Tag Archives: International Criminal Law

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



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.



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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Killer Robots: The future of Lethal Autonomous Weapons Systems

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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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