Category Archives: International Criminal Law

The International Criminal Court Summer School 2017 19 to 23 June 2017, NUI Galway, Ireland

The annual International Criminal Court Summer School at the Irish Centre for Human Rights is the premier summer school specialising on the International Criminal Court. The summer school allows participants the opportunity to attend a series of intensive lectures over five days. The lectures are given by leading academics on the subject as well as by legal professionals working at the International Criminal Court. The interactive and stimulating course is particularly suited to postgraduate students, legal professionals, scholars, and NGO workers. Participants are provided with a detailed working knowledge of the establishment of the Court, its structures and operations, and the applicable law. Lectures also speak to related issues in international criminal law, including: genocide, war crimes, crimes against humanity, the crime of aggression, jurisdiction, fair trial rights, and the rules of procedure and evidence.

This year’s ICC Summer School will include a topical special session on Corporate Crimes and the International Criminal Court.

The list of speakers at the 2017 ICC Summer School includes the following: Professor William Schabas (Irish Centre for Human Rights/Middlesex University); Professor James Stewart (University of British Columbia); Dr. Fabricio Guariglia (Office of the Prosecutor, International Criminal Court); Professor Megan A. Fairlie (Florida International University);  Professor Ray Murphy (Irish Centre for Human Rights); Dr. Rod Rastan (Office of the Prosecutor at the International Criminal Court); Dr. Mohamed M. El Zeidy (International Criminal Court); Professor Donald M. Ferencz (Middlesex University);  Dr. Noelle Quenivet (University of the West of England); Dr. Nadia Bernaz (Middlesex University); Dr. James Nyawo (INTERVICT, Tilburg University); Dr. Nadia Bernaz (Middlesex University); Mr. Richard J. Rodgers (Global Diligence LLP); Mr. John McManus (Crimes Against Humanity and War Crimes Section, Canadian Department of Justice); Dr. Noelle Higgins (Maynooth University); Dr. Shane Darcy (Irish Centre for Human Rights).

The registration fee of €450 includes all conference materials, all lunches and refreshments, a social activity and a closing dinner. The registration fee also includes a complimentary copy of Professor William Schabas’ book ‘An Introduction to the International Criminal Court‘. The closing date for registrations is 1 June 2017.

To register and for more information regarding the 2017 ICC Summer School, please visit their website  and follow them on Facebook or Twitter.

Should you have any queries, please email them.

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Forced marriage as an independent crime against humanity in the ICC decision confirming the charges against Dominic Ongwen

International human rights law prescribes that marriage shall only be entered into with the free and full consent of both spouses.[1] Forced marriage thus constitutes a human rights violation and is also a criminal offence in the domestic law of some countries.[2] Additionally, international criminal courts have recently determined that forced marriage may amount to a crime against humanity when forming part of a systematic or widespread attack against a civilian population. The present post analyses the evolution of this new crime against humanity, from its conceptualisation as a form of sexual slavery to its recognition as a separate crime against humanity falling under the category of ‘other inhumane acts’. The latest stage in this evolutionary process was reached by the Pre-Trial Chamber II of the International Criminal Court (‘ICC’) in its decision of 23 March 2016 confirming the charges against Dominic Ongwen.[3] By acknowledging the particular features of forced marriage and distinguishing it from sexual slavery, this decision critically enables the prosecution of the crime in situations as prima facie different as the phenomenon of ‘bush wives’ in African armed conflicts and the state policy of ‘group marriages’ enforced in Cambodia under the Khmer Rouge.

Forced marriage as subsumed by the crime of sexual slavery

The practice of forced marriage in conflict situations has been prevalent in countries including Sierra Leone, the Democratic Republic of the Congo and Uganda. Within these contexts, it has generally involved the abduction of young women ‘taken as wives’ by rebel soldiers and thereafter exposed to enslavement, rape, forced labour and forced pregnancy. Forced marriage was charged as a crime against humanity for the first time before the Special Court for Sierra Leone (‘SCSL’) in the case of Prosecutor v. Brima, Kamara and Kanu (‘the AFRC case’).[4] The main point of contention regarding this charge in the SCSL Trial Chamber’s decision was whether to characterise forced marriage as a separate crime against humanity, under the category of ‘other inhumane acts’ in article 2(i) of the SCSL Statute, or as a predominantly sexual crime amounting to a form of sexual slavery.

The Prosecution argued that acts of forced marriage are ‘distinct from sexual acts, because they force a person into the appearance of marriage by threat or other coercion.’[5] Accordingly, it alleged that forced marriage qualified as the crime against humanity of an ‘other inhumane act’, the key element for its characterisation as such being that the conduct is of similar gravity to other listed crimes against humanity.[6] The Trial Chamber, however, rejected this view on the basis that the evidence was not capable of establishing a crime of forced marriage distinct from sexual slavery. It determined that the relationship between the perpetrators and the victims of forced marriage was one of ownership – a constituent element of the crime of sexual slavery – and that the use of the term ‘wife’ merely indicated the intent of the perpetrator to exercise said ownership.[7] The Trial Chamber held that the victims of forced marriage within the armed conflict in Sierra Leone did not endure particular trauma from the mere use of the label ‘wife’, over and above the harm ensuing from the ‘sexual slavery’ element of the crime. It went so far as considering that, even if there had been evidence of such additional trauma, the crime would not be of similar gravity to the other listed crimes against humanity, a condition for being characterised as an ‘other inhumane act’.[8] The majority of the Trial Chamber, Justice Doherty dissenting, concluded that forced marriage is completely subsumed by the crime of sexual slavery and that ‘there is no lacuna in the law which would necessitate a separate crime of ‘forced marriage’ as an ‘other inhumane act.’[9]

Forced marriage as a separate crime against humanity

The SCSL Appeals Chamber overturned this decision on the basis that forced marriage as practised in Sierra Leone amounted to more than sexual slavery both in terms of the conduct itself and of the ensuing harm.[10] In the first place, it considered that ‘the perpetrators of forced marriages intended to impose a forced conjugal association upon the victims rather than exercise an ownership interest and that forced marriage is not predominantly a sexual crime.’[11] The Appeals chamber emphasised that this marital relationship entailed mutual obligations for both parties, the ‘wives’ being coerced into performing various duties, including sexual intercourse, domestic labour and forced pregnancy, while the ‘husbands’ provided food, clothing and protection, notably against rape by other men. It underlined the exclusive character of the relationship, at least on the part of the victim, as an element distinguishing forced marriage from sexual slavery and giving a different dimension to the crime.[12]

Contrary to the Trial Chamber, the Appeals Chamber also considered that the imposition of marriage on the victims resulted in suffering of similar gravity to that caused by the other listed crimes against humanity and that forced marriage was thereby capable of qualifying as an ‘other inhumane act’. It stressed that, in addition to the harm ensuing from the ‘sexual slavery’ element of the crime, ‘bush wives’ and their children born from the forced marriage ‘suffered long-term social stigmatisation’ by their association with the perpetrators and faced difficulties in reintegrating their community after the war.[13] The Appeals Chamber defined forced marriage as ‘a situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or physical, mental or psychological injury to the victim.’[14] It found that, when forming part of a systematic or widespread attack against a civilian population, this practice amounts to the crime against humanity of an ‘other inhumane act’.

The phenomenon of ‘bush wives’ differs in several respects from forced marriage as practised in Cambodia under the Khmer Rouge. In the latter context, forced marriage was one element of a state policy aiming to assert complete control over every aspect of the lives of individuals, including their sexuality. It involved the selection of spouses by the regime leadership on the basis of their membership to a same category of people. Their marriage in ‘group weddings’ were solemnized by the swearing of an oath of loyalty to the Khmer Rouge.[15] Forced marriage in Cambodia pursued the primary aims of severing pre-existing family ties, in order to guarantee complete loyalty to the regime, and controlling the procreation of individuals, rather than subjecting the victims to sexual slavery.

In the closing order of case 002, the Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia (‘ECCC’) qualified forced marriage as the crime against humanity of an ‘other inhumane act’, following the definition set out by the SCSL Appeals Chamber.[16] They determined that acts of forced marriage practised under the Khmer Rouge satisfied the elements of this definition since they were part of a widespread attack against the civilian population and entailed the forced imposition of a marital status on the victims, which resulted in severe physical or mental suffering of a degree of gravity comparable to the other listed crimes against humanity.[17] The applicability of the SCSL Appeals Chamber definition to situations as different as the ‘bush wives’ phenomenon in African armed conflicts and the Khmer Rouge policy of forced marriage seems to confirm the viability of this crime as a separate crime against humanity distinct from sexual slavery.

The evolving position of the ICC

In the decision on the confirmation of charges against Katanga and Ngudjolo, the ICC’s Pre-Trial Chamber I seemed to agree with the SCSL Trial Chamber that forced marriage is a form of slavery. Indeed, when considering a charge of sexual slavery, it held that this crime ‘also encompasses situations where women and girls are forced into “marriage”, domestic servitude or other forced labour involving compulsory sexual activity, including rape, by their captors.’[18]

However, in the more recent decision on the confirmation of charges against Ongwen, the ICC’s Pre-Trial Chamber II took note of the evolution of the definition of forced marriage in the case-law of the SCSL and of the ECCC. It confirmed that forced marriage ‘constitutes the crime of an other inhumane act within the meaning of article 7(1)(k) of the [Rome] Statute’, warranting a charge distinct from sexual slavery.[19] The ICC Chamber concurred with the SCSL Appeals Chamber in finding that ‘the central element of forced marriage is the imposition of “marriage” on the victim, i.e. the imposition, regardless of the will of the victim, of duties that are associated with marriage, as well as of a social status of the perpetrator’s “wife”’.[20] It also underlined the exclusivity of this conjugal relationship as ‘the characteristic aspect of forced marriage’, an element distinguishing the crime from sexual slavery and other crimes against humanity.[21] With regard to the ensuing harm, the ICC Chamber held that the social stigma resulting from the imposition of marriage entails ‘that the victims of forced marriage suffer separate and additional harm to those of the crime of sexual slavery, or other crimes under the Statute.’[22] Indeed, it determined that the interest protected by the characterisation of forced marriage as an ‘other inhumane act’ is ‘the basic right to consensually marry and establish a family’, as enshrined in international human rights instruments, which differ from the values underlying the crime of sexual slavery, i.e. physical and sexual integrity.[23]

Conclusion

International criminal courts appear to have settled on the view that forced marriage, when forming part of a widespread or systematic attack against a civilian population, may amount to the crime against humanity of an ‘other inhumane act’ if the conduct satisfies two elements, irrespective of whether it also amounts to sexual slavery. The first is the imposition of marriage on the victims without their consent. The second requires that this forced conjugal association inflicts severe physical or mental suffering on the victims. This definition has proved to be, on the one hand, wide enough to adequately capture the main features of the crime as committed in very different contexts and, on the other hand, narrow enough to distinguish it from the often analogous crime of sexual slavery. It will be interesting to see if the constituent elements of the crime will be confirmed by the Trial Chambers of the ICC and of the ECCC in the two cases involving a charge of forced marriage that are currently pending before those courts, thereby completing the decade-long process of elaboration of a new crime against humanity.

[1] Universal Declaration of Human Rights (10 December 1948) UN Doc A/810 91, art 16(2); International Covenant on Civil and Political Rights (16 December 1966) 999 UNTS 191, art 23(3); Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (10 December 1962) 521 UNTS 231, art 1; Convention on the Elimination of All Forms of Discrimination against Women (18 December 1979) 1249 UNTS 13, art 16(1)(b).

[2] For example, English law has recently been amended to make forced marriage a criminal offence liable to a maximum sentence of 7 years’ imprisonment, see section 121 of the 2014 Anti-social Behaviour, Crime and Policing Act, entered into force 16 June 2014.

[3] Situation in Uganda, Prosecutor v Ongwen, Decision on the confirmation of charges, Case no ICC-02/04-01/15, 23 March 2016.

[4] Prosecutor v Brima, Kamara and Kanu, Trial Judgment, Case no SCSL-04-16-T, 20 June 2007.

[5] Ibid, para 701.

[6] On the elements of the crime of other inhumane acts, see ibid, para 698.

[7] Ibid, para 711.

[8] Ibid, para 710.

[9] Ibid, para 713.

[10] Prosecutor v Brima, Kamara and Kanu, Appeals Judgment, Case no SCSL-04-16-A, 22 February 2008.

[11] Ibid, para 190.

[12] Ibid, para 191.

[13] Ibid, para 199.

[14] Ibid, para 196. See also Prosecutor v. Sesay, Kallon and Gbao, Appeals Judgment, Case no SCSL-04-15-A, 26 October 2009, para. 736.

[15] See Neha Jain, ‘Forced Marriage as a Crime against Humanity: Problems of Definition and Prosecution’ (2008) 6 Journal of International Criminal Justice 1013, 1024-1025. See also Extraordinary Chambers in the Courts of Cambodia, Case 002 Closing Order, 15 September 2010, paras 841-861.

[16] Extraordinary Chambers in the Courts of Cambodia, Case 002 Closing Order, 15 September 2010, paras 1442-1445.

[17] Ibid.

[18] Situation in the Democratic Republic of the Congo, Prosecutor v Katanga and Ngudjolo, Decision on the confirmation of charges, Case no ICC-01/04-01/07, 30 September 2008, para 431.

[19] Prosecutor v Ongwen, Decision on the confirmation of charges (n 3), para 95.

[20] Ibid, para 93.

[21] Ibid, para 93.

[22] Ibid, para 94.

[23] Ibid.

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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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Trial Chamber V(a) hears submissions in the first ‘no case to answer’ motion before the International Criminal Court

This week, Trial Chamber V(A) at the International Criminal Court has been hearing the oral submissions on William Ruto and Joshua Arap Sang’s ‘no case to answer’ motions. Mr Ruto and Mr Sang are charged with three counts of Crimes Against Humanity (murder, deportation or forcible transfer of a population and persecution)[1] for their alleged role in Kenya’s post-election violence in 2007.[2] Following the formal closure of the prosecution’s case on 10 September 2015, the accused requested the dismissal of all the charges against them on the basis that the prosecution has failed to adduce evidence which, even taken at its highest, could be sufficient to support a conviction.[3]

 

This is the first time that a motion for acquittal at the halfway stage has been submitted at the International Criminal Court. While provisions for ‘no case to answer’ motions were introduced in the Rules of Procedure and Evidence (RPE) of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda in 1998,[4] and in the first RPE of the Special Court for Sierra Leone in 2002, there is no similar provision in the statutory framework of the ICC.  Nevertheless, in June 2013,in its Order requesting submissions on the conduct of the proceedings, Trial Chamber V(A) invited the parties and the Legal Representative for Victims (LRV), to submit their positions on whether ‘no case to answer’ motions should be allowed in the case.[5] All parties[6] and the LRV submitted that, despite the absence of an express statutory provision, the Trial Chamber was vested with the necessary powers to consider such motions. On 9 August 2013, the Chamber decided that a ‘no case to answer motion’ would, in principle, be permissible in this case.[7]

 

In its 2014 Decision No. 5 on the Conduct of Trial Proceedings (Principles and Procedure on ‘No Case to Answer’ Motions) (Decision no. 5),[8] the Chamber elaborated on the legal basis for its determination. The Judges noted that, while the statutory framework of the Court did not expressly regulate ‘no case to answer’ motions, a number of Statutory provisions could be relied upon which would enable the Chamber to consider them, namely: Article 64(3) which empowers the Chamber to ‘[c]onfer with the parties and adopt such procedures as are necessary to facilitate the fair and expeditious conduct of the proceedings’; Article 64(6)(f) which vests the Chamber with the authority to ‘rule on any other relevant matter’; and Rule 134(1) and (2) which permit the Chamber to rule on other issues prior to and during the course of the trial.[9] The Chamber further noted that it was concomitant to its obligation under Article 64(2) to ensure a fair and expeditious trial, the rights of the accused and the regard for the protection of victims and witnesses.

 

While some scholars had previously suggested that the lack of an express provision would not preclude ‘no case to answer’ motions,[10] the Chamber’s Decision has been cited as one of the examples of Trial Chambers at the ICC “adopt[ing] proceedings clearly not foreseen by the Statute and the Rules”.[11] It has been submitted that this seems to indicate a shift away from “the original principled approach for a strict respect of the Statute and Rules […] in favour of a more ‘flexible approach’” which might afford the parties less procedural certainty.[12]

 

At the same time it has been suggested that the absence of a provision regulating ‘no case to answer’ motions stems from the inability of the drafters of the Rome Statute to agree upon which form of trial proceedings to adopt,[13] leaving the individual Trial Chambers with significant discretion in this regard.[14] Since ‘no case to answer’ motions apply within the context of an adversarial structure,[15] where the case for the prosecution is followed by the defence case, it would be difficult to apply in a situation where the Trial Chamber chooses to adopt an alternative structure of proceedings. At the same time, the consistent trend at the ICC is that the order of presentation of evidence has followed what the Chamber referred to as the “general practice in the administration of international justice”,[16] which follows the adversarial model.[17]

 

In Decision No. 5, Trial Chamber V(a) also laid out the applicable legal standards. In order for the Prosecution to successfully challenge a ‘no case to answer’ motion, the evidence is required to support “(i) both the legal and factual component of the crime and (ii) the individual criminal conviction of the accused”.[18] To be sufficient, the evidence does not need to support all the incidents related to a charge; it is enough that the evidence supports at least one of the incidents in a specific count, together with one mode of liability in respect of each count.[19] Because the Chamber can change the legal characterisation of the facts from those established in the Documents Containing the Charges, pursuant to Regulation 55 of Regulations of the Court, the Chamber can also consider the legal characterisation upon which such notice has been issued. In this case, , although the Chamber has not changed the legal characterisation of the facts, the Judges have, the Court has provided notice to Mr Ruto under article 55(2) that they may be subject to change to include other possible modes of liability.[20] A Prosecution request for a Regulation 55(2) notice is currently pending in respect of Mr Sang.[21]

 

In assessing the evidence, the applicable standard of proof is distinct from that applicable at the final determination of the case (where the beyond reasonable doubt standard applies). A ‘no case to answer’ motion aims to determine whether a defence case is at all necessary, therefore, the standard is “whether there is sufficient evidence introduced on which, if accepted, a reasonable Trial Chamber could convict the accused.”[22]  Relying upon the assessment standard that was developed at the ad hoc tribunals, the Trial Chamber noted that this entailed the evidence being taken “at its highest”, that is, that the evidence will be presumed to be credible “‘unless it is incapable of belief’ on any reasonable view”.[23] Therefore, the Chamber will only consider issues of credibility and reliability where the evidence is “incapable of belief by any reasonable Trial Chamber”.[24]

 

The Defence have submitted[25] that the Prosecutor’s case is fatally flawed on various substantive and evidentiary levels, and that it fails to establish the basic components of the crimes charged and the liability of the accused. The Prosecution, on the other hand, has submitted that the Defence motions “essentially amount to a series of speculative arguments and credibility challenges, which […] fail to provide adequate grounds to dismiss any of the charges at this juncture”.[26]

The Chamber is now required to decide whether or not to render a full or partial judgment of acquittal at this stage of the proceedings. Continue reading

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

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

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

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

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

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

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

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

The Appeals Chamber however affirmed as follows:

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

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

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

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

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

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

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

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

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

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

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

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

[8] ibid at 59.

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

[10] ibid.

[11] ibid at 26.

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

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

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

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

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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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Individual Criminal Responsibility for illegal use of force under international law. What role can International Criminal Law play before agression is criminalised under the Rome Statute

Introduction

This post explores the legal conditions that are required for the International Criminal Court (‘Court’) to investigate and prosecute the illegal use of armed forces between states, prior to the entry into force of the 2010 amendment to the crime of aggression. The amendment will enter into force if at least 30 States Parties ratify it and a decision is taken by two-thirds of States Parties to activate the jurisdiction at any time after 1 January 2017. When this happens, the Court will be empowered to investigate and prosecute the crime of aggression. The post proposes that in the meantime, an innovative judicial interpretation and application of Article 7 (k) of the Rome Statute of the Court may be a provisional measure that could be used to ensure that there is individual criminal responsibility for those who resort to the illegal use of force. Illegal use of force is a breach of both treaty law and international customary law.

The post is motivated by the fact that, although the Charter of the United Nations’ opening sentence expresses the determination of ‘the peoples of the United Nations to save succeeding generations from the scourge of the war’, those who have been responsible for the illegal use of armed force against other sovereign states have literally managed to get off ‘scot free’. The inclusion of the phrase ‘We the peoples of the United Nations’, instead of the traditional phrase ‘The High Contracting Parties’ in the Charter, was supposed to mark a paradigm shift towards the foundation of a new world order centred on safeguarding the welfare of peoples rather than that of states or formal authority of governments. It is, however, disconcerting that although the Nazi leadership was successfully prosecuted for, among other international crimes, the illegal use of force, what was then called crimes against peace, that precedent has not been upheld and, consequently, women and children continue to suffer the devastating effects of illegal use of armed force. There are numerous examples of illegal use of armed forces in contemporary global affairs whose architects have not been held to account. To cite but a few: Russia’s repeated violation of Georgian airspace and aerial bombardment that killed and wounded several civilians in 2002, the US-led invasion of Iraq in 2003, Uganda’s violation of Congolese territory in 2005, as recognised by the ICJ in DRC v. Uganda, and the North Korean shelling of Yeonpyeong Island in 2010.

Conditions under which the illegal legal use of force can be considered to fall under the category of ‘other inhumane acts’ of Crimes against Humanity

The individual acts that can be prosecuted by the Court under crimes against humanity are enumerated in Article 7 (1) (a) to (k) of the Rome Statute. Article 7 (k) refers to the category of ‘other inhumane acts’, and provides flexibility to cover violations of human rights that are not specifically enumerated as criminal acts.[1] The inclusion of this open-ended category of criminal acts is favoured by those who consider that an exhaustive categorisation of crimes would merely create opportunities for the evasion of the letter of the prohibition.[2]The approach goes along with the proposal to consider the illegal use of force as a criminal act that could be prosecuted under crimes against humanity.[3]

The Rome Statute combined with the Elements of Crimes provides the necessary threshold that must be satisfied for an act to be considered an ‘other inhumane act’. This implies that the act of the illegal use of force would have to meet the set threshold before being considered for either investigation to prosecution under the category of ‘other inhumane acts’. The conditions that the act will have to meet are a) the act has to inflict great suffering or serious injury to body or mental or physical health; b) be of similar character/gravity to the listed inhumane acts and c) the perpetrator must have been aware of the factual circumstances that established the character/gravity or the act.[4]

The case law of the two ad hoc international tribunals and the Court contains a list of diverse acts that were considered ‘other inhumane acts’.[5] In the situation in Kenya, the Pre-Trial Chamber II, confirmed that ‘other inhumane acts’ included forced circumcision and genital amputation inflicted upon members of the Luo community as well as acts of cutting and hacking that were committed in the post-election violence in 2008.[6] The variety of acts that both the ad hoc tribunals and the Court were prepared to consider under the category of ‘other inhumane acts’ supports the view that there should be no reason why the illegal use of force could not be included.

There are additional contextual conditions that have to be present in all criminal acts for the Court to have jurisdiction and exercise it. The contextual elements serve the purpose of elevating prohibited acts from being ordinary offences into to being considered as a concern for the international community.

The conditions or jurisdictional threshold for the crimes against humanity are set as follows;

For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack….[7]

This means that the key condition that the illegal use of force has to satisfy to be classified as a crime against humanity is that it has to be committed as part of a widespread or systematic attack. Widespread is understood as referring to the quantitative nature of the crime in terms of the number of victims and not necessarily the number of acts committed[8] whereas systematic is considered to refer to the level of organization of the crime and whether it follows a regular pattern based on a common policy involving substantial public or private resources.[9] Accordingly, any isolated or sporadic misbehaviour, irrespective of being heinous and horrendous, may not qualify as a crime against humanity.[10]

Conclusion

There are obviously challenges associated with the proposition put forward in this post. This is because the definition of crimes against humanity in the Rome Statute has some grey areas that still require clarification. Both the jurisdictional and material elements of crimes against humanity need to be calibrated before serious consideration is given to prosecuting the illegal use of force. This includes refining the requirement that the object of the attack has to be ‘any civilian population’. The definition of civilian in the context of the Rome Statute’ crimes against humanity is still a contentious issue. It is hoped that such clarity will be achieved if a current campaign by a group of academics, judges and practitioners to develop a Convention on Crimes against Humanity under the leadership of Professor Leila Nadya Sadat, proves to be successful.  Perhaps such a convention would put to rest some of the unsettled definitional challenges that crimes against humanity faces.

Still the post maintains that while the world awaits the entry into force of the aggression crime, there is a possibility to prosecute illegal use of force under the category of ‘other inhumane acts’ in Article 7 of the Rome Statute. There is obviously no authority to support such proposition although there seem to be no valid reason for not doing so. It does not seem that doing so would violate the principle of nullum crimen sine lege. This is because since the category was first included in Article 6 (c) of the Nuremburg Charter, then in the Control Council Law No 10, in the Statutes of the ad hoc tribunals and the Rome Statute, it appears to have been elevated to the status of customary international law.

[1]William A. Schabas, The International Criminal Court -A Commentary on the Rome Statute (Oxford University Press 2010) at p.119

[2]Kupreškic et al. (IT-95-16-T), Judgement, 14 January 2000, para 563

[3][3]Benjamin B. Ferencz, ‘A New Approach to Deterring Illegal Wars’ (Benjamin B Ferencz, 2011) <http://www.benferencz.org/index.php?id=4&article=106&gt; accessed 03 July

[4] See Margaret M. deGuzman, ‘Crimes Against Humanity ’ in William A Schabas and Nadia Bernaz (eds), Routledge Handbook of International Criminal Law (Routledge 2011) at p 134, Rome Statute Article 7 (1) (k) and Elements of Crimes Article (7) (1) (k) 1-5

[5] Some of the cases include Tadić(IT-94-1-T), Judgement,7 May 1997 para.728 (beatings and other acts of violence) Also: Akayesu (ICTR-96-4-T) Judgement, 2 September 1998 para (forced undressing and parading in public); Brima (SCSL-2004-16-A) Judgement, 22 February 2008, para 202 ( force marriage)

[6]Situation in Kenya (ICC-01/09), Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010 ,para 116

[7] Rome Statute Article 7 (1)

[8]Kai Ambos, ‘Crimes Against Humanity and the International Criminal Court ’ in Leila Nadya Sadat (ed), Forging A Convention for Crimes Against Humanity (Cambridge University Press 2011) at p.284, see also Al Bashir (ICC-02/05-01/09) , Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009, para 81

[9]Akayesu (ICTR-96-4-T) Judgement, 2 September 1998 , para 580

[10]Antonio Casesse, ‘ Crimes Against Humanity ’ in Antonio Casesse, Paola Gaeta and John R.W D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary vol 1A (Oxford University Press 2009) at p.357

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Killer Robots: The future of Lethal Autonomous Weapons Systems

The exponential advancement in technology since the second part of the 20th Century has had a significant impact on warfare. One of the most notable developments has been the increasing autonomy of weapon functions. To date, a variety of weapons with some autonomous functions have been developed, but these largely operate within fairly restricted temporal and spatial contexts. Moreover, they are often used for defensive purposes.[1]  As the technology continues to advance, however, further autonomy could lead to the continued development of a “class of systems capable of selecting targets and initiating the use of potentially lethal force without the deliberate and specific consideration of humans”, known as Lethal Autonomous Weapons Systems (LAWS).[2]

While the use of autonomous robots in war has notable strategic, operational and tactical military advantages, it can have profound consequences on international peace and security, the nature of warfare and the protection of human lives. Between 13th and 17th April 2015, a group of States, civil society members, and experts convened at the second informal meeting on LAWS that was held under the auspices of the Convention on Certain Conventional Weapons (CCW). The meeting addressed some of the most serious legal, technical, security and ethical concerns relating to the use of LAWS, including the implications for international humanitarian law (IHL) and international human rights law (IHRL).

While, currently, States express a clear preference for maintaining humans-in-the-loop, increased research in the field has sparked concerns about the development and future use of LAWS. In the meantime, there is a strong call from parts of civil society to pre-emptively ban Killer Robots due to concerns about their incompatibility with international law and their potential impact on global peace and security. Opponents of a ban, however, argue that it is too early to rule out the possibility that future technological advancements might not only overcome these problems, but could also limit the extent of civilian casualties in conflict. They hold that the existing international legal framework provides adequate safeguards to ensure that weapons systems that would breach international law do not make it onto the battlefield.

In relation to IHL, one of the main questions is whether the use of LAWS could ever comply with the principles of distinction, proportionality, and necessity. The application of IHL on the battlefield is so complex, and the decision-making process so nuanced and situation-dependent, that it would be very difficult for the machines to comply with the law, particularly based upon an algorithm that is necessarily programmed ex-ante.

The difficulty stems from the fact that IHL rules are “unlike the rules of chess in that they require a great deal of interpretative judgement in order to be applied appropriately.” Therefore, for instance, the principle of proportionality “requires a distinctively human judgement (“common sense”, “reasonable military commander standard)”; the realities of a rapidly-changing situation render weighing up military advantages against collateral harm complex. LAWS “lack discrimination, empathy, and the capacity to make the proportional judgments necessary”. The same applies to the assessment on necessity.

Similarly, in relation to the principle of distinction, while “[w]e might like to believe that the principle […] is like a sorting rule […] however complex, that can definitively sort each individual into one category or the other”, in practice, determining whether a person is actively participating in hostilities, thereby rendering them a legitimate target, is far from straightforward. Delegating this assessment to a machine is difficult, if not impossible.

Nevertheless, supporters of continued research into LAWS suggest that future technological advancements might lead to the development of weapons systems capable of compliance with IHL and, additionally, of offering superior civilian protection by relying upon: the advanced technical and sensory capabilities of machines; speed in decision making and action; and clarity of judgment that is not swayed by emotions such as fear or anger. For instance, roboticist Prof. Ronald Arkin argues that “being human is the weakest point in the kill chain, i.e., our biology works against us in complying with IHL”. Subject to future technological advancements, Prof. Eric Talbon Jensen has illustrated the following possible scenario:

Instead of putting a soldier on the ground, subject to emotions and limited by human perceptions, we can put an autonomous weapon which […] tied to multiple layers of sensors [is] able to determine which civilian in the crowd has a metal object that might be a weapon, able to sense an increased pulse and breathing rate amongst the many civilians in the crowd, able to have a 360 degree view of the situation, able to process all that data in milliseconds, detect who the shooter is, and take the appropriate action based on pre-programmed algorithms that would invariably include contacting some human if the potential response to the attack was not sufficiently clear.

Despite the potential benefits that future technologies may bring, however, they are still hypothetical. As the International Committee of the Red Cross (ICRC) has observed, “[b]ased on current and foreseeable robotics technology, it is clear that compliance with the core rules of IHL poses a formidable technological challenge […] there are serious doubts about the ability […] to comply with IHL in all but the narrowest of scenarios and the simplest of environments”. Therefore, while the utopian prospect of LAWS that operate in the best interests of civilians is a possibility, it is by no means a certainty. What is certain is the development of weapons systems with very concerning autonomous functions.

Even in the event of significant technological advancements, delegating life and death decisions to an autonomous machine can create a serious criminal and civil accountability gap.[3]  This would run counter to the preventative and retributive functions of criminal justice; breach the right to an effective remedy; and, in the light of the very serious crimes that can be perpetrated by the machines, it would, arguably, be immoral. It has been aptly observed that  “[t]he least we owe our enemies is allowing that their lives are of sufficient worth that someone should accept responsibility for their deaths”. This poignant reflection holds equally true in relation to civilians and friendly casualties.

For these reasons, there has been a strong drive towards regulating the further development and eventual use of these machines.  Some are advocating a ban on killer robots while others, like the ICRC, are “urging States to consider the fundamental legal and ethical issues raised by autonomy in the ‘critical functions’ of weapon systems before these weapons are further developed or deployed”.

Still, opponents of a ban deem it unnecessary since IHL is “sufficiently robust to safeguard humanitarian values during the use of autonomous weapon systems”.  They argue, for instance that an adequate safeguard against the use of weapons that violate IHL is contained in Article 36 of Additional Protocol I (API) of the 1949 Geneva Conventions which obliges States to determine in the “study, development, acquisition or adoption of a new weapon, means or method of warfare… whether its employment would in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable”.

However, proponents of the ban have argued that this is insufficient. Some have suggested that opinion regarding whether Article 36 assessments form part of customary international law may still be divided. Other experts, however, disagree. They argue that customary international law does indeed create an obligation upon all states to carry out the assessment  in relation to new means of warfare acquired, and that a question mainly arises in relation to new methods of warfare. Therefore, they maintain that weapons reviews provide sufficient protection. In any case, it has been argued that an assessment is a corollary of the obligation to ensure compliance with IHL; if the machines cannot comply, they will inevitably breach other provisions of the law when they are deployed .

Nevertheless, from a practical perspective, it is questionable whether Article 36 reviews, which depend on the transparency, openness, and uniform application of IHL to LAWS in such a nebulous context, are sufficient. Moreover, as computer scientist and robotics expert Prof. Noel Sharkey notes, there are serious questions about future consequences on IHL if LAWS continue to be developed while efforts at making them compliant with the laws of war fail.

Furthermore, Article 36 does not sufficiently consider the IHRL implications of LAWS.  In particular, the use of LAWS might lead to a violation of IHRL norms including: the right to life; the prohibition of torture and other cruel, inhuman or degrading treatment or punishment; the right to security of person; and, in view of the fact that a weapons review will not necessarily close the accountability gap, the right to an adequate legal remedy. Finally, proponents of the ban argue that delegating life and death decisions to a machine, effectively “death by algorithm”, violates the basic tenets of human dignity, the principle of humanity and the dictates of public consciousness, therefore, contrary to the Martens Clause.[4]

Discussions on the way forward have centered round the possibility of necessitating ‘meaningful human control’ over the operation of weapons systems.   However, as William Boothby has observed, a machine requiring meaningful human control is not fully autonomous; while useful from a policy perspective, he advised refraining from elevating the concept to ‘some sort of legal criterion’ and suggested focusing on Article 36 weapons reviews. Conversely, supporters of the ban have argued that it is precisely because ‘meaningful human control’ implies that machines are not fully autonomous, and in light of the significant State support for maintaining  such control, that a ban is the most obvious course of action.

At this stage, a consolidated way forward needs to be established before States and private contractors invest too much public and private money, time and energy, in the further development of LAWS, thereby rendering future regulation much more complex. Time is of the essence; the “opportunity will disappear […] as soon as many arms manufacturers and countries perceive short-term advantages that could accrue to them from a robot arms race”. The consequences on civilians, combatants, and international peace and security generally, could be devastating.


[1] For an overview see this 2012 Human Rights Watch report and P.W. Singer’s Wired for War

[2] Although a precise definition of LAWS has not yet been agreed upon, see here and here for their general characteristics

[3] see Human Rights Watch and Harvard Law School’s International Human Rights Clinic’s report Mind the Gap: The Lack of Accountability for Killer Robots

[4] See here for a discussion on some of the challenges  T-1

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Italy and the Crime of Torture: a story of impunity

On 7 April 2015 the Fourth Chamber of the European Court of Human Rights (ECtHR) issued its decision in Cestaro v. Italy, which condemned Italy for violating article 3 of the European Convention of Human Rights (ECHR), both in its procedural and substantial aspects. In particular, the Court found that the ill treatment perpetrated by the Italian police in the night between 21 and 22 July 2001 within the School ‘Diaz-Pertini’ (Genoa, Italy) are to be considered as acts of torture.[1] This post focuses on the main reasons that brought the Court to this conclusion and aims to provide some preliminary remarks on the draft law, which is currently under the examination of the Italian Parliament. It is argued that such a draft law might not adequately comply with the procedural obligations deriving from article 3 ECHR.

The judgment at issue stems from the disorder that took place in Genoa during the no-global summit organised by the Genoa Social Forum (GSF), which aimed to discuss the issues on the agenda at the G8 summit. Subsequent to the tragic events which had culminated, a few days before, with the death of Carlo Giuliani, and following the closure of the works of the G8 summit, around 500 officers were involved in a police operation on the night of 21 July. On that occasion, 93 people, who had come to Genoa for the Social Forum and were legitimately using the School as sleeping space, were attacked and arrested.[2] Significantly, 78 out the 93 people arrested were injured to the point of needing hospital care.[3] Moreover, any ex post facto attempt to justify these events turned out to be fallacious and intentionally misleading.[4]

The European Court’s findings

The Court concluded that a procedural and substantial violation of Article 3 ECHR had thus arisen. On the substantive violation, the Court declared that les tensions qui, comme le prétend le Gouvernement, auraient présidé à l’irruption de la police dans l’école Diaz- Pertini peuvent s’expliquer moins par des raisons objectives que par la décision de procéder à des arrestations médiatisées et par l’adoption de modalités opérationnelles non conformes aux exigences de la protection des valeurs qui découlent de l’article 3 de la Convention ainsi que du droit international pertinent.[5]

As for the procedural violation, the conclusions reached by the Court are particularly interesting. The main reason for the Court to conclude in favour of a procedural violation of article 3 ECHR is that, in spite of its ratification of both the ECHR (in 1955) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (in 1988), Italy still needs to adjust its legal order by introducing a crime (delitto) of torture in its Penal Code. On the one hand, most of the conduct relevant for the case at issue might have, at least in theory, been punished by being ascribed within other categories of crimes. On the other hand, the international crime of torture constitutes an unicum, especially in terms of its authors, the applicability of a statute of limitations, and the possibility to grant measures such as amnesties and pardons when torture is concerned.

It is worth noting that none of the accused for the conduct discussed in the present case has been condemned by the Italian Courts for the crimes they were accused of in the absence of a crime of torture, namely, the crimes of simple and aggravated assault.[6] All the accused, in fact, benefitted from the expiration of the time limit for prescription, whereas those accused of perjury, calumny, and abuse of authority could also enjoy the benefits deriving from the 2006 statute (i.e., legge n. 241 del 29 luglio 2006), which provided for a general reduction of 3 years of the period of imprisonment (or pardon). In this regard, the Court has recalled as follows.

[E]n matière de torture ou de mauvais traitements infligés par des agents de l’Etat, l’action pénale ne devrait pas s’éteindre par l’effet de la prescription, de même que l’amnistie et la grâce ne devraient pas être tolérées dans ce domaine. Au demeurant, l’application de la prescription devrait être compatible avec les exigences de la Convention. Il est dès lors difficile d’accepter des délais de prescriptions inflexibles ne souffrant aucune exception (…). Il en va de meme du sursis à l’exécution de la peine (…) et d’une remise de peine.[7]   Therefore, [l]a Cour considère dès lors que c’est la législation pénale italienne appliquée en l’espèce (…) qui s’est révélée à la fois inadéquate par rapport à l’exigence de sanction des actes de torture en question et dépourvue de l’effet dissuasif nécessaire pour prévenir d’autres violations similaires de l’article 3 à l’avenir.[8]

The Italian draft law introducing the crime of torture in the Italian Penal Code

The Strasbourg Court has noted that on 5 March 2014 the Italian Senate has finally approved a draft law (i.e., disegno di legge N. 10), aiming at ‘introducing the crime of torture’, which, since 14 April 2015, has been officially registered on the agenda of the Italian Camera dei Deputati. Needless to say, this might be an important and positive step towards the end of impunity when it comes to torture. However, in order to see whether or not this provision would substantially allow Italy to comply with its international obligations, an analysis of the draft law seems here necessary.

First, according to some of the Senators who originally submitted this draft law, ‘il reato qui configurato è di natura comune in quanto il reato può essere commesso da chiunque’. Hence, the Senators claimed they aimed at providing an ‘even broader definition’ of the crime of torture than the correspondent international crime, as the draft law does not incorporate the element of the participation of a state agent. As Antonio Cassese pointed out, however, [l]a necessaria partecipazione di un organo (rappresentante) – de jure o de facto – dello Stato alla realizzazione della condotta tipica, discende dal fatto che in questo caso la tortura è considerata punibile, dalle norme di diritto internazionale, anche quando essa costituisce un episodio singolo o sporadico.[9]

Therefore, according to Cassese, for determining the international crime of torture, one single episode might be deemed sufficient, and this because a state agent commits or permits, or even tolerates such a conduct. On the contrary, the draft law currently under the examination of the Italian Parliament makes reference to ‘violenze o minacce gravi, ovvero (…) trattamenti inumani o degradanti la dignità umana’, that is, to several episodes. In other words, what had been conceived to be ‘an even broader’ crime with respect to the international one, might in fact turn out to be a narrower one.

Moreover, it is exactly the (active or passive) role of the State throughout its agent(s) that determines, inter alia, the gravity of such a crime. On the contrary, the draft law approved by the Senate regrettably considers as a mere aggravating factor the fact that the crime is committed by a de iure state agent, and it punishes the incitement to commit torture, even if an inchoate one, only when this comes from such a state officer. All cases concerning acts of torture committed by any de facto agent, or with the state officer(s) omitting to act to prevent or punish the commission of such an act by his subordinates, are therefore not included within the meaning of the provision under consideration. In this respect, the doctrine of the command responsibility[10] might not find an adequate recognition.Having regard to the circumstances that led to the condemnation of Italy in Cestaro v. Italy, this is particularly unfortunate.

Also, this draft law does not provide for any differences with regard to the statute of limitations. As a consequence, the ‘ordinary’ statute of limitations will apply to torture, with the only exception, pursuant to article 157 of the Italian Penal Code, of the case in which torture results in the death of the victim(s), an event which is in fact punished with the so-called ‘ergastolo’, namely, an imprisonment lasting for 30 years. Finally, according to what the Court ‘recalled’ in the present case,[11] a provision incorporating the international crime of torture should provide for the inapplicability of measures such as a general reduction of punishment (indulto).

It follows that despite the efforts of the Italian Parliament aimed at putting an end to such an embarrassing condition of impunity when it comes to torture,[12] Italy might still incur in international responsibility, as the draft law currently under examination of the Italian Parliament presents significant flaws and departs from the relevant international obligations.

[1] Cestaro v. Italy App no 6884/11 (ECtHR, 7 April 2015) at 190.

[2] Corte di Cassazione, Judgment no 38085 of 5 July 2012.

[3] ibid.

[4] The Italian Corte di Cassazione called it ‘una complessa opera di mistificazione’. See Corte di Cassazione, supra note 2 as cited in Cestaro v. Italy, supra note 1, at 184.

[5] Cestaro v. Italy, supra note 1, at 189.

[6] ibid., at 221.

[7] ibid., at 208.

[8] ibid., at 225.

[9] Antonio Cassese, Lineamenti di diritto internazionale penale. I Diritto sostanziale (2005) 159.

[10] William Schabas, An Introduction to the International Criminal Court (2009) 233-235.

[11] Cestaro v. Italy, supra note 7.

[12] ibid., at 73.Palazzo madama

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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.

bensouda

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