Category Archives: International Criminal Law

Are two warrants of arrest better than one? The second warrant of arrest against Al-Werfalli and the ICC practice

Introduction

 

On 4 July 2018, the Pre-Trial Chamber I of the International Criminal Court (ICC, or ‘the Court’) issued a warrant of arrest for Mahmoud Mustafa Busayf Al-Werfalli, a Libyan national, commander in the Al-Saiqa Brigade, for his alleged criminal responsibility for the war crime of murder of ten people on 24 January 2018, in Benghazi, pursuant to article 8(2)(c)(i) of the Rome Statute. The warrant follows a previous one for the same person, which is still pending and was issued on 14 August 2017 with reference to seven incidents, occurred from 3 June 2016 until 17 July 2017 in Benghazi or surrounding areas, in which 33 persons were murdered.

The present post aims at analyzing the second warrant of arrest, by comparing it with the ICC relevant practice. It will argue that it is unclear why the Court decided to issue a second warrant at all and that issuing a second warrant carries the risk of engulfing the work of the Court without bringing any advantages.

 

The warrants of arrest against Al-Werfalli and the ICC practice

The ICC jurisdiction over the situation in Libya has been triggered by the UN Security Council, which on 26 February 2011 unanimously adopted resolution 1970and referred the situation since 15 February 2011 to the Prosecutor of the ICC.  On 3 March 2011, the Prosecutor announced her decision to open an investigation in the situation in Libya.  The Security Council adopted Resolution 1970 acting under Chapter VII of the UN Charter and ‘taking measures under its Article 41’, which provides that ‘[t]he Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures’. Thus, although Libya is not a party to the Rome Statute. following the first warrant of arrest, in 2017 the Court could request Libya to cooperate in the arrest and surrender of Mr. Al-Werfalli.

On 1 May 2018, the Prosecution submitted, under seal, a request to amend the first warrant of arrest, pursuant to article 58(6) of the Rome Statute which reads as follows:

The Prosecutor may request the Pre-Trial Chamber to amend the warrant of arrest by modifying or adding to the crimes specified therein. The Pre-Trial Chamber shall so amend the warrant if it is satisfied that there are reasonable grounds to believe that the person committed the modified or additional crimes’ [emphasis added].

Yet, on 4 July 2018 the Pre-Trial Chamber ‘consider[ed] it appropriate to issue a second warrant of arrest pursuant to article 58(1) of the Statute to complement the First Warrant of Arrest, rather than amend it pursuant to article 58(6) of the Statute’.[1]

Under Article 58(1) Rome Statute,

the Pre-Trial Chamber shall, on the application of the Prosecutor [emphasis added], issue a warrant of arrest of a person if, (…) it is satisfied that: (a) There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and (b) The arrest of the person appears necessary: (i) To ensure the person’s appearance at trial; (…) or (iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances.

 

Thus, under this provision, the Pre-Trial Chamber should issue a warrant of arrest only when the Prosecutor makes a request to this effect. However, in the present case, the Prosecutor did not make a request for a new warrant, but for amendments to the first one so as to include the charges relating to the crimes committed on 24 January 2018. Could the Prosecutor’s request for amendments form the basis of the second warrant of arrest issued by the Pre-Trial Chamber on 4 July 2018? Nothing in articles 56 and 58 ICC Statute suggests so. Moreover, if one looks at the ICC practice, the decision of the Pre-Trial Chamber I to issue a second warrant of arrest against Mr. Al-Werfalli has a number of flaws.

First, no previous case can offer a justification about why the Pre-Trial Chamber has issued a second warrant without any explicit request by the Prosecutor. The ICC has already issued a second warrant of arrest against the same person with resInternational_Criminal_Court_building_(2016)_in_The_Haguepect to Mr. Al-Bashir in 2010 and to Mr. Bosco Ntaganda in 2012. As for the former, the second warrant of arrest was issued after the Appeals Chamber had concluded that the Chamber had acted ‘erroneously in rejecting the application for a warrant of arrest in relation to the counts of genocide on the basis that the existence of genocidal intent of the suspect was “only one of several reasonable conclusions available on the materials provided by the Prosecution”.’[2]  The decision to issue a second warrant of arrest, therefore, ‘only amend[ed] the First Decision to the extent necessary to implement the Appeals Decision and neither a re-assessment of the materials originally supporting the Prosecution’s Application, nor the analysis of materials other than those [were] warranted’.[3] In other words, there had been no need of a new request by the Prosecutor, and the decision to issue a second warrant of arrest, instead of amending the first one, was probably due to practical reasons. The arguments raised in relation to the immunities of incumbent Heads of State could indeed apply, mutatis mutandis, in this case. In particular, one could consider the nature of the crime of genocide[4]and of the obligations arising from the Genocide Convention, which might add on the obligations arising from a referral by the UN Security Council.

As for Mr Bosco Ntaganda, the issuance of a second warrant of arrest against him came after an explicit request of the Prosecutor, who in fact contended ‘that the arrest of Bosco Ntagandais necessary at this stage within the meaning of Article 58(1)(b) of the Statute, both to ensure his appearance at trial and to ensure that he does not obstruct or endanger the investigation, and further to seek compliance with the arrest warrant already in force.’[5]While it is unclear why the Prosecutor asked for a second warrant to be issued, instead of amendments to the first one, there is no doubt that in this case, the decision of the Pre-Trial Chamber followed an explicit request of the Prosecutor.

Second, no warrant of arrest- be it the first or the second one- has ever proved effective. The issuance of this warrant of arrest appears to be justified, as it was in the case against Mr Ntaganda,[6]by the need to seek compliance with the arrest warrant already in force: the Chamber declared being, ‘satisfied that Mr Al-Werfalli is unlikely to cooperate with a summons to appear, within the meaning of article 58(7) of the Statute, considering that the First Warrant of Arrest remains unexecuted.’[7]However, it is unclear why and how a second warrant of arrest should be complied with, when the first one hadn’t. While Mr. Ntaganda surprisingly decided to surrender voluntarily,[8]Mr. Al-Bashir is still at large and keeps on travelling to states both parties[9]and not parties to the ICC Statute (see, e.g., here and here).  Being well aware of these precedents, the Prosecutor might have opted for a request to amend the first warrant of arrest against Mr. Al Werfalli, instead of asking for a new warrant.

In the case of Mr. Al-Werfalli, a second warrant of arrest against the same person seems to be even more unmotivated as, although relating to different incidents, in both cases, Al-Werfalli is charged with murder as war crimes. Thus, the necessity of issuing a second warrant could not be grounded on the possible distinct obligations arising from different international instruments, as some may argue in relation to the second warrant issued against Mr. Al-Bashir. Nothing in the ICC practice therefore suggests that a second warrant could ‘ensure the person’s appearance at trial’ under article 58(1)(b)(i) ICC Statute.

Lastly, as clearly admitted by the Pre-Trial Chamber I,[10]in the case of Mr. Al-Werfalli the mere existence of a first warrant pending against him did not deter him from keeping on committing international crimes. Thus, it is unclear how the condition under article 58(1)(b)(iii) Rome Statute could be met in relation to the second warrant.

In sum, the issuance of a warrant of arrest could risk engulfing the work of the Court, without getting any advantages out of it.

 

Conclusion 

The rationale behind the decision of the ICC Pre-Trial Chamber I to issue a second warrant of arrest against Mr. Al-Werfalli is unclear and the ICC practice concerning second warrants of arrest (namely, against Mr. Al-Bashir and Mr. Ntaganda), does not provide any clarification. Indeed, the second warrant against Mr. Al-Bashir was the consequence of the decision of the Appeals Chamber reversing the decision of the Pre-Trial Chamber not to include charges of genocide in the first warrant. Furthermore, in that case, the decision of issuing a second warrant could be related to the obligations arising from the Genocide Convention, which could justify having two separate pending warrants. The second warrant against Mr. Ntaganda was issued after an explicit request by the Prosecutor and concerned different international crimes. When it comes to Mr. Al-Werfalli, however, the ICC Prosecutor had submitted a request to amend the first warrant, and it is therefore unclear how the Pre-Trial Chamber I used the request to issue a second warrant, which is notably relating to the same category of crimes of the first one. Moreover, the ICC practice offers some evidence that the issuance of a second warrant of arrest cannot favour in any way the execution of the first warrant, or make cooperation by states more likely, nor could it per se deter the continuing commission of international crimes. Thus, it remains unclear why the Pre-Trial Chamber I decided to issue this second warrant at all, and its decision’s compliance with article 58 (1) ICC Statute, might possibly constitute a ground for appeal in the future.

 

 

[1]Pre-Trial Chamber I, ‘ Second Warrant of Arrest’ in the Case of The Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli(4 July 2018) ICC-01/11-01/17, at para 7.

[2]The Appeals Chamber, ‘Judgment on the appeal of the Prosecutor against the “Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir”’ in the Situation in Darfur, Sudan
The Prosecutor v. Omar Hassan Ahmad Al Bashir
  (3 February 2010) ICC-02/05-01/09-OA, at para. 1.

[3]The Pre-Trial Chamber I, ‘Second Decision on the Prosecution’s Application for a Warrant of Arrest’ in the Situation in Darfur, Sudan The Prosecutor v. Omar  Hassan Ahmad Al Bashir  (12 July 2010) ICC-02/05-01/09 , at para 2.

[4]Dapo Akande, ‘ICC Issues Warrant of Arrest for Bashir on charges of Genocide’ (EJIL: Talk!, 12 July 2010)https://www.ejiltalk.org/icc-issues-warrant-of-arrest-for-bashir-on-charges-of-genocide/#more-2433accessed 20 August 2018.

[5]Office of the Prosecutor, ‘Second Corrigendum of the Public Redacted Version of Prosecutor’s Application under Article 58 filed on 14 May 2012 (ICC-01/04-611-Red)’ in the Situation in the Democratic Republic of the Congo (16 May 2012) ICC-01/04-611-Red-Corr2, at 143.

[6]Pre-Trial Chamber II, ‘Decision on the Prosecutor’s Application under Article 58’ in the case of The Prosecutor v. Bosco Ntaganda (13 July 2012) ICC-01/04-02/06, at para 80.

[7]Pre-Trial Chamber I, ‘ Second Warrant of Arrest’ in the Case of The Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli(4 July 2018) ICC-01/11-01/17, at para 36.

[8]H.D., ‘A surprising surrender’ (The Economist, 19 March 2013) https://www.economist.com/baobab/2013/03/19/a-surprising-surrenderaccessed 20 August 2018.

[9]See, e.g., Dapo Akande, ‘ICC Reports Kenya and Chad to the UN Security Council over Bashir’s Visits’ (EJIL: Talk!,28 August 2010) https://www.ejiltalk.org/icc-reports-kenya-and-chad-to-the-un-security-council-over-bashirs-visits/accessed 20 August 2018; Dapo Akande, ‘The Bashir Case: Has the South African Supreme Court Abolished Immunity for all Heads of States?’ (EJIL: Talk!,29 March 2016) https://www.ejiltalk.org/the-bashir-case-has-the-south-african-supreme-court-abolished-immunity-for-all-heads-of-states/accessed 20 August 2018.

[10]Pre-Trial Chamber I, ‘ Second Warrant of Arrest’ in the Case of The Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli(4 July 2018) ICC-01/11-01/17, at para 36. See also Pre-Trial Chamber II, ‘Decision on the Prosecutor’s Application under Article 58’ in the case of The Prosecutor v. Bosco Ntaganda (13 July 2012)ICC-01/04-02/06, at para 80.

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Deportation of the Rohingya people as a crime against humanity and the territorial jurisdiction of the ICC

Alessandra M De Tommaso (PhD student in international law, Middlesex University (London); alessandra.detommaso@gmail.com)

  1. Introduction

On 9 April 2018, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC, or the Court) submitted a request pursuant to article 19(3) of the Rome Statute establishing the ICC (or the RomeStature, or the Statute) seeking a ruling on whether the Court may exercise its jurisdiction “over the alleged deportation of the Rohingya people from Myanmar to Bangladesh”. On 11 April 2018, the President of the Pre-Trial Division, Judge Antoine Kesia‐Mbe Mindua, assigned the matter to Pre-Trial Chamber I for further determination. On 7 May 2018, the Pre-Trial Chamber issued a decision inviting Bangladesh to submit its observations on the Prosecution’s request.

Article 19(3) of the Statute grants the Prosecutor the power to request a ruling from the Court on a question of jurisdiction or admissibility.[1]To date, this is the first time that the OTP submits a request pursuant to article 19(3).  In the case at hand, the need for such a ruling arises from the exceptional circumstances of the situation concerning the Rohingya people. Indeed, in this case, only the receiving State (Bangladesh) has accepted the ICC’s jurisdiction, while the originating State (Myanmar) has neither ratified the Rome Statute nor accepted the Court’s jurisdiction underarticle 12(3) of the Statute.

In its Request, the OTP addresses two legal issues: (i) the definition of deportation as a crime against humanity pursuant to article 7(1)(d) of the Statute; and (ii) the scope of the Court’s territorial jurisdiction under article 12(2)(a) of the Statute. This post provides a brief overview of the arguments submitted by the OTP, focusing in particular on the observations concerning the inherent transnational character of the crime of deportation and its implications on the territorial jurisdiction ofthe ICC.

  1. Deportation as a crime against humanity under the Rome Statute

The first issue addressed by the Prosecutor concerns the definition of deportation as an independent crime against humanity distinct from the crime of forcibletransfer. The Rome Statute lists both crimes under article 7(1)(d), which reads 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:

[…]

(d) Deportation or forcible transfer of population;”[2]

Although included under the same provision, deportation and forcible transfer should be interpreted as two separate offences.[3]Indeed, as argued by the Prosecutor, deportation requires that the victim is forced to cross a de factoor de jureinternational border, whereas forcible transfer refers to internal displacement.[4]Such a distinction has constantly been recognised in the copious jurisprudence of the ICTY on the matter.[5]To provide a recent example of that, in 2016, the Trial Chamber in Prosecutor v Radovan Karadzic observed:

‘488. The elements of deportation and forcible transfer are substantially similar. Deportation and forcible transfer are defined as: (i) the forced displacement of one or more persons by expulsion or other forms of coercion, (ii) from an area in which they are lawfully present, (iii) without grounds permitted under international law. There is an important distinction between the two crimes; for deportation, the displacement of persons must be across a de jureborder between two states or, in certain circumstances, a de factoborder, and for forcible transfer, the removal may take place within national boundaries.’[6]

Interestingly, it is from the case law of the ICC that some uncertainty may still arise on the legal standing of deportation as an autonomous crime. In the Rutocase, Pre-Trial Chamber II described ‘deportation or forcible transfer’ under article 7(1)(d) of the Statute a ‘unique crime’ with ‘two labels’, leaving any concrete determination on the distinction existing between the two labels to the Trial Chamber.[7]In recalling this precedent, the OTP contests that it was in the intention of the Pre-Trial Chamber II to conflate the two crimes and observes that in many other occasions the ICC Pre-Trial Chambers have implicitly recognised the distinct nature of the two crimes by confirming charges ‘onlyof forcible transfer and notdeportation’.[8]

Therefore, the OTP concludes that deportation under article 7(1)(d) of the Statute is anautonomous crime, requiring the forcible displacement of persons across an international border. It followsthat deportation has an inherently transnational component and ‘is not completed until the victim has been forced to cross a de jureor de facto international border’.[9]

  1. The scope of the territorial jurisdiction of the Court under article 12(2)(a) of the Statute

The transnational character of deportation implies that not all legal elements of the crime occur on the territory of a single State. By definition, indeed, the crime is established only when the victim crosses the border of the State where he or she lawfully resided, to enter the territory of a different State. No particular issues arise when both the originating State and the receiving State are Parties to the Statute. But what happenswhen only one of the two States has ratified the Rome Statute?

Pursuant to article 12(2)(a) of the Statute, the Court may exercise its territorial jurisdiction when ‘the conduct in question’ occurred on the territory of a State Party or of a State that hasaccepted the Court’s jurisdiction.[10]The Statute provides no guidance on how the term ‘conduct’ should be interpreted in the context of article 12(2)(a) of the Statute. Thus, the Court is left with the task of establishing whether the term ‘conduct’ refers only to the criminal conduct or includes also its consequences, and whether the provision applies to the partial commission of a crimeon the territory of a State Party or requires all the elements of the crime to occur on that territory.[11]Narrowly interpreted, the provision might restrict the Court’s territorial jurisdiction only to instances where the whole conduct (understood as the physical manifestation of the criminal act/omission) took place on the territory of a State Party, irrespectively of its consequences.

In its Request, the OTP firmly refuses such a narrow interpretation. First of all, the Prosecutor argues that the correct way of interpreting article 12(2)(a) of the Statute is to read the term ‘conduct’ as a synonymous of ‘crime’, so to include the criminal act/omission and its consequences.[12]The Prosecution then argues that the ‘conduct’ requirement under article 12(2)(a) of the Statute means that ‘at least one legal element of an article 5 crime must occur on the territory of a State Party’.[13]Indeed, the OTP submits that excluding the Court’s territorial jurisdiction when only some of the elements of a crime occurred on a State Party’s territory would be inconsistent with ‘the general and long-establishedapproach of the international community in exercising criminal jurisdiction’ and would go against the object and purpose of article 12(2)(a).[14]

Applying this interpretation of article 12(2)(a) of the Statute to the crime of deportation, the Prosecution submits that the ICC may exercise itsterritorial jurisdiction ‘eitherif the originating State is a State Party to the Court orif the receiving State is a State Party to the Court’.[15]In case of deportation, indeed, it is not relevant that the coercive acts took place only on the territory of a State not Party, ‘since the coercion and the movement of the victim [across the border] are distinct legal elements under article 7(1)(d)’.[16] In the Prosecutor’s own words:

“… in adopting the Statute as a whole, the drafters manifestly intended to grant the Court ‘jurisdiction over the most serious crimes of concern to the international community as a whole’. This expressly included the crime of deportation, which has an inherently transnational character. If it was understood arguendo that article 12(2)(a) jurisdiction was only established where all the elements of a crime were committed on the territory of a State Party, this would exclude the Court’s jurisdiction over deportation—which requires one element that always occurs beyond the territory of the victims’ State of origin—unless both States are Parties to the Rome Statute.”[17]

Thus, it is the Prosecutor’s conclusion that, in the situation concerning the Rohingya people, the circumstance that the receiving State (Bangladesh) is a State Party may trigger the Court’s territorial jurisdiction even though the originating State (Myanmar) is not a Party to the Statute.

  1. Conclusion

The Prosecution’s Request should be saluted as a positive attempt to bring justice to the Rohingya people.[18]From a more general perspective, the Request should also be welcomed for its interesting insights in the interpretation of the Court’s territorial jurisdiction in connection with those crimes which have an inherently transnational character. Even if the judges of the Pre-Trial Chamber will not adopt the broad interpretation of article 12(2)(a) of the Statute submitted by the Prosecution, the latter’s request may give them the opportunity to clarify one of the still untouched issues concerning the territorial reach of the Court’s jurisdiction. However, it is not unrealistic to suppose that the Pre-Trial Chamber may refrain from embracing the Prosecutor’s interpretation of article 12(2)(a), as a similar determination may stir complaints from States not Parties to the Statute, fearing  future ‘interventions’ by the Court.Rohingya

[1]Article 19(3) of the Rome Statute.

[2]Article 7(1)(d) of the Rome Statute.

[3]Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, ICC-RoC46(3)-01/18-1, 9 April 2018, para 13.

[4]Ibid., , paras. 15-2.7

[5]See e.g. Gotovina et al. case(Judgment) IT-06-90, 15 April 2001, para. 1740; Kristíc case (Judgment) IT-98-33-t, 2 August 2001, para. 521; Krnojelac case(Judgment) IT-97-25-T, 15 March 2002, para. 474; Karadžić case(Public Redacted Version of Judgment Issued on 24 March 2016 – Volume I of IV) IT-95-5/18-T, 24 March 2016, paras 488-490.

[6]Karadžić case(Public Redacted Version of Judgment Issued on 24 March 2016 – Volume I of IV) IT-95-5/18-T, 24 March 2016, para 488.

[7]Ruto case(Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC-01/09-01/11-373, 23 January 2012, para 268.

[8]Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, ICC-RoC46(3)-01/18-1, 9 April 2018, para 26 [emphasis in the original].

[9]Ibid., para 26.

[10]Article 12(2)(a) of the Rome Statute.

[11]See, on this regard, Michail Vagias, ‘The Territorial Jurisdiction of the International Criminal Court – A Jurisdictional Rule of Reason for the ICC?’ (2012) 59 Netherlands International Law Review 43, 44; Jean-Baptiste Maillart, Article 12(2)(a) Rome Statute: The Missing Piece of the Jurisdictional Puzzle, EJIL: Talk! https://www.ejiltalk.org/article-122a-rome-statute-the-missing-piece-of-the-jurisdictional-puzzle/(last accessed on 9 May 2018).

[12]Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, ICC-RoC46(3)-01/18-1, 9 April 2018, para46.

[13]Ibid., para 28.

[14]Ibid., paras 25 and 29.

[15]Ibid., para 28 [emphasis in the original].

[16]Ibid., para 28.

[17]Ibid.,para 49.

[18]See Human Right Watch, ICC Prosecutor’s Unprecedented Bid to Bring Justice to Rohingya, 10 April 2018, https://www.hrw.org/news/2018/04/10/icc-prosecutors-unprecedented-bid-bring-justice-rohingya(last accessed on 9 May 2018).

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“IMPUNITY” FOR GROSS HUMAN RIGHTS ABUSES? THE PARDON OF FUJIMORI

1. Introduction

On 24th December 2017, the Peruvian President Kuczynski granted a pardon to the former President Alberto Fujimori, convicted in 2009 as indirect perpetrator “by means of a criminal organised apparatus” for the aggravated kidnapping, aggravated murder and serious injuries, committed during the Barrios Altos and La Cantuta massacres.[1] Fujimori had already served 12 out of the 25 years of imprisonment to which he had been sentenced.

On 2nd February 2018, the Inter-American Court of Human Rights (IACtHR) held a hearing in the monitoring compliance proceedings relating to the Barrios Altos case: on that occasion, victims of the massacre argued that Kuczynski’s pardon of Fujimori amounts to an infringement of the duties imposed on Peru by the Barrios Altos judgment. The decision of the Court is due shortly.

Meanwhile, the pardon has been strongly criticized by the Peruvian civil society, and by human rights activists worldwide. Not only was it controversial as to the procedure, timing and the alleged underlying motives leading to its adoption, but it also reignited the debate surrounding the admissibility of amnesties, pardons and other waivers of punishment for people convicted of gross human rights violations.

2. Issues of legitimacy, hidden motives and reasoning

Kuczynski’s pardon of Fujimori has raised a lot of criticism in Peruvian society, not only because the memory of the human rights abuses committed during the dictatorship is still alive and sensitive, but also because of the circumstances in which the measure was adopted.

Firstly, the pardon was granted surprisingly fast, almost without any opportunity for a debate, just a few days after a parliamentary motion to remove the current President of Peru, Pedro Paulo Kuczinsky, from his post on the basis of allegations of corruption. According to public opinion, the pardon would be the result of a quid pro quo agreement between Kuczinsky and the Fujimorist party Fuerza Popular, in order to get support against the impeachment.

Secondly, the measure was formally grounded on humanitarian reasons, which apply to cases of terminal diseases or poor health, rendering imprisonment a threat to life, health or integrity. In this regard, commentators have pointed out that, besides the need for a more detailed reasoning, the medical diagnosis about Fujimori’s health is rather doubtful. The former President was indeed receiving special medical attention in jail and in hospital, whenever needed. Furthermore, his personal doctor also participated in the Board recommending the release, thereby raising issues as to the impartiality of the Board itself.

3. The big issue: can international crimes be pardoned?

3.1. Strict vs. flexible interpretation of the duty

The evolution of International Human Rights Law and International Criminal Law in the past decades has led to the emergence of a duty to prosecute and punish those allegedly responsible for those crimes.[2] The scope of this duty and its content are still debated in case law and in scholarly literature; in this regard, we can recall the existence of two opposite views, referred to as the “human righters” and the “peace makers” positions.[3] The former maintain a strict interpretation of the duty, entailing a full ban on amnesties and pardons for international crimes/gross human rights (HR) violations, irrespective of the democratic legitimacy of the measure and of the context in which it is issued.[4] The latter purport a more flexible interpretation, according to which there would be room for these kinds of measures, as long as an exceptional context of transition so requires and insofar as they meet some legitimacy requirements. Therefore, whilst self-amnesties, self-pardons or blanket amnesties can never be accepted, an amnesty or pardon issued by legitimate democratic institutions, and made conditional to certain limits and requirements, might be considered as compatible with international norms.[5]

Yet, when adopting this second, more flexible interpretation, one should bear in mind that this flexibility can seemingly be justified by the existence of a transitional context,[6] in which specific goals, priorities and limits legitimate a partial modification of the rules for prosecution and punishment of offenders. One might doubt that Peru is still living in a transitional context: after the collapse of Fujimori’s dictatorship in 2000, the country has experienced a progressive strengthening of the recovered democratic institutions. Although the spectre of the Fujimorism (brought about by the dictator’s daughter Keiko) is still very alive, this is due to the citizens’ free choice in democratic elections. Therefore, it is difficult to argue that Peru is currently living a transitional process in which the need for peace, consolidation of the new institutions and social reconciliation are priorities over the claim for punishment of perpetrators of human rights abuses.

These considerations may cast doubts as to the grounds for granting this pardon, if not on the legitimacy of the pardon itself. However, it is this Author’s belief that some criticisms to the measure should be more carefully addressed.

3.2. The legal qualification of the facts

Fujimori was not formally convicted of crimes against humanity, but for ordinary crimes (kidnapping, murder and injuries). At one point the judgment qualified the facts as crimes against humanity.[7] However, the Supreme Court did not derive from this qualification any other consequence, such as the non-application of amnesties or of statutory limitations,[8] and it did apply the sentencing framework provided for by the Peruvian Criminal Code for the ordinary crimes of aggravated kidnapping and murder. The goal possibly pursued by the Court in qualifying the facts as crimes against humanity was to impose the maximum sentence and to send a strong message to society as to the gravity and blameworthiness of the offences.[9]

However, the offences for which Fujimori was sentenced, according to the judgment, were ordinary crimes. Therefore, they would not fall within the scope of the prohibition on amnesties and pardons that International Law sets out for international crimes. The IACtHR has argued that the duty extends to the wider category of gross HR violations.[10] But, whereas the agreement on the ban on (at least self and blanket) amnesties and pardons for international crimes is almost unanimous, its expansion beyond this category is much more controversial.[11]

3.3. Does a partial pardon entail impunity?

An issue deserving further consideration is whether the pardon granted to Fujimori actually entails a form of impunity (which is exactly what the international norm aims to avoid).

Leaving aside specific features of different legal systems, pardons, in contrast with amnesties, do not eliminate the criminal conviction, nor the assessment of facts contained in the judgment.[12] They exonerate only from serving the sentence, or, as in this case, a part of it. Actually, this measure does not deny Fujimori’s criminal responsibility, nor eliminate the part of the sentence that he has already served (which is half of the whole sentence imposed on him).

Consequently, one might wonder whether the international norm requires, besides criminal prosecution, the full serving of the sentence. On which grounds is the latter necessary? Does it really grant some kind of satisfaction to victims? And, despite the due respect and concern for the victims and their claims, should not the State take into consideration also other interests?

4. Conclusion

The pardon of former President Fujimori raised protests in Peru because of its allegedly political (and not humanitarian) nature and has fuelled the debate about the admissibility of amnesties and pardons for those held responsible for international crimes.

In fact, the pardon has highlighted the lack of clarity and consensus about the international duty to prosecute and punish international crimes, i.e. about its limits (the possibility of a flexible application in transitional contexts), its scope (its applicability beyond the category of international crimes) and its content (the requirement for a full serving of the sentence).

It will be interesting to see how the decision of the IACtHR, in the framework of the monitoring compliance proceeding in the Barrios Altos case, evaluates the compatibility of the measure with the duties imposed on the Peruvian State by the Barrios Altos judgment.

[1] Peruvian Supreme Court, Sala Penal Especial, Fujimori Fujimori, Alberto, exp. nº A.V. 19-2001, 7 April 2009. The judgment also qualifies the facts as crimes against humanity, but it does not formally use that label for the conviction: for more detail, see section 3.2 of this post. For a commentary on the judgment, see: K. Ambos, ‘The Fujimori Judgment: A President’s Responsibility for Crimes Against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus’, (2011) 9 Journal of International Criminal Justice, 137; J.M. Burt, ‘Guilty as Charged: The Trial of Former Peruvian President Alberto Fujimori for Human Rights Violations’, (2009) 3(3) International Journal of Transitional Justice, 384.

[2] K. Ambos, Treatise on International Criminal Law. Vol. I (OUP, 2013), 393-45.

[3] J. Chinchón Álvarez, Derecho internacional y transiciones a la democracia y la paz (Parthenos, 2007) 280.

[4] Ibidem, 437; M. C. Bassiouni, ‘The Need for International Accountability’, in M. C. Bassiouni (ed.), International Criminal Law, vol. III (New York, 1999), 6; N. Roht-Arriaza, L. Gibson, ‘The Developing Jurisprudence on Amnesty’, (1998) 20(4) Human Rights Quarterly, 843; C. Edelenbos, ‘Human rights violations: a Duty to Prosecute? ’, (1994) Leiden Journal of International Law, 5.

[5] K. Mcevoy, L. Mallinder, ‘Amnesties in Transition: Punishment, Restoration, and the Governance of Mercy’, (2012) 39(3) Journal of Law and Society, 410; K. Ambos, ‘The Legal Framework of Transitional Justice’, in K. Ambos, J. Large, M. Wierda (eds.), Building a future on peace and justice: studies on transitional justice, conflict resolution and development (Berlin, 2009), 19; L. Mallinder, ‘Amnesties’, in M. C. Bassiouni (ed.), The Pursuit of International Criminal Justice: A world Study on conflicts, Victimization, and Post-Conflict Justice, vol. I (Intersentia, 2010), 900; D. Orentlicher, ‘Settling Accounts Revisited: Reconciling Global Norms with Local Agency’, (2007) 1(1) International Journal of Transitional Justice, 10.

[6] D. Orentlicher, “Settling Accounts Revisited: Reconciling Global Norms with Local Agency”, International Journal of Transitional Justice, vol. 1, n. 1, 2007, 10, at 14 et seq.

[7] Point II and para. 710 of the reasoning.

[8] It has been argued that this interpretive strategy was unnecessary in this case, since no amnesty law was in force and the time for statutory limitations had not passed yet: see E. Maculan, ‘La respuesta a las graves violaciones de derechos humanos entre derecho penal e internacional. Observaciones sobre el caso Fujimori’, (2012) 14(5) Revista Electrónica de Ciencia Penal y Criminología, 1.

[9] Ibidem.

[10] IACtHR, Barrios Altos v. Peru, 14 March 2001, IACHR, Serie C No. 75, paras. 41 et seq.; Albán Cornejo y otros v. Ecuador, 22 November 2007, IACHR, Serie C No. 171, para. 111; in Bulacio v. Argentina, 18 September 2003, IACHR, Serie C. No. 100, paras. 116 et seq., the Court refers to the even wider category of “human rights violations” (with no gravity threshold required). For a critical overview of this case law, see: E. Malarino, ‘Judicial Activism, Punitivism and Supranationalisation: Illiberal and Antidemocratic Tendencies of the Inter-American Court of Human Rights’, (2012) 12 International Criminal Law Review, 665.

[11] K. Ambos, Treatise on International Criminal Law. Vol. I (OUP, 2013), 394-5; A. Seibert- Fohr, Prosecuting serious Human Rights Violations (OUP, 2009), 274 et seq.

[12] A. Gil Gil, ‘El tratamiento jurídico de los crímenes cometidos en el conflicto armado colombiano. La problemática jurídica en el marco de la dicotomía paz-justicia’, in A. Gil Gil, E. Maculan, S. Ferreira (eds.), Colombia como nuevo modelo para la justicia de transición (IUGM, 2017), 40.

 

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The UK and the right to life: Some preliminary remarks on the UK Government’s observations on the Draft General Comment no 36

In July 2017 the UN Human Rights Committee finalised the first reading of its Draft General Comment no 36 on article 6 (right to life) of the International Covenant on Civil and Political Rights (ICCPR). All stakeholders, including Member States, other UN and regional human rights mechanisms, National Human Rights Institutions, NGOs, research institutions, and academics were invited to provide their observations by 6 October 2017.  In November 2017, the UN Human rights Committee started the second reading of its Draft General Comment. This post aims to provide some preliminary remarks on the UK Government submissions, which should be interpreted while bearing in mind a significant difference between the UK position and the Draft Comment: according to the former, indeed, there is no hierarchical relationship among rights, and the right to life is not the ‘supreme’ right among all others, as it is, conversely, for the latter.[1] This post will focus on three specific areas of concern for the UK: the desirability of an international treaty banning any Lethal Autonomous Weapons Systems (LAWS), the relationship between the regimes of international human rights and international humanitarian law, the linkage between the right to life and any act of aggression.

 

On the ban of any Lethal Autonomous Weapons Systems (LAWS)

 

Starting from the assumption that in the development of new kind of weapons Sates should always consider the possible implications of such weapons for the right to life, the UN Human Rights Committee, at paragraph 12 of its Draft General Comment, holds that ‘the development for use in military operations of new lethal autonomous robotics lacking in human compassion and judgement, raises difficult legal and ethical questions concerning the right to life, including questions relating to legal responsibility for their use’. The Committee therefore concludes that this kind of weapons should not be developed or put in operation; neither in time of war or peace. The UK Government, on the contrary, considers that since it is unclear whether these weapons would ever be developed, it would be pointless to have an international agreement banning them pre-emptively.[2] Thus, the UK ‘strongly urges’ to delete the part relating to the need to avoid the development and/or ban of any LAWS. Yet, this conclusion seems to lie more on the non-existence of such weapons, which furthermore still lack of a definition, than on their legality under international law. In this respect, the UK aligns its positions to the other EU member states. As Veronique Caruana has pointed out, however, in the future we might witness «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”». Considering that the issue has been broadly debated among governments, scholars,[3] and NGOs, the prospect of developing such weapons seems in fact to be a concrete possibility.

 

On the relationship between International Humanitarian Law and Human Rights Law

According to paragraph 67 of the Draft General Comment, the Covenant as a whole continues to apply in time of armed conflict,[4] as the two regimes of Human Rights Law and International Humanitarian Law (IHL) are complementary, rather than mutually exclusive. The UN Human Rights Committee concludes that during an armed conflict States have therefore an obligation to disclose, inter alia, ‘whether non-lethal alternatives for attaining the same military objective were considered. They must also investigate allegations of violations of article 6 in situations of armed conflict in accordance with the relevant international standards.’[5] In respect of both these points the UK Government submits that International Humanitarian Law is lex specialis applicable during an armed conflict,[6] and under this regime there is no rule imposing upon states an obligation to consider whether a non-lethal means was available.[7] Moreover, while it is admitted that States have an obligation to investigate breaches of IHL in accordance to international legal standards, they reject the submission that in time of an armed conflict such obligation to investigate would also apply to any violation of article 6 ICCPR.[8] This would be somehow equal to interpret the two regimes of International Humanitarian Law and Human Rights Law as mutually exclusive, and might have serious implications when it comes to the implementation of the principles of proportionality and necessity, which are much more stringent within the context of the International Human Rights regime.[9] This would also place the UK far from the interpretation given by the European Court of Human Rights (ECtHR) of the positive procedural obligations stemming from article 2 (Right to life) of the European Convention of Human Rights (ECHR).[10] The ECtHR has indeed ‘held that the procedural obligation under Article 2 continues to apply in difficult security conditions, including in a context of armed conflict’.[11] In the opinion of the Strasbourg Court these obligations include a duty to carry out an effective investigation,[12] which might comprise criminal procedures, but also inquiries on state responsibility. [13] This might apply to cases of death of civilians as well as soldiers,[14] and can also require the investigators to ‘establish basic facts about the use of indiscriminate weapons’, when the former were ‘crucial for the assessment of the causal link between their use and the casualties’.[15] The Court has in fact found that the ‘use of explosive and indiscriminate weapons, with the attendant risk for human life, cannot be regarded as absolutely necessary’. [16]

 

 

On the implications for the right to life as a result of acts of aggression

 

The last two paragraphs of the Draft Comment no 36 are dedicated to the implications for the right to life in case of war, and even more specifically, in the event of the commission of any act of aggression contrary to the UN Charter. Paragraph 71, notably provides as follows: ‘States parties engaged in acts of aggression contrary to the United Nations Charter violate ipso facto article 6 of the Covenant. Moreover, States parties that fail to take all reasonable measures to settle their international disputes by peaceful means so as to avoid resort to the use of force do not comply in full with their positive obligation to ensure the right to life.’

The UK, at paragraph 34 of its observations, comments by stating: ‘We are rather surprised at the inclusion of paragraphs 70 and 71; these appear to be better suited to an aspirational document rather than a General Comment. We do not consider that the content is helpful, nor that it is within the Committee’s mandate.’ Thus, in the UK Government’s opinion the loss of lives resulting from the usage of an unlawful means, that is, in this specific case, an illegal war or an act of aggression, would not fall within the jurisdiction of the UN Human Rights Committee. It is however unclear where this limitation should be inferred from. In Europe, the Strasbourg Court has kept holding that article 2 ECHR (right to life) cannot be subject to any derogation, under article 15 ECHR, if not with regard to ‘lawful acts of war’.[17] A contrario, one might argue that all other means should be considered as unlawful and cannot find any justification under the ECHR. Moreover, it rests to be shown how, under which circumstances and towards whom such paragraphs might ever end up being in any way ‘unhelpful’.

 

Conclusion

 

The UN Human Rights Committee is currently at its second reading of the Draft General Comment no 36 on article 6 ICCPR (right to life). Between its first and second reading, the Committee invited all stakeholders to submit their observations. This post focused on the UK position on article 6 ICCPR, which significantly departs from the Draft Comment in many aspects. First, the UK while aligning itself with the position taken by all other EU member states, differs from the UN Committee’s Draft General Comment, when the Government considers it pointless to ban or refrain from developing any LAWS. In the opinion of the UK Government, in fact, these weapons have not been developed yet and a significant amount of uncertainty surrounds their future characteristics, effects and even definition. Second, while the UN Human Rights Committee considers the Covenant to apply during an armed conflict, the UK sees the regime of International Humanitarian Law as lex specialis and deems there exists no positive obligation to investigate any violation of article 6 ICCPR. Nor do they think they have any obligation to disclose whether any non-lethal means was available. This might have huge implications on the implementation of the principles of necessity and proportionality, which refer to different standards, depending on which regime, i.e., Human Rights Law or International Humanitarian Law, is indeed applicable. In this respect, the UK would put itself far from the stance of the ECtHR’s case law. Third, the UK considers the UN Human Rights Committee went beyond its jurisdictions, when it inserted paragraphs 70-71 in the Draft General Comment. These paragraphs concern the casual relation between any unlawful armed conflicts, or more specifically any acts of aggression contrary to the UN Charter, and an automatic violation of article 6 ICCPR. However, when it comes to any possible implications for the right to life, it is unclear where the UK could infer any limitation of the UN Human Rights Committee’s ratione materiae jurisdiction. Moreover, it rests to be shown how, and especially under which circumstances and towards whom, such paragraphs could be in any way ‘unhelpful’. In sum, the UK position on the right to life differs significantly from the UN Committee, and in many occasions this would be equal to a less comprehensive protection of the individuals’ right to life. This might find an explanation in the UK vision of human rights, which according to the Government’s observations relating to the Draft General Comment no 36, would not have any hierarchical relationship, so that the right to life would not be seen as ‘the supreme’ among all other rights any more.

[1] UK Governments, Comments on the UN Human Rights Committee’s Draft General Comment No 36, the right to life (6 October 2017) at 5. Cf Human Rights Committee, ‘General comment No. 36 on article 6 of the International Covenant on Civil and Political Rights, on the right to life’ (Revised draft prepared by the Rapporteur) available at < http://www.ohchr.org/Documents/HRBodies/CCPR/GCArticle6/GCArticle6_EN.pdf> visited on 5 December 2017. Cf Case of TagayevaaAnd Others v. Russia App no 26562/07  (ECHR, 13 April 2017) at 599.

[2] UK Governments, Comments on the UN Human Rights Committee’s Draft General Comment No 36, the right to life (6 October 2017) at 12.

[3] See, e.g., Nehal Bhuta, Claus Kreβ, Autonomous Weapons Systems: Law, Ethics, Policy (CUP 2016).

[4] Cf The relevant ECtHR’s case law. See William Schabas, The European Convention on Human Rights. A Commentary (OUP 2015) 154-55.

[5] UK Governments, ‘Comments on the UN Human Rights Committee’s Draft General Comment No 36, the right to life’ (6 October 2017) at 67. Cf William Schabas, The European Convention on Human Rights. A Commentary (OUP 2015) 156-58.

[6] Cf Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Reports (2004) 136, para. 106. See also Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) ICJ Reports (2005) 168, para. 216.

[7] UK Governments, ‘Comments on the UN Human Rights Committee’s Draft General Comment No 36, the right to life’ (6 October 2017) at 33.

[8] Ibid.

[9] As for the ‘absolute necessity’ requirement according to the ECtHR, see Case of McCann and Others v. The United Kingdom App no 18984/91 (ECHR, 27 September 1995) at 149; Case of Andreou v. Turkey App no 45653/99 (ECHR, 27 October 2009) at 55; Case of Putintseva v. Russia App no 33498/04 (ECHR, 10 May 2012) at 69. As for the proportionality requirement as developed by the ECtHR, see Case of Wasilewska and Kałucka v. Poland App nos 28975/04 and 33406/04 (ECHR, 23 February 2010) at 56-57; Case of Finogenov and Others v. Russia App nos 18299/03 and 27311/03 (ECHR, 4 June 2012) at 236. See also Conor Foley, UN Peacekeeping Operations and the Protection of Civilians: Saving Succeeding Generations (CUP 2017) 183.

[10] William Schabas, The European Convention on Human Rights. A Commentary (OUP 2015) 139. Cf Case of the “Mapiripán Massacre” v. Colombia (Inter-American Court of Human Rights, 15 September 2005) at 238.

[11] Case of Al-Skeini and others v. The United Kingdom App no 55721/07 (ECHR, 7 July 2011) at 164;Case of Mocanu and Others v. Romania App nos 10865/09, 45886/07 and 32431/08 (ECHR, 17 September 2014) at 319. See also Case of Benzer and Others v. Turkey App no 23502/06 (ECHR, 12 November 2013) at 184.

[12] See, for instance, See also Case of Benzer and Others v. Turkey App no 23502/06 (ECHR, 12 November 2013) at 198.

[13] Case of Al-Skeini and others v. The United Kingdom App no 55721/07 (ECHR, 7 July 2011) at 174.

[14] Smith v Secretary of State for Defence [2010] UKSC 29, at 70-72.

[15] Case of TagayevaaAnd Others v. Russia App no 26562/07  (ECHR, 13 April 2017) at 527.

[16] ibid at 609.

[17] Case of Al-Skeini and others v. The United Kingdom App no 55721/07 (ECHR, 7 July 2011) at 162.

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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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