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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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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]


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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Shall the definition of aggression contained in the 2010 Kampala amendment to the International Criminal Court (ICC) Statute have an impact on the application of the Directive on minimum standards for the qualification and status of third-country nationals and stateless persons as refugees or as persons who otherwise need international protection (EU Directive 2004/83/EC)? Some preliminary remarks on the case Andre Lawrence Shepherd v Bundesrepublik Deutschland

On 11 November 2014 Eleanor V. E. Sharpston, Advocate General of the Court of Justice of the European Union, delivered her Opinion in the case Andre Lawrence Shepherd v Bundesrepublik Deutschland. This case follows a request for a preliminary ruling from the Bayerisches Verwaltungsgericht München and concerns a US national who sought asylum in Germany. Mr Shepherd was trained as a maintenance mechanic for Apache helicopters and transferred to Germany in 2003; then, in September 2004, he was deployed in Iraq for one year. Subsequently, when his unit was recalled in Iraq, he refused to perform his military services as he deemed that the conflict was illegal. Thus, he applied for asylum in Germany as he claimed he risked persecution in the US. Indeed, because he did not reject the use of war and force tout court, he did not make any request for not being deployed on grounds of conscientious objection; therefore, he was liable to punishment in the US for refusal to perform his military services. In his asylum application, Mr Shepherd relied on the 2004 Qualification Directive (EU Directive 2004/83/EC). In particular, article 9, paragraph 2 (e),considers an act of persecution the prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in article 12 (2) of the same directive. Article 12, paragraph 2 (a), which reproduces article 1 (F) (a) of the 1951 Geneva Convention relating to the Status of Refugees, provides that

[a] third country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that: (a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes (…).

This case shows how EU law and refugee law are intertwined with other branches of international law, such as international criminal law. In particular, while according to the Advocate General Mr Shepherd might be granted asylum on the basis of article 9, paragraph 2 (e), of the Qualification Directive, with reference to the possible commission of war crimes, some aspects of the notion of crimes against peace might be of relevance in the ECJ’s decision. With respect to crimes against peace, the only precedent the drafters of the Geneva Convention had in mind was article VI of the Charter of the International Military Tribunal. Nevertheless, the formula chosen for article 1 (F) (a), namely the reference to the international instruments drawn up to make provision in respect of such a crime, permits both the Refugee Convention and the qualification Directive that follows it to keep being updated with regard to any further developments of international law. In particular, the wording of article 1 (F) seems to include also those treaties which are not yet in force, such as the 2010 Kampala amendment to the ICC Statute. When defining the crime of aggression, this latter makes an explicit reference to the UN Charter.[1] Thus, the way the UN Charter, especially its provisions which regulate states’ use of force, has been implemented cannot be overlooked. Coming now to article 9, paragraph 2 (e) of the Directive, the Office of the United Nations High Commissioner for Refugees (UNHCR) has affirmed that

UNHCR welcomes the recognition that prosecution or punishment for refusing to perform military service can constitute persecution. UNHCR understands that the provision will also apply where the refusal to serve relates to a conflict that in and of itself is contrary to public international law, such as for example when it has been condemned by the Security Council.[2]

In this regard, the 2006 Canadian Federal Court decision in the Hizman case[3] has confirmed that refugee protection is available to individuals who breach domestic laws, if compliance with those laws would otherwise result in the violation of ‘accepted international norms’. However, it has also clarified that

 It is only those with the power to plan, prepare, initiate and wage a war of aggression who are culpable for crimes against peace; (…). The ordinary foot-soldier such as the applicant is not expected to make his own personal assessment as to the legality of a conflict in which he may be called upon to fight. Similarly, such an individual cannot be held criminally responsible merely for fighting in support of an illegal war, assuming that his own personal wartime conduct was otherwise proper.[4]

In Shepherd v Bundesrepublik Deutschland, the Advocate General has adopted the same line of reasoning. Indeed, she argued that ‘[s]uch a crime by its very nature can only be committed by personnel in a high position of authority representing a State or a State-like entity. Mr Shepherd was never in that position. It is therefore unlikely that he would have been at risk of committing such an act.’[5] Article 8bis, paragraph 1 approved in Kampala also provides that

[f]or the purpose of this Statute, ‘crime of aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.[6]

In sum, the so-called leadership requirement of the crime of aggression is not particularly problematic. On the other hand, however, one cannot help noticing a significant discrepancy between the UNHCR Comments, the Qualification Directive as interpreted by the Advocate General, and the Kampala amendment, with respect to the UN Security Council (SC)’s role as to the legality of a conflict . While, according to the UNHCR, an explicit condemnation of a conflict by the Council would be a ground, although not the only one- of illegality of a war, Ms Sharpston stated as follows:

I am not sure that I understand precisely what is meant, as a matter of law, by the expression ‘sanctioned by the international community’. The UN Charter does not define what constitutes a legitimate war; nor am I aware of another international instrument that fills that lacuna (if lacuna it be). I cannot see that seeking to define the scope of Article 9(2)(e) of the Qualification Directive by reference to an undefined expression helps to take matters forward. Since the existence of a UNSC mandate is not a prerequisite to starting a war or defending against aggression, its presence or absence cannot be determinative of whether acts listed in Article 12(2) of the Qualification Directive occur.[7]

If it is true that a war fought on self-defence does not need any prior UNSC authorization, one should recall that article 39 of the UN Charter provides for the possibility for the Council to decide to use force whenever an act of aggression occurs. Thus, by making reference to the UN Charter in its threshold clause, article 8bis, paragraph 1, of the ICC Statute excludes any possible criminal responsibility every time the Council has adopted such a decision. At the same time, while any condemnation of the Council is supposed to be merely relevant for jurisdictional purposes, it might not impact on the substantive nature of the crime of aggression. In brief, in her Opinion the Advocate General has failed to consider that the Kampala amendment is the international instrument ‘drawn up to make provision in respect of such crimes’ par excellence. In this sense, the ECJ might depart from what has been argued by Ms Sharpston. This might be relevant in future cases involving military leaders of a State in the planning, preparation, initiation or execution of an act of aggression. In other words, since a prior UNSC authorization to use force makes a conflict legal under public international law, such a conflict would by no means constitute a manifest violation of the Charter of the United Nations. Thus, thanks to the Kampala amendment, a similar act could not be considered as an exclusion ground according to the Qualification Directive and, as a consequence, could not be relevant for the application of its article 9, paragraph 2 (e). Importantly, this might happen even before the Kampala amendment enters into force, no matter which state is going to ratify it, and regardless of the relevant state’s adherence to the ICC Statute.

[1] Resolution RC/Res.6, Annex I.

[2] UNHCR, Annotated Comments on the EC Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted (January 2005).

[3] Hinzman v. Canada (Minister of Citizenship and Immigration) (F.C.), 2006 FC 420, [2007] 1 F.C.R.).

[4] Hinzman v. Canada (Minister of Citizenship and Immigration) (F.C.), 2006 FC 420, [2007] 1 F.C.R. 561. See also D. Whetham, P. Robinson, A. Ellner, When Soldiers Say No: Selective Conscientious Objection in the Modern Military (Ashgate 2014).

[5] Opinion of Advocate General Sharpston, Andre Lawrence Shepherd v Bundesrepublik Deutschland, Case C‑472/13 [2014] E.C.R. __ (delivered on 11 November 2014) (not yet reported) § 42.

[6] Resolution RC/Res.6, Annex I.

[7] Opinion of Advocate General Sharpston, Andre Lawrence Shepherd v Bundesrepublik Deutschland, Case C‑472/13 [2014] E.C.R. __ (delivered on 11 November 2014) (not yet reported) § 70. ecj

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The contribution of the Appeals Chamber’s Judgment on witness summons to the debate on the compellability of witnesses before the International Criminal Court

Following a brief recess, today Trial Chamber V (A) at the International Criminal Court will continue to hear the testimony, by video link, of witnesses summoned by the Court in the case against William Samoei Ruto and Joshua Arap Sang. Just over a month ago, the Appeals Chamber unanimously confirmed that unwilling witnesses can be compelled to testify before the Court sitting in situ or by way of video-link.[1] In particular, the Appeals Chamber affirmed that the Court’s prerogative to “[r]equire the attendance and testimony of witnesses” under Article 64(6)(b) of the Rome Statute creates a legal obligation upon individuals which is complemented by a correlative obligation incumbent upon States, under Article 93(1)(b), to compel witnesses to appear on the territory of the State Party.

The question arose in 2013 when, shortly after the commencement of the trial, a number of witnesses who had previously provided the Prosecutor with crucial information about the role of the accused in the planning of the 2007 Post Election Violence in Kenya became unwilling to testify.[2] In April this year, in what was hailed as “a dramatic example of judicial activism[3] the majority in Trial Chamber V (A) decided that the Court had the power to compel the testimony of witnesses and that Kenya was obliged to serve the summonses and assist in compelling witnesses to appear before the Court in situ or by video link.  On that basis, Trial Chamber V(A) directed the Registry to prepare and submit “the necessary subpoenas”.[4] Judge Herrera Carbuccia dissented, noting, in particular, that “the Court has no mechanism to make an individual liable for refusing to testify in contravention of a Court order […] [c]onsequently, a fundamental element of subpoena powers is absent”.[5] Moreover, she held that “[p]ursuant to Article 93 of the Statute, read in its integrity, the Government of Kenya is under no legal obligation to compel a witness to appear before the court, either in The Hague or in situ”.[6]

The ambiguity stems from the arguably incongruous provisions of the Rome Statute, which have raised some doubts about the precise parameters of the Court’s power to summon witnesses and the concomitant enforcement obligations of States Parties. The first question is whether the Court’s power, under Article 64(6)(b), creates a binding obligation upon individuals. The word “require” has, in itself, cast a doubt upon the intended force of the provision,[7] particularly since failure to follow such an order is not listed as an offence against the administration of justice under Article 70.[8]  Trial Chamber V (A) and the Appeals Chamber determined, however, that any order issued under this article has the effect of creating a legal obligation on individuals; this is supported by various translations of the Statute which use the term “order” instead of “require”.[9] Although both Chambers ultimately relied squarely upon the letter of the Statute, in its analysis the Trial Chamber referred extensively to the Court’s implied powers, as well as general and customary principles of international law, and good faith;[10] the Appeals Chamber relied solely on the “plain wording” of the Statute.[11]

The greater difficulty, however, arises less from Article 64(6)(b) taken in isolation and more from the fact that the power it creates appears to be rendered largely ineffective by the absence of any specific provision in the Statute obliging States Parties to compel witnesses to appear before the Court. This is particularly problematic in view of the express provision, under Article 93(1)(e) requiring States to facilitate “the voluntary appearance of persons as witnesses […] before the Court”. This would suggest that witnesses can only appear before the Court voluntarily. The situation is rendered more complex by Article 93(7), which entitles a person already detained on the territory of a State Party to refuse to be temporarily transferred to the seat of the Court for the purpose of testifying.

The apparently conflicting statutory provisions have evoked different responses from commentators.[12] One interpretation suggests that while the Court can order the appearance of a witness, States cannot be required to deliver witnesses who are not willing to testify.[13] Some argue that this does not prevent willing States from adopting enhanced forms of cooperation which would compel witnesses to appear to testify,[14] although there is some disagreement regarding whether they can be compelled to travel to do so.  Others have suggested that the principle of voluntariness applies only to international transfers; that is, while witnesses cannot be forced to travel across borders to testify, they could well be compelled to testify before the Court without travelling. This would mean that Article 93 (1)(e) only applies to the international transfers of witnesses; States could still be obliged to compel witnesses to appear before the Court sitting in situ or by way of video link under the catch-all provision in Article 93(1)(l) which allows the Court to request other forms of cooperation, so long as these do not contravene States Parties’ national laws.

Although this interpretation finds significant support and appears to be consistent with the traveaux preparatoires[15] it might not be the most obvious one from a plain reading of the Statute. Article 93(1)(e) refers to the voluntary appearance of witnesses “before the Court”, not “at the seat of the Court”. While it could be argued that a video-link between a witness summoned before a national court and the Trial Chamber might not be covered by this restriction, it is not clear that this holds true where the Court is, itself, in control of the proceedings, whether on the territory of a State party or remotely. Would this understanding somehow imply that witnesses appearing directly before the Court, in situ or by video link, are not actually appearing ‘before the Court’?

Divergence is not only limited to the academic commentary on the topic; a questionnaire carried out by the International Law Association’s Committee on the International Criminal Court, prior to the 2010 review conference in Kampala, shows that States Parties not only hold different views on any possible future provisions to directly include subpoena powers in the statute but, more importantly, they appear to have different understandings of the precise parameters of the current provisions.[16]

Ultimately, both Trial Chamber V (A) and the Appeals Chamber have categorically rejected the notion that under the terms of the Rome Statute, testimonial evidence is governed by a principle of voluntary appearance. Trial Chamber V (A), again broadly relying, inter alia, on implied powers, good faith and complementarity, held that the Court can oblige Kenya to enforce a summons on the basis of Article 93(1)(l).[17] In its decision, the Trial Chamber also repeatedly referred specifically to the Court’s subpoena powers.

The Appeals Chamber adopted a different, if more cautious, approach. The Appeals Chamber determined that the power of the Court to oblige Kenya to enforce the summons stems directly from Article 93(1)(b) which, inter alia, empowers the Court to oblige States to assist in “the taking of evidence, including testimony under oath” and the production of evidence before the Court. This interpretation of the provision, while not a radical innovation,[18] requires a fairly creative reading of the Statute. Indeed, the wording of Article 93(1)(b) which refers to assistance in “the taking of evidence” seems to refer to the collection of evidence by States themselves.[19] That being said, it would appear that some States do, indeed, consider that this interpretation is consistent with their implementing legislation.[20]

By relying upon Article 93(1)(b), the Appeals Chamber appears to have strengthened the position of the Court. While the chapeau of Article 93 provides that States Parties are to give effect to the requests under the procedures of their national laws, a State is only permitted to refuse compliance in the interests of national security;[21] on the other hand, under Article 93(1)(l) whenever a State cannot comply with a request due to a “fundamental principal of general application”,[22] it is entitled to attempt to resolve the matter with the Court. Therefore, by determining that the relevant provision is Article 93(1)(b), and not Article 93(1)(l) as suggested by Trial Chamber V (A), the Appeals Chamber has curbed recourse to national provisions as a way to bypass a summons request which is effectible on the territory of the State.

At the same time, however, the Appeals Chamber deliberately stopped short of declaring that the Statute creates an absolute obligation upon States to compel witnesses to appear at the seat of the Court, limiting its observations to the matter under Appeal, namely the compellability of witnesses appearing before the Trial Chamber sitting in situ or by way of video link.[23] Moreover, unlike the Trial Chamber, the Appeals Chamber appears to have purposefully avoided using the term subpoena.

In short, while the Appeals Chamber has intentionally shied away from some of the more radical positions taken by the Trial Chamber, it has, nevertheless shaped the interpretation of witness compellability within the Statute’s framework, possibly overstepping the boundaries of mere interpretation. However, it has avoided any pronouncement on a broad, general power to ‘subpoena’ witnesses, thereby steering clear of the the more controversial, unresolved issues related to the involuntary international transfer of witnesses and the absence of any direct coercive powers.

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