Tag Archives: international crimes

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.

Advertisements

1 Comment

Filed under International Criminal Law

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

Leave a comment

Filed under International Criminal Law