minorities within the multicultural region of Rojava, by means of a polity system called “democratic confederalism”. This theory aims to foster coexistence in multicultural societies by transcending the notion of the nation state. The region implemented its autonomous administration without claiming independence, but by choosing to remain part of a united Syria. In May 2014, Daesh started carrying out attacks in the region. The most notable success of the local army, the People’s Protection Unit, YPG (Yekîneyên Parastina Gel‎), was their resistance in the siege of Kobane, one of the three Cantons of Rojava, which lasted from September 2014 to March 2015. The resistance to the siege is considered a turning point in the war against Daesh.

Beyond the military aspect, the most remarkable feature of the region is its innovative system of governance. The system, formalised as the “Charter of Social Contract of Rojava”, was approved in January 2014. The Charter was reformed in July 2016 as the “Social Contract of Rojava – Northern Syria Democratic Federal System” (hereinafter, the Social Contract). The provisions of the reformed version, which is expected to become the definitive Constitution after popular consultation, are examined below.

The Social Contract of Rojava – Northern Syria Democratic Federal System

The first notable element that emerges in the analysis of the grundgesetz of Rojava is that, since its first version in 2014, it has been designated as a “Social Contract” instead of a “Constitution”. The wording refers directly to natural law theory. The expression “Social Contract” implies the idea of an agreement among people aimed to regulate the essential aspects of their coexistence. The name itself distinguishes it from a Constitution, which generally defines the ground norm of States. The notion of the State, and of the nation-state in particular, is presented in the Preamble of the Social Contract as the root of the crises and problems of the people of Rojava. The administration accordingly does not aim to self-proclaim an independent state. At the same time, it does not enter into conflict with the Syrian State but recognizes its territorial integrity and maintains a “tacit alliance” with the government. Article 7 of the Social Contract reiterates that the region does not aim to build a new State. Other rebel groups have criticised the PYD administration for this ambiguous relationship with Assad’s Government.

The Preamble of the 2016 Social Contract lays down a non-exhaustive list of different geographical, ethnic and religious identities living in the community[1]. This marks an improvement from the 2014 version, which listed a closed number of identities solely on an ethnic basis[2]. The Preamble also defines the cultural and spiritual roots of the Rojava society, with a specific reference to the “culture of Mother Goddess”, in addition to apostles, prophets and other spiritual roots, as a means of underlining respect for all spiritual beliefs. Making explicit reference to specific divinities in the constitutional document might be counter-productive for the purpose of building a secular political system, in which different faiths and beliefs coexist. The 2014 Preamble was silent about religious roots and it only called for the construction of a “society free from authoritarianism, militarism, centralism and the intervention of religious authority in public affairs”.

The first 10 articles of the contract establish the basis of the coexistence between different identities within the autonomous region. Articles 10 to 13 concern ecology, protection of the environment and sustainable development. Articles 14 to 17 establish gender equality and the promotion of women participation in all areas of life: in the family as well as in political, social and cultural life. Article 18 specifically covers the promotion of the role of youth in the democratic life of the society. Articles 20 to 40 deal with civil and political rights, including the prohibition of the death penalty and of torture, the right to self-determination, and the principle of non-discrimination, against women and youth in particular. Articles 40 to 54 concern economic and social rights, from free education to specific care for people with special needs. The last part of the Social Contract regulates the institutional side of democratic confederalism: the organization of the democratic participation of people, from the local communities to the Northern Syria Federation.

Participation to the democratic process is guaranteed by a multi-level representation system. The structure consists of Communes, a Neighborhood People’s Council, a District People’s Council, and the Rojava People’s Council. Each level elects co-presidents (the plurality of presidents encourages gender equality and representation of cultural minorities) for decisions pertaining to the local community, and elects delegates which represent them at the higher administrative level. The entire system is grounded on the principles of popular participation and federalism.

Cultural Origins of the Rojava Social Contract

The Social Contract appears to be particularly innovative for the most advanced democratic standards, and more so when compared to its neighboring systems. Kurdish sources insist that the outcome of their political theory and constitutionalism is the result of a shared legislative process, which saw the participation of different parts of the society. It is important, however, not to neglect the role of the Kurdish charismatic leader Abdullah Ocalan as a theorist of the Rojava administration.

Ocalan is among the founders of PKK (Partiya Karkerên Kurdistanê) the Kurdish political force that fought for the independence of Kurdistan from Turkey. The PKK was included by many countries, including the European Union, on their lists of terrorist organizations for their armed attacks which targeted, amongst others, civilians. Ocalan has been detained since 1999 in an isolated Turkish facility. During his detention, Ocalan experienced a deep change in his political thought. Influenced by authors such as Bookchin, Foucault, Wallerstein, and Braudel, he abandoned the Marxist-Leninist ideology that characterized PKK, in order to promote democratic confederalism as the ideal political system to administer multicultural societies. Ocalan authored several books on the matter. In 2006, he rejected the use of violence and proposed the start of peaceful negotiations with Turkey on the Kurdish issue. The crucial novelty in the political struggle, besides the choice of nonviolence, consisted in abandoning the request to establish a Kurdish nation state.

As a former military and political leader, Ocalan maintained a strong charismatic authority on Kurdish people of Rojava, who accepted his nonviolent approach and his democratic confederalist proposal. Despite the participatory processes that characterises institution building in Rojava, the contribution of Ocalan as a political theorist remains decisive to the introduction of principles such as sustainable development, restorative justice, secularism and feminism.

Potential Broader Impact of the Political Experiment

In the midst of the armed conflict in Syria, it is difficult to foresee possible developments in the political system in Rojava. On the one hand, the local administration achieved a certain degree of stability in the region, first gaining autonomy from the central government, then defeating the attacks of Daesh.

On the other hand, the de facto authorities are seeking to improve their legitimacy in the eyes of other Syria rebel forces (which are skeptical of the ambiguous relation between Rojava and the central Government) and also those of the Rojava population, where elections shall take place in 2017.

The main challenge to the potential of the Rojava experience, however, is exclusion from representation at the negotiating table at the Geneva Peace talks, last held in February 2016 and currently suspended. The talks constitute the main international forum where the parties to the conflict in Syria (among which the Syrian government, Turkey, and various rebel groups, but not Daesh) can dialogue and negotiate. UN Special Envoy to Syria, Staffan de Mistura, has accepted the request of Turkey, as well as of other Syrian opposition groups, to exclude the de facto Rojava authorities from the talks. An inclusion to the international forum would have strengthened the Rojava administration, in terms of both its stability in the field and its visibility as an ambitious model, for the international community, to administer a multicultural society.

Conclusions

The Social Contract of the Federation of Northern Syria – Rojava represents an innovative legal system, under an international law perspective, for the Middle East region and for the entire international community. The political success of the Rojava system highly depends on the developments on the field of the Syrian armed conflict. From a cultural and theoretical point of view, however, it already constitutes a model to be followed as an example to administer a democratic and multicultural society.

[1]“We, the people of Rojava: Northern Syria, Kurds, Arabs, Assyrians, Turkmen, Armenians, Chechens, Circassians, Muslims, Christians, Yazidis and various others”.

[2]“We, the people of the Democratic Autonomous Regions of Afrin, Jazira and Kobane, a confederation of Kurds, Arabs, Assyrians, Chaldeans, Arameans, Turkmen, Armenians and Chechens”.

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The European Court of Human Rights decision in Nasr and Ghali v. Italy: Impunity for Enforced Disappearance in Milan

Introduction

On 23 February 2016 the Chamber of the European Court of Human Rights (ECtHR, the Court) issued a judgment in the case of Nasr and Ghali v. Italy. The Court unanimously found Italy responsible for violations of Article 3 of the European Convention of Human Rights (ECHR) (prohibition of torture and inhuman or degrading treatment), Article 8 ECHR (right to respect for private and family life), Article 13 ECHR (right to an effective remedy) with respect to both applicants, and of Article 5 (right to liberty and security) with respect to Mr Nasr.

The Egyptian national Hassan Mustafa Osama Nasr, aka Abu Omar, was granted asylum in Italy and settled in Milan, where he married Ms Ghali. On 17 February 2003 he was kidnapped by a team of agents of the U.S. Central Intelligence Agency, with the cooperation of Italian agents. Leaving from the Aviano U.S. air base, he was transferred, through the Ramstein US air base in Germany, to Egypt, where he was secretly detained and tortured for over 12 months. He was released on 19 April 2004, when he contacted his wife and stated his version of the events. The details of the abduction were later confirmed by proceedings before Italian courts. The Italian judiciary was able to establish the facts, but not to fully dispense justice and prosecute those responsible, because of the shield of state secrecy imposed by the Italian Government. Mr Nasr’s kidnapping is an example of the post-9/11 counter-terrorism practice of “extraordinary renditions”, which, as argued below, can be characterized as enforced disappearances.

This analysis aims to contextualise Nasr and Ghali v. Italy in the broader jurisprudence of the extraordinary renditions cases examined before the ECtHR, while focusing on the findings of the case at stake concerning the responsibility of Italian institutions (namely, the Government, Chief of State and Constitutional Court) in providing impunity to those responsible. Furthermore, it will examine the practice of extraordinary renditions in international law, to establish whether the case can fit the definition of enforced disappearance, and how this could enhance the protection of renditions victims.

Extraordinary Renditions Before the ECtHR

“Extraordinary rendition” refers to the illegal arrests and secret transfers of alleged terrorists from the countries of arrest to black sites, where detainees are subjected to interrogations which include torture or inhuman or degrading treatments. The U.S. carry out extraordinary renditions with the cooperation of several states, with the aim to question “high value detainees” through “enhanced interrogation techniques” that could not be performed on U.S. soil. The practice is secret and, notwithstanding documentation by NGOs and institutions,[1] its details remain largely unknown. It apparently started in the aftermath of 11 September 2001 and was limited, but not abolished, by the Obama Administration with the “Ensuring Lawful Interrogations” Executive Order of 22 January 2009. Within the context of the current electoral debate, Presidential candidates express various and inconsistent opinions about such practice.

Before Nasr and Ghali, the ECtHR had handed down two decisions relating to extraordinary renditions. First, in the 2012 case of El-Masri v. “The former Yugoslav Republic of Macedonia”, which concerned a German citizen, Khaled El Masri, who was arrested by CIA agents the night of 1 January 2004. He was detained in secret, in a Skopje hotel, for 3 weeks and then transferred to Kabul. He was released after 4 months of interrogations. The El Masri case is possibly the most blatant example of an erroneous rendition: the agents mistakenly believed to have arrested and questioned Khalid Al Masri, a person allegedly involved in the 9/11 attacks. The Grand Chamber held that such extraordinary rendition violated a combination of Articles of the European Convention: namely, Articles 3, 5, 8 and 13.

The second decision was issued in the case of Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland and concerned a black site on European territory: Stare Kiejkuty facility. In addition to the violations of Articles 3, 5, 8 and 13 ECHR found in El Masri, the decision referred to Poland’s failure to cooperate with the Court in violation of its obligation under Article 38 ECHR. After the detention in Poland, furthermore, Al Nashiri was transferred to Guantanamo Bay, where he risked facing the death penalty, entailing the violation of Articles 2 (right to life) and 6 (right to a fair trial) of the European Convention, along with Article 1 (abolition of the death penalty) of Protocol No. 6 to the ECHR.

In the most recent Nasr and Ghali, Mr Nasr’s extraordinary rendition has been defined as “the most disturbing case” and “the most grotesque rendition”[2] because of the amount of evidence left by the agents involved.[3] A reporter defined the mission, which involved luxurious restaurants and hotels in Venice and Florence, as “La Dolce Vita War on Terror”. Since details of the operation were available to the prosecutor, and generally to the public, the Court (para 254) found that State secrecy was not relied on to genuinely protect sensitive information, but rather to grant impunity to those responsible. Differently from El Masri and Al Nashiri, the ECtHR (para 265) found that, in this case, domestic proceedings had already taken place, establishing the truth, identifying the persons responsible and securing their convictions (the 4 November 2009, the District Milano Court convicted 22 CIA agents in absentia). However, due the intervention of the executive, the judgments have not been enforced.

Various institutions have hindered judicial proceedings. First, the Italian Government, under successive Presidents, imposed State secrecy over the acts committed by the Italian intelligence agency (SISMI), shielding the agents involved in Nasr’s rendition. In addition, the ECtHR affirmed (para 270) that US agents never sought extraditions. Second, the Chiefs of State (namely, Presidents Napolitano and Mattarella) granted pardons to three US agents involved. Third, the Constitutional Court affirmed the supremacy of State secrecy over any other constitutional concern in two separate decisions (that is, decisions no. 106/2009 and no. 24/2014). In addition to the violations identified in earlier cases, the Court further held that the rendition constituted a treatment towards Ms Ghali, Mr Nasr’s wife, that violated Articles 3 and 8 ECHR.

Extraordinary Rendition in International Law: Possible Characterisation as Enforced Disappearance

Extraordinary rendition as such does not constitute a specific crime in international law. It can however fall within the legal definition of enforced disappearance. Enforced disappearances are defined by Article 7 of the Rome Statute of the International Criminal Court (ICC) relating to crimes against humanity. A broader definition is provided by Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance (CED), entered into force in 2010, which reads as follows: “For the purposes of this Convention, ‘enforced disappearance’ is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law”. The United States, primary responsible for the practice, are not party to the ICC Statute and have not ratified the CED. Still, extraordinary renditions are perpetrated by nationals, and on the territory, of States that have ratified both instruments, which is the case of Italy.

As described above, extraordinary rendition entails the cumulative violation of a number of rights, in the course of a single, if complex, pattern of conduct. In the ECtHR case law, violated rights include the right to personal liberty and security, the respect for private and family life, the right to access effective remedy, and in certain cases, the right to life. Extraordinary rendition, furthermore, generally involves the perpetration of torture and other inhuman or degrading treatment, which is not a necessary element of the crime of enforced disappearance.

In Al Nashiri (para 520), the Court affirmed that “the rationale behind the program was specifically to remove those persons from any legal protection against torture and enforced disappearance”. In El Masri (par. 240),the Grand Chamber held that “the applicant abduction and detention amounted to ‘enforced disappearance’ as defined in international law”. In El Masri, the Court furthermore found another feature pertaining to enforced disappearances: the right to truth, which should not be obstructed by the concept of State secrecy (par. 191) and has both a private and public dimension.

The characterization of extraordinary renditions as enforced disappearances has various advantages in enhancing the protection of the victims. First, it provides a clear definition of an otherwise complex criminal conduct, which involves a combination of human rights violations; second, it excludes any possible derogation, including cases relating to national security, regularly alleged in these types of counter-terrorism operations; third, when it is contextualized as part of a widespread or systematic attack against a civilian population, it envisages the potential to define the practice as a crime against humanity. 

Conclusion

The decision of the Chamber in Nasr and Ghali v. Italy marked a remarkable step in addressing the issue of extraordinary renditions in Europe. The decision finds state secrecy, which had notably be confirmed by two judgements of the Italian Constitutional Court, not to be compatible with the rights protected by the European Convention. Finally, the possible characterisation of the conduct as enforced disappearance opens new avenues for a stronger protection of the victims of extraordinary renditions.

[1]              Council of Europe, Committee for Legal Affairs and Human Rights, “Secret detentions and unlawful inter-state transfers involving Council of Europe member states, 2007;  European Commission for Democracy Through Law; “Opinion on the International  Legal Obligation of Council of Europe Member States in Respect of Secret Detention Facilities and Inter-State Transport of Prisoners”, 2006.  European Parliament, Temporary Committee on the alleged use of European countries by the CIA for the transport and illegal detention of prisoners, 2007; Amnesty International, Below The Radar, Secret flights to torture and ‘disappearance’, 2006; Human Rights Watch, The United States’ “Disappeared” The CIA’s Long-Term “Ghost Detainees”, 2004.

[2] “La più grottesca extraordinary rendition”, Claudio Fava, “Quei bravi ragazzi”, Sperling, 2007.

[3]Tullio Scovazzi, “Tortura e formalismi giuridici di basso profilo” in Rivista di diritto internazionale, 4, 2006.

 

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Public Conscience and the Evolution of International Law

The concepts of “public conscience” and “principles of humanity” have played a crucial role in the evolution of international law in the last century. The ambiguity of the terms, and the lack of a clear definition and scope, have permitted a creative application of the principles and have fostered extensive interpretations of norms. This post intends to examine these non-legal concepts, in an attempt to further strengthen their contribution to the development of international law.

The role of public conscience and dictates of humanity in the evolution of international law

The international law principles of “laws of humanity” and “dictates of public conscience” have gained relevance during the 19th Century. First mentioned in the so-called Martens Clause[1], these principles were reiterated, albeit with varied wording, in several humanitarian law and human rights treaties.[2] Their role and purport in international law were examined by the International Court of Justice and by human rights bodies. International Criminal Tribunals, from Nuremberg to the ICTY, also relied on these principles.[3] They are currently recognized as principles of international law, applicable in times both of armed conflict and of peace.

The existence of a public conscience that expresses “sentiments of humanity”[4] is a phenomenon conceived at the end of the 18th Century and has been growing ever since. The affirmation of this notion in international law allowed progressive interpretations of international agreements by judges and treaty bodies, and a constant evolution of customary law.

The notion of public conscience, meaning public opinion, or vox populi, played a crucial role in promoting negotiations of treaties and conventions[5]. In so doing, it shaped a “large body of public international law derived from humanitarian sentiments and centred upon the protection of the individual”[6].

After the Second World War, indeed, the diffusion of democratic regimes in various continents, with the parallel phenomena of decolonisation, globalisation, and the – albeit partial – democratisation of the international system, provided the public opinion with a fundamental role in the evolution of international law. Media development, together with technologies, gave further strength to the phenomenon. Across the decades, plenty of observers monitored and reported the positions of States delegations in diplomatic meetings. In so doing, the presence of civil society mitigated the adoption of decisions based purely on State interests, and promoted decisions taken in the interests of other sectors of society, or again, for the common interests of mankind.

As for the notion of humanity, it has also played a crucial role in the conclusion of international agreements in the last century. The history of the law of treaties experienced a gradual change. From bilateral treaties concluded in the name of state interests, and mainly under the principle of reciprocity, multilateral treaties thrived, throughout the 20th Century and especially from the aftermaths of World War II, with a different purpose: to safeguard the common interests of mankind.[7]

Public opinion is considered to have crucially contributed, for instance, to the adoption of treaty prohibitions on bacteriological (biological) and chemical weapons; to the negotiation of the 1997 Ottawa treaty, a disarmament treaty prohibiting antipersonnel land mines; and to the inclusion, in the Rome Statute of the International Criminal Court, of the war crime of conscripting and enlisting children into armed forces or groups. [8]

This view of the impact of public opinion  on the adoption of treaties implies a univocally positive influence of public opinion on the evolution of international law: in so doing, it gives an oversimplified perspective of the “public conscience” notion , which takes for granted that the vox populi only advocates positive instances of protection of human dignity and peaceful relations in the international community. Rather, the public conscience has a wide range of opinions and sentiments to be expressed, e.g. discriminations and hatred based on identity. So far, its voice was generally expressed by NGOs advocating progressive instances of humanitarian concern and of human rights protection. Should the trend of public involvement persist, different opinions and sentiments, not necessarily corresponding to the interests of humanity, could enter the international debate. The complexity of the concepts at stake invites a deeper reflection, in order to fully enquire into the potential value of these principles.

Sentiments of humanity, a possible definition

In order to find a definition for “sentiments of humanity” it is worth using the theory offered by a recent branch of psychology[9], which stems from an interpretation that is spread widely over various cultures since ancient history. This theory distinguishes between three kinds of human “sentiments”, which reflect istinctivity, emotivity and rationality. The three originate from different parts of the brain, respectively: the cerebellum, the limbic system and the neocortex, typical of different phases of the evolution of the human species. The three can be defined with the greek words of the three kinds of love: eros, philia and agape.

Eros is the instinctual feeling. It is related to anger, to joy, to sexual passion, but it is also related to inner values, e.g. a sense of justice. The deep feeling that allows distinction between what is right and what is wrong. In this interpretation, the concept of eros encompasses its etymological opposite, thanatos, by including both positive and negative instincts. Agape is the emotive side of love, reflecting the Latin word caritas. It relates to affection and a sense of protection towards the family. It is the love between mother and son, brother and sister, and also the kind of faith that links religious entities to human beings. Finally, philia is the admirative and contemplative love. It allows understanding and cognisance of being part of the entire humanity, to feel empathy for other human beings, not only for family or national links, but in the quality of members of mankind.

Each kind of sentiment has a certain impact on positions and opinions that concern the international community. For example in a situation of armed conflict, Eros is logically associated to violence, to the brutal instinct that leads people to harm other people. At the same time, it can inspire action against war and its consequences. For instance, it might be the instinctual feeling that inspired the first development of the laws of armed conflict, with Henry Dunant’s action after the battle of Solferino. The most powerful leaders are similarly inspired by strong inner values of righteousness and justice.

In the same way, agape’s impact is twofold. As an emotive love, it can foster solidarity among people; it can rebuild confidence and trust in communities. But agape can also have a negative impact as far as it constitutes an exclusive, and not an inclusive, sentiment. The feeling of agape is not directed towards any other human being, it is not erga omnes. Rather, it is directed to a specific group of people, of the same family, the same identity. Consequently, agape contributes to building divisions between people and nations. Furthermore, since agape encompasses love towards a divinity, it can foster religious hatred or fanaticism.

Philia is the only kind of love to inspire empathy towards all human beings, without personal gain, without distinction of nationality, religion or any other identity ground. It can be defined as the consciousness of being interlinked to all other human beings. It allows one to feel and conceive that mankind has common interests to pursue. Philia is the specific “love towards humanity” that contributed to the evolution of international law. Fundamental concepts of international law such as “crimes against humanity”, the ICRC’s fundamental principle of humanity and the concept of “public conscience” mentioned in the Martens Clause, are permeated by this “humanitarian sentiment”, as it is the inalienable and universal human dignity, which is the basis of human rights law.

Conclusion

In the last century, public conscience has played a crucial role in the evolution of international law, and it can still contribute to the development of humanitarian protection and human dignity in general. However, it is necessary not to overlook the possibility of negative manifestations of public conscience and to promote only one specific aspect, i.e., the consciouness of being part of the same humanity, or philia. This is the notion that so far has emerged in international negotiations, constituting the background condition allowing international actors to advocate international law agreements and, ultimately, pursue the common interests of mankind.

[1]              First included in the Hague Convention II with Respect to the Laws and Customs of War on Land of 1899.

[2]                             Theodor Meron, The Humanization of International Law, Brill Nijhoff, The Hague, p. 21, 2006.

[3]              Meron, op. cit., p. 23.

[4]              International Court of Justice, Corfu Channel Case, Individual Opinion by Judge Alvarez, 1949.

[5]           Tetsuya Toyoda, Influence of Public Opinion on International Law in the Nineteenth Century,  Alberta Law Review, Vol 46, No 4, 2010.

[6]              Jean Pictet, The need to restore the Laws and Customs relating to armed Conflicts, in International Review of the Red Cross, 9, pp 459-483, 1969.

[7]              “In fields such as public health, communications, maritime security, protection of maritime resources, literary, artistic and scientific property, metrological unification, and protection of certain basic human rights, multilateral treaties were called upon to serve an entirely new purpose: the defence of the common interests of mankind.”

Paul Reuter, Introduction to the Law of Treaties 2-3 (2nd ed. 1995) cit. in Meron, op. cit.

[8]              The three examples are proposed by Theodore Meron, op. cit. p. 21-23.

[9]              Claudio Naranjo, Character and Neurosis: An Integrative View. (Gateways). Nevada City, 1994.

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The International Criminal Court and the Responsibility to Protect: Is this Marriage to be Performed?

Introductory remarks

The International Criminal Court (hereinafter, the ICC or the Court) and Responsibility to Protect (hereinafter, the RtoP or the Doctrine) have a remarkable number of aspects in common. They share a parallel history, both having developed in the last decade; a common cultural background, privileging individual dignity over state sovereignty; and mutatis mutandis they both pursue the aim of preventing and putting an end to mass atrocities and international crimes. Many have separately examined different aspects of both the Doctrine and the Court, only a few have enquired of the relationship between them. One reason of this scholastic lacuna is that the RtoP and the ICC fall within different — and often incommunicable — fields of study. Using the effective metaphor of the three separate tribes of international law (internationalists, pénalists, droit de l’hommistes)[1], the RtoP has been researched mainly by internationalists, given its impact on the State sovereignty, the ius ad bellum and on the UN system. On the other hand, the studies related to the ICC generally have an international criminal law or transitional justice approach. As a result, the RtoP and the ICC are usually examined as separate areas of study, regardless of the potential dynamics and synergies between them.

From both a methodological and practical point of view a comparison between a judicial institution and a Doctrine can be controversial. Indeed, the ICC is a permanent Court established by an international treaty, that is the 1998 Rome Statute, which clearly defines the functioning of its organs. Conversely, the RtoP is a concept still in evolution. Various subjects (the UN Secretary General, the Security Council and single States) have been able to stretch the Doctrine according to different contexts and purposes (international cooperation, humanitarian intervention), creating what has been defined as a “Tower of Babel”. Thus, the Doctrine is to be considered as a tool for diplomacy, rather than for international criminal justice. This notwithstanding, under different perspectives, a strong synergy exists between the two.

After a decade of parallel evolution (from the comprehensive analysis of the International Commission on Intervention and State Sovereignty of 2001 and the entry into force of the Rome Statute in 2002), the 2009 UN Secretary General Report “Implementing the Responsibility to Protect” expressly marked the connection between the Doctrine and the Court. According to Ban Ki-Moon, indeed, [b]y seeking to end impunity, the International Criminal Court and the United Nations-assisted tribunals have added an essential tool for implementing the responsibility to protect, one that is already reinforcing efforts at dissuasion and deterrence. Two years later, the UN Security Council adopted Resolution 1970 of 2011 through which it referred the situation of Libya to the ICC. The Resolution recalled “the Libyan authorities’ responsibility to protect its population” and therefore made these parallel histories intersecting and affirmed the existence of a relationship between the Doctrine and the Court in facing a situation of crisis.

Still, it is unclear whether an effective interplay between the doctrine and the Court is in fact desirable. The paper will consequently present the arguments in favour and against the synergy between the ICC and the RtoP, identifying the current obstacles to the celebration of their marriage.

Adelante, con juicio: Reasons for a Synergy

The ICC and the RtoP share the same philosophical origin, namely, what has been defined as liberal cosmopolitanism. This school of thought, which dominated the UN discourse in the 1990s, considered universal democracy and criminal justice as the best ways to achieve global peace. The main differences between the Doctrine and the Court might indeed be interpreted as an opportunity to complement each other by fulfilling the aim of ending mass atrocities, while holding those responsible for the commission of international crimes accountable.

Since the moment its Statute was drafted, the ICC has been referred to as a “Giant without legs”. Such an expression emphasises the strength of the legal structure of the Court and, at the same time, its dependency on the cooperation of States when it comes to implement its decisions. Conversely, as a diplomatic tool, the RtoP can influence state policies, to the point of challenging their sovereignty, in order to protect their populations from mass atrocities. Yet, the Doctrine lacks a defined legal framework for its action, which exposes RtoP to the risk of being misused by political actors. In any case, theoretically, the RtoP might empower the ICC with the necessary State cooperation to effectively carry out investigations and prosecutions in a certain situation. At the same time, the Court may provide the Doctrine with an independent judicial scrutiny for its action.

More generally, the action of the ICC in certain situations could ideally have a deterrent effect in relation to the perpetration of mass atrocities, thus contributing to the purpose of the RtoP. However, the ICC’s deterrent effect is highly disputed. Many scholars affirm that it is too early to reach definitive conclusions about the possibility for the Court to deter international crimes. Some critics in fact accuse the ICC of causing the opposite effect, by jeopardising peace processes and, as it has been the case in the Darfur situation and on the occasion of the Court’s issuing of the arrest warrants for al-Bashir, provoking violent reactions by politically-influential individuals when charged with international crimes.

“This Marriage is not to be Performed”: Arguments Against a Synergy

The ICC and the RtoP also share the fact of experiencing a paradoxical contradiction. They were in fact both conceived to be independent from any political power in order to affirm the principle of rule of law. Only then it would have been possible to end impunity with regard to the perpetrators of international crimes and identify those appropriate cases that would need an intervention of the international community to end mass atrocities. Conversely, both the Court and the Doctrine have been subjected to criticisms for applying double standards and being influenced by political powers, including the permanent members of the Security Council.

The influence of the Security Council over the ICC is partially regulated by the Rome Statute. The Council is indeed empowered inter alia to trigger the jurisdiction of the Court and to temporarily suspend its proceedings. Most importantly, part of the influence is exerted through extra-legal pressures (most notably, the lack of support to obtain the necessary cooperation by relevant States), which are in fact difficult to contrast with any statutory countermeasures. In addition, the ICC is struggling to carry out its action in situations where it is expected to play a role in contrasting on-going atrocities. As for the Libya situation, for instance, the Security Council specifically mentioned the RtoP when it triggered the Court’s jurisdiction through Resolution 1970/2011. However, so far the ICC has not been able to prosecute the responsible persons. The Prosecutorial strategy privileged domestic proceedings over international prosecution, despite risks of grave violations of the due process rights of the accused.

At the same time, RtoP received similar criticisms for lack of impartiality. The Doctrine has been recalled by different actors with contradictory criteria. The opposite approaches of the international community towards the 2011 Libya and 2013 Syria crises are recalled as examples of double standards. The absence of a clear legal framework shows that the Doctrine has not reached a definitive shape. Even the core elements of the RtoP, such as the concept of “sovereignty as responsibility”, are challenged within diplomatic talks in order to obtain a wider support among States. Given the current situation, the Doctrine is not able to contribute to the implementation of international justice in a situation of crisis, nor can it benefit from a judicial scrutiny of the Court for assessing situations where intervention is worthwhile.

Conclusions

As in Manzoni’s novel “The Betrothed”, many obstacles occur in the celebration of the marriage between the ICC and the RtoP. Their common sources, their shared cultural origin, or DNA, might lead one to conclude that it would be even better not performing the union at all. However, given their recent creation, which is less than 15 years ago, it might be too early for an effective interplay between the two. Both the Court and the Doctrine are still in the process of developing their identity, by finding their place within the international law system and, most of all, struggling for their independence from the political power.

[1]Clapham A., ‘Concluding Remarks: Three Tribes Engage on the Future of International Criminal Law’, in Journal of International Criminal Justice, (2011), 9, 689.

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The International Criminal Court in Libya: a new leeway for fair trial concerns in determining the admissibility of a case.

The “Game of Roles” paradox in presence of due process concerns

In the words of the Preamble of the Rome Statute, the International Criminal Court (ICC) was established to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community. The ICC was conceived to prosecute individuals for crimes which were not effectively dealt with by domestic judicial systems, under the well known principle of complementarity.[1] The Statute empowers the Prosecutor to request arrest warrants and summons to appear, and grants the accused the right to challenge the admissibility of the case.

The practice of the Court has so far developed in an unexpected way. The ICC was able to play a role in situations of high political instability that was arguably outside the scope of its intended mandate. This is the case of Libya: a situation of grave international crimes perpetrated within an armed conflict that ultimately resulted in a regime-change. In this sort of situation, there is no risk that the alleged perpetrators be granted impunity. On the contrary, they rather risk to be subject to a victor’s justice that does not result in a trial respecting the basic international standards of due process of law.

The ICC intervened in Libya pursuant to Security Council Resolution 1970 of February 2011. Upon the Prosecutor’s request, in June 2011 Pre-Trial Chamber I issued three arrests warrants, against Muammar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi. Among other charges, the three individuals were accused of crimes against humanity for attacks against the civilian population taking part in demonstrations against Gaddafi’s regime. In October 2011, Muammar Gaddafi was killed in the battle of Sirte and his case was terminated. Following a Libyan challenge to ICC jurisdiction, the Pre Trial Chamber declared Saif Gaddafi’s case admissible, whereas it decided that Al Senussi be tried in Libya. In the latter case, Al Senussi’s Defence appealed to obtain a trial in front of the ICC, but the Prosecutor supported Libya’s arguments.

As a result, the situation experiences a controversial overturn in the expected roles of the relevant subjects. On the one hand, the ICC Prosecutor does not seek prosecution, but to defer the case to the local judiciary. On the other hand, the accused appeals against his own State, to affirm that it is unable or unwilling to genuinely prosecute him, in a sort of challenge of inadmissibility.

The due process thesis

In affirming Gaddafi’s case admissible and Senussi’s case inadmissible, the Court analysed Libya’s willingness and ability genuinely to prosecute the two accused under various grounds. It is worthwhile to focus on the contribution of the case to the due process thesis, i.e. the idea that the ICC could determine a case admissible on the basis of violations of the accused’s right to a fair trial.

Then Prosecutor Ocampo opposed the arguments based on due process concerns, stating that the Court cannot accept an admissibility challenge solely on the ground that the State’s procedures are not fully consistent with international standards of due process. Prosecutor Bensouda confirmed the same approach and expressly denied the possibility to challenge the Libyan willingness and ability based on fair trial rights alone.

On the contrary, Senussi’s and Gaddafi’s defence argued that the Court should declare a case admissible if the accused does not receive an acceptable trial in accordance with the basic international standards of due process.

The arguments against the due process thesis stem from the travaux preparatoires of the Rome Statute. At that time, the Italian proposal to include “full respect for the fundamental rights of the accused” among the criteria for deciding on issues of admissibility was rejected.[2] This demonstrates that the drafters did not conceive the ICC as a human rights court.

Furthermore, according to Art. 32 of the Vienna Convention on the Law of Treaties the travaux preparatoires are only supplementary means of interpretation. Relying on a textual interpretation of the Rome Statute, which is in fact the primary mean of interpretation of treaties, leading scholars have held that the due process criteria are not relevant to determine the admissibility of a case. However, the Statute arguably does not exclude the possibility for the Court to take fair trial concerns into account. Articles 17.1a and 17.2b of the ICC Statute are particularly relevant in this regard: according to the former, a case is admissible when the State of jurisdiction is “unwilling or unable genuinely to carry out the investigation or prosecution” whereas according to the latter, the willingness of such a State should be determined with regard to its “intent to bring the person concerned to justice”.

The ambiguous reference to the ‘genuineness’ of the investigation or prosecution allows the Court to have a certain margin of manoeuvre in its findings. Indeed, the meaning of ‘genuine’ is neither further clarified nor elaborated in the text, in stark contrast to other potentially vague terms (such as unwillingness or inability) or other alternative words that were considered by the drafters (such as good faith).

The Oxford English Dictionary defines ‘genuine’ as “having the supposed character, not sham or feigned”. This may allow a broad interpretation of the term that in fact might include due process concerns.

The expression “to bring to justice” bears similar ambiguities. Indeed, it can be interpreted as the intention to bring a person to court and face a trial, or just to “hold a person accountable” or, as affirmed by some scholars, directly “to convict”. The first interpretation is arguably supported by the references to “principles of due process recognized by international law” in the chapeau of art. 17.2. The second interpretation could be supported by the wording of art.17.2a, specifying the ‘purpose of shielding somebody from criminal responsibility’ as an indicator of unwillingness to prosecute. Still, the ambiguity of the text does not hinder the Court from using the first interpretation, including due process rights in the textual concept of “justice”.

Leeway for the due process thesis in Al-Senussi and Gaddafi case

In its decision on the admissibility of the case against Al-Senussi of 11 October 2013, the Pre-Trial Chamber emphasised that it is not just any alleged departure from, or violation of, national law that may form a ground for a finding of unwillingness or inability. The Chamber will take into account only those irregularities that may constitute relevant indicators of one or more of the scenarios described in article 17(2) or (3) of the Statute. In other words, the Chamber allows taking into account certain violations of national procedures, only in case those violations make such procedure inconsistent with the intent to bring the person of concern to justice.

In its judgment on the appeal of Al-Senussi of 24 July 2014, the Appeals Chamber went further. First, it disregarded the determination of fair trial concerns in the case at stake: Taking into account the text, context and object and purpose of the provision, this determination is not one that involves an assessment of whether the due process rights of a suspect have been breached per se.

Then, relying on an interpretation of the wording “to bring to justice” similar to the one mentioned above, it expressly recognized that a grave violation of due process rights of the accused can make a case admissible, although only in extremely limited circumstances whereby violations of the rights of the suspect are so egregious that the proceedings can no longer be regarded as being capable of providing any genuine form of justice to the suspect so that they should be deemed, in those circumstances, to be “inconsistent with an intent to bring the person to justice.

In her recent report to the Security Council in November 2014, the Prosecutor seemed to have left room to the due process thesis: [A]s it concerns the trial of Abdullah Al-Senussi in Libya, […] The on-going violence and alleged threats to judges, prosecutors and lawyers do not augur well for a fair trial […] I will assess my options in due course, including whether to apply for a review of the judges’ decision up-holding Libya’s request that the case against Al-Senussi be tried in Libya.

Conclusions

The plainest interpretation of the Rome Statute’s wording, as well as its travaux preparatoires, may not support the view that due process concerns are relevant to the admissibility of a case before the ICC. However, the Libya situation is requiring the Court to play a delicate and unexpected role. By opposing the Prosecutor in claiming a fair trial in the Hague, an accused has challenged the structure provided by the Rome Statute. Both the Appeals Chamber and the Prosecutor have affirmed the possibility to consider grave violations of fair trial rights in determining the admissibility of a case. By ceasing to disregard fair trial abuses in domestic courts, the ICC would better contribute to fulfil its purpose to enforce international justice.

[1] Art. 1, Rome Statute of the International Criminal Court.

[2] Draft Proposal by Italy, UN Doc. A/AC.249/1997/WG.3/IP.4, 5 August 1997.

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The Framework of Analysis for Atrocity Crimes and the Harmonisation of the UN Actions to Protect Civilians

Over the last years, the protection of civilians from mass atrocities has become a priority for the United Nations. The doctrine of the Responsibility to Protect and the Human Rights up Front initiatives constitute the main outcome of the international community’s focus on civilian protection. However, the two measures have not yet achieved the expected results, and they seem to require a comprehensive harmonisation strategy to improve their effectiveness.

The most recent initiative, drafted by the Special Adviser on the Prevention of Genocide and the Special Adviser on the Responsibility to Protect, is the Framework of Analysis for Atrocity crimes (hereinafter, the Framework or the document) which defines sensitive concepts and proposes a structured action plan to prevent atrocity crimes. In so doing, the Framework may represent a first step towards coordinated UN action in the protection of civilians.

The Framework of Analysis for Atrocity Crimes

In 2005, the General Assembly endorsed the doctrine of the Responsibility to Protect as a reply to the international community’s inadequate response to the atrocities of the ‘90s, in particular, the genocides in Rwanda and Srebrenica. According to the doctrine, every State is responsible for the protection of its population from atrocity crimes. Additionally, the international community has a responsibility to help states to build the capacity to provide this protection, and is also required to step in to act directly to protect populations affected by mass atrocities where a State manifestly fails to protect them.

In spite of the development of this doctrine, in 2012 the Report of the Secretary General’s Internal Review Panel on UN action in Sri Lanka denounced the “systemic failure” of the UN reaction to the 2009 Sri Lanka armed conflict. As a result, the UN Secretary General Ban Ki Moon responded, in late 2013, with a new initiative: Human Rights Up Front. The initiative provides for a series of 6 actions,[1] in the spirit of the UN Charter,[2] to ensure that the UN system takes early and effective action to prevent or respond to large-scale violations of human rights or international humanitarian law.

Still, in 2014 the international community and, in particular, the Security Council demonstrated again that it was incapable of undertaking coordinated and effective action in response to mass atrocities committed, among others, in Iraq, Syria, the Central African Republic, and South Sudan. The approach established in the Responsibility to Protect and in Rights Up Front did not provide for sufficient coordination between the UN initiatives or for an effective action procedure.

In an attempt to strengthen the protection mechanism through harmonising the approach to UN action, the Special Adviser on the Prevention of Genocide and the Special Adviser on the Responsibility to Protect have developed a Framework of Analysis for the Prevention of Atrocity Crimes. Launched in December 2014, the Framework was conceived as a guide for assessing the risk of genocide, crimes against humanity and war crimes. Most of the document comprises an early warning analysis mechanism that should assist in the identification of a sensitive situation before it escalates into a crisis involving mass atrocities.

The Framework also covers other crucial aspects which deserve some attention since they have a bearing on the overall UN approach to the protection of civilians. Moreover, in the foreword of the document, Secretary General Ban Ki Moon recalls both the Responsibility to Protect doctrine and the Rights Up Front initiative; thus, the document can become a useful tool in the development, interpretation and application of both measures. First, it provides a common language by defining concepts, such as “atrocity crimes”, which were previously used without a specific definition under international criminal law. The document replaces the previous “Framework of Analysis” drafted in 2009 by the Special Adviser on the Prevention of Genocide and which dealt exclusively with the crime of genocide. With the inclusion of the Special Adviser on the Responsibility to Protect, the new Framework covers the broader, less clearly defined concept of “atrocity crimes”. Second, it focuses on the role of the international community in prevention, a clear common point between Rights Up Front (with the informative role of the UN Secretary-General) and the Responsibility to Protect (with the second pillar, assisting States in protecting populations). This also affirms the existence of a customary international obligation to prevent atrocity crimes and proposes a tool to identify situations of crisis before atrocity crimes are committed.

Definition of crimes and delimitation of parameters

The Framework first defines “atrocity crimes”. According to the document, the expression includes three legally defined international crimes: genocide, crimes against humanity and war crimes. In addition to these, ethnic cleansing is mentioned as a crime that is not defined under international law, but “includes acts that are serious violations of international human rights and humanitarian law that may themselves amount to one of the recognized atrocity crimes, in particular crimes against humanity”. However, for the purpose of the examination of the risk factors of atrocity crimes, ethnic cleansing is integrated into the analysis of crimes against humanity.

It is also noteworthy that the Framework is limited, in its application, only to those war crimes that have an impact on the protection of human life. In addition, the document includes a further requirement, that the mechanism is only triggered in respect of war crimes that “assume a more systematic or widespread pattern of conduct”, using the same language which defines the threshold of crimes against humanity.

Prevention

The Framework expressly focuses on the prevention of atrocity crimes and the breakdown of a situation into one where widespread mass atrocities are committed. In so doing, the document lays out not only the intention to protect civilians, but also the broader aim to preserve regional, international peace and stability.

In its support for the commitment to prevent atrocity crimes, the Document affirms the existence of a customary obligation to prevent genocide, crimes against humanity and war crimes. The customary nature of the prevention obligation is supported by the Framework’s reiteration of the main international treaties dealing with international crimes and violations of international humanitarian law: art. 1 of the 1948 Genocide Convention,[3] art. 2 of the 1984 Convention against Torture,[4] and common art. 1 of the 1949 Geneva Conventions, which can be interpreted as including an obligation to prevent violations of international humanitarian law, including war crimes. Interestingly for the collective action of the international community in protecting civilians, the Framework further mentions the development of the concepts through international tribunals’ jurisprudence and specifies that the obligation to prevent genocide is not territorially limited. This reflects the position taken by the International Court of Justice, in the 2007 Bosnia v. Serbia case, that every State with a “capacity to influence effectively the action of persons likely to commit, or already committing genocide”, even if outside its own borders, is under the obligation “to employ all means reasonably available to them, so as to prevent genocide so far as possible”.[5]

Conclusions

Over the past decade, despite the different measures taken within the UN, the international community’s capacity to address atrocity crimes has not improved. The UN Secretary General and his Special Advisers on Genocide and on the Responsibility to Protect do not have the hard power to undertake direct action against mass atrocities. Member States, starting from the Permanent members of the Security Council, are those empowered to respond to ongoing crises, by providing coordinated action and consistent resources.

The political will of States is a necessary precondition for guaranteeing human protection. Still, UN institutions can influence member States and their public opinion by providing information and directing attention to the most urgent situations. By proposing a common language, a common focus and a standard procedure, the Framework of Analysis for the Prevention of Atrocity Crimes has the potential to become a helpful tool to improve the the effectiveness and consistency of the action of the UN bodies.


[1]              Action 1: Integrating human rights into the lifeblood of the UN so all staff understand their own and the Organization’s human rights obligations. Action 2: Providing Member States with candid information with respect to peoples at risk of, or subject to, serious violations of human rights or humanitarian law. Action 3: Ensuring coherent strategies of action on the ground and leveraging the UN System’s capacities to respond in a concerted manner. Action 4: Clarifying and streamlining procedures at Headquarters to enhance communication with the field and facilitate early, coordinated action. Action 5: Strengthening the UN’s human rights capacity, particularly through better coordination of its human rights entities. Action 6: Developing a common UN system for information management on serious violations of human rights and humanitarian law

[2]              BOON, Assessing the UN’s new “Rights Up Front” Action Plan, http://opiniojuris.org/2014/02/27/assessing-uns-new-rights-front-action-plan/

[3]             Article I The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish. Convention on the Prevention and Punishment of the Crime of Genocide, Adopted by the General Assembly of the United Nations on 9 December 1948.

[4]             1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Adopted by the General Assembly of the United Nations on 10 December 1984.

[5]    Par. 430.

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Hibernating the Darfur Situation: the Security Council’s influence over the International Criminal Court

In her Report to the Security Council of 12 December 2014, the International Criminal Court Prosecutor Fatou Bensouda announced the decision to put investigations into the Darfur situation on hold[1]. The Prosecutor reiterated the impossibility of obtaining any meaningful result in the situation without a change of attitude from the Security Council, whose inaction was repeatedly criticised also in her previous reports. Bensouda blamed the Council for not supporting the Court in different issues: the development of a coordinated strategy, the achievement of cooperation from Sudan, and the enforcement of the arrest warrant by other State Parties.

The Prosecutor’s decision calls for a general reflection on the influence of the Security Council over the actions of the Court. Such an influence is partially foreseen by the Rome Statute, which regulates the relationship between the two bodies. Most of the influence however arises from the Council’s policies and goes beyond any legal provision. This suggests that during politically inconvenient situations the Council could jeopardize the Court’s actions through extralegal policies, without consulting the relevant statutory provisions.

The Darfur situation

As Fatou Bensouda remarked, in almost 10 years of action in Darfur none of the individuals subject to an arrest warrant have been brought to justice. Most notably, Omar al-Bashir, charged with crimes against humanity, war crimes and genocide, is the sitting President of Sudan; in power since 1989, Bashir will run for re-election next April. State Parties to the Rome Statute have an obligation to enforce the arrest warrant despite other international obligations providing the respect for chief of state immunities. Albeit with growing difficulties, Bashir carries out official missions in State Parties to the Rome Statute (Chad, Malawi, Kenya, Democratic Republic of Congo) without fear of arrest. As a result, every decision in the case since 2010 has only been concerned with the lack of cooperation from Sudan and other State Parties in enforcing the arrest warrant[2] .

Meanwhile, humanitarian conditions in Darfur are deteriorating. Sudan has denied access to a village, Tabit, where a mass rape of 200 women was allegedly perpetrated. The UNAMID (United Nations–African Union Mission in Darfur), one of the main sources for the Prosecutor’s investigations, was authorized to visit the village only days after the allegations at a time when the victims were still in control of the alleged perpetrators. Furthermore, UNAMID is accused of under-reporting crimes that involved pro-government forces, fearing reprisals from the Government[3].

The power of the Security Council to influence the Court in the Rome Statute

The relationship between the Council and the Court begins with the mechanism that triggers the ICC jurisdiction, detailed in Art. 13(b) of the Rome Statute. Indeed, the Security Council, acting under Chapter VII of the UN Charter can refer a situation in which one or more such crimes appears to have been committed to the Prosecutor, also extending the Court’s jurisdiction over States that have not ratified the Rome Statute. Accordingly, the Council referred the situation of Darfur to the ICC through Resolution 1593/2005 giving the Court jurisdiction over Sudan, a non-State Party to the Rome Statute.

The second statutory link between the Council and the Court is provided by Art. 16 of the Rome Statute. Still acting under Chapter VII of the UN Charter (in circumstances where the actions of the ICC lead to threats to peace, breaches of peace, or acts of aggression), the UN Security Council has the power to block the proceedings for a period of 12 months, which can be renewed by another resolution. Attempts to exercise this avenue were made in the Darfur situation, claiming to be acting in response to the destabilisation and worsening humanitarian conditions in Sudan following the issuance of the arrest warrant against Bashir. The proposal to defer the proceedings against Bashir was suggested by several States, including Permanent members Russian Federation and especially China. However, in that opportunity, the U.S. opposed the deferral of the Darfur cases.[4] Nevertheless, the Darfur investigations were ultimately suspended by the Prosecutor: without referring to the statutory provision, the Council denied the Court the necessary support to carry out its activity: the power to undertake investigations in the territory; to enforce its arrest warrants; and to cover its funding.

Extra legal influence of the Council over the Court: the lack of enforcement power

It is commonly affirmed that the ICC lacks a “police force” to implement its decisions. Even more so, in the case of referral relating to situation in a non-State Party like Sudan, the support of the Security Council is crucial to obtain cooperation for investigations within the territory. As confirmed by the events in Tabit, it is extremely difficult to collect evidence of crimes in Darfur villages controlled by the allegedly responsible Governmental forces.

Furthermore, the ICC has not been able to enforce the arrest warrants issued in the Darfur situation. In her statements to the Security Council, Fatou Bensouda regularly highlights non-cooperation from State Parties in arresting al-Bashir during his official visits in their territory. It was observed[5] that, in the last few years, Pre-Trial Chamber decisions involving non-cooperation did not include a specific request for action by the Security Council. However, replying to the Prosecutor’s report, UK representative Ms. Mulvein beseeched the Council to timely and effectively follow-up to reports of non-cooperation with the Court and to assist the Court in fulfilling the mandate established 10 years earlier.

Funding situations referred by the Security Council

In her December Report, The ICC Prosecutor mentioned that the cessation of investigations in Darfur was also due to the fact that the already limited resources for investigations were overstretched. This raises the issue of the Security Council’s funding for the Court.

In principle, as an independent international organization, the ICC is primarily financed through the contributions of the Assembly of States party to the Rome Statute. However, the Statute singles out the particular case of financing in a situation referred to the Court by the Council. Among other sources of funding, Art. 115 of the Rome Statute includes those “provided by the United Nations, subject to the approval of the General Assembly, and in particular in relation to the expenses incurred due to referral by the Security Council”. Article 13 of the Negotiated Relationship Agreement between the International Criminal Court and the United Nations states that: “The United Nations and the Court agree that the conditions under which any funds may be provided to the Court by a decision of the General Assembly of the United Nations pursuant to article 115 of the Statute shall be subject to separate arrangements”. Conversely, the Council covers the topic of funding the Court’s Darfur referral in Resolution 1593/2005, which recognizes that “none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily”.

The Rome Statute does not provide compulsory or automatic funding from the Security Council in case of referrals pursuant to Art. 13(b) of the Statute. Therefore, even if the mandate of the Statute seems to recommend a different attitude, no statutory norm is formally violated. In practice,  the Assembly of States is currently responsible for the entire budget of the Court, which has also increased because of the increasing number of situations, including those referred by the Security Council: Darfur and Libya.[6] As explained by the Prosecutor[7], the limited funding from the Council to the Court de facto jeopardizes the actions of the ICC. This constitutes a form of indirect control over the actions of the Court that goes beyond any provision of the Rome Statute, and it is possibly more effective in limiting investigations and prosecutions than the use of Art. 16 of the Rome Statute.

Conclusions

The limited funding sources available for the Court’s work together with the lack of enforcement power even towards State Parties undermine the independence of the Court. In case of future politically inconvenient investigations, not necessarily triggered by Art. 13(b), the Security Council appears to have several ways to hinder the regular development of ICC actions.

[1]                      Reports of the Secretary-General on Sudan and South Sudan, S/PV.7337,  12/12/2014

[2]                      McDermott, the ICC Prosecutor ‘shelves’ the Darfur situation: What is the Security Council supposed to do? http://humanrightsdoctorate.blogspot.it/2014/12/some-thoughts-on-shelving-of-darfur.html

[3]                      Lynch, U.N. Whistleblower Decries ‘Cover-Up of a Cover-Up’ Over Darfur Debacle, http://foreignpolicy.com/2014/10/29/u-n-whistleblower-decries-cover-up-of-a-cover-up-over-darfur-debacle

[4]                      Scheffer, The Security Council’s Struggle over Darfur and International Justice, http://jurist.law.pitt.edu/forum/2008/08/security-councils-struggle-over-darfur.php

[5]                      McDermott,  n.2

[6]                      Hamilton, When Should the ICC Call It Quits? , http://opiniojuris.org/2015/01/10/guest-post-icc-call-quits/

[7]              “Faced with an environment where my Office’s limited resources for investigations are already overstretched, and given this Council’s lack of foresight on what should happen in Darfur, I am left with no choice but to hibernate investigative activities in Darfur as I shift resources to other urgent cases, especially those in which trial is approaching.” Bensouda, n. 1

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