The Elgar Companion to the International Criminal Court 2020948604, 9781785368233, 9781785368226

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© The Editors and Contributors Severally 2020

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2020948604 This book is available electronically in the Law subject collection http://dx.doi.org/10.4337/9781785368233

ISBN 978 1 78536 822 6 (cased) ISBN 978 1 78536 823 3 (eBook)

Margaret deGuzman and Valerie Oosterveld - 9781785368233

Contributors

Louise Chappell, Scientia Professor and Director of the Australian Human Rights Institute, University of New South Wales Law School Margaret M. deGuzman, James E. Beasley Professor of Law, Temple University, Beasley School of Law Mark A. Drumbl, Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington and Lee University, School of Law Yvonne M. Dutton, Professor of Law, Indiana University Robert H. McKinney School of Law Alexander K. A. Greenawalt, Professor of Law, Elisabeth Haub School of Law at Pace University Rosemary Grey, Lecturer, University of Sydney, Sydney Law School and Sydney Southeast Asia Centre Rebecca J. Hamilton, Associate Professor of Law, American University Washington College of Law Mark Kersten, Wayamo Foundation and Senior Researcher, University of Toronto Munk School of Global Affairs Asad G. Kiyani, Assistant Professor, University of Victoria Faculty of Law Frédéric Mégret, Professor and Dawson Scholar, Faculty of Law, McGill University Saira Mohamed, Professor of Law, University of California, Berkeley Jonathan O’Donohue, Consultant on Human Rights and International Justice. At the time of writing, Legal Adviser for Amnesty International Valerie Oosterveld, Professor of Law, University of Western Ontario Faculty of Law and Canadian Partnership for International Justice Rod Rastan, Legal Advisor, Office of the Prosecutor, International Criminal Court Leila Nadya Sadat, Special Advisor on Crimes Against Humanity to the International Criminal Court Prosecutor, James Carr Professor of International Criminal Law, and Director, Whitney R. Harris World Law Institute, Washington University School of Law William Schabas, Professor of International Law, Middlesex University London and Professor of International Criminal Law and Human Rights, Leiden University Jennifer Trahan, Clinical Professor and Director of the Concentration in International Law and Human Rights, The Center for Global Affairs, New York University vii Margaret deGuzman and Valerie Oosterveld - 9781785368233

viii  The Elgar companion to the International Criminal Court Sara Wharton, Assistant Professor, University of Windsor, Faculty of Law

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Contents

List of contributorsvii Acknowledgmentsix Introduction: narratives and counter-narratives of the International Criminal Courtx PART I

THE ESTABLISHMENT OF THE ICC

1

The dynamics of the Rome Conference William A. Schabas

2

The Rome Conference: institutional design and the constraints of diplomacy Frédéric Mégret

PART II

3 20

INTERPRETING AND APPLYING THE ROME STATUTE

3

Contestation and inevitability in the crimes of the International Criminal Court Saira Mohamed

49

4

Admissibility as a theory of international criminal law Alexander K. A. Greenawalt

62

5

Heads of state and other government officials before the International Criminal Court: the uneasy revolution continues Leila Nadya Sadat

6

Penalties and punishment  Mark A. Drumbl

128

7

Can the ICC function without state compliance? Rod Rastan

147

96

PART III ICC IN ACTION 8

Taking the opportunity: prosecutorial opportunism and the International Criminal Court  Mark Kersten

9

Judges, the registry, and defence counsel Sara Wharton

204

10

The Assembly of States Parties Jennifer Trahan

231

11

Africa, the Court, and the Council Rebecca J. Hamilton

261 v

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181

vi  The Elgar companion to the International Criminal Court PART IV MAJOR CONTROVERSIES 12

Peace and justice Yvonne M. Dutton

280

13

Re-narrating selectivity Asad G. Kiyani

307

14

Human rights compliance Jonathan O’Donohue

334

15

Re-writing sex and gender in international criminal law Rosemary Grey and Louise Chappell

363

16

Mission uncertain: what communities does the ICC serve? Margaret M. deGuzman

387

Index408

Margaret deGuzman and Valerie Oosterveld - 9781785368233

Acknowledgments

Many people have assisted us in bringing this book to fruition. Most importantly, we owe an enormous debt of gratitude to the scholars who contributed to this book for their valuable insights and their patience with the production process. We also thank Ryan Dickinson, Kat Killian, Courtney Kurtz, Rebecca Orsini and Rose Mary Lynn Ubell for excellent research assistance, and our home institutions, Temple University Beasley School of Law and Western Law, for scholarly support. Finally, we thank Laura Mann and the team at Edward Elgar Publishing who helped make this book a reality.

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Introduction: narratives and counter-narratives of the International Criminal Court

As the world’s first permanent international criminal tribunal, the International Criminal Court (ICC or Court) is a pioneering institution. Like many pioneers, the institution has made important achievements and encountered significant challenges. This book provides an overview of the ICC’s first two decades, focusing on the dominant narratives and counter-narratives that have emerged about the institution and its work. Our aim is to contribute to a greater understanding of the ICC’s actual and potential role in the world by exploring some of the central issues related to its creation, mandate, and operations. To that end, the book addresses topics ranging from the negotiation dynamics surrounding the drafting of the Rome Statute, to the roles of the Office of the Prosecutor, judges, defence and victims, as well as key controversies around peace and justice, selectivity of cases and situations, and gender-sensitivity. The book’s first part describes and analyses the process of creating the ICC. In Chapter 1, William Schabas provides a history of the Court’s genesis, and explains the intricate procedures employed in the negotiations of the Statute. Schabas’ chapter describes the major players who contributed to the Court’s creation and explores some of the challenges they had to overcome. He highlights the controversial role of the US, and the important parts that non-governmental organizations and academics played in the process. Schabas concludes by describing how the intense final days of the Rome Conference yielded the Statute that was ultimately adopted, and observes that the Conference was ‘an extraordinary exercise in international law-making’. In Chapter 2, Frédéric Mégret analyses the Rome Conference negotiations with a view to unearthing retrospective lessons. The chapter considers the negotiations through four lenses: the ‘encounter between a particular constellation of actors’, the format of an international diplomatic conference, the dynamics within the negotiations, and the cross-cutting issues the Rome Conference was tasked with resolving. In exploring each of these themes, Mégret provides innovative insights. For instance, his assessment of the negotiation dynamics reveals a gap between actors at the negotiation table who had a specific idea of the ICC as a permanent, potentially universal body disconnected from global power politics, and those who did not support any sort of ICC at all. The differing positionality of the actors influenced how much law, and how much politics, shaped the final outcome. Mégret concludes that the Rome Conference was, in a sense, transformative: a place where ‘political interest is formed through dialogue and persuasion and the sheer experience of seeing one’s position constantly refracted against a broader fractious background’. The second part of the book examines narratives and counter-narratives regarding the interpretation and application of the Rome Statute. The chapters describe and critique various parts of the Statute, analysing the Court’s jurisprudence and the relevant scholarship. In Chapter 3, Saira Mohamed describes and problematizes the dominant narrative of contestation surrounding the designation of the four crimes in the Statute. The chapter considers various ways of framing the debate about which crimes should be included in the ICC’s jurisdiction, and argues that the choices made in Rome both contributed to the creation of a hierarchy of x Margaret deGuzman and Valerie Oosterveld - 9781785368233

Introduction  xi international crimes, and reflect a desire to reshape the world order around the protection of human lives. Next, in Chapter 4, Alexander Greenawalt addresses the complexities of the Rome Statute’s admissibility regime, which he identifies as ‘one of the most fundamental and mysterious aspects of the ICC’s structure’. As Greenawalt explains, admissibility is central to defining the ICC’s mission and yet is remarkably undertheorized both in terms of the content of the values and norms at stake, and in regard to the roles of prosecutorial and judicial discretion, as well as Security Council authority, in implementing the concept of admissibility. The chapter explores open questions about the nature of the ICC’s admissibility regime through an analysis of the Court’s experiences with admissibility to date. In Chapter 5, Leila Sadat examines the Statute’s provisions concerning the accountability of heads of state and other government officials. Sadat focuses on narratives and counter-narratives surrounding Article 27 of the Rome Statute (on the irrelevance of official capacity and non-applicability of immunities) and Article 98 (on pre-existing legal obligations of a country asked to surrender a diplomat) of the Rome Statute. She argues that the controversies surrounding these articles have their origin ‘in a political, not legal, question’. Sadat concludes that current efforts to rewrite the meaning of Article 27 seek to change existing customary international law and impose, post facto, a new interpretive gloss on Article 27, fundamentally changing its meaning and scope. Mark Drumbl, in Chapter 6, explores how the ICC has interpreted and applied the provisions of the Statute pertaining to punishment. He highlights the Court’s use of sentences to mark gradations in responsibility and assesses its efforts to attain penological goals. After a thorough review of the ICC’s sentencing practice, Drumbl identifies unresolved challenges related to penological objectives and to life after serving ICC sentences. He concludes with some observations about how the ICC’s activities are expanding the penology of international crimes. Chapter 7, by Rod Rastan, addresses the critical issue of state compliance. He questions how, and indeed whether, the ICC can function without state cooperation. Rastan explains the significant extent to which the ICC’s operations depend on state assistance with such critical tasks as securing evidence and ensuring witness cooperation. He notes the paradox of this reliance for an institution that is mandated to ‘complement’ national systems that are unwilling or unable to adjudicate serious international crimes. The chapter assesses the measures the Court can take to address non-compliance through an in-depth examination of international court practice. Rastan concludes that, unless such measures can be implemented successfully, the ICC will be unable to contribute meaningfully to ending impunity in many situations. The book’s third part examines how major players at the ICC help to shape the Court’s role in the global legal order. The chapters discuss narratives and counter-narratives related to several aspects of the ICC in action. In Chapter 8, Mark Kersten tackles one of the most controversial aspects of the ICC’s operations: how it decides which situations and cases to investigate and prosecute. Kersten advances an innovative theory of ‘prosecutorial opportunism’ whereby such decisions represent ‘an expression of a negotiation between the institutional interests of the Court and the political interests of the actors, particularly states, on which the Court depends’. Using a series of examples, he shows how states can manipulate prosecutorial opportunism in pursuit of their own interests, in particular their interest in avoiding prosecution of government actors. He concludes that, to elude such manipulation, the ICC should ensure its selection strategies are not overly predictable.

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xii  The Elgar companion to the International Criminal Court Sara Wharton, in Chapter 9, considers whether the ICC’s judiciary, registry, and defence counsel adequately protect defendants’ rights. She begins by examining the rights of the accused as set forth in the Rome Statute and related documents, and assessing how court actors seek to realize those rights. In particular, she discusses recurring narratives on the gaps in equality of arms between the prosecution, defence and victim representatives. Wharton argues that although in principle, the relevant instruments provide for equality of arms, the Court’s practice does not live up to this ideal. She recommends reforms to ensure that ‘these rights are fully guaranteed in practice and not only on paper’. In Chapter 10, Jennifer Trahan examines the theory and reality of the role of the Assembly of States Parties (ASP). She begins with a description of how the ASP was designed to function, then turns to an analysis of how it has actually been functioning, focusing on certain core activities, including election of judges, setting the ICC’s budget, agreeing on Rome Statute amendments, and negotiating the annual ‘omnibus resolution’. The chapter concludes with consideration of future challenges for the ASP, including: ensuring it does not interfere with the ICC’s independence; guaranteeing the Court has a sufficient budget to perform its work; more effectively addressing the problem of State Party non-cooperation (particularly as to outstanding arrest warrants); and handling other ‘push back’ against the work of the ICC. The last chapter in this part, Chapter 11 by Rebecca Hamilton, examines the roles that the Security Council and African Union (AU) have played in determining the ICC’s ability to fulfil its mandate. Hamilton focuses on the ‘anti-Africa’ narrative of the Court’s work that emerged at the AU, on the Security Council’s role in that narrative, and on the responsive ‘a-political court’ counter-narrative at the Court. The chapter problematizes both narratives, arguing that they fail to address the real substantive challenges the Court faces. These include the repercussions of initially pursuing an all-Africa docket and of the Security’s Council’s failure adequately to support the Court’s work after referring situations. The final part of the book addresses some of the major controversies surrounding the ICC’s work. The chapters provide an overview of the main narratives on each issue, and offer insights into the extent to which they affect the Court’s success. This part begins, in Chapter 12, with an examination by Yvonne Dutton of the recurrent theme in international criminal justice of whether, and to what extent, peace and justice are in tension. The chapter situates the debate in historical context and sets forth the narratives on each side, focusing on how the debate has played out in discussions about the ICC. Employing case studies, Dutton shows that the ICC’s decisions to prosecute defendants in situations of ongoing conflict have made the debate about whether international prosecution has a positive or negative effect on peace more complex. Next, in Chapter 13, Asad Kiyani examines the controversies surrounding ICC selection decisions. The chapter considers the intense public debate around whether the ICC is a ‘selective’ court, and whether that selectivity matters for the Court’s legitimacy. One narrative is that ‘the Court is clearly selective and thus has lost or diminished credibility as a judicial body’. A counter-narrative is that ‘selectivity is an ordinary part of criminal justice systems’, and so ‘selectivity … may even indicate that the Court is successful and legitimate’. Kiyani disputes both perspectives as reductive and misleading. The central focus, in his view, should be on when selectivity is impermissible. Kiyani proposes a new typology, situating the ICC within a multi-institutional and multi-jurisdictional context. Using two examples—the geographic distribution of cases, and the differentiation between parties to a conflict or atrocity—he concludes that the main selectivity issues at the ICC arise not because of what happens between

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Introduction  xiii states, but within states, in particular with the interaction of the ICC with local legal and political actors and institutions. Chapter 14, by Jonathan O’Donohue, argues that the ICC has faced significant challenges in complying with its strong human rights foundations. In particular, O’Donohue examines common narratives on unequal access to justice by victims of atrocity or conflict-related crimes, the ICC’s deference to unfair national tribunals, fair trial concerns such as inadequate legal aid, and ineffective approaches to the rights of victims and witnesses. These concerns, in his view, have been compounded by ineffective cooperation by ICC States Parties and the restricted budgets approved by the ASP. O’Donohue proposes ways the ICC and its supporters can strengthen its human rights record, including prioritizing human rights compliance. Louise Chappell and Rosemary Grey detail, in Chapter 15, the contested narratives around sex and gender within the ICC. Chappell and Grey analyse the ways in which feminist actors sought to challenge conventional narratives of the role of gender in conflict during the Court’s creation, and the extent to which these narratives have actually changed the practice of the ICC. By considering narratives and counter-narratives around sex and gender of different stakeholder communities engaging with the ICC, they show that the reforms to the dominant narrative sought by feminist actors have changed over time. Initially feminist actors prioritized making sexual violence visible in war narratives. More recently, feminist activism and scholarship has focused instead on seeking deeper explanations of sexual violence during atrocity, and on the linkage of socially constructed gender roles to these considerations. They conclude that the Rome Statute is well-suited as a vehicle for a broad conception of gender violence which encapsulates, but is not limited to, sexual violence. Margaret deGuzman concludes the book in Chapter 16 with an exploration of narratives about the ICC’s mission. She argues that the institution’s mission as currently conceived is insufficiently precise to enable the Court to identify values and goals to guide its decisions. The chapter focuses on a particular aspect of the Court’s ‘mission uncertainty’: the lack of clarity about what community or communities the ICC is meant to serve. It presents three narratives about the Court’s mission as it relates to target communities, which it labels the ‘global’, ‘local’, and ‘hybrid’ narratives. It then demonstrates how decision-making strategies in key areas could differ depending on which of these missions the Court pursues, and concludes with a plea for additional attention to refining the Court’s mission. Collectively, the chapters of this book present a picture of a Court that can boast important accomplishments in its first two decades, but also faces serious challenges, some of them existential. The Statute’s drafters overcame a host of hurdles to create an institution with a strong independent prosecutor, the ability to prosecute crimes committed anywhere in the world—at least with a Security Council referral, and strong human rights foundations. It has the support of the vast majority of the world’s states, although not all of the most populous or powerful states, and has many strong backers in global civil society. Nonetheless, serious impediments remain to the Court becoming a strongly effective force for global justice. Among the most important of the Court’s challenges, addressed in several chapters of this book, is that of ascertaining an appropriate strategy for selecting situations and cases to prosecute. The Statute provides limited guidance in this regard and many of the Court’s selection decisions have proven controversial. They have promoted charges of bias against Africans and in favour of powerful actors, and have fuelled claims about the Court as an improperly politicized institution. Whether or not such charges are deserved, the Court must address and overcome them to be successful. In other areas, such as decisions about how to inflict punishment, adhere

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xiv  The Elgar companion to the International Criminal Court to human rights values, and promote norms of gender equality, the Court has made positive contributions to the cause of justice and also has more work to do. With an institutional review underway, now is an excellent time for the Court and its supporters to engage in dialogue and develop strategies to address these and other challenges so that it can become a powerful force for global justice. Margaret M. deGuzman and Valerie Oosterveld

Margaret deGuzman and Valerie Oosterveld - 9781785368233

1. The dynamics of the Rome Conference William A. Schabas

The Rome Statute of the International Criminal Court was adopted on 18 July 1998 following five weeks of negotiations at a Diplomatic Conference of Plenipotentiaries that was attended by thousands of delegates, observers and journalists. A dramatic vote taken shortly after midnight but with the clock stopped to preserve the fiction that the proceedings had concluded on 17 July—within the time frame set the previous year by the United Nations General Assembly— provided the necessary two-thirds majority for adoption of the text. One of the most complex international instruments ever concluded, it wove together several specialized bodies of law, including criminal law, international humanitarian law, international human rights law, the law of the United Nations, and the law of international organizations more generally. When the delegates assembled in Rome in mid-June 1998, they were provided with a draft text of the statute of the international criminal court.1 Some of the provisions were uncontroversial, agreement having been reached in several sessions of the Preparatory Committee held during 1996, 1997 and early 1998. But most were displayed with one or more options enclosed in square brackets to indicate the absence of any agreement. There were in excess of 1,700 sets of square brackets in the draft text. An additional 200 distinct written proposals were submitted during the Conference itself.2 When they finished, a text consisting of a preamble and 128 articles, some of them many hundreds of words long, had been adopted. Inevitably, and quite deliberately, many of the provisions are ambiguous. For a few of them, like Article 121 on the amending procedure, the word enigmatic is an understatement. The draft text that the Rome Conference used as a basis for negotiations had been many years in preparation. Precisely when the process began is a bit like asking the length of a piece of string. A few months prior to the Conference, Christopher Keith Hall of Amnesty International published an article in the International Review of the Red Cross describing what was apparently the first draft statute of a permanent international criminal court. It had been proposed by Gustave Moynier, one of the founders of the International Committee of the Red Cross, in 1872 in the aftermath of the Franco-Prussian War. Moynier’s draft received mixed reviews from other specialists, and nothing indicates that it ever attracted the attention of governments whose support would have been essential were the project to see the light of day.3 Decades later, at the Hague Conferences of 1899 and 1907, delegates discussed various proposals relating to international adjudication, but while they reached some agreement on Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN Doc. A/CONF.183/2, 14 April 1998. 2 R. S. Lee, ‘The Rome Conference and its Contribution to International Law’, in R. S. Lee (ed.), The International Criminal Court, The Making of the Rome Statute, Issues, Negotiations, Results (The Hague/London/Boston: Kluwer Law International, 1999) 1–39, at 14–15. 3 C. K. Hall, ‘The First Proposal for a Permanent International Criminal Court’, 38 International Review of the Red Cross (1998) 57–74. See also G. Moynier, La création d’une institution judiciaire internationale, propre à prévenir et à réprimer les infractions à la Convention de Genève (Geneva: Comité international de secours aux militaires blessés, 1872). 1

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4  The Elgar companion to the International Criminal Court tribunals for inter-state disputes, there is no evidence of any consideration being given to an international criminal tribunal. In August 1916, following reports of German atrocities in occupied Belgium, north-east France and on the high seas, French diplomats prepared a draft statute for an international criminal court.4 It appears to be the first initiative at the governmental level directed at establishing an international criminal court. A few years later, in the Commission on Responsibilities of the Paris Peace Conference, the United Kingdom (UK) circulated its own draft provisions for an international criminal court statute.5 Article 227 of the Treaty of Versailles contemplated an international court for trial of the former Emperor of Germany, but it was never established. Following study of the subject by professional bodies including the International Law Association and the Association Internationale de Droit Pénal, the League of Nations took a further step towards setting up an international criminal tribunal in 1937.6 Finally, after World War II, the first international criminal tribunals were actually created to try the perpetrators of crimes against peace, war crimes and crimes against humanity. But they were temporary in nature. The genesis of the Rome Statute, however, really begins on 9 December 1948 with General Assembly Resolution 260(III). Adoption of the Convention on the Prevention and Punishment of the Crime of Genocide was the primary purpose of the Resolution. But because Article 6 of the Convention pledged the prosecution of the crime ‘by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction’, in a companion text the General Assembly requested the International Law Commission to study ‘the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide or other crimes’. The Resolution stated that ‘in the course of development of the international community, there will be an increasing need of an international judicial organ for the trial of certain crimes under international law’.7 The International Law Commission worked sporadically on the task, pausing in 1954 for a three-decade hibernation. In the early 1980s, the Commission revived its study of the Code of Crimes Against the Peace and Security of Mankind. For several years, the Commission prodded the General Assembly to authorize it to renew its consideration of the international criminal court, arguing that while the Code might define the crimes, for it to have any real significance the creation of an international tribunal was imperative.8 In 1989, the General Assembly finally gave the green light. The International Law Commission then proceeded

‘Projet de Convention entre tous les Alliés’ and ‘Projet de Convention entre la France et la Grande Bretagne’, A-1025-3, August 2016, p. 10. 5 ‘Memorandum Submitted by the British Delegation’, in Minutes of Meetings of the Commission, USNA 181/1201.16, 19 February 1919, 27–33, at 30–33. 6 Convention for the Creation of an International Criminal Court, League of Nations OJ Spec. Supp. No. 156 (1936), LN Doc. C.547(I).M.384(I).1937. V (1938). 7 Study by the International Law Commission of the Question of an International Criminal Jurisdiction, GA Res. 260 (III) B, 9 December 1948. 8 Report of the International Law Commission on the work of its thirty-fifth session, UN Doc. A/38/10, 3 May–22 July 1983, § 69(c)(i); Report of the International Law Commission on the work of its thirty-eighth session, UN Doc. A/41/10, 5 May–11 July 1986, § 185. 4

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The dynamics of the Rome Conference  5 in earnest, under the leadership of James Crawford, presenting the General Assembly with a working draft statute in 1994.9 The International Law Commission draft underwent considerable modifications over the next four years as preparations accelerated for a diplomatic conference where, it was hoped, agreement could be reached on a text.10 Each year, governments expressed their views on the progress of the negotiations at sessions of the Sixth Committee of the General Assembly. Substantive debate, and efforts at compromise, mainly occurred at meetings of the Ad Hoc Committee of the General Assembly, which met twice in 1995, and then in those of the Preparatory Committee, which held several sessions lasting many weeks in the years that followed. Various constituencies emerged as the process unfolded. Informal sessions were also held each year under the auspices of the Siracusa International Institute, whose director was one of the pre-eminent personalities of the entire process, M. Cherif Bassiouni. Primarily, of course, the drafting was the work of sovereign states. The process was initially dominated by public international lawyers and diplomats. As it gained momentum, governments added specialists in various areas to their delegations. Many sought the guidance of criminal lawyers, some of whom had expertise in the development of multilateral and bilateral treaties on mutual legal assistance and related matters. When it became likely that the Statute would include ‘core crimes’, notably violations of the laws and customs of war, legal experts from the armed forces were summoned. Although each government had its own views on a range of issues, common interests soon became apparent and informal alliances and caucuses were created. Regional groupings, such as the European Union, the Southern African Development Community and the Caribbean Community, found their own voices, submitting discussion papers and amendments for consideration. The International Committee of the Red Cross contributed its expert knowledge in the area of the law of armed conflict. Interest from non-governmental organizations snowballed as international justice emerged as an important theme of human rights advocacy. Scholarly attention also grew at a stunning pace as the topic was taken up by individual academics but also by professional bodies, such as the Association Internationale de Droit Pénal, the International Law Association and the International Society for the Reform of Criminal Law. All of these constituencies converged on Rome in June 1998 with their hopes, expectations and priorities.

1.

CONDUCT OF THE NEGOTIATIONS

The Rome Conference was convened by the United Nations pursuant to two General Assembly Resolutions.11 Invitations were extended by the Secretary-General of the United Nations to all Member States as well as to members of specialized agencies and of the International

9 J. Crawford, ‘The Work of the International Law Commission’, in A. Cassese, P. Gaeta and J. R. W. D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002) 23–34. 10 A. Bos, ‘From the International Law Commission to the Rome Conference’, in A. Cassese, P. Gaeta and J. R. W. D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002) 35–66. 11 Establishment of an International Criminal Court, UN Doc. A/RES/51/207, 16 January 1997; Establishment of an International Criminal Court, UN Doc. A/RES/52/160, 15 December 1997.

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6  The Elgar companion to the International Criminal Court Atomic Energy Agency.12 The credentials of some 162 Member States were recognized by the Conference.13 More than 20 intergovernmental organizations and entities with invitations to participate in the General Assembly also attended, including the Council of Europe, the League of Arab States and the International Committee of the Red Cross.14 Furthermore, the Conference was also attended by in excess of 200 intergovernmental organizations. Almost 500 journalists were accredited. The Conference was held in the headquarters of the Food and Agriculture Organization (FAO), a United Nations agency. The FAO building was constructed in the 1930s to house the Department of Italian East Africa. Just outside the building, on the corner facing the Porta Capena, Mussolini had placed the Obelisk of Axum, a trophy taken from Ethiopia by Italian armed forces. Despite a post-war promise that it would be returned to its owners, the monument was still there during the Diplomatic Conference. Every single day as they entered the building, delegates walked by this unhappy reminder of brutal Italian colonialism. The Obelisk was repatriated in 2005. The Plenary of the Conference, at which all participating states were entitled to vote, was the ultimate decision-making body. The Plenary held several sessions during the first week of the Conference and then adjourned for four weeks, only to reconvene on the last evening to adopt the final text. The substantive work of drafting the Statute was mainly accomplished by the Committee of the Whole, chaired by Philippe Kirsch, and by several of its thematic working groups. A variety of informal groupings played a role in resolving specific issues. Kirsch and the chairmen of the various working groups formed the Bureau, which acted as the main executive organ throughout the Conference. Each of the working groups was assigned a part of the draft Statute. As soon as the working groups had reached agreement on one or more of the provisions for which they were responsible, the texts were forwarded to the Committee of the Whole. In due course, and generally without more than a brief explanation from the coordinators of the working groups, the Committee of the Whole would refer the text to the Drafting Committee, chaired by M. Cherif Bassiouni. The Secretariat of the Conference was assured by the United Nations under the overall direction of its senior legal officer, Hans Corell, with Roy Lee of the codification division as executive secretary. Kofi Annan, the Secretary-General of the United Nations, opened the Conference and briefly served as temporary president until Giovanni Conso, a distinguished Italian diplomat, was elected President. After various formal matters were determined, including adoption of the Rules of Procedure, the Plenary provided a forum for delegations and observers to set out their positions on the draft Statute and, more generally, the establishment of the International Criminal Court. For this ‘high-level’ segment of the Conference, many delegations were represented by their most senior officials, often ministers of foreign affairs. By the time the Plenary adjourned on Thursday of the first week of the Conference, the centre of gravity had already shifted to the Committee of the Whole and the working groups. Initially, five working groups were established on General Principles of Criminal Law, Procedural Matters, Penalties,

12 Establishment of an International Criminal Court, UN Doc. A/RES/52/160, OP 3, 15 December 1997. 13 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Summary Records of the Plenary Meetings of the Committee of the Whole, A/CONF.183/13 (Vol. II), 15 June–17 July 1998, at 3–41. 14 Ibid. at 42–4.

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The dynamics of the Rome Conference  7 International Cooperation and Judicial Assistance, and Enforcement.15 As the Conference proceeded, other groups were set up on Applicable Law, Composition and Administration of the Court, Financing of the Court and Assembly of States Parties, Crimes, and Preamble and Final Clauses. ‘Coordinators’ were designed for specific parts of the Statute, and even for specific provisions, such as the definitions of crimes against humanity and the crime of aggression.16 Some of the most sensitive provisions, essentially those of Part II of the Statute, were not assigned to any working group. Rather, they were debated in the Committee of the Whole and negotiated during informal sessions and ‘in the margins’ of the Conference. The Official Records of the Conference contain ‘summary records’ of the sessions of the Plenary and of the Committee of the Whole. Summary records are a third-party précis of speeches. But there is nothing in the Official Records to indicate the content of the debates in the working groups. The lack of any summary record of the working groups was quite deliberate. It was felt that recording the debates might stifle discussion and discourage compromise. Thus, the only official documents from the working groups are the amendments that were formally proposed, either by delegations or by the coordinator, and the final text upon which agreement had been reached. Despite the absence of any formal record of the debates in the working groups, there was no Chatham House Rule preventing those in attendance from reporting on the discussions. Regularly, accounts appeared in the bulletins and in the newspapers published during the conference. Later, personal reports on the debates by the participants themselves were featured in books, such as the one edited by Roy Lee,17 and in the Commentary on the Statute produced by Otto Triffterer, which was actually subtitled ‘Observers’ Notes’.18 The case law of the International Criminal Court provides examples of debates in the working groups being considered as part of the preparatory work, with reliance upon the accounts in Lee and Triffterer but without reference to any documents in the Official Records.19 For example, in Lubanga, the Appeals Chamber invoked the travaux préparatoires, noting ‘concerns by some delegates’ that the term ‘recruiting’ in Article 8 might be taken to prohibit recruitment campaigns addressed to children under 15 even though these might not be intended to have them begin military training immediately.20 To support its assertion, the Appeals Chamber referred to the second edition of the Triffterer Commentary,21 which in turn United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Summary Record of the 2nd Plenary Meeting, UN Doc. A/CONF.183/ SR.2, 15 June 1998, §§ 1–2. 16 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Summary Record of the 6th Plenary Meeting, UN Doc. A/CONF.183/ SR.6, 17 June 1998, § 1. 17 R. S. Lee (ed.), The International Criminal Court, The Making of the Rome Statute, Issues, Negotiations, Results (The Hague/London/Boston: Kluwer Law International, 1999). 18 O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, Observers’ Notes, Article by Article (Baden-Baden: Nomos, 1999). 19 E.g., Separate and Partially Dissenting Opinion of Judge Fernández de Gurmendi, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire, Situation in the Republic of Côte d’Ivoire (ICC-02/11), Pre-Trial Chamber III, 3 October 2011, §§ 8–9. 20 Judgment on the appeal of Mr. Thomas Lubanga Dyilo against his conviction, Lubanga (ICC-01/04-01/06 A 5), Appeals Chamber, 1 December 2014, § 285. 21 R. Arnold et al., ‘Article 8’, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, Observers’ Notes, Article by Article (2nd edn., Munich: C.H. Beck, Hart Publishing, Nomos, 2008) 275–503, at 472–3. 15

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8  The Elgar companion to the International Criminal Court cited the chapter by Herman von Hebel and Darryl Robinson in the volume edited by Roy Lee.22 But von Hebel and Robinson, both of whom were members of national delegations at the Rome Conference, did not cite any authority for their claim that ‘the word “recruiting” was replaced with “conscripting or enlisting”’. There is nothing in the Official Records of the Rome Conference to confirm this. The negotiations themselves followed the method of consensus or ‘general agreement’. The General Assembly resolution convening the Conference referred to ‘the importance of concluding the work of the conference through the promotion of general agreement on matters of substance’.23 The Rules of Procedure required that the Conference ‘make its best endeavours to ensure that the work of the Conference is accomplished by general agreement’. They specified that if, ‘in the consideration of any matter of substance, all feasible efforts to reach general agreement have failed, the President of the Conference shall consult the General Committee and recommend the steps to be taken, which may include the matter being put to the vote’.24 There were complex discussions prior to the Conference about the requisite majorities,25 it being agreed eventually that adoption of the Statute as a whole would require a two-thirds majority of those present and voting, provided that the majority itself contained a majority of states participating in the Conference.26 Abstainers were not considered to be ‘present and voting’.27 Consensus worked throughout the conference and only at the very end were there calls for a vote. Three such calls, in the last sitting of the Committee of the Whole, were dismissed through a procedural gambit known as a ‘no-action motion’.28 When the delegates gathered for the final Plenary, the United States (US) called for a vote on the Statute as a whole. The result was 120 in favour and seven opposed, considerably more than two-thirds of those present and voting and comfortably above the minimum requirement of 81 in favour.29 Negotiation by consensus can be traced to organs of the League of Nations, although it only came to dominate treaty-making in the 1970s and 1980s. The rise of negotiation by consensus is not unrelated to the numerical dominance of so-called non-aligned states from the Global South and the existence of powerful minorities in political, military and economic terms. According to Jonathan Charney, the consensus system

22 H. von Hebel and D. Robinson, ‘Crimes within the Jurisdiction of the Court’, in R. S. Lee (ed.), The International Criminal Court, The Making of the Rome Statute, Issues, Negotiations, Results (The Hague/London/Boston: Kluwer Law International, 1999) 79–126, at 118. 23 A/RES/52/160, 15 December 1997, supra note 11. 24 Rules of Procedure for the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, UN Doc. A/CONF.183/6, 15 June 1998, at Rule 34. 25 Lee, supra note 2, at 17–18. 26 Rules of Procedure for the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, UN Doc. A/CONF.183/6, 15 June 1998, at Rule 36(1). 27 Ibid. at Rule 37. 28 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Summary Record of the 42nd Plenary Meeting, UN Doc. A/CONF.183/C.1/SR.42, 17 July 1998, §§ 9–15 and §§ 23–31. See also Lee, supra note 2, at 23–5. 29 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Summary Record of the 6th Plenary Meeting, UN Doc. A/CONF.183/ SR.9, 17 June 1998, §§ 8–10. See also M. C. Bassiouni and W. A. Schabas, The Legislative History of the International Criminal Court, Vol. I (The Hague: Brill, 2016), at 100–101.

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The dynamics of the Rome Conference  9 assures that decision-making at a multilateral negotiation of a convention will not be dominated by the numerical superiority of any group of nations … Since it is difficult to obtain acceptance of voting systems that overtly recognize the differences in nations’ importance, the consensus approach permits the maintenance of an egalitarian procedure which in practice may assure that multilateral negotiations reflect the real geopolitical power of the participating nations.30

There was also a practical advantage of proceeding by consensus. The Statute was an extraordinarily complicated legal instrument. If provisions were adopted in different working groups, they might result in contradictory provisions or texts that were simply incompatible. But this procedure is not without its critics. Writing after the Rome Conference, Bill Pace, of the Coalition for an International Criminal Court, complained of a tendency toward the adoption of treaty texts with a ‘low common denominator’ consisting of weak language dictated by countries that actually oppose the treaty and that often never ratify.31 Had the Rome Statute been adopted by majority vote, it might well have denied the Security Council any role whatsoever and it is likely that the use of nuclear weapons would have been included in the provision on war crimes. In practice, the debates in the Committee on the Whole and in the Working Groups began with a session where interested delegations would set out their opening positions, often declaring matters on which they were prepared to compromise. They would conclude their initial statements saying things like ‘We favour Option A, but we can be flexible on Option B, and we cannot accept Option C.’ After this tour de table, the chairman of the proceedings might summarize the positions, indicating strong support for one option and more modest support for others, but always taking care not to offend those in the minority by suggesting their views were entirely marginal. Frequently, the chairman might submit his or her own suggestion as the basis of a compromise. The work was tedious and the sessions often painfully lengthy, sometimes because of a few stubborn delegations or individuals. The disputes could often be quite technical, particularly in the procedural part of the Statute where criminal law experts encountered a clash of legal cultures. Difficulties might result from mere misunderstandings about how one of the main procedural systems actually operated. For example, in the area of penalties, there were some extreme views reflecting the spectrum of approaches in national systems. This made consensus difficult. On one end of the spectrum was a group of states that spoke in favour of the Court being able to impose capital punishment. On the other end were states opposed to life imprisonment as a maximum sentence. Finding an acceptable compromise was not only a question of reconciling quite different views but also of finding a workable solution for an international organization. If 30 J. Charney, ‘United States Interest in a Convention on the Law of the Sea: The Case for Continued Efforts’, 11 Vanderbilt Journal of Transnational Law (Van J Transnatl L) (1978) 39–75, at 43. See also W. Jenks, ‘Unanimity, the Veto, Weighted Voting, Special and Simple Majorities and Consensus as Modes of Decision in International Organization’, in D. W. Bowett (ed.), Cambridge Essays in International Law, Essays in Honour of Lord McNair (London: Stevens and Sons, 1965) 48–61; D. Vignes, ‘Will the Third Conference on the Law of the Sea Work According to the Consensus Rule?’, 69 American Journal of International Law (AJIL) (1975) 119–29, at 119; B. Buzan, ‘Negotiating by Consensus: Developments in Technique at the United Nations Conference on the Law of the Sea’, 75 AJIL (1981) 324–48, at 324. 31 W. R. Pace, ‘The Relationship between the International Criminal Court and Non-Governmental Organizations’, in H. von Hebel, J. G. Lammers, and J. Schukking (eds), Reflections on the International Criminal Court: Essays in Honour of Adriaan Bos (The Hague: T.M.C. Asser, 1999) 189–211, at 206–7.

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10  The Elgar companion to the International Criminal Court some states could not cooperate with an institution that imposed capital punishment, because of constitutional safeguards or international human rights obligations, authorizing the death penalty would doom any prospect of wide acceptance for the Court’s Statute. When it came to trial procedure, lawyers from inquisitorial systems were puzzled at the willingness of their colleagues from the adversarial tradition to allow accused persons to plead guilty, thinking this was a judgment by consent, immune to judicial scrutiny. Those from the adversarial system could not see how a genuine prosecutor might take responsibility for investigating the case for the defence as well as evidence for conviction. Despite such challenges, there was a general willingness to find common ground and a recognition that compromise was necessary. But even when delegates reluctantly accept a text, they might repeat a familiar mantra: ‘Nothing is agreed until everything is agreed.’ It was a signal that they expected their colleagues to give ground when there were other disputes.

2.

GROUPS, CAUCUSES AND INDIVIDUALS

Several groups of states operated in a concerted fashion at the Conference, although none acted as a monolithic bloc.32 Most prominent among them, if only because of its determination that a Statute be adopted and a Court created, was the ‘like-minded group’. The origins of the like-minded group or caucus can be traced to the 1995 sessions of the Ad Hoc Committee of the General Assembly, born from the frustration of ‘a handful of Western European and Latin American states’ with the opposition of the major powers to the establishment of a Court.33 It quickly grew in size, comprising more than 60 states by the time of the Rome Conference, including Argentina, Australia, Chile, Egypt, Guatemala, Lesotho, New Zealand, Samoa, South Africa, Trinidad and Tobago (representing 12 Caricom states), Uruguay and Venezuela, as well as a large number of European states. According to M. Cherif Bassiouni, ‘[b]y all accounts, that group of States and their delegates were among the driving forces behind the successful outcome of this endeavour’.34 Chaired by Canada, the like-minded group often found itself in informal alliance with the main human rights non-governmental organizations and with the Coalition for an International Criminal Court.35 The like-minded states were committed to a successful outcome but were also insistent on important changes to the vision of the Court that had been advanced in 1994 by the International Law Commission. They united around four ‘cornerstone’ principles or ideas, of which probably the most significant, and the most controversial in a political sense, was the removal of a ‘filter’ role for the Security Council. Other important objectives of the like-minded included automatic jurisdiction of the Court over core crimes, a definition of war crimes that included those committed during non-international armed conflict, an obligation of cooperation imposed upon States Parties,

P. Kirsch, ‘Introduction’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, Observers’ Notes, Article by Article (Baden-Baden: Nomos, 1999) xxiii– xxviii, at xxv. 33 M. H. Arsanjani, ‘The Rome Statute of the International Criminal Court’, 93 AJIL (1999) 12, at 23–4. 34 Bassiouni and Schabas, supra note 29, at 82. 35 Pace, supra note 31, at 205–8. 32

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The dynamics of the Rome Conference  11 and determination of admissibility and jurisdiction by the Court itself.36 There was also broad agreement among the like-minded that the Court should be able to exercise universal jurisdiction, but this was not formally a part of its credo.37 The International Law Commission had conceived of a Court that was essentially subordinate to the Security Council, a tribunal similar to the ad hoc tribunals for the former Yugoslavia and Rwanda but established on a permanent basis.38 The essence of Security Council control would be a veto on the selection of situations for prosecution. The like-minded favoured a Court with more independence. The way to achieve this was to assign the selection of situations to an independent prosecutor, and this became another key demand of the like-minded. On this issue in particular, there was a real meeting of the minds with the human rights non-governmental organizations who believed that the independence of the prosecutor was an essential feature of a fair tribunal. The like-minded may have shared this position, but they were also driven by a more plainly political objective of taming the authority of the Security Council. In this way, the Rome Statute became an instrument to achieve indirectly what it had been impossible to achieve directly, the reform of the Charter of the United Nations. Considerable significance was attached to the decision of the UK to join the like-minded, precisely because of its status as a permanent member of the United Nations Security Council. Six months prior to the Rome Conference, the UK endorsed an amendment to what became Article 16 of the Statute.39 It is one of two provisions in the 1998 text of the Statute that delineate the intervention of the Security Council in the determination of situations for prosecution. Momentum had been building at the sessions of the Preparatory Conference for provisions that would dramatically reduce the role of the Security Council from what had been contemplated in the International Law Commission draft. By subscribing to a compromise amendment, the UK successfully managed to put the brakes on what might have become a runaway train. Its compromise preserved a degree of recognition of a role for the Security Council that could otherwise have disappeared as the negotiations progressed, becoming more and more remote from the vision of the International Law Commission. The change of heart in London, which has been associated with the election of the Labour Government under Prime Minister Tony Blair, thrilled the ‘like-minded’ but it also unsettled the other permanent members. David Scheffer of the US described a telephone call from the British legal advisor, Frank Berman, to tell him of the development. ‘[O]ur common-law ally was going its own way – with the “like-minded” – and I was stuck with favourable nods from Russia and China but practically no one else given their hatred of Security Council powers’, he wrote.40

M. Glasius, The International Criminal Court: A Global Civil Society Achievement (London and New York: Routledge, 2006), at 22–6. 37 F. Benedetti and J. L. Washburn, ‘Drafting the International Criminal Court Treaty: Two Years to Rome and an Afterword on the Rome Diplomatic Conference’, 5 Global Governance (1999) 1–37, at 1; P. Kirsch and D. Robinson, ‘Reaching Agreement at the Rome Conference’, in A. Cassese, P. Gaeta and J. R. W. D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002) 67–91, at 70–71. 38 Report of the International Law Commission on the work of its forty-sixth session, UN Doc. A/49/10, 2 May–22 July 1994, at 43–5. 39 Proposal Submitted by the United Kingdom of Great Britain and Northern Ireland, UN Doc. A/ AC.249/1998/WG.3/DP.1, 25 March 1998, at Article 3. 40 D. Scheffer, All the Missing Souls: A Personal History of the War Crimes Tribunals (Princeton: Princeton University Press, 2012) at 195–6. 36

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12  The Elgar companion to the International Criminal Court In contrast with the ‘like-minded’, which coalesced during the sessions of the Preparatory Committee and was devoted exclusively to the International Criminal Court, the Non-Aligned Movement had a history dating back to the Bandung Conference of 1954. In common with the ‘like-minded’ group, the Non-Aligned Movement was energized by a post-Cold War global environment that presented opportunities to reduce some of the prerogatives of the Security Council. Philippe Kirsch has written that ‘[a] few NAM members’ were opposed to any role for the Security Council.41 But according to David Scheffer, ‘[t]he Non-Aligned Movement of over one hundred countries opposed any Security Council role with only a few exceptions’.42 At the final session of the Committee of the Whole, India put forward two resolutions that were said to reflect an official position taken by the Non-Aligned Movement: the first was to deprive the Security Council of the right to refer situations to the Court; and the second to include the use of nuclear weapons in the catalogue of war crimes.43 Inclusion of the crime of aggression within the jurisdiction of the Court was an issue cherished by the Non-Aligned but a matter of indifference to many members of the ‘like-minded’ (as well as many of the human rights NGOs). Just as the impact of the ‘like-minded’ can be seen in Articles 15 and 16 of the Rome Statute, that of the Non-Aligned is visible in the reference to the crime of aggression in Article 5 and, ultimately, in the amendments adopted at the Kampala Review Conference in 2010.44 The Non-Aligned also manifested strong support for inclusion of drug crimes and terrorism. Although several states insisted that the Statute authorize capital punishment, this position cannot be attributed to the Non-Aligned. Although several of its members favoured such a position, a large number were firmly on the path to abolition. Furthermore, there were also a few supporters of capital punishment within the ‘like-minded’. Coordination among the permanent members of the Security Council was not visible in the same way as it was for the other groups. However, the five permanent members certainly shared common views. There is evidence that they coordinated their positions. In the first days of July, they held a working dinner at the French embassy.45 Then, ‘[d]uring the final week of the Rome Conference, the delegations of the governments of the five permanent members of the Security Council (the US, Russia, France, the UK and China, also known as the P-5) met intensively to arrive at a compromise package that could be presented to the conference’, wrote David Scheffer in his account in the American Journal of International Law.46 He described the reaction of the like-minded to the P-5 proposal as being ‘almost violent’,47 but many of its concerns were reflected in the final draft of Part II that was proposed by the Bureau. According to Philippe Kirsch and John Holmes, ‘[t]heir solidarity was clearest on two points: a strong role for the Council vis-a-vis the court, and the exclusion of nuclear weapons from the weapons prohibited by the statute’.48 They objected to the notion of an independent prosecutor with the

Kirsch and Robinson, supra note 37, at 71. Scheffer, All the Missing Souls, supra note 40, at 193. 43 UN Doc. A/CONF.183/C.1/94, date and UN Doc. A/CONF.183/C.1/95, date. Discussed in Lee, supra note 2, at 24. 44 Resolution RC/Res.6, The Crime of Aggression, UN Doc. RC/Res.6, 11 June 2010. 45 Scheffer, All the Missing Souls, supra note 40, at 204–5. 46 D. Scheffer, ‘The United States and the International Criminal Court’, 93 AJIL (1999) 12, at 19–20. 47 Scheffer, All the Missing Souls, supra note 40, at 220. 48 P. Kirsch and J. T. Holmes, ‘The Rome Conference on an International Criminal Court: The Negotiating Process’, 93 AJIL (1999) 2–12, at 4. 41 42

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The dynamics of the Rome Conference  13 power to initiate proceedings. The permanent members were also opposed to the Court being able to prosecute the crime of aggression without prior authorization by the Council. Foremost among the five permanent members was the US. In the 1990s, following the break-up of the Soviet Union, the US was being described as the only remaining superpower. Many saw the US as an adversary of the Court, and for a few years following entry into force of the Rome Statute in 2002, it was indeed quite hostile to the institution. But at the Rome Conference there can be no doubt that the US was a keen supporter of the project. After initial opposition to international justice at the Paris Peace Conference, in 1919, the US became one of its most enthusiastic proponents. It contributed hugely to the work of the International Military Tribunal and the International Military Tribunal for the Far East. Much later, the US was decisive in the establishment of the International Criminal Tribunals for the former Yugoslavia and Rwanda. Throughout the negotiations of the Rome Statute, including the Conference itself, the US made many constructive proposals and interventions in the debates. Had it wanted to sabotage the Conference, there was no shortage of opportunities. The US had the biggest team of any country at the Conference yet, as John Washburn explained, because it ‘belonged to no group or bloc in the negotiations … it had too much to cover and no friends to represent its interests in meetings it could not physically attend. Ironically, this large delegation from the remaining superpower found itself in somewhat the same situation as tiny delegations from small countries that also complained about being swamped by too many concurrent meetings.’49 The US was in general favourable to the model proposed by the International Law Commission in 1994. However, as the negotiations unfolded, and the amendments put forward by bodies such as the ‘like-minded’ gained momentum, Washington’s discomfort grew. The participation of non-governmental organizations had been formally requested by the General Assembly when it convened the Rome Conference. The Resolution contemplated their robust participation in the process, specifying: the understanding that participation means attending meetings of its plenary and, unless otherwise decided by the Conference in specific situations, formal meetings of its subsidiary bodies except the drafting group, receiving copies of the official documents, making available their materials to delegates and addressing, through a limited number of their representatives, its opening and/or closing sessions, as appropriate.50

This was all confirmed in the Rules of Procedure of the Conference.51 Invitations were sent by the Secretary-General and more than 200 of them, such as Amnesty International, the Salvation Army, and the Royal Commonwealth Society, as well as groups of more modest proportions such as the Committee of Former Nuremberg Prosecutors, were formally accredited.52 As a general observation, ‘the NGOs pressed for a strong court with automatic jurisdic J. Washburn, ‘The Negotiation of the Rome Statute for the International Criminal Court and International Lawmaking in the 21st Century’, 11 Pace International Law Review (Pace Intl L Rev) (1999) 361–78, at 374. 50 Establishment of an International Criminal Court, UN Doc. A/RES/52/160, OP 9, 15 December 1998. 51 Rules of Procedure, UN Doc. A/CONF.183/6, at Rule 63, 15 June 1998. 52 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Non-Governmental Organizations Accredited to Participate in the Conference, UN Doc. A/CONF.183/INF/3, 5 June 1998. 49

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14  The Elgar companion to the International Criminal Court tion, an independent prosecutor, sensitivity to gender concerns, and jurisdiction over internal armed conflict’.53 Alan Baker, the chief counsel to the Israeli delegation, told the Wall Street Journal that he had never seen NGOs play a more powerful role. ‘They were in on nearly every meeting. They were in on everything,’ he wrote.54 But the NGOs were a complex mosaic and they did not always share the same perspective. Feminist organizations found their efforts being challenged by Real Women of Canada, a conservative body determined to make sure that the Rome Statute did nothing to strengthen campaigns for the right to abortion. The vast majority of the non-governmental organizations, including large and influential groups like Amnesty International, Human Rights Watch, the International Commission of Jurists, No Peace Without Justice and the Fédération internationale des ligues des droits de l’homme, were affiliated with the Coalition for an International Criminal Court. The Coalition was founded early in 1995. It resulted from an initiative of Christopher Keith Hall of Amnesty International and Bill Pace of the World Federalist Movement, two of the handful of observers present when the General Assembly decided to set up an ad hoc committee in light of the report of the International Law Commission.55 By June 1998, the Coalition claimed more than 800 organizational members, of which more than 200 sent representatives, making it the largest ‘delegation’ at the Conference. A steering committee of the Coalition ensured an NGO presence in the Working Groups and informal sessions. The Coalition also organized a network of ‘legal advisors’ who were offered as assistants to smaller delegations. As the conference wore on, some of the NGO experts on national delegations found themselves actually addressing the working groups. An autonomous Women’s Caucus for Gender Justice was also created, driven by concerns that certain matters were not being adequately addressed by the Coalition. The two bodies worked in harmony, however, and the Women’s Caucus had a representative on the steering committee of the Coalition.56 Three daily newspapers or bulletins were produced during the Rome Conference. The Coalition for an International Criminal Court issued its CICC Monitor, previously published every second month, on a daily basis.57 The Advocacy Project established a newspaper called On the Record. Finally, the Inter Press Service, which publishes at all United Nations conferences, issued the Terra Viva newspaper. Philippe Kirsch and John Holmes described the growing interest in Terra Viva, noting that delegates turned to it for news of events at the conference in which they had not participated, as well as comments about their own positions. ‘Terra Viva had its share of inaccuracies,’ they wrote, ‘but it was generally well-written, well-informed, and provocative enough to ensure wide readership’.58

Kirsch and Holmes, The Negotiating Process, supra note 48, at 5. Wall Street Journal, 24 July 1998, p. 1. 55 Glasius, supra note 36, at 26. See also B. Bedont and K. H. Martinez, ‘Ending Impunity for Gender Crimes under the International Criminal Court’, 6 Brown Journal of World Affairs (1999) 65–85; V. L. Oosterveld, ‘The Making of a Gender-Sensitive International Criminal Court’, 1 International Law FORUM du droit international (1999) 38–41. 56 Glasius, supra note 36, at 80; K. D. Askin, ‘Crimes Within the Jurisdiction of the International Criminal Court’, 10 Criminal Law Forum (Crim LF) (1999) 33–59, at 45. 57 W. R. Pace and M. Thieroff, ‘Participation of Non-Governmental Organizations’, in Roy S. Lee (ed.), The International Criminal Court, The Making of the Rome Statute, Issues, Negotiations, Results (The Hague/London/Boston: Kluwer Law International, 1999) 391–8, at 394. 58 See also P. Kirsch and J. T. Holmes, ‘The Birth of the International Criminal Court: The 1998 Rome Conference’, 36 Canadian Yearbook of International Law (Can YB Intl L) (1999) 3–40, at 11. 53 54

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The dynamics of the Rome Conference  15 Academics also made an important contribution to the negotiations. Prior to the Conference, they had mobilized through professional bodies such as the American Society of International Law, the American branch of the International Law Association and the Association Internationale de Droit Pénal.59 Several participating states recruited distinguished scholars to join their delegations. Often, their credibility and expert knowledge proved influential in the debates. Among them were Theodor Meron, Roger Clark, Andrew Clapham, Claus Kress, Kai Ambos, Andreas Zimmermann, Tim McCormack, Gerry Simpson, Gerhard Hafner, Raul Pangalangan, Sharon Williams, Paulo Sérgio Pinheiro, Maurice Kamto, Fred Harhoff, Philippe Sands, Angela Del Vecchio, Flavia Lattanzi, Ivo Josipović and Concepción Escobar. Other academics attended as observers, generally by associating themselves with an NGO delegation, including Otto Triffterer, Eric David, Leila Sadat and Diane Orentlicher. Not only did the academic participation enrich the debates, it also consolidated a cohort of experts who would write and lecture for many years about the Rome Conference and the creation of the Court. Although many individuals made remarkable contributions to the adoption of the Rome Statute, some stand out for their quite exceptional role. Space here only permits a few to be identified and discussed. First and foremost is the diplomat who steered the negotiations through to a successful completion, Ambassador Philippe Kirsch of Canada. He was recruited to chair the Committee of the Whole in the days prior to the start of the Conference after the Dutch diplomat who held the position, Adriaan Bos, withdrew for health reasons. Kirsch had already chaired international conferences with fruitful results. He had mastered the technique of negotiation by consensus, skilfully building agreement and finding ways to make progress without jeopardizing the final result or alienating significant constituencies. Almost intuitively, he seemed to understand how to craft a final version of the Statute that could withstand a vote on the text, should one be requested. After the Statute entered into force, Kirsch was elected by the Assembly of States Parties to its first roster of judges, and subsequently, he was designated President of the International Criminal Court by his colleagues, a position he held for two terms. M. Cherif Bassiouni, a professor of law at DePaul University in Chicago, had been campaigning for an international criminal court since the 1970s, patiently defending the future of an idea that many believed had seen its final days at Nuremberg. When international justice revived in the early 1990s, he chaired the fact-finding Commission on the Balkan Wars established by the Security Council but was eliminated as a candidate for Prosecutor of the International Criminal Tribunal for the former Yugoslavia because of his religion. Bassiouni served as chair of the Drafting Committee during the Rome Conference and sat as a member of the Bureau of the Committee of the Whole. The Drafting Committee was charged with producing final texts of the Statute in the six official languages. Bassiouni mastered four of them. Just as Kirsch was responsible for the political alignments that assured a successful outcome, Bassiouni must be credited with ensuring the legal coherence of the Statute.60

59 See, e.g., L. S. Wexler, ‘Observations on the Consolidated ICC Text before the Final Session of the Preparatory Committee’ (1998) 13bis Nouvelles études pénales; L. S. Wexler, ‘Model Draft Statute for the International Criminal Court based on the Preparatory Committee’s Text to the Diplomatic Conference, Rome, June 15–July 17 1998’, (1998) 13ter Nouvelles études pénales. 60 For Bassiouni’s discussion of the challenges facing the Drafting Committee, see Bassiouni and Schabas, supra note 29, at 91–5.

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16  The Elgar companion to the International Criminal Court An important, if controversial, contribution was made by David Scheffer, the head of the American delegation at the Rome Conference. From his desk in the Department of State, Scheffer had pushed forward the International Criminal Court project within a reluctant government. At the Conference, he often found himself defending positions that made him unpopular with the ‘like-minded’ and the NGOs, although they always respected him for his courtesy and charm, as well as his expert grasp of the issues. Under Scheffer’s leadership, the US made many constructive contributions to the process of drafting the Statute. When delegations from the Caribbean and from some states in the Middle East continued to push for inclusion of the death penalty, Scheffer surprised many by explaining to the Working Group that this would fatally undermine the Statute given widespread opposition to capital punishment.61 His call for a vote on the Statute at the final Plenary was done with aplomb. He specified that his instructions required him to insist upon a recorded vote. He had vainly argued against doing so, urging Washington to let the Statute be adopted by consensus, but the Pentagon insisted that the US record its opposition. The result only confirmed the broad support for the Statute and the isolation of its opponents, as Scheffer had predicted.62

3.

STRUGGLING TO REACH CONSENSUS

By Friday of the first week of the Conference agreement had been reached on the provisions in Part I. These were approved by the Committee of the Whole and transmitted to the Drafting Committee.63 During the second and third weeks, the Working Groups were very active and many more provisions were put to bed. But as a general rule, this initial progress consisted of fine-tuning texts on which there was already general agreement before the Conference had begun, or resolving relatively technical and perfunctory matters that did not go to vital concerns. The real challenge was negotiating Part II. It contained the definitions of the crimes, the description of the temporal, territorial and personal jurisdiction of the Court, the selection of situations for prosecution, and issues relating to the admissibility of cases. There was much controversy about the definitions of the crimes but this was familiar territory. Compromise could be found, as it had been with earlier efforts at international justice, at the close of World War II and when the ad hoc tribunals were created in the early 1990s. The only real sore point was the crime of aggression. On the other hand, describing the means of selecting situations (‘triggering’, as it was called) and the conditions of admissibility—principally the question of complementarity between the Court and national jurisdictions—was groundbreaking. Moreover, it went to the heart of the relationship between the Court and the Security Council, which was central to the concerns of all three of the main interest groups: the like-minded, the Non-Aligned and the Permanent-5. By the close of the third week, progress on the Part II issues ‘had ground to a standstill’.64 States were reluctant to compromise on particular issues because they did not know what the

See his account: Scheffer, All the Missing Souls, supra note 40, at 206–7. Ibid. at 223–4. 63 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Summary Record of the 7th Meeting, UN Doc. A/CONF.183/SR.7, 18 June 1998, § 4. 64 Kirsch and Holmes, The Negotiating Process, supra note 48, at 4. 61 62

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The dynamics of the Rome Conference  17 final draft would look like. If they made a concession on one point they could not be sure they would see the quid pro quo on another. In an attempt to ‘break the logjam’, and ‘to test reactions of delegations’,65 the President of the Committee of the Whole, Philippe Kirsch, invited a select group of delegations to a Sunday afternoon meeting at the residence of the Canadian ambassador in Rome. 66 A proposal by the Bureau setting out a limited range of options for Part II formed the basis of discussion.67 It was already clear that some provisions enjoyed the support of very broad majorities, but the Bureau was careful not to exclude minority positions as this might entirely alienate certain delegations and turn them against the entire enterprise. With respect to crimes within the jurisdiction of the Court (Article 5), the discussion paper assumed that there was agreement on genocide, crimes against humanity and war crimes, but for aggression it listed alternatives: ‘Option 1. The crime of aggression. Option 2. No such provision’. Kirsch told the meeting that the crime of aggression would probably have to be excluded if there was no significant progress on formulating a provision. He wrote later that ‘[t]he meeting was less successful than had been hoped’.68 The Bureau proposals were reformulated and then debated within the Committee of the Whole.69 On the crime of aggression (as well as certain ‘treaty crimes’: terrorism, drug trafficking, crimes against UN personnel), the revised Bureau text stated explicitly that it ‘may be inserted in the draft Statute if generally accepted provisions are developed by interested delegations by the end of Monday, 13 July. If this is not possible, the Bureau will propose that the interest in addressing these crimes be reflected in some other manner, for example, by a Protocol or review conference.’ Already there was some progress by comparison with the Bureau discussion paper of a few days earlier. The provision entitled ‘Prosecutor’, where the authority of an independent prosecutor to select situations for prosecution was defined, had been presented in the alternative, with ‘No such article’, in the earlier document. Now, the Bureau’s Option 2 said ‘[a] provision for additional safeguards before the Prosecutor can act’. The existence of an independent prosecutor was no longer up for debate. But in the assessment of Kirsch, writing some years after the Conference, ‘the discussions simply reaffirmed existing trends’ and may even have ‘revealed a hardening of positions’.70 Until the final days of the Conference, the Bureau of the Committee of the Whole seriously contemplated announcing that no agreement could be reached and that a second Conference should be convened.71 Instead, it decided to present a ‘package deal’, a final proposal that would weave together various compromises calculated to meet enough of the concerns of most of the delegations and, in the final hour, obtain the agreement of the Conference, by consensus if possible. A package was necessary because although there were ‘clear numerical trends’ on the key issues, ‘different majorities could be discerned on different issues’, necessitating

Kirsch and Robinson, supra note 37, at 74. Kirsch and Holmes, The Negotiating Process, supra note 48, at 4. 67 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of International Criminal Court, Bureau Proposal: Discussion Paper Regarding Part 2, UN Doc. CONF.183/C.1/L.53, 6 July 1998. 68 Kirsch and Holmes, The Negotiating Process, supra note 48, at 5. 69 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of International Criminal Court, Bureau Proposal: Discussion Paper Regarding Part 2, UN Doc. CONF.183/C.1/L.59, 10 July 1998. 70 Kirsch and Robinson, supra note 37, at 75. 71 Kirsch and Holmes, The Negotiating Process, supra note 48, at 9. 65 66

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an A/ an A/

18  The Elgar companion to the International Criminal Court ‘a combination of preferred options and bottom lines’.72 There was much anticipation as delegates awaited the Bureau proposal in the final days. It was only circulated early in the morning of 17 July. The ‘package deal’ contained no real surprises as the issues had been thoroughly debated, but there were some creative developments. Among the most important were the jurisdictional preconditions based upon territory and nationality (Article 12), closing the door on the dream of the NGOs and many of the ‘like-minded’ that the Court might be authorized to exercise universal jurisdiction. There were warnings that the provision would doom the Court to ineffectiveness because only ‘good states’ would ratify the Statute,73 but this did not prove to be the case. Another was the opt-out clause for war crimes (Article 124), a source of much discontent. This was the ‘joker’ that France insisted upon in extremis.74 Little more than a damp squib, it was invoked by only two of the 124 states to ratify the Statute and withdrawn by one of them, France, even before it had expired.75 Finally, the Bureau draft included the crime of aggression as one of the crimes within the jurisdiction of the Court (Article 5). It took a peculiar form because the crime of aggression would not become operational until an amendment was adopted providing a definition and ‘setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime’ and specifying that this be ‘consistent with the relevant provisions of the Charter of the United Nations’. Elizabeth Wilmshurst, of the British delegation, described this as ‘code’ for a requirement of Security Council authorization before prosecution of aggression may be undertaken.76 But in 2010, when the amendment was finally adopted, the UK joined the consensus on a provision allowing the Court to proceed even without a Security Council blessing.77 Responding to charges that there was a lack of transparency as the Bureau prepared the final proposal on Part II of the Statute, John Holmes, a member of the Canadian delegation who acted as Kirsch’s assistant, noted that if this were really the case, then ‘some, perhaps many, delegations would have objected’, invoking a rule requiring that 24 hours’ advance notice be provided before a vote may be taken on any proposal.78 The Committee of the Whole did not convene until six o’clock that evening. The first part of the day was consumed by informal discussions and negotiations. Russia and France expressed satisfaction with the result while the US lobbied intensively for changes to the proposal. Most

H. von Hebel, ‘An International Criminal Court—A Historical Perspective’, in H. von Hebel, J. G. Lammers and J. Schukking (eds), Reflections on the International Criminal Court: Essays in Honour of Adriaan Bos (The Hague: T.M.C. Asser, 1999) 13–38, at 36. 73 E.g., S. Williams, ‘Article 12’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, Observers’ Notes, Article by Article (Baden-Baden: Nomos, 1999), 329–42, at 341; H. Kaul, ‘The International Criminal Court: Jurisdiction, Trigger Mechanism and Relationship to National Jurisdictions’, in M. Politi and G. Nesi (eds), The Rome Statute of the International Criminal Court: A Challenge to Impunity (Aldershot, UK: Ashgate, 2001) 59–62 at 61–2. 74 W. Bourdon, La Cour pénale international, Le statut de Rome (Paris: Seuil, 2000), at 24. 75 France: Withdrawal of Declaration, (2008) 2533 UNTS 265. 76 E. Wilmshurst, ‘The International Criminal Court: The Role of the Security Council’, in M. Politi and G. Nesi (eds), The Rome Statute of the International Criminal Court: A Challenge to Impunity (Aldershot, UK: Ashgate, 2001) 39–41, at 41. 77 Statement by the United Kingdom, RC 11, at 124. 78 J. T. Holmes, ‘The International Criminal Court in Perspective: From the Rome Conference to the Years to Come’, in M. Politi and G. Nesi (eds), The Rome Statute of the International Criminal Court: A Challenge to Impunity (Aldershot, UK: Ashgate, 2001) 29–37, at 31. 72

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The dynamics of the Rome Conference  19 delegations understood that there was no room for modification, as a change to one provision in order to satisfy concerns of a few might then provoke demands from other delegations for similar concessions. The non-governmental organizations, for whom a package acceptable to the Conference ought to have been understood as a huge victory, quibbled about issues in the Bureau text, hoping to get a little more. But there would be no changes. The Rome Conference was an extraordinary exercise in international law-making. In July 1998, immediately following its adoption, those who had longed for the creation of an institution were euphoric. The result was better than most had anticipated. Four years later, when the Statute entered into force, the ‘package deal’ seemed responsible for the unprecedented and unexpected pace of ratification. Had this chapter been written then, it would have concluded with an enthusiastic and uncritical tribute to the accomplishments of the Rome Conference. But perspectives change with time, and two decades after the Rome Conference there are more questions about the scale of the achievement. Although the Court seems a permanent fixture on the international scene, the performance of the institution has been lacklustre. There have been only a handful of completed trials. Many of those charged have been insignificant personalities in obscure conflicts. With average sentences in the range of 12 or 13 years’ imprisonment, it is hard to believe that the Court is dealing with ‘those who bear the greatest responsibility’ for ‘the most serious crimes of concern to the international community’. There is as yet not much soul-searching about the role that the Rome Conference, for all of its glory, may have played in the creation of an institution whose achievements remain a disappointment. Perhaps the architecture of the Court has some serious flaws. Possibly some of the compromises were not as brilliant as was once thought.

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2. The Rome Conference: institutional design and the constraints of diplomacy Frédéric Mégret

Law and politics developed analogously into each other. As the debate progressed, each successive moment added something to our understanding, until the original image had turned into its counterpart. We saw the landscape first in the brightness of legal language … This language was used to give expression to the contrasting positions of the delegations. These were positions of the evening, visible only in an obscure, shadowy form, impossible to reach in description. The further the debate progressed, the clearer became the interdependence of light and shadow, law and politics, and focus was increasingly on the boundary. The amount of time available determined the point at which debate had to finish and action had to be taken.1

The story of the negotiations that gave rise to the Rome Statute has been told many times already, and quite competently.2 This story includes some remarkable personal recollections of a rare moment in which striking avenues seemed to be open for international criminal law, even as the hubris and the emotions of the event left some pondering what was really at stake.3 M. Koskenniemi, The Politics of International Law (London: Bloomsbury Publishing, 2011), at

1

98.

M. C. Bassiouni, ‘Negotiating the Treaty of Rome on the Establishment of an International Criminal Court’, 32 Cornell Int’l LJ (1999) 443–469; J. Washburn, ‘The Negotiation of the Rome Statute for the International Criminal Court and International Lawmaking in the 21st Century’, 11 Pace Int’l L. Rev. (1999) 361–377; R. S. Lee, The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations and Results (The Hague: Martinus Nijhoff Publishers, 1999); P. Kirsch and J. T. Holmes, ‘The Rome Conference on an International Criminal Court: The Negotiating Process’, 93 American Journal of International Law (1999) 2–11 (hereafter Kirsch and Holmes, ‘Negotiating’); F. Benedetti, K. Bonneau and J. Washburn, Negotiating the International Criminal Court: New York to Rome, 1994–1998 (Leiden: Martinus Nijhoff Publishers, 2013); M. H. Arsanjani, ‘The Rome Statute of the International Criminal Court’, 93 American Journal of International Law (1999) 22–42; J.-F. Dobelle, ‘La Convention de Rome Portant Statut de La Cour Pénale Internationale’, 44 Annuaire Français de Droit International (1998) 356–369; I. Tallgren and A. Buchet ‘Sur la route de Rome: les négociations préalables à l’adoption du Statut de la Cour pénale internationale’, in J. Fernandez, X. Pacreau and M. Ubeda-Saillard (eds), Statut de Rome de la Cour pénale internationale: Commentaire article par article, Vol. I (2nd edn., Paris: Pedone, 2019) 275–298; H.-P. Kaul, ‘Special Note: The Struggle for the International Criminal Court’s Jurisdiction’, 6 European Journal of Crime, Criminal Law and Criminal Justice (1998) 364–376; P. Kirsch and J. T. Holmes, ‘The Birth of the International Criminal Court: The 1998 Rome Conference’, 36 Canadian Yearbook of International Law/Annuaire canadien de droit international (1999) 3–39 (hereafter Kirsch and Holmes, ‘Birth of the ICC’); R. Wedgwood, ‘Fiddling in Rome: America and the International Criminal Court’, 77(6) Foreign Affairs (1999) 20–24; D. Robinson, ‘Defining “Crimes against Humanity” at the Rome Conference’, 93 American Journal of International Law (1999) 43–56; F. Benedetti and J. L. Washburn, ‘Drafting the International Criminal Court Treaty: Two Years to Rome and an Afterword on the Rome Diplomatic Conference’, 5 Global Governance (1999) 1–38. 3 I. Tallgren, ‘We Did It? The Vertigo of Law and Everyday Life at the Diplomatic Conference on the Establishment of an International Criminal Court’, 12 Leiden Journal of International Law (1999) 683–707. 2

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The Rome Conference: institutional design and the constraints of diplomacy  21 There are at least two books devoted entirely to the event.4 Indeed, were it not for the opportunity of this Companion, one might wonder if there was much need for yet another comment on a conference now more than 20 years old, about which more has been written than most similar events, and whose interest is increasingly historical. In fact, however, revisiting the Conference from a distance and with the increasing understanding that we have of how the Court is actually functioning may yield important retrospective lessons. Moreover, it may lead us to relativize matters that were, with the benefit of hindsight, quite insignificant and, on the contrary, reassess others as being quite portentous. This chapter does not seek to recount that story in the usual narrative form again, as much as take a step back from the negotiations in an attempt to analyze them more synthetically. The question is less about the details of ‘what happened in Rome?’ than trying to think analytically about the nature of diplomatic conference negotiation. If nothing else, the decade-long deliberations over whether to create a court and, if so, what kind of court were a stupendous process of distilling a great many points of view and aspirations into a single document. The nature of that distillation process was destined to recede in the background once the Court sprang into action, but the efforts and contradictions that went into adopting the Rome Statute have never fully gone away. That is why, in a sense, the negotiation might be seen as a general rehearsal for the Court’s activity rather than just a prelude to its work—in some ways, the International Criminal Court (ICC) has been an object of constant renegotiation ever since. The negotiation of the Rome Statute can be usefully contrasted with the adoption of the Statutes of the ad hoc tribunals. In the latter case, a few key players in the UN Security Council who were otherwise much in agreement rapidly sketched the broad strokes of a jurisdictional mandate for tribunals with very specific mandates, happily leaving them to work out the details of their own rules of procedure. By contrast, the Rome process involved 160 states and countless other actors with widely diverging interests; these were involved in creating a court that could have jurisdiction over them; they were therefore determined not to leave anything to chance; moreover the process was elongated spanning, in fits and starts, the best part of a decade. The scale and complexity of that process, compared to the creation of the ad hoc or hybrid tribunals, cannot be underestimated. Complex negotiations such as those that occurred in Rome thus raise the question of how agreement about an institution such as the ICC can be effectively reached; what the status and value of such an agreement is; and how that process may condition the development of the Court. The chapter thus adopts a decidedly non-idealist take on the often protracted, messy and polarized process of negotiations. There was nothing preordained about the creation of the Court, even if, by mid 1998, it was quite likely that some court would be created. This was vividly illustrated by the working text that the Conference inherited from the Preparatory Committee, one that contained 1,400 brackets and from which millions of combinations could have been produced.5

4 Benedetti, Bonneau and Washburn, supra note 2; Lee, supra note 2; A. Cassese, P. Gaeta and J. R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary, Vols 1 and 2 (Oxford: Oxford University Press, 2002). 5 P. Kirsch and D. Robinson, ‘Reaching Agreement at the Rome Conference’, in A. Cassese, P. Gaeta and J. R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary, Vol. 1 (Oxford: Oxford University Press, 2002) 67–91, at 68.

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22  The Elgar companion to the International Criminal Court One factor compounding that sense of complexity was the sheer uncertainty of what one would eventually be voting for. Until the final days of July 1998, the ICC was, to all intents and purposes, an idea. But few states were blindly for or against the ICC in advance of knowing the full details of the actual package. One might generally be for international criminal justice, but it was difficult to know in advance whether one would want to support that ICC. Moreover, various actors’ strategies and opinions about the ICC were formed in the crucible of negotiations, rather than existing as unwavering constants outside it. Ideas changed, matured, were abandoned, borrowed, mutated and exchanged.6 Contra the sometimes excessively clean narrative of the Court’s genesis, everything was not what it seemed. Some civil society actors turned out to be more conservative than states; some like-minded states were behind some distinctly un-like-minded moves; and some opponents of the Court nonetheless contributed powerful suggestions to its design. In the end, the adoption of the Statute was not the victory that it is sometimes described as being, as much as a complex compromise that contained what have turned out to be many potentialities as well as some severe limitations.7 In retrospect, it may seem less a culmination than an important step in a long process. The location of the conference was perhaps more symbolic than is conceded. Rome had been a pagan empire, and became the heart of the Catholic Church. Christianity had once sought to assert a form of universal jurisdiction over the world, much like international criminal justice has sought to ensure that no one would be beyond its reach.8 If ‘all roads lead to Rome’, then, Rome is also stamped in the history of the ICC in both the conference that gave rise to it and the treaty that constitutes it. This chapter begins by outlining the basic structural conditions prevailing at the Rome Conference which constrained the adoption of the Statute (1). It then shows how the Rome Statute was produced within that environment (2).

1.

ROME AS CONFERENCE: SETTING THE STAGE

1.A Actors The Rome Conference can first be understood as the encounter between a particular constellation of actors, each more or less empowered or authorized, with different designs, goals Ibid. at 74–76 and 78–87. See e.g., ‘The Statute is by no means perfect. It is a product of multilateral negotiations amongst 160 States with different values, interests and concerns. … No one State or group of States may claim total victory … for each made concessions and compromises in order to make the instrument generally acceptable. It is the best instrument possible in the present circumstances’: R. S. Lee, ‘Introduction’, in R. S. Lee, The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations and Results (The Hague: Martinus Nijhoff Publishers, 1999) 1–39, at 36 (hereafter Lee, ‘Introduction’); and ‘The fruit of NGO involvement in the process of the establishment of the Court is the Rome Statute which, while not without its imperfections, reflects the most fundamental concerns of civil society, and exceeds the expectations of even the most optimistic observers going into the Rome Conference’: W. R. Pace and M. Thieroff, ‘Participation of Non-Governmental Organizations’, in R. S. Lee, The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations and Results (The Hague: Martinus Nijhoff Publishers, 1999) 391–398, at 391. 8 A. Orford, ‘Jurisdiction without Territory: From the Holy Roman Empire to the Responsibility to Protect’, 30 Michigan J. Int’l L. (2009) 981–1015. 6 7

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The Rome Conference: institutional design and the constraints of diplomacy  23 and approaches to negotiating. Although they are presented here as distinct actors, it is worth bearing in mind that there was a certain fluidity of roles, with some individuals having sat over time on both sides of the state/non-state divide and thereby facilitating the convergence of points of view. NGOs fielded young delegates for some of the less resource-rich delegations.9 It is also striking that the creation of the group of Like-Minded States was influenced in part by NGOs.10 1.A.1 States For all the talk of the influence of civil society on ICC negotiations, or the post-sovereign intonations of an international criminal law focusing on individuals in the name of Humanity, the ICC negotiating process was ultimately about states. States were the ones destined to become parties to the Rome Statute – and thereby, through their ratification, the key to its coming into being as well as to the scope of its jurisdiction. They were also bound to be the more or less willing patrons of the Court’s activities (if only financially). This translated in a very central place for states in the lead-up to the Rome Conference, and also meant that convincing states to support an ICC was the central stake. States in the 1990s came to the question of international criminal justice from a variety of historical and political angles. A number of states that had been on the receiving end of international criminal justice processes turned out to be quite favorable to them, including most notably Germany and Japan.11 On the other hand, not all states that had historically been behind the creation and support of international criminal tribunals were comfortable with the idea of the ICC. For example, the United States (US) – but also China and Russia – which had been behind every major effort at international criminal prosecutions in the last half-century were all, for different reasons, at least ambivalent about the creation of the ICC.12 Past involve-

9 Pace and Thieroff describe this service: The NGO Coalition for an International Criminal Court ‘helped provide legal experts and interns who participated as members of a number of government delegations. No Peace Without Justice set up a judicial assistance program which provided legal experts to delegations from a number of African and other developing countries’: Pace and Thieroff, supra note 7, at 394. Baumeister provides additional detail of the delegations that participated in this program: H. Baumeister, Sexualised Crimes, Armed Conflict and the Law: The International Criminal Court and the Definitions of Rape and Forced Marriage (London: Routledge, 2018), at 88. 10 See e.g., ‘The most organized group of states promoting the establishment of an ICC (which came to be known as the “like-minded group” or LMG) was initially composed of middle powers that were not directly involved in any conflicts, and had relatively little historical baggage to compromise the credibility of their search for humanitarian solutions. Representatives of civil society in those countries also exercised considerable influence in pushing governments towards a strong, independent court, principally through the action of non-governmental organizations (NGOs)’: Kirsch and Holmes, ‘Birth of the ICC’, supra note 2, at 8. 11 See e.g., Germany’s involvement in the negotiation of the jurisdiction of the ICC: E. Wilmshurst, ‘Jurisdiction of the Court’, in R. S. Lee, The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations and Results (The Hague: Martinus Nijhoff Publishers, 1999) 127–141, at 132; and Japan’s involvement in defining war crimes: H. von Hebel and D. Robinson, ‘Crimes within the Jurisdiction of the Court’, in R. S. Lee, The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations and Results (The Hague: Martinus Nijhoff Publishers, 1999) 79–126, at 105. 12 E.g., contrast the involvement of the US with the drafting of the war crimes provision and its position on the jurisdiction of the ICC: von Hebel and Robinson, supra note 11, at 105–106, and Lee, ‘Introduction’, supra note 7, at 25.

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24  The Elgar companion to the International Criminal Court ment with international criminal justice, even to one’s undoubted long-term political and symbolic benefit, was therefore not an accurate predictor of willingness to support the new court. Of course, the decisive change was that, in creating the ICC, states incurred the risk of their nationals being prosecuted, a risk that had always been very efficaciously avoided until then by big powers. States were the ones who stood to ‘lose’ from being parties to the Court (even if the Court focuses on individuals, these are often symbolic stand-ins for the state apparatus),13 and would have to render accounts politically for either joining or not joining the ICC. One of the most enduring mysteries of the creation of the ICC—and one that can go a long way to explaining the shape of negotiations—is why states would want to create and join such a court in the first place.14 A priori, the Court potentially imposes significant sovereignty costs that must be considered. It may be that these costs are worth incurring from a reputational point of view; or that they are the price for ‘sanctuarizing’ one’s territory from crimes being committed on it by other states; or that some states want to bind themselves to an international judicial institution that can protect them against nefarious domestic political groups, or even guard against a return to their past. And it is possible that states would want to join the ICC out of pure idealism and commitment to the advent of international criminal justice, although it is important to pay attention to both what states say and what they actually do. But none of these possible explanations goes without saying and all would require significant empirical validation. Of course, to speak of ‘states’ may be a bit of a simplification. If one lifts the veil over various sovereigns, one may realize that there was, in fact, much more internal diversity of opinion about the prospect for an ICC than the relatively polished ‘speaking with one voice’ of foreign policy may suggest. The debates that occurred in Rome were replicated in many capitals within governments and parliaments, and encompassed a range of positions. For example, prior to the Rome Conference, some democratic states for which information is available exhibited signs of strong tension between the principal ministries involved: defense, justice and foreign affairs.15 For the military, which stood potentially to be the most scrutinized by international criminal justice, the prospect of one more level of jurisdiction in what was already seen as a hyper-legalized environment, elicited resistance. For justice officials, the concerns were different and had to do, for example, with complementarity, fair trial and compatibility with constitutional constraints—although these often arose against the background of a commitment to the rule of law and an understanding that its international dimension was co-extensive with the domestic. For foreign policy officials, who would often have the main role in representing their country in diplomatic negotiations, the concerns with the Statute were more recognizably

F. Mégret, ‘Les angles morts de la responsabilité pénale individuelle en droit international’, 71 Revue interdisciplinaire d’études juridiques (2013) 83–136. 14 F. Mégret, ‘Why Would States Want to Join the ICC? A Theoretical Exploration Based on the Legal Nature of Complementarity’, in J. K. Kleffner and G. Kor (eds), Complementary Views on Complementarity: Proceedings of the International Roundtable on the Complementary Nature of the International Criminal Court, Amsterdam 25/26 June 2004, The Hague/Cambridge (The Hague: TMC Asser Press/Cambridge University Press, 2005); B. A. Simmons and A. Danner, ‘Credible Commitments and the International Criminal Court’, 64 International Organization (2010) 225–256. 15 For France, these tensions resulted in a ‘rather substantial list’ of interpretive declarations regarding the Statute: W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford: Oxford University Press, 2010), at 1170. 13

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The Rome Conference: institutional design and the constraints of diplomacy  25 international (who would be the Prosecutor, what would be the role of the Security Council, etc.) and also included traditional diplomatic priorities (image, fidelity to alliances, etc.). Attempting to synthesize these divergent internal positions would often prove a challenge for politicians and diplomats, let alone then coordinating with dozens of other states undergoing similarly contentious domestic processes. The commitment or opposition to an ICC varied in intensity and occupied a spectrum.16 States were either moderately or intensely against or in favor of a court. Somewhere in the middle were a number of indecisive states, which were attracted by some features of permanent international criminal justice but wary of others. For such states, the negotiating process was an opportunity to make up their mind about the ICC, especially given that it was unclear at the outset what the ICC would be. But even for states which were, on the whole, committed to making the ICC a reality and joining it, the challenge was to mitigate the costs of doing so. Some proposals to water down the Statute came, in fact, from supportive states (such as the infamous French proposal for a seven year opt-out for war crimes).17 Those who imagined themselves as likely to eventually join the Statute were also concerned that they might put themselves at a significant disadvantage in relation to those states that stayed out (this could explain, for example, the insistence on competence over nationals of non-states parties if they committed crimes on the territory of a state party: were it not for that, the state’s nationals would be worse off than the foreign nationals committing crimes on the same territory).18 It is important to note, however, that positioning about the ICC negotiations was not arrived at in isolation. It included a degree of socialization and harmonization over time between a number of states. In particular, a loose coalition of like-minded states (the Like-Minded Group) emerged that would eventually assume a centerstage position in Rome and that proved particularly receptive to the solicitations of civil society organizations.19 Although encompassing various sensitivities, it included a strong minimum commitment to getting the Court created.20 One of the main coups of the coalition was to have obtained the support of the UK, a P5 member.21 Its main negotiators, who had often worked together for years before the rush of Rome, developed significant shared understandings that would sustain them through the more difficult moments of the negotiation. The opposition to the ICC was almost by necessity

16 Some major powers shifted their positions on the ICC over time due to changes in government during the negotiation process, such as the UK and France: Baumeister, supra note 9, at 83 and 92. 17 Art. 124 ICCSt. The history of the inclusion of Art. 124 is described by Schabas, supra note 15, at 1192–1194. 18 See Art. 12 ICCSt., which establishes jurisdiction of the ICC over accused from states parties and accused from non-states parties who commit crimes within the jurisdiction of the Court on the territories of states parties. For the history of the drafting of this provision, see Schabas, supra note 15, at 277–292. 19 The Like-Minded Group grew to over 60 states from all regions of the world: Kirsch and Robinson, supra note 5, at 70. 20 The Like-Minded Group was formed to press for the adoption of a Statute through a diplomatic conference and to ensure that the resulting Statute contained certain core principles. These principles were adopted as ‘cornerstones’ in 1997 and included: a commitment to a successful Diplomatic Conference in 1998; the prompt creation of an independent and effective ICC; the absence of a Security Council ‘filter’ role; automatic jurisdiction; a definition of war crimes including internal armed conflict; an independent Prosecutor with an ex officio role; an obligation on states to cooperate with the ICC; and a provision requiring any questions on jurisdiction and admissibility to be decided by the Court: ibid. at 71. 21 The UK joined during the preparatory negotiations: ibid. at 70.

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26  The Elgar companion to the International Criminal Court less unified, partly because of the normal polarities of the international stage but also because states’ sources of opposition were quite diverse (for example, Israel was broadly committed to the idea of an ICC but very concerned about the inclusion of transfers of populations as a war crime; some states such as the US were broadly against the idea of an ICC; and a range of other states had no particular issue with the ICC existing, as long as they had nothing to do with it). For states which had more or less decided that they would not join the ICC (there were few who were open about this), the goal was either to positively undermine its creation, or to at least minimize any adverse effect it might have, something which would of course be much easier as a non-party. This might involve giving the appearance of bona fide engagement with the negotiations, but in the sure knowledge that one would not join it in the end, taking advantage of a brief moment where all states could pretend that they were part of the ‘club’ (subsequently, of course, the Assembly of States Parties would be limited to just that). This was a particularly problematic stance for the like-minded states because it might draw them to make concessions to states which would end up not joining the Statute, leaving the ICC arguably weaker than it could have been inter partes. Finally, on the Rome exchequers, it is worth noting that there were asymmetries of commitment. On the whole, a state that was against the ICC probably had more to lose by its being created than a state that was in favor of the Court had in its not being created, all other things being equal. This is not to say that states supporting the Court did not do so intensely and in good faith but that, having presumably decided that the Court did not threaten any major national interest and might even enhance some, they typically had less to lose than states which (rightly or wrongly) saw the Court as potentially a game changer in terms of their national interest. This is especially so if one views states most likely to be against the ICC as ‘crime producing’ states—those that would clearly stand most to lose concretely from its existence and therefore had an interest in a strategy of international criminal justice containment. Concretely, delegations varied in size, commitment and competence. Although many included Foreign Ministers and senior diplomats (sometimes those stationed in Rome with relatively little acquaintance with international criminal justice, but also many from capitals with specific expertise), the nature and complexity of the negotiations was such that states often needed to bring in new, often young, expertise from a variety of backgrounds (including in international law, criminal law, military law, mutual legal assistance and so on). This, alongside socialization with like-minded mid-level technocrats over the years, allowed for trans-governmental solidarities to develop, which would prove extremely useful in the final days of the Rome Conference. 1.A.2 Civil society Civil society invested heavily in the creation of the ICC, to the point that the Court has been described as in large part its achievement.22 Emboldened by previous humanitarian successes such as the Ottawa Landmines Convention,23 sure of its numbers and its cause, it pressed

22 Simmons and Danner, supra note 14; S. Sur, ‘Vers une Cour Pénale Internationale : La Convention de Rome Entre les ONG et le Conseil de Sécurité’, 103 Revue générale de droit international public (1999) 29–45. 23 K. Anderson, ‘The Ottawa Convention Banning Landmines, the Role of International Non-Governmental Organizations and the Idea of International Civil Society’, 11(1) European Journal of International Law (2000) 91–120.

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The Rome Conference: institutional design and the constraints of diplomacy  27 states hard on the Court.24 There is a frequently noted irony to this, given the human rights movement’s traditional wariness of criminal repression.25 Nonetheless, the idea of an ICC represented the promise of a degree of conventional enforcement of cherished universal norms that was very attractive to many NGOs. Militancy in favor of the ICC also coincided with a victim turn at the intersection of international human rights law and evolving domestic criminal practices that held out the prospect of the Court further amplifying that phenomenon. The Rome negotiations provided an opportunity to press more cross-cutting agendas with both broad repercussions, such as, for example, the question of rape as an international crime and through it the issue of sexual violence globally. There was considerable diversity among the NGOs present, although some tended to dominate, either because of their high degree of specialization (No Peace Without Justice), a particularly able negotiator (Amnesty International) or simply being in the right place at the right time (the World Federalist Movement). Other leading NGOs included Human Rights Watch, the Lawyers Committee for Human Rights, the International Commission of Jurists, and the Fédération international des droits de l’homme. The International Committee of the Red Cross was also an interested and well-represented party. In addition, countless smaller groups with more sectoral interests participated. Despite their differences, it is fair to say that NGOs were part of a common ecosystem, often sharing more than views, a certain mode of operation and funders. The tools at the disposal of civil society actors were those that have become familiar in similar contexts: expertise, lobbying, publicizing and, possibly, ‘naming and shaming’. By providing personnel to some diplomatic delegations in Rome, civil society even showed that it was not beyond a degree of ‘entrism’ into the inter-state world. Some NGOs provided a constant stream of analysis and publicity that was heavily relied on by states themselves.26 Their nimbleness, reactivity and relative informality was one of their main assets. In addition, NGOs showed the power of alliances. Although they might support the ICC for a range of different thematic or even geographic reasons, there is no doubt that significant common ground existed between many across some traditional dividing lines (e.g., North/South), and that this provided the grounds for a robust alliance in the form of the Coalition for an International Criminal Court, which grew to be 800 strong.27 24 On this, see: M. Glasius, The International Criminal Court: A Global Civil Society Achievement (Routledge, 2006), at 22–23; and Pace and Thieroff, supra note 7, at 391–398; and W. R. Pace and J. Schense, ‘The Role of Non-Governmental Organizations’, in A. Cassese, P. Gaeta and J. R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary, Vol. 1 (Oxford: Oxford University Press, 2002) 105–143. 25 K. Engle, ‘Anti-Impunity and the Turn to Criminal Law in Human Rights’, 100 Cornell L. Rev. (2014) 1069–1127. 26 Amnesty International and Human Rights Watch were two influential organizations providing in-depth analysis on almost every aspect of the Rome Statute through documents such as Amnesty International, The International Criminal Court: Making the Right Choices, Part V: Recommendations to the Diplomatic Conference (May 1998), and Human Rights Watch, Justice in the Balance: Recommendations for an Independent and Effective International Criminal Court (June 1998). See also the description by Pace and Schense on the role of civil society ‘expert papers’ and Coalition for an ICC team reports in helping to narrow the options under consideration by states: Pace and Schense, supra note 24, at 133–135. 27 The Coalition for an International Criminal Court grew from a handful of organizations in 1995 to over 800 organizations in 1998, 236 of which sent one or more representatives to Rome: Glasius, supra note 24, at 27.

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28  The Elgar companion to the International Criminal Court Although much has been made of the incessant activity of civil society prior to and at Rome, it remains less clear what was the extent of its influence on the evolving consensus in Rome. There are some characteristics of NGO engagement that may have made it harder to have an influence on state interest formation. The relatively more maximalist line of some civil society formations meant that they were at a disadvantage when it came to making nuanced diplomatic compromises. Naming and shaming, for example, remained a delicate matter when what was at stake was merely an institution (no state, at any rate, was accused of having committed human rights violations merely as a result of adopting a position that was adverse to the ICC). In fact, NGOs could not afford to antagonize key sovereign players and often found themselves navigating a fine line between their instinct and vision. Of course, in going too far in the direction of concessions NGOs, would not have been in their role either. At any rate, there was plenty of evidence of pragmatism on a range of issues by key representatives of civil society.28 1.A.3 The United Nations The United Nations has had a distinguished pedigree in terms of promoting international criminal justice. It was within its midst that the Genocide Convention was adopted.29 The International Law Commission codified the Nuremberg principles and put an ICC on its agenda as early as the 1950s.30 It was heavily involved at the outset in this latest bout of interest for a court. It was the General Assembly that asked the International Law Commission in 1989 to put the issue on its agenda and, following the production of the latter’s 1994 draft, established the ad hoc committee to discuss major issues confronting the creation of a court.31 Kofi Annan, who had been embroiled in the Rwanda debacle as under-Secretary General for peacekeeping operations, was very supportive of the negotiations and saw the creation of the Court as potentially part of his legacy. The full and official name of the Rome Conference was the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Its procedures were adapted from those of the General Assembly. The UN Secretariat, through the Office of Legal Affairs and the Codification Division, assumed a key role in the organization of the ad hoc committee meetings and the conference. For example, the head of the Codification division, Roy Lee, took the position of the secretary of the Preparatory

28 This pragmatism is evident in an account by Pace and Schense, referring to the recognition by non-governmental organizations that they needed to present a ‘realistically achievable path’ toward ‘compromises for NGOs’. ‘The impact of these interventions relied upon to the degree to which they addressed political pressure on delegates to compromise as well as more straightforward legal and technical issues’, resulting in a ‘more sophisticated recognition on the part of NGOs of the difficulties which government delegations faced in their work’ and a more ‘constructive working relationship between delegates and NGOs’: Pace and Schense, supra note 24, at 129. 29 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951). 30 GA Res. 177(II), 21 November 1947, in which the Assembly directed the newly created International Law Commission to formulate these principles and to prepare a draft Code of Offenses against the Peace and Security of Mankind. 31 J. Crawford, ‘The ILC Adopts a Statute for an International Criminal Court’, 89 American Journal of International Law (1995) 404–416.

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The Rome Conference: institutional design and the constraints of diplomacy  29 Committee and the Rome Diplomatic Conference itself. The UN was also represented in the negotiations through its legal counsel, Hans Corell.32 However, the history of the negotiations is also a history of the ICC developing a certain autonomy and gradually loosening and eventually partly severing that link with the United Nations.33 The UN was hamstrung by its simultaneous role as an organizer and interested party when it came to Charter issues, in a context where participating states were bitterly at odds, for example, on the issue of the relationship to the Security Council. Early on, it appeared that only a part of the UN’s members, albeit possibly a significant part, would become members of the ICC in the foreseeable future. This made it inconceivable, for example, that the UN would fund an institution which was really only the institution of some of its members and subject to the active hostility of others. Moreover, among civil society activists, there may have always been a degree of discomfort at the idea that the ICC would be part of the UN ‘family’, let alone part of its organigram. 1.B Format A negotiation is a dynamic and unpredictable process. It is not the mechanical playing out of policy options that have been decided in advance by states and whose outcome could be modelized if only one had enough data. Diplomatic conferences introduce an element of intuitu personae, of semantic ambiguity, of rubbing shoulders with other diplomats, experts and activists from a great diversity of backgrounds; it has both elements of horizontal equality and vertical hierarchy. In short, the diplomatic conference format is more than an environment, it is a dense modality of achieving international normative outcomes whose format(s) imposes some of its own constraints. 1.B.1 Secrecy/transparency A considerable dimension of a diplomatic conference such as the one that led to the adoption of the Rome Statute involves questions of access and publicness. Are conferences organized behind closed doors or do they strive to be as open as possible? Much of the work of traditional international law-making involves a certain opacity and an ability to exclude certain players, fundamentally, from the decision-making process. In the past, that process traditionally occurred largely between states, with some states for example not being invited to certain meetings or being given merely observer status. By contrast, certain states constituted themselves as the key players and controlled access to various fora. Civil society was also largely absent from international negotiations, first because it was itself embryonic, and second because its occasional attempts to crash the doors of international fora were successfully resisted. In the twentieth century, in an age of multilateralism and given the number of parties involved and the length of negotiations, it became increasingly difficult to negotiate behind closed doors. Much of what was said in conferences was likely to be aired in public, if some party has an interest in it being so. The increasing fragmentation and diversity of interests

For further explanation of the United Nations’ involvement in the adoption of the Rome Statute, see Lee, ‘Introduction’, supra note 7, at 1–5. 33 As noted by Lee, ‘The financing of the court and the question of the court’s relationship with the United Nations were major concerns of many delegations and remained controversial issues until the very end of the Conference’: ibid. at 9. 32

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30  The Elgar companion to the International Criminal Court in the international community virtually ensured that, even in conditions of confidentiality, some party would always have an interest in leaking information to solicit the support of the larger public. This is especially the case when it comes to multilateral negotiations on issues that are likely to have a close impact domestically (trade, the environment, human rights and of course criminal law). In the late twentieth century, increasingly large-scale participation by civil society organizations tended to become the norm,34 and these organizations tended to resist opacity. The Rome Conference is definitely part of that trend towards openness. More NGOs were accredited (236) than states (160) or intergovernmental organizations (30).35 Information about the negotiations was quite broadly available and circulated for anyone with the capacity and energy to analyze it. NGOs were allowed to attend plenaries and informal working groups and were often granted more informal access to a variety of discussions between states. Some states clearly participated in the conference symbiotically with NGOs so that an overall porosity at times characterized the state and non-state worlds. The work of NGOs has an international dimension, but it was also a crucial link with public opinions back at home, who could be mobilized to, in turn, put pressure on their government.36 It is interesting to reflect on the potential and constraints of (relative) publicity on negotiations. On the one hand, it limits the risk that states would push outrageous positions, given the potential of being shamed as a result. On the other hand, publicity also introduces a risk that a gap will develop between what states say and what they really think. On the surface, some states might publicly support an ambitious ICC—although the truth of their commitment may be much more ambiguous. This may, in turn, lead various actors to commit tactical mistakes, for example because they calculate that states are more supportive of the ICC than they really are. It may also mean that the more public fora are, in fact, deserted by key players, and that spaces of secrecy reconstitute themselves in the background. There was certainly evidence in Rome, for example, that the P5 met in closed-door meetings. What was said there remains a matter of speculation, but it is probable that some tough exchanges arose that may hold the keys to some of the compromises that were eventually adopted. The like-minded states had meetings of their own which probably could not have proceeded entirely publicly. In fact, even the conference’s governance structure included organs (e.g., the drafting committee) that operated on a limited access basis. 1.B.2 Fragmentation/holism A significant constraint on large-scale, multi-level and complex negotiations is the difficulty of following and remaining engaged in all tracks simultaneously. For that reason, the Preparatory Committee divided the main issues confronting negotiators, leading to the

On this, see K. Raustiala, ‘The Role of NGOs in International Treaty-Making’, in D. B. Hollis (ed.), The Oxford Guide to Treaties (Oxford: Oxford University Press, 2012) 150–176. 35 Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, UN Doc. A/CONF.183/13 (Vol. II) (1998), 5–44 for the list of state delegates and representatives of international organizations, and UN Doc. A/CONF.183/INF/3 (1998) for the list of non-governmental organizations accredited to participate in the Diplomatic Conference. 36 The important role of non-governmental organizations in making information about the negotiations highly accessible, and the relationship between these organizations and state delegates throughout the negotiation process is explained by Pace and Schense, supra note 24, at 105–143. 34

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The Rome Conference: institutional design and the constraints of diplomacy  31 creation of 13 working groups at the Rome Conference.37 This also catered to the need for functional and expert specialization: not every diplomat or NGO member could be an expert on, say, the workings of the UN Charter, the definition of international crimes or intricate criminal procedure matters. Given the extent of the issues that had to be negotiated, it made sense for discussions on the Preamble, substantive law or various issues of jurisdiction to be dealt with separately. One problem is that the negotiations that develop within each committee may gather a dynamic of their own and may become separated from the logic of negotiations in other committees. The best outcome in any given committee may not be the best outcome globally. This is why the Plenary Committee, to which the working groups reported back, had a potentially central role. Indeed, one of the problems with fragmentation is that having access to the overall picture at any one time remains crucial to appreciate the extent of compromises that may have to be made and their value. For example, state A might a priori be very in favor of opening preconditions to jurisdiction widely (e.g., allowing the Court to exercise quasi-universal jurisdiction if one of its state parties could do so) but at the same time be quite committed to limiting Security Council interference with the Court. However, in conditions where it may not get all of the advantages that it counts on, it may have to prioritize one and compromise the other. Its ability to do so will depend on a host of factors, including a fine understanding of what is actually going on at any given time, the extent to which such arbitrage may be productive, etc. Obviously, states will not want to make tactical concessions without obtaining something in exchange, or for their tactical concessions to be misinterpreted as strategic changes of mind on the fundamentals. Nonetheless, a multilateral negotiation over the course of five weeks and among so many participants is bound to be a cacophony of moving parts. One of the consequences of the gap between the specialized but siloed nature of the work of the committees and the political but almost too general work of the Committee of the Whole was an increase in the sheer unpredictability of the negotiations, at least from the point of view of some delegations. Some parties, particular from smaller states were left struggling to assess their priorities and challenged to evaluate trade-offs at the risk of mistakes or paralysis. It also resulted in the relative enhancement of a few select individuals in this picture—those who occupy a central position because of better and more timely access to information—for example the coordinators and the members of the Bureau of the Committee of the Whole. The Chairman of the latter, Philippe Kirsch, was in a unique position to assess the totality of the picture. Relative fragmentation also boosted the position of the ‘technocrats’ within that complex system. For example, the staff of the Codification Division of the United Nations Secretariat assisting the highest-level officials at the Rome Conference arguably had the broadest high-level view of the process. 1.B.3 Democracy/authoritarianism Diplomatic conferences are sometimes understood as the closest thing the international community has to an ad hoc democracy, outside the context of such UN bodies as the General Assembly. There is some truth to this in that (almost) every state is represented, and each state has a single vote to cast in case of voting. The fact that some states or coalitions of states are more powerful obviously does not invalidate that point and is familiar from the domestic

Lee, ‘Introduction’, supra note 7, at 21.

37

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32  The Elgar companion to the International Criminal Court operation of democracy. Certainly, multilateral diplomatic conferences are an improvement on the ordinary operation of the international system, which is characterized by much less openness and deliberation. Diplomatic conferences, it could be argued, channel international diplomacy into a proceduralized route inspired by parliamentary procedure, whose particular decorum was often in evidence in Rome. The conference also relied on democratic procedures, ultimately, for its outcome which was decided, at the final hour, by a majority vote.38 However, diplomatic conferences also operate under a severe constraint that is not typical of parliamentary proceedings, with telling implications on their operation: time. The Rome Conference, like many such events, occurred on the basis of a finite temporal resource; it was known from the minute it was convened on 15 June 1998, that the clock would stop ticking on 17 July. Diplomatic conferences are therefore emergency assemblies rather than institutions operating under normal conditions. They are ephemeral. In addition, the more time passes, the more the remaining time becomes compressed: whilst committee negotiations initially adopted a somewhat leisurely pace, there was no room for anything other than a scramble in the final week of the Rome Conference. The consensus was that there would not be a ‘Rome 2’ conference had this particular one failed. This meant that the pace of deliberations was guided by the pressures of the time remaining and that significant compromises would need to be made as the end drew near. It also meant that some issues—aggression, for example—had to be (or at least could be presented as having to be) sidelined as simply too time-consuming in the circumstances. Where discussions in the almost decade before had dragged on for months on matters of detail, time was truly of the essence in Rome. This intensification of the pace had several effects: it increased the possibility of misunderstandings; it favored actors with broad coordinating capabilities, allowing them to monitor complex developments in real time; it led to a sense that otherwise worthwhile but not strictly essential proposals would have to be abandoned (for example, on the crime of aggression, an in-conference definition of the elements of crimes, and the criminalization of the use of nuclear weapons); and it occasionally favored the assertion of chair or coordinator authority to move past blockages that were unlikely to be resolved within the allotted time.39 This particular sense of emergency combined with deep divisions over what the Statute should look like also created conditions for authoritarian capture. Even though the Statute was submitted to a vote, what would be submitted to that vote was unknown until 24 hours before the final day and was largely concocted by the Chair of the Committee of the Whole and the Bureau on a discretionary basis.40 The Chair calculated, correctly, that there would be a certain degree of support for the sort of Statute that he eventually proposed and that the resulting Court would be palatable to its supporters, but the ensuing compromise text could have taken a range of forms, and the proposal was on some level an executive ‘coup’.

The final vote outcome was 120 states in favor, 7 against and 21 abstentions: ibid. at 26. The time crunch affected decision-making well before the Rome Conference. Lee explains various decisions taken to avoid traditional United Nations procedure because those procedures might waste precious time. For example, the Drafting Committee was stripped of its standard powers, limiting it to ‘purely linguistic matters and to ensure concordance among the six language versions of the texts referred to it’: ibid. at 18–19. 40 The package deal was made available to delegates in the late hours of 16 July: Kirsch and Robinson, supra note 5, at 75. 38 39

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The Rome Conference: institutional design and the constraints of diplomacy  33

2.

ROME AS NEGOTIATION: DECISION TIME

Against that background, an intense five week-long process of negotiation began in June 1998. It is in the nature of negotiations that they involve an occasionally crass process of pushing and shoving, tit for tat and horse trading. Many states came with grave concerns and even some misgivings about the Court, whilst many others came with great hopes and enthusiasm. The crucial question is how one manages to arrive at a semblance of consensus from the obviousness of disagreement, something which is a function of both conference dynamics and the particular intricacies of various issues. 2.A Dynamics In retrospect, the creation of the ICC is sometimes recounted as a story foretold.41 Options were presented, studied and discussed; conflicts were resolved and compromises found. The reality is more complex, and involves a series of dynamics that gave their unmistakable imprint to the movement of negotiations 2.A.1 The idea of an ICC v the ICC Before and at the Rome negotiations, one could argue that actors often came to the negotiating table with a certain idea of the ICC. The Rome negotiations were, of course, not an intellectual conversation as much as a relatively polite but tense wrestling match emerging from competing interests. But they did rely on certain pre-existing ideas and ideals about where international criminal justice came from and where it should be headed, that informed positions and that cannot be dismissed as mere window-dressing for national interest strategies. To have an idea of the ICC is more than to favor this or that Court with this or that feature. Many such features could be considered to be compatible with the idea of an ICC even though they may be contrary (a court without jurisdiction over nuclear weapons as a war crime would still be, recognizably, an international criminal court). Some proposals about the ICC, however, could be seen as incompatible with the very idea of an international criminal court—at least that is how some participants characterized them.42 The question, then, is what minimal features ‘an’ ICC would need to be one. Narrowing the question in this way allows us to focus on what was specific, irreducible and ultimately probably non-negotiable about the ICC, and therefore some potential red lines in the actual negotiation process. Obviously, it is mostly ICC supporters who were likely to have a core idea about the court,43 while ICC opponents probably merely had an idea about their national interest bottom line. Several characteristics would seem to have been central in the mind of those who broadly supported the ICC, despite their differences. The first is that an ICC must be ‘international’ in

41 Bassiouni, among others, referred to the ICC (and its impact on international criminal law) as an idea whose time has come: M. C. Bassiouni, ‘Reflections on Contemporary Developments in International Criminal Justice’, in B. S. Brown (ed.), Research Handbook on International Criminal Law (Cheltenham: Edward Elgar Publishing, 2011) 409–418, at 409. 42 E.g., some states felt this way about proposals to allow the ICC’s docket to be controlled by the UN Security Council, leading to the adoption of a provision which limited the Security Council’s influence over the ICC: Kirsch and Robinson, supra note 5, at 82. 43 This is evident in the Like-Minded Group cornerstones, supra note 20.

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34  The Elgar companion to the International Criminal Court the strong sense of the term, that is, ideally, universal. No one embarked on the Rome negotiations hoping to negotiate a regional or quasi-regional court. The ICC was always envisaged as at least potentially universal.44 Of course, other international criminal tribunals were in some ways more automatically universal. The Nuremberg and Tokyo tribunals, created by the allies, at least had the backing of much of the ‘free world’ of the time, such as it was. The International Criminal Tribunals for the former Yugoslavia and Rwanda were almost perfectly international as a result of having been created by a binding resolution of the United Nations Security Council. But theirs was an internationality based on top-down compulsion. The ICC was always envisaged as a treaty-based court based on agreement, and thus seeking to reproduce these conditions of universality but, this time, through the much more arduous route of state consent. Because the universality of the Court was bound to be in practice much deferred in time, one could hardly argue that this or that feature was clearly an obstacle to it; but it is important to note that broad membership would not just be a strategic asset, it also would have an ontological dimension, making the ICC ‘what it was always aspired it would be’. A second characteristic of the ICC is that it was understood by most of those thinking about the issue as a fundamentally permanent institution. This is implicit in part in the idea that the ICC is a way of moving beyond the ad hoc-ism of the previous tribunals as jurisdictions that existed only for a limited time and with very limited jurisdiction. The ICC was to be, fundamentally, a forward-looking institution that would have a guaranteed existence based on the commitment of its members. This would produce the conditions for a certain judicial serenity. It would also be consonant with the fact that the Court would potentially have to deal with a much greater diversity of situations. Although the possibility of withdrawing from the Statute was eventually included, for example, there is no doubt that this proved a weakening of the Court’s ambition to incarnate a permanent commitment by its members, and was a major concession that would in due course come back to haunt it.45 Third, and perhaps more importantly and problematically than institutional permanence, the fundamental ambition of the ICC was to sever as best as possible the decision of who to prosecute from the vagaries of international power politics. Much more than their expiry dates, the problem of ad hoc international criminal tribunals was always that they were created for a particular contentieux, with particular culprits in mind, and with a particular geopolitical goal—defensible as this may have been in the circumstances. Through the disconnection from obvious political input mechanisms, what the ICC was supposed to introduce, by contrast, was arguably a sense of (relative) unpredictability of who would get prosecuted. This makes sense, for example, from the point of view of deterrence, keeping alive the—at least theoretical—threat of prosecutions for a range of potential targets. But more generally, it makes sense from the point of view of the underlying ambition of international criminal justice 44 It was the goal of many states to adopt a Statute that would allow for the widest possible number of ratifications, while still maintaining certain bottom lines. As noted by Kirsch and Robinson, ‘Most or all of the delegations understood that the real effectiveness of the Court must inevitably depend on a balance of two factors: strong treaty provisions in the Statute and strong support from States. This was an objective that the Bureau retained firmly in mind throughout its efforts’: Kirsch and Robinson, supra note 5, at 87. 45 Art. 127 ICCSt. was included, which permits withdrawals: ‘A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.’ To date, two states have withdrawn: the Philippines and Burundi.

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The Rome Conference: institutional design and the constraints of diplomacy  35 as no longer simply a punctual pacifying mechanism (as in the case of the ad hoc tribunals), but as one laying the foundations for a true system of international criminal law adjudication based on and helping to bring about an international rule of law. It explains, for example, why most states opposed the US idea that the Court would have to obtain the consent of the state of nationality on a case-by-case basis when it came to its nationals.46 Such a regime would almost entirely subject prosecutions to outside political pressures by the very states that would stand to lose most from prosecutions. It also explains why proposals that would have given the Security Council a quasi-veto power on any case—thus making the ICC little more than the ready ad hoc arm of that body—were rejected.47 These three characteristics, then—universality, permanence, and dissociation from power politics—are the heart of the idea of an ICC as it was most commonly understood by its supporters. An ICC that was not at least potentially universal would be regional or some variation thereof; an ICC that was not permanent would be an ad hoc institution; and an ICC that did not operate at least to some degree on the basis of prosecutorial discretion would not be much of a Court. Each of these characteristics was somewhat negotiable but the Court was bound to reflect at least some of them. Together they form a rough benchmark by which to evaluate options in the negotiations, as well as the end result. By contrast, those truly opposed to the ICC (and not just to this or that contingent feature of it) would have, as a matter of priority, targeted (at least) one of them. 2.A.2 Law v politics To what extent were ICC negotiations determined or even prescribed by the law? This is a more complex question than it seems. There is much loose narrativization of the process that describes it as if it were somehow compelled legally; a certain genre almost sees the advent of the ICC as the progress of a certain idea of Law in History.48 It is true that in a very broad sense one might see the creation of the ICC as a continuation of certain existing legal commitments, such as the obligation to prosecute certain crimes. For states that are serious about this obligation—not only for themselves but for others—the ICC can be seen as bringing a much-needed finishing touch to a system of repression of international crimes that had been decades in the making. One would hesitate, however, to say that motivation for creating the Court was in that respect primarily legal. That is because, whereas international criminal law may be quite committed to actual international crimes, much of the international law on the repression of inter-

Proposal Submitted by the United States of America, UN Doc. A/CONF.183/C.1/L.70, 17 July 1998. During the Rome Conference negotiations, the Bureau set out a proposal under which no such consent was required for genocide as long as the ‘custodial state’ gave its consent, but this approach of distinguishing between crimes for the purposes of preconditions to jurisdiction was ‘not particularly welcomed’: Schabas, supra note 15, at 282. The US pressed its proposal until the last moments of the Rome Conference: ibid. at 282–283. 47 Schabas, supra note 15, at 294–295. 48 This can be seen in authors presenting the ICC as a natural part of the arc of history beginning with the creation of the Nuremberg and Tokyo tribunals. For example, Cassese states that the creation of the ICC ‘marks the culmination of a process started at Nuremberg and Tokyo’: A. Cassese, ‘From Nuremberg to Rome: International Military Tribunals to the International Criminal Court’, in A. Cassese, P. Gaeta and J. R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary, Vol. 1 (Oxford: Oxford University Press, 2002) 3–19, at 3. 46

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36  The Elgar companion to the International Criminal Court national crimes is relatively agnostic about what such mechanisms should be. The obligation to repress international crimes is more an obligation of means than result and, in particular, it does not posit a priori in favor of domestic or international prosecutions. Much international law as regards enforcement is, in fact, permissive rather than strictly imperative, allowing, for example, for such creative mechanisms as universal jurisdiction, but not necessarily mandating them. Some parts of international criminal law are also more clearly imperative, such as the aut dedere aut judicare principle, but even those are relatively agnostic about anything beyond the duties that specifically bear on states in peculiar circumstances. Much of international criminal law enforcement, therefore, is a matter of policy and design rather than something that is particularly overdetermined by international law. For example, it probably could have been decided, in conformity with international law, that the ICC would have jurisdiction over individuals from non-states parties who had harmed nationals of states parties, by delegation from the passive personality principle.49 That this possibility was rejected was certainly not mandated by international law any more than, for that matter, its adoption. In short, the conference often exposed deep rifts between different participants, without there being any obvious legal way of deciding between them. Inevitably, the negotiations soon reached that penumbral moment where the making of the law was not itself law-driven, and where the law provided few unmistakable clues as to where it should be going.50 Still, obviously the Rome Conference was organized, as many diplomatic conferences before it, as a forum to negotiate a binding treaty. A certain international legal framework was therefore a given, including rules concerning treaties, or the prerogatives of external actors such as the Security Council (whose powers could not be simply rewritten by the Rome Conference). The peculiarity of efforts at bringing about the ICC is that they were about ensuring repression of the gravest international crimes, themselves seen as requiring high-level and hopefully systematic enforcement. The Rome negotiations were preceded and made possible by decades of densification of the international legal order, as evident in human rights, humanitarian law or, indeed, international criminal law itself. Certain areas could be considered to be so entrenched legally as to be off limits from the point of view of negotiations—such as the crime of genocide.51 If nothing else, for example, international law was implicated when the definition of certain international offenses was discussed. This was clearly the case for offenses with jus cogens status, but it was also true if states had in any way sought to curtail their existing international legal obligations. In other words, states parties to the Geneva or Genocide Conventions, jus cogens or not, were arguably duty-bound in their negotiations to not violate their obligations under those instruments by seeking to redefine them through their jurisdictionalization. This would surely have been a very paradoxical outcome (the effort to make sure that the norm is better enforced actually leading to its substantive dilution). In fact, states would eventually be quite clear that even though the Court had jurisdiction to prosecute war crimes ‘in particular when committed as part of a plan or policy or as part of a large-scale commission’ under Article 8(1), this was evidently only a jurisdictional threshold.52 At the same time, being able to rely

For a discussion of the negotiations on jurisdiction over individuals from both state parties and non-state parties, see Schabas, supra note 15, at 277–292. 50 For a description of this moment, see Kirsch and Robinson, supra note 5, at 75–87. 51 On this, see Schabas, supra note 15, at 119–136. 52 On the negotiation of this threshold, see ibid. at 199–202. 49

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The Rome Conference: institutional design and the constraints of diplomacy  37 on the idea that they were merely seeking to enforce customary international law prohibitions (Articles 8(2)(b) and (e) on war crimes are said to operate ‘within the established framework of international law’) provided both supportive and unsure states with a defensive grounding: the Rome Statute would neither undermine existing prohibitions (which would have frustrated civil society) nor invent new ones (which would have concerned indecisive states).53 Nonetheless, sticking to that line proved easier for crimes defined in treaties (notably genocide and war crimes) than those largely left to customary international law (crimes against humanity and aggression). The temptation and indeed the need to progressively develop the international law of crimes against humanity, for example, proved hard to resist because of the way in which the existing law was viewed as problematic, notably in terms of gender.54 The need to operate on the basis of ‘only actually existing international law’ was at times more than offset by the need to seize a unique opportunity to legislate international law, at least for the purposes of the ICC and at the margin (for example, the addition of educational buildings as protected buildings in the definition of war crimes in Article 8(2)(b)). After all, in principle, there was no reason why a group of states creating a new international jurisdiction inter se could not go beyond what was considered generally applicable to the international community as a whole. Moreover, when it comes to the mechanisms of enforcement, although international law cannot tell us in advance whether we should have an ICC or what design it should have, it can at least help us think through whether a particular modality of international jurisdiction raises legal issues or, indeed, is legal—for example, contra the US, which argued that for the ICC to have jurisdiction over nationals of non-states parties,55 many argued at the Rome Conference (and subsequently) that such jurisdiction could easily be construed as a delegation of the territorial jurisdiction of states parties.56 International law thus provided arguments not that the ICC should absolutely have jurisdiction over non-states party nationals who committed crimes on the territory of states parties, but that for it to have such jurisdiction would not be contrary to international law. Suggestions that would have gone against the basic assumption of individual responsibility in international criminal law were also met coldly, possibly as going against the already mentioned essence of an ICC. For example, the last-minute US proposal that non-state parties could, if their nationals were being investigated, indicate that the behavior in question was 53 As noted by von Hebel and Robinson, states agreed that they would negotiate the crimes on the basis of existing customary international law: ‘It was understood that the Rome Statute was to be a “procedural, adjectival” instrument, i.e. an instrument creating a new institution with jurisdiction over existing international crimes. The task facing the delegations to the Rome Conference was to reflect the definition of those crimes under customary international law’: von Hebel and Robinson, supra note 11, at 91. 54 E.g., the recognition of non-discrimination and persecution on the basis of gender in other areas of international law informed the inclusion of gender-based persecution under the crimes against humanity provision in Art. 7(1)(h): V. Oosterveld, ‘Prosecuting Gender-Based Persecution as an International Crime’, in A.-M. de Brouwer, C. Ku, R. Romkens and L. van den Herik (eds), Sexual Violence as an International Crime: Interdisciplinary Approaches (Antwerp: Intersentia, 2012) 57–78. 55 M. Morris, ‘High Crimes and Misconceptions: The ICC and Non-Party States’, 64 Law and Contemporary Problems (2001) 13–66. 56 F. Mégret, ‘Epilogue to an Endless Debate: The International Criminal Court’s Third Party Jurisdiction and the Looming Revolution of International Law’, 12 European Journal of International Law (2001) 247–268.

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38  The Elgar companion to the International Criminal Court undertaken in the pursuit of an official policy, thus making the issue one of state responsibility was flatly rejected:57 such a possibility would effectively have vitiated the very idea of individual responsibility. Similarly, a proposal that the ICC could not consider any situation or case that was simultaneously dealt with by the Security Council was deemed by most to not be implied by any reasonable reading of the Charter.58 In addition, membership in international organizations (most notably permanent membership of the Security Council) and regional organizations, as well as pre-existing bilateral commitments, all had an influence on policy formulation. Although they may not have dictated positions, they certainly influenced them as reflected, for example, in Article 98 of the Statute.59 Also, many legal, particularly constitutional, constraints conditioned negotiating strategies in Rome. Some states came to the negotiating table keen to ensure that the Rome Statute would be implementable domestically and, notably, would not sacrifice highly valued rights guarantees.60 In short, law, both international and domestic, was hardly irrelevant to the conference, although neither could it be said to have significantly prescribed its outcome. 2.A.3 Maximalist v minimalist One of the key dynamics of the negotiating process was the extent to which every party or actor in the negotiations had to determine for itself and in relation with others how it would decide on a fundamental trade-off. That trade-off, which is present in other similar processes, was as follows: the more ambitious the ICC from the point of view of justice, the more resistance it was likely to get from states, and therefore it was likely to garner the smallest membership. By contrast, the relatively weaker the ICC, the more states might be tempted to join it. This may have called for even supporters of the ICC—for example states that would have been willing to subscribe to a much more ambitious version of it—to water down that ambition in an effort to cast the net of membership more widely, although of course not at the risk of diluting it so much that the actual court would fall below even some basic ‘idea’ of it. The calculation, at every turn, was whether the benefit of the inclusion of any given provision (say, an explicit prohibition of nuclear weapons) was worth the ‘price’ in terms of membership (in that case, potential non-ratification by two P5 members). Each of the resulting scenarios had a distinct appeal and limitation. A ‘perfect’ ICC—one operating as close as possible to what international law could be understood as ideally requiring (though that was itself contentious, of course)—would probably be a court whose only members were very unlikely to commit international crimes. Its perfection would therefore

That proposal was: ‘With respect to States not party to the Statute, the Court shall have jurisdiction over acts committed in the territory of a State not party, or committed by officials or agents of a State not party in the course of official duties and acknowledged by the State as such, only if the State or States in question have accepted jurisdiction in accordance with this article’, UN Doc. A/CONF.183/C.1/L.90, 17 July 1998. It was rejected by the Committee of the Whole via a ‘no action motion’ adopted by a vote of 113 in favor, 17 against, and 25 abstentions: UN Doc. A/CONF.182/C.1/SR.42, 17 July 1998, § 31. 58 Schabas, supra note. 15, at 295. 59 See e.g., D. J. Sheffer, ‘Article 98(2) of the Rome Statute: America’s Original Intent’, 3 Journal of International Criminal Justice (2005) 333–353. 60 This was particularly the case for states wishing to be able to assert complementarity. See e.g., Human Rights Watch, ‘Non-Paper: The Compatibility of the ICC Statute with Certain Constitutional Provisions around the Globe’ (June 2000), available online at https://​www​.hrw​.org/​legacy/​campaigns/​ icc/​compatibility​.htm (visited 21 April 2020). 57

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The Rome Conference: institutional design and the constraints of diplomacy  39 come at the cost of its relevance; it would be, to caricature, a ‘Scandinavian’ court, populated by states that were highly unlikely to be involved in international crimes and assumed very little cost in joining it. Such a court would thus clearly have to do without the support of some key powers, certainly the US but others as well.61 But who needs a court that satisfies the yearning for strong mechanisms, only at the cost of their being useless or unused? Hence the temptation to lower the bar somewhat, in an effort to, as it were, entice or lure potentially delinquent states to support the ICC, those that might actually provide it with cases. Hence also the need for supporters to constantly decide what went to the core of the project and what was negotiable. In that context, some demands emerged as more marginal and ultimately dispensable: for example, a broader ratione materiae jurisdiction including transnational crimes,62 a primacy-oriented regime,63 a greater responsibility of the state64 or the inclusion of nuclear weapons explicitly among the list of prohibited weapons.65 However, making too many such concessions might expose those behind them to the reproach that they were selling the future ICC short, and perhaps even too readily giving up on the ‘idea’ that had informed the core ambitions for the Court. By contrast, a court whose standard was lowered excessively might get much more significant membership. Imagine, for example, a court with jurisdiction that had to be agreed to on a case-by-case basis by the relevant states. This is a Court that probably no state could afford not to join. Why not be part of a court that one has reason to think will never be able to prosecute one’s nationals or bring significant adverse publicity if one does not want it to? Having a critical mass of states backing the ICC is of course symbolically (the Court should be universal) and practically (the Court should stand some chance of asserting jurisdiction) important. This broader membership, however, would be paid for at the cost of being significantly less able to exercise jurisdiction and also of compromising the project’s ambition.66 One could ignore this tension between, essentially, quality and quantity; but all the evidence points to one having done so at one’s peril and that it was, and in some ways remains, crucial to the Court’s becoming.67 It is fair to say that most delegates in Rome understood that trade-off as absolutely central, although some (NGOs, like-minded states) could less afford to be seen as engaging in ultra-pragmatic bargains, relinquishing principles in order to boost membership. Many resulting debates in Rome were debates ‘at the centre’ by those who sought to find

C. Fehl, ‘Explaining the International Criminal Court: A “Practice Test” for Rationalist and Constructivist Approaches’, 10 European Journal of International Relations (2004) 357–394. 62 R. Menachery Paulose, ‘Beyond the Core: Incorporating Transnational Crimes into the Rome Statute’, 21 Cardozo J. Int’l and Comp. L. (2012) 77–110; M. C. Bassiouni, ‘A Comprehensive Strategic Approach on International Cooperation for the Prevention, Control and Suppression of International and Transnational Criminality, Including the Establishment of an International Criminal Court’, 15 Nova L. Rev. (1991) 353–372. 63 E. David, ‘The International Criminal Court: What Is the Point?’, in K. Wellens (ed.), International Law: Theory and Practice, Essays in Honour of E. Suy (The Hague: Martinus Nijhoff Publishers, 1998) 631–650. 64 A. Clapham, ‘The Question of Jurisdiction under International Criminal Law over Legal Persons: Lessons from the Rome Conference on an International Criminal Court’, in M. T. Kamminga and S. Zia-Zarifi (eds), Liability of Multinational Corporations under International Law (Alphen aan den Rijn: Kluwer, 2000) 139–195. 65 Kirsch and Holmes, ‘Negotiating’, supra note 2. 66 These compromises are discussed in detail at Kirsch and Robinson, supra note 5, at 78–87. 67 The centrality of this balancing is explained in detail by Kirsch and Robinson: ibid. at 75–87. 61

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40  The Elgar companion to the International Criminal Court a compromise between a Court of a minority of virtuous countries, and a Court that could potentially become universal. Defining that middle road, however, was a highly complicated endeavor because it involved determining what the ‘costs’ in membership of any ‘upgrade’ in the Rome Statute would be in a context of high interdependence of all regime provisions, opacity as to states’ actual priorities, and constant and dynamic evolution. Many provisions and, particularly, omissions of the Statute can nonetheless be understood as subtly telegraphing to the ‘other side’ that their concerns had been heard. Note that, in this context, it may not always be clear what is the most ‘pro-ICC’ position, and that no one necessarily has a monopoly of either principles or realpolitik. The problem with many appeals to a strong ICC as extremely consonant with human rights and justice, for example, is that they may fall flat even on their own terms. For example, what if the Rome Statute was to effectively make amnesties impossible and lead to a resurgence of hostilities? Or what if states were less likely to send peacekeepers because of concerns that they might be prosecuted unfairly? Or what if the criminalization of aggression ruled out the occasional humanitarian intervention? There may be a degree of bad faith posturing involved in some states raising these arguments; but their strength is that they are not just opposing the ‘national interest’ to ‘cosmopolitan justice’ as much as making a complex argument from (a certain vision of) the same cosmopolitan justice that global civil society so powerfully invoked. Much confusion would arise in Rome as a result of all states ‘speaking the same language’, and most being quite adept at portraying their occasionally narrowly interested opposition as principled. As it turned out, it was possible to make significant concessions under the impression that they would have significant positive implications for membership, only to realize late in the day that the concessions had not been sufficient to sway hesitant states. The classic example is concessions made to the US, which was actively pursued as a potential party even at the cost of watering down some segments of the Statute,68 only to find that the subsequent Bush administration had very little inclination to ratify the Court. Nonetheless, the ability of supportive states, in particular, to make compromises that were not strictly required of them by international law in order to appease hypothetical non-state parties should be noted. The compromise on aggression—which many states really wanted included but of which others were wary—also involved a savvy deferral of an issue which could have, on its own, either scuttled the negotiations or significantly compromised membership.69 Some concessions (for example, the compromise on sentencing which made life sentences the exception in recognition of South American demands), did strongly incite some states to ratify the Statute.70 2.B Issues We now arrive at the question of the issues themselves. Although it is customary to deal with those hewing closely to how the Court itself functions—trigger mechanisms, jurisdiction, 68 The Statute contains many concessions to the US. For example, Art. 9 ICCSt. indicates that ‘Elements of Crime shall assist the Court in the interpretation and application of articles 6, 7 and 8.’ This Article was adopted as a result of US proposals put forward in early 1996 and again at the Rome Conference, despite only enjoying ‘mild support’ early in the Rome Conference: Schabas, supra note 15, at 258–261. 69 This is described by von Hebel and Robinson, supra note 11, at 81–85. 70 H. Duffy, ‘National Constitutional Compatibility and the International Criminal Court’, 11 Duke J. Comparative and International L. (2001) 5–38, at 33–34.

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The Rome Conference: institutional design and the constraints of diplomacy  41 receivability—I will deliberately avoid these obvious categorizations to instead examine a series of underlying and cross-cutting issues that the Rome negotiations were tasked with resolving. It is worth mentioning that not all issues were weighed equally by various participants and ultimately by key negotiators, despite the sometimes relatively ‘flat’ presentation of the work of the various working groups. For example, one might distinguish between typical and controversial ‘high politics’ issues dealing with the very basic conditions of operation of the Court (jurisdiction, trigger mechanisms, complementarity, Security Council), niche interests (the Preamble), specialist concerns (criminal procedure), broad cultural reform and inclusivity dimensions (the definition of gender for the purposes of certain crimes), and institutional aspects (Assembly of States Parties, election of office-holders), etc. The status of each of these issues was determined by primarily endogenous constraints (typically the dynamics of one central wedge issue), but also exogenous ones (how might other issues affect them or be affected by them). Different groups and actors were involved in the negotiations with different investments in these various levels of discussion. 2.B.1 Relationship of justice and power One of the key questions that negotiators had to confront directly is the extent to which the justice of the ICC should be dependent on or independent from ‘power’. Evidently, much of the allure of the ICC, as has already been stated, is that it would be disconnected from the more obvious sources of power (victorious Allies, the Security Council) which had until then been crucial to the setting in motion of international criminal justice. By the same token, it was fairly evident to most negotiators from the start that the Court would need some sort of power of its own. International law itself might survive not being, to use the old Austinian formula, ‘backed by sovereign command’, but a court of law—one devoted to the enforcement of the international community’s supposedly most cherished norms no less—would not be much of one without a degree of effectivity. At the very least, the Court would need states to cooperate71 and a measure of control over its own judicial destiny. Here one can see a constant give-and-take going on between key players, where every attempt to emancipate the Court from external sources of power tended to be matched by some corresponding constraint. One of the key stakes of the negotiations, for example, was whether the Court would assert its own jurisdiction, or whether that jurisdiction would only be derivative of other actors. The Like-Minded Group pushed for the Prosecutor to be able to seize herself proprio motu.72 In return, some states insisted successfully that the Pre-Trial Chamber should be able to review the opening of any investigation.73 In addition, the possibility was introduced that the Prosecutor could renounce investigations if she deemed them to

This was reflected in Art. 86 ICCSt., which indicates that states are to ‘cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court’ . This language was the result of ‘lengthy debate’: ‘the major issue was whether there should be an unequivocal legal obligation on the part of the States Parties to comply with requests from the International Criminal Court, or whether the State concerned would decide on how it wished to respond to the Court’s request’. P. Mochochoko, ‘International Cooperation and Judicial Assistance’, in R. S. Lee, The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations and Results (The Hague: Martinus Nijhoff Publishers, 1999) 305–317, at 306. 72 See Like-Minded Group cornerstones, supra note 20. 73 This is found in Art. 15(3)–(5) ICCSt. The negotiating history of these subsections is described by Schabas, supra note 15, at 317–318. 71

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42  The Elgar companion to the International Criminal Court not be in the ‘interests of justice’,74 a possible wink at state efforts at pacification through truth commissions for example. A similar drift towards compromise was evident in relation to the Security Council. Although the view of many states, including those of the Non-Aligned Movement75 a priori was largely negative, Security Council powers vis à vis the Court made ample sense, and not necessarily only because they happened to validate, in the case of the permanent members, their existing power. There was a certain logic to the Council, which had created the ad hoc tribunals that would eventually give rise to the ICC, continuing to have a role on the basis of international peace and security. It would have been ironic if the Council had to create more ad hoc tribunals merely because it was prevented from referring situations to the ICC. Moreover, the Security Council might refer situations to the Court that it would normally not have jurisdiction over because the relevant country was not a state party. Still, there is no doubt that a Security Council role sat oddly with international criminal justice’s ambition to cut the umbilical cord with international political power. The power to defer investigations was especially seen as a major concession to realpolitik, although here again a certain compromise was found in Article 16, with the Council needing to renew such suspensions every 12 months, thus inevitably raising the political costs of doing so.76 Lost in all the hand-wringing about Article 16, moreover, was the fact that, from a global constitutional perspective, the negotiators in Rome had, in an underhand fashion, effectively limited the powers of the Security Council and sought to create an arms’ length relationship with it (in the absence of such a provision—and perhaps even in its presence—the Council could arguably have suspended any case for as long as it wanted). Other areas of acknowledgment of state interests, aimed both at supportive and indecisive states, included a particular regime of protection of national security information giving considerable leeway to the state (Article 72), a recognition of the complications created by prior international agreements binding states (Article 98), or ample opportunity for states to challenge the receivability of cases (Articles 17, 18 and 19). All of these concessions reflected the pragmatic recognition that, in practice and for all its cosmopolitan aspirations, the ICC would operate in a world of states and not even the supportive ones were going to embrace it blindly. 2.B.2 Enhancing the court’s legitimacy If getting the right balance between justice and politics reflects the need to minimally kowtow to political power, negotiators also needed to keep an eye on the overall legitimacy of the institution they were creating. Certainly, the number of supportive states is a factor in the Court’s legitimacy and its relative ratification success would subsequently be touted as a sign that the Court was gaining real traction. At stake here are not just numbers, but also potentially what kind of states. For example, behind the fiction of equal state membership, clearly a Chinese ratification of the Rome Statute would matter more to its legitimacy than Andorra’s 74 This is found in Art. 53(2)(c) ICCSt. The negotiating history of this subsection is described by Schabas, supra note 15, at 663. 75 See e.g., von Hebel and Robinson, supra note 11, at 82. 76 This was the intent: a deferral decision by the UN Security Council requires a minimum of nine affirmative votes and therefore ‘the Court’s proceedings may only be stopped by a concerted effort of the Council members’: L. Lee, ‘The International Criminal Court and the Security Council: Articles 13(b) and 16’, in R. S. Lee, The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations and Results (The Hague: Martinus Nijhoff Publishers, 1999) 143–152, at 150.

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The Rome Conference: institutional design and the constraints of diplomacy  43 ratification. Building a court that can attract this kind of support, then, became a key part of the Statute’s legitimacy gambit. Although the Court is created by an international treaty and is, as such, solidly based in state consent, it could still suffer from a deficit of legitimacy that could cripple its action. State consent cannot be the only measure of the Rome Statute’s force, given the lofty goals that the ICC claims to promote.77 At any rate, consent is capricious and eminently reversible, as became evident many years down the road when a number of states sought to pull out from the Court. Crucial to the negotiations, therefore, was an effort to build a Statute that would not only be ratified by a significant number of states, but also withstand the test of time, lead to a successful institution and ultimately contribute to reform the international legal order. Even as negotiators were quite focused on simply ‘getting the Statute adopted’, therefore, they perforce also had to keep an eye on that ‘long game’. The imagined legitimacy of the Court converged towards three key dimensions that also proved crucial to the Rome Statute’s adoption. First, a relatively restricted jurisdiction, both ratione materiae (a gradual focus on the core crimes at the expense of various transnational crimes that could have conceivably entered the Court’s jurisdiction), ratione personae (a focus only on individuals at the expense of attempts to make states at least liable in part for reparations) and ratione temporis (no retroactive jurisdiction).78 By limiting the parameters of jurisdiction in this way, those favoring the Court ensured that it would have competence over what they understood as the worst crimes without unduly creating fears among indecisive potential participants. The narrowness of jurisdiction was further refined in a number of ways. It was evident, for example, in the inclusion of a preferred jurisdictional threshold in war crimes79 and, eventually, in the definition of aggression.80 It was reflected in frequent invocations of the principle of legality81 which, however much they may be justified out of concern for the accused, also clearly militated in favor of less rather than more criminality in ways that reassured some states. The agreement to establish Elements of Crime, even at a later date, was designed to protect the ICC from the sort of ‘mission creep’ that had characterized the early jurisprudence of the ad hoc tribunals, and which often saw judges engage in allegedly quite creative interpretations of international law.82 Whether such dangers were real or imagined, the tighter the Court’s jurisdiction, the less it could be criticized as a Court dangerously at risk of overreaching. 77 These goals are set out in the ICCSt. preamble, and include putting ‘an end to impunity … and thus to contribute to the prevention of such crimes’ and ‘to guarantee lasting respect for and the enforcement of international justice’. 78 Schabas, supra note 15, at 115–117, 273–276, and 421–442. 79 Art. 8(1) ICCSt. 80 Arts. 8bis, 15bis and 15ter ICCSt., adopted in 2010. 81 The principles of nullum crimen sine lege (included in Art. 22 ICCSt.) and nulla poena sine lege (included in Art. 23 ICCSt.) were not only referred to in the negotiation of these Articles; they were used to argue for the adoption of other provisions, such as non-retroactivity ratione personae (Art. 24 ICCSt.): Schabas, supra note 15, at 417–420. 82 G. Dim, ‘Judicial Activism within the International Criminal Tribunals for the Former Yugoslavia and Rwanda: A Dangerous Political Invasion into the Realm of States’, available online at https://​ www​.researchgate​.net/​publication/​259807835​_Judicial​_Activism​_within​_the​_International​_Criminal​ _Tribunals​_for​_the​_Former​_Yugoslavia​_and​_Rwanda​_A​_Dangerous​_Political​_Invasion​_into​_the​ _Realm​_of​_States (visited 21 April 2020). See also G. P. Lombardi, ‘Legitimacy and the Expanding Power of the ICTY’, 37 New England L. Rev. (2002) 887–901.

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44  The Elgar companion to the International Criminal Court Second, complementarity undeniably came to assume the role of a key pillar of compromise in the negotiations and of the Court’s imagined legitimacy. Under the complementarity regime, cases are only receivable if states have been ‘unwilling or unable’ to prosecute the relevant crimes.83 This notion of complementarity was accepted early on as the bedrock of consensus on the ICC,84 even if it meant toning down a persistent minority insistence on the need for a strong internationalist international criminal justice.85 It occupied a notable place in the strategies of the Like-Minded Group, which, in the midst of opposition and skepticism by other states, could relentlessly point to the fact that states who intended to prosecute crimes domestically would have ‘nothing to lose’ from joining the Statute.86 Third, there was general agreement that victims should have a role in proceedings. International criminal justice had traditionally been very unreceptive to victims except in the most rhetorical fashion. This came to be perceived as one of the major flaws of the ad hoc international criminal tribunals, and something that weakened international criminal justice’s claim to legitimacy.87 Domestically, it is easier for a criminal justice system to defend its existence on the basis of ‘social defense’, ‘public order’ or ‘state sovereignty’, but no such expedient is available in a weak, polarized and under-institutionalized international system. Hence crafting a role for victims in the ICC emerged at the time as a relatively consensual investment, one that validated international criminal justice’s claim as not simply an emanation of states, satisfied civil society’s craving for social relevance, and was broadly consonant with the evolution of international law. 2.B.3 Universalism and pluralism Finally, a crucial variable in negotiating the Rome Statute was the extent to which it should incarnate a universal model or, on the contrary, be open to a degree of pluralism. The very genesis of international criminal law suggests a deeply unifying thrust: it is because certain crimes are committed against humanity that there is such a thing as international criminal law. An international criminal law that did not have defining, international offenses, would not be much of an international criminal law. This suggests that the substantive definition of international crimes is not open to much negotiation or locally situated interpretations. Nonetheless, states were wary, given the often expansive and intricate character of international offenses, of how certain definitions arrived at in Rome might prove problematic, and sought to protect themselves from such a danger by asserting their centrifugal prerogatives against the conference’s mostly centripetal tendencies. This was evident for example in protracted discussions over the definition of gender of ‘forced pregnancy’.88 There was also Art. 17(1)(a) ICCSt. refers to states which are ‘unwilling or unable genuinely to carry out an investigation or prosecution’. 84 I. Tallgren, ‘Completing the “International Criminal Order”’, Nordic Journal of International Law (1998) 107–137. 85 F. Mégret, ‘The Case against Complementarity’, in C. Stahn and M. El Zeidy (eds), The International Criminal Court: From Theory to Practice (2nd edn., Cambridge: Cambridge University Press, forthcoming 2021). 86 Note, however, that this was not one of the ‘cornerstones’ adopted by the Like-Minded Group, supra note 20. 87 Schabas, supra note 15, at 821–824 and 827–834. 88 C. Steains, ‘Gender Issues’, in R. S. Lee, The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations and Results (The Hague: Martinus Nijhoff Publishers, 1999) 357–390, at 365–369. 83

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The Rome Conference: institutional design and the constraints of diplomacy  45 awareness in Rome of the international community’s plural character, even in the midst of a commitment to prosecuting international offenses. What is true of the special part of substantive international criminal law, for example, is not necessarily true of the general part. Although the conference did codify some of the principal means of attribution of responsibility and even defenses, for example, it did so arguably without prejudicing the exact incriminations under which charges would have to be brought domestically. The principle of complementarity provided, at least potentially, a conduit for different ways of honoring the international obligation to prosecute. Although the focus was principally on what might evidence unwillingness or inability, it was implicit that domestic trials would be conducted in a variety of ways consonant with various legal traditions.89 At the very least, a fundamental ambiguity was kept about what the principle of complementarity might entail, making it easier for states to imagine interpretations that would ultimately favor them. Finally, the operation of the Court itself included a degree of pluralism. This was visible in the effort to include judges from all of the various legal systems of the world, or to ensure equitable gender representation.90 It is also evident in the effort in Rome to negotiate a procedure that was a synthesis of the procedural systems of key negotiators: first and foremost, the civil law inquisitorial and common law accusatorial models.91 Immediately prior to and during the Rome Conference, defenders of each system had tended to frame their tradition as the better repository of the fair trial ideal.92 Even as the negotiations required a quid pro quo, each side was wary of the extent to which their tradition might be ‘corrupted’ by excessive mingling with the other. In the end, the Rome Statute reflected a series of compromises that gave the ICC a fundamentally more adversarial flavor, with some significant inquisitorial features.93

3. CONCLUSION The Rome Conference negotiations were, by most accounts, a success: a court was created.94 Moreover, not only were these negotiations not a foregone conclusion, but they made a difference to the calculations of some of the principal actors: few left Rome after 17 July 1998 thinking exactly what they thought going in. In other words, negotiations are not simply the

E.g., this is implicit in Schabas’ description of the negotiations and analysis of the Article: Schabas, supra note 15, at 335–347. 90 Art. 36(7) and (8) ICCSt.; Schabas, supra note 15, at 529–530. 91 On this, see S. A. Fernández de Gurmendi, ‘International Criminal Law Procedure: The Process of Negotiations’, in R. S. Lee, The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations and Results (The Hague: Martinus Nijhoff Publishers, 1999) 217–227, at 220–224. 92 This preference for one’s own national approach initially resulted in a very slow pace of work as ‘delegates engaged in lengthy descriptions of the advantages and disadvantages of each national system’: ibid. at 220. 93 Adversarial and inquisitorial features can be seen in Art. 81 ICCSt., which creates a compromise between both systems when addressing the powers of the Court in relation to appeals against decisions of acquittal or conviction: H. Brady and M. Jennings, ‘International Criminal Law Procedure: Appeal and Revision’, in R. S. Lee, The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations and Results (The Hague: Martinus Nijhoff Publishers, 1999) 294–304, at 297–299. 94 E.g., Lee concluded ‘the Rome Statute has achieved what appeared impossible: a permanent international institution empowered to prosecute and punish the most heinous of crimes’: Lee, ‘Introduction’, supra note 7, at 36. 89

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46  The Elgar companion to the International Criminal Court predictable place where political interest plays out, but one where political interest is formed through dialogue and persuasion and the sheer experience of seeing one’s positions constantly refracted against a broader fractious background.95 In the broader scholarly struggle between rationalist and constructivist perspectives to state decision-making in international relations, the conference would seem to suggest the inability of pure rationalist approaches to account for an occasionally spectacularly shifting conception of the national interest.96 This will undoubtedly resonate with international lawyers who have long sensed that the law shapes interest much more than it strictly constrains it, a fortiori when it comes to law-making. Whether the outcome has passed the test of time is a more complex question and its legacy has been lasting but certainly ambiguous. For one thing, the Rome Conference did cement a certain consensus about what the ICC should be. If nothing else, the record of the conference provides travaux préparatoires that can be used as an authoritative guidance for interpretative purposes. Of course, if the Statute itself does not yield a clear interpretation, it is often because of intentionally ambiguous language chosen as part of diplomatic compromises in Rome.97 Going behind those compromises in the hope of finding what the states parties ‘really wanted’, one risks merely uncovering the polarities that were there all along. Still, the travaux can help understand the Rome Statute as sometimes more purposeful than one might think, and the negotiations as having envisaged a broad range of scenarios.98 Perhaps more concretely, the negotiations helped build a particular ‘interpretative community’, one composed of individuals ‘who were there’ and may as a result claim a certain insight into what was discussed. In effect, that interpretative community has proved influential, often successfully converting the capital acquired in the negotiations into key positions at the Court itself. One of the most surprising developments from a socio-legal perspective is the degree to which key positions in the Hague have been occupied by individuals who had a prominent role in Rome.99 This is spectacularly illustrated in the degree to which former diplomats involved in the negotiations have gone on to assume judicial positions, Philippe Kirsch (the head of the Canadian delegation) being perhaps the most evident example, alongside Marc Perrin de Brichambaut (the French delegation). Whether that consensus survived the lived experience of the Court is an open question.100 Certainly, some of the debates that had been at the forefront during the negotiations did not age particularly well, although they could be resurrected in the future. For example, one fear in Rome of states reluctant to join the ICC was of a Prosecutor gone rogue, and engaging in N. Deitelhoff, ‘The Discursive Process of Legalization: Charting Islands of Persuasion in the ICC Case’, 63 International Organization (2009) 33–65. 96 D. Wippman, ‘The International Criminal Court’, in C. Reus-Smit (ed.), The Politics of International Law (Cambridge: Cambridge University Press, 2004) 151–188; Simmons and Danner, supra note 14; Fehl, supra note 61. 97 This use of what diplomats call ‘constructive ambiguity’ is evident in the definition of the term ‘gender’ in Art. 7(3): V. Oosterveld, ‘Constructive Ambiguity and the Meaning of “Gender” for the International Criminal Court’, 16(4) International Feminist Journal of Politics (2014) 563–580. 98 D. Robinson, ‘The Mysterious Mysteriousness of Complementarity’, 21 Criminal Law Forum (2010) 67–102. 99 F. Mégret, ‘International Criminal Justice as a Juridical Field’, 13 Champ pénal/Penal Field (2016), available online at https://​journals​.openedition​.org/​champpenal/​9284 (visited 21 April 2020). 100 F. Mégret, ‘La Cour Pénale Internationale a-t-elle fonctionné comme prévu?’, in J. Fernandez and O. de Frouville (eds), Troisièmes journées de la justice pénale internationale (Paris: Pedone, 2019) 81–120. 95

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The Rome Conference: institutional design and the constraints of diplomacy  47 politically motivated prosecutions. That fear has hardly materialized, and it took a decade for the Prosecutor’s first use of the proprio motu powers,101 powers that she has since seemed committed to using sparingly. By contrast, issues that seemed entirely consensual such as state referrals, the meaning of complementarity, or the role of victims have yielded remarkably intractable debate. Perhaps unsurprisingly, then, the Rome Conference highlighted fears that proved excessive, and ignored risks that proved potent. What worked for the Rome Conference and the adoption of the Rome Statute, in fact, is not necessarily what worked for the Court itself. In fact, it cannot be assumed that the ephemeral consensus of diplomats in these heady days of the summer of 1998 over formulas that satisfied the order of the day, would carry over into the life of the Court, more than 20 years later, in relation to crimes and environments that could not have been foreseen at the time. It seems, rather, that some states—European or African states come to mind—may have had quite strikingly different understandings of what the Court would entail, and that some would be in for a rude awakening. Finally, there are lessons from the Rome Conference to be learned that can inform our understanding of diplomatic conferences and negotiations more generally. Although largely open and undetermined, such conferences do tend to eventually navigate a sort of path of least resistance, one that strikes a compromise between the ambition of the resulting treaty and its potential universality. The Rome Statute was certainly not the only such compromise and the extent to which it has managed to achieve the right balance remains contested. For some, the Court remains too weak and vulnerable; for others, it is already fast at risk of exceeding its powers and should be further constrained. To the extent that some states involved in the Rome Conference have actually withdrawn, or have sought to withdraw from it, they may show some of the limits of the system under strenuous circumstances. But the sign of a successful negotiating exercise is not that all parties get all that they want, as much as it is the ability of a precarious agreement to sustain itself across time, despite differences.

This occurred in the Kenya situation: Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, Situation in the Republic of Kenya (ICC-01/09), 31 March 2010, § 73. 101

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3. Contestation and inevitability in the crimes of the International Criminal Court Saira Mohamed

1. INTRODUCTION Despite the hundreds of millions of euros in its annual budget, the numerous volumes devoted to its history, law, and practice, and the world wide attention paid to its every major decision, the International Criminal Court (ICC) is at its heart a very simple institution: a criminal court devoted to the prosecution of four crimes—genocide, crimes against humanity, war crimes, and aggression.1 Still, the road to the designation of the Court’s jurisdiction ratione materiae was a long and circuitous one. And at the end of it, these four offenses were designated not merely the short list of crimes over which the Court has subject-matter jurisdiction, but also the ‘core crimes’ of international law, and, in the conventional use of the term, the entire body of offenses under ‘international criminal law’.2 This chapter considers the designation by the drafters of the Rome Statute of these crimes as subject to the jurisdiction of the ICC, and, in particular, the significance of that designation. It begins by examining the narratives that are conventionally deployed to describe the choice to criminalize these four acts in the Rome Statute. The predominant narrative is one of contestation and categorization, depicting a debate in the years leading up to the final version of the Rome Statute that centered on whether the Court’s jurisdiction ought to be limited to See International Criminal Court, Art. 5 ICCSt (hereafter Rome Statute). See e.g., K. Ambos, Treatise on International Law: Volume II: The Crimes and Sentencing (Oxford: Oxford University Press, 2014), at 222; R. Cryer et al., An Introduction to International Criminal Law and Procedure (2nd edn., Cambridge: Cambridge University Press, 2010), at 4; W. Schabas, An Introduction to the International Criminal Court (3rd edn., Cambridge: Cambridge University Press, 2010), at 88; L. Sadat, ‘The International Criminal Court’, in W. Schabas (ed.), The Cambridge Companion to International Criminal Law (Cambridge: Cambridge University Press, 2016) 137–154, at 145; C. Kreß, ‘International Criminal Law’, Online Encyclopedia (Max Planck Institute Encyclopedia of Public International Law) available online at http://​opil​.ouplaw​.com/​view/​10​.1093/​ law:​epil/​9780199231690/​law​-9780199231690​-e1423​?rskey​=​L5wmBa​&​result​=​1​&​prd​=​EPIL (updated March 2009). There is, of course, some variation in the definition of the field of international criminal law. See e.g., M. C. Bassiouni, Introduction to International Criminal Law: Second Revised Edition, Vol. 2 (Hague-London-Boston: Martinus Nijhoff, 2013), at 147 (listing 27 international crimes, but qualifying that total by noting that ‘some of the 27 crimes are truly international, others are transnational, others are partly international or transnational and lastly, some crimes were categorized as international crimes because it was deemed the best way of enhancing their prevention and suppression’); A. Cassese, International Criminal Law (2nd edn., Oxford: Oxford University Press, 2008), at 11–13 (including terrorism and torture as independent international crimes); S. Ratner et al., Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (3rd edn., Oxford: Oxford University Press, 2009), at 10 (including drug crimes and terrorism); A. Zahar and G. Sluiter, International Criminal Law: A Critical Introduction (1st edn., Oxford: Oxford University Press, 2008), at 4 (omitting aggression from the definition of international criminal law). 1 2

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50  The Elgar companion to the International Criminal Court a short list of crimes or expanded to include others, such as terrorism or drug trafficking. In this telling, the drafters deliberated on the value of different approaches to the subject matter of the Court, considering which crimes were sufficiently universal in their definition and obligation to be addressed in an international body; which crimes demanded international prosecution because of the nature of investigation or prosecution; and which crimes were sufficiently serious and relevant to the international community to occupy the resources of the future Court. This account portrays the ultimate outcome as the result of such reflection and exchange. But from another perspective, the years of consideration and reconsideration read more like window dressing, a pro forma process put on for show when it was known all along that the Rome Statute was the inevitable successor to Nuremberg, and that the crimes under the Court’s jurisdiction were, accordingly, largely a foregone conclusion. After establishing these narratives, the chapter then considers two additional ways of framing the decision-makers’ act of selecting the crimes that they did. First, the chapter argues that by selecting these crimes for the ICC’s jurisdiction, the drafters of the Rome Statute conferred on the four crimes a special status, a place at the top of the hierarchy of international crimes or even wrongs more generally. Thus, it is incomplete to argue that the status of the four ‘core crimes’ in the Rome Statute reflected their status in international law at the time as more serious than other offenses, or as of greater concern to the international community than others, or as more in need of international adjudication than others. Instead, their status in the Rome Statute consolidated their status in international law as more serious, more universal, and more urgent for international attention. Second, the chapter argues that the decision to subject these four crimes to the jurisdiction of the Court, and the choice to decide on the definition of and jurisdictional regime for aggression at a later date, demonstrate a goal of building a new kind of world order, one that is radically transformed from the postwar architecture of the international system that had been established through the United Nations. Whereas the United Nations was built around a norm of protecting states from war, the subject-matter jurisdiction of the ICC announces an intention to establish a new world order around protecting human lives. Finally, the chapter turns back to the narratives of contestation, on the one hand, and inevitability, on the other, to consider how these narratives might shape conceptions of both ways of thinking about the Rome Statute drafters’ act of choosing the crimes that they did. Building from theories of social legitimacy, the chapter posits that narratives of contestation around the negotiation of the Rome Statute facilitate both the conferral of status upon the crimes and the goal of creating a world order around protection of individuals, for they visit upon the ultimate decision of the Court’s jurisdiction ratione materiae a sense of procedural legitimacy. The legitimacy of the Rome Statute derives in part from the broad, inclusive deliberative process of its drafting. Given the lack of any apex of power or authority in the process leading to adoption of the Statute, at the time of drafting the law’s legitimacy hinged on its process, rather than from the position of any actor. A decision by fiat—one that envisioned the crimes under the Court’s jurisdiction as predetermined and inevitable—might not carry the same status, even outside of the fact that such a rationale might not have achieved consensus. The point is not to claim that these two implications indeed result from these narratives, but rather to highlight the ways these narratives might shape the way we think about the work of the drafters. Moreover, highlighting these two ways of framing the subject-matter jurisdiction of the Court is not intended to dispute the accuracy of the narratives that have been put forward. It is instead intended to provide critical analysis of their significance and implications, and of what they

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Contestation and inevitability in the crimes of the International Criminal Court  51 mean for the way we have understood the impact of the Rome Statute and the Court both for international crimes specifically and for international order more broadly.

2. CATEGORIZATION Ian Ward writes that ‘[l]aw … is as potent in its absence as in its presence’.3 Consistent with this aphorism, the topic of the ICC’s subject-matter jurisdiction, and in particular the decision to designate genocide, crimes against humanity, war crimes, and aggression as the crimes subject to the jurisdiction of the ICC, is often addressed through a narrative that asks why the drafters of the Rome Statute selected those four and omitted other crimes from the jurisdiction of the Court.4 This narrative focuses on the alternating separation and intermixing of two categories of crimes: the ‘core crimes’ of genocide, crimes against humanity, war crimes, and aggression; and those offenses generally known as ‘treaty crimes’.5 While the core crimes trace their origins to Nuremberg, the Genocide Convention, and the advent of the contemporary body of international human rights law, the treaty crimes comprise those offenses established under various treaty regimes (or ‘suppression conventions’) as appropriate for domestic prosecution, but facilitated by international cooperation. These have included, in various iterations, drug trafficking, terrorism, crimes against United Nations personnel, environmental crimes, apartheid, and hostage taking. Some also use the categories of international criminal law and transnational criminal law to refer to the two.6 On the road to the ICC, the categories were fluid, treated flexibly and with an array of meanings, as much as they have been rigid, used to delineate strictly those offenses that are appropriate for ICC jurisdiction and those that are not. Participants in the negotiations and discussions leading to the creation of the ICC, for example, used these terms in quite different ways. Some delegations included some of the treaty crimes, particularly drug trafficking and terrorism, in the category of core crimes. In a meeting of the Preparatory Committee, for example, the representative of India noted that ‘[t]he vast destruction of lives and property caused by international terrorism qualified that crime to be included among the “core crimes”

I. Ward, Justice, Humanity, and the New World Order (Farnham, UK: Ashgate Publishing, 2003), at 86. 4 See e.g., A. Zimmermann, ‘Crimes Within the Jurisdiction of the Court’, in O. Triffterer and K. Ambos (eds), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, (2nd edn., London: Hart Publishing, 2008) 129, at 130 (beginning section on crimes within the ICC’s jurisdiction with a section on ‘Crimes not included in the Statute of the ICC’). 5 See e.g., Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN Doc. A/50/22, 6 September 1995, 11–12, 17–18, available online at https://​www​.legal​ -tools​.org/​doc/​b50da8/​pdf/​(hereafter Report of the Ad Hoc Committee); United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court Rome, UN Doc. A/CONF.183/13 (Vol. 11), 15 June–17 July 1998, available online at http://​legal​.un​.org/​icc/​ rome/​proceedings/​E/​Rome​%20Proceedings​_v2​_e​.pdf (hereafter UN Diplomatic Conference). For an expansive take on treaty crimes, see R. Clark, ‘Treaty Crimes’, in W. Schabas (ed.), The Cambridge Companion to International Criminal Law (Cambridge: Cambridge University Press, 2016) 214–229, at 214. 6 See e.g., N. Boister, ‘Transnational Criminal Law?’ 14 European Journal of International Law (2002) 953–997, at 961–974. 3

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52  The Elgar companion to the International Criminal Court over which the proposed international criminal court should have jurisdiction’.7 The United States, meanwhile, opposed the inclusion of terrorism as a core crime, but supported consideration of including attacks on UN and associated personnel in the core crimes.8 Meanwhile, some commentators and participants separated aggression from the other core crimes, questioning the wisdom or practicality of including it in the set of crimes to be before the Court.9 Moreover, it was not always clear that treaty crimes would be excluded from the jurisdiction of the Court. In 1994, the International Law Commission recommended that treaty crimes should be subject to the jurisdiction of the Court, but conditioned on an expectation that ‘the crime in question, having regard to the conduct alleged, should have constituted an exceptionally serious crime of international concern’.10 The lines that ultimately were drawn separated the core four crimes—crimes against humanity, genocide, war crimes, and aggression11—from the rest. The Rome Statute provides for jurisdiction over the four core crimes, while it defers resolution on the others, perhaps forever, through Article 123, which provides that seven years after the entry into force of the Statute, a Review Conference would be convened to consider amendments to the Statute, which ‘may include, but is not limited to, the list of crimes contained in Article 5’.12 Those who had advocated for expanded subject-matter jurisdiction for the Court settled for a call to use Article 123 to eventually include terrorism and drug crimes under the jurisdiction of the Court. The Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court noted that ‘terrorist acts … are serious crimes of concern to the international community … which pose serious threats to international peace and security’; that ‘the international trafficking of illicit drugs is a very serious crime’; expressed ‘[r]egret … that no generally acceptable definition of the crimes of terrorism and drug crimes could be agreed upon for the inclusion, within the jurisdiction of the Court’; and noted the possibility under the Statute for expansion of the jurisdiction of the Court in the future. Ultimately, in Resolution E, the Final Act ‘[r]ecommend[ed] that a Review Conference pursuant to Article 123 of the Statute of the International Criminal Court consider the crimes of terrorism and drug crimes with a view to arriving at an acceptable definition and their inclusion in the list of

UN Press Release, ‘Terrorism Should Be “Core Crime” of Proposed International Court India Tells Preparatory Committee’ (UN Doc. L/2766), 27 March 1996, available online at http://​www​.un​.org/​ press/​en/​1996/​19960327​.l2766​.html. 8 Ibid. 9 See e.g., S. Cummins and D. Stewart (eds), Digest of United States Practice in International Law 1991–1999, Vol. 1 (Washington, DC: International Law Institute, 2005), at 611 (quoting the 1 November 1995 statement by Jamison S. Borek, Deputy Legal Adviser, United States Department of State, at the 50th Session of the United Nations General Assembly, Sixth Committee). 10 ‘Report of the International Law Commission on the Work of its Forty-Sixth Session (2 May–22 July 1994)’, in Yearbook of the International Law Commission Vol. II (1994), at 41, available online at http://​legal​.un​.org/​ilc/​texts/​instruments/​english/​commentaries/​7​_4​_1994​.pdf. 11 The crime of aggression, of course, is in some ways in its own category given the 12 years it would take to decide on a definition and the 20 it would take to activate the Court’s jurisdiction on the crime. See International Criminal Court Assembly of States Parties, The Crime of Aggression, Doc. RC/Res.6, 11 June 2010, available online at https://​asp​.icc​-cpi​.int/​iccdocs/​asp​_docs/​Resolutions/​RC​-Res​.6​-ENG​ .pdf; International Criminal Court Assembly of States Parties, Activation of the Jurisdiction of the Court over the Crime of Aggression, Res. ICC-ASP/16/Res.5, 14 December 2017, available online at https://​ asp​.icc​-cpi​.int/​iccdocs/​asp​_docs/​Resolutions/​ASP16/​ICC​-ASP​-16​-Res5​-ENG​.pdf. 12 Rome Statute, Art. 123. 7

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Contestation and inevitability in the crimes of the International Criminal Court  53 crimes within the jurisdiction of the Court’.13 But the call came to nothing. In the end, these crimes were not even put on the agenda for the 2010 Kampala Review Conference.14

3. CONTESTATION The path to the ultimate adoption of the four offenses subject to the ICC’s jurisdiction under the Rome Statute is primarily presented as a debate over the appropriateness of certain crimes for ICC jurisdiction based on a few features that were thought to be particularly important.15 First, the dominant narrative focuses on the significance of the lack of internationally agreed-upon definitions or international prohibitions for some of the treaty crimes. Commentators and practitioners advocating for separation of the core crimes note the prohibition under customary international law of the core crimes, whereas the treaty crimes are not offenses under customary international law.16 This is shaped as a story of restraint and modesty on the part of the creators of the Court: ‘It was understood that the Statute was not to create new substantive law, but only to include crimes already prohibited under international law.’17 Moreover, commentators and participants at the time note the difficulty of reaching a definition of the ‘treaty crimes’, especially for terrorism.18 These accounts focus on the fact that because of the

Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, UN Doc. A/CONF.183/10, 17 July 1998, available online at http://​ legal​.un​.org/​icc/​statute/​finalfra​.htm. 14 See Review Conference of the Rome Statute of the International Criminal Court, 11-E-011110, 31 May–11 June 2010, at 2, 6, available online at https://​asp​.icc​-cpi​.int/​iccdocs/​asp​_docs/​ASP9/​OR/​RC​-11​ -Part​.I​-ENG​.pdf. 15 See e.g., R. Cryer, ‘International Criminal Law vs. State Sovereignty: Another Round’, 16 European Journal of International Law (2005) 979–1000, at 989 (noting that ‘political contestation over the substance of international criminal law was clearly in evidence in Rome’ and citing other works discussing such contestation). 16 See Zimmerman, supra note 4, at 130 (citing the fact that ‘not all of the conventions providing a possible basis for such “treaty crimes” have found sufficient international acceptance and thus could not be considered as reflecting customary international law’ as the ‘main reason’ for the exclusion of treaty crimes); D. Nsereko, ‘The International Criminal Court: Jurisdictional and Related Issues’, 10 Criminal Law Forum (1999) 87–120, at 93; J. Pejic, ‘Creating a Permanent International Criminal Court: The Obstacles to Independence and Effectiveness’, 29 Columbia Human Rights Law Review (1998) 291–354, at 311; R. Wilson, ‘A Permanent International Criminal Court: Soon to Be a Reality’, 4 Human Rights Brief (1997) 1, at 7, available online at http://​digitalcommons​.wcl​.american​.edu/​hrbrief/​vol4/​iss2/​ 1/​. 17 P. Kirsch and J. Holmes, ‘The Rome Conference on an International Criminal Court: The Negotiating Process’, 93 American Journal of International Law (1999) 2, at 7 n.19. 18 At the time, the closest an international instrument had come to defining terrorist was the International Convention on the Suppression of Terrorist Bombings. See International Convention on the Suppression of Terrorist Bombings, UN Doc. A/RES/52/164, 12 January 1998. Since that time, the Appeals Chamber of the Special Tribunal for Lebanon has offered a definition of terrorism. See Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, STL-11-01/I, 16 February 2011, §§ 145–148, available online at https://​www​.stl​ -tsl​.org/​sites/​default/​files/​documents/​legal​-documents/​stl​-casebooks/​STL​_Casebook​_201​_EN​.pdf. As Neil Boister notes, some treaty crimes, such as drug trafficking, do have internationally accepted definitions. See N. Boister, ‘Treaty Crimes, International Criminal Court?’, 12 New Criminal Law Review (2009) 341–365, at 346. 13

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54  The Elgar companion to the International Criminal Court difficulty of distinguishing between terrorist groups and liberation movements,19 international law has struggled to find a definition of terrorist crimes that enjoys widespread acceptance.20 Existing international agreements have avoided this problem by leaving to states the particulars of a definition,21 but for a penal statute prescribing international jurisdiction, a clear definition would be required under the principle of nullem crimen sine lege, nulla poena sine lege.22 Opposing accounts, meanwhile, counter this argument by noting that the lack of a uniform definition was a feature of the crime of aggression, too, and the Rome Statute drafters found a way to both include aggression in the jurisdiction of the Court and to take the time needed to formulate an accepted definition of aggression.23 Second, scholarly narratives and accounts of delegates at the time focus on questions of practicality. These accounts ask whether the ICC would be overburdened by having too many crimes in its jurisdiction; whether national prosecutions, coordinated through international treaties, could adequately deal with the problems posed by the treaty crimes; and whether subjecting the treaty crimes to prosecution in the ICC could in fact complicate and ultimately impede efforts to deal with these acts.24 Ultimately, the prevailing view was that ‘other arrangements already exist for dealing with’ the treaty crimes, which ‘can best be handled by national courts and state-to-state mutual assistance’.25 This was especially the narrative around drug-trafficking crimes, despite the fact that smaller states urged that international assistance was needed in order to combat large-scale drug operations.26 Indeed, this was the concern that jump-started discussions on an international criminal court in 1989,27 and continued to be an

UN Press Release, supra note 7 (noting call by representatives of Lebanon, Libya, and Qatar for ‘a distinction between terrorism and the struggle for national liberation and self-determination, a right long-recognized in United Nations fora’ and comments by representative of Pakistan that ‘occupying powers had always sought to suppress liberation movements by designating their activities as “terrorist”’). 20 See Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN Doc. A/51/22, (1996), §§ 104, 107, available online at https://​www​.legal​-tools​.org/​doc/​e75432/​pdf/​ ; P. Wertheim, ‘Should “Grave Crimes of International Terrorism” be included in the Jurisdiction of the International Criminal Court?’, 22 Policy and Society (2003) 1–21, at 1, 3. 21 See A. Rubin, ‘Legal Response to Terror: An International Criminal Court?’, 43 Harvard International Law Journal (2002) 65–70, at 66–67. 22 See Y. McDermott, Fairness in International Criminal Trials (Oxford: Oxford University Press, 2016), at 98 (discussing legality principle and the definition of terrorism in the Special Tribunal for Lebanon). 23 See Rome Statute, Art. 5(2). 24 See W. Schabas, The International Criminal Court: A Commentary on the Rome Statute (1st edn., Oxford: Oxford University Press, 2010), at 117; D. McGoldrick, ‘Criminal Trials Before International Tribunals: Legality and Legitimacy’, in D. McGoldrick et al. (eds), The Permanent International Criminal Court: Legal and Policy Issues, Vol. 5 (London: Hart Publishing, 2004) 9, at 42–43; M. Morris, ‘Terrorism: The Politics of Prosecution’, 5 Chicago Journal of International Law (2005) 405–421, at 418–419 and n.38; H. von Hebel and D. Robinson, ‘Crimes Within the Jurisdiction of the Court’, in R. Lee (ed.), The International Criminal Court: The Making of the Rome Statute (Hague-London-Boston: Martinus Nijhoff, 1999) 79, at 81; see also, e.g., Cummins and Stewart, supra note 9 (noting comments of representative of France that ‘terrorism was better addressed through national prosecution and inter-governmental cooperation’). 25 Nsereko, supra note 16, at 93–94. 26 See Report of the Ad Hoc Committee, supra note 5; UN Diplomatic Conference, supra note 5. 27 See International Criminal Responsibility of Individuals and Entities Engaged in Illicit Trafficking in Narcotic Drugs Across National Frontiers and Other Transnational Criminal Activities: Establishment 19

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Contestation and inevitability in the crimes of the International Criminal Court  55 argument pursued by these states throughout the negotiations.28 By contrast, those who supported an international criminal court for such crimes as terrorism and drug trafficking emphasized that states could not handle prosecutions, whether because states were often involved as perpetrators or accomplices of the crimes, or because of difficulties in the practicalities of prosecution, such as gathering evidence.29 Third, the debate over which crimes were subject to the jurisdiction of the ICC centered on whether the nature of treaty crimes was distinct from that of the core crimes. In the account that ultimately prevailed, while the core crimes are the most serious crimes of concern to the international community as a whole,30 in the words of the Rome Statute, the treaty crimes are something less—or at least something different. This assessment has two dimensions, which correspond to the two phrases of the Rome Statute’s description of the crimes under its jurisdiction. First, the treaty crimes were judged to be ‘not “as serious” as genocide, crimes against humanity, and war crimes’.31 The core crimes are uniquely ‘heinous … in their intrinsic nature’.32 Moreover, they are deemed ‘the most harmful transgressions of legal standards of behavior perpetrated by individuals’.33 The rest are less harmful, less egregious. In the words of William Schabas, ‘the absence of treaty-based crimes dealing with terrorism and drug trafficking speaks volumes. The Rome Statute creates a presumption that such crimes do not belong to the most serious.’34 Second, the core crimes were thought to transcend both the individual victim and the state and instead are of interest to ‘the international community as a whole’.35 They ‘shock the

of an International Criminal Court with Jurisdiction over Such Crimes, Doc. A/Res/44/39, 4 December 1989 (calling for the ILC to consider the question of whether to establish an international criminal court to deal with drug crimes, among others). 28 See UN Diplomatic Conference, supra note 5 (comments of numerous delegates calling for the inclusion of drug-trafficking crimes under the jurisdiction of the Court). 29 See e.g., Morris, supra note 24, at 405. 30 Rome Statute, Preamble and Art. 5; see also ibid. Art. 1 (asserting the ICC ‘shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern’); ibid. Art. 51 (declaring the Court’s jurisdiction ‘shall be limited to most serious crimes of concern to the international community as a whole’, namely genocide, crimes against humanity, war crimes, and aggression); see also Report of the International Law Commission on the Work of its Forty-Sixth Session, Topical Summary of the Discussion Held in the Sixth Committee of the General Assembly During its Forty-Ninth Session Prepared by the Secretariat, Addendum, UN Doc. A/CN.4/464/Add.1, 22 February 1995, § 81, available online at http://​legal​.un​.org/​docs/​?symbol​=​A/​CN​.4/​464/​Add​.1; R. Lee, ‘Introduction’, in The International Criminal Court: The Making of the Rome Statute (Hague-London-Boston: Martinus Nijhoff, 1999) 1, at 2. 31 Schabas, supra note 24, at 117 (quoting N. Boister, ‘The Exclusion of Treaty Crimes from the Jurisdiction of the Proposed International Criminal Court: Law, Pragmatism, Politics’, 3 Journal of Armed Conflict Law (1998) 27–44, at 27). 32 Nsereko, supra note 16, at 93. 33 Cassese, supra note 2, at 20. 34 Schabas, supra note 24, at 108. 35 Rome Statute, Preamble, § 4; see also J. Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions (Oxford: Oxford University Press, 2008), at 1 (‘international rules governing criminal prosecution of the core crimes differ from ordinary crimes in as much as they protect, in addition to the interests of individuals, the interests of the international community and, indeed, humanity as a whole’.); Nsereko, supra note 16, at 93. The Eichmann decision also reflects a similar understanding of the predecessors of the crimes under the Rome Statute. See Supreme Court of Israel, 336/61 Attorney General of Israel v. Eichmann, reprinted in 36 International Law Reports 77, 293.

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56  The Elgar companion to the International Criminal Court conscience of humanity’ in their egregiousness, and they ‘threaten the peace, security and well-being of the world’.36 The treaty crimes, in contrast, are understood to be an appropriate subject for legal intervention at the international level because coordination across states facilitates their repression. But the regulation ultimately takes place at the domestic level, and the concern is ultimately at the domestic level. In contrast, for genocide, crimes against humanity, war crimes, and aggression, the concern—and the outrage—exist at the international level. Scholars and practitioners explain the basis of this international concern in a few different ways. Some characterize these crimes as offenses against the international community as a whole because they ‘threaten international values that undergird the foundations of the international community’.37 In Schabas’s words, ‘humanity as a whole is the victim’. International law thus recognizes its role in suppressing these crimes through international jurisdiction because ‘the international community as a whole’—and not merely the state and its people— has an interest in these crimes.38 This conception of the core crimes incorporates the concept of jus gentium, the ‘law of nations and peoples’, which is ‘founded on the unarticulated premise that there exists a certain community of nations and peoples whose values and interests needed to be protected’.39 George Fletcher explains that the core crimes are ‘wrongs in a universal sense’, as opposed to in a ‘parochial’ sense, an explanation that seems to recall notions of malum in se and malum prohibitum. Fletcher explains that this sense of universalism refers to ‘crimes that are “wrong in themselves” and which could reasonably be expected to appear wrong to all legal systems’, while ‘parochial’ crimes are those that states choose to punish because of ‘self-interest’.40 Whereas treaty crimes are addressed under international law because of states’ individual interests in repressing those acts and their need to cooperate with others in doing so, the core crimes, he explains, merit attention from international criminal law because of an assessment that they are wrongs to all humankind, and their punishment ‘express[es] a commitment to justice for all persons’.41 The very fact that the subject-matter jurisdiction of the Court was debated indicates the contestation around the question of the Court’s subject matter. It was not predetermined. But at the same time, there is a tone of inevitability that surrounds some accounts of the Court’s jurisdiction. In this third dimension of difference, the core crimes are cast as inherently different from all other crimes. There might be room for disagreement around whether states can adequately prosecute drug trafficking crimes, or around whether terrorism can be defined with the specificity sufficient for criminal accountability. But there is no room for disagreement around the question of whether there is something special about genocide, crimes against humanity, war crimes, and aggression, and as a result, there was no question that the ICC ultimately would be built around these four.

Rome Statute, Preamble, at §§ 2–3. Nsereko, supra note 16, at 93. 38 Ibid., see also Boister, supra note 18, at 346–347 (‘Any amendment to include treaty crimes within the ICC’s jurisdiction will have to overcome the problem that many states at Rome considered the treaty crimes, in the absence of an additional criterion of seriousness, to be too trivial for an ICC with a jurisdiction reserved for the most serious crimes of international concern’.). 39 Bassiouni, supra note 2, at 138. 40 G. Fletcher, ‘Parochial versus Universal Criminal Law’, Journal of International Criminal Justice (2005) 20–34, at 25. 41 Ibid. 36 37

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Contestation and inevitability in the crimes of the International Criminal Court  57

4.

REALIZING THE INEVITABLE

These narratives of the ICC’s subject-matter jurisdiction largely focus on the status of the crimes—whether there are worthwhile lines to be drawn between types of crimes, where those lines should be drawn, and why. Another way to think about the Court’s subject-matter jurisdiction would focus on the actors’ decision to draw the lines in the way they did, and the significance of those choices. In this regard, a complementary framing would focus on how the act by the drafters of the Rome Statute of designating the subject-matter jurisdiction of the Court as limited to these four crimes contributes to their status as different from all others. While the decision to exclude other crimes rested in part on an assessment that the core crimes were distinct in their seriousness and effect on all of humanity, we can also read the decision to craft the Rome Statute in this way as creating that special status. The choice of what conduct to criminalize is one of the most basic functions of a sovereign, and it is a question that has preoccupied criminal law theorists widely at the domestic level, but less so at the international level. The threshold question of what conduct should be criminalized is often answered by reference to either the harm principle, or principles of morality.42 In the realm of international criminal law, whether the conversation is limited to the core crimes or includes the treaty crimes as well, it is difficult—whether because of the scale of the crimes, or the motivation of the crimes, or the cruelty of the crimes—to deny the harm, and in most cases the immorality, of the particular act in question; or the harm or immorality question is taken as so obviously sufficient that it seems almost beside the point, or at least not any helpful limiting principle. A second way to think about criminalization is through what Victor Tadros describes as a ‘comparative’ approach, one that ‘investigate[s] whether criminalization is permissible given the alternatives available’. That is, rather than asking what basis the sovereign has for imposing the evil of criminal punishment, this approach asks whether criminalization is appropriate ‘given the other possible things that we could do in response to that conduct, including nothing’.43 Accordingly, criminal punishment is appropriate when alternatives to punishment are insufficient to accomplish the goals sought to be achieved.44 Decisions of a sovereign about criminalization are at their heart decisions about what policy instrument should be used to achieve particular goals.45 And a decision to criminalize reflects an assessment that other policy instruments cannot properly achieve, or are not prop-

See e.g., R. Duff and S. Green, ‘Introduction: The Special Part and its Problems’, in R. A. Duff and S. Green (eds), Defining Crimes: Essays on the Special Part of the Criminal Law (Oxford: Oxford University Press, 2005) 1, at 4. 43 V. Tadros, ‘Criminalization and Regulation’, in R. Duff et al., The Boundaries of the Criminal Law (Oxford: Oxford University Press, 2010) 163, at 163–164. 44 Ibid. 45 See, e.g., Duff and Green, supra note 42, at 26–27 (‘Legislators deciding what kinds of conduct they should formally criminalize, and officials deciding whether to treat as criminal conduct that has been formally criminalized, and citizens deciding whether to mobilize the criminal law in response to formally criminal conduct that they have suffered or witnessed, all face choices not between criminalizing and doing nothing, but between criminalizing and a range of other possible responses; a theory of criminalization must have something to say about the kinds of principle or consideration that should guide such choices’.). 42

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58  The Elgar companion to the International Criminal Court erly achieving, those goals. Thus, the decision to assign the ICC jurisdiction over these four crimes represents on its own an acknowledgment that the other alternatives pursued up until that point—whether regulation through treaties such as the Genocide Convention or human rights instruments, or even prosecution in ad hoc international or hybrid tribunals—had not adequately succeeded in the goals those decision-makers had set out to fulfill.46 And in so choosing, the drafters of the Rome Statute took their own step to confer on the core crimes a special status, in a way realizing the destiny that so many commentators and participants in the negotiations foresaw. Indeed, the drafters were not simply responding to some inherent special status held by the core crimes. Instead, by designating the Court’s subject-matter jurisdiction in the way they did, they were branding those crimes as different and creating that inherent special status. The status is demonstrated, as discussed above, through the implication that the conventional approaches to regulation under international law—bilateral or multilateral treaties, sanctions, or reputational sanctions—are deemed insufficient by the drafters of the Rome Statute. This, in turn, confirms the intuition that certain acts such as terrorism or drug trafficking are adequately addressed through forms of international law other than criminal prohibitions. The reasons for that decision, however, are varied. In the account of some of the delegates, it is because those acts are well addressed through national law. For others, it is because the acts are deemed insufficiently international, in the sense that the harms they cause, or the principles they jeopardize, are deemed particular to the state rather than felt by all humanity.47 To still others, it is because they are insufficiently serious. That is not to say that other acts are not deemed to be wrongs that cause harm. To be sure, terrorism and drug trafficking are not condoned under international law, as they are recognized as prohibited under certain treaties. But they are not designated crimes that merit the threat of criminal prosecution regardless of a state’s consent to a particular statute. And in that regard, they are different from the core crimes that the drafters of the Rome Statute designated as special. Moreover, thinking in this regard about the crimes through the lens of the actors’ decision to criminalize shifts the focus of the inquiry. One might ask, for example, what it is that is being elevated to the top of the hierarchy. Is it any acts that fall into the categories of the four core crimes, or is it only those that fall within those categories that qualify as the most serious of concern to the international community? That is, as we think about the crimes of greatest seriousness, does the inquiry not end with the text of the Statute, but instead venture further into the life of the Court, such that the prosecutions that are pursued reflect the top of the hierarchy, while those that do not, especially for lack of gravity, are left behind, perhaps somewhere in the ranking between those that are prosecuted and the treaty crimes that were not of sufficient seriousness to make it into the Statute? Beyond that, we might ask what the political significance is of the additional limits that are incorporated into the definitions of crimes. Genocide, for example, takes on a new limitation through the elements of crimes, for it now requires that the conduct occurred ‘in the context

46 Cf. Tadros, supra note 43, at 163–64 (proposing a ‘comparative’ approach to criminalization that asks ‘whether criminalization is permissible given the alternatives available, … including nothing’). 47 See supra text accompanying notes 37–40. For an analogous discussion in domestic law of the implications of addressing an act through tort law or criminal law, see e.g., A. Harel, ‘Public and Private Law’, in M. Dubber and T. Hörnle (eds), The Oxford Handbook of Criminal Law (Oxford: Oxford University Press, 2014); Duff and Green, supra note 42, at 8–9.

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Contestation and inevitability in the crimes of the International Criminal Court  59 of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction’.48 This may simply reiterate the requirement that prosecutions focus on ‘the most serious crimes of concern to the international community as a whole’, but the fact that it is delineated as an additional element suggests a hard limit, separate from the gravity threshold. The Rome Statute grants jurisdiction over war crimes ‘in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes’.49 The definition of crimes against humanity has been narrowed to require, among other things, that the attack be pursuant to or in furtherance of a state or organizational policy. More generally, because states were planning a court that might target their own, they were more in favor of limited definitions that would restrain the prosecutor, instead of leaving the decisions more to the courts as was done at Nuremberg, or even the ICTY and ICTR.50

5.

A NEW FRAMEWORK FOR WORLD ORDER?

A second set of considerations prompted by an evaluation of the crimes under the jurisdiction of the ICC concerns the framework of international order established, or at least strived for, by the drafters of the Rome Statute. At the most basic level, the ICC is distinct from the ad hoc international criminal tribunals because it is an independent judicial body. The ICTY and ICTR were creations of the UN system. They were established by Security Council resolutions, pursuant to Chapter VII of the Charter. Accordingly, the creation of the ad hoc tribunals constituted ‘action with respect to the peace, breaches of the peace, and acts of aggression’.51 The ICC, by contrast, exists as a separate treaty regime, with a relationship to the United Nations, but one that does not give any UN organs complete control over its activities. Focusing our attention on the crimes, however, brings our gaze to another dimension of institutional distinction. In particular, the crimes under the Court’s jurisdiction from the outset of its existence—genocide, crimes against humanity, and war crimes—are united in their central preoccupation with harm to individuals, or to groups of individuals, as opposed to states. The concern is about human life, not about state sovereignty.52 This is not to say that it does away with sovereignty; to be sure, the ICC is a creation of a state system, it relies

Rome Statute, Art. 6(a)–(e). See Rome Statute, Art. 8; see also International Committee of the Red Cross: Statement of 8 July Relating to the Bureau Discussion Paper (A/CONF.183/C.1/L.53), UN Doc. A/Conf.183/INF/10, 13 July 1998, available online at https://​www​.legal​-tools​.org/​doc/​935f07/​pdf/​(noting that ‘no such threshold exists in humanitarian law’, and that ‘every serious violation of the law is a war crime which States have the obligation to repress’, but noting that ‘ICRC understands the wish of a number of nations to accept’ the language because of ‘fear that the Court might be overloaded with cases’). 50 See B. Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (Oxford: Oxford University Press, 2003), at 31; R. Higgins and C. Rosalyn, ‘International Law in a Changing System’, 58 Cambridge Law Journal (1999) 78–95, at 87–88 (noting that the ICC ‘appears a much weaker body than the existing criminal courts and much more heavily subject to political control … regarding the formulation of what will constitute the relevant legal offenses’). 51 Ch. VII UN Charter. 52 See C. Tomuschat, ‘The Legacy of Nuremberg’, 4 Journal of International Criminal Justice (2006) 830–844, at 840 (‘Today, individual criminal responsibility is the unchallenged cornerstone of the entire edifice of international criminal law.’). 48 49

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60  The Elgar companion to the International Criminal Court on a state system, and it reinforces the state system. But its central founding principle is not protection of the state system. Instead, it is the human rights principle of protection of human life and dignity. This is a massive shift from the United Nations, the central rule of which is the prohibition on a state’s use of non-defensive force against another state absent Security Council authorization.53 And it not only demonstrates a new set of concerns at the forefront of the institution; it demonstrates the shaky ground upon which stands that central founding principle of the United Nations, or at least one version of it. That is, by the time the Rome Statute is adopted, the criminal-law incarnation of that central prohibition against the use of non-defensive force was the most controversial aspect of the Court’s jurisdiction ratione materiae. There are, to be sure, many reasons for the controversy. Some would say it is because the prohibition against the use of force has been poked through with so many holes that the prohibition hardly exists anymore. Some would say it is because the rule against aggression is best formulated as a prohibition of state action, and so is an odd fit for individual criminal liability. But whatever the rationale, it is clear that to the extent the Rome Statute defines a new way of thinking about the relationships among states in the world, it is a way that is entirely different from the previous. And it is different not merely in its shift to individual accountability as opposed to state responsibility, or even in its approach to sovereignty, as some would argue. Rather, the world order that the drafters of the Rome Statute and the crimes under its jurisdiction sought to create is distinct in its understanding of individual harms, as opposed to harms against states, as central to the organization of world order. Leila Sadat writes that the drafting of the Rome Statute was a ‘quasi-legislative event that produced a criminal code for the world’.54 Although some will of course disagree with the descriptive accuracy of this statement, given the limits of the Rome Statute’s jurisdictional (and political) reach, it is worth noting that this event was one built not merely around prohibitions for individuals as opposed to states, but around protections for individuals as opposed to states. Moreover, the most controversial feature of the Rome Statute was the crime against aggression, which in its non-criminal prohibition form was the cornerstone of the UN system. Accordingly, the crimes subject to the jurisdiction of the ICC are significant not only for what they tell us about the reach of the Court’s coercive power, but also for what they tell us about a structure to the world order that the drafters of the Rome Statute, if successful in creating such a new order, would create.

6.

LEGITIMACY THROUGH CONTESTATION

Finally, examining the narratives surrounding the adoption of the crimes in the Rome Statute with a consideration of other frameworks for evaluating these crimes invites an opportunity to assess what impact these narratives might have on the implications considered. This section

53 See Art. 2(4) UN Charter. For discussions of the status of the UN Charter’s prohibition on the use of force, as well as on the aggression prohibition in the ICC, see T. Franck, Recourse to Force: State Action Against Threats and Armed Attacks (Cambridge: Cambridge University Press, 2002), at 174–191; Schabas, supra note 24, at 310–311. 54 L. Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium (Hague-London-Boston: Martinus Nijhoff, 2002), at 263.

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Contestation and inevitability in the crimes of the International Criminal Court  61 posits that the narrative of contestation contributes to a reinforcement of the sociological legitimacy of the Rome Statute.55 And as a result, the dynamics that result from the adoption of the crimes might be taken more seriously, as they are lent a legitimacy of their own. The process of drafting the Rome Statute was, like other treaties, a process without any formal power at the apex of the hierarchy. Scholars have argued that the ICC derives legitimacy in part from the broad and inclusive negotiation process leading to the adoption of the Rome Statute, which included not only states, but also a wide range of non-governmental organizations.56 I draw here from the work of Moshe Cohen-Eliya and Iddo Porat, who adopt the concepts of ‘culture of justification’ and ‘culture of authority’57 from the work of Etienne Mureinik.58 To Cohen-Eliya and Porat, ‘a culture of justification requires that governments should provide substantive justification for all their actions’,59 whereas a culture of authority ‘is based on the authority of the government to exercise power’.60 They refer to justification to mean ‘rationality and reasonableness of every action and the trade-offs that every action necessarily involves, i.e., in terms of proportionality’,61 but the broader point may be taken that the legitimacy of the Rome Statute depended at least in part on the process that led there. Accordingly, the narratives of contestation, as opposed to inevitability, contribute to the sense that the crimes adopted for jurisdiction in the Rome Statute are a legitimate representation of the views of the international community, that it can be taken as something more than the whims or preferences of the few or the powerful. And because of that legitimacy that may derive from those narratives of contestation, the implications of the drafters’ decisions—the conferral of status on the four crimes and the potential new world order the drafters sought to create around harms to human life—take on a different significance from the one they would carry if the predominant narrative were one of inevitability, where the process is mere window dressing around what was a foregone conclusion. Ultimately, the crimes adopted at the Rome Statute represented the end of a long and circuitous process, and the beginning of another long road, of interpretation, application, and even, perhaps one day, possible emendation. This chapter offers thus only a small piece of the discussion that could be had about any of these topics, but it offers these thoughts about narrative, the implications of the drafters’ choices, and the ways in which those narratives can alter our perspectives on both the crimes and their implications, as a way of highlighting the importance of the narratives put forward about the Court and its creation not only for its operation, but also for the understanding of its operation by its observers.

55 See A. Buchanan and R. Keohane, ‘The Legitimacy of Global Governance Institutions’, in R. Wolfrum and V. Röben (eds), Legitimacy in International Law (Berlin-Heidelberg-New York: Springer, 2008) 25–62, at 25. 56 See e.g., M. Struett, The Politics of Constructing the International Criminal Court (New York: Macmillan, 2008), at 154. 57 M. Cohen-Eliya and I. Porat, ‘Proportionality and the Culture of Justification’, 59 American Journal of Comparative Law (2011) 463–490, at 463. 58 E. Mureinik, ‘A Bridge to Where? Introducing the Interim Bill of Rights’, 10 South African Journal on Human Rights (1994) 31–48, at 31. 59 Cohen-Eliya and Porat, supra note 57, at 466. 60 Ibid. at 475. 61 Ibid. at 466–467.

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4. Admissibility as a theory of international criminal law Alexander K. A. Greenawalt

Admissibility is a procedural requirement at the International Criminal Court (ICC). Even when every jurisdictional prerequisite for the Court to pursue a particular situation or case has been met—the matter has been properly referred and there is sufficient evidence of crimes falling within the Court’s subject matter and temporal jurisdiction—the situation or case may nevertheless be inadmissible for one of two basic reasons. One reason—known as the ‘complementarity’ principle—is that investigation or prosecution at the national level precludes the ICC from proceeding. The other reason is that the alleged crimes lack sufficient gravity. As a practical matter, inadmissibility works very much like a jurisdictional deficit—the Court may not proceed with a situation or case determined to be inadmissible. The concept of admissibility, however, conveys a greater degree of judicial discretion than does jurisdiction. For instance, even in the absence of a jurisdictional challenge, the ICC Statute nevertheless obligates the Court to assure itself of its own jurisdiction. With respect to admissibility, this sua sponte authority is discretionary. As the Statute provides: ‘the Court shall satisfy itself that it has jurisdiction in any case brought before it. The Court may, on its own motion, determine the admissibility of a case.’1 All of this sounds very technical, but admissibility is one of the most fundamental and mysterious aspects of the ICC’s structure. Most obviously, admissibility defines the ICC’s status as a ‘court of last resort’, one that operates quite differently from predecessor international criminal tribunals. The other tribunals—the post-World War II International Military Tribunals in Nuremberg and Tokyo, the ad hoc UN tribunals for the former Yugoslavia and Rwanda respectively, and hybrid tribunals such as those established for Sierra Leone, Cambodia, and Lebanon—have all exercised so-called ‘primary jurisdiction’, allowing them to pursue prosecution without regard to whether or not a state with jurisdiction has shown itself willing and able to pursue the case.2 And while some of these tribunals have acted under formal mandates to pursue leadership figures and/or those bearing greatest responsibility for

Art. 19 ICCSt. Indeed, the first international criminal trial since World War II focused on a suspect arrested in Germany on suspicion of having committed international crimes in Bosnia. Germany surrendered the accused—Duško Tadić—to the ICTY after the latter Court—at its Prosecutor’s request—lodged a formal request to Germany asking the state to defer to the competence of the ICTY. The Chamber making the request ‘found that both sets of investigations involved the same crimes and that, in addition, the International Tribunal would not be acting in the proper interests of justice if some of the alleged co-offenders of these serious violations of international humanitarian law were to be judged in national courts and others by the International Tribunal’. Decision of the Trial Chamber on the Application by the Prosecutor for a Formal Request of Deferral, Tadić (IT-94-1), Trial Chamber 8 November 1994, at § 8. 1 2

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Admissibility as a theory of international criminal law  63 the crimes in question,3 none have had a general standalone gravity requirement like that at the ICC. As might already be apparent, admissibility plays a crucial role in defining the mission of the ICC, both as regards the general scope of its efforts, and as regards the relationship between international and domestic institutions. The trouble is that the Statute defines these parameters only in general strokes, leaving open some of the most critical and disputed questions to be resolved though judicial determination and prosecutorial discretion. With respect to complementarity, the result is in some ways a turning of the tables. The idea of complementarity conveys a respect for state sovereignty far more deferential than that achieved through the model of primary jurisdiction. But the very necessity of applying the complementarity standard of making judgements about its meaning, of setting standards for state compliance, and of applying those standards in concrete scenarios—means that, in many cases, it is a state’s justice system that is on trial and not just the individual accused. In some cases, moreover, the determination requires fundamental social policy judgements that complicate the rationale of the ICC as a supranational institution whose legitimacy derives from its exercise of legal— rather than political—judgment. More broadly, the ICC admissibility criteria resonate with theoretical justifications for the very existence of international criminal law (ICL) as a distinct field. As I have argued elsewhere, perhaps the most compelling justification for ICL rests not on any strict conceptual distinction between domestic and international crimes, but on a division of labor between international and domestic authority in shared pursuit of universal human dignity.4 Pursuant to this division of labor, international institutions like the ICC have arisen to supplement domestic efforts with respect to certain especially grave offenses that have resisted effective enforcement at the domestic level as a result of states being either unwilling or unable to prosecute them. On this account, the ICC’s admissibility criteria roughly parallel the underlying qualities that have driven the recognition and definition of the core international offenses—genocide, crimes against humanity, war crimes, and aggression—that have seen enforcement through international criminal prosecution. Some notion of admissibility, in other words, lies already embedded in ICL itself.

3 See Art. 1(1) Statute of the Special Court for Sierra Leone (‘The Special Court shall … have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996’); Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments as promulgated on 27 October 2004, Art. 2 (‘Extraordinary Chambers shall be established in the existing court structure, namely the trial court and the supreme court to bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian laws related to crimes’). In the case of the ICTR and ICTY, there was no such statutory mandate, but both tribunals eventually adopted such a strategy with UN Security Council encouragement, and transferred some cases involving lower-level suspects to national jurisdiction. See SC Res. 1503 (2003) (‘endors[ing] the ICTY’s strategy for completing investigations by … concentrating on the prosecution and trial of the most senior leaders suspected of being most responsible for crimes within the ICTY’s jurisdiction and transferring cases involving those who may not bear this level of responsibility to competent national jurisdictions, as appropriate, as well as the strengthening of the capacity of such jurisdictions’, and ‘[u]rging the ICTR to formalize a detailed strategy, modelled on the ICTY Completion Strategy’) (internal citations omitted). 4 A. K. A. Greenawalt, ‘What Is an International Crime?’ in K. Heller et. al. (eds), The Oxford Handbook on International Criminal Law (Oxford: Oxford University Press, 2020) 293–316, at 296–99.

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64  The Elgar companion to the International Criminal Court This connection between the ICC admissibility requirements and the broader theory of ICL presents an additional wrinkle for the operation of the ICC because it reveals that there are different ways to safeguard the values that the admissibility requirements ostensibly advance. Consider, for example, the case of crimes against humanity which the ICC Statute defines by reference to certain enumerated acts committed as a part of a ‘widespread or systematic attack directed against any civilian population’ where the attack is ‘pursuant to or in furtherance of a state or organizational policy’.5 A strict reading of what counts as ‘widespread’, ‘systematic’, or a ‘State or organizational policy’, diminishes the relevance of the Rome Statute’s gravity requirement by focusing the Court’s jurisdiction on offenses that already exhibit heightened gravity. By contrast, a looser interpretation of crimes against humanity (say one that extends to ordinary gang violence) puts pressure on the gravity requirement to distinguish the more serious cases from the less serious.6 Alternately, the Court might adopt a permissive approach to both gravity and the substantive crimes. In that event, the danger of overreach will be entrusted to regulation primarily through prosecutorial discretion. For example, the Court might take the view that its Prosecutor is better suited than its judges to determine which offenses are most appropriate for prosecution at the domestic level. Finally, there is the institutional allocation of authority over admissibility itself. Whatever the legal test for admissibility might be, should it operate primarily as a matter for judicial resolution, or should the Court instead adopt a deferential approach toward prosecutorial judgments about matters such as whether or not a state has taken adequate enforcement measures? There is also here the related question concerning what, if any, deference to afford to the UN Security Council’s assessments about the most appropriate judicial forum, especially in situations that have arrived at the Court by way of a UN Security Council referral invoking the Council’s own authority to decide on measures necessary to address threats to international peace and security.7 As this chapter explores, admissibility remains very much a work in progress at the ICC. While there are many open questions regarding the interpretation and application of admissi Art. 7 ICCSt. The ICC’s case law in the Court’s Kenya situation provides an illustrative example of the interpretive possibilities for the phrase of ‘organizational policy’ in the context of crimes against humanity. A two-judge Pre-Trial Chamber majority embraced the broad view that any organization with the capacity to commit organized violence could meet this requirement. Decision on the Confirmation of Charges Pursuant to Art. 61(7)(a) and (b) of the Rome Statute, Muthaura and others (ICC-01/09-02/11), Pre-Trial Chamber, 23 January 2012, § 112 (maintaining that the ‘the formal nature of a group and the level of its organization should not be the defining criterion’ and that ‘a distinction should be drawn on whether a group has the capability to perform acts which infringe on basic human values’) (internal quotation omitted). A dissenting judge, by contrast, argued that the Statute should be narrowly construed to include only those organizations that operate as functional equivalents of states. Decision on the Confirmation of Charges Pursuant to Art. 61(7)(a) and (b) of the Rome Statute, Dissenting Opinion by Judge Hans-Peter Kaul, Muthaura and others (ICC-01/09-02/11), Pre-Trial Chamber, 23 January 2012, § 7 (arguing that the ‘organizational policy’ requirement demands ‘an entity which may act like a State or has quasi-State abilities’) (internal quotation omitted). 7 See, e.g., G. Fletcher and J. Ohlin, ‘The ICC – Two Courts in One?’, 4 Journal of International Criminal Justice (2006) 428–33, at 431–32 (arguing that in the case of Security Council referrals that ‘greater weight [should be] given to the legal determinations made by the Council under its law-making authority, and supplanting the regular procedures of the ICC as a traditional criminal court operating under rules of admissibility’). 5 6

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Admissibility as a theory of international criminal law  65 bility, the Court’s practice to date affirms both the difficulties inherent in defining and enforcing admissibility standards, and the degree to which the formal admissibility requirements present only one incomplete means of advancing the broader values of complementarity and gravity. Indeed, if there is one overarching theme to the ICC’s experience with admissibility, it is the critical role that both prosecutorial and judicial discretion have played and will continue to play. In the pages that follow, I survey the Court’s experience with admissibility to date, and provide a critical analysis of the major doctrinal and policy questions that have arisen. Part 1 describes the relevant Rome Statute provisions on admissibility and situates them in their historical context. Part 2 addresses questions relating to complementarity and focuses on four important doctrinal questions: (1) the legitimacy of so-called ‘self-referrals’ by states that may be otherwise willing or able to prosecute but nevertheless prefer the ICC to do so instead, (2) the ICC’s so-called ‘same person/same conduct’ test for assessing when proceedings at the domestic level require deference by the Court, (3) the relevance of due process concerns at the domestic level, and (4) the implications of so-called ‘alternative justice’ measures at the domestic level. This Part also considers the role of prosecutorial discretion in managing the complementarity principle. Part 3 addresses the gravity threshold. It looks first to the Court’s elusive attempts to define a standard of gravity that is both normatively satisfying and judicially manageable. It then considers and assesses the ICC Prosecutor’s own public invocation of gravity as a reason not to pursue investigation in particular cases, as well as recent case law concerning the scope of judicial review over such exercises of discretion.

1.

ADMISSIBILITY AND THE ROME STATUTE

The idea that international criminal tribunals operate to complement national criminal jurisdiction is almost inherent in the very idea of ICL. Barring the unforeseeable day when international criminal justice institutions completely displace national institutions, ICL will continue to address only a (currently very small) subset of offenses and offenders. The history of ICL reveals different approaches to managing the relationship between international and national courts. When the international community has established tribunals on an ad hoc basis—as it did with the post-World War II international military tribunals in Nuremberg and Tokyo and the post-Cold War tribunals for the former Yugoslavia and Rwanda, the tribunals have operated on a system of ‘primary jurisdiction’. Their authority to try crimes within their jurisdictions has not depended on the existence or non-existence of efforts at the domestic level. To the extent these institutions have extended any de jure deference to national justice efforts, they have done so through limitations on the types of crimes and suspects subject to prosecution. By contrast, efforts to establish standing international tribunals of more general scope have reflected greater attention to the authority of national institutions. This contrast makes sense considering that ad hoc tribunals are the result of a determination by political actors that an international tribunal is appropriate for a particular situation. The establishment of an ad hoc tribunal, moreover, does nothing to disturb the prosecutorial authority of states not seeking to assert criminal jurisdiction over the specific events at issue. On the other hand, the establishment of a permanent tribunal with jurisdiction over future, as-of-yet unknown, situations will predictably raise greater concern about the protection of state sovereignty.

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66  The Elgar companion to the International Criminal Court Attempts to formalize a division of labor between national and international jurisdictions have taken different forms. As Mohammed El Zeidy has noted, the first attempt to establish a standing international criminal tribunal included a form of complementarity.8 The never-ratified 1937 League of Nations Convention for the Prevention and Punishment of Terrorism contemplated that states exercising custody over terrorism suspects would have enjoyed discretion either to prosecute the accused domestically, extradite the accused to another party to the Convention, or extradite the accused to an international tribunal for prosecution.9 The concept of complementarity as an admissibility requirement—paired also with a standalone gravity requirement—emerged first in the International Law Commission’s 1994 Draft Statute for an International Criminal Court.10 As set forth in this proposal, the power to declare a case inadmissible would have been entirely discretionary. The Draft envisions a Court that ‘may’ decide that a case is inadmissible on any of the following grounds: (1) a state with jurisdiction over the crime has reached an ‘apparently well founded’ decision not to prosecute following investigation, (2) the crime is under investigation by a state that does or may have jurisdiction, and there is ‘no reason for the Court to take any further action’, or (3) the case ‘is not of such gravity to justify further action by the Court’.11 Four years later, a more detailed and mandatory version of admissibility emerged in the Rome Statute of the International Criminal Court. The Statute lays out four grounds of inadmissibility, the first three of which comprise the complementarity requirement. These three grounds are broadly similar to each other in that they all demand deference to criminal proceedings at the national level provided certain requirements are met. The primary difference is that each addresses a different stage of the domestic criminal process. Article 17(a) deals with ongoing proceedings at the national level: it provides that a case is inadmissible when ‘[t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution’.12 Article 17(b) addresses the situation of completed investigations that do not lead to a trial. It provides that a case is inadmissible when ‘[t]he case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute’.13 Articles 17(2) and 17(3) supply additional guidance on the concepts of unwillingness and inability for these purposes. Article 17(2) requires the Court to consider whether any of three types of unwillingness exist while ‘having regard to the principles of due process recognized by international law’.14 The first situation is where the national proceedings ‘were or are

8 M. M. El Zeidy, ‘Origin and Genesis of Complementarity’, in S. Carsten and M. M. El Zeidy (eds), The International Criminal Court and Complementarity (Cambridge: Cambridge University Press, 2011) 91–104, at 69. 9 Draft Convention for the Creation of an International Criminal Court, League of Nations, 16 November 1937, Art. 2 (giving parties to the treaty the choice between prosecuting accused persons domestically and sending them to face trial before the international court). 10 International Law Commission, Draft Statute for an International Criminal Court, 22 July 1994 (hereafter: ILC Draft Statute). 11 Ibid. at Art. 35. 12 Art. 17(a) ICCSt. 13 Ibid. at Art. 17(b). 14 Ibid. at Art. 17(2).

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Admissibility as a theory of international criminal law  67 being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court’.15 The second situation is that of ‘unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice’, and the third situation is where the ‘proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice’.16 Article 17(3) addresses inability. It provides that ‘[i]n order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings’.17 So much for the first two grounds of complementarity. The third ground appears in Article 17(1)(c) which contemplates a scenario in which ‘[t]he person concerned has already been tried for conduct which is the subject of the complaint’.18 Such cases are inadmissible so long as ‘a trial by the Court is not permitted under Article 20, paragraph 3’.19 Article 20(3), in turn addresses the matter of double jeopardy (ne bis in idem) arising from a prior trial by a court other than the ICC. It provides, with two exceptions, that ‘[n]o person who has been tried by another court for conduct also proscribed [by the ICC Statute] shall be tried by the Court with respect to the same conduct’.20 The first exception applies when the proceedings in the other court ‘[w]ere for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court’.21 The second exception is when those proceedings ‘[o]therwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice’. Finally, the fourth ground of admissibility addresses a different sort of obstacle to ICC prosecution than that captured by the three complementarity prongs. Article 17(d) states that a case is inadmissible if ‘[t]he case is not of sufficient gravity to justify further action by the Court’.22 A judicial obligation to evaluate admissibility arises in different ways under the Statute. Individual accused persons are entitled to challenge the admissibility against them.23 A state is also entitled to challenge admissibility if the state is seeking deference to its own investigative or prosecutorial efforts.24 Moreover, in cases where the court’s jurisdiction hinges on the consent of a non-party state, that state is also entitled to challenge admissibility.25 Each such party has a right to challenge admissibility once, and the challenge must be filed before the

17 18 19 20 21 22 23 24 25 15 16

Ibid. Ibid. Ibid. at Art. 17(3). Ibid. at Art. 17(1)(c). Ibid. at Art. 17(3). Ibid. at Art. 20(3). Ibid. Ibid. at Art. 17(1)(d). Ibid. at Art. 19(2)(a). Ibid. at Art. 19(2)(b). Ibid. at Art. 19(2)(c).

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68  The Elgar companion to the International Criminal Court start of trial.26 The challenge will then be referred to the presiding Pre-Trial Chamber or Trial Chamber for decision.27 Notwithstanding the ostensible specificity of the Rome Statute, the still early practice of the ICC has raised many significant questions regarding the nature of the ICC’s relationship to domestic institutions. To a perhaps surprising extent, the text of the Rome Statute leaves fundamental aspects of this relationship undefined and dependent upon the evolving institutional practice.

2. COMPLEMENTARITY 2.A Self-Referrals The first major test for complementarity arrived with the—to many unexpected—practice of states referring their own situations to the ICC. The Court’s Statute permits States Parties to refer suspected crimes to the Court so long as the referral concerns crimes committed by a citizen of or on the territory of a state that has consented to jurisdiction either by joining the ICC or by filing a separate declaration expressing its consent.28 Of the ICC’s 11 situations under investigation, five commenced based on the referral of a State Party.29 And in all five cases, the State Party in question referred a situation involving crimes committed within its own territory.30 At first glance, this practice appears at odds with the complementarity requirement. How can one describe as unwilling or unable a state that has invited ICC investigation and even, in some cases, arrested accused persons and transferred them to the Court? But according to the now-settled jurisprudence of the Court, that question is moot. Such cases do not even trigger the unwilling or unable test because they reflect state inactivity. As the Appeals Chamber observed in the case of Prosecutor v. Katanga, ‘the question of unwillingness or inability of a State having jurisdiction over the case becomes relevant only where, due to ongoing or past investigations or prosecutions in that State, the case appears to be inadmissible’, but ‘in case of inaction, the question of unwillingness or inability does not arise’.31 To some experts, this result appeared to contradict the text of the Rome Statute, carving out a third, enumerated basis for complementarity authority beyond the two explicitly identified.32 The word, ‘inactivity’, after all, appears nowhere in the Rome Statute. Nevertheless, a close reading of Article 17 does indeed provide significant support for the Court’s position. 26 Ibid. at Art. 19(4). The Statute further provides that ‘In exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial.’ Ibid. 27 Ibid. at Art. 19(6). 28 Ibid. at Art. 14. 29 See International Criminal Court, ‘Situations Under Investigation’, available online at https://​ www​.icc​-cpi​.int/​pages/​situation​.aspx. 30 Ibid. 31 Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, Katanga (ICC-01/04-01/07 OA8), Appeals Chamber, 25 September 2009, § 78 (hereafter: Katanga Appeals Chamber Admissibility Judgment). 32 See e.g, W. Schabas, ‘Prosecutorial Discretion v. Judicial Activism’, 6 Journal of International Criminal Justice (2008) 731–61, at 757 (‘In Lubanga, the Pre-Trial Chamber invented a third prong: “inactivity”’).

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Admissibility as a theory of international criminal law  69 Consider Article 17(1)(a), which declares a case to be inadmissible where ‘[t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution’. The first precondition, as the Court in Katanga noted, is that the case is actually being investigated (‘activity’). Hence, the provision asserts no bar to admissibility where a state—for whatever reason—is not investigating or prosecuting. Thus, the most natural reading of Article 17(1)(a) supports the admissibility of a case that no state is investigating or prosecuting, even if the case belongs to a situation that the state which would normally be expected to assert jurisdiction has itself referred to the Court.33 Only in cases of actual state activity must the Court inquire into the willingness or ability of the state genuinely to investigate or prosecute. Note, however, that Article 17 does not limit itself to a present snapshot of state activity at the time of the admissibility determination. Article 17(1)(b) looks to the past, declaring inadmissible a case that ‘has been investigated by a State which has jurisdiction over it’ where ‘the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute’.34 Might the Democratic Republic of Congo’s (DRC’s) decision in that case to transfer Katanga to The Hague qualify itself as a decision ‘not to prosecute’ the accused? One possible answer is that the DRC did indeed reach a decision not to prosecute but the case remained admissible before the ICC on the ground that the DRC’s determination reflected a form of ‘unwillingness’ to prosecute. That indeed, was the approach taken by the Trial Chamber that originally rejected Katanga’s admissibility challenge.35 Yet the word ‘unwillingness’ suggests a form of blanket opposition that does not readily apply to a state that merely chooses to defer its jurisdiction in favor of another forum. (And indeed, in case of Katanga, the DRC reaffirmed its willingness and ability to prosecute when it lodged additional charges against the accused following the accused’s conviction by the ICC and eventual transfer to DRC custody.36) The ICC Appeals Chamber took a different approach when it upheld the Trial Chamber’s disposition of Katanga’s challenge. Noting in particular the ICC’s overarching goal ‘to put an end to impunity’, the Court reasoned that the DRC’s preference for ICC jurisdiction was simply not a ‘decision not to prosecute’ within the meaning of Article 17(1)(b). The result of course was the same: under either approach, the Rome Statute does not limit the practice of self-referral by states. As this outcome reveals, the common description of the ICC as a ‘a court of last resort’ does not entirely match current practice. In some cases, the ICC will assert jurisdiction because of a true failure at the domestic level. In other cases, however, a referring state may simply believe that ICC jurisdiction is preferable. And there are many reasons why international jurisdiction may indeed be preferable. It might be, for example, that a national prosecution 33 This view finds additional support from one of the principal drafters of Art. 17 of the ICC Statute. See D. Robinson, ‘The Mysterious Mysteriousness of Complementarity’, 21 Criminal Law Forum (Crim LF) (2010) 67–102, at 67. 34 Art. 17(1)(b) ICCSt. 35 Katanga Appeals Chamber Admissibility Judgment, at § 59 (noting that ‘The Trial Chamber found that there is also a second form of “unwillingness”, which is not expressly provided for in Article 17 of the Statute, [and which] aims to see the persons brought to justice, but not before national courts’ (internal quotations omitted)). 36 Decision pursuant to Art. 108 of the Rome Statute, Katanga (ICC-01/04-01/07), Presidency, 7 April 2016, § 4 (noting the DRC proceedings).

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70  The Elgar companion to the International Criminal Court would prove politically divisive, raise concerns about political bias, or tax investigative resources in a state that will simply not do as good a job as the ICC will. Or the case may raise issues—such as the plight of child soldiers presented in the Lubanga case—that benefit from the kind of global attention that the ICC is comparatively better situated to attract.37 At least in situations where the self-referring state and the ICC Prosecutor can agree on the desirability of recourse to an international tribunal, it makes sense to facilitate that choice. As Darryl Robinson has noted, moreover, a contrary interpretation that prevented the Court from accepting self-referrals would promote impunity in some cases by leading to inaction at both the national and the international level.38 The ICC, after all, cannot force states to pursue cases they choose not to pursue. Moreover, the concern that self-referrals will overburden the ICC by encouraging states to dump cases at the international court is mitigated by the fact that states likewise cannot force the ICC Prosecutor to pursue cases she does not wish to pursue.39 2.B

Same Person/Same Conduct

A separate—and arguably more important—set of questions focuses on what sorts of state activity preclude the admissibility of a case before the ICC. The doctrinal starting point for exploring these issues is the so-called ‘same person/same conduct’ test that the Court has followed since it issued its first arrest warrants.40 The ‘same person’ prong is straightforward: a national investigation or prosecution cannot restrain the ICC if the proceedings do not focus on the same person or persons who are the targets of the ICC’s case. The ‘same conduct’ prong has two aspects. First, even when national proceedings do focus on a person who is the target of an ICC case, the ICC case will remain admissible unless the national proceedings address substantially the same conduct that is encompassed by the ICC case.41 Second, a state that meets that requirement need not use the same legal language to describe that conduct as does the ICC case: for purposes of obtaining deference from the ICC, it is sufficient for the national legal system to prosecute the conduct as a domestic crime instead of an international crime.42

Judgment pursuant to Art. 74 of the Statute, Lubanga (ICC-01/04-01/06-2842), Trial Chamber, 5 April 2012. 38 Robinson, supra note 33, at 90. 39 Ibid. 40 Decision on the Prosecutor’s Application for a warrant of arrest, Article 58, Lubanga Dyilo, (ICC-01/04-01/06), Pre-Trial Chamber, 9 March 2006, § 31 (hereafter: Lubanga PTC Arrest Warrant Decision); Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute’, Muthaura and others, (ICC-01/09-02/11-274), Appeals Chamber, 30 August 2011, § 39 (hereafter: Muthaura Appeals Chamber Admissibility Judgment) (‘the national investigation must cover the same individual and substantially the same conduct as alleged in the proceedings before the Court’); Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b)’, Ruto (ICC-01/09-01/11-307), 30 August 2011, § 40 (Ruto Appeals Chamber Admissibility Judgment) (same). 41 Muthaura Appeals Chamber Admissibility Judgment, at § 39; Ruto Appeals Chamber Admissibility Judgment, at § 40. 42 See infra notes 48–49 and accompanying text. 37

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Admissibility as a theory of international criminal law  71 Each of these standards has a solid foundation in the Rome Statute’s text, yet they raise complications that might not be immediately apparent. The ‘same person’ requirement flows naturally from Article 17 which uses the word ‘case’ interchangeably with the phrase ‘person concerned’.43 But this mandate to determine admissibility on a person-by-person basis presents the ICC with challenging questions about how to view case selection at the national level. The prosecution of mass atrocities will often test limited resources, requiring prosecutors to set priorities among a large number of possible suspects and crimes. Suppose that a state attempts a fairly comprehensive investigation into international crimes but fails, for one reason or another, to target the particular person whom the ICC Prosecutor wishes to pursue. One might expect a complementarity framework to require a more general deference to the national efforts, at least so long as those efforts proceed in good faith without evident intent of shielding a person from justice. But the same person requirement preserves the admissibility of such a case, at least so far as the state cannot establish that it is either investigating the person or has made a decision not to prosecute within the meaning of Article 17(1)(b). The result is that a state cannot avoid the ICC’s intervention unless it is prepared to organize its own investigations and prosecutions to target the particular persons whom the ICC Prosecutor has chosen to investigate and prosecute. Managing such potential conflicts at the ICC level becomes largely a matter of prosecutorial discretion rather than formal admissibility. In this respect, the critical factor becomes not the admissibility requirement per se, but how to apply the Office of the Prosecutor’s (OTP’s) existing policy of targeting the small number of high-level individuals whom it deems ‘most responsible’.44 In many cases at least, the OTP policy will reduce the chances of conflict because states themselves are less likely to have legitimate reasons to avoid such prosecutions. A similar, albeit even more difficult, tension surrounds the ‘same conduct’ standard. As a general matter, it makes sense that the ICC should care about the conduct that is the focus of domestic proceedings. Imagine, for instance, that the ICC issues an arrest warrant accusing a head of state of crimes against humanity committed against a minority group and that the state in question challenges the admissibility of the case on the ground that it is investigating the same person on charges of public corruption. Perhaps the domestic investigation is serious, and offers a likelihood of substantial punishment similar to that expected from an ICC prosecution. If all that matters is individual incapacitation, then the domestic proceedings might provide an adequate substitute to international prosecution. But such proceedings fail to do many of things that an ICC trial might be expected to do, such as to bring justice to the victims of the crimes against humanity, expose the truth of what happened, express condemnation of those crimes, and, perhaps, deter such crimes in the future.45

Art. 17(1) ICCSt. ICC Office of the Prosecutor, Policy Paper on Case Selection and Prioritisation, 15 September 2016, available online at https://​www​.icc​-cpi​.int/​itemsdocuments/​20160915​_otp​-policy​_case​-selection​ _eng​.pdf. In 2019, the OTP released a new strategic plan that affirms its goal to prosecute the most responsible while also announcing a renewed effort to increase the office’s efficiency and success rate, including the pursuit of narrower cases or lower-level suspects where appropriate. ICC Office of the Prosecutor, Strategic Plan 2019–2021, 17 July 2019, available online at https://​www​.icc​-cpi​.int/​ itemsDocuments/​20190726​-strategic​-plan​-eng​.pdf. 45 Cf. K. J. Heller, ‘A Sentence-Based Theory of Complementarity’, 53 Harvard International Law Journal (2012) 85–133, at 85 (rejecting conduct-based approaches to complementarity in favor of a sentenced-based approach). 43 44

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72  The Elgar companion to the International Criminal Court At the same time, one can imagine other situations in which the same conduct requirement might arguably frustrate these same goals. In the case of Prosecutor v. Lubanga, for example, the prosecution only pursued charges related to the recruitment and use of child soldiers in the DRC’s Ituri conflict, notwithstanding evidence of sexual violence that motivated an unsuccessful attempt to amend the charges after the trial had already commenced.46 Suppose that the DRC had challenged the admissibility of the case on the ground that it was investigating Lubanga on a broader set of charges—including widespread rape and murder but not the recruitment of and use of child soldiers—committed in the course of the same conflict. All else being equal, that scenario presents a strong case for deferring to the DRC investigation on the ground that it concerns crimes within the ICC’s jurisdiction that are at least as grave as those before the ICC. But the ICC case law has shown only limited flexibility on the same conduct requirement, allowing that domestic proceedings need not mirror the ICC case so long as the domestic charges address ‘substantially the same conduct’.47 Under the scenario I have hypothesized, however, the same conduct requirement would defeat a challenge to admissibility. Similar considerations surround the matter of legal characterization. Here, the same conduct requirement operates somewhat more permissively. In the Al-Senussi case, involving the first ever successful challenge to admissibility, the Court noted that Libya was ‘envisag[ing] charging Mr. Al-Senussi with domestic offences that included “civil war”, “assault [sic] the political rights of the citizen”, “stirring up hatred between the classes and other crimes associated with fomenting sedition and civil war”’.48 Although the ICC case involved charges of crimes against humanity, the ICC emphasized the overlapping conduct in question, rather than its legal characterization. What was critical for the Court was that ‘the conduct underlying the [crime against humanity] of persecution is sufficiently covered in the Libyan proceedings so that the conduct being investigated is substantially the same as that alleged before the Court’.49

46 Judgment on the appeals of Mr. Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled ‘Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court’, Lubanga Dyilo (ICC-01/04-01/06), Appeals Chamber, 8 December 2009. 47 Muthaura Appeals Chamber Admissibility Judgment, at § 39; Ruto Appeals Chamber Admissibility Judgment, at § 40. In the case of Saif Gaddafi, for instance, the Pre-Trial Chamber rejected Libya’s admissibility challenge, reasoning in part that the ‘the evidence, taken as a whole, does not allow the Chamber to discern the actual contours of the national case against Mr. Gaddafi such that the scope of the domestic investigation could be said to cover the same case as that set out in the Warrant of Arrest issued by the Court’. Decision on the admissibility of the case against Saif Al-Islam Gaddafi, Gaddafi & Al-Senussi (ICC-01/11-01/11), Pre-Trial Chamber, 31 May 2013, § 135 (hereafter: Gaddafi PTC Admissibility Decision). Despite finding it was, ‘satisfied that some items of evidence show that a number of investigative steps have been taken by Libya with respect to certain discrete aspects that arguably relate to the conduct of Mr. Gaddafi as alleged in the proceedings before the Court’, ibid. at § 134, the Court ruled that that Libya ‘has fallen short of substantiating, by means of evidence of a sufficient degree of specificity and probative value, the submission that the domestic investigation covers the same case that is before the Court’. Ibid. at § 135. 48 Judgment on the appeal of Mr. Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October 2013 entitled ‘Decision on the admissibility of the case against Abdullah Al-Senussi’, Gaddafi & Al-Senussi (ICC-01/11-01/11), Appeals Chamber, 24 July 2014, § 120 (hereafter: Senussi Appeals Chamber Admissibility Judgment). 49 Ibid. at § 177.

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Admissibility as a theory of international criminal law  73 While the Court’s focus on conduct as opposed to legal characterization draws from the Rome Statute’s own reference to ‘conduct’, the two concepts are not always so easily separated. Imagine for instance that the ICC Prosecutor is investigating a suspect for the war crime of rape while a state wishes to prosecute the same conduct under the label of ‘disturbing the peace’, or ‘insulting the honor’ of the victim’s family. In one sense, the state is investigating the same conduct, but clearly the domestic charges fail to capture the nature and gravity of the offense. Indeed, neither domestic label even acknowledges the victimhood of the abused person. If the domestic charges fail to capture the core harm manifested by the conduct, then it is hardly a stretch to conclude that the state is not truly investigating or prosecuting the same conduct as the ICC. Seeing the issue in this light allows a more qualified defense of the Court’s position in Gaddafi. The critical point on this account is not merely that Libya happened to be investigating substantially the same conduct. The point is that, in this situation, the domestic labels provided an adequate substitute for the international labels with respect to capturing the gravity of the charged crimes. There are, finally, timing-related issues that significantly impact the operation of the same person/same conduct test. The Court has held, on one hand, that for a state investigation to receive deference, the state must demonstrate that it is ‘taking tangible, concrete and progressive investigative steps into … criminal responsibility for the crimes alleged in the proceedings before the [ICC]’.50 Moreover, while a state is obligated ‘to challenge admissibility as soon as possible once it is in a position to actually assert a conflict of jurisdictions’, it also ‘cannot expect to be allowed to amend an admissibility challenge or to submit additional supporting evidence just because the State made the challenge prematurely’.51 In the case of Simone Gbagbo, the Pre-Trial Chamber rejected Cote d’Ivoire’s admissibility challenge notwithstanding three sets of criminal proceedings against the accused at the domestic level. The Court ruled that the first two proceedings, involving respectively economic crimes and crimes against the state, involved different conduct than did the crime against humanity charges before the ICC. While the third set of proceedings, did involve ‘crimes of the same nature as those alleged in the Case before the Court’, the Court found that the documentation provided by Cote d’Ivoire failed to ‘demonstrate that concrete, tangible, and progressive investigative steps’ were being undertaken.52 The Appeals Chamber upheld this finding six months later, declining to consider any intervening developments in the domestic investigation.53 As it happened, Cote d’Ivoire ignored the ICC rulings and proceeded to prosecute Gbagbo for crimes against humanity. (The jury trial ended in acquittal although Gbagbo continues to serve a 20-year sentence for crimes against the state.) The strictness of the Court’s approach has drawn criticism from some experts. On the ICC Appeals Chamber, Judge Anita Ušacka established herself as a vocal critic of the Court’s

50 Judgment on the appeal of Côte d’Ivoire against the decision of Pre-Trial Chamber I of 11 December 2014 entitled ‘Decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo’, Gbagbo (ICC-02/11-01/12 OA), Appeals Chamber, 27 May 2015, § 50 (hereafter: Gbagbo Appeals Chamber Admissibility Judgment). 51 Ruto Appeals Chamber Admissibility Judgment, at § 100. 52 Decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo, Gbagbo (ICC-02/11-01/12-47), Pre-Trial Chamber, 11 December 2014, § 50. 53 Gbagbo Appeals Chamber Admissibility Judgment, at § 61.

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74  The Elgar companion to the International Criminal Court person/conduct test, invoking many of the complications I have highlighted above.54 She objected, for instance, that the Court’s ‘rigid requirement would oblige domestic authorities to investigate or prosecute exactly or nearly exactly the conduct that forms the basis for the “case before the Court” at the time of the admissibility proceedings, thereby being obliged to “copy” the case before the Court. Instead of complementing each other, the relationship between the Court and the State would be competitive, requiring the State to do its utmost to fulfil the requirements set by the Court’.55 For Ušacka, the formalism of this approach ‘intrude[s] upon the sovereignty of States and the discretion afforded to national prosecutorial authorities’, considering, in particular, that ‘[n]ational cases can differ from the “case before the Court” in respect of evidence, such as available witnesses, victims, and the number and locations of incidents that are under investigation or prosecution’.56 The approach also creates timing problems because a state might fail the same person/same conduct test ‘simply because proceedings before the Court might have progressed further than the domestic proceedings or vice versa’.57 Dissenting against the Court’s rejection of Libya’s admissibility challenge in the Gaddafi case, Ušacka advocated a more flexible balancing test that would consider multiple factors, including whether there is a ‘nexus’ between the conduct being investigated domestically and the conduct before the court,58 whether the domestic proceedings advance the goal of fighting impunity,59 and whether the state has manifested a ‘genuine will’ to carry out investigations and prosecutions.60 While I am sympathetic to the view that complementarity should involve consideration of more factors than the same person/same conduct test currently allows, one argument in favor of the Court’s approach appeals to the same concern for state sovereignty that underlies Ušacka’s position. While the Court’s formalism deprives states of some discretion, it allows the Court to avoid the more negative assessments of state action that would be required to sustain admissibility under a broader-ranging evaluation of the state’s efforts. A finding that a state is not pursuing the same case as the ICC presents an ostensibly value-neutral statement of fact as compared, for instance, to the more censorious ruling that a state’s efforts lack ‘genuine will’. In addition, a test along the lines that Judge Ušacka advances would also increase the importance of judicial evaluation, exposing the Court to critiques that its test necessitates too much judicial discretion and fails to supply predictable criteria for knowing when a case is admissible and when it is not. By avoiding or reducing these problems, the stricter same person/same conduct test preserves some of the advantages of the primary jurisdiction model associated with earlier tribunals. But the cost, perhaps, is that the Court has drifted too close to that model by failing to give sufficient effect to the values underlying the complementarity requirement.

Dissenting Opinion of Judge Anita Ušacka, Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled ‘Decision on the admissibility of the case against Saif Al-Islam Gaddafi’, Gaddafi & Al-Senussi (ICC-01/11-01/11-547), Appeals Chamber, 21 May 2014. 55 Ibid. at § 52. 56 Ibid. at § 53. 57 Ibid. at § 56. 58 Ibid. at § 58. 59 Ibid. 60 Ibid. at § 59. 54

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Admissibility as a theory of international criminal law  75 2.C

Complementarity and Due Process

In cases where a state investigation or prosecution satisfies the same person/same conduct standard, the ICC Statute requires the Court to determine whether the ‘the State is unwilling or unable genuinely to carry out the investigation or prosecution’.61 The Court has applied these criteria on only a handful of occasions. With respect to inability, the Pre-Trial Chamber in the Gaddafi case ruled that Libya was unable to prosecute the accused considering (1) that Gaddafi was detained by the Zintan militia and that Libyan government authorities had been unable to obtain custody over him, (2) that Libyan authorities were not able to obtain necessary testimony considering that they lacked control over detention facilities where senior former regime members were subject to torture and other mistreatment, and (3) that the risks associated with Libya’s security situation had thus far prevented the appointment of a defense lawyer, depriving the accused of a legal right without which he could not be lawfully tried under Libyan law.62 Yet, only a few months later, the same Pre-Trial Chamber ruled that the case against a second Libyan suspect, Abdulla al-Senussi, was inadmissible, despite some similar obstacles at the domestic level including, in particular, a lack of access to counsel.63 The Appeals Chamber upheld the Pre-Trial Chamber’s determination in both cases, although with respect to Gaddafi, the higher chamber ruled solely based on Libya’s failure to satisfy the same person/same conduct test and did not consider the matter of unwillingness or inability.64 The conflicting outcomes in these cases shines a light on one of the most contested questions regarding complementarity: to what extent, if at all, do deficiencies in fair trial rights at the national level inform the admissibility of a case before the ICC? Due process rights do appear explicitly in Article 17(c) which lists factors relevant to unwillingness, and states that one such factor is whether ‘[t]he proceedings were not or are not being conducted independently or impartially’. But that language is immediately followed by the phrase ‘and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice’.65 The word ‘and’ suggests that deficiencies in independence and impartiality are only a concern when they operate to shield the accused from justice. Notably, the conjunctive ‘and’ replaced the disjunctive ‘or’ from the corresponding provision of the ILC’s Draft Statute.66 During the negotiation of the Rome Statute, moreover, states rejected proposals to make the fundamental rights of the accused relevant to both unwillingness and inability.67 In Gaddafi, however, the Pre-Trial Chamber found a different way to invoke due process. Rather than focus on unwillingness, the Court saw the frustration of Gaddafi’s right to counsel

Art. 17(1)(a) ICCSt. Gaddafi PTC Admissibility Decision. 63 Decision on the admissibility of the case against Abdullah Al-Senussi, Gaddafi & Al-Senussi (ICC-01/11-01/11-466-Red), Pre-Trial Chamber, 11 October 2013. 64 Judgment on the Appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled ‘Decision on the admissibility of the case against Saif Al-Islam Gaddafi’, Gaddafi & Al-Senussi (ICC Case No. ICC-01/11-01/11-547-Red), Appeals Chamber, 21 May 2014; Senussi Appeals Chamber Admissibility Judgment. 65 Art. 17(c) ICCSt. 66 ILC Draft Statute, supra note 10. 67 K. J. Heller, ‘The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process’, 17 Crim LF (2006) 255–80. 61 62

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76  The Elgar companion to the International Criminal Court as evidence of inability. In doing so, the Chamber looked not to international standards of due process but to the fact that Libyan law itself guarantees the right to counsel. It reasoned that ‘[i]f this impediment [imposed by the absence of counsel for Gaddafi] is not removed, a trial cannot be conducted in accordance with the rights and protections of the Libyan national justice system’.68 Hence, the Court reasoned, Libya was unable to prosecute Gaddafi in the manner demanded by its own laws.69 The Pre-Trial Chamber also suggested that fair trial rights were separately relevant to unwillingness, although it did not decide that issue in this case.70 When the Appeals Chamber affirmed the Pre-Trial Chamber finding that Senussi’s case was inadmissible, it also accepted that fair trials rights had relevance for complementarity, but it pursued a different line of reasoning. Recognizing that Article 17 itself was not drafted to protect the fundamental rights of defendants, the Court appealed to the more general interpretative mandate of Article 21(3) dictating that the Statute as a whole must be applied and interpreted in a way ‘consistent with internationally recognized human rights’.71 The Court rejected the view that any sort of due process violation under domestic or international law would necessarily defeat an admissibility challenge, but it nevertheless observed that ‘there may be circumstances, depending on the facts of the individual case, whereby violations of the rights of the suspect are so egregious that the proceedings can no longer be regarded as being capable of providing any genuine form of justice to the suspect so that they should be deemed, in those circumstances, to be inconsistent with an intent to bring that person to justice’.72 With respect to Senussi’s lack of counsel at the investigation stage, the Appeals Chamber found that this obstacle did not cross the threshold of egregiousness given Libya’s representations that it would ensure the appointment of a lawyer before trial.73 The Appeals Chamber also upheld the Pre-Trial Chamber’s ruling that other allegations including mistreatment of the accused and unavailability of defense witnesses were either unfounded or speculative.74 One might accuse the Appeals Chamber of importing into Article 17 the very principle— protection of defendants’ human rights—that the drafters deliberately excluded. Upon closer consideration, however, some version of the Appeals Chamber approach seems inescapable. Imagine, for instance, that a state proceeds by way of a lottery, or by recourse to trial by fire. Or, to take the example posed by the Senussi Appeals Chamber, imagine proceedings that are ‘little more than a predetermined prelude to an execution, and which are therefore contrary to even the most basic understanding of justice’.75 One might describe such processes as methods of investigation and prosecution. But surely that is not what Article 17 means when it refers to national investigation and prosecutions. Application of Article 17 requires some sense of

Gaddafi PTC Admissibility Decision, at § 214. Ibid. at § 215 (‘the Chamber has noted a practical impediment to the progress of domestic proceedings against Mr. Gaddafi as Libya has not shown whether and how it will overcome the existing difficulties in securing a lawyer for the suspect’). 70 Ibid. at §§ 217–18 (noting that ‘fair trial considerations’ are ‘pertinent’ but that, ‘given that the case is admissible before the Court’, ‘the Chamber does not need to address the implications of the alleged impossibility of a fair trial for Mr. Gaddafi on Libya’s willingness genuinely to carry out the investigation or prosecution’). 71 Senussi Appeals Chamber Admissibility Judgment, § 229. 72 Ibid. at § 3. 73 Ibid. at §§ 189–207. 74 Ibid. at §§ 239–62. 75 Ibid. at § 230. 68 69

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Admissibility as a theory of international criminal law  77 what investigations and prosecutions actually are, and any credible attempt to distinguish a true prosecution from, say, trial by fire will necessarily import considerations of procedural fairness and justice. Hence, due process values are already to some degree implicit in phrases such as ‘investigation’, ‘prosecution’, and ‘intent to bring to … justice’.76 At the same time, the ordinary use of such language does not imply that every investigation and prosecution must, by definition, meet a universal gold standard of international due process. The question then becomes where to draw the line. Although there is certainly room for reasonable disagreement, I believe that the Appeals Chamber’s basic approach—drawing the line at ‘egregious’ rights violations—strikes a sensible and textually justifiable balance. Such a test is resistant to bright-line determinations, however, and unavoidably relies on judicial interpretation and application in a way that highlights the central importance of judicial discretion. The Senussi Appeal marks a first, relatively modest step toward elucidation of the Court’s egregious violation standard. 2.D

Alternative Justice Mechanisms

Many of the most difficult complementary questions remain untested by ICC case law. The Court has yet to adjudicate a case in which a state exonerated an accused person following investigation or acquitted the accused after trial. Nor has it has addressed questions related to plea bargaining, lenient sentencing, or post-conviction pardons. Such scenarios raise difficult questions about how the Court is to evaluate whether or not a state has intent to bring a person to justice. A distinct but interrelated set of questions surrounds the question of whether and when a state may resort to so-called alternative justice mechanisms. How should the ICC respond if a state wishes to do as South Africa did and address past atrocities with a truth and reconciliation commission that offers amnesty to those who provide a full confession of their crime? Alternately, what about the path taken by Rwanda when it implemented a legislative plea bargaining scheme that offered relatively low sentences to perpetrators of genocide who confessed their crimes before informal gacaca tribunals?77 At the heart of these questions lies a tension between, on the one hand, the concept of ICL as a supranational regulator of state behavior, and on the other hand, the realization that transitional justice inevitably involves dilemmas and trade-offs and that societies have some claim to deference over how they wish to confront the past. The problem of alternative justice mechanisms presents several challenges to the ICC’s work. As a textual matter, the Rome Statute does not provide definitive answers. For instance, a state that convenes a truth commission in lieu of traditional trials can argue that it has ‘investigated’ the cases addressed by the commission and ‘decided not to prosecute the person[s] concerned’.78 The question for the ICC then becomes whether or not this type of process qualifies as an investigation within the meaning of the Statute, and whether or not ‘the decision [not to prosecute] resulted from the unwillingness or inability of the State genuinely to prosecute’,

Art. 17. ICCSt. For a fuller account of these questions and how they might affect the ICC’s admissibility criteria, see A. K. A. Greenawalt, ‘Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court’, 50 Virginia Journal of International Law (2009) 107–62, at 107. 78 Art. 17. ICCSt. 76 77

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78  The Elgar companion to the International Criminal Court considering, in particular, whether, within the statute, such a decision reflects a ‘purpose of shielding the person concerned from criminal responsibility’ or is otherwise ‘inconsistent with an intent to bring the person concerned to justice’.79 South Africa, for instance, argued that the TRC provided a form of ‘restorative justice’ which is distinct from retributive justice.80 Hence, a state like South Africa would argue alternative justice mechanisms are not inconsistent with the pursuit of justice. Alternately, one might argue, alternative justice mechanisms can provide a form of prosecution in addition to investigation. The Final Report of the TRC emphasized that the requirement of a public, televised confession was a form of shaming.81 The gacaca courts pronounced verdicts and imposed statutorily mandated sentences.82 How, pursuant to the Rome Statute, should one determine what qualifies as investigation and prosecution? While the issue of alternative justice arose during the negotiation of the Rome Statute, the text of the treaty fails to address the matter explicitly. A 2003 ‘informal expert paper’ produced at the invitation of the ICC Prosecutor noted that ‘difficulties arise when [alternative justice mechanisms] result in non-prosecution of ICC crimes’, but also that ‘alternative approaches should not be summarily dismissed’.83 From a policy perspective, the question highlights the dilemmas and trade-offs that societies often face in responding to past atrocities. While history is rife with examples of dictators who orchestrate self-amnesty in a transparent attempt to avoid accountability, there also exist more compelling reasons why states have chosen to moderate their pursuit of past accountability.84 In South Africa, for instance, the amnesty deal secured a peaceful transition of power from the apartheid regime to democratic rule, and the promise of amnesty in exchange for testimony facilitated a more thorough pursuit of truth considering the enormous obstacles (including limited resources and lack of access to evidence) that would have precluded more comprehensive prosecution.85 In Rwanda, moreover, the gacaca trials proceeded alongside more traditional trials at the international and domestic level for more senior perpetrators, indicating that alternative justice mechanisms may supplement other efforts, allowing states to process a greater number of perpetrators.86 Such mechanisms may strike a reasonable compromise Ibid. The Truth and Reconciliation Commission of South Africa, 1 Truth and Reconciliation Commission of South Africa Report, 29 October 1998, available online at http://​www​.justice​.gov​.za/​trc/​report/​index​ .htm, at 9 (hereafter: TRC Final Report) (‘Certainly, amnesty cannot be viewed as justice if we think of justice only as retributive and punitive in nature. We believe, however, that there is another kind of justice—a restorative justice which is concerned not so much with punishment as with correcting imbalances, restoring broken relationships—with healing, harmony and reconciliation.’). 81 Ibid. at 8–9 (‘There is … a price to be paid. Public disclosure results in public shaming, and sometimes a marriage may be a sad casualty as well.’). 82 See Greenawalt, supra note 77, at 130. 83 International Criminal Court, Office of the Prosecutor, Informal Expert Paper: The Principle of Complementarity in Practice (ICC ICC-01/04-01/07 (2003), at 23 (hereafter: Expert Paper). 84 See e.g., W. A. Schabas, An Introduction to the International Criminal Court (3rd edn., Cambridge: Cambridge University Press, 2007), at 185–86 (noting with respect to the drafting of the ICC Statute that ‘[d]espite “widespread sympathy” for South Africa’s experience, some delegates expressed concern that other amnesty measures like the one accorded by Chilean President Augusto Pinochet to himself, were “disgraceful.”’). 85 TRC Final Report, supra note 80. 86 Human Rights Watch, ‘Justice Compromised: The Legacy of Rwanda’s Community-Based Gacaca Courts’, May 2011, available online at https://​www​.hrw​.org/​sites/​default/​files/​reports/​ 79 80

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Admissibility as a theory of international criminal law  79 in situations where justice must necessarily be compromised in one way or another. To this end, the aforementioned policy paper identifies a broad range of factors that might guide the consideration of such measures, including for example, whether such measures represent a ‘self-amnesty’, whether they have ‘international legitimation’, whether they embrace the most responsible persons or, by contrast, only lower-level offenders, and whether they meet a number of qualitative factors.87 Even if one is sympathetic to such arguments, however, they present distinct institutional challenges for the ICC. As I have explored elsewhere, a common justification of the Court’s legitimacy as a supranational body emphasizes its core function as a neutral adjudicator of agreed-upon rules of international law.88 That account is relatively compelling with respect to the Court’s role in trying individual suspects and reaching determinations of guilt and innocence. If, however, the complementarity standard requires the Court to undertake broader policy assessments of which compromises transitional states may or may not strike when addressing the past, it becomes more difficult to explain how such assessments fall within the institutional competence of a criminal tribunal.89 To a significant extent, the dilemmas of transitional justice may be avoided by the ICC’s own limited capacity. The Court is simply not in a position to pursue comprehensive prosecutions of mass atrocities, and the Prosecutor has adopted a policy ‘of focusing its efforts on the most serious crimes and on those who bear the greatest responsibility for these crimes’.90 Thus far, the Prosecutor has proceeded against only a handful of high-level perpetrators in each situation she has investigated. By default, this extreme selectivity leaves states with substantial discretion regarding how to handle the vast majority of perpetrators. But nonetheless, versions of the problem may still arise. Consider, for example, the case of Dominic Ongwen who is currently on trial for crimes against humanity and war crimes before the ICC.91 A former leader of the murderous Lord’s Resistance Army (LRA), Ongwen was himself one of tens of thousands of young children abducted into the LRA and forced to become killers.92 Uganda has provided amnesty to other LRA fighters who have surrendered and undergone alternative justice proceedings.93 Perhaps a similar disposition might be appropriate for Ongwen notwithstanding his seniority and the gravity of the accusations? The issue has not come to a head in this case because Uganda has not opposed the ICC trial, but neither, to my knowl-

rwanda0511webwcover​_0​.pdf, at 2 (noting that conventional courts had tried ‘1,292 genocide suspects by 1998’). 87 Expert Paper, supra note 83, at 23. 88 See A. K. A. Greenawalt, ‘Justice Without Politics: Prosecutorial Discretion and the International Criminal Court’, 39 New York University Journal of International Law and Politics (2007) 583–673, at 591–93. 89 Ibid. at 650–51. 90 See supra note 44 and accompanying text. 91 See International Criminal Court, Ongwen Case, available online at https://​www​.icc​-cpi​.int/​ uganda/​ongwen. 92 See J. Burke, ‘Ex-child soldier Dominic Ongwen denies war crimes charge at ICC Trials’, The Guardian, 6 December 2016 (noting that ‘Ongwen was abducted by the LRA at the age of 10 when returning from school and is thought to have been forced to participate in combat and violent acts against civilians as a child’). 93 See e.g., P. Hazan, ‘Uganda’s Amnesty and the Peace/Justice Dilemma’ JusticeInfo.net, 10 July 2017, available online at https://​www​.justiceinfo​.net/​en/​tribunals/​national​-tribunals/​33820​-uganda​-s​ -amnesty​-law​-and​-the​-peace​-justice​-dilemma​.html.

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80  The Elgar companion to the International Criminal Court edge, has an ICC Prosecutor ever suggested that deference to Uganda might be appropriate in the event that Uganda invoked its amnesty law. In her opening statement at Ongwen’s trial, current Prosecutor Fatou Bensouda emphasized that Ongwen’s own brutal victimization did not justify his crimes, while allowing that the circumstances ‘may perhaps amount to some mitigation of sentence in the event that he is convicted of these crimes’.94 By contrast, the question of amnesty did figure more directly in a recent admissibility challenge filed by Saif Al Islam Gaddafi in a sequel to the earlier admissibility challenge brought by Libya.95 Gaddafi argued that his trial, conviction, death sentence, and subsequent release pursuant to a Libyan amnesty law precluded his trial at the ICC pursuant to the double jeopardy rule set forth in Article 20 of the Rome Statute. The case was atypical because Gaddafi has never come into the custody of the Libyan authorities. He was tried in absentia while detained by the Zintan militia that eventually released him. The Court rejected the admissibility challenge on the ground that the domestic proceedings had not reached a final resolution of Gaddafi’s case because Libyan law would require a new trial following Gaddafi’s apprehension. The Court also ruled that the Libyan amnesty law did not by its terms, or by the Libyan government’s own interpretation, extend to Gaddafi’s alleged crimes, namely ‘identity-based murder, kidnapping, enforced disappearance and torture’.96 Neither of these dispositive points required the Court to opine on the potential compatibility of domestic amnesty laws with the ICC’s complementarity framework, but in dicta the Pre-Trial Chamber nevertheless did so. Reviewing various international legal sources, the Court reasoned that ‘granting amnesties and pardons for serious acts such as murder constituting crimes against humanity is incompatible with internationally recognized human rights’.97 In particular, the Court found that ‘[a]mnesties and pardons intervene with States’ positive obligations to investigate, prosecute and punish perpetrators of core crimes’ and that ‘they deny victims the right to truth, access to justice, and to request reparations where appropriate’.98 Rejecting the legality of amnesties in these broad strokes, the Court did not undertake a specific consideration of which, if any, circumstances might permit a domestic amnesty or otherwise qualify a state’s obligation to investigate, prosecute, and punish. 2.E

Prosecutorial Discretion

As the above analysis reveals, complementarity is not merely a question for judicial application. It is also a factor in prosecutorial discretion. According to the Rome Statute, the Prosecutor is required to assess admissibility when deciding whether to pursue investigations. In addition, the OTP has advocated a policy of so-called ‘positive complementarity’, according to which the Office ‘encourages genuine national proceedings where possible; relies on national and international networks; and participates in a system of international Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, at the Opening of Trial in the case against Dominic Ongwen, 6 December 2016, available online at https://​www​.icc​-cpi​ .int/​Pages/​item​.aspx​?name​=​2016​-12​-06​-otp​-stat​-ongwen. 95 Decision on the ‘Admissibility Challenge by Dr. Saif Al-Islam Gaddafi pursuant to Articles 17(1) (c), 19 and 20(3) of the Rome Statute,’ Gaddafi (ICC-01/11-01/11-662), Pre-Trial Chamber, 5 April 2019. 96 Ibid. at § 77. 97 Ibid. 98 Ibid. 94

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Admissibility as a theory of international criminal law  81 cooperation’.99 The central idea here is that the OTP can use its position to assist and encourage domestic efforts that would obviate the need for ICC prosecution. Such measures may include information sharing with local actors, the inclusion of such actors in OTP investigations and prosecutions, and also consultation with third parties (such as relevant UN organs) that may be in a position to catalyze relevant domestic efforts.100 To take perhaps the most prominent example of positive complementarity, the OTP has maintained an ongoing preliminary examination in Colombia since 2005 which has never proceeded to the stage of a formal investigation. A recent Human Rights Watch Report cites evidence that the OTP ‘has been one of a number of important actors in keeping the need for accountability … on the agenda’ with respect to certain killings committed by Colombian military officials.101 The report notes further that the OTP ‘worked effectively to counter at least one legislative proposal that might have undermined these prosecutions and was a factor in the development of relevant prosecutorial strategies’.102 In particular, the OTP engagement was ‘a factor in expediting progress in cases against low and mid-level defendants’, but was ‘yet to prove effective to address the main obstacle to prosecution of high-level officials: a lack of unequivocal political will to support these prosecutions’.103 As Carsten Stahn has explored, the result of positive complementarity is, in effect, a ‘tale of two notions’.104 There is, on the one hand, the formal admissibility requirement that is judicially enforced on a suspect-by-suspect level, and then there is the broader ‘positive-complementarity’ infused layer of prosecutorial discretion. The discretionary route has the advantage of permitting a more holistic approach, one that ‘introduces an element of flexibility and a managerial division of labour into the relationship between the Court and domestic jurisdictions’.105 As a discretionary matter, the OTP can take stock of a state’s overall efforts and decide, for instance, to give some leeway to a state’s good faith efforts even if the state is not yet prepared to pursue a case that the OTP is ready to pursue, or if the state has not prioritized the same cases for prosecution as the OTP would. But as Stahn notes, the positive approach may also ‘raise concerns regarding the impartiality and independence of the Court as well as the prerogative of expeditious justice’.106

3. GRAVITY In contrast to the more detailed treatment of complementarity, the Rome Statute dedicates only a single sentence to the gravity prong of admissibility. Repeating almost verbatim the analo-

99 International Criminal Court, Office of the Prosecutor, Report on Prosecutorial Strategy 2009–2012 1 February 2010, at § 17. 100 Ibid. 101 Human Rights Watch, ‘Pressure Point: The ICC’s Impact on National Justice’, 3 May 2018, available online at https://​www​.hrw​.org/​report/​2018/​05/​03/​pressure​-point​-iccs​-impact​-national​-justice/​ lessons​-colombia​-georgia​-guinea​-and. 102 Ibid. 103 Ibid. 104 C. Stahn, ‘Complementarity: A Tale of Two Notions’, 19 Criminal Law Forum (2008) 87–113, at 87. 105 Ibid. at 88. 106 Ibid. at 89.

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82  The Elgar companion to the International Criminal Court gous provision of the ILC Draft Statute, it provides that a case is inadmissible if it ‘is not of sufficient gravity to justify further action by the Court’.107 The Statute provides no additional explicit guidance on how the standard is to be applied. 3.A

The Ntaganda Case

Only once has a Pre-Trial Chamber ruled that a case lacked sufficient gravity, and that determination did not survive appeal. In 2006, Pre-Trial Chamber I declined to authorize the Prosecution’s requested warrant for the arrest of Bosco Ntaganda, who stood accused alongside Thomas Lubanga Dyilo of the war crimes of conscripting and enlisting child soldiers and of using child soldiers to participate actively in hostilities.108 To guide its assessment of gravity, the Court announced a three-prong test based on the following questions: (i)

Is the conduct which is the object of the case systematic or large-scale (due consideration should also be given to the social alarm caused to the international community by the relevant type of conduct)? (ii) Considering the position of the relevant person in the state entity, organization or armed group to which he belongs, can it be considered that such person falls within the category of most senior leaders of the situation under investigation? and (iii) Does the relevant person fall within the category of most senior leaders suspected of being most responsible, considering (1) the role played by the relevant person through acts or omissions when the state entities, organizations or armed groups to which he belongs commit systematic or large-scale crimes within the jurisdiction of the Court, and (2) the role played by such state entities, organizations or armed groups in the overall commission of crimes within the jurisdiction of the Court in the relevant situation?109 Applying these criteria, the Pre-Trial Chamber approved a warrant for the arrest of Lubanga, but denied one for Ntaganda, reasoning that Ntaganda played an insufficiently central role in the relevant decision-making and policy-making processes, notwithstanding his command position.110 The Appeals Chamber reversed this determination. It ruled first that the Pre-Trial Chamber had erred in considering at all the admissibility of Ntaganda’s case as part of the arrest warrant determination. The ICC Statute, the Chamber noted, does not require review of admissibility at the arrest warrant stage. And while the Statute does allow the Court to determine the admissibility of a case on its own motion, the Appeals Chamber found that the exercise of that discretion was inappropriate in an ex parte arrest warrant proceeding absent special circumstances, such as ‘where a case is based on the established jurisprudence of the Court, uncontested facts

Art. 17 ICCSt. The otherwise identical language in the ILC Draft Statute refers to ‘such gravity’ rather than ‘sufficient gravity’. ILC Draft Statute. 108 Judgment on the Prosecutor’s Appeal Against the Decision of Pre-Trial Chamber I entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Art. 58’, Situation in the Democratic Republic of Congo, Lubanga Dyilo & Ntaganda (ICC-01/04-169), Appeals Chamber, 13 July 2006, §§ 62–65 (summarizing sealed section of Pre Trial Chamber I’s Decision) (hereafter: DRC Arrest Warrant Appeals Judgment). 109 Lubanga PTC Arrest Warrant Decision, at § 63. 110 Ibid. at §§ 73–74; DRC Arrest Warrant Appeals Judgment, at § 62–65. 107

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Admissibility as a theory of international criminal law  83 that render a case clearly inadmissible or an ostensible cause impelling the exercise of proprio motu review’.111 Given that finding, it was not strictly necessary for the Appeals Chamber to address the merits of how the Pre-Trial Chamber evaluated the gravity of Ntaganda’s case. Nevertheless, the Appeals Chamber chose to do so, considering that ‘the interpretation of Article 17(1) (d) of the Statute by the Pre-Trial Chamber, if upheld, could have an impact on the Court as a whole’.112 In this part of its opinion, the Appeals Chamber rejected each prong of the Pre-Trial Chamber’s test. With respect to the first prong, the Appeals Chamber noted that the imposition of a ‘systematic or large-scale’ requirement conflicted with the statutory definitions of the crimes falling under the ICC’s jurisdiction.113 Crimes against humanity are already defined by the Rome Statute to involve a ‘widespread or systematic attack’,114 whereas no such restriction applies to war crimes. Instead, Article 8(1) presents the matter more tentatively, stating that ‘[t]he Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes’.115 As the Appeals Chamber noted, the careful phrasing of this non-mandatory statutory preference would make little sense if it turned out that the Statute’s gravity requirement separately demanded that all cases before the Court involve systematic or large-scale crimes.116 The Court also dismissed the relevance of ‘social alarm’, observing that this ‘criterion … depends upon subjective and contingent reactions to crimes rather than upon their objective gravity’.117 The Court was equally dismissive of the Pre-Trial Chamber’s second and third prongs which it found to rely on a flawed teleological reasoning. To justify its focus on the most responsible senior leaders, the Pre-Trial Chamber had appealed to considerations of deterrence, noting that these are the people ‘who can most effectively prevent or stop the commission of such crimes’118 and that ‘only by concentrating on this type of individual can the deterrent effects of the Court be maximized’.119 The Appeals Chamber agreed that deterrence of such individuals was desirable, but questioned the deterrent effect of excluding other individuals from prosecution. It reasoned that ‘[i]t seems more logical to assume that the deterrent effect of the Court is highest if no category of perpetrators is per se excluded from potentially being brought before the Court’.120 Similarly, the Appeals Chamber worried that the Pre-Trial Chamber’s other requirements ‘ignore[d] the highly variable constitutions and operations of different organizations and could encourage any future perpetrators to avoid criminal responsibility before the International Criminal Court simply by ensuring that they are not a visible part of the high-level decision-making process. Also, individuals who are not at the very top of an organization may still carry considerable influence and commit, or generate the widespread

113 114 115 116 117 118 119 120 111 112

DRC Arrest Warrant Appeals Judgment, at § 52. Ibid. at § 54. Ibid. at § 70. Art. 7 ICCSt. Ibid. at Art. 8. DRC Arrest Warrant Appeals Judgment, at § 71. Ibid. at § 72. Ibid. at § 54. Ibid. at § 55. Ibid. at § 73.

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84  The Elgar companion to the International Criminal Court commission of, very serious crimes’.121 Notably, the Appeals Chamber did not substitute the Pre-Trial Chamber’s own flawed test with a framework of its own, and indeed the Court’s reasoning suggests that fixed and predictable criteria for gravity-based exclusions are generally undesirable.122 3.B

Subsequent Cases

Subsequent Pre-Trial Chamber decisions have elaborated somewhat on the gravity threshold, and have adopted a far more permissive understanding of the requirement than did the reversed decision regarding Ntaganda. In a decision confirming charges against Bahar Idriss Abu Garda related to an attack against peacekeepers in the Darfur region of Sudan, Pre-Trial Chamber I endorsed the Prosecutor’s view that ‘issues of the nature, manner and impact of the [alleged] attack are critical’, while emphasizing that gravity should be assessed not just from the ‘quantitative perspective’ of counting victims, but also based on ‘the qualitative dimension of the crime’.123 The Court also found guidance in certain sentencing factors listed in the ICC’s Rules of Procedure and Evidence, namely ‘the extent of the damage caused, in particular the harm caused to the victims and their families, the nature of the unlawful behaviour and the means employed to execute the crime’.124 While the case against Abu Garda involved a relatively small number of direct victims—12 killed and another eight wounded—the Pre-Trial Chamber emphasized the broader impacts—the disruption of both humanitarian aid and civilian protection—in finding the gravity threshold satisfied. The following month, Pre-Trial Chamber II also considered gravity when it issued a decision approving the Prosecutor’s proprio motu request to open an investigation into the large-scale violence that broke out in Kenya immediately following the country’s disputed 27 December 2007 presidential election. At this stage of proceedings, the Court opined, the relevant question concerned the gravity of ‘the likely set of cases or “potential case(s)” that would arise from investigating the situation’.125 To guide this analysis, the Chamber endorsed the qualitative and quantitative approach embraced in Abu Garda for assessing the gravity of particular crimes. But it also separately emphasized the importance of assessing whether ‘groups of persons that are likely to form the object of investigation capture those who may bear the greatest responsibility for the alleged crimes committed’.126 In applying this factor to the facts Ibid. at § 77. By contrast, one Appeals Chamber judge would have gone further. In a partly dissenting opinion, Judge Georghios M. Pikos reasoned that the gravity requirement served only to preclude ‘cases insignificant in themselves’, and that the Appeals Chamber should simply have issued the arrest warrant itself rather than remanding the matter for further consideration by the Pre-Trial Chamber. Separate and partly dissenting opinion of Judge Georghios M. Pikos, Judgment on the Prosecutor’s Appeal Against the Decision of Pre-Trial Chamber I entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Art. 58’, Situation in the Democratic Republic of Congo, Lubanga Dyilo & Ntaganda (ICC-01/04-169), Appeals Chamber, 13 July 2006. 123 Decision on the Confirmation of Charges, Abu Garda (ICC-02/05-02/09), Pre-Trial Chamber, 8 February 2010, § 31. 124 Ibid. 125 Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, Situation in the Republic of Kenya (ICC-01/09-19), Pre-Trial Chamber, 31 March 2010, § 58. 126 Ibid. at § 60. 121 122

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Admissibility as a theory of international criminal law  85 at hand, moreover, the Court focused particular attention on the ‘high-ranking positions’, of the ‘persons likely to be the focus of the Prosecutor’s future investigations’.127 Some have criticized this decision for effectively reviving the seniority-based requirement that the Appeals Chamber previously rejected in Ntaganda. As Margaret DeGuzman has noted, however, the two cases are distinguishable, considering that the Kenya decision involved situation gravity (i.e. the gravity of a situation to be investigated), rather than the gravity of an individual case. As DeGuzman observes, ‘[t]hat the investigation must include those most responsible does not mean that those less responsible cannot also be prosecuted’.128 Instead, the requirement serves to ‘limit the prosecutor’s freedom to shape investigations’, by requiring the ‘[p]rosecutor to demonstrate that the investigation will target those suspected of being most responsible for the crimes in a given situation’.129 Presumably, as DeGuzman notes, this requirement will have little practical effect since the Prosecutor ‘usually has every incentive to investigate those most responsible’, but she does note that the requirement might preclude investigation in cases where the ‘leaders have fled or died’.130 Whether such a scenario would indeed produce that outcome remains speculative, of course, since the Court has never had to confront that question. Indeed, following the Pre-Trial Chamber’s abortive attempt in Ntaganda, the ICC’s judiciary has never found an investigation or case to be lacking in gravity. Indeed, the aftermath of Ntaganda raises serious questions about whether the gravity threshold can even survive as a significant, judicially manageable requirement.131 3.C

Gravity and Prosecutorial Discretion

As with complementarity, however, the picture changes when one moves beyond the realm of admissibility challenges to consider the role of prosecutorial discretion. Because the Prosecutor is obligated to consider admissibility when deciding whether to pursue a case, gravity is necessarily a part of that determination. The character of that assessment, moreover, is likely to take a more complex form in the prosecutorial setting. The necessity of limited case selection in light of constrained resources and capacity has naturally invited the Prosecutor to consider gravity not only in the binary sense of whether or not a case, in isolation, possesses sufficient gravity, but also in the relative sense of comparative gravity. Unlike the ICC judges, the Prosecutor is well positioned to consider how the gravity of a case compares to other potential cases that might be selected for prosecution. Judicial resistance to a restrictive gravity test makes this comparative assessment all the more important, because a lenient approach to the baseline gravity requirement will inevitably put the Prosecutor in the position of having to choose among cases that meet the minimum requirement. Ibid. at § 198. M. M. DeGuzman, ‘The International Criminal Court’s Gravity Jurisprudence at Ten’, 12 Washington University Global Studies Law Review (2013) 475–86, at 483. 129 Ibid. Notably, one might add, this approach would not seem to oppose the investigation or prosecution of Ntaganda, considering that that case also targeted another accused, Lubanga, whom the Pre-Trial Chamber did rank among the most responsible. 130 Ibid. 131 Ibid. at 485 (noting that ‘[a]t least with regard to the admissibility of particular cases, … it seems likely that the gravity threshold will continue to play an insignificant role in the Court’s jurisprudence regarding the extent of its mandate’). 127 128

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86  The Elgar companion to the International Criminal Court In a 2013 Policy Paper, the ICC OTP identified the factors that it considers relevant to gravity when conducting a preliminary examination.132 The paper closely follows the Abu Garda approach as it notes that the ‘assessment of gravity includes both quantitative and qualitative considerations’; and that ‘the factors that guide the Office’s assessment include the scale, nature, manner of commission of the crimes, and their impact’. The paper also moves beyond that decision with more detailed elaboration, breaking down each of these factors into its own multi-factor analysis. For instance, the Paper notes, ‘the scale of the crimes may be assessed in light of, inter alia, the number of direct and indirect victims, the extent of the damage caused by the crimes, in particular the bodily or psychological harm caused to the victims and their families, or their geographical or temporal spread (high intensity of the crimes over a brief period or low intensity of crimes over an extended period)’. The remaining factors—nature, manner, and impact—are addressed in similar fashion.133 Unlike the Pre-Trial Chamber’s approach in Ntaganda, but like the Abu Garda approach, the Policy Paper does not attempt to identify particular requirements of gravity. Instead, it merely identifies relevant factors without ranking them or isolating any one factor as essential in all cases. 3.C.1 Iraq To date, the ICC Prosecutor has twice publicly invoked gravity to justify a decision not to pursue investigation of cases notwithstanding a finding of sufficient basis to believe that crimes within the Court’s jurisdiction had been committed. The first time was in 2006. In a statement dated one day before Pre-Trial Chamber I’s admissibility ruling in Ntaganda, ICC Prosecutor Luis Moreno-Ocampo addressed allegations of war crimes committed by British soldiers in Iraq.134 Based upon the OTP’s preliminary examination, the OTP had concluded there was a ‘reasonable basis to believe that crimes within the jurisdiction of the Court had been committed, namely [the war crimes of] willful killing and inhuman treatment’. 135 The specific allegations involved detainee abuse, as well as policing operations. The alleged crimes fell within the Court’s jurisdiction based on the UK’s membership of the ICC. Nevertheless, Ocampo concluded, the alleged crimes lacked sufficient gravity.

132 International Criminal Court, Office of the Prosecutor, Policy Paper on Preliminary Examinations, November 2013, available online at https://​www​.icc​-cpi​.int/​iccdocs/​otp/​otp​-policy​_paper​_preliminary​ _examinations​_2013​-eng​.pdf. 133 As the paper explains, ‘The nature of the crimes refers to the specific elements of each offence such as killings, rapes and other crimes involving sexual or gender violence and crimes committed against children, persecution, or the imposition of conditions of life on a group calculated to bring about its destruction.’ Next, the ‘the manner of commission of the crimes may be assessed in light of, inter alia, the means employed to execute the crime, the degree of participation and intent of the perpetrator (if discernible at this stage), the extent to which the crimes were systematic or result from a plan or organised policy or otherwise resulted from the abuse of power or official capacity, and elements of particular cruelty, including the vulnerability of the victims, any motives involving discrimination, or the use of rape and sexual violence as a means of destroying groups’. Finally, ‘The impact of crimes may be assessed in light of, inter alia, the sufferings endured by the victims and their increased vulnerability; the terror subsequently instilled, or the social, economic and environmental damage inflicted on the affected communities.’ 134 International Criminal Court, Office of the Prosecutor, Statement of the Prosecutor of the International Criminal Court, 9 February 2006. 135 Ibid.

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Admissibility as a theory of international criminal law  87 While noting that the OTP ‘considers various factors in assessing gravity’, Ocampo’s explanation focused primarily on two interrelated considerations.136 First, he invoked Article 8(1) of the ICC Statute to explain that the available information did not reveal evidence of war crimes ‘committed as part of a plan or policy or as part of a large-scale commission of such crimes’.137 This, of course, is the exact argument that Pre-Trial Chamber I would imminently invoke with respect to Ntaganda, and that the Appeals Chamber would some months thereafter reject. Second, Ocampo noted that the number of potential victims involved was ‘of a different order than the number of victims found in other situations under investigation or analysis by the Office’.138 He observed in this respect that these other three situations all involved ‘long-running conflicts’, with ‘thousands of willful killings as well as intentional and large-scale sexual violence and abductions’; that they collectively ‘have resulted in the displacement of more than 5 million people’; and they ‘also feature hundreds or thousands of such crimes’.139 Notably, these last points are all comparative in nature. Comparing the alleged Iraq crimes to these other situations speaks to the relative gravity of the Iraq situation, but it does not tell us whether, viewed in isolation, the Iraq situation meets the minimum criteria necessary to justify the Court’s attention. Nevertheless, the very next sentence reaches precisely such a conclusion with its statement that ‘[t]aking into account all the considerations, the situation did not appear to meet the required threshold of the Statute’.140 While the statement does not say so explicitly, it suggests a variable admissibility threshold, one that depends on the comparative gravity of other situations before the Court. 3.C.2 The Gaza flotilla raid The OTP’s second invocation of gravity came in 2014, when the Office, now under the leadership of Ocampo’s successor, Fatou Bensouda, issued a report announcing the closure of a preliminary investigation into alleged war crimes committed by Israeli forces in connection with the 31 May 2010 interception of the seven-vessel ‘Gaza Freedom Flotilla’ that had been bound for the Gaza Strip in contravention of an Israeli blockade.141 The OTP once again found reasonable basis to believe that war crimes had occurred—in this case willful killing, willfully causing serious injury to body and health, and outrages upon personal dignity committed by IDF forces against passengers on one of the ships.142 The Court possessed jurisdiction over these possible crimes on the ground that they occurred onboard a ship flying the flag of Comoros, a State Party of the ICC, and once again the OTP reasoned that the facts did not meet the gravity threshold. In important respects, the analysis of gravity closely followed the reasoning previously pursued in the Iraq context. First, the OTP once again invoked Article 8(1), finding no apparent evidence of war crimes ‘committed as part of a plan or policy or as part of a large-scale commission of such crimes’, and finding that this reference provided ‘statutory guidance’, Ibid. Ibid. 138 Ibid. 139 Ibid. 140 Ibid. 141 International Criminal Court, Office of the Prosecutor, Situation on Registered Vessels of Comoros, Greece and Cambodia, ‘Article 53(1) Report’, 6 November 2014. 142 Ibid. at § 132. 136 137

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88  The Elgar companion to the International Criminal Court even though ‘this threshold is not an element of the crime’.143 The report does not address the Appeals Chamber’s handling of this factor in Ntaganda, but neither, in contrast to the Ntaganda Pre-Trial Chamber, does the report treat that instructive factor as a mandatory requirement. Critically, the report states for these purposes that the OTP’s analysis is limited solely to the events under the Court’s jurisdiction, while considering neither ‘other alleged crimes committed in the context of the conflict between Israel and Hamas nor in the broader context of any conflict between Israel and Palestine’.144 According to the OTP’s approach, it does not matter whether or not the IDF actions were part of the large-scale commission of crimes falling mostly outside the ICC’s jurisdiction. It is necessary, instead, to consider only the scale of crimes falling within the Court’s jurisdiction which, according to the OTP’s analysis, is limited to the apparent crimes committed on the single Comoros-registered vessel. The report also remarks on the relatively small number of victims, noting that ten passengers lost their lives, and that 50–55 appear to have been injured.145 As with the Iraq situation, the point once again appears in comparative terms: these numbers reflect ‘relatively limited proportions as compared, generally, to other cases investigated by the Office’.146 From there, the report proceeds to the nature, manner of commission, and impact of the apparent crimes. With respect to nature, it observes that the war crimes of willful killing and willfully causing serious injury to body and health are both grave breaches of the Geneva Conventions, while the third crime at issue—outrages upon personal dignity—did not appear in this case to involve mistreatment rising to the level of either torture or inhuman treatment.147 With respect to ‘manner of commission’, the report highlights the lack of evidence that the alleged crimes ‘were systematic or resulted from a deliberate plan or policy to attack, kill or injure civilians or with particular cruelty’.148 It notes moreover, that the alleged crimes were confined to a single vessel.149 Finally, the report acknowledges the significant impact of the alleged crimes on the direct victims, but notes that Israel ultimately allowed the humanitarian supplies carried by the flotilla to be delivered to the people of Gaza. Accordingly, the operation did not ‘result … in blocking the access of Gazan civilians to any essential humanitarian supplies on board the vessels in the flotilla’.150 (Notably, however, the report does not address whether the events at issue might have deterred the delivery of subsequent humanitarian aid shipments by the same or other vessels.) Taken together, the report concludes, ‘the scale, impact and manner of the alleged crimes committed … does not fall within the intended and envisioned scope of the Court’s mandate’.151 In further explanation, the report does acknowledge that the OTP has previously pursued crimes involving similarly low numbers of direct victims. There is, in particular, the aforementioned Abu Garda case, involving the killing of 12 African Union Mission in Sudan (AMIS) peacekeepers and the destruction and pillaging of AMIS property, but the report 145 146 147 148 149 150 151 143 144

Ibid. at § 137. Ibid. Ibid. at § 138. Ibid. Ibid. at § 139. Ibid. at § 140. Ibid. Ibid. at § 141. Ibid. at § 142.

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Admissibility as a theory of international criminal law  89 distinguishes that case for two reasons: (1) attacks on peacekeepers are crimes of exceptional gravity not comparable to the alleged IDF crimes, and (2) the attacks at issue in Abu Garda had a graver impact on the local population as a whole resulting from the consequent suspension and then reduction of AMIS forces in the relevant area.152 Several aspects of the OTP’s analysis are especially noteworthy. The first is the dramatic impact of focusing the gravity analysis only on crimes within the Court’s jurisdiction. As an intuitive matter, the OTP’s analysis seems arbitrary: if it is indeed true, as the OTP accepts, that the gravity of a crime within the ICC’s jurisdiction (such as those allegedly committed by the IDF forces) is enhanced by its connection to other crimes, the gravity of that crime per se cannot reasonably depend upon whether or not those other crimes happen to fall within the ICC’s jurisdiction. To maintain otherwise yields the absurd conclusion that a subsequent Security Council decision to trigger ICC jurisdiction over a broader swath of the Gaza conflict—as the ICC Statute allows the Security Council to do—might retroactively enhance the gravity of the flotilla raid itself. But perhaps this approach is more defensible if one sees it as having less do with the assessment of gravity itself than with respecting the ICC’s consent-based approach to jurisdiction in cases not referred by the Security Council. Israel, after all, has chosen not to become an ICC State Party. While Comoros has joined the Court, it may seem improper for the OTP to pursue crimes committed by Israeli nationals on the territory of Comoros in a way that attaches decisive juridical significance to conduct that falls outside the Court’s jurisdiction absent Israel’s consent. Even so, it remains questionable whether this consideration truly speaks to gravity itself, or instead suggests a separate jurisdictional principle. More broadly, the OTP’s analysis raises questions about what sorts of linkages between different crimes appropriately enhance gravity. The language of Article 8(1)—which, as already stated, does not explicitly address admissibility—leads the OTP to focus on situations where one offense is ‘part’ of either a plan or policy, or a broader group of crimes. An additional, alternate approach would be to consider the gravity of the broader phenomenon that a particular crime exemplifies. In the case of Iraq, for instance, the OTP might have defended investigation based on the general seriousness of post-9/11 detainee abuse irrespective of the particular organizational ties that may or not may have existed between the alleged instances of abuse under consideration and other cases of detainee abuse. This approach appeals especially to an expressive model of the Court that sees the instillation of global norms as one of the ICC’s core functions. Considering that the Court lacks the capacity to pursue all but a small number of perpetrators in any event, perhaps the Court can maximize its impact by targeting a diverse set of grave phenomena, even if doing so involves pursuing cases whose exceptional gravity might not be as apparent when viewed in isolation. A final question relates to the possible influence of political considerations. Although the OTP’s analysis of the Iraq and Comoros situations appeals solely to legal criteria, a more skeptical observer might note the apparently convenient result of avoiding politically explosive investigations into actions by forces of two powerful states. In contrast to the Iraq situation, however, the Comoros matter did not end with the Prosecutor’s report, but led to a dramatic series of judicial decisions that shed further light on both the gravity requirement and the balance of authority between Court and Prosecutor

Ibid. at §§ 145–47.

152

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90  The Elgar companion to the International Criminal Court regarding decisions not to investigate or prosecute. As an ICC State Party that had formally referred the matter, Comoros exercised its right under Article 53(3)(a) of the Rome Statute to request the Pre-Trial Chamber’s review of the OTP’s decision not to proceed.153 The same provision further permits the Pre-Trial Chamber to review such a decision, and also to ‘request the Prosecutor to reconsider that decision’.154 On 16 July 2015, Pre-Trial Chamber I issued a decision finding fault with several aspects of the Prosecutor’s gravity assessment and requesting the reconsideration contemplated by the Statute.155 First, the Pre-Trial Chamber rejected the Prosecutor’s position regarding the jurisdictional constraints of the gravity assessment. Noting that the Rome Statute’s rules of jurisdiction, ‘do not preclude the Court from considering facts that in themselves occur outside of its jurisdiction for the purpose of determining a matter within its jurisdiction’, the Court reasoned that it ‘has the authority to consider all necessary information, including as concerns extra-jurisdictional facts for the purpose of establishing crimes within its competence as well as their gravity’.156 In other words, while the Court’s jurisdiction over any crimes committed by IDF forces might be limited in this matter to crimes committed on vessels flying the flag of an ICC State Party, no such territorial limitation applies to the gravity assessment. Nevertheless, the Court found no error in this aspect of the Prosecutor’s reasoning, because the Prosecutor had in fact considered extra-territorial circumstances notwithstanding its constrained summary of the law. In particular, the Prosecutor’s gravity assessment emphasized both that ‘no serious injuries occurred on the other vessels in the flotilla’, even though most of those vessels did not belong to a State Party, and also that ‘the identified crimes had no significant impact on the population in Gaza’.157 This portion of the Court’s opinion is just as noteworthy for what it does not say, as for what it does. Despite maintaining that the gravity assessment demands consideration of relevant extra-territorial events, the finding of no prosecutorial error implies that the Prosecutor was not obligated to consider any additional extra-territorial events beyond those she did consider. The Court did not insist, for example, that the gravity of the alleged crimes must be seen in the context of Israel’s general treatment of the Gaza population, or as part of the broader Israel– Palestine conflict. Instead, the Pre-Trial Chamber accepted the Prosecution’s more focused view that the flotilla raid should be assessed in isolation. The Pre-Trial Chamber next turned to the Prosecution’s evaluation of gravity. While taking no issue with the general factors that the Prosecutor had identified as relevant, the Chamber found multiple errors in the Prosecutor’s evaluation of those factors. First, ‘the Prosecutor correctly stated that an evaluation of gravity includes consideration of whether the individuals or groups of persons that are likely to be the object of an investigation, include those who may bear the greatest responsibility for the alleged crimes committed’, but then ‘fail[ed] to take into account this relevant factor’.158 Instead, the Prosecutor had noted that there was no reasonable basis to believe that ‘senior IDF commanders and Israeli leaders’ bore responsibility for the Art. 53(3)(a) ICCSt. Ibid. 155 Situation on the Registered Vessels of the Union of the Comoros, The Hellenistic Republic, and the Kingdom of Cambodia, ‘Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation’, (ICC-01/13-34), Pre-Trial Chamber, 16 July 2015. 156 Ibid. at § 17. 157 Ibid. at § 18. 158 Ibid. at § 22. 153 154

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Admissibility as a theory of international criminal law  91 alleged crimes.159 As the Chamber noted, the ‘ability to investigate and prosecute those being the most responsible for the crimes under consideration’, is distinct from ‘the seniority or hierarchical position of those who may be responsible’.160 The Prosecution had evaluated the latter when it should have evaluated the former. With respect to the scale of crimes, the Pre-Trial Chamber found that the Prosecutor had committed a material error in concluding that the numbers—‘ten killings, 50–55 injuries, and possibly hundreds of instances of outrages upon personal dignity, or torture or inhuman treatment’—militated against sufficient gravity rather than in favor of sufficient gravity.161 In presenting this disagreement, the Pre-Trial Chamber declined to elaborate upon how scale should be evaluated. Instead, the opinion appears to take it as self-evident that these numbers evidence significant gravity. In addition, the opinion notes—without elaborating on the question of absolute versus relative gravity—that the numbers exceed those in the Garda and Banda cases that ‘were previously not only investigated but even prosecuted by the Prosecutor’.162 The Chamber also faulted the Prosecutor’s consideration of the alleged crimes’ impact, in particular, the Prosecutor’s conclusion that the non-interruption of humanitarian supplies to Gaza militated against a finding of sufficient gravity. The emphasis on the general Gaza population was misplaced, the Court noted, given the acknowledged suffering of the direct victims of the alleged crimes and their families. As the Court observed, ‘the physical, psychological or emotional harm suffered by the direct and indirect victims of the identified crimes must not be undervalued and needs not be complemented by a more general impact of these crimes beyond that suffered by the victims’.163 In addition, the Court found that the Prosecutor had underemphasized the impact on the Gaza population that the events at issue certainly did have. In particular, ‘the commission of the identified crimes on the Mavi Marmara, which were highly publicised, would have sent a clear and strong message to the people in Gaza (and beyond) that the blockade of Gaza was in full force and that even the delivery of humanitarian aid would be controlled and supervised by the Israeli authorities’.164 Moreover, the ‘the international concern caused by the events at issue, which, inter alia, resulted in several fact-finding missions, including by the UN Human Rights Council and the UN Secretary General, is somehow at odds with the Prosecutor’s simplistic conclusion that the impact of the identified crimes points towards the insufficient gravity of the potential case(s) on the mere grounds that the supplies carried by the vessels were ultimately delivered to the people of Gaza’.165 As a result of these findings, the decision ‘requests the Prosecutor to reconsider her decision not to initiate an investigation’, and further provides that she ‘shall do so as soon as possible’, and ‘shall notify the Chamber, Comoros and the victims who have provided observations of her conclusion and the reasons for it’.166 As is evident, the decision’s many observations all line up with a single, consistent theme: as a matter of both substantive requirement and evidentiary burden, the gravity threshold is less onerous than the Prosecutor has made it out to be. Indeed, the opinion may reasonably be inter 161 162 163 164 165 166 159 160

Ibid. at § 23. Ibid. Ibid. at § 26. Ibid. Ibid. at § 47. Ibid. at § 48. Ibid. Ibid. at § 50.

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92  The Elgar companion to the International Criminal Court preted to advance a strong presumption in favor of investigation in cases that otherwise meet the Rome Statute requirements. Apart from its cursory and unelaborated mention of the Garda and Banda cases, the opinion dedicates no attention at all to the question of relative gravity. How should the Prosecutor proceed, for example, when it lacks the capacity and resources to pursue every case within the Court’s jurisdiction that meets some minimum threshold of admissibility? And how, if at all, should this fact affect the interpretation of the gravity threshold itself? To be fair, this omission in the Court’s opinion may simply reflect the fact that the Prosecutor’s report did not itself present the issue in such stark terms. The Pre-Trial Chamber opinion confines itself to critiquing the arguments the Prosecutor did advance, and it merely requests the Prosecutor to reconsider the matter in light of those observations. The Prosecutor appealed the Pre-Trial Chamber decision, and on 6 November 2015, the Appeals Chamber rejected that appeal with an opinion that provided an apparently pyrrhic victory for the Pre-Trial Chamber.167 The Appeals Chamber avoided the merits of the Prosecutor’s arguments because it found that the appeal was itself inadmissible. Pursuant to Article 82 (1)(a) of the Rome Statute, a party may appeal ‘a decision with respect to jurisdiction or admissibility’,168 but the Appeals Chamber found this provision to be inapplicable because the Pre-Trial Chamber ruling was not actually a decision on admissibility.169 Instead, as dictated by the language of Article 53(3)(a), it was merely ‘a request to the Prosecutor to reconsider her decision not to initiate an investigation’.170 And most critically, the Court noted, ‘the ultimate decision as to whether to do so is for her’.171 As the Court elaborated, both the text and drafting history of the Rome Statute make clear the intention to afford the Prosecutor discretion over decisions not to investigate. Judges Silvia Fernández De Gurmendi and Judge Christine Van Den Wyngaert filed a dissenting opinion arguing that the Pre-Trial Chamber ruling was in fact a ‘decision on admissibility’, and that the appeal was therefore admissible.172 This opinion did not, however, contradict the majority conclusions regarding the non-binding nature of the Pre-Trial Chamber’s request or regarding the Prosecutor’s ultimate discretion regarding decisions not to investigate. The Office of the Prosecutor reopened its preliminary examination in response to the Pre-Trial Chamber’s request, and on 30 November 2017, Bensouda issued a statement reaffirming her original assessment and announcing the closure of the investigation.173 Apparently

Situation on the Registered Vessels of the Union of the Comoros, the Hellenistic 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-01/13-51), Appeals Chamber, 6 November 2015 (hereafter: 2015 Comoros Appeals Chamber Decision). 168 Art. 82(1)(a) ICCSt. 169 2015 Comoros Appeals Chamber Decision, at § 50. 170 Ibid. 171 Ibid. 172 Dissenting Opinion of Judges De Gurmendi and Van Den Wyngaert, Situation on the Registered Vessels of the Union of the Comoros, the Hellenistic 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-01/13-51), Appeals Chamber, 6 November 2015. 173 International Criminal Court, Statement of ICC Prosecutor, Fatou Bensouda, on the Situation on registered vessels of the Union of the Comoros et al., 30 November 2017, available online at https://​www​ .icc​-cpi​.int/​Pages/​item​.aspx​?name​=​171130​_OTP​_Comoros. 167

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Admissibility as a theory of international criminal law  93 taking the Appeals Chamber ruling as authorization to defy the Pre-Trial Chamber, the statement concedes nothing to the Pre-Trial Chamber’s reasoning, maintaining instead that ‘the Pre-Trial Chamber I’s request did not provide supportable grounds to reverse my previous decision’.174 But this was not the end of the matter. Acting upon a new petition from Comoros, the Pre-Trial Chamber issued a further ruling on 15 November 2018 which insisted that the original 2015 decision was in fact legally binding and that the Prosecutor was obligated to conduct its reconsideration in conformity with the Pre-Trial Chamber’s findings.175 Noting the long passage of time since that earlier decision, the Chamber gave the Prosecutor a six-month deadline to complete that reconsideration. Once again, the Prosecutor appealed. On 2 September 2019, the Appeals Chamber issued a judgment upholding the new Pre-Trial Chamber ruling.176 Although affirming that the ultimate decision whether to proceed remained with the Prosecutor, the Appeals Chamber clarified that the Prosecutor was not free to ‘ignore the basis for the pre-trial chamber’s request for reconsideration’, but was instead ‘required to demonstrate how she addressed the relevant issues in light of the pre-trial chamber’s directions’.177 In particular, the Court explained that the Prosecutor was bound by the Court’s rulings regarding applicable legal standards, including those relevant to assessing gravity. As the Court elaborated, ‘[i]t is therefore not open to the Prosecutor, despite the margin of appreciation that she enjoys in deciding whether to initiate an investigation or not, to disagree with, or fail to adopt, a legal interpretation of the pre-trial chamber that is contained in a request for reconsideration’.178 By contrast, the Court maintained that the Prosecutor was owed more deference with respect to factual findings. While ‘the Prosecutor cannot ignore a request by the pre-trial chamber to take into account certain available information’, the Pre-Trial Chamber likewise may not ‘direct the Prosecutor as to how to assess this information and which factual findings she should reach. Rather, it is primarily for the Prosecutor to evaluate the information made available to her and apply the law (where relevant, as interpreted by the pre-trial chamber) to the facts found.’179 Moreover, the Court noted, the Prosecutor was owed a margin of appreciation in her ‘evaluation of numerous factors and information relating thereto, which the Prosecutor has to balance in reaching her decision’.180 Although the decision asserts a greater role for judicial oversight than was apparent from the earlier Appeals Chamber ruling, its affirmation of prosecutorial discretion over factual determinations simultaneously emphasizes the limited impact of admissibility as a check on prosecutorial authority. Ultimately, it is the Prosecutor who must investigate a case, and in so doing, the Prosecutor will exert substantial authority over the collection, presentation, and Ibid. Situation on the Registered Vessels of the Union of the Comoros, the Hellenistic Republic, and the Kingdom of Cambodia, ‘Decision on the “Application for Judicial Review by the Government of the Union of the Comoros”’, (ICC 01/13-68), Pretrial Chamber, 15 November 2018 (hereafter: 2018 Comoros PTC Decision). 176 Situation on the Registered Vessels of the Union of the Comoros, the Hellenistic Republic, and the Kingdom of Cambodia, ‘Judgment on the appeal of the Prosecutor against Pre-Trial Chamber I’s “Decision on the ‘Application for Judicial Review by the Government of the Union of the Comoros’”’, (ICC-01/13 OA 2), Appeals Chamber, 2 September 2019 (hereafter: 2019 Comoros Appeals Chamber Decision). 177 Ibid. at § 77. 178 Ibid. at § 78. 179 Ibid. at § 80. 180 Ibid. at § 81. 174 175

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94  The Elgar companion to the International Criminal Court interpretation of the evidence. The availability of judicial review over decisions not to investigate or prosecute may provide a measure of meaningful oversight. Such review encourages transparency in prosecutorial decision making. A Prosecutor may risk harm to her reputation and perceived legitimacy if her reasons for not proceeding are unpersuasive. At the same time, it remains to be seen exactly how meaningful this review is. Moreover, a prosecutor seeking to avoid judicial oversight may simply defer that review by holding investigations open without reaching a final decision one way or the other. The possibility of more authoritative judicial review exists only in the opposite scenario, when the Prosecutor wishes to pursue a case whose admissibility is challenged. And as already discussed, the gravity requirement has thus far failed to provide a meaningful obstacle to prosecutorial action even in that context. With respect to the substantive legal standard of gravity, the combined impact of the two Appeals Chambers rulings presents an anomaly. According to the second decision, the Prosecutor is bound to apply the legal interpretations of the Pre-Trial Chamber which, pursuant to the first decision, the Appeals Chamber has declined to review on the merits. In other words, the Prosecutor is required to put aside her understanding of the law and instead follow the Pre-Trial Chamber’s interpretation of gravity even though the Appeals Chamber itself has not yet ruled on that question and, for all we know, may in fact agree with the Prosecutor’s position. This anomaly may, however, be only a temporary accident of procedural posture. In its 2017 ruling, the Pre-Trial Chamber noted that the Prosecutor’s earlier appeal had failed because the Prosecutor had invoked the inapplicable Article 82(1)(a) which only permits appeals of ‘[a] decision with respect to jurisdiction or admissibility’, but that the Prosecutor had not invoked, as it might have, Article 82(1)(d), which permits the appeal of ‘[a] decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings’.181 The Appeals Chamber 2019 judgment likewise affirms that ‘where the Prosecutor disagrees with the pre-trial chamber’s interpretation of the applicable law, she may avail herself of any available avenues to appeal the ruling’.182 Presumably, one day the Appeals Chamber will have occasion to consider the substantive requirements of gravity. As it stands, however, the Prosecutor must conduct her reconsideration pursuant to the Pre-Trial Chamber’s assessment of the law without benefit of the Appeals Chamber’s views. As of this writing, the Prosecutor has again reiterated her decision not to proceed with investigation in light of the Appeals Chamber’s findings. In a revised statement, the OTP purports to apply the legal interpretations of the Pre-Trial Chamber that issued the relevant 2015 ruling, while also maintaining that its analysis ‘remains without prejudice to its approach in other situations’ considering, in particular, that ‘one Pre-Trial Chamber is not bound to adopt the legal reasoning of another Pre-Trial Chamber.’183 The matter is now again before the Pre-Trial Chamber. The Iraq situation, in addition, is also once again before the OTP. On 13 May 2014, the Prosecutor announced the re-opening of its preliminary examination into alleged crimes

2018 Comoros PTC Decision, at § 94. 2019 Comoros Appeals Chamber Decision, at § 78. 183 Annex 1 to the Notice of Prosecutor’s Final Decision under rule 108(3), as revised and refiled in accordance with the Pre-Trial Chamber’s request of 15 November 2018 and the Appeals Chamber’s judgment of 2 September 2019, Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, (ICC-01/13-99-Anx1), 2 December 2019, § 14 n.20. 181 182

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Admissibility as a theory of international criminal law  95 by British forces following the receipt of additional information involving a greater number of possible victims than the OTP had considered when it previously closed that inquiry. How the OTP re-assesses the gravity of this situation remains to be seen.

4. CONCLUSION As this chapter explores, admissibility occupies an unsettled place in the structure of the ICC. Conceptually, the dual requirements of complementarity and gravity play a crucial role in defining the Court’s mission, and indeed the theory of ICL itself. But the significance of the formal admissibility requirements as the procedural means to advance those broader concepts remains less clear. To date, only one case—that of Abdullah Al-Senussi—has been ruled inadmissible, affirming that in most situations the workings of the Court will depend more upon prosecutorial discretion and application of substantive criminal law standards than upon admissibility per se. Of course, prosecutorial discretion takes place in the shadow of judicial enforcement, and the OTP’s relative success in this area may simply reflect the prosecution’s internalization and application of the admissibility standards at the case selection stage. But the case law on admissibility also reflects interpretive choices that enhance prosecutorial discretion. The Court’s ‘same person/same conduct’ test sets a narrow path for states seeking to avoid ICC intervention, one that requires close adherence to the ICC Prosecutor’s own judgments regarding which persons require investigation for which conduct. And the Appeals Chamber precedents on the gravity standard emphasize the substantial deference owed to prosecutorial judgment even when that judgment is subject to judicial review. Still, the very existence of judicial review of admissibility has independent benefits. Although coming at the cost of additional procedural hurdles for an already overburdened court, admissibility adjudication can advance institutional legitimacy by fostering transparency over case selection and requiring the Prosecutor to defend her decisions with reasoned arguments. All of these conclusions, however, are necessarily tentative: after almost two decades of the ICC’s existence, the Court’s admissibility jurisprudence remains in many respects in its infancy, with critical questions yet to be confronted. The story of admissibility is very much a work in progress.

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5. Heads of state and other government officials before the International Criminal Court: the uneasy revolution continues Leila Nadya Sadat

1. INTRODUCTION The adoption of the Rome Statute of the International Criminal Court (ICC) just over 20 years ago marked an uneasy revolution in international law and practice.1 For the first time in history, 120 States voted to create a permanent Court of last resort to hold accountable individuals accused of committing the most serious crimes under international law: war crimes, crimes against humanity, genocide, and, in the future, the crime of aggression. The Court’s jurisdiction over aggression was activated on 17 July 2018,2 and the Statute now includes all four ‘core’ crimes, each of which may be said to have the status of jus cogens.3 These are crimes defined by international law sensu stricto, that ‘protect fundamental values of the international legal community as a whole’, and ‘articulate a ius puniendi of that community’.4

Leila Nadya Sadat and S. Richard Carden, ‘The New International Criminal Court: An Uneasy Revolution’, 88 Georgetown Law Journal (Geo LJ) (2000) 381. 2 Although the Nuremberg Tribunal dubbed aggression the ‘supreme international crime’, Judgment, ‘International Military Tribunal (Nuremberg), Judgment and Sentences’, 41 The American Journal of International Law (AJIL) (1947) 172–333, at 186 [hereafter Nuremberg Judgment], it took 20 years to activate the ICC’s jurisdiction over that crime, and it is subject to a less compulsory regime than jurisdiction over the other crimes. ICC Res. ASP/16/Res. 5, Activation of the jurisdiction of the Court over the crime of aggression, 14 December 2017 (activating the Court’s jurisdiction over the crime of aggression as of 17 July 2018). 3 See e.g., M. C. Bassiouni, ‘International Crimes: Jus Cogens and Obligatio Erga Omnes’, 59 Law and Contemporary Problems (Law & Contemp Probs) (1996) 63–74, at 68; A. Orakhelashvili, Peremptory Norms in International Law (Oxford: Oxford University Press, 2006); M. M. Whiteman, ‘Jus Cogens in International Law, with a Projected List’, 7 Georgetown Journal of International and Comparative Law (GA J Intl & Comp L) (1977) 609–626; D. Donat Cattin, ‘Intervention of Humanity or the Use of Force to Halt Mass-Atrocity Crimes, the Peremptory Prohibition of Aggression and the Interplay between Jus ad Bellum, Jus in Bello and Individual Criminal Responsibility on the Crime of Aggression’, in P. Acconici, et al. (eds), International Law and the Protection of Humanity: Essays in Honor of Flavia Lattanzi (Leiden, Netherlands: Brill Nijhoff, 2017) 353. 4 C. Kreβ, ‘International Criminal Law’, Max Planck Encyclopedia of Public International Law (2009), available online at www​.legal​-tools​.org/​doc/​de7638/​pdf/​. See also A. Cassese, International Criminal Law (2nd edn., Oxford: Oxford University Press, 2008); J. Paust et al., International Criminal Law: Cases and Materials (4th edn., Durham: Carolina Academic Press, 2013), at 6–22; G. Werle and B. Burghardt, Principles of International Criminal Law (3rd edn., Oxford: Oxford University Press, 2014), at 10 (‘Today there is no doubt that the Nuremberg Principles are firmly established as customary international law.’). 1

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Heads of state and other government officials before the ICC  97 A fundamental principle of the Rome Statute is that all defendants are equal before it. 5 Following the example of Article IV of the Genocide Convention,6 Article 27(1) (Irrelevance of Official Capacity) provides: This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

This provision codifies the customary international law rule that whatever immunities an official might otherwise have under international law cannot be pled as a bar or a defense to criminal responsibility, ratione materiae. Article 27(2) complements Article 27(1), as follows: Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

Article 27 has been referred to as the ‘most profound article ever to be written into a multilateral treaty’,7 and yet was, during the ICC negotiations, ‘uncontested throughout the discussions, and … relatively easy to agree on’.8 The International Criminal Tribunals for the former Yugoslavia and Rwanda, which had similar provisos in their Statutes,9 found the provision represented ‘a rule of customary international law’,10 as did the Special Court for Sierra Leone in the Charles Taylor case.11 This is unsurprising. As I have written elsewhere, the substantive rules of the Rome Statute must be grounded in customary international law, given that the Security Council may refer situations involving non-State Parties and their nationals to the Court. The Council cannot ‘create’ rules of international law, it can only apply them.12

The Statute applies only to natural persons. Art. 25 ICCSt., adopted on 17 July 1998 (entered into force 1 July 2002). 6 UN Convention on the Prevention and Punishment of the Crime of Genocide Art. IV, 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951). Article IV of the Convention provides: ‘Persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals’. 7 Prince Zeid Ra’ad Zeid Al-Hussein, ‘For Love of Country and International Criminal Law’, 24 American University International Law Review (Am U Intl L Rev) (2008) 647–664, at 656. 8 Per Saland, ‘International Criminal Law Principles’, in Roy S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute; Issues, Negotiations, Results (The Hague: Kluwer Law International, 1999) 189, at 202. 9 Art. 7(2) ICTYSt.; Art. 6(2) ICTRSt. 10 Decision on Preliminary Motion, Prosecutor v. Slobodan Milosevic (IT-99-37-PT), 8 November 2001, at 28. The Chamber noted that Jean Kambanda, who had pled guilty before the ICTR, had not asserted his immunity as the former Prime Minister of Rwanda in the case brought against him for genocide. Ibid., at 26. 11 Decision on Immunity from Jurisdiction, Prosecutor v. Charles Taylor (SCSL-2003-01-I), 31 May 2004, at 52. 12 See generally, L. N. Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium (Ardsley, NY: Transnational Publishers, 2002), at 7; P. C. Szasz, ‘The Security Council Starts Legislating’, 96 AJIL (2017) 901–905. (‘It has long 5

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98  The Elgar companion to the International Criminal Court Today the meaning of Article 27 is hotly disputed, however. Individuals on the receiving end of the Court’s investigations, subpoenas and warrants have protested its application to them, particularly in light of Article 98’s potential application,13 and have successfully had their governments (over which they often preside) take up their cause. This has led several States Parties to the Rome Statute to assert that they are unable (and unwilling) to surrender individuals who may have immunity under international law to the ICC without the consent of their State of nationality. The most recent example was the Hashemite Kingdom of Jordan, which pleaded ‘fundamental rules and principles of international law’ that required it to refuse to execute an arrest warrant of the Court for President Al-Bashir of Sudan on the basis of his alleged immunity under international law. Although the Kingdom’s argument was cast procedurally, in terms of the interaction of Article 98(1) with Article 27(2), the brief essentially asserts that Heads of State remain immune under international law so long as they remain in office, whether the jurisdiction before which they are sought is a national or international court. This Chapter examines the ‘original understanding’ of Article 27 and Article 98 and their inclusion in the Rome Statute (Part 2), the current controversy regarding their application by the Court (Part 3), and endeavors to resolve existing controversies by reference to ‘first principles’ of international criminal law (Part 4). Part 4 also addresses, albeit briefly, the decision of the Appeals Chamber on Jordan’s appeal in the Al-Bashir case, which found that Al-Bashir could not benefit from immunity before the court and that Jordan was therefore required to surrender him. It is impossible in a few short pages to summarize the entire decade of debate on this subject; but I touch on some of the most essential points. I conclude that current efforts to rewrite the meaning of Article 27 represent an effort to change existing customary international law and impose, post facto, a new interpretive gloss on Article 27, fundamentally

been accepted that intergovernmental organizations (IGOs) cannot legislate international law …. Exceptionally, a few IGOs are empowered to adopt international legal rules that could become binding on their members, but these states could opt out by raising a timely objection.’) But see Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir, Minority Opinion of Judge Marc Perrin de Brichambaut (The Prosecutor v. Omar Hassan Ahmad Al-Bashir) (ICC-02/05-01/09), 6 July 2017 (PTC II) [hereafter South Africa Minority Opinion] suggesting although scholars disagree on the powers of the UN Security Council to set aside customary international law … the ‘prevailing opinion [is] that Article 103 should be read extensively—so as to affirm that charter obligations prevail also over United Nations Member States’ customary law obligations’. Ibid. at 61 (citing International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, A/ CN.4/L.682, 13 April 2006, at 345). Although the ILC Study Group admits that the Security Council cannot contravene a jus cogens norm, ibid. at 346, the broad assertion that it can set aside customary international law or create new rules of international law is virtually un-footnoted, and seems at odds with current understandings of the limits of the Council’s powers. See e.g., N. D. White and A. Abass, ‘Countermeasures and Sanctions’, in M. D. Evans (ed.), International Law (Oxford: Oxford University Press, 2003), at 518 (‘Article 103 gives obligations arising out of the UN Charter pre-eminence over obligations arising under any other international treaty, though it is not clear that this affects member States’ customary rights.’ Ibid.). 13 Art. 98(1) ICCSt. provides: ‘The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.’

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Heads of state and other government officials before the ICC  99 changing its meaning and scope. It is the view of this writer that doing so ‘informally’ is inconsistent with the canons of treaty interpretation applicable to the Rome Statute;14 and cannot, therefore, be effectuated by the Court’s judges, but would instead require an amendment to the Statute. Such an amendment would arguably work irreparable harm to the Statute itself and the social values and policies that the Rome Statute protects. To the extent that States believe the International Criminal Court’s investigations and proceedings infringe upon their sovereignty, the proper solution is for them to work to prevent the commission of Rome Statute crimes and, in cases in which atrocity crimes have been committed, to bring cases against the perpetrators in their national courts.

2.

THE ORIGINAL UNDERSTANDING

The treaty adopted in 1998 was the product of many years of negotiations, and decades of prior drafts, scholarly drafts and political and intellectual debate. Generally speaking, early instruments setting forth rules for the conduct of war did not suggest the idea of individual criminal responsibility for their breach, although there are accounts of war crimes trials which are centuries old.15 Thus, the 1907 Hague Convention suggested inter-state reparations as a remedy for violations of the rules,16 but that seemed insufficient to prevent their abuse during World War I. The 1919 Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties17 established by the allied powers to assess responsibility after the war concluded that there should be an international ‘high tribunal’ for the trial of ‘enemy persons’ alleged to have committed ‘offences against the laws and customs of war and the laws of humanity’.18 The US dissenters to that Report objected not only to the conceptual revolution it offered but alleged that Heads of State, in particular, could not be brought before an international court but were only morally ‘responsible to mankind’ and only legally responsible to their ‘people’ as their ‘agent’ to whom they must answer in law.19 Head of State immunity was seen as a core principle of sovereignty, an extension of the Sun King’s apocryphal statement, l’état, c’est moi. It was thus unsurprising that, although the Treaty of Versailles provided for the trial of the Kaiser, following Germany’s defeat, the Netherlands nonetheless refused his extradition.20 Most efforts to establish an international criminal court following World War I did not clearly address the issue of head of state immunity. The International Law Association (ILA)

L. N. Sadat and J. M. Jolly, ‘Seven Canons of ICC Treaty Interpretation: Making Sense of Article 25’s Rorschach Blot’, 27 Leiden Journal of International Law (Leiden J Intl L) (2014) 755–788. 15 See e.g., M. P. Scharf and W. A. Schabas, Slobodan Milosevic on Trial: A Companion (London: Bloomsbury Academic, 2002), at 39 (‘The history of international war crimes trials begins with the 1474 prosecution of Peter von Hagenbach’). 16 Convention (IV) Respecting the Laws and Customs of War on Land Art. 3, 18 October 1907, 2277 UNTS 539 (entered into force 26 January 1910). 17 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties ‘Report Presented to the Preliminary Peace Conference’, 14 AJIL (1920) 95–154. 18 Ibid. at 123. 19 Ibid. at 135–136. 20 L. Sadat, ‘The Proposed Permanent International Criminal Court: An Appraisal’, 29 Cornell International Law Journal (Cornell Intl LJ) (1996) 665–726, at 670 (formerly Wexler). 14

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100  The Elgar companion to the International Criminal Court drafts of 192421 and 192622 omitted any reference, although the 1926 draft proposed an Article on the diplomatic immunities of Court personnel when travelling to or from The Hague on the business of the Court,23 and proposed both State and individual criminal responsibility.24 The 1928 Draft of the International Association of Penal Law25 was similarly silent. It was not until the 1941 Draft of the London International Assembly that there was an explicit mention of crimes committed by Heads of State.26 Indeed, the draft of the London International Assembly Statute provided for jurisdiction over war crimes in four scenarios, the first two of which presage the development of the doctrine of ‘complementarity’ at the International Criminal Court, and one of which explicitly addressed the criminal responsibility of Heads of State, as follows: (a) Crimes in respect of which no national court of any of the United Nations has jurisdiction; (b) Crimes in respect of which a national court of any of the United Nations has jurisdiction, but which the State concerned elects not to try in its own courts; (c) Crimes which have been committed or which have taken effect in several countries or against nationals of different countries; and (d) Crimes committed by Heads of State.27 Article 7 of the London Charter for the International Military Tribunal (IMT) at Nuremberg expressly included a provision regarding the potential immunity of a Head of State or other government official, to wit:

21 International Law Association, Report of the Twenty-Third Conference, September 8th–13th, 1924, Draft Statute for the Permanent International Criminal Court (London: Sweet & Maxwell, 1925), at 74–111. 22 International Law Association, Report of the Twenty-Fourth Conference, August 5th–11th, 1926, The Permanent International Criminal Court (London: Sweet & Maxwell, 1925), at 106–309. At the 1926 meeting, a resolution on the creation of an international criminal court was approved. Ibid. at 183. 23 Ibid. at Art. 6. 24 Ibid. at Art. 24 (a charge may be lodged against a state and/or a subject or citizen of a state). 25 Revue Internationale de Droit Pénal, No. 3, pp. 293 (French) (1928). An English translation of the draft statute prepared by Professor V. V. Pella, as adopted by the International Association for Penal Law in 1928, and subsequently revised in 1946 can be found at UN Secretary General, Historical Survey of the Question of International Criminal Jurisdiction, at 75–88, UN Doc. A/CN.4/7/Rev.1, UN Sales No. V.8 (1949). 26 United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War (London: HMSO, 1948) 99, at 101–102, available online at www​.unwcc​.org/​wp​-content/​uploads/​2017/​04/​UNWCC​-history​.pdf (‘The members of the London International Assembly took great pains to destroy the prevailing theory, defended at Versailles by the United States representatives, that a head of State cannot be held personally responsible or tried for having framed a policy of aggression or one which disregards the fundamental laws of mankind, and that even for violations of positive law he is responsible only to the tribunals and laws of his own country. It was unanimously agreed that rank and position, however exalted, confers no immunity upon the accused in respect of war crimes …’). 27 R. J. Alfaro (Special Rapporteur on the Question of International Criminal Jurisdiction), Report on the Question of International Criminal Jurisdiction, UN Doc. A/CN.4/15 and Corr.1, 3 March 1950, p. 5, in Yearbook of the International Law Commission (YB Intl L Com), Vol. II (1950), available online at http://​legal​.un​.org/​docs/​?path​=​.​./​ilc/​documentation/​english/​a​_cn4​_15​.pdf​&​lang​=​E.

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Heads of state and other government officials before the ICC  101 The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.28

This provision was bitterly contested by the accused, but readily accepted by the Tribunal, which famously opined, in sweeping terms, that The principle of international law, which under certain circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings. Article 7 of the Charter expressly declares [quoting the language]. …the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorizing action moves outside its competence under international law.29

This holding was adopted by the International Law Commission in its 1950 formulation of the Nuremberg Principles,30 and is expressed in Article IV of the Genocide Convention of 1948. It suggests that, since international law established the immunities in the first place, it can remove them in cases of war crimes, crimes against humanity, crimes against peace, and genocide, whether prosecuted before an international court (like the IMT or the international penal tribunal contemplated by Article VI of the Genocide Convention) or a national court exercising jurisdiction in the State on the territory of which an act of genocide was committed.31 Thus, the Nuremberg Charter and Judgment prevailed over the US objections of 1919, and became understood as both customary international law and codified in international treaties.32 It subsequently found voice in the Statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda,33 and in the Statutes of the Special Court for Sierra Leone34 and the Extraordinary Chambers in the Courts of Cambodia.35 Given this backdrop, it is easy to understand why ‘irrelevance of official position’ was simply not a major issue during negotiation of the Rome Statute. The 1993 Report of the International Law Commission’s Working Group on a Draft Statute for an International The Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945, 8 UNTS 279, reprinted in 39 AJIL (Supp. 1945) 257. 29 Nuremberg Judgment, supra note 2, at 221. 30 Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, Rep. of the Int’l Law Comm’n to the Gen. Assembly, UN Doc. A/1316 (1950), reprinted in [1950] 2 YB Intl L Com 364, 374, 376, UN Doc. A/CN.4/SER.A/1950/Add.1, available online at http://​legal​.un​.org/​ilc/​texts/​instruments/​english/​commentaries/​7​_1​_1950​.pdf. 31 The 1949 Geneva Conventions seem to have contemplated a form of universal jurisdiction for prosecution, but are silent regarding the question of Head of State immunity. 32 Werle and Burghardt, supra note 4, at 11. 33 Art. 7(2) ICTYSt.; Art. 6(2) ICTRSt. 34 Art. 6(2) SCSLSt. 35 Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, Art. 29, NS/ RKM/1004/006 (27 October 2004). It is also found in the Apartheid Convention, Article III of which provides that ‘international criminal responsibility shall apply … to individuals, members of organizations and institutions and representatives of the State …)’. G.A. Res. 3068 (XXVIII), 28 UN GAOR Supp. (No. 30) at 75, International Convention on the Suppression and Punishment of the Crime of Apartheid Art. 3, 30 November 1974, 1015 UNTS 243 (entered into force 18 July 1976). 28

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102  The Elgar companion to the International Criminal Court Criminal Court omitted the question entirely,36 because the Commission had bifurcated work on the Court from its work on the Draft Code of Crimes against the Peace and Security of Mankind,37 which had engaged on this issue for many years.38 The same was true of the 1994 Draft Statute for the Court, which was also silent on the question of irrelevance of official position.39 In the words of the Commission, the 1994 draft was intended to be ‘primarily … [an] adjectival and procedural instrument’.40 Thus to find the International Law Commission’s text on ‘irrelevance of official position’ requires a renvoi to the 1996 Draft Code of Crimes, which provided, in Article 7: The official position of an individual who commits a crime against the peace and security of mankind, even if he acted as head of State or Government, does not relieve him of criminal responsibility or mitigate punishment.41

The Commentary to this Article indicates that this was not just intended to ‘prevent an individual … from invoking his official position as a circumstance absolving him from responsibility’.42 Rather, ‘the author of a crime under international law cannot invoke his official position to escape punishment in appropriate proceedings’. The Commentary concludes: The absence of any procedural immunity with respect to prosecution or punishment in appropriate judicial proceedings is an essential corollary of the absence of any substantive immunity or defence. It would be paradoxical to prevent an individual from invoking his official position to avoid responsibility for a crime only to permit him to invoke this same consideration to avoid the consequences of this responsibility.43

Once the General Assembly established a Preparatory Committee to discuss the ILC’s 1994 Draft,44 the Preparatory Committee essentially consolidated the work on the Court with the 36 Report of the Working Group on the Question of an International Criminal Jurisdiction, in Report of the International Law Commission on the Work of its Forty-Fourth Session, 47 UN GAOR Supp. (No. 10), UN Doc. No. A/47/10 (1992). 37 The early work of the Commission on the Draft Code included provisions on irrelevance of official capacity. See e.g., Report of the International Law Commission on the Work of its Second Session, Report of J. Spiropoulos on the Draft Code of Offenses Against the Peace and Security of Mankind, UN Doc. A/ CN.4/25, 26 April 1950, at 87–88 (irrelevance of official capacity). 38 J. Crawford, ‘The ILC’s Draft Statute for an International Criminal Tribunal’, 88 AJIL (1994) 140–152, at 141. 39 Report of the International Law Commission, UN GAOR, 49th Sess., Supp. No. 10, UN Doc. A/49/10 (1994) [hereafter 1994 Draft Statute]. On the drafting history of the 1994 draft, see Sadat, Proposed International Criminal Court, supra note 20, at 665–668 and 684–686; see also J. Crawford, ‘The ILC Adopts a Statute for an International Criminal Court’, 89 AJIL (1995) 404. 40 1994 Draft Statute, supra note 39, at 71, cmt. 41 Draft Code of Crimes Against the Peace and Security of Mankind with Commentaries, in Report of the International Law Commission on the Work of its Forty-Eighth Session (A/51/10) (1996); see also Draft Code of Crimes Against the Peace and Security of Mankind, Art. 13, in Report of the International Law Commission on the Work of its Forty-Third Session (A/46/10) (1991) (‘The official position of an individual who commits a crime against the peace and security of mankind, and particularly the fact that he acts as head of State or Government, does not relieve him of criminal responsibility.’). 42 Ibid. at 27, at 6. 43 Ibid. 44 Although the ILC had recommended that the General Assembly convene a diplomatic conference ‘to study the draft statute and … conclude a convention on the establishment of an international criminal

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Heads of state and other government officials before the ICC  103 work on the draft code, and throughout the various iterations of the drafting process, precursors of what became Article 27 of the Rome Statute were present in each new iteration of the draft statute. This was not true of Article 98, which was introduced late in the negotiations at the 1998 Diplomatic Conference by Singapore,45 and was inserted in the Statute largely without change or debate.46 Although it often difficult to piece together the legislative history of the Rome Statute, as particularly during the Preparatory Committee process many discussions were held informally or documents were circulated without being given an official UN Conference Document Number (meaning that they were not archived),47 there is very little change from iteration to iteration with respect to the provision which ultimately became Article 27 of the Statute.48 Contemporaneous writings about the negotiation of the Statute indicate that Article 98’s subsequent inclusion was in no way meant to undermine the fundamental principles codified in Article 27: it was instead meant to allow a State requested to surrender a diplomat accredited to it or a search of diplomatic premises within its borders to comply with its pre-existing international legal obligations in so doing. In the words of two delegates to the Rome Conference, ‘[Article 98] does not reduce the effect of article 27 in any way. A person sought for arrest for court’, ILC 1994 Draft Statute, supra note 39, at 90, instead the General Assembly established an Ad Hoc Committee to review the ILC Draft. Resolution on the Establishment of an International Criminal Court, GA Res 49/53, 49th Sess, 84th plen mtg, UN Doc. A/RES/49/53, 17 February 1995. The work of the Ad Hoc Committee led to the establishment of the Preparatory Committee by the General Assembly. The Preparatory Committee held six official meetings at the UN Headquarters in New York City from 25 March to 12 April, and 12 to 30 August 1996, from 11 to 21 February, 4 to 15 August, and 1 to 12 December 1997, and from 16 March to 3 April 1998. For a summary of these Preparatory Committee proceedings, see Report of the Preparatory Committee on the Establishment of an International Criminal Court (Proceedings of the Preparatory Committee During March–April and August 1996), Vols. I and II, UN GAOR, 51st Sess., Supp. No. 22, UN Doc. A/51/22, 13 September 1996; Decisions Taken by the Preparatory Committee at its Session Held from 11 to 21 February 1997, UN Doc. A/AC.249/1997/L.5, 12 March 1997; Decisions Taken by the Preparatory Committee at its Session held from 4 to 15 August 1997, UN Doc. A/AC.249/1997/L.8/Rev.1 (1997); Decisions Taken by the Preparatory Committee at its Session Held from 1 to 12 December 1997, UN Doc. A/AC.249/1997/L.9/Rev.1, 18 December 1997; Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN Doc. A/CONF.183/2/Add.1, 14 April 1998; Report of the Inter-sessional Meeting from 19 to 30 January 1998 in Zutphen, The Netherlands, UN Doc. A/AC.249/1998/L.13, 4 February 1998. In addition, several informal inter-sessional meetings took place resulting in revised drafts of the Statute. The International Institute of Higher Studies in Criminal Sciences (ISISC) in Siracusa, Italy hosted four of these inter-sessional meetings held from 3 to 8 December 1995, 10 to 14 July 1996, 29 May to 4 June 1997 and 17 to 21 November 1997. M. C. Bassiouni, ‘Historical Survey: 1919–1998’, in M. C. Bassiouni (ed.), The Statute of the International Criminal Court (Ardsley, NY: Transnational Publishers, 1998) 1, at 24. The final intersessional meeting, held in Zutphen, the Netherlands, in January 1998, produced the Zutphen Intersessional Draft. Report of the Intersessional Meeting from 19 to 30 January 1998 in Zutphen, the Netherlands, UN Doc. A/AC.249/1998/L.13, 4 February 1998. For a chronology of the Preparatory Committee process, as well as the Diplomatic Conference, see generally Sadat, Transformation of International Law, supra note 12, at 8–19 and sources cited. 45 Proposal Submitted by Singapore, UN Doc. A/CONF.83/C.1/WGIC/L7. 46 See W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (2nd edn., Oxford: Oxford University Press, 2016), at 1343–1344. 47 M. C. Bassiouni, ‘Introduction’, in M. C. Bassiouni and W. A. Schabas (eds), The Legislative History of the International Criminal Court (2nd edn., Leiden, Netherlands: Brill Nijhoff, 2016) i, at xviii. 48 Schabas, supra note 46, at 594–596.

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104  The Elgar companion to the International Criminal Court prosecution by the Court cannot claim an immunity based on official capacity nor does such capacity effect the jurisdiction of the Court over the person’.49 States ratifying the Rome Statute after its adoption in 1998 accepted the common understanding of Article 27 as removing Head of State (and other official) immunities in front of the Court. France, for example, was required by the French Constitutional Council to amend its constitution to ratify the Statute.50 The Constitutional Council found that Article 27 of the Rome Statute was inconsistent with the legal regime set forth in the French Constitution, which contained immunities from criminal prosecution for the French President, members of Parliament, and other members of the French Cabinet (gouvernement). Additionally, because the ICC could be seized in a case involving the application of a French amnesty law or a French statute of limitations, the Council found that constitutional revision was required. In response, France amended its constitution by a vote of 848 to 6 and proceeded to ratify the treaty by an overwhelming majority vote.51 The experience of other countries was similar.52 This is because, as Otto Triffterer noted in the first edition of his commentary on the Rome Statute, the position that developed in international law ‘has to be contrasted with domestic law where Head of State immunity in criminal proceedings might be regarded as absolute … at least until developed in the Pinochet case’.53 The International Court of Justice affirmed this position in the Yerodia case, noting in a key paragraph that ‘immunities enjoyed under international law by an incumbent or former Minister … do not represent a bar to criminal prosecution … [in respect to] criminal proceedings before certain international criminal courts, where they have jurisdiction … [including] … the future International Criminal Court created by the 1998 Rome Convention’.54

3.

CURRENT CONTROVERSIES AT THE INTERNATIONAL CRIMINAL COURT REGARDING IMMUNITIES

The common understanding of Article 27 and Article 98 were challenged by states seeking to check the Court’s power almost immediately upon the Statute’s entry into force. As noted above, Article 98 had been the object of very little attention during the Statute’s negotiation.55

K. Prost and A. Schlunck, ‘Article 98: Cooperation with Respect to Waiver of Immunity and Consent to Surrender’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (Baden-Baden: Nomos, 1999) 1132. I cite the first edition as evidence of what the negotiators in Rome believed the portent of Articles 27 and 98 was at the time of the Statute’s adoption. 50 CC decision No. 98-408DC, 22 January 1999, J.O. 1317. See generally, L. N. Sadat, ‘The Nuremberg Paradox’, 58 American Journal of Comparative Law (Am J Comp L) (2010) 151–204. 51 Sadat, Nuremberg Paradox, supra note 50, at 194–195. 52 ICRC Advisory Service on International Humanitarian Law, Issues Raised with Regard to the Rome Statute of the International Criminal Court by National Constitutional Courts, Supreme Courts and Councils of State (January 2010), available online at www​.icrc​.org/​en/​document/​send​-page​-print​ -page​-increase​-text​-size​-decrease​-text​-size​-issues​-raised​-regarding​-rome (noting issues in Albania, Belgium, Chile, Colombia, Costa Rica, Côte d'Ivoire, Honduras, Luxembourg, Madagascar, Moldova, Spain, and Ukraine). 53 O. Triffterer, ‘Article 27: Irrelevance of official capacity’, supra note 49, at 502. 54 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), [2002] ICJ Report 3, at 61. 55 See also Schabas, supra note 46, at 1037. 49

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Heads of state and other government officials before the ICC  105 However, ‘creative lawyers’ in the Bush administration relied upon it to negotiate bilateral immunity agreements (BIAs) with other States to prevent the future surrender to the Court of any US nationals, thereby focusing attention on this provision of the Statute.56 Worried about exposure of its military personnel and top civilian leadership to investigation and prosecution, the US objected to the Court’s jurisdiction over non-State Party nationals. Having failed to persuade other delegations as to the correctness of its position on this question during the Statute’s negotiation, it set about on a capital to capital offensive against the treaty, seeking to use Article 98(2) to immunize its nationals from any prosecution before the Court. The European Parliament took the view that the US BIAs are inconsistent with the Rome Statute,57 as did the former US head of delegation to the Rome Conference, who has argued that the US attempt to exempt all of its nationals is overbroad.58 Undaunted, however, by 2006, only four years after the Rome Statute had entered into force, the US had negotiated more than 100 such agreements.59 As the US campaign against the Court was getting underway, the Court received referrals of its first cases. The first situations referred came from African States Parties: Uganda, the Democratic Republic of the Congo, and the Central African Republic.60 The first Prosecutor welcomed these ‘self-referrals’ as they entailed situations involving the ongoing commission of atrocity crimes, and the cooperation (and invitation) of the territorial state to intervene. Although reliance upon the self-referral system clearly involved some risks for the Court about which many scholars commented negatively,61 it also provided the Court with its first

L. N. Sadat, ‘Summer in Rome, Spring in The Hague, Winter in Washington? US Policy towards the International Criminal Court’, 21 Wisconsin International Law Journal (Wis Intl LJ) (2003) 557–597. 57 European Parliament Resolution on the International Criminal Court (ICC), Eur. Parl. Doc. P5 TA(2002)0449 (26 September 2002). 58 D. Scheffer, ‘Article 98(2) of the Rome Statute: America’s Original Intent’, 3 Journal of International Criminal Justice (J Intl Crim Jus) (2005) 333–353, at 334. The legality of US BIAs and their consistency with the Rome Statute has also been the subject of much academic debate. See H. van der Wilt, ‘Bilateral Agreements between the United States and States Parties to the Rome Statute: Are They Compatible with the Object and Purpose of the Statute?’, 18 Leiden J Intl L (2005) 93–111; A. Bogdan, ‘The United States and the International Criminal Court: Avoiding Jurisdiction through Bilateral Agreements in Reliance on Article 98’, 8 International Criminal Law Review (Int Crim L Rev) (2008) 1–54. L. B. Bautista, ‘A Legal Analysis of US Bilateral Immunity Agreements’, 20 World Bulletin (2003) 28–50; J. Crawford, P. Sands, and R. Wilde, In the Matter of the Statute of the International Criminal Court and in the Matter of Bilateral Agreements Sought by the United States Under Article 98(2) of the Statute (5 June 2003), available online at https://​www​.legal​-tools​.org/​doc/​7f2edf/​pdf/​; J. Ralph, ‘Europe, the United States, and the International Criminal Court’, in Defending the Society of States: Why America Opposes the International Criminal Court and its Vision of World Society (Oxford: Oxford University Press, 2007) 151, at 156–163. 59 Coalition for the International Criminal Court Factsheet, Status of US Bilateral Immunity Agreements (BIAs), as of 11 December 2006, available online at www​.iccnow​.org/​documents/​CICCFS​ _BIAstatus​_current​.pdf. 60 See ICC Press Release, ‘President of Uganda refers situation concerning the Lord’s Resistance Army (LRA) to the ICC’ (ICC-20040129-44), 29 January 2004; ICC Press Release, ‘Prosecutor receives referral of the situation in the Democratic Republic of Congo’ (ICC‐OTP‐20040419‐50), 19 April 2004; ICC Press Release, ‘Prosecutor receives referral concerning Central African Republic’ (ICC-OTP-20050107-86), 7 January 2005. 61 See e.g., W. A. Schabas, ‘“Complementarity in Practice”: Some Uncomplimentary Thoughts’, 19 Criminal Law Forum (Crim LF) (2009) 5–33; M. H. Arsanjani and W. Michael Reisman, ‘The Law-in-Action of the International Criminal Court’, 99 AJIL (2005) 385–403. 56

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106  The Elgar companion to the International Criminal Court defendants and an opportunity to prove that the Court could work. Although commentators sometimes complained that each of the three cases involved an African nation, ‘African sovereignty’ was protected because African leaders had themselves invoked the jurisdiction of the Court. Moreover, the individuals investigated and ultimately prosecuted in those cases were high-ranking leaders of rebel organizations who could not realistically claim the protection of international law in terms of immunities, and Article 27, therefore, presumably did not come into play. Following the indictment and issuance of warrants of arrest against Sudanese President Omar Al-Bashir, however, the Article 27 question surged to the fore. These warrants, issued in 2009 and 2010,62 provoked an intense backlash amongst some African governments that the Court was ‘targeting Africa’, and, like the US approach to protecting its military, African States engaged in creative lawyering to ‘fix’ the problem. Omar Al-Bashir did not accept the legitimacy of the ICC’s legal action, and argued vociferously, in political and legal fora, that as a Head of State, and particularly of a non-State Party, he was immune from prosecution before the ICC.63 The first Pre-Trial Chamber hearing his complaint disagreed. It found that Article 27 answered the question of Al-Bashir’s immunity, and concluded, without much analysis, that he was not immune, and that Sudan’s status as a non-State Party had no effect on the Court’s jurisdiction.64 Al-Bashir, however, continued to challenge the Court and its jurisdiction, traveling widely to ICC State and non-States Parties alike.65 The Registry of the Court, meanwhile, sent requests for cooperation to all States Parties to the Rome Statute to effectuate his arrest. Al-Bashir nonetheless traveled to Malawi in 2011, after which the Registrar of the Court issued a Note Verbale reminding Malawi of its obligations of cooperation under the Rome Statute, and inviting consultations from that government in case of ‘any difficulty’ that might arise in carrying

62 Situation in Darfur, Sudan, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al-Bashir (The Prosecutor v. Omar Hassan Ahmad Al-Bashir), (ICC-02/05-01/09), (PTC I, 4 March 2009) (concluding that the ‘current position of Omar Al-Bashir as Head of a state which is not a party to the Statute, has no effect on the Court’s jurisdiction over the present case’. Ibid. at 41) [hereafter First Al-Bashir Arrest Warrant]. A second warrant was issued adding the crime of genocide. Situation in Darfur, Sudan, Second Warrant of Arrest for Omar Hassan Ahmad Al-Bashir (The Prosecutor v. Omar Hassan Ahmad Al-Bashir), (ICC-02/05-01/09-95), (PTC I, 12 July 2010). 63 See e.g., BBC, ‘Warrant issued for Sudan’s leader’, BBC News (4 March 2009), available online at news​ .bbc​ .co​ .uk/​ 2/​ hi/​ africa/​ 7923102​ .stm (reporting that Al Bashir said the ICC could ‘eat’ the arrest warrant); Patrick Worsnip, ‘No quick way to enforce IC warrant for Bashir’, Reuters (5 March 2009), available online at www​.reuters​.com/​article/​sudan​-court​-enforcement/​no​-quick​-way​-to​-enforce​ -icc​-warrant​-for​-bashir​-idUSN0533860520090305 (noting that Sudan has repeatedly said it does not recognize the jurisdiction of the ICC). See also sources cited infra note 65. 64 First Al-Bashir Arrest Warrant, supra note 62. Pre-Trial Chamber I took the same view with respect to the application for an arrest warrant against Muammar Gaddafi. Situation in the Libyan Arab Jamahiriya, Decision on the Prosecutor’s Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, (ICC-01/11), at 9 (PTC I, 27 June 2011). 65 See e.g., M. Simons, ‘South Africa Should Have Arrested Sudan’s President, I.C.C. Rules’, New York Times (6 July 2017), available online at www​.nytimes​.com/​2017/​07/​06/​world/​africa/​icc​-south​ -africa​-sudan​-bashir​.html; R. Gladstone, ‘Ignoring International Warrants, Sudan’s Leader Says He’ll Visit Moscow’, New York Times (3 July 2017), available online at www​.nytimes​.com/​2017/​07/​03/​world/​ africa/​omar​-hassan​-bashir​-sudan​-russia​.html.

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Heads of state and other government officials before the ICC  107 out the arrest.66 Malawi responded that as a sitting Head of State Al-Bashir was entitled to all privileges and immunities ‘under public international law’, including freedom from arrest and prosecution. In addition, the government of Malawi suggested that Article 27 could not apply to Al-Bashir because Sudan is not a party to the Rome Statute, arguing that it was simply following the position of the African Union on this question.67 Pre-Trial Chamber I rejected Malawi’s arguments, which relied primarily on Article 98(1) of the Rome Statute, although Malawi also seemed (like Jordan more recently), to rely upon Al-Bashir’s inherent (and in its view inviolable) immunity under public international law. The Pre-Trial Chamber noted that, following the precedents of the Nuremberg and Tokyo tribunals, as well as the sources identified in Part 2 above, ‘immunity of either former or sitting Heads of State cannot be invoked to oppose a prosecution by an international court’ whether or not the State in question is a party to the Rome Statute.68 The Court noted that the increasing acceptance of the Rome Statute by States, including the provisions of Articles 27(1) and (2), reinforced its view that ‘the international community’s commitment to rejecting immunity in circumstances where international courts seek arrest for international crimes has reached a critical mass’,69 and found that ‘customary international law creates an exception to Head of State immunity when international courts seek a Head of State’s arrest for the commission of international crimes’.70 In a second opinion issued on the same day, this time involving Al-Bashir’s travels to the Republic of Chad, Pre-Trial Chamber I recited the relevant provisions of its decision regarding the non-cooperation of Malawi, and came to the same conclusion, finding both that customary international law rendered him subject to the jurisdiction of the International Criminal Court, and that Article 98(1) was not a valid legal basis for Chad’s failure to arrest Al-Bashir.71

66 Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir (The Prosecutor v. Omar Hassan Ahmad Al-Bashir), (ICC-02/05-01/09), (PTC I, 13 December 2011), at 6 [hereafter Malawi Decision]. 67 Ibid. at 8. The African Union issued several decisions requiring its members not to cooperate with the Court regarding the warrants of arrest issued against Al-Bashir. See e.g., African Union, Assembly, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Tribunal (ICC) Doc. Assembly/AU/13(SXIII), at 10, AU Doc. Assembly/AU/Dec.245(XIII) Rev. 1 (3 July 2009)¸ available online at https://​archive​.au​.int/​collect/​auassemb/​import/​English/​Assembly​%20AU​ %20Dec​%20245​%20(XIII)​%20​_E​.pdf; African Union, Assembly, Decision on the Implementation of the Assembly Decisions on the International Criminal Court – Doc. EX​.CL/​670(XIX), at 5, AU Doc. Assembly/AU/Dec.366(XVII) (30 June–1 July 2011), available online at https://​archive​.au​.int/​collect/​ auassemb/​import/​English/​Assembly​%20AU​%20Dec​%20366​%20(XVII)​%20​_E​.pdf (referring to the provisions of Art. 98 of the Rome Statute). 68 Malawi Decision, supra note 66, at 38. 69 Ibid. at 42. 70 Ibid. at 43. I agree with Professor Harmen van der Wilt that the reasoning of the Malawi Decision is consistent with well-trodden understandings of immunities before international courts. See Harmen van der Wilt, The Continuing Story of the International Criminal Court and Personal Immunities (draft received by the author). 71 Decision Pursuant to Article 87(7) of the Rome Statute on the refusal of the Republic of Chad to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir (The Prosecutor v. Omar Hassan Ahmad Al-Bashir), (ICC-02/05-01/09), (PTC I, 13 December 2011), at 13–14.

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108  The Elgar companion to the International Criminal Court Malawi and Chad argued that their actions were mandated by African Union resolutions intended to limit prosecutions against Heads of State.72 In a decision in 2009, the African Union requested a ‘comparative analysis of the implications of the practical application of Articles 27 and 98 of the Rome Statute’.73 The purpose of undertaking this analysis was to move the Court toward assessing ‘regional input … in determining whether or not to proceed with prosecution; particularly against senior state officials’.74 At the eighth session of the Court’s Assembly of States Parties in 2009, South Africa advanced a proposal on behalf of all African parties to the Rome Statute to extend the power to defer ICC cases to the UN General Assembly. There was very little support voiced for this proposal at the ASP.75 The decision by the ICC Prosecutor to open an investigation into the post-election violence that had occurred in Kenya in 2007 and the Court’s approval of the Prosecutor’s request76 further inflamed the situation between the African Union and the Court. The Members of the African Union, meeting as Heads of State, responded over the next several years by taking Decisions reiterating its criticism of the Al-Bashir arrest warrants, requesting its Members to amend Article 16 of the Rome Statute to permit the UN General Assembly to suspend cases before the Court,77 and supporting Kenya’s request for a Security Council deferral of the Situation under Article 16 of the Rome Statute.78 Although Decisions are binding upon AU Members under some circumstances, many provisions of the AU Decisions ‘request’

Al-Bashir Arrest Warrant, supra note 62. See e.g., African Union, Assembly, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Tribunal (ICC) Doc. Assembly/AU/13(SXIII), at 8(v), AU Doc. Assembly/AU/Dec.245(XIII) Rev. 1 (3 July 2009)¸ available online at https://​archive​.au​.int/​collect/​ auassemb/​import/​English/​Assembly​%20AU​%20Dec​%20245​%20(XIII)​%20​_E​.pdf. 74 Ibid. 75 African Union States Parties to the Rome Statute, Annex VI of the 8th Session of the Assembly of States Parties to the Rome Statute, 18 November 2009 and author’s notes. 76 Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, (ICC-01/09), (PTC II, 31 March 2010). 77 African Union, Assembly, Decision on the Progress Report of the Commission on the Implementation of Decision Assembly/AU/DEC.270 (XIV) on the Second Ministerial Meeting on the Rome Statute of the International Criminal Court (ICC) Doc. Assembly/AU/10 (XV), AU Doc. Assembly/AU/Dec.296 (XV) (July 2010), available online at https://​archive​.au​.int/​collect/​auassemb/​ import/​English/​Assembly​%20AU​%20Dec​%20296​%20(XV)​%20​_E​.pdf. 78 African Union, Assembly, Decision on the Implementation of the Decisions on the International Criminal Court Doc. EX​ .CL/​ 639(XVIII), AU Doc. Assembly/AU/Dec.334(XVI) (January 2011), available online at https://​archive​.au​.int/​collect/​auassemb/​import/​English/​Assembly​%20AU​%20Dec​ %20334​%20(XVI)​%20​_E​.pdf. The African Union urged African States to vote for an amendment to Article 16 of the Rome Statute to allow for the UN General Assembly to defer cases for a year. It reiterated these positions in 2011, see AU Assembly, Decision on the Implementation of the Assembly Decisions on the International Criminal Court, supra note 67, and 2012, see African Union, Assembly, Decision on the Progress Report of the Commission on the Implementation of the Assembly Decisions on the International Criminal Court (ICC), AU Doc. Assembly/AU/Dec.397(XVIII) (January 2012), available online at https://​archive​.au​.int/​collect/​auassemb/​import/​English/​Assembly​%20AU​%20Dec​ %20397​%20(XVIII)​%20​_E​.pdf; African Union, Assembly, Decision on the Implementation of the Assembly Decisions on the International Criminal Court (ICC), AU Doc. Assembly/AU/Dec.419(XIX) (July 2012), available online at http://​archive​.au​.int/​collect/​auassemb/​import/​English/​Assembly​%20AU​ %20Dec​%20419​%20(XIX)​%20​_E​.pdf. 72 73

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Heads of state and other government officials before the ICC  109 or ‘urge’ non-cooperation of AU Members with the ICC.79 Thus, although the Decisions are of undeniable political relevance, their formal legal effect is unclear.80 Unlike the European Union, the African Union does not involve ‘a significant devolution of national authority to the continental body’.81 Moreover, the formal AU positions espoused regarding the Sudan and Kenyan situations were not shared by all African States, many of which expressed concern or opposition to them either in the African Union itself,82 or explicitly or implicitly in meetings of the ICC ASP.83 This was equally true of African civil society organizations. In early 2011, several NGOs condemned the vote of Kenya’s Parliament supporting a withdrawal from the

79 See e.g., Decision 296 of 27 July 2010, supra note 77, reiterating ‘its Decision that AU Member States shall not cooperate with the ICC in the arrest and surrender of President El-Bashir of The Sudan’, at 5, but ‘Requests Member States to balance, where applicable, their obligations to the AU with their obligations to the ICC’, ibid. at 6. In this Decision the AU also decided to ‘reject for now’ the request by the ICC to open a Liaison Office to the AU in Addis Ababa. Ibid. at 8. 80 Assembly of the African Union, Rules of Procedure, rules 33 and 34 (July 2002). The Assembly can take three types of Decisions: Regulations, Directives, and ‘Recommendations, Declarations, Resolutions, Opinions, etc’. While Regulations and Directives are legally binding and ‘shall be automatically enforceable thirty days after the date of publication’, the latter category of Decisions, which includes Declarations and Resolutions, is ‘not binding and are intended to guide and harmonise the viewpoints of Member States’. Ibid. See also C. Heyns, E. Baimu and M. Killander, ‘The African Union’, 46 German Yearbook of International Law (German YB Intl L) (2003) 252–283, at 263 (‘Unlike the EU, which has powers to issue legally binding directives, the AU does not enjoy similar powers.’) 81 Although Art. 23(1) of the Constitutive Act does permit the imposition of political or economic sanctions against a Member State that fails to comply with the decisions and policies of the Union, Resolutions—and some Decisions—are not binding, and many states have responded to AU Decisions urging withdrawal from the ICC with either indifference or opposition. See, e.g., C. Johnson, ‘African Union: Resolution Urges States to Leave ICC’, Global Legal Monitor (20 February 2017) (noting Nigeria and Senegal’s opposition to withdrawal from the ICC), available online at www​.loc​.gov/​law/​ foreign​-news/​article/​african​-union​-resolution​-urges​-states​-to​-leave​-icc/​. 82 See e.g., African Union, Assembly, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Tribunal (ICC) Doc. Assembly/AU/13(SXIII), AU Doc. Assembly/ AU/Dec.245(XIII) Rev. 1 (3 July 2009)¸ available online at https://​archive​.au​.int/​collect/​auassemb/​ import/​English/​Assembly​%20AU​%20Dec​%20245​%20(XIII)​%20​_E​.pdf (Chad entered a reservation to the language deciding that ‘AU Member States shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar El Bashir of The Sudan’. Ibid.); African Union, Assembly, Decision on International Jurisdiction, Justice, and the International Criminal Court (ICC) Doc. Assembly/AU/13 (XXI), n. 2, AU Doc. Assembly/AU/Dec.482 (XXI) (May 2013), available online at https://​archive​.au​.int/​collect/​auassemb/​ import/​English/​Assembly​%20AU​%20Dec​%20482​%20(XXI)​%20​_E​.pdf (reservation entered by the Republic of Botswana on the entire Decision). 83 See e.g., Statement by Lesotho on Behalf of the African State Parties to the Rome Statute at the Thirteenth Session of the Assembly of States Parties to the Rome Statute (8 December 2014) (‘The African Union (AU) repeated calls for noncooperation should not obscure the consistent, active backing for the ICC among African governments and civil society across the African continent.’). African States have also discouraged other African nations from withdrawing from the Rome Statute. See e.g., Statement by Ghana to the Sixteenth Session of the Assembly of States Parties to the Rome Statute (6 December 2017); Statement by the Gambia at the Sixteenth Session of the Assembly of States Parties to the Rome Statute (6 December 2017). See also CICC, Press Release, ICC: African Countries Support Court (17 December 2014), available online at www​.iccnow​.org/​documents/​ICC​_African​_Countries​ _Support​_Court​.pdf (summarizing statements by over a dozen African countries expressing strong support for the Court’s work at the 13th Assembly of States Parties).

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110  The Elgar companion to the International Criminal Court Rome Statute84 and Kenyans for Peace with Truth and Justice, a civil society ‘coalition of over thirty Kenyan and East African legal, human rights, and governance organizations … convened in the immediate aftermath of the disputed 2007 presidential election’,85 urged the government to cooperate with the ICC.86 Following the election of ICC defendants Uhuru Kenyatta and William Samoei Ruto as President and Deputy President, respectively, of Kenya, the African Union urged the ICC to withdraw the indictments against them.87 In an Extraordinary Session held in October of 2013, the African Union complained of the ‘unprecedented’ indictments and proceedings against the sitting President and Deputy President of Kenya,88 and declared that the ICC trials of Kenyatta and Ruto should be suspended.89 Civil society organizations continued to protest the actions of the Kenyan Government and the African Union. International NGOs supported Kenyan civil society as well.90 In May of 2013, Kenyans for Peace with Truth and Justice wrote a memo in response to the Kenyan Ambassador’s letter to the UN Security Council to defer the Kenyan cases before the ICC, arguing that Kenyatta had insisted while running for President that he could manage his professional duties and his personal obligations to cooperate with the ICC.91 Following Trial Chamber V(A)’s initial decision to excuse Ruto from trial, Kenyans for Peace with Truth and Justice wrote an open letter to the President of the ICC complaining that, Allowing Mr. Ruto to miss sections of his trial owing to his ascendancy to the Deputy Presidency panders to the whims of the accused and accords him preferential treatment purely on the basis of his position as a state officer. This creates a distinction in treatment of state and non-state officers by the Court. The decision contradicts the essence of Article 27 on equal application of the statute without distinction based on official capacity.92

84 Dr. W. Kapinga, Statement on the Application for Summons by the International Criminal Court Chief Prosecutor Against 6 Persons for Their Alleged Complicity in Crimes Against Humanity Arising out of the 2007 Kenyan Post Election Violence (21 January 2011). 85 Kenyans for Peace with Truth and Justice, Memo Responding to Kenyan Ambassador’s Letter to the UNSC on ICC Cases (17 May 2013). 86 Kenyans for Peace with Truth and Justice, Press Statement on the Confirmation of Charges (20 January 2012). See, e.g., Parliamentarians for Global Action, Integrity of the Rome Statute Campaign, available online at www​.pgaction​.org/​campaigns/​icc/​integrity​.html. 87 AU Assembly, Decision on International Jurisdiction, Justice, and the International Criminal Court (ICC), supra note 82. 88 African Union, Assembly, Decision on Africa’s Relationship with the International Criminal Court (ICC), AU Doc. Ext/Assembly/AU/Dec.1 (October 2013), available online at https://​au​.int/​sites/​ default/​files/​decisions/​9655​-ext​_assembly​_au​_dec​_decl​_e​_0​.pdf. 89 Ibid. 90 See e.g., Parliamentarians for Global Action, Integrity of the Rome Statute Campaign, available online at www​.pgaction​.org/​campaigns/​icc/​integrity​.html. 91 Kenyans for Peace with Truth and Justice, Memo Responding to Kenyan Ambassador’s Letter to the UNSC on ICC Cases (17 May 2013). 92 Kenyans for Peace with Truth and Justice, Open Letter to the President of the ICC on the Decision on William Ruto’s Excusal from Continuous Presence at his Trial (9 July 2013).

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Heads of state and other government officials before the ICC  111 In 2013, the long-awaited Security Council Resolution on the Kenya deferral was put to a vote. Seven ICC Non-Party States voted for deferral;93 eight States, all ICC States Parties joined by the US,94 abstained.95 The Resolution failed. Returning to the ICC Assembly of States Parties the following year, the Kenyan government pressed its case, this time arguing that Kenyatta should not have to be present at his trial due to his obligations as a Head of State.96 Concerned about a threatened mass withdrawal of African States, the ICC Assembly of States Parties amended Rule 134 in November 2013, to add three new provisions to the ICC’s trial procedure:97 (1) the use of video technology (Rule 134bis);98 (2) the possibility of excusal from trial if there are ‘exceptional circumstances’, (Rule 134ter);99 and (3) a special rule (Rule 134quater) for ‘[a]n accused … who is mandated to fulfill extraordinary public duties at the highest national level may … request to the Trial Chamber to be excused and to be represented by counsel only; the request must specify that the accused explicitly waives the right to be present at the trial’.100 This last provision, of course, is a special procedural immunity for high-ranking government officials, which is arguably inconsistent with the Statute itself.101 It is worth noting that the Kenyan courts asked to rule upon the issue of Omar Al-Bashir’s immunity in Kenya found that the Rome Statute required his arrest because ‘State immunity is accorded only to sovereign acts and is not available if the acts in question amount to international crimes’.102 The Appeals Court and the lower court found that the Kenyan Constitution, legislation, and international law required Al-Bashir’s arrest and surrender to the Court.103

93 Azerbaijan, China, Morocco, Pakistan, Russian Federation, Rwanda, and Togo are all ICC non-party States. 94 Argentina, Australia, France, Guatemala, Luxembourg, Republic of Korea, UK, and the US, are all, with the exception of the US, ICC States. 95 S.C. Pres. Statement 2013/S/RES/11176 (15 November 2013), available online at www​.un​.org/​ News/​Press/​docs/​2013/​sc11176​.doc​.htm. 96 Kenyans for Peace with Truth and Justice objected, stating ‘allowing certain individuals to absent themselves from the trials on the basis of their status violates the principle of equality before the law’. Kenyans for Peace with Truth and Justice, Statement at the Assembly of States Parties (21 November 2013). This perspective seems consistent with Kenyan public opinion at the time. One independent public opinion poll designed to gauge attitudes towards the ICC cases from November 2013 showed ‘that 42% of those polled support[ed] the trial of the cases before the ICC as opposed to 30% who prefer[red] the cases to be dropped. In the same poll, 67% of those polled would want the president and deputy to attend their trials before the ICC.’ Ibid. 97 ICC-ASP/12/Res.7 (27 November 2013). 98 Ibid. 99 Ibid. 100 Ibid. This rule has been applied to conditionally excuse Mr. Samoei Ruto from attendance at trial. Reasons for the Decision on Excusal from Presence at Trial under Rule 134quater (The Prosecutor v. William Samoei Ruto and Joshua Arap Sang), (ICC-01/09-01/11-1186), (TC V(A), 18 February 2014). 101 See International Crimes Database, ICD Brief 5: The International Criminal Court on Presence at Trial: The (In)validity of Rule 134quater (September 2014), available online at www​ .internationalcrimesdatabase​.org/​upload/​documents/​20140904T143535​-ICD​%20Brief​%20​-​%20Abel​ %20S​%20​%20Knottnerus​.pdf. 102 Attorney General & 2 Or. v. Kenya Section of the International Commission of Jurists, Civil Appeal 105 of 2012 and Criminal Appeal 274 of 2011 (Consolidated) (16 February 2018) [hereinafter Kenyan Appeals Court Judgment]. 103 Ibid.

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112  The Elgar companion to the International Criminal Court The AU’s objections to the Kenya cases ended only with the dismissal of those cases in 2014 by the Prosecution and in 2016 by a Trial Chamber.104 Meanwhile, Al-Bashir continued to travel widely and to challenge his arrest. He attended a Common Market for Eastern and Southern Africa Summit (COMESA) in Kinshasa, and the Democratic Republic of the Congo refused to execute the warrants pending against him. The DRC argued that he had been invited by the African Union, which had issued a recent decision providing that no serving AU Head of State or Government shall be required to appear before any international court or tribunal during their term of office.105 In addition, in the DRC’s view, Article 98(1) of the Statute required it to obtain the waiver of the Sudanese government to surrender Al-Bashir given his immunity under customary international law as a Head of State.106 The Pre-Trial Chamber, incorrectly in my view given the provision’s status as customary international law, but following the views of some authors,107 found that Article 27(2) could not apply to non-States Parties to the Rome Statute as they had not adhered to the Statute. Nonetheless, the Chamber relied upon Resolution 1593 of the Security Council ordering the Government of Sudan to fully cooperate with the Court as implicitly waiving Al-Bashir’s immunity.108 It further found that any conflict between the obligation not to arrest Al-Bashir stemming from the AU treaty would be trumped by Article 25 and 103 of the UN Charter, and referred the DRC’s noncompliance to the Assembly of States Parties and the Secretary General of the United Nations. Following this decision, the African Union amended the proposed Statute of the African Court of Justice and Human Rights on 26 June 2014 providing:

The Prosecutor officially withdrew charges against President Kenyatta in December 2014. Notice of withdrawal of the charges against Uhuru Muigai Kenyatta (The Prosecutor v. Uhuru Muigai Kenyatta), (ICC-01/09-02/11-983), (TC V(B), 5 December 2014). In April 2016, a divided Trial Chamber vacated the charges in the last remaining case at the ICC related to the Kenya situation, finding that there was not enough evidence to proceed. Public redacted version of Decision on Defence Applications for Judgments of Acquittal (The Prosecutor v. William Samoei Ruto and Joshua Arap Sang) (ICC-01/09-01/11-2027 -Red-Corr.), (TC V(B), 5 April 2016). But see Dissenting Opinion of Judge Olga Herrera Carbuccia (The Prosecutor v. William Samoei Ruto and Joshua Arap Sang), (ICC-01/09-01/11-2027-AnxI), (TC V(B), 5 April 2016) (concluding that there was enough evidence to proceed with a trial of Mr. Ruto, even in the face of many witnesses being unwilling to risk their lives by testifying, because there was other evidence of Mr. Ruto’s culpability). In response to this decision, the ICC Prosecutor noted that the case had been ‘eroded by a perfect storm of witness interference and politicization’. Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, regarding Trial Chamber’s decision to vacate charges against Messrs William Samoei Ruto and Joshua Arap Sang without prejudice to their prosecution in the future (6 April 2016), available online at www​.icc​-cpi​.int/​Pages/​item​.aspx​?name​=​otp​-stat​-160406. 105 Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al-Bashir’s Arrest and Surrender to the Court (The Prosecutor v. Omar Hassan Ahmad Al-Bashir), (ICC-02/05-01/09), (PTC II, 9 April 2014) [hereafter DRC Decision]. 106 Ibid. at 18–19. 107 See e.g., D. Akande, ‘The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits’, 1 J Intl Crim Just (2003) 618–650; D. Akande, ‘The Legal Nature of Security Council Referrals to the ICC and its Impact on Al-Bashir's Immunities’, 7 J Intl Crim Just (2009) 333–352. But see D. Tladi, ‘The ICC Decisions on Chad and Malawi: On Cooperation, Immunities, and Article 98’, 11 J Intl Crim Just (2013) 199–221. 108 DRC Decision, supra note 105, at 26–30. 104

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Heads of state and other government officials before the ICC  113 No charges shall be commenced or continued before the court against any Serving Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure in office.109

This provision is part of the ‘Malabo Protocol’, by which the yet to be established African Court of Justice and Human Rights could acquire jurisdiction over international and transnational crimes. While observers were generally positive about the potential establishment of an African Regional Criminal Court, concern has been expressed by some that the motivation may simply be ‘an attempt by the AU to shield African heads of state and senior state officials from being held to account’.110 Moreover, given the exceptionally long tenure of most African Heads of State,111 waiting until a Head of State leaves office would mean that, to a significant degree, immunity would be tantamount to impunity.112 Following the adoption of the Malabo Protocol (which, according to the African Union, has been signed by 15 countries and ratified by none)113 the issue of Al-Bashir’s immunity resurfaced again. In June 2015, the South African government permitted Omar Al-Bashir to attend an African Union summit in South Africa. South Africa’s high court issued an interim order barring Bashir from leaving the country in order to hear an application by the Southern African Litigation Centre to force authorities to arrest him.114 The ICC called upon South Africa to 109 Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, Article 46A bis, EX​.CL/​846(XXV) (May 2014). 110 Amnesty International, Malabo Protocol: Legal and Institutional Implications of the Merged and Expanded African Court (2016), available online at www​.refworld​.org/​pdfid/​56a9ddcf4​.pdf. Kenyans for Truth and Justice, ‘Seeking Justice or Shielding Suspects? An analysis of the Malabo Protocol on the African Court’ (23 November 2016), available online at http://​kptj​.africog​.org/​wp​-content/​uploads/​2016/​ 11/​Malabo​-Report​.pdf (suggesting that the granting of immunity to sitting heads of state would ‘seem to undermine the raison d’être of the Court’). 111 M. George, ‘A Look at Presidential Term Limits in Central Africa ahead of Elections’, Lex Lata, Lex Ferenda (6 January 2016), available online at law​.wustl​.edu/​harris/​lexlata/​?p​=​918; African Center for Strategic Studies, Term Limits for African Leaders Linked to Stability (23 February 2018), available online at https://​africacenter​.org/​spotlight/​term​-limits​-for​-african​-leaders​-linked​-to​-stability/​ (finding that 18 countries in Africa do not adhere to presidential term limits. In the ten African countries where term limits have been evaded since 2000, the average time in power is 22 years). 112 See generally, C. Maina Peter, ‘Fighting Impunity: African States and the International Criminal Court’, in E. A. Ankumnah (ed.), The International Criminal Court and Africa: One Decade On (Cambridge: Intersentia, 2016) 1. 113 African Union, List of Countries Which Have Signed, Ratified/Acceded to the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (last updated 20 May 2019), available online at https://​au​.int/​sites/​default/​files/​treaties/​36398​-sl​-PROTOCOL​%20ON​ %20AMENDMENTS ​ % 20TO ​ % 20THE​ % 20PROTOCOL​ % 20ON​ % 20THE​ % 20STATUTE​ % 20OF​ %20THE​%20AFRICAN​%20COURT​%20OF​%20JUSTICE​%20AND​%20HUMAN​%20RIGHTS​.pdf. Kenya’s Cabinet Secretary for Foreign Affairs of the Republic of Kenya reiterated Kenya’s commitment to ratifying the Protocol in February 2018, but it has yet to do so. See Nzau Musau, ‘Kenya Gives Nod to Creation of African Version of ICC’, The Saturday Standard (Kenya) (5 February 2018), available online at https://​www​.standardmedia​.co​.ke/​article/​2001268545/​kenya​-gives​-nod​-to​-creation​-of​-african​-version​ -of​-icc. 114 Southern Africa Litigation Centre v. Minister of Justice and Constitutional Development & others, 2015 (5) SA 1 (GP) (24 June 2015) [hereafter South African High Court Judgment]. See also O. Bowcott and J. Grierson, ‘Sudan President Barred from Leaving South Africa’, The Guardian (15 June 2015), available online at www​.theguardian​.com/​world/​2015/​jun/​14/​sudan​-president​-omar​-al​-bashir​ -south​-africa​-icc.

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114  The Elgar companion to the International Criminal Court detain Al-Bashir and ‘spare no effort in ensuring the execution of the arrest warrants’.115 In response to the interim order issued by the High Court, the South African government permitted Al-Bashir to fly out of the country while the High Court was hearing the application to arrest Bashir. Following the hearing, the High Court held that Al-Bashir should have been detained.116 The government’s actions were condemned by the High Court judges,117 over 100 civil society organizations,118 and the international community.119 Pre-Trial Chamber II was seized with the question whether South Africa had failed to comply with its obligations under the Statute by not arresting and surrendering Omar Al-Bashir to the Court while he was on South African territory, and whether a formal finding of noncompliance should be sent to either the ICC ASP or the Security Council under Article 87(7) of the Statute.120 South Africa challenged the reasoning of the DRC Decision, arguing that Security Council Resolution 1593 could not constitute a waiver of immunities for Al-Bashir, and that the Chamber should call upon the UN Security Council to ask the International Court of Justice for an Advisory Opinion on the question of Resolution 1593’s meaning.121 Pre-Trial Chamber II addressed the question of Al-Bashir’s possible immunity by first examining whether the Host Agreement concluded between South Africa and the AU for the purpose of the AU Summit protected him. The Chamber was not persuaded that it did. The Chamber then turned to the issue of Article 27(2)’s application, finding that it excluded the immunity of Heads of State, both vertically and horizontally.122 This was true for States Parties to the Statute, and States providing a waiver of immunity.123 As regards States not party to the Rome Statute, the Chamber found that these States ‘have no obligation to cooperate with the Court and the irrelevance of immunities based on official capacity as enshrined in article 27(2) of the Statute has no effect on their rights under international law’.124 The Chamber resolved the question by referring, as Pre-Trial Chamber I had, to Security Council Resolution 1593. The Resolution not only imposed an obligation of cooperation on Sudan (as the DRC decision had found), but the referral via Article 13(b) of the Statute triggers the application of the ICC

Ibid. O. Bowcott, ‘Sudan President Omar Al Bashir Leaves South Africa as Court Considers Arrest’, The Guardian (15 June 2015), available online at www​.theguardian​.com/​world/​2015/​jun/​15/​south​-africa​ -to​-fight​-omar​-al​-bashirs​-arrest​-warrant​-sudan. 117 N. Onishi, ‘Omar al-Bashir, Leaving South Africa, Eludes Arrest Again’, New York Times (15 June 2015), available online at www​.nytimes​.com/​2015/​06/​16/​world/​africa/​omar​-hassan​-al​-bashir​ -sudan​-south​-africa​.html​?​_r​=​0. 118 Human Rights Watch, Civil Society Declaration on Sudanese President Omar al-Bashir’s Visit to South Africa Without Arrest (1 July 2015), available online at  www​.hrw​.org/​news/​2015/​07/​01/​civil​ -society​-declaration​-sudanese​-president​-omar​-al​-bashirs​-visit​-south​-africa. 119 Bowcott and Grierson, Sudan President Barred from Leaving South Africa, supra note 114. 120 Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al Bashir (The Prosecutor v. Omar Hassan Ahmad Al Bashir), (ICC-02/05-01/09), (PTC II, 6 July 2017), at 21 [hereafter South Africa Decision]. 121 Ibid. at 40. 122 Ibid. at 71–73. 123 Ibid. at 78–80. 124 Ibid. at 82. This unfootnoted assertion appears to be at odds with the view taken by the International Law Commission in 1996 and the view of the International Court of Justice in 2002 in the Yerodia case. 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind, supra note 41, Art. 7; Arrest Warrant Case, supra note 54, at 60. 115 116

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Heads of state and other government officials before the ICC  115 Statute in its entirety, including Article 27(2).125 The Chamber noted, by Majority, that it was not considering the Security Council Resolution to constitute a ‘waiver’ of Al-Bashir’s immunity; instead, reading Article 27(2) and Security Council Resolution 1593 together, the Chamber found there was simply no immunity to be had. The Pre-Trial Chamber then turned to the question of Article 98’s application, finding that it ‘provides no rights to States Parties to refuse compliance with the Court’s requests for cooperation’.126 Instead, it is the ‘Court, and not … the State Party, [which has] the responsibility to address the matter’ of any cooperation difficulties that a pre-existing treaty obligation may pose in implementing a State’s duty of cooperation.127 In short, the State is required under this view to respect orders from the Court rather than engaging in unilateral (and oppositional) interpretations of the Rome Statute. In an odd passage, the Pre-Trial Chamber found that the absence of an explicit exclusion of immunity in the Genocide Convention meant that neither Article IV nor Article VI of the Convention could be read as an implicit exclusion of immunities.128 This dictum was neither necessary to the case, nor, in the view of this writer, carefully reasoned.129 The Minority Opinion of Judge Perrin de Brichambaut is more convincing in this regard. Article IV of the Genocide Convention states that all persons committing genocide are liable for punishment ‘whether they are constitutionally responsible rulers, public officials or private individuals’.130 This provision—by its terms—and in the views of scholars having studied the matter in depth131—means what it says: that immunities cannot be raised as a defense to a charge of genocide either in the territorial state or before an ‘international penal tribunal’. Moreover, as Judge Perrin de Brichambaut notes, a teleological reading of the Genocide Convention suggests that permitting personal immunities to be invoked would be completely incoherent because, in part, the prohibition of genocide is a jus cogens norm. Upholding immunities would run counter to the object and the purpose of the Genocide Convention. For this reason, he notes that Sudan itself waived the immunities of Al-Bashir by ratifying the Genocide Convention, as did South Africa.132 Judge Perrin de Brichambaut also took up the relationship between Article 27(2) and Article 98(1). In this part of his opinion, he was unable to opine definitively regarding the effect of Resolution 1593. Thus, he found it simply easier to rest the immunities issue on the ratification by both Sudan and South Africa of the Genocide Convention.133 The obvious difficulty with this analysis is that it would exclude charges of war crimes or crimes against humanity, and South Africa Decision, supra note 120, at 88. Ibid. at 99. 127 Ibid. at100. 128 Ibid. at 109. 129 As has been the case with many recent ICC decisions, important legal statements are often proffered ex cathedra by the Court’s Chambers with absolutely no or very few references to legal sources. L. N. Sadat, ‘Fiddling While Rome Burns? The Appeals Chamber’s Curious Decision in Prosecutor v. Jean-Pierre Bemba Gombo’, EJIL: Talk! (12 June 2018), available online at www​.ejiltalk​.org/​fiddling​ -while​-rome​-burns​-the​-appeals​-chambers​-curious​-decision​-in​-prosecutor​-v​-jean​-pierre​-bemba​-gombo/​. 130 Convention on the Prevention and Punishment of the Crime of Genocide Art. IV, 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951). 131 W. A. Schabas, Genocide in International Law: The Crime of Crimes (2nd edn., Cambridge: Cambridge University Press, 2009), at 369. 132 South Africa Minority Opinion, supra note 12 at 21. 133 Ibid. at 39–106. 125 126

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116  The Elgar companion to the International Criminal Court makes application of the Rome Statute contingent upon a State’s ratification of other international treaties.

4.

THE WAY FORWARD: A RETURN TO FIRST PRINCIPLES

As others have noted, the six Pre-Trial Chambers of the ICC that have examined the question have all concluded that States Parties to the Rome Statute have an obligation to arrest Omar Al-Bashir (and other Heads of State), but have not been consistent in their reasoning.134 Early decisions relied upon the Rome consensus and the Nuremberg lineage of the International Criminal Court to find it completely obvious that his immunities before an international court could not prevent his arrest and surrender. The constant drumbeat of the US and the African Union’s opposition (among others), however, and an avalanche of scholarly work protesting the application of the Statute to Heads of State and to non-States Parties,135 has had the effect of pushing the Court’s Chambers to reconsider their views. The decision of the Appeals Chamber in the Jordan case represented an opportunity to consider this inquiry in fuller perspective and to, perhaps, resolve the questions presented in a clear and satisfactory manner. Yet there were worrying aspects of the case as well. First, it must be acknowledged that the controversy about Head of State immunity before the International Criminal Court has its origin in a political, not a legal question. The history of international criminal law, from the Nuremberg Tribunal forward, clearly posits the removal of immunities of all kinds, from all persons, with respect to the commission of the core, jus cogens, crimes, before international criminal courts. One need only look to the work of the

See e.g., A.Knottnerus, ‘The Immunity of al-Bashir: The Latest Turn in the Jurisprudence of the ICC’, EJIL: Talk! (15 November 2017), available online at https://​www​.ejiltalk​.org/​the​-immunity​-of​-al​ -bashir​-the​-latest​-turn​-in​-the​-jurisprudence​-of​-the​-icc/​ (noting that in different decisions the Chamber has come to the same conclusion by relying on customary international law (2011), arguing that the Security Council waived Al-Bashir’s immunity (2014), and because the Security Council referral situated Sudan in a similar position as States Parties (2017)); Y. Tan, ‘The ICC’s South Africa Non-Compliance Decision: Effect of Security Council Resolution 1593 on Referring the Darfur Situation’, 10 Amsterdam Law Forum (2018) 72–76. (‘Decisions of the ICC are not consistent. … [t]hese different approaches also evidence the disagreement with regard to the effect of Resolution 1593; such inconsistency in the ICC’s findings may undermine the predictability of its law.’ Ibid. at 77.) 135 See e.g., D. J. Scheffer, ‘US Policy and the ICC’, 32 Cornell International Law Journal (Cornell Intl LJ) (1999) 529; Statement by Russia, Reports of the Secretary-General on the Sudan and South Sudan, Official Records of the Security Council, Provisional verbatim record of the 7963rd meeting, UN Doc. S/PV.7963 (8 June 2017) (‘the obligation to cooperate, as set forth in resolution 1593 (2005), does not mean that the norms of international law governing the immunity of the Government officials of those States not party to the Rome Statute can be repealed, and presuming the contrary is unacceptable.’). See D. M. Amann and M. N. S. Sellers, ‘The United States of America and the International Criminal Court’, 50 Am J Comp L Supp (2002) 381–404; W. A. Schabas, ‘United States Hostility to the International Criminal Court: It’s All About the Security Council’, 15 European Journal of International Law (Eur J Intl L) (2002) 701–720. See also P. Gaeta, ‘Does President Al-Bashir Enjoy Immunity from Arrest?’, 7 J Intl Crim Jus (2009) 315–332 (arguing that although the ‘ICC arrest warrant is a lawful coercive act against an incumbent head of state’, because Sudan has not waived the immunities of Al-Bashir, ‘states parties to the Statute are not obliged to execute the ICC request for surrender of President Al-Bashir, and can lawfully decide not to comply with it’). See also C. Chernor Jalloh and I. Bantekas (eds), The International Criminal Court and Africa (Oxford: Oxford University Press, 2017). 134

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Heads of state and other government officials before the ICC  117 International Law Commission and the establishment of the ad hoc international criminal tribunals referenced above, as well as to the Nuremberg and Tokyo tribunals themselves, to see that this is so. As the late Cherif Bassiouni wrote many years ago, after the Nuremberg trial, ‘a new rule of customary international law was established, namely that international immunities do not apply to international prosecutions for certain international crimes’.136 An examination of the text and negotiating history of the Rome Statute, as well as writings of participants to the negotiations and the reactions of States upon ratification, clearly indicates that States and the negotiators to the diplomatic conference understood Article 27(1) and 27(2) to place the future Court squarely within the Nuremberg precedent and customary international law. It is equally clear that Article 98’s adoption was not meant to undermine the principle that ‘irrelevance of official position’ effectively removed immunities ratione materiae as well as ‘temporal immunity’ from prosecution. As mentioned above, Article 98 did not receive much attention in Rome. Subsequently, however, with the pincer-like attacks on the Court’s jurisdiction by the US and the African Union, the interpretation of Article 98 has surged to the fore.137 Indeed, following the entry into force of the Rome Statute, individuals finding themselves on the receiving end of the Court’s warrants—or even potentially so—began a concerted political campaign to attack the moral and legal legitimacy of the Court and its work. The US led the charge both during the Diplomatic Conference and afterwards, appointing itself as the guardian of the frontiers of sovereignty at Rome and protesting in and out of the negotiations that the treaty was flawed. It endeavored to kill the treaty on the last day of the conference by requesting that the Statute be put to a vote, which it ultimately lost in a humiliating diplomatic defeat.138 Although it signed the Statute under President Bill Clinton, and re-engaged with the Court for the eight years of Barack Obama’s presidency, it launched a global anti-ICC campaign during the years of George W. Bush’s presidency, a reprise of which was recently outlined by John Bolton, who briefly served as National Security Adviser to President Donald Trump.139 While much of Bolton’s speech simply repeated his earlier views, one of the new threats was to: [R]espond against the ICC and its personnel to the extent permitted by US law. Ban [ICC] judges and prosecutors from entering the United States. We will sanction their funds in the US financial system, and, we will prosecute them in the US criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.140

M. C. Bassiouni, Introduction to International Criminal Law (Ardsley, NY: Transnational Publishers, 2003), at 73. 137 C. Kreβ and K. Prost, ‘Article 98: Cooperation with respect to waiver of immunity and consent to surrender’, in O. Triffterer and K. Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary (3rd edn., München: C.H. Beck, 2016) 2122. 138 The Rome Statute was overwhelmingly approved with a vote of 120 to 7, with 21 States abstaining. See Bassiouni, Historical Survey, supra note 44, at 31–33. 139 J. Bolton, Protecting American Constitutionalism and Sovereignty from International Threats, Remarks delivered to the Federalist Society (10 September 2018), available online at www​.justsecurity​ .org/​60674/​national​-security​-adviser​-john​-bolton​-remarks​-international​-criminal​-court/​. 140 Ibid. In April, the Trump administration made good on its threat and revoked the entry visa for ICC prosecutor Fatou Bensouda. Judith Kelley, ‘The U.S. revoked the visa for the ICC prosecutor: That bodes poorly for international criminal justice’, Washington Post, April 3, 2019 available online at https://​www​.washingtonpost​.com/​politics/​2019/​04/​08/​us​-revoked​-visa​-icc​-prosecutor​-that​-bodes​ -poorly​-international​-criminal​-justice/​. 136

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118  The Elgar companion to the International Criminal Court The legal arguments offered by the US have been repeatedly rebuffed by myself and others,141 particularly its efforts to create an ‘American exception’ to international criminal justice. The state sovereignty argument of the US was, and still is, particularly troubling. As a legal matter, the four core crimes embedded in the Rome Statute involve jus cogens prohibitions that States simply cannot contract out of.142 As a Trial Chamber of the International Criminal Tribunal for the former Yugoslavia found in Furundžija, a norm’s jus cogens status results in a series of consequences, including its non-derogable nature, even in times of emergency,143 the non-applicability of statutes of limitations,144 that it ‘must not be excluded from extradition under any political offence exemption’,145 and the prohibition against ‘expelling, returning or extraditing a person to another State where there are substantial grounds for believing’ that person would be subjected to a violation of the norm.146 The Tribunal noted (in discussing the question of torture, the crime in question): The fact that torture is prohibited by a peremptory norm of international law has other effects at the inter-state and individual levels. At the inter-state level, it serves to internationally de-legitimise any legislative, administrative or judicial act authorising torture. It would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void ab initio, and then be unmindful of a State say, taking national measures authorising or condoning torture or absolving its perpetrators through an amnesty law …. In short, in spite of possible national authorisation by legislative or judicial bodies to violate the principle banning torture, individuals remain bound to comply with that principle …. Furthermore, at the individual level, that is, that of criminal liability, it would seem that one of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every State is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction.147

Thus, while the Rome Statute can, and does, accommodate the needs of State sovereignty to a significant degree—including through the complementarity regime, protection of national security information, and the inclusion of Article 98—it does not affect the customary international law status of jus cogens crimes, but, through the operation of Article 27, makes clear that official positions that might normally receive immunities under international law simply cannot be successfully invoked before the Court. As a political matter, there was little sympathy for the US position, which has been generally perceived to be mean-spirited and self-serving, particularly in light of the embrace of

Sadat, Uneasy Revolution, supra note 1. See also Amann and Sellars, supra note 135, at 389–390. See sources cited at supra note 3. 143 Judgment, Prosecutor v. Furundžija (IT-95-17/1-T), Trial Chamber II, 10 December 1998, at 144 (citations omitted). See generally, W. A. Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (2nd edn., Cambridge: Cambridge University Press, 2008), at 101–102. 144 Furundžija Judgment, supra note 143, at 157. 145 Ibid. 146 Ibid. at 144. 147 Ibid. at 155–156. See also Bassiouni, International Crimes, supra note 3; A. Cassese, ‘The Hierarchy of Rules in International Law: The Role of Jus Cogens’, in International Criminal Law, supra note 4, at 198–212. 141 142

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Heads of state and other government officials before the ICC  119 torture as national policy by the Bush administration,148 the illegal invasion of Iraq in 2003,149 and the Obama administration’s campaign of targeted killing by drones.150 Although cast as putatively procedural protections and law of treaty arguments, the US position on the ICC boils down to the argument that the US and its citizens cannot be held legally accountable for the commission of ICC crimes because the US is a superpower. A significant majority of States have pushed back against US assertions of exceptionalism when they contravene fundamental norms of international law,151 and properly so.152 The objections of the African Union to the ICC’s jurisdiction over the nationals of non-States Parties and government officials have had a friendlier, if wary, reception, at least in some quarters. If the US argument for exceptional treatment rests upon its self-perception as the guardian of a benign, if imperial, pax Americana, African objections were largely protestations of imperial and neo-colonial mistreatment by the ICC. In 2013, addressing the Extraordinary Summit of the African Union in Addis Ababa, Uhuru Kenyatta, Kenya’s President (who had been indicted by the Court) stated: The ICC has been reduced into a painfully farcical pantomime, a travesty that adds insult to the injury of victims. It stopped being the home of justice the day it became the toy of declining imperial powers … It is a fact that this court performs on the cue of European and American governments against the sovereignty of African States and peoples that should outrage us. People have termed this situation ‘race hunting’, I find great difficulty adjudging them wrong.153

148 See e.g., P. Sands, Torture Team: Rumsfeld’s Memo and the Betrayal of American Values (New York: Palgrave Macmillan, 2008); K. J. Greenberg and J. L. Dratel (eds), The Torture Papers: The Road to Abu Ghraib (Cambridge: Cambridge University Press, 2005); Human Rights Watch, Report: Getting Away with Torture: The Bush Administration and Mistreatment of Detainees (12 July 2011), available online at www​.hrw​.org/​report/​2011/​07/​12/​getting​-away​-torture/​bush​-administration​-and​-mistreatment​ -detainees​#. 149 See e.g., J. Hagan, J. Kaiser and A. Hanson, Iraq and the Crimes of Aggressive War: The Legal Cynicism of Criminal Militarism (Cambridge: Cambridge University Press, 2015). 150 L. N. Sadat, ‘America’s Drone Wars’, 45 Case Western Reserve Journal of International Law (Case W Res J Intl L) (2012) 215–234; M. E. O’Connell, The Right to Life in War and Peace: A Legal and Moral Critique of Targeted Killing, Remarks for the Institute of Theology and Peace (Hamburg) (15 August 2012). 151 See e.g., Statement by Secretary General Kofi Annan, United Nations Secretary General’s address to the General Assembly, New York (23 September 2003), available online at www​.un​.org/​webcast/​ga/​ 58/​statements/​sg2eng030923​.htm (rejecting the ‘pre-emptive war doctrine’). See also M. E. O’Connell, The Myth of Preemptive Self-Defense, The American Society of International Law Task Force on Terrorism Papers (August 2002); L. N. Sadat, ‘Terrorism and the Rule of Law’, 3 Washington University Global Studies Law Review (Wash U Global Stud L Rev) (2004) 135–154. 152 Unfortunately, the current administration has responded to this by withdrawing the US from various international organizations including, most recently, the Human Rights Council. See Gardiner Harris, ‘Trump Administration Withdraws US from U.N. Human Rights Council’, New York Times (19 June 2018), available online at www​.nytimes​.com/​2018/​06/​19/​us/​politics/​trump​-israel​-palestinians​ -human​-rights​.html. 153 E.-M. Gekara and D. Opiyo, ‘President Kenyatta’s Stinging Attack on ICC and Europe’, Daily Nation (Nairobi) (12 October 2013), available online at www​.nation​.co​.ke/​news/​politics/​Uhuru​ -Kenyatta​-AU​-Summit​-ICC/​1064​-2029784​-opkfd1z/​index​.html.

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120  The Elgar companion to the International Criminal Court The following year the statements of African leaders were similarly forceful.154 The media, scholars, and the ICC itself felt the sting of remarks such as this, not because of the truth they contained as regards individuals credibly believed to be responsible for some of the most serious crimes of concern to the international community as a whole, but because Africa had in fact suffered extensively from colonial and imperial ambitions in the past. The failure of the international community to fully recognize the evils colonialism had brought to the continent or pay reparations for past wrongs makes the ICC’s initial focus on situations from Africa subject to being miscast as yet another form of Western oppression. As Charles Jalloh and Ilias Bantekas have noted: [T]he memories of colonization are still vivid in the African Psyche and these have played no small part in the reactions of the African Union (AU) and individual African states. The brutal nature of colonialism and its pernicious effects on entire nations and peoples cannot be underestimated. Nor can such experiences be divorced from the realities that many continue to live today, in Africa and across the world.155

Yet the African situations before the Court also represent an opportunity for the international community—through the institution of the ICC—to protect the human rights of African victims. Their right to justice—as well as to reparations and other remedies for the sufferings endured as a result of colonialism—is arguably being misappropriated by Heads of State seeking to protect their status and position, ironically relying upon the very doctrines that gave the right to European monarchs to wage war against and engage in conquest of African lands in the first place. AU leaders and their allies are seeking to convert legitimate political grievances into problematic legal doctrine. The position taken by the AU and by Jordan in its Appeal is an attempt to force ICC States Parties—as well as non-States Parties—to assert a right of Head of State immunity barring their leaders from prosecution before an international court for crimes against humanity, genocide, war crimes and aggression. Yet the judges of the Court must—as they have been doing since 2009—resist the political pressure exerted upon them and instead say ‘what the law is’,156 in a manner faithful to the canons of treaty interpretation that bind them under Article 21 of the Rome Statute as well as the Vienna Convention on the Law of Treaties. While the text of Article 98(1) is complex and admittedly not free from ambiguity when read in tandem with Article 27, given that Article 27 codifies a rule of customary international law that deprives individuals from relying upon immunities attached to their position with respect to core crimes, any interpretation of Article 98 must take this into account.157 Since individuals

154 M. Swart, ‘Towards a Multi-layered System of International Criminal Justice’, in E. A. Ankumnah and B. B. Ferencz (eds), The International Criminal Court and Africa: One Decade On (Cambridge: Intersentia, 2016) 143. 155 C. Chernor Jalloh and I. Bantekas, ‘Conclusion’, 371 in Jalloh and Bantekas, supra note 135. 156 Marbury v. Madison (5 U.S. 137, 138 (1803)). 157 See in this respect the helpful analysis of Amicus Curiae Robinson, Cryer, deGuzman, Lafontaine, Oosterveld, and Stahn, in the Al Bashir case. Amicus Curiae Observations of Professors Robinson, Cryer, deGuzman, Lafontaine, Oosterveld, and Stahn (The Prosecutor v. Omar Hassan Ahmad Al-Bashir) (ICC-02/05-01/09-362) (18 June 2018). See also Amicus curiae observations submitted by Prof. Flavia Lattanzi pursuant to rule 103 of the Rules of Procedure and Evidence on the merits of the legal questions presented in ‘The Hashemite Kingdom of Jordan’s appeal against the ‘Decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the

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Heads of state and other government officials before the ICC  121 are not immune from prosecution before an international court for Rome Statute crimes, to the extent that the individual hails from an ICC State Party, they clearly must be rendered to the Court as a result of Article 27(2) and customary international law. Because the ICJ in the Yerodia case recognized the temporal immunity of at least incumbent Heads of State and Foreign Ministers before national courts, presumably someone like Al-Bashir could not be directly prosecuted in South Africa, for example, should he travel there whilst still serving as Head of State.158 The question then is whether the bar to a domestic prosecution applies before an international court that has jurisdiction. In this case, the jurisdiction of the Court is triggered by the Security Council, which undoubtedly has the power and the authority to remove his temporal immunity to be prosecuted before an international court. This is not because the Council is ‘creating’ a new rule of international law in so doing, but because it is enforcing an existing rule. The parameters of the Council’s waiver are set forth in the Rome Statute itself and in the text of the Security Council Resolutions issued by it effectuating the referral. Whether implicit or explicit, it seems clear that the Council, through its referral, is indeed reinforcing the customary international law enshrined in Article 27 that official position is irrelevant to an individual being charged before an international court. Writers asserting the ‘absolute immunity of Heads of State’ under international law159 conflate, in the view of this writer, inter-State immunity from the criminal jurisdiction of national legal process from the question of that immunity before international courts; indeed, they ignore almost completely differences between the application of immunities on a vertical, as opposed to a horizontal, level. We now return to Jordan’s appeal of the Court’s decision of 11 December 2017 concluding, based upon the South Africa decision, that Jordan was under an obligation to arrest and surrender Al-Bashir to the Court when he traveled to Jordan to attend the 28th Arab League Summit in Amman on 29 March 2017.160 Jordan was given leave to appeal. In its brief it argued that Article 98(1) allowed it to refuse to arrest Al-Bashir; that Article 27(2) did not remove Al-Bashir’s immunity under conventional and customary international law;161 that Article 98(2) also applied and that the Convention on the privileges and immunities of the League of Arab States immunized Al-Bashir from arrest and surrender; that the Rome Statute cannot impose obligations on or deny rights to States not parties to the Statute (reprising the US

arrest and surrender [of] Omar Al-Bashir’ of 12 March 2018 (The Prosecutor v. Omar Hassan Ahmad Al-Bashir) (ICC-02/05-01/09 OA2) (18 June 2018). 158 Had the South Africa Decision of Pre-Trial Chamber II stopped there it would have been unobjectionable. However, the addition of the language in paragraph 82 regarding the inapplicability of Art. 27(2) was problematic, at least in the manner in which it was phrased. 159 See e.g., Akande, The Legal Nature of Security Council Referrals to the ICC, supra note 107, at 334 (relying upon cases involving inter-State application of immunities to assert that immunity of Heads of State and foreign ministers is ‘absolute … even when he is accused of committing an international crime’ and assuming that the rule is the same for international courts). 160 Decision under Article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir (The Prosecutor v. Omar Hassan Ahmad Al-Bashir) (ICC-02/05-01/09), (PTC II, 11 December 2017). 161 The Hashemite Kingdom of Jordan’s appeal against the ‘Decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender [of] Omar Al Bashir (The Prosecutor v. Omar Hassan Ahmad Al-Bashir)’ (ICC-02/05-01/09), (12 March 2018) [hereafter Jordan Appeal].

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122  The Elgar companion to the International Criminal Court argument of 1998 et seq.);162 and that Security Council Resolution 1593 did not affect Jordan’s obligations under international law to accord immunity to Omar Al-Bashir.163 Jordan’s position means that the ICC may never, in spite of Article 27(2), exercise jurisdiction over a sitting Head of State—whether or not a State Party to the Statute—without a waiver of his or her State of nationality, because Article 98 would always serve as a bar to surrender.164 Jordan’s answer to the impunity presented by its legal position parallels the response of the International Court of Justice in the Yerodia case: that immunity is not tantamount to impunity because ‘immunity ratione personae enjoyed by a Head of State from foreign criminal jurisdiction ends when he or she ceases to hold that office’.165 Given that Al-Bashir has been the President of Sudan since he took power in 1989, and shows no sign of relinquishing it any time soon, although the last elections were marred by a boycott from the main opposition parties, that might be a very long wait indeed.166 Jordan’s perspective is revealed by its use of the term ‘foreign court’.167 The ICC, however, is not a foreign court, it is an international court. That requires the analysis to be profoundly different, as outlined above.168 This being the case, the answer to Jordan’s appeal is simple: Al-Bashir cannot benefit from immunity before the Court due to the combined effect of Articles 27, 13(b), and Security Council Resolution 1593. It is not possible, as Sir Michael Wood argued during the oral proceedings, for the Court to ignore Article 27 ‘when [it] construe[s] Article 98’.169 Each provision of the Statute must be read ‘in context’ and consistently

Ibid. at 20. Ibid. at 41. 164 Ibid. at 62–64. 165 Ibid. at 61. Jordan’s brief ignores the history of Art. 27 and the sources cited above, including the cases of other international courts and tribunals, and the work of scholars, including those present during the Rome negotiations. Perhaps for this reason, on 29 March 2018, the Court invited submissions from amicus curiae on several additional questions, and received several submissions on 18 June 2018, with supplemental views. To access these submissions, see Prosecution Response to the Observations of Eleven Amici Curiae (The Prosecutor v. Omar Hassan Ahmad Al-Bashir) (ICC-02/05-01/09-369), at 2, n. 4 (16 July 2018), available online at www​.icc​-cpi​.int/​CourtRecords/​CR2018​_03719​.PDF. During the Appeals Chamber hearing held on 10 September, Jordan complained about the large number of submissions as creating ‘an advisory opinion … that has very little to do with Jordan’. Appeals Hearing, Transcript (The Prosecutor v. Omar Hassan Ahmad Al-Bashir) (ICC-02/05-01/09-T-4-ENG), (10 September 2018), at 27, lines 23–25 [hereafter Transcript, 10 September 2018]. 166 BBC, ‘Profile: Sudan’s Omar al-Bashir’, BBC News (6 April 2016), available online at www​.bbc​ .com/​news/​world​-africa​-16010445. 167 Jordan Appeal, supra note 161. Dire Tladi argued the same thing to the Appeals Chamber. Transcript, 10 September 2018, supra note 165, at 89, lines 16–18. 168 Darryl Robinson dismissed the ‘international court’ argument out of hand in his argument to the Appeals Chamber. Appeals Hearing, Transcript (The Prosecutor v. Omar Hassan Ahmad Al-Bashir), (ICC-02/05-01/09-T-5-ENG) (11 September 2018), at 16, lines 16–24. He argued that you can look at ‘all the textbooks you want … there’s no rule like that’. With due respect, none of the texts cited by him included any of the great authors of international criminal law, including Professor M. C. Bassiouni, who have clearly and thoughtfully outlined the important distinction between the horizontal and vertical application of international criminal law. The current President of the ICC, Judge Oboe-Osuji, took the same position in the Ruto case. Decision on Defence Application for Judgments for Acquittal, Separate Reasons of Judge Eboe-Osuji (The Prosecutor v. William Samoei Ruto and Joshua Arap Sang), (ICC-01/09-01/11), (5 April 2016), at 215, 223, 226. 169 Transcript, 10 September 2018, supra note 165, at 31, line 1; 32, line 2. 162 163

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Heads of state and other government officials before the ICC  123 with the ‘object and purpose’, of the Rome Statute,170 which is to ensure that the ‘most serious crimes of concern to the international community as a whole must not go unpunished’.171 It is also consistent with Article 21(1), which requires the judges of the Court to have recourse to other sources of international law in case of gaps or ambiguities. Indeed, I would argue that any other solution would constitute an ex cathedra pronouncement of the Court’s judges; it would also be completely inconsistent with the customary international law (and jus cogens) norms embedded in the Rome Statute. As Professor Claus Kreβ noted in his submissions to the Court, ‘customary international law provides the Appeals Chamber with the key for a legally correct decision’.172 In May 2019, the ICC Appeals Chamber rendered a decision on the Al-Bashir case, holding that Jordan should have arrested Al-Bashir, but that Jordan would not be referred either to the ICC Assembly of States Parties or to the Security Council for noncompliance.173 The Appeals Chamber relied upon customary international law as well, holding not that a rule existed removing any immunities before international courts and tribunals, but instead, advancing the even stronger position that: There is neither state practice nor opinio juris that would support the existence of head of state immunity under customary international law vis-à-vis an international court. To the contrary, such immunity has never been recognized in international law as a bar to the jurisdiction of an international court.174

The Appeals Chamber noted that the burden of proving such a rule would be squarely on the party arguing for its existence, consistent with classic doctrines of public international law.175 It noted that the absence of a rule of customary international law recognizing head of state immunity before an international court is ‘explained by the different character of international courts when compared with domestic jurisdictions’. 176 The Appeals Chamber also found that although domestic jurisdictions ‘constitute an expression of a State’s sovereign power, which is necessarily limited by the sovereign power of other States’, international courts, conversely, ‘act on behalf of the international community as a whole’.177 Thus, the Appeals Chamber rejected the arguments of the African Union and other amici who took the position that ‘the immunity ratione personae of Heads of State is absolute, even in the case of genocide, on the

Vienna Convention on the Law of Treaties Art. 31, 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980). 171 ICCSt., supra note 5, at preamble cl. 4. 172 Writen [sic] observations of Professor Claus Kreß as amicus curiae, with the assistance of Ms Erin Pobjie, on the merits of the legal questions presented in ‘The Hashemite Kingdom of Jordan’s appeal against the ‘Decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender [of] Omar Al-Bashir’ of 12 March 2018 (ICC-02/05-01/09-326) (The Prosecutor v. Omar Hassan Ahmad Al-Bashir), (ICC-02/05-01/09-359), (18 June 2018); Transcript, 10 September 2018, supra note 165, at 107, lines 16–17. 173 Prosecutor v. Omar Hassan Ahmad Al-Bashir, (ICC-02/05-01/09 OA2), Judgment in the Jordan Referral re-Al Bashir Appeal (6 May 2019). 174 Ibid. para. 1. 175 Ibid. para. 116. See also Lotus Case (France v. Turkey) [1927] PCIJ. 176 Ibid. para. 115. 177 Ibid. 170

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124  The Elgar companion to the International Criminal Court basis that any arrest or prosecution will inevitably interfere with their functions on behalf of the State, for so long as they remain in office’.178 Because the Appeals Chamber’s judgment was unanimous,179 it seems unlikely that this issue will continue to be litigated at the International Criminal Court, although there will undoubtedly be heated conversations about it that continue at the ICC’s Assembly of States Parties and even perhaps before the International Court of Justice given the campaign to bring this issue to the ICJ for decision. For this reason, it is worth addressing some additional arguments advanced either implicitly or explicitly by Jordan and its advocates during the hearing on Jordan’s appeal in June 2018.180 The first is that through the persistence of the arguments advanced by the US and members of the African Union, customary international law relating to immunities has now changed. If State practice is the key to determining the content of a rule of custom, the argument goes, the protestations of a significant number of States have the ability to change a rule of custom once created. Thus, even if there was a rule rendering Heads of State subject to the jurisdiction of the International Criminal Court and its cooperation regime at the time of the Court’s founding, perhaps that custom no longer exists. There are several responses to that argument. First, the number of States actually protesting is relatively small. Even within the African Union’s membership, a significant number of States have not supported the AU’s positions on Al-Bashir’s immunities. It is also relevant in this respect that the Malabo Protocol codifying this ‘new norm’ has not received a single ratification, and that the South African and Kenyan courts hearing the cases found that there is no immunity for Heads of States accused of Rome Statute crimes as a matter of customary international law.181 Second, the norm at issue is part of a jus cogens regime that, by its terms, is non-derogable. The ‘nonconforming practice of a few violators of the norm’ should not be the reference; rather, the question to be considered is ‘what are the shared expectations and patterns of the community?’182 The Appeals Chamber explored in the 10 September 2018 hearing what the consequences of that jus cogens status might mean for its opinion—it is worth noting that

Ibid. para. 84 (quoting the intervention of Mr. O’Keefe). The Chamber issued a five-member unanimous decision, accompanied by a four judge concurrence of nearly 200 pages further elaborating on the Head of State immunity question. Prosecutor v. Omar Hassan Ahmad Al-Bashir, (ICC-02/05-01/09 OA2), Joint Concurring Opinion, in the Jordan Referral re-Al Bashir Appeal (6 May 2019). The Joint Concurring Opinion, while very interesting, added unnecessary complexity to the case by taking up issues, such as the question of where the outer limits of the term ‘international court’ were, as I have written elsewhere. Leila Sadat, Why the ICC’s Judgment in the Al-Bashir case wasn't so surprising, available online at https://​www​.justsecurity​.org/​64896/​why​-the​ -iccs​-judgment​-in​-the​-al​-bashir​-case​-wasnt​-so​-surprising/​ (12 July 2019). 180 The Court heard Jordan’s Appeal on 10 September 2018. Although the Government of Sudan was invited to present its views, it did not appear in the case. Several Amicus Briefs were filed in the case. See supra note 165. 181 South African High Court Judgment, supra note 114; Minister of Justice and Constitutional Development v. Southern African Litigation Centre (867/15) [2016] ZASCA 17 (15 March 2016) [hereafter South African Supreme Court of Appeals Judgment] (finding that the failure to arrest Al Bashir was unlawful and dismissing the government’s appeal); Kenyan Appeals Court Judgment, supra note 102. 182 J. J. Paust, ‘Customary International Law: Its Nature, Sources and Status as Law of the United States’, in J. J. Paust (ed.), International Criminal Law: Cases and Materials (2nd edn., Durham, NC: Carolina Academic Press, 2003) 4–7. 178 179

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Heads of state and other government officials before the ICC  125 many national courts, including most recently Kenya’s Court of Appeals, concluded that Al-Bashir had no immunity because of the jus cogens nature of the crimes alleged. Third, it is not clear that the relevant actors for assessing the content of the new rule should be African Heads of State, given that they are inherently self-interested in the content of the rule. African civil society and two African Courts have asserted the continued validity of the current rule by insisting upon its currency, and in the cases of the Kenyan and South African courts, finding those governments in violation of their Rome Statute treaty obligations in failing to cooperate with the ICC.183 Customary international law arguably rests upon the general patterns of legal expectation (opinio juris) of humankind, not merely that of their representatives.184 Fourth, as we saw with the US and its relationship to the Court, views change from administration to administration, suggesting that opposition to the rule embedded in Article 27 is not firm but varies with the political preferences of particular leaders. To the extent that the International Court of Justice was willing to admit of temporal immunities to the prosecution of Heads of State for core crimes, it was because, in its view, ‘immunity does not mean impunity’.185 Yet in the African context, Heads of State often have astonishingly long tenures, amounting essentially to lifetime appointments.186 Other States have been following this trend, including most recently China, which removed the two-term limit on the presidency of Xi Jinping,187 causing US President Donald Trump to chime in that ‘President for life … I think it’s great. Maybe we’ll have to give that a shot someday.’188 Finally, one last argument could be the formation of a new ‘Regional Custom’ for Africa,189 opting out of the regime applicable to the rest of the world in terms of immunity and official position. While such a regime would clearly be undesirable for the reasons aforementioned and has not yet been firmly established

South African High Court Judgment, supra note 114; South African Supreme Court of Appeals Judgment, supra note 181; Kenyan Appeals Court Judgment, supra note 102. 184 See e.g., The Scotia (81 U.S. 170, at 176 (1871)); The Prize Cases (67 U.S. 635, at 670 (1863)); Ware v. Hylton (3 U.S. 199, at 227 (1796)). See also Statement by Claus Kreß, ICC Appeals Chamber hearing, Transcript, 10 September 2018, supra note 165, at 107–114; International Law Commission, Text of the draft conclusions on identification of customary international law adopted by the Commission and commentaries thereto, in Report on the work of the sixty-eighth session, UN Doc. A/71/10 (2016), at 79–117. 185 Arrest Warrant Case, supra note 54, at 48. 186 See sources cited supra note 111. See also C. Felter, Africa’s ‘Leaders for Life’ Syndrome, Council on Foreign Relations (18 December 2017), available online at www​.cfr​.org/​backgrounder/​africas​-leaders​ -life​-syndrome. 187 BBC, ‘China’s Xi allowed to remain “president for life” as term limits removed’, BBC News (11 March 2018), available online at www​.bbc​.com/​news/​world​-asia​-china​-43361276. China notably takes an absolute approach to immunities. See Julian G. Ku, ‘The Significance of China’s View on the Jus Cogens Exception to Foreign Government Official Immunity’, 26 Duke Journal of Comparative & International Law (Duke J Comp & Intl L) (2016) 503–515; see also Huang Huikang, ‘On Immunity of State Officials from Foreign Criminal Jurisdiction’, 13 Chinese Journal of International Law (Chinese J Intl L) (2014) 1–11, at 5 (immunities are required by principles of due process). 188 See D. Shepardson, ‘Trump praises Chinese president extending tenure “for life”’, Reuters (3 March 2018), available online at www​.reuters​.com/​article/​us​-trump​-china/​trump​-praises​-chinese​ -president​-extending​-tenure​-for​-life​-idUSKCN1GG015 (quoting President Trump as saying, about Chinese President Xi Jinping: ‘he’s now president for life, president for life. And he’s great …. And look, he was able to do that. I think it’s great. Maybe we’ll have to give that a shot someday’. Ibid.). 189 See Asylum (Colombia v. Peru), [1950] ICJ Rep 266. 183

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126  The Elgar companion to the International Criminal Court in light of the Malabo Protocol’s non-ratification, in the view of this writer it would also be legally impossible, given the non-derogable nature of the regime attaching to jus cogens crimes.

5. CONCLUSION As I wrote many years ago, the core of the revolution worked in Rome was the transformation by the Rome Statute of international legal principles regarding the exercise of inter-State jurisdiction in criminal proceedings, to international legal principles regarding the exercise of jurisdiction by international courts.190 This process began during the Nuremberg trial and judgment, which rejected the failure of 1919 and held that ‘individuals have international duties which transcend the national obligations of obedience imposed by the individual state’191 and that States may do ‘together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law’.192 This idea of primacy—of the law and of an international criminal court—was built into the Statutes of the first international criminal tribunals created after Nuremberg, the International Criminal Tribunals for the former Yugoslavia and Rwanda, which had strong enforcement powers as well, given their status as creations of the Security Council. The delegates to the Rome conference, however, were contemplating a new permanent court that could adjudicate cases in real time, coming from anywhere on the planet. More cautious then than the framers of the ad hoc tribunals, they incorporated provisions clearly embodying the supremacy of the ICC’s prescriptive jurisdiction but limited its adjudicative jurisdiction via the complementarity principle and other complex procedural mechanisms. They were even more cautious regarding the new Court’s enforcement jurisdiction, about which they were uneasy as evidenced by the complexity of the Rules in Part 9 that are now creating so much difficulty in the Statute’s application.193 Nothing in the negotiating history suggests that they had any intention to limit the application of Nuremberg Principle III, depriving all before the Court of any immunities they might otherwise have had under international law. Indeed, Article 27(1) and (2), placed as they are in the General Part of the Statute, form core and fundamental bedrock principles of the Rome Statute system. Any examination of Article 98’s effect, then, must start with the premise that Article 27 is essentially of ‘constitutional’ or primordial status within the Rome Statute itself;194 as opposed to Article 98 which was meant to have a relatively limited effect that would allow the Court to take into account a State’s existing international law obligations when considering a request for cooperation. The explosion of litigation and scholarly writings around the interaction of these two provisions, sparked by the travels of then-President Al-Bashir of Sudan, should thus be seen for what they are: an effort to change the customary international law embedded in the Rome Statute during its adoption in 1998 and a challenge to the accountability principles that the Rome Statute contains. This has been sparked not by dysfunction or inappropriate activi-

Sadat, Transformation of International Law, supra note 12, at 103. Nuremberg Judgment, supra note 2, at 221. 192 Ibid. at 216. 193 Sadat, Transformation of International Law, supra note 12, at 103–104. 194 Sadat and Jolly, supra note 14. 190 191

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Heads of state and other government officials before the ICC  127 ties of the Court but by the fact that ‘the Court is working’, as one member of civil society recently observed.195 As noted above, just two years prior to the ICC Statute’s adoption, the International Law Commission itself had indicated its support for a provision like Article 27(1) and 27(2). Reading the submissions of Jordan and the African Union in Jordan’s recent appeal, it seems as if Nuremberg and the evils of impunity have been forgotten as States once again rally around their sovereigns as if they were the kings and queens of yore. As scholars continue to debate the import of the Appeals Chamber’s decision in the Al-Bashir case, a serious effort is underway to bring this question to the International Court of Justice for an Advisory Opinion.196 While thoughtful and well-intended, it could also be seen as an affront to the judges of the International Criminal Court, who have now rendered a series of opinions each reaffirming the applicability and enforceability of the Court’s arrest warrants in the Al-Bashir case, decisions that the Appeals Chamber has confirmed. It is not clear that an appeal to the ICJ would be anything other than a collateral attack on a decision of the ICC that is disliked by some segment of the academic community and States. As for Al-Bashir himself, he is now imprisoned in Sudan, having been toppled from power by his own people, and put on trial for corruption. Already credibly accused by the international community of presiding over the commission of atrocity crimes, including genocide, his track record of corruption and violence suggest that whatever policy reasons might be advanced in support of absolute immunity for Heads of State, they have little salience in his particular case. In the view of this writer, to the extent that the political difficulties the Court is experiencing with some African States persist,197 the solution should be diplomatic and political, not bending the law to fit the politics. If there are enough voices who believe that the Court’s current interpretation of the interplay between Articles 27 and 98 is incorrect, they can propose amending the Statute at the next Review Conference to include new text that will explicitly exempt Heads of State and, presumably, a list of other defined persons they believe to be immune from the Court’s reach.198 If this is the desired outcome, it should be made explicit, not effectuated through judicial amendment of the Statute. Of course, this ‘new’ model has been tried before: it is the impunity paradigm that existed in 1919 and that protected the Kaiser.199 It is unclear why States believe it will work better this time than it did the last time around. Perhaps the best solution is for States to support the Court, adhere to the original understanding of Article 27, and either prevent the commission of atrocity crimes altogether, or punish the perpetrators, of those crimes that are committed, in their national courts.

195 Remarks of William Pace, Convener of the Coalition for the International Criminal Court, 16 April 2016, Conference held in honor of the opening of the Court’s Permanent Premises. 196 D. Akande, ‘An International Court of Justice Advisory Opinion on the ICC Head of State Immunity Issue’, EJIL: Talk! (31 March 2016), available online at www​.ejiltalk​.org/​an​-international​ -court​-of​-justice​-advisory​-opinion​-on​-the​-icc​-head​-of​-state​-immunity​-issue/​. 197 And with the US. 198 While not discussed in any of the briefs supporting Jordan, obviously the immunities contemplated would not stop at Heads of State but would include, at the very least, Foreign Ministers and undoubtedly other high-ranking individuals. 199 See generally, W. A. Schabas, The Trial of the Kaiser (Oxford: Oxford University Press, 2018).

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6. Penalties and punishment Mark A. Drumbl

1. INTRODUCTION This Chapter examines how the International Criminal Court (ICC) sentences those individuals it convicts. Although sentencing is often taken as an afterthought, which is indeed a pity, victims care deeply about what ultimately happens to persons convicted of serious international crimes.1 Sentencing fulfils important narrative functions. Sentencing can also serve as a venue to individuate differentiations among perpetrators, in particular within the context of group crimes, and thereby inject granularity into the attribution of responsibility. In this regard, then, this Chapter aspires to help fill a broader disciplinary lacuna while also offering practical guidance for practitioners and observers of this important aspect of the ICC’s work. The ICC punishes through imprisonment. In addition, fines, an order for forfeiture (of proceeds, property and assets derived directly or indirectly from the crime), and an award for reparations may be made against a convict. The reparative order, however, may also be satisfied through the Trust Fund for Victims, established by the Rome Statute and funded by donor states, which also supports collective projects that run independently from any conviction. The Trust Fund however disclaims any punitive orientation and operates within a restorative paradigm. Hence, it is not part of the ICC’s penalty schematic. ICC judges reference the work of other international courts and tribunals in their sentencing jurisprudence. A sentencing practice has indeed emerged within international institutions. This practice occurs despite the formal absence of the doctrine of stare decisis and proof that the affirmed norm in fact constitutes a general principle of law. This cross-referencing also takes place notwithstanding differences among the mandates and directives of these various institutions as enunciated by their enabling instruments. On the other hand, the need to individualize the penalty means that previous sentencing practices provide only limited assistance.2 This chapter proceeds through four steps: (1) unpacking the positive law of the ICC’s enabling instruments when it comes to sentencing; (2) discussing the sentencing judgments that the ICC has thus far issued, including the punitive rationales thereof; (3) consideration of two unsettled areas of international sentencing, to wit, the ability of the issued sentences to attain their penological goals and the complexities that surround where and under what conditions convicts actually are incarcerated; and (4) a conclusion that looks ahead to the penological aspects of some of the criminal conduct the Office of the Prosecutor (OTP) hopes to examine

W. A. Schabas, ‘International Sentencing: From Leipzig (1923) to Arusha (1994)’, in M. C. Bassiouni (ed.), International Criminal Law, Vol. 3, International Enforcement (Leiden: Martinus Nijhoff, 2008) 613–634, at 613. 2 It has been held that sentences given to other perpetrators are not to be given much weight in determining a sentence because sentencing is a deeply individualized process, in particular, when the reference is to the sentencing practices of another tribunal (such as the ICTY). See generally Decision on Sentence, Lubanga (ICC-01/04-01/06), Appeals Chamber, 1 December 2014, § 77. 1

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Penalties and punishment  129 in the future. Throughout, this Chapter unwinds the narrative goals of punishment as teleologically placed within the broader aspirational frame of international criminal justice.

2.

POSITIVE LAW: ROME STATUTE FRAMEWORK AND RULES OF PROCEDURE AND EVIDENCE

The ICC can sentence an offender to up to 30 years’ imprisonment, with a possibility of ‘life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person’.3 There is no individualized sentencing range for specific crimes or modes of liability. The basic sentencing formula is set out in Article 78(1) of the ICC Statute: When determining an appropriate sentence, the ICC shall ‘take into account such factors as the gravity of the crime and the individual circumstances of the convicted person’. Article 78(2) requires deduction of the time the convicted person has spent in detention upon an order of the Court. Pursuant to Article 76(1), the Chamber shall take into account the evidence presented and submissions made during the trial that are relevant to sentencing when considering the appropriate sentence. Article 76(4) requires that the sentence ‘be pronounced in public and, wherever possible, in the presence of the accused’.4 The sentence is to be joint, that is, cumulative of all the convictions.5 Thus far at the ICC (three convictions at the time of writing, with a fourth conviction overturned on appeal in June 2018), a specific sentence has been given as to each charge for which a conviction was entered and then a global sentence issued that corresponds to the most severe among these concurrent sentences. The ICC Rules of Procedure and Evidence indicatively list some factors for the judges to consider in sentencing, including explicitly enumerated aggravating and mitigating factors.6 These are generally (and non-exhaustively): the extent of the damage inflicted, in particular the harm caused to the victims and their families; the nature of the unlawful behaviour and the means employed to execute the crime; the degree of participation of the convicted person; the degree of intent; the circumstances of manner, time and location of the crime; and the age, education, social and economic condition of the convicted person. Some mitigating circumstances are non-exclusively indicated: ‘circumstances falling short of constituting grounds for exclusion of criminal responsibility, such as substantially diminished mental capacity or duress’ and ‘the convicted person’s conduct after the act, including any efforts by the person to compensate the victims and any cooperation with the Court’. Aggravating circumstances are enumerated in Rule 145(2)(b) as: (i) any relevant prior criminal convictions for crimes under the jurisdiction of the Court or of a similar nature;

Art. 77(1) ICCSt. See also ibid. at Art. 76(1) (‘In the event of a conviction, the Trial Chamber shall consider the appropriate sentence to be imposed and shall take into account the evidence presented and submissions made during the trial that are relevant to the sentence.’). 4 Article 76(2) requires the Chamber to hold a sentencing hearing if requested by the Prosecutor or the accused, or to hold one on its own motion. 5 Art. 78(3) ICCSt. 6 Rules 145(1)(c) and 145(2) ICC RPE. 3

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130  The Elgar companion to the International Criminal Court (ii) abuse of power or official capacity;7 (iii) commission of the crime where the victim is particularly defenceless; (iv) commission of the crime with particular cruelty or where there were multiple victims; (v) commission of the crime for any motive involving discrimination on any of the grounds referred to in article 21, paragraph 3; (vi) other circumstances which, although not enumerated above, by virtue of their nature are similar to those mentioned.

No ordering principle is provided as to the relative weight to attribute to any of these factors; ‘one or more aggravating circumstances’ may justify the imposition of life imprisonment.8 Preserving differentiations between elements of the crime, factors that pertain to gravity, and aggravating factors can be tricky. The due process rights of the defendant and the principle of legality, however, require vigilance in this regard so as to avoid double-counting. Whereas factors in mitigation need to be established only on the balance of probabilities, aggravating factors need to be proven beyond a reasonable doubt. Many of these factors arose in the sentencing jurisprudence of the ad hoc international criminal tribunals as well as the hybrid international tribunals. Mitigating factors need not be directly connected to the offenses charged. When it comes to understanding mitigating and aggravating factors, as well as the gravity of the offense and penological goals, ICC judges reference the case-law of these other international criminal tribunals. In Lubanga, the Appeals Chamber clearly elucidated the road-map provided by the positive law framework of the Rome Statute and the Rules of Procedure and Evidence: For purposes of ‘determining the sentence’, article 78 (1) of the Statute requires that a Trial Chamber consider ‘such factors as the gravity of the crime and the individual circumstances of the convicted person’. Rule 145 (1) (c) of the Rules of Procedure and Evidence requires, ‘[i]n addition to the factors mentioned’ in article 78 (1) of the Statute, that the Trial Chamber give consideration to a non-exhaustive list of additional factors. Furthermore, rule 145 (2) of the Rules of Procedure and Evidence requires a Trial Chamber, to take into account, ‘as appropriate’ ‘[i]n addition to the factors mentioned’ in rule 145 (1) (c) of the Rules of Procedure and Evidence, the factors of any mitigating and aggravating circumstances. Once all of the relevant factors have been identified and taken into account, rule 145 (1) (b) of the Rules of Procedure and Evidence requires that a Trial Chamber ‘[b]alance all the Relevant factors’ and pronounce a sentence. Article 78 (3) provides that, if the person is convicted of more than one crime, the Trial Chamber ‘shall pronounce a sentence for each crime’, as well as ‘a joint sentence specifying the total period of imprisonment’, which cannot be less than the highest individual sentence. Additionally, rule 145(1)(a) of the Rules of Procedure and Evidence contains the overarching requirement that ‘the totality of any sentence [...] must reflect the culpability of the convicted person’.9

The ICC can impose fines and order forfeiture, in addition to imprisonment, but these remedies shall be imposed only if imprisonment is insufficient and with regard to the convict’s motivation and financial capacity.10 These remedies were rejected in the Lubanga and Katanga cases In order to establish this particular aggravating circumstance, it must be shown that the convicted person exercised some authority and also that the convicted person abused that authority. 8 Rule 145(3) ICC RPE. 9 Judgment on the appeals of the Prosecutor and Mr Thomas Lubanga Dyilo against the ‘Decision on Sentence pursuant to Article 76 of the Statute’, Lubanga (ICC-01/04-01/06-3122), 1 December 2014, §§ 32–33. 10 Art. 77(2) ICCSt. 7

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Penalties and punishment  131 owing inter alia to the indigence of the convict. The Rome Statute permits reparations to be made to victims.11 Pursuant to Article 75(1), ‘the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting’. It ‘may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation’.12 The ICC can also make reparative orders through the Trust Fund for Victims, for which regulations have been developed.13 The Fund is to be capitalized by compensation orders entered against convicts (in theory) and also by voluntary grants from organizations and governments (in actuality). While the estimated annual cash requirements of the Trust Fund for Victims stand at €10 million per year, since 2004 it has only raised a total of €33.3 million, thereby presenting a major shortfall.14 Leading donors include Sweden, Germany, the UK, the Netherlands, and Finland. The Fund has nonetheless supported projects including in Northern Uganda and the Democratic Republic of the Congo. Projects include vocational training, counselling, reconciliation workshops and reconstructive surgery. The Fund’s programming involves individual assistance (to victims of crimes) and also collective projects to help communities rebound. As of the time of writing, 25,000 victims are formally participating in ICC proceedings, with over 180,000 beneficiaries of assistance through the Trust Fund for Victims. Victims are able to participate in sentencing proceedings and share their views with the Chamber. Trial Chambers are granted ‘broad discretion in determining sentence’.15 Sentences, however, can be appealed. In this regard, the Appeals Chamber’s ‘primary task is to review whether the Trial Chamber made any errors in sentencing the convicted person’.16 Article 81(2)(a) provides that a sentence may be appealed, in accordance with the Rules, by the Prosecutor or the convicted person on the grounds of disproportion between the crime and the sentence. It is only if the Appeals Chamber finds the sentence imposed by the Trial Chamber to be disproportionate that the Appeals Chamber can enter a new, appropriate sentence.17 The Appeals Chamber’s role ‘is not to determine, on its own, which sentence is appropriate, unless it has found that the sentence imposed by the Trial Chamber is “disproportionate” to the crime’.18 It is such a finding that supports the requirement in Article 83(2) that the sentence be ‘materially affected by error of fact or law or procedural error’. The Appeals Chamber will not interfere with the Trial Chambers’ sentencing discretion merely because the Appeals Chamber might have made a different ruling. In short: The Appeals Chamber will only intervene in a Trial Chamber’s exercise of its discretion in determining the sentence if: (i) the Trial Chamber’s exercise of discretion is based on an erroneous interpre Ibid. at Art. 75. Ibid. at Art. 75(2). 13 Ibid. at Art. 79(2); Rule 98 ICC RPE. The Lubanga proceedings also saw (in August 2015) the issuance of an Appeals Chamber decision establishing the principles and procedures to be applied to reparations. 14 See David Scheffer, The Rising Challenge of Funding Victims’ Needs at the International Criminal Court (3 December 2018), available online at https://​www​.justsecurity​.org/​61701/​rising​ -challenge​-funding​-victims​-international​-criminal​-court/​. 15 Lubanga Decision on Sentence, supra note 2, at § 1. 16 Ibid. at § 2. 17 Ibid. at § 39. 18 Ibid. at § 2. 11 12

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132  The Elgar companion to the International Criminal Court tation of the law; (ii) the discretion was exercised based on an incorrect conclusion of fact; or (iii) as a result of the Trial Chamber’s weighing and balancing of the relevant factors, the imposed sentence is so unreasonable as to constitute an abuse of discretion.19

In Lubanga, interestingly, the ICC Appeals Chamber was buttressed in its assessment of its role in the sentencing process by referencing the standards of appellate review at the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL), each of which treat sentencing decisions as discretionary decisions in which sentences may be revised on appeal only in cases where a Trial Chamber has committed a ‘discernible error’ in exercising its discretion.20 International criminal tribunals have allowed for convicts to be pardoned or sentences commuted and early releases to be granted.21 In this vein, Article 110(3) states that when the convict has served two-thirds of the sentence, or 25 years in the case of life imprisonment, the Court shall review the sentence to determine whether it should be reduced. Any possible sentence reduction can only be applied to the remaining one-third of the sentence. A sentence reduction may be issued if the Court determines the existence of one or more of the following factors: (1) ‘early and continuing willingness’ of cooperation by the convict; (2) the convict’s ‘voluntary assistance … in particular providing assistance in locating assets subject to orders of fine, forfeiture or reparation which may be used for the benefit of victims’; or (3) other factors ‘establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence, as provided in the Rules ...’.22 Article 110(5) provides that ‘if the Court determined in its initial review under paragraph 3 that it is not appropriate to reduce the sentence’, the Court shall conduct another review at a later time. Rule 223 also is germane to early release proceedings. This Rule provides that judges shall take into account a number of additional criteria to those enumerated in Article 110, namely: (a) the conduct of the sentenced person while in detention, which shows a genuine dissociation from his or her crime; (b) the prospect of the resocialization and successful resettlement of the sentenced person; (c) whether the early release of the sentenced person would give rise to significant social instability; (d) any significant action taken by the sentenced person for the benefit of the victims as well as any impact on the victims and their families as a result of the early release; and (e) individual circumstances of the sentenced person, including a worsening state of physical or mental health or advanced age.23

3.

ICC SENTENCING PRACTICE

To date, the ICC sentences more leniently than its predecessors. As of the time of writing, the ICC has sentenced four convicts, one of whom (Bemba) was subsequently acquitted when all Ibid. at § 3. Ibid. at § 46. 21 Art. 27 ICTRSt; Art. 28 ICTYSt; Art. 23 SCSLSt. 22 Art. 110(4) ICCSt. 23 These factors constitute the ‘other factors’ listed in Art. 110(4)(c). Decision on the review concerning reduction of sentence of Mr. Germain Katanga, Katanga (ICC-01/04/01/07), 13 November 2015, § 19. 19 20

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Penalties and punishment  133 of his convictions were overturned on appeal. This section takes up each of these four cases in turn and, thereby, offers a sustained treatment of the ICC’s sentencing practice and policy. 3.A Bemba On 21 June 2016, ICC Trial Chamber III sentenced Jean-Pierre Bemba to 18 years’ imprisonment.24 Bemba was acquitted two years later, when a deeply divided Appeals Chamber (3:2) overturned all convictions. Within the majority appeals judgment, two judges immediately acquitted him on the facts while the third would have ordered a new trial. The majority’s basis for overturning the convictions lay in two general areas. First, the majority ruled that some of the convictions were for crimes that had not been properly charged and, second, found that the Trial Chamber had erred in its application of command responsibility in situations of remoteness (i.e. commanders located distantly from troops). The Appeals Chamber did not materially revisit the logic or rationale of the sentence. As a result, and notwithstanding the eventual acquittal, I include the Bemba sentencing discussion in this chapter because it provides a flavour of how ICC judges approach questions of sentencing, notably in crimes of sexual violence, and also in light of the fact that the ICC has only issued four sentences since beginning operations in 2002. What is more, the Bemba sentencing discussion at trial was very clear and detailed. To be sure, the exact persuasive value of the sentencing parts of the Bemba trial judgment for other cases remains unclear, certainly in matters that involve command responsibility, but it may also be that future Appeals Chambers approach command responsibility in situations of remoteness differently than the Bemba Appeals Chamber (clearly, that would be the wish of OTP). The extensive discussion of the gravity of sexual violence as a factor in sentencing moreover remains of crucial importance. Bemba was the former Vice-President of the Democratic Republic of the Congo (DRC), and former leader of one of that country’s more powerful militia groups. His case nonetheless formed part of the Central African Republic (CAR) situation. Bemba was found guilty at trial on 21 March 2016, for his role as commander in failing to prevent or punish rape, murder, and pillage by his troops in the CAR in 2002 and 2003. In 2002, following a request by CAR President Ange-Félix Patassé, Bemba deployed militia members to the CAR to assist in Patassé’s fight against a coup d’état. The Bemba case is noteworthy as being the first at the ICC to focus on sexual- and gender-based violence against women, men, and children and, in terms of modes of liability, to invoke command responsibility. Bemba was sentenced at trial to 16 years for the war crime and crime against humanity of murder, 18 years for the war crime and crime against humanity of rape, and 16 years for the war crime of pillage. In accordance with the requirements of the Rome Statute, he would have faced a concurrent term of 18 years. Although it fell short of the 25 years requested by the OTP (and the maximum sentence—30 years—requested by the legal

24 Decision on Sentence pursuant to Art. 76 of the Statute, Bemba (ICC-01/05-01/08), Trial Chamber III, 21 June 2016. Bemba was separately convicted in October 2016, while he was serving his sentence, of coaching and bribing witnesses to give false testimony. This particular conviction was not affected by the 2018 Appeals Chamber decision.

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134  The Elgar companion to the International Criminal Court representatives for the more than 5,000 victims participating in the trial), Bemba’s sentence was the heftiest thus far issued by the ICC (again, as of the time of writing).25 Trial Chamber III began by referencing the declaration in the Preamble to the Rome Statute that the Court is intended to put an end to impunity for the most serious crimes of concern to the international community as a whole.26 It did so to buttress the settled proposition that retribution and deterrence are the ‘primary objectives of punishment at the ICC’.27 Trial Chamber III emphasized that ‘[r]etribution is not to be understood as fulfilling a desire for revenge, but as an expression of the international community’s condemnation of the crimes’.28 Proportionality is key to retributive theory, to be sure, and should also ‘acknowledge … the harm to the victims and promote … the restoration of peace and reconciliation’.29 Deterrence is defined in characteristic fashion, differentiating between specific and general.30 Trial Chamber III also gestured towards rehabilitation, although (reprising language from the ad hoc tribunals), it is not to be ‘given undue weight’.31 In terms of methodology, the Bemba Trial Chamber followed the guidance of the ICC Appeals Chamber in Lubanga:32 first, to identify and assess relevant factors in Article 78(1) and Rules 145(1)(c) and (2), then to balance these factors pursuant to Rule 145(1)(b), and finally to pronounce a sentence for each crime, and a joint sentence that specifies the total period of imprisonment. In no instance can the total sentence be less than the highest individual sentence. In terms of determining sentence, the sentencing judges followed the settled pattern at the ICC. They emphasized, as the Lubanga Chamber previously had, their ‘considerable discretion’ in imposing a proportionate sentence, but noted that Rule 145(1)(a) requires that the sentence reflect the culpability of the convicted person.33 ICC sentencing judgments have accorded particular attention to the interpretive question about the interaction between the factors specified in Article 78(1) and those listed in Rule 145(1)(c). In the Lubanga sentencing appeal judgment, three approaches had been postulated.34 The first approach is to view the Article 78(1) factors as separate from those listed in Rule 145(1)(c). The second approach is that some of the Rule 145(1)(c) factors are subsumed by the Article 78(1) factors, while others are separate. The third approach is that Rule 145(1) (c) factors are part of and must be taken into account in assessing the Article 78(1) factors. In Lubanga, the Appeals Chamber did not consider it necessary to determine which one of these approaches would be preferable or correct. In Bemba, the Chamber considered that some of the Rule 145(1)(c) factors ‘may … be relevant to an assessment of the mitigating and aggravating circumstances identified in Rule

25 FIDH, ‘Jean-Pierre Bemba sentenced by ICC to 18 years in prison for rape, murder and pillage in CAR’ (accessed 8 August 2016, on file with the author). 26 Bemba Decision on Sentence pursuant to Art. 76 of the Statute, supra note 24, at § 10. 27 Ibid. (citing also the ICC Katanga sentencing decision, ICTY Popović et al. appeal judgment, and ECCC Kaing appeal judgment). 28 Ibid. at § 11. 29 Ibid. 30 Ibid. 31 Ibid. 32 Ibid. at § 12. 33 Ibid. 34 Lubanga Decision on Sentence, supra note 2, at §§ 61–66.

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Penalties and punishment  135 145(2)’.35 In reaching this conclusion, the Bemba Chamber found it to be consistent with the travaux préparatoires and also the methodologies adopted by the ad hoc tribunals.36 The Chamber in Bemba was very clear as to the impermissibility of double-counting any factors assessed in relation to the gravity of the crimes as aggravating circumstances and vice versa.37 To do otherwise, of course, would be unfair to the convict. Moreover, any legal element of the crimes or mode of liability cannot be considered as an aggravating circumstance.38 A two-step process arises: first, to assess the gravity of the crimes, and second to individualize in terms of the determination of the aggravating and mitigating factors. In Bemba, the Chamber reaffirmed the settled principle that the gravity of the crime is ‘a principal consideration in imposing a sentence’.39 Unlike the case with aggravating circumstances, gravity ‘necessarily involves consideration of the elements of the offence itself’.40 Bemba, to be clear, was a case of command responsibility, which the Chamber at trial had characterized as a sui generis mode of liability.41 Hence, the Chamber in sentencing had to ‘assess the gravity of (i) the crimes committed by the convicted person’s subordinate; and (ii) the convicted person’s own conduct in failing to prevent or repress the crimes, or submit the matter to the competent authorities’.42 Turning to individualization, that is, aggravating and mitigating circumstances, the Bemba Chamber reiterated the core propositions that aggravating circumstances must be established beyond a reasonable doubt and must relate to the crimes upon which a person was convicted and to the convicted person.43 When it comes to mitigating circumstances, on the other hand, these need only be established on a balance of probabilities; nor do mitigating circumstances need to be related directly to the crimes and they are not limited by the scope of the charges or judgment, though they do have to relate directly to the convicted person.44 The Chamber has considerable discretion in considering any mitigating circumstances. It may also consider a factor as relevant to its assessment of gravity rather than considering it in mitigation or aggravation of the sentence. Having set out the generalities of the legal framework, the Chamber then applied the law to Bemba’s specific situation. Bemba had been convicted of the war crimes of murder, rape, and pillaging, and the crimes against humanity of murder and rape committed by soldiers under his effective control in the CAR. In assessing the gravity of the crimes, the Chamber focused on the following Rule 145(1)(c) factors: the extent of damage caused, the nature of the unlawful behavior, the means employed to execute the crime, and the circumstances of manner, time, and location. It also considered, in light of the special nature of the crimes of rape and pillage, Rule 145(1)(c) factors not addressed in terms of gravity in its assessment of aggravating circumstances. The Chamber

Bemba Decision on Sentence pursuant to Art. 76 of the Statute, supra note 24, at § 13. Ibid. 37 Ibid. at § 14. 38 Ibid. 39 Ibid. at § 15. 40 Ibid. 41 Ibid. at § 16. 42 Ibid. at § 15. 43 Ibid. at § 18 (noting also that ‘[t]he absence of a mitigating circumstance can never serve as an aggravating circumstance’). 44 Ibid. at § 19. 35 36

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136  The Elgar companion to the International Criminal Court examined in considerable detail the effects of the crimes of rape. Expert witnesses testified as to the many effects of rape upon survivors, including the longitudinal and intergenerational impact thereof,45 and the specific social effect of rape in the CAR (in terms of social reintegration), including the rape of men.46 The Chamber found that the survivor testimony indicated the grave effects of the rapes. The Chamber found that the number of victims was substantial and the degrees of damage caused to the victims, their families, and communities was ‘severe and lasting’.47 The Chamber, in sum, found that the crimes were of the ‘utmost, serious gravity’.48 The Chamber also engaged in a detailed discussion of aggravating circumstances when it came to the crimes of rape. Specifically, it referenced the particularly defenseless nature of the victims and the particular cruelty of the acts. In term of the convictions for pillage, the Chamber found that the consequences were far-reaching and often left the victims ‘with nothing’.49 The number of pillaged victims was found to be substantial. Other time, manner, and location considerations prompted the Chambers, in addition, to find the crime of pillage to be of ‘serious gravity’.50 In terms of aggravating circumstances, the Chamber noted that many of the same factors considered in aggravation of rape applied to the aggravating circumstances for pillage, in particular, cruelty, although one judge dissented from this specific finding, ruling instead that the same facts instead established the aggravating factor of ‘particularly defenseless victims’.51 The Chamber found that two features of command responsibility were particularly germane to assessing the gravity of Bemba’s culpable conduct: the nexus requirement and the alternative mens rea standards. His failures of command were found to be ongoing and found to directly contribute to the continuation and further commission of crimes.52 His position as ‘the highest-ranking MLC official’, his authority, and his education and experience also were found to increase the gravity of his culpable conduct.53 Insofar as the superior’s direct contribution to the crimes fulfilled a legal element of the crime, it could not also be considered in aggravation of his sentence. The Chamber engaged in a lengthy discussion of mitigating factors tendered by the defense. It found that the evidentiary record did not support the finding of a single mitigating circumstance. The OTP argued that Bemba should receive a sentence of 25 years’ imprisonment. The Legal Representative requested a sentence ‘beyond the maximum threshold’.54 The defense submitted that he should receive a sentence in the range of 12 to 14 years. The Chamber sentenced Bemba to: 16 years for murder as a war crime; 16 years for murder as a crime against humanity; 18 years for rape as a war crime; 18 years for rape as a crime against humanity; and 16 years for pillaging as a war crime. Neither the parties nor the legal representative requested the imposition of a fine or order of forfeiture under Article 77(2) and Rules 146 and 147, so the Chamber ruled that imprisonment was a sufficient penalty. 47 48 49 50 51 52 53 54 45 46

Ibid. at §§ 36–37. Ibid. at § 37. Ibid. at § 40. Ibid. Ibid. at § 50. Ibid. at § 51. Ibid. at § 58. Ibid. at § 65. Ibid. Ibid. at § 90.

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Penalties and punishment  137 3.B

Al Mahdi

On 27 September 2016, Ahmad al-Faqi Al Mahdi, a radical Islamist, was sentenced to nine years in prison by ICC judges in a case emerging out of the Mali situation.55 Al Mahdi had pleaded guilty. He was charged in relation to his role in demolishing nine historic shrines, and the door of a renowned mosque (Sidi Yahia), in Timbuktu, Mali, conduct that violated Article 8(2)(e)(iv) ICC Statute.56 Al Mahdi’s prosecution and sentencing was the first for the ICC with regard to the war crime of destruction of cultural heritage. His was also the ICC’s first guilty plea. In 2012, Al Mahdi jointly organized the destruction of shrines that had been built centuries ago above the tombs of celebrated Muslim holy men and scholars whose teachings had been declared to be contrary to Islamic tenets. All but one of the structures were recognized by UNESCO as world heritage sites. On 17 August 2017, the Trial Chamber issued its reparations order. It found Al Mahdi liable for 2.7 million euros for individual and collective reparations.57 The destroyed Timbuktu shrines have since been rebuilt with the help of foreign donations. Al Mahdi, a teacher, was a member of a jihadist group (Ansar Dine) with links to al-Qaeda. He was the head of Ansar Dine’s hisbah (‘morality brigade’) which enforced sharia and prevented vice. He oversaw the attacks on the tombs and participated directly in some of them. He identified which sites were to be destroyed and provided the necessary tools (pickaxes and crowbars). Ansar Dine believed that these shrines violated Islamic legal codes. Al Mahdi was arrested in Niger by French troops and sent to The Hague. Al Mahdi’s sentence was at the ‘low end of the prosecutor’s recommendation’ (which was 9 to 11 years). Regarding the gravity of Al Mahdi’s crime, a central calculus in sentencing, the Trial Chamber observed that he is unlike other accused the ICC has convicted in that he was never charged with crimes against persons.58 Although the judges noted that crimes against property ‘are generally of lesser gravity than crimes against persons’,59 they also underscored the symbolic value, religious salience, and affective attachment generated by the Timbuktu shrines.60 Judge Pangalangan linked the crime to human suffering, which has prompted one observer to chide the sentencing judgment for its anthropocentrism.61 Attacking sites protected by UNESCO was found to be of particular gravity. The Trial Chamber also separately identified Al Mahdi’s ‘discriminatory religious motive’ as additional evidence of the gravity of the impugned conduct.62 55 Judgment and Sentence, Al Mahdi (ICC-01/12-01/15), Trial Chamber VIII, 27 September 2016 (hereinafter ‘Al Mahdi judgment and sentence’); see also M. Simons, ‘Prison Sentence Over Smashing of Shrines in Timbuktu: 9 Years’, New York Times, 27 September 2016. 56 Art. 8(2)(e)(iv) ICCSt. This provision criminalizes intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which are not military objectives. Ibid. 57 Reparations Order, Al Mahdi (ICC-01/12-01/15), Trial Chamber VIII, 17 August 2017 (hereinafter ‘Al Mahdi reparations order’). For further discussion, see F. Capone, ‘An Appraisal of the Al Mahdi Order on Reparations and Its Innovative Elements: Redress for Victims of Crimes Against Cultural Heritage’, 16 JICJ (2018) 645–661. 58 Al Mahdi judgment and sentence § 77. 59 Al Mahdi judgment and sentence § 77. 60 Al Mahdi judgment and sentence § 78. 61 M. Lostal, ‘Prosecutor v. Al Mahdi: A Positive New Direction for the ICC?’, Opinio Juris Blog, 26 October 2016 (on file with the author). 62 Al Mahdi judgment and sentence § 81.

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138  The Elgar companion to the International Criminal Court In terms of the second step of sentencing, the individualization stage, judges found no aggravating circumstances. Unlike in Bemba, they however acknowledged five mitigating factors: admission of guilt; cooperation with prosecutors; demonstration of remorse and empathy; Al Mahdi’s initial reluctance to carry out the destruction and the fact that he stopped the use of bulldozers at all but one of the shrines which thereby limited overall damage; and his good behavior in detention.63 Al Mahdi had (after the fact) issued a formal statement that ‘begged’ the people of Timbuktu for forgiveness and that affirmed that he had lost his way when he had joined the jihadist group.64 The first conviction by the ICC of the war crime of destruction of cultural property reveals the narrative value of ICC judgments in sanctioning conduct and in underscoring, in this instance, the condemnation of attacks on heritage and history and identity when committed as an intrinsic part of armed violence. It signalled that such attacks closely correspond with attacks on persons and lay the groundwork for eventual dehumanization. In this regard, just as the Lubanga case condemned the use of children in armed conflict, the Al Mahdi case denounced the deliberate destruction of cultural property. And just as the Lubanga case built on the earlier work of the SCSL in this regard, the Al Mahdi case built upon some of the ICTY’s work in the context of the shelling of the Croatian city of Dubrovnik. The ICTY has dispelled military necessity as a justification for these attacks and noted that the purpose of these attacks was to shatter public morale. One preventative goal of the ICC in this regard might be to highlight the increased use of cultural destruction as a tool of war by, for example, ISIS—the tragic efforts of which in this regard are legion (Nimrud, Palmyra). Culturally destructive conduct in Mali additionally gives rise to interesting questions regarding the redefinition of culture from within the group itself by extremists who wish to reconstitute the content of a cultural or religious group, and in this regard may assist in the conceptualization of violence by the Khmer Rouge regime which also sought, inter alia, to redefine an entire nationhood through great violence. 3.C Lubanga Thomas Lubanga, a rebel leader in the DRC, was convicted, as a co-perpetrator, of the war crime of conscripting and enlisting children under the age of 15 years and using them to participate actively in hostilities in a non-international conflict in the DRC’s Ituri region. He was sentenced on 10 July 2012 to a joint term of 14 years.65 Specifically, the majority concurrently sentenced Lubanga to 13 years’ imprisonment for the crime of conscription, 12 years for the crime of enlistment, and 14 years for the crime of using children to participate actively in hostilities. In dissent, Judge Odio Benito would have increased the sentence by one year, to 15 years. At trial, the OTP had requested a 30-year sentence in Lubanga’s case.66 No fine was imposed in addition to the prison term in light of Lubanga’s financial situation. In Lubanga, Trial Chamber I held that evidence admitted for sentencing ‘can exceed the facts

Al Mahdi judgment and sentence § 109. Simons, supra note 55. 65 Decision on Sentence Pursuant to Article 76 of the Statute, Lubanga (ICC-01/04-01/06), 10 July 2012, § 106. 66 The OTP proposed a minimum sentence of 80% of the maximum term sentence (24 years) in all cases. The Trial Chamber rejected this proposal, suggesting that it flouted principles of proportionality and was not mentioned in the International Criminal Court’s enabling instruments. 63 64

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Penalties and punishment  139 and circumstances set out in the Confirmation Decision, provided the defence has had a reasonable opportunity to address them’.67 Also, as a preliminary matter, and in line with settled jurisprudence from the ad hoc tribunals, the trial chamber concluded that aggravating factors need to be established beyond a reasonable doubt, while mitigating circumstances need to be established on a balance of probabilities.68 The gravity of the crime is a principal factor in determining sentence. On this note, Trial Chamber I determined Lubanga’s crimes to be ‘undoubtedly very serious’.69 Trial Chamber I referenced the vulnerability of the affected children, how they were compelled to join the armed group, and how their use in hostilities rendered them potential targets. Trial Chamber I emphasized that children ‘need to be afforded particular protection’, while also examining the negative physical and mental effects that arise for children when they are used in hostilities.70 Trial Chamber I also underscored the large-scale, significant, and widespread nature of child soldier recruitment in the armed group; it also linked Lubanga’s degree of participation and intent, his position of authority, and his individual circumstances (namely, that he ‘is clearly an intelligent and well-educated individual’) to the gravity of the crimes.71 The Trial Chamber rejected the Prosecutor’s argument that it should consider Lubanga’s position as President and commander-in-chief of the UPC as an aggravating circumstance, holding that this factor could not be double-counted since it had already factored in Lubanga’s ‘degree of participation’ in the criminal conduct. Turning to mitigating factors, Trial Chamber I found that Lubanga’s hope that peace would return to Ituri once he had secured his military objectives was ‘only of limited relevance’ since, regardless of any such intention, ‘in order to achieve his goals, he used children as part of the armed forces over which he had control’.72 Trial Chamber I nonetheless highlighted as a mitigating factor Lubanga’s notable and consistent cooperation with the Court and determined that he ‘was respectful and cooperative throughout the proceedings, notwithstanding some particularly onerous circumstances’.73 Lubanga’s 14-year sentence is lower than that of some other defendants convicted internationally on child-soldier-related charges. Trial Chamber I noted that, at the time, the SCSL had entered seven convictions in four cases for the crime of using child soldiers under the age of 15.74 In the best known of these cases (the RUF case), separate sentences were issued on the child-soldier-related convictions: Issa Sesay was awarded a 50-year sentence and Morris Kallon a 35-year sentence.75 When it came to determining the ‘exceptionally high’ gravity of the criminal acts, the SCSL emphasized the large-scale nature of the use of child soldiers

Lubanga Decision on Sentence Pursuant to Article 76 of the Statute, supra note 2, at § 29. Ibid. at §§ 33–34 (mitigating circumstances moreover are not limited to the facts and the circumstances described in the confirmation of charges); Décision relative à la peine (article 76 du Statut), Katanga (ICC-01/04-01/07), 23 May 2014, § 34. See also Judgment, Simić (IT-95-9), 17 October 2003, § 1064. 69 Lubanga Decision on Sentence Pursuant to Article 76 of the Statute, supra note 2, at § 37. 70 Ibid. at §§ 37–42. 71 Ibid. at § 56. 72 Ibid. at § 87. 73 Ibid. at §§ 91, 97. 74 Ibid. at § 12. 75 Ibid. at § 13. Sesay and Kallon received 52 years and 40 years in total, respectively, on all convictions. 67

68

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140  The Elgar companion to the International Criminal Court (including in the commission of gruesome atrocities), the prevalence of abduction, the cruel training, the very young age of some of the recruits, and the forced ingestion of narcotics.76 Both Lubanga and the OTP appealed the sentencing decision. The Appeals Chamber issued its decision on the sentencing appeal on 1 December 2014.77 It rejected all of the grounds of appeal on both sides, and affirmed the sentences as issued by the Trial Chamber. Lubanga has been detained at the ICC since 16 March 2006. In line with legal requirements, this time will be deducted from the sentence imposed. Lubanga had applied for reduction of his sentence, a procedure as discussed earlier that is permitted by the ICC Statute. On 22 September 2015, three judges of the Appeals Chamber reviewed his application and denied it.78 This decision cast light on the scope of Article 110 of the ICC Statute, along with Rule 223 of the ICC Rules of Procedure and Evidence. The judges took into account submissions by the defendant, and all parties, as well as victims who participated in the process. Their decision was unanimous. The judges specifically focused on factors such as: the early and continuing willingness of the person to cooperate with the Court in its investigations and prosecutions; the conduct of the sentenced person while in detention; whether the early release of the sentenced person would give rise to significant social instability; any significant action taken by the sentenced person for the benefit of the victims as well as any impact on the victims and their families as a result of the early release; and the individual circumstances of the sentenced person. The decision to reduce a sentence is a discretionary one that requires weighing various factors. The judges denied the application. They found inter alia that Lubanga fell short of the continued willingness to cooperate with the Court. They found he had not genuinely dissociated from the crimes. They ruled however that his sentence would once again be reviewed two years later, in 2017. At that second review, in 2017, judges once again ruled that Lubanga’s sentence should not be reduced.79 No significant changes in the circumstances were found. Lubanga’s sentence expires on 15 March 2020.80 On 19 December 2015, Lubanga was transferred to a prison in the DRC to serve his sentence. The DRC is the first state designated by the ICC to enforce the imprisonment of convicts pursuant to Article 103 of the Statute. Lubanga had expressed his preference to serve his sentence in the DRC, which is his home country. In all instances, to be clear, the enforcement of sentences remains subject to the supervision of the Court and shall be consistent with widely accepted international standards governing the treatment of prisoners. The DRC had agreed to such conditions, inter alia, in an ad hoc agreement it concluded with the ICC on 24 November 2015. In 2016, the ICC Office of the Prosecutor published a draft Policy on Children. This document is to guide the OTP in its efforts to address international crimes that affect or are committed against children, in which the Lubanga case broke considerable new ground, as well as the many interactions that the Office would have with children in its work. The policy recognized that in any given context a child may be both vulnerable and capable. According to the policy, ‘[i]n its submissions on sentencing, the Office will pay close attention to crimes against or

Ibid. Lubanga Decision on Sentence, supra note 2. 78 Decision on the review concerning reduction of sentence, Lubanga (ICC-01/04-01/06), Appeals Chamber (Review), 22 September 2015. 79 Second decision on the review concerning reduction of sentence, Lubanga (ICC-01/04-01/06), Appeals Chamber (Review), 3 November 2017. 80 Ibid. at § 95. 76 77

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Penalties and punishment  141 affecting children and will request a sentence which adequately reflects the seriousness of the crimes against this vulnerable group’. 81 Hence the status of victims as children will deepen the gravity of the offense.82 The policy explicitly notes that, ‘[i]n the Katanga sentencing judgment, the fact that thirteen children, including eleven under the age of six years, were among the victims of murder added to the gravity of the crime’.83 3.D Katanga Germain Katanga, also a rebel leader in the DRC, was convicted as an accessory to one count of murder as a crime against humanity and to four counts of war crimes (murder, attacking a civilian population, destruction of property and pillaging) for a 2003 attack also in Ituri (in the village of Bogoro). He was acquitted of the crimes of rape and sexual slavery as crimes against humanity and as war crimes, and of the crime of using children under the age of 15 to participate actively in hostilities as a war crime. In dissent, Judge Van den Wyngaert would have acquitted him on all counts. On 23 May 2014, Katanga was sentenced to a term of 12 years’ imprisonment.84 Specifically, Katanga was sentenced to 12 years for his accessorial role in murder as a crime against humanity, murder as a war crime, and attacks on a civilian population as a war crime; and ten years each for pillage and destruction of property as war crimes.85 The Office of the Prosecutor had requested a 22‒25 year sentence in Katanga’s case. No fine was imposed in addition to the prison term in light of the convict’s financial situation. Trial Chamber II deducted the time Katanga spent in detention—between 18 September 2007 (the date of the notification of the ICC warrant of arrest against him) and 23 May 2014—from his sentence. This was a somewhat controversial aspect of the judgment. In dissent, Judge Van den Wyngaert would have deducted the time that Katanga had spent in detention in the DRC in national proceedings against him (26 February 2005 to 18 September 2007) from the sentence. She argues that as long as the conduct underlying the crime is in principle covered by a national investigation, leading to detention, the Chamber should exercise its discretion to deduct that time. The majority, on the other hand, held that only a period of detention for acts constituting the same crimes of which the accused is convicted may be deducted from the sentence. The Trial Chamber in Katanga noted that ‘the role of the sentence is two-fold’: [O]n the one hand, punishment, or the expression of society’s condemnation of the criminal act and of the person who committed it, which is also a way of acknowledging the harm and suffering caused to the victims; and, on the other hand, deterrence, the aim of which is to deflect those planning to commit similar crimes from their purpose. The punitive aspect of the sentence is therefore meant to restrain any desire to exact vengeance and it is not so much the severity of the sentence that should prevail as its inevitability.86 Policy on Children, ICC Office of the Prosecutor, § 101. Ibid. at §102 (‘The Office generally takes the position that crimes against or affecting children should be seen as particularly grave for the purpose of sentencing, given the specific rights and protection that children enjoy under international law’). 83 Corrigendum of Translation of Decision on Sentence pursuant to article 76 of the Statute, Katanga (ICC-01/04-01/07), Trial Chamber II, 8 October 2015, § 47. 84 Katanga Décision relative à la peine (article 76 du Statut), supra note 68. 85 Ibid. at §146. 86 Ibid. at § 38. 81 82

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142  The Elgar companion to the International Criminal Court In Katanga, the cruelty of the crimes, including the suffering of the victims prior to their murder, figured prominently in Trial Chamber II’s assessment of gravity. The Trial Chamber in Katanga distinguished the gravity of crimes that targeted individuals from crimes that targeted goods.87 The Chamber connected acts that were essential to life, however, with gravity even if those acts destroyed property (for example, roofing sheets, furniture, food) that were deemed ‘essential for daily life’).88 No aggravating circumstances were established. In Katanga, in fact, Trial Chamber II found no abuse of Katanga’s leadership position.89 In Katanga, Trial Chamber II accorded some weight to the convict’s young age at the time of the offenses (24 years) and his family situation (including his six children).90 Trial Chamber II found that Katanga did not fully recognize the crimes he had committed and, hence, rejected remorse as a mitigating factor,91 though it acknowledged his ‘kindly and protective disposition towards the civilians in his community’.92 On this latter note, Trial Chamber II lauded Katanga’s post hoc efforts to help demobilize and disarm child soldiers.93 In this regard, Katanga’s conduct was characterized as having contributed to demobilization, reintegration and reconciliation. The credit that Katanga received for this conduct contrasts with the prosecutor’s inability to actually convict him on child soldiering charges—he was in fact acquitted on these allegations at trial. While noting the endemic nature of child soldiering in Ituri, Trial Chamber II did not find a sufficient nexus between Katanga and the recruitment of these child soldiers. But the Chamber found itself unable to establish whether Katanga actually sought, through his efforts, to actively promote the peace process. Also, Katanga brought into the record allegations that he was subject to due process rights denials while in custody in the DRC. The Chamber held, in response, that it would only entertain violations of due process as potential mitigating factors if such violations concern procedures undertaken before it. In other words, ‘[t]he Chamber will not entertain any violations of … rights where such violations are unconnected to proceedings before it, even if they were committed during his detention on behalf of the Court’.94 Katanga was convicted as an accessory to murder and war crimes involving attacks on both people and property. Yet Lubanga received the more severe sentence. Katanga withdrew the appeal against his conviction, and did not appeal his sentence. On 13 November 2015, a panel of three judges of the ICC Appeals Chamber appointed for this purpose reviewed Katanga’s sentence and—again unlike in Lubanga’s case—reduced it by three years and eight months.95 The Prosecutor did not oppose this application. In reducing Katanga’s sentence, the judges relied upon a number of factors. One important factor was his ‘early and continued willingness … to cooperate with the Court in its investigations and prosecutions’.96 Judges noted Katanga’s public expression of his sincere regret to all those who suffered due to his conduct, including the victims of Bogoro, specifically as delivered

Ibid. at §§ 43, 145. Ibid. at § 52. 89 Ibid. at § 75. 90 Ibid. at §144. 91 Ibid. at §§ 119, 121. 92 Ibid. at § 88. 93 Ibid. at §§ 88, 115, 144. 94 Ibid. at § 137. 95 Decision on the review concerning reduction of sentence of Mr. Germain Katanga, Katanga (ICC-01/04-01/07), 13 November 2015. 96 Ibid. at § 111. It is important to emphasize that this factor may serve as a basis to mitigate sentence. 87 88

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Penalties and punishment  143 in a video recording he had filed that included an apology. The judges underscored that his decision to withdraw his appeal ‘advances the efficient administration of justice post-sentence in the same manner as a guilty plea prior to a sentence’ and therefore demonstrates cooperation within the context of Article 110(4)(a).97 The judges also found that his conduct while in detention showed a genuine dissociation from the crimes, which reflected an important changed circumstance since the time of sentencing. The panel of judges also found a prospect for Katanga’s resocialization and successful resettlement in the DRC.98 Although the panel found that Katanga’s early release would give rise to ‘some level of social instability in the DRC’, this would not rise to the level of ‘significant’ as affirmed by Rule 223(c) and, hence, this factor has ‘neutral value’.99 It found, in terms of individual circumstances, an increase in Katanga’s familial responsibilities in light of recent deaths in his family, though this factor on its own was insufficient to justify a sentence reduction. His early and continuing cooperation, and his genuine dissociation from the crimes, were found to weigh ‘in favour of a substantial reduction of sentence’.100 Katanga, like Lubanga, was transferred to the DRC to serve his sentence on December 19, 2015. That said, immediately after completion of this sentence in the DRC, he was slated to be prosecuted in national court in the DRC for specific charges not covered in the conviction rendered by the ICC.

4.

UNRESOLVED CHALLENGES

This section interrogates two aspects of international sentencing: (1) does the sentencing practice, in other words the actual sentences issued, attain the objectives of sentencing?; and (2) what is life like after conviction for persons sentenced for international crimes? 4.A

Penological Objectives and Disconnects

International criminal judges gesture towards important rationales when they impose sentences. Retribution and general deterrence are the two most prominently cited punishment goals.101 Although there are many divergent schools of retributivism, what retributivists generally share is an understanding that the infliction of punishment rectifies the moral balance, in particular, through condemnation of the criminal conduct.102 Simply put, punishment is what the perpetrator deserves. Punishment, therefore, is to be proportionate to the extent of the harm caused by the crime and also to the perpetrator’s degree of responsibility. The ICTY Ibid. at § 34. Ibid. at § 61. 99 Ibid. at §§ 111, 112. 100 Ibid. at § 114. 101 Judgment, Stakić (IT-97-24-A), 22 March 2006, § 402 (stating that ‘the Appeals Chamber notes that the jurisprudence of the Tribunal and the ICTR consistently points out that the two main purposes of sentencing are deterrence and retribution’); Judgment, Marqués and others (09/2000), 11 December 2001, § 979; Katanga Décision relative à la peine (article 76 du Statut), supra note 68 at § 38. 102 See generally H. L. A. Hart, Punishment and Responsibility (Oxford: Clarendon Press, 1968), at 234–235. 97 98

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144  The Elgar companion to the International Criminal Court Appeals Chamber has nevertheless emphasized that ‘retribution should not be misunderstood as a way of expressing revenge or vengeance’.103 Rather, it has conceived of retribution as the ‘expression of condemnation and outrage of the international community’.104 The ICC proceeds similarly, as detailed in the discussion of the Katanga case above. In this regard, retributive motivations may move in the direction of expressivism. The expressivist punishes to strengthen faith in rule of law among the general public, as opposed to punishing simply because the perpetrator deserves it or will be deterred by it. From an expressivist perspective, punishment proactively embeds the normative value of law within the community.105 This in theory contributes to positive general prevention. Expressivism also transcends retribution and deterrence in claiming as a central goal the edification and public dissemination of historical narratives. General deterrence considers that the purpose of prosecuting and punishing individuals who commit mass atrocity is utilitarian in nature, that is, to dissuade others from offending in the future. Specific deterrence implies that punishing the offender will deter that offender from reoffending. When the activity of international criminal justice institutions is taken as a whole, the focus of deterrence remains oriented towards general deterrence. From a deterrence perspective, punishment is inflicted because of the consequentialist effect of reducing the incidence of crime: ‘The generality of men are naturally apt to be swayed by fear rather than reverence, and to refrain from evil rather because of the punishment that it brings than because of its own foulness.’106 On occasion, international judges also refer to other penological rationales including rehabilitation,107 incapacitation, and reconciliation. These rationales, however, are not particularly salient in the practices of international courts and tribunals. Reconciliation overall has not received much more than lip-service, although it arose in the Katanga judgment where an ICC Trial Chamber affirmatively recognized the convict’s post hoc efforts to demobilize and disarm child soldiers as a mitigating factor. Whether the sentencing practices of international institutions attain their avowed penological goals remains an unsettled question. The evidence is mixed regarding whether and to what extent punishing a perpetrator dissuades other perpetrators, either in the same region or elsewhere, from offending, in particular in the case of discrimination-oriented crimes such as genocide and persecution. A recent study conducted under the auspices of the International Nuremberg Academy grappled with the inherent difficulties in measuring deterrence, in the first place, and then correlating it with the interventions of international courts and tribunals.

Appeals Judgment, Kordić and Čerkez (IT-95-14/2-A), 17 December 2004, § 1075; Katanga Décision relative à la peine (article 76 du Statut), supra note 68 at § 38. 104 Judgment, Nikolić (IT-02-60/1-S), 2 December 2003, § 86. 105 On expressivism generally, see M. A. Drumbl, ‘Collective Violence and Individual Punishment: The Criminality of Mass Atrocity’, 99 Northwestern University Law Review (2005) 539–610; R. Sloane, ‘The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law’, 43 Stanford Journal of International Law (2007) 39–94. 106 Aristotle, Nicomachean Ethics, book 10, ch. 9. 107 Rehabilitation is among the more frequently referenced among this group of subjacent objectives, but is often described as not deserving of undue weight (Judgment, Milutinović and others (IT-05-87-T), 26 February 2009, § 1146) or as something to be de-emphasized because of the international nature of the sentencing institution (Sentencing Judgment, Fofana and Kondewa (SCSL-04-14-T), 9 August 2007, § 28). 103

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Penalties and punishment  145 Entitled Two Steps Forward, One Step Back, this study found some unsystematized and impressionistic evidence of deterrent effect within ten post-conflict case studies.108 It also identified a number of challenges to deterrence, specifically, selectivity in prosecutions (when only one ‘side’ is prosecuted), witness security, and also the perceived severity of sentencing. The likelihood of getting caught is more influential than any other factor in discouraging criminal conduct. Yet the likelihood of getting caught and prosecuted by an international institution in cases of atrocity crimes sadly remains low. In terms of retribution, the severity of a prison sentence may never be able to reciprocate the gravity of egregious international crimes (if determined by the harms caused). 4.B

Life after Conviction

Where and how do convicts serve their sentences? As Mulgrew has ably demonstrated, persons convicted by the ad hoc tribunals randomly serve their sentences in a large number of jurisdictions (where they are ‘warehoused’ according to her apt terminology) that have concluded agreements with the tribunals.109 Accordingly, there is little coordination in the terms and conditions of sentencing, and a paucity of rehabilitative programming arises with regard to the specific criminality in question. Moreover, after release, these individuals experience vastly different fates. Some return to their home jurisdictions where they are celebrated as heroes, while others slink in to destitution and anonymity, and still others are unable to return home because of fear of persecution. Lubanga and Katanga have both returned to the DRC. Katanga will apparently be retried there despite the fact that his time with the ICC will have been served. While ICC judges may consider the crimes charged in national prosecutions to be different from those that sustained the international convictions, in reality they do form part of a very similar underlying conduct. What is more, there seems to be little thought given to the conditions of confinement as well as the nature of rehabilitative and reintegrative programming. Perhaps individuals convicted of collective international crimes should be mainstreamed with individuals convicted of ordinary crimes who serve their sentences in national jails. On the other hand, perhaps they have special needs and should be segregated. Interestingly, when it comes to ‘radicalized inmates’ convicted of terrorism, the UK has initiated a policy to separate such inmates from other prisoners.110 So, too, have prison authorities in France, the Netherlands, and Spain.

5. CONCLUSION This chapter has set out the positive law of sentencing that governs the ICC. It has illustrated the application of that law to the actual sentencing practice of the ICC by exploring the con108 J. Schense and L. Carter (eds), Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals (International Nuremberg Principles Academy, 2016). 109 R. Mulgrew, Towards the Development of the International Penal System (Cambridge: Cambridge University Press, 2013). 110 K. de Freytas-Tamura, ‘Britain Moves to Separate Radicalized Inmates from Other Prisoners’, New York Times (22 August 2016) (‘Prisons are often regarded as potential breeding grounds for would-be terrorists, particularly for young offenders serving sentences for crimes unrelated to terrorism but who nonetheless fall under the spell of older, charismatic inmates’).

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146  The Elgar companion to the International Criminal Court victions and sentences that have thus far been awarded. And, thirdly, this chapter has identified two areas of concern for international sentencing that, it is hoped, that ICC can address through and over time. One interesting aspect, looking ahead, is how the ICC’s activities in expanding the map of international criminal law usher in the expansion of the penology of international crimes. The ICC is ‘partly moving away from atrocities committed during war’.111 By way of example, some of the charges brought by the ICC (i.e. child soldiering, destruction of cultural property), have required the enunciation of goals of sentencing in contexts of crimes that are somewhat novel in the application of international criminal law. By prosecuting such crimes, the ICC is increasing their visibility as well as unpacking their deleterious effects. The Office of the Prosecutor has recently indicated an interest in prosecuting crimes related to land grabbing and environmental destruction, as well as crimes generally that step outside the frame of wartime atrocities such as illegal exploitation of natural resources, arms trafficking, human trafficking, terrorism and financial crimes.112 Such a move, as well, would trigger interesting developments and conversations, in the case of convictions, when it comes to how such crimes should be sentenced, to what quantum of time, what victims may desire, how reparations fit within the schematic, and what goals and motivations may be served through punishment. Insofar as many of these crimes also form part of transnational criminal law, and aspirational regional agreements such as the Malabo Protocol, these conversations—if they come to fruition—would invigorate the links (and boundaries) between international criminal law and transnational criminal law.

111 T. Cruvellier, ‘For I.C.C., a new shift out of Africa’, New York Times, 7 November 2016 (noting also that ‘in appearing to tackle abuses, like land grabs, that often are precursors for widespread violence, the I.C.C. might be able to buttress the fragile claim that its activities can help prevent conflict’). 112 See https://​www​.icc​-cpi​.int/​Pages/​item​.aspx​?name​=​pr1238.

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7. Can the ICC function without state compliance? Rod Rastan1

What should the ICC do when it cannot rely on cooperation from the states that would ordinarily be best placed to assist it, such as the state(s) where the crimes occurred or whose nationals are the victims and/or perpetrators? Non-cooperation may arise from such state being unwilling to assist, for example because its agents are implicated in the crimes. Or the authorities may be unable to provide assistance due to insufficient control of territory, weak governance, or lack of means. In some areas, de facto cooperation and access to territory may be dependent on an opposing armed group, a separatist authority or a foreign occupying power—rendering the de jure authorities effectively ‘absent’. In other circumstances, the Court’s work may be interfered with by attempts to corruptly influence the judicial process. The ICC’s dilemma is made more complicated given its raison d’être to intervene where the national authorities have failed in their primary responsibility to investigate and prosecute. But how can it do this if any of those same authorities cannot or will not assist it? Should the ICC decline to operate where it cannot rely on effective cooperation, but risk a persistence of impunity? Or should it endeavour even where cooperation prospects are not favourable, but risk institutional failure? In other words, can the ICC function without state compliance?

1. INTRODUCTION As is well known, even though national courts do not directly command the coercive agencies of the state, they enjoy institutional legitimacy. National courts typically possess the authority to render decisions worthy of obedience and enjoy the expectation that their rulings will be given effect by the executive branch through its law enforcement agencies. At the international level, both the legitimacy and enforceability of court rulings may be challenged, bringing into question basic rule of law assumptions. This chapter focusses on the enforceability of rulings rendered by international criminal courts and tribunals.2 Enforceability in this context, divorced from the constitutional distribution of judicial and executive powers, is based on a looser normative framework created Ph.D. (LSE); LL.M. (Nottm); Legal Advisor, Office of the Prosecutor, International Criminal Court. The views expressed herein are solely the author’s and do not necessarily reflect those of the Office of the Prosecutor or the ICC. 2 On legitimacy of international courts and tribunals, see generally A. Danner, ‘Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court’, 97 American Journal of International Law (AJIL) (2003) 510–552; M. deGuzman, ‘Gravity and the Legitimacy of the International Criminal Court’, 32 Fordham International Law Journal (Fordham Intl L J) (2009) 1435–1449; E. Voeten, ‘Public Opinion and the Legitimacy of International Courts’, 14 Theoretical Inquiries in Law (Theor Inq L) (2013) 411–436; Y. Dutton, ‘Bridging the Legitimacy 1

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148  The Elgar companion to the International Criminal Court by treaty law. For the ICC, the states that have become parties to the Rome Statute have voluntarily accepted to be bound by certain obligations to cooperate fully with the Court and to ensure enforcement of its decisions.3 The same duties are incumbent on non-party states that have voluntarily lodged a declaration accepting the exercise of jurisdiction by the Court pursuant Article 12(3) of the Statute.4 With the referral of situations by the United Nations (UN) Security Council, such undertakings may be further transferred to any UN Member State placed under an obligation to cooperate fully with the Court by virtue of an imposed obligation.5 In such circumstances, the duty of a non-party state to cooperate with the ICC does not violate the principle that a state cannot be bound to the terms of a treaty without its consent,6 since the relevant treaty in this regard in the UN Charter. Namely, all UN Member States have consented to be bound by the obligation to accept and carry out decisions of the Security Council and to give their obligations under the UN Charter precedence over any other competing international obligation.7 As has been discussed elsewhere, the framework for the execution of ICC’s orders and judgments is not entrusted to a dedicated enforcement agency, but is instead to be implemented indirectly by states, that serve as the proximate sources of compliance.8 Accordingly, as with the earlier ad hoc Tribunals for the former Yugoslavia and Rwanda, the ICC is made dependDivide: The International Criminal Court’s Domestic Perception Challenge’, 56 The Columbia Journal of Transnational Law (Colum J Transnat’l L) (2017) 71–122. 3 Pursuant to Art. 86 of the Statute, States Parties have agreed to ‘cooperate fully’ with the Court in its investigations and prosecutions. This duty which applies ‘in accordance with the provisions of this Statute’, and therefore cuts across the whole Statute and not only to those forms of cooperation set out in Part 9. 4 According to Rule 44, the consequence of such a declaration is that ‘the provisions of Part 9, and any rules thereunder concerning States Parties, shall apply’. 5 As observed by ICC Chambers, ‘the Court has consistently held that the legal framework of the Statute applies in the situations referred by the Security Council in Libya and Darfur, Sudan, including its complementarity and cooperation regimes’; Decision on the postponement of the execution of the request for surrender of Saif Al-Islam Gaddafi pursuant to Art. 95 of the Rome Statute, Al-Islam Gaddafi and Al-Senussi (ICC-01/11-01/11-163), ICC Pre-Trial Chamber I, 1 June 2012, §§ 28–30; Decision on ‘Defence Application pursuant to Articles 57(3)(b) and 64(6)(a) of the Statute for an order for the preparation and transmission of a cooperation request to the Government of the Republic of the Sudan’, Banda and Jerbo (ICC-02/05-03/09-169), ICC Trial Chamber IV, 1 July 2011, §§ 14–15. See also Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Al Bashir (ICC-02/05-01/09-3), ICC Pre-Trial Chamber I, 4 March 2009, § 248; Decision on the non-compliance by Libya with requests for cooperation by the Court and referring the matter to the United Nations Security Council, Al-Islam Gaddafi (ICC-01/11-01/11-577), ICC Pre-Trial Chamber I, 10 December 2014, §§ 20–22; Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir, Al Bashir (ICC-02/05-01/09-302), ICC Pre-Trial Chamber II 6 July 2017, §§ 88–89; Judgment in the Jordan Referral re Al-Bashir Appeal, Al Bashir (ICC-02/05-01/09-397), ICC Appeals Chamber 6 May 2019, §§ 133–142. 6 Art. 34, Vienna Convention on the Law of Treaties. 7 See Arts 25 and 103, UN Charter; Judgment in the Jordan Referral re Al-Bashir Appeal, Al Bashir (ICC-02/05-01/09-397), ICC Appeals Chamber 6 May 2019, § 140. 8 R. Rastan, ‘Testing Co-operation: The International Criminal Court and National Authorities’, 21 Leiden Journal of International Law (Leiden J Intl L) (2008) (hereafter ‘Rastan 2008’) 431–456; and R. Rastan, ‘The Responsibility to Enforce—Connecting Justice with Unity’, in C. Stahn and G. Sluiter (eds), Emerging Practice of the International Criminal Court (Leiden: Martinus Nijhoff Publishers, 2009) (hereafter ‘Rastan 2009’), at 164.

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Can the ICC function without state compliance?  149 ent on national support for such essential processes as the preservation of crime scenes; the production of evidence; the protection and relocation of witnesses; the tracing and freezing of assets; and the delivering up of suspects. The rendering of cooperation in good faith can lead to criminal proceedings that result in the discovery of the truth. Failure to cooperate can stymie the entire judicial process. At the national level, a lack of routine adherence to judicial rulings by law enforcement agencies would be intolerable. Those cases that rely on enforcement by authorities that are external to the state itself—such as those which rely on mutual legal assistance from a foreign state, which must be rendered voluntarily, in good faith and within time—often end up being stalled or even shelved, as investigative and prosecutorial resources are prioritised elsewhere. For international courts such dependency on ‘foreign’ assistance is the default, not the exception. This chapter explores how these issues shape the operational context in which the ICC acts and what it can do when cooperation fails.

2.

DESIGN AND PRACTICE

By design, Part 9 of the Statute conceives international cooperation as a mechanism by which the ICC can plug into the entire law enforcement machinery of the requested state—benefiting from the same policing powers and evidence gathering capabilities as its domestic counterparts.9 In this way, when the ICC channels a request to a state which is bound to cooperate, that state must direct its competent agencies to execute the request as if it emanated from its own courts.10 If a production order is required to obtain evidence from a private or public body, the competent authorities should seek judicial authorisation and submit it for execution. If a request for official records must be channelled to another governmental department, it should be pursued as if it originated from a domestic police inquiry. If a non-cooperative witness must be summonsed to appear before the ICC, the competent authorities should serve notice on pain of sanction for non-compliance. In this way, the ICC is intended to form part of the legal architecture of each State Party, with national implementing legislation providing for the reception and execution of ICC requests with full force of law.11

The relationship between the ICC and its States Parties has been described as a two-pillar system: a judicial pillar represented by the Court itself and an enforcement pillar that relies on national authorities; Report of the International Criminal Court, UN Doc. A/62/314, 31 August 2007, § 6; Report of the Bureau on cooperation, UN Doc. ICC-ASP/6/21, 19 October 2007, § 39. 10 Decision on the Prosecution’s revised cooperation request, Kenyatta (ICC-01/09-02/11-937), ICC Trial Chamber V(B), 29 July 2014, § 47. 11 See e.g., Situation in the Republic of Kenya, Decision on Prosecutor’s Application for Witness Summonses and resulting Request for State Party Cooperation, Ruto and Sang (ICC-01/09-01/11-1274-Corr2), ICC Trial Chamber V(A), 17 April 2014, §§ 173–177 (on the effect of section 4(1) of the International Crimes Act [Kenya] giving the provisions of the Rome Statute direct force of law in Kenya). See also ibid. at § 178 (further citing Justice Mwongo, Principal Judge of the High Court of Kenya, that ‘the Rome Statute forms part of the laws of Kenya to the extent stated’ in Section 4 of the ICA, the ‘stipulated parts of the Rome Statute … have the force of law in Kenya’, and ‘[t]he ICC is therefore a Court duly recognized and incorporated by the Constitution as a court with which, in terms of the preamble and objects of the ICA, Kenya must cooperate in the performance of its functions’); Barasa v. Cabinet Secretary of the Ministry of Interior and National Coordination & Ors, (Judgment) Petition No. 288 of 2013, High Court of Kenya, 31 January 2014, § 59. 9

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150  The Elgar companion to the International Criminal Court The duty to cooperate, moreover, is not qualified. Given the realities of adjudicating the most serious crimes of international concern, the design as it is envisaged requires States Parties to ‘cooperate fully’ to the utmost extent of their laws in order to render the ICC’s mandate effective. Even if the ICC requests a type of assistance that is not specifically mentioned in Part 9, but would nonetheless not be prohibited under its domestic laws, the requested state must provide it.12 This collaborative model also foresees ICC officials being present during, and assisting in, the execution of the actual requests:13 thereby serving to ensure that any cooperation rendered by states or any action undertaken on the ICC’s behalf will be focussed on its evidence collection goals and procedural requirements. Clearly this model is viable and has functioned well in a number of cases, resulting in proceedings that have either completed the full cycle or are currently in trial. None of these cases would have been possible without active state assistance as envisaged by the Statute. However, a significant handful of other cases have stalled due to the lack of arrests or as a result of proceedings being prematurely terminated after confirmation due to evidentiary inadequacies, coupled with findings of non-compliance and/or witness interference. Part 9 foresees a number of outcomes when cooperation does not follow its intended course. If cooperation is hampered by an operational issue—such as a lack of information or there is uncertainty over the particular way in which the request is to be executed—this is to be resolved through consultation between the requested state and the requesting Court organ.14 If the authorities identify a legal impediment—such as a competing international obligation towards another state, a national security prejudice, or an existing fundamental legal principle of general application—the matter is to be resolved, if not through consultation, by the competent Chamber.15 If the requested State Party refuses or fails to cooperate and the Chamber deems this to be inconsistent with its obligations under the Statute, a judicial finding of non-compliance can be made and the matter referred to the Assembly of States Parties (ASP) and/or the United Nations Security Council, depending on the provenance of the situation.16 The idea is that these two fora, representing the collective bodies from which the Court draws its mandate, possess potential remedial powers to promote cooperation by the recalcitrant state, whether by means of persuasion or sanction. The reality, of course, is less straightforward.17 A state that does not ‘cooperate fully’ as required by the Statute or Chapter VII of the UN Charter,18 might cooperate selectively: pro See Art. 93(1)(l) ICC Statute, subjecting this only to the requirements of Art. 93(3). Art. 99(1) ICC Statute provides that while requests are to be executed (compliant with Art. 88) in accordance with national law, they should ‘unless prohibited by such law’ allow the request to be implemented ‘in the manner specified in the request, including following any procedure outlined therein or permitting persons specified in the request to be present at and assist in the execution process’. 14 See e.g., Arts 91, 93(5), 94, 96(3), 97(a)–(b) ICC Statute. 15 See e.g., Arts 72, 93(4), 97(c), 98 ICC Statute; Rule 195 ICC RPE; Regulation 108 Regulations of the Court. 16 Arts 87(5) and 87(7) ICC Statute. 17 See also G. Sluiter, ‘Enforcing Cooperation: Did the Drafters Approach It the Wrong Way?’, 16 Journal of International Criminal Justice (J Intl Crim J) (2018) 383–402 (discussing the ‘harmony approach’ envisaged by the drafters and its inadequacy in actual practice). 18 See Art. 86 ICC Statute, ‘States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court’; SC Res. 1593 (2005), § 2 (‘Decides that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the 12 13

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Can the ICC function without state compliance?  151 viding partial cooperation for some requests, but refusing others.19 A state might profess to cooperate, but unduly delay or draw out the provision of assistance by pleading the need for resolution of complex legal, operational or bureaucratic processes.20 Or a state might plead that the provisions of the Statute themselves are unclear, thereby obviating its duty to cooperate.21 A state accused of not cooperating might perhaps seek redress simultaneously from two fora: before the Court, through litigation; and at the ASP, through negotiation of rule amendments or subsequent agreement on the interpretation or application of statutory terms. Or it might leverage its political capital at the ASP or Security Council to temper the appetite for any remedial measures and thereby diminish the cost of norm defection. Alternatively, a non-cooperative state might seek to obtain sympathy before another international forum or grouping of states, hoping thereby to create normative ambiguity and to engender fragmentation in international law.22 Reputational risk might thereby be transferred to the ICC, through accusations of bias or flawed processes aimed at undermining its legitimacy. Where the state is unable, rather than unwilling, to cooperate, no external agency might be capable of remedying the situation. A person wanted by the Court might be beyond the operational reach of the national authorities or the combined multilateral effort of several armed forces. The territory where witnesses and evidence are located might lie in unstable governance zones in the midst of ongoing armed conflict or in territory controlled by non-state actors. Relevant data, such as official or commercial records, might be damaged or destroyed or prove unreliable or incomplete. Or the internal structures of a government administration might be so fractured and uncoordinated as to frustrate the state’s practical ability to respond to cooperation requests, rendering it capable of rendering only passive assistance. Allegation of witness interference and/or evidence tampering might compound these challenges. State agents may be wholly blameless in such conduct or interference might be directed by state agents. In other circumstances the authorities might, through passivity or failure to take effective action, tacitly condone such practices, thereby enabling a permissive environment. The reality is that as the Court has come increasingly to operate in high risk environments characterised by unstable governance and conflict, it faces the prospect that it will not be able to secure cooperation from some or all of the state(s) that would ordinarily be best placed to assist it. In such circumstances, a state-dependent cooperation model does not easily sit with the idea of the Court as a substitute for ineffective national criminal jurisdictions. As the complementarity paradox posits, it is difficult to see how the ICC can simultaneously fill the gap Prosecutor pursuant to this resolution’); SC Res. 1970 (2011), § 5 (‘Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution’). 19 Decision on Prosecution’s application for a finding of non-compliance under Art. 87(7) of the Statute Decision on the Prosecution’s revised cooperation request, Kenyatta (ICC-01/09-02/11-982), 3 December 2014, 29 July 2014, §§ 48, 60–62. 20 Decision on the Prosecution’s revised cooperation request, Kenyatta (ICC-01/09-02/11-937), 29 July 2014, §§ 33–34; Second decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute, Kenyatta (ICC-01/09-02/11-1037), 19 September 2016, § 17. 21 Submission from the Government of the Republic of South Africa for the purposes of proceedings under Article 87(7) of the Rome Statute, Al Bashir (ICC-02/05-01/09-290), 17 March 2017, §§ 46–49. 22 See e.g., Assembly/AU/Draft/Dec.8 (2018), at §§ 2 and 4, recalling a long line of AU Assembly resolutions calling on its Member States, including ICC States Parties, not to cooperate with the ICC in the arrest of Omar Al Bashir, as well as condemnation of ICC investigations in Burundi.

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152  The Elgar companion to the International Criminal Court left by state unwillingness or inability while needing the cooperation of those same state(s) to be effective.23 Without adequate remedial or mitigatory measures such dependency might lead to the same dysfunctionalities that resulted in ICC intervention in the first place.

3.

WHEN COOPERATION FAILS

This section looks at possible measures the Court could take under the circumstances described above. The examples discussed are merely illustrative, while their potential to remedy or mitigate the effects of non-cooperation in specific cases will perforce remain unpredictable. And while none is a panacea for the failed duty to ‘cooperate fully’, they represent pathways for possible consideration and action where the collaborative model breaks down. 3.A

Non-Coercive Measures

Where the problem is not one of access to the territory of a State Party, Article 99(4) enables the Prosecutor to perform a limited number of investigative steps directly on the territory of that state. The types of measures the Prosecutor can perform are non-compulsory: such as the interview of or taking evidence from a person on a voluntary basis or examining a place or site without modification (e.g. inspection, not exhumation). Significantly, such measures can be taken without seeking prior permission from the territorial state, subject to a defined regime of notification and/or consultation. States Parties have, effectively, through their acceptance of the Statute, given their prior consent for the Prosecutor to so deploy on their territory to conduct such non-compulsory investigative measures.24 Indeed, the provision has come to be one of the most frequently used.25 Where deployment to the territory where the crimes occurred is not possible, the most obvious remedy is to seek alternative locations where evidence might be found. Crime-base See e.g., P. Benvenuti, ‘Complementarity of the International Criminal Court to National Criminal Jurisdictions’, in F. Lattanzi and W. Schabas (eds), Essays on the Rome Statute of the International Criminal Court (Ripa Fagnano Alto: Il Sirente, 1999), at 21; J. Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions (Oxford: Oxford University Press, 2008) 229–231; R. Cryer, ‘Darfur: complementarity as the drafters intended?’, in C. Stahn and M. El Zeidy (eds), The International Criminal Court and Complementarity: From Theory to Practice (Cambridge: Cambridge University Press, 2011), at 1103, 1118; M. Glasius, ‘Complementarity in the CAR and DRC’, in C. Stahn and M. El Zeidy (eds), ibid., 1218–1220; M. Wierda, The local impact of a global court: assessing the impact of the International Criminal Court in situation countries, PhD thesis (Leiden University, 9 January 2019), 110–112, describing this as ‘parallelism’. 24 This encroachment on state sovereignty has required constitutional amendment for some countries. The Conseil Constitutionnel in France, e.g., declared that the provision breached the 1958 French constitution and necessitated constitutional amendment, holding that ‘although the measures are in no way compulsory, the authority granted to the Prosecutor to take such measures without the presence of the competent French judicial authorities may violate the essential conditions of the exercise of national sovereignty’; Decision No. 98-408 DC, 1999 J.O.(20)1317. In response in part to this provision, France adopted a broad new constitutional article in order to enable the Republic to observe its treaty obligations under the Rome Statute; Constitutional Law No. 99-568 of 8 July 1999. 25 P. Mochochoko, ‘Artigos 99 e 100: Execução dos Pedidos Apresentados ao Abrigo dos Artigos 93 e 96. Despesas’, in S. Steiner and L. Brant (eds), O Tribunal Penal Internacional—Comentários ao Estatuto de Roma (Belo Horizonte: Editora Del Rey, 2016), at 1492–1493. 23

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Can the ICC function without state compliance?  153 witnesses may have fled or been deported to neighbouring countries or been relocated to other third-party states. Documentary evidence or contemporaneous radio or television broadcasts might be available from other sources. Satellite imagery might corroborate the location or chronology of events. Information relating to cross-border financial transactions might be accessible through a request to the authorities of that third party state to pursue a production order. National laws of the state where a telephone or internet service provider is located might allow for retention and preservation of traffic and location data. Similarly, related aspects of criminality, such as the alleged contribution of a person to crimes perpetrated by others, or the alleged commission of Article 70 offences, or efforts to enable fugitive flight, might occur and be capable of detection on the territory of another state. Information and evidence on alleged crimes is also increasingly being contemporaneously captured by private citizens or non-state actors. In some cases, perpetrators have broadcast recordings of their own illegal conduct on social media for publicity or propaganda, to instil terror or win recruits.26 The significant increase in the recording of live photo and video imagery by both armed forces or groups as well as by witnesses to events and first responders in contemporaneous conflicts has increased the pool of geolocation information available on the movement of persons or the direction of gunfire or type of weaponry used.27 Although not a substitute for on-the-ground investigations, exploitation of open sources, social media and crowd sourcing initiatives aimed at tapping into local knowledge and presence have helped identify leads, plug information gaps and corroborate existing evidence, where access to the territory concerned is not an immediate option.28 3.B

Coercive Measures

While passive cooperation, alternative locations or technology might facilitate certain investigative steps, often critical inquiries will require the execution of compulsory measures in situ. 3.B.1 Substituting domestic authority in the case of an ‘unable’ state Where the Court is faced with a state that is unable to cooperate, the ICC can authorise itself to directly execute the full range of cooperation measures foreseen under the Statute, includ-

See e.g., Judgment and Sentence, Al Mahdi (ICC-01/12-01/15-171), Trial Chamber VIII, 27 September 2016, § 38(viii) (concerning video recordings of the destruction of cultural property in Timbuktu) or Warrant of Arrest, Al-Werfalli (ICC-01/11-01/17-2), Pre-Trial Chamber I, 15 August 2017, §§ 3, 12 et seq. (concerning social media broadcast of summary execution of prisoners in and around Benghazi). 27 See generally Dutch Safety Board Report, ‘Crash of Malaysian Airlines flight MH17’, 13 October 2015; Syrian Archive, ‘Eyes on Aleppo: Visual Evidence Analysis of Human Rights Violations Committed in Aleppo [July–Dec 2016]’, 29 March 2017, available online at https://​syrianarchive​.org/​ en/​investigations/​Eyes​-on​-Aleppo/​(visited 28 December 2018); Bellingcat Investigation Team, ‘MH17: The Open Source Investigation, Three Years Later’, 17 July 2017, available online at https://​www​ .bellingcat​.com/​wp​-content/​uploads/​2017/​07/​mh17​-3rd​-anniversary​-report​.pdf (visited 28 December 2018); Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/ HRC/37/72, 1 February 2018. 28 See e.g., in CARII context an encrypted online crime reporting platform to enable individuals to anonymously pass information to the ICC Prosecutor’s Office, similar to online, phone or text based tools used by domestic law enforcement agencies; see Gateway portal on ICC CARII webpage, available online at https://​www​.icc​-cpi​.int/​carII (visited 28 December 2018). 26

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154  The Elgar companion to the International Criminal Court ing those that involve compulsory measures.29 The rationale is that if the competent national bodies are not available to assist the Court, the ICC cannot be left in a situation of stasis—itself also unable to act, due to those same deficiencies. Accordingly, under Article 57(3)(d), the Pre-Trial Chamber (PTC) can authorise the Prosecutor to directly undertake such investigative steps without recourse to the ordinary mechanisms of state cooperation.30 To be applicable, and reminiscent of the complementarity standard in Article 17(3), the state must be ‘clearly unable to execute a request for cooperation due to the unavailability of any authority or any component of its judicial system competent to execute the request for cooperation under Part 9’.31 The provision thereby seeks to answer one limb of the complementarity paradox. As was recognised during the drafting of this provision, several aspects of how this authority will be made practically effective remain unclear.32 For example, the Prosecutor might be granted legal authority to execute a search and seizure at the premises of an official national archive, at a banking institution or a commercial enterprise. But it is less clear how this will be executed, since the Prosecutor’s Office does not possess the policing powers necessary to regulate behaviour, compel obedience or impose order. In some situations, these functions might be capable of delegation to a third party with a legal mandate to recognise and execute the Court’s orders—such as an international peacekeeping or peace enforcement operation or foreign troops deployed with the territorial state’s consent.33 For example, in the Democratic Republic of the Congo (DRC), Côte d’Ivoire (CIV), Mali and the Central African Republic (CAR), the ICC has been able, through the joint agree-

That Art. 57(3)(d) includes the execution of compulsory measures is evident from the purpose of the provision, which is to authorise the Prosecutor to directly undertake specific investigative steps that would normally be dependent on state cooperation under Part 9 and which would ordinarily require such ‘authority or … component of its judicial system competent to execute the request for cooperation under Part 9’. By definition, such forms of cooperation under Part 9 include search and seizure, the production of evidence, the provision of official records, the exhumation of a site, the freezing of assets etc. Limiting the authorisation procedure to only non-coercive measures, moreover, would render the provision redundant, since Art. 99(4) already provides that the Prosecutor can conduct non-compulsory measures on the territory of a State Party without requiring its prior consent. See similarly F. Guariglia and G. Hochmayr, ‘Article 57’, in O. Triffterer and K. Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary (3rd edn., München: Hart Publishing, 2016), at 1433 mn.35. 30 According to Art. 54(2), the provision forms the exception to the application of Part 9 for the conduct of the Prosecutor’s investigations on the territory of a state. 31 Under Art. 17(3), a case may be admissible where the national system is in a situation of ‘a total or substantial collapse or unavailability of its national judicial system’ to carry out the necessary investigative measures or trial proceedings. 32 See Report of the Working Group on Procedural Matters, UN Doc. A/CONF.183/C.1/WGPM/L.2/ Add.6, 11 July 1998, at fn.1 (‘Some delegations expressed the view that, given the absence of enforcement powers, the Prosecutor would, in most cases contemplated by this article, be unable to act upon the authority conferred by the Pre-Trial Chamber. Other delegations expressed the opposite view. It was, moreover, noted that the draft Statute did not confer any authority for the use of military force’); F. Guariglia and G. Hochmayr, ‘Article 65’, in O. Triffterer and K. Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary (3rd edn., München: Hart Publishing, 2016), at 1453 mn.41. 33 Rule 115 also foresees that the views of the territorial state will be sought by the PTC prior to its issuing an order. Notably, the rule preserves the final authority for the Court, ostensibly to prevent a situation of stasis, by stating that the PTC ‘shall, whenever possible, inform and invite views from the State Party concerned’, and requiring merely that it ‘take into account any views expressed by the State Party concerned’, rather than being bound by them. 29

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Can the ICC function without state compliance?  155 ment of the UN and the territorial state, to enable a number of compulsory forms of judicial assistance that would otherwise have been made unavailable to the Court, given the prevailing security situation and the limits of governmental capacity. This has included such measures as military support, assistance in tracing witnesses, preservation of physical evidence, searches and seizures, securing of crime scenes, and arrests.34 In other situations, however, there may be no agency capable of giving effect to those coercive measures which the Prosecutor has been authorised to perform. Investigative steps might be possible, but these might be limited to those compulsory measures that can be executed through acquiescence by domestic actors on presentation of an ICC judicial order. In other circumstances, the compulsory measure might be capable of execution through the serviced commission of private actors. This might include land and air transportation or logistical and security support, coupled possibly with the loan of experts in fields such as forensic anthropology or ballistics to assist with human remains recovery, autopsies, forensic clinical examination or crime scene examination. 3.B.2 Substituting domestic authority in the case of an ‘unwilling’ state The situation of the ‘unwilling’ state is regulated less clearly than that of an ‘unable’ state. Although the Court may refer non-compliance to the ASP and/or the Security Council (see below section 3.D.1), the Statute appears to be silent on what else the Court could do. When comparing the ICC with the ad hoc Tribunals, it is sometimes assumed that the latter, because they were subsidiary bodies of the Security Council, could overcome state unwillingness by force. In Bosnia and Herzegovina, for example, the ICTY benefitted from robust enforcement which enabled it directly to obtain the execution of compulsory measures, such as the seizure of evidence or the arrest of fugitives, even where the competent national authorities were uncooperative. However, this superiority did not flow as an inherent corollary to the Tribunal’s Chapter VII mandate. Instead it was reflective of the transitional administration context at the time which empowered an internationally appointed High Representative to exercise certain executive political authority to ensure implementation of the civilian aspects of the Dayton Peace Agreement35 and a multinational NATO-led military presence to ensure

34 See e.g., Memorandum of understanding between the United Nations and the International Criminal Court concerning cooperation between the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC) and the International Criminal Court, UNTS II-1292; Memorandum of understanding between the United Nations and the International Criminal Court concerning cooperation between the United Nations Organization Mission in Côte d’Ivoire (UNOCI) and the International Criminal Court, UNTS II-1371; Memorandum of understanding between the United Nations and the International Criminal Court concerning cooperation between the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA) and the International Criminal Court, UNTS II-1374; Memorandum of understanding between the United Nations and the International Criminal Court concerning cooperation between the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) and the International Criminal Court, UNTS II-1379. 35 Annex 10, Agreement on Civilian Implementation; Bonn Agreement, General Framework Agreement for Peace in Bosnia and Herzegovina, Dayton 21 November 1995; Section XI, Conclusions of the Peace Implementation Conference held in Bonn on 10 December 1997, ‘Bosnia and Herzegovina 1998: Self-Sustaining Structures’.

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156  The Elgar companion to the International Criminal Court compliance with the military aspects of the peace agreement.36 A similar layering of supranational authority over local institutions in Kosovo enabled the Tribunal to effectively bypass dysfunctional and/or politically volatile domestic authorities where needed.37 Of course, other challenges arising from local spoilers remained. But the ICTY's enforcement experience in these situations has been deeply atypical and has primarily served to emphasise the external governance realities of Bosnia and Kosovo, rather than any inherent authority the ICTY enjoyed as a Chapter VII creature. This artificial reality is borne out by the fact that the ICTY did not benefit from those same powers elsewhere in the former Yugoslavia, such as in Croatia or Serbia, where it had to deal with the normal mechanisms of unruly state cooperation; nor did the ICTR with respect to either Rwanda or any other state. The referral by the Security Council of the situations in Darfur and Libya, under comparable Chapter VII conditions, has similarly failed to endow the ICC with heightened compliance rates. Barring another international transitional administration context, it is highly unlikely that the remedy for an unwilling state that refuses to cooperate with the ICC will be recourse to an in situ supranational authority with the full range of executive and enforcement powers. Other issue-linkage measures employed with respect to all states of the former Yugoslavia (including Serbia and Croatia), might in theory be more readily applicable in other contexts. But for the reasons set out below their practical realisation appears similarly illusive at this stage. In particular, after initially being viewed as a spoiler to the peace process, the ICTY came to benefit from a broad range of compliance inducing measures adopted collectively and bilaterally by third parties which aimed to alter the behaviour of the states in the region. As described elsewhere, this involved including a state’s record of ICTY cooperation among the criteria for progress in such domestically vital processes as the European Union’s Stabilization and Association Process, NATO’s Partnership for Peace programme, or the lifting of economic sanctions and the rendering of financial assistance by the World Bank and the US.38 By concretely rewarding compliance and sanctioning norm defection, erstwhile reluctant, if not obstructive, states were coerced and cajoled into apprehending the remaining key fugitives and rendering assistance to a stalled judicial process. Clearly the organising principle of this model is the requirement for concerted unified collective action by a body upon which the requested state’s national self-interest is dependent. If the promise of such issue-linkage strategies has not been lost on the ASP,39 however, its Annex 1-A, Agreement on the Military Aspects of the Peace Settlement, General Framework Agreement for Peace in Bosnia and Herzegovina, Dayton 21 November 1995; SC Res. 1031, 15 December 1995; SC Res. 1088, 12 December 1996. 37 See SC Res. 1244, 10 June 1999. 38 See discussion in Rastan 2009, supra note 8, at 165–169. 39 See e.g., Report of the Bureau on cooperation, Annex IV: Report on the draft Action Plan on arrest strategies, submitted by the Rapporteur, ICC-ASP/14/26/Add.1, 16 November 2015, at § 24 (‘The Assembly and the States Parties should consider the implementation of conditionality policies on a case-by-case basis, where appropriate and within the context of the specific strategies adopted, in order to use as a leverage the political, security and the financial interests of States under an obligation to cooperate in the enforcement of the arrest warrants issued by the Court’, and suggesting at § 27 among possible conditionality strategies, ‘Participation in regional or intergovernmental organizations, with regard to the status of Member, Observer or Candidate; (b) Capacity building assistance, including for the development of the rule of law; (c) Cooperation aid, with the exception of humanitarian assistance, including (i) Development aid. Programmes in support of the economic, environmental, social, and 36

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Can the ICC function without state compliance?  157 practical realisation has offered only limited application to the global setting affecting other situations: which, as often, have been marked by fragmentation, disunity and competing, if not countervailing, interests and deep-seated value contestation. Even so, the example of collective (or regional) unanimity that coalesced around the work of the ICTY gives concrete demonstration of what is possible—where the necessary unity in thought and action in global undertakings can be obtained.40 3.B.3 De facto authorities In a different category, a state may be neither unwilling nor unable, but practically ‘absent’ as a competent body. This might be in relation to territory that is controlled by an armed group or a breakaway administration or that is under belligerent occupation. Here, the state concerned might also be held to be unable to cooperate due to the ‘unavailability of its national judicial system’. However, it is not entirely clear whether this scenario is envisaged in Article 57(3)(d), which foresees the PTC filling the vacuum left by the absence of any competent authority. In these cases, an authority capable of giving the request effect may exist, but not a legitimate one. The question therefore arises whether and how the Court can address itself to such de facto authorities? At the ICTY, this issue was resolved early on in its Rules, which were revised to define the term ‘State’ as ‘A State Member or non-Member of the United Nations or a self-proclaimed entity de facto exercising governmental functions, whether recognised as a State or not’.41 This enabled the Tribunal to hold that it had competence to directly address the ‘entity’ level authorities of Republika Srpska within the state of Bosnia and Herzegovina for the production of records held by its Defence Ministry.42 No such definition prevails in the ICC Statute and Rules. In the only case where the issue has arisen the Prosecutor, arguing on the basis of Article 57 and the Court’s inherent powers, sought to have the ICC’s arrest and surrender request served on a non-state militia, the Abu-Bakr al-Siddiq Battalion, believed at the time to be holding Saif Al-Islam Gaddafi in Zintan, Libya.43 The PTC rejected the motion, holding that the Statute comprehensively regulates the channel for the transmission of cooperation requests. It held that while a state may designate more than one channel or agree to the Court directly addressing a cooperation

political development; (ii) Financial assistance. Financial aid and loans, including bilateral and from World Bank, International Monetary Fund, and European Investment Bank; (iii) Economic assistance. Bilateral cooperation agreements aimed at providing economic assistance, trade concessions, or to an international debt relief plan; Military assistance. Military assistance programmes, including on bilateral and multilateral basis; (v) Other assistance. Any other assistance programme’). 40 B. Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (Oxford: Oxford University Press, 2003), at 151–162; R. Rastan, ‘Unity and Disunity in International Criminal Justice’, in M. Bergsmo and E. Buis (eds), Philosophical Foundations of International Criminal Law: Legally Protected Interests (forthcoming 2020). 41 Rule, 2, ICTY RPE, IT/32/Rev. 3, 30 January 1995. 42 Binding Order to the Republika Srpska for the Production of Documents, Krstić (IT-98-33-PT), ICTY, 12 March 1999. 43 Decision on the Prosecutor’s ‘Request for an order directing the Registrar to transmit the request for arrest and surrender to Mr. al-’Ajami AL-’ATIRI, Commander of the Abu-Bakr Al Siddiq Battalion in Zintan, Libya’, Al-Islam Gaddafi (ICC-01/11-01/11-634-Red), Pre-Trial Chamber I, 21 November 2016, §§ 6–7.

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158  The Elgar companion to the International Criminal Court request to local authorities, ‘the Court cannot but deal with the de jure government and cannot direct its cooperation requests to any other non-State entity claiming to represent the State’.44 What impact this ruling will have on other cases remains to be seen. In particular, as it seeks to secure access to and assistance from areas controlled by non-state actors, such as de facto South Ossetian administered territory in Georgia or Taliban controlled areas of Afghanistan, the Court will have to determine whether it practically has the means and powers to address non-state actors. Part of the answer may lie in the Court’s ability to secure the consent of the de jure authorities for the channelling of certain requests to those de facto bodies, as anticipated in the Chamber’s ruling.45 Where this consent is not forthcoming, the Court would appear to face an impasse. It might of course be possible that another Chamber decides differently and takes a broader construction of its request channelling powers, whether on the basis of distinguishable facts or the exclusive powers otherwise exercised by the de facto authority over the requested measure sought (such as access to territory). However, any such analysis would still have to take into consideration the design limitations underscored in the Libya decision. For whereas a Chamber may issue such orders and warrants as may be required46 or seek such cooperation as may be necessary, 47 this must be ‘pursuant to Part 9’.48 Moreover, the drafters of the ICC Statute would have been alive to the way the ICTY Rules addressed this problem, given that its amendments were adopted in January 1995. But they appear to have endowed the ICC with less manoeuvrability, both in terms of the channels to which it may communicate its cooperation requests as well as its far more rigid legislative amendment scheme.49 This logic, however, comes up against a potentially absurd outcome. If the ICC is unable to either: (i) secure the consent of the de jure authorities to enable it to seek cooperation de facto authorities, or (ii) accept a broader interpretation of its own powers, the Court may be practically unable to conduct investigations or channel cooperation requests with respect to a territory that is under hostile control, even where the de facto authorities concerned agree to cooperate and permit it access. 3.B.4 Unlawfully obtained evidence This subsection looks at evidence obtained in potential violation of the laws of a non-cooperative state. As a general rule of course evidence must be collected lawfully and obtained following applicable procedures. This is both a conduct requirement for judicial officers, including the Prosecutor,50 as well as a factor in the admission of evidence tendered in court and the weight attached to it in the light of the requirements of a fair trial.51 Nonetheless, at both the ad hoc Tribunals and the ICC, evidence said to have been obtained by irregular means has not been automatically excludable, irrespective of whether this constitutes a violation of national law, the international court’s own statute or internationally recognised human rights. The case law of the ICTY and ICTR, drawing on domestic and ECtHR practice, have favoured the admission of evidence so long as it is relevant and is deemed to have probative 46 47 48 49 50 51 44 45

Ibid. at § 15. Ibid. at §§ 15–16. Art. 57(3)(a) ICC Statute. Art. 57(3)(b) ICC Statute. Ibid. See similarly Art. 54(2) ICC Statute. Arts 51–52 ICC Statute. Art. 54(1)(c) and 54(2) ICC Statute; OTP Code of conduct; Code of Conduct for Counsel. Art. 69(4), 69(7).

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Can the ICC function without state compliance?  159 value which is not substantially outweighed by the need to ensure a fair trial.52 In doing so, Chambers have sought to ‘balance the fundamental rights of the accused with the essential interests of the international community in the prosecution of persons charged with serious violations of international humanitarian law’.53 As the Trial Chamber observed in Brdjanin, ‘[i]n the light of this responsibility under the Statute towards the international community and considering the seriousness of the crimes that this Tribunal is entrusted to adjudicate, it would be utterly inappropriate to exclude relevant evidence due to procedural considerations, as long as the fairness of the trial is guaranteed’.54 Accordingly, the ICTY’s jurisprudence has held that ‘evidence obtained illegally is not, a priori, inadmissible, but rather that the manner and surrounding circumstances in which evidence is obtained, as well as its reliability and effect on the integrity of the proceedings, will determine its admissibility’.55 Numerous ICTY and ICTR rulings on exclusion of evidence have assessed the impact of an alleged violation, whether in terms of the reliability of the evidence or the need to ensure a balance between the seriousness of the offence and/or the fairness of the trial as a whole.56

52 Decision on the Accused’s Motion to Exclude Intercepted Conversations, Karadžić (IT-95-5/18-T), ICTY, 30 September 2010, § 7; Decision on Morina and Haraqija Request for a Declaration of Inadmissibility and Exclusion of Evidence, Haraqija and Morina (04-84-R77.4), ICTY, 27 November 2008, § 12; Decision on the Admissibility into Evidence of Intercept-Related Materials, Blagojević and Jokić (IT-02-60-T), ICTY, 19 December 2003, § 15; Decision on the Defence ‘Objection to Intercept Evidence’, Brdjanin (IT-99-36-T), ICTY, 3 October 2003, § 62; Order on the Standards Governing the Admission of Evidence, Brñanin and Talić (IT-99-36-T), ICTY, 15 February 2002, § 11; Transcript, Kordic and Cerkez, (IT-95-14/2-T), ICTY, 2 February 2000, at 13694; Decision on the Motion of the Prosecution for the Admissibility of Evidence, Delalić et al. (IT-96-21-T), ICTY, 19 January 1998, § 16. 53 Decision on the Accused’s Motion to Exclude Intercepted Conversations, Karadžić (IT-95-5/18-T), ICTY, 30 September 2010, § 7; Decision on the Defence ‘Objection to Intercept Evidence’, Brdjanin (IT-99-36-T), ICTY, 3 October 2003, § 61. 54 Decision on the Defence ‘Objection to Intercept Evidence’, Brdjanin (IT-99-36-T), ICTY, 3 October 2003, § 63; Decision on the Accused’s Motion to Exclude Intercepted Conversations, Karadžić (IT-95-5/18-T), ICTY, 30 September 2010, §§ 6–7; Decision on the Tendering of Prosecution Exhibits 104–108, Delalic et al. (IT-96-21-T), ICTY, 9 February 1998, § 20. 55 Decision on the Accused’s Motion to Exclude Intercepted Conversations, Karadžić (IT-95-5/18-T), ICTY, 30 September 2010, § 8; Decision on the Defence ‘Objection to Intercept Evidence’, Brdjanin (IT-99-36-T), ICTY, 3 October 2003, § 55; Decision on Morina and Haraqija Request for a Declaration of Inadmissibility and Exclusion of Evidence, Haraqija and Morina (04-84-R77.4), ICTY, 27 November 2008, § 15. See also Appeals Judgment, Naletilić & Martinović (IT-98-34-A), ICTY, 3 May 2006, § 238. 56 See e.g., Decision on the Prosecution’s Motion for the Redaction of the Public Record’, Delalic et al. (IT-96- 21-T), ICTY, 5 June 1997, §§ 58–60 (information on the prior sexual conduct of the victim); Decision on Zdravko Mucic’s Motion for the Exclusion of Evidence’, Delalic et. al. (IT-96- 21-T), ICTY, 2 September 1997, §§ 50–55 (violation of the right to counsel); Decision on Kajelijeli’s Motion to Hold Members of the Office of the Prosecutor in Contempt of the Tribunal (Rule 77(C)), Kajelijeli (ICTR-98-44A-T), ICTR, 15 November 2002, §§ 14–15 (violation of a witness protection order); Decision on the Prosecutor’s Motion for the Admission of Certain Materials Under Rule 89(C), Bagosora et al. (ICTR-98-41-T), ICTR, 14 October 2004, § 21 (violation of the right to counsel); Decision Adopting Guidelines on the Standards Governing the Admission of Evidence, Martic (IT-95-11-T), ICTY, 19 January 2006, § 9 (non-voluntary statements obtained by means of oppressive conduct); Decision on the Voir Dire Hearing of the Accused’s Curriculum Vitae, Zigiranyirazo (ICTR-2001-73-T), ICTR, 29 November 2006, § 13 (evidence obtained in violation of the right to counsel); Decision on the Admission into Evidence of Slobodan Praljak’s Evidence in the Case of Natelic and Martinovic, Prlic et al. (IT-04-74-T), 5 September 2007, §§ 21–22 (violation of the right against self-incrimination and the right to silence); Decision on the Prosecution Motion for Admission into Evidence of Post-Arrest Interviews

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160  The Elgar companion to the International Criminal Court Other rulings have examined the lawfulness of particular types of evidence collection. One example is intercepted military communications, which have constituted key pieces of evidence in a number of cases.57 Signals intelligence during wartime of course is not typically collected with a view to criminal proceedings, but to monitor the movements and actions of opposing forces, to detect their capabilities and to obtain intelligence on an adversary’s intentions/operational planning. Nor would such interception activity necessarily be unlawful under international law or under the law of the intercepting state. Nonetheless, where its unlawfulness has been pleaded pursuant to the laws of the territorial state, Chamber at the ICTY have admitted such material, noting ‘in situations of armed conflict, intelligence which may be the result of illegal activity may prove to be essential in uncovering the truth; all the more so when this information is not available from other sources’.58 In this context, the Trial Chamber in Brdjanin recognised the pragmatic realities that may render recourse to ordinary domestic procedures unfeasible: The Trial Chamber acknowledges that there are instances when it is not realistic or practical to request permission to conduct covert interceptions. Therefore, even if obtained without legal authority, or in contravention to existing law, this Trial Chamber acknowledges the principle that there may be exceptional circumstances where it is impossible to obtain legal approval of covert surveillance, for example, when the surveillance is targeted at the body from which permission is to be given. Thus, for example, in a country where interception of telephone conversations can only be authorised by the Minister of Home Affairs, it does not make sense at all if his or her authority is still required when he himself or she herself is the suspect that needs to be the subject of surveillance.59

At the ICC, the assessment has similarly focussed on the effects of such alleged breaches on the reliability of the evidence and the overall integrity of the proceedings. As the Lubanga Trial Chamber observed, ‘not every violation of an internationally recognised human right leads automatically to the exclusion of the evidence under Article 69(7)(b) of the Statute’, rather it is rather the role of the Chamber ‘to seek an appropriate balance between the Statute’s fundamental values in each concrete case’.60 The Appeals Chamber in Bemba et al. similarly with Joseph Nzirorera and Mathieu Ngirumpatse, Karemera et al.( ICTR-98-44-T), 2 November 2007, § 32 (violation of the right to silence and the right to counsel). 57 See e.g., Decision on the Accused’s Motion to Exclude Intercepted Conversations, Karadžić (IT-95-5/18-T), ICTY, 30 September 2010, §§ 9–12. At the ICC, in the Georgia situation, the Art. 15 authorisation procedure similarly included evidence based on intercepted radio communications by opposing Russian and Georgian armed forces, although evidentiary challenges are yet to be heard in the context of specific cases; Corrected Version of ‘Request for authorisation of an investigation pursuant to article 15’, Situation in Georgia (ICC-01/15-4-Corr), 16 October 2015, §§ 182, 241, 288. Intercepted military communication has also been relied on in the Kony et al. case, based on audio recordings of remote monitoring of Lord’s Resistance Army (LRA) radio communications by the Ugandan security services, and later obtained by the ICC pursuant to a request for cooperation, although based on evidence gathered by national security services against a non-state armed group; Decision on the confirmation of charges against Dominic Ongwen, Ongwen (ICC-02/04-01/15-422-Red), 23 March 2016, § 50. 58 Decision on the Defence ‘Objection to Intercept Evidence’, Brdjanin (IT-99-36-T), ICTY, 3 October 2003, § 61. See also Decision on the Accused’s Motion to Exclude Intercepted Conversations, Karadžić (IT-95-5/18-T), ICTY, 30 September 2010, §§ 9–12. 59 Ibid. at § 56. 60 Decision on the Confirmation of the Charges, Lubanga (ICC-01/04-01/06-803-tEN), 29 January 2007, § 84; Decision on Request in Response to Two Austrian Decisions, Bemba et al. (ICC-01/05-01/13-1948), 14 July 2016, § 33.

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Can the ICC function without state compliance?  161 observed that according to Article 69(7) determining the admissibility of evidence requires a ‘two step’ inquiry into whether: (i) evidence has been obtained in violation of the Statute or internationally recognised human rights; and (ii) ‘[t]he violation casts substantial doubt on the reliability of the evidence’ or ‘[t]he admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings’.61 In relation to the first step of the inquiry under Article 69(7), the Appeals Chamber has stated that, given the express bar contained in Article 69(8),62 the Statute establishes ‘an unequivocal separation between the national and international spheres in the respective competences of the Court and the States’.63 This it said was ‘more generally reflected in the principles of judicial cooperation underlying Part 9 of the Statute’.64 This meant that it is not the job of the Court to review post hoc whether national law had been properly complied with in execution of its request: which it said is for the relevant state to ensure.65 Even a judicial finding by national courts that evidence collected by its domestic authorities breached of national law is not directly binding on the Court. This is because ‘any domestic decision is not, as such, directed at the Court nor is it otherwise binding on the Court, which must apply its own sources of law and cannot simply “import” findings made by national courts, including for determination of admissibility of evidence under Article 69 (7) of the Statute’.66 In Lubanga similarly, in ruling on whether a search and seizure had been conducted 61 Judgment on the appeals of Mr. Jean-Pierre Bemba Gombo, Mr. Aimé Kilolo Musamba, Mr. Jean-Jacques Mangenda Kabongo, Mr. Fidèle Babala Wandu and Mr. Narcisse Arido against the decision of Trial Chamber VII entitled ‘Judgment pursuant to Article 74 of the Statute’, Bemba et al. (ICC-01/05-01/13-2275-Red), Appeals Chamber, 8 March 2018, § 280. See also Decision on the admission of material from the ‘bar table’, Lubanga (ICC-01/04-01/06-1981), 24 June 2009, §§ 39 and 41; Decision on Requests to Exclude Western Union Documents and other Evidence Pursuant to Article 69(7), Bemba et al. (ICC-01/05-01/13-1854), 29 April 2016, § 63. 62 Art. 69(8) provides: ‘[w]hen deciding on the relevance or admissibility of evidence collected by a State, the Court shall not rule on the application of the State’s national law’. 63 Judgment on the appeals of Mr. Jean-Pierre Bemba Gombo, Mr. Aimé Kilolo Musamba, Mr. Jean-Jacques Mangenda Kabongo, Mr. Fidèle Babala Wandu and Mr. Narcisse Arido against the decision of Trial Chamber VII entitled ‘Judgment pursuant to Article 74 of the Statute’, Bemba et al. (ICC-01/05-01/13-2275-Red), Appeals Chamber, 8 March 2018, § 288 (observing ‘[i]n light of this separation, the execution by a State of a request for cooperation and the transmission to the Court of the requested evidence by the competent authorities of the requested State indicate that the collection of the evidence has taken place in accordance with national law and pursuant to the relevant domestic procedures of the concerned State.’). But see also §§ 296, 330, 342 (observing that for purpose of determining whether evidence was obtained in violation of the Statute or internationally recognised human rights, ‘[t]his provision [art. 69(8)] does not per se preclude the Court from taking into account, in certain circumstances, issues of compliance with national law in the collection of evidence as a factual matter potentially relevant to the understanding of the relevant factual background’). 64 Ibid. 65 Ibid. In this regard, Chambers at both the ICTY and ICC have been reticent to apply exclusionary rules as a means to deter and punish illegal conduct by domestic law enforcement authorities by excluding illegally obtained evidence in international proceedings; see Decision on the Defence ‘Objection to Intercept Evidence’, Brdjanin (IT-99-36-T), ICTY, 3 October 2003, § 63; Decision on the admission of material from the ‘bar table’, Lubanga (ICC-01/04-01/06-1981), 24 June 2009, §§ 45–46. 66 Judgment on the appeals of Mr. Jean-Pierre Bemba Gombo, Mr. Aimé Kilolo Musamba, Mr. Jean-Jacques Mangenda Kabongo, Mr. Fidèle Babala Wandu and Mr. Narcisse Arido against the decision of Trial Chamber VII entitled ‘Judgment pursuant to Article 74 of the Statute’, Bemba et al. (ICC-01/05-01/13-2275-Red), Appeals Chamber, 8 March 2018, § 345. See also § 343 (dismissing the attribution of direct effects on this Court of judicial determinations by national courts). This is also in line

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162  The Elgar companion to the International Criminal Court in full adherence to the principle of proportionality, the PTC ruled that ‘the mere fact that a Congolese court has ruled on the unlawfulness of the search and seizure conducted by the national authorities cannot be considered binding on the Court’.67 At the same time, neither is a State’s compliance with its domestic law in the collection of evidence a guarantee that the evidence concerned was not obtained by means of a violation of the Statute or internationally recognised human rights.68 Thus, in Bemba et al., the Appeals Chamber examined whether interference with the right to privacy, regardless of whether it was contemplated by the domestic law of the state concerned, was proportionate to the legitimate investigative needs at issue and was not abusive or arbitrary.69 Where the alleged violation proceeds to the second step of inquiring whether the improperly obtained evidence should be excluded, the more limited practice to date of ICC Chambers has considered inter alia the level of attribution to or of bad faith on the part of the requesting Court organ, or of its agents or counsel before it; the seriousness of the violation; and whether the right violated related to someone other than the accused.70 3.B.5 Irregular arrest What about arrests? Article 89 provides that requests for arrest and surrender are to be transmitted to and executed by the state on whose territory the suspect is located. But what if the authorities that capture an ICC suspect on a state’s territory are from another state—such as perhaps the armed forces or agents of state B who are on state A’s territory without its consent, and who later implement surrender to the ICC from state B? Or what if the suspect is captured by non-state actors, whether an opposition armed group or bounty hunters or any other actor whose interests coincide with the ICC for whatever motive, and handed over to the authorities of a state that is willing to execute an arrest and surrender request? Should the ICC be concerned with the regularity of such processes as long as it ends with the procedural guarantees afforded in Article 59? In considering these issues, does it matter how the suspect was treated; whether there has been a breach of a state’s sovereignty or if the state has lodged a complaint; or the extent to which such conduct is attributable to the ICC? The impact of an irregular arrest process has been addressed in a number of well-known cases at the national level, before human rights bodies, and at the ICTY and ICTR.71 These

with the non-applicability of national law as a source of law under Article 21 of the Statute rule (ibid. at § 291) and with the rule that national laws governing evidence do not apply before international courts (see Rule 63(5), ICC RPE; Rule 89(A), ICTY RPE). 67 Decision on the Confirmation of the Charges, Lubanga (ICC-01/04-01/06-803-tEN), 29 January 2007, § 69. 68 Judgment on the appeals of Mr. Jean-Pierre Bemba Gombo, Mr. Aimé Kilolo Musamba, Mr. Jean-Jacques Mangenda Kabongo, Mr. Fidèle Babala Wandu and Mr. Narcisse Arido against the decision of Trial Chamber VII entitled ‘Judgment pursuant to Article 74 of the Statute’, Bemba et al. (ICC-01/05-01/13-2275-Red), Appeals Chamber, 8 March 2018, §§ 330, 332. 69 Ibid. at §§ 331–333. 70 See e.g., Decision on the admission of material from the ‘bar table’, Lubanga (ICC-01/04-01/061981), 24 June 2009, §§ 46–47; Decision on Requests to Exclude Western Union Documents and other Evidence Pursuant to Article 69(7), Bemba et al. (ICC-01/05-01/13-1854), 29 April 2016, § 65; Decision on Request in Response to Two Austrian Decisions, Bemba et al (ICC-01/05-01/13-1948), 14 July 2016, §§ 36–40. 71 See e.g., review of national and regional case law discussed in Decision on the Motion for Release by the Accused Slavko Dokmanović, Mrksić el al, (95-13a-PT), ICTY, 22 October 1997, § 57; Decision

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Can the ICC function without state compliance?  163 mainly relate to the legal significance of cross-border abductions for a tribunal’s exercise of jurisdiction. This topic has been extensively treated elsewhere and space does not permit its rehearsal here.72 Suffice to recall the approach set out by the ICTY/ICTR Appeals Chambers when determining whether to permit the exercise of jurisdiction notwithstanding irregularities in a person’s arrest. This has looked to a balancing of factors broadly similar to the approach applied in the case of illegally obtained evidence, such as: (i) the gravity of cases before the Tribunals; (ii) whether the state whose sovereignty has been breached has lodged a complaint; (iii) whether the treatment of the accused during the course of the arrest was of an egregious nature; and (iv) whether there has been collusion or ‘concerted action’ implicating the Prosecutor’s Office in such a process.73 For example, an early case before the ICTY concerned the cross-border abduction of Dragan Nikolić from Serbia and Montenegro into Bosnia and Herzegovina at the hands of ‘unknown Stating Reasons for Trial Chamber’s Order of 4 March 1999 on Defence Motion for Evidentiary Hearing on the Arrest of the Accused Todorović, Simić, (IT-95-9/1), ICTY, 25 March 1999; Decision, Barayagwisa, (ICTR-97-19-AR72), ICTR, 3 November 1999; Order on Defence Requests for Judicial Assistance for the Production of Information, Simić, (IT-95-9/1), ICTY, 7 March 2000; Decision on Application for Leave to Appeal Against Trial Chamber Decision of 7 March 2000, Simić (IT-95-9/1), ICTY, 3 May 2000; Decision on Motion for Judicial Assistance to be provided by SFOR and Others, Simić (IT-95-9/1), ICTY, 18 October 2000; Decision on Interlocutory Appeal Concerning Legality of Arrest, Nikolić (IT-94-2-PT), ICTY, 5 June 2003; Decision on the Defence Motion challenging the Lawfulness of the Arrest and Detention and seeking Return or Inspection of Seized Items, Ngirumpatse (ICTR-97-44-I), ICTR, 10 December 1999, § 56; Decision on the Defence Motion concerning the Arbitrary Arrest and Illegal Detention of the Accused and on the Defence Notice of Urgent Motion to Expand and Supplement the Record of 8 December 1999 Hearing, Kajelijeli (ICTR-98-44-I), ICTR, 8 May 2000, § 34; Decision on the Defence Motion for the Restitution of Documents and other Personal or Family Belongings Seized (Rule 40 (C) of the Rules of Procedure and Evidence), and the Exclusion of such Evidence which may be used by the Prosecutor in preparing an Indictment against the Applicant, Karemera (ICTR-98-44-I), ICTR, 10 December 1999; Decision on the Defence Motion challenging the Legality of the Arrest and Detention of the Accused and requesting the Return of Personal Items Seized, Nzirorera, (ICTR-98-44-T), ICTR, 7 September 2000, § 27; Decision on the Defence Motion for Exclusion of Evidence and Restitution of Property Seized, Nyiramasuhuko (ICTR-97-21-T), ICTR, 12 October 2000, § 26. 72 See e.g., T. Henquet, ‘Accountability for Arrests: The Relationship between the ICTY and NATO’s NAC and SFOR’, in G. Boas and W. Schabas (eds), International Criminal Law Developments in the Case Law of the ICTY (Leiden: Nijhoff, 2003), at 113–155; J. Cogan, ‘International Criminal Courts and Fair Trials: Difficulties and Prospects’, 27 Yale Journal of International Law (YJIL) (2002) 111–140; S. Lamb, ‘The Powers of Arrest of the International Criminal Tribunal for the Former Yugoslavia’, 70 British Yearbook of International Law (Brit YB Inlt L) (1999) 165–244; M. Scharf, ‘The Prosecutor v. Slavko Dokmanovic: Irregular Rendition and the ICTY’, 11 Leiden J Intl L (1998) 369–382; J. Sloan, ‘Prosecutor v Todorovic: Illegal Capture as an Obstacle to the Exercise of International Criminal Jurisdiction’, 16 Leiden J Intl L (2003) 85–113; J. Sloan, ‘Prosecutor v Dragan Nikolic: Decision on Defence Motion on Illegal Capture’, 16 Leiden J Intl L (2003) 541–552; G. Sluiter, ‘International Criminal Proceedings and the Protection of Human Rights’, 37 New England Law Review (New Eng L Rev) (2003) 935–948; O. Ülgen, ‘The ICTY and Irregular Rendition of Suspects’, 2 The Law and Practice of International Courts and Tribunals (Law & Prac Intl Cts & Trib) (2003) 441–466; A. Costi, ‘Problems with Current International and National Practices Concerning Extraterritorial Abductions’, 8 Yearbook of the New Zealand Association for Comparative Law (YB NZ Ass Comp L) (2002) 57–99. 73 See e.g., Decision on Interlocutory Appeal, Nikolić (IT-94-2-AR73), ICTY Appeals Chamber, 5 June 2003 §§ 26–33; Decision, Barayagwisa (ICTR-97-19-AR72), ICTR Appeals Chamber, 3 November 1999, §§ 106–112.

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164  The Elgar companion to the International Criminal Court individuals’, whereupon he was arrested by SFOR troops and transferred to the ICTY. After reviewing state practice, the ICTY Appeals Chamber identified two principles for not setting aside its jurisdiction despite irregularities in the rendition process, namely: (i) the ‘special character’ of the offences under the Tribunal’s jurisdiction; and (ii) whether the territorial state had subsequently lodged a complaint.74 In addition to reviewing national practice, thus, the Appeals Chamber also considered the particular mandate of the ICTY: weighing against state sovereignty the ‘legitimate expectation [of the international community] that those accused of these crimes will be brought to justice swiftly’, as well as the cooperation duties owed to the Tribunal.75 It observed: In the opinion of the Appeal Chamber, the damage caused to international justice by not apprehending fugitives accused of serious violations of international humanitarian law is comparatively higher than the injury, if any, caused to the sovereignty of a State by limited intrusion in its territory, particularly when the intrusion occurs in default of the State’s cooperation.76

To date, the ICC has only considered some of the factors set out above, mainly in rulings related to alleged abuse of process linked to a person’s arrest and surrender. Thus, in Lubanga, in answering the suspect’s claim of arbitrary arrest, subsequent illegal detention by the DRC authorities prior to the execution of the ICC warrant, and irregularities in the execution of the Court’s own arrest and surrender request, the Appeals Chamber observed: ‘[w]here the breaches of the rights of the accused are such as to make it impossible for him/her to make his/ her defence within the framework of his rights, no fair trial can take place and the proceedings can be stayed’.77 It nonetheless, noted that ‘[n]ot every infraction of the law or breach of the rights of the accused in the process of bringing him/her to justice will justify stay of proceedings. The illegal conduct must be such as to make it otiose, repugnant to the rule of law to put the accused on trial.’78 The Lubanga Appeals Chamber also examined the relationship between the Prosecutor and the detaining authorities amid allegations of ‘concerted action’,79 echoing the approach undertaken with respect to illegally obtained evidence.80 In the Gbagbo case, in examining an alleged breach of the suspect’s rights in the process of bringing him to justice, the PTC similarly held that:

Decision on Interlocutory Appeal, Nikolić (IT-94-2-AR73), ICTY Appeals Chamber, 5 June 2003, § 24. 75 Ibid. at § 25. The Appeals Chamber further noted in this context the importance of accountability as ‘a necessary condition for the achievement of international justice, which plays a critical role in the reconciliation and rebuilding based on the rule of law of countries and societies torn apart by international and internecine conflicts’. 76 Ibid. at § 26. 77 Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19(2)(a) of the Statute of 3 October 2006, Lubanga (ICC-01/04-01/06-772), Appeals Chamber, 14 December 2006, § 39. 78 Ibid. at § 30. In this context, the PTC had examined whether there had been ‘torture or serious mistreatment of the suspect in the process of bringing him to justice’; ibid. at §§ 10, 43. 79 Ibid. at § 9. 80 Ibid. at § 42, noting a difference between involvement in the domestic arrest and detention process and ‘[m]ere knowledge on the part of the Prosecutor’. 74

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Can the ICC function without state compliance?  165 … violations of fundamental rights, however serious, can have the requisite impact on proceedings to constitute an abuse of process only insofar as they can be attributed to the Court. Attribution in this sense means that the act of violation of fundamental rights is: (i) either directly perpetrated by persons associated with the Court; or (ii) perpetrated by third persons in collusion with the Court. Conversely, when a violation of the suspect’s fundamental rights, however grave, is established, but demonstrates no such link with the Court, the exceptional remedy of staying the proceedings is not available.81

It remains to be seen what approach the ICC will take to alleged breaches of state sovereignty during arrests, should the circumstances arise. In particular, since requests for arrest and surrender are to be transmitted to ‘any State on the territory of which that person may be found’, and the Court ‘request[s] the cooperation of that State in the arrest and surrender of such a person’,82 it could be reasoned that a person arrested or otherwise captured on a state’s territory without its consent would violate the statutory process. Nonetheless, adjusting for context, the comparable exclusionary rules for inadmissibility of evidence discussed above also show that not every violation of the Statute, or of internationally recognised human rights, will rupture proceedings: but whether so proceeding ‘would be antithetical to and would seriously damage the integrity of the proceedings’.83 Another key procedural guarantee provided in Article 59 requires that the competent judicial authorities in the custodial state determine, in accordance with the laws of that state, inter alia whether ‘[t]he person has been arrested in accordance with the proper process’ and whether ‘[t]he person's rights have been respected’. It is unclear how this provision will apply when the person is initially captured on the territory of a state different to that in which the Article 59 hearing occurs and without the consent of the former. Whether the scope of such a review will be limited to that part of the arrest process when its own law enforcement agents took custody over an individual or would also embrace antecedent conduct committed by others, possibly attributed to its own agents, will also likely fall back on domestic practice on the application of the male captus bene detentus principle referred to above. In sum, it remains feasible that the ICC will not apply a more rigorous standard than other criminal jurisdictions. In particular, it remains open to argue that the ICC Statute, rather than creating an expectation that it should set aside jurisdiction for breaches of Part 9 arrest and surrender processes, provides scope for a PTC to undertake case-specific assessments of how a person has been brought before it by identifying factors similar to those considered by national courts, other international criminal tribunals, and in the ICC’s own abuse of process judgments. 3.C

Preventative Measures

3.C.1 Witness interference and evidence tampering Witness interference has become a routine feature in almost all of the cases before the ICC, as it did in a number of high profile cases before the ad hoc Tribunals. It is also common for

81 Decision on the ‘Corrigendum of the challenge to the jurisdiction of the International Criminal Court on the basis of articles 12(3), 19(2), 21(3), 55 and 59 of the Rome Statute filed by the Defence for President Gbagbo (ICC02/11-01/11-129)’, Gbagbo (ICC-02/11-01/11-212), 15 August 2012, § 92. 82 Art. 89 ICC Statute. 83 Art. 69(7)(b) ICC Statute (sub-paragraph 7(a) finding less meaningful analogy to the arrest scenario).

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166  The Elgar companion to the International Criminal Court the testimony of certain witnesses to be heard in closed or private sessions or accompanied by other forms of anonymity towards the public, due to the suspected vulnerability of the witness, and/or of their family members, to harassment, intimidation or reprisal. Interference has sometimes allegedly involved an accused person directly. In the Ngudjolo case, the acquittal was accompanied by discussion in the appeal judgment over the impact arising from suspicions of witness intimidation and disclosure of confidential information revealed by monitored detention cell communications, leading to a split judgment on whether this should have resulted in a reversal and retrial.84 In Bemba, suspicions of an interference campaign led to Article 70 convictions against the accused, one lead counsel, the case manager and two defence resource persons.85 Article 70 allegations involving the accused have also led to judicial intervention in Ntaganda86 and Ongwen.87 In other cases, even if the accused was not directly implicated, witness interference undermined the viability of the case. In Ruto and Sang, the Trial Chamber noted ‘the element of systematicity of the interference of several witnesses in this case which gives rise to the impression of an attempt to methodically target witnesses of this case in order to hamper the proceedings’.88 The case was dismissed without prejudice, following a no-case-to-answer motion, due to this factor alone.89 Meanwhile, three persons were separately indicted for related witness interference offences.90 And in Gbagbo and Blé Goudé, the Trial Chamber repeatedly issued public warnings with respect to interference arising from attempts by social media outlets to identify protected witnesses.91 There are several cooperation challenges to Article 70 investigations. The first is that the Statute tolerates lacunae in national laws penalising Article 70 offences. This is because Article 70(4) merely provides that each State Party must extend its existing contempt laws, not create new ones. This makes Article 70 offences only as effective as each state’s existing laws,

Judgment on the Prosecutor’s appeal against the decision of Trial Chamber II entitled ‘Judgment pursuant to article 74 of the Statute’, Ngudjolo (ICC-01/04-02/12-271-Corr A), 7 April 2015, § 230 et seq.; Joint Dissenting Opinion of Judge Ekaterina Trendafilova and Judge Cuno Tarfusser, Ngudjolo (ICC-01/04-02/12-271-AnxA), § 8 et seq. 85 Judgment pursuant to Art. 74 of the Statute, Bemba et al. (ICC-01/05-01/13-1989-Red), 19 October 2016. 86 Decision on Prosecution requests to impose restrictions on Mr. Ntaganda’s contacts, Ntaganda (ICC-01/04-02/06-785-Red), Trial Chamber VI, 18 August 2015. 87 Decision on the confirmation of charges, Ongwen (ICC-02/04-01/15-422-Red), Pre-Trial Chamber II, 23 March 2016, § 6. 88 Public Redacted Version of Corrigendum: Decision on Prosecution Request for Admission of Prior Recorded Testimony, Ruto and Sang (ICC-01/09-01/11-1938-Corr-Red2), Trial Chamber V(A), 19 August 2015, § 60. 89 Decision on Defence Applications for Judgments of Acquittal, Ruto and Sang (ICC-01/09-01/11-2027-Red), Trial Chamber V(A), 5 April 2016, Reasons of Judge Fremr, §§ 147–148; Reasons of Judge Eboe-Osuji, §§ 2 and 8; Dissenting Opinion of Judge Herrera Carbuccia, (ICC-01/09-01/11-2027-AnxI), § 30. 90 Warrant of arrest for Walter Osapiri Barasa, Barasa (ICC-01/09-01/13-1-Red2), Pre-Trial Chamber II, 26 September 2013; Decision on the ‘Prosecution’s Application under Article 58(1) of the Rome Statute’, Gicheru and Bett (ICC-01/09-01/15-1-Red), Pre-Trial Chamber II, 10 September 2015. 91 See e.g., Transcript, Gbagbo and Blé Goudé (ICC-02/11-01/15-T-48-Red2-ENG), Trial Chamber I, 8 June 2016, at 20; Transcript, Gbagbo and Blé Goudé (ICC-02/11-01/15-T-50-Red-ENG), Trial Chamber I, 14 June 2016, at 3; Transcript, Gbagbo and Blé Goudé (ICC-02/11-01/15-T-52-Red-ENG), Trial Chamber I, 16 June 2016, at 91; Transcript, Gbagbo and Blé Goudé (ICC-02/11-01/15-T-36-Red2-ENG) Trial Chamber I, 13 December 2018, at 12. 84

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Can the ICC function without state compliance?  167 meaning that those offences that do not exist under its national laws are allowed to effectively fall into abeyance. As a result, although a person may be accused of committing an Article 70 offence, that conduct might not be recognised as criminal in the domestic laws of the state on whose territory the crime occurred or of which that person is a national. This is important since Article 70(2) also provides that the ‘conditions for providing international cooperation to the Court with respect to its proceedings under this article shall be governed by the domestic laws of the requested State’.92 If a state’s domestic laws do not recognise criminal liability for the offence, not only will that state be unable to submit such case for domestic prosecution,93 it may also refuse to cooperate—because the underlying act is not prohibited in its own laws.94 A second consequence of the application of national laws to the rendering of Article 70 judicial assistance is that the granting of certain intrusive investigative measures by states is normally conditioned upon the level of severity of the underlying act or minimum penalty requirement, in the light of the proportionality principle. As such, even if the underlying act corresponds to a domestic criminal law offence, the execution of a particular Article 70 cooperation request might be refused where, under the law of the requested state, the offence is not considered serious or punishable enough to warrant the investigative measure sought.95 Finally, although an Article 70 case may at the Court’s discretion be transferred to the domestic level,96 no such option is likely to exist where the agents of the state in question are alleged to have been involved in or tolerated their commission. This might render prosecution before the ICC the only option. But given the limited capacity and resources of the Court such cases might also not be prioritised,97 leaving the intended design of Article 70(4) unrealised. Where the viability of the Court’s functions has been threatened by interference or there is a risk of destruction of evidence, several measures could conceivably be taken to mitigate their effects other than lodging Article 70 prosecutions. For example, an investigation into the commission of alleged Article 70 offences may have a preventative impact on the case to which it is connected. Early evidence of offences against the administration of justice may enable a Chamber to take remedial measures to stem and prevent further interference by issuing relevant warnings, ordering the monitoring of communications, sanctioning counsel or removing supporting personnel (such as investigators or other resource persons).98 It may reveal evidence relevant to the reliability of a witness called or evidence submitted by a party, thereby preventing the Chamber from being misled or making flawed factual findings. But more generally, the investigation and/or prosecution of Article 70 offences may serve the goal

See similarly Rule 167(2). See Art. 70(4)(b) ICC Statute, Rule 162(2)(a) ICC RPE. 94 As is well known, double criminality is stipulated as a discretionary basis to refuse cooperation in a number of comparable mutual legal assistance regimes, particularly for intrusive measures: see e.g., Art. 5 1959 European Convention on Mutual Assistance in Criminal Matters; Art. 18(9) 2000 United Nations Convention against Transnational Organized Crime. Double criminality in the Art. 70(4) context presupposes an ‘idem factum’ approach (i.e. based on the factual, rather than legal, qualification of the underlying act) given the anticipated wide variation in municipal characterisation. 95 See e.g., Council of Europe Comm. of Ministers, Recommendation Rec(2005)10 of the Committee of Ministers to Member States on ‘special investigation techniques’ in relation to serious crimes including acts of terrorism, § 5. 96 Art. 70(4) ICC Statute; Rule 162 ICC RPE. 97 See e.g., OTP-ICC, Policy Paper on Case Selection and Prioritisation, 15 September 2016, § 54. 98 Supra notes 83‒86. 92 93

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168  The Elgar companion to the International Criminal Court of general deterrence as well as enabling the Court to place other victims at risk of interference on notice of the modus operandi to which they might be exposed. Another preventative measure to preserve evidence in advance of any trial is the possibility for the PTC to order certain measures, at the request of the Prosecution, the Defence or at its own initiative, to preserve and/or collect evidence under the control of the Chamber where there is a unique investigative opportunity. Article 56 proceedings have been used to conduct exhumations and forensic examination of alleged crimes scenes and artefacts where there was a risk of alteration or destruction.99 The provision has also been used to allow the PTC to hear, pursuant to examination and cross-examination by the parties, the testimony of vulnerable witnesses considered at risk of interference, preserving such testimony for their potential subsequent admission at trial. The procedure was adopted in Ongwen to allow the Pre-Trial Chamber to hear, prior to even confirmation of the charges, the testimony of a number of female SGBC witnesses considered at risk of interference, thereby preserving their testimony and allowing it to be subsequently submitted at trial.100 Taking early preventative measures of this kind to preserve testimony helps to pre-empt interference by securing the evidence before it is potentially tampered with or lost.101 Conversely, where interference has already occurred, an amendment of the rules now allows the introduction, under certain controlling conditions, of the prior recorded testimony of a witness, such as a recorded interview given during investigations.102 Other physical measures to protect the safety and security of witnesses and/or their family members may be particularly important during the early phase of investigations, or even prior to the formal start of investigations. In the Burundi situation the PTC, after finding that state agents had sought to infiltrate and attack victims and witnesses at home and abroad, held that protective measures could have been taken by the Prosecutor in conjunction with the

99 See e.g., ‘Decision on the Prosecutor’s Request for Measures under Article 56’, Lubanga (ICC-01/04-21), Pre-Trial Chamber I, 26 April 2005. 100 Decision on the ‘Prosecution application for the Pre-Trial Chamber to preserve evidence and take measures under article 56 of the Rome Statute’, Ongwen (ICC-02/04-01/15-277-Red), Pre-Trial Chamber II, 27 July 2015; Decision on the “Second Prosecution application to the Pre-Trial Chamber to preserve evidence and take measures under article 56 of the Rome Statute”, Ongwen (ICC-02/04-01/15-316-Red), Pre-Trial Chamber II, 12 October 2015; Decision on the confirmation of charges, Ongwen (ICC-02/04-01/15-422-Red), Pre-Trial Chamber II, 23 March 2016, §§ 6, 102 et seq.; Decision on Request to Admit Evidence Preserved Under Article 56 of the Statute, Ongwen (ICC-02/04-01/15-520), Trial Chamber IX, 10 August 2016. Compare Decision on the prosecution’s application pursuant to article 56, Ruto and Sang (ICC-01/09-01/11-558-Red), Trial Chamber V, 18 January 2013, declining to adopt Art. 56 measures to hear the testimony of a witness at alleged security and health risks. 101 For a review see P. Bradfield, ‘Preserving Vulnerable Evidence at the International Criminal Court – the Article 56 Milestone in Ongwen’, 19(3) International Criminal Law Review (Intl Crim L Rev) (2019) 373–411. 102 Rule 68(2)(d), ICC RPE, as adopted by ICC-ASP/12/Res.7 (2013). For a definition of ‘prior recorded statement’ see Art. 69(2) (‘recorded testimony of a witness by means of video or audio technology, as well as the introduction of documents or written transcripts’). See generally Judgment on the appeals of Mr. William Samoei Ruto and Mr. Joshua Arap Sang against the decision of Trial Chamber V(A) of 19 August 2015 entitled ‘Decision on Prosecution Request for Admission of Prior Recorded Testimony’, Ruto and Sang (ICC-01/09-01/11-2024), Appeals Chamber, 12 February 2016.

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Can the ICC function without state compliance?  169 Victims and Witnesses Unit even before an investigation was authorised.103 Building upon the Chamber’s reasoning in Burundi, it might conceivably be possible to seek protective measures to preserve other types of information or evidence also before an investigation has opened: for example by means of a request to preserve records or prevent the destruction of evidence which may be relevant for either future ICC or national proceedings. This would also be generally in line with the goal of Article 18(6), which foresees that measures to preserve evidence may be taken at the earliest stage in the proceedings in the period directly after the opening of investigations.104 As with the other measures outlined above, this type of early intervention could help stem the risk of interference by taking steps to shore up evidence before it is potentially tampered with or destroyed. 3.C.2 Immunities vs absconding The issue which resulted in the largest number of non-compliance decisions to date concerned the cooperation duties of a number of States Parties to arrest and surrender Omar Al Bashir, then incumbent President of Sudan (a non-party state), to the ICC. Although the issue of head of state is normally considered in the context of Part 2 of the Statute, the main controversy that arose was not so much the authority of the Court to determine the irrelevance of the official capacity per se, but on the scope of the cooperation duties incumbent on requested States Parties under Part 9 to give effect to a Court warrant issued against an official of a non-party state. For example, in its submissions in the case of Al Bashir, South Africa did not contest the exercise of criminal jurisdiction by the Court over President Bashir, but doubted whether South Africa was under an obligation to give effect to the warrant without violating its competing duties towards the Sudan, a non-party state, in view of conflicting treaty law and/ or custom.105 The issues at stake thus fell within the domain of judicial assistance, even if discerning the inter-relationship between Article 27 and Article 98 was essential to answering that question either way. This question has been ventilated at length in the legal literature and a number of decisions of the Court,106 including its last articulation in the decisions issued against South Africa and

Situation in the Republic of Burundi, Public Redacted Version of ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Burundi’ (ICC-01/17-X-9-US-Exp), Pre-Trial Chamber III, 25 October 2017 (Public Redacted Version ICC-01/17-9-Red, 9 November 2017 ), § 15 (noting the open-ended formulation of Art. 68 which provides that appropriate measures should be taken ‘particularly during’, but not limited to, the investigation and prosecution of crimes). 104 Art. 18(6) in relevant part provides: ‘… the Prosecutor may, on an exceptional basis, seek authority from the Pre-Trial Chamber to pursue necessary investigative steps for the purpose of preserving evidence where there is a unique opportunity to obtain important evidence or there is a significant risk that such evidence may not be subsequently available’. 105 Submission from the Government of the Republic of South Africa for the purposes of proceedings under Article 87(7) of the Rome Statute, Al Bashir (ICC-02/05-01/09-290), 17 March 2017, at 18, § 52.2. See also Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir, Al Bashir (ICC-02/05-01/09-302), Pre-Trial Chamber II, 6 July 2017, §§ 69–70. 106 For a classic articulation of the debate, see opposing views set forth in P. Gaeta, ‘Does President Al Bashir Enjoy Immunity from Arrest?’, 7 Journal of International Criminal Justice (JICJ) (2009) 315–332; D. Akande, ‘The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities’, 7 JICJ (2009) 333–352. 103

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170  The Elgar companion to the International Criminal Court Jordan.107 This subsection focusses on a different issue, namely: those interim measures that a State Party should take pending the resolution of an asserted immunity claim on its merits. This is because failure by a requested state to take interim measures to prevent a person absconding from its territory would arguably itself constitute an act of non-cooperation, by prejudging and potentially nullifying the outcome of any subsequent ruling. In other words, if a requested state could also defer actual arrest, thereby allowing a person to evade capture, this would create an irreversible situation that could not be corrected even if the Court were to subsequently find against the merits of the state’s arguments, thereby potentially defeating the purpose of the Article 98 procedure.108 The logic of requiring a requested state to take such interim measures stems from the various statutory provisions governing arrest and surrender. Indeed, none of these provisions allows a requested state to deny arrest (i.e. measures to restrict the person’s liberty and prevent absconding), but regulate only possible exceptions to a person’s surrender (whether immediate or absolute), subject to relevant rulings by the Court. Moreover, these provisions assume that the Court remains the master of its own process and that the requested state will undertake the necessary measures to ensure the person’s availability pending a determination on the merits. This is borne out by the following provisions: ●● Under Article 19(8)(c), pending a ruling on admissibility, the Prosecutor may seek a ruling to prevent a person absconding. Notably, such interim relief applies to a person against whom a warrant application has been requested, but is still pending.109 Notably, the Prosecutor can seek, and states are required to enforce, such interim measures even prior to an arrest warrant being actually issued. 107 Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir, Al Bashir (ICC-02/05-01/09-302), Pre-Trial Chamber II, 6 July 2017; Decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender or Omar Al-Bashir, Al Bashir (ICC-02/05-01/09-309), 11 December 2017; Judgment in the Jordan Referral re Al-Bashir Appeal, Al Bashir (ICC-02/05-01/09-397), ICC Appeals Chamber, 6 May 2019. 108 See e.g., Decision on the Request of Mr. Bemba to Give Suspensive Effect to the Appeal Against the ‘Decision on the Admissibility and Abuse of Process Challenges’, Bemba, ICC-01/05-01/08-817, Appeals Chamber, 9 July 2010, § 11 (discussing the rationale for suspensive effect under the Court’s case law). See also the extensive jurisprudence of the ICJ on provisional measures (holding inter alia the power to indicate provisional measures ‘has as its object the preservation of the respective rights claimed by the parties in a case, pending its decision on the merits thereof’; ‘to preserve by such measures the rights which may subsequently be adjudged by it to belong to either party’; ‘the rights asserted by the party requesting such measures [must be] at least plausible’, and ‘a link must exist between the rights whose protection is sought and the provisional measures being requested’ (Provisional Measures, Immunities and Criminal Proceedings (Equatorial Guinea v. France), 7 December 2016, ICJ Rep 2016 (II), § 71; Provisional Measures, Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russian Federation), 17 April 2017, ICJ General List No 166, § 63), while ‘such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court’, Judgment, LaGrand (Germany v US), 27 June 2001, ICJ Rep 2001, § 102). 109 Art. 19(8) provides: ‘Pending a ruling by the Court, the Prosecutor may seek authority from the Court: … (c) In cooperation with the relevant States, to prevent the absconding of persons in respect of whom the Prosecutor has already requested a warrant of arrest under article 58’ (emphasis added).

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Can the ICC function without state compliance?  171 ●● After the warrant has been issued by the Pre-Trial Chamber, a State Party receiving the request for arrest and surrender ‘shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9’ (emphasis added).110 Moreover, any question of interim release by the surrendering state pending execution of the request can only take place after considering, inter alia, ‘whether necessary safeguards exist to ensure that the custodial State can fulfil its duty to surrender the person to the Court’ and the Pre-Trial Chamber’s recommendations on ‘measures to prevent the escape of the person’.111 ●● Although under Article 89(2), ‘the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility’ (emphasis added), the provision makes no mention of arrests. This makes sense if one considers the formal and public (and potentially lengthy) nature of admissibility proceedings: if postponement could also apply to the ‘arrest’ portion of the request, the suspect would simply abscond before any decision was rendered.112 ●● Where the requested state receives a competing extradition request, it can proceed to deal with the extradition request while admissibility is pending ‘but shall not extradite the person until the Court has determined that the case is inadmissible’ (emphasis added).113 Again, this assumes that the suspect is under some form of judicial control pending a determination on where he/she should be sent. Set in the context of the statutory scheme, Article 98 paragraphs (1) and (2) similarly provide, ‘[t]he Court may not proceed with the request for surrender’ (emphasis added), but again make no mention of ‘arrest’. It appears unsatisfactory to suggest the omission is incidental and has no legal significance. The necessary implication of the terms proceed with surrender is that: (i) the request for arrest and surrender has already been issued; (ii) the arrest component of the request has been executed; and (iii) what remains to be determined is whether the Court can proceed with the surrender portion of the request, upon being notified or apprised of issues falling within the scope of Article 98(1)–(2).114 By contrast, Article 98 does not say ‘the Court shall not transmit a request for arrest and surrender pending …’, nor (assuming the Court had already transmitted its request) ‘the Court shall withdraw its request for arrest and surrender pending …’. This also makes sense of the Court’s functions and powers and the duties of States Parties to give effect to its rulings. If it is the Court that rules on the application of Article 98, 115 and if the Court might rule that the request for surrender would not ‘require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State’, the provision would

Art. 59(1) ICC Statute. Art. 59(4)–(5) ICC Statute. 112 Relatedly, Art. 95, which provides that a requested state may postpone the execution of a request under Part 9 pending an admissibility challenge, provides that such postponement will not affect the execution of ongoing measures ordered by the Court. Arguably, one such measure is the duty to prevent a suspect absconding. 113 Art. 90(3) ICC Statute. 114 Rule 195 ICC RPE. 115 Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir, Al Bashir (ICC-02/05-01/09-302), Pre-Trial Chamber II, 6 July 2017, §§ 105, 115. 110 111

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172  The Elgar companion to the International Criminal Court be rendered ineffective if the requested state had, in the meantime, failed to take any measures to prevent the person absconding. If no such measures have been adopted, any subsequent ruling would be rendered redundant.116 Lastly, this also accords with domestic inter-state practice. Where there is an inter-state objection (by a third state) to a person’s extradition to another state, the requested state will typically hold the person sought under some form of judicial control to prevent his/her departure pending a determination on the merits.117 Accordingly, if the remedy of providing an interim injunction was implemented by States Parties, the seeking of a ruling under Article 98, or the triggering of consultations under Article 97, could not become a procedural vehicle to nullify the duty to arrest, but would instead regulate only the Court’s powers and the state’s duty to proceed with surrender pending a resolution of the merits. This would go some way to making the Article 98 procedure effective and ensuring compliance before, and not after, a suspect leaves a state’s territory. 3.D

Judicial Measures

3.D.1 Non-compliance finding and referral Coming towards the end of a statutory scheme that encourages early notice/consultations/ problem solving/preventative steps, the most obvious remedy for non-compliance, though not necessarily the most effective,118 is for the Court to enter a judicial finding and to refer the matter to the ASP and/or the Security Council. To trigger such a finding, a state’s failure to render its cooperation duties must have ‘prevent[ed] the Court from exercising its functions and powers under this Statute’.119 According to the Appeals Chamber, the Chamber seized of the matter has the discretion both to make such a finding and also on whether it is appropriate to refer the matter.120 The aim of a referral is not primarily to sanction the state concerned: it may be ‘value-neutral and not necessarily intended to cast a negative light on the conduct of a State’.121 Instead, ‘the ultimate goal [of a referral] is to obtain cooperation’, namely ‘to either seek assistance from external actors to obtain the requested cooperation or otherwise address the lack of cooperation from the requested State’.122 Factors relevant to making a referral include ‘whether external actors could indeed provide concrete assistance to obtain the cooperation requested taking into account the form and content of the cooperation; whether the referral would provide an incentive for cooperation by the requested State; whether it would instead be beneficial to engage in further 116 The same logic would apply with regard to consultations triggered by a state with the Court under Art. 97(c). 117 For a well-known example, see the case of Augusto Pinochet, held in the UK under judicial control (house arrest) pending a determination by domestic courts on the immunity claim brought by Chile opposing his extradition to Spain; R. v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet, R. v. Evans and Another and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet, Judgment, (No 3) [2000] 1 AC 147 (HL). 118 See below note 123 and accompanying text. 119 Art. 87(5) and 87(7). 120 Judgment on the Prosecutor’s appeal against Trial Chamber V(B)’s ‘Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute’, Kenyatta (ICC-01/09-02/11-1032), 19 August 2015, § 53. 121 Ibid. 122 Ibid.

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Can the ICC function without state compliance?  173 consultations with the requested State; and …’, in an apparent nod to the experience of the ICTY discussed above, ‘ … whether more effective external actions may be taken by actors other than the ASP or the Security Council, such as third States or international or regional organisations’.123 In this context, the Appeals Chamber emphasised that a referral might be sought ‘when the Chamber concludes that it is the most effective way of obtaining cooperation in the concrete circumstances at hand’, noting that in other circumstances a Chamber may conclude that ‘referral may not be an effective means to address the lack of cooperation in the specific context of the case’.124 As to the response of the ASP to date, although Article 112(f) provides that the ASP may ‘[c]onsider pursuant to article 87, paragraphs 5 and 7, any question relating to non-cooperation’, the body has yet to consider or take any specific remedial measures in relation to the numerous referrals of non-compliance transmitted to it.125 The ASP has instead focussed on developing procedures for non-compliance rather than taking concrete measures in relation to notifications received.126 This includes measures for the promotion of a dialogue with non-cooperating states, advocating the avoidance of recurrence, and other informal measures such as the various good offices activities of the President of the Assembly.127 The lack of concrete action in relation to the specific referrals received, however, has to date rendered this statutory based remedy largely ineffective. Judicial findings of non-compliance reported to the Security Council in relation to situations referred by it to the Court have similarly failed to elicit remedial measures. Notwithstanding the broad range of enforcement options available to the Security Council, this impasse appears particularly conspicuous given the availability of specific sanctioning mechanisms that already exist. In particular, in relation to both Libya and Sudan, the Security Council has established under a Chapter VII mandate a Sanctions Committee (consisting of the 15 members of the Council) that can require all UN Member States to freeze the assets of and impose travel bans against persons who meet certain designation criteria. This includes persons who ‘commit violations of international humanitarian or human rights law or other

Ibid. Ibid. at § 51 (emphasis added). See similarly Decision on the ‘Request for Leave to Appeal the Pre-Trial Chamber’s Failure to Issue a Decision’ filed by the Defence of Saif Al-Islam Gaddafi, Al-Islam Gaddafi (ICC-01/11-01/11-556), 10 June 2014, § 24 (‘It is worth recalling that making a finding of non-cooperation by a State on the part of the Court is neither a mandatory action, nor necessarily the most effective one in all circumstances’). 125 For a listing of all non-compliance referrals (to date 16) see https://​asp​.icc​-cpi​.int/​en​_menus/​asp/​ non​-cooperation/​pages/​default​.aspx. 126 ASP, Assembly Procedures Relating to Non-Cooperation (ICCASP/10/Res.5), 12 December 2011, as amended by ASP, Strengthening the International Criminal Court and the Assembly of States Parties (ICC-ASP/11/Res.8.Annex 1), 21 November 2012, at 6. For a review see G. Sluiter and S. Talontsi, ‘Credible and Authoritative Enforcement of State Cooperation with the International Criminal Court’, in O. Bekou and D. Birkett (eds), Cooperation and the International Criminal Court: Perspectives from Theory and Practice (Leiden: Brill Nijhoff, 2016), at 105–108; G. Sluiter, ‘Enforcing Cooperation: Did the Drafters Approach It the Wrong Way?’, 16 JICJ (2018) 393–398. 127 See e.g., Report of the Bureau on non-cooperation, Addendum, Annex II: ‘Toolkit for the implementation of the informal dimension of the Assembly procedures relating to non-cooperation’ (ICC-ASP/15/31/Add.1), 9 November 2016. See also Report of the Bureau on non-cooperation (ICC-ASP/17/31), 28 November 2018, §§ 30–34 on ‘[a]ctions undertaken by the President of the Assembly and the Bureau, States Parties and other stakeholders’. 123 124

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174  The Elgar companion to the International Criminal Court atrocities’128 or are ‘[i]nvolved in or complicit in ordering, controlling, or otherwise directing, the commission of serious human rights abuses …’.129 Despite such subject-matter convergence between its referrals to the ICC and its targeted sanctions—these two mandates being adopted in sister resolutions for Darfur130 and as part of the same resolution for Libya131—the Security Council has failed to link one to the other. Sanctions mechanisms also exist in other ICC situations not referred by the Security Council, but also adopted as Chapter VII responses, including with respect to the DRC, CAR and Mali, where a similar convergence has not been operationalised.132 In terms of process, moreover, although any UN Member State may submit to the Sanctions Committee the names of persons meeting the designation criteria, no particular relevance appears to be given to the issuance of an arrest warrant by the ICC for such crimes. The discrepancy seems particularly odd in an era when the decisions by the Security Council to impose targeting sanctions on individuals without adequate due process guarantees has come under increasingly scrutiny,133 compared to the judicial review required to issue an ICC warrant. It might be an open question whether the issuance of a travel ban or an asset freeze against a specific ICC fugitive might hamper arrest efforts or contribute to compliance. Nonetheless, the apparent inability of the Security Council to foster coordination and coherence between two of its own country-specific coercive tools illustrates the fragmented nature of existing governance structures and tends to diminish the prospects for the non-compliance referral mechanism to be effective. Concerns over the functioning of the mechanism are also apparent from observations from the Court when declining to refer non-compliance to the ASP and the Security Council, in part due to its inconsequence.134 In a 2017 domestic ruling in Uganda also, the High Court declined to order the arrest of President Bashir, in part, by stating: ‘Uganda is awaiting sanctions by the UN security council for failing to arrest President Bashir in May last year. Therefore, it

SC Res. 1591, 29 March 2005, § 3(c). SC Res. 1970 (2011), § 22. 130 SC Res. 1591, 29 March 2005; SC Res. 1593, 31 March 2005. 131 See SC Res. 1970 (2011), §§ 4, 15, and 17. 132 To date, any congruence between persons who are the subject of ICC warrants and the target of Security Council sanctions has been accidental, due to them having been previously listed by the Sanctions Committee prior to the issuance of relevant ICC warrants. For a consolidated list of persons and entities subject to Security Council sanctions, see https://​www​.un​.org/​securitycouncil/​content/​un​-sc​ -consolidated​-list (visited 28 December 2018). 133 See e.g., Al-Dulimi and Montana Management Inc. v Switzerland, 21 June 2016 (App No 5809/08), §§ 150–154; K. Prost, ‘A Reflection on Innovations in the Security Council: The International Tribunals, Counterterrorism, and the Office of the Ombudsperson’, 46 Case W. Res. J. Int’l L. (2014), 465–481. See also SC Res. 2253 (2015) issued in the context of the ISIL (Da’esh) and Al-Qaida Sanctions List, ‘welcoming improvements to the Committee’s procedures’ and expressing the Security Council’s ‘intent to continue efforts to ensure that procedures are fair and clear, and recognizing the challenges, both legal and otherwise, to the measures implemented by Member States under paragraph 2 of this resolution (Asset Freeze, Travel Ban, Arms Embargo)’. 134 Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir, Al Bashir (ICC-02/05-01/09-302), Pre-Trial Chamber II, 6 July 2017, § 138. See also Statement of ICC Prosecutor Fatou Bensouda to the United Nations Security Council on the Situation in Darfur, Sudan pursuant to UNSCR 1593 (2005), 9 June 2016. 128 129

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Can the ICC function without state compliance?  175 is unnecessary to issue an immediate arrest warrant against president Bashir.’135 Rather than contributing to specific or general deterrence, it is perhaps unsurprising that inaction by the ASP and the Security Council on non-cooperation referrals has not only deprived the ICC of a statutory-based mechanism to remedy non-compliance, but may have contributed to its recurrence. 3.D.2 Drawing of inferences The Statute provides as one other judicial remedy where a state does fulfil its cooperation duties the drawing of interferences. This possibility is regulated under the sub-category of non-cooperation decisions related to national security. In particular, in the case of a national security claim, where cooperative means between the Court and the requested state have been exhausted, the Chamber may, other than making a finding of non-compliance and referring the matter, draw an inference at trial as to the existence or non-existence of a certain fact that is relevant to the guilt or innocence of the accused.136 The provision was inserted during the drafting of the Statute in order to prevent the Court from being paralysed in its truth-discovery functions where it considered that the national security claim, or the state’s efforts to resolve it, had not been undertaken in good faith.137 This was considered particularly relevant given a national security claim could conceivably be raised in relation to any matter under investigation by the Court.138 As a result, the Court has the possibility to draw an interference as a direct remedy in addition to any indirect remedy for non-compliance it may seek from the ASP and/or the Security Council. The practice of drawing inferences from the lack of information provided by a state, including on the basis of pleas of official secrecy or national security prejudice, has been followed in a series of well-known cases at the ECtHR and the IACtHR. Where the events in issue lie within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, the ECtHR has held that strong presumptions of fact will arise in respect of injuries and death occurring during that detention. As a result, the burden of proof in such a case may shift on to the authorities to provide satisfactory and convincing explanations, in the absence of which, the Court may draw the inference against the state that the allegation is proven.139 For example, this approach has been applied where, although it has not been proved that a person has been taken into custody by the authorities, it is possible to establish that he or she was officially summoned by the authorities, entered a place under their control and has not been Justice Moses Mukiibi, International Crimes Division (ICD), High Court, 15 November 2017, cited in ‘High Court Dismisses Bashir Case’, The Judiciary, The Republic of Uganda: available at http://​ www​.judiciary​.go​.ug/​data/​incourt/​143/​High​%20Court​%20Dismisses​%20Bashir​%20Case​.html. 136 Specifically, Art. 72(7) provides that the Court ‘may make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances’ after ruling that ‘the evidence is relevant and necessary for the establishment of the guilt or innocence of the accused’. 137 See generally R. Rastan, ‘Article 72’, in O. Triffterer and K. Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary (3rd edn., Oxford: C.H. Beck, Hart Publishing, 2016), at 1812, mn.45. 138 Ibid. 139 El-Masri v. The former Yugoslav Republic of Macedonia, ECtHR (2012) No. 39630/09, § 152, citing Çakıcı v. Turkey, ECtHR (1999) No. 23657/94, § 85; Salman v. Turkey, ECtHR (2000) No. 21986/93, § 100; Rupa v. Romania (no. 1), ECtHR (2008), No. 58478/00, § 97; Orhan v. Turkey, ECHR (2002) No. 25656/94, § 274. 135

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176  The Elgar companion to the International Criminal Court seen since. The ECtHR has stated that in such circumstances, the onus is on the government to provide a plausible and satisfactory explanation as to what happened on the premises and to show that the person concerned was not detained by the authorities, but left the premises without subsequently being deprived of his or her liberty.140 In this context, the ECtHR has required proof in the form of ‘the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact’ before the burden of proof is shifted to the respondent government, while observing ‘the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake’.141 The IACtHR has similarly allowed for a shift in the burden of proof in a series of well-known cases concerning enforced disappearance.142 Clearly, the highly specific circumstances governing state responsibility with which both regional courts are engaged are not easily transferable to the criminal law context. As discussed elsewhere, the ICC will have to consider whether any of the reasoning applied by the ECtHR and IACtHR for the drawing of inferences from state inaction or silence is applicable to its own context.143 Nonetheless, the question turned to below is whether (rather than how) the drawing of interferences could be applied outside the sub-category of non-cooperation related to national security, to non-compliance decisions under Part 9 more generally. Evidently, a number of similarities are discernible in the underlying context and rationale for Article 72 and Part 9 as a whole. Both generally treat the problem arising from the juxtaposition of the Court’s de jure authority to determine the scope of a state’s cooperation duties and the requested state’s de facto ability to refuse compliance and so frustrate that authority’s effect.144 Both direct the Court and the requested state to resolve problems through cooperative means, given the absence of coercive powers on the part of the Court to directly compel, on pain of sanction, compliance by the state concerned.145 Both foresee that the Court will be the ultimate arbiter of whether the requested state has fulfilled its cooperation obligations and whether to find it in non-compliance and to refer the matter— requiring equally that the state’s failure to cooperate must have prevented the Court from exercising its functions and powers.146 And both Article 72 and Part 9 more generally might concern requests for information that lie exclusively in the hands of the requested state, but is nonetheless relevant at trial for the

140 El Masri, § 153, citing Tanış and Others v. Turkey, ECtHR (2005) No. 65899/01, § 160; Yusupova and Zaurbekov v. Russia, ECtHR (2008) No. 22057/02, § 52; Matayeva and Dadayeva v. Russia, ECtHR (2011) No. 49076/06, § 85. 141 El-Masri v. The former Yugoslav Republic of Macedonia, ECtHR (2012) No. 39630/09, §§ 151–152; Creangă v. Romania, ECtHR (2012) No. 29226/03 § 90; Öcalan v. Turkey, ECtHR (2005) No. 46221/99, § 90. 142 Judgment, Velasquez Rodriguez v. Honduras, IACtHR (1988), §§ 147–148; Judgment, Neira Alegria and others. v. Peru, IACtHR (1995), § 65. 143 See R. Rastan, ‘Article 72’, in O. Triffterer and K. Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary (3rd edn., Oxford: Hart Publishing, 2016), at 1813–1815, at mn. 48. 144 See discussion in D. Piragoff, ‘Protection of National Security Information’, in R. Lee (ed.), The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations and Results (1st edn., The Hague: Kluwer Law International, 1999), at 280–281. 145 Compare Art. 72(5) and Arts 93(5), 96, 97 ICC Statute. 146 Arts 72(7)(a), 87(5) and 87(7) ICC Statute.

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Can the ICC function without state compliance?  177 determination of the truth. However, while Article 72 expressly empowers the Court with the judicial remedy of drawing certain inferences, Part 9 does not. In such circumstances, it might be argued that the Court should not have greater powers to draw an inference when the requested state has invoked national security prejudice than when that state has not. Indeed, such discrepancy has the potential to encourage states not to invoke Article 72, but to simply refuse compliance generically under Part 9, since the consequences appear less costly.147 In this vein, although not expressly provided for, it might be open for Chambers of the Court to determine that they must possess the same powers with respect to other unfulfilled cooperation requests as they do under Article 72: to enable the possibility of drawing an inference as to the existence or non-existence of a fact that is relevant to issues of guilt or innocence at trial, should a threshold similar to that set out in Article 72(7) be met. As noted earlier, any such inference would, of course, need to be drawn advisedly, with regard to the same considerations as apply in the context of Article 72(7).148 At the same time, the Appeals Chamber at the ICC, in contrast to the practice of the ad hoc Tribunals, has generally disapproved of the invocation of inherent powers. In particular, it has distinguished the detailed legislative scheme chosen by the drafters149 and set a high threshold for determining whether there is a lacuna in the Court’s primary sources of law.150 To invoke inherent powers, the Court would need to determine whether a ‘gap is noticeable in the Statute with regard to the power claimed in the sense of an objective not being given effect to by its provisions’.151 At issue here would not be so much the ‘nature and type of the concerned

In this context, it may be useful to recall that the triggering of the Art. 72 regime is dependent on the state whose national security is prejudiced, since sub-paragraph 1 makes this contingent on ‘the opinion of that State’; Decision in Response to an Article 72(4) Intervention, Ongwen (ICC-02/04-01/15-1267-Corr2), Trial Chamber IX, 1 June 2018, § 17. Absent such an assertion, it is doubtful whether the Chamber has the power to trigger the Art. 72 regime sua sponte in order to determine that a state’s non-cooperation under Part 9 should properly be treated under the Art. 72 regime. 148 See discussion in R. Rastan, ‘Article 72’, in O. Triffterer and K. Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary (3rd edn., Oxford: C.H. Beck, Hart Publishing, 2016), at 1813–1815, at mns. 46–49 (noting the considerable caution with which any inference adverse to the accused will need to be treated; while also observing that if the inference is understood to apply towards evidence that has been deemed relevant and necessary in view of its potential incriminating or exonerating value, there is no reason why the Chamber could not draw an inference in the same way it would treat any type of circumstantial evidence and assign it, together with other relevant corroborating evidence, such weight and probative value as it may determine in the context of its free evaluation of the totality of the evidence at the end of the trial). 149 Judgment on the appeals of the Prosecutor, Mr. Jean-Pierre Bemba Gombo, Mr. Fidèle Babala Wandu and Mr. Narcisse Arido against the decision of Trial Chamber VII entitled ‘Decision on Sentence pursuant to Article 76 of the Statute’, Bemba et al. (ICC-01/05-01/13-2276-Red), Appeals Chamber, 8 March 2018, § 79 (observing ‘the Appeals Chamber … emphasises that contrary to other international courts and tribunals, this Court’s functions are regulated by a comprehensive legal framework in which its powers have been deliberately spelt out by the drafters to a great degree of detail, thus leaving little room to the invocation of “inherent powers” in the proceedings before it’). 150 Ibid. at § 76 (observing ‘a lacuna does not exist when … a matter is exhaustively defined in the legal instruments of the Court’ and ‘not every “silence” in the legal framework of the Court constitutes a lacuna’). 151 Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, Situation in the Democratic Republic of the Congo, (ICC-01/04-168), 13 July 2006, § 39; Judgment on the appeals of the Prosecutor, Mr. Jean-Pierre Bemba Gombo, Mr. Fidèle Babala Wandu and Mr. Narcisse Arido against the decision of 147

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178  The Elgar companion to the International Criminal Court power’, since this is a power already provided for in the Statute, but rather ‘the matter to which it relates’, i.e. whether it can apply to all failed cooperation duties and not only those incurring national security prejudice.152 Specifically, the Court would need to determine whether the objective not being given effect by the provisions of Part 9 is the possibility for a Chamber to unblock, however partially, the impasse created through state intransigence with respect to the Court’s truth-discovery functions, as it may under Article 72. 3.E

Case Selection

As a final potential remedy, the Prosecutor could simply avoid pursing cases that exhibit limited cooperation prospects. This option appears to be foreshadowed in the Prosecutor’s policy paper on case selection and prioritisation which identifies as prioritisation criteria: ‘international cooperation and judicial assistance to support the Office’s activities’ and ‘the potential to secure the appearance of suspects before the Court, either by arrest and surrender or pursuant to a summons’.153 This suggests that the Prosecutor might deprioritise or perhaps even abandon those more ‘difficult’ cases where cooperation is unlikely. Indeed, a considerable body of critique argues that this is what the Prosecutor has done to date, by pursuing cases against non-state actors in self-referred situations in order to maintain the cooperation of the incumbent government.154 Other factors, however, suggests this outcome might not be so straightforward. In particular, the policy paper accepts that these and other operational considerations ‘will typically arise in all of the Office’s activities and routinely require the adoption of measures to mitigate and manage their effect’.155 The policy also lists other prioritisation criteria such as ‘the impact of investigations and prosecutions on the victims of the crimes and affected communities’, ‘the impact of investigations and prosecutions on ongoing criminality and/or their contribution to the prevention of crimes’; ‘the impact and the ability of the Office to pursue cases involving opposing parties to a conflict in parallel or on a sequential basis’,156 and insists that prioritisa-

Trial Chamber VII entitled ‘Decision on Sentence pursuant to Article 76 of the Statute’, Bemba et al. (ICC-01/05-01/13-2276-Red), Appeals Chamber, 8 March 2018, § 76 (further noting ‘The nature and type of the concerned power, as well as of the matter to which it relates, are relevant considerations to determine whether there are gaps justifying recourse to subsidiary sources of law or invocation of “inherent powers”.’). 152 Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, Situation in the Democratic Republic of the Congo, (ICC-01/04-168), 13 July 2006, § 39; Judgment on the appeals of the Prosecutor, Mr. Jean-Pierre Bemba Gombo, Mr. Fidèle Babala Wandu and Mr. Narcisse Arido against the decision of Trial Chamber VII entitled ‘Decision on Sentence pursuant to Article 76 of the Statute’, Bemba et al. (ICC-01/05-01/13-2276-Red), Appeals Chamber, 8 March 2018, § 76 (‘The nature and type of the concerned power, as well as of the matter to which it relates, are relevant considerations to determine whether there are gaps justifying recourse to subsidiary sources of law or invocation of “inherent powers”.’). 153 OTP-ICC, Policy Paper on Case Selection and Prioritisation, 15 September 2016, § 51. 154 See e.g., W. W. Schabas, ‘Victor’s Justice: Selecting “Situations” at the International Criminal Court’, 43 John Marshall Law Review (2010) 535–552. 155 OTP-ICC, Policy Paper on Case Selection and Prioritisation, 15 September 2016, § 51. 156 Ibid. at § 50.

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Can the ICC function without state compliance?  179 tion should not be equated with ‘de-selection’.157 This would suggest that a lack of cooperation could not form the sole basis to not investigate a case under the stated policy. Practice also indicates cases that have been pursued where cooperation has been tenuous and the likelihood of arrests remote, although this has also elicited a different critique focussed on the ICC’s perceived powerlessness and the absence of pragmatic calculus.158 Clearly, since the ICC will almost always inquire into allegations against sitting state officials and/or powerful non-state actors, its scope of action and perceived legitimacy would be severely constrained were it to abdicate its independence and impartiality by pursuing only cases that enjoyed state support. While practical realities governing access to evidence and arrest opportunities might lead to one case being prioritised over another, there appears to be limited latitude for completely avoiding ‘difficult’ cases with poor cooperation prospects. And in many situations such a choice is not possible: whether investigating allegations against both sides of the socio-political divide in Kenya, Côte d’Ivoire or CAR II; or against members of the ruling regime in Burundi or Myanmar; or members of Georgian or Russian armed forces or the breakaway South Ossetian administration; or members of the Taliban, the Afghan security forces, the US armed forces or the CIA—sometimes there are no ‘easy’ cases where cooperation is assured.

4. CONCLUSION This chapter has sought to examine whether and how the Court can function where it fails to obtain cooperation from the state(s) most directly affected by the crimes and ordinarily in the best position to assist it. Whether the measures discussed above will be successful, only mitigate some effects, or be wholly ineffective in remedying non-cooperation will of course depend on the specific circumstances of each case. What is clear is that, as the Court increasingly operates in high risk environments, it will be unable to function or provide any meaningful contribution towards ending impunity unless it can diminish the impact of non-compliance by those same national authorities whose shortcomings it has sought to replace.

Ibid. at § 48. The term ‘prioritisation’ is differentiated in the policy paper from ‘selection’ to govern how ‘cases that meet the selection criteria are rolled-out over time’. 158 Schabas, supra note 154, at 550–551. 157

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8. Taking the opportunity: prosecutorial opportunism and the International Criminal Court Mark Kersten

The decision to prosecute some international criminals but not others has long captured the imagination of scholars, observers, and communities affected by atrocity. Today, it is common to ask: why do prosecutors at the International Criminal Court (ICC) pursue the investigations and the cases that they do? This may seem like an overly simplistic query but, with ‘thousands of crimes and perpetrators within its jurisdiction’, this question—and its battery of proffered answers—has caused ‘much unease’.1 Despite a growing global demand for accountability for international crimes, the ICC has managed to charge just a handful of perpetrators. In some instances, this is due to limitations on the territorial and/or personal jurisdiction of the Court or the resources available to prosecutors.2 But in others, it is not. In situations in which the ICC has intervened and there is evidence of systematic and widespread atrocities, the Court has only charged a tiny fraction of perpetrators and, typically, only one side of a given conflict. So, what, then, makes ICC prosecutors decide to open specific investigations and target certain perpetrators and not others? A rigidly legal hypothesis would suggest that there is a straightforward answer to this question: prosecutors open investigations and identify targets when and where they have sufficient evidence. A common refrain of the ICC Prosecutor is that only the law of the Rome Statute guides the Office of the Prosecutor’s (OTP) decision-making. One could qualify this further by suggesting that, over the first decade-and-a-half of the ICC’s existence, what counts as sufficient evidence has changed. Under the tenure of the Court’s first chief Prosecutor Luis Moreno-Ocampo, arrest warrants were requested when there was sufficient evidence to meet the evidentiary thresholds necessary for an arrest warrant to be issued by judges. More recently, under current chief Prosecutor Fatou Bensouda, the OTP has shifted its prosecutorial strategy, seeking to complete investigations into cases and confirm charges when evidence against potential targets is as ‘trial ready’ as possible.3 In either case, a narrowly legal approach would conclude that, whether specific individuals were targeted, or investigations were opened or not, is entirely a question of the evidence available to prosecutors. A more nuanced hypothesis, one which locates ICC decision-making at the confluence of international law and politics, would suggest that ICC selectivity is in fact strategic. The ICC may justify its decisions through legal terminology and jargon, but it ultimately 1 J. A. Goldston, ‘More Candour about Criteria: The Exercise of Discretion by the Prosecutor of the International Criminal Court’, 8 Journal of International Criminal Justice (JICJ) (2010) 383–406. 2 In the absence of a United Nations Security Council referral, for example, the ICC cannot investigate alleged atrocities committed in Syria or North Korea. 3 See e.g., International Criminal Court, Office of the Prosecutor, Strategic Plan June 2012–2015, 11 October 2013, at 6 (hereafter ‘ICC, Strategic Plan’).

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182  The Elgar companion to the International Criminal Court targets (or does not target) specific perpetrators or opens investigations (or not) following the identification of prosecutorial opportunities.4 These are defined by more than simply the accumulation of sufficient evidence for an arrest warrant or successful trial. A description of the ICC as ‘political’ in this context is not a criticism, but rather an assessment of the court as an international organisation—and not solely a criminal court—with political interests and agency. In this context, the OTP’s decisions are an expression of a negotiation between the institutional interests of the Court and the political interests of the actors, particularly states, on which the Court depends. The core contention of this chapter is that this negotiation of the ICC’s institutional interests produces prosecutorial opportunities; situations are identified for investigation and targets are selected for prosecution based on whether their selection will further the Court’s institutional interests. The theory of prosecutorial opportunism outlined here holds true for both ‘good’ cases (those that lead to accountability) for the ICC as well as ‘bad’ cases (those that do not). The chapter demonstrates this through an assessment of two examples: (1) the unsuccessful prosecutions brought against Kenyan political leaders, particularly Uhuru Kenyatta and William Ruto, for crimes against humanity during Kenya’s 2007‒2008 post-election violence; and (2) the surrender and prosecution of Ahmad al Faqi al Mahdi for the destruction of religious sites in Timbuktu, Mali and the subsequent surrender of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (hereafter ‘Al Hassan’) to the Court. Through an analysis of the ICC’s intervention in northern Uganda and the surrender of Dominic Ongwen, the chapter also shows how states can manipulate OTP prosecutorial opportunism in order to satisfy their own interests. It therefore argues that the ICC must continuously work to ensure that the expression of its institutional interests is not entirely predictable or, in other words, that its strategic decision-making is not so predictable as to permit states to manipulate the Court into overlooking government-perpetrated crimes. The chapter explores each of these examples in turn. First, however, it outlines the ICC’s institutional interests and describes how these determine prosecutorial opportunities within the OTP.

1.

TOWARDS A THEORY OF PROSECUTORIAL OPPORTUNISM

Much attention has been paid to the role of the ICC Prosecutor’s ‘prosecutorial discretion’ in affecting and guiding OTP decision-making—and rightly so.5 Prosecutorial discretion goes to the very heart of the Prosecutor’s ability to act independently of the interests of states and

See M. Kersten, Justice in Conflict—The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace (Oxford: Oxford University Press, 2016) 162–184; see also W. A. Schabas, Unimaginable Atrocities—Justice, Politics, and Rights at the War Crimes Tribunals (Oxford: Oxford University Press, 2012), at 89 (hereafter ‘Schabas, Unimaginable Atrocities’). 5 See e.g., M. R. Brubacher, ‘Prosecutorial Discretion within the International Criminal Court’, 2 JICJ (2004) 71–95; W. A. Schabas, ‘Prosecutorial Discretion v. Judicial Activism at the International Criminal Court’, 6 JICJ (2008) 731–761; C. Davis, ‘Political Considerations in Prosecutorial Discretion at the International Criminal Court’, 15 International Criminal Law Review (Int Crim L Rev) (2015) 170–187. 4

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Prosecutorial opportunism and the International Criminal Court  183 the UN Security Council.6 Broadly, prosecutorial discretion applies to both the situations and the specific cases the prosecutor seeks to investigate and prosecute. As the cornerstone of the Prosecutor’s independence, prosecutorial discretion was designed to act as a firewall between the potential undue political influence of states and the decisions of the Prosecutor, preventing any states from determining the OTP’s selection of situations and cases. While some states and groups praise this prosecutorial independence as groundbreaking and central to the raison d’être of the Court, others, notably the US, have historically expressed fears that the independence of prosecutorial decision-making would result in a maverick Prosecutor pursuing highly politicized investigations and prosecutions.7 However, as the analysis below makes clear, the ICC Prosecutor can neither act in a manner fully independent of the political actors upon which the institution depends, nor is OTP decision-making a mere reflection of the interests of states. Reality, as it so often does, falls between these extremes. Prosecutorial discretion is necessarily practised through a negotiation of the ICC’s institutional interests and the interests of political actors upon which the Court relies. It should be stressed that the Prosecutor has no obligation to target all actors who may have perpetrated crimes under the ICC’s jurisdiction—even those sufficiently grave to justify ICC scrutiny.8 As the OTP notes, doing so would be ‘both practically unfeasible and run counter to the notion of complementary action at the international and national level’.9 Despite greater transparency in recent years, as demonstrated through the OTP’s Policy Paper on Case Selection and Prioritisation and its yearly reports on preliminary examinations, the precise contours of prosecutorial discretion and how it is exercised remain somewhat, and perhaps purposefully, vague. The OTP has no obligation to fully explain the terms of the prosecutorial discretion it practises (and if it did so, this would lead to it being overly predictable). This is, of course, especially true for situations and individuals not selected for investigation or prosecution.10 While the OTP must explain a decision to close a preliminary examination, as it has done in the case of Iraq and Honduras, it generally does not explain its decision not to pursue particular situations or cases for investigation that are otherwise under its jurisdiction.11 Indeed, it has only tended to do so in highly charged situations where 6 See M. Glasius, The International Criminal Court—A Global Civil Society Achievement (London: Routledge, 2006). 7 On the US–ICC relationship, see D. Bosco, Rough Justice—The International Criminal Court in a World of Power (New York: Oxford University Press, 2014); see also W. A. Schabas, ‘United States Hostility to the International Criminal Court: It’s All About the Security Council’, 15 European Journal of International Law (Eur J Int L) (2004) 701–720; J. Ralph, Defending the Society of States: Why America Opposes the International Criminal Court and its Vision of World Society (Oxford: Oxford University Press, 2007). 8 D. Akande, ‘Is There Still a Need for Guidelines for the Exercise of ICC Prosecutorial Discretion?’, EJIL: Talk! Blog of the European Journal of International Law, 28 October 2009 available online at http://​ www​.ejiltalk​.org/​is​-there​-still​-a​-need​-for​-guidelines​-for​-the​-exercise​-of​-icc​-prosecutorial​-discretion/​. 9 International Criminal Court, Office of the Prosecutor, Policy Paper on Case Selection and Prioritisation, 15 September 2016, at 4 (hereinafter ‘ICC, Case Selection and Prioritisation’). 10 Schabas writes that ‘although it is not too difficult to explain with objective criteria the justification with respect to situations where the prosecutor chooses to act, the same cannot be said for the situations that are not selected’. W. A. Schabas, ‘Selecting Situations and Cases’, in C. Stahn (ed.), The Law and Practice of the International Criminal Court (Oxford: Oxford University Press, 2015), at 373 (hereafter Schabas, ‘Selecting Situations and Cases’). 11 It is also noteworthy that a number of situations, such as Colombia and Afghanistan, have stayed in the preliminary examination stage for over a decade, suggesting that the OTP is hesitant to close pre-

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184  The Elgar companion to the International Criminal Court public interest is high. Reacting to widespread allegations that the Court showed bias in only targeting members of the Lord’s Resistance Army and not Ugandan government officials or members of the Ugandan People’s Defence Forces in northern Uganda, former ICC Prosecutor Luis Moreno-Ocampo argued that the latter’s crimes were not of sufficient gravity and that many of the UPDF’s alleged crimes were committed outside the Court’s temporal jurisdiction, i.e. prior to 1 July 2002.12 More recently, Bensouda took the unprecedented step of explaining that, while the ICC has personal jurisdiction over some foreign combatants who have fought for the Islamic State, those individuals do not warrant ICC investigation because they are not ‘those most responsible for mass crimes’.13 While it is only one criterion that must be satisfied in order to open an investigation, the OTP relies heavily on the ‘gravity’ of alleged crimes to justify its decision-making with regard to case selection. As the OTP’s Policy Paper on Case Selection and Prioritisation states, the gravity of the alleged crimes is ‘the predominant case selection criteria adopted by the Office’.14 As Margaret deGuzman observes, ‘the Prosecutor’s discretionary use of relative gravity strongly affects perceptions of the Court’s legitimacy’.15 However, some believe that there has been little legal consistency and coherency in the reasoning behind discretionary actions in the OTP. William Schabas, for example, writes: The gravity language strikes the observer as little more than obfuscation, a laboured attempt to make the determinations look more judicial than they really are … They have undoubtedly convinced themselves that they have found a legalistic formula enabling themselves to do the impossible, namely, to take a political decision while making it look judicial.16

Taking discretionary measures influenced by both political and legal factors, however, need not be seen as doing ‘the impossible’. On the contrary, it seems implausible and unrealistic to expect the Court not to take into consideration political factors in exercising prosecutorial discretion. As an international organization, the Court must function in a manner that will ensure that it is—and is seen to be—an effective and relevant institution. It must also act in a manner that preserves itself. Before elaborating the institutional interests informing OTP decision-making, it is important to recall the Court’s limitations, as these shape the decisions that prosecutors can make and thus the prosecutorial opportunities that they identify. Most notably, the ICC does not have

liminary examinations. For a comprehensive assessment of preliminary examinations, see M. Bergsmo and C. Stahn (eds), Quality Control in Preliminary Examination, Vols 1 and 2 (Belgium: Torkel Opsahl Academic EPublisher Brussels, 2018). 12 See International Criminal Court, Statement by the Chief Prosecutor on the Uganda Arrest Warrants, 14 October 2005, available online at https://​www​.icc​-cpi​.int/​nr/​rdonlyres/​3255817D​-fd00​ -4072​-9F58​-fdb869F9B7cf/​143834/​lmo​_20051014​_English1​.pdf. 13 International Criminal Court, Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the alleged crimes committed by ISIS, 8 April 2015, available online at https://​www​ .icc​-cpi​.int/​Pages/​item​.aspx​?name​=​otp​-stat​-08​-04​-2015​-1. 14 ICC, Case Selection and Prioritisation, supra note 9, at 4. 15 M. M. deGuzman, ‘Gravity and the Legitimacy of the International Criminal Court’, 32 Fordham International Law Journal (2008), at 1404. 16 Schabas, Unimaginable Atrocities, supra note 4, at 89; Schabas also asserts: ‘Gravity provides the prosecutor with a seemingly objective but ultimately an extraordinarily subjective standard.’ See Schabas, ‘Selecting Situations and Cases’, supra note 10, at 380.

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Prosecutorial opportunism and the International Criminal Court  185 a police force to enforce its warrants. It relies entirely on the political will of states to ensure that suspects charged by prosecutors are surrendered to the ICC. But the Court’s political dependency on states goes further. As Alex Whiting writes: ‘international criminal prosecutors lack both investigative tools and a reliable political constituency supporting them. They are entirely dependent on state cooperation to conduct investigations, build case[s], and effectuate arrests.’17 Whiting adds that such cooperation is ‘erratic’ and therefore that ‘while the OTP depends on state cooperation to advance its investigations and prosecutions, countries will generally provide genuine cooperation only when they determine that it is in their interest to do so, either because it advances national goals or because influential outside countries make cooperation a priority’.18 This negotiation between politics and law colours the decisions that ICC investigators and prosecutors can and, arguably, should make. When the political interests of states—and state-based actors like the United Nations Security Council—overlap with the institutional interests of the Court, a prosecutorial opportunity arises. 1.A

Between a Court and an International Organization—The ICC and Institutional Interests

There has been a growing acknowledgement that the ICC expresses institutional agency.19 It is not as state-driven as realist scholars of international relations might suppose, nor as abstracted from state politics and influence as legalists may assert. Its decisions must align not only with the legal mandate it receives from the Rome Statute; they must also further, or at the very least not undermine, its own institutional interests. As such, it is no different from its institutional cousins like the United Nations, which makes decisions based on not only on its lofty goals and humanitarian mandate but to avoid ‘losses’ and to chalk up ‘wins’ that advance its standing and credibility.20 The ICC has three broad and interrelated institutional interests that it must consider.21 These interests pertain to and inform the global public of the ICC’s effectiveness, legitimacy, and relevance. The first institutional interest is to obtain sufficient cooperation from relevant actors in order to build cases that can lead to the issuance of arrest warrants, prosecutions and, ultimately, convictions. These actors include states, other international organizations such as the UN Security Council, and civil society organizations. As the OTP itself notes, it will prioritize cases based on levels of ‘international cooperation and judicial assistance to support the Office’s activities’.22 This includes: being granted access to the locus of atrocity in order to collect evidence; receiving necessary security in order to operate on the ground in situations

A. Whiting, ‘Investigations and Institutional Imperatives at the International Criminal Court’, in M. Minow, C. C. True-Frost, and A. Whiting (eds), The First Global Prosecutor—Promise and Constraints (Ann Arbor: University of Michigan Press, 2015), at 129. 18 Ibid. at 132. 19 See Bosco, supra note 7; Kersten, Justice in Conflict, supra note 4. 20 See M. Barnett, Eyewitness to a Genocide—The United Nations and Rwanda (Ithaca: Cornell University Press, 2003), at 47–48. 21 Goldston proposes other factors that determine ‘whether, where, whom, what and when to charge’: prospects of arrest; state cooperation; peace; perception of the Court—legitimacy and relevance; perception of the Court—impartiality; and highlighting particular crimes. See Goldston supra note 1. 22 ICC, Case Selection and Prioritisation, supra note 9, at 17. 17

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186  The Elgar companion to the International Criminal Court under investigation; being able to access other locations where potential victims and witnesses reside; receiving cooperation in protecting witnesses from harassment, intimidation, or violence; and conducting outreach activities.23 The second institutional interest relates to the OTP’s ability to guarantee sufficient cooperation in order to ensure that arrest warrants issued by the Court are enforced. According to the OTP, ‘the Office focuses on cases in which it appears that it can conduct an effective and successful investigation leading to a prosecution with a reasonable prospect of conviction’.24 Here, it is notable that the early years of the ICC’s existence were characterized by insecurity as to whether perpetrators would be surrendered to The Hague. Former ICC Judge and President Sang-Hyun Song has stated that ‘even the judges first appointed in 2003 were unsure that the Court could survive the skepticism and hostilities. Privately some judges suggested that it could collapse within a couple of years.’25 There is nothing that would threaten the standing of the Court more than a regularly empty docket, an image that would brutally contrast to the rife political violence being waged around the globe. While the first and second institutional interests both pertain to cooperation, it is important not to conflate them. Cooperation that can lead to the enforcement of arrest warrants requires different and generally more coercive forms of influence and power than cooperation required to open investigations and have arrest warrants issued. Moreover, some states (and non-governmental actors) with little coercive power, may be able to contribute significantly to the building of cases but not to the enforcement of warrants. The Court’s record to date and its outstanding arrest warrants suggest that states are often willing to support the ICC in building cases that lead to the issuance of arrest warrants but are less interested in ensuring that they are subsequently enforced. Indeed, a key feature of the ICC’s current struggles, as well as the criticism levied at the Court, is the disjuncture between the provision of these two forms of cooperation. The third institutional interest of the ICC pertains to its reputation as a relevant institution in global politics, one that responds to emerging political crises marked by atrocity crimes, metes out justice and accountability, and is perceived as a present and popular option for actors seeking to address international crimes. The Court has an interest in presenting itself as a relevant actor in addressing crimes that fall under its jurisdiction and that galvanize widespread international condemnation. Being relevant here means being a core part of popular conversations about the appropriate means to address mass atrocities. The OTP thus not only focuses only on grave crimes but, in a sense, popularly grave crimes. It pays ‘particular attention to crimes that have been traditionally under-prosecuted, such as crimes against or affecting children as well as rape and other sexual and gender-based crimes. It will also pay particular attention to attacks against cultural, religious, historical and other protected objects as well as against humanitarian and peacekeeping personnel’.26

Some of these are outlined in the Strategy: ‘the Office’s capacity to effectively conduct the necessary investigations within a reasonable period of time, including the security situation in the area where the Office is planning to operate or where persons cooperating with the Office reside, and the Court’s ability to protect persons from risks that might arise from their interaction with the Office’. Ibid. 24 Ibid. at 9. 25 See Kersten, Justice in Conflict, supra note 4, at 6. 26 ICC, Case Selection and Prioritisation, supra note 9, at 17. 23

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Prosecutorial opportunism and the International Criminal Court  187 Prosecutorial opportunism—that identification and taking of opportunities to effectuate ICC interests—requires that the OTP calculate the relative benefits that certain decisions will accrue in satisfying these three institutional interests. Prosecutorial opportunities will arise when the Office discerns that pursuing a particular investigation or case will result in its institutional interests being served. This does not mean that the OTP elevates its institutional interests above the aim of meting justice. The best-case scenario for the OTP is to target a notorious perpetrator who has committed a globally condemned atrocity, have that individual surrendered as a result of efficient and effective cooperation, successfully prosecute them, and capture the global public’s imagination in the process. In other words, meting out justice is itself in the interests of the ICC. This is easier said than done, as the first two decades of the ICC’s existence have amply demonstrated. The Court’s institutional interests cannot be siloed and the Office’s ability to satisfy them may change as the prerogatives of political actors change. What may initially appear to be a ‘winning’ prosecutorial opportunity may, for reasons out of the OTP’s control, later lead to a ‘loss’, as will be explored in the Kenya example below. Moreover, one institutional interest may be much stronger than another. For example, the reputational benefits of intervening in a particular conflict may be low when global knowledge of the crimes and perpetrators is poor, but the chance of having perpetrators surrendered and convicted is high, thus bolstering the reputation of the Court. The ICC’s interventions in the Central African Republic (CAR) are a good example of this. Compared to the likes of Sudan’s Omar al-Bashir, Libya’s Muammar Gaddafi, or Joseph Kony of the Lord’s Resistance Army, the global public’s knowledge of political violence in CAR is indisputably low. But at a time when there were concerns that the ICC could have an empty docket within just years, its investigations in the CAR II situation led to the arrest and surrender of two individuals: Alfred Yekatom and Patrice-Edouard Ngaïssona. Notably, Yekatom, a sitting Member of Parliament, was only surrendered to the ICC following his arrest in CAR after he fired his gun in Parliament during an altercation. Weighing the relative benefits of satisfying the Court’s institutional interests is an imperfect science and no easy task. Decisions must be made at cross-sections of time. Moreover, the institutional interests of the Court will inform not only whether the OTP seeks to open an official investigation or issue an arrest warrant, but also how it does so. One particularly clear example of this was the decision by Moreno-Ocampo to announce publicly that he was seeking a warrant for al-Bashir for atrocities committed in Darfur, rather than have it issued under seal. There was some debate within the OTP as to whether a sealed warrant would be more likely to result in al-Bashir’s arrest and, thus, surrender to the ICC. Those who argued for a sealed warrant prioritized what they saw as the greater likelihood of cooperation arising from the warrant being issued in secret. As Rebecca Hamilton writes, ‘[a] warrant issued secretly would have meant that al-Bashir would have continued to travel unaware to states more likely to execute the warrant than Sudan. Instead, with the prosecutor’s intentions publicly known, al-Bashir could avoid traveling to states that might actually arrest him.’27 Ultimately, the Prosecutor opted for a public warrant to be issued and won. Issuing an arrest warrant secretly would risk potentially destabilizing Sudan, with its President running the country one day, and in The Hague the next. It would also risk giving the Court the appearance of secretly conspiring to achieve regime change. The Court has to play a delicate balancing act between 27 R. Hamilton, Fighting for Darfur: Public Action and the Struggle to Stop Genocide (New York: Palgrave Macmillan, 2011), at 160.

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188  The Elgar companion to the International Criminal Court achieving justice for those ‘most responsible’ for mass atrocities and not playing roughshod with the sovereignty of states. The Bashir warrant decision is illustrative of a Prosecutor struggling to satisfy the institutional interests of achieving an arrest and ensuring a strong global reputation for the Court. 1.B

The Selective Outcomes of Negotiated Interests

An evident and troubling outcome of the negotiation of the ICC’s institutional interests with the interests of those state actors upon which the Court depends has been the OTP’s highly asymmetrical pursuit of criminal responsibility in the situations in which it has intervened.28 In cases of self-referrals, the OTP has exclusively focused on non-state actors and the self-referring-government’s political adversaries. Following referrals from the UN Security Council, the Office has primarily targeted government officials.29 In light of the ICC’s institutional interests, however, the reason for this asymmetry is relatively straightforward—if not unproblematic. The OTP relies on the referring government to satisfy its cooperation interests. In the case of self-referring governments, the Court targeting state actors would result in the evaporation of any form of cooperation and thus diminish any chance of seeing any actors in the dock face prosecution. In the case of Security Council referrals, the OTP relies on the Council’s members and allies for cooperation to build cases and see suspects surrendered to the Court. That too would evaporate if the Court targeted actors supported by the Council and on whose behest it referred a given situation. The Office’s apparent position on the matter is to prosecute one side and then, maybe, the other. It seeks to avoid making perfect justice the enemy of any justice.30 It bears repeating: managing the ICC’s institutional interests is no easy task. There are times when a prosecutorial opportunity presents itself and leads to the successful surrender and prosecution of a perpetrator in such a way that the interests of the Court are generally satisfied. In other cases, changing political situations lead the OTP to misfire and misjudge the existence of a prosecutorial opportunity. At the same time, states can take advantage of the Court’s institutional interests to satisfy their own. The following three sections explore each of these possibilities.

28 See A. Tiemessen, ‘The International Criminal Court and the Politics of Prosecutions’, 18 The International Journal of Human Rights (2014) 444–461; Kersten, Justice in Conflict, supra note 4, 163–172. 29 See Tiemessen supra note 28 and Kersten supra note 4. K. A. Rodman, ‘Justice as a Dialogue Between Law and Politics Embedding the International Criminal Court within Conflict Management and Peacebuilding’, 12 JICJ (2014), 437–469. 30 This has also been referred to as prosecutorial ‘pragmatism’. See P. Clark, ‘Law, Politics and Pragmatism: The ICC and Case Selection in the Democratic Republic of Congo and Uganda’, in N. Waddell and P. Clark (eds), Courting Conflict? Justice, Peace and the ICC in Africa (London: Royal African Society, March 2008) 37–45.

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Prosecutorial opportunism and the International Criminal Court  189

2.

MISCALCULATED PROSECUTORIAL OPPORTUNISM: THE ICC INTERVENTION IN KENYA

In 2010, ICC investigators began their probe into alleged crimes against humanity committed in the wake of the 2007 general elections in Kenya. This marked the first time that the OTP had initiated an investigation via the Prosecutor’s proprio motu powers. At the time, the OTP believed that domestic and international cooperation with the investigation would be high, permitting the Court to pursue both sides responsible for the alleged crimes against humanity perpetrated following the 2007 Presidential elections. However, by 2016, every one of the cases brought forward by the OTP had been dismissed or had collapsed. An intervention that was thus unprecedented in both how it was initiated and the fact that it led to the prosecution of both sides, eventually emerged as unprecedented for the fact that every case brought forward by the OTP failed. How did the Office miscalculate this once seemingly golden prosecutorial opportunity? 2.A

Intervention in Kenya—An Unprecedented Opportunity to Change the Narrative

Initially, the ICC’s intervention in Kenya presented itself as a unique opportunity. Kenya was unlike any of the other situations in which the ICC had intervened. It was a largely stable, democratic polity.31 It was a regional economic powerhouse with a lively and widely respected civil society and media. However, the country also had a long history of political violence marring the wake of general elections.32 When violence erupted after the 2007 polls, there was a sense in the country that dramatic action was required to break the cycle of ethnic violence and impunity in the wake of polls. At the time, the ICC’s reputation was hampered by allegations that it pursued victors’ justice. Prior to its intervention in Kenya, the ICC had never before targeted multiple sides of a conflict.33 All previous ICC investigations followed requests from Member States or the UN Security Council. This led to a cooperation conundrum for the ICC. To investigate state actors in any of the self-referred situations would risk thwarting any cooperation from the self-referring state. To investigate non-state actors allied with Security Council powers would undermine cooperation from Council members. In this context, Kenya appeared to offer an opportunity to change the narrative of one-sided ICC accountability. It is important to reiterate that the situation in Kenya presented an opportunity for the OTP request authority from ICC Judges, for the first time, to open an investigation proprio motu—‘upon the volition of the Prosecutor’. The ability to open investigations without the express request of the state in question or the Security Council epitomizes the Prosecutor’s

31 Northern Uganda, the Democratic Republic of Congo, the Central African Republic, and Darfur, could all be described as areas of significant, ongoing violence and conflict at the time the Court intervened in each. 32 See L. G. Mwongera, ‘Making Sense of Political-Related Violence in Kenya’ (Open Security), 14 September 2012, available online at https://​www​.opendemocracy​.net/​opensecurity/​lawrence​-gitonga​ -mwongera/​making​-sense​-of​-political​-related​-violence​-in​-kenya. 33 In the Darfur situation, two rebels, Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, were, however, targeted for an attack on African Union peacekeepers.

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190  The Elgar companion to the International Criminal Court independence. Such investigations do not produce the cooperation dependency characteristic of referrals from states or the Security Council. While the OTP had previously been hesitant to open investigations proprio motu, this was apparently due to fear that doing so would make states, particularly the US, nervous about the Court’s potential impact on state sovereignty.34 In some sense, then, the ICC’s intervention in Kenya marked a certain ‘coming of age’ for the Court—a confidence that it could exercise its proprio motu powers and target all sides of a conflict. In addition to Kenya appearing as an opportunity to see more even-handed justice done and therefore to boost the credibility of the ICC, were two additional factors that made an investigation attractive and seemingly amenable to furthering the institution’s interests: (1) the direct involvement of former UN Secretary General Kofi Annan in pushing an agenda of accountability for post-election violence crimes, and (2) the widespread domestic political, public, and civil society support for an ICC investigation. Indeed, the very same political figures who would subsequently be summoned to face charges at the ICC initially proclaimed that the country needed the Court. ‘Don’t be vague. Let’s go to The Hague’, was the famous slogan spread by, among others, William Ruto.35 The OTP thus enjoyed support from significant sections of the Kenyan political class. Kenyan civil society also in favour of an ICC intervention.36 In Kofi Annan, the primary international mediator following the post-election violence in Kenya, the OTP could count on a widely respected member of the international community being on board. As David Bosco writes, the Prosecutor pursued an official investigation in Kenya: as part of a carefully negotiated process and with strong backing from the international community’s lead mediator and the major powers most concerned about the situation in Kenya. Internationally, the Kenya inquiry was as uncontroversial a use of the controversial proprio motu power as could be designed.37

Under such conditions, the OTP could hardly be blamed if it believed that the institutional interests of cooperation and reputation would be satisfied with its Kenya investigation. It is easy to see why ICC prosecutors would have believed that cooperation from Kenyan authorities and key political actors would be forthcoming. Their apparent conviction that Kenya would cooperate rather than seek to undermine the Court is further evidenced by the fact that prosecutors decided not to issue arrest warrants for the Kenyan suspects, instead issuing summonses for them to appear voluntarily before the Court.38

Bosco, supra note 7; See also B. Schiff, Building the International Criminal Court (Cambridge: Cambridge University Press, 2008), at 225. 35 See ‘Kenya: Q&A on the ICC Trial of Kenya’s Deputy President’, Human Rights Watch, 1 September 2013, available online at https://​www​.hrw​.org/​news/​2013/​09/​01/​kenya​-qa​-icc​-trial​-kenyas​ -deputy​-president. 36 See ‘Kenya: Civil Society Organizations Call for Support for the International Criminal Court’, Human Rights Watch, 25 January 2011, available online at https://​www​.hrw​.org/​news/​2011/​01/​25/​kenya​ -civil​-society​-organizations​-call​-support​-international​-criminal​-court. 37 Bosco, supra note 7, at 160. 38 This approach has been criticized by some, including Richard Goldstone who believes that arrest warrants should have been issued for the Kenyan suspects from the outset to avoid their return to Kenya to ‘roam around free’. See comments at ‘African Justice Mechanisms and their interplay with the International Criminal Court’ (Wayamo Foundation), 2016, available online at https://​www​.scribd​.com/​ 34

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Prosecutorial opportunism and the International Criminal Court  191 2.B

Miscalculating Cooperation

In opening its investigation in Kenya, the OTP was generally both patient and sensitive to the political context on the ground in Kenya. Post-election tensions in Kenya had been quelled by the National Accord.39 Amongst its provisions was the creation of the Commission of Inquiry on Post Election Violence, better known as the Waki Commission. The Commission’s final report, issued in October 2008, recommended that a Special Tribunal be established in Kenya to investigate and prosecute post-election violence crimes. If the government failed to do so within three months, the Commission would give Annan the green light to hand over to the OTP a list of suspects, as well as evidence incriminating them. According to Brown and Raddatz, the coalition government in Kenya accepted the Waki Commission’s recommendations whilst ‘[d]onors strongly supported the idea of the Special Tribunal, believing that accountability was vital to prevent future violence, and that ICC involvement was either not justified because the crimes were not of sufficient gravity or because the process would be too slow and expensive’.40 Within months, however, that enthusiasm waned. Both donor and civil society support turned in favour of the ICC, creating a window of opportunity for the OTP to act with broad and popular support.41 In December 2010, chief Prosecutor Moreno-Ocampo named six suspects whom the OTP believed were responsible for crimes against humanity committed during the post-election violence: Mohammed Hussein Ali, Uhuru Muigai Kenyatta, Henry Kosgey, Francis Kirimi Muthaura, William Samoei Ruto, and Joshua Asap Sang. The suspects, colloquially referred to as the ‘Ocampo 6’, came from politically opposing factions. Notably, Moreno-Ocampo did not target either of the senior-most political figures involved in the 2007 elections: the presidential candidates Mwai Kibaki and Raila Odinga. Doing so would likely have immediately scuttled any chance of cooperation from the highest political authorities in the country. In direct response to the ICC, and in what has been described as an ‘opportunistic alliance of convenience’ as well as ‘an affair of determined convenience’, Kenyatta and Ruto decided to join forces as part of the ‘Jubilee Alliance’ and run for election on the same ticket—as President and Deputy President of Kenya respectively.42 Their campaign hired a British public relations firm to damage the credibility of the Court and paint Kenyatta and Ruto as its victims, which it viewed as necessary for the unlikely duo to win the elections.43 In March 2013, they were elected. What followed was a well-organized strategy of political and legal efforts to undermine the Court’s cases against them and their co-accused. An in-depth exploration of the document/​318390511/​SYMPOSIUM​-REPORT​-African​-Justice​-Mechanisms​-and​-their​-interplay​-with​ -the​-International​-Criminal​-Court. 39 See S. Brown and R. Raddatz, ‘Dire Consequences or Empty Threats? Western Pressure for Peace, Justice and Democracy in Kenya’, 8 Journal of Eastern African Studies (2014) 43–62. 40 Ibid. at 48. 41 Ibid. at 49. 42 S. Mueller, ‘Kenya and the International Criminal Court (ICC): Politics, the Election and the Law’, 8 Journal of Eastern African Studies (2014) 25–42, at 25. See also Brown and Raddatz, supra note 39, at 51. 43 BTP Advisers explains that its work hinged upon undermining the ICC’s case against Kenyatta: ‘By exposing the weak and flawed nature of the ICC case against him, we made the election a choice about whether Kenyans would decide their own future or have it dictated to them by others.’ See ‘Kenya Elections 2013’ (BTP Advisors), available online at http://​www​.btpadvisers​.com/​work/​kenya​-elections​ -2013.

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192  The Elgar companion to the International Criminal Court battle between the newly elected government and the ICC is beyond the scope of this chapter, but the broad strokes have been captured by Suzanne Mueller: Winning the election was part of a key defense strategy to undercut the ICC by seizing political power, flexing it to deflect the ICC, and opening up the possibility of not showing up for trial if all else failed. The strategy entailed using a series of delaying tactics to ensure that the ICC trials would not start until after the defendants had won the election and gained power at the highest level. The tactics ranged from mobilizing international organizations against the ICC, making numerous, legal challenges designed to delay the court, and the intimidation of potential witnesses, allegedly by defense sympathizers and go-betweens, to keep them from assisting the ICC. The tactics were part of a larger design to undercut the ICC. Demonizing opponents, politicizing ethnicity, and attacking the ICC as a tool of the West both before and during the presidential campaign served this end and victory in the election. Once they won the 2013 election, Kenyatta and Ruto came up with another tactic: asking for concessions based on their political power, including pleas to drop their cases or not be physically present at their trials.44

Their strategy succeeded in a spectacular fashion; all of the ICC’s cases in Kenya failed. Amidst political opposition from Ruto and Kenyatta, allegations of witness intimidation as well as poor case construction, the Court had little chance to succeed. In the end, not one trial was successfully concluded. 2.C

A Costly Miscalculation

What once seemed like a promising investigation and set of cases devolved into what may be the most controversial and perhaps most costly ICC intervention to date. But the cost of the Kenya cases to the ICC did not end in the courtroom. Kenya has been among the most vocal states against the ICC, regularly using inflammatory anti-ICC rhetoric. The government not only defeated the ICC cases against its leaders but also has led the charge against the Court as ‘biased’ against Africa and is a primary proponent of an Africa-wide ‘mass withdrawal’ from the ICC. As one observer writes, a key part of the government’s strategy has been to use ‘the ICC’s accusations as part of their political campaign to portray themselves as victims of a colonial, anti-African tool of the West’.45 Kenyatta has stated that ‘[t]he ICC has been reduced into a painfully farcical pantomime, a travesty that adds insult to the injury of victims. It stopped being the home of justice the day it became the toy of declining imperial powers.’46 Kenya’s parliament has voted twice in favour of withdrawing from the ICC, although the country has yet to do so. In the wake of the terrorist assault on the Westgate Mall in Nairobi, Deputy President Ruto, who at the time was appearing before ICC Judges in The Hague, even suggested that the Court was to blame for Kenya’s inability to protect itself from such attacks.47 The fact that such attacks have generally subsided in recent years and that any movement towards withdrawal from the ICC has stalled since the Kenya cases ended is indicative Mueller, supra note 42, at 26. J. B. J. Vilmer, ‘The African Union and the International Criminal Court: Counteracting the Crisis’, 92 International Affairs (2016) 1319–1342, at 1322. 46 See ‘Could Westgate deal a fatal blow to the ICC?’, BBC, 17 October 2013, available online at http://​www​.bbc​.com/​news/​world​-africa​-24562337. 47 See ‘Shock: Ruto Claims West Gate Mall Attack was Arranged to Fix him and President Kenyatta’, Kenya Today, 23 September 2013, available online at http://​www​.kenya​-today​.com/​news/​ shock​-ruto​-claims​-west​-gate​-mall​-attack​-pre​-planned​-occur​-country. 44 45

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Prosecutorial opportunism and the International Criminal Court  193 of how Kenya’s criticism of the Court was simply part of a larger strategy to undermine the institution and its cases. 2.D

Kenya Cases in the Rear-View Mirror

Should the OTP have been able to see what was coming in terms of changes to Kenya’s political landscape that would undermine its investigations and prosecutions? Here, it is important to highlight that many, including former OTP investigators, have reiterated that the cases against those targeted in Kenya failed not only due to political interference and witness intimidation, but because they were weak and susceptible to collapse.48 While it is difficult to say whether they would have succeeded under other circumstances, the Kenya cases were not sufficiently strong, nor designed, to withstand the various well-funded and elaborate efforts of Kenya to undercut them. Still, what subsequently transpired in Kenya’s political landscape, particularly with the joint election of Kenyatta and Ruto as President and Deputy President, would have been difficult to fathom in 2010 when the ICC intervened. Paul Seils, the former Head of Situational Analysis in the Office of the Prosecutor, observed in relation to the Kenya cases: ‘I’m not at all sure that international courts really are set up to understand the realities of the conditions they’re investigating.’49 Nor, it should be added, are they designed or well-placed to understand shifting political realities. The Kenya cases continue to cast a shadow on The Hague, as the ICC seeks the means to save face. This is currently being played out through the narratives around the additional and outstanding warrants issued for Kenyan citizens who allegedly interfered with ICC witnesses, which the OTP insists led to the collapse of its cases. The OTP cannot admit that it misjudged its prosecutorial opportunity in Kenya or that its cases may have been poorly constructed. Kenya cannot admit that it refused to cooperate with the ICC or that witnesses were intimidated. What began as an intervention that seemingly offered an opportunity to change the narrative around the ICC’s independence and ability to successfully prosecute all sides of a conflict, ultimately led to a failure that undermined the ICC’s institutional interests.

3.

THE ICC IN MALI: A SMALL FISH FOR A BIG WIN

In July 2012, the government in Bamako requested an ICC investigation into the situation in Mali. Consequently, in January 2013, the Office of the Prosecutor opened an official investigation into alleged war crimes committed during the Malian civil war, a conflict that pitted government forces against primarily radical Islamic armed groups in the north of the country. From the outset of the ICC’s intervention in Mali, there were concerns that only rebel forces

Confidential interview with former ICC staff member. See comments in J. Verini, ‘The Prosecutor and the President’, New York Times, 22 June 2016, available online at http://​www​.nytimes​.com/​2016/​06/​26/​magazine/​international​-criminal​-court​-moreno​ -ocampo​-the​-prosecutor​-and​-the​-president​.html. 48 49

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194  The Elgar companion to the International Criminal Court would be targeted.50 However, for over two-and-a-half years, the investigation proceeded without any arrest warrants issued at all and, it is fair to say, the Court’s investigation in Mali received relatively little scrutiny. That changed when, in dramatic fashion in the early hours of 26 September 2015, the ICC Prosecutor issued a statement declaring that Ahmad Al Faqi Al Mahdi, a ‘zealous member’ of Ansar Dine, had been surrendered to the Court.51 Al Mahdi’s surrender came as a surprise. His name had not appeared in the (admittedly limited) coverage of the ICC’s investigation in Mali. It quickly became apparent that the targeting of al Mahdi for prosecution epitomized the practice of prosecutorial opportunism insofar as it held out the potential to satisfy the institutional interests of the ICC: relevant states cooperating with the ICC to ensure his surrender to The Hague; al Mahdi cooperating with prosecutors and investigators and, by pleading guilty, leading to an expeditious conviction and saving the OTP precious resources; and positioning the Court as a relevant actor in the fight against the destruction of cultural artefacts and sites. 3.A

A Window of Cooperation

The arrest warrant issued for al Mahdi was timed to take advantage of a window of cooperation from relevant authorities in Mali and Niger. The warrant itself was issued under seal on 18 September 2015 and only became public on 28 September 2015, two days after al Mahdi’s surrender to the Court. Prior to his transfer to The Hague, al Mahdi had been imprisoned—first under the custody of French armed forces, and subsequently by Niger—since September 2014. OTP staff, however, had been concerned that al Mahdi might be released from jail in Niger. They thus moved expeditiously—indeed, with unprecedented speed—to attain the approval of relevant judicial and political figures in Mali and Niger for al Mahdi’s surrender to the ICC. Al Mahdi arrived in the very early morning of 26 September, making him the first Islamic extremist to face war crimes charges and the first individual to face the ICC for destroying cultural heritage. That the ICC received the direct cooperation of two African states—Niger and Mali—was also notable, albeit not highly advertised by the OTP despite its potential utility in countering widespread perceptions of a rift between the Court and African states. Regardless, on an operational level, such cooperation was particularly relevant for the ICC given ongoing allegations that the institution has focused too myopically on African situations.

50 For commentary, see D. Jacobs, ‘Random Comments on the Mali Self-Referral to the ICC’, Spreading the Jam, 20 July 2012, available online at https://​ dovjacobs​ .com/​ 2012/​ 07/​ 20/​ random​ -comments​-on​-the​-mali​-self​-referral​-to​-the​-icc/​; K. J. Heller, ‘Will Mali Be the First Bensouda-Era Investigation?’, Opinio Juris, 18 July 2012, available online at http://​opiniojuris​.org/​2012/​07/​18/​will​ -mali​-be​-the​-first​-bensouda​-era​-investigation/​?utm​_source​=​rss​&​utm​_medium​=​rss​&​utm​_campaign​=​ will​-mali​-be​-the​-first​-bensouda​-era​-investigation; W. A. Schabas, ‘Mali Referral Poses Challenge for International Criminal Court’, PhD Studies in Human Rights, 19 July 2012, available online at http://​ humanrightsdoctorate​.blogspot​.ca/​2012/​07/​mali​-referral​-poses​-challenge​-for​.html. 51 ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, following the transfer of the first suspect in the Mali investigation: “Intentional attacks against historic monuments and buildings dedicated to religion are grave crimes”’ (ICC), 26 September 2015, available online at https://​ www​.icc​-cpi​.int/​pages/​item​.aspx​?name​=​otp​-stat​-26​-09​-2015.

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Prosecutorial opportunism and the International Criminal Court  195 3.B

The Fruits of Cooperation and a Guilty Plea

Despite some hearings in which his defence counsel put forward non-legal arguments relating to the destruction of the shrines as a ‘political project that is not a crime’,52 it is now evident that al Mahdi cooperated with the OTP from the outset of his surrender. In its Judgment and Sentence of al Mahdi, the Trial Chamber declared that al Mahdi’s cooperation with the OTP was a factor in mitigating his sentence: [Al Mahdi’s] cooperation has been spontaneous and started as early as the first day of his interviews. Mr Al Mahdi responded in an honest manner and his cooperation enabled the Prosecution to corroborate, clarify and specify information it already had in its possession. During his interviews with the Prosecution, Mr Al Mahdi did not show any reluctance in touching upon his own acts. The Chamber is also mindful of the fact that Mr Al Mahdi has cooperated despite being fully aware that his cooperation with the Prosecution increased the security profile of his family. Accordingly, the Chamber considers that Mr Al Mahdi’s substantial cooperation with the Prosecution is an important factor going to the mitigation of the sentence to be imposed.53

Adding to the fact that targeting al Mahdi represented a clear prosecutorial opportunity for the OTP, some have noted that al Mahdi ‘began cooperating and confessed before he was even charged, and he signed a plea agreement … before there was even a confirmation hearing in his case’.54 For a Court that has been regularly criticized for the inefficiency and long duration of its proceedings, al Mahdi’s cooperation and the fact that he was sentenced and convicted less than a year after his surrender to The Hague has also been useful for the institution. As Marieke de Hoon observed with apparent reference to the failed Kenya cases: ‘After all the ICC’s recent problems with lack of evidence, witness intimidations, and protracted procedures, this short and in all likelihood successful case … can easily be called a resounding win.’55 It is not difficult to see why al Mahdi would cooperate with ICC prosecutors. He had been video-taped proudly destroying shrines in Timbuktu. Any direct defence of his offences was unlikely to succeed. Al Mahdi’s surrender also raised the prospect of him cooperating with investigators and prosecutors to build additional cases against more senior-level perpetrators of war crimes in Mali. Indeed, al Mahdi’s lack of seniority raised some flags among observers. Fatouma Harber, al Mahdi’s former teacher, wrote that her pupil was ‘the wrong man on trial’. He added that ‘there are many more deserving of justice … Al Faqi is just a little fish. But in Mali it is the little fish who are caught.’56 Eva Vogelvang and Sylvain Clerc also questioned See comments by Jean-Louis Gilissen in ‘Al Faqi Declines to Make Submissions in Northern Mali Case’, International Justice Monitor, 1 March 2016, available online at https://​www​.ijmonitor​.org/​2016/​ 03/​al​-faqi​-declines​-to​-make​-submissions​-in​-northern​-mali​-case/​. 53 International Criminal Court, Trial Chamber VIII, ‘Summary of the Judgment and Sentence in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi’, 27 September 2016, §§ 60–61. 54 A. Whiting, ‘The Significance of the ICC’s First Guilty Plea’, Just Security, 23 August 2016 available online at https://​www​.justsecurity​.org/​32516/​significance​-iccs​-guilty​-plea/​. 55 M. de Hoon, ‘The ICC’s Al Mahdi Case is (also) a Political Trial, and that’s Fine!’, EJIL:​Talk!, 31 August 2016, available online at http://​www​.ejiltalk​.org/​the​-iccs​-al​-mahdi​-case​-is​-also​-a​-political​-prial​ -and​-thats​-fine/​. 56 See F. Harber, ‘Why the ICC has the Wrong Man on Trial over Invasion of Timbuktu’, The Guardian, 30 September 2015, available online at https://​www​.theguardian​.com/​world/​2015/​sep/​30/​icc​ -mali​-timbuktu​-invasion​-trial. 52

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196  The Elgar companion to the International Criminal Court the selection of al Mahdi, arguing that the decision to view him as the ‘most responsible’ for his crimes was ‘questionable’.57 The ICC has been criticized for both focusing too much and too little on ‘big fish’.58 On the one hand, the targeting of al Mahdi seems to contradict with the OTP’s interest in focusing on ‘the most responsible’ perpetrators of mass crimes. It also appears to be inconsistent with the Prosecutor’s public pronouncement that she would not, for example, investigate perpetrators in Syria or Iraq who are citizens of ICC Member States because they are not those ‘most responsible’ for atrocities.59 On the other hand, the charges against al Mahdi were consistent with the OTP’s 2012‒2015 Strategic Plan as well as its Policy Paper on Sexual and Gender Based Crimes, both of which state that the Office may focus on mid-level and lower-level perpetrators if doing so can help build additional cases against more senior-level perpetrators.60 Specifically, the OTP asserts that: The required evidentiary standards to prove the criminal responsibility of the most responsible might force the OTP sometimes to change its approach due to limitations on investigative possibilities and/ or a lack of cooperation. A strategy of gradually building upwards might then be needed in which the Office first investigates and prosecutes a limited number of mid—and high—level perpetrators in order to ultimately have a reasonable prospect of conviction for the most responsible. The Office will also consider prosecuting lower level perpetrators where their conduct has been particularly grave and has acquired extensive notoriety.61

While novel for the ICC, this strategic imperative relates directly to the OTP’s identification of prosecutorial opportunities: the OTP will pursue individuals where doing so creates an opportunity to successfully prosecute those perpetrators as well as build additional cases— irrespective of their seniority. Beyond al Mahdi, it is evident that the OTP simply had no other prospects for prosecution in Mali and that continuing an official investigation indefinitely without any arrest warrants was untenable. Whiting’s observations in this regard, as well as his use of the term opportunity, are worth highlighting: [C]ase selection is part strategy and part opportunity. Although the suspect in this case does not appear to be at the highest echelons of Ansar Dine—he is identified as a brigade commander and is charged not with ordering or directing the destruction of the mausoleums and mosque but with committing the attacks with others, or facilitating or contributing to them—it may be that after three years of investigation, it was the strongest case that presented itself. In addition, the suspect’s presence in Niger may have presented an opportunity for arrest that the Prosecutor did not want to lose. Sometimes it is better to pursue a suspect you can get rather than one who will likely become just another fugitive.62 57 E. Vogelvang, and S. Clerc, ‘The Al Mahdi Case: Stretching the Principles of the ICC to a Breaking Point?’, Justice Hub, 29 August 2016, available online at https://​justicehub​.org/​node/​9526. 58 See D. Robinson, ‘Inescapable Dyads: Why the International Criminal Court Cannot Win’, 28 Leiden Journal of International Law (2015) 323–347, at 334. 59 See International Criminal Court, Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the alleged crimes committed by ISIS, (2015). 60 ICC, Strategic Plan, supra note 3, at 6; International Criminal Court, Office of the Prosecutor, Policy Paper on Sexual and Gender-Based Crimes, June 2014, at 25. 61 ICC, Strategic Plan, supra note 3, at 6. 62 A. Whiting, ‘The First Case for the ICC Prosecutor: Attacks on Cultural Heritage’, Just Security, 29 September 2015, available online at https://​www​.justsecurity​.org/​26453/​mali​-icc​-attacks​-cultural​ -heritage/​.

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Prosecutorial opportunism and the International Criminal Court  197 In addition to a debate over whether al Mahdi was sufficiently senior to justify ICC prosecution, some human rights groups, particularly FIDH, protested the OTP’s decision not to pursue additional charges of sexual violence crimes against al Mahdi. While they welcomed the prosecution of al Mahdi for cultural crimes, they accused the OTP of ignoring these additional crimes.63 Following his guilty plea, one FIDH official declared: Since its first proceedings, the ICC has chosen to prosecute cases based on charges it can defend and prove … This is unfortunate since a FIDH investigation indicates that these sexual crimes have probably been the most massive crimes committed in Timbuktu.64

It is important to clarify two issues here. First, at no point has it been asserted that al Mahdi himself was personally and directly responsible for sexual violence crimes in Mali. FIDH has asserted that he was the head of a police force whose members allegedly perpetrated sexual violence crimes in Timbuktu.65 Second, FIDH has never released the evidence upon which it has levied these claims against al Mahdi. The veracity of the allegations and the credibility of the evidence thus remain unclear. Nevertheless, FIDH’s criticism was particularly stinging because it implied that the OTP was actively ignoring evidence of crimes that it said it would prioritize in its investigations.66 For the purpose of the analysis offered in this chapter, the question that thus arises is why the OTP would ignore such crimes when it had repeatedly and publicly pronounced that sexual and gender-based violence would be a specific focus of Prosecutor Bensouda’s tenure? For sceptics, the only reasonable explanation for the OTP’s decision-making was that it represents ‘an attempt to expand the jurisdiction of the ICC and an attempt to secure a fast conviction’.67 However, beyond the potential weakness of the evidence against al Mahdi for sexual violence crimes,68 it may be that al Mahdi would not have pleaded guilty had additional charges relating to sexual violence been levied against him. The test of the wisdom of the OTP’s strategy was whether al Mahdi’s guilty plea and cooperation with investigators would result in subsequent arrest warrants for sexual violence crimes committed in Mali—especially committed by direct perpetrators. The OTP’s strategy came to fruition when Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud was surrendered to the ICC on 31 March 2018, just four days after the Court issued a warrant for his arrest. Among other crimes, Al Hassan faces prosecution for rape and sexual

See FIDH, ‘Mali: The hearing of Al Mahdi before the ICC is a Victory, but charges must be Expanded’ (FIDH), 30 September 2015, available online at https://​www​.fidh​.org/​en/​issues/​international​ -justice/​international​-criminal​-court​-icc/​mali​-the​-hearing​-of​-abou​-tourab​-before​-the​-icc​-is​-a​-victory​ -but. 64 See comments by Florent Geel in M. Forestier, ‘ICC to War Criminals: Destroying Shrines Is Worse Than Rape’, Foreign Policy, 22 August 2016, available online at https://​foreignpolicy​.com/​2016/​ 08/​22/​icc​-to​-war​-criminals​-destroying​-shrines​-is​-worse​-than​-rape​-timbuktu​-mali​-al​-mahdi/​. 65 Ibid. 66 ICC, Case Selection and Prioritisation, supra note 9, at 17. 67 E. Vogelvang and S. Clerc, ‘The Al Mahdi case: Stretching the principles of the ICC to a breaking point?’, Justice Hub, 29 August 2016, available online at https://​justicehub​.org/​article/​al​-mahdi​-case​ -stretching​-principles​-icc​-breaking​-point. 68 Whiting, supra note 54. 63

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198  The Elgar companion to the International Criminal Court slavery as crimes against humanity and war crimes. His arrest, it has been suggested, was the direct result of the cooperation of al Mahdi.69 In the case of al Mahdi, the combination of Niger and Mali’s cooperation, al Mahdi’s willingness to cooperate with investigators, his guilty plea, and his role in building the case against Al Hassan, produced a prosecutorial opportunity that the OTP could not pass up. He was the suspect that the ICC could get—and the strategy appears to be paying off. To date, this is a case of prosecutorial opportunism ‘gone right’. And, in addition, targeting al Mahdi for the war crime of destroying heritage sites and antiquities presented a unique chance to capture global attention. 3.C

The Narrative Fit

Beyond receiving cooperation from actors on which the Prosecutor depends for the construction of successful cases and the enforcement of arrest warrants, the ICC has an institutional interest in fostering a reputation as a relevant and impactful international organization. In the al Mahdi case, the opportunity arose to present the Court as a leader in the fight against cultural crimes, a subject which has garnered significant coverage and attention following the destruction of antiquities by the Islamic State in Syria and Iraq.70 While it could not investigate the destruction of cultural sites in places like Palmyra, through the al Mahdi case the OTP could present itself as a frontline actor in bringing perpetrators of cultural crimes to justice. From the moment of al Mahdi’s surrender, Bensouda sought to dispel any notion that the bloodless violence by al Mahdi did not warrant prosecution at the ICC. She was unequivocal about the seriousness of such crimes: Let there be no mistake: the charges we have brought against Ahmad Al Faqi Al Mahdi involve most serious crimes; they are about the destruction of irreplaceable historic monuments, and they are about a callous assault on the dignity and identity of entire populations, and their religious and historical roots.71

In targeting al Mahdi, Bensouda also allied the OTP with UNESCO as the front line of efforts to combat cultural destruction. Two months before al Mahdi was surrendered to the Court, UNESCO General Director Irina Bokova declared that ‘UNESCO has involved the

Alex Whiting observed that ‘it appears this was a case of opportunity. The OTP filed its urgent arrest warrant request on March 20, arrest warrant issued March 27, arrest on March 31. So OTP knew it could get the accused before it sought an arrest warrant … [T]here was some criticism of the first Mali case against Al Mahdi that it was for destruction of cultural monuments and was not a case for sexual and gender based violence which has been prevalent in the conflict. This new arrest charges those crimes, and persecution … [I]t is likely that this new arrest of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud was based in part at least on information provided by Al Mahdi, who pled guilty and cooperated with the court. If so, vindicates approach taken with Al Mahdi to get his cooperation.’ A. Whiting, Twitter, 31 March 2018, available online at: https://​twitter​.com/​alexgwhiting/​status/​980268747683348480. 70 See, e.g., B. Isakhan and J. A. Gonzalez Zarandona, ‘Erasing History: Why Islamic State is Blowing up Ancient Artefacts’, The Conversation, 4 June 2017, available online at http://​theconversation​ .com/​erasing​-history​-why​-islamic​-state​-is​-blowing​-up​-ancient​-artefacts​-78667. 71 ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, following the transfer of the first suspect in the Mali investigation: “Intentional attacks against historic monuments and buildings dedicated to religion are grave crimes”’ (ICC), 26 September 2015. 69

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Prosecutorial opportunism and the International Criminal Court  199 International Criminal Court with the destruction of the mausoleums … Two months ago I met the prosecutor and I believe they are progressing rapidly.’72 She subsequently wrote that the ICC ‘is becoming an indispensable actor in the preservation of cultural property in armed conflicts’.73 Prosecuting al Mahdi thus provided the OTP with the opportunity to present itself as a leading actor in addressing an issue that had captured the global public’s attention: the destruction of cultural heritage sites. Doing so would act to bolster the Court’s reputation as a relevant institution combating impunity for historically under-prosecuted crimes.

4.

NEGOTIATING PROSECUTORIAL OPPORTUNISM AND STATE MANIPULATION

Prosecutorial opportunism, as well as the strategies pursued within the Office of the Prosecutor more generally, do not and cannot exist within a political vacuum. On the contrary, it should be expected that states assess and indeed shape their own behaviour towards the ICC in line with their expectations of how the OTP will act and how it will exercise its discretion to target certain types of actors and investigate certain situations. In certain cases, states may use the expression of prosecutorial opportunism in order to satisfy their own interests. This section demonstrates how this can play out through the example of northern Uganda and the surrender and trial of Dominic Ongwen. 4.A

Using ICC Prosecutorial Opportunism Against the ICC

In the early 2000s, the humanitarian situation and long-standing civil war in northern Uganda finally began receiving global coverage as a humanitarian crisis. The nightly migration of children from villages in Acholiland to the relative security of the town of Gulu was documented by NGOs and documentarians and broadcast around the world. In 2003, Jan Egeland, then-UN Undersecretary for Humanitarian Affairs and Emergency Relief famously declared that ‘[t]he conflict in northern Uganda is the biggest forgotten, neglected humanitarian emergency in the world today’.74 At least in part as a means to rescue its reputation and be seen to be doing ‘something’ to address atrocities and suffering in northern Uganda, the government of Uganda was convinced to refer the situation to the ICC. The interests of the government overlapped with those of the Court.75 The OTP saw an investigation of the Lord’s Resistance Army as a distinct opportunity. The ICC needed a first investigation in order to ‘cut its teeth’. The rebel group and its leader, 72 ‘UNESCO refers insurgent destruction of Mali mausoleums to ICC’, Deutsche Welle, 19 July 2015, available online at http://​www​.dw​.com/​en/​unesco​-refers​-insurgent​-destruction​-of​-mali​-mausoleums​-to​ -icc/​a​-18593958. 73 I. Bokova, ‘Ending Impunity for War Crimes on Cultural Heritage: The Mali Case’, International Criminal Justice Today, 22 June 2016 available online at https://​www​.international​-criminal​-justice​ -today​.org/​arguendo/​ending​-impunity​-for​-war​-crimes​-on​-cultural​-heritage​-the​-mali​-case/​. 74 See Al Jazeera, ‘Uganda War “Worst Forgotten Crisis”’, Al Jazeera, 11 November 2003, available online at https://​www​.aljazeera​.com/​archive/​2003/​11/​2008410151518420888​.html. 75 S. M. H. Nouwen and W. G. Werner, ‘Doing Justice to the Political: The International Criminal Court in Uganda and Sudan’, 21 Eur J Intl L (2010) 953–954.

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200  The Elgar companion to the International Criminal Court Joseph Kony, were vilified and universally condemned.76 While deciding between intervening in the Democratic Republic of Congo or northern Uganda, Prosecutor Moreno-Ocampo settled upon the latter. According to one senior staff member: ‘The Court needed a first successful case on a notorious situation, sooner rather than later, and northern Uganda appeared to be the better candidate for that purpose.’77 The US, which was pursuing a series of policies to undermine the ICC at the time of the Court’s intervention, had the LRA on its list of terrorist organizations, and thus would not be threatened by the Office’s decision. On the contrary, it later came to actively support it. Under pressure to address the suffering in the north, the government of Yoweri Museveni negotiated directly with the OTP over an ICC investigation of the LRA and, in 2003, became the first country to issue a self-referral to the ICC. Infamously, although not by accident, the initial referral related to an investigation of the LRA, and not the situation in northern Uganda more generally.78 This was subsequently amended but the concerns of those who believed that the Court would show bias towards the government were justified. The ICC issued five arrest warrants. All were for members of the LRA: leader Joseph Kony, second-in-command Vincent Otti, and commanders Okot Odhiambo, Dominic Ongwen and Raska Lukwiya. As noted above, Moreno-Ocampo argued that the government and UPDF crimes were not of a similar gravity and many had been perpetrated prior to the ICC coming into existence and were thus outside the jurisdiction of the Court. It is easy to understand why the ICC has never targeted the members of the Ugandan government or military. Had it done so, any cooperation from the state would have evaporated and the OTP would have ceased, sacrificing its ability to conduct any investigations in northern Uganda and have any of its targets surrendered. Still, despite only targeting the government’s adversaries, the relationship between the Court and the state deteriorated as the government’s interests and prerogatives changed.79 Seeking to express solidarity with regional partners, including the Kenyan government, President Yoweri Museveni emerged as perhaps the most vociferous public critic of the ICC’s role in Africa, exclaiming that the institution ‘blackmails’80 African states and describing the Court as ‘a bunch of useless people’.81 Under such conditions, it might be assumed that Museveni would refuse to cooperate with a blackmailing Court comprised of useless staff. However, precisely the opposite has transpired. In January 2015, it was reported that Dominic Ongwen had surrendered to US forces operating in the Central African Republic. Ongwen, who along with Kony is one of the two LRA For analyses, see A. Branch, ‘Uganda’s Civil War and the Politics of ICC Intervention’, 21 Ethics & International Affairs (2007) 179–198; S. Finnström, Living With Bad Surroundings—War, History, and Everyday Moments in Northern Uganda (Durham, NC: Duke University Press, 2008); C. Dolan, Social Torture—The Case of Northern Uganda 1986–2006 (New York: Berghahn Books, 2009). 77 Confidential interview, cited in Kersten, Justice in Conflict, supra note 4, at 174. 78 International Criminal Court, ‘ICC—President of Uganda refers situation concerning the Lord’s Resistance Army (LRA) to the ICC’, ICC, 29 January 2004, available online at https://​ www​ .icc ​ - cpi ​ . int/ ​ P ages/ ​ i tem ​ . aspx ​ ? name ​ = ​ p resident ​ + of+uganda+refers+ ​ s ituation+concerning+the+lord​ _s+resistance+army+​_lra​_+to+the+icc. 79 Nouwen and Werner, supra note 75, at 953–954. 80 See AFP, ‘Uganda’s Museveni praises Kenya for rejecting ICC “blackmail”’, Daily Nation, 9 April 2013, available online at http://​www​.nation​.co​.ke/​news/​politics/​Ugandas​-Museveni​-praises​-Kenya​ -for​-rejecting​-ICC​-blackmail/​1064​-1743650​-15lxuf7/​index​.html. 81 See ‘ICC a bunch of useless people—Museveni’, New Vision, 12 May 2016, available online at http://​www​.newvision​.co​.ug/​new​_vision/​news/​1424384/​icc​-bunch​-useless​-people​-museveni. 76

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Prosecutorial opportunism and the International Criminal Court  201 commanders indicted by the ICC who remains alive, subsequently came into the custody of Ugandan forces. With Ongwen in detention, it might have been expected that Uganda would issue an admissibility challenge and argue that he should be prosecuted in Uganda, within the domestic court system. Uganda has a specific unit, the International Crimes Division, set up to hear cases relating to the crimes levied against perpetrators of international crimes such as Ongwen. Instead, the diminutive LRA commander was surrendered to the ICC, via the Central African Republic. This was a significant ‘win’ for the OTP. Nearly ten years after it opened an investigation into northern Uganda, a member of the LRA would finally face trial in The Hague; the Court’s first intervention would not leave it empty handed. This begs the question: given Museveni’s animosity towards the ICC, why hand the Court such a victory? An understanding of how states can manipulate the prosecutorial opportunism and ICC institutional interests would suggest that the government calculated that it could continue to take advantage of the political interests that initially informed the OTP’s decision to intervene in northern Uganda and target the LRA. Surrendering Ongwen to the ICC allows the government of Uganda to avoid political responsibility for a case that has proved controversial with the citizens of northern Uganda. Ongwen has the distinction of being the first formerly abducted child soldier to be prosecuted for the crime of abducting and conscripting children into a rebel group. Ever since the ICC intervened in northern Uganda, the views of northern Ugandan communities have been sharply divided on the appropriateness of prosecuting child soldiers who have been captured or surrendered.82 This continues to colour perceptions of Ongwen’s trial at the ICC. By outsourcing Ongwen’s trial to the ICC, the government of Uganda ensured that the Court—rather than the state—would receive any subsequent criticism for the prosecution of former child soldiers. Having Ongwen surrendered to The Hague also helps the government and UPDF to avoid scrutiny by the ICC. It is worth reiterating: when the ICC opens an investigation following a self-referral, it enters into a dependent relationship with the self-referring government—for access to crime scenes, for evidence collection, to gather witness testimony, and to be able to conduct outreach activities in the relevant territory. So long as that dependency persists, the Court will not risk targeting government officials. Again, the record of the ICC in only targeting the enemies of self-referring governments lends credence to this claim. So too do the statements of senior ICC officials.83 It should thus be expected that governments, especially those like the government of Uganda which have allegedly committed crimes under the ICC’s jurisdiction, will seek to keep the OTP in that state of dependency. Permitting Ongwen’s prosecution to be outsourced to the ICC has had precisely that effect. With Ongwen’s trial ongoing,

82 See ‘Peace First, Justice Later: Traditional Justice in Northern Uganda, Refugee Law Project’, Working Paper 17, Refugee Law Project, July 2005, available online at https://​www​.refugeelawproject​ .org/​files/​working​_papers/​RLP​.WP17​.pdf; T. Allen, Trial Justice: The International Criminal Court and the Lord’s Resistance Army (London: Zed Books, 2006). 83 In response to questions regarding ICC selectivity, Deputy Prosecutor James Stewart has stated: ‘The Prosecutor, for example in the case of Cote d’Ivoire, has always made it clear that she intends to look at all sides of the conflict. Sometimes you just can’t do everything at once. You have to make a choice between action and paralysis and between pragmatism and ideals. And I think if you choose pragmatic action, you really shouldn’t be criticized. But in the end, I suppose history will tell us whether or not the OTP has acted appropriately.’ See M. Kersten, ‘In the ICC’s Interest: Between “Pragmatism” and “Idealism”?’, Justice in Conflict, 16 July 2013, available online at https://​justiceinconflict​.org/​2013/​ 07/​16/​in​-the​-iccs​-interest​-between​-pragmatism​-and​-idealism/​.

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202  The Elgar companion to the International Criminal Court the OTP continues to require the cooperation of the government, its security apparatuses, and its institutions in order to gather additional evidence and witness testimony as well as conduct outreach programmes in communities affected by Ongwen’s crimes. And Museveni is free to partake in anti-ICC rhetoric. It could be argued that impunity for the government of Uganda is the cost of achieving some justice for LRA crimes through the trial of Ongwen. The question of whether this is a price worth paying and the wider issue of the relative costs and benefits of the prosecutorial decisions made by the OTP in northern Uganda is beyond the scope and intent of this chapter. But it is evident that prosecutorial opportunism is a double-edged sword. As the OTP’s practices and strategic operations develop, are applied to an increasing number of situations, and are elaborated by the Office itself, states learn ‘how to keep up’—and therefore learn how to exploit the courts’ interests to suit their own. Prosecutorial opportunities can be manipulated by governments in order to ensure that their interests—including the perpetuation of state-level impunity—are served.

5.

CONCLUDING REFLECTIONS

The International Criminal Court is not solely a legal institution. Nor is its work merely the expression of the political interests of governments or states. The ICC is in a constant negotiation between its identity as an international court and as an international organization. A nuanced appreciation of decision-making within the OTP illustrates that the Office selects cases that will not only have a chance to result in justice for international crimes but will also bolster the institutional interests of the Court. The OTP therefore seeks to identify situations where these interests align—what this chapter has called prosecutorial opportunities. The chapter has sought to illustrate how the ICC negotiates its institutional interests as well as identifying prosecutorial opportunities. Sometimes moving on such opportunities works, as has been seen in the Court’s investigation in Mali and the cases of al Mahdi and al Hassan. At other times, as with the ICC’s intervention in Kenya, it does not work, the Court miscalculates an opportunity, and/or the circumstances out of the institution’s control change without commensurate recalibration from the OTP. And sometimes, as with its relationship with the government of Uganda, states will use the ICC’s institutional interests in order to keep the OTP on a ‘drip feed’ of cooperation whilst satisfying their own political prerogatives. While the broad strokes of the Court’s institutional interests are not likely to change, perhaps the case of Dominic Ongwen should inspire thinking on how to ensure that the expression of the ICC’s interests are not overly predictable. It is worth stressing that while the Court often expresses a certain phobia of being seen as political, appreciating the ICC as a body with institutional interests and which seeks to take advantage of prosecutorial opportunities is not a criticism of the Court. As an international organization interested in projecting credibility and ensuring self-preservation, it should be self-evident that the Court will seek to satisfy its institutional interests. This chapter is therefore not an attempt to judge the appropriateness of ICC decision-making but to offer an explanation of it, through a theory of prosecutorial opportunism.

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Prosecutorial opportunism and the International Criminal Court  203 Ultimately, as Darryl Robinson has cogently argued, there is no ‘goldilocks’ zone for the Court: there is no ‘just right’ when it comes to the selection of situations and cases.84 For some, it will be too much; for others not enough. The choice facing the OTP is not to identify and pursue perfect prosecutorial opportunities that will satisfy all, but to negotiate among imperfect interventions: [T]here is simply no such thing as ‘just right’, i.e. there is no position that cannot plausibly be criticized as either ‘too hot’ or ‘too cold’. Indeed, many positions can be credibly criticized as both ‘too hot’ and ‘too cold’ … The interesting conversation is not just to show that some particular choice is flawed, because they all are; it is to discuss how to choose among the flawed options.85

Ultimately, it is hoped that the conceptualization of prosecutorial opportunism offered in this chapter can help in furthering that conversation.

D. Robinson, ‘Inescapable Dyads: Why the ICC Cannot Win’, Queen’s University, Faculty of Law Research Papers, March 2015. 85 Ibid. at 5, 41. 84

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9. Judges, the registry, and defence counsel Sara Wharton1

INTRODUCTION Ensuring that defendants’ rights are protected is essential for the legitimacy of any criminal proceedings. Unfortunately, historically this was not always a priority of international tribunals. As Kenneth Gallant observes, the focus of criminal justice systems is on ending impunity and suppressing harmful behaviour and ‘[t]he defence and the rights of suspects and the accused are seldom at the forefront of thought when criminal law systems are created’.2 Fortunately, more recently, considerably more attention has been paid to the protection of the rights of accused and suspected individuals in international criminal trials. Such attention is important and overdue. While international humanitarian law historically gave little consideration to the right to a defence for individuals accused of violations, this began to shift in the twentieth century.3 At the end of World War I, the trials contemplated in the Treaty of Versailles included provision for ‘the guarantees essential to the right of defence’, albeit with no further specification of what those rights entailed, as well as the right to counsel of one’s own choosing.4 Following World War II, both the Nuremberg and Tokyo Charters contained a provision guaranteeing fair trial rights. Article 16 of the Nuremberg Charter guaranteed the right of an accused to be informed of the charges against him, to answer the charge, to translation, to counsel, and to present evidence and cross-examine any witnesses of the prosecution.5 The Tokyo Charter contained similar guarantees.6

The author would like to thank Safiyah Husein for her excellent research support assisting with the preparation of this chapter and Amanda Hawkins for her assistance with editing and citations. 2 K. S. Gallant, ‘Politics, Theory and Institutions: Three Reasons Why International Criminal Defence Is Hard, and What Might be Done About One of Them’, 14 Criminal Law Forum (2003) 317–344, at 317. 3 R. J. Wilson, ‘A History of the Role of Defense Counsel in International Criminal and War Crimes Tribunals’, in M. Bohlander, R. Boes and R. J. Wilson (eds), Defense in International Criminal Proceedings: Cases, Materials and Commentary (Ardsley, NY: Transnational Publishers, Inc., 2006) 31–36, at 33. 4 The Treaty of Peace between the Allied and Associated Powers and Germany, concluded at Versailles, 28 June 1919, available online at the Library of Congress https://​www​.loc​.gov/​law/​help/​us​ -treaties/​bevans/​m​-ust000002​-0043​.pdf (visited 4 October 2017), Arts 227 and 229. See Wilson, ibid. at 34. 5 Charter of the International Military Tribunal, annexed to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Access, 8 August 1945, reprinted in 39 American Journal of International Law (AJIL) (1945), at 257. See also Wilson, supra note 3, at 38. 6 Charter of the International Military Tribunal for the Far East, Article 9, available online at www​ .un​.org/​en/​genocideprevention/​documents/​atrocity​-crimes/​Doc​.3​_1946​%20Tokyo​%20Charter​.pdf (last visited 22 May 2017). See also Wilson, supra note 3, at 39. 1

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Judges, the registry, and defence counsel  205 Despite the appearance of some fair trial protections in the Nuremberg and Tokyo Charters, a number of criticisms were made with respect to the adequate protection of the rights of the accused at these Tribunals. At Nuremberg, defendants were interrogated before many had access to counsel.7 Additionally, defence counsel had vastly inadequate time to prepare, in particular given the massive amount of documentation that was produced by the prosecution.8 In fact, some defendants did not secure counsel until a mere eight days before the start of trial.9 Overall, it has been noted that a ‘significant criticism of the Nuremberg Trial was that counsel for the defence were less familiar with the procedures and generally less competent than counsel for the prosecution’.10 Furthermore, Safferling points out the inequality between the prosecution and defence: ‘Twenty seven defence counsels and fifty four junior counsels worked with sixty seven secretaries for the defence of twenty one accused and six indicted organizations. In contrast, the American delegation consisted of some 2000 staff, the British had 170, there were twenty-four Soviet prosecutors and a dozen French jurists.’11 The Tokyo Tribunal has been criticised even more heavily for what one commentator called the ‘dismally disorganized’ defence.12 Again, the accused were interrogated without counsel for a number of months and statements made during this time were admitted at trial.13 Defence counsel received inadequate financial support.14 Again, the disparity in staffing between the prosecution and the defence is noteworthy. It was reported that, once counsel was secured for all defendants, ‘there were 79 Japanese barristers and 24 American defense attorneys [for the defence], while the prosecution team assembled by Chief Prosecutor Joseph Keenan totaled 340 lawyers and American and Japanese staff’.15 Additionally, ‘the prosecution office had 200 translators, [while] the defense shared 72, of which they said only four or five were competent’.16 On top of all of this, the potential bias of some of the judges was at issue.17 As summarised by Gallant, ‘[e]xcept for guaranteeing a right to counsel … [the Nuremberg and Tokyo Tribunals] paid very little attention to the rights of the accused’.18 Compared to the post-World War II proceedings, fair trial guarantees in international criminal trials came a long way by the time of the establishment of the ad hoc international criminal tribunals for the former Yugoslavia and for Rwanda (‘ICTY’ and ‘ICTR’). As one commentator observed, the ICTY, ICTR, and the Special Court for Sierra Leone (‘SCSL’) were among ‘the first international criminal courts to actually look at what a Defence or

Wilson, supra note 3, at 42. Wilson notes that: ‘One defence attorney … counted nearly 200,000 affidavits in evidence. By late August of 1945, the prosecution’s Documentation Division numbered over 100 personnel.’ Ibid. at 43. 9 Ibid. 10 S. Kay, QC and B. Swart, ‘The Role of the Defence’ in A. Cassese, P. Gaeta and J. R. W. D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol. II (Oxford: Oxford University Press, 2002) 1421–1437, at 1423. 11 C. Safferling, International Criminal Procedure (Oxford: Oxford University Press, 2012), at 16–17. 12 Wilson, supra note 3, at 40. 13 Ibid. at 41. 14 Ibid. 15 Ibid. at 42. 16 Ibid. at 44. 17 Ibid. 18 Gallant, supra note 2, at 318. 7 8

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206  The Elgar companion to the International Criminal Court defendant needed to receive a fair trial’.19 However, while equality of arms was recognised as a fair trial guarantee in the jurisprudence of the Tribunals, ‘equality of arms was less obvious in the structural systems created for these Tribunals, where the Defence Counsel and teams have remained largely as outsiders’.20 The housing of institutional responsibility for defence counsel within the Registry, including with respect to the allocation of fees for defence counsel, was criticised.21 David Tolbert, former Chef de Cabinet to the President and Senior Legal Advisor to the Registry at the ICTY, wrote in 2003 that ‘the defense counsel and legal aid systems have been the ICTY’s Achilles’ heel’.22 He criticised the lack of adequate qualification requirements for individuals to act as defence counsel and lack of training requirements for counsel, leading to ‘shockingly poor performances by some defense counsel’.23 Later on, the qualifications at the ICTY for defence counsel were amended with stricter requirements and it was observed that ‘the benefits soon became apparent’.24 A 2008 research paper that surveyed defence counsel at the ICTY, ICTR and SCSL noted a number of criticisms of the Tribunals.25 Among the most common complaints voiced in this survey involved the inadequate resources provided by the Registrar to defence counsel and refusals by the Registrar to reimburse certain expenditures.26 At the ICTR, the inadequate reimbursement of expenses by the Registry was a contributing factor in a defence attorney strike at one point.27 However, some interviewees did note that this improved over time.28 Other criticisms were levied at the prosecution. For example, some were frustrated by the reluctance of the prosecution to satisfy its obligation to disclose exculpatory evidence in a timely manner, while others complained that the prosecution produced—or ‘dumped’—a substantial volume of materials at once.29 However, again, it was suggested by some interviewees that this improved with time.30 Another major complaint by defence counsel related to their difficulties in securing cooperation by some governments and some witnesses with the defence.31 Lack of government cooperation proved particularly problematic at the ICTR, where some interviewees ‘complained that the Rwandan government interfered with their work more directly, by accusing the defense or their investigators of having committed crimes, and in some cases, X.-J. Keïta, ‘Evolution or Revolution: The Defence Offices in International Criminal Law’ (2014), ICTR Legacy Symposium: Evolution of Defence Systems in International Tribunals (Arusha, November 2014), available online at http://​unictr​.unmict​.org/​sites/​unictr​.org/​files/​publications/​compendium​ -documents/​iii​-evolution​-or​-revolution​-icl​-keita​.pdf (visited 22 May 2017), at 2. 20 Ibid. at 2. 21 R. J. Wilson, ‘Assigned Defence Counsel in Domestic and International War Crimes Tribunals: The Need for a Structural Approach’, 2 International Criminal Law Review (Int Crim L Rev) (2002) 145–193, at 176–177 and 183. 22 D. Tolbert, ‘The ICTY and Defense Counsel: A Troubled Relationship’, 37 New England Law Review (2002) 975–986, at 975. See also J. Temminck Tuinstra, Defence Counsel in International Criminal Law (The Hague: T.M.C. Asser Press, 2009) at 39–40. 23 Tolbert, ibid. at 977. 24 Tuinstra, supra note 22, at 40, citing ICTY Thirteenth Annual Report 2006. 25 J. I. Turner, ‘Defense Perspectives on Law and Politics in International Criminal Trials’, 48 Virginia Journal of International Law (2008) 529–594, at 556. 26 Ibid. at 560 and 580. 27 Ibid. at 580. 28 Ibid. 29 Ibid. at 557–558. 30 Ibid. at 557. 31 Ibid. at 580–581. 19

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Judges, the registry, and defence counsel  207 actually jailing the investigators’.32 Finally, a number of defence attorneys, as well as other participants of the ICTY and ICTR, have criticised the implementation of the Tribunals’ Completion Strategies ‘for undermining the rights of the defense, most notably, the rights to confront witnesses and to have adequate time to prepare a defense’.33 Thus, despite the increased attention given to fair trial rights at the ad hoc Tribunals, a number of concerns have been raised with respect to their provision in actual practice. In the drafting of the Rome Statute of the International Criminal Court (‘Rome Statute’) and, subsequently, the adopting of the Rules and Regulations at the International Criminal Court (‘ICC’ or ‘Court’), a fair amount of attention was paid to the protection of accused and suspected individuals before the Court. All parties to criminal proceedings have obligations to ensure that the Court’s proceedings are fair, including ensuring that accused’s rights are protected. Even the Prosecutor has obligations to ensure that trials are fair and efficient and that all necessary information relevant to the case at hand is uncovered. Thus, the Rome Statute obligates the Prosecutor to ‘investigate incriminating and exonerating circumstances equally’34 and to disclose any potentially exculpatory evidence within the prosecution’s possession or control to the accused.35 Furthermore, the Office of the Prosecutor’s (‘OTP’) own Regulations specify that the OTP ‘shall constructively engage with the defence, in order to promote the efficient conduct of proceedings’.36 The Assembly of States Parties (‘ASP’), as the governing body of the Court, also plays an important role in ensuring that defendants’ rights are protected. Not only is the ASP responsible for adopting amendments to the Rules of Procedure and Evidence (‘Rules’) which can impact the fairness and efficiency of the Court proceedings,37 the ASP is also responsible for the Court’s budget.38 Given that many defendants who come before the Court will claim legal aid, resource decisions are integral to ensuring that defendants’ rights are adequately protected. While the fairness of proceedings is critical to the success of the Court and should, therefore, be of concern to all those involved in the Court in any capacity, this chapter will focus on the judiciary, the Registry, and defence counsel, in order to investigate whether defendants’ rights are adequately protected at the ICC.

1. JUDGES The ICC’s judiciary plays a fundamental role in ensuring that defendants’ rights are protected. Out of all of the organs of the Court, the judges are most responsible for guaranteeing the fairness of trials. As stated in Article 64(2) of the Rome Statute, ‘[t]he Trial Chamber shall ensure that a trial is fair and expeditious with full respect for the rights of the accused’. Furthermore, pursuant to Article 68(8)(b), the presiding judge of the Trial Chamber has the power to direct the conduct of proceedings ‘to ensure that they are conducted in a fair and impartial manner’.

Ibid. at 581. Ibid. at 590. See also at 556. 34 Rome Statute of the International Criminal Court, A/CONF.183/9 of 17 July 1998, Art. 54(1)(a) (Rome Statute). 35 Ibid. at Art. 67(2). 36 Regulations of the Office of the Prosecutor (ICC-BD/05-01/09), 23 April 2009, at Regulation 51. 37 Rome Statute, supra note 34, at Art. 51(2). 38 Ibid. at Art. 111(2)(d). 32 33

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208  The Elgar companion to the International Criminal Court Prior to trial, the Pre-Trial Chamber has important obligations to ensure the efficiency and fairness of pre-trial proceedings. The Pre-Trial Chamber is tasked with ensuring that accused are aware of their rights, regardless of whether or not they are raised by the parties, such as the right to apply for interim release before trial.39 Furthermore, the Chambers Practice Manual directs the judges to ‘advise the Defence to take full advantage of the disclosure proceedings … to enable adequate preparations’.40 Thus, an affirmative obligation lies on the Chambers to ensure that accused are properly informed of and granted their rights, and are advised to avail themselves of procedures that will help ensure a fair and efficient trial. Finally, the Appeals Chamber plays a critical role by fulfilling a convicted person’s right to appeal a conviction or sentence, ensuring the correctness of the judgment, as well as correcting other errors that ‘affect the fairness or reliability of the proceedings’.41 Accordingly, pursuant to the Rome Statute, ‘[i]f the Appeals Chamber finds that the proceedings appealed from were unfair in a way that affected the reliability of the decision or sentence, or that the decision or sentence appealed from was materially affected by error of fact or law or procedural error, it may … Reverse or amend the decision or sentence; or … Order a new trial before a different Trial Chamber’.42 In order to ensure that the judges of the Court carry out their role fully, they must be competent, independent, and impartial.43 Article 36(3)(a) of the Rome Statute requires that the judges ‘be chosen from among persons of high moral character, impartiality and integrity who possess the highest qualifications required in their respective States for appointment to the highest judicial offices’.44 This provision mirrors and expands upon Principle 10 of the Basic Principles on the Independence of the Judiciary.45 In order for an individual to be appointed as a judge at the ICC, the Rome Statute requires that they shall either have practical experience in criminal law or expertise in international law with ‘extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court’.46 During the drafting of the Rome Statute, some states suggested that criminal practice experience be a requirement for all judges.47 Earlier drafts included a proposal that the required competences in criminal trial practice and in international law 39 Chambers Practical Manual, II (3). First adopted by the Pre-Trial Chamber, subsequently renamed the ‘Chambers Practice Manual’, February 2016, available online at https://​www​.icc​-cpi​.int/​iccdocs/​ other/​Chambers​_practice​_manual​-February​_2016​.pdf (visited 3 March 2017). 40 Ibid. at IV(1). 41 Rome Statute, supra note 34. Pursuant to Art. 81 of the Rome Statute, while both the convicted person as well as the Prosecutor are able to make an appeal of a conviction or sentence based on procedural error or an error of fact or law, a convicted person is additionally granted the right to make an appeal on ‘[a]ny other ground that affects the fairness or reliability of the proceedings or decision’. See also Art. 82 with respect to rights to appeal an interlocutory decision. 42 Ibid. at Art. 83(2). 43 See Safferling, supra note 11, at 131–135. 44 Supra note 34. 45 ‘Basic Principles on the Independence of the Judiciary’, Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolution 40/32 of 29 November 1985 and 40/146 of 13 December 1985. 46 Rome Statute, supra note 34, at Art. 36(3)(b). 47 M. Bohlander, ‘Pride and Prejudice or Sense and Sensibility? A Pragmatic Proposal for the Recruitment of Judges at the ICC and other International Criminal Courts’, 12 New Criminal Law Review (2009) 529–542, at 533–534. See also M. Bohlander, ‘The International Criminal Judiciary—Problems

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Judges, the registry, and defence counsel  209 be cumulative.48 However, as seen in Article 36 of the Rome Statute, these were ultimately adopted as alternative criteria.49 The failure to mandate prior judicial experience, in particular in criminal law, has been criticised.50 Bohlander expresses concern ‘that judicial positions [at international criminal institutions] are handed out on the basis of membership in informal political networks, also called nepotism’ and he ‘make[s] no bones … about [his] conviction that … diplomats, government officials, and academics [are] ill-suited for such an important and complex judicial office, unless they have also had substantial judicial experience in complex criminal cases’.51 Bohlander also laments the lack of training for judges before they take on their role.52 In addition to certain prior legal expertise, judicial candidates must be fluent in at least one of the working languages of the Court (English or French).53 Other requirements relating to the appointment of judges specify that no two judges on the Court at any one time may be nationals of the same country and that consideration should be given to the need for representation from the different legal systems of the world, geographical representation, and gender representation.54 Finally, ‘States Parties shall also take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children.’55 In addition to legal competencies, it is critical that judges are both impartial and independent.56 The independence of the judiciary is a fundamental part of the guaranteed right to a fair trial and is embedded in the Rome Statute.57 In order to ensure that independence, sitting ICC judges are not able to engage in any other occupation or ‘engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence’.58 Furthermore, judges of the ICC are elected for nine year terms and are not eligible for re-election.59 In addition to being independent, judges must exercise their offices impartially. When judges take up their appointment to the Court, they must make a solemn undertaking in open Court to ‘perform my duties and exercise my powers as a judge of the International Criminal Court honourably, faithfully, impartially and conscientiously, and that I will respect the conof Judicial Selection, Independence and Ethics’, in M. Bohlander (ed.), International Criminal Justice: A Critical Analysis of Institutions and Procedures (London: Cameron, 2007) 325 at 355–357. 48 ‘Pride and Prejudice’, ibid. at 533–534. 49 Ibid. 50 Bohlander proposes that for individuals to be appointed as a judge at the ICC, they ‘would have to show a minimum period of practical experience in judicial criminal trial work’. ‘Pride and Prejudice’, ibid. at 541. 51 Ibid. at 529 and 531–532. See also K. Ambos, Treaties on International Criminal Law, Vol. III (Oxford: Oxford University Press), at 105. 52 Bohlander, ‘Pride and Prejudice’, supra note 47, at 531 and 540. 53 Rome Statute, supra note 34, at Art. 36(3)(c). 54 Ibid. at Art. 36(7) and 38(a). 55 Ibid. at Art. 36(8)(b). 56 Basic Principles on the Independence of the Judiciary, supra note 45, at Principle 2. 57 Rome Statute, supra note 34, at Art. 40(1). 58 Ibid. at Art. 40(2) and (3). 59 Ibid. at Art. 36(9)(a). The only exceptions to the prohibition on re-election were for one-third of the initial pool of judges who were elected for a three-year term (Art. 36(9)(a) and judges who are elected to fill a vacancy for the remainder of their predecessor’s term if less than three years of that term remains (Art. 37(2)).

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210  The Elgar companion to the International Criminal Court fidentiality of investigations and prosecutions and the secrecy of deliberations’.60 The Rome Statute states in Article 41(2)(a) that: ‘A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any grounds’.61 As the Court has stated on many occasions, a judge may be disqualified for actual bias or for an appearance of bias.62 The Court has also reiterated on many occasions that judges are presumed to be impartial and ‘a high threshold must be satisfied in order to rebut the presumption of impartiality which attaches to judicial office’.63 While defendants at the ICC have sought to have judges disqualified for an appearance of bias on a number of occasions, they have generally not been successful.64 Pursuant to Rule 35 of the Rules of the Court, a judge has an obligation to seek excusal if he or she ‘has reason to believe that a ground for disqualification exists in relation to him and her’ and need not ‘wait for a request for disqualification to be made’ by one of the parties. A number of judges have made such requests for excusal and, on a number of occasions, their requests have been granted.65 This shows that the judges of the ICC do take their commitment to impartiality seriously.

60 Ibid. at Art. 45 and Rule 5(1)(a) of the Rules of Procedure and Evidence, Adopted by the Assembly of States Parties, First Session, New York, 3‒10 September 2002, ICC-ASP/1/3 (subsequently abbreviated ‘Rules’). 61 For the Court’s description of the law on judicial disqualification, see Decision on the plenary of the judges on the ‘Defence Request for the Disqualification of a Judge’, The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus (ICC-02/05-03/09-344-Anx), 2 April 2012, 5 June 2012 (‘Banda and Jerbo disqualification decision’), § 10, which also points to Rule 34 of the Rules; Decision of the plenary of judges on the Defence Application of 20 February 2013 for the disqualification of Judge Sang-Hyun Song from the case of The Prosecutor v. Thomas Lubanga Dyilo, The Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04-01/06-3040-Anx), 11 June 2013, (‘Lubanga disqualification decision’), § 8; Decision of the Plenary of Judges on the Defense Application for the Disqualification of Judge Cuno Tarfusser from the case of The Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, Prosecutor v. Jean-Pierre Bemba et al., (ICC-01/05-01/-13-511-Anx), 20 June 2014 (‘Bemba et al. disqualification decision’), § 15; ‘Decision of the Plenary of Judges on the Application of the Legal Representative for Victims for the disqualification of Judge Christine Van den Wyngaert from the case of The Prosecutor v. Germain Katanga’, The Prosecutor v. Germain Katanga, (ICC-01/04-01/07-3504-Anx), 22 July 2014, (‘Katanga disqualification decision’), §§ 35–37; ‘Decision of the Plenary of Judges on the Defence Application for the Disqualification of Judge Silvia Fernández de Gurmendi from the case of The Prosecutor v. Thomas Lubanga Dyilo’, The Prosecutor v. Thomas Lubanga Dyilo, (ICC-01/04-01/06-3154-Anx1), 3 August 2015 (‘Second Lubanga Disqualification Decision’), §§ 26–27. 62 Banda and Jerbo disqualification decision, Ibid. at § 11; Lubanga disqualification decision, Ibid. at § 9; Bemba et al. disqualification decision, Ibid. at §§ 16–17; Katanga disqualification decision, Ibid. at §§ 38–39; Second Lubanga disqualification decision, Ibid. at § 28. 63 Banda and Jerbo, disqualification decision, Ibid. at § 14; Lubanga disqualification decision, Ibid. at § 10; Bemba et al. disqualification decision, Ibid. at § 18; Katanga disqualification decision, Ibid. at § 40; Second Lubanga disqualification decision, Ibid. at § 29. 64 See, e.g., Banda and Jerbo disqualification decision, Ibid. Lubanga disqualification decision, Ibid. Bemba et al. disqualification decision, Ibid. Second Lubanga Disqualification Decision, Ibid. 65 E.g., the request for excusal of Judge Monageng in the Ruto and Sang case. ICC, Internal memorandum from Judge Sanji Monageng to the Presidency, 18 September 2015, (ICC-01/09-01-11-1968-Anx); Judge Gurmendi was excused from sitting on a number of appeals in the Ntaganda case and the Bemba case on the basis of her prior involvement due to her previous position held in the Office of the Prosecutor. ICC Internal memorandum from the Presidency to Judge Silvia Fernández de Gurmendi,

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Judges, the registry, and defence counsel  211 In March of 2005, the judges of the Court adopted the ICC’s Code of Judicial Ethics to provide ‘guidelines of general application to contribute to judicial independence and impartiality and with a view to ensuring the legitimacy and effectiveness of the international judicial process’.66 As set out in this Code, the judges are to maintain their independence, impartiality, and integrity.67 For example, judges are obligated to avoid actual or perceived conflicts of interests68 and are not to ‘accept any gift, advantage, privilege or reward that can reasonably be perceived as being intended to influence the performance of their judicial functions’.69 Judges may be disqualified if their independence or impartiality is threatened and either the Prosecutor or a person being investigated or prosecuted may seek such disqualification.70 Chapter 8 of the Regulations of the Court contains the detailed procedures for lodging a complaint against a judge (or the Prosecutor, Deputy Prosecutor, Registrar, or Deputy Registrar) and removing a judge or other Court official, if necessitated.71 Schabas commends the Rome Statute for ‘provid[ing] the most advanced and thorough regime in order to ensure both independence and impartiality of its judiciary’, noting that ‘[i]t constitutes a dramatic improvement on the norms applicable to the ad hoc tribunals’.72 The judges of the ICC have an important role to play in managing the conduct of proceedings.73 As one commentator observes, ‘[e]ven more than the Judges of the ICTY and ICTR, the ICC Judges are endowed with considerable (investigative) autonomy and power to control the proceedings’.74 Accordingly, the Rome Statute gives the Chambers the power to ‘request the submission of all evidence that it considers necessary for the determination of the truth’.75 Additionally, Regulation 54 of the Regulations of the Court includes a long list of orders that the Trial Chamber can mandate in a status conference as a way to manage proceedings.76 These include determining the number and identity of witnesses to be called and the length of

21 October 2015, ICC-01/04-2/06-925-AnxI; ICC, Internal memorandum from the Presidency to Judge Silvia Fernández de Gurmendi, 20 March 2015, ICC-01/05-01/08-3245-AnxI. 66 ICC, Code of Judicial Ethics (ICC-BD/02-01-05), Preamble. See Ambos, supra note 51, at 107–109. 67 Code of Judicial Ethics, Ibid. at Arts 3–5. 68 Ibid. at Art. 4(2). 69 Ibid. at Art. 5(2). 70 Rome Statute, supra note 34, at Art. 41. 71 Regulations of the Court (ICC-BD/01-01-14), Adopted by the judges of the Court on 26 May 2004, Fifth Plenary Session, The Hague, 17–28 May 2004, at Regulations 119–125. 72 W. A. Schabas, ‘Article 67: Rights of the accused’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (2nd edn., München: C.H. Beck, 2008) 1247 at 1255. See also Bohlander, ‘The International Criminal Judiciary’, supra note 47 at 325. 73 However, see the Hon. D. Hunt, ‘The International Criminal Court: High Hopes, “Creative Ambiguity” and an Unfortunate Mistrust in International Judges’, 2 Journal of International Criminal Justice (2004) 56–70, at 61–63 and 70. 74 G. J. A. Knoops, ‘The Dichotomy Between Judicial Economy and Equality of Arms within International and Internationalized Criminal Trials: A Defense Perspective’, 28 Fordham International Law Journal (2005) 1566–1594, at 1572. See also Ambos, supra note 50 at 99–100. 75 Rome Statute, supra note 34, at Art. 69(3). See also Art. 64(6)(d), pursuant to which the Trial Chamber may ‘Order the production of evidence in addition to that already collected prior to the trial or presented during the trial by the parties’. See G. Bitti, ‘Article 64: Functions and Powers of the Trial Chamber’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, (2nd edn., München: C.H. Beck, 2008), at 1213. 76 See Knoops, supra note 74, at 6 and Safferling, supra note 11, at 143.

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212  The Elgar companion to the International Criminal Court questioning of witnesses, the issues to be addressed at trial, setting ‘[t]he length and content of legal arguments and the opening and closing statements’, and rulings on disclosure of evidence (amongst many others). This is just one of the many provisions in the Regulations of the Court that provide judges with a wide scope for managing the conduct of trials.77 As the late Judge Kaul wrote: ‘The Statute creates strong incentives for the judge to play an active role in running the trial and seeking the truth.’78 This, of course, means that a great deal will depend on the individual judges themselves.79

2.

THE REGISTRY

Whereas the roles of the judiciary and defence counsel in protecting defendants’ rights are obvious, the critical role played by the Registry in protecting defendants’ rights may be less apparent to those unfamiliar with the Court. The Registry does, however, play a substantial role in ensuring that defendants’ rights are adequately protected at the ICC.80 The Registry is one of the primary organs of the Court, alongside the Presidency, the Chambers of the Court, and the Office of the Prosecutor, and is ‘responsible for the non-judicial aspects of the administration and servicing of the Court’.81 Thus, the Registry is a ‘neutral’ organ of the Court, with diverse responsibilities including: supporting judicial proceedings; external affairs such as outreach, victim and witness support; and administrative support such as management of human resources and finances.82 Through this varied mandate, the Registry plays an integral role in ensuring the protection of defendants’ rights. The Registry is responsible for facilitating the legal representation of defendants. It also manages the Court’s legal aid programme. Additionally, the Registry manages the detention centre and, thus, plays a significant role in ensuring that defendants’ rights are protected while detained at the seat of the Court. Key responsibilities of the Registrar towards the defence can be found in Rule 20 of the Rules of Procedure and Evidence.83 As an overarching principle, the chapeau of Rule 20(1) obligates the Registrar to ‘organize the staff of the Registry in a manner that promotes the rights of defence, consistent with the principle of fair trial as defined in the Statute’. More specifically, this Rule assigns to the Registry a number of important responsibilities for the purposes of protecting the rights of accused individuals.84 Many of these functions are implemented by the Registry’s Counsel Support Section (‘CSS’).85 See also Regulations 29(1), 43 and 44 of the Regulations of the Court, supra note 71. H.-P. Kaul, ‘Construction Site for More Justice: The International Criminal Court After Two Years’, 99 AJIL (2005) 370–384, at 376. 79 Bohlander, ‘Pride and Prejudice’, supra note 47, at 531. 80 See e.g., H. Farthofer, ‘The Registry’, in C. Safferling, International Criminal Procedure (Oxford: Oxford University Press, 2012), at 157–164. 81 Rome Statute, supra note 34, at Arts 34 and 43(1). 82 See Comprehensive Report on the Reorganisation of the Registry of the International Criminal Court, August 2016, p.  1, available online at https://​www​.icc​-cpi​.int/​itemsDocuments/​ICC​-Registry​-CR​ .pdf (visited 24 May 2017). 83 See Wilson, supra note 21, at 158–9. 84 Rules, supra note 60, at Rule 20(2). 85 Registry ReVision Project, ‘Draft—Basic Outline of Proposals to Establish Defence and Victims Offices’, at 6, available online at www​.uianet​.org/​sites/​default/​files/​Registry​_ReVision​_BasicOutline​ _Defence​_Victims​_Offences​_0​.pdf (visited 24 May 2017). 77 78

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Judges, the registry, and defence counsel  213 One of the key roles that the Registry plays in relation to protecting defendants’ rights is supporting defendants in the process of obtaining representation. First, the Registry created and maintains lists of counsel.86 It also facilitates the logistics of appointment of counsel87 and ensures that duty counsel are appointed and available when required.88 The Registry was also made responsible for the establishment of an Office of the Public Counsel for the Defence (‘OPCD’).89 The OPCD was an innovation in the Rome Statute, and is discussed further below. Finally, the Registry provides assistance to individuals who choose to appear without representation.90 In addition to supporting judicial proceedings, the Registrar has responsibilities in order to ensure that defence counsel are able to fulfil their role, including providing defence with facilities as needed during their tenure at the seat of the Court,91 assisting with travel and communication,92 and providing defence counsel with the case law of the Court.93 The Registry also maintains a list of experts and investigators that can be made available to defence counsel.94 The Registry also runs the Court’s legal aid system. Given that a large number of defendants who come before the Court are likely to claim indigence,95 this mandate of the Registry is one of the most significant with respect to ensuring the fairness of trials. In this capacity, the Registry is responsible for determining the applicant’s means and making determinations about the eligibility of an individual to legal aid.96 Thus, the Registrar is responsible for determining the scope of legal assistance to be paid by the Court in a given case and for administering the legal aid regime.97 However, decisions of the Registry relating to legal aid are ultimately reviewable by the Chambers in any given case.98 The Court’s legal aid regime will be discussed further below. In addition to supporting judicial proceedings, the Registry is also responsible for guaranteeing the rights of defendants while they are in the Court’s detention centre. The Regulations of the Registry set out lengthy procedures and protections in relation to the detention of individuals subject to proceedings before the Court.99 Importantly, the Registrar is also responsible

See e.g., Rules, supra note 60, at Rule 21(2). Regulations of the Court, supra note 71, at Regulation 75. 88 Regulations of the Registry, approved by the Presidency on 6 March 2006, as amended, ICC-BD/03-03-13, at Regulation 129. 89 Regulations of the Court, supra note 71, at Regulation 77(1). 90 Regulations of the Registry, supra note 88, at Regulation 119(2). 91 Rules, supra note 60, at Rule 20(1)(e); Regulations of the Court, supra note 71, at Regulation 73. 92 Regulations of the Registry, supra note 88, at Regulation 119(1). 93 Rules, supra note 60, at Rule 20(1)(f). 94 Regulations of the Court, supra note 71, at Regulation 44(1); Regulations of the Registry, supra note 88, at Regulation 137. 95 While the high profile accused in the Kenya cases were able to pay for their own defence teams, such a situation ‘is relatively unique’ and most defence attorneys have to rely on court resources. J. I. Turner, ‘Defense Perspectives on Fairness and Efficiency at the International Criminal Court’, in K. J. Heller et al. (eds), Oxford Handbook of International Criminal Law (Oxford: Oxford University Press, 2019), SMU Dedman School of Law Legal Studies Research Paper No. 349, at 17. Available online, at https://​papers​.ssrn​.com/​sol3/​papers​.cfm​?abstract​_id​=​2940483. 96 Regulations of the Court, supra note 71, at Regulation 84(1). 97 Ibid. at Regulation 83(1). 98 Ibid. at Regulation 83(4). 99 Regulations of the Registry, supra note 88, at Regulations 150–223. 86 87

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214  The Elgar companion to the International Criminal Court for ensuring that detained persons have access to legal assistance, to diplomatic or consular assistance, and to a religious or spiritual adviser.100 Finally, beyond the day-to-day running of the Court and the detention facility, the Registry also fulfils an important role with respect to the provision of training opportunities for counsel and other individuals.101 Pursuant to this mandate, the Registry organises an annual Seminar and Training of Counsel for all lawyers on the list of counsel as well as other international legal experts and members of the legal profession.102 These seminar and training sessions include discussions of key development at the ICC, practical training sessions on topics such as ‘professional advocacy [and] examination and cross-examination of witnesses’, as well as technical training such as on the use of the ICC’s ‘e-Court’ system.103 While the majority of these training sessions have been held in the Netherlands near the seat of the Court, more recently a couple of training sessions were held in locations in African countries, closer to the localities of the cases currently before the Court.104 In fact, in fulfilling this training mandate, the Registry is to ‘take all necessary steps to encourage an equal geographical and gender distribution of training opportunities’ including making such training ‘available in countries where the infrastructure does not allow for regular training, or where a situation has been brought before the Court’.105 As demonstrated, the Registry fulfils many roles aimed at protecting the rights of defendants at the ICC. The structure of how these services were to be provided was at issue in the Registry’s recent major structural re-organisation, entitled the ‘Registry’s ReVision Project’. In this process, it was noted that ‘a fresh look at how the Court administers and supports the Defence is required’.106 Accordingly, it was proposed that ‘all Defence-support functions’ of the Registry, including the OPCD and the defence-related aspects of the CSS, be combined into a single Defence Office.107 The proposed office would be responsible for fulfilling the Registry’s obligation in supporting defence counsel as outlined in Rule 20 of the Rules and would carry out most of the work currently being done by the OPCD and the CSS with the exception of actual representation of individuals, which would be carried out by external counsel.108 The proposal, alongside a proposal to create a single Victims Office, garnered a lot of attention from civil society and other stakeholders. However, the large-scale reorganisation of the Registry, which began to be implemented in 2015, put the establishment of a single Defence and Victims Office on hold because the proposed new mandates would require

Ibid. at Regulations 151–153. Ibid. at Regulation 140. See also Regulations 141–142. 102 See e.g., ICC Press Release, ‘ICC opens eleventh Seminar and Training of Counsel in The Hague’ (ICC-CPI-20131021-PR955), 21 October 2013. 103 Ibid. 104 ICC Press Release, ‘ICC holds sub-Regional seminar of Counsel and the Legal Profession in Arusha, Tanzania’, (ICC-CPI-20160208-PR1187), 8–12 February 2016, 8 February 2016; AICC, International Criminal Court Seminar for Counsel, available online at http://​www​.aicc​.co​.tz/​event/​ international​-criminal​-court​-seminar​-for​-counsel (visited 24 May 2017). 105 Regulations of the Registry, supra note 88, at Regulation 142. 106 Registry ReVision Project, supra note 85, at 6. 107 Ibid. at 9. 108 It was felt that the limited amount of actual representation work that the OPCD was currently doing was insufficient to justify maintaining this role. Ibid. at 7 and 9. 100 101

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Judges, the registry, and defence counsel  215 amendments to the Regulations of the Court.109 In fact, the four offices of the Registry serving the defence and victims, the CSS, OPCD, Office of Public Counsel for Victims, and the Victim Participation and Reparation Section, were the only units of the Registry that were left as they previously were, at least for the time being.110

3.

DEFENCE COUNSEL

The critical role of defence counsel in protecting the right of individuals accused of crimes at international criminal courts or tribunals was, for a long time, an overlooked area of international criminal law. Defence lawyers face the challenging task of representing unsympathetic clients in a highly charged atmosphere.111 Recently, however, significantly more attention has been paid to the role that defence counsel play in these proceedings.112 This is an important advancement as defence counsel are integral to ensuring fair trials and protecting the rights of defendants. In the words of Elise Groulx, founder of the International Criminal Defence Attorneys Association (‘ICDAA’), ‘defence counsel act as fair trial watchdogs, acting both for their clients and for the system’.113 During the drafting process of the Rome Statute, the ICDAA and a number of NGOs advocated an independent Office of the Defence to be established as an organ of the Court.114 It was hoped that this approach would help overcome some of the ‘problems’ or ‘mistakes’ of the ad hoc international criminal tribunals.115 Ultimately, the proposal was not adopted in the Rome Statute. Thus, whereas the OTP is one of the main organs of the Court, defence counsel are not ICC staff (with the exception of the OPCD, as discussed further below).116 Thus, as mentioned above, support for defence counsel is housed within the Registry. The counsel who represent the defendants at the ICC are experienced lawyers from around the world. Defendants can hire counsel of their choosing who meet the eligibility requirements or, if indigent, defendants can select counsel from the list of counsel maintained by the Registry.117

109 ‘The revised concept was presented on 28 May 2015 for the consideration of the judges in view of the necessary amendments to the Regulations of the Court required to fully implement these initiatives.’ Comprehensive Report on the Reorganisation of the Registry of the International Criminal Court, supra note 82, at 132. See also at 12, 110, fn. 125, and 131–132. 110 Ibid. at 2. 111 Wilson, supra note 21, at 147. Wilson, supra note 3, at 32 and 42. 112 See e.g., C. Rohan and G. Zyberi, Defense Perspectives on International Criminal Justice (Cambridge: Cambridge University Press, 2017); M. Bohlander, R. Boes and R. J. Wilson (eds), Defense in International Criminal Proceedings: Cases, Materials and Commentary (Ardsley, NY: Transnational Publishers, Inc., 2006); Tuinstra, supra note 22; Kay and Swart, supra note 10; Turner, supra note 95; and A. Hartwig, ‘The Accused and the Defence Counsel’ in C. Safferling, International Criminal Procedure (Oxford: Oxford University Press, 2012) 179–191. 113 E. Groulx, ‘The Defense Pillar: Making the Defense a Full Partner in the International Criminal Justice System’, 25 Champion (2001) 20–27, at 22. 114 Ibid, at 24; Wilson, supra note 21, at 191–192; Tuinstra, supra note 22, at 90. 115 Groulx, supra note 113, at 24; Keïta, supra note 19, at 3–4. 116 See ICC Website at https://​www​.icc​-cpi​.int/​about/​defence (last visited 25 February 2017). 117 Regulations of the Court, supra note 71, at Regulation 75(1) and (2).

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216  The Elgar companion to the International Criminal Court In addition to appointment of permanent defence counsel, counsel may be assigned temporarily as ad hoc or duty counsel. The Regulations of the Court provide for the establishment of a list of duty counsel.118 Duty counsel may be drawn from the list of counsel and must have at least ten years’ experience.119 Duty counsel may be appointed by the Registrar ‘[i]f any person requires urgent legal assistance and has not yet secured legal assistance, or where his or her own counsel is unavailable’.120 The term ad hoc counsel has been used to refer to counsel ‘appointed to represent the general interests of the defence’, generally during the investigative or ‘situation stage’, where no accused has been identified or charged or the suspect remains at large.121 As Dieckmann and Kerll note, by granting chambers the ability to appoint counsel at such early stages, ‘the ICC endeavours to ensure equality of arms throughout the proceedings under its jurisdiction, and ultimately to protect the fairness of any resulting cases against individuals’.122 While the Statute and the Rules indicate two discrete situations where such counsel may be warranted,123 the vast majority of ad hoc counsel have been appointed pursuant to the general power under Regulation 76(1) of the Regulations of the Court which specifies that: ‘A Chamber … may appoint counsel in the circumstances specified in the Statute and the Rules or where the interests of justice so require’.124 Ad hoc counsel can be external counsel appointed from the list of counsel or members of the OPCD.125 Ad hoc counsel were first used by the Court in 2005 and, since then, have been appointed by Pre-Trial Chambers in a number of proceedings.126 However, the limited mandate afforded to ad hoc counsel has been criticised.127 Additionally, it has been suggested that ‘in their daily practice these counsels have experienced uncertainty in exercising their individual mandates and defining their consequent rights and duties’.128 Finally, the overall structure of the provision of defence counsel has been criticised. As Dieckmann and Kerll note, ‘the “disjointed” structure of the defence system at the ICC, with representation divided between ad hoc and “true” defence counsel, can be seen to undermine the formation of a consistent defence strategy throughout the various stages of proceedings’.129

Ibid. at Regulation 73. Ibid. at Regulation 73(1). 120 Ibid. at Regulation 73(2). 121 J. Dieckmann and C. Kerll, ‘Representing the “General Interests of the Defence”; Boon or Bane?—A Stocktaking of the System of ad hoc Counsel at the ICC’, 11 Int Crim L Rev (2011) 105–136, at 106 and 109–111. See also Ambos, supra note 51 at 153–156. 122 Dieckmann and Kerll, ibid. at 109. 123 See Art. 56(2)(d) of the Rome Statute, supra note 34 and Rule 47(2) of the Rules, supra note 60. See also ibid. at 109–110. 124 Emphasis added. See Dieckmann and Kerll, supra note 121 at 110. 125 Ibid. at 111. 126 Ibid. at 106. 127 Ibid. at 134. 128 Ibid. at 106. 129 Ibid. at 134. 118 119

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Judges, the registry, and defence counsel  217 3.A

Right to Counsel

A defendant’s right to counsel, which has been described as ‘a cornerstone of fair criminal justice’,130 can be found in a number of provisions in the Rome Statute and the Rules.131 First, the right to counsel is listed among the core fair trial rights of the accused guaranteed in Article 67 of the Rome Statute.132 In particular, pursuant to Article 67(1)(b) of the Rome Statute, an accused has the right ‘[t]o have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused’s choosing in confidence’. Additionally, Article 67(1)(d) of the Rome Statute states that an accused individual has the right ‘to conduct the defence in person or through legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it’. Thus, the provision guarantees the right to counsel, the right of an accused to choose their own counsel, and the right to free legal counsel if they lack sufficient means to pay. With respect to the right of counsel during an investigation, the Rome Statute explicitly provides for this in two particular circumstances.133 First, pursuant to Article 55(2) of the Rome Statute, an individual is entitled to legal assistance if being questioned as a suspect in the case. Additionally, the Pre-Trial Chamber may authorise counsel in relation to an individual who is arrested or who appears before the Court in relation to a ‘unique investigative opportunity’ pursuant to Article 56 of the Rome Statute.134 While the Rome Statute does not explicitly refer to the right of an accused to counsel at other pre-trial stages of proceedings,135 this is necessary for protecting defendant’s rights given the seriousness of the proceedings. Rules 20(c) and 117(2) of the Rules appear to extend the right to counsel to all ‘arrested persons’ before the Court. Finally, the right to counsel can be found in one other provision of the Rules. Rule 173(3) guarantees the right to counsel in relation to an individual who is seeking compensation for unlawful arrest or detention pursuant to Article 85 of the Rome Statute. The right of the accused to choose his or her own counsel is explicitly referred to twice in Article 67 of the Rome Statute and also in Article 55 in relation to a person being questioned during the investigative phase.136 This is facilitated by the Registry, which maintains a list of counsel. As provided in Rule 21 of the Rules, ‘[t]he person shall freely choose his or her counsel from this list or other counsel who meets the required criteria and is willing to be included in the list’.137 A number of criticisms have been made about the processes relating to the list and selection of counsel. First, it takes an overly long time for an application to be included on the list of

K. S. Gallant, ‘The Role and Powers of Defense Counsel in the Rome Statute of the International Criminal Court’, 34 The International Lawyer (2003) 21–44, at 22. 131 Kay and Swart, supra note 10, at 1431; Dieckmann and Kerll, supra note 121, at 107–109; Ambos, supra note 51, at 141–143. 132 Gallant, supra note 130, at 24–29. 133 Ibid. at 22–24. 134 Rome Statute, supra note 34, at Art. 56(2)(d). 135 With the exception of the Court proceeding with a confirmation of charges proceeding in the absence of an accused. Ibid. at Art. 61(2). 136 Ibid. at Art. 67(1)(b) and (d) and Art. 55(2)(c). 137 Rules, supra note 60. 130

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218  The Elgar companion to the International Criminal Court counsel to be determined (often taking over a year).138 Also, the process for selecting counsel has been criticised as ‘opaque’.139 Finally, the provision of the full list of over 600 lawyers to accused individuals has been criticised as unwieldy and unhelpful to those needing to select counsel.140 As a 2017 Expert Report on the Court’s Legal Aid system notes, ‘[b]oth CSS staff and defence teams were of the view that the defendants had not selected their counsel from the full list of lawyers—rather they had selected counsel who had been recommended (for example, by another defendant), or one who had directly contacted the defendant or his family (sometimes before arrest)’.141 Thus, the current processes relating to the list of counsel appear not to be functioning as they are intended and revisions should be considered. 3.B

Competence of Defence Counsel

Ensuring that all defendants are represented by competent counsel is critical to protecting the rights of defendants. As Schabas notes, ‘[t]he right to counsel includes a right to adequate, qualified counsel’.142 The qualifications required for counsel to be included on the list and to represent accused individuals before the Court are set out in the Rules and Regulations of the Court. Pursuant to Rule 22(1) of the Rules, ‘[a] counsel for the defence shall have established competence in international or criminal law and procedure, as well as the necessary relevant experience, whether as a judge, prosecutor, advocate or in other similar capacity, in criminal proceedings. A counsel for the defence shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court.’ The criteria for what amount to ‘the necessary relevant experience’ were subsequently adopted in the Regulations of the Court. Specifically, pursuant to Regulation 67 of the Regulations of the Court, counsel shall have at least ten years’ experience and associate counsel shall have at least eight years’ experience.143 Assistants to counsel are required to have ‘either five years of relevant experience in criminal proceedings or specific competence in international or criminal law and procedure’.144 Furthermore, counsel should be of good character.145 3.C

Ethical Obligations of Defence Counsel

All defence counsel must abide by the Code of Professional Conduct for Counsel (‘Code of Conduct’).146 Pursuant to this Code, all counsel owe duties to their client, to the Court, to other counsel, and to witnesses and victims. All counsel must give a solemn undertaking

138 R. J. Rogers, ‘Assessment of the ICC’s Legal Aid System’, 5 January 2017, available online at https://​www​.icc​-cpi​.int/​itemsDocuments/​legalAidConsultations​-LAS​-REP​-ENG​.pdf (visited 26 May 2017), § 192. 139 Ibid. at § 193. 140 Ibid. at §§ 193 and 196. 141 Ibid. at § 193. 142 Schabas, supra note 72, at 1262–1264. 143 Regulations of the Court, supra note 71. 144 Regulations of the Registry, supra note 88, at Regulation 124. 145 Regulation 67(2), Regulations of the Court, supra note 71. 146 Code of Professional Conduct for counsel, Annexed to Resolution ICC-ASP/4/Res.1, 2 December 2005, Article 1. See Ambos, supra note 51, at 147–151; Tuinstra, supra note 22 at, 195–198.

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Judges, the registry, and defence counsel  219 before the Court that they will perform their duties ‘with integrity and diligence, honourably, freely, independently, expeditiously, and … will scrupulously respect professional secrecy and other duties imposed by [this] Code’.147 Furthermore, counsel must be ‘respectful and courteous’ when dealing with any individual at the Court including members of the Chamber, the Prosecutor and members of the OTP staff, the Registry, the client, and any other individual involved in proceedings.148 Pursuant to Article 14 of the Code of Conduct, ‘[t]he relationship of client and counsel is one of candid exchange and trust, binding counsel to act in good faith when dealing with the client. In discharging that duty, counsel shall act at all times with fairness, integrity and candour towards the client.’149 Obligations placed on counsel vis-à-vis his or her client can be found in Article 9 and include not engaging in discriminatory conduct, taking any special circumstances or needs of the client into account, and informing the Court if the client’s decision-making capacity is impaired. Additionally, ‘[c]ounsel shall not engage in any improper conduct, such as demanding sexual relations, coercion, intimidation, or exercise any other undue influence in his or her relations with a client’.150 Counsel are also obligated to ensure that they avoid any potential conflict of interest.151 Should such conflict arise, counsel must inform all affected parties and either withdraw (with the consent of the Chamber) or ‘[s]eek the full and informed consent in writing of all potentially affected clients to continue representation’.152 In addition to duties owed to the client, counsel also hold important duties to the Court and the overall administration of justice. Counsel must ensure that his or her actions or the actions of his or her team ‘are not prejudicial to the ongoing proceedings and do not bring the Court into disrepute’.153 Additionally, ‘[c]ounsel shall not deceive or knowingly mislead the Court’ and must take necessary steps to correct any erroneous statements as soon as he or she becomes aware of the error.154 At the ad hoc international criminal tribunals, a number of allegations were made of ethical violations of some defence counsel including fee-splitting, witness manipulation, intimidation and bribery of witnesses, harassment, and failing to show up in court.155 Unfortunately, despite the adoption of the Code of Conduct, the ICC has already had issues with counsel in the Bemba case with the lead defence counsel being convicted of offences against the administration of justice pursuant to Article 70 of the Rome Statute for corruptly influencing witnesses, presenting their false evidence, and inducing the giving of false testimony by witnesses.156

147 Code of Conduct, Ibid. at Art. 5. See also Art. 6(1) which reiterates that ‘Counsel shall act honourably, independently, and freely’. 148 Ibid. at Art. 7(1). 149 Supra note 146. 150 Ibid. at Art. 9(4). 151 Ibid. at Art. 16. 152 Ibid. 153 Ibid. at Art. 24(1). 154 Ibid. at Art. 24(3). 155 Wilson, supra note 21, at 171–173. 156 ICC, The Prosecutor v. Bemba et al., Judgment pursuant to Art. 74 of the Statute, (ICC-01/05-01/13-1989-Red), 19 October 2016.

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220  The Elgar companion to the International Criminal Court 3.D

Office of the Public Counsel for the Defence

The OPCD is a permanent office within the administrative remit of the Registry of the Court but which ‘shall function as a wholly independent office’.157 The OPCD was established in May 2004 pursuant to the Regulations of the Court.158 It was created in response to a push by NGOs, with the support of a number of states, in response to concerns ‘that the Statute did not provide sufficiently for the needs of the defense’.159 From 2008 until the present, the OPCD has been permanently staffed by five employees.160 The Regulations of the Court outline the structure and functions of the OPCD. The OPCD is intended to take on duties related to the rights of defence during the early investigative process, ensure assistance and support to suspects and accused, as well as provide legal research or advice.161 The OPCD lawyers may also appear before the Chambers as needed on specific issues.162 While it was likely envisioned that the OPCD would provide a more significant role representing individuals before the Court, in particular at early investigatory stages, the Registry recently noted that this has not actually been the case. A report produced as part of its ReVision project stated that: ‘since the OPCD’s establishment in 2006, it has only been assigned a handful of times as Duty Counsel or ad hoc Counsel, and only once, briefly, as Counsel (in the Gadaffi case). By and large, representation of suspects and accused by independent external counsel remains the norm, including for Duty Counsel assignments’.163 Thus, the ReVision project’s proposal to create an amalgamated Defence Office sought to enhance the office’s capacity to provide research and other support functions to counsel while removing its representation function.164 The OPCD may also be seen as ‘the institutional voice of the defence’ at the Court.165 Xavier-Jean Keïta, Principle Counsel of the OPCD, has written that ‘the Office has taken on a role of ensuring Defence representation within the policy-making bodies of the ICC, by mere suggestion of Defence input where it is overlooked to collecting and representing the Defence

157 Regulations of the Court, supra note 71, at Regulation 77(2). Regulations of the Registry, supra note 88, Regulation 144(1). 158 Keïta, supra note 19, at 4. See ICC-ASP, Report of the Assembly of States Parties on Options for Ensuring Adequate Defence Counsel for Accused Persons, ICC-ASP/3/16, 17 August 2004, §§ 7–12. 159 Coalition of the International Criminal Court, ‘Delivering on the promise of a fair, effective and independent court – Legal Representation’, available online at http://​www​.iccnow​.org/​?mod​=l​egalrep (visited 24 February 2017); E. Groulx, ‘Equality of Arms’: Challenges Confronting the Legal Profession in the Emerging International Criminal Justice System’, 3 Oxford University Comparative Law Forum (2006). 160 Keïta, supra note 19, at 5; Comprehensive Report on the Reorganisation of the Registry of the International Criminal Court, supra note 82, at 39. 161 Regulations of the Court, supra note 71, at Regulation 77; ‘Observations of the Office of the Public Counsel for the Defence on the Decision of Pre-Trial Chamber I entitled “Decision on the defence request for extension of time”’, Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04-01/06-823-tENG), p-T. Ch. I, 12 February 2007, § 11; see Kaul, supra note 78, at 372. 162 Regulations of the Court, supra note 71, at Regulation 77. 163 Registry ReVision Project, supra note 85, at 6–7. 164 Ibid. at 6–7. 165 Keïta, supra note 19, at 4, citing: International Bar Association (IBA), Fairness at the International Criminal Court, August 2011, at 29.

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Judges, the registry, and defence counsel  221 team input for the use of various working groups’.166 However, the Registry ReVision project criticised the suitability of the OPCD for this task as the office is not representative of all defence counsel who appear before the Court and, accordingly, it recommended the establishment of an independent association of counsel as better suited for this task.167 As noted in a 2017 expert report on the legal aid system of the Court: Amongst the independent counsel interviewed for this Report there was a general consensus that the OPCD had provided valuable assistance to counsel – particularly in the early years of the ICC – and had successfully carved out a reputation for independence. There was also a feeling that ‘it could do more’ to assist teams, such as collating and summarising relevant decisions more effectively.168

While the establishment of the OPCD has been commended as an advancement from the ad hoc Tribunals in which the defence had no institutional presence, those who advocate an independent Defence Office as its own organ of the Court feel that it does not go far enough. As Karim Khan, a barrister who has acted as defence counsel before the ICC, notes: ‘[t]he institutional difference (in terms of resources, having a “voice” within the Court and more balanced media reporting) that being an “organ” brings cannot be underestimated by any that are conversant with the history and dynamics of the various ad hoc and hybrid Tribunals’.169 3.E

Legal Aid

Pursuant to the Rome Statute, defendants have the right to counsel ‘without payment if the accused lacks sufficient means to pay for it’.170 Given that it is likely that a majority of defendants before the ICC will claim indigence,171 ensuring that there is a good legal aid regime at the Court is central to ensuring that defendants’ rights are protected. Pursuant to the Regulations of the Court, legal aid ‘shall cover all costs reasonably necessary as determined by the Registrar for an effective and efficient defence’.172 This includes ‘the remuneration of counsel, his or her assistants …, expenditure in relation to the gathering of evidence, administrative costs, translation and interpretation costs, travel costs and daily subsistence allowances’.173 The Regulations of the Court guide the Registrar in determining whether an individual claiming legal aid has sufficient means to pay for counsel and set out the procedure for making decisions on requests for legal aid.174 Decisions made by the Registrar Ibid. at 5. Registry ReVision Project, supra note 85, at 8 and 10. 168 Rogers, supra note 138, at § 268. 169 K. A. A. Khan, ‘Article 34: Organs of the Court’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (2nd edn., München: C.H. Beck, 2008), at 935. 170 E.g. Rome Statute, supra note 34, at Arts 67(1)(d) and 55(2)(c) (emphasis added). For a summary of the legal basis of the legal aid regime, see: ICC-ASP, ‘Registry’s single policy document on the Court’s legal aid system’ (ICC-ASP/12/3), 4 June 2013, §§ 10–20 (‘Legal Aid Policy’). 171 As Schabas notes: ‘The experience of the ad hoc Tribunals shows that it is likely that counsel will be remunerated by the Tribunal in virtually all cases, given the fact that defendants, even if they were once powerful rulers who looted their countries before losing power, become suddenly and mysteriously impoverished at the time of the indictment’. Schabas, supra note 72, at 1264. 172 Regulations of the Court, supra note 71, at Regulation 83(1). 173 Ibid. 174 Ibid. at Regulations 84 and 85. See also Regulations of the Registry, supra note 88, at Regulations 130–136. 166 167

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222  The Elgar companion to the International Criminal Court with respect to entitlement to, and the scope of, legal aid are reviewable by the Presidency and the relevant Chamber.175 However, as Trial Chamber VII has stated: ‘[t]he Registry is the organ of the Court best placed to oversee the available financial resources and the needs involved in the cases. The Registrar, therefore, enjoys a relatively wide margin of discretion in the management of the legal aid scheme and the determination of the costs which are “reasonably necessary” for an effective and efficient defence.’176 Early consultations in relation to establishing the legal aid system of the Court concluded that the regime adopted by the Court should take into account five criteria: equality of arms, objectivity, transparency, continuity, and economy.177 The Court’s legal aid system has gone through a number of reviews and revisions which often attract a fair amount of attention.178 For example, a reduction to the legal aid budget by the Assembly of States Parties in December 2011 attracted significant negative outcry based on concerns that ‘[t]he proposed measures would … have serious repercussions on the fairness, integrity and overall credibility of proceedings before the Court’.179 The Legal Aid Policy was submitted by the Registry to the Assembly of States Parties in 2013.180 The policy summarises the rules and processes for determining indigence of the accused, the scope of legal aid resources to be made available to indigent accused, and the procedures for payment.181 As delineated in this document, the provision of legal aid is ‘based on the concept of a core team’ composed of lead counsel, one legal assistant, and a case manager.182 This core team operates through proceedings except for certain stages of lesser activity.183 Additionally, an associate counsel is allocated during the trial phase.184 This scheme forms the basis for the amount of funds allocated for the defence team but is flexible with respect to how lead counsel actually uses the funds to staff the team.185 See Regulations of the Court, supra note 71, at Regulation 83(4) and 85(3). Decision on the Defence application for judicial review of the decision of the Registrar on the allocation of resources during the trial phase, Prosecutor v. Bemba et al., (ICC-01/05-01/13-955), T. Ch. VII, 21 May 2015, § 32. 177 Legal Aid Policy, supra note 170. 178 Ibid. at §§ 4–8. 179 Statement signed by 20 bar associations and 63 individuals, 12 February 2012, available online at www​.iccnow​.org/​documents/​Statement​_​-​_Legal​_Aid​_​-​_19​_Feb​_12​.pdf (visited 27 February 2017). See also Press Release, Barreau Pénal International Criminal Bar and International Criminal Defence Attorneys Association, 20 February 2012, available online at www​.iccnow​.org/​documents/​ ICB​_press​_release​_20​_2​_2012​.pdf (visited 27 February 2017); ‘Response from the Defence Teams of Mr Lubanga, Mr Bemba, Mr Mbarushimana, Mr Ngudjolo and Mr Banda and Mr Jerbo to the Registry’s ‘Discussion Paper on the Review of the ICC’s Legal Aid System’, 31 January 2012, available online at www​.iccnow​.org/​documents/​Joint​_Observations​_re​_Legal​_Aid​_ET1​.pdf (visited 27 February 2017); ‘Answer of International Criminal Bar (ICB) on the Discussion Paper on Legal Aid of the Registrar’, 31 January 2012, available online at www​.iccnow​.org/​documents/​ICB​_answer​_on​_legal​_aid​_Feb2012​.pdf (visited 27 February 2017); Internal Memorandum from Xavier-Jean Keïta, Conseil Principal, OPCD, to Esteban Peralta Losilla, Chief of CSS, ‘OPCD analysis/response to Legal Aid proposals’, 31 February 2012, available online at http://​iccnow​.org/​documents/​2012​_01​_31​-​_Legal​_aid​_proposal​-OPCD​_FV​_​ _4​_​.pdf (visited 4 October 2018). 180 Legal Aid Policy, supra note 170. 181 Ibid. 182 Ibid. at §§ 38 and 40. 183 Ibid. at § 39. 184 Ibid. at § 41. 185 Ibid. at § 44. 175 176

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Judges, the registry, and defence counsel  223 The Legal Aid Policy also provides the defence with an investigative budget set at a fixed amount for the entirety of the case.186 Counsel may request additional funds for investigation for more complex cases.187 The Registrar has the discretion to provide additional resources on the basis of a request by defence counsel.188 In doing so, the Registry takes into account the number of counts submitted by the Prosecutor, the number of victim applications, the number of victims accepted to participate in the proceedings, the number of pages of the case file added by other participants, and the number of pages submitted by the Prosecutor.189 Attorneys can also be reimbursed for professional charges relating to running a legal practice and are afforded a fixed monthly amount for supplies, translation costs relating to investigations, transportation, and accommodation.190 The Registry hired an independent expert to conduct a review of the ICC’s Legal Aid System. The expert’s report was published in January of 2017.191 The expert report noted that, in 2016, legal aid only amounted to 3.25 per cent of the total budget of the ICC (and was only an average of 2 per cent of the annual budget over the past five years).192 It also pointed out that the legal aid budget ‘is less than 10% of the budget allocated to the Office of the Prosecutor’.193 Thus, the expert concluded that ‘defence expenditure at the ICC is considerably lower than comparable tribunals [the ICTY, Extraordinary Chambers in the Courts of Cambodia and the Special Tribunal for Lebanon]. The ICC spends less on defence as a percentage of the total tribunal budget; it spends less per case, per year, at every stage; and it pays counsel and assistant counsel less than their counterparts in other tribunals. Additionally, defence teams at the ICC are provided with a lower budget for investigations and experts.’194 The expert report noted a number of criticisms of the current legal aid regime, based on interviews with lawyers who act as defence counsel and other individuals at the Court. First, the structure in which the core legal team was reduced during certain periods was criticised as ‘counter-productive’ and it was also suggested that associate counsel should be allowed to be brought on board earlier.195 Second, the investigation budget was criticised as arbitrary and inadequate and, as a result, it was pointed out that ‘CSS staff and counsel had to spend considerable time negotiating what additional resources were necessary and reasonable.’196 Other complaints by defence counsel were an insufficient budget for expenses and an unduly cumbersome and slow process for obtaining reimbursement.197 It was also generally thought that remuneration for counsel and assistant counsel was too low.198 Remuneration paid to defence counsel staff is meant to be comparable to equivalent personnel in the OTP.199 However, defence counsel salaries were reduced by about 25 per cent In this 2003 Report, the investigative budget was €73,006. Ibid. at § 46. Ibid. at § 49. 188 Ibid. at § 66. 189 Ibid. at § 69. 190 Ibid. at §§ 129–130 and 139–145. 191 Rogers, supra note 138. 192 Ibid. at § 12. 193 Ibid. 194 Ibid. at § 24. 195 Ibid. at §§ 49–50. 196 Ibid. at § 72. 197 Ibid. at §§ 176–177. 198 Ibid. at §§ 129–130. 199 Ibid. at § 133. 186 187

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224  The Elgar companion to the International Criminal Court in 2012.200 Thus, based on current rates, one estimated calculation in the expert report showed that the net income of ICC lead counsel working full time would amount, approximately, to only half of a P5 level prosecuting counsel.201 Accordingly, the expert concluded that ‘the current ICC rates [for defence counsel] are now too low’.202 As one senior lawyer interviewed by the expert stated, ‘[t]he reduction of the defense budget and payment to defense teams was unfair, arbitrary, humiliating, and demotivating’.203 The vast majority of defence counsel interviewed by the expert expressed dissatisfaction with how the legal aid programme was administered.204 In particular, the expert noted that ‘[l]awyers felt deeply frustrated by what they considered to be a fundamental lack of understanding of defence work on the part of CSS management’.205 On the other side of the equation, the CSS staff stated that they were ‘over-burdened by tedious, labour intensive tasks and complained about the lack of a modern IT system to help administer fees’.206 Finally, those outside the CSS critiqued the system for a lack of transparency.207 This is important to note because it was suggested that ‘this lack of information had made the legal aid for defence “an easy target” for the budget cuts in 2012’.208 Thus, the expert recommended that the CSS should have staff members with practical legal experience and a good understanding of the practice of defence counsel.209 Given the results of the expert’s 2017 evaluation, it is clear that the legal aid system needs to be revised. The resources allocated for legal aid should be reconsidered. Additionally, the structure of the legal aid regime should be amended in line with the expert’s recommendations. In particular, the legal aid regime should be administered by individuals who understand defence counsel work. This is likely to make it run much more smoothly with fewer disputes, which can take up costly judicial resources and delay proceedings.210

4.

ARE DEFENDANTS’ RIGHTS ADEQUATELY PROTECTED?

In order for defendants’ rights to be fully protected, trials must be fair, timely and efficient, and the accused must have access to competent legal counsel including sufficient funding for legal aid. A number of advancements have been made in the legal regime of the ICC based on lessons learned from earlier international criminal tribunals that improve the protection of defendants’ rights before the Court.211 For example, the establishment of the OPCD gives defence counsel some institutional presence and a voice at the Court. Additionally, the codification of a procedure for removing judges if necessary has been commended. Overall, as noted

202 203 204 205 206 207 208 209 210 211 200 201

Ibid. at § 136. Ibid. at § 53. Ibid. at § 145. Ibid. at § 130. Ibid. at § 183. Ibid. Ibid. at § 184. Ibid. at § 183. Ibid. at § 185. Ibid. at § 189. Ibid. See e.g., Tuinstra, supra note 22, at 276.

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Judges, the registry, and defence counsel  225 by Amnesty International, ‘[i]n a number of important respects, the guarantees in the Statute provide greater protection than other international instruments’.212 However, a number of concerns remain. Looking at the Court’s first few cases, a couple of criticisms have been raised. For instance, while international criminal trials are complex and trials will take time, the length of proceedings of the Court’s cases is concerning. The Court’s first case against Thomas Lubanga lasted over eight years from his arrest until the disposal of the appeal.213 In the Bemba case, the accused was in custody for a total of ten years before ultimately being acquitted by the Appeals Chamber.214 In Katanga and Ngudjolo, Mathieu Ngudjolo Chui was in custody for almost five years before being acquitted at trial.215 Additionally, a number of concerns relating to trial fairness in Lubanga, in particular in relation to the failure of the prosecution to disclose certain materials, led the Trial Chamber to impose a stay of proceedings on two separate occasions.216 Thus, it is apparent that actual, robust implementation of the rules, policies and regulations of the Court are required to ensure the protection of defendants’ rights. One research report presents the views of 18 attorneys practising in some capacity for the defence at the ICC.217 While the number of respondents is relatively low, it nonetheless raises important critiques of current ICC practice that are likely shared by others. The three main concerns of the respondents with respect to the inadequate protection of defence rights were: inadequate disclosure by the prosecution, the restrictive approach taken with respect to leave to appeal interlocutory decisions, and limits on the ability to investigate.218

212 Amnesty International, ‘The International Criminal Court, Fact sheet 9, Fair Trial Guarantees’, available online at www​.amnesty​.org/​en/​documents/​ior40/​009/​2000/​en (visited 27 May 2017). 213 The Prosecutor v. Thomas Lubanga Dyilo, Case Information Sheet, ICC-PIDS-CIS-DRC -01-015/16_Eng. 214 The Prosecutor v. Jean-Pierre Bemba Gombo, Case Information Sheet, ICC-PIDS-CIS-CAR -01-016/16_Eng. 215 The Prosecutor v. Mathieu Ngudjolo Chui, Case Information Sheet, ICC-PIDS-CIS-DRC2 -06-006/15_Eng. 216 Decision on the consequences of non-disclosure of exculpatory materials covered by Art. 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008, The Prosecutor v. Thomas Lubanga Dyilo, (ICC-01/04-01/06-1401), T. Ch. I, 13 June 2008, affirmed on appeal; Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled ‘Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008’, The Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04-01/06-1486), A. Ch., 21 October 2008; Redacted Decision on the Prosecution’s Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU, Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04-01/06-2517-Red), T. Ch. I, 8 July 2010, reversed on appeal: Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I of 8 July 2010 entitled ‘Decision on the Prosecution’s Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU’, Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04-01/06-2582) A. Ch., 8 October 2010. See C. M. De Vos, ‘Prosecutor v. Lubanga: ‘Someone Who Comes Between One Person and Another’: Lubanga, Local Cooperation and the Right to a Fair Trial’, 12 Melbourne Journal of International Law 217–236. 217 Turner, supra note 95. 218 Ibid. at 10.

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226  The Elgar companion to the International Criminal Court When asked to compare the fairness of ICC proceedings to those of other international tribunals, respondents with the necessary experience to offer such comparisons thought that the ICC was either equally as fair as or less fair than the ICTY, but ‘none thought the ICC was fairer than the ICTY’.219 The ICC was seen as fairer than the Extraordinary Chambers in the Courts of Cambodia and the responses comparing the Court to the ICTR, SCSL and Special Tribunal for Lebanon were more varied.220 One of the primary critiques raised by respondents to the survey was insufficient funding and inadequate institutional support for the defence.221 In particular, ‘a large majority of the respondents expressed … concerns about equality of arms and procedural fairness at the court’.222 Respondents pointed in particular to the lack of sufficient resources for staffing the defence team given the complexity of the trials, as well as insufficient funds for investigations.223 In addition, the slow process of seeking reimbursement for investigation related expenses was criticised, in particular as counsel have to fund investigations up front ‘out of their own pocket’.224 Additionally, with respect to the institutional structure, ‘many argued that the defense needed a stronger office that is entirely independent from the Registrar’.225 Overall, the respondents to the survey did not criticise the judges as much. In fact, it was noted that ‘[j]udges have often supported the defense in its efforts to maintain the staff and resources necessary for adequate representation of defendants throughout proceedings’.226 The primary critiques by respondents to the survey related to the approaches taken by the Chambers on disclosure, leave to appeal interlocutory decisions, the confirmation of charges process, and victim participation.227 A number of respondents also critiqued the lack of consistency in judicial decision making.228 In addition to the judiciary and the Registry, defence counsel play an integral role in protecting defendants’ rights. There are, however, many potential barriers to obtaining effective legal representation in the context of the ICC. Not all lawyers will have experience practising in the field of international criminal law or will be familiar with the Court’s unique procedural model. Thus, it has been suggested that a training course or a bar examination be introduced for individuals seeking to practise at the Court.229 Even counsel who have previously participated at the ad hoc tribunals may not understand the unique victim participation regime at the ICC, for example. The survey of ICC defence counsel mentioned above showed that there is a growing pool of criminal defence attorneys with experience in international criminal law, including a growing number of repeat defence counsel at the ICC itself.230 However, as noted

Ibid. Ibid. 221 Ibid. at 4 and 12–13. 222 Ibid. at 9. 223 Ibid. at 13 and 15. 224 Ibid. at 16, citing a statement made by Nick Kaufman. 225 Ibid. at 31. 226 Ibid. at 18. 227 Ibid. at 4 and 9. 228 Ibid. at 32. 229 Wilson, supra note 21, at 164; Tuinstra, supra note 22, at 49; S. B. Starr, ‘Ensuring Defense Counsel Competence at International Criminal Tribunals’, 14 UCLA Journal of International Law and Foreign Affairs (2009) 169–206. 230 Turner, supra note 95, at 8. 219 220

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Judges, the registry, and defence counsel  227 above, the total number of respondents to the survey was rather limited and there will still be many new defence counsel representing individuals at the Court. While it is promising to see a growing pool of experienced international defence counsel at the ICC, there are a number of other potential barriers to effectiveness of defence counsel. Language may be a notable barrier.231 Counsel must speak one of the working languages of the Court in order to engage effectively in Court proceedings. However, it is also important that counsel and their legal team are able to communicate effectively with their client. It is also helpful if counsel can communicate with potential witnesses. Relying on interpreters is inevitable in international proceedings. However, serious considerations should be given to the potential barrier that language may pose to defendants in ensuring effective legal representation. In addition to language, defence counsel from countries other than where the alleged crimes have taken place lack local knowledge of the customs, traditions and norms of these communities. While they may rely on hiring local resource people to assist with this aspect, the large number of barristers from the UK as well as other European and North American countries that represent the accused at the ICC is less than ideal. This is not to criticise the competence of these counsel, many of whom are excellent advocates. However, the provision of training in situation countries before the ICC to develop a strong pool of local counsel would be beneficial for defendants at the Court. Such training could also contribute to ‘positive complementarity’, through which the Court’s work can support national proceedings.232 Overall, one of the greatest concerns at the ICC in ensuring the fairness of trials is guaranteeing equality of arms.233 The concept of equality of arms has been described as ‘the single most important criterion in evaluating the fairness of a trial’.234 In the ICTY’s first case, the Appeals Chamber noted that ‘[t]he principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee’.235 The ICTY Appeals Chamber also stated that ‘the principle of equality of arms must be given a more liberal interpretation [at the Tribunal] than that normally upheld with regard to proceedings before domestic courts. This principle means that the Prosecution and the Defence must be equal before the Trial Chamber.’236

See e.g., Tuinstra, supra note 22, at 43–45. See e.g., ICC-OTP, ‘Strategic Plan 2016–2018, 16 November 2015, available online at https://​ www​.icc​-cpi​.int/​iccdocs/​otp/​EN​-OTP​_Strategic​_Plan​_2016​-2018​.pdf (visited 28 September 2018), § 57. 233 See generally, S. Negri, ‘The Principle of “Equality of Arms” and the Evolving Law of International Criminal Procedure’, 5 Int Crim L Rev (2005) 513–571; R. Gamble and N. Dias, ‘“Equality of Arms is a Blessed Phrase”: Its Meaning Under International Law’, 21 Sri Lanka Journal of International Law (2009) 187–216; Tuinstra, supra note 22, at 153–191; C. Chernor Jalloh and A. DiBella, ‘Equality of Arms in International Criminal Law: Continuing Challenges’, in W. A. Schabas, Y. McDermott and N. Hayes (eds), The Ashgate Research Companion to International Criminal Law: Criminal Perspectives (Farnham, UK: Ashgate Publishing Limited, 2013) 251–287. 234 Wilson, supra note 21, at 185, citing Lawyers Committee for Human Rights, ‘What Is a Fair Trial? A Basic Guide to Legal Standards and Practice’, Section B.2. See also Schabas, supra note 72, at 1253–1254; Knoops, supra note 74, at 1. 235 Judgment, Tadić, (IT-94-1-A), Appeals Chamber, 15 July 1999, at § 44. 236 Ibid. at § 52. See Schabas, supra note 72, at 1253–1254; Wilson, supra note 21, at 185–190; Knoops, supra note 74, at 3; Negri, supra note 233 at 544–546. 231 232

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228  The Elgar companion to the International Criminal Court While equality of arms does not require financial equality,237 it is important that the parties must ‘be treated in a manner ensuring that they have a procedurally equal position to make their case during the whole course of the trial’.238 Nonetheless, resources are not irrelevant to this consideration. One of the major concerns that has been raised about the ICC is whether there is true equality of arms between the prosecution and the defence. One critique often made about the victim participation regime is the potential to negatively impact on equality of arms between the prosecution and the defence.239 While it is true that victims are not ‘second prosecutors’, their interests will most often align with that of the prosecution. Overcoming the structural inequality of having a permanent Office of the Prosecutor as a formal organ of the Court is challenging.240 The OTP has a large staff of approximately 380 members, which enables the Office to have individuals with varied expertise such as in-house translators as well as ‘investigators and analysts, psycho-social experts, individuals with experience in diplomacy and international relations, public information and communication’.241 As noted above, the OTP budget is more than ten times the legal aid budget.242 These numbers are not, of course, determinative of whether the prosecution and the defence are equal in fact before the court. For one thing, the legal aid budget does not represent the entire amount spent on defence (as some accused have paid for their own defence teams and the OPCD is part of the Registry). Additionally, the OTP must devote resources to conducting preliminary examinations which may not ever become cases before the Court. However, the substantial disparity in personnel and in funds certainly raises questions. Additionally, as a permanent office of the Court, with permanent staff, based in the Court building, the OTP has far greater potential to accumulate institutional and situational knowledge when compared to defence counsel. The OTP will be able to use this permanence to establish protocols and precedents that can help guide the conduct of future cases. The OTP will also have significant institutional knowledge on both the substantive law and the procedure of the Court. Additionally, a significant amount of knowledge about the situations and cases before the Court will accumulate long before defence counsel are involved.243 As Elise Groulx notes, ‘[i]nitial contacts between prosecution and defense lawyers are therefore on very uneven ground’.244 Furthermore, unlike at the ICTY and the ICTR where repeat defence counsel became familiar with the factual nexus in which the cases arose, the ICC hears cases

Schabas, supra note 72 at 1253–1254; Wilson, supra note 21 at 187; Knoops, supra note 74 at 3 and 15. 238 Negri, supra note 233 at 513. 239 See e.g., Turner, supra note 95 at 28–29; International Criminal Bar, ‘Answer of International Criminal Bar (ICB) on the Discussion paper on Legal Aid of the Registrar’, 31 January 2012, available online at www​.iccnow​.org/​documents/​ICB​_answer​_on​_legal​_aid​_Feb2012​.pdf (visited 27 February 2017). 240 See e.g., presentation by X.-J. Keïta, M. Taylor and M. Chadwick, ‘The Office of Public Counsel for the Defence and Challenges for the Defence before the International Criminal Court’, available online at www​.iccnow​.org/​documents/​OPCD​_Asser​_presentation​.pdf, 18 June 2008 (visited 27 February 2017). See also Tuinstra, supra note 22, at 159–162. 241 ICC Website—Office of the Prosecutor, available online at https://​www​.icc​-cpi​.int/​about/​otp (visited 3 June 2017). 242 Rogers, supra note 138, at § 12. 243 Knoops, supra note 74, at 23. 244 Groulx, supra note 113, at 25. See also Turner, supra note 95, at 23; Tuinstra, supra note 22, at 164. 237

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Judges, the registry, and defence counsel  229 from a number of different situations. Whereas the OTP has the scope to allow for specialisation amongst its staff, defence counsel often have a steep learning curve even if they represent multiple defendants at the ICC. The Registry can assist in some regards through its maintenance of databases and training programmes, which can help defence counsel access the law of the Court. Also, the establishment of the OPCD as a permanent office within the Registry has likely gone some ways towards addressing these concerns as they can serve a critical function by sharing their growing institutional knowledge with external defence counsel. Nonetheless, this will not wholly overcome the structural inequality between the two sides. The Prosecutor’s mandate to investigate objectively, i.e. to investigating incriminating and exonerating circumstances equally, as well as the Prosecutor’s obligation to disclose any exculpatory information in its possession to the defence, is designed to help support equality of arms between the two parties. However, as noted in the survey of ICC defence counsel, ‘defence attorneys have expressed skepticism that the ICC prosecutor is in a good position to investigate on the defence’s behalf’.245 Also, ‘since “the prosecutor does not, as a rule, question the accused or otherwise have his or her account of events, it is questionable whether she can have a realistic basis for such an enquiry”’.246 Therefore, it is important that the defence has sufficient resources to conduct their own investigations. As Kay and Swart write, ‘unless the defence are put in an equal position to the prosecution and are able to conduct meaningful investigations as part of a legitimate right to defend an accused, there will be an obvious inequality of arms’.247 However, as noted above, lack of resources for investigations is one of the main criticisms by defence counsel at the ICC. Also, while the OTP clearly face cooperation issues from certain states, the defence are likely to face the same issues which can be exacerbated by not having the institutional backing of being an organ of the Court.248 Additionally, the lack of timely full disclosure from the prosecution is another one of the major criticisms of the prosecution and of the Chambers, as mentioned above.249 Finally, one other major issue that has been raised with respect to protecting defendants’ rights is the lack of adequate institutional representation of the defence at the Court.250 Despite calls for the establishment of the defence as a distinct and separate organ of the Court, the OPCD and responsibility for defence support and the administration of the legal aid regime resides in the Registry. As Xavier-Jean Keïta has stated: ‘An independent Defence Organ allows not only equal institutional footing with the Prosecution, at the same time, this remedies deficiencies seen in previous Defence-focused structures of the Court as allowing the

Turner, Ibid. at 18. Ibid. at 18–19, citing C. Buisman, ‘The Prosecutor’s Obligation to Investigate Incriminating and Exonerating Circumstances Equally: Illusion or Reality?’ 27 Leiden Journal of International Law (2014) 205–226. See also Kay and Swart, supra note 10, at 1423–1424. 247 Kay and Swart, ibid. at 1423–1424. 248 Turner, supra note 95 at 17. 249 See also International Criminal Bar, ‘Answer of International Criminal Bar (ICB) on the Discussion Paper on Legal Aid of the Registrar’, 31 January 2012, available online at www​.iccnow​.org/​ documents/​ICB​_answer​_on​_legal​_aid​_Feb2012​.pdf (visited 27 February 2017). 250 See e.g., Gallant, supra note 2, at 328. 245 246

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230  The Elgar companion to the International Criminal Court actual Defence to dictate the necessary resources to effectuate their role in the most effective manner.’251

5. CONCLUSION There has been a significant shift in international criminal law in relation to the amount of attention paid to protecting the rights of defendants. Accordingly, the Rome Statute, Rules of Procedure and Evidence, and Regulations of the Court and the Registry, set out a comprehensive regime to protect defendants’ rights. However, concerns remain with respect to the implementation of this regime. For example, the judges must ensure that the defence receive timely and full disclosure of all prosecution materials. Additionally, short of an amendment to the Rome Statute establishing an independent Defence Office, the Registry should staff the defence support sections with individuals with a good understanding of criminal defence practice. With respect to effective defence counsel, training of local counsel in the situation countries before the ICC should be prioritised. Finally, one of the overarching themes continually raised in relation to any discussion of defendants’ rights is the question of equality of arms. Two primary issues are generally raised in this regard. First, the legal aid regime needs to be sufficiently funded by the ASP and the Registry in order to ensure that defence counsel being paid under the regime have adequate resources to investigate and staff their teams. Budget cuts to legal aid risk jeopardising the Court’s overall mandate of achieving justice, which necessitates fair trials. Second, efforts should be made to put the defence in a position of stronger institutional equivalency in relation to the prosecution and a number of proposals have been made in this regard. While significant important advancements were made to protect defendants’ rights in the establishment of the ICC, the Court needs to be reflective and adaptable in order to ensure that these rights are fully guaranteed in practice and not only on paper.

251 Keïta, supra note 19, at 5. See also Wilson, supra note 21, at 192; Gallant, supra note 130, at 42–44.

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10. The Assembly of States Parties Jennifer Trahan1

This chapter will examine the theory and reality of the role of the Assembly of States Parties (‘ASP’ or ‘the Assembly’) of the International Criminal Court (‘ICC’). It will begin with a description of how the ASP was designed to function, then turn to an analysis of how it has been functioning, focusing on a few of its core areas of activities, including election of judges, setting the ICC’s budget, agreeing on Rome Statute amendments, and negotiating the annual ‘omnibus resolution’. The chapter concludes with consideration of future challenges for the ASP, including ensuring it does not interfere with the ICC’s independence, guaranteeing the Court has a sufficient budget to perform its work, more effectively addressing the problem of State Party non-cooperation (particularly as to outstanding arrest warrants) as well as handling other ‘push-back’ against the work of the ICC, and grappling with the challenge of Rome Statute2 withdrawals.3

1.

THE CREATION AND ROLE OF THE ASP

1.A

The Rome Negotiations

The ASP was a ‘relative latecomer in the negotiations’ at Rome.4 ‘[O]nly at the very end of the discussion in the [Preparatory Commission] was serious attention given to … [its] establishment’.5 Thus, in the Rome Statute, the ASP’s role ‘is defined functionally—by what it does—not conceptually—by what it is’ in terms of the nature of its relationship to the ICC.6 The ASP has been described as the ‘management oversight legislative body’ of the ICC, run

1 Warm thanks to John Washburn and Jutta Bertram-Nothnagel for their helpful comments, and to Erin K. Lovall and Heather A. Craig for their research assistance. 2 Rome Statute refers to the Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9*, 18 July 1998 (hereafter the ‘Rome Statute’). 3 As discussed further below, South Africa, the Gambia, and Burundi withdrew in fall 2016 from the Rome Statute, although South Africa and the Gambia have subsequently reversed their withdrawals. See notes 191–92 infra. The Philippines has also withdrawn. See note 196 infra. 4 M. Du Plessis and C. Gevers, ‘The Role of the Assembly of States Parties for the ICC’, in R. H. Steinberg (ed.), Contemporary Issues Facing the International Criminal Court (Leiden: Brill Nijhoff, 2016) 159–72, at 159. 5 A. Bos, ‘Assembly of States Parties’, in A. Cassese et al. (eds), The Rome Statute for an International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002) 297–314, at 300. For discussion of the drafting history, see S. Rama Rao, ‘Article 112’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (2nd edn., München: Beck, 2008) 1687–97. 6 Du Plessis and Gevers, supra note 4, at 159.

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232  The Elgar companion to the International Criminal Court by the States Parties that created the Court.7 Others have described its functions as falling into three categories—administrative, legislative, and operational.8 1.B

The Rome Statute on the ASP

Article 112 of the Rome Statute created the Assembly of States Parties, and provides that it shall:

(a) consider and adopt recommendations of the Preparatory Committee; (b) provide management oversight regarding the administration of the court; (c) consider the reports and activities of the Bureau and take appropriate action thereon; (d) consider and decide the Budget; (e) decide whether to alter the number of judges, in accordance with Rome Statute Article 36; (f) consider questions of non-cooperation pursuant to Article 87; and (g) perform any other function consistent with this Statute or the Rules of Procedure and Evidence.9

The Rome Statute also provides that the ASP may establish ‘subsidiary bodies’ including an ‘independent oversight mechanism’.10 1.C

Rules of Procedure of the ASP

Further details as to the workings of the ASP are provided in the Rules of Procedure of the Assembly of States Parties,11 which addresses topics such as: sessions;12 the agenda;13 rep-

7 The ICC’s website describes the ASP as the ‘management oversight and legislative body’ of the ICC. ICC, ‘Assembly of States Parties’, available online at https://​asp​.icc​-cpi​.int/​en​_menus/​asp/​ assembly/​Pages/​assembly​.aspx (last visited 24 January 2017). 8 Du Plessis and Gevers, supra note 4, at 160. 9 Art. 112(2) ICCSt. In addition to Article 112, other Rome Statute Articles are relevant to the ASP. See Du Plessis and Gevers, supra note 4, at 159, n. 2 (citing Rome Statute Arts 2, 3, 9, 36, 42, 43, 49, 51, 79, 113, 117, 119, 121, 122, and 123). 10 Art. 112(4) ICCSt. 11 Rules of Procedure of the Assembly of States Parties, UN Doc. ICC-ASP/1/3 (hereafter the ‘Rules of Procedure of the ASP’). For drafting history of the Rules, see S. M. Yengejeh, ‘Rules of Procedure of the Assembly of States Parties to the Rome Statute of the International Criminal Court’, 25 Fordham International Law Journal (2001–2002) 674, at 677–78. 12 Regular sessions of the ASP are held once a year, but special sessions may be convened. Rules of Procedure of the ASP, supra note 11, at Rules 4–8. 13 A provisional agenda for each ASP is initially drawn up by the Secretariat, with the agenda submitted to the Assembly for approval after the opening of the ASP session. Ibid. Rules 11, 19.

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The Assembly of States Parties   233 resentation and credentials;14 the Bureau;15 the President and Vice Presidents;16 participation of the President, Prosecutor, Registrar, and United Nations;17 duties of the Secretariat;18 decision-making;19 disciplinary proceedings;20 subsidiary bodies;21 elections of the judges, the Prosecutor, and the Deputy Prosecutor;22 administration;23 establishment of the ICC’s Trust Fund for Victims;24 and the ICC’s budget and States Parties’ financial contributions.25 1.D

The Structure of the ASP

The head of the ASP is the ASP President, who calls for and leads meetings of the ASP’s Bureau and chairs ASP sessions.26 The ASP’s ‘Bureau’ consists of the ASP President, two

At each ASP, States Parties and Observer States may be represented by one representative, but accompanied by alternates and advisers. Ibid. Rule 23. ‘States that are not parties to the Statute but have signed it or have signed the Final Act of the Rome Conference can participate in the Assembly as observers’. Yengejeh, supra note 11, at 683. Thus, for instance, the US, Israel, China, and other states have attended as observers. CICC, ‘The Low-Down; Assembly of States Parties 2016’, available online at http://​www​.coalitionfortheicc​.org/​news/​20161110/​lowdown​-assembly​-states​-parties​-2016 (last visited 3 February 2017). States not having observer status may, subject to approval of the ASP, be given permission to attend. Rules of Procedure of the ASP, supra note 11, at Rule 94. Other participants, such as non-governmental organizations (‘NGOs’) may also attend. Ibid. Rules 92–93. NGO representatives attend ASPs in robust numbers. Up to 400 civil society delegates attended ASP 15. CICC, ‘The Low-Down’, supra note 14. ‘Civil society plays a vital role in urging the Assembly, and its individual member states, to uphold its responsibility to make international justice effective.’ Ibid. 15 The composition and functioning of the Bureau is addressed in Rule 29. 16 Rules of Procedure of the ASP, supra note 11, at Rule 30. 17 Ibid. Rules 34–35. 18 Ibid. Rule 37. 19 Every effort shall be made to reach consensus for ASP decision-making. Ibid. Rule 61. Otherwise, matters of substance require a two-thirds majority vote of States Parties present and voting. Ibid. Rule 63. Matters of procedure require a simple majority vote. Ibid. Rule 64. Adoption of the Rules of Procedure and Evidence, Elements of Crimes, or increase or decrease in the number of judges require a two-thirds vote. Ibid. Rules 73–75. Amendments to the Statute as to which consensus cannot be reached also require a two-thirds majority vote. Ibid. Rule 76. 20 The ASP has powers vis-à-vis removal from office of a judge, the Prosecutor, or a Deputy Prosecutor. Ibid. Rule 81. 21 Ibid. Rules 83–84. 22 The procedures, discussed further below, are set forth in Arts 36, 37, and 42 of the Rome Statute. Ibid. Rules 85–86. 23 The Assembly approves Staff Regulations, and the Financial Regulations and Rules. Ibid. Rules 87–88. 24 The Assembly established the ICC’s Trust Fund. Ibid. Rule 89. The Trust Fund for Victims is charged with both implementing reparations awarded by the court and has an assistance mandate to provide physical and psychological rehabilitation, as well as material support. See, e.g., the Trust Fund for Victims, Annual Report 2017. The Trust Fund has active assistance programs in DRC, Uganda, Central African Republic, Mali, and Kenya. The Trust Fund for Victims, ‘Where We Work’, available online at https://​www​.trustfundforvictims​.org/​en (last visited 4 September 2020). 25 As discussed further below, the Assembly sets the ICC’s budget, and assesses States Parties’ financial contributions based on the scale adopted by the UN for its budget. Rules of Procedure of the ASP, supra note 11, Rule 91. The Rules govern the work of the ASP at its sessions, between sessions, and at any Review Conference, unless otherwise provided at the Review Conference. Yengejeh, supra note 11, at 679. 26 See also Rules of Procedure of the ASP, supra note 11, Rule 30 (general powers of the President). 14

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234  The Elgar companion to the International Criminal Court Vice Presidents, and 18 members elected by the ASP for three-year terms.27 The Bureau ‘helps the ASP comply with its various mandates and meets regularly throughout the year in New York … and in The Hague’ though its two Working Groups, each presided over by one of the ASP Vice Presidents.28 Assisting the ASP is the Secretariat,29 the duties of which consist of the ‘normal functions carried out by the secretariats of international organizations’.30 Additionally, there are ‘working groups’ that hold informal consultations during the year on topics such as complementarity, cooperation and universality of the Rome Statute (led by (co-) facilitators or (co-) focal points), as well as a Study Group on Governance.31 The ASP also created the Internal Oversight Mechanism (‘IOM’) at the 8th ASP in November 2009, and the Independent Expert Review (‘IER’) at the 18th ASP in December 2019.32 1.E

The Significant Powers of the ASP

While many of the ASP’s duties set forth above sound managerial, as explored further below, the ASP’s role is in fact quite significant. For example, by controlling the budget, the ASP has influence on the ability of the Office of the Prosecutor (‘OTP’) to conduct its work (i.e., how many situations it can have under preliminary examination and investigation, and the number of cases it can take to trial), and the number of cases the judges can simultaneously try—in short, the basic size and capacity of the ICC. The budget also determines how many, if any, field offices may exist in each situation, which thereby has significant potential to impact on the Court’s interaction with victims, victim participation, and reparations. In the power to select judges, the ASP has the responsibility to elect judges with effective courtroom management skills and the ability to craft jurisprudentially sound decisions—which then influences whether the ICC is seen as an effective, responsible and, ultimately, credible institution. By its mandate to address State Party non-cooperation, the ASP has the significant responsibility of ensuring that States Parties cooperate with the Court, including in the execution of arrest warrants as well as other areas—a role that is proving challenging, as discussed further below. By setting the agenda for ASP meetings, the Assembly decides whether or not to engage in debates on what have sometimes proven to be contentious topics, such as ‘the ICC and

ICC, ‘Assembly of States Parties’, supra note 7. Paragraph 3 of Article 112 of the Rome Statute details the composition and function of the Bureau. See Art. 112(3) ICCSt. 28 Coalition for the International Criminal Court, ‘Backgrounder: Assembly of States Parties 17, The Hague, 5–12 December 2018’, 30 November 2018, at 2. 29 Rules of Procedure of the ASP, supra note 11, at Rule 37. 30 Yengejeh, supra note 11, at 679. 31 ICC, ‘Assembly of States Parties, Bureau and Working Groups, Working Groups’, available online at https://​asp​.icc​-cpi​.int/​en​_menus/​asp/​bureau/​WorkingGroups/​Pages/​default​.aspx (last visited 24 January 2017). The Study Group on Governance is charged with improving the efficiency and effectiveness of the ICC, and had its work organized into two ‘clusters’, one on increasing efficiency and one on governance and budgetary issues. CICC, ‘Backgrounder’, supra note 28, at 14–16. 32 Establishment of an Independent Oversight Mechanism, UN Doc. ICC-ASP/8/Res.1, available online at https://​asp​.icc​-cpi​.int/​iccdocs/​asp​_docs/​Publications/​Compendium/​Resolution​-Establishment​ -IOM​-ENG​.pdf (last visited 24 January 2017). The IOM is a ‘professional investigative unit’ that is to ‘operate in support of the existing disciplinary structures of the Court to conduct investigations on allegations of misconduct and to ensuring effective and meaningful oversight thereof’. Ibid. para. 7. See note 115 infra (IER). 27

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The Assembly of States Parties   235 Africa’,33 and addressing other political ‘push-back’ against the work of the ICC.34 By deciding on Rome Statute amendments and amendments to the Rules of Procedure and Evidence, the ASP has the power to shape the future direction of the Court in terms of the crimes over which it has jurisdiction, and to implement changes impacting procedural efficiency and fairness. Finally, the ASP also decides how much work on ‘positive’ complementarity the ICC will have the funding and capacity to perform, which then impacts on national jurisdictions’ prosecutions of atrocity crimes.

2.

KEY FUNCTIONS/CORE WORK OF THE ASP TO DATE

At its very first meeting, the ASP adopted some of the documents key to establishing the ICC, thereby putting the ICC’s ‘institutional framework’ in place,35 including: the Relationship Agreement between the Court and the United Nations,36 the Agreement on the Privileges and Immunities of the Court,37 the ICC Financial Rules and Regulations,38 and the Procedures for the Nomination and Elections of the Judges, the Prosecutor, and Deputy Prosecutor.39 The ASP also adopted the ICC’s Rules of Procedure and Evidence,40 and the Elements of Crimes,41 as well as ‘resolutions concerning its own internal matters, the establishment of [the Trust Fund for Victims, and] issues pertaining to staff members’.42 At the 5th Session of the ASP, the ASP adopted the Headquarters Agreement between the International Criminal Court and the Netherlands, which replaced the previous interim Headquarters Agreement.43

The ICC’s relationship with the African Union (hereafter the ‘AU’) and certain African countries, as explored below, has sometimes proven contentious. See text accompanying notes 191–216 infra. 34 See text accompanying notes 111–112 infra (Plenary on external interference and political threats against the ICC). 35 D. A. Mundis, ‘The Assembly of States Parties and the Institutional Framework of the International Criminal Court’, 97 American Journal of International Law (2003) 132–47, at 146. 36 Relationship Agreement between the International Criminal Court and the United Nations, UN Doc. A/58/874, 20 August 2004, available online at http://​www​.refworld​.org/​docid/​43f203bb4​.html (last visited 12 March 2017). 37 Agreement on the Privileges and Immunities of the International Criminal Court, 2271 UNTS 3, 22 July 2004, available online at http://​legal​.un​.org/​icc/​apic/​apic(e)​.pdf (last visited 21 January 2017). 38 ICC Financial Regulations and Rules (as amended), UN Doc. ICC-ASP/7/5, 21 November 2008, available online at https://​www​.icc​-cpi​.int/​NR/​rdonlyres/​D4B6E16A​-BD66​-46AF​-BB43​ -8D4C3F069786/​281202/​FRRENG0705​.pdf (last visited 12 March 2017). 39 Procedure for the Nomination and Election of Judges, the Prosecutor and Deputy Prosecutors of the International Criminal Court, UN Doc. ICC-ASP/3/Res.6 1, consolidated version, available online at https://​asp​.icc​-cpi​.int/​iccdocs/​asp​_docs/​Resolutions/​ICC​-ASP​-3​-Res​.6​-CONSOLIDATED​-ENG​.pdf (last visited 21 January 2017). The ASP ‘adopted virtually every document prepared by the Preparatory Commission without change and by consensus, with just a few minor exceptions’. Mundis, supra note 35, at 132. 40 Rules of Procedure and Evidence, ICC-PIOS-LT-03-003/16_Eng, available online at https://​www​ .icc​-cpi​.int/​resource​-library/​Documents/​RulesProcedureEvidenceEng​.pdf (last visited 4 February 2017). 41 Elements of Crimes, ICC-PIOS-LT-03-002/15_Eng, available online at https://​www​.icc​-cpi​.int/​ resource​-library/​Documents/​ElementsOfCrimesEng​.pdf (last visited 4 February 2017). 42 Mundis, supra note 35, at 144. 43 Headquarters Agreement between the International Criminal Court and the Host State, UN Doc. ICC‐BD/04‐01‐08, 7 June 2007, available online at https://​www​.icc​-cpi​.int/​NR/​rdonlyres/​99A82721​ 33

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236  The Elgar companion to the International Criminal Court While many issues have appeared on the agendas of the 18 regular ASP sessions held to date,44 some of the more significant areas are discussed below: (1) the election of the judges, Prosecutor and Deputy Prosecutor; (2) budget negotiations; (3) amendments to the Rome Statute, and Rules of Procedure and Evidence;45 (4) negotiation of the so-called ‘omnibus resolution’; and (5) subject-specific sessions on thematic topics. 2.A

The Election of Judges, Prosecutor, and Deputy Prosecutor

The selection of the Prosecutor, Deputy Prosecutor, and judges is obviously key to the overall successful functioning of the ICC. To date, there have been two Prosecutors and two Deputy Prosecutors selected, with agreement basically reached before the relevant ASP session, so that only one candidate for each post is presented at the ASP and accepted by consensus.46 Both the Prosecutor and Deputy Prosecutor are elected for nine-year non-renewable terms.47 The terms for both posts will end on 15 June 2021, and a short list of candidates for the post of the next Prosecutor already exists.48 As to the election of judges, the Rome Statute provides that judges must be of ‘high moral character, impartiality and integrity’ and have outstanding professional merit.49 They may be from either ‘List A’ or ‘List B’.50 ‘List A’ judges must have ‘established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings’.51 ‘List B’ judges must have ‘established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity

-ED93​-4088​-B84D​-7B8ADA4DD062/​280775/​ICCBD040108ENG1​.pdf (last visited 14 February 2017). This replaced the interim Headquarters Agreement. 44 The December 2019 ASP was the 18th Session. 45 ICC Rules of Procedure and Evidence, supra note 40. 46 For instance, as to selection of Prosecutor Bensouda, four candidates were initially identified and met with States Parties and members of civil society: Fatou Bensouda (Gambia), formerly Deputy Prosecutor of the ICC; Andrew T. Cayley (UK), formerly Co-Prosecutor of the Extraordinary Chambers in the Courts of Cambodia (ECCC); Mohamed Chande Othman (Tanzania), Chief Justice of Tanzania; and Robert Petit (Canada), Department of Justice, Canada, also formerly Co-Prosecutor, ECCC. CICC, ‘Delivering on the Promise of a Fair, Effective and Independent Court, Election of ICC and ASP Officials, The Prosecutor’, available online at http://​iccnow​.org/​?mod​=​elections (last visited 26 January 2017) (hereafter the ‘Election of ICC and ASP Officials, Judges’). On 29‒30 July 2020, there were public hearings with the four short-listed candidates to become the next Prosecutor: Morris A. Anyah (Nigeria), Fergal Gaynor (Ireland), Susan Okalany (Uganda), and Richard Roy (Canada). ASP Presidency, ‘Modalities for Hearings with Shortlisted Candidates for Prosecutor’, available online at https://​asp​.icc​ -cpi​.int/​iccdocs/​asp​_docs/​ASP19/​Prosecutor​%20Election​%20Hearings​%20Modalities​.PDF (last visited 6 September 2020). 47 Art. 42(4) ICCSt. The Prosecutor and Deputy Prosecutor must be persons of ‘high moral character, be highly competent in and have extensive practical experience in the prosecution or trial of criminal cases’ and be fluent in one of the working languages of the Court. Art. 42(3) ICCSt. 48 Supra note 46. 49 Art. 36(3)(a) ICCSt. (‘The judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices.’). 50 Art. 36(5) ICCSt. 51 Art. 36(3)(b)(i) ICCSt.

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The Assembly of States Parties   237 which is of relevance to the judicial work of the Court’.52 In addition, fluency in one of the working languages of the Court is required.53 A judicial candidate must also be a national of a State Party to the Rome Statute, although the candidate may be nominated by any State Party.54 In addition, each of the ICC judges must be of a different nationality.55 The Rome Statute also requires selection of judges considering equitable geographical representation, gender diversity, and representation of the principal legal systems.56 A frequent complaint is that ICC trials do not progress expeditiously—that in its first decade and a half of existence, the ICC has not rendered enough verdicts.57 The issue of courtroom management is often raised, with the concern that if List B judges are selected, they may never have had courtroom management experience.58 There now seems greater appreciation for the need to select qualified judges with courtroom experience, preferably in criminal law (List A). The Rome Statute already recognizes the importance of List A by requiring that at least nine List A judges be selected, to five List B judges (and replacements in the same proportion). The ICC President (Presiding Judge) then has the flexibility to constitute the Chambers to ensure that at each level—Pre-Trial, Trial, and Appeals—there will be a sufficient presence of ‘List A’ judges.59 Another complaint is that judicial nomination and selections have been ‘strongly influenced by domestic and international political considerations, and controlled by a small group of Art. 36(3)(b)(ii) ICCSt. Art. 36(3)(c) ICCSt. 54 Art. 36(4)(b) ICCSt. 55 Art. 36(7) ICCSt. 56 Art. 36(8) ICCSt. Nominations can be made by a State Party, either using the procedure for nominations to the highest judicial offices of that state, or the procedure in the ICJ Statute for nominations to the ICJ. Art. 36(4)(a)(i), (ii) ICCSt. ‘[A]t least three judges [must be] from the Western Europe and Other States group (“WEOG”), Africa, GRULAC [Group of Latin American and Caribbean Countries] and Eastern Europe and two from Asia and six judges of each gender, reduced by the number of continuing judges who fulfil each of those criteria, adjusted also in accordance with the number of candidates fulfilling each of the criteria’. Centre for International Courts and Tribunals, University College London, ‘Discussion Paper: Selecting International Judges: Principle, Process and Politics’, 2008, available online at http://​www​.iccnow​.org/​documents/​Selecting​_Int​_Judges​.pdf (last visited 26 January 2017), at 20. 57 To date, the ICC has had three verdicts of conviction (against Germain Katanga, Thomas Lubanga Dyilo, and Ahmad Al Faqi Al Mahdi); four verdicts of acquittal (as to Mathieu Ngudjolo Chui, Jean-Pierre Bemba Gombo, Laurent Gbagbo, and Charles Blé Goudé); and five additional verdicts related to Article 70 proceedings pertaining to the administration of justice (against Jean-Pierre Bemba Gombo, Ajmé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu, and Narcisee Arido). It has also issued a number of holdings on reparations relating to its cases to date (Al Mahdi, Katanga, and Lubanga). The Ntaganda case resulted in convictions on charges of sexual and gender-based crimes (SGBCs), but, as of this writing, is still on appeal; SGBC charges are also at issue in the Ongwen, and Al Hassan cases. ICC, Case Information Sheets. 58 These concerns were particularly acute with the first judicial elections, where various candidates were diplomats and/or academics involved in the drafting of the Rome Statute, with little or no knowledge of judicial process. Centre for International Courts and Tribunals, ‘Discussion Paper: Selecting International Judges’, supra note 56, at 36. 59 30 January 2017 Interview with John Washburn (on file with author). See also C. Wenaweser, President of the Assembly of States Parties to the Rome Statute of the International Criminal Court, ‘Discussion Paper: The Assembly of States Parties of the Rome Statute: Perspective on the Years Ahead, 2009–2011’, at 2 (‘It was understood from the beginning that the decision on the composition of the chamber was the judges’ competence’.). 52 53

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238  The Elgar companion to the International Criminal Court diplomats, civil servants, lawyers and academics’.60 This then ‘raises issues as to transparency and introduces considerations into the decision-making process that may distract from the selection of the most highly qualified candidates’.61 Another concern has been politicization of voting, and ‘vote-trading’ within regional groups.62 Other criticisms have been that the process is controlled from ‘inside government circles’ with individuals chosen who have ‘proximity to the government’ rather than on their intrinsic merit.63 In response to such criticisms, an Advisory Committee on Nominations was established during the 10th ASP.64 The Committee is mandated to objectively assess judicial candidates, keeping in mind the requirements of the Rome Statute.65 Judicial candidates now also meet with States Parties and members of civil society prior to elections, as a further attempt to ensure the most qualified judges are selected and to increase transparency of the process. Still, ‘a process of election by [a] political bod[y] raises questions as to the relative importance accorded to the criteria for election … and extraneous political considerations’.66 However, creation of the Advisory Committee appears to have proven beneficial, in that it provides incentive for States Parties to only nominate well-qualified candidates, to avoid the potential embarrassment of having the Advisory Committee recommend against their selection.67 The actual voting to select judges occurs every three years to fill six vacancies.68 The voting is often extremely time-consuming, requiring multiple rounds, and, occasionally, the holding of special sessions.69 For years in which judicial elections are held, the process takes up much of the ASP session.70 Now that the ICC’s fourth crime, the crime of aggression, has had its

Centre for International Courts and Tribunals, ‘Discussion Paper: Selecting International Judges’, supra note 56, at 2. See also ibid. for a thoughtful study focusing on how states nominate candidates, how the election procedures operate in practice, and what if any changes are needed to the nomination and election procedures. See also Open Society Justice Initiative, ‘Raising the Bar: Improving the Nomination and Election of Judges to the International Criminal Court’ (2019). 61 Centre for International Courts and Tribunals, ‘Discussion Paper: Selecting International Judges’, supra note 56, at 2. 62 Ibid. at 5 (regional groups); ibid. at 27 (‘The practice of ICC elections indicates that states have actively engaged in vote trading …’.). 63 Ibid. at 10–11. 64 Coalition for the International Criminal Court, ‘Election of ICC and ASP Officials, Judges’, supra note 46. The Advisory Committee was preceded by an Independent Panel on ICC Judicial Elections, set up by the CICC in 2010. Ibid. ‘Article 36.4(c) of the Rome Statute provides that the ASP may establish an Advisory Committee on Nominations’. Ibid. 65 Ibid. 66 Centre for International Courts and Tribunals, ‘Discussion Paper: Selecting International Judges’, supra note 56, at 20. 67 30 January 2017, Interview with John Washburn. 68 Coalition for an International Criminal Court, ‘Election of ICC and ASP Officials, Judges’, supra note 46 (‘Every three years, judicial elections are held to fill six judicial vacancies at the Court, thereby replacing one third of the ICC judges and thus significantly changing the bench’s composition’.). The judges serve for non-renewable terms of nine years. Ibid. As to the first 18 judges only, however, one-third of the appointments were for three years, one-third for six years, and one-third for nine years, determined by drawing lots. Mundis, supra note 35, at 143. 69 The six judges who obtain the highest number of votes and a two-thirds majority of votes are elected. Ibid. The selection can require ‘more than thirty rounds of voting’. Ibid. For details on the voting process, see ibid. at 142–43. See also Art. 36(9) ICCSt. 70 A number of other posts are also filled through elections at ASPs. For instance, at ASP 2017 (December 2018), there were elections for one ASP Vice President, one member of the ASP Bureau, five 60

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The Assembly of States Parties   239 jurisdiction activated,71 new focus should be given to additionally nominating at least a few judges particularly knowledgeable on jus ad bellum law, a different area of law than the law on genocide, crimes against humanity, and war crimes.72 2.B

The Budget

As noted above, the Rome Statute provides that the ASP decides on the ICC’s budget.73 ‘The Budget of the ICC is drafted by the Court, under the coordination of the Registrar, and is approved and paid for by the [ASP].’74 ‘The ASP has set up a subsidiary expert body, the Committee on Budget and Finance (CBF), to help the ASP with th[e] … process’,75 which is also governed by the ICC’s Financial Rules and Regulations.76 The ICC budget process starts well in advance of each year’s session, when the CBF receives a detailed budget request from the Court.77 Budget negotiations at the ASP have proven contentious in the past few years, particularly since the financial crash of 2008, with increasing numbers of States Parties insisting on a ‘zero growth budget’.78 The impact of COVID-19 on the economies of States Parties could result in additional pressure for a reduced budget. As discussed further below, with the OTP having an increasing number of situations under preliminary examination and investigation, and more cases actually proceeding to trial, the fact that the Court has not received the full budget it has requested has created serious financial constraints.79 Ultimately, how much work the ICC is able to perform is contingent on the willingness of States Parties to provide funding.

members of the Board of Directors of the Trust Fund for Victims, and all 8 members of the Advisory Committee on Nominations. CICC, ‘Backgrounder’, supra note 28, at 6. ‘Elections’ can be something of a misnomer, as many of the slates only have the exact number of candidates running required to fill the position(s)—so that the outcome is essentially predetermined. That is not true of judicial elections, where there are multiple candidates running for each slot. 71 Activation of the Jurisdiction of the Court over the Crime of Aggression, ICC-ASP/16/Res.5, 14 December 2017, available online at https://​asp​.icc​-cpi​.int/​iccdocs/​asp​_docs/​Resolutions/​ASP16/​ICC​ -ASP​-16​-Res5​-ENG​.pdf (last visited 20 December 2018). 72 Jus ad bellum is part of international law, so a judge with such knowledge would fall within ‘List B’. 73 Art. 112(d) ICCSt. 74 Coalition for the International Criminal Court, ‘Delivering on the Promise of a Fair, Effective and Independent Court, Budget and Finance’, available online at http://​www​.iccnow​.org/​?mod​=b​ udget (last visited 21 January 2017). 75 Ibid. ‘The Committee on Budget and Finance, which is composed of 12 members, is responsible for the technical examination of any document submitted to the Assembly that contains financial or budgetary implications or any other matter of financial, budgetary or administrative nature, as may be entrusted to it by the Assembly of States Parties.’ Ibid. 76 Financial Regulations and Rules, available online at https://​ www​ .icc​ -cpi​ .int/​ NR/​ rdonlyres/​ D4B6E16A​-BD66​-46AF​-BB43​-8D4C3F069786/​281202/​FRRENG0705​.pdf (last visited 21 January 2017). 77 American NGO Coalition for the International Criminal Court (hereafter ‘AMICC’), Assembly of States Parties Fifteenth Session, 2016, Final Report. 78 For instance, at ASP 15, States Parties insisting on ‘zero growth’ were: Canada, Ecuador, France, Italy, Japan, Poland, Spain, UK, and Venezuela. Ibid. 79 See Section 3.B infra. There have likely been some minor cost savings in that certain ICC operations have not been able to function normally during 2020 due to precautions necessitated by COVID-19.

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240  The Elgar companion to the International Criminal Court Another fundamental problem is that the ASP lacks standing committees other than the CBF. Thus, while the network of working groups, task forces, etc. perform helpful work on substantive issues, these report to the Bureau, not the ASP. They therefore cannot address the CBF on an equal footing on issues which go beyond the CBF’s mandate, such as how victims should participate in trials. As a consequence, the CBF prevails on such substantive issues, when it is mandated to focus only on the budget. This absence of ASP standing committees to take up the cause of the Registrar or the Prosecutor is arguably an important reason for the failure of the Assembly to sufficiently fund the Court.80 2.C

Amendments to the Rome Statute and Rules of Procedure and Evidence

Another significant area of responsibility is that the ASP decides on amendments to the Rome Statute and the ICC’s Rules of Procedures and Evidence. The ability to amend the Rome Statute is quite significant because it governs, among other things, the crimes that the ICC may prosecute. Statutory and Rule amendments can also impact on the Court’s procedural efficiency and fairness. To date, four substantive amendments to the Rome Statute have been: (1) adding the definition of the crime of aggression and the conditions for the ICC’s exercise of jurisdiction over the crime, agreed on at the 2010 Kampala Review Conference,81 with activation agreed on at the 2017 ASP, effective 17 July 2018;82 (2) adding three war crimes to the Rome Statute, also agreed on at the Kampala Review Conference;83 (3) adding three more war crimes to the Rome Statute agreed on at the ASP in 2017;84 (4) adding the war crime of starvation if committed during non-international armed conflict agreed on at the ASP in 2019,85 and (5) the decision to delete Article 124 from the Statute,86 a provision that had provided a seven-year opt out of war

20 April 2017, Interview with John Washburn (on file with author). Resolution RC/Res.6, advance version, 28 June 2010. After the Review Conference, the crime of aggression amendment required 30 State Party ratifications, and one more ASP vote (or consensus), which occurred at the December 2017 ASP. Ibid. Art. 15bis, paras 2–3, Art. 15ter, paras 2–3. 82 See supra note 71 (activation of the jurisdiction of the Court over the crime of aggression). 83 The war crimes are: ‘[e]mploying poison or poisoned weapons’, ‘[e]mploying asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices’, and ‘[e]mploying bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions’. Resolution RC/Res.5, Annex 1 (10 June 2010), available online at https://​treaties​.un​.org/​doc/​source/​docs/​RC​-Res​.5​-ENG​.pdf (last visited 12 February 2017). These crimes had previously been covered under the Rome Statute if committed in international armed conflict, and, with the amendment, will be covered also when committed in non-international armed conflict. Ibid. at preamble. 84 Resolution on Amendments to Art. 8 of the Rome Statute of the International Criminal Court, ICC-ASP/16/Res.4, available online at https://​asp​.icc​-cpi​.int/​iccdocs/​asp​_docs/​Resolutions/​ASP16/​ICC​ -ASP​-16​-Res4​-ENG​.pdf (last visited 20 December 2018). The war crimes cover use of microbial, biological, or toxic weapons, the use of weapons that injure by fragments undetectable by X-rays (non-detectable fragments), and the use of blinding laser weapons, in either international or non-international armed conflict. 85 Resolution on Amendments to Art. 8 of the Rome Statute of the International Criminal Court, ICC-ASP/18/Res.5, available online at https://​asp​.icc​-cpi​.int/​iccdocs/​asp​_docs/​ASP18/​ICC​-ASP​-18​ -Res5​-ENG​.pdf (last visited 6 September 2020). 86 Resolution ASP-ICC/14/Res.2, 26 November 2015. 80 81

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The Assembly of States Parties   241 crimes jurisdiction for the nationals of Rome Statute ratifying countries, with deletion agreed to the ASP in 2015.87 Statutory and rule amendments are considered during the year prior to each ASP session by the Working Group on Amendments. However, work on the crime of aggression occurred separately, first in Preparatory Commission meetings held after the Rome Conference and prior to entry into force of the Rome Statute, then before the Special Working Group on the Crime of Aggression from 2003–2008,88 and finally concluding at the Kampala Review Conference.89 In addition to the crime of aggression, consideration has been given to adding other substantive crimes to the Rome Statute: terrorism, international drug trafficking, additional war crimes,90 and use of nuclear weapons.91 None of these proposals has received enough support to reach the ASP’s consideration—other than the war crimes amendments adopted in Kampala and the 2017 and 2019 ASPs.92 While the proposal to add the crime of terrorism was withdrawn,93 the other proposals are still pending before the Working Group on Amendments.94 At this point, there appears little enthusiasm for adding crimes to the Rome Statute, beyond perhaps selected war crimes. Kenya also introduced a proposal to the Working Group to amend the Rome Statute’s preamble to expressly recognize that complementarity includes not only national, but regional, criminal judicial mechanisms.95 Article 17 currently neither expressly includes nor does it

See Art. 124 ICCSt. (now agreed to be deleted). The 7-year opt out had only been utilized by two countries—France and Colombia—and, for both, the 7-year period had expired. 88 The Special Working Group on the Crime of Aggression was charged with elaborating upon proposals on the crime of aggression that had been developed by the Preparatory Commission. See Continuity of Work in Respect of the Crime of Aggression, UN Doc. ICC-ASP/1/Res.1, pt. IV, at 328. 89 For discussion of the drafting history of the crime of aggression, see J. Trahan, ‘Negotiating the Amendment on the Crime of Aggression: Proceedings at the Kampala Review Conference on the International Criminal Court’, 11 International Criminal Law Review 49 (2011); J. Trahan, ‘From Kampala to New York—The Final Negotiations to Activate the Jurisdiction of the International Criminal Court Over the Crime of Aggression’, 18 International Criminal Law Review 197 (2018). 90 See Secretariat of the Assembly of States Parties, Informal Compilation of Proposals to Amend the Rome Statute, 23 January 2015, available online at https://​asp​.icc​-cpi​.int/​iccdocs/​asp​_docs/​Publications/​ WGA​-Inf​-Comp​-RS​-amendments​-ENG​.pdf (last visited 23 January 2017). 91 See J. Trahan, ‘Potential Future Rome Statute Amendments’, 18 New England Journal of International and Comparative Law (2012) 331. 92 See supra note 83 (Kampala war crimes amendment); see supra note 84 (2017 ASP war crimes amendment); see supra note 85 (2019 ASP war crimes amendment). 93 Informal Compilation of Proposals to Amend the Rome Statute, supra note 90, at n. 2 (noting withdrawal of the proposal). 94 Also still pending is a proposal to add the use of landmines as a war crime, which was considered for adoption at the December 2017 ASP, but not adopted. 95 The amendment would add the following language to the Rome Statute’s preamble: ‘Emphasizing that the International Criminal Court established under this Statute shall be complementary to national and regional criminal jurisdictions’. Informal Compilation of Proposals to Amend the Rome Statute, supra note 90. This presumably would permit complementarity to be satisfied by investigation or prosecution before the yet to be established expanded criminal jurisdiction of the African Court of Justice and Human Rights under the Malabo Protocol. Yet, that Protocol has a startlingly broad impunity provision, which suggests that complementarity could not be exercised vis-à-vis anyone covered by that provision. See Malabo Protocol, Art. 46Abis (‘No charges shall be commenced or continued before the court against any serving AU Head or State of Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.’). 87

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242  The Elgar companion to the International Criminal Court exclude that a regional criminal prosecution could satisfy complementarity, although the text of Article 17 refers to an investigation or prosecution ‘by a State’ which has jurisdiction, thereby suggesting that it is satisfied only by national prosecutions.96 This then presents the question whether amending the preamble alone would suffice to accomplish such an amendment. Kenya additionally introduced a proposal to add to Article 27 (irrelevance of official capacity), that ‘serving Heads of State, their deputies and anybody acting or entitled to act as such may be exempt from prosecution during their current term in office’.97 As discussed further below, this proposal received staunch opposition from most States Parties.98 In addition, South Africa presented a proposal that would allow the UN General Assembly to defer situations before the ICC, where the UN Security Council has failed to respond within six months to a deferral request made to it.99 This proposal, also discussed below, also has not received significant support.100 In addition, the Working Group on Amendments has considered various rule amendment proposals, some of which have since been adopted by the ASP, such as an amendment to Rule 68 (prior recorded testimony), and a group of amendments dubbed the ‘language cluster’.101 Others are still pending, such as a proposal to amend Rule 165 to reduce the number of judges required to adjudicate ‘Article 70’ cases dealing with ‘offenses against the administration of

See Art. 17 ICCSt. Informal Compilation of Proposals to Amend the Rome Statute, supra note 90. The proposal was made on behalf of the AU. See The Global Justice Monitor, Journal of the CICC (2014–15) 46, at 5, available online at https://​issuu​.com/​coalitionfortheicc/​docs/​monitor46​_english​_web (last visited 6 September 2020) (‘Kenya, on behalf of the African Union (AU), is proposing that a third paragraph be added to Article 27 reading that “serving Heads of State, their deputies and anybody acting or is entitled to act as such may be exempt from prosecution during their current term of office …”’.). 98 See text accompanying note 212 infra. 99 The text would provide: ‘Where the UN Security Council fails to decide on the request by the state concerned within six (6) months of receipt of the request, the requesting Party may request the UN General Assembly to assume the Security Council’s responsibility under paragraph 1 consistent with Resolution 377 (v) of the UN General Assembly’. Informal Compilation of Proposals to Amend the Rome Statute, supra note 90. 100 An interesting (probably moot) question is whether South Africa’s proposal would have remained before the Working Group if South Africa had withdrawn from the Rome Statute. 101 Rule amendments adopted include: Rule 4 (concerning the plenary sessions); Rule 4bis (concerning the Presidency); Rule 132bis (concerning the designation of a single judge for the preparation of the trial); Rule 100 (concerning the place of proceedings); Rule 68 (considering prior recorded testimony); Rule 134bis (concerning presence through the use of video technology); Rule 134ter (concerning excusal from presence at trial); and Rule 134quater (concerning excusal from presence at trial due to extraordinary public duties). ICC, ‘ASP, Working Group on Amendments’, available online at https://​ asp​.icc​-cpi​.int/​en​_menus/​asp/​WGA/​pages/​default​.as (last visited 14 March 2017). Amendments to Rules 101(3) and Rule 144(2)(b) (part of the so-called ‘language cluster’ concerning partial translations of prosecution witness statements and court decisions) were also agreed. Resolution ICC-ASP/15/Res.4, adopted 24 November 2016, by consensus, available online at https://​asp​.icc​-cpi​.int/​iccdocs/​asp​_docs/​ Resolutions/​ASP15/​ICC​-ASP​-15​-Res4​-ENG​.pdf. Most recently, Rule 26 (concerning the receipt and admissibility of complaints by the Independent Oversight Mechanism) was amended. Omnibus resolution, ‘Strengthening the International Criminal Court and the Assembly of States Parties’, infra note 106, para. 133. 96 97

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The Assembly of States Parties   243 justice’102 suggested as a measure of judicial economy.103 Rule amendments can help improve the efficiency and effectiveness of prosecutions, yet States Parties must also ensure that efficiency measures do not undermine fair trial rights. 2.D

Omnibus Resolution

Another significant activity at each ASP meeting is the finalization of the annual ‘catch-all’ omnibus resolution.104 The idea behind having an omnibus resolution was that, rather than issuing multiple resolutions on a variety of topics (e.g., cooperation, complementarity, budget, amendments, etc.), there would be only one resolution to address all matters at each Assembly.105 The omnibus resolution is now so lengthy that there are informal negotiations during the year preceding the ASP session led by a facilitator charged with drafting suggested text for the resolution, with final wording resolved at the ASP session. A recent omnibus resolution, for example, covered a huge variety of topics, including universality of the Rome Statute, victims and affected communities, complementarity, and cooperation.106 Despite the existence of the omnibus resolution, there are occasionally also additional freestanding resolutions on selected issues.107 2.E

Thematic Topics

The ASP meetings often also include topical panels. Thus, in addition to the General Debate, which occurs near the opening of the ASP with States Parties and Observer States making initial statements, there are special sessions on selected topics. For instance, at the Kampala

See Art. 70 ICCSt. For Rule amendment proposals under consideration, see Report of the Working Group on Amendments, ICC-ASP/17-35, 29 November 2018 (discussing proposals related to Rule 26 (since adopted), Rule 165, and Rule 76(3)); see also Report of the Working Group on Amendments, ICC-ASP/18/32, 3 December 2019 (Rule 165 and 76(3) proposals still pending). 104 An annual omnibus resolution has been adopted at each ASP session since 2003. CICC, ‘Backgrounder’, supra note 28, at 27. 105 For the 2019 omnibus resolution, see ICC-ASP/18/Res.6, Strengthening the International Criminal Court and the Assembly of States Parties, adopted 6 December 2019, by consensus, available online at https://​asp​.icc​-cpi​.int/​iccdocs/​asp​_docs/​ASP18/​ICC​-ASP​-18​-Res6​-ENG​.pdf (last visited 6 September 2020). 106 The full list of topics addressed in the omnibus resolution for ASP 17 (in 2018) were: universality of the Rome Statute, 20th Anniversary of the Rome Statute, the Agreement on Privileges and Immunities, cooperation, Host State, relationship with the United Nations, relationships with other international organizations and bodies, activities of the Court, elections, Secretariat of the Assembly of States Parties, counsel, legal aid, the Study Group on Governance, proceedings of the Court, working methods review, strategic planning, victims and affected communities, reparations and Trust Fund for Victims, recruitment of staff, complementarity, Independent Oversight Mechanism, Programme budget, Review Conference, Consideration of amendments, and participation in the Assembly of States Parties. Resolution ICC-ASP/17/20, Strengthening the International Criminal Court and the Assembly of States Parties, adopted 12 December 2018, by consensus, available online at https://​asp​.icc​-cpi​.int/​iccdocs/​asp​ _docs/​ASP17/​RES​-5​-ENG​.pdf (last visited 20 December 2018). 107 See, e.g., Resolution ICC-ASP/17/Res.3, adopted on 11 December 2018, by consensus, Resolution on cooperation, available online at https://​asp​.icc​-cpi​.int/​iccdocs/​asp​_docs/​ASP17/​RES​-3​-ENG​.pdf (last visited 20 December 2018). 102 103

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244  The Elgar companion to the International Criminal Court Review Conference, there were ‘stocktaking’ sessions devoted to the impact of the Rome Statute on victims and affected communities, complementarity, cooperation, and ‘peace versus justice’.108 The rationale for such sessions was to ‘effectively take stock of the status and impact of international criminal justice and the Rome Statute system’.109 The focus on complementarity and cooperation has resulted in the appointment of ‘focal points’ (designated States Parties to work on both topics), with ASP sessions frequently now held on these topics. A thematic debate held at the ASP in 2016 covered ‘the ICC and Africa’, called for by States Parties in light of announcements of withdrawals from the Rome Statute prior to that ASP (discussed below). A focus on that topic could have resulted, but generally did not result, in a contentious debate, with the most politically charged ASP related to the ICC and Africa having occurred the year prior.110 At the ASP in 2018, a thematic debate was held on ‘Challenges to Cooperation: Supporting the Integrity and Independence of the Court Against External Interference and Political Threats’,111 which appeared to be at least in partial response to statements by US government officials in the fall prior to the ASP.112 During the debate, many States Parties voiced strong statements of support for the ICC.113 Complementing the formal ASP sessions are many ‘side-events’ organized by states, international organizations, and non-governmental organizations on the margins of each ASP session on a diverse panoply of international justice-related topics.114

CICC, ‘Delivering on the Promise of a Fair, Effective and Independent Court, Review Conference of the Rome Statute, Stocktaking’, available online at http://​www​.iccnow​.org/​?mod​=​stocktaking (last visited 26 January 2017). 109 Ibid. 110 In 2015 (ASP 2014), Kenya brought an 80 plus person delegation to the session, along with television crews to cover it. Jennifer Trahan, ‘The International Criminal Court’s Assembly of States Parties Meetings: Challenges to the Work of the Court’, Opinio Juris (6 December 2015), available online at http://​opiniojuris​.org/​2015/​12/​06/​the​-international​-criminal​-courts​-assembly​-of​-states​-parties​-meetings ​ -challenges​-to​-the​-work​-of​-the​-court (last visited 14 March 2017). 111 Other thematic debates during the ASP in 2018 were on the ‘Twentieth Anniversary of the Rome Statute’, and ‘Achievement and Challenges Regarding Victims’ Participation and Legal Representation After 20 Years of the Adoption of [the] Rome Statute’. Amnesty International, ‘Key Recommendations: Seventeenth Session of the Assembly of States Parties to the Rome Statute, 5–12 December 2018’. 112 ‘On September 10, 2018, US National Security Adviser John Bolton announced that the United States would not cooperate with the ICC, sought to discredit the court’s legitimacy, and threatened a number of retaliatory steps—including against court officials and states cooperating with the ICC— should the court investigate US citizens or the citizens of allied countries.’ Human Rights Watch, ‘Human Rights Watch Briefing Note for the Seventeenth Session of the International Criminal Court Assembly of States Parties’, November 2018, at 2. The US did not send a delegation to the 2018 or 2019 ASPs. On 11 June 2020, President Trump issued an Executive Order providing for sanctions—asset freezes and travel bans—against ICC officials, their families and others, particularly related to the ICC proceeding in investigating US nationals. US Executive Order 13928, issued 11 June 2020, available online at https://​ home​.treasury​.gov/​system/​files/​126/​20200611​_eo​_iccp​.pdf (last visited 6 September 2020); compare J. Trahan and M. Fairlie, ‘The International Criminal Court is Hardly a Threat to US National Security’, 15 June 2020, available online at http://​opiniojuris​.org/​2020/​06/​15/​the​-international​-criminal​-court​ -is​-hardly​-a​-threat​-to​-us​-national​-security/​#:​~:​text​=​15​%20Jun​%20The​%20International​%20Criminal​ ,Threat​%20to​%20US​%20National​%20Security​&​text​=​Regrettably​%20(although​%20predictably)​%2C​ %20the​,in​%20crimes​%2C​%20benefit​%20from​%20impunity (last visited 6 September 2020). 113 Author’s observations, ASP 2018 (17th Session). 114 For a list of side-events from ASP 17, see ‘17th Session of the Assembly of States Parties to the Rome Statute: Internal Provisional Work Programme’. 108

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The Assembly of States Parties   245

3.

KEY CHALLENGES FOR THE ASP

While the ASP likely will face many challenges in the years ahead, and has already faced some, a few explored here are: (1) the challenge of balancing the ASP’s role with maintaining prosecutorial and judicial independence; (2) the risk of budgetary limitations impairing the Court’s core functioning; (3) the challenge of effectively addressing the issue of non-cooperation, particularly regarding non-execution of arrest warrants; and (4) the difficulties posed by Rome Statute withdrawals as well as other ‘push-back’ against the work of the Court. There has now also been an Independent Expert Review, and the implementation of its recommendations is hoped to further strengthen the ICC in its work.115 3.A

Maintaining Prosecutorial and Judicial Independence

Concerns about the independence of the ICC, a judicial body, from the ASP, a political body, arose during the negotiations of the Rome Statute. ‘[O]ne limit on the ASP that was clearly a concern during the negotiations was the question of judicial independence. The debates concerning Article 112 [the ASP’s powers]—and Article 119—show a deliberate choice to preclude the ASP from considering matters of a judicial nature’.116 Article 119 provides that a dispute concerning ‘the judicial functions of the court’ shall be settled by the Court, whereas any other dispute relating to interpretation or application of the Rome Statute not settled through negotiations shall be referred to the ASP.117 The ASP is also not to interfere with the independence of the OTP.118 Thus, ‘[i]t must be understood that oversight functions on the part of the ASP are limited to the non-judicial aspects of the work of the Court and that the independence of the Court is to be respected at all times’.119 It is easy to state this bright line rule of judicial and prosecutorial independence, but perhaps more difficult to navigate in practice.120 As Max Du Plessis and Christopher Gevers observe, while ‘most countries would agree that “prosecutorial independence” is an essential condition for any legal system’, it is actually observed differently in different legal systems.121 The ASP has given a wholly circular definition as to independence: ‘[j]udicial and prosecutorial inde-

115 See ICC-ASP/18/Res.7, Review of the International Criminal Court and the Rome Statute System, adopted 6 December 2019, by consensus, available online at https://​asp​.icc​-cpi​.int/​iccdocs/​asp​_docs/​ ASP18/​ICC​-ASP​-18​-Res7​-ENG​.pdf (last viewed 6 September 2020) (commissioning the Independent Expert Review and establishing its terms of reference). The IER report was finished in September 2020. 116 Du Plessis and Gevers, supra note 4, at 160, citing Bos, supra note 5, at 305; W. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford: Oxford University Press, 2010), at 1121–22. 117 Art. 119 ICCSt. The ASP may then make recommendations on further means of settlement of the dispute, including referral to the International Court of Justice. Ibid. 118 Art. 42(1) ICCSt. (‘The Office of the Prosecutor shall act independently as a separate organ of the Court. … A member of the Office shall not seek or act on instructions from any external source.’). 119 Wenaweser, Discussion Paper, supra note 59, at 2. 120 ‘[T]he “independence of the Court” is a virtue, but notoriously difficult to define. The principle of independence is one more readily spotted in its violation, but less so in its observance.’ Du Plessis and Gevers, supra note 4, at 167. 121 Ibid. at 168.

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246  The Elgar companion to the International Criminal Court pendence is regarded as the independent performance of judicial or prosecutorial functions’.122 Du Plessis and Gevers take the view that ‘the proper balance between the independence of the Court and the oversight role of the ASP under Article 112 … cannot be answered profitably in the abstract’.123 At times, issues have come before the ASP that are of a political nature, and could impact on the work of the OTP and/or Chambers. For instance, one of the proposals, discussed above, would be a Rome Statute amendment that would permit the General Assembly to defer ICC prosecutions.124 A Rome Statute amendment is squarely within the powers of the ASP, although amendment procedures are quite stringent to ensure that only strongly supported amendments are adopted.125 Furthermore, it is a perpetual complaint that the UN Security Council is dominated by its Permanent Members (‘P5’) through the use of their veto power, and that Security Council voting is reflective of their dominant interests.126 An argument can also be made for the General Assembly acting in situations where the Security Council is deadlocked—as suggested by the ‘Uniting for Peace’ Resolution.127 So, to an extent, this proposal has superficial appeal. Yet, the context within which the proposal was made presented the distinct optics that it was designed to block the OTP’s work on particular cases. The proposal was made after warrants were issued against then President Bashir of Sudan and Uhuru Kenyatta, who subsequently became President of Kenya.128 The UN Security Council was then asked to defer both prosecutions as threats to international peace and security,129 but declined to do so.130 In this author’s estimation, the Security Council acted properly as there was no threat to international peace and security; rather, it appears that the heads of state of Sudan and Kenya were attempting to block investigations and prosecutions related to their own actions. (Charges against then Sudanese President Bashir include genocide in Darfur,131 and the warrant against the Kenyan President pertained to post-election violence in which over 1,000 were killed.132) It was only

Independent Oversight Mechanism, Operational Mandate, Resolution ICC-ASP/9/Res.5, Annex 1, note 7, as cited in Du Plessis and Gevers, supra note 4, at 168. 123 Du Plessis and Gevers, supra note 4, at 168. 124 See note 99 supra and accompanying text. 125 Art. 121 ICCSt. 126 See, e.g., J. Trahan, Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes (New York: Cambridge University Press, 2020). 127 GA Res. 377(V), 3 November 1950. 128 Kenyatta’s warrant was issued before he was elected President. 129 M. Nichols, ‘African Leaders Ask U.N. to Defer Kenya International Criminal Trials’, Reuters, World News (22 October 2013), available online at https://​www​.reuters​.com/​article/​us​-kenya​-icc​-un/​ african​-leaders​-ask​-u​-n​-to​-defer​-kenya​-international​-criminal​-trials​-idUSBRE99L14O20131022 (last visited 15 April 2017); Security Council Report, Chronology of Events, Sudan (Darfur), available online at http://​www​.securitycouncilreport​.org/​chronology/​sudan​-darfur​.php​?page​=​all​&​print​=​true (last visited 15 April 2017). 130 T.A. Tekle, ‘AU Appalled over UNSC Failure to Defer ICC Cases of Sudan, Kenyan Leaders’, Sudan Tribune (4 February 2014), available online at http://​ www​ .sudantribune​ .com/​ spip​ .php​ ?article49831 (last visited 15 April 2017). 131 Warrant of Arrest for Omar Hassan Ahmad Al Bashir, Al Bashir (ICC-02/05-01/09) Pre-Trial Chamber I, 4 March 2009; see also Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir, Al Bashir (ICC-02/05-01/09) Pre-Trial Chamber I, 12 July 2010. 132 Kenyatta (ICC-01/09-02/11) (charges withdrawn); Ruto and Sang (ICC-01/09-01/11) (charges vacated). 122

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The Assembly of States Parties   247 after these two deferral attempts failed that this amendment was introduced. Thus, while the idea of the General Assembly acting when the Security Council fails to act has appeal, the context in which this amendment proposal was introduced suggests the two states wanted another chance to convince a political body to stop the ICC’s work, having failed to convince the Security Council. Would adoption of that amendment have interfered with the OTP’s independence? In the context of everything that was occurring at that time, arguably, yes. A counter-narrative, however, is that the Security Council has the extraordinary power to defer Rome Statute investigations and prosecutions,133 such that giving the General Assembly a comparable power somewhat balances out the power of a political body dominated by the P5 with a political body having equal representation. Yet, if States Parties really desire to try to counteract some of the Security Council’s power, one might ask why Kenya did not also seek an amendment that would grant the General Assembly referral powers to match the Security Council’s referral powers?134 The fact that Kenya only supported increasing deferral powers, to this author, again suggests an attempt to influence ongoing cases.135 There are also complex legal questions as to the legal validity of such an amendment.136 Another example of attempted politicization/influence occurred during ASP 14 in November 2015 when the ASP was debating a rule amendment to Rule 68;137 yet, that amendment was also before Chambers in a pending case.138 The rule pertained to whether to allow admission of prior recorded testimony, and whether a rule amendment allowing such testimony would apply retroactively, a question then at issue in the Ruto/Sang case.139 When something is sub judice before Chambers, it would seem not the proper function of the ASP to have the item on its agenda. The ASP giving inadequate funding to the ICC by not granting the full budget required, discussed below, is also an example of a political body impacting on the work of the OTP and

Art. 16 ICCSt. The Rome Statute did not grant the Security Council these powers; rather, they emanate from the UN Charter. Thus, Article 16 (and 13(b)) are best understood as the Rome Statute addressing how the ICC should respond given the powers the UN Security Council already has under the UN Charter. See J. Trahan, ‘The Relationship Between the International Criminal Court and the UN Security Council: Parameters and Best Practices’, 24 Criminal Law Forum (2013) 417. 134 Arts 13(b), 15ter ICCSt. 135 Du Plessis and Gevers suggest an alternative proposal that the ASP could have deferral powers, if a Rome Statute amendment so provided. ‘From an African perspective, frustration over the role that the Security Council plays, both in principle and practice, might lead to a continental push for an expanded role for the ASP as a political counterpoint to the Council.’ Du Plessis and Gevers, supra note 4, at 170. 136 It is not certain that a Rome Statute amendment granting the General Assembly referral and/or deferral powers would be valid. See ibid. at 171 (‘even sympathetic countries are unlikely to support employing the controversial Uniting for Peace Resolution in this legally questionable manner’). 137 See ASP 12th Session Resolution 7, UN Doc. ICC-ASP/12/Res.7, 7 November 2013 (amending Rule 68). 138 Trahan, Opinio Juris, supra note 110. 139 Judgment on the Appeals of Mr. William Samoei Ruto and Mr. Joshua Arap Sang Against the Decision of Trial Chamber V(A) of 19 August 2015 Entitled ‘Decision on Prosecution Request for Admission of Prior Recorded Testimony’, Ruto and Sang (ICC-01/09-01/11 OA 10), Appeals Chamber, 12 February 2016, available online at https://​www​.icc​-cpi​.int/​CourtRecords/​CR2016​_01129​.PDF (last visited 16 April 2017). 133

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248  The Elgar companion to the International Criminal Court Chambers.140 While it is not necessarily blocking particular investigations or prosecutions, it nonetheless potentially hampers the work of the Court as a whole, resulting in some investigations or prosecutions either not being done or being deferred. Thus, there is a careful line that must be preserved so that the ASP does not impinge upon prosecutorial or judicial independence. 3.B

Limiting the Court’s Work via Budgetary Restrictions

Another area that poses challenges for the future is for the ASP to ensure that the ICC has the budget it requires.141 Deciding on the ICC’s budget is obviously hugely significant to the effective functioning of the Court. Through the budget, the ASP decides how much resources it allows the Court to have to implement its mandate under the Rome Statute.142 The budget thus must be sufficient for the Court to carry out its ‘core functions effectively, including, but not limited to, investigations, outreach, victims and witnesses protection, legal representation, etc’.143 The Court is currently at its busiest ever. The OTP recently had 13 active investigations, regarding: Central African Republic (I and II), Côte d’Ivoire, Democratic Republic of the Congo, Georgia, Libya, Mali, Uganda, Kenya, Burundi, Sudan (Darfur), Bangladesh/ Myanmar, and Afghanistan.144 The OTP also recently had nine pending preliminary examinations, regarding: Colombia, Guinea, Iraq/UK, Nigeria, Palestine, Philippines, Ukraine and Venezuela (I and II).145 As of this writing, the ICC had publicly issued 35 arrest warrants and nine summonses to appear.146 Five cases are at the trial stage.147 Moreover, unfortunately, it also appears that ‘atrocities [are continuing] at an alarming rate around the globe with no decrease in sight’.148 While in-Court activity was reduced in 2020 due to safety measures implemented due to COVID-19, the Prosecutor has made it clear in her statements that if the Court does not obtain

See, e.g., Amnesty International, ‘Key Recommendations’, supra note 111 (‘[e]mphasis[ing] the importance of the independence of the Office of the Prosecutor in conducting the preliminary examinations, investigations and cases, without political, budgetary or other interference’). 141 According to Article 112.2(d) Rome Statute, the ASP shall ‘consider and decide the budget of the Court’. Art. 112(2)(d) ICCSt. 142 CICC, ‘Delivering on the Promise of a Fair, Effective and Independent Court, Budget and Finance, Budget and Finance Backgrounds’, available online at http://​www​.iccnow​.org/​?mod​=b​ udgetbackground (last visited 21 January 2017). 143 Ibid. 144 ICC, ‘Situations Under Investigation’, available online at https://​www​.icc​-cpi​.int/​Pages/​Situations​ .aspx (last visited 6 September 2020). 145 ICC, ‘Preliminary Examinations’, available online at https://​www​.icc​-cpi​.int/​pages/​preliminary​ -examinations​.aspx (last visited 6 September 2020). 146 ICC, ‘The Court Today’, ICC-PIDS-TCT-01-101/19_Eng, updated July 2019, available online at https://​www​.icc​-cpi​.int/​iccdocs/​pids/​publications/​thecourttodayeng​.pdf (last visited 6 September 2020). 147 ICC, ‘Cases, Defendants’, available online at https://​www​.icc​-cpi​.int/​Pages/​trial​.aspx (last visited 6 September 2020) (Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (Al Hassan), Abdallah Banda, Dominic Ongwen, Bosco Ntaganda, and Alfred Yekatom/Patrice-Edouard Ngaïssona). 148 Elizabeth Evenson and Jonathon O’Donohue, ‘The International Criminal Court at Risk’, Open Democracy (6 May 2015), available online at https://​www​.hrw​.org/​news/​2015/​05/​06/​international​ -criminal​-court​-risk (last visited 26 January 2017). 140

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The Assembly of States Parties   249 the budget it needs, the OTP cannot perform its work.149 The OTP’s budget needs to enable the OTP to ‘conduct high-quality preliminary examinations, investigations and prosecutions’150— and, obviously, having such geographically diverse situations before it presents huge challenges. In addition, ‘significant resources’ are needed to maintain ‘evidence in cases where arrest warrants are outstanding’, so that the OTP may ‘proceed promptly with cases when suspects are surrendered to the ICC’.151 The OTP’s budget difficulties are compounded by the fact that when the UN Security Council referred two situations to the ICC—the situations in Darfur and Libya—it purported to block the funding to pay for them.152 There is, of course, the significant cost of operating the court’s facilities at Oude Waalsdorperweg 10 in The Hague, and all the incidental expenses of conducting trials, including costs such as translations into multiple languages. Funding is also needed by the Court, for example, for: (i) the Victims and Witnesses Unit, which ensures that witnesses receive protection, relocation, and assistance;153 (ii) the Defence, both the Office of Public Counsel for Defence (‘OPCD’)154 as well as individual defense teams;155 (iii) the Office of Public Counsel for Victims, which ensures that victims may participate in ICC proceedings, by supporting

149 See, e.g., Fatou Bensouda, Prosecutor of the International Criminal Court, Address at the First Plenary, Fifteenth Session of the Assembly of States Parties, 16 November 2016, available online at https://​asp​.icc​-cpi​.int/​iccdocs/​asp​_docs/​ASP15/​ASP15​-Opening​-Statement​-Prosecutor​-ENG​.pdf (last visited 13 February 2017) (‘Failing to sufficiently fund our treaty mandated work will have real detrimental results on our ability to fulfil that mandate and to deliver justice to the victims of the world’s most serious crimes.’). 150 CICC, Budget and Finance Team, ‘Submission to the Committee on Budget and Finance at Its Twenty-First Session on 9 to 19 September 2013, Comments on the Proposed Programme Budget for 2014 of the International Criminal Court and other Matters’ (5 September 2013), available online at http://​www​.iccnow​.org/​documents/​Comments​_and​_Recommendations​_to​_the​_CBF​_at​_its​_21st​ _Session​.pdf (last visited 26 January 2017). 151 Ibid. One of the suspects in the Darfur situation, Ali Muhammad Ali Abd–Al-Rahman (Ali Kushayb), surrendered himself recently, after his arrest warrant had been outstanding for many years. ICC Press Release, ‘Situation in Darfur (Sudan): Ali Kushayb is in ICC Custody’, 9 June 2020, available online at https://​www​.icc​-cpi​.int/​Pages/​item​.aspx​?name​=​PR1525 (last viewed 7 September 2020). 152 Resolution 1593 (Sudan) provides ‘that none of the expenses incurred in connection with the referral including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations …’. S/RES/1493 (2005), para. 7. Resolution 1970 (Libya) contains similar language. See S/RES/1970 (2011), para. 8. In the author’s view, these resolutions only purportedly blocked UN funding, as the General Assembly, not UN Security Council, makes UN budget decisions. See Art. 17.1, UN Charter. 153 The Unit also conducts unexpected temporary relocations of individuals until they can relocate to another country. CICC Budget and Finance Team, supra note 150 (discussing the budget needed by the Victims and Witnesses Unit). 154 The OPCD ‘provides support and substantive legal assistance to Defence teams’, International Bar Association, Lawyers and the ICC, available online at http://​www​.ibanet​.org/​ICC​_ICL​_Programme/​ Lawyers​_and​_the​_ICC​.aspx (last visited 14 March 2017). 155 Defense funding is critical to demonstrating ‘the ICC’s commitment to ensuring equality of arms and ensuring the rights of the accused’. CICC Budget and Finance Team, supra note 150 (discussing the budget needed by the Defense).

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250  The Elgar companion to the International Criminal Court legal teams and representing victims in some proceedings;156 and (iv) field offices, which enable the ICC to conduct outreach.157 While ‘enhancing efficiency’, ‘managerial improvements’, and financial responsibility are obviously important goals as ‘cost-saving measures’,158 there is a point at which a doctrinaire approach of ‘zero growth’ in the budget hampers the Court’s effectiveness. ‘[T]he Court must be able to fully carry out its functions under the Rome Statute’.159 The ASP, assisted by the CBF, is thus crucial to ensuring that the Court has the funding it requires.160 The International Federation of Human Rights (‘FIDH’), for example, has raised the complaint that the CBF is composed of financial experts, without expertise as to judicial matters, and yet the CBF makes observations on particular types of proceedings and their costs, despite the requirement of ‘judicial independence’.161 Such micromanagement in budget decisions certainly also has the potential to interference with the Court’s independence. Furthermore, when States Parties focus on how much they are willing to pay, an argument can be made that they have the topic backwards: the focus should be on how much the ICC requires to conduct its work.162 For example, for 2017, the Court requested a total budget of 147,250,700 Euros (arguably too little in itself), but the ASP approved only 144,587,300 Euros; after deduction of payment against its loan to the Netherlands, this left the Court with 141,600,000 Euros, which was only a 1.9 percent increase from the comparable 2016 figure.163 3.C

Non-cooperation Particularly in Executing Arrest Warrants

The ICC also faces significant challenges in the area of non-cooperation. The Coalition for the International Criminal Court (‘CICC’) is not making an overstatement when it writes: ‘The lack of cooperation from states is one of the greatest challenges the Court faces in its work.’164

156 Ibid. (discussing the budget needed for victim participation). The Rome Statute provides for the participation of victims in proceedings. Art. 68.3 ICCSt.; see FIDH, ‘The Rome Statute at Twenty (1998–2018): 10 Challenges to an Effective and Independent International Criminal Court’, July 2018, at 4 (number of victims participating by case). 157 CICC Budget and Finance Team, supra note 150 (discussing the budget needed for field offices and outreach). 158 Wenaweser, Discussion Paper, supra note 59, at 3 (calling for enhancing efficiency and managerial improvements as cost-saving measures). 159 Ibid. at 3. 160 See, e.g., REDRESS, ‘Hundreds of Victims Prevented from Participating in Crucial Court Hearings Due to Lack of Resources at the International Criminal Court’ (15 July 2011), available online at http://​www​.redress​.org/​downloads/​StatementVicti​mParticipation15July2011​.pdf (last visited 26 January 2017) (‘Registry officials at the ICC have warned judges that they can’t process the paperwork to enable victims to take part in crucial Court hearings, because they simply have too few staff.’). 161 See FIDH, Position Paper, Ninth session of the ICC Assembly of States Parties (2010), at 17, as cited in Du Plessis and Gevers, supra note 4, at 170. 162 Statement of expert participant, Future of International Justice Scenarios Workshop, 10 February 2017, NYU Center for Global Affairs, available online at http://​impunitywatch​.com/​report​-of​-symposium​ -on​-the​-future​-of​-the​-field​-of​-international​-justice/​. 163 AMICC, supra note 77. For 2019, the Court requested a total budget of 147,550,000 Euros, and the CBF recommended a budget of 144,870,000 Euros. CICC, ‘Backgrounder’, supra note 28, at 21. 164 CICC, ‘Background Paper, Assembly of States Parties 15, The Hague, 16–24 November 2016’, at 19, available online at http://​www​.coalitionfortheicc​.org/​sites/​default/​files/​cicc​_documents/​ cicc​_background​_paper​_asp​_15​.pdf (hereafter, ‘CICC November 2016 ASP Background Paper’).

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The Assembly of States Parties   251 Rome Statute Article 87(7) provides: ‘Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties, or, where the Security Council referred the matter to the Court, to the Security Council.’165 Rome Statute Article 112(2)(f) then gives the ASP power to consider ‘any question relating to non-cooperation’.166 All States Parties to the Rome Statute owe an obligation to ‘cooperate fully with the Court in its investigation and prosecution of crimes within its jurisdiction’.167 Pursuant to Article 89, States Parties also are obliged to execute the Court’s pending orders for arrests and surrenders.168 Additionally, both the governments of Sudan and Libya are required by UN Security Council referral resolutions of the situations in Darfur and Libya, respectively, to cooperate with the Court.169 Because the ICC has no mechanism to compel cooperation, ‘[t]he [efficacy] of the ICC’s cooperation regime therefore largely depends on the potential action taken by external actors’.170 It is of serious concern that, as of this writing, there are 14 outstanding arrest warrants. Four of them pertain to the situation of Sudan, most notably the two warrants against Bashir, one for genocide, and one for war crimes and crimes against humanity, in Darfur.171 Moreover, most of the Sudanese warrants have been outstanding now for many years.172 The Court has issued many findings of non-cooperation for failure to enforce the outstanding arrest warrants against Bashir, including to States Parties to which he has traveled. These include findings of non-cooperation, all referred to the ASP and Security Council, against Malawi, Chad (twice), the DRC, Sudan, Djibouti, and Uganda.173

Art. 87(7) ICCSt. Art. 112(2)(f) ICCSt. 167 Art. 86 ICCSt. 168 Report of the Bureau on Non-cooperation, ICC-ASP/15/31, 8 November 2016, available online at https://​asp​.icc​-cpi​.int/​iccdocs/​asp​_docs/​ASP15/​ICC​-ASP​-15​-31​-ENG​.pdf, at para. 11, citing Art. 89 ICCSt. 169 See SC Res. 1593 (2005) (the government of Sudan and all other parties to the conflict shall cooperate fully); SC Res. 1970 (2011) (the Libyan authorities shall cooperate fully). 170 G. MacNeil and A. Akenroye, ‘International and Transnational Criminal Law, Guest Blog: The ASP Meeting—Challenges and Opportunities for the International Criminal Court’ (17 November 2016), available online at http://​rjcurrie​.typepad​.com/​international​-and​-transna/​2016/​11/​guest​-blog​-the​ -asp​-meeting​-challenges​-and​-opportunities​-for​-the​-international​-criminal​-court​.html. 171 See note 131 supra (Bashir warrants). Domestic charges were pursued in Sudan against former President Bashir, but on charges of corruption, not the crimes with which the ICC has charged him. Jason Burke and Zeinab Mohammed Salih, ‘Deposed Sudan President to Face Corruption Charges in Court’, The Guardian (18 August 2019), available online at https://​www​.theguardian​.com/​world/​2019/​aug/​18/​ omar​-al​-bashir​-corruption​-charges​-sudan​-court (last visited 18 August 2019). 172 See Statement of ICC Prosecutor, Fatou Bensouda, Before the United Nations Security Council on the Situation in Darfur, Pursuant to UNSCR 1593 (2005), 13 December 2016, available online at https://​ www​.icc​-cpi​.int//​Pages/​item​.aspx​?name​=​161213​-otp​-stat​-unsc​-darfur (last visited 26 December 2016) (‘nearly a decade has passed since the first warrant of arrest was issued by the Court in the situation of Darfur. … [I]t is with immense regret that I acknowledge once again that all five [now four] suspects against whom warrants of arrest have been issued by the International Criminal Court in this situation remain at large.’) (emphasis in original). See note 151 supra (Ali Kushayb surrendered). 173 CICC November 2016 ASP Background Paper, supra note 164, at 35. 165 166

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252  The Elgar companion to the International Criminal Court The Court also conducted a hearing as to why South Africa failed to arrest Bashir when he was in its territory and a South African court had declared that South Africa had a legal obligation to effectuate the arrest.174 The Court more recently held hearings and entered a finding of non-compliance against Jordan when it also failed to arrest Bashir.175 On 6 May 2019, the ICC Appeals Chambers confirmed Jordan’s non-cooperation—in an important ruling that there is no head of state immunity under customary international law vis-à-vis an international court—although it reversed the Pre-Trial Chamber’s decision to refer the matter to the ASP and the Security Council.176 Additionally, the Court has issued a finding of non-compliance for Kenya’s failure to cooperate during the investigation of post-election violence in the country between 2007 and 2008, regarding the case against President Uhuru Kenyatta177—as to which the charges have since been withdrawn due to insufficient evidence.178 Kenya has also refused to surrender to the Court witnesses implicated in obstruction of justice and witness intimidation.179

C. du Plessis, ‘ICC: At Hearings, South Africa Seeks Clarity on Rome Statute’, Daily Maverick (11 April 2017), available online at https://​www​.dailymaverick​.co​.za/​article/​2017​-04​-11​-icc​-at​-hearings​ -south​-africa​-seeks​-clarity​-on​-rome​-statute/​#​.WPj​-xPnyvct (last visited 20 April 2017). 175 Prosecutor v. Omar Hassan Ahmed Al Bashir, ‘Decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender or [sic] Omar Al-Bashir’, 11 December 2017, ICC-02/05-01/09-309. 176 ICC, ‘Al-Bashir Case: ICC Appeals Chamber Confirms Jordan’s Non-cooperation but Reverses the Decision Referring It to the ASP and UNSC’ (6 May 2019), available online at https://​www​.icc​-cpi​ .int/​Pages/​item​.aspx​?name​=​pr1452 (last visited 6 August 2019). 177 Trial Chamber V(b) made a finding of non-compliance in the case Prosecutor v. Uhuru Muigai Kenyatta, against the Republic of Kenya and referred the matter to the ASP on 19 September 2016. CICC November 2016 ASP Background Paper, supra note 164, at 35. The Court has also made findings of non-compliance against Libya regarding the Saif Gaddafi case, and in the case of Prosecutor v. Abdallah Banda Abakaer Nourain, which was referred to the Security Council. Ibid. 178 Mark Kersten attributes the collapse of the Kenya cases to ‘both the ICC’s poor planning and the government of Kenya’s intrusion into the cases’. M. Kersten, ‘Protecting the Story-Line: Why Kenya Refuses to Surrender Witness Intimidation Suspects to the ICC’, Justice in Conflict (28 April 2016), available online at https://​justiceinconflict​.org/​2016/​04/​28/​protecting​-the​-story​-line​-why​-kenya​-refuses​ -to​-surrender​-witness​-intimidation​-suspects​-to​-the​-icc (last visited 3 February 2017). 179 ‘Since 2013, the ICC has issued arrest warrants for Walter Barasa, Paul Gicheru, and Philip Kipkoech Bett, on the grounds that they perpetrated “offences against the administration of justice” by “corruptly influencing ICC witnesses”’. CICC November 2016 ASP Background Paper, supra note 164, at 35. 174

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The Assembly of States Parties   253 Despite these findings of non-cooperation and non-compliance, and some steps the ASP has taken,180 the procedures adopted to date have not resolved these issues.181 Particularly in the situation of a UN Security Council referral, it is primarily the Security Council that should exercise follow-up responsibilities to ensure the success of its referral.182 This, quite simply, has been noticeably absent. Here, perhaps the ASP (and Security Council) could learn a lesson from the experience of the International Criminal Tribunal for the former Yugoslavia (‘ICTY’).183 In the initial years after the formation of the ICTY, none of the countries in the former Yugoslavia had any interest in turning over indictees to the ICTY, particularly indictees from the majority ethnicity in their respective countries. That gradually changed with the policy of ‘conditionality’, whereby the US conditioned financial assistance to countries in the region, and the European Union conditioned progress towards EU accession, on cooperation with the ICTY, particularly as to arrests and surrenders.184 Many of the surrenders to the ICTY, particularly those of high-level accused, likely would never have occurred without this ‘carrot and stick’ approach.185

180 There is both a ‘formal response procedure’ and an ‘informal one’. The formal one can involve an emergency Bureau meeting, an open letter from the President of the ASP to the state concerned, a meeting of the Bureau where the state is invited to present its views, possibly a public meeting of the NY Working Group with the state, appointment of a facilitator, and discussion of a draft resolution containing recommendations. There is also an informal process, where the President of the ASP reaches out to officials of the requested state. CICC, November 2016 ASP Background Paper, supra note 164, Annex 2, citing Assembly procedures relating to non-cooperation—Annex to Resolution ICC-ASP-10-Res.5-ENG. There is also a ‘Toolkit for the Implementation of the Informal Dimension of the Assembly Procedures Relating to Non-cooperation’. Report of the Bureau on Non-cooperation, ICC-ASP/15/31/Add.1, 8 November 2016, Addendum, Annex II, available online at https://​asp​.icc​ -cpi​.int/​iccdocs/​asp​_docs/​ASP15/​ICC​-ASP​-15​-31​-Add1​-ENG​.pdf (hereafter, ‘ASP Non-cooperation Report’). Short of conducting arrests, states are asked to commit to avoiding ‘non-essential contact with persons who are subject to ICC arrest warrants’. CICC, ‘Backgrounder’, supra note 28, at 10. 181 The Registry has also issued reports regarding Bashir’s travel and has written to non-States Parties inviting them to cooperate and arrest Bashir. ASP Non-cooperation Report, supra note 180, paras 19–20. The cooperation ‘focal points’ also worked to share information regarding Bashir’s travel. Ibid. para. 25. NGOs, working through the CICC, had already been doing that for years as well. Bashir currently is serving time in Sudan, having been tried there on charges of corruption. France 24, ‘Sudan Court Sentences Former President Al-Bashir to Two Years of House Arrest for Corruption’, 14 December 2019, available online at https://​www​.france24​.com/​en/​20191214​-sudan​-court​-sentences​-al​-bashir​ -two​-years​-house​-arrest​-corruption​-sudan​-international​-criminal​-court​-demonstrations (last visited 7 September 2020). 182 ‘The Prosecutor stated that it is the responsibility of the Council to take the necessary action to ensure that the Government of Sudan complies with its obligations to arrest and surrender the five [now four] individuals against whom warrants of arrest have been issued without further delay.’ ASP Non-cooperation Report, supra note 180. ‘[T]he Prosecutor stated that the Security Council’s inaction invariably undermines the credibility of the Council and that of the referral mechanism, and in addition had a great adverse impact on victims’. Ibid. para. 31. 183 The full name of the tribunal is the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. 184 J. Kim, ‘Balkan Cooperation on War Crimes Issues’, Cong. Research Serv., RS 2209 (2008); S. Woehrel, ‘Conditions on U.S. Aid to Serbia’, Cong. Research Serv., RS 21686 (2008). 185 Former ICTY Prosecutor and now Prosecutor of the U.N. International Residual Mechanism for Criminal Tribunals Serge Brammertz has used the phrase ‘carrot and stick’ to describe the conditionality policy.

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254  The Elgar companion to the International Criminal Court Ultimately, of the 161 indicted, the ICTY achieved a 100 percent success rate on arrests, with no fugitives from its main cases at large.186 Should the ICC and States Parties adopt a version of this approach? Many States Parties have bilateral relations with non-cooperating countries which would give them considerable leverage with those countries.187 Here, if either the Security Council or the ASP chose to seriously engage with the problem of non-cooperation, similar incentives to cooperate and/or serious penalties for non-cooperation would most likely be needed,188 or perhaps the UN Security Council—if there were the will— needs to grant arrest powers to peacekeepers to effectuate ICC arrests.189 Without such concrete consequences or arrest powers, the ICC risks continuing to have numerous outstanding warrants, and, in the long term, becoming an institution that is able to prosecute only non-state actors, or regime actors only if they are out of power (and out of political favor). Over time, if the Court is unable to prosecute state actors, or only rarely able to do so, that risks eroding confidence in the Court and the system of international justice, as it will not be able to apply the rule of law on any kind of an equal footing.190 3.D

Withdrawal from the Rome Statute

Another challenge posed to the ASP (and ICC) is that, in the fall of 2016, for the first time, three States Parties deposited notices of withdrawal from the Rome Statute—South Africa, Gambia, and Burundi.191 Gambia and South Africa have since withdrawn their withdraw-

ICTY ‘ICTY Infographic: ICTY Facts and Figures’ (2015), available online at http://​www​.icty​ .org/​en/​content/​infographic​-icty​-facts​-figures. Two individuals, however, remain wanted on contempt charges. See Prosecutor v. Petar Jojić and Vjerica Radeta, Case No. MICT-17-111-R90. 187 25 May 2017 Interview with John Washburn (on file with author). 188 The Security Council could also in its referral resolutions (or in a separate resolution) obligate non-States Parties to cooperate with the ICC regarding referred situations, something the current two referral resolutions do not do. SC Res. 1593, supra note 152; SC Res. 1970, supra note 152 (both resolutions urge all states to cooperate, but do not require it). 189 AMICC, supra note 77. See Institute for Security Studies, ‘Cooperation with the ICC: What the Security Council and ASP must do’, December 2018, for a series of recommendations for follow up by both the Security Council and ASP on instances of non-cooperation. Security Council follow-up seems unlikely, however, in the current political climate. See supra note 112 (statements by John Bolton and US Executive Order). 190 Not of equal import, but also significant, the ICC also depends on States Parties to enter into voluntary agreements in relation to relocation of witnesses, enforcement of sentences and relocation of acquitted persons, interim release of detained persons, and to cooperate with respect to financial investigations related to seizure and freezing of assets for purposes of possible reparations. Report of the Bureau on Cooperation, ICC-ASP/15/18, 10 November 2016, at paras 7, 12–14. States also need to ratify the Agreement on Privileges and Immunities which allows the Court and its staff to fulfil their mandates in any territory subject to the jurisdiction of States Parties. Amnesty International, ‘Key Recommendations’, supra note 111. 191 South Africa deposited its notice of withdrawal on 19 October 2016; Burundi did so on 27 October 2016; and Gambia did so on 10 November 2016. MacNeil and Akenroye, supra note 170. 186

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The Assembly of States Parties   255 als.192 Burundi’s withdrawal took effect one year later.193 The good news is that, so far, there have been no additional African withdrawals from the Rome Statute, despite some calls for mass African withdrawals.194 Moreover, in a strong show of support for the Court following announcement of the withdrawals, at the ASP in 2016, almost every country declared its solidarity with, and commitment to, the Court.195 Since then, the Philippines is the only additional State Party to deposit a notice of withdrawal, which it did in March 2018,196 effective 17 March 2019.197 Currently, 123 countries are States Parties to the Rome Statute.198 The withdrawals appear to have been motivated by different reasons. South Africa’s official withdrawal notice contained a number of reasons, including ‘that there is a perception that the ICC is focused on Africa’, and that South Africa’s Rome Statute obligations may conflict with its African Union (‘AU’) obligations and there is no satisfactory mechanism to resolve these potential conflicts.199 The withdrawal also came after criticism of South Africa’s executive for ignoring an order by a South African court to arrest Bashir when he visited South Africa.200 As to Burundi, the Gambia, and the Philippines, the withdrawals appear to have been motivated

192 N. Onishi, ‘South Africa Reverses Withdrawal from International Criminal Court’, NY Times (8 March 2017), available online at https://​www​.nytimes​.com/​2017/​03/​08/​world/​africa/​south​-africa​ -icc​-withdrawal​.html​?​_r​=​0 (last visited 14 March 2017) (Gambia and South Africa reversed their withdrawals). 193 Art. 127 Rome Statute states: ‘A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification … . Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective … ’. Art. 127 ICCSt. 194 The AU has called for mass withdrawals from the Rome Statute by African States Parties, but that has not occurred, and a number of AU Member States entered reservations to the collective withdrawal strategy. Assembly of the Union, Twenty-Eighth Ordinary Session, 30–31 January 2017, Addis Ababa, Ethiopia, Decision on the International Criminal Court, 1 Doc. EX​.CL/​1006(XXX); E. Keppler, ‘AU’s “ICC Withdrawal Strategy” Less than Meets the Eye: Opposition to Withdrawal by States’ (1 February 2017), available online at https://​www​.hrw​.org/​news/​2017/​02/​01/​aus​-icc​-withdrawal​-strategy​ -less​-meets​-eye (last visited 26 May 2017). 195 AMICC, supra note 77. 196 ICC Press Release, ‘ICC Statement on The Philippines’ notice of withdrawal: State participation in Rome Statute system essential to international rule of law’, 20 March 2018, available online at https://​ www​.icc​-cpi​.int/​Pages/​item​.aspx​?name​=​pr1371 (visited 20 December 2018). 197 Withdrawal takes one year to come into effect. Art. 127 ICCSt; ICC, ‘President of the Assembly of States Parties Regrets Withdrawal from the Rome Statute by the Philippines’ (18 March 2019), available online https://​www​.icc​-cpi​.int/​Pages/​item​.aspx​?name​=​pr1443. 198 ICC, ‘The States Parties to the Rome Statute’, available online at https://​ asp​ .icc​ -cpi​ .int/​ en​ _menus/​asp/​states​%20parties/​pages/​the​%20states​%20parties​%20to​%20the​%20rome​%20statute​.aspx (last visited 6 August 2019). 199 MacNeil and Akenroye, supra note 170. Under Art. 97, if a State Party receives a request that would conflict with its other treaty obligations, the state shall consult the Court. See Art. 97 ICCSt. 200 S. Chan and M. Simons, ‘South Africa to Withdraw from International Criminal Court’, NY Times (21 October 2016), available online at https://​www​.nytimes​.com/​2016/​10/​22/​world/​africa/​south​-africa​ -international​-criminal​-court​.html (last visited 4 February 2017).

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256  The Elgar companion to the International Criminal Court by the possibility that the ICC could investigate and prosecute crimes occurring in those countries.201 Gambia withdrew its withdrawal after the election of its new President.202 As to South Africa’s statement that there is a perception that the ICC is focused on Africa, the relationship between the ICC and African States Parties is a significant topic that warrants extensive analysis.203 Nonetheless, this chapter will make a few observations. While there is indeed a predominance of situations involving African states pending before the ICC, countries from other regions are also under preliminary examination and investigation.204 Furthermore, cries that the ICC is ‘anti-African’ or ‘racist’ ring hollow as many of the African cases were initiated by request of the African states themselves,205 and, as ICC Prosecutor Bensouda continually reminds us, in the African cases, the victims are African as well206—so the ICC is

There is an investigation as to crimes in Burundi. See ICC, ‘Situations Under Investigation’, supra note 144. For background on crimes that had been occurring in the Gambia, see Human Rights Watch, ‘State of Fear: Arbitrary Arrests, Torture, and Killings’ (16 September 2015), available online at https://​www​.hrw​.org/​report/​2015/​09/​16/​state​-fear/​arbitrary​-arrests​-torture​-and​-killings (last visited 12 February 2017). The Philippines’ withdrawal came on the heels of the Prosecutor expressing concern over extrajudicial killings in the Philippines. See ‘ICC Prosecutor Warns Philippine Authorities over Drug War Killings’, Deutsche Welle (13 October 2016), available online at http://​www​.dwlast .com/en/ icc-prosecutor-warns-philippine-authorities-over-drug-war-killings/a-36036960 (visited 26 December 2016). The President of the Philippines has also admitted his involvement in extrajudicial killings. See, e.g., B. Westcott and K. Quiano, ‘Philippines President Duterte Admits Killing Suspects’, CNN (14 December 2016), available online at http://​www​.cnn​.com/​2016/​12/​14/​asia/​duterte​-philippines​-davao​ -killings/​index​.html (visited 14 March 2017). The Office of the Prosecutor has since opened a preliminary examination into the situation in the Philippines related to its ‘war on drugs’ campaign. See ICC, ‘Preliminary Examinations’, supra note 145. 202 Gambia’s current President, Adama Barrow, has said there is no need for Gambia to leave the Court. L. Mogeni, ‘Gambia May Not Join Other African States in ICC Withdrawal’, The Wire (9 December 2016), available online at https://​thewire​.in/​85747/​gambia​-icc​-africa (last visited 12 February 2017). At the start of ASP 15, Russia announced it was ‘un-signing’ the Rome Statute. That was not a ‘withdrawal’, as Russia was never a State Party, and has little legal significance. See ‘Russia Withdraws Signature from International Criminal Court Statute’, The Guardian (16 November 2016), available online at https://​www​.theguardian​.com/​world/​2016/​nov/​16/​russia​-withdraws​-signature​-from​ -international​-criminal​-court​-statute (‘Russia’s decision to “withdraw” its signature from the Rome Statute will have little or no impact on the court. Contrary to the government’s statement, Russia has never engaged with the court in any meaningful way …’). This action is no doubt related to the OTP’s pending investigation into crimes in Georgia, and preliminary examination as to crimes in Ukraine. The US has deposited a similar note, as have Israel and Sudan. UNTC, Rome Statute of the International Criminal Court, Rome, 17 July 1998, Signatories, available online at https://​treaties​.un​.org/​Pages/​ ShowMTDSGDetails​.aspx​?src​=​UNTSONLINE​&​tabid​=​2​&​mtdsg​_no​=​XVIII​-10​&​chapter​=​18​&​lang​=​en (visited 22 December 2018). 203 See Chapter 13 in this book (Asad Kiyani, ‘Re-narrating selectivity’). 204 See text accompanying notes 144–45 supra (investigations and preliminary examinations). 205 See Ambassador David Scheffer, ‘How to Move Beyond South Africa’s Notice of Withdrawal from the ICC’, Just Security (24 October 2016), available online at https://​www​.justsecurity​.org/​33778/​ move​-south​-africas​-notice​-withdrawal​-icc (last visited 4 February 2017) (listing self-referrals including by Uganda, Democratic Republic of Congo, Côte d’Ivoire, Mali, Central African Republic (twice), and Gabon). 206 See, e.g., F. Chothia, ‘Africa’s Fatou Bensouda is New ICC Chief Prosecutor’, BBC Africa (12 December 2011), available online at http://​www​.bbc​.com/​news/​world​-africa​-16029121 (last visited 28 February 2017) (‘We say that the ICC is targeting Africans, but all of the victims in our cases in Africa are African victims.’). 201

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The Assembly of States Parties   257 hardly anti-African when it champions the cause of African victims. Pragmatically, of course, the ICC also has serious jurisdictional constraints that do not permit it to prosecute various mass atrocity crimes occurring in other locations (such as most of those occurring in Syria).207 An interesting suggestion has also been made by former US War Crimes Ambassador David J. Scheffer that African States Parties also could be more active in referring non-African situations to the Court—either referring situations in States Parties where Rome Statute crimes appear to be occurring, or lobbying the Security Council to refer situations in non-States Parties.208 Indeed, a group referral of crimes occurring in a non-African State Party happened when six States Parties—none of them African though—referred the situation in Venezuela to the ICC.209 The tension between the AU and ICC erupted subsequent to the ICC’s issuing warrants against the President of Sudan and the individuals who became Kenya’s President and Deputy President.210 As noted above, one AU demand has been to amend Article 27 of the Rome Statute, to render heads of state immune from ICC prosecution during their terms in office,211 but many other States Parties strenuously oppose such an amendment as undermining the integrity of the Rome Statute.212 In an attempt to address concerns of African States Parties, States Parties and ASP leadership have stressed the importance of dialog with African States Parties to listen to their concerns, and accommodate them—short of amending Rule 27, which is seen as something of a ‘red line’ to other States Parties and members of civil society. Of course, many African States Parties213 and members of African civil society214 are also strongly supportive of the ICC, and 207 Syria has not ratified the Rome Statute, and Russia and China vetoed referral of the Syria situation to the ICC. See Ian Black, ‘Russia and China Veto UN Move to Refer Syria to International Criminal Court’, The Guardian (22 May 2014), available online at https://​www​.theguardian​.com/​world/​2014/​ may/​22/​russia​-china​-veto​-un​-draft​-resolution​-refer​-syria​-international​-criminal​-court (last visited 26 December 2016). Thus, the ICC would only have jurisdiction over crimes in Syria committed by nationals of a State Party. Similarly, there is no ICC jurisdiction over crimes occurring solely within Myanmar, also not a State Party to the Rome Statute. 208 See Ambassador David Scheffer, supra note 205 (suggesting African States Parties could refer situations, or lobby the Security Council to refer situations in Yemen, Syria or Iraq). 209 See ‘Statement of the Prosecutor of the International Criminal Court, Mrs Fatou Bensouda, on the referral by a group of six States Parties regarding the situation in Venezuela’, 27 September 2018, available online at https://​www​.icc​-cpi​.int/​Pages/​item​.aspx​?name​=​180927​-otp​-stat​-venezuela (visited 20 December 2018). 210 N. Bohler-Muller, ‘South Africa, the AU, and the Tensions Around the Role of the ICC in Africa’, Wilson Center (23 February 2016), available online at https://​africaupclose​.wilsoncenter​.org/​the​-icc​ -south​-africa​-and​-the​-au​-tensions​-around​-the​-role​-of​-the​-court​-in​-africa (last visited 20 April 2017). 211 See supra note 97 (Kenya presented its Art. 27 amendment proposal on behalf of the AU). 212 See AMICC, supra note 77 (‘the statements of a substantial majority of delegations made clear that the dialogue absolutely must not include any change in the Court’s mandate to try persons without regard to their immunity as senior officials’). 213 ‘A growing number of African governments have spoken out against the recent decisions of Burundi, The Gambia, and South Africa’. CICC, ‘The Low-Down’, supra note 14. 214 Kenyans for Peace with Truth and Justice (KPTJ) stated at the 15th ASP: ‘We commend the African countries that have publicly voiced their support for the Court and call upon the silent majority of member states to take a stand in support of justice for victims.’ KPTJ, Statement at the 15th Session of the Assembly of States Parties to the Rome Statute, ‘Appeasement Condones Impunity’, available online at https://​www​.scribd​.com/​document/​332151135/​KPTJ​-Statement​-at​-the​-ASP​-15​-pdf (last visited 13 February 2017).

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258  The Elgar companion to the International Criminal Court various African states have historically been staunch supporters of the ICC, including South Africa.215 Thus, AU positions are not necessarily synonymous with the positions of all African states, African NGOs, or African victims.216 Yet, there is legitimacy to the counter-narrative sometimes raised by African States Parties as well as others that there are three Permanent Members of the UN Security Council that are not Rome Statute State Parties, yet have power over both referral and deferral decisions.217 Thus, not only are these non-State Parties in a position to ensure that the ICC does not prosecute the crimes committed on their territories,218 they have sway over which crimes in other states may be investigated or prosecuted. While those three states (as well as several other significant states) remain largely outside219 the Rome Statute system, concerns over selectivity and the uneven application of the rule of law will no doubt remain. Whether the ASP and ICC can sufficiently respond to the concerns of African States Parties to keep them within the Rome Statute system remains to be seen, but there is some ground for optimism that the AU’s calls for mass withdrawals have not materialized.220 On the other hand, the deposit by the Philippines of its notice of withdrawal from the Rome Statute,221 following on the heels of the Prosecutor’s statement of concern about extrajudicial killings occurring in the Philippines and later opening a preliminary examination, does raise a troubling question of whether each time the OTP investigates, or suggests it could investigate, crimes that implicate a state actor, whether the State Party will simply withdraw, or threaten withdrawal, from the Rome Statute.222

Former US War Crimes Ambassador David Scheffer recounted South Africa’s role: ‘There is a long history underpinning the African relationship with the ICC. I recall vividly how forthrightly the South African Government argued for justice and against impunity in the years of negotiations leading to and beyond the Rome Statute of 1998. I personally witnessed it frequently, including when I sought African support for certain U.S. positions that would have narrowed the means by which to bring situations within the court’s jurisdiction. South Africa pushed back hard on our proposals. Frankly, there was no stronger voice than that of South Africa, which led the continent of Africa into the ICC with skillful enthusiasm as the country emerged from apartheid and gave us globally recognized leaders, such as Nelson Mandela, as champions for the protection of fundamental human rights and the enforcement of international criminal justice’. Ambassador David Scheffer, supra note 205. Scheffer urged that ‘both African and non-African States Parties of the ICC should explore ways to improve the pursuit of justice rather than backslide into dens of impunity’. Ibid. 216 See supra note 206 (Prosecutor Bensouda’s statement about African victims). 217 Arts 13(b), 15ter, ICCSt. 218 The ICC does have jurisdiction to prosecute Rome Statute crimes committed on the territories of States Parties by nationals of non-States Parties, such as US nationals in Afghanistan, or Russian nationals in Georgia or Ukraine, which has executed an Article 12.3 declaration. See Art. 12.2(a), ICCSt. (jurisdiction over crimes committed in the territory of States Parties); Art. 12(3), ICCSt. Whether the ICC could successfully pursue cases against US or Russian nationals, given that non-States Parties owe no cooperation obligations to the ICC, as well as the political pressures that the US is exerting and Russia could exert, is unclear. 219 Because crimes committed within the territory of a State Party are covered by ICC jurisdiction (at least vis-à-vis the crimes of genocide, crimes against humanity, and war crimes), the actions of nationals of non-States Parties can be within ICC jurisdiction. See ibid. 220 Of course, this comes only after the collapse of the ICC’s Kenya cases. See supra note 132. 221 See supra note 196. 222 The impact of withdrawal is somewhat mitigated in that it takes one year to become effective and the ICC’s jurisdiction continues during that year. Also, a state’s cooperation obligations continue for any pending investigations or proceedings despite withdrawal. See supra note 193 (quoting Rome Statute 215

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The Assembly of States Parties   259 The OTP’s request for authorization to move the Afghanistan preliminary examination (involving conduct, inter alia, by US nationals) to the investigation phase,223 generated similar ‘push-back’ against the Court, and this has continued with the opening of the investigation.224 On 12 April 2019, ICC Pre-Trial Chamber II unanimously rejected the Prosecutor’s request to proceed with an investigation into alleged crimes against humanity and war crimes committed in Afghanistan.225 The Pre-Trial Chamber reasoned, inter alia, that the Prosecutor’s work has been ‘hampered by a number of severe constraints and challenges, resulting mainly from the lack of cooperation by various authorities’ such that the ‘prospects for a successful investigation and prosecution [are] extremely limited’, and therefore pursuing the investigation would not ‘serve the interests of justice’.226 The decision then prompted the first four presidents of the ICC Assembly of States Parties to release a joint op-ed in the Atlantic Council, calling for ‘an independent assessment of the court’s functioning by a small group of international experts’ in order to strengthen the Court’s ability to carry out its work,227 and this resulted in the creation of the Independent Expert Review.228 The PTC’s decision on the Afghanistan situation was profoundly concerning, as it appeared to essentially reward non-cooperation by states, which would have set a hugely problematic precedent for the future of the ICC. The ICC’s Appeals Chamber on 5 March 2020 reversed the PTC’s ruling, authorizing the opening of the investigation.229 While the PTC’s ruling certainly warranted reversal,230

Art. 127). On the other hand, once a state withdraws, in reality, it seems unlikely there will be actual cooperation. 223 Public redacted version of ‘Request for authorisation of an investigation pursuant to article 15’, 20 November 2017, ICC-02/17-7-Conf-Exp. 224 See supra note 112 (statements of John Bolton; US Executive Order). The situation of Palestine (which concerns both Palestinian and Israeli conduct)—and is also encompassed by Bolton’s threats and the Executive Order—is similarly at the preliminary examination phase. See ICC, ‘Preliminary Examinations’, supra note 145. 225 ICC, Pre-Trial Chamber II, ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan’, ICC-02/17 (12 April 2019), available online at https://​www​.icc​-cpi​.int/​CourtRecords/​CR2019​_02068​.PDF (last visited 18 August 2019). A more extensive discussion of the ruling and events leading up to it beyond the scope of the present chapter. 226 Ibid. paras 44, 96, 87. While the decision came subsequent to the US revoking the ICC’s Prosecutor’s visa, the decision was likely written well in advance and not directly influenced by the visa revocation. See ‘U.S. Revokes ICC Prosecutor’s Entry Visa over Afghanistan Investigation’, Reuters (4 April 2019), available online at https://​www​.reuters​.com/​article/​us​-usa​-icc​-prosecutor/​u​-s​-revokes​-icc​ -prosecutors​-entry​-visa​-over​-afghanistan​-investigation​-idUSKCN1RG2NP. 227 P. Z. R. Al Hussein, B. S. Ugarte, C. Wenaweser, and T. Intelman, ‘The International Criminal Court Needs Fixing’, New Atlanticist (24 April 2019), available online at https://​www​.atlanticcouncil​ .org/​blogs/​new​-atlanticist/​the​-international​-criminal​-court​-needs​-fixing (expressing concern over a ‘growing gap between the unique vision captured in the Rome Statute, the Court’s founding document, and some of the daily work of the Court’). 228 Supra note 115. 229 ‘Judgment on the Appeal against the Decision on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan’, ICC-02/17-138, 5 March 2020, available online at https://​www​.icc​-cpi​.int/​Pages/​record​.aspx​?docNo​=​ICC​-02/​17​-138 (last visited 7 September 2020). 230 See, e.g., ‘Observations by Professor Jennifer Trahan as amicus curiae on the appeal of Pre-Trial Chamber II's “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan”’, 15 November 2019, available online at https://​www​.icc​-cpi​.int/​CourtRecords/​CR2019​_06965​.PDF (last visited 7 September 2020). 

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260  The Elgar companion to the International Criminal Court the opening of the investigation has ushered in further attacks by the US against the ICC, including the issuances of a US Executive Order allowing for sanctions—travel bans and/or asset freezes—against ICC staff, their families, as well as others.231 In the view of this author (and many others),232 such sanctions—which the US typically reserves for drug traffickers and terrorists—are completely inappropriate against the personnel of a judicial institution. Hopefully, the extremely overbroad Executive Order, which erroneously portrays the ICC as a threat to US national security, will be reversed under a new US administration. Yet, challenges for the ICC to prosecute US nationals, even under a new US administration, would no doubt remain to some extent.233 In the long run, the ICC will lose institutional credibility if it cannot successfully prosecute cases involving state actors, with challenges magnified by attempting to prosecute state actors who are nationals of non-States Parties. The ASP thus faces a hugely significant challenge at present—to ensure that it provides sufficient political (as well as financial) support to the Court, so that the ICC is able to focus on its core task of conducting prosecutions.

4. CONCLUSION The ASP has a significant role to play vis-à-vis the ICC, and must ensure that its work is constructive, supportive, and does not interfere with the Court’s independence. Key challenges for the ASP ahead include: providing adequate funding to the Court; addressing the serious challenges of State Party non-cooperation (particularly regarding outstanding arrest warrants); addressing attacks against the Court and non-cooperation more broadly; ensuring that only the most qualified judges are elected to serve so that the Court renders only well-reasoned judicial decisions; and engaging productively with States Parties to attempt to ensure there are no more withdrawals, and, ideally, to move towards universal ratification of the Rome Statute. Unfortunately, concerns sometimes raised as to selectivity of situations pursued by the Court do ring true, as the Court appears to have difficulties prosecuting state actors and because some states, unfortunately, chose to remain outside the Rome Statute system. The ASP, and ICC as a whole, face serious challenges to address both conundrums.

Supra note 112. For a compilation of views of those opposed to the Executive Order, see Beth Van Schaack, ‘The Int’l Criminal Court Executive Order: Global Reactions Compiled’, Just Security, 1 September 2020, available online at https://​www​.justsecurity​.org/​72256/​the​-intl​-criminal​-court​-executive​-order​-global​ -reactions​-compiled/​(last visited 7 September 2020). 233 The investigation regarding crimes in Afghanistan also includes allegations of crimes by Afghan Armed Forces, and the Taliban and affiliated armed groups. 231 232

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11. Africa, the Court, and the Council Rebecca J. Hamilton1

At his 2003 swearing-in ceremony, the International Criminal Court’s first prosecutor, Luis Moreno-Ocampo, highlighted the Court’s paradoxical nature. The ICC, he said, had to maintain its independence while working ‘hand in hand’ with other international institutions and governmental bodies.2 Looking at the relationship between the Court, the UN Security Council, and the African Union (AU), this chapter illuminates just how challenging that paradox has been to manage. The ICC is a court with an ambitious mandate that has yet to be matched by the capacity required to fulfil it. As a result, the execution of the Court’s mandate depends largely on the cooperation of others. States, often through powers they have delegated to regional and international institutions, must carry out key actions if the Court is to succeed.3 But this engagement, while essential to the Court’s functioning, is not without its challenges.4 Key among them is the risk that such interactions expose the Court to charges of politicization. One of the defining narratives of the Court’s first 15 years of operation has been that it has an anti-Africa bias. This view, initially promulgated by individuals whom the Court sought to prosecute, moved into the mainstream and is now advanced through Africa’s regional body, the African Union. On the most strident telling of this narrative, the Court acts with animus against Africans, while purposefully shielding the most powerful States in the international system. (The ‘anti-Africa court’ narrative.) The counter-narrative to this, advanced by Court officials and their most ardent supporters, emphasizes that African countries were the earliest advocates of the Court; far from having an anti-Africa bias, the ICC is a court by and for Africa. This narrative is often linked to the idea that any claim of bias is presumptively untrue because decisions at the Court are made solely based on law. As the current ICC Prosecutor, Fatou Bensouda, has put it: ‘[T]he Prosecutor does not take into account any political considerations. These, we continue to say, belong to other institutions…. [The Office of the Prosecutor] has to scrupulously respect legal limits.’5 On this view, legal activity is a-political, therefore any charge of bias against a particular State or region is necessarily false. (The ‘a-political court’ narrative). 1 I served from 2007 to 2009 in the Office of the Prosecutor at the International Criminal Court. The views expressed here are my own. 2 L. Moreno-Ocampo, Chief Prosecutor, ‘Statement Made at the Ceremony for the Solemn Undertaking of the Chief Prosecutor of the International Criminal Court’ (16 June 2003). 3 See A. Whiting, ‘Investigations and Institutional Imperatives at the International Criminal Court’, in M. Minow, C. C. True-Frost, and A. Whiting (eds), The First Global Prosecutor: Promise and Constraints (Ann Arbor: University of Michigan Press, 2015) 128–152. 4 See ibid.; J. Meernik, ‘Justice, Power and Peace: Conflicting Interests and the Apprehension of ICC Suspects’, 13 International Criminal Law Review (2013) 169–190, at 173 (arguing that such cooperation ‘cannot be expected, but rather must be negotiated and earned on a case by case basis’). 5 F. Bensouda, Prosecutor Elect, Int’l Crim. Ct., Lessons from Africa, International Conference: 10 Years Review of the ICC: Justice for All?, Introductory Remarks (15 February 2012).

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262  The Elgar companion to the International Criminal Court There is, however, another perspective, which rejects the conflation of the terms ‘legal’ and ‘a-political’, stressing instead the observation of Sarah Nouwen and Wouter Werner that law itself can be, and often is, both political and non-political.6 With this understanding in place, it becomes possible to move beyond a blanket denial of the idea that the Court could ever act politically, and engage substantively with the arguments of those who accuse it of doing so.

1.

POLITICIZATION AND THE ICC

If States’ sovereignty interests on the one hand, and accountability for State-enabled crimes on the other, are tectonic plates jarring up against each other, the ICC sits right on the fault line. The ICC’s mandate gives it (a carefully delineated) authority to prosecute individuals, including government officials—a role that has traditionally been within the exclusive purview of the State. Obviously, there are instances where the ICC’s pursuit of accountability aligns with the sovereign interests of States—indeed the Court conducted much of its early work inside this space.7 Moreover, the decision to enable the UN Security Council to refer situations to the Court (and, conversely to require the Court to defer its investigation and prosecution of certain situations), meant some level of power politics was baked into the Court’s structure.8 But the essence of the Court’s normative attraction was constructed around the idea that as a legal body it would pursue justice for victims of atrocity without regard for the considerations of realpolitik.9 The Court’s actions would not be driven by a desire to curry favor with, or alternatively to disfavor, certain States or organizations, but solely to follow the strictures of the law. This idea has been the building block for the a-political court narrative, advanced by Court officials, to counter the anti-Africa narrative that developed in late 2006.10 The a-political court narrative sits uncomfortably alongside the reality that, by statutory design, the Court depends on States to execute its mandate. By promoting an idealized vision of an a-political court, supporters of this narrative have inadvertently enhanced the potency of critics’ charges of politicization. State objections to the ICC’s actual or perceived encroachments on sovereign interests have routinely been accompanied by accusations that the Court is acting in a political manner.

S. M. H. Nouwen and W. G. Werner, ‘Doing Justice to the Political: The International Criminal Court in Uganda and Sudan’, 21 European Journal of International Law (2011) 941–965, at 944. 7 Int’l Crim. Ct. Press Release, ‘President of Uganda Refers Situation Concerning the Lord’s Resistance Army (LRA) to the ICC’ (19 January 2004); Int’l Crim. Ct. Press Release, ‘Prosecutor Receives Referral of the Situation in the Democratic Republic of Congo’ (19 April 2004); Int’l Crim. Ct. Press Release, ‘Prosecutor Receives Referral Concerning Central African Republic’ (7 January 2005); see e.g., A. T. Müller and I. Stegmiller, ‘Self-Referrals on Trial: From Panacea to Patient’, 8 J Intl Crim J (2010) 1267–1294 (commenting on the Prosecutor’s reliance on self-referrals). 8 See Art.13(b) Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) [hereinafter Rome Statute]. 9 As the term ‘constructed’ is meant to imply, there is nothing necessary or inevitable about this. It was a choice on the part of the Court’s earliest supporters. See e.g., M. C. Bassiouni (ed.), The Legislative History of the International Criminal Court (Ardsley, NY: Transnational Publishers, 2005), at 121. (‘The ICC reminds governments that realpolitik … is no longer accepted.’) 10 See infra at 11–13. 6

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Africa, the Court, and the Council  263 The US was the first to raise the specter of a politicized ICC. The George W. Bush administration cited fears of politicization in announcing its decision that the US would not ratify the Rome Statute. Defense Secretary Donald Rumsfeld argued that the ICC would put US officials and service members at risk of ‘politicized prosecutions’.11 Even after withdrawing from the Court, the US sought to mitigate the perceived threat of politicized prosecutions by pursuing so-called Article 98 agreements to ensure no American would ever be taken to the ICC.12 These were bilateral agreements with other States, requiring them to refuse to surrender any American to ICC custody.13 Most States, however, do not have the kind of leverage the US has.14 As a result, they have to follow other approaches when they feel the Court is impinging on their sovereignty. The new transitional government in Libya, for example, brought its objections to the trial of former Libyan President Gadhafi’s son, Saif al-Islam, directly before the ICC judges, and sought the support of the Arab League to advance its argument that Saif should be tried on Libyan soil.15 Sudan and Kenya each initially brought their objections regarding the ICC’s prosecution of their government officials to the Court directly, but then sustained and strengthened their objections by working through the African Union.16 It was in the course of dialogue between officials from Sudan and the African Union that Sudan began to cast its grievances against the Court not simply as political action disfavoring Sudan’s interests, but instead as an accusation that the Court was taking political action against Africa as a whole. And it was this anti-Africa narrative that high-level Kenyan officials latched onto as soon as the Court pursued charges against them. Surveying the ICC’s first 15 years, it is these charges of politicization, advanced through the African Union, that have gained the most traction.17 11 C. A. Bradley, ‘U.S. Announces Intent Not to Ratify International Criminal Court Treaty’, ASIL Insights, 11 May 2002, available at https://​www​.asil​.org/​insights/​volume/​7/​issue/​7/​us​-announces​-intent​ -not​-ratify​-international​-criminal​-court​-treaty (quoting Donald Rumsfeld); see also M. Grossman, Under Secretary for Political Affairs, American Foreign Policy and the International Criminal Court, Remarks to the Center for Strategic and International Studies (6 May 2002). 12 Rome Statute, supra note 8, Art. 98(2) (prohibiting the Court from proceeding with a request for surrender of an individual if doing so ‘would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court’). 13 See J. R. Bolton, Surrender Is Not an Option: Defending America at the United Nations (New York: Threshold Editions, 2007), at 86. 14 American Servicemembers’ Protection Act, 22 U.S.C. §§ 7421–7433 (2002) (cutting economic and military aid to States that joined the ICC without signing Article 98 agreements with the US). 15 See ‘Arab League Backs Libya Trial for Gaddafi Son’, Al Jazeera, 1 May 2012, available at http://​ www​.aljazeera​.com/​news/​africa/​2012/​05/​20125173729495700​.html. 16 See infra; of course, the strategy of States seeking to advance their interests through regional organizations is not unique to the international criminal law context, or to the Middle East or Africa. See e.g., P. Riggirozzi and J. Grugel, ‘Regional Governance and Legitimacy in South America: The Meaning of UNASUR’, 91 International Affairs (2015) 781–797 (describing how States have used the Union of South American Nations as a forum through which to shield their governments from criticism); I. H. Cho and S.-H. Park, ‘Domestic Legitimacy Politics and Varieties of Regionalism in East Asia’, 40 Review of International Studies (2014) 583–606 (describing regional efforts in East Asia being used to advance the interests of individual governments). 17 See e.g., K. Sieff and K. Mahr, ‘South Africa Says It Will Quit the International Criminal Court’, Washington Post, 21 October 2016, available at https://​www​.washingtonpost​.com/​world/​africa/​ south​-africa​-says​-it​-will​-quit​-the​-international​-criminal​-court/​2016/​10/​21/​0eb8aa66​-978f​-11e6​-9cae​

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264  The Elgar companion to the International Criminal Court The claim of an anti-Africa bias is not a frivolous one. Despite the commission of atrocities around the world since the Court’s jurisdiction took effect in 2002, the ICC has only prosecuted crimes committed in Africa. To be fair, with respect to the worst atrocities outside Africa that have taken place since the Court has been in operation, the Court’s failure to prosecute is attributable to the UN Security Council. These cases involve States, such as Syria and Myanmar, which have not joined the Court. As a result, the only way the Court could get jurisdiction to prosecute would be if the UN Security Council referred those cases to the Court. And the Council has not done so. Yet a lack of jurisdiction does not account for the Court’s failure to prosecute cases in other situations outside Africa, including some the Court has been investigating for years, such as Iraq and Afghanistan.18

2.

AFRICA AND INTERNATIONAL CRIMINAL JUSTICE

It is impossible to navigate the emergence of the anti-Africa narrative without acknowledging the history of international criminal law in Africa. Only against this backdrop does it become clear why actions (and inaction) by the UN Security Council have had such an antagonizing impact on the AU’s relationship with the Court. The role of international law in Africa has always been complicated, with international law implicated in the project of colonialism.19 Certainly, for those who subscribe to the idea that the ICC is biased against Africa, the Court’s actions mark just the latest in a long series of moves by international institutions to oppress those from African States in the name of the law.20 Nonetheless, the relationship between the ICC and the AU got off to an auspicious start. Both organizations came into being in the summer of 2002 and many of the same individuals and groups involved in the AU’s creation simultaneously served as the earliest supporters of what would become the ICC. In 1998, representatives from 25 African States signed onto the Dakar Declaration, calling for ‘an effective and independent international criminal court’.21 Representatives from African States were intimately involved in drafting the ICC’s Statute at the Rome Conference that -2a3574e296a6​_story​.html​?utm​_term​=​.eaa81275d460 (describing South Africa’s decision to withdraw from the Court on account of its concern that the ICC ‘was now pursuing the “imperialist agendas” of foreign nations’). 18 Although Iraq has not joined the Court, the Court has jurisdiction over crimes allegedly committed by UK nationals in Iraq because the UK has joined the Court. The prosecution closed the preliminary examination of this case in 2006, but re-opened it upon receipt of new information in 2014. See ICC, ‘Preliminary Examination, Iraq/UK’, available at https://​ www​ .icc​ -cpi​ .int/​ iraq. After a preliminary examination of alleged war crimes and crimes against humanity in Afghanistan that continued for over a decade, the Appeals Chamber authorized the Prosecutor to formally open an investigation in March 2020. See ICC, ‘Situation in the Republic of Afghanistan’, available at https://​www​.icc​-cpi​.int/​ afghanistan. 19 See e.g., A. Anghie and B. S. Chimni, ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflicts’, 2 Chinese International Law Journal (2003) 77–103, at 84. 20 See e.g., J. T. Gathii, ‘Africa’, in B. Fassbender and A. Peters (eds), Oxford Handbook of the History of International Law (Oxford: Oxford University Press, 2013), at 420 (citing U. O. Umozurike ‘international law was used to facilitate or acquiesce in the imposition of both afflictions [slave trade and colonialism]’). 21 Dakar Declaration for the Establishment of the International Criminal (6 February 1998), available at http://​www​.iccnow​.org/​documents/​DakarDeclarationFeb98Eng​.pdf.

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Africa, the Court, and the Council  265 year.22 Once the Rome Statute was finalized, Senegal was the first country to ratify it, the AU called for all its members to join, and African States made up approximately one-third of the signatories required for the Statute to enter into force.23 All this early activity is used as evidence by those, including current ICC Prosecutor Fatou Bensouda, who see the ICC as a court by and for Africa.24 Initially, AU Member States saw the ICC as compatible with their organization. The newly formed AU sought to advance pan-African interests,25 and by its members giving the AU the right to intervene to uphold human rights in Member States, the AU signaled a break with the non-interventionist stance of its predecessor, the Organization of African Unity.26 In January 2004, Uganda referred the conflict in its northern region to the ICC.27 Four months later, the Democratic Republic of the Congo referred crimes on its territory to the Court.28 And by the end of the year, the Central African Republic had followed suit.29 The net result was that the Court’s first prosecutions all flowed from requests of AU Member States, further supporting the narrative of the ICC as a court by and for Africa. Nonetheless, the longstanding skepticism within Africa about the use of international law by the Global North was never entirely dislodged. And the Court’s ready acceptance of referrals from Africa could be read as a young institution pursuing the realpolitik path of least resistance, as readily as it could be viewed as the actions of a court by and for Africa. By accepting all of its initial situations through so-called self-referrals, the Court could prosecute without risking offense to the sovereignty of any State. At a time when the US was set on destroying the Court, the African self-referrals gave the Court a chance to demonstrate that it could be fully operational without threatening US interests in any way.30 To the extent this is an accurate reflection of what the Court was really doing in the period from 2003–2004, it

See H. Jallow and F. Bensouda, ‘International Law in an African Context’, in M. du Plessis (ed.), African Guide to International Criminal Justice (Tshwane, South Africa: Institute for Security Studies, 2008) 15–54, at 41–43. 23 Press Release, ‘Senegal First State to Ratify Rome Statute of the International Criminal Court’, UN Press Release L/2905 (3 February 1993). 24 See e.g., F. Bensouda, Prosecutor, Int’l Crim. Ct., ‘The International Criminal Court and Africa: A Discussion on Legitimacy, Impunity, Selectivity, Fairness and Accountability’, Keynote Address at GIMPA Law Conference (17 March 2016) (‘It is now well accepted that without Africa’s support in the period leading up to and during the Rome Conference, the ICC would not have been born.’). 25 A. Ferreira-Snyman, ‘Regional Organizations and their Members: The Question of Authority’, 42 The Comparative and International Law Journal of South Africa (2009) 183–209, at 187–188. 26 Art. 4h Constitutive Act of the African Union (11 July 2000); see generally V. Nmehielle, ‘The African Union and African Renaissance: A New Era for Human Rights Protection in Africa’, 7 Singapore Journal of International & Comparative Law (2003) 412–446. 27 Press Release, ICC, ‘Prosecutor of the International Criminal Court Opens an Investigation into Northern Uganda’ (29 July 2004). 28 Press Release, ICC, ‘Prosecutor Receives Referral of the Situation in the Democratic Republic of the Congo’ (29 April 2004). 29 Press Release, ICC, ‘Prosecutor Receives Referral Concerning Central African Republic’ (7 January 2005). 30 See e.g., J. R. Bolton, ‘Courting Danger: What’s Wrong with the International Criminal Court?’, American Enterprise Institute, 1 December 1998, available at https://​ www​ .aei​ .org/​ articles/​ courting​ -danger​-2/​(arguing that the ICC should be left ‘to the obscurity it so richly deserves’). 22

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266  The Elgar companion to the International Criminal Court seemed to have paid dividends by 2005, with the US sufficiently mollified that it agreed not to veto a resolution that gave the ICC its first UN Security Council referral.31

3.

THE UN SECURITY COUNCIL

The ICC is primarily a consent-based court. Unlike the UN-created tribunals that came before it, States can decide whether to join the ICC. But this consent-based regime has a significant exception arising from the Court’s relationship with the UN Security Council. The appropriate relationship between the ICC and the Council was one of the most contentious issues in the drafting of the Rome Statute, with views ranging from those, led by the US, who supported de facto UN Security Council control over the Court’s work, to those who tried to ensure the Court’s complete independence from the Council.32 Ultimately a compromise was reached. On the one hand, States agreed on two mechanisms through which the ICC would be able to prosecute without the UN Security Council’s involvement. The first mechanism is that States that join the Court can refer a ‘situation’ to the Court, subject to certain statutory requirements.33 The second mechanism is that the Prosecutor can initiate an investigation on his or her own prerogative, again within certain legal parameters.34 On the other hand, States agreed that the UN Security Council can, pursuant to Chapter VII of the UN Charter, refer a situation to the ICC even in a State that has not joined the Court.35 This means that through the UN Security Council, the Court can gain jurisdiction over non-State parties—those that have not consented to the Court’s jurisdiction. States foresaw the possible tension that an ongoing prosecution could create in the midst of delicate peace negotiations. To that end they also agreed that the Council, again pursuant to Chapter VII of the UN Charter, can defer any investigation or prosecution for renewable 12-month periods.36 This provision, enshrined in Article 16 of the Rome Statute, was first put to use by the US—although not in the way the drafters had intended. Starting in 2003, the US used Article 16 as part of its efforts to shield US service members from prosecution.37 Specifically, it held the reauthorization of UN peacekeeping missions in Bosnia and Liberia hostage to its demand for Article 16 language to be inserted into the reauthorization resolutions. The strategy worked and the subsequent resolutions provided that ‘consistent with the provisions of article 16 of the Rome Statute’ the ICC would not ‘commence or proceed with [any] investigation or prosecution’ arising from crimes allegedly S.C. Res. 1593 (31 March 2005). See A. Alamuddin, ‘The Role of the Security Council in Starting and Stopping Cases at the International Criminal Court’, in O. Bekou and A. Zidar (eds), Contemporary Challenges for the International Criminal Court (London: BIICL, 2014), at 104–108. 33 See Rome Statute, supra note 8, Arts 14(1), 12, 13(a) and 17; see also R. Rastan, ‘Situation and Case: Defining the Parameters’, in C. Stahn and M. M. El Zeidy (eds), The International Criminal Court and Complementarity: From Theory to Practice (Cambridge: Cambridge University Press, 2011), at 422 (defining ‘situation’ as a term of art used in the Rome Statute to refer to the geographic locale where alleged crimes were committed). 34 See Rome Statute, supra note 8, Arts 15, 12, 13(c) and 17. 35 Ibid. at Art. 13(b). 36 Ibid. at Art. 16. 37 See R. Cryer, et al., An Introduction to International Criminal Law and Procedure (Cambridge: Cambridge University Press, 2007), at 174. 31 32

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Africa, the Court, and the Council  267 committed by Americans (or nationals from other non-State parties) during the course of these UN missions.38

4.

THE DARFUR CASES

Early observers of the Court fully expected the UN Security Council’s other key authority—its ability to expand the Court’s jurisdiction to non-State parties—to remain dormant for decades. But in March 2005, following a UN Commission report that detailed war crimes and crimes against humanity in Sudan’s western region of Darfur, an idiosyncratic set of geopolitical factors led the UN Security Council to refer the situation in Darfur to the Court.39 Sudan was not a State Party to the Rome Statute, so this marked the first time the Prosecutor had the authority to open an investigation on the territory of a State that had not consented to the Court’s jurisdiction. The Court’s supporters saw the referral as a historic moment for the new institution. The referral pushed the Court to a new level of jurisdictional power with the five permanent members of the UN Security Council effectively anointing the Court as having a role in the international system. Scratching the surface however, the terms of the resolution were far from ideal. First, while requiring Sudan to cooperate with the Court, the Council decided to ‘urge’ (rather than ‘require’) the cooperation of non-State parties, regional, and international organizations.40 Of the five permanent members of the Council, only the UK and France were members of the Court. This meant that the Council was referring Darfur to the Court without committing three of its permanent members—the US, Russia, and China—or the Council as a whole, to supporting the Court’s work. Second, the US again secured language to ensure that its nationals, along with the nationals of any other non-State party except for Sudan, would not be prosecuted.41 Finally, the resolution stated that the UN would not pay any of the expenses associated with the Court’s work.42 A UN Security Council referral with no accompanying resources was not something the drafters of the Rome Statute had envisioned. Indeed, the Statute explicitly states that funds provided by the UN, ‘in particular in relation to the expenses incurred due to referrals by the Security Council’ would be a source of financing for the Court.43 In sum, it was an emperor-has-no-clothes resolution, containing a referral that was explicitly void of any political or financial buy-in from the referring body.

38 See S.C. Res. 1422 (12 July 2002); S.C. Res. 1487 (12 June 2003); S.C. Res. 1497 (1 August 2003). 39 S.C. Res. 1593, supra note 31; see R. Hamilton, Fighting for Darfur: Public Action and the Struggle to Stop Genocide (New York: Palgrave Macmillan, 2011), at 55–69. 40 S.C. Res. 1593, supra note 31, § 3. 41 Ibid. at § 6. 42 Ibid. at §7. 43 Rome Statute, supra note 8, Art. 115(b).

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268  The Elgar companion to the International Criminal Court There is a mechanism under the Rome Statute through which the Prosecutor can decide not to pursue a referral from the Council.44 But in this case the Prosecutor pursued the referral wholeheartedly and opened an investigation into the situation in Darfur in June 2005.45 Notwithstanding significant flaws in the referral, Court officials, and many of their supporters, felt buoyed by the UN Security Council’s recognition of the new institution.46 Sudan, by contrast, was outraged, with Sudan’s Foreign Minister describing the resolution as ‘unfair, ill-advised and narrow-minded’.47 But among AU Member States more generally, Sudan’s reaction made it an outlier. When the AU Assembly held its bi-annual meeting in January 2006, it raised no concerns about the ICC. And in June 2006, when the President and the Prosecutor of the ICC briefed the AU Peace and Security Council on the Court’s activities in Africa, the AU ‘welcomed the briefing and underlined the importance of [an] effective and continued working relationship between the AU Commission and the ICC’.48 As reflected in the AU Assembly’s statements, the positive relationship between the Court and the AU was largely undisturbed by the Darfur investigation until the middle of 2008, even in the face of the Court’s decision to issue an arrest warrant for Sudan’s then-Minister of State for Humanitarian Affairs, Ahmad Harun.49 This dynamic shifted dramatically, however, during the summer of 2008. The initial catalyst for the deterioration of the AU–ICC relationship was not ICC activity, but events quite independent of the Court. Between 2006 and 2008 French and Spanish investigative magistrates indicted nearly 50 Rwandan officials from President Paul Kagame’s government on charges of domestic and international crimes following the 1994 genocide in Rwanda.50 Kagame’s Rwandan Patriotic Front (RPF) is widely credited with having stopped the genocide while the rest of the world watched on. While Kagame had been supportive of efforts to prosecute the predominantly Hutu perpetrators of the genocide, he vehemently opposed calls to scrutinize crimes against humanity allegedly committed by his Tutsi-led RPF forces in the aftermath of the genocide.51 At the AU’s July 2008 meeting in Sharm El-Sheik, Rwanda’s Justice Minister described the French indictments as a ‘neo-colonial judicial coup d’etat’.52 The AU Assembly condemned the warrants as a political act ‘by judges from non-African states against African leaders’ and

44 Rome Statute, supra note 8, Art. 53 (laying out the process through which the Prosecutor can decline to open an investigation into a situation referred to it by the UN Security Council, and the terms under which such a decision is reviewable by the ICC Pre-Trial Chamber). 45 Press Release, ICC, ‘The Prosecutor of the ICC opens investigation in Darfur’ (6 June 2005). 46 See e.g., J. Lee, ‘Why the International Criminal Court Needs Darfur (More Than Darfur Needs the ICC)’, Jurist, 3 June 2005 available at http://​www​.jurist​.org/​forum/​2005/​06/​why​-international​ -criminal​-court​-needs​.php (describing the referral as ‘a welcome affirmation of [the ICC’s] legitimacy’). 47 ‘Sudan Rejects UN Resolution’, SBS World News, 2 April 2005, (quoting Naguib Al Khair Abdel). 48 Press Release, ‘Press Statement of the Peace and Security Council, African Union’ (19 June 2006), available at http://​www​.peaceau​.org/​uploads/​commstatementicceng​.pdf. 49 Prosecutor v. Harun, ICC-02/05-01/07, Warrant of Arrest (27 April 2007), available at https://​ www​.icc​-cpi​.int/​CourtRecords/​CR2007​_02902​.PDF. 50 C. C. Jalloh, ‘Universal Jurisdiction, Universal Prescription? A Preliminary Assessment of the African Union Perspective on Universal Jurisdiction’, 21 Criminal Law Forum (2010) 1–65, at 20–21. 51 ‘Rwanda: Justice After Genocide—Twenty Years On’, Human Rights Watch (28 March 2014), available at https://​www​.hrw​.org/​news/​2014/​03/​28/​rwanda​-justice​-after​-genocide​-20​-years. 52 F. Kimenyi, ‘AU Ministers Condemn Foreign Indictments’, The New Times, 21 April 2008, available at https://​www​.newtimes​.co​.rw/​section/​read/​3373 (quoting Tharcisse Karugamara).

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Africa, the Court, and the Council  269 concluded that the warrants ‘shall not be executed in African Union Member States’.53 The seeds of the anti-Africa narrative had always been present, but it was not until this point that they began to take hold. Less than two weeks after the Sharm El-Sheik meeting, then-Deputy Prosecutor, Fatou Bensouda, flew to Addis Ababa to brief the AU Peace and Security Council on the Prosecutor’s plan to seek an arrest warrant for Sudanese President, Omar al Bashir.54 The AU reacted strongly. It issued a statement after the briefing that linked news of the looming ICC warrant with the AU Assembly’s Sharm El-Sheik declaration, and ‘reiterated [its] concern with the misuse of indictments against African leaders’.55 Notwithstanding the different sources of the indictments against Rwandan officials and the Sudanese President, the AU began to tie the two sets of actions into a single narrative about Western powers using international criminal law to target African leaders.56 The Prosecutor announced his application for the arrest of President Bashir on 14 July 2008.57 Protests that Sudan had been voicing for three years about the UN Security Council’s referral of the Darfur situation finally gained traction within the AU. AU members understood, perhaps better than anyone, that the atrocities in Darfur were a stain on the continent. Indeed, the AU had acted, sending their own peacekeeping force into the region, well in advance of any UN Security Council action.58 So for the first three years of the ICC’s engagement on Darfur, the AU was mostly glad to have another international institution taking the situation seriously.59 But with the Prosecutor’s decision to seek the arrest of the Sudanese President, the ICC’s involvement in Darfur underwent a radical reframing. No longer was the ICC’s involvement in Darfur about supporting efforts to address a problem about which the AU itself was concerned; instead it was about an outside organization going after an African head of State. Complicating matters further was the controversy surrounding the legality of prosecuting the head of a State that has not joined the Rome Statute. Article 27 of the Rome Statute states that official capacity, ‘[i]n particular as a Head of State or Government’ is no bar to prosecution.60 But unlike States that have joined the Court, Sudan never agreed to this provision, and views differ on whether the UN Security Council has the authority, through its referral of the situation to the ICC, to impose this on Sudan.61 Moreover, the Prosecutor’s decision risked

53 Afr. Union, Decision on the Report of the Commission on the Abuse of the Principle of Universal Jurisdiction, Assembly/AU/Dec.199 (XI), § 5 (1 July 2008). 54 Press Release, ‘ICC Prosecutor Tells Security Council Entire Darfur Region “Crime Scene”, Sudan Not Cooperating on Arrest of Two Indictees’, UN Press Release SC/9349, (5 June 2008) (foreshadowing this decision a month earlier in public remarks to the UN Security Council. UN Press Release). 55 Press Release, ‘Press Statement of the Peace and Security Council’, Afr. Union PSC/PR/ BR(CXLI) (11 July 2008). 56 See Jalloh, supra note 50, at 20–21. 57 Situation in Darfur, ICC-02/05-157-AnxA, Public Redacted Version of Prosecution’s Application under Article 58 (14 July 2008), available at https://​www​.icc​-cpi​.int/​RelatedRecords/​CR2008​_04753​ .PDF. 58 See Hamilton, supra note 39, at 55–70. 59 Interview with officials at the African Union Peace and Security Council (July 2010) [on file with author]. 60 Rome Statute, supra note 8, Art. 27. 61 See e.g., P. Gaeta, ‘Does President Al Bashir Enjoy Immunity from Arrest?,’ 7 J Intl Crim J (2009) 315–332 (arguing that while it is not unlawful for the ICC to issue an arrest warrant for President Bashir, States that have joined the Rome Statute do not have to comply with the request to arrest him); cf. D.

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270  The Elgar companion to the International Criminal Court derailing the peace efforts that the AU had been working on since the start of the Darfur crisis. As all these threads came together, the Court found itself written into a narrative—advanced recently by Rwanda, but with much deeper historical roots—about the use of international criminal law against Africans, from which it has not been able to disentangle itself since. In terms of regional dynamics, the success of Rwanda and Sudan in lobbying for a change in the AU’s position toward the Court is curious. Sudan’s government, with its overt preference for being viewed as part of the Arab world, has not been historically popular within the AU. And while Rwanda’s Prime Minister, Paul Kagame, was a long-time darling of the West, the economic powerhouses of the region, Nigeria and South Africa, have generally had more regional clout. Rwanda and Sudan may not have succeeded as readily were it not for the backdrop of an all-African docket of cases at the ICC. It was true, as Court officials pointed out ad nauseum, that it was AU Member States themselves—the governments of Uganda, DRC and CAR—that had referred situations on their territories to the ICC. At every opportunity, Court officials drew on the vision of the Court, present since its inception, as an a-political institution, stressing that an anti-Africa bias could not follow from decisions based on the law.62 Nonetheless, the ICC’s line-up of defendants from only African countries made for an optic that supported, rather than countered, the emerging anti-Africa narrative. On 21 July 2008, one week after the Prosecutor’s announcement that he was charging President Bashir, the AU Peace and Security Council issued a request that the UN Security Council, ‘taking into account the need to ensure that the ongoing peace efforts [in Sudan] are not jeopardized’, defer the ICC’s process pursuant to Article 16 of the Rome Statute.63 A flurry of diplomatic activity followed, with coordinated efforts between the Sudan government, the AU, and the Arab League to secure a deferral from the UN Security Council. Libya, which had a non-permanent seat on the UN Security Council at the time, led the deferral effort by drafting amendments to an upcoming UK resolution re-authorizing the deployment of peacekeepers in Darfur.64 The two African States with non-permanent seats on the Council at the time, South Africa and Burkina Faso, both supported the amendments.65 But the US was staunchly opposed and at the end of the day the deferral language did not make it into the final resolution. Instead, the UN Security Council used the preamble of the resolution to state it was ‘[t]aking

Akande, ‘The Legal Nature of the Security Council referrals to the ICC and its Impact on Al Bashir’s Immunities’, 7 J Intl Crim J (2009) 333–352 (arguing that it is lawful for the UN Security Council to remove head of State immunity through the referral of a non-State party). 62 See e.g., L. Moreno-Ocampo, Prosecutor, ICC, ‘Building a Future on Peace and Justice, Address at Nuremberg’ (24 June 2007) (‘My duty is to apply the law without political considerations.’). 63 Afr. Union Peace and Security Council Communique, PSC/MIN/Comm(CXLII), § 11(i) (21 July 2008). 64 See W. Ali, ‘UNSC in Heated Debate Over Deferring Indictment of Sudan President’, Sudan Tribune, 29 July 2008, available at https://​www​.sudantribune​.com/​spip​.php​?article28059. 65 See Afr. Union, Report of the Implementation of Communique of 142nd Meeting of the Peace and Security Council Held on 21st July 2008 on the Sudan, PSC/MIN/3 (CLI), (22 September 2008) (detailing diplomatic efforts between the African Union and the Arab League in order to get a deferral out of the UN Security Council); see also D. Akande, M. du Plessis and C. C. Jalloh, An African Expert Study on the African Union Concerns About Article 16 of the Rome Statute of the ICC, Institute for Security Studies (2010).

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Africa, the Court, and the Council  271 note’ of the AU’s deferral request and that some members of the Council intended ‘to consider these matters further’.66 To the chagrin of AU Member States, no further consideration ever came. Instead, the AU continued to issue deferral requests, accompanied by ever-increasing degrees of frustration as each request went unheeded. Finally, in July 2009 at the AU Assembly meeting in Sirte, Libya, the AU decided that ‘in view of the fact that the request [for the UN Security Council to make an Article 16 deferral] by the African Union has never been acted upon’ they would refuse to cooperate in the arrest and surrender of President Al Bashir.67 Such refusal put AU Member States that had joined the ICC in violation of their obligation under the Rome Statute to comply with the Court’s arrest warrant requests.68 The subsequent years devolved into a triangular stalemate among the ICC, AU and the UN Security Council. At regular intervals, the AU reiterated its request to the Council for an Article 16 deferral.69 With equal regularity, the Council failed to respond. And while many civil society groups and a number of States in Africa continued to support the ICC, AU officials grew ever more strident in their accusations that the Court was biased against Africa.70 In the face of this criticism, Court officials steadfastly maintained the line that the Court was a-political, and tried to highlight the voices of those in Africa that continued to back the Court. The ICC Prosecutor emphasized that government officials from South Africa, Tanzania, Botswana, and Chad remained steadfast in their support of the Court, and continued to assert that his role was ‘to apply the law without political considerations’.71 Meanwhile, at each six-monthly briefing that the ICC Prosecutor had to give to the UN Security Council under the terms of the Darfur referral, the Prosecutor asked for support in executing the ICC arrest warrants.72 The Council did not act. The Prosecutor asked AU Member States to arrest President Bashir when he came onto their territory. None of them did.73 Eventually the ICC judges began sending the UN Security Council notices that States were not complying with the Council’s own request for cooperation by States in its original Darfur referral resolution.74 Again, the Council took no action.

S.C. Res. 1828, preamble (31 July 2008). Afr. Union, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC), Assembly/AU/13 (XIII), § 10 (3 July 2009). 68 See Rome Statute, supra note 8, Art. 89. 69 Decision on the Report of the Second Meeting of States Parties to the Rome Statute on the International Criminal Court (ICC), Doc. Assembly/AU/8(XIV), § 10 (31 January 2010). 70 A. Laing, ‘International Criminal Court Is “Hunting” Africans’, The Telegraph, 27 May 2013, available at https://​www​.telegraph​.co​.uk/​news/​worldnews/​africaandindianocean/​10082819/​International​ -Criminal​-Court​-is​-hunting​-Africans​.html (quoting AU Chair, Haliemariam Desalegn, accusing the ICC of doing ‘some kind of race hunting’ of Africans). 71 L. Moreno-Ocampo, Prosecutor, ICC, ‘Working with Africa: the view from the ICC Prosecutor’s Office’, Statement at ISS Symposium on ‘The ICC that Africa Wants’ (9 November 2009). 72 See e.g., ICC, Sixteenth Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1593, §§ 31–32 (12 December 2012). 73 See e.g., ‘Chad Doesn’t Arrest Sudan’s Bashir’, UPI, 18 February 2013. Nonetheless, prior to the AU non-cooperation decision, and in the case of some States, even after the decision, the threat of arresting President al Bashir if he did set foot on their territory was enough to cause him to cancel a number of his travel plans and decline certain diplomatic invitations. 74 See e.g., Press Release, ICC, ‘ICC Informs the United Nations Security Council and the Assembly of States Parties about DRC’s Non-Cooperation in the Arrest and Surrender of Omar Al Bashir’ (10 April 66 67

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272  The Elgar companion to the International Criminal Court It is impossible to know whether action by the UN Security Council to at least put the AU’s request for an Article 16 deferral to a formal vote would have slowed, if not stopped, the deterioration in the relationship between the ICC and the AU. What is certain is that the refusal to even vote on it exposed the Council’s approach to Article 16 requests as hypocritical. Whether or not actually deferring the prosecution was wise or necessary was certainly debatable. But there is no question that the AU’s request was more aligned with the intent of the drafters of the Rome Statute than the earlier use of Article 16 by the US to shield its nationals from prosecution. The AU was accusing the Court of serving the interests of the Global North at the expense of African States, but the best evidence of bias lay instead with the UN Security Council. Given that AU members’ frustration with the ICC stemmed, in such significant part, from a sense of indignity that the Council had failed to respond to them, a different reaction from the Council could have gone some way towards reducing the currency that the anti-Africa narrative had gained.

5.

THE KENYA CASES

Kenya started out as one of the ICC’s least contentious situations. Kenya’s membership in the ICC meant that subject to the approval of the Court’s judges, the Prosecutor had jurisdiction to open an investigation as soon as crimes were committed in the brutal ethnic violence that followed Kenya’s contested 2007 election. But the Prosecutor held off, and did not try to begin an investigation until he received a specific request from former UN Secretary General, Kofi Annan, in July 2009, after Annan concluded that Kenya was not serious about pursuing genuine prosecutions itself.75 It was not until November 2009, almost two years after the violence, that the prosecutor opened an investigation.76 As David Bosco describes it in his book on the ICC’s first decade, ‘Internationally, the Kenya inquiry was as uncontroversial use of the controversial propriu motu power as could be designed.’77 In March 2010, the ICC’s Pre-Trial Chamber approved the request to open the investigation.78 There was no immediate reaction to the investigation from the AU. And there was no formal response to the investigation at the next AU Assembly meeting in Kampala, Uganda, that July. But the ICC was still very much on the AU’s agenda; the Assembly reiterated its request that the UN Security Council defer the ICC proceedings against President Bashir, and 2014); Press Release, ICC, ‘Pre-Trial Chamber II informs the United Nations Security Council about Sudan’s Non-cooperation in the Arrest and Surrender of Omar Al Bashir’ (9 March 2015). 75 J. Gettleman, ‘Under Wraps, Kenya’s Bill for Bloodshed Nears Payment’, New York Times, 16 July 2009, available at http://​www​.nytimes​.com/​2009/​07/​16/​world/​africa/​16kenya​.html (explaining that Kofi Annan sent the ICC a sealed list of suspects after concluding that Kenya was not serious about credible domestic prosecutions). 76 Situation in The Republic of Kenya, ICC-01/09-3, ‘Request for Authorisation of an Investigation Pursuant to Article 15’ (26 November 2009), available at https://​www​.icc​-cpi​.int/​pages/​record​.aspx​?uri​ =​785972. 77 D. Bosco, Rough Justice: The International Criminal Court in a World of Power Politics (New York: Oxford University Press, 2014), at 160. 78 Situation in The Republic of Kenya, ICC-01/09-19, ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya’ (31 March 2010), available at https://​www​.icc​-cpi​.int/​Pages/​record​.aspx​?docNo​=​ICC​-01/​09​-19.

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Africa, the Court, and the Council  273 reconfirmed its commitment that no AU Member States would arrest the Sudanese President.79 In addition, the AU Assembly rejected the ICC’s request to establish an Africa–ICC liaison office in the Ethiopian capital of Addis Ababa,80 and asked AU Member States to ‘balance, where applicable, their obligations to the AU with their obligations to the ICC’.81 By now, the Bashir case had brought the AU and the ICC into a seemingly zero-sum battle; standing with the AU meant standing against the ICC. And the Kenyan government soon had the opportunity to demonstrate its loyalty to the AU. In August 2010, it invited leaders from across the continent, including President Bashir, to a ceremony inaugurating a new Kenyan constitution. On assurances from the Kenyan government, the Sudanese President attended the event without fear of arrest. Kenya’s refusal to arrest him was roundly criticized by the ICC and the European Union. But Kenyan officials pointed to their obligations to the AU.82 In December 2010, the ICC Prosecutor released the names of the Kenyans he would be seeking charges against, including then-Deputy Prime Minister, Uhuru Kenyatta, and other current and former government officials.83 As had been the case with the ICC investigation in Sudan, it was at the moment when the ICC charged a current high-level government official that the AU reacted. At its next meeting in January 2011, the AU Assembly asked that the UN Security Council support the Kenyan government’s request for the ICC to defer its investigation so that the ‘reformed [Kenyan] judiciary provided for in the new constitutional dispensation’ could prosecute the cases itself.84 Although it was easy enough for journalists and other mainstream observers to characterize the request as a repeat of the AU’s reaction to the prosecution of President Bashir, the rationales for the two requests were distinct. With respect to Sudan, the main thrust of the argument for a deferral was that it would serve the interests of international peace and security. By contrast, the argument in relation to Kenya was primarily about complementarity; the AU believed that Kenyan courts should be given the chance to prosecute the cases. Legally speaking, each argument had its own discrete pathway for resolution. If the UN Security Council was persuaded by the argument that an ICC prosecution would have a negative impact on international peace and security, then it was its role to ask the ICC to defer its prosecution. By contrast, even if the UN Security Council was convinced that the Kenyan judiciary was willing and able to conduct its own prosecutions, that would not be grounds for it to request a deferral. Under the Rome Statute, Article 16 deferral requests can only be made pursuant to Chapter VII of the UN Charter, dealing with international peace and security. Challenges to the Court’s

Afr. Union, Decision on the Progress Report of the Commission on the Implementation of Decision Assembly/AU/Dec.270 (XIV) on the Second Ministerial Meeting on the Rome Statute of the International Criminal Court (ICC), Assembly/AU/10 (XV), §§ 4–5 (27 July 2010). 80 Ibid. at § 8. 81 Ibid. at § 6. 82 J. Borger, ‘Court Censures Commonwealth Chief as Rift Deepens over War Crimes Suspects’, The Guardian, 7 October 2010, available at https://​www​.theguardian​.com/​world/​2010/​oct/​27/​commonwealth​ -international​-criminal​-court​-bashir. 83 S. Raghavan, ‘International Court Names Six Kenyans as Suspects in 2007 Post-Election Violence’, Washington Post, 15 December 2010, available at http://​www​.washingtonpost​.com/​wp​-dyn/​ content/​article/​2010/​12/​15/​AR2010121503315​.html. 84 Afr. Union, AU Summit Decision on the Implementation of the Decisions on the International Criminal Court (ICC), Assembly/AU/Dec.334(XVI), § 6 (January 2011). 79

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274  The Elgar companion to the International Criminal Court jurisdiction on the grounds that there is a national judiciary willing and able to prosecute fall under Article 19, and can only be made by the accused or the relevant State to the Court itself.85 These differences may account for why the UN Security Council’s reaction to the AU’s deferral request on Kenya was quite different to its reaction on Darfur, even if the ultimate outcome was the same in both instances. Within two months of the AU’s request, the Council held an interactive dialogue with the Kenyan Ambassador to the UN, and in April 2011 Council members met again to discuss the issue and debriefed reporters afterwards. On both occasions, Council members concluded that the appropriate venue for Kenya to pursue its request was through the ICC directly, pursuant to Article 19 of the Rome Statute. Kenya’s deferral situation was an instance where, even when the Council met to discuss the issue, the law gave it plenty of cover to divert the AU’s request back to the ICC, rather than having to take a decision itself. By contrast, the moment the Council formally engaged on the AU’s request on Darfur, Council members would have to take a position one way or another; under the interests-of-peace argument, the Darfur deferral decision was the Council’s alone to make. If the different responses to the two situations were observed by AU Member States however, their public communications glossed over it; they consistently cited the Sudan and Kenya cases jointly in their expressions of frustration toward the Council. As 2011 turned to 2012, the AU Assembly announced its ‘deep grieve [sic] at the failure of the UNSC to respond to the requests of the AU for deferral of the Sudan and Kenyan cases for the past five (5) years’.86 Events on the ground in Kenya soon complicated the situation further, with two of the defendants against whom the ICC had confirmed charges, Deputy Prime Minister Uhuru Kenyatta and former education minister William Ruto, announcing that they would be uniting for the Presidential/Vice-Presidential ticket in Kenya’s 2013 elections.87 Despite efforts by civil society to bar them from running, Kenyatta and Ruto ran a campaign that built explicitly on the anti-Africa narrative about the Court, framing the election as a referendum against the ICC.88 They won the Kenyan presidency in March 2013.89 Under further pressure from the AU, and at the behest of Rwanda, which had a non-permanent seat on the UN Security Council at the time, the Council finally voted on the AU’s request for a deferral in Kenya. The vote failed, with only seven countries voting in favor, and eight abstaining.90 Now the ICC was prosecuting two African Presidents, while still not having opened a single case outside Africa. Rome Statute, supra note 8, Art. 19(2). Afr. Union, Decision on the International Criminal Court, Assembly/AU/Dec.590(XXVI), § 8 (30 January 2012). 87 ‘Uhuru Kenyatta and William Ruto Aonfirm Kenyan Alliance’, BBC News, 3 December 2013, available at http://​www​.bbc​.com/​news/​world​-africa​-20578837. 88 See e.g., R. Warah, ‘How the ICC Helped, Rather Than Hindered, the Uhuru-Ruto Election’, The Nation, 20 March 2003, available at https://​www​.nation​.co​.ke/​kenya/​blogs​-opinion/​opinion/​how​-the​-icc​ -helped​-rather​-than​-hindered​-the​-uhuru​-ruto​-election​-851028. 89 S. Raghavan, ‘Kenyatta Wins Kenya Presidential Election by Narrow Margin’, Washington Post, 9 March 2013, available at https://​www​.washingtonpost​.com/​world/​africa/​kenyatta​-wins​-kenya​ -presidential​-election​-by​-narrow​-margin/​2013/​03/​09/​c07ae7fa​-88b1​-11e2​-9d71​-f0feafdd1394​_story​ .html. 90 M. Nichols, ‘Africa Fails to Get Kenya ICC Trials Deferred at United Nations’, Reuters, 13 November 2013, available at http://​www​.reuters​.com/​article/​us​-kenya​-icc​-un​ -idUSBRE9AE0S420131115. 85 86

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6.

IT ALL COMES TUMBLING DOWN

The tensions that had been building in the relationship between the ICC, the AU, and the UN Security Council, began to reach breaking point at the end of 2014. Far from working ‘hand in hand’ with other international institutions, the ICC had spent almost a decade conducting its Darfur, and then its Kenya work, either without the support of, or in direct opposition to, both the UN Security Council and the African Union. By December 2014, the natural limits of that arrangement, understood by insiders for years, were finally made public. On 3 December, after months of allegations about witness intimidation by the Kenyan government, the ICC judges issued a ruling determining that the government of Kenya had violated its cooperation obligations under the Rome Statute, and that this had ‘compromised the Prosecution’s ability to thoroughly investigate the charges [against President Kenyatta]’.91 Two days later, Prosecutor Fatou Bensouda notified the Court that she would be withdrawing the charges against the Kenyan President.92 The next shoe dropped a week later. From the time the ICC first opened its investigation in Darfur, the Prosecutor had been required to provide a six-monthly progress report to the UN Security Council. Both Fatou Bensouda and her predecessor, Luis Moreno-Ocampo, had dutifully appeared to update the Council on their work and urge the Council to secure the enforcement of pending arrest warrants. But by the time the twentieth prosecutorial update to the Council was due, Bensouda could play the game no longer: It is becoming increasingly difficult for me to appear before the Council to update it when all I am doing is repeating the same things I have said over and over again … I am left with no choice but to put investigative activities in Darfur on hold … It should thus be clear to the Council that unless there is a change of attitude and approach to Darfur in the near future, there will continue to be little or nothing to report to it … The question for the Council to answer is what meaningful purpose my reporting was intended to serve and whether that purpose is being achieved.93

While hailed by commentators as a valiant effort to speak truth to power,94 it was in many ways the inevitable outcome of a referral that had, from the moment of its inception, been deliberately bereft of political support. More blows were to come the following summer when President Bashir attended an AU meeting in South Africa. With the backing of its judiciary and civil society, South Africa had long been one of the Court’s staunchest supporters, championing the vision of the ICC as a court by and for Africans. Back in 2009, the Sudanese President had decided not to attend the inauguration of South African President-elect, Jacob Zuma, for fear that he would be arrested

91 Prosecutor v. Kenyatta, ICC-01/09-02/11-982, ‘Decision on Prosecution’s Application for a Finding of Non-compliance Under Article 87(7) of the Statute’, §§ 78–79 (3 December 2014), available at https://​www​.icc​- cpi​.int/​CourtRecords/​CR2014​_09899​.PDF. 92 Prosecutor v. Kenyatta, ICC-01/09-02/11-983, ‘Notice of Withdrawal of the Charges against Uhuru Muigai Kenyatta’ (5 December 2014), available at https://​www​.icc​-cpi​.int/​Pages/​record​.aspx​ ?docNo​=​ICC​-01/​09​-02/​11​-983. 93 Office of the Prosecutor, ICC, ‘Statement to the United Nations Security Council on the Situation in Darfur’, Pursuant to UNSCR 1593 (2005) (12 December 2014). 94 See e.g., Kevin Jon Heller, ‘OTP Suspends Darfur Investigation’, Opinio Juris, 12 December 2014, available at http://​opiniojuris​.org/​2014/​12/​12/​otp​-suspends​-darfur​-investigation/​.

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276  The Elgar companion to the International Criminal Court if he set foot on South African soil.95 But by June 2015, the South African government’s allegiances rested with the AU and its anti-Africa view of the Court. Bashir attended the AU meeting and flew back to Khartoum unscathed, notwithstanding vehement protests by the South African judiciary.96 Throughout this period, the AU’s frustration with the UN Security Council’s refusal to defer the prosecutions in Sudan and Kenya continued to grow. It formed an open-ended ministerial committee tasked with pushing the UN Security Council to use its Article 16 power. And in January of 2016, the AU general assembly asked the committee to develop a strategy that included ‘collective withdrawal from the ICC’.97 South Africa was the first country to make good on the threat, notifying the UN Secretary General of its intent to withdraw from the ICC in October 2016.98 The same week, Burundi and Gambia also announced their intent to withdraw, claiming that the Court was prosecuting Africans while ignoring crimes committed by Westerners.99 Finally, at the 2017 AU Summit meeting, the AU issued a resolution calling for the mass withdrawal of its members from the ICC.100 The resolution was non-binding, and Nigeria and Senegal opposed it, but even as a symbolic gesture it was a direct challenge to the vision of the ICC as a Court by and for Africa.101 At the time of writing, only Burundi has followed through on its decision to withdraw from the Court.102 Even so, it is clear that the anti-Africa court narrative has won out over the Court’s efforts to portray itself as an a-political institution.

95 K. Gabel, ‘Facing Arrest, Bashir Stays Away From South Africa’, All Africa, 7 May 2009, available at http://​allafrica​.com/​stories/​200905070644​.html. 96 N. Onishi, ‘Omar al-Bashir, Leaving South Africa, Eludes Arrest Again’, New York Times, 15 June 2015, available at http://​www​.nytimes​.com/​2015/​06/​16/​world/​africa/​omar​-hassan​-al​-bashir​-sudan​-south​ -africa​.html. 97 Decision on the International Criminal Court, supra note 86, § 10(iv). 98 In March 2017, South Africa informed the United Nations that it was revoking its letter of withdrawal; however, local commentators believe that this does not constitute a reversal of South Africa’s intent to withdraw, but is instead a response to the South African High Court’s decision that the manner in which withdrawal was pursued was unconstitutional. Such observers expect the country to re-institute its withdrawal once it has been through proper constitutional procedures. See e.g., S. Dersso, ‘South Africa’s Future in the ICC Is Still Uncertain’, Al Jazeera, 13 March 2017, available at https://​www​ .aljazeera​.com/​indepth/​opinion/​2017/​03/​south​-africa​-future​-icc​-uncertain​-170313122508594​.html. 99 E. Blair and M. Nichols, ‘Burundi Notifies UN of International Criminal Court Withdrawal’, Reuters, 26 October 2016, available at http://​www​.reuters​.com/​article/​us​-burundi​-icc​-idUSKCN12Q287 (reporting that the ICC had opened a preliminary examination of crimes in Burundi’s territory since its President, Pierre Nkurunziza, pursued a third term in office the previous year); J. Bavier, ‘Gambia Announces Withdrawal from International Criminal Court’, Reuters, 26 October 2016 (available at http://​www​.reuters​.com/​article/​us​-gambia​-icc​-idUSKCN12P335​?il​=​0. 100 Afr. Union, Decision on the International Criminal Court (ICC), Assembly/AU/Dec.622(XXVIII) (30 January 2017). 101 E. Igunza, ‘African Union Backs Mass Withdrawal From ICC’, BBC, 1 February 2017, available at http://​www​.bbc​.com/​news/​world​-africa​-38826073. 102 J. Moore, ‘Burundi Quits International Criminal Court’, New York Times, 27 October 2017, available at https://​www​.nytimes​.com/​2017/​10/​27/​world/​africa/​burundi​-international​-criminal​-court​.html. In March 2019, the Philippines also withdrew from the Court, following the prosecutor’s decision to begin a preliminary examination of allegations of crimes against humanity by President Rodrigo Duterte and other officials in the Philippines. J. Gutierrez, ‘Philippines Officially Leaves the International Criminal Court’, New York Times, 27 October 2017, available at https://​www​.nytimes​.com/​2017/​10/​27/​world/​ africa/​burundi​-international​-criminal​-court​.html.

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Africa, the Court, and the Council  277

7. CONCLUSION The ICC is not blameless with respect to its current situation. While it remains true that African States referred the Court many of its cases, there is no reason for the Court not to have opened cases outside Africa on its own initiative. The a-political court narrative can only take one so far. It can justify why the cases before the Court should be there. But it cannot justify why other legally worthy cases are not. The Prosecutor General of Rwanda, Martin Ngogo, may have put it best: ‘There is not a single case at the ICC that does not deserve to be there. But there are many cases that belong there, that aren’t there.’103 Rather than continuing to dismiss claims of an anti-Africa bias as presumptively inaccurate, and repeating their insistence that the Court is a-political, Court officials and supporters must recognize the rhetorical power of the anti-Africa narrative. Efforts to debunk the legitimacy of the anti-Africa narrative have little chance of success as long as the Court’s docket continues to provide its detractors with such an easy target for accusations of politicization. Looking back over the past 15 years, key decisions taken by the ICC Prosecutor have had a short-term logic to them. The decision to accept self-referrals from African States enabled the Court to start prosecutions without offending any sovereign interests. These decisions showed that the Court could function the way people expect an international court to function: investigating cases and running trials. And the decisions to pursue UN Security Council referrals of the situations in Sudan (and later Libya) boosted the Court’s international standing to a degree that seemed worth the price of accepting referrals that were devoid of political or financial support. These decisions enabled the ICC to promote itself as a crucial actor in the global order. Yet both sets of decisions, while useful in the short term, have ultimately damaged the Court. Once the Court began pursuing high-level African officials its all-Africa docket became a source of vulnerability, and in the face of a standoff with the AU, the UN Security Council’s lack of genuine support for the Court became a liability. The decision to pursue current high-level officials in Sudan and Kenya may have been an effort by Court officials, and in particular the Prosecutor, to demonstrate the ideal of an a-political court, prosecuting without fear of power. If so, it revealed an overestimation of the Court’s authority and an underestimation of the risks created by the Court’s all-Africa docket. As the Court looks forward, it is worth noting that although the dominant accusation of politicization dogging the Court’s first 15 years has been in relation to Africa, there is probably nothing exceptional about Africa in the way this story has unfolded. Whenever powerful people are prosecuted, they look for ways to delegitimize those prosecuting them. One can readily imagine, for example, that if the Court prosecuted the Philippine President, Rodrigo Duterte, following a UN Security Council referral, one of the narratives President Duterte might pursue would be that the Court was biased against Asia. Whether or not his claim gained traction would depend on a range of factors, including the degree to which Asian defendants were over-represented on the Court’s docket. Thus, the Court should be on notice that non-legal considerations, such as a geographical balance in the construction of its docket, do and will continue to impact its ability to carry out its mandate wherever it decides to investi-

103 M. Samora, ‘Africa: Is ICC Prosecutor Continent’s Only Hope for Justice?’, All Africa, 7 December 2010, available at http://​allafrica​.com/​stories/​201012080152​.html (quoting Martin Ngogo).

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278  The Elgar companion to the International Criminal Court gate. And it is time for Court officials and their supporters to acknowledge this reality publicly; pretending otherwise has demonstrably failed as a strategy. There is, of course, plenty of blame to go around, and the UN Security Council is responsible for its share. The Council could have used its diplomatic and sanctioning power to isolate Sudan and Kenya from the rest of the AU, and actively support the Court. Alternatively, it could have used its Article 16 power to defer the Sudan case. Many court officials and supporters would undoubtedly have seen such a move as a blow to the Court. Yet it would likely have reduced animosity that was building between the AU and the ICC. Instead, the UN Security Council let the AU’s concerns fester, without doing anything to support the Court’s work. For the Court to survive into the next decade, Court officials need to remedy the vulnerable position in which their early decisions placed the institution. At a minimum this means expanding beyond an all-Africa docket and refusing to take any further UN Security Council referrals unless they have political (and, ideally, financial) support from the Council.

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12. Peace and justice Yvonne M. Dutton

As previous chapters have explained, the International Criminal Court (ICC) has been operating since 2002 when the 60th state required for adoption of the Rome Statute deposited its ratification instrument with the United Nations.1 The court’s supporters—both then and now— applaud the court’s creation. They argue, among other things, that this permanent international criminal court has the potential to achieve the very important goal of ending impunity for mass atrocities and contributing to the prevention of such crimes in the future. A statement by Luis Moreno-Ocampo, the ICC’s first prosecutor is illustrative: he stated that the mission of the Office of the Prosecutor (OTP) based on the language of the Rome Statute is to end impunity for mass atrocities and contribute to preventing future crimes.2 The Rome Statute does, in fact, reference those very goals. The Preamble states the determination to ‘put an end to impunity for the perpetrators of [the most serious crimes of concern to the international community as a whole] and thus to contribute to the prevention of such crimes’.3 The primary mechanism through which the ICC can aim to achieve the goals of ending impunity and preventing crimes is through its threat of prosecution. States that have ratified the Rome Statute agree that an independent prosecutor may investigate and prosecute the state’s own citizens for genocide, crimes against humanity, or war crimes.4 Because of the Rome Statute’s complementarity provision, however, the OTP can only proceed with a formal investigation if states with jurisdiction over the crimes are inactive or ‘unwilling or unable to genuinely proceed’.5 This ‘complementarity provision’ means that the ICC is a court of last resort: it steps in to deliver justice to victims in situations where impunity would otherwise reign. On the other hand, the complementarity provision means that the ICC has another tool in the fight against impunity. States that join the Court necessarily increase the risks to their 1 See generally W. A. Schabas, An Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2007). 2 ‘Pursuing International Justice: A Conversation with Luis Moreno-Ocampo’, CFR, 4 February 2010, available at http://​www​.cfr​.org/​human​-rights/​pursuing​-international​-justice​-conversation​-luis​ -moreno​-ocampo/​p34702. See also UN Press Release, ‘Transcript of Press Conference with President Carlo Ciampi of Italy and Secretary-General Kofi Annan in Rome and New York by Video Conference’, Office of the Secretary-General (UN Doc. SG/SM/8194), 11 April 2002 (quoting then-United Nations Secretary-General Kofi Annan as stating that states had ‘dealt a decisive blow’ to impunity when they created the ICC); ‘Statement of the Coalition for the International Criminal Court to the First Assembly of States Parties to the International Criminal Court, by William R. Pace, Convenor’, Coalition for the International Criminal Court, 9 September 2002, available at http://​ archive​ .iccnow​ .org/​ documents/​ ciccASP9Sept02​.pdf (quoting William Pace of the Coalition for the International Criminal Court as stating that the ICC’s creation ‘represents a truly great victory for the protection of universal human rights and the advancement of human security’). 3 Preamble ICCSt. 4 Arts 5–8, 11, and 12(2) ICCSt. 5 Art. 17 ICCSt. See also J. T. Holmes, ‘The Principle of Complementarity’, in Roy S. Lee (ed.), The Making of the Rome Statute (The Hague: Kluwer Law International, 1999), at 50.

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Peace and justice  281 citizens of an international prosecution. They also increase the chance that their citizens will face domestic prosecutions, because it is through such prosecutions that the state can avoid the fate of having its citizens tried in The Hague. Much scholarly literature has addressed the question of whether and under what circumstances the ICC may be able to achieve these goals of ending impunity and preventing future crimes. This chapter focuses on the ‘peace versus justice’ discussion and the concerns some scholars and practitioners voice that the OTP may produce unintended negative consequences when it pursues prosecutions or encourages prosecutions against perpetrators while conflicts are still ongoing. As Leslie Vinjamuri notes, although the pursuit of international justice post-conflict has ‘become increasingly normalized’, indicting sitting heads of states and rebels in ongoing conflicts was more exceptional in the past.6 In its relatively short life, however, the ICC has brought charges against President al-Bashir of Sudan, President Qaddafi of Libya, and the leader of the Ugandan rebel group the Lord’s Resistance Army (LRA), Joseph Kony—all while civil wars were waging. The ‘peace versus justice’ discussion pre-dated the ICC. But the ICC’s decision to pursue accountability during conflicts has provided a concrete context for the debate to flourish and encouraged proponents and critics of the ICC’s actions to question whether the pursuit of justice impacts the peaceful settlement of conflicts positively or negatively.7 Supporters of international prosecutions during ongoing conflicts argue that there can be ‘no peace without justice’—that peace may only be achieved via justice.8 Without justice and accountability, according to supporters, lasting peace is impossible, as impunity for atrocities will lead to future atrocities.9 Critics of such interventions argue that when one insists on justice by way of an international prosecution (or threat to prosecute), one may also sacrifice peace and perversely prolong conflict and encourage actors to continue to commit the human rights abuses that accompany conflict.10 Payam Akhavan puts it this way: the ‘assumption is that leaders facing threats of prosecution are more likely to prolong conflicts that keep them in power whereas immunity increases the incentives to end atrocities’.11 The concern is that the pursuit of international justice may compete with implementing a peaceful transition.12

L. Vinjamuri, ‘Deterrence, Democracy, and the Pursuit of International Justice’, 24 Ethics & International Affairs (Eth & Intl Aff) (2010) 191–211, at 191. 7 See e.g., Vinjamuri, ibid. at 191. 8 See e.g., J. N. Clark, ‘Peace, Justice and the International Criminal Court: Limitations and Possibilities’, Journal of International Criminal Justice (2011) 521–45, at 539–41 (describing the ‘peace’ side of the ‘peace versus justice’ debate, particularly as it relates to the ICC’s intervention in Uganda). 9 See e.g., GA 11355, Robust International Criminal Justice System Gives ‘Much-Needed Voice to Victims’ of Serious Crimes, Secretary-General Tells General Assembly (10 April 2013) (quoting UN Secretary-General Ban Ki-moon to the General Assembly for the idea that international justice is essential to achieving peace); P. Akhavan, ‘Justice in the Hague, Peace in the Former Yugoslavia? A Commentary on the United Nations War Crimes Tribunal’, 20 Human Rights Quarterly (Hum Rts Q) (1998) 742–43, at 737 (arguing that achieving stable peace is a long-term prospect that depends on punishing perpetrators so as to deter future crimes). 10 See e.g., P. Akhavan, ‘Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism’, 21 Hum Rts Q (2009) 624–54, at 625; Clark, supra note 8, at 541–42. 11 Akhavan, ibid. at 625. 12 Akhavan, ibid. at 627. 6

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282  The Elgar companion to the International Criminal Court This chapter begins with a detailed discussion of the ‘peace versus justice’ discussion in the context of international justice institutions generally. It situates the debate in its historical context, defines the terms ‘peace’ and ‘justice’, and lays out the narratives and counter-narratives of commentators on each side of the debate. The next section turns to the ‘peace versus justice’ discussion in the context of the ICC specifically, examining the narratives, as well as evidence from studies exploring how the OTP’s decisions to prosecute perpetrators during ongoing conflicts have or have not promoted either peace or accountability. The final section of the chapter concludes with some remarks about how the ICC’s work has helped to add nuance and complexity to a debate that has been based less on evidence than on theory-based generalizations.

1.

THE ‘PEACE VERSUS JUSTICE’ DEBATE

1.A

Historical Context

Scholars usually point to the 1990s as the time when the ‘peace versus justice’ debate emerged as a central controversy surrounding the pursuit of international accountability for mass atrocities. During that decade, the United Nations Security Council established the ad hoc international criminal tribunal for the former Yugoslavia (ICTY) to bring to justice individuals who were responsible for mass atrocities committed during armed conflicts in the Balkans. As Mark Kersten notes, the controversy of ‘peace versus justice’ became a feature in discussions about the tribunal’s work from its very inception, with commentators asking how the international community could ‘seek a negotiated settlement to the Bosnian war when those with whom they sought to negotiate were precisely the actors’ being investigated by the tribunal.13 This pursuit of justice during conflict was a break from past practice, wherein states typically used international prosecutions to hold perpetrators accountable for their roles in mass atrocities only after conflicts had ended. The quintessential example of this form of international justice is the Nuremburg Tribunal, whereby after succeeding militarily, the victors of World War II brought international criminal charges against high-level Nazi war criminals.14 A military victory means that the vanquished perpetrators cannot offer the possibility of a negotiated peace and an end to violence in exchange for amnesty or some outcome other than prosecution.15 Since the end of the Cold War, states have primarily resolved civil wars using diplomacy, as opposed to military means. At the same time, since the establishment of the ICTY in the 1990s, the international community has pursued accountability of perpetrators of mass atrocities using international justice mechanisms. These circumstances provide a ripe context for the ‘peace versus justice’ debate to flourish. When states pursue justice and accountability while 13 M. Kersten, Justice in Conflict: The Effects of the International Criminal Court’s Intervention on Ending Wars and Building Peace (Oxford: Oxford University Press, 2016). 14 See e.g., Akhavan, supra note 10, at 626–27 (stating that the establishment of the ICTY invigorated the debate about how pursuing justice during ongoing conflict could be reconciled with the goal of peacefully settling that dispute); Kersten, supra note 13, at 2–4 (arguing that the Security Council’s creation of the ad hoc tribunals most fundamentally brought to the forefront the relationship between justice and peace during ongoing conflicts). 15 See e.g., Akhavan, supra note 10, at 626.

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Peace and justice  283 conflicts are ongoing, they also impact the possibility of resolving those conflicts diplomatically and peacefully.16 1.B

The Contours of the Debate

The ‘peace versus justice’ debate postulates there may be a trade-off between international prosecution and the realization of peace and the protection victims of mass atrocities or other human rights abuses.17 Generally, the term ‘peace’ refers to ending war and mass atrocities and preventing them from occurring again in the future. This is essentially a ‘negative’ peace—the absence of conflict. A more ambitious and positive definition of ‘peace’ refers to reconciliation within the society that experienced the conflict.18 ‘Justice’ in the context of this debate generally refers to retributive, criminal justice, with perpetrators being held accountable for their actions.19 1.C

The ‘Justice’ Side of the Debate

As mentioned above, the pro-justice side of the debate supports pursuing international justice during ongoing conflicts.20 The overarching narrative on this side of the debate is that there can be ‘no peace without justice’. In other words, allowing impunity to reign can negatively impact a society’s prospects for durable and lasting peace. Without justice, victims of crime receive no redress for the injuries they have suffered, meaning that wounds can fester, thereby leaving in place the seeds for future conflict.21 Specifically, victims can be a source of future conflict because having been denied justice, they may eventually decide to take justice into their own hands.22 As for the perpetrators, allowing them to escape justice also sows the seeds for future conflict because it sends the signal that committing crimes will be tolerated—thereby encouraging future abuses. Insisting on justice, by contrast, will ‘help to identify the systems and structures which perpetuate mass violence and thus can contribute to their eradication and reformation’.23 The pro-justice narrative points to two key mechanisms through which the pursuit of justice can lead to peace: (1) by incapacitating and marginalizing perpetrators of violence, and (2) by deterring individuals from committing crimes. Each mechanism is explained in more detail below.

See Kersten, supra note 13, at 2–3. See e.g., Clark, supra note 8, at 521–22; A. Branch, ‘Uganda’s Civil War and the Politics of ICC Intervention’, 21 Eth & Intl Aff (2007) 179–98; C. Gegout, ‘The International Criminal Court: Limits, Potential and Conditions for the Promotion of Justice and Peace, 34 Third World Quarterly (2013) 800–18, at 810. 18 See Clark, supra note 8, at 539–40. 19 P. Akhavan, ‘Justice in the Hague, Peace in the Former Yugoslavia? A Commentary on the United Nations War Crimes Tribunal’, 20 Hum Rts Q (1998) 737–816, at 737–43. 20 See e.g., P. S. Wegner, The International Criminal Court in Ongoing Intrastate Conflicts: Navigating the Peace–Justice Divide (Cambridge: Cambridge University Press, 2015) at 4–5. 21 See Kersten, supra note 13, at 21. 22 See Wegner, supra note 20. 23 See Kersten, supra note 13, at 21. 16 17

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284  The Elgar companion to the International Criminal Court For the first mechanism, the idea is that prosecutions can remove perpetrators from the field of action or stigmatize them and their followers to such an extent that they lose support networks critical to their ability to commit atrocities. Incapacitation means that perpetrators have been taken out of action—for example, they have been arrested and imprisoned, thus making it impossible for them to continue attacking innocent victims.24 Removing leaders not only keeps them from committing further atrocities, but can have the additional positive effect of undermining the capacity of the group that operated under the leader’s command.25 Marginalization is a related concept, but its effects can arise as soon as the international justice institution has accused a group or individual of committing atrocities. When a leader is targeted and labeled a ‘criminal’ or ‘pariah’, the rank and file followers may suffer a morale loss and decide to abandon the fight.26 Another effect of marginalization is that the targeted individuals or groups may suffer reputational damage that causes them to lose other valuable support. International or other actors who had offered operational resources may be motivated take away the funding or arms the perpetrators need to commit further atrocities—or at least to commit atrocities at the same rate.27 Even more extreme, some states may decide to impose economic sanctions against the individuals or groups perpetrating mass atrocities so as to demonstrate condemnation.28 Deterrence is the second mechanism through which pursuing justice for victims of mass atrocities can advance peace. Here, the pro-justice side of the debate emphasizes how a credible threat of prosecution can produce a deterrent effect—an effect that will ultimately lead to less violence and more peace. That deterrence can be both specific and general.29 Specific deterrence means that individuals who have committed crimes and been punished through a formal criminal justice system will want to avoid such punishment in the future.30 General deterrence focuses on the society as a whole. Evidence of a well-functioning criminal justice system that metes out punishment should cause all individuals to fear similar punishment if they commit crimes.31 According to deterrence theory, rational individuals will refrain from committing crimes if the perceived costs of being charged, arrested, and punished outweigh the expected benefits of criminal behavior.32 International prosecutions during conflicts raise the perceived costs associated with continuing to commit atrocities—at least in theory. Those targeted by international institutions should rationally conclude that the best course of action is to cease committing additional atrocities that could also be prosecuted. Targets may also rationally respond to the threat of an international prosecution during ongoing conflict by pursuing peace negotiations 24 See Kersten, supra note 13, at 22; M. Broache, ‘Irrelevance, Instigation and Prevention: The Mixed Effects of International Criminal Court Prosecutions on Atrocities in the CNDP/M23 Case’, 10(3) International Journal of Transitional Justice (2016) 388–409, at 391. 25 See Broache, ibid. at 392. 26 See Wegner, supra note 20, at 36. 27 Ibid. at 37. 28 Ibid. at 37. 29 Aukerman, ‘Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice’ (2002) 15 Harvard Human Rights Journal (2002) 39–97, at 63. 30 See e.g., Paternoster, ‘How Much Do We Really Know About Criminal Deterrence?’, 100 Journal of Criminal Law and Criminology (2010) 765–823, at 767. 31 Broache, supra note 24, at 390. 32 See P. J. Keenan, ‘The New Deterrence: Crime in the Age of Globalization’, 91 Iowa Law Review (2006) 505–60, at 519.

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Peace and justice  285 that would include a promise of immunity from prosecution.33 Deterrence theory predicts a broader positive effect from the credible threat of prosecution in that others participating in atrocities should also want to avoid becoming targets.34 According to the pro-justice narrative, therefore, international justice is essential to lasting peace because it can prevent crimes from being committed and also pave the way for a negotiated and lasting peace.35 While deterrence features strongly as an underlying justification for pursuing justice and accountability, deterrence theory has its critics in the context of international criminal justice. For a threat of prosecution to deter the rational actor from committing crimes, punishment should be relatively certain, severe, and swift.36 Research shows that prospective perpetrators must perceive punishment as relatively certain, otherwise they will have ‘little disincentive toward offending, no matter the celerity or the proportionality of the punishment in question’.37 Some commentators, however, argue that international justice institutions like the ICC lack the institutional structures and resources credibly to threaten certain prosecution. For example, Julian Ku and Jide Nzelibe note that international criminal justice institutions only have resources to prosecute small numbers of perpetrators.38 Other commentators reference the lack of an international police force to make arrests in supporting their arguments about the weak deterrent potential of international criminal judicial institutions.39 Mark Drumbl references the same lack of an international police force to support a statement that the chances of getting caught for committing egregious human rights violations are ‘tiny’.40 If the critics are correct, an institution like the ICC may have a limited ability to deter crimes since it cannot necessarily send a credible signal that it will be able to deliver justice and hold perpetrators accountable. 1.D

The ‘Peace’ Side of the Debate

The peace side of the debate is not pro-impunity, but it emphasizes the negative impact on peace that can result when international justice institutions pursue accountability during ongoing conflicts. Commentators on the ‘pro-peace’ side of the debate argue that justice can create a disincentive to peace and prolong conflict in the short term and that one may have to sacrifice justice in the short term if the ultimate goal is the peaceful resolution of conflict and an end to victim suffering. They argue that amnesties are essential tools for bringing perpetrators of mass atrocities to the bargaining table.41 Perpetrators who receive amnesty will escape justice, but such immunity increases their incentives to end conflict and victim suffering.42

See generally Broache, supra note 24, at 391. Ibid. at 391. 35 See Akhavan, ‘Justice in the Hague’, supra note 19, at 743. 36 See e.g., Paternoster, supra note 30, at 783. 37 Ibid. 38 J. Ku and J. Nzelibe, ‘Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?’, 84 Washington University Law Review (2006) 777–834, 832. 39 P. McAuliffe, ‘Suspended Disbelief? The Curious Endurance of the Deterrence Rationale in International Criminal Law’, 10 New Zealand Journal of Public and International Law (2012) 227–62. 40 M. A. Drumbl, ‘Collective Violence and Individual Punishment: The Criminality of Mass Atrocity’, 99 Northwestern University Law Review (2005) 539–610, at 590. 41 Kersten, supra note 13, at 29. 42 See Akhavan, ‘Are International Criminal Tribunals a Disincentive to Peace’, supra note 10, at 625. 33 34

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286  The Elgar companion to the International Criminal Court Nor are commentators on the peace side of the debate convinced that the two mechanisms identified above will work in the way that pro-justice commentators argue. For each mechanism, the pro-peace commentators advance a counter-narrative—one that focuses on the perverse effects of pursuing prosecutions during ongoing conflicts. As to incapacitation and marginalization, the counter-narrative invokes the phrase ‘bolstering support for hardliners’.43 First, new and more abusive perpetrators may step in to replace those whom the international prosecutions removed from the field of action. As a result, conflict and violence may increase.44 Further, targeting perpetrators in an attempt to stigmatize and marginalize them could backfire. An indictment may strengthen the resolve of some targets, causing them to step up the violence so as to further destabilize the situation in the hopes of derailing investigations.45 Also, other actors may feel sympathy for the targets and decide to fight in order to avenge them and resist the international community’s intrusion on the state’s sovereignty.46 This ‘rallying’ can ‘increase the strength of individual perpetrators and their organizations, enabling them to continue fighting and to commit further atrocities’.47 As to deterrence, commentators on the peace side of the debate seem to assume that international justice institutions can send a credible signal that they will hold perpetrators accountable. But, these commentators again advance a narrative focused on the unintended and perverse effects that may flow from that credible threat. They suggest that threatening prosecution during ongoing conflict will back abusers into a corner and cause them to feel they have little reason to refrain from committing atrocities if their only other viable option is to be arrested and prosecuted.48 The perverse effects flow from how a targeted perpetrator might rationally calculate expected benefits and costs from committing atrocities in such a situation. Targets may view the benefits associated with escalating violence as great, as violence provides them a chance to secure victory and reduce the chances of suffering future legal sanctions.49 For example, with victory, the perpetrators may be able to take control of the government, and as the heads of government, they can render themselves immune from domestic prosecution, but also refuse to turn themselves over to an international institution for prosecution. Thus, pursuing accountability during ongoing conflicts could impede peace processes by creating perverse incentives that encourage perpetrators to continue or resume war or human rights violations.50 Commentators on the peace side of the debate also advance a narrative about how the threat of prosecution may create disincentives for targets to engage in negotiations to peacefully settle conflicts. Without an indictment hanging over their heads, perpetrators may be persuaded to enter into peace talks, because one part of the bargain may include some immunity for them or others in their group. Pro-peace commentators say that by insisting on justice in

Broache, supra note 24, 394. Ibid. 45 See Wegner, supra note 20, at 42. 46 C. Hillebrecht, ‘The Deterrent Effects of the International Criminal Court: Evidence from Libya’, 42 International Interactions (2016) 616–43, at 627. 47 Broache, supra note 24, at 394. 48 See e.g., Kersten, supra note 13, at 27; Broache, supra note 24, at 392–94. 49 See K. Cronin-Furman, ‘Managing Expectations: International Criminal Trials and the Prospects for Deterrence of Mass Atrocity’, 7 International Journal of Transitional Justice (2013) 434–54 at 443. 50 See e.g., M. P. Scharf, ‘The Amnesty Exception to the International Criminal Court’, 3 Cornell International Law Journal (1999) 507–27, at 507. 43 44

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Peace and justice  287 these circumstances, the pro-justice commentators ignore political realities.51 Simply put, one cannot expect targets to agree to peace negotiations when, directly after the settlement, targets will find themselves or their associates facing long prison terms.52 Relatedly, when targets ‘believe that they will be tried for human rights abuses, they will fight harder, longer, and dirtier’, assuming that ‘if they are in for a penny, they might as well be in for a pound’.53 If insisting on justice produces these perverse effects, then peace will be elusive, and victims will continue to suffer abuses.

2.

THE DEBATE IN THE CONTEXT OF THE ICC

More so than any of the international criminal justice institutions that preceded it, the ICC has an institutional structure that permits it to intervene during ongoing conflicts, and as a result, become a target in the ‘peace versus justice’ debate. The ICC is a permanent institution with ‘limitless, forward-looking temporal jurisdiction’.54 More specifically, it has jurisdiction only over crimes that occur after 1 July 2002 when the court was created. This means that the ICC’s OTP need not wait until a conflict is resolved to pursue justice and accountability.55 In fact, the OTP’s very first intervention occurred during an ongoing conflict. In January 2004, the Ugandan government, under the leadership of President Museveni, referred to the Court the ‘situation concerning the Lord’s Resistance Army’ (LRA). Civil conflict in northern Uganda’s Acholi region between government forces and the LRA had been ongoing for almost two decades—since about 1986 when Museveni’s National Resistance Army (NRA) was successful in seizing power from a mostly-Acholi government. In 2005, the ICC unsealed arrest warrants charging five LRA leaders, including its top leader, Joseph Kony, with committing war crimes and crimes against humanity. Although many had accused government forces of improperly using violence against civilians during the conflict, the ICC’s charges painted the LRA as the worst of the offenders. The charges emphasized how the LRA had regularly massacred and maimed civilians, as well as forcing children to join its fighting ranks.56 The ICC has featured prominently in the ‘peace versus justice’ debate since the OTP brought that first case. The commencement of the Ugandan situation prompted scholars to engage with the question of how the ICC’s quest for accountability might impact the prospect of a peace deal to end the violence in northern Uganda.57 Supporters of the intervention offered J. Snyder and L. Vinjamuri, ‘Trials and Errors: Principle and Pragmatism in Strategies of International Justice’, 28 International Security (2004) 5–44, at 5–6. 52 Scharf, supra note 50, at 508. 53 Hillebrecht, supra note 46, at 627. 54 Kersten, supra note 13, at 4. 55 See Akhavan, ‘Are International Criminal Tribunals a Disincentive to Peace?’, supra note 10, at 634 (noting that because the ICC is a permanent court, ‘there is no lapse of time between the commission of atrocities and the establishment of its jurisdiction’). 56 See A. Branch, ‘Uganda’s Civil War and the Politics of ICC Intervention’, 21 Eth & Intl Aff (2007) 179–98, at 179–82. 57 See e.g., Branch, supra note 24, at 179 (analyzing the political effects and the consequences for peace and justice of the ICC’s intervention into northern Uganda); L. M. Keller, ‘Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms’, 23 Connecticut Journal of International Law (2007) 209–280, at 211 (examining alternative mechanisms to deliver both justice and peace after the LRA stated it would not enter into a peace deal unless the ICC dropped its 51

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288  The Elgar companion to the International Criminal Court several reasons why the ICC intervention could lead to peace. They suggested that targeting the LRA as criminals could stigmatize them and produce a marginalization effect, causing allies, like the Sudanese government, which had been supporting the rebels, to back away. Also, the arrest warrants would help to incapacitate and remove the top leadership, thereby leading to the collapse of the LRA.58 Critics of the intervention countered these hypotheses with arguments about the perverse effects that could flow from pursuing justice. They argued that the ICC arrest warrants and the threat of arrest could make the LRA leadership less likely to leave the bush to engage in peace talks. Further, they suggested that LRA leadership would have no incentive to agree to peace talks if they could be arrested and prosecuted by the ICC after talks concluded.59 The debate about the ICC’s impact on peace and justice continues to rage. One reason is that the ICC has continued to intervene in ongoing conflicts. The Court’s cases in the Democratic Republic of Congo, the Central African Republic, Sudan, the Ivory Coast, Libya, and Mali were all commenced during active conflicts.60 The facts surrounding the Libya intervention demonstrate the continued relevance of the debate. In 2011, the United Nations Security Council referred the Libya situation to the ICC while President Qaddafi was in power and waging war against opposition groups seeking to overthrow him. Shortly thereafter, the ICC issued indictments. Pro-justice commentators applauded the move, arguing that justice was the only ‘right’ option, because the crimes Qaddafi and his associates committed against civilians were so heinous as to require punishment. On the other side were those who argued the ICC’s intervention derailed the possibility that the conflict would be settled peacefully since it meant that amnesty was off the table. With amnesty no longer an option, Qaddafi would have no reason to negotiate for peace. Instead, he would fight to the death to avoid being prosecuted in The Hague.61 Another reason the debate about the ICC’s impact on peace and justice is still alive is because thus far no unequivocal evidence demonstrates the correctness of the narratives advanced on either side of the debate. The next section outlines the major studies to date that have examined empirically how the ICC’s interventions in ongoing conflicts have impacted positively or negatively a country’s short or long-term prospects for peace. Several points are worth noting in advance. First, the number of extant studies is relatively small, which is not surprising given that the ICC is still a young institution. Second, the studies reach different conclusions about what the evidence shows regarding the ICC’s impacts, as well as different conclusions about the precise mechanisms that caused the observed outcomes. Finally, it is

warrants); Akhavan, Are International Criminal Tribunals a Disincentive to Peace?, supra note 10, at 641–46 (examining the ICC’s impact on peace and justice in Uganda). 58 See Branch, supra note 24, at 183. 59 Ibid. 60 Kersten, supra note 13, at 5 (showing that the ICC’s interventions include seven into ongoing conflicts). 61 See e.g., M. Kersten, ‘Libya, Peace and Justice: “Qaddafi has to go”, but Peace must be Negotiated’, Justice in Conflict, 18 April 2011, available at https://​justiceinconflict​.org/​2011/​04/​18/​libya​ -peace​-and​-justice​-gaddafi​-has​-to​-go​-but​-peace​-must​-be​-negotiated/​ (outlining the peace versus justice arguments advanced with respect to the Libya situation); L. Vinjamuri and J. Snyder, ‘ICC Sheriff Too Quick on the Draw’, Duck of Minerva, 9 May 2011, available at http://​duckofminerva​.com/​2011/​05/​ icc​-sheriff​-too​-quick​-on​-draw​.html (suggesting that Qaddafi and his supporters would be unlikely to abdicate power without guarantees of immunity from prosecution).

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Peace and justice  289 difficult to reach conclusions about how the ICC’s interventions impact peace and justice because each of the ICC’s interventions involves unique facts. Nevertheless, the studies do show that the ‘peace versus justice’ controversy has moved beyond generalized and theoretical narratives, towards more nuanced arguments and evidence about how the ICC impacts peace and justice during ongoing conflict.

3.

BEYOND THE DEBATE: CONSIDERING THE EVIDENCE OF THE ICC’S IMPACT ON PEACE AND JUSTICE

3.A

Quantitative Studies: Large-N

There are few large-N quantitative studies62 examining the ICC’s impact on justice and peace when the Court intervenes in ongoing conflicts. However, the few that exist provide some support for the idea that pursuing justice is important to achieving peace. A caveat is in order. Unlike qualitative studies, these large-N quantitative studies seek evidence of general trends; they do not examine particular country situations and attempt to determine specific effects of different types of ICC intervention on actors participating in ongoing conflict. 3.A.1 Simmons and Danner In their empirical study, Beth Simmons and Allison Danner examine how a decision to ratify the Rome Statute impacts countries with a history of civil war.63 According to these scholars, countries with histories of violent civil conflict and weak domestic institutions of accountability join the court because the looming threat of a potential ICC prosecution allows state leaders to credibly commit to their domestic audiences to end the cycle of violence.64 In such cases, the ICC provides the threat of prosecution—and the deterrent effect—that domestic institutions do not provide.65 These scholars argue that the ICC’s threat of prosecution offers a hand-tying mechanism that causes actors prone to warring to eschew their usual tactics that involve recklessly endangering civilians, wantonly mistreating prisoners, and violently persecuting

62 Quantitative studies are often contrasted with qualitative studies. In quantitative studies, the investigator uses statistical or mathematical methods to test hypotheses on observations that have been coded as numerical data. Large-N studies have a great number of observations, while small-N studies have fewer observations. Qualitative research tests hypotheses without using numerical data or statistical or mathematical methods. For example, a case study is a type of qualitative method, whereby the investigator uses information from interviews, news research, and other sources to reach conclusions on the hypothesis being tested. See generally J. W. Cresswell and J. D. Cresswell, Research Design: Qualitative, Quantitative, and Mixed Methods Approaches (5th edn., Thousand Oaks, CA: SAGE Publications, 2018); J. A. Maxwell, Qualitative Research Design: An Interactive Approach (3rd edn., Thousand Oaks, CA: SAGE Publications, 2013); B. Gillham, Case Study Research Methods (London: Continuum, 2000). 63 B. A. Simmons and A. Danner, ‘Credible Commitments and the International Criminal Court’, 64 International Organization (2010) 225–256. 64 Ibid. at 233–36. 65 Ibid. at 229–30 (referencing provisions of the Rome Statute they suggest serve to tie leaders’ hands by increasing the threat of an ICC prosecution); ibid. at 234 (stating that ICC ratification greatly increases the chance that senior government leaders will be prosecuted, at least as compared to a regime where impunity is the norm).

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290  The Elgar companion to the International Criminal Court opposition groups—all so as not to be prosecuted in The Hague.66 By tying their hands in advance through ICC commitment, governments can make a stable peace easier to negotiate.67 The results of Simmons’ and Danner’s quantitative study show that states with a recent history of civil wars are likely to join the ICC as long as those states also have weak institutions of domestic accountability.68 Referencing the ‘peace versus justice’ debate, these scholars also find evidence supporting their hypothesis that ICC commitment would also lead to more peace and stability.69 They examined the impact of ratification on civil war termination—a concept they define as a ‘one-year cessation in hostilities between 1998 and 2007’.70 Findings show that countries with the weakest domestic accountability mechanisms that joined the ICC were more likely to experience ‘a lull in violent hostilities following ratification compared to the least accountable governments that have not ratified’.71 Further empirical tests also show that ICC ratification by the least accountable governments had ‘a significant positive effect on the probability that a peace agreement will be reached in a country plagued by a recent or ongoing civil war’.72 Ratification, of course, is not the same as an OTP decision to actually investigate a situation or bring charges against perpetrators. Therefore, considering only the ratification stage means that these scholars do not confront the pro-peace narrative that predicts that bringing charges against leaders on either side when conflict is ongoing will back them into a corner and cause them to recommit to violence so as to avoid prosecution. Nevertheless, Simmons and Danner conclude from their study that ratifying the Rome Statute can have the positive effect of helping some governments commit to end violence and instead pursue peace.73 Though their findings greatly contribute to the scant literature testing the ICC’s impact on peace, Simmons’ and Danner’s theory and conclusions have not escaped critique. My own empirical work examining ICC ratification patterns demonstrates that contrary to the expectations of the credible commitment hand-tying theory advanced by these scholars, states with poor human rights practices and weak domestic law enforcement institutions do not readily join the Court. I advance a contrary theory about commitment—the credible threat theory— and argue that states with the worst practices will fear commitment to the court, rather than embracing it as a hand-tying mechanism. The results of my large-N study empirically examining commitment to the Court are consistent with the credible threat theory, showing that states with better human rights practices and strong domestic legal institutions are more likely to join—precisely because they have less to fear from its threat of prosecution.74 Terrence Chapman and Stephen Chaudoin reach a similar conclusion about ICC ratification patterns. After replicating and analyzing Simmons’ and Danner’s empirical model and data, they conclude that non-democracies with a history of civil conflict are not likely to ratify the Rome

Ibid. at 233–34. Ibid. at 233. 68 Ibid. at 238–40. 69 Ibid. at 253. 70 Ibid. 71 Ibid. at 247–48. 72 Ibid. at 250. 73 Ibid. at 225. 74 Y. M. Dutton, Rules, Politics, and the International Criminal Court: Committing to the Court (London: Routledge, 2013). 66 67

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Peace and justice  291 Statute.75 Instead, ‘countries with the most to fear from ICC ratification tend to avoid doing so, while countries for whom ratification is less costly are more likely to ratify’.76 If these states with poor practices are not regularly joining the ICC, then one may not be able to attribute to the Court a causal role in facilitating peace in these states. This chapter does not attempt to be the final word on Simmons’ and Danner’s theory or results. One must always consider the difficulties of drawing a specific causal inference from statistical results. And even statistical studies seeking answers to very similar questions may produce different results inasmuch as those conducting the study may include different variables in their studies, use different measures for those variables, and employ different statistical methods. 3.A.2 Jo and Simmons A more recent large-N quantitative study conducted by Hyeran Jo and Beth Simmons similarly examines the ICC’s impact on peace.77 Noting the absence of empirical evidence to support concerns that the ICC may perversely increase violence, these scholars advance and test the contrary theory: namely that the ICC can deter crimes under some circumstances.78 The hypothesis is that the ICC deters through its threat of legal action because its very existence increases the risk of prosecution in ratifying states. These scholars also emphasize the possibility of a complementary social deterrent effect, the idea being that prosecutions can also cause the target to be shunned by the community. In this case, Jo and Simmons predict that state actors, more than rebels, will be deterred by the prospect of social sanction. State actors usually want to be viewed as legitimate by the domestic public or the international community.79 Since they want to be viewed as legitimate, state actors are also more likely to be subjected to domestic and international pressures to cease committing international crimes.80 Jo and Simmons test their theory about the ICC’s legal and social deterrent effects on a group of countries where future atrocities would be possible—namely, countries that experienced at least one civil war since 1945.81 Their empirical evidence supports a conclusion that ICC intervention has a positive effect on peace. For government forces, ICC ratification, as well as an increase in ICC investigations over time, is associated with a reduction in intentional civilian killings.82 As to the complementary social deterrent effect, the results show that for states that ratified the Rome Statute, a larger domestic presence of human rights organizations is associated with a decrease in intentional killings by government actors.83 At the level of international social sanctions, the results also show that ‘governments that ratified the ICC Statute were subsequently much more likely to reduce or refrain from intentional civilian

T. L. Chapman and S. Chaudoin, ‘Ratification Patterns and the International Criminal Court’, 57 International Studies Quarterly (2013) 400–409, at 404–406. 76 Ibid. at 400. 77 H. Jo and B. A. Simmons, ‘Can the International Criminal Court Deter Atrocity?’, 70 International Organization (2016) 443–75. 78 Ibid. at 445. 79 Ibid. at 446–54. 80 Ibid. at 454. 81 Ibid. at 455. 82 Ibid. at 460. 83 Ibid. at 463–64. 75

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292  The Elgar companion to the International Criminal Court violence the more aid they received’.84 For rebel groups, the empirical results suggest that ICC ratification did not cause rebels to refrain from killing. Rebel groups did reduce intentional civilian killings as ICC investigations increased—a fact that Jo and Simmons suggest shows the OTP intends to hold perpetrators accountable for their actions.85 The evidence of a complementary social deterrent effect for rebel groups (resulting in fewer killings) is limited to groups with secessionist aims.86 Jo and Simmons explain that secessionist groups, more than other rebel groups, need to cultivate international legitimacy.87 Jo and Simmons are careful to acknowledge that their empirical tests show average results, ‘based on imperfectly measured exposures of prosecutorial and social risks and costs’.88 Moreover, they acknowledge that ICC interventions have not in the short term always resolved conflicts.89 Nevertheless, by advancing a theory and testing it, Simmons and Jo make an important contribution to the literature examining the ICC’s impact on peace. 3.B

Quantitative Studies: Small-N

Only one small-N quantitative study exists to date examining how the ICC’s intervention during an ongoing conflict influences prospects for peace and the cessation of violence. That study, by Courtney Hillbrecht, seeks evidence of whether the ICC’s intervention during the Libya conflict in 2011 (i.e., the pursuit of international justice) led to more or less peace or violence. Hillbrecht’s theory is pro-justice. She argues that the ICC and its threat of prosecution should produce a deterrent effect and prevent further abuses during ongoing conflicts under some circumstances. In particular, she hypothesizes that the ICC’s deterrent effect will be strongest when ‘(1) there is little possibility of safe haven in the event of military defeat, (2) the ICC is backed by other international actors, and (3) when the ICC demonstrates its intentions to bring a case to trial in a timely manner’.90 In this study, she looks for observable evidence of the hypothesized deterrent effect by examining whether or not the ICC’s intervention positively or negatively impacted the daily number of civilian fatalities and state sponsored deaths during the 2011 conflict in Libya between President Qaddafi’s government and opposition forces.91 Hillebrecht’s model considers the ICC’s deterrent (and pro-justice) impact at various steps in its prosecutorial processes. For example, an initial step was the OTP’s 23 February 2011 statement calling for accountability after Qaddafi’s forces began engaging in armed conflict with opposition forces protesting the President’s 41-year-long rule.92 Another step was obtaining a referral from the United Nations Security Council on 26 February 2011.93 In March 2011 and May 2011, respectively, the OTP completed two other important steps by opening investigations into the Libya situation and seeking arrest warrants for Qaddafi and Ibid, at 464–65. Ibid. at 468. 86 Ibid. 87 Ibid. at 454. 88 Ibid. at 470. 89 Ibid. 90 Ibid. at 625. 91 Hillebrecht, supra note 46, at 617. 92 Ibid. at 619, 622. 93 Ibid. at 620, 622. 84 85

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Peace and justice  293 two others.94 Hillebrecht outlines some additional steps the ICC took during the course of the conflict, which she notes ended in late October 2011 when Qaddafi was killed.95 She further notes the uniqueness of the ICC’s intervention in Libya, in that it was not only initiated at the behest of the Security Council, but also was accompanied by NATO’s military campaign against Qaddafi.96 Hillebrecht, though, argues that these facts make Libya an important test case, because, as she hypothesizes, the most likely scenario for the ICC to deter and prevent violence and conflict is when it is working with other actors.97 Like the large-N quantitative studies discussed above, this study finds evidence suggesting that ICC interventions can promote peace—in this case by decreasing civilian casualties, particularly at the early stages of conflict.98 Over a conflict period of 246 days, with fatalities occurring on 36 of those, Hillbrecht finds that the ICC’s involvement in Libya produced a deterrent effect in that it correlated with a decrease in violence (not a complete cessation of violence).99 She emphasizes that her results show the important deterrent effects produced by evidence that the ICC ‘intends’ to prosecute. For instance, the UN Security Council’s referral of the Libya situation acted to manifest the international community’s willingness to back timely prosecution, which in turn led to a significant abatement in the level of civilian casualties. By contrast, later procedural actions, like the ICC’s issuance of arrest warrants, did not have a statistically significant effect. Hillebrecht advises caution in interpreting her results based on the different model specifications she uses for her statistical analyses, and concludes that the ICC’s deterrent effect from pursuing justice during ongoing conflicts is probably modest overall.100 Further, she notes that her findings cannot necessarily be extrapolated to other situations where the ICC acted alone in intervening during an ongoing conflict. In Libya, the ICC was not the only, or even the main, international actor intervening in the conflict.101 Finally, Hillebrecht is careful to note that her study focuses only on the ‘short-term’ effects of the ICC’s actions during the Libya conflict.102 3.C

Qualitative Case Studies

Also limited are the number of qualitative and detailed case studies examining the ICC’s impact on peace and justice in the countries where it has intervened during ongoing conflicts. Below, I describe several robust studies that use documentary evidence, as well as interview evidence with combatants or others knowledgeable about the conflict and/or the ICC’s actions, to reach conclusions about the ICC’s impact on peace and violence. These studies provide some insights into the ICC’s impact in four different situations where conflict was ongoing at the time of the intervention: Uganda, Sudan, Libya, and the Democratic Republic of the Congo. Notably, in each instance the case study author emphasizes the need to reframe the ‘peace versus justice’ debate away from one that seeks only a ‘yes or no’ answer as to whether 96 97 98 99

Ibid. at 622. Ibid. at 621. Ibid. at 620, 622. Ibid. at 622. Ibid. at 618. Ibid. at 632. 100 Ibid. 101 Ibid. at 637–38. 102 Ibid. at 632. 94 95

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294  The Elgar companion to the International Criminal Court or not the ICC’s insistence on justice leads to peace or perversely increases violence. These studies, instead, show that the ICC’s effects may vary with the level of ICC intervention, as well as based on other ‘facts on the ground’. In some cases, and based on some levels of intervention, the ICC’s actions may have no impact on peaceful or violent behavior. In other cases, the ICC may impact peace positively or negatively—alone or together with other influential factors leading to more peaceful or violent outcomes. 3.C.1 Uganda: Kersten versus Wegner Both Mark Kersten103 and Daniel Wegner104 conducted in-depth case studies seeking evidence of how the ICC’s pursuit of justice in northern Uganda influenced prospects for peace. The studies are similar in that they both rely not only on documentary research, but also on field research, including interviews with persons knowledgeable about the conflict and the ICC’s intervention. Both scholars also seek to move beyond the dichotomous nature of the ‘peace versus justice’ debate and demonstrate the complexity of the ICC’s effects when it intervenes in ongoing conflict situations. Some of that complexity can be attributed to the different and varying contexts in which the ICC intervenes, as one must account for other factors, in addition to the ICC’s actions, which may influence the behavior of parties to the conflict. One can see that complexity by examining the conclusions each scholar reaches about the ICC’s impact on the conflict in northern Uganda. Both Kersten and Wegner agree, for example, that one reason the rebels in Uganda came to the negotiating table was to seek to negotiate away the ICC warrants. But, Kersten and Wegner also disagree in various respects about what the evidence shows about the ICC’s impact on peace or violence. For example, Kersten finds the ICC’s pursuit of justice did not impact peace perversely because neither side was really interested in a peaceful settlement of the conflict. Wegner, on the other hand, finds that the ICC impacted peace negatively because its insistence on justice made the rebel side of the conflict unwilling to sign a peace deal. 3.C.2 Kersten In his case study of northern Uganda, Mark Kersten exposes the diverse and complicated nature of the ICC’s impact on peace during ongoing conflict.105 Drawing on reports, documents, secondary source literature, and semi-structured interviews with individuals knowledgeable about the conflicts in those countries, Kersten ultimately concludes that while the ICC influenced actions taken by parties to the conflict, the ICC was not the principle reason that peace negotiations failed. Kersten employs an analytical framework that first examines how ICC actions influence the ‘conflict narrative’ and the incentives of the parties to pursue peace processes to resolve the conflict. That conflict narrative can paint some actors as ‘good’ and others as ‘evil’, and thereby incentivize parties to negotiate or not.106 He then focuses on how the ICC affects several stages of the peace process: pre-negotiation, negotiation, and post-negotiation.107

Kersten, supra note 13. Wegner, supra note 20. 105 Kersten, supra note 13, at 10. 106 Ibid. at 40–44. 107 Ibid. at 39. 103 104

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Peace and justice  295 Applying this framework, Kersten concludes that the ICC helped incentivize the LRA to attend peace talks with the Ugandan government in Juba only one year after the ICC issued arrest warrants in 2005. Kersten finds some evidence that the LRA thought the talks would be the only way to negotiate the removal of the ICC warrants.108 However, Kersten also emphasizes the role the ICC’s conflict narrative played in inducing the LRA to the table. He suggests the ICC warrants helped to bolster the narrative of a ‘good’ government fighting against ‘evil’ rebels, who were the sole cause of the problem, as opposed to only one cause of the problem.109 Referencing contemporaneous comments by LRA leader, Joseph Kony, as well as other LRA members, Kersten concludes that the LRA was incentivized to pursue negotiations to show the world that the ‘LRA was not [a] band of crazed terrorist[s]’ and communicate the political agenda that prompted the group to fight.110 Kony, for example, had declared that he did not have good methods to communicate his story to the world. Kersten infers that ‘official and international negotiations where the LRA could hope to be treated as an equal partner’ would fill the gap of limited communication options.111 Accordingly, Kersten disagrees with those who have argued that the ICC warrants marginalized and stigmatized the LRA, thus causing it to lose support and leaving it with little choice but to negotiate.112 He also argues that the LRA’s decision to negotiate in 2006 provides evidence to contradict another much-advanced narrative in the ‘peace versus justice’ debate: that issuing arrest warrants during ongoing conflict creates a perverse effect and causes targets to conclude that they have no choice but to fight to the death.113 Though the parties did negotiate in 2006, they did not reach a peace deal, leading Kersten to next examine what role, if any, the ICC played in causing this outcome. His answer: ‘no role’, because his review of the evidence suggests that neither the Ugandan government nor the LRA were truly committed to negotiating for peace. Returning to the narratives outlined above, the pursuit of justice could not perversely impact peace if peace was never really an option.114 As to the government’s intentions, Kersten points to evidence showing the government preferred a military solution, including evidence that some in the government benefitted monetarily if the parties kept warring.115 As to the LRA, Kersten says that most of his interviewees did not initially reference the ICC as a key obstacle to reaching a peace agreement. Based on this and other evidence, Kersten concludes that the LRA used the ICC as a scapegoat to prolong negotiations so that they had time to regroup and rearm.116 108 Ibid. at 80. Kersten distinguishes the removal of arrest warrants from an offer of amnesty by the Ugandan government. He argues that an offer of the Ugandan government for amnesty merely reinforces the narrative painting the LRA as the evildoers, and he suggests the evidence shows that LRA members did not want to be ‘forgiven’, as much as they wanted to explain the rational and political reasons for fighting. Ibid. at 89. 109 Ibid. at 74. Kersten explains that even his interview evidence highlights some atrocities committed by the Ugandan government’s forces. Ibid. at 74. 110 Ibid. at 81–82. 111 Ibid. at 81. 112 Ibid. at 65 and 90. 113 Ibid. at 86. 114 Ibid. at 101. 115 Ibid. at 102. 116 Ibid. at 106–108. Kersten acknowledges a role for the ICC in putting ‘accountability’ on the agenda at the 2006 negotiations. The ICC also seems to have caused Uganda itself to at least appear to embrace accountability: it created a war crimes division in an effort to convince the ICC to allow Uganda

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296  The Elgar companion to the International Criminal Court Finally, Kersten posits that the ICC has not had a negative impact in northern Uganda in terms of inciting violence or disturbing prospects for peace in the post-negotiation stage. Kersten finds that by 2013 the LRA was not actively staging attacks in northern Uganda, although he acknowledges that the LRA remains active in neighboring regions.117 Further, virtually every one of the individuals Kersten interviewed claimed that there was peace in Uganda.118 In short, the ICC’s intervention in the ongoing conflict between the government and rebels in Uganda, according to Kersten’s review of the evidence, did not perversely impact peace prospects in the short term since neither side was really interested in negotiating peace. Years later, however, northern Uganda appears peaceful. Yet Kersten resists the temptation to call the ICC’s intervention in northern Uganda a success since ‘the LRA crisis remains unresolved’.119 Kersten argues that his findings show the futility of engaging in a ‘peace versus justice debate’ that assumes ‘a conclusive answer to whether justice frustrates or abets conflict resolution’. His analysis, he says, shows that the Court’s effects on peace are mixed and complicated.120 3.C.3 Wegner Wegner similarly uses field research, data from interviews, and documentary evidence to study the effects of the ICC’s intervention during the ongoing conflict in Uganda. Wegner’s focus, like Kersten’s, is on drawing conclusions from the evidence about whether or not the ICC’s pursuit of justice while the LRA and government forces were still engaged in fighting had a positive or negative influence on peace in Uganda. In reaching his conclusions, Wegner considers conflict dynamics in each situation country that took place independently of the ICC. In other words, he is particularly interested in how the dynamics between the fighting parties might also influence prospects for greater peace or justice. Based on his case study of northern Uganda, Wegner concludes ‘that the effects of ICC investigations are a lot weaker and more limited than much of the literature would indicate’.121 Wegner posits that the literature has tended to overlook conflict dynamics and instead attributed those effects to the ICC.122 First, Wegner finds little or no support for the pro-justice narrative that predicts pursuing international justice can positively impact long-term prospects for peace by ending a country’s culture of impunity.123 He notes that Uganda passed an amnesty law in 2000, a law the government has kept in force even though it clashes with obligations under the ICC statute to punish those who commit atrocities.124 Nor did the government arrest the LRA commanders for whom the ICC had issued arrest warrants.125 Regarding crimes committed by government forces, Wegner concludes the evidence ‘indicates that impunity for crimes committed by

to try the LRA cases. On the other hand, Kersten argues that LRA leader, Joseph Kony, would never have agreed to an outcome whereby only LRA members, and not members of the government forces, were tried for atrocities committed during the civil war. Ibid. at 98. 117 Ibid. at 109, 188. 118 Ibid. at 108. 119 Ibid. at 109. 120 Ibid. at 114. 121 Wegner, supra note 20, at 273. 122 Ibid. at 11. 123 Ibid. at 200–208. 124 Ibid. at 200–201. 125 Ibid. at 201.

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Peace and justice  297 individual [government] soldiers and officers remains a problem’ despite assurance of the government and some media reports to the contrary.126 Wegner, in fact, argues that the ICC may have contributed to this lack of progress in combating impunity. The reason is that the ICC’s investigation focused only on LRA, not government, crimes.127 With the ICC pursuing only one side of the conflict, Wegner says that many in Uganda ‘believe that the ICC has cleared the government’, making it unnecessary to commence domestic prosecutions against government actors.128 Regarding the possibilities for peace, like Kersten, Wegner states that one reason the LRA engaged in peace talks was to discuss removing the ICC warrants.129 But Wegner argues the LRA also had other independent reasons for agreeing to the talks—reasons related to conflict dynamics. Most particularly, the military pressure on the LRA increased significantly before the talks and LRA forces were diminished because of the great number of rebels accepting the government’s amnesty offer and because of the increasing number of defections.130 In short, the ICC did not prompt the LRA to come to the table, but rather the LRA’s weakened fighting strength meant that it had reasons to engage in talks with the government.131 Wegner, in fact, suggests that the ICC played a role in making a negotiated peace in Uganda impossible. Unlike Kersten who concludes the talks would have failed in any event as neither party was really interested in a negotiated solution, Wegner argues that by being so ‘vocal’ ‘in demanding the implementation’ of the LRA warrants, the ICC’s intervention produced a perverse effect and made Kony less willing to sign a peace deal. According to interviewees, Kony would not have accepted any deal that required him to be tried for his alleged crimes.132 Yet there was no legal way for Uganda to force the ICC to drop the warrants without satisfying the complementarity criteria and trying Kony domestically.133 Wegner also finds that the ICC only produced a limited marginalization and deterrent effect on the LRA. Regarding marginalization, while the LRA did lose some of the valuable support it was receiving from the government of Sudan after the ICC’s intervention, Wegner finds the ICC at most galvanized already existing pressure on Sudan to stop supporting the rebels.134 For example, the fact that the LRA was listed as a terrorist group after the 11 September 2001 attacks put pressure on Sudan not to fund the group.135 According to Wegner’s analysis, the ICC may have helped to uphold the pressure on Sudan ‘to not start supplying the LRA again at a later point’, but it did not play a significant role in stopping Sudan’s support for the LRA in the first place.136 Any ICC deterrent effect, according to Wegner, was only partial. The Court played some role in inducing the LRA to stop committing violence during the Juba peace talks. He says the evidence shows other lulls as well where the LRA may have been regrouping or rearming. But

128 129 130 131 132 133 134 135 136 126 127

Ibid. at 204–205. Ibid, at 203. Ibid. Ibid. at 271. Ibid. at 215–16. Ibid. at 216. Ibid. at 256. Ibid, at 257. Ibid. at 219. Ibid. at 221. Ibid. at 223–26.

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298  The Elgar companion to the International Criminal Court in this instance the lull coincided with the time period when Wegner posits the LRA leadership overestimated the ICC’s ability to arrest them and also hoped to negotiate away the warrants.137 The deterrent effect, though, was only partial for a couple of reasons. First, military pressures and the weakening of the LRA militarily also contributed to the lack of killings between 2004 and late 2008.138 Also, the deterrent effect was not a lasting one, as the evidence shows that the LRA went on an abduction and killing spree in the neighboring regions after the talks failed.139 Nevertheless, like Kersten, Wegner finds that peace has generally returned to northern Uganda.140 Whether that peace is lasting is an open question. Wegner’s overarching conclusion stresses the complexity of the ICC’s effects and also the difficulty of attributing a certain and particular causal effect to the ICC where other factors can also influence behavior.141 His evidence indicates the ICC can have different effects on the parties to the conflict—perhaps deterring some, but not others, especially when the ICC targets one side of the conflict.142 3.C.4 Kersten: Libya In his study of the Libya situation, Kersten notes the complexity of the ICC’s impact, while concluding as he did in the Uganda case study, that the Court was not the principle reason that the ongoing civil conflict was not resolved through a negotiated peace.143 Employing the same framework he did with Uganda, Kersten submits that following the Security Council referral, the ICC helped to bolster a narrative emphasizing regime change and the ouster of Qaddafi— thus legitimizing aims of the opposition groups on the ground.144 The ICC put Qaddafi on the list of evildoers, labeling him a criminal.145 The ICC’s intervention also helped to justify NATO’s decision to take military action in Libya to protect civilians against government abuses.146 As to how the pursuit of justice influenced prospects for peace, Kersten concludes that the ICC ‘may have affected the possibility of successful negotiations’.147 That narrative pitting the ‘evil’ and criminal government against the ‘good’ rebels helped legitimize the rebels’ aims and strengthen their resolve to insist on Qaddafi’s removal from the country as a precondition to any non-military solution.148 Indeed, unlike others who have argued that the ICC’s intervention emboldened Qaddafi to continue fighting, Kersten says the intervention ‘galvanized the opposition’ by making the rebels feel the international community was on their side.149 Thus, the insistence on justice may have been a reason why the rebels did not negotiate.150 Ibid. at 228–29. Ibid. at 230. 139 Ibid. at 229–32. 140 Ibid. at 181–83. 141 Ibid. at 271–72. 142 Ibid. at 274. 143 For the Libya case study also, Kersten’s sources included not only documentary research, but also interviews with individuals having first-hand knowledge of the conflict. See Kersten, supra note 13 at 11. 144 Ibid. at 120–21. 145 Ibid. 146 Ibid. at 121. 147 Ibid. at 125. 148 Ibid. at 124, 130. 149 Ibid. at 130–31. 150 Ibid. at 131, 143. 137 138

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Peace and justice  299 Nevertheless, Kersten concludes that a peace settlement was never really a feasible option to ending the civil war in Libya. Therefore, one cannot attribute any perverse effect on peace to the ICC’s decision to intervene in the ongoing conflict.151 Why was peace not really a feasible option? Kersten points to the positions, attitudes, and behaviors of key actors—most notably, Qaddafi.152 He finds no evidence that Qaddafi ever sought to address the ICC’s intervention as a precondition to negotiations.153 For the most part, Qaddafi’s response to negotiation efforts was to reiterate his insistence that he would fight to the end and would not leave the country—even for amnesty.154 Kersten points out that Qaddafi did not leave Libya even after Tripoli fell to the rebels in late August 2011.155 Kersten says continuing to fight was the only option, ‘not because of the ICC but rather because, for the Libyan leader, the war was always “all or nothing”’.156 Moreover, Kersten finds no evidence that the ICC’s intervention produced a deterrent or marginalization effect. Regarding deterrence, Qaddafi continued to fight. As to marginalization, Kersten acknowledges that Qaddafi experienced some high-level defections after the ICC intervention. He argues, though, that fear of being killed because of an association with Qaddafi, as opposed to being prosecuted, just as likely explains the decisions to defect.157 3.C.5 Wegner: Sudan Wegner also conducted a case study examining how the ICC’s intervention in the Darfur situation in Sudan impacted peace or violence. Here, too, Wegner’s study relies on field research, interviews, and other documentary analysis to support his conclusions. As Wegner describes it, the Darfur conflict is a complex one that started years before it received media attention in about 2004.158 Three different conflicts comprise the whole: ‘one between the government and Darfur rebel groups, one between the government-supported Arab militias and predominantly African civilians and finally the local conflicts between tribal communities’.159 Since 2012, the conflict mainly involves fighting between the government and rebel groups that have reunited into a single military front.160 Wegner’s conclusion is a rather negative one as to the ICC’s impact: he argues that ‘the only lasting impact of the ICC in Darfur to date has been to complicate the rapprochement between the conflict parties and to increase the polarization in the conflict’.161 First, as to the ICC’s impact on Sudan’s culture of impunity, Wegner finds little support for the pro-justice narrative. The ICC impacted the culture of impunity by bringing charges against government officials, a leader of a government-sponsored militia, and rebel commanders.162 Otherwise, Wegner concludes that Sudan’s culture of impunity has not changed materially as

Ibid, at 143. Ibid. 153 Ibid. at 130. 154 Ibid. at 126–27. 155 Ibid. at 130. 156 Ibid. 157 Ibid. at 129–30. 158 Ibid. at 51. 159 Ibid. at 53. 160 Ibid. at 57. 161 Wegner, supra note 20, at 149. 162 Ibid. at 88. 151 152

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300  The Elgar companion to the International Criminal Court a result of the ICC investigations. He acknowledges the creation of new and special courts to prosecute atrocities occurring during the Darfur conflict.163 But Wegner’s conclusion is that these courts are ‘mere window dressing’164 to deflect international pressure for accountability.165 Some officials commenced national investigations of atrocities, but many involved minor crimes and in other cases, the government interfered to stop them from moving forward.166 Second, regarding peace negotiations, Wegner disagrees with those who have claimed the ICC investigations forced Sudan’s government to negotiate for peace and an end to the civil conflict during the February 2009 Doha negotiations.167 He acknowledges that states used the ICC as leverage to pressure the government to cooperate—threatening further ICC investigations if Sudan did not move on the Darfur issue.168 However, he says states used the ICC as an instrument because the evidence showed, for example, that some Security Council states were willing to defer the ICC case against al-Bashir if Sudan showed it would cooperate.169 In short, because states were not fully and completely backing the ICC investigation, this meant that the ICC threat of prosecution was not really significant enough to influence the Sudanese government’s behavior. In any event, Wegner points out that the Doha negotiations only led to a peace agreement with the political wing of one small rebel group—meaning that the ‘Darfur conflict remains essentially unresolved’.170 On the rebel side, Wegner finds a small role for the ICC in prompting the rebels to refuse to negotiate for peace. Here Wegner focuses on the ICC’s narrative—in this case, a narrative that labeled the government’s acts as ‘genocide’. This labeling basically ‘furthered the perception among the rebels that it was an ally in the fight against the [government]’, thus emboldening the rebels and causing them to feel little pressure to negotiate.171 Although Wegner suggests other factors also helped embolden the rebels, he says the ICC played a role in ‘furthering an emerging international public opinion that something should be done about the Darfur conflict’.172 Instead of negotiating for peace, the rebels put their efforts into calling for the international intervention in the Darfur conflict so as to put pressure on the government.173 Although the ICC investigations did not promote peace, Wegner finds that they also did not produce a perverse effect and cause the various negotiations for peace to fail. Instead, the negotiations failed ‘due to the splintering of the rebel forces or important disagreements between the conflict parties regarding the status of Darfur’.174 Shortly after the Doha negotiations began in February 2009, the ICC issued an arrest warrant for al-Bashir.175 That warrant was a topic of discussion at the talks, and indeed, strengthened the resolve of rebel groups who began to hope that the president might be marginalized, and possibly even driven out of power. Accordingly,

165 166 167 168 169 170 171 172 173 174 175 163 164

Ibid. at 90–92. Ibid. at 93. Ibid. at 91. Ibid. at 92. Ibid. at 98. Ibid. at 105. Ibid. at 106. Ibid. Ibid. at 139. Ibid. at 140. Ibid. at 138. Ibid, at 126. Ibid. at 127.

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Peace and justice  301 the ICC warrant had an impact on negotiations, but Wegner’s assessment is that later events demonstrate that the ICC did not end the talks.176 And while the ICC warrants were certainly a topic of discussion during the talks, disagreements on other topics, such as the administrative status of Darfur, kept the parties from reaching an agreement.177 Moreover, Wegner’s take is that ‘the situation in Darfur remains such that the parties with relevant military capabilities are currently not interested in negotiating in earnest’.178 Although the ICC’s involvement was not the primary reason peace efforts failed, Wegner also finds that the threat of prosecution did not itself lead to a decrease in violence or the possibility of violence. First, Wegner finds little evidence that the ICC warrants stigmatized the government and al-Bashir sufficiently to produce a marginalization effect leading to a loss of important avenues of support. Wegner notes that Sudan’s main supporters, China and Russia—countries holding Security Council vetoes—have remained loyal.179 Wegner acknowledges that al-Bashir has increasingly canceled state visits since the arrest warrant was issued against him in 2009.180 But he also shows that any stigma from the ICC warrants is limited, as al-Bashir has continued to visit some friendly African states, including some that are parties to the Rome Statute.181 And while the ICC warrants clearly deepened Sudan’s isolation from Western countries, the African Union and some African countries have stood behind al-Bashir generally, repeating the narrative that the warrant against him ‘is a manifestation of a neo-colonial bias’.182 Indeed, in 2009, the African Union decided that no African country should cooperate in arresting al-Bashir—though not all African countries have agreed to abide by that decision.183 Wegner also finds little evidence of a specific deterrent effect as a result of the ICC investigations in Sudan, although he concedes that at first glance a reduction in battle related deaths after the ICC investigations commenced could support such a finding.184 Rather, he submits that the Sudanese government simply changed tactics beginning in 2004 when it started trying to starve the African population by blocking humanitarian aid instead of attacking more directly.185 Moreover, Wegner finds evidence of direct attacks after the ICC intervened, citing ‘consistent reports that the IDP populations’ were being attacked after 2005.186 In addition, he cites a government offensive in February 2008 that Human Rights Watch labeled a reprise of scorched earth tactics the government had employed between 2003 and 2005.187 Wegner also cites other information showing that since December 2010, both the government and the rebels have been targeting civilians based on their ethnicity.188 Though the extent of the types of attacks being investigated by the ICC are lower than in 2003 and 2004, Wegner attributes the

178 179 180 181 182 183 184 185 186 187 188 176 177

Ibid. at 128. Ibid. at 128–29. Ibid. at 130. Ibid. at 119. Ibid. at 115. Ibid. at 116. Ibid. at 114–18. Ibid. at 117. Ibid. at 119. Ibid. at 120. Ibid. at 121. Ibid. at 121–22. Ibid. at 122.

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302  The Elgar companion to the International Criminal Court decline to the conflict having entered a new phase.189 In other words, when one takes conflict dynamics into account, one can see that the reduced intensity of the conflict, rather than the ICC investigations, led to fewer violations.190 On the other hand, Wegner also concludes that the ICC’s intervention did not heighten the conflicts that were already raging. One pro-peace narrative described above posits that the threat of prosecution can backfire and cause perpetrators to recommit to violence. In this case, Wegner notes that some commentators have claimed the ICC warrants caused al-Bashir to lash out against and expel aid NGOs working in Darfur. Wegner acknowledges that al-Bashir did harass these aid workers immediately after the ICC issued a warrant for his arrest.191 However, he points out that this was not the first time the government expelled aid agencies: the government had already done so in 2006 and 2008. Wegner concludes these previous incidents show that the expulsions in 2009 are simply part of a longstanding government policy, which the government continued to carry out in the 2010 and 2011.192 In conclusion, Wegner submits that while Sudan remains a violent place, the conflict analysis demonstrates little hope for peace even in the absence of the ICC.193 3.C.6 Broache: Democratic Republic of the Congo Michael Broache’s in-depth case study of the Democratic Republic of the Congo (DRC) also reveals the complexities of attributing to the ICC particular impacts on the country’s prospects for peace or violence. Broache studies CNDP/M23, one rebel group active in the DRC from 2004 to 2013. A faction of the Congolese Rally for Democracy’s Goma faction (RCD), CNDP/ M23 originated in 2004 under the leadership of Laurent Nkunda. CNDP/23 was the faction that refused to be integrated into the DRC’s armed forces (FARDC) as part of a comprehensive peace agreement reached in December 2002 between the government and a host of belligerent groups.194 By 2006, Bosco Ntaganda, a former high-ranking officer in the Patriotic Forces for the Liberation of Congo (FPLC), had joined CNDP/M23 as Nkunda’s chief of staff.195 (While with FPLC, Ntaganda was deputy to Thomas Lubanga Dyilo, who was convicted by the ICC in March 2012.) The rebel group continued fighting until January 2009, at which time Ntaganda successfully deposed Nkunda. Ntaganda thereafter reached a peace deal with the government that provided for CNDP’s integration into the national army. In 2012, though, conflict erupted again, with Ntaganda leading a mutiny of ex-CNDP members to fight against the government. With support from the Rwandan government, CNDP/M23 made some progress in its fight against the government. The fighting ended in late 2013, with the FARDC defeating Ntaganda’s group.196 Broache’s case study relies on documentary research, as well as data from a large number of interviews he conducted with individuals with knowledge of the conflict in the DRC. Amongst those he interviewed were 36 former CNDP/M23 combatants in the middle ranks of the rebel

Ibid. Ibid. at 126. 191 Ibid. at 133–34. 192 Ibid. at 135. 193 Ibid. at 144. 194 Broache, supra note 24, at 397. 195 Ibid. 196 Ibid. at 398. 189 190

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Peace and justice  303 group.197 As to methodology, Broache looks for links between ICC actions and CNDP/M23 atrocities (defined as intentional civilian killings).198 To disaggregate the ICC’s potential impacts on peace during the ongoing conflict, Broache focuses on three different periods where the ICC took action relevant to the CNDP/M23 group. The first time period began on 28 April 2008 when the ICC unsealed an arrest warrant against Ntaganda, charging him with war crimes and crimes against humanity for his role in attacking, murdering, and raping civilians in the DRC’s Ituri region. The second period began in March 2012, when the ICC obtained its first-ever conviction. The convict was Thomas Lubanga, Ntaganda’s FPLC leader, who was found guilty of conscripting and using child soldiers during conflict in the DRC’s Ituri region. Finally, Broache examines the ICC’s effects on peace in the DRC after Ntaganda’s surrender to the Court in March 2013.199 Focusing on the first time period, Broache finds no clear relationship between the unsealing of the ICC arrest warrant and CNDP/M23 atrocities. He notes that the data show a lull in civilian killings by the CNDP/M23 for the period between January 2009 and March 2012. Broache does not attribute that lull to the ICC because he concludes that the ICC’s action in unsealing the arrest warrant against Ntaganda ‘failed to alter perceptions of the probability, certainty, and/or celerity of future legal sanctions’, thus precluding a deterrent effect or the perverse effect of escalating violence.200 Indeed, Broache states that when the warrant was unsealed, Ntaganda and his followers objectively had little reason to fear arrest. Among other things, Ntaganda’s rebel group enjoyed control over substantial territory from which it was able to exclude others. Further, Ntaganda enjoyed a protected position within his group, particularly after ousting Nkunda in January 2009.201 Moreover, Broache points out that Ntaganda acted as if he did not fear arrest, frequently appearing in public, rather than hiding. Former combatants emphasized in their interview remarks as well that Ntaganda did not fear arrest after the ICC unsealed its warrant against him.202 Following the ICC’s conviction of Lubanga, however, the data show a sustained spike in CNDP/M23 violence against civilians—a spike that Broache attributes, at least in part to the ICC. In other words, the ICC may have contributed to producing the perverse effect of causing the rebels to step up violence. First, Broache points out that with the verdict, the international community began increasingly calling for Ntaganda’s arrest, making it reasonable for the rebel leader to fear that outcome more than he had before.203 Interviewees, in fact, said that Ntaganda had begun to fear the ICC.204 Ntaganda, thereafter, began actively encouraging CNDP members who had integrated into the government’s FARDC to defect and join him in a new rebellion against the government. Broache acknowledges that trouble had already been brewing and that some ex-CNDP members had been planning a rebellion since 201l. Yet, he finds that Ntaganda’s fear of arrest was at least part of the reason for the renewed fighting, with multiple sources suggesting ‘that Ntaganda and his followers were at least partially motivated Ibid. at 400. The data on intentional killings of civilians by the CNDP/M23 are from the Armed Conflict Location and Event Database (ACLED). See ibid. at 398–99. 199 Ibid. at 401–407. 200 Ibid. at 401. 201 Ibid. 202 Ibid. at 402. 203 Ibid. at 403–404. 204 Ibid. at 404. 197 198

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304  The Elgar companion to the International Criminal Court by a fear of arrest, consistent with the logic of escalation’.205 According to one interviewee, by taking up arms and escalating violence, Ntaganda believed he might be in a better position to negotiate for amnesty.206 The final time period of Ntaganda’s surrender to the ICC in 2013 is associated with a lessening of CNDP/M23 violence against civilians, a result Broache attributes to an incapacitation and marginalization effect.207 Fearing for his life because of a power struggle between himself and another fighter vying to be CNDP/M23’s leader, Ntaganda fled to Rwanda and appeared at the US embassy seeking transfer to the ICC.208 With his surrender, Ntaganda was obviously rendered incapable of committing further atrocities. With Ntaganda gone, his followers worried they may not be able to succeed, resulting not only in a large number of defections, but also the withdrawal of other outside operational support.209 While Broache primarily points to the marginalization mechanism to explain the defections, he also sees some evidence of a deterrent effect. One interviewee, for example, said that when followers learned Ntaganda was taken to the ICC, they began to believe that they could be next.210 Broache notes the limitations of his study and the conclusions that can be drawn from it. He stresses the difficulty of making causal inferences, stating that it would be misleading to ‘attribute changes in patterns of atrocities perpetrated by CNDP/M23 solely, or even primarily, to ICC action’.211 He further reminds readers to be careful when extrapolating the findings to other belligerent groups and contexts. With regard to the ‘peace versus justice’ debate, however, he urges researchers to ‘be more attuned to the possibility of heterogeneity in the effects of prosecutions’, noting that findings demonstrate that different types and levels of ICC actions can produce different impacts.212

4. CONCLUSION Although the studies discussed above have not produced consensus about whether and under what circumstances the ICC may produce peaceful or perverse effects when it intervenes to pursue justice and accountability during ongoing conflicts, they have helped to bring nuance and complexity to the ‘peace versus justice’ debate. In its relatively short life, the ICC has intervened in a number of ongoing conflicts, providing scholars with the opportunity to test how the pursuit of justice and accountability impacts whether or not a country will enjoy peace in both the short term and in the future. Scholars have been able to test the narratives advanced by commentators on both sides of the debate, looking for empirical evidence to support or negate those claims. But in addition to looking for evidence of positive or negative effects on peace, scholars have been able to explore what particular causal mechanisms play a role in influencing those outcomes and in which circumstances they are more likely to operate.

207 208 209 210 211 212 205 206

Ibid. Ibid. at 405. Ibid. Ibid. at 405–06. Ibid. at 406. Ibid. Ibid. at 408. Ibid.

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Peace and justice  305 The studies reveal several themes—some of which may be useful in making policy recommendations to the ICC and the international community more generally. First, the studies show that even when the evidence suggests the ICC may have impacted a result, conclusively attributing cause may not always be possible. The quantitative studies acknowledge this by including in their models measures for other factors that could also lead to observed outcomes. As noted, however, perfect measures are not always available to account for every factor that might influence behavior. The qualitative studies also demonstrate the difficulty of attributing cause given the confluence of factors at play in these complex situations of ongoing conflict. For instance, in his case study of Libya, Kersten suggests that government defections could be attributed to fear of being killed, as opposed to fear of being arrested by the ICC. Regarding the lull in killings by the LRA, Wegner suggests that the ICC only partially deterred violence because the facts also show that the LRA could have been using the pause to rearm and regroup. Broache finds that the ICC was responsible at least in part for perversely encouraging the rebels in the DRC to recommit to killing after the Lubanga killing. On the other hand, he notes that conflict and rebellion had already been brewing. Second, and relatedly, the findings from the case studies show the importance of context and the uniqueness of each situation in which the ICC intervenes when making claims about causal impact. Recall that in both of his case studies, Kersten finds that while the ICC may have influenced parties’ decisions about whether to engage in peace talks, the ICC was not the ultimate reason any talks failed. Based on his analysis of the evidence, he concludes that in the northern Uganda situation, neither side to the conflict was truly committed to a negotiated peace. In the Libya situation, Kersten finds evidence to support a conclusion that Qaddafi was always going to fight to the death. Third, the findings in the case studies suggest that the ICC may be more effective in producing a positive effect on peace if it receives strong and uniform support from the international community. Hillebrecht’s study, for example, produced some evidence that the ICC had a deterrent effect in Libya by reducing the number of casualties early in the conflict. She explains, however, that those more positive results happened at a time when the ICC enjoyed the backing of the international community with respect to intervention in that conflict. In his Sudan case study, Wegner illustrates how an absence of international support might undermine the ICC’s ability to produce a positive impact. He concludes that the ICC did not produce a positive impact on peace in Sudan. As support, he notes that even after the ICC intervened, al-Bashir continued to enjoy the support of strong allies, China and Russia. In fact, Wegner argues that the international community consistently failed to exert a uniform and coordinated pressure against the government to improve its behavior. Finally, the studies indicate that the ICC’s decision to target one side of the conflict or paint one side as more guilty may affect the possibility of a peaceful solution. Both Kersten and Wegner find some evidence in this regard. Kersten concludes that targeting the LRA and painting it as the more ‘evil’ party to the conflict in northern Uganda helped get the LRA to the negotiating table—to have a public forum to counter that narrative. With respect to Libya, Kersten posits that the ICC’s targeting of the government and Qaddafi as the ‘evil’ parties increased the resolve of the rebels and helped keep them from the negotiating table. Wegner makes a similar claim in his case study of Sudan. He suggests that the rebels in that situation also were less inclined to negotiate because the ICC’s narrative painted al-Bashir and his government as criminals who had committed genocide. In his Uganda study, Wegner argues that

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306  The Elgar companion to the International Criminal Court the ICC’s decision to pursue only one side of the conflict helped solidify a culture of impunity because it sent the message that the ICC had cleared the government of wrongdoing. In short, the studies show the futility of broad and overarching claims about the ICC’s impact on peace and violence. The studies show the complexity of the ICC’s effects and the need to consider history, context, and the influence of a confluence of factors before attributing to the ICC either a positive or negative impact on peace or violence.

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13. Re-narrating selectivity Asad G. Kiyani1

1. INTRODUCTION Every court is a public institution, serving some constituency or another through its exercise of jurisdiction over that public. Inevitably, these institutions become the subjects of multifarious and ongoing public debates shaped in part by the diversity of the constituencies they serve and the issues they adjudicate upon. With respect to the ICC, nowhere is that public debate more intense than with the question of whether the Court is a ‘selective’ one, and whether that selectivity matters to the Court’s legitimacy. For some observers, the Court is clearly selective and thus has lost or diminished credibility as a judicial body. For others, selectivity is an ordinary part of criminal justice systems, and so the fact of selectivity says little about the weakness of the Court and may even indicate that the Court is successful and legitimate. This chapter disputes both these perspectives on selectivity as reductive and misleading. Its analysis of the question of selectivity argues that traditional debates about selectivity at the ICC are deficient because the partisans employ an abridged view of what constitutes selectivity, and the effects of selectivity. There is a pervasive failure to recognize the multiple and diverse ways in which selectivity can present itself beyond the traditional geographic concern and instead manifest throughout the practice of international criminal law and the ICC. By the same token, the geographic myopia precludes consideration of the effects of selectivity on assessments of the Court. Even as some forms of selectivity present significant challenges to the normative foundations of the ICC and international criminal law, other forms of selectivity are unavoidable, others are necessary, and still others may even be beneficial. Rather than attempt to prove that selectivity occurs and therefore the ICC is a damaged institution, this chapter takes the position that selectivity is neither inherently good nor bad, contrary to the way it is used in public debates about the ICC. The issue, as Davis notes, is not whether selectivity happens, but when it is impermissible.2 At the same time, this chapter is careful to note the ways in which practices of selectivity at the ICC are not only controversial but may cause serious normative or pragmatic problems for the Court. The first part of the chapter outlines the traditional debates about selectivity. It sets out common critiques and responses which follow the general pattern laid out below. From one perspective, the most quintessential critique of the ICC—and indeed of most international criminal tribunals—is that it suffers from selection problems. The selective application of

I am grateful to Katelyn Leonard (JD 2019, Western) for her extensive research. Thanks are also due to Andrew Mendelson (JD 2019, Victoria) for his careful review, and to Natasha Affolder, James G. Stewart, Ben Perrin, Katia Coleman, Sujith Xavier, John Reynolds, Jerusa Ali and the participants at the 2015 TWAIL Conference in Cairo and the 2016 TWAIL Workshop at the University of Windsor for their helpful comments on an earlier draft. 2 K. K. Davis, Discretionary Justice: A Preliminary Enquiry (Baton Rouge: Louisiana State University Press, 1969), at 167–168. 1

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308  The Elgar companion to the International Criminal Court ICC jurisdiction to weaker, less powerful states, mainly located in Africa, is clear evidence that the ICC and international criminal law more broadly are Eurocentric, a tool of Western political power, and a mechanism for the continued marginalization of the Global South. The response to this position is to either dismiss the fact of selectivity—that is, to deny that there is any geographic disparity—or to dismiss the significance of it—to argue that, while it may exist, the geographic distribution of ICC work is relatively inconsequential. In addition, this rebuttal suggests that selectivity is perhaps a necessary feature of criminal law systems and the absence of selectivity—rather than its presence—is what observers should be concerned about. A selective Court, in this view, is a legitimate one. The second part begins the reconstruction of selectivity through an analysis of the various ways in which selectivity can and sometimes must be present in the structures and practices of the ICC. This part uses a new typology to outline selectivity’s various limbs, and to identify them not only in the ICC but to trace them in the practice of international criminal law in other domestic and international tribunals. This institutional intersectionality is necessary in order to illustrate the complex ways in which the selectivity features of different courts may interact in ways that generate new forms of selectivity or mitigate the selectivity of institutions with overlapping jurisdiction. Most importantly, it shows that assessing the legitimacy of a particular selectivity practice often requires situating the particular institution in question—in this case, the ICC—in a multi-institutional and multi-jurisdictional context. As a result, legitimacy challenges to the ICC on the basis of its selectivity must reflect on the way in which responsibility for the effects of such selectivity are to be apportioned. Finally, this chapter examines two selectivity practices that it argues are invariably problematic for the ICC, and for which it bears a great deal of individual institutional responsibility. It argues that the geographic distribution of cases is a problem for the ICC that cannot be lightly dismissed. Moreover, it argues that questions of geography aside, the ICC has given itself a serious legitimacy problem through its tendency in a number of situations and preliminary examinations to exempt certain parties to a conflict from international criminal jurisdiction whilst wholeheartedly pursing the opponents of the exempted parties. This group-based differentiation3 presents a normative problem for the Court, one that it cannot easily deflect because of the way in which that particular selectivity practice goes to the heart of ideals about liberal criminal law practice. As a result, the charge of selectivity—that is, the framing of selectivity as an inherent detriment for the Court—takes on a new gloss. Rather than being a variation on the idea that selectivity is a new way of describing the ICC as an imperialist institution, or international law as a colonial framework, this claim adopts a more nuanced view. It suggests that one of the flaws in the current selectivity discourse is the reduction of opposition to the ICC to a state-based debate. That is, one of the ways in which present discussion is misleading is that it pits certain states (usually less powerful African ones) against other states (usually wealthier Western states, but also other states that do not face ICC jurisdiction) and the ICC itself, ascribing moral qualities to participants depending on which side of the line they fall. This construct lends itself well to the familiar but sometimes misleading colonizer– colonized dichotomy that is often employed by critics of the ICC. In this chapter, I focus on a serious selectivity problem that arises not because of what happens between states, but within 3 A. G. Kiyani, ‘Group-Based Differentiation and Local Repression: The Custom and Curse of Selectivity’, 5 Journal of International Criminal Justice (JICJ) (2016) 939–957.

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Re-narrating selectivity  309 states. It is the interaction of the ICC with local legal and political actors and institutions that creates the most serious selectivity dilemma for the Court, but this interaction is obscured by the discourse that takes place at the inter-state and intergovernmental levels. That focus detracts from the ostensible central concern of governments and the ICC alike: whether the ICC’s exercise of international criminal jurisdiction actually works for, protects, and supports the individuals and groups within states who are affected by international crime, rather than whether it is viewed as legitimate or not by states or the ICC itself. This chapter concludes by arguing that the geographic argument is important but ultimately secondary to the question of selectivity within situations, which undermines the ICC’s claim that it enforces criminal law and is not the political partisan of any states or parties to a conflict. It is here, at the level of domestic conflict and politics, that the most damage is being wrought against the ICC’s credibility. As argued below, this is not a problem that is being mitigated. In spite of ICC claims to the contrary, it is worsening. Thus analysts and agents of the Court must start to consider whether this form of selectivity is a necessary component of the Court’s work, when and how it can be mitigated, and the consequences of not doing so quickly enough or at all.

2.

DEBATING SELECTIVITY AT THE ICC

2.A

The Mistreatment of African States and Leaders

The debates about selectivity at the ICC are surprisingly muted with one exception: that the Court is geographically biased against poorer, weaker, mainly African states. That debate has only really taken flight as a result of the 2009 indictment of Sudan’s President Omar al-Bashir for a variety of international crimes during the conflict in Darfur, including genocide as well as the crimes against humanity of the mass rape of thousands of women, mass killings, torture, and the forcible transfer of hundreds of thousands of civilians.4 Since that controversial step,5 a great volume of outrage and resistance has greeted the ICC’s steps in Africa. Al-Bashir visited a number of ICC States Parties without consequence, even as the ICC insisted those countries were obligated to arrest and transfer him to the Court.6 While it would be wholly 4 See Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Prosecutor v. Omar Hassan Ahmad Al Bashir (ICC-02/05-01/09), Pre-Trial Chamber I, 4 March 2009 (First Bashir Warrant) and Second Decision on the Prosecutor’s Application for a Warrant of Arrest, 12 July 2010 (Second Bashir Warrant). 5 Controversial because al-Bashir was, at the time, the sitting head of state of a country that has not ratified the Rome Statute. Indicting al-Bashir thereby appeared to violate the personal immunities that accrue to the office-holder of Sudan’s presidency under customary international law, as well as the customary rules of international law that preclude binding non-consenting states to treaties and that restrain the Security Council’s powers under Chapter VII of the UN Charter. See A. G. Kiyani, ‘Al-Bashir and the ICC: The Problem of Head of State Immunity’, 12 Chinese Journal of International Law (CJIL) (2013) 467–508. In a controversial decision, the Court ultimately ruled that his immunities were not violated. See Judgment in the Jordan Referral re Al-Bashir Appeal, Prosecutor v. Omar Hassan Ahmad Al Bashir (ICC-02/05-01/09-397-Corr), Appeals Chamber, 6 May 2019. 6 The Court has consistently found those States Parties that host al-Bashir (including Chad, Malawi and South Africa) to be in breach of their obligations under the Rome Statute. See Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply

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310  The Elgar companion to the International Criminal Court inaccurate (and racistly reductive) to say that all African states object to the ICC’s practices, there is certainly more vocal opposition to the ICC now than when African states enthusiastically began to ratify the Rome Statute nearly 20 years ago.7 Even states which have otherwise supported and cooperated with the ICC have been publicly critical of the Court. During his 2016 inauguration as Ugandan President (attended by al-Bashir, amongst others), Yoweri Museveni, for example, declared the ICC ‘a bunch of useless people’8 even as his government continued to cooperate with the Court over its prosecution of domestic political opponents.9 This case, the first ever for the Court, was self-referred to the ICC by the Museveni government in 2003.10 In retrospect, and as shall be suggested below, this apparent contradiction ought to have been seen as a red flag by both the Court and its observers, hinting as it does at both the domestic political instrumentalization of the Court’s coercive and legitimating authority, and at the ICC’s awareness of and possible complicity in the same. This primarily (but neither exclusive nor unanimous) African opposition to the ICC is rooted in the al-Bashir indictments and subsequent acts and decisions. The myopic attention paid to the African continent led the then-African Union (AU) Chairman (and Prime Minister of Ethiopia) to harshly rebuke the Court: ‘The intention was to avoid any kind of impunity … but now the process has degenerated to some kind of race hunting.’11 From the outset, the al-Bashir indictments have prompted calls of neo-colonialism: the Court’s targeting of weaker states proved it was ‘a tool for the

with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, Prosecutor v. Omar Hassan Ahmad Al Bashir (ICC-02/05-01/09), Pre-Trial Chamber I, 12 December 2011; Decision Pursuant to Article 87(7) of the Rome Statute on the Refusal of the Republic of Chad to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, Prosecutor v. Omar Hassan Ahmad Al Bashir (ICC-02/05-01/09), Pre-Trial Chamber I, 13 December 2011 and Decision Under Article 87(7) of the Rome Statute on the Non-Compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir, Prosecutor v. Omar Hassan Ahmad Al Bashir (ICC-02/05-01/09), Pre-Trial Chamber I, 6 July 2017. Other states visited by al-Bashir include Djibouti, Ethiopia and China (which was a member of the Security Council at the time that the Council referred Darfur to the ICC Office of the Prosecutor, and has twice hosted al-Bashir after he was indicted). See M. Moore, ‘Sudan’s al-Bashir Given Red Carpet Treatment by China’, The Telegraph (29 June 2011), and Reuters, ‘China welcomes Sudan’s war crime-accused leader as “old friend”’, Yahoo News (1 September 2015). 7 Senegal was the first state to ratify the Rome Statute on 2 February 1999. To this date, Africa remains the largest continental bloc of support for the ICC with 34 States Parties to the Rome Statute. See International Criminal Court Assembly of States Parties, The States Parties to the Rome Statute, ICC, available online at https://​asp​.icc​-cpi​.int/​en​_menus/​asp/​states​%20parties/​pages/​the​%20states​%20parties​ %20to​%20the​%20rome​%20statute​.aspx (visited 17 July 2017). 8 Associated Press, ‘Walkout at Ugandan President’s Inauguration Over ICC Remarks’, online: The Guardian (UK) (12 May 2016). 9 See ICC Press Release, ‘ICC President meets with President of Uganda’ (ICC-CPI-20170302PR1279), 2 March 2017 (ICC President thanked Museveni for his cooperation with the ICC and stated that ‘Uganda’s cooperation and support for the Court’s operations is and will remain crucial for the implementation of the Court’s mandate’); and L. O. Ogora, ‘Uganda’s Ambiguous Relationship with the ICC Amidst Ongwen’s Trial’, International Justice Monitor, 11 December 2017, available online at https://​www​.ijmonitor​.org/​2017/​12/​ugandas​-ambiguous​-relationship​-with​-the​-icc​-amidst​-ongwens​ -trial/​(visited 3 August 2019). 10 Situation in Uganda (ICC-02/04), Decision Assigning the Situation in Uganda to Pre-Trial Chamber II (5 July 2004). 11 ‘African Leaders Accuse ICC of “Race Hunt”’, Al-Jazeera, 28 May 2013.

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Re-narrating selectivity  311 exercise of the culture of superiority and to impose cultural superiority’;12 resistance to the Court was ‘a liberation movement against this new colonization’;13 the ICC was an ‘attempt by [the West] to re-colonise their former colonies’.14 While these arguments are undoubtedly self-interested and disingenuous to some degree— in that many state governments have an interest in limiting the ability of the ICC to indict their leaders, and that the rhetoric of colonialism is a powerful metaphor for resistance—it is telling that it is the geographic focus of the Court that anchors the claims of overall unfair treatment of African states. This alleged mistreatment includes criticism of the UN Security Council for not engaging with the AU on deferring prosecutions in Kenya15 and Sudan,16 and calls for states to either support greater African influence over the Court17 or to move away from the ICC entirely (by withdrawing from the Rome Statute, individually or en masse).18 Consider as well that the controversial referrals of Sudan and Libya to the Court included language that exempted from ICC jurisdiction international peacekeepers sent to those conflicts.19 Neither the OTP nor the Pre-Trial Chamber raised any issues with those exemptions, but two former Presidents of the Assembly of States Parties castigated those terms,20 suggesting that the AU ought to have legitimate concerns. From the perspective of African leaders, they are being told that regardless of whether or not they accept the jurisdiction of the Court, they are subject to it even when in the territory of their home state, but foreign troops acting on that same territory are exempted. In this light, it is perfectly understandable that African states are declaring a return of colonialism given that the Security Council and ICC both accept the idea that foreign states get to decide what law is applicable to them while on the territory of another state, while that state has no choice in what law applies to its own people and leadership on its own territory. As Jean Ping, then-Chairperson of the AU Commission noted, ‘we see that international justice seems to be applying the rules of the fight against impunity only in Africa as if nothing were happening elsewhere’.21 Years later, this continuing claim of a

S/PV.5158, 31 March 2005 (Sudan’s Ambassador to the UN, speaking during the Security Council debate on whether to refer the situation in Darfur to the ICC). 13 N. MacFarquhar and M. Simons, ‘Bashir Defies War Crime Arrest Order’, 5 March 2009, available online at https://​www​.nytimes​.com/​2009/​03/​06/​world/​africa/​06sudan​.html (visited 12 July 2017). 14 Then-Libyan President Muammar Gaddafi, quoted in BBC News, ‘Sudan Leader in Qatar for Summit’, available online at http://​news​.bbc​.co​.uk/​1/​hi/​world/​africa/​7970892​.stm (visited 12 July 2017). 15 See e.g., Decision on International Jurisdiction, Justice and the International Criminal Court (ICC), Assembly/AU/Dec. 482(XXI). 16 See C. Jalloh et al., ‘Assessing African Union Concerns About Article 16 of the Rome Statute of the International Criminal Court’, 4 African Journal of Legal Studies (2011) 5–50. 17 Including by presenting united support for particular African judicial candidates. See Decision on the Implementation of the Decisions on the International Criminal Court (ICC), Assembly/AU/ Dec.419(XIX). 18 ‘Sudan says AU to agree on mass withdrawal from ICC’, Sudan Tribune (24 May 2013). 19 See e.g., Resolution 1970, adopted by the Security Council at its 6491st meeting on 26 February 2011, UN Doc. S/RES/1970(2011), paras 4–7. 20 M. Kersten, Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace (Oxford University Press, 2016), at 179–180. 21 Agence-France Presse, ‘Soudan: l’Union African veut interrompre la procedure contre Al-Bachir’, 4 March 2009, available online at https://​www​.lemonde​.fr/​afrique/​article/​2009/​03/​04/​soudan​-la​-decision​ -de​-la​-cpi​-inquiete​-l​-union​-africaine​_1163310​_3212​.html (visited 12 July 2017) (author’s translation). 12

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312  The Elgar companion to the International Criminal Court ‘double standard’22 is unsurprisingly how selectivity is ordinarily understood with respect to the ICC. 2.B

Denial and Acceptance: The Defence Against and Acceptance of Selectivity

While rebuttals against the charge of selectivity are common, very few approach the question on its merits. Rather, the most frequent response is to characterize the complaints as disingenuous objections lacking a legal or normative foundation. Instead of being understood as legal agents, those who claim selectivity are in turn restrictively defined in a narrow sense as morally deficient political actors advocating in their own self-interest.23 In truth, the resistance described above is best understood as being in a liminal space, the product of both a clash of legal norms and a clash of political interests.24 Serious engagement with the question of selectivity has followed one of two tracks. The first is the denial of selectivity altogether, either because of African participation in and representation at the Court,25 or because of the prevalence of crimes in Africa.26 There is some truth to this: of all the situations being investigated in Africa, only Libya, Kenya and Sudan are not self-referrals. What is the Court to do when states themselves request its assistance or intervention in respect of international crimes that, on their face, all warrant attention? On the other hand, just as it is somewhat disingenuous of certain African leaders to raise hue and cry about the biases of the ICC, it is disingenuous for this claim of self-referral to suffice as a rebuttal to charges of selectivity. Those self-referrals did not arise in a vacuum and without the knowledge or participation of the Court in their preparation or solicitation. Uganda and the Democratic Republic of Congo were the first two states to self-refer situations to the Court, but they only did so after pressure from the Office of the Prosecutor (OTP), which had clearly hinted at the possibility of using its own proprio motu powers to

I. Déby, then-President of the AU. ISS, ‘Top talking points from the AU summit’, 8 February 2016. 23 See e.g., D. Tutu, ‘In Africa, Seeking a License to Kill’, New York Times, 10 October 2013, available online at https://​www​.nytimes​.com/​2013/​10/​11/​opinion/​in​-africa​-seeking​-a​-license​-to​-kill​.html (that African leaders ‘are effectively looking for a license to kill, maim and oppress their own people without consequence’) (visited 12 July 2017); C. Booth and M. du Plessis, ‘Africa’s obstruction of justice’, 18 July 2008, The Guardian (UK), available online at https://​www​.theguardian​.com/​commentisfree/​2009/​ jul/​18/​darfur​-bashir​-african​-union​-icc (visited 12 July 2017); P.-P. Singh, ‘AU Should Stand With Victims, Not Abusers’, Human Rights Watch, 18 August 2009, available online at hrw.org (visited 12 July 2017). 24 J.-B. J. Vilmer, ‘The African Union and the International Criminal Court: Counteracting the Crisis’ (2016) 92 International Affairs 1319–1342, at 1325. 25 The first Chief Prosecutor of the ICC, Luis Moreno-Ocampo, has cited, inter alia, the number of States Parties from Africa, the number of African judges on the bench, the number of suspects surrendered from African countries, and self-referrals from African States Parties as evidence that African states are supporters of the Court, rather than its victims. ‘Luis Moreno Ocampo Responds to Questions from Workshop Participants’, FacingHistory.org, December 2009, available online https://​www​.facinghistory​ .org/​reckoning/​luis​-moreno​-ocampo​-responds​-questions​-workshop​-participants (visited 3 August 2019). 26 Moreno-Ocampo later claimed that ‘just like [Sudanese President] Bashir, there are many African leaders who are using systematic violence to stay in power’. In his view, the selectivity argument is a cover up that is tantamount to ‘denial of the Holocaust’. L. Moreno-Ocampo, ‘From Brexit to African ICC Exit: A Dangerous Trend’, JustSecurity.org, 31 October 2016, available online https://​ www​ .justsecurity​.org/​33972/​brexit​-african​-icc​-exit​-dangerous​-trend/​ (visited 3 August 2019). 22

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Re-narrating selectivity  313 launch investigations instead.27 The power of the OTP to act independently of states and the Security Council quickly became a tool for pressuring states to cede jurisdiction to the Court.28 Solicitation was a feature of a number of other ‘self-referrals’, including Côte d’Ivoire, Central African Republic, and Kenya; Kenya’s refusal to self-refer led to the OTP actually exercising its proprio motu power.29 Similarly, the authority of the Security Council to refer matters to the Court under the Rome Statute does not include a requirement that the prosecutor agree to prosecute those referrals, or that the Pre-Trial Chamber approve further investigations and warrants of arrest. In other words, the OTP’s decision-making remains central regardless of how the situation in question comes before the Court. Any defence of selectivity that turns on the supposed lack of agency or decision-making of the OTP is therefore misleading; the Court’s agents are invariably involved in shaping its agenda even when the jurisdictional mechanism employed is nominally a state or Security Council referral as opposed to a proprio motu investigation. Though the OTP is not solely responsible for selectivity problems at the Court, and though it cannot prevent all forms of selectivity, it remains an influential agent. The second defence of selectivity is not its denial, but the acceptance of selectivity as a normal feature of all criminal courts.30 In this view, ‘selectivity’ is a positive attribute of all legitimate courts that profess to adhere to liberal criminal law practices, rather than the insult that the Court’s detractors intend it to be. This argument carries strength because it grounds itself in the practices of Western liberal criminal law courts and prosecutors who are enforcing domestic criminal laws and who routinely practise some forms of selectivity. Perhaps most obviously, domestic criminal courts do not prosecute every single offender, or seek justice for every single crime. Even German criminal law, which ordinarily attempts to avoid the charge of selectivity bias by requiring that all offences be prosecuted, permits the authorities some leeway.31 While we might fairly characterize these practices as selective, they would not necessarily draw our ire. Sometimes this selectivity results because a strict policy of prosecuting every bicycle thief or drug user would overwhelm law enforcement and judicial resources. Alternatively, formal criminal justice might itself result in some degree of injustice to the perpetrator, given the severity of the crime (or lack thereof). Thus, while the ‘peace versus justice’ debate is perhaps unique to ICL, it is true that in domestic law many crimes are not prosecuted 27 J. Stigen, The Relationship Between the International Criminal Court and National Jurisdictions (Leiden: Martinus Nijhoff Publishers, 2008), at 246. 28 C. Gallavin, ‘Prosecutorial Discretion Within the ICC: Under the Pressure of Justice’, 17 Criminal Law Forum (2006) 43–58, at 43–44. 29 Request for authorization of an investigation pursuant to Article 15 (Situation in the Republic of Kenya) (ICC-01/09-3), 26 November 2009. 30 See M. Damaška, ‘What Is the Point of International Criminal Justice?’, 83 Chicago-Kent Law Review (2008) 329–365, at 360–361 (‘All terrestrial justice is in this sense selective, and only divine justice on Judgment Day will be all-encompassing’), and R. Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge: Cambridge University Press, 2005), at 192 (‘it is essentially impossible’ that selectivity does not occur). 31 See K. Ambos, ‘Comparative Summary of the National Reports’ in L. Arbour et al. (eds), The Prosecutor of a Permanent International Criminal Court (Freiburg: Edn Iuscrim, 2000) 495, at 505–509; H.-H. Jescheck, ‘The Discretionary Powers of the Prosecuting Attorney in West Germany’, 18 American Journal of Comparative Law (1970) 508–517; and M. Bohlander, Principles of German Criminal Procedure (Oxford: Hart Publishing, 2012) 25–26.

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314  The Elgar companion to the International Criminal Court because they are not seen as serious enough, or are diverted to alternate mechanisms—such as special programmes for drug users and youth offenders—to avoid the stigma and punitive outcomes of formal trials. Also, there may be disagreement as to what conduct ought to be legislated as criminal—the debate between under- and over-criminalization is seemingly constant, as lawmakers criminalize anti-social behaviour and posit ‘security’ as the basis for ever-greater criminalization. Selectivity—in the laws to be applied, in the crimes to be addressed, in the offenders to be punished—actually occurs rather frequently in domestic law. This defence of concordance explains away selectivity at international tribunals on the basis that selectivity is in fact quite common in, if not intrinsic to, most domestic criminal systems. If this selectivity is an ordinary feature of liberal democratic states, where the criminal law system is generally understood to be independent, fair and unbiased, then—so the argument goes—the selectivity complaint cannot have much purchase in the international arena.32 In this understanding, selectivity does not offer evidence of the frailty of a legal system; if anything, it demonstrates concordance between ICL and domestic regimes that offer robust protections of fair trial rights, and a strong sense of impartiality and independence.33 Selectivity is thus evidence that, far from being exceptional, ICL actually parallels defensible and everyday domestic criminal law. These, then, are the three dominant narratives around selectivity at the ICC. The first is one that emanates from states suspicious of the ICC, and which see the Court’s overt and extensive attention to crimes in Africa as proof of its bias and partiality. In this view, this geographic selectivity undermines the Court’s claims to neutrality and supports the larger criticism that the ICC and international criminal law generally are neo-colonial instruments of the Western world used to control the political scene within states finding themselves subject to ICC jurisdiction. While this particular account of selectivity is contested as being untrustworthy because of the self-interest of the state actors involved in making the claims of neo-colonialism, it has also been contested on its merits. The counter-narrative is that, if there is any selectivity, it has little to do with the Court; it is the subject States Parties themselves which are repeatedly directing the Court’s attentions to African states. As such, whatever may be said about selectivity at the Court, responsibility for the failings cannot be laid at the feet of the ICC. Rather, the Court is simply following the wishes of its member states in an impartial fashion. The problem with this narrative of selectivity is that it undersells the influence and decision-making authority of the OTP, which has leveraged its proprio motu powers—and, as shall be argued below—other aspects of its institutional capacity in order to mould the Court’s docket. Understood in this way, the charge of selectivity still has some traction, and still tarnishes the Court. This leads to the third and final narrative, one that recognizes the need for a normative reframing of selectivity as an integral and defensible component of liberal criminal justice. In this understanding, selectivity is not only omnipresent but often desirable,

A. Altman and C. H. Wellman, A Liberal Theory of International Justice (Oxford: Oxford University Press, 2009), at 91 (analogizing selective prosecution of international crimes to selective prosecution of speeding drivers). 33 Cryer, supra note 30, at 291 (‘It is practically impossible for the international criminal law regime to achieve perfect compliance with rule of law standards and be perfectly consistent. National criminal law systems do not achieve full compliance with such standards, and they operate in an environment that is far more conducive to fulfilling such criteria.’). 32

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Re-narrating selectivity  315 given that it mediates the reach of criminal law, allowing prosecutors to limit the number of low-level offenders who are stigmatized as criminals, and ensuring that only serious conduct is criminalized. Tempting as this solution sounds, it remains imperfect. There is a difference between deciding which crimes or which individuals to prosecute, and determining the geographic area where prosecutions of said crimes and individuals will and will not occur. The charge of geographic selectivity—to the extent it has any purchase—remains. These narratives talk past one another, but in doing so they expose a heretofore underexplored dimension of international criminal courts and tribunals: that they are rife with selectivity in multiple dimensions of their rules, structures, and practices, and these various forms of selectivity have cross-cutting effects and complicate attempts to assign responsibility for them. Already, three forms of selectivity have been roughly sketched out: selectivity about which individuals are prosecuted, which crimes are prosecuted, and where those prosecutions are initiated. Further delineating, refining and historically situating this complex structure of selectivity is the task to which this chapter now turns.

3.

A MULTIDIMENSIONAL VIEW ON SELECTIVITY

While there has been a great deal of debate about selectivity in international criminal law, there has been relatively little attention paid to it as a problem of criminal law specifically. Rather, the bulk of the interest in selectivity seems to parallel debates about the methods and histories of public international law, and the subordination of international criminal law to the power politics and colonial histories of public international law. Argument about the instrumentalization of the ICC as a tool of the West, as a means of recolonization, and as a means of promoting cultural superiority are all arguments about public international law’s complicated and problematic history with the Global South. By extension, defences of the ICC that point to the autonomy or independent decision-making of African states who self-refer situations to the Court are defences that take the critique on its own terms and attempt to differentiate the practice of international criminal law from the thorny history of public international law. This section does not deny the salience of these debates—and indeed, in Section 4, this chapter will merge the analysis here with public international law critiques. However, this part of the chapter is focused on establishing selectivity as a feature of multiple dimensions of international criminal law that is primarily concerned with the structures of criminal law systems. Performing this particular analysis moves the selectivity discussion in a direction that has largely been overlooked in the recent literature, although without foreclosing the need for interrogating selectivity as a problem of public international law. Indeed, if selectivity is a problem, then public international law will have an important role to play in attempts to reform or mitigate those problems. Not all scholars consider selectivity in purely geographic terms. McCormack identifies a ‘dual selectivity’ in ICL. The first selectivity is the choice of what crimes are to be prosecuted, and the second is the choice of which actors are to be prosecuted.34 This selectivity is, in McCormack’s view, a product of the lack of planning and foresight that characterized the 34 T. L. H. McCormack, ‘Selective Reaction to Atrocity: War Crimes and the Development of International Criminal Law’, 60 Albany Law Review (1996–1997) 681–732, at 683.

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316  The Elgar companion to the International Criminal Court early development of international criminal law.35 Worried about the obvious consequences of implementing international criminal jurisdiction over one’s opponents—that one’s own armies might someday be subject to the same jurisdiction—states were reluctant to seriously study and commit themselves to a considered, coherent approach to what we now call international criminal law. This self-interest and lack of foresight meant that gaps and inconsistencies—and by implication, selectivity—were inevitable. International criminal law and its institutions grew in fits and starts, birthing and killing institutions in a relatively short period of time, drawing law from culturally specific sources, and continually reshaping ‘international’ criminal law without fully involving the international community by leaving it primarily up to judges to reinterpret a sparse jurisprudence and patchwork of statutory and customary international law rules. Given little guidance, and often little assistance from states and organizations that established some tribunals but resisted others, or that lent support in name only, it is no wonder that international criminal tribunals continually failed to eliminate selectivity from their work. While McCormack’s diagnosis of where selectivity originates is helpful, it is not clear that this is the full explanation of why selectivity occurs. Nor is it clear that selectivity within the two categories he mentions (what is to be prosecuted, and who is to be prosecuted) is a complete story of selectivity in international criminal law. As noted above, while these are certainly important examples of selectivity, they are neither exhaustive, nor are they fine-grained enough. Selectivity about actors can result from several different sources, meaning responsibility for those choices rests with different actors and leads to differing normative consequences. Moreover, as Cryer suggests, the choice of which principles of liability and defence are used by an ICT is another example of selectivity.36 The suggestion here is that selectivity can arise in a way that limits the ability of judicial or legal actors to prosecute any and all crimes. That is to say, and as detailed below, selectivity is not just a question of who and what the prosecutor chooses to prosecute; it is also a question of what pre-existing limits are placed on the prosecutor (and other participants) in the international criminal tribunal in question. At the same time, Cryer’s description is susceptible to similar criticism as McCormack’s account—it maps out trends over time without noting the different sources of selectivity, or the full variety of selectivity practices. It matters, for example, whether an international criminal tribunal fails to investigate a particular conflict or actor because it is statutorily precluded from doing so, or because its prosecutors exercise their discretion to not investigate. When thinking about selectivity, its normative consequences, and whether and how it can be remedied, one must be conscious of where that selectivity originates. As we shall see, not all selectivity may be easily remediable given the multiplicity of actors who share responsibility for the lacunae that result in tangible acts or omissions we characterize as ‘selectivity’. In what follows, I outline a structure of selectivity in international criminal law that is built on two key branches of selectivity—selectivity in the design of the institution in question, and selectivity in the subsequent operation of the institution. Understanding the different ways in which selectivity manifests itself, and which agents of the Court have influence over that selectivity, ought to affect the analysis of whether the Court is acting impartially, is doing its best to remedy the selectivity in question, or whether that particular feature of selectivity is even a problem at all. Ibid. Cryer, supra note 30, at 191.

35 36

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Re-narrating selectivity  317 3.A

Design Selectivity

One of the key flaws in contemporary narratives of selectivity at the ICC is the tendency to focus on the OTP as the near-exclusive manufacturing site of selectivity practice. This is understandable. After all, it is the OTP that has the greatest influence over which states to investigate, what parties to charge, and what to charge them with. Yet focusing selectivity analyses and reform on the OTP (and to a lesser extent, the UN Security Council’s decision-making through its Rome Statute referral powers) misses the ways in which the OTP’s decision-making is constrained, directed or even irrelevant to selectivity practices at the Court because of how the Court was designed: certain decisions simply are not available to be made by the OTP. In this understanding, selectivity is a phenomenon that—contrary to the common understanding of questionable exercises of prosecutorial discretion—can also arise as the parameters of a court or tribunal are being established. Thus the Rome Conference and its negotiations may be a key source of selectivity practices at the ICC, even though those deliberations concluded some four years before the Court came into operation and the OTP had any decisions to make about whom to prosecute and for what crime. The decisions made by international organizations, human rights advocates, states that favoured the ICC, states that resisted the Court, states that did or did not support a role for the UN Security Council, that wanted apartheid included as a crime under the Rome Statute and that did not, all coalesced to produce a very specific understanding of international crime and how to respond to that crime. The compromises inherent in negotiating an international treaty invariably led to limits in the final statute of the Court. Laying blame for any resultant selectivity practices at the feet of the OTP would be unwarranted, just as it would be unwarranted to ignore these aspects of the Court as not contributing to or representing selectivity in a meaningful way. 3.A.1 Material selectivity In this light, there is something significant, if unintentional, about the charge of neo-colonialism and cultural specificity that has been levied against the Court. The ICC continues the tradition of establishing international criminal tribunals in the mould of Western liberal criminal laws, where the only real choice to be made in establishing a tribunal is between Western common law or Western civil law rules. Similarly, the crimes that were initially included in the Rome Statute represented certain priorities that favoured Western interests by, for example, putting drug crimes to one side even though it was concern about the international trade in illicit narcotics that provided the impetus for an international criminal regime in the early 1990s, or by failing to include aggression as a crime in the first iteration of the Rome Statute. These are issues that have nothing to do with the question of who is having the law enforced against them, but represent gaps in the international criminal law regime that exist irrespective of the geographic focus of the Court. These lacunae would exist even if every génocidaire in the world were prosecuted by the Court because they are questions about what constitutes an appropriate level of violence or harm to qualify certain conduct as an international crime. To be sure, there is an implied geographic component here as well. Imagine, for example, how many Western states would be investigated if the only crime under the Court’s jurisdiction was the enlistment, recruitment or use of child soldiers. Nonetheless, the responsibility for that selectivity practice would lie other than with the OTP.

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318  The Elgar companion to the International Criminal Court Choices about what to consider as an international crime, or what agreed-upon international crimes to include or exclude in the Court’s statute, represent material selectivity: selectivity that has to do with the subject-matter jurisdiction of the Court. Historically, this has been a clearer problem than with the ICC. For example, after World War II, no Axis or Allied powers were charged for the mass and indiscriminate bombing of civilians that took place on both sides of the war. While that conduct might not have been recognized as a crime then, it would surely now be viewed as war crimes under Article 8(b)(i) and (ii) of the Rome Statute. This is not to say that the Rome Statute has erased the problem of material selectivity. In recent times, there has been argument that international crimes are too restrictively focused on the spectacular, kinetic violence of war and fail to account for the ‘delayed-action casualties’ of ‘slow violence’37 such as environmental damage, the effects of international sanctions, and the residue of chemical, nuclear and other weapons. None of these crimes has been prosecuted before, and not all are clearly within the jurisdiction of the Court. Clearer examples of material selectivity nonetheless arise at the ICC. As noted above, the crime of aggression was not initially defined in the treaty, and it will only take effect for States Parties who either consent to be bound by the prohibition, or lack veto power at the Security Council.38 Also, aspects of the trade in illicit narcotics remains outside the purview of the Rome Statute, notwithstanding the centrality of that crime to the genesis of the ICC. Very real and significant debates at the Rome Conference led to specific choices about what to exclude from the Statute. Perhaps curiously, whether or not apartheid should be included in the Rome Statute was one of these debates. While the Apartheid Convention39 had been widely ratified by states in the Global South, it had largely been ignored not only by great Western powers such as the US and UK, but other Western states that are otherwise seen as more sanguine or progressive in domestic and foreign policy.40 Apartheid had not been specified in the Draft Code of Crimes Against the Peace and Security of Mankind,41 the International Law Commission’s document that formed one of the bases for the Rome Statute, and so it had to be proposed for inclusion at the Rome Conference itself. This omission was nonetheless striking given widespread ratification of the Apartheid Convention, that apartheid was already a grave breach of Additional R. Nixon, Slow Violence (Cambridge, MA: Harvard University Press, 2011). This consent is shown by opting-in to the new aggression provisions. States Parties must ratify the necessary amendments to the Rome Statute before the ICC can assume jurisdiction (in cases of state referrals or proprio motu investigations). Security Council referrals are not limited in this way; they can lead to aggression cases against any state, whether the state in question has ratified the amendments or not. See: Arts 15bis and 15ter, ICCSt., and ‘Draft resolution proposed by the Vice-Presidents of the Assembly: Activation of the jurisdiction of the Court over the crime of aggression’ (ICC-ASP/16/L.10*), 14 December 2017. It should be noted, however, that the resolution is to be used to interpret the ICCSt. provisions. As Dapo Akande suggests, judges at the ICC should, but might not, use the ASP resolution when adjudicating the meaning of Art. 15bis(4) in particular. D. Akande, ‘The International Criminal Court Gets Jurisdiction Over the Crime of Aggression’, EJIL: Talk!, 15 December 2017, available online at https://​www​.ejiltalk​.org/​the​-international​-criminal​-court​-gets​-jurisdiction​-over​-the​-crime​-of​ -aggression/​(visited 3 August 2019). 39 International Convention on the Suppression and Punishment of the Crime of Apartheid, G.A. Res. 3068 (XXVIII)), 28 UN GAOR Supp. (No. 30) at 75, UN Doc. A/9030 (1974), 1015 U.N.T.S. 243, entered into force 18 July 1976. 40 This list includes Canada, Belgium, Sweden, the Netherlands and Norway. 41 After much resistance from Western states, the Commission eventually produce a draft code that included ‘institutionalized racial discrimination’ but not apartheid itself. Rep. of the Int’l Law Comm’n, 48th Sess., 6 May–26 July 1996, p. 49, UN Doc. A/51/10; UN GAOR 51st Sess., Supp. No. 10 (1996). 37 38

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Re-narrating selectivity  319 Protocol I,42 and its condemnation in a variety of UN General Assembly Resolutions.43 That apartheid (along with aggression) was eventually included as a crime in the Rome Statute may, in retrospect, seem to be a fait accompli that corrected a historical mistake—the exercise of Western power in furtherance of Western self-interest—but the questions still persist. The Oxford Companion to International Criminal Justice describes apartheid as a ‘so-called crime’44 and its presence in the Rome Statute has been questioned by several scholars of international criminal law.45 One of the unusual effects of including apartheid in the Rome Statute is that, if the crime is ever prosecuted robustly, it may exacerbate a common form of selectivity. Almost by definition, the perpetrator of apartheid must be a state (or more correctly, a state agent). Prosecution of that crime, therefore, will disproportionately (if not exclusively) lie against states and their officials. While this is surely a form of selectivity, it is not one that would necessarily cause commentators or observers to lose sleep, given the horrendous nature of the crime. On the other hand, excluding apartheid from the Rome Statute might lead to a bizarre situation in which those who suffer apartheid are internationally liable for resisting it through prohibited means of violence, while those who inflict are not able to be punished for the systematic infliction of apartheid’s horrors on a civilian population. Similarly, not criminalizing aggression would lead to potential criminal liability for those who resist aggressive war, while limiting the possibility of punishing the aggressors for their choice to start an armed conflict.46 Choices about subject-matter jurisdiction thus play an important role in defining the contours of selectivity because they are choices about what conduct is worthy of condemnation, and secondarily about what actors are worth of condemnation. 3.A.2 Procedural selectivity The natural partner of material selectivity—the issue of what conduct is to be criminalized—is procedural selectivity: the issue of what procedures are to be followed when investigating and prosecuting that conduct. Questions about the procedural design of international criminal tribunals have been ever-present through the modern history of international criminal law. A difference in criminal procedure was part of the basis for continued antagonism and recriminations after World War I. Germany, Britain and France each engaged in war crimes trials that used procedural differences to help validate the outcomes of their respective war crimes trials.47

42 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Art. 85(4)(c), 8 June 1977, 1125 U.N.T.S. 3. 43 See C. K. Hall, ‘The Crime of Apartheid’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (München: Beck, 2008) 227, n326–27. 44 A. Zahar, ‘Apartheid as an International Crime’, in A. Cassesse (ed.), The Oxford Companion to International Criminal Justice (Oxford: Oxford University Press, 2009) 245−246, at 245. 45 For a detailed analysis of the debate around apartheid and the Draft Code of Crimes, see A. G. Kiyani, ‘International Crime and the Politics of Criminal Theory: Voices and Conduct of Exclusion’, 48 New York University Journal of International Law and Politics (2015) 127–206. 46 While both parties would be equally liable for their conduct during the war, no one would be punished for the crime of starting the war, thus framing all participants as equally culpable or criminal. 47 J. G. Stewart and A. G. Kiyani, ‘The Ahistoricism of Legal Pluralism in International Criminal Law’, 65 American Journal of Comparative Law (2017) 393–449.

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320  The Elgar companion to the International Criminal Court Since that time, international criminal law has struggled with its claim to internationality, the need for a standardized criminal procedure, and the deficiencies with the straight transplant of domestic models to international tribunals. The answer has largely been to fuse particular elements of common and civil law rules of procedure, in response to concerns that neither on its own is adequate or appropriate for large-scale trials involving extended liability claims and huge volumes of evidence.48 Yet even this compromise approach is contestable, given its exclusionary basis. International criminal procedure is not a synthesis of global domestic criminal procedure, but the integration of a very narrow range of approaches drawn primarily from a few Anglo-European jurisdictions.49 Non-Western criminal law systems have been virtually erased from international criminal procedure,50 and it is this history that has largely been transferred to the ICC. Similar questions can be raised about other aspects of the Rome Statute. The inability of the Court to prosecute corporate actors for crimes such as pillage rests, in part, on the choice to not include corporate criminal liability as a mode of attribution under the Statute. While there is no international standard for identifying corporate criminal liability, that certainly has not stopped international criminal tribunals from developing definitions of crime and modes of attribution for individuals that similarly lack international agreement. Indeed, it may be that corporate criminal liability is best addressed by a more flexible approach than a static one.51 Nonetheless, the choice has been made and prosecutors are limited in their approach to certain actors and conduct. These decisions about how to manage criminal trials play an important role in shaping investigations, prosecutions, and adjudication of international criminal trials. 3.A.3 Geographic selectivity As outlined above, the primary selectivity-related concern that has been raised with respect to the ICC has been that it is geographically selective: it overwhelmingly prosecutes in Africa, when there are international crimes being committed around the world. This predilection for Africa, so the argument goes, delegitimizes the ICC in particular ways, exposing its institutional biases and undermining its claim to give effect to the values of criminal law. It is important to note, however, that not all geographic selectivity is created equally. While geographic preferences are a feature of a number of international criminal tribunals, some of those tribunals have their geographic reach statutorily circumscribed. The allegation against the ICC is slightly different, in that the ICC in theory has jurisdiction over most of the globe, but has chosen to disproportionately investigate and prosecute in Africa. When statutes are the source of the geographic selectivity, there is no discretion for the authorities of the tribunal to exceed those limits even if it would negate or minimize selectivity concerns. Also, it becomes harder to lay responsibility for selectivity at the feet of those actors given that these limits are

See e.g., I. Bonomy, ‘The Reality of Conducting a War Crimes Trial’, 5 JICJ (2007) 348–359; D. Groome, ‘Re-evaluating the Theoretical Basis and Methodology of International Criminal Trials’, 25 Penn State International Law Review (2007) 791–802; and G. Nice and P. Vallières-Roland, ‘Procedural Innovations in War Crimes Trials’, 3 JICJ (2005) 354–380. 49 See Stewart and Kiyani, supra note 47. 50 D. M. Amann, ‘Harmonic Convergence? Constitutional Criminal Procedure in an International Context’, 75 Indiana Law Journal (2000) 809–874, at 851–862. 51 See e.g., J. G. Stewart, ‘A Pragmatic Critique of Corporate Criminal Theory: Lessons from the Extremity’, 16 New Criminal Law Review (2013) 261–299. 48

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Re-narrating selectivity  321 not defined by prosecutors or judges, but were created prior to the tribunal’s operation by the drafters of the statute in question. This is not to say that statute-sourced selectivity presents no problems. Examples of tribunals with statutorily delimited geographic selectivity include the Special Court for Sierra Leone (SCSL) and the International Criminal Tribunal for Rwanda (ICTR). In both of those situations, the conflict in question stretched across borders and beyond the geographic limits imposed on the tribunals. While the SCSL acted as an international tribunal for crimes committed in Sierra Leone, it lacked jurisdiction over those crimes committed in Liberia,52 which was part of the same conflict and where Charles Taylor ruled. Taylor has been convicted and sentenced by the SCSL, but only for crimes committed in Sierra Leone itself.53 The result is that Liberia-based victims of Taylor (and other participants in the conflict) have yet to witness any international (or, as it turns out, domestic) accountability for crimes in Liberian territory. It is understandable that some victims might view the distinction as an arbitrary one. By contrast, the ICTR did not have as strict a geographic limit. It focused on offences committed within Rwanda, as well as those committed by Rwandan citizens in the territory of neighbouring states.54 In this way, the Statute recognized the irrelevance of borders to the conflict, and took some steps towards ensuring that at least some cross-border perpetrators could be held to account by the ICTR. The ICC has the broadest geographic mandate of any tribunal, given that unlike ad hoc and hybrid tribunals, it is intended not for any specific conflict. Rather, the geographic reach of the ICC includes all of its member states, and potentially any state in the world if one reads the UN Security Council referral power broadly.55 As such, the failure to pursue investigations that reflect this jurisdictional breadth have been used to delegitimize the Court, most paradigmatically by pointing at its alleged ‘Africa bias’.56 3.A.4 Temporal selectivity The final aspect of design selectivity is a corollary to geographic selectivity. Tribunals are often limited in their ability to examine historical conduct that is antecedent to the establishment of the tribunal in question. This temporal selectivity narrows the range of conduct that can be investigated by putting strict time limits on the jurisdiction of the tribunal. In Rwanda, for example, the ICTR is limited to events that occurred in the 1994 calendar year.57 As a result, any related acts that took place before58 or after 199459 are excluded by the Statute. Thus under-

Art. 1(1) SCSLSt limits the Special Court’s jurisdiction to crimes that took place ‘in the territory of Sierra Leone’. 53 Judgment, Prosecutor v. Charles Ghankay Taylor (SCSL-03-01-T), 18 May 2012. 54 Art. 1 ICTRSt. 55 Art. 12(2) of the Rome Statute limits the scope of geographic jurisdiction only where a State Party self-refers a situation, or the prosecutor initiates a proprio motu investigation, but not where the Security Council refers a situation to the Court. Whether the Council is actually permitted to refer a situation in a non-State Party is a contested question. See Kiyani, supra note 5. 56 As of August 2019, the Court has only ever confirmed indictments against Africans accused of crimes within the African continent. 57 Art. 1 ICTRSt. 58 Such as preparatory acts including mass killings. 59 Such as retaliatory acts by Tutsis against Hutus after the end of 1994. 52

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322  The Elgar companion to the International Criminal Court standings of and accountability for the Hutu-led genocide are necessarily constrained, as are those of the Tutsi-led response which has itself been characterized as a ‘counter-genocide’.60 Yet there is good reason to insist on at least some temporal restrictions—it avoids the problem of retrospective criminal law applied to actors who were unaware at the time that their acts were criminal. For this reason, no conduct that took place prior to 1 July 2002 can be prosecuted at the ICC.61 This is true even if the conflict in question originated before that date, as in the Democratic Republic of Congo (DRC). The ICC assumed jurisdiction over that situation in June 2004 but cannot examine its antecedent acts. Of course, this includes spillover from the 1994 Rwanda genocide, which played a key role in the DRC conflict. Here, the two statutes of the ICC and ICTR combine to create a large gap in accountability and redress even though these two tribunals are ostensibly tasked with responding to a large intersecting conflict. Again, through no fault of the prosecutors of either tribunal, both institutions are precluded from acting on international crimes that clearly took place. If anything, the responsibility lies with the drafters of the respective statutes and, given the rule against ex post facto law, primarily with the UN Security Council’s inaction on expanding the temporal mandate of the ICTR. 3.B

Operational Selectivity

The primary distinguishing feature of design selectivity is that the selectivity it produces does not involve the exercise of discretion by a prosecutor or a judge: it reflects a choice to arrange the court or tribunal in a particular way prior to the court coming into operation. By contrast, operational selectivity concerns choices made after the tribunal begins operation or, as in the case of the ICC, once the Rome Statute garnered enough ratifications to come into effect. Yet there is not necessarily a bright line between the two, as features of the Court’s design might change over time, including as the Court is in operation. For example, the crime of aggression was initially excluded from the Court’s jurisdiction, but an amendment to the Statute—a redesign of the Statute—led to its later (albeit partial) incorporation. Similarly, the rules of procedure and evidence are rarely fixed. At the International Criminal Tribunal for the Former Yugoslavia (ICTY), these rules were changed dozens of times, even as trials were ongoing.62 Thus the distinction that is drawn here is not rigid. 3.B.1 Capacity selectivity One of the traditional defences of selectivity is in fact a recognition that no liberal criminal law regime can fairly prosecute every single offender it has jurisdiction over, and that no liberal criminal law regime should want to prosecute every single offender it has jurisdiction over. There are simply too many offenders committing too many crimes at the domestic level— particularly less serious crimes—for the criminal courts to handle or even for law enforcement to police. Prosecutors and police prioritize certain investigations and not others.

60 Report of the Secretary-General’s Investigative Team charged with investigating serious violations of human rights and international humanitarian law in the Democratic Republic of Congo, UN Doc. S/1998/581, 29 June 1998. 61 Art. 11(1) ICCSt. 62 A. O’Shea, ‘Changing the Rules of the Game in the Middle of Play’, 14 South African Journal of Criminal Justice (2001) 233–237.

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Re-narrating selectivity  323 The same happens at the international level, where the volume of offenders is tremendous, especially given the limited resources available.63 Individual trials are deeply complex and time-consuming.64 Over two million cases were prosecuted by local and gacaca courts in Rwanda after the genocide.65 In the same time frame, the ICTR completed 58 trials.66 Given its global jurisdiction, one might expect the ICC to prosecute even more cases, but its limited resources mean that it suffers from what is termed capacity selectivity as well: courts and prosecutors are forced to use their discretion to choose between cases because the system simply cannot accommodate all worthwhile cases. These pressures are increasing for the Court, with wealthy and Western states in particular demanding a ‘zero nominal growth’ in the Court’s budget,67 while other States Parties are in arrears amounting to nearly 13 per cent of the Court’s budget.68 These decisions greatly restrict the ability of the Court to engage in more comprehensive prosecutions, but they are made not by the affected judges or prosecutors, but by the Assembly of States Parties and the Court’s administrators. This presents a particular dilemma for the OTP: faced with more situations than it can meaningfully prosecute given budgetary constraints, it must choose whether to spread its resources broadly across multiple situations, or invest deeply in a much smaller range of situations. 3.B.2 Justice-based selectivity Assuming for the moment that the Court had the resources and cooperation to prosecute anyone it chooses to, decisions to not prosecute might still be made by the OTP on the basis that the prosecution might be counter-productive. It might destabilize a peace process, extend a conflict, or worsen the suffering of civilians facing famine or some other humanitarian crisis. This justice-based selectivity is often described as the ‘peace versus justice’ problem. While states have made difficult decisions to not prosecute otherwise culpable offenders, the OTP has usually denied that these calculations enter into its decision-making process. In Argentina, only a limited number of military leaders were prosecuted for their crimes during the ‘Dirty Wars’ out of concern that broader prosecutions would prompt another military coup.69 Similarly, in South Africa, an amnesty agreement was reached with the Afrikaner

H. Takemura, ‘Big Fish and Small Fish Debate—An Examination of the Prosecutorial Discretion, 7 International Criminal Law Review (2007) 677–685, at 679. 64 The ICTY averaged about 8 trials per year since it was created in 1993. 65 H. N. Brehm et al., ‘Genocide, Justice, and Rwanda’s Gacaca Courts’, 20 Journal of Contemporary Criminal Justice (2014) 333–352, at 346. 66 UN International Residual Mechanism for Criminal Tribunals, The Cases, available online at https://​unictr​.irmct​.org/​en/​cases. 67 Coalition for the International Criminal Court, Press Release, ‘Annual ICC Assembly: States hold ground on ICC, but serious challenges remain’ (5 December 2016), available online at www​ .coalitionfortheicc​.org/​news/​20161205/​annual​-icc​-assembly​-states​-hold​-ground​-icc​-serious​-challenges​ -remain (visited 29 May 2020). 68 Assembly of States Parties (ICC), Report of the Committee on Budget and Finance on the work of its twenty-seventh session, ICC-ASP/15/15, 28 October 2016, at para 5. 69 P. Engstrom and G. Pereira, ‘From Amnesty to Accountability: The Ebbs and Flows in the Search for Justice in Argentina’, in L.A. Payne and F. Lessa (eds), Amnesty in the Age of Human Rights Accountability: Comparative and International Perspectives (Cambridge: Cambridge University Press, 2012), 97–122. 63

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324  The Elgar companion to the International Criminal Court government that greatly limited the number of prosecutions for apartheid-era crimes;70 to this day, no one has been convicted of apartheid itself. Yet the OTP insists that it does not concern itself with such questions, possibly because it does not have the same level of investment in the outcome, or because it lacks the capacity to engage in sufficient prosecutions to trigger the same concerns that Argentines and South Africans had, or because it has an abiding faith in the idea that prosecutions are a necessary component of justice. The OTP has understandably gone to great lengths to insist that it is politically neutral and impartial. Chief Prosecutor Fatou Bensouda, for example, felt compelled to issue a press release insisting that she never voiced an opinion on the sanctions levied against Qatar by other Gulf states during an impromptu meeting with Qatari officials in 2017.71 More importantly, Bensouda has not backed away from the position of her predecessor that trials are not only important to peaceful transitions but that ‘there can be no political compromise on legality and accountability’.72 If the OTP is taken at its word, then it fails to engage in this sort of selectivity. However, that disinterest in the political realities of the situations it engages in has itself led to great controversy. Former prosecutor Luis Moreno-Ocampo was greatly criticized for his decision to indict al-Bashir given the predictable reprisals against NGOs and others who were providing aid to victims of al-Bashir’s war in Darfur.73 Arguably—and in spite of its insistence to the contrary in other contexts—the OTP was appreciably nuanced in its oversight of the Colombian peace process.74 Though Colombia was one of the first situations brought under a preliminary examination in 2006, no investigation was ever opened into the situation. While Bensouda insists that the ICC retains jurisdiction to prosecute in the event of a deficient peace process, it is also clear that the OTP was cognizant of the political context in Colombia and adopted a far less hard-line approach than public comments would otherwise suggest.75 3.B.3 Inter-situational selectivity As an institution, the ICC faces one particular challenge that others do not—the problem of inter-situational selectivity. Inter-situational selectivity concerns decisions made by the OTP and the judicial chambers of the Court about which ‘situations’ to investigate. At its basic level, this is the claim of geographic bias made by African states and others: that unlike certain tribunals that are statutorily prohibited from investigating elsewhere, such as the ICTR or SCSL, agents of the Court inappropriately exercise their discretion to maintain an improperly myopic attention on African conflicts.

D. Tutu, ‘Chairperson’s Foreword’, in Truth and Reconciliation Commission of South Africa Report, Vol. 1 (29 October 1998) 1–24, at 5. 71 ICC Press Release, Statement of the Office of the Prosecutor regarding recent visit of the Prosecutor to Doha, Qatar (17 July 2017). 72 L. Moreno-Ocampo, ‘Building a Future on Peace and Justice’, Speech given at Nuremberg on 24 June 2007. See also Kersten, supra note 20, at 35. 73 See e.g. J. Flint and A. deWaal, ‘Case Closed: A Prosecutor without Borders’, 171 World Affairs (2009) 23–38, at 34–36. 74 K. Ainley, ‘The great escape? The role of the International Criminal Court in the Colombian peace process’, 13 October 2016, available online at https://​justiceinconflict​.org/​2016/​10/​13/​the​-great​-escape​ -the​-role​-of​-the​-international​-criminal​-court​-in​-the​-colombian​-peace​-process/​ (visited 29 May 2020). 75 See e.g. R. Urueña, ‘Prosecutorial Politics: The ICC's Influence in the Colombian Peace Processes, 2003–2017’, 111 AJIL (2017) 104–125. 70

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Re-narrating selectivity  325 There are some analogues here to international criminal law more broadly. The international community has itself been quite haphazard in choosing when to establish an ad hoc or hybrid tribunal to deal with a specific conflict, often failing to create courts.76 One main difference, though, is that an unwillingness to create a tribunal for one situation might be attributable to any number of actors. Local powers acting within their sphere of influence, international organizations, the Security Council, regional groupings of states and others may all have some role to play in whether a tribunal should be established or not. By contrast, the ICC’s work in this regard is more contestable, not necessarily because it relies on different factors in deciding when and whether to investigate a situation (and thereby effectively ‘establish’ a tribunal for a particular conflict), but because the jurisdictional reach of the Court is so great that responsibility clearly seems to lie within the same institution. Moreover, as a judicial institution, and as one that has insisted in the past that it is indifferent to political considerations, inconsistencies in this regard arguably are more damaging to the Court. Whereas other actors listed above will all clearly have multiple interests to balance, including their own political self-interest, the ICC supposedly has a much simpler mandate. Thus the apparent inconsistency of investigating one situation and not another may present an apprehension of bias that is more damning for the Court because it is a judicial institution, but entirely expected for the Security Council (for example) because of the latter’s clear political nature. For this reason, the charges of anti-African bias carry some weight. Without going into a full analysis of that concern however, it is worth considering whether it is fair to reflexively assign responsibility to the organs of the ICC when a conflict under its jurisdiction is not investigated. For example, the Security Council referred Sudan to the ICC, but it did not also refer the situation in Syria.77 Absent such a referral, the OTP might be able to investigate the acts of some nationals of States Parties to the ICC who are involved in the Syria conflict,78 but would be unable to act over some of the main players in the conflict, including Syria (state-aligned forces and Syrian rebels), the United States, Russia, Turkey and Iran. It is questionable whether such limited prosecutions would give effect to the Court’s goals or otherwise be an advisable use of scarce resources. In other cases, the non-investigation may seem to emanate more clearly from the Court. The OTP may refuse to open a preliminary examination into a situation, or, having done so, may not escalate that into a full-blown investigation. Alternatively, the Pre-Trial Chamber has the power to not confirm indictments in a particular case and, when the OTP acts proprio motu, to decline to authorize an investigation tout court. Assuming all involved are acting to the best of their capabilities, and acting impartially, it may be that there is no one to blame per se for a lack of sufficient evidence (or cooperation) to justify a prosecution. Seen in this light, the problem of inter-situational selectivity is not as clear-cut as it might seem otherwise. At a minimum, the complex reasons why a situation might or might not be referred to the Court, or investigated by it, give at least a plausible deniability to allegations of bias. Certainly it becomes harder to pin blame on any particular aspect of the Court for

For example, no tribunal has been established for international crimes committed in Syria. A referral that was initially opposed by the United States, then by Russia and some other Western states, including Canada. D. Petrasek, ‘Why has Canada given up on justice in Syria?’ The Globe and Mail (Can.) (23 January 2013), available online at https://​www​.theglobeandmail​.com/​opinion/​why​-has​ -canada​-given​-up​-on​-justice​-in​-syria/​article7656847/​. 78 Under Art. 12(2)(b) ICCSt. 76 77

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326  The Elgar companion to the International Criminal Court inter-situational selectivity which may, depending on the case, be a product of the Court’s design (which usually requires consent to the Rome Statute); discretionary choices made by the OTP or various elements of the international community; evaluations of evidence by the pre-trial chambers; or some mix of these factors. Each case must be assessed on its own merits; each decision may point to different features of the Court’s rules, procedures, actors and institutions that generate the same problem of inter-situational selectivity. As described in this section and others, the Court’s broad jurisdiction is not sufficient explanation for assigning responsibility for selectivity practices solely to the Court and certainly not solely to the OTP. The ICC is both designed to have jurisdictional gaps, makes choices about which gaps to permit, and is situated as one actor amongst many that have the ability to create or close these lacunae. Also, the ICC is akin to any other criminal court in that some forms of selectivity are simply inherent to the practice of criminal law. Yet it would also go too far to say that the Court can be fully exonerated of responsibility for all instances of selectivity. As the Pre-Trial Chamber’s Afghanistan decision79 suggested, even where one ICC stakeholder seems to resist selectivity, it may be confronted by another that stands in its way. Moreover, as described in the next section, there is at least one form of selectivity that is pervasive at the Court, that inherently undermines its standing (and normative foundations), and that it tolerates if not actively encourages.

4.

WHICH SELECTIVITY MATTERS?

4.A

The Significance of Selectivity

At this juncture, it is worth taking stock of the arguments and positions laid out so far. Section 2 described three narratives of selectivity at the ICC: that its selective focus on Africa and not other parts of the world under ICC jurisdiction shows bias; that there is no selectivity bias, even if there is an Africa-focus, because of African consent; and that to see selectivity as a problem is to misunderstand the need for selectivity in a fair and just criminal law regime. None of these accounts was particularly compelling in its own right, because each ignored important aspects of selectivity that might demonstrate the vitality or hypocrisy of the ICC, or even the ineffectiveness of the Court and some of its actors. Detailing first design and then operational selectivity showed that in some respects the claims about selectivity are misleading; that some selectivity problems at the ICC are ignored because they involve the design of the Court’s structure rather than the exercise of discretionary authority after the Court began operation; and that some selectivity practices are either welcome or out of the Court’s control. Having outlined these three narratives and a more detailed schematic of selectivity in international criminal law and the ICC, it is worth considering the potential ramifications of concluding that selectivity exists. Some forms of selectivity are entirely innocuous, but others will undermine the Court’s claims to legitimacy. This section will briefly outline the ways in which that might happen in order to illustrate the significance of selectivity and the need (or lack thereof) to mitigate or reform selectivity generating practices. Situation in the Islamic Republic of Afghanistan (ICC-02/17, PTC-II), ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan’ (12 April 2019) (discussed further in Part 4.A.1). 79

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Re-narrating selectivity  327 As it is used against the Court, the charge of selectivity is essentially a charge of bias that proves that the reasons why certain parties are investigated and prosecuted whilst others are unrelated to the culpability of those parties. Rather, selective enforcement is for other unrelated ends: controlling the domestic political affairs of uncooperative states, or punishing leaders and governments which are unpopular overseas but domestically legitimate. As it is used to defend the Court, selectivity is in fact constructed as part of the usual process of enforcing criminal law in a way that gives effect to the values of a liberal democratic tradition interested in individual responsibility, fair trials, and depoliticized adjudication. Courts must be selective in order to ensure that democracy does not turn into legal tyranny that jails any and all for even minor offences, or that uses show trials to perform a simulacrum of justice, or that prosecutes certain individuals for political and not legal reasons. Thus there is agreement that the significance of ‘selectivity’ lies in its relationship to these core values. The disagreement is about when selectivity undermines or promotes those values, and who is responsible for such effects. The difficulty with this task is that it risks oversimplifying a complex intersection of actors and interests that affect every decision to examine or investigate a crime. As Mark Kersten has argued, the motivations and effects of ICC actions are deeply entangled and contradictory.80 For example, should the OTP have refused to act on the Sudan referral on the basis that Sudan was not a party to the treaty? Or, faced with evidence of ongoing serious international crimes, was it right to investigate and lay charges based on the evidence it found, and leave it to the Pre-Trial Chamber to decide the question of jurisdiction? Does the slow movement of the Court outside Africa reflect a bias against Africa, a desire to work with cooperative States Parties who self-refer (even if that concept is not as pure as it sounds), or an inability to stretch itself at a time when States Parties either owe the ICC money or are insisting on no growth in the budget? Do these complexities nonetheless mitigate the sense of arbitrariness felt by aggrieved states, which see their persecution as arbitrary given the myriad other cases that could have been brought? To draw a crude comparison, one who exceeds the speed limit along with most other drivers can hardly complain that it is she, and not others who are equally responsible for breaking the same law, who is arrested. On the other hand, if the police consistently and predominantly only arrest black drivers for speeding in spite of evidence of widespread speeding by all drivers, does that not change the enquiry by suggesting something more nefarious is happening? Parsing each investigation at the ICC on a case-by-case basis, one can see clear justifications for each investigation into serious international crimes. But surely the aggregation of data, that most states investigated are African states, offers a pattern that hews closer to the latter speeding example than the former. It is not enough to say that each state is worthy of individual attention; the lack of attention paid elsewhere must itself be justified. Section 3 has offered some reasons as to why, in some cases, this lack of attention might be justified, but it should also be clear why a sense of aggrievement exists if only because these practices of the ICC do seem to be in keeping with a problematic history of public international law more generally.

Kersten, supra note 20.

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328  The Elgar companion to the International Criminal Court 4.A.1 The Afghanistan decision In this light, there is reason to be optimistic about the Appeal Chamber’s decision to permit the OTP to authorize an investigation into crimes allegedly committed by Afghani government forces, Taliban troops, and—perhaps crucially—Western troops as part of the conflict in Afghanistan that began with the American invasion of the country.81 This ruling overturned the unprecedented decision of Pre-Trial Chamber II to deny permission for the same investigation.82 The pre-trial decision was unprecedented in two ways. First, because it was the first time that the judicial branch of the Court had denied permission to investigate. Second, the decision was unprecedented in its reasoning. While the OTP has in the past determined that complementarity concerns or a lack of sufficient gravity should halt ICC proceedings, the PTC issued its decision on the basis that it was not in the ‘interests of justice’ to proceed on the basis that the investigation was not likely to succeed given what the PTC decided was a likely lack of cooperation from relevant parties. Rather than waste resources on a doomed endeavour, the PTC simply shut the investigation down before it started. There are important legal and factual issues that arise from the decision-making of the PTC, not least of which is why the Afghan government would not cooperate in building a case against the Taliban. What is of relevance for selectivity purposes is the way in which that decision tended to confirm three vital pieces of the selectivity story to jaded observers of the ICC. First, there were many situations around the world, including those initiated by the prosecutor’s proprio motu power, in which cooperation was unlikely to be forthcoming.83 Yet in none of those situations did the ‘interests of justice’ argument lead to an abandonment of the case at the preliminary examination stage, and never by the judicial branch of the Court. One could hardly forgive those who might suggest that the only salient difference between Afghanistan and the other cases is the potential criminal liability facing American soldiers and spies accused of rape, sexual violence and torture. In avoiding Afghanistan, the PTC could not avoid accusations that it was simply enrolling the ICC in the traditional practice of public international law institutions exempting powerful states—and particularly Western ones— from the rules meant to apply equally to all. Second, the PTC decision communicated to all those who might be subject to ICC jurisdiction that criminal liability can easily be avoided without recourse to legal argumentation. American obstructionism was not limited to refusals to cooperate, but included punitive measures—both threatened and real—aimed at the Court and its officials as well as states that might cooperate with the Court in its investigation of Americans.84 Any state with the power or

Situation in the Islamic Republic of Afghanistan, (ICC-02/17, OA4), ‘Judgment on the appeal against the decision on the authorization of an investigation into the situation in the Islamic Republic of Afghanistan’ (5 March 2020). 82 Situation in the Islamic Republic of Afghanistan, (ICC-02/17, PTC-II), ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan’ (12 April 2019). 83 Including the situations involving Kenya, Georgia, Burundi, Myanmar/Bangladesh, Libya, Sudan, Côte d’Ivoire, Comoros, and Palestine/Israel. 84 The measures included but were not limited to sanctions against states and the Court, as well as visa refusals and revocations, and even arrests and trials. See Center for Constitutional Rights, ‘Complaint Against the United States of America: Interference with Judicial Proceedings at the International Criminal Court’, Communiqué to Diego García-Sayán, UN Special Rapporteur of the Human Rights Council on the Independence of Judges and Lawyers (5 June 2019). 81

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Re-narrating selectivity  329 confidence to engage in similar measures could see the Afghanistan decision as an important standard: meet the level of obstruction raised here, and investigations might be altogether avoided. Although the Afghanistan decision is facially limited to proprio motu situations, the reality is that the case is the first real judicial pronouncement on the ‘interests of justice’ test that must be considered—by either the OTP or PTC—in every case. Had the Pre-Trial Chamber’s decision stood, it could have incentivized non-cooperation in a host of other cases. In these two regards, the intervention of the Appeals Chamber thus ought to be welcome. It disrupts (although without conclusively settling) key pieces of the selectivity narrative. First, that only poorer states will be investigated, and second that the Court is de facto if not de jure beholden to the interests of powerful states (even those that are not parties to the Rome Statute). At a minimum, the decision offers a counterpoint to the standard narrative, and—even if it does not exactly discourage obstructionism by states—weakens the claim that the Court will simply bow to the threats of states, the obstacles they erect to investigation, and their attempts to rally international pressure on the Court. That being said, the decision should not be read as a clear statement of intent on the part of the Court to proceed in all investigations in spite of whatever obstacles might arise. In one sense, this should be obvious: the Appeals Chamber was dealing with judicial interpretation of ‘interests of justice’, which says nothing about the more pragmatic decision-making frequently undertaken by the OTP. The problem in this case was that the OTP, presumably having assessed the potential obstacles to its investigation, sought to proceed only to be restrained by the judicial branch of the Court. Nothing in the Appeals Chamber’s decision affects that discretionary decision-making on the part of the OTP. By extension, the decision also does not deal with a third dimension of the selectivity problem presented by the Afghanistan puzzle. Whereas the Pre-Trial Chamber decision effectively shut down the investigation, the Appeals Chamber created more space for the OTP. Yet just as the Appeals Chamber cannot eliminate the discretionary decision-making of the OTP, it cannot negate the possibility of obstruction on the part of states. Rather, its decision clears the space for different forms of obstruction and negotiations of power and authority outside the judicial sphere. One possibility is that local power-brokers may selectively cooperate in order to produce a particularly perverse win–win negotiation with the OTP. Instead of refusing to cooperate tout court, they may offer evidence against their domestic political opponents but not cooperate in any investigation of their own allies, leading to prosecutions against only some parties to a conflict but not others. While such asymmetrical prosecutions might seem not only antithetical to liberal criminal law norms but also the continuation of conflict,85 the reality is that such selective prosecution would not be unusual for the Court. 4.B

Group-Based Selectivity

While most of the selectivity gaps identified so far may have innocent explanations or consequences, there is one selectivity practice that poses far more difficulties than the rest. The most problematic form of selectivity practised by the ICC is that of group-based selectivity. Whereas the core of the anti-Africa selectivity complaint is that the continent and its states are treated differently than other states, the group-based selectivity concerns a distinct form of 85 P. Menon, ‘Self-Referring to the International Criminal Court: A Continuation of War by Other Means’, 109 AJIL Unbound (2015) 260–265.

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330  The Elgar companion to the International Criminal Court differential treatment: not that which occurs between potential situations, but that which arises within situations. In group-based selectivity, only certain parties to a conflict are prosecuted, and other parties are not, even though all have committed serious international crimes. This form of selectivity runs afoul of the fundamental obligation of international criminal tribunals to ‘punish the guilty on a non-discriminatory basis’.86 4.B.1 From Nuremberg to the Hague: a brief history of group-based selectivity As an example, consider the post-war military tribunals at Nuremberg and Tokyo. Earlier, they were noted as examples of material selectivity, whereby attacks against civilians were not prosecuted even though they would clearly be seen as international crimes now, given the work of the ICTY, ICTR and of course the ICC itself. Yet when selectivity is mentioned in reference to these tribunals it is usually in the framing of ‘victor’s justice’—that only the parties that lost the war had their nationals prosecuted by the military tribunals. This in spite of clear evidence that all sides had committed crimes (although not all of those crimes were necessarily equivalent). While unsurprising given that the tribunals were established by the victors and staffed with judges and prosecutors from the victorious parties, partial prosecutions of this sort immediately call into question the values that a criminal court is supposed to instantiate, particularly those to do with show trials and depoliticized decision-making. The concern from the point of view of the accused is that she is being targeted not because of what she did, but because of who she did it for. From the point of view of observers, the concern is that the judicial body is subordinated to the political interests of parties to the conflict, and thus the impartiality of the reasoning and decision-making of the tribunal is suspect. And, as Justice Pal wrote in his famous dissent at the Tokyo Tribunal, keen observers can see not only the way in which the Tribunals subvert the norms of liberal criminal law, but also the hypocrisy of Western states who use international law as ‘vindictive retaliation’ for imperial Japan’s colonial crimes while exculpating themselves from their colonial acts in and out of the war.87 The dangers of this form of selectivity are threefold. First, one-sided prosecutions undermine the messages sent to victims and offenders alike. Victims of the non-prosecuted may question their worth and value in a society that does not see fit to recognize the harms done to them through the criminal law. Offenders are less likely to receive the message that their acts were truly wrongful (because their culpable opponents were not also prosecuted), and it risks undermining the rule of law writ large if judicial processes are seen to be so capricious. Second, this undermines the deterrent effect of criminal law by suggesting that what prevents criminal prosecutions is not a lack of crime, but a lack of political power. Group-based selectivity incentives further conflict in search of a military victor in order to insulate oneself from prosecution.88 Finally, it risks—as Justice Pal implied in Tokyo—reframing popular understandings of conflict in binary good-versus-evil terms and whitewashing the depth and pervasiveness of violence and suffering during conflict.

86 L. S. Sunga, The Emerging System of International Criminal Law (Cambridge, MA: Kluwer Law International, 1997), at 330. 87 United States et al. v. Araki Sadao et al., International Military Tribunal for the Far East, Dissentient Judgment of Justice Pal (Kokusho-Kankokai, 1999), at xxi. 88 A. Ross, ‘Transnational Geographies and Human Rights’, in V. J. Del Casino Jr. et al. (eds), A Companion to Social Geography (Malden, MA: Wiley-Blackwell, 2011) 490, at 500–501.

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Re-narrating selectivity  331 This group-based selectivity arose in slightly different ways at the two tribunals, but with largely the same effect. The statute of the Nuremberg Tribunal stated that group-based selectivity was essentially a feature of the tribunal because it specified that only Axis powers were to be prosecuted.89 The Tokyo Tribunal, however, assumed jurisdiction over ‘the major war criminals in the Far East’.90 Here, we see group-based selectivity originating in the design of the tribunal (Nuremberg) and in the operational decision-making of the tribunal (Tokyo). That the two tribunals were established by the victorious powers, however, suggests that the line between design and operation was quite blurred. This history of Nuremberg and Tokyo resonates in contemporary international criminal law and the ICC in two ways. First, those tribunals developed a core body of jurisprudence that continues to inform contemporary tribunals, including the ICC. Second, while Nuremberg and Tokyo are the paradigmatic examples of group-based selectivity, the ICC is on track to rival them as the most prolific practitioner of group-based selectivity. In at least five of the eleven situations being investigated, the Court has only pursued some parties while turning away from prosecuting others who are credibly alleged to have committed comparable acts. In Uganda, members of the Lord’s Resistance Army are being prosecuted while their opponents—state officials and state troops who engaged in torture, sexual violence, and the use of child soldiers—are not. In Libya, indictments have been issued against members of the fallen Gaddafi regime, but not against the rebels accused of indiscriminate killings, disappearances and torture. In Côte d’Ivoire, a national commission appointed by the Alassane Ouattara government made clear that his supporters had engaged in comparable crimes to the deposed Laurent Gbagbo,91 yet it was only Gbagbo and his confederates who were put on trial. The same pattern presents itself with respect to the first Central African Republic investigation and the DRC. In each of these cases of partial prosecution, there is credible evidence of all parties committing serious crimes, alongside a lack of national or international accountability for those who are not being prosecuted by the ICC. 92 4.B.2 Implications of group-based selectivity at the ICC The ICC’s practice of group-based selectivity presents two novel concerns in addition to the three laid out above. First, the conflicts in which group-based selectivity can be identified often involve the alignment of the Court with one domestic authority or another in order to secure cooperation from that authority in developing international criminal cases against that authority’s opponents. The apparent trade-off, however, is that the cooperating authority does not face any criminal liability. This interplay threatens to undermine the Court’s actions for the same reasons as outlined above. Crucially, however, it suggests that the institution itself is suspect even though it was not a party to the conflict in question. Group-based selectivity thus runs the risk of thrusting the ICC into the position of the Allies at Nuremberg and Tokyo and erasing the credibility that is supposed to accrue from prosecutions by a permanent,

Art. 1, London Charter (that the tribunal was ‘for the just and prompt trial and punishment of the major war criminals of the European Axis’). 90 Art. 1, Tokyo Charter. 91 Commission Nationale d’Enquête [Republique de Côte d’Ivoire], ‘Rapport d’enquête sur les violations des droits de l’homme et du droit international humanitaire survenues dans la période du 31 octobre 2010 au 15 mai 2011’, July 2012, available online at www​.fidh​.org (visited 11 June 2017), at 30. 92 For further details on all of these cases, see Kiyani, supra note 3, at 949–951. 89

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332  The Elgar companion to the International Criminal Court independent court as opposed to one set up by the winners of an armed conflict. For all intents and purposes, tolerating group-based selectivity inextricably connects the Court to the conflict as a partisan player and undermines it in the eyes of the parties to that conflict as well as the victims in that conflict. Second, the danger with this practice is that it makes the entirety of the Court’s work vulnerable to the same charge. Engage in group-based selectivity often enough, and the self-interested charge of neo-colonialism and bias begins to become a self-fulfilling prophecy. At a certain point, the Court is vulnerable even in situations such as Guinea, where the government attacked non-violent civilian protesters, or in the Gaza Flotilla case where the Israeli Defence Forces killed civilians carrying non-military supplies to break the siege of the Gaza Strip.93 In both of those preliminary examinations, the ICC’s decision to focus its attention on only one side may seem less problematic because of either a lack of violence by the opposing party or a tremendous disparity in violence.94 However, if Israel or Guinea were to point to the partisan history of the ICC, any claims of unfairness or politicized prosecutions would carry much greater weight. Eventually, the concern is that the Court becomes permanently tarred as a pseudo-judicial institution whose prosecutions and convictions are not be trusted because the Court has persistently shown itself to be partial in a number of cases.

5. CONCLUSION Defences of the Court in respect of group-based selectivity are not particularly persuasive. First, it cannot be said that this trade-off is necessary for the Court to secure any convictions. On the one hand, any judicial institution must consider the costs of conviction, including costs to its reputation. Also, past tribunals have managed to prosecute most, if not all, parties to a conflict. Certainly the ICTY was able to prosecute all sides of the Yugoslav civil war (save for NATO forces). Even if it did not cover crimes in Liberia, the SCSL secured convictions against the leaders of every major military group in that conflict. If the ICC is incapable of doing so, that suggests the model is not an advancement on the ad hoc tribunals and the international community ought to reconsider its investment in this particular instantiation of international justice. Second, accepting group-based selectivity represents an impoverished view of the Court’s role. A common thread in these cases is that the Court aligns itself with political power in order to secure cooperation and conviction of that authority’s opponents. Given that the political authority is often already invested in securing those convictions, and has the upper political and military hand, perhaps the Court should refocus its attention on those who are least likely to come to justice: the victors in a conflict. That is where the true impunity gap lies in inter While the Office of the Prosecutor decided the crimes committed were not of sufficient gravity to warrant opening an investigation, the Pre-Trial Chamber ordered a reconsideration of that decision. The prosecutor has appealed that order, and a decision is expected in September 2019. ICC Press Release, ‘Situation on the Registered Vessels of Comoros, Greece and Cambodia: ICC Appeals Chamber to deliver its judgment on Prosecutor’s appeal on 2 September 2019’ (ICC-CPI-20190503-MA238), 3 May 2019. 94 The Gaza Flotilla case is to be distinguished from the Situation in Palestine, in which the OTP is investigating both Israeli and Palestinian actors as part of its Preliminary Examination. See Office of the Prosecutor (ICC), Report on Preliminary Examination Activities 2018, 5 December 2018, at 63–67. 93

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Re-narrating selectivity  333 national criminal justice—at the site of political power. Thus domestic prosecutions of the defeated would be complemented by international prosecutions of the victors. While the traditional narratives of selectivity at the ICC have oversimplified matters greatly, there is some truth to each of them. There is a foundation for at least some observers to see the Court as inherently biased. There is also reason to believe that at least some of the selectivity problems of the Court are not of the making of the OTP or the judges, but the drafters of the Rome Statute. Finally, some of the selectivity practices at the Court may even be welcome. That being said, the ICC must confront the particularly damaging allegation of group-based selectivity. That form of selectivity upends the usual anti-African sentiment and shows how in fact selectivity serves the interests of some African leaders who use the Court to pursue their opponents. In failing to address this issue the Court exposes itself to threats to its legitimacy on two fronts: that the anti-African narrative sticks to it, and that the trade-off between cooperation and equal enforcement of the law implies the partisanship of the Court. The ICC’s complicity in this co-optation of the Court undermines its claims to be a judicial institution that fairly enforces the law equally, and risks delegitimizing the ICC not only in respect of certain conflicts, but as an institution in its entirety.

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14. Human rights compliance Jonathan O’Donohue

The Rome Statute contains the strongest human rights framework in the history of international criminal justice. Establishing the International Criminal Court (hereafter ‘ICC’ or ‘Court’) to investigate and prosecute crimes under international law that mostly involve serious human rights violations and abuses, the Statute requires the Court to: ensure the rights of the accused and a fair trial;1 protect and support witnesses and victims appearing before the Court;2 and allow victims to participate in proceedings3 and seek reparation against convicted persons.4 Moreover, throughout its proceedings, the Court must apply and interpret the law consistent with internationally recognized human rights and without any adverse distinction.5 As the ICC Appeals Chamber has observed: ‘human rights underpin the Statute; every aspect of it’.6 This framework served a number of important purposes in establishing the ICC. Defining the rights of the accused, witnesses and victims facilitated the merging of major legal traditions in drafting the Statute.7 The rights were referred to extensively in national ratification campaigns8 and proved crucial in persuading some countries to proceed.9 They also provided a strong rebuttal to allegations that the ICC was a ‘kangaroo court’10 that would bring ‘politically motivated accusations, investigations and prosecutions’11 against US nationals, which

Arts 64(2), 66 and 67 ICCSt. Arts 43(6) and 68(1) ICCSt. 3 Art. 68(3) ICCSt. 4 Art. 75 ICCSt. 5 Art. 21(3) ICCSt. 6 Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006, Lubanga (ICC-01/04-01/06-772), Appeals Chamber, 14 December 2006, at § 37. 7 See e.g., Y. McDermott, Fairness in International Criminal Trial (Oxford: Oxford University Press, 2016), at 36, notes in relation to the ICTY ‘respect for the right to a fair trial was accepted by those from different legal systems, although there were elements of procedure that were fundamentally different’. 8 See e.g., Amnesty International’s Fact Sheets used in numerous national ratification campaigns: International Criminal Court Fact Sheet 6: Ensuring Justice for Victims, 31 July 2000, available online at https://​www​.amnesty​.org/​en/​documents/​ior40/​007/​2000/​en/​ (visited 18 September 2019); International Criminal Court Fact Sheet 9: Fair Trial Guarantees, 31 July 2000, available online at https://​www​.amnesty​.org/​en/​documents/​ior40/​009/​2000/​en/​ (visited 18 September 2019). 9 See e.g., Australia’s Joint Standing Committee on Treaties Report to the Commonwealth Parliament on the 1998 Statute of the International Criminal Court based on analysis of 231 submissions, October 2001, 4.15–4.17. 10 US Senator Jesse Helms in promoting amendments to the American Service Members Protection Act, Congressional Record, Vol. 147, Part 17, 7 December 2001, at 24406. 11 See J. R. Bolton, American Justice and the International Criminal Court, Remarks at the American Enterprise Institute, Washington, DC, 3 November 2003 available online at https://​docs​.wixstatic​.com/​ ugd/​e13974​_d4d59ca7f3​5c4084b5781576cc3af76a​.pdf (visited 18 September 2019). 1 2

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Human rights compliance  335 formed the basis of the Bush administration’s unsuccessful campaign against the ICC between 2002 and 2006. More than 15 years into the ICC’s work, attention has now turned to the implementation of the framework in numerous complex situations and cases. Indeed, human rights compliance is vital to: counter the politicized narratives of international justice; deflect inevitable future political attacks against the ICC’s investigations and cases; build the credibility and authority of the Court; ensure that it can serve as a model for national authorities to follow;12 and develop further support of governments, civil society and the global public for international justice. To the Court’s credit, it has put in place detailed systems to give effect to most of the rights of the accused, victims and witnesses. Chambers regularly take decisions on human rights matters or with human rights implications that are consistent with internationally recognized human rights. However, in too many instances, the Court’s practice has been incoherent, ineffective or inconsistent, leading to poor outcomes for accused persons, victims and witnesses. This chapter examines the ICC’s compliance with human rights and the challenges it faces. Section 1 briefly examines the evolution of human rights in the legal frameworks of international criminal tribunals established prior to the Court. Section 2 examines the human rights framework in the Rome Statute. Although a full analysis of the ICC’s human rights record since 2002 is beyond the scope of this chapter, Section 3 identifies key human rights concerns and compliance challenges that have emerged since the Court’s establishment. In many instances, it highlights the negative role that states parties have played through ineffective cooperation and imposing severe budget restrictions on the Court. Section 4 considers what needs to happen to strengthen the ICC’s human rights record, focusing on the different roles of the ICC, the Assembly of States Parties and non-governmental organizations.

1.

HUMAN RIGHTS FRAMEWORKS OF OTHER INTERNATIONAL CRIMINAL COURTS ‘We must see that it [the trial] is fair and deliberative and not discredited in times to come by any mob spirit.’ Robert H. Jackson during the London Conference 1945.13

Although a number of leading academics have concluded that trials conducted post-World War II were fair14 (with the exception of the particularly problematic practices of the International

P. Seils, ‘Putting Complementarity in its Place’, in C. Stahn (ed.), The Law and Practice of the International Criminal Court (Oxford: Oxford University Press, 2015) 305–327, at 306 emphasizing that where large-scale crimes have been committed in the context of repression or armed conflict the social contract is ruptured or destroyed states: ‘[National] proceedings must be based on a transparent process aimed not only at securing convictions, but also at demonstrating that the justice system is able to work fairly and efficiently in protecting the fundamental rights of citizens.’ 13 Report to the President by Mr Justice Jackson, 6 June 1945 available online at https://​avalon​.law​ .yale​.edu/​imt/​jack08​.asp (visited 18 September 2019). 14 See e.g., M. C. Bassiouni, ‘The “Nuremberg Legacy”’, in G. Mettraux (ed.), Perspectives on the Nuremberg Trial (Oxford: Oxford University Press, 2008) 577–598 at 586: ‘world perception then and now is that the entire process was substantially fair and the outcome substantially just’; K. Heller, The Nuremberg Military Tribunals and the Origins of International Law (Oxford: Oxford University Press, 2011), at 178: ‘Overall, though, the trials were impressively fair.’ 12

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336  The Elgar companion to the International Criminal Court Military Tribunal for the Far East),15 the frameworks that these courts applied raise serious fair trial concerns, especially when compared to current international fair trial standards. As demonstrated in the quote above, the allies emphasized the need for the trials to be fair, clearly driven by the aim of ensuring their credibility. The governing laws included legal provisions to ‘ensure fair trial for the defendants’.16 Efforts were taken to ensure that accused persons were represented by counsel and able to present a defence.17 However, accused persons—including those facing the death penalty—were denied a right to appeal and a number of rights, which are now recognized as minimum guarantees, were not recognized in the legal frameworks. Moreover, rules were adopted permitting the tribunals broad powers to admit evidence prohibited in many national contexts, including hearsay evidence and affidavit evidence without the possibility of cross-examination. A 1948 study by the UN War Crimes Commission on human rights arising from the trials concluded that, although ‘a clear attempt was made to secure an alleged war criminal his rights to a fair trial’ … ‘the aim has also been to ensure that the courts are not so bound by technical rules that the guilty shall benefit from the exceptional circumstances under which war crimes trials are necessarily held, and so escape just punishment’.18 Victims’ rights were not recognized. Prosecutors restricted the use of victim-witnesses, in particular at the International Military Tribunal trial in Nuremberg, thereby limiting victims’ involvement and voices in the trials.19 Victims and witnesses who did testify received little protection and support.20 The only provisions for reparation focused on restitution to states, not victims.21 Almost half a century later, in 1993, the UN Secretary-General’s Report submitting the draft Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY) to the UN Security Council emphasized that ‘it is axiomatic that the International Tribunal must fully respect international recognized standards regarding the rights of the accused at all stages of

15 See e.g., N. Boister and R. Cryer, The Tokyo International Military Tribunal: A Reappraisal (Oxford: Oxford University Press, 2008), at 114: ‘While the trial was formally fair in terms of the rights and obligations in the Charter and the Rules, it was not substantively fair in terms of the application of those rules. In this sense it really was victors’ justice.’ 16 See e.g., Art. 15, Charter of the Nuremberg International Military Tribunal; Art. 9, Charter of the International Military Tribunal for the Far East; Art. IV, Ordinance No. 7. 17 See e.g., Heller, supra note 14, at 178 ‘The [Nuremberg Military] tribunals ensured that defendants could choose their own attorneys. … They went to great lengths to bring witnesses and documents to Nuremberg—and helped the defense travel outside of the American zone when they failed. And they ensured that the defendants enjoyed sufficient resources to prepare their defense, readily granting continuances and appointing extra counsel in particularly complicated cases.’ 18 Information concerning human rights arising from trials of war criminals, UN Doc. E/CN.4/W.19, 15 May 1948, at 273. 19 See e.g., S. Garkawe, ‘The Role and Rights of Victims at the Nuremberg International Military Tribunal’ in H. Reginbogen, C. Safferling and W. Hippel (eds), The Nuremburg Trials: International Criminal Law Since 1945: 60th Anniversary International Conference (München: KG Saur Verlag, 2006) 86–94; L. Moffett, ‘The Role of Victims in the International Criminal Tribunals of the Second World War’, 12 International Criminal Law Review (2012) 245–270, at 252–255 and 265–266. 20 See Moffet, ibid. at 255–256 and 266–267. 21 See e.g., Art. 28 Charter of the Nuremberg International Military Tribunal: ‘the Tribunal shall have the right to deprive the convicted person of any stolen property and order its delivery to the Control Council for Germany’; see also Art. II(3) Control Council Law No. 10.

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Human rights compliance  337 its proceedings’.22 It proposed that the Security Council adopt a provision based on Article 14 of the International Covenant on Civil and Political Rights setting out fundamental rights of the accused and minimum guarantees.23 The provision was included in both the Statutes of the ICTY and the International Criminal Tribunal for Rwanda (ICTR).24 However, like the World War II courts, the Rules of Procedure and Evidence provided broad powers for chambers to admit ‘any relevant evidence deemed to have a probative value’,25 which both Tribunals interpreted to include hearsay evidence.26 In 2006, the ICTY judges amended the Rules to further admit statements by ‘unavailable persons’ without cross-examination, including if the evidence goes to proof of acts or conduct of an accused as charged in the indictment.27 Significantly, the Statutes provided that the ICTY and ICTR must protect victims and witnesses,28 which led to the establishment of the first victims and witnesses units.29 However, despite significant advances in international law and standards defining the rights of victims to participate in criminal proceedings and to claim reparation,30 the ICTY Statute (prepared mainly by lawyers from common law jurisdictions)31 included very limited provisions for this.32 Both Tribunals could order only the ‘return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owner’.33 But, in practice, neither the ICTY nor the ICTR implemented the provision.34 The Rules of Procedure and Evidence of both Tribunals also provided that the Registrar ‘shall transmit judgements detailing convictions to the relevant national authorities in support of victims’ compensation claims at the national level’,35 but there is little evidence that this has significantly supported victims’ efforts to obtain compensation in either the former Yugoslavia or Rwanda. In 2000, the plenary of ICTY judges considered amendments that would provide for victim compensation

Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704, 3 May 1993, § 106. 23 Ibid. at § 106–107. 24 Art. 21 ICTYSt; Art. 20, ICTRSt. 25 Rule 89(c) ICTY RPE; Rule 89(c) ICTR RPE. 26 See e.g., Judgment, Bizimungu (ICTR-00-56B-A), Appeals Chamber, 30 June 2014, § 180; Judgment, Popovic et al. (IT-05-88-A), Appeals Chamber, 30 January 2015, § 1307. 27 Rule 92 quarter ICTY RPE. 28 Art. 22 ICTYSt.; Art. 21 ICTRSt. 29 Rule 34 ICTY RPE; Rule 34 ICTR RPE. 30 See Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UN Doc. A/Res/40/34, 29 November 1985; Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms, Final report submitted by Mr. Theo van Boven, Special Rapporteur, UN Doc. E/CN.4/Sub.2/1993/8, 2 July 1993. 31 See V. Tochilovsky, ‘The Nature and Evolution of the Rules of Procedures and Evidence’, in K. Khan, C. Buismann and C. Gosnell (eds), Principles of Evidence in International Criminal Justice (Oxford: Oxford University Press, 2010), at 158. 32 See V. Morris and M. P. Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia (New York: Transnational Publishers, 1994), at 286. 33 Art. 24(3) ICTY St.; Art. 23(3) ICTRSt. See also Rule 105 ICTY RPE and Rule 105 ICTR RPE. 34 See e.g., S. Malmström, ‘Restitution of Property and Compensation to Victims’, in R. May, D. Tolbert, J. Hocking, K. Roberts, B. Bing Jia, D. Mundis and G. Oosthuizen (eds), Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald (The Hague: Kluwer Law International, 2001) 373–384, at 377. 35 Rule 106 ICTY RPE; Rule 106 ICTR RPE. 22

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338  The Elgar companion to the International Criminal Court and participation, but rejected them proposing instead that the Security Council establish an international claims commission.36 It was never acted on.

2.

HUMAN RIGHTS IN THE ROME STATUTE

Although the Rome Statute was adopted only five years after the ICTY Statute, an ‘innovative spirit’37 emerged during the diplomatic negotiations that led to the development of a human rights framework that surpasses those of international criminal courts established before and so far since 1998. It was no doubt significant that the Statute was drafted at a time, between the fall of the Berlin Wall and 9/11, when human rights drove the global agendas of many states, in particular in responding to the aftermath of the conflicts in the former Yugoslavia and Rwanda. As one commentator opined: ‘the political momentum leading to the creation of the International Criminal Court can be largely attributed to the growth of the international human rights movement’.38 Hundreds of national and international non-governmental organizations organized themselves as a global coalition with remarkable impact during the Preparatory Committee and the Rome Conference advocating, inter alia, strong fair trial provisions, victims’ rights and gender justice.39 Whereas its ad hoc predecessors focused on specific situations and their proponents were concerned with protecting the judicial record of those trials,40 the drafters of the Rome Statute would have been aware of the need to additionally ensure the integrity of the Statute, which they sought to be widely ratified, as well as the credibility of the ICC, which would need to weather inevitable political attacks in carrying out its mandate.41 As Amnesty International put it in the lead-up to the Rome Conference, it was imperative that the Court be ‘just, fair and effective’.42

Letter dated 2 November 2000 from the Secretary-General addressed to the President of the Security Council, S/2000/1063, 3 November 2000. 37 See e.g., W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford: Oxford University Press, 2010), at 784. 38 Ibid. at 397. 39 For more on the role played by civil society in drafting the Rome Statute, see W. Pace and J. Schense, ‘The Role of Non-Governmental Organizations’, in A. Cassese, P. Gaeta and J. Jones (eds), The Rome Statute of the International Criminal Court (Oxford: Oxford University Press, 2002) 105–145; H. Durham, ‘The Role of Civil Society in Creating the International Criminal Court Statute: Ten Years On and Looking Back’, 3 International Humanitarian Legal Studies (2012) 3–42; M. C. Bassiouni and W. A. Schabas (eds), The Legislative History of the International Criminal Court (Leiden: Brill Nijhoff, 2016), at 83–84. 40 See e.g., R. H. Jackson, ‘Nuremberg in Retrospect: Legal Answer to International Lawlessness’, in G. Mettraux (ed.), Perspectives on the Nuremberg Trial (Oxford: Oxford University Press, 2008) 354–371, at 362 ‘[t]he trial record will stand the most severe scrutiny of history, for we knew that as we judged, so would the future judge us’. 41 As the drafting advanced it became clear that a high threshold was likely to be adopted to trigger the establishment of the Court (eventually set at 60); that the Court’s jurisdiction would largely be determined by which states ratified; and that a number of major super-powers were unlikely to support the initiative requiring a groundswell of support by other states. 42 Amnesty International, 16 Fundamental Principles for a Just Fair and Effective International Criminal Court, 30 April 1998, available online at https://​www​.amnesty​.org/​en/​documents/​ior40/​012/​ 1998/​en/​(visited 18 September 2019). 36

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Human rights compliance  339 2.A

Fair Trial and the Rights of the Accused

The Rome Statute sets out ‘probably the most sophisticated and comprehensive codified right to a fair trial of any court system in the world’.43 A Trial Chamber has a duty to ensure that ‘the trial is fair and expeditious and is conducted with full respect for the rights of the accused’,44 who is presumed innocent.45 Hearings must be ‘conducted impartially’, which when read together with other provisions,46 provides ‘the most advanced and thorough regime in order to ensure both independence and impartiality of its judiciary’.47 The rights of the accused listed in the Statute went far beyond other precedents in international criminal law and international human rights law. The minimum guarantees listed in Article 67(1) expanded upon those listed in Article 14(3) of the ICCPR. Article 55—for the first time at the international level—codified the rights of suspects during an investigation.48 Article 67(2) also broke new ground at the international level in expressly requiring the Prosecutor to disclose to the defence exculpatory or mitigating evidence. Together with the obligation of the Prosecutor in Article 54(1)(a) to investigate incriminating and exonerating circumstances equally, this provides significant protection to the accused against injustice. Moreover, numerous procedural safeguards included throughout the Statute ensure that the rights of the accused are respected throughout and following the ICC’s proceedings.49 Although the Statute provides the judges with a broad discretion in determining the relevance and admissibility of evidence, they must consider any prejudice that such evidence may cause to a fair trial.50 Nonetheless, it should be recognized that the Statute has been criticized for not going even further in establishing an independent defence office as a fourth organ of the Court, to ensure equality of arms with the prosecution and provide the defence with a strong institutional voice.51

43 Joint Standing Committee on Treaties Report to the Commonwealth Parliament on the 1998 Statute of the International Criminal Court based on analysis of 231 submissions, supra note 9, 4.15–4.17. 44 Art. 64(2) ICCSt. 45 Art. 66 ICCSt. 46 See in particular Arts 36(9)(a) and 41 ICCSt. 47 W. A. Schabas and Y. McDermott, ‘Article 67’, in O. Triffterer and K. Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary (3rd edn., Munich: C.H. Beck, Hart Publishing and Nomos, 2016), at 1659. Noting that a requirement of impartiality was omitted from the ICTY and ICTR Statutes; they opine at 1567 that this is ‘perhaps because the Security Council considered the matter to be beyond debate’. 48 Draft Statute for an International Criminal Court with commentaries, Yearbook of the International Law Commission (1994), Vol. II, Part Two, at 47: in making the original proposal, the International Law Commission stated, ‘the rights of the accused during the trial would have little meaning in the absence of respect for the rights of the suspect during the investigation’. 49 See e.g., Arts 59, 60(1) and (2), 65, 68(1), (3) and (5), 82(1)(d), 85(1) and 106 ICCSt. 50 Art. 69(4) ICC St. 51 See e.g., K. Gallant, ‘Politics, Theory and Institutions: Three Reasons Why International Criminal Defence Is Hard and What Might be Done About One of Them’, 14 Criminal Law Forum (2003) 317–334, at 327–331.

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340  The Elgar companion to the International Criminal Court 2.B

Protection of Victims and Witnesses

The International Law Commission’s draft ICC Statute included a similar provision on victim and witness protection to that contained in the ICTY and ICTR Statutes.52 However, during the diplomatic process, states elected to elaborate, drawing in particular from international human rights standards and the structures put in place by the ICTY and ICTR.53 The Statute therefore expressly provides for the establishment of a victim and witness unit mandated to provide protective measures and security arrangements as well as counselling and other assistance not only to witnesses but also victims appearing before the court and others who are at risk on account of testimony.54 Article 68(1) further emphasizes that protection of safety, physical and psychological well-being, dignity and privacy of victims and witnesses is an obligation of the whole Court. 2.C

Victim Participation and Reparation

Amid criticisms that victims had been treated as passive objects in other international criminal proceedings,55 many states and civil society groups advocated for victims to be at the centre of the work of the Court.56 In promoting a more ambitious approach, they challenged the traditional common law focus of criminal justice on the prosecution of perpetrators. Their efforts encountered both principled opposition to expanding the role of victims in the criminal justice process and genuine concerns regarding the capacity of the ICC to give effect to such rights involving potentially large numbers of victims. Describing the negotiations, one commentator noted ‘the regime which eventually emerged at the culmination of the Rome Conference was not the result of some overarching “grand design” … but was, in truth, an arrangement that evolved at a late stage in the negotiating process from a number of different proposals and approaches’.57 Article 68(3) draws directly from the language of the UN General Assembly’s 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power to provide that ‘[w]here the personal interests of the victims are affected, the Court shall permit their

52 Draft Statute for an International Criminal Court with commentaries, supra note 48, Art. 43: ‘The Court shall take the necessary measures available to it to protect the accused, victims and witnesses and may to that end conduct closed proceedings or allow the presentation of evidence by electronic or other special means.’ 53 See Report of the Preparatory Committee on the Establishment of an International Criminal Court, Volume I: Proceedings of the Preparatory Committee during March–April and August 1996, UN Doc. A/51/22, §§ 280–281. 54 Art. 43(6) ICCSt. 55 See D. Donat-Cattin, ‘Article 68’ in Triffterer and Ambos (ed.), The Rome Statute of the International Criminal Court: A Commentary, supra note 47, at 1684; C. Jorda and J. de Hemptine, ‘The Status and Role of the Victim’ in A. Cassese, P. Gaeta and J. Jones (eds), The Rome Statute of the International Criminal Court (Oxford: Oxford University Press, 2002) 1387–1417, at 1399. 56 See e.g., HRH Prince Zeid Ra’ad Zeid Al-Hussein, ‘Foreword’ in Selected Basic Documents Related to the International Criminal Court (Secretariat of the Assembly of States Parties, 2005) at v: ‘we can eventually succeed only if we place the victims of these terrible atrocities somewhere in our minds, in whatever we do that has a bearing on this Court’. 57 C. McCarthy, Reparations and Victim Support in the International Criminal Court (Cambridge: Cambridge University Press, 2012), at 36.

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Human rights compliance  341 views and concerns to be presented and considered at stages of proceedings determined to be appropriate by the Court’.58 Article 68(3) makes clear that these measures must not be conducted in a manner that is ‘prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial’. Importantly, the Article acknowledges that legal representatives of the victims may present such views and concern, which is essential to manage and ensure effective participation of large numbers of victims who will often be located thousands of kilometres from the Court. Article 75 provides that the Court may order reparation in respect of victims, including (but not restricted to) restitution, compensation and rehabilitation, but this is discretionary and orders can only be made against a convicted person who, in many cases, may lack resources. Although it is a remarkable advancement in the international criminal process, it ties in awkwardly with international human rights law, which provides that the state is primarily responsible for ensuring effective remedies, including full and effective reparation, to victims.59 Indeed, many reparation measures such as restitution of property or memorializing victims will require state involvement and cooperation. Importantly, orders can be made through a Trust Fund for Victims established by Article 79 for the benefit of victims, which may address some of the challenges. Many of the details of the systems of participation and reparation were not addressed in Rome, including the extent of participation and the principles and modalities of reparation that would be applied. These were left for the Court to address. 2.D

Application and Interpretation of the Law Consistent with ‘Internationally Recognized Human Rights’ and without Adverse Distinction

In addition to setting out specific rights of the accused, victims and witnesses in the Statute, the drafters went much further in adopting Article 21(3), which provides: The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

Adopted by ‘virtual unanimity’60 (apart from controversy over the inclusion and definition of gender as a prohibited ground of adverse distinction),61 this is one of the most important and

58 See Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, supra note 30, Principle 6(b). 59 See e.g., ICCPR Art. 2(3). 60 M. McAuliffe deGuzman, ‘Applicable law’ in Triffterer and Ambos (ed.), The Rome Statute of the International Criminal Court: A Commentary, supra note 47, at 947; see also P. Saland, ‘International Criminal Law Principles’, in R. Lee (ed.), The International Criminal Court: The Making of the Statute (The Hague: Kluwer Law International, 1999) 189–216, at 215–216: ‘attempts were made by China and some Arab delegations to delete it or to shorten the paragraph [to read “The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights”]. This was fiercely resisted by other delegations.’ 61 See Saland, supra note 60, at 216; C. Steains, ‘Gender Issues’ in R. Lee (ed.), The International Criminal Court: The Making of the Statute, ibid. 357–390, at 371–375.

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342  The Elgar companion to the International Criminal Court potentially far-reaching provisions of the Rome Statute.62 A plain reading of Article 21(3) essentially requires the ICC to comply with internationally recognized human rights in all aspects of its work. Unsurprisingly, the provision has attracted a significant amount of academic attention,63 with divergent views on its interpretation and scope of application. Some opine that Article 21(3) sets out a special rule that is even capable of setting aside provisions of the Statute.64 Others have unconvincingly sought to cast doubt on the meaning of ‘internationally recognized human rights’65 despite a wealth of widely ratified international and regional human rights treaties, as well as human rights standards adopted with broad international support. Others have questioned whether Article 21(3) could in fact trump provisions of the Statute.66 In the event of conflict between the Statute and internationally recognized human rights or gaps in the Statute it has also been argued that the ICC is not permitted to apply international human rights law directly because it is not expressly listed as a source of law in Article 62 Schabas supra note 37, at 398. See also McAuliffe deGuzman, supra note 60, at 948: ‘This paragraph is one of the more important provisions of the Rome Statute’; K. Gallant, ‘Defendants Rights: Seven issues to watch’, in the Advocacy Project, On the Record for a Criminal Court, Issue 13, 7 July 1998, available online at http://​www​.advocacynet​.org/​wp​-content/​uploads/​2015/​06/​Issue​-13​-ICC​.pdf (visited 18 September 2019) opined that the draft Art. 21(3) may be ‘the most important advance in the Draft Statute’. 63 See e.g., L. Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court (Cambridge: Cambridge University Press, 2016), at 112–114; A. Davidson, ‘Human Rights Protection before the International Criminal Court: Assessing the Scope of Application of Article 21(3) of the Rome Statute’, 18 International Community Law Review (2016) 72–101; G. Bitti, ‘Article 21 and the Hierarchy of Sources of Law before the ICC’, in C. Stahn (ed.), The Law and Practice of the International Criminal Court, supra note 12, 411–443 at 433–443; McAuliffe deGuzman, supra note 60, at 947–8; S. Bailey, ‘Article 21(3) of the Rome Statute: A Plea for Clarity’, 14 International Criminal Law Review (2014), 513–550; R. Young ‘“Internationally Recognized Human Rights” Before the International Criminal Court’, 60 International and Comparative Law Quarterly (2011) 189–208; W. Schabas, supra note 37, at 397–400; D. Sheppard, ‘The International Criminal Court and “Internationally Recognized Human Rights”: Understanding Article 21(3) of the Rome Statute’, 10 International Criminal Law Review (2010) 43–71; G. Hafner and C. Binder, ‘The Interpretation of Article 21(3) ICC Statute Opinion Reviewed’, 9 Austrian Review of International and European Law (2004) 163–190; J. Verhoeven, ‘Article 21 of the Rome Statute and the Ambiguities of Applicable Law’, XXXIII Netherlands Yearbook of International Law (2002) 3–22, at 14–15; A. Pellet, ‘Applicable Law’, in A. Cassese, P. Gaeta and J. Jones (eds), The Rome Statute of the International Criminal Court, supra note 55, 1051–1084 at 1079–1082; G. Edwards, ‘International Human Rights Challenges to the New International Criminal Court: The Search and Seizure Right to Privacy’, 26 Yale Journal of International Law (2001), 323–412 at 373–381. 64 See e.g., Pellet, supra note 63 at 1081: ‘Without doubt, Article 21(3) of the Statute does not give the ICC express jurisdiction to declare null the totality of a treaty, or even one of its provisions, which is contrary to ‘internationally recognized human rights’… Nevertheless, it creates a sort of “super-legality” by clearly authorizing the Court to hold such a norm to be “ultra vires” and thus inapplicable’; Bitti, supra note 63, at 438 ‘this provision might serve as a basis to set aside an article of the Statute which is, or which application would be, in contradiction with internationally recognized human rights’. 65 Bailey, supra note 63, refers to it as a ‘nebulous phrase’. See also: Grover, supra note 63, at 118, who states ‘there is no consensus on the content of internationally recognized human rights as a source of law, which is consistent with the larger debate about the content of international human rights’; Hafner and Binder, supra note 63, at 190 comment on ‘the vagueness of the provision’; Young, supra note 63, at 198–199 opines that the specific meaning ‘remains ambiguous and relatively unknown to international law’. 66 See e.g., K. J. Heller, ‘The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process’, 17 Criminal Law Forum (2006) 255–280, at 279.

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Human rights compliance  343 21(1).67 However, it has also been argued that Article 21(3) contains an implicit power to apply international human rights law and standards directly in order to comply with Article 21(3).68 Indeed, Article 21(1)(b)—which states that ‘in the second place, where appropriate, applicable treaties and the principles and rules of international law’ shall be applied—can be read as requiring the Court to apply international human rights as a secondary source of law. On the face of it, the Article is unclear and of limited scope. However, when it is read together with Article 21(3), strong arguments can be made that human rights treaties are ‘applicable’ in order to meet the requirements of Article 21(3), regardless of the fact that the ICC is not a state party to them. Moreover, it must always be ‘appropriate’ to apply international human rights law and standards in order to comply with the special rule in Article 21(3). The ICC has so far applied Article 21(3) in numerous instances applying a broad range of sources, including international human rights treaties and standards.69 In at least one decision, a Trial Chamber applied Article 21(3) as a basis not to apply a provision of the Rome Statute.70 Nonetheless, examining the Court’s jurisprudence as a whole, Article 21(3) has so far been applied sparsely71 and the Court has yet to address the scope of the provision in detail. This has led some commentators to plead for clarity.72

3.

HUMAN RIGHTS CONCERNS AND COMPLIANCE CHALLENGES

In its first 15 years, the ICC has developed a broad range of policies and systems to give effect to many of the rights in the Rome Statute. Chambers have made hundreds of decisions in their first cases to ensure that the rights of the accused are respected, to protect witnesses and to implement the innovative rights of victims. However, the reality of implementing the new and ambitious system of international justice in a highly politicized international environment, amid significant pressures for the ICC to be efficient and effective in delivering international justice (measured by many in the length of the proceedings and whether convictions are deliv-

See e.g., Young, supra note 63, at 207. See Bitti, supra note 63, at 437; Schabas, supra note 37, at 398: ‘The effect of Article 21(3) is both to expand such texts [on fair trial rights], to the extent that it may permit other procedural and substantive rights not listed in the provisions to be invoked before the Court, and also by ensuring that they apply to all proceedings before the Court, at every stage’; Davidson, supra note 63, at 97: ‘if we accept that human rights are by their nature progressive, Article 21(3) must reflect this by requiring the provisions to be a source of law applicable in and of itself’. 69 Bitti, supra note 63. 70 See Decision on an Amicus Curiae Application and on the ‘Requête Tendant à Obtenir Présentations des Témoins DRC-D02-P-0350, DRC-D02-P-0236, DRC-D02-P-0228 aux Authorités Néerlandaises aux Fins d’Asile (Arts 68 and 93(7) of the Statute), Katanga and Ngudjolo (ICC-01/04-01/07-3003-tENG), Trial Chamber II, 9 June 2011, § 73: the Chamber found that it was ‘unable to apply article 93(7) of the Statute in conditions which are consistent with internationally recognized human rights, as required by article 21(3) of the Statute’. 71 Research conducted by the students of Melbourne Law School’s International Criminal Justice Clinic in 2018 found that out of thousands of decisions taken by the ICC in its first 15 years, Art. 21(3) had been considered in fewer than 200 decisions. In most cases, only a passing reference was made to the provision. 72 See e.g., Bailey, supra note 63; Sheppard, supra note 63, at 71. 67 68

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344  The Elgar companion to the International Criminal Court ered), poor cooperation by states and severe underfunding, has resulted in a number of serious human rights concerns and compliance challenges. 3.A

Unequal Access to Justice

The fight against impunity starts—and in most cases collapses—with the failure of states to fulfil their obligations to provide victims with access to justice.73 Regrettably, the establishment of the ICC and initial efforts to promote complementarity have so far had little impact in securing justice at the national level.74 With the emergence of conflicts and large-scale human rights abuses in more than 20 situations under the ICC’s jurisdiction since 2002, there exists a massive demand for the ICC to step in and deliver justice to victims around the world. Controversially, until recently, the Office of the Prosecutor (OTP or Office) has focused primarily on conducting narrow and one-sided investigations of crimes committed by non-state actors in Africa.75 There is no express right of victims in the Rome Statute to access international justice before the ICC. Indeed, no one expects that the Court can, or should, deliver justice for all victims in every situation under its jurisdiction. The OTP has confirmed that ‘[t]his would be both practically unfeasible and run counter to the notion of complementary action at the international and national level’.76 The Prosecutor is therefore mandated by the Statute to decide the situations to be investigated,77 the cases to be prosecuted78 and the charges to be brought.79 However, such decision-making is not unfettered. It is subject to legal criteria and limited oversight by the relevant Chambers. For example, Article 53(1) provides that the Prosecutor shall initiate an investigation unless she or he determines that there is no reasonable basis to proceed under the Statute. The Prosecutor must consider the interests of victims, which includes their interests in accessing justice before the ICC. Under this Article, a decision not to proceed must be supported by ‘substantial reasons to believe that an investigation would not serve the interests of justice’. It may be reviewed by the Pre-Trial Chamber, which could request the Prosecutor to reconsider.80 Furthermore, the Statute requires that the Office must perform its role independently,81 impartially82 and objectively83 which are fundamental principles derived from international

See e.g., Art. 2(3) ICCPR; Human Rights Committee, General Comment 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add. 13, 26 May 2004, §§ 15–20; Basic Principles and Guidelines on the Right to a Remedy and Reparation for Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UN Doc. A/RES/60/147, 21 March 2006. 74 See e.g., Seils, supra note 12, at 305–327. 75 See Asad Kiyani’s chapter in this book for a discussion of case and situation selectivity in this respect. 76 Office of the Prosecutor, Policy Paper on Case Selection and Prioritisation, 15 September 2016, at § 5. 77 Art. 53(1) ICCSt. 78 Art. 58(1) ICCSt. 79 Art. 61(1) ICCSt. 80 Art. 53(3) ICCSt. 81 Art. 42 ICCSt. 82 Art. 42(7) ICCSt. 83 Art. 54(1) ICCSt. 73

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Human rights compliance  345 human rights law to guarantee both institutional fairness and effective remedies for victims. Therefore, whilst much attention has focused on whether the OTP has unfairly targeted Africa,84 a more legitimate question must be whether, by advancing investigations only in this region, the Office has complied with its statutory obligations in relation to the demands of victims from other regions—including Afghanistan, Colombia, Iraq, Mexico, Palestine and Ukraine—where national authorities deny them justice. To its credit, particularly since the second Prosecutor took office in 2012, the OTP has endeavoured to address some of these criticisms. In 2014, the Office opened its first non-African investigation into crimes committed in Georgia.85 An investigation into crimes by supporters of the current government in Côte d’Ivoire began in 2016, albeit five years delayed.86 In November 2017, after more than a decade of preliminary examination, the Prosecutor requested judicial authorization to open a new investigation in the Afghanistan situation.87 Moreover, in 2018, the OTP demonstrated commendable initiative by seeking and obtaining a judicial ruling that the ICC could exercise jurisdiction over the deportation of Rohingya people from Myanmar, which is not a state party to the Rome Statute, to Bangladesh, which has ratified.88 The OTP requested authorization to investigate certain crimes committed in the Bangladesh/Myanmar situation in July 2019.89 The OTP has also sought to increase the size of investigation teams.90 It appears to have abandoned its initial overly restrictive policy of pursuing only those bearing the greatest responsibility for crimes.91 Significantly, the Office has also committed that ‘the charges chosen will constitute, whenever possible, a representative sample of the main types of victimisation and of the communities which have been affected by the crimes in that situation’,92 paying particular attention to ‘crimes that have been traditionally under-prosecuted, such

See e.g., ICC Forum, ‘Africa Question: Is the International Criminal Court Targeting Africa Inappropriately’, available online at http://​iccforum​.com/​africa (visited on 18 September 2019). 85 ICC Press Release, ‘ICC Pre-Trial Chamber I authorizes the Prosecutor to open an investigation into the situation in Georgia’ (ICC-CPI-20160127-PR1183), 27 January 2016, available online at https://​ www​.icc​-cpi​.int/​pages/​item​.aspx​?name​=​pr1183 (visited 18 September 2019). 86 Proposed Programme Budget for 2017 of the International Criminal Court, ICC-ASP/15/10, 17 August 2016, § 90. 87 Statement of ICC Prosecutor, Fatou Bensouda, regarding her decision to request judicial authorisation to commence an investigation into the Situation in the Islamic Republic of Afghanistan, 3 November 2017. 88 Decision on the ‘Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute’ (ICC-RoC46(3)-01/18-37), Pre-Trial Chamber I, 6 September 2018. 89 Request for authorization of an investigation pursuant to Article 15, Situation in the People’s Republic of Bangladesh / Republic of the Union of Myanmar (ICC-01/19-7), Pre-Trial Chamber III, 4 July 2019. 90 See e.g., Report of the Court on the Basic Size of the Office of the Prosecutor, ICC-ASP/14/21, 17 September 2015, at 43–50. 91 OTP, Policy Paper on Case Selection and Prioritisation, supra note 76, at § 42, ‘the need to consider the investigation and prosecution of a limited number of mid- and high-level perpetrators in order to ultimately build the evidentiary foundations for case(s) against those most responsible. The Office may also decide to prosecute lower-level perpetrators where their conduct has been particularly grave or notorious.’ 92 Ibid. at § 45. 84

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346  The Elgar companion to the International Criminal Court as crimes against or affecting children as well as rape and other sexual and gender-based crimes’.93 These are positive steps that, if fully implemented, will go a long way toward addressing criticisms of the OTP’s past practice. However, it is notable that the OTP has avoided making any express commitments to expand its efforts to meet the yet-unanswered demands for international justice in numerous backlogged situations. This can be partly attributed to budgetary restrictions imposed by the Assembly at the insistence of the governments of Canada, France, Germany, Italy, Japan and the UK, which have repeatedly demanded zero growth regardless of the negative impacts on the Court’s work.94 But it must also be pointed out that the OTP has so far shown little appetite to demand that its funders provide it with the resources that it says it needs.95 This calls into question the extent of its ambitions to pursue justice for victims. Furthermore, the role of the judiciary in ensuring that victims have access to justice remains unclear. On the one hand, there have been strong indications from some pre-trial chambers that they will push for the OTP to conduct more timely preliminary examinations. In particular, Pre-Trial Chamber I remarked in its ruling on jurisdiction on the situation in Bangladesh/Myanmar that delays by the OTP in reaching a determination on whether to seek an investigation are inconsistent with the Statute and internationally recognized human rights contrary to Article 21(3).96 Pre-Trial Chamber I has also insisted that the OTP properly reconsider its decision not to open an investigation into an attack by Israeli Defence Forces on a Humanitarian Aid Flotilla bound for the Gaza Strip in 201097—an approach that has been upheld by the Appeals Chamber.98 On the other hand, Pre-Trial Chamber II’s highly controversial and potentially ultra vires99 decision that it was not in the ‘interests of justice’ to authorize

Ibid. at § 46; see also OTP, Policy Paper on Sexual and Gender-Based Crimes, June 2014. See e.g., E. Evenson and J. O’Donohue, ‘Still falling short—the ICC’s Capacity Crisis’, Open Democracy, 3 November 2015, available online at https://​www​.opendemocracy​.net/​en/​openglobalrights​ -openpage/​still​-falling​-short​-icc​-s​-capacity​-crisis/​ (visited 18 September 2019); E. Evenson and J. O’Donohue, ‘States shouldn’t use the ICC’s Budget to interfere in its work’, Open Democracy, 23 November 2016, available online at https://​ www​ .opendemocracy​ .net/​ openglobalrights/​ elizabeth​ -evenson​-jonathan​-o​-donohue/​states​-shouldn​-t​-use​-icc​-budget​-to​-interfere​-w (visited 18 September 2019); Proposed Programme Budget for 2020 of the International Criminal Court, ICC-ASP/18/10, 25 July 2019, at § 22: ‘On account of the limited resources approved for 2019 and the subsequent need for internal redeployment of resources among existing situations and cases, the pace of some investigative activities has been negatively affected.’ 95 See M. Cannock and J. O’Donohue, ‘Don’t ask and you won’t receive: Will the ICC request the resources it needs in 2019’, Human Rights in International Justice, 2 May 2018, available online at: https://​hrij​.amnesty​.nl/​icc​-zero​-growth​-dont​-ask​-and​-you​-wont​-receive/​ (visited 18 September 2019). 96 Decision on the ‘Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute’, supra note 88, §§ 80–88. 97 Decision on the ‘Application for Judicial Review by the Government of the Union of Comoros’, Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia (ICC-01/13-68), 15 November 2018. 98 Judgment on the appeal of the Prosecutor against Pre-Trial Chamber I’s decision on the ‘Application for Judicial Review by the Government of the Union of Comoros’, Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia (ICC-01/13-98), Appeals Chamber, 2 September 2019. 99 See D. Jacobs, ‘Some extra thoughts on why the ICC Pre-Trial Chamber acted ultra vires in using the “interests of justice” to not open an investigation in Afghanistan’, Spreading the Jam, 12 April 2019, available online at https://​dovjacobs​.com/​2019/​04/​12/​some​-extra​-thoughts​-on​-why​-the​-icc​ 93

94

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Human rights compliance  347 an investigation in the Afghanistan situation100 (which at the time of writing is under appeal), demonstrates the potential for judicial decisions to negate access to international justice. Unless and until these issues and challenges are resolved, the ICC’s ability to provide equal access to international justice to victims around the globe hangs in the balance. 3.B

Deference to Unfair National Trials

Unlike its predecessors that had primacy over national justice initiatives, the Rome Statute provides that the ICC can only step in when national authorities are unable or unwilling to genuinely investigate and prosecute crimes under the jurisdiction of the Court. In three situations, Kenya, Libya and Côte d’Ivoire have responded to ICC investigations or cases by challenging the admissibility of the Court pursuant to Article 19(2) of the Rome Statute, arguing that their national authorities are able and willing to address the same conduct.101 However, in some instances, the prospect of national trials has raised serious human rights concerns for the accused. Clearly reluctant to get drawn into ruling on the effectiveness of national justice systems, the ICC has asserted that: ‘the Court was not established to be an international court of human rights, sitting in judgment over domestic legal systems to ensure that they are compliant with international standards of human rights’.102 However, practice demonstrates that the Court cannot simply ignore or downplay domestic human rights concerns in taking decisions relating to complementarity without encountering grave legal and moral dilemmas and potentially reaching outcomes that condone human rights violations and injustice. In 2014, the Appeals Chamber, interpreting and applying Article 17’s provisions on admissibility, upheld a decision by Pre-Trial Chamber I to defer the ICC’s case against Abdullah Al-Senussi to a weak Libyan justice system, plagued by interference and attacks against lawyers and the judiciary.103 At the time of the decision, Al-Senussi had no access to a lawyer and claimed he had been seriously ill-treated in pre-trial detention. He was subsequently subjected to an unfair trial, which was heavily criticized by UN observers,104 and sentenced to death. In justifying its decision that the case was inadmissible, the Appeals Chamber emphasized that it was not an international court of human rights.105 However, acknowledging that

-pre​-trial​-chamber​-acted​-ultra​-vires​-in​-using​-the​-interests​-of​-justice​-to​-not​-open​-an​-investigation​-in​ -afghanistan/​(visited 18 September 2019). 100 Decision pursuant to Article 15 of the Rome Statute on the authorization of an investigation into the situation into the Islamic Republic of Afghanistan, Situation in the Islamic Republic of Afghanistan (ICC-02/17-33), Pre-Trial Chamber II, 12 April 2019. 101 See C. K. Hall, D. Nserenko and M. J. Ventura, ‘Article 19’ in Triffterer and Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary, supra note 47 at 868–871. 102 Judgment on the appeal of Mr. Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October 2013 entitled ‘Decision on the admissibility of the case against Abdullah Al-Senussi’, Gaddafi and Al-Senussi (ICC-01/11-01/11-565), Appeals Chamber, 24 July 2014, at § 219. 103 Ibid. 104 United Nations Support Mission in Libya, ‘Libya Gaddafi regime trial fell short of international standards – report’, 21 February 2017, available online at https://​unsmil​.unmissions​.org/​libya​-gaddafi​ -regime​-trial​-fell​-short​-international​-standards​-–​-un​-report (visited 18 September 2019). 105 Judgment on the appeal of Mr. Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October 2013 entitled ‘Decision on the admissibility of the case against Abdullah Al-Senussi’, Gaddafi and Al-Senussi, supra note 102, at § 219.

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348  The Elgar companion to the International Criminal Court Article 21(3) underpins the Statute as a whole,106 the Chamber did not follow a restrictive interpretation advanced by some academics that Article 17 ‘requires the Court to defer to the State no matter how unfair those proceedings may be’.107 It also ruled out an equally extreme academic ‘case for tolerating flawed domestic trials’ unless it can be shown that the ‘trial’ is little more than a prelude to extrajudicial execution or arbitrary imprisonment.108 Nevertheless, it found the case was inadmissible by inventing the following threshold and concluding that the violations alleged by Al-Senussi were not sufficient for the ICC to claim the case: There may be circumstances, depending on the facts of the individual case, whereby violations of the rights of the suspect are so egregious that the proceedings can no longer be regarded as capable of providing any genuine form of justice to the suspect so that they should be deemed, in those circumstances, to be ‘inconsistent with an intent to bring that person to justice’.109

Recognizing that not all violations of the rights of the accused render a fair trial impossible, the Chamber’s decision to establish a threshold of violations was reasonable. However, many of the elements of the test are opaque and provide Chambers with a broad discretion to determine what violations are acceptable or not. Its application in this case is particularly unconvincing. If the serious allegations of violations against Al-Senussi were not sufficiently egregious for the ICC to find that the case was admissible, it begs the question—what would be? Although the OTP arguably has grounds to seek a review of the admissibility decision pursuant to Article 19(10),110 regrettably it has so far shown no indication of doing so. In a similar scenario, the Presidency approved the Democratic Republic of Congo’s (DRC) application pursuant to Article 108 to prosecute Germain Katanga for other offences after he completed his ICC sentence of imprisonment.111 In response to Katanga’s arguments that the application should be dismissed because, in practice, he would not have access to legal aid to fund defence counsel and that there was no right of appeal against a judgment before the Haute Cour Militaire, the Presidency again emphasized that the ICC is not an international court of human rights.112 Further justifying its decision, the Presidency relied on submissions by the DRC government that the prosecution would ‘occur consistently with the rights of the defence recognized in the constitution of the DRC’ and DRC’s ratifications of the ICCPR

Ibid. at § 229. K. J. Heller, ‘The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process’, 17 Criminal Law Forum (2006) 255–280, at 257. 108 Judgment on the appeal of Mr. Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October 2013 entitled ‘Decision on the admissibility of the case against Abdullah Al-Senussi’, supra note 102, at § 230; see: F. Mégret and M. G. Samson, ‘Holding the Line on Complementarity in Libya: The Case for Tolerating Flawed Domestic Trials’, 11 Journal of International Criminal Justice (2013) 571–589, at 577–581. 109 Judgment on the appeal of Mr. Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October 2013 entitled ‘Decision on the admissibility of the case against Abdullah Al-Senussi’, supra note 102, at § 230. 110 See J. Trahan, ‘The International Criminal Court’s Libya Case(s)—The Need for Consistency with International Human Rights as to Due Process and the Death Penalty’, 17 International Criminal Law Review (2017), 803–843 at 824–837. 111 Decision pursuant to Article 108(1) of the Rome Statute, Katanga (ICC-01/04-01/07-3679), Presidency, 7 April 2016. 112 Ibid. at § 31. 106 107

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Human rights compliance  349 and the African Charter on Human and Peoples’ Rights.113 However, these factors alone were unlikely to address the well-documented systematic flaws in the DRC’s criminal justice system.114 Regrettably, although the Appeals Chamber recognized the potential significance of the issues raised by Germain Katanga in a notice of appeal, it rejected the appeal (without any consideration of its obligations under Article 21(3)) on the grounds that neither the Statute nor the Rules provide for an appeal of a decision under Article 108.115 If ‘injustice anywhere, is injustice everywhere’, then one must ask whether the ICC—as the flagship of international criminal justice created to ensure the ‘effective prosecution’ of the most serious crimes of concern to the international community—has seriously lost its way with these decisions. There is, of course, a distinction between the ICC and treaty-based human rights courts. However, it is disingenuous of the Court to imply that such differences negate its responsibilities to apply all provisions of the Rome Statute and other applicable law consistently with internationally recognized human rights. 3.C

ICC Fair Trial Concerns

Despite strong academic and civil society interest in the ICC’s first cases, there has been a notable lack of structured trial monitoring of the ICC’s proceedings, leading to generalizations about the fairness of the first cases.116 However, significant fair trial concerns have emerged in some cases and a number of cross-cutting issues have threatened to undermine the rights of the accused. 3.C.1 Fairness in the first cases Reactions to the ICC’s first conviction of Thomas Lubanga Dyilo in March 2012 mostly concluded that the proceedings were fair. Specific emphasis was attached to the fact that Trial Chamber I had twice stayed the proceedings until fair trial concerns relating to non-disclosure by the OTP have been addressed.117 The acquittal of Mathieu Ngudjolo in December 2012 by Trial Chamber II was cautiously acknowledged as a disappointment to victims but a sign of judicial fairness.118 However, the

Ibid. See e.g., Amnesty International, The Time for Justice Is Now: New Strategy Needed in the Democratic Republic of Congo, August 2011, available online at https://​www​.amnesty​.org/​en/​ documents/​AFR62/​006/​2011/​en/​(visited 18 September 2019); Human Rights Watch, Etats Généraux of the Justice System in the Democratic Republic of Congo: Recommendations on the Fight Against Impunity for Grave International Crimes, 27 April 2015, available online at https://​www​.hrw​.org/​news/​ 2015/​04/​27/​etats​-generaux​-justice​-system​-democratic​-republic​-congo (visited 18 September 2019). 115 Decision on the admissibility of Mr. Katanga’s appeal against the ‘Decision pursuant to article 108(1) of the Rome Statute’, Katanga (ICC-01/04-01/07-3697), Appeals Chamber, 9 June 2016, § 16. 116 Open Society Justice Initiative launched the International Justice Monitor in 2014, available online at https://​www​.ijmonitor​.org (visited 18 September 2019); Amnesty International started its Human Rights in International Justice project in 2017, see https://​hrij​.amnesty​.nl (visited 18 September 2019). 117 See e.g., Human Rights Watch, DR Congo: Q&A on the First Verdict at the International Criminal Court, 29 February 2012, available online at https://​www​.hrw​.org/​news/​2012/​02/​29/​dr​-congo​-qa​-first​ -verdict​-international​-criminal​-court (visited 18 September 2019). 118 See e.g., M. Kersten, ‘The ICC and Justice in the Wake of the Ngudjolo Acquittal’, Justice in Conflict’, 26 December 2012, available online at https://​justiceinconflict​.org/​2012/​12/​26/​the​-icc​-and​ -justice​-in​-the​-wake​-of​-the​-ngdjolo​-acquittal/​ (visited 18 September 2019). 113 114

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350  The Elgar companion to the International Criminal Court Chamber’s decision a month earlier to separate the case against Ngudjolo’s co-accused— Germain Katanga—and to recharacterize the charges against him as an accessory instead of a principal perpetrator, resulting in further proceedings and Katanga’s conviction in March 2014, proved highly controversial. The majority of the Trial Chamber concluded that the timing of the recharacterization—after the prosecution and the defence had presented their cases in the joint trial—was fair.119 However, Judge Van Den Wyngaert, in a minority opinion, argued strongly that the recharacterization took place so late in the proceedings and was conducted in a such a manner that it was ‘fundamentally unfair and has violated several of the accused’s most fundamental rights’.120 A number of academics reached similar conclusions, including arguing that ‘the majority redefined the case to favour the prosecution and conviction, at the expense of the rights of the accused’.121 Some argued that Regulation 55—the provision that the Chamber relied on—was ultra vires.122 Unfortunately from the perspective of clarity, Katanga decided not to appeal the decision. Having served seven years of his 12-year sentence at the time of the final judgment, he was eligible to have his sentence reviewed a year later. Although legitimate questions have been asked about the apparent failures of the OTP’s investigations and the effectiveness of the ICC’s systems of victim and witness protection in the collapsed Kenya cases, there was little criticism of the judicial decisions to stop the trials.123 However, Trial Chamber V(a)’s decision not to acquit William Ruto and Joshua Sang but to vacate the charges against them ‘without prejudice to their prosecution afresh in the future’, even though the OTP had completed the presentation of its case before the trial was terminated, raises serious questions as to whether the approach is consistent with the prohibition of ne bis in idem.124 Trial Chamber VIII’s management of Ahmad Al Faqi Al Mahdi’s admissions of guilt, applying the safeguards in Article 65 for the first time, was generally viewed as a success for the ICC.125 Whilst much attention has focused on the interpretation of command responsibility in the Bemba case, judicial divisions also emerged regarding the adjudication of evidence that have potentially far reaching consequences for the fairness of other cases. Before the trial had 119 Judgment pursuant to Article 74 of the Statute, Katanga (ICC-01/04-01/07-3436-tENG), Trial Chamber II, 7 March 2014, §§ 1422–1595. 120 Minority Opinion of Judge Christine Van Den Wyngaert, Katanga (ICC-01/04-01/07-3436-AnxI), Trial Chamber II, 7 March 2014, at 34–78. 121 S. Rigney, ‘Case Note: “The words don’t fit you”: Recharacterization of the Charges, Trial Fairness and Katanga’, 15 Melbourne Journal of International Law (2014), 515–533. See also: K. J. Heller, ‘A Stick to Hit the Accused with: The Legal Recharacterization of Facts under Regulation 55’, in Stahn (ed.), The Law and Practice of International Criminal Court, supra note 12, at 981–1006; Y. McDermott, Fairness in International Criminal Trials, supra note 7 at 65–66. 122 Heller, ibid. at 982–989. 123 See e.g., International Commission of Jurists Kenya, The Unfortunate Termination of Ruto and Sang Cases at the International Criminal Court, April 2016, available online at http://​iccnow​.org/​ documents/​Statement​_on​_the​_ICC​_Decision​_to​_vacate​_charges​_againist​_Rutoand​_Sang​.pdf (visited 18 September 2019). 124 Decision on Defence Applications for Judgments of Acquittal, Ruto and Sang, Trial Chamber V(a) (ICC-01/09-01/11-2027), 5 April 2016. 125 See e.g., M. Aksenova, ‘The Al-Mahdi Sentence and Judgment at the ICC: A source of cautious optimism for International Criminal Justice’, EJIL: Talk!, 13 October 2016, available online at https://​ www​.ejiltalk​.org/​the​-al​-mahdi​-judgment​-and​-sentence​-at​-the​-icc​-a​-source​-of​-cautious​-optimism​-for​ -international​-criminal​-justice/​(visited 18 September 2019).

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Human rights compliance  351 started, Trial Chamber III took the radical step of deciding to admit all evidence outlined in a list provided by the OTP, based on ‘a prima facie finding of the admissibility of the evidence’, even though the Prosecution had not actually submitted all the evidence to the Chamber and an item by item consideration of its content had not been conducted.126 The decision was reversed on interlocutory appeal, however the Appeals Chamber held that a trial chamber could ‘defer its consideration of these criteria [relevance and admissibility] until the end of the proceedings, making it part of its assessment of the evidence when it is evaluating the guilt or innocence of the accused person’.127 Trial Chamber III did not wait until the end of the trial to rule on admissibility of evidence in this case. However, the defence complained about the length of time it took to reach decisions, the uncertainty this caused and its impact on their ability to present an effective defence.128 Furthermore, in overturning the Trial Chamber’s conviction, Appeals Chambers judges in the majority emphasized their concerns relating to the manner in which the Trial Chamber considered the evidence admitted (including its apparent failure to establish the reliability of sources of hearsay evidence,129 its reliance on a large amount of circumstantial evidence in relation to key findings,130 and the application of evidence to the ‘beyond a reasonable doubt standard’131), as well as the opacity of the trial judgment in terms of outlining the evidentiary basis for many of its findings. Two of the judges in the majority went as far as stating: [I]t is important to recognise that the strong divergence in how we evaluate the Conviction Decision is not just a matter of difference of opinion, but appears to be a fundamental difference in the way we look at our mandates as international judges. We seem to start from different premises, both in terms of how the law should be interpreted and applied and in terms of how we conceive of our role as judges. While we do not presume to speak for our colleagues, it is probably fair to say that we attach more importance to the strict application of the burden and standard of proof. We also seem to put more emphasis on compliance with due process norms that are essential to protecting the rights of the accused in an adversarial trial setting.132

Regrettably, despite this disturbing assessment of the extent of the judicial divisions, the Appeals Judgment did little to clarify the obligations of trial chambers in applying Article 69 of the Statute and relevant Rules of Evidence and Procedure in future cases. Given that a differently constituted Appeals Judgment in the Bemba et al. witness tampering case had a few months earlier endorsed Trial Chamber VII’s approach of refusing to rule on the admissibility

126 Decision on the admission into evidence of materials contained in the prosecution’s list of evidence, Bemba (ICC-01/05-01/08-1022), Trial Chamber III, 19 November 2010. 127 Judgment on the appeals of Mr. Jean-Pierre Bemba Gombo and the Prosecutor against the decision of Trial Chamber III entitled ‘Decision on the admission into evidence of materials contained in the prosecution’s list of evidence’, Bemba (ICC-01/05-01/08-1386), Appeals Chamber, 3 May 2011, § 37. 128 Defence Motion on outstanding decisions on the admission of evidence, Bemba (ICC-01/05-01/08-2828), Trial Chamber III, 7 October 2013. 129 Separate opinion Judge Christine Van den Wyngaert and Judge Howard Morrison, Bemba (ICC-01/05-01/08-3636-Anx2), Appeals Chamber, 8 June 2018, § 8. 130 Ibid. at § 11. 131 Ibid. at § 14. 132 Ibid. at § 4.

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352  The Elgar companion to the International Criminal Court of evidence at all in that case,133 fundamental issues of adjudication of evidence in ICC cases remain unresolved to the potential detriment of accused persons in other cases.134 Trial Chamber I’s decision in February 2019 to acquit Laurent Gbagbo and Charles Blé Goudé before the defence had even presented its case, especially in light of the majority’s findings that the OTP’s evidence was ‘exceptionally weak’135 and Judge Van Den Wyngaert’s strong dissenting opinion to Pre-Trial Chamber I’s decision confirming charges against Laurent Gbagbo,136 begs the question whether the OTP’s case should have ever been allowed to go to trial. The integrity of the OTP’s case has been further tainted by the publication in October 2017 of leaked e-mails indicating that the OTP requested French authorities to ensure the detention of Laurent Gbagbo after he was removed as President of Côte d’Ivoire in 2011, months before the ICC had even opened an investigation.137 That it took the Trial Chamber three years from the start of the trial to rule that there was no case to answer, all the while both accused persons were held in detention without interim release, raises further concerns regarding its management of the proceedings. Indeed, in his separate opinion Judge Tarfusser states that differences in approaches ‘repeatedly fractured the Chamber’.138 In particular, by allowing the OTP to submit ‘mountains of documents’ without prompt rulings on admissibility,139 the majority of which Judge Henderson states ‘would not pass even the most rudimentary admissibility tests in many domestic systems’,140 must have affected the efficiency of the process. Given that Bemba’s conviction in the main trial was overturned and Gbagbo and Blé Goudé were acquitted, fair trial concerns regarding the opacity of adjudication of evidence in those cases have been overshadowed by debates focusing on the performance of the ICC and other issues arising from the judgments.141 Nevertheless, Trial Chamber IX’s recent rejection of the

Judgment on the appeals of Mr. Jean-Pierre Bemba Gombo, Mr. Aimé Kilolo Musamba, Mr. Jean-Jacques Mangenda Kabongo, Mr. Fidèle Babala Wandu and Mr. Narcisse Arido against the decision of Trial Chamber VII entitled ‘Judgment pursuant to Article 74 of the Statute’, Bemba et al. (ICC-01/05-01/13-2275), Appeals Chamber, 8 March 2018, §§ 602–628. 134 For a summary of fair trial concerns of the approach in the Bemba et al. case, see: C. Loiero, ‘Admitting mistakes or admitting evidence—It’s not too late for the ICC to get it right’, Human Rights in International Justice, 4 May 2018, available online at https://​hrij​.amnesty​.nl/​icc​-bemba​-et​-al​-judgment​ -admitting​-mistakes​-on​-admitting​-evidence/​ (visited 18 September 2019). 135 Oral decision on the Prosecutor’s request under Article 81(3)(c)(i) of the Rome Statute to maintain Mr. Gbagbo and Mr. Blé Goudé in detention pending appeal, transcript of the hearing, Gbagbo and Blé Goudé (ICC-02/11-01/15-T-234-ENG), Trial Chamber I, 16 January 2019, at 4 line 5. See also Reasons of Judge Geoffrey Henderson, Gbagbo and Blé Goudé (ICC-02/11-01/15-1263-AnxB -Red), Trial Chamber I, 16 July 2019; Opinion of Judge Cuno Tarfusser. Gbagbo and Blé Goudé (ICC-02/11-01/15-1263-AnxA), 16 July 2019. 136 Dissenting Opinion of Judge Christine Van den Wyngaert, Gbagbo (ICC-02/11-01/11-656-Anx), Pre-Trial Chamber I, 12 June 2014. 137 The devious manoeuvres behind ex-Ivorian leader Lauren Gbagbo’s trial at the ICC, Mediapart, 8 October 2017, available online at https://​www​.mediapart​.fr/​en/​journal/​international/​081017/​devious​ -manoeuvres​-behind​-ex​-ivorian​-leader​-laurent​-gbagbos​-trial​-icc (visited 18 September 2019). 138 Opinion of Judge Cuno Tarfusser, supra note 135, § 6. 139 Ibid. 140 Reasons of Judge Geoffrey Henderson, supra note 135, § 36 141 See e.g., D. Guilfoyle, ‘Part I—This Is Not Fine: The International Criminal Court in trouble’, EJIL: Talk!, 21 March 2019, available online at https://​www​.ejiltalk​.org/​part​-i​-this​-is​-not​-fine​-the​ -international​-criminal​-court​-in​-trouble/​ (visited 18 September 2019). 133

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Human rights compliance  353 request by Dominic Ongwen’s defence for the Chamber to rule on the admissibility of the evidence submitted so far during the trial demonstrates that this remains a live issue.142 Fortunately, amidst the judicial disputes in the Appeals Chamber and other trial chambers, Trial Chamber VI delivered a judgment in the Ntaganda case in July 2019 that applied greater diligence in adjudicating and applying evidence. During the trial the Chamber decided on relevance and admissibility as evidence was submitted.143 It demonstrated caution in relation to hearsay and circumstantial evidence144 and it explained, including through the use of extensive footnotes, the basis for its findings in relation to the evidence that had been admitted. Initial commentaries on the judgment (which is subject to appeal) have been described it as ‘staid’ and ‘methodical’.145 It can only be hoped that trial chambers conducting future trials will follow similar approaches, which are fairer, more transparent and result in more reasoned and therefore compelling judgments. 3.C.2 Cross-cutting fair trial concerns In addition to the fair trial issues arising in the ICC cases so far, there are a number of systemic issues and external challenges that threaten to undermine the rights of the accused. a. Inadequate legal aid An expert study commissioned by the Registry reported in 2017 that defence teams receive significantly less legal aid at the ICC than at other international criminal courts.146 In particular it recommended increasing the composition of defence teams at some stages147 and increasing the defence’s investigation and expert budget.148 Although at the time of writing the ICC Registry is developing a new legal aid policy that is due to be submitted to the Assembly for consideration at its 18th session at the end of 2019,149 the process has been dominated by demands from some states for any revisions to be ‘within existing resources’.150 These have been supported by the Assembly’s Committee on Budget and Finance, which has labelled legal aid as a ‘very significant cost driver’151 and called for the review to be ‘more respectful

142 Decision on Defence Request regarding the Evidentiary Regime, Ongwen (ICC-02/04-01/15-1546), Trial Chamber IX, 19 June 2019. An application by the defence for leave to appeal the decision was subsequently rejected by the Trial Chamber, see: Decision on the Defence Request for Leave to Appeal the Decision on the Defence Request regarding the Evidentiary Regime, Ongwen (ICC-02/04-01/15-1563), Trial Chamber IX, 18 July 2019. 143 Judgment, Ntaganda (ICC-01/04-02/06-2359), Trial Chamber VI, 8 July 2019, § 49. 144 Ibid. at §§ 48–76. 145 D. Guilfoyle, ‘A Tale of Two Cases: Lessons for the Prosecutor of the International Criminal Court? (Part I)’, EJIL: Talk!, 28 August 2019, available online at https://​www​.ejiltalk​.org/​a​-tale​-of​-two​ -cases​-lessons​-for​-the​-prosecutor​-of​-the​-international​-criminal​-court/​ (visited 18 September 2019). 146 R. J. Rogers, Assessment of the ICC’s Legal Aid System, 5 January 2017, at 15–21, available online at https://​www​.icc​-cpi​.int/​itemsDocuments/​legalAidConsultations​-LAS​-REP​-ENG​.pdf (visited 18 September 2019). 147 Ibid. at 30–31. 148 Ibid. at 36–37. 149 Strengthening the International Criminal Court and the Assembly of States Parties, ICC-ASP/17/ Res. 5, 12 December 2017, Annex 1, § 8. 150 Ibid. 151 Report of the Committee on Budget and Finance on the work of its twenty-sixth session, ICC-ASP/15/5, 12 July 2016, § 12.

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354  The Elgar companion to the International Criminal Court of the budgetary limits approved by the Assembly’.152 However, legal aid for the defence accounts for only 2.2 per cent of the total budget request of the Court for 2020153—compared to 32 per cent of resources allocated to the OTP.154 Moreover, legal aid is not a cost driver. It is an ‘essential element of a functioning criminal justice system that is based on the rule of law’.155 According to international standards, a comprehensive legal aid system must be put in place that is ‘accessible, effective, sustainable and credible’.156 If the new policy fails to meet these criteria it would be inconsistent with the rights of the accused in the Statute to prepare and present an effective defence and could seriously damage the credibility of the Court. b. Interim and post-acquittal release Since the ICC was established, all applications by accused persons for interim release have been rejected or overturned on appeal,157 amid growing criticism of the legal basis for some decisions158 and the Appeals Chamber’s failure to even consider concerns raised in the Gbagbo case.159 Even if a Chamber had decided to order interim release, the Appeals Chamber has held that a state willing to accept the accused person must be identified before a decision can be taken.160 However, of the 123 states parties to the Rome Statute, only Argentina and Belgium have entered into a cooperation agreement to accept such persons.161 Critically, in at least one situation, the Host State of the Court has been unwilling to cooperate with interim release under any conditions.162 Similar problems with obtaining state cooperation arose in releasing Charles Blé Goudé following his acquittal. Despite his acquittal, the Appeals Chamber overturned the Trial Chamber’s order for unconditional release and ordered his conditional release in light of an

152 Report of the Committee on Budget and Finance on the work of its thirtieth session, ICC-ASP/17/5, 31 May 2018, § 12. 153 Proposed Programme Budget for 2020 of the International Criminal Court, supra note 94, §§ 512–513. 154 Ibid. at § 159. 155 Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, UNGA Resolution 67/187, adopted on 20 December 2012, § 1. 156 Ibid. at § 2. 157 See e.g., A. Dumbryte, ‘The Roads to Freedom—Interim Release in the Practice of the ICC’, in Stahn (ed.), The Law and Practice of International Criminal Court, supra note 12, at 1063–1083. 158 See in particular Decision on Mr. Gbagbo’s Detention, Dissenting opinion of Judge Cuno Tarfusser, Gbagbo and Blé Goudé (ICC-02/11-01/15-1038-Anx), Trial Chamber I, 25 September 2017; Decision on Mr. Gbagbo’s Detention, Dissenting opinion of Judge Cuno Tarfusser, Gbagbo and Blé Goudé (ICC-02/11-01/15-846-Anx), Trial Chamber I, 10 March 2017. 159 Decision on Mr. Laurent Gbagbo’s Notice of Appeal, Gbagbo (ICC-02/11-01/15-1047), Appeals Chamber, 5 October 2017; C. Loiero, ‘Interests of Justice and Compliance with the Court’s Regulations: Did the ICC forget what rules are for?’, Human Rights in International Justice, 23 October 2017, available online at https://​hrij​.amnesty​.nl/​gbagbo​-release​-interests​-of​-justice/​ (visited 18 September 2019). 160 Judgment on the appeal of the Prosecutor against Pre-Trial Chamber II’s ‘Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic, and the Republic of South Africa’, Bemba (ICC-01/05-01/08-631-Red), Appeals Chamber, 2 December 2009, at § 106. 161 Report of the Court on cooperation, ICC-ASP/17/16, 29 October 2018, § 59. 162 Decision on the ‘Requête de mise en liberté’ submitted by the Defence for Jean-Jacques Mangenda, Bemba et al. (ICC-01/05-01/13-261), Pre-Trial Chamber II, 17 March 2014, at § 42.

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Human rights compliance  355 intention expressed by the Prosecutor to appeal the judgment.163 Judge Tarfusser subsequently noted in his separate opinion to the acquittal in July 2019: For Mr Blé Goudé, this regime, compounded by the Court’s inability to secure meaningful cooperation by the Dutch authorities, resulted in him being confined to a closed location, at exorbitant costs for the Court, in a situation of ‘house arrest’ comparable, if not virtually equivalent, to remaining in detention, which is still ongoing.164

c. Restrictive application of article 82(1)(d)? Article 82(1)(d) provides the parties with a potentially vital avenue to raise and remedy fair trial concerns when they arise during proceedings. It provides that a pre-trial chamber or trial chamber can grant leave for an interlocutory appeal of a decision that involves an issue that would ‘significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial’. However, an initial review of the Court’s practice indicates that the provision may have been applied restrictively.165 Statements by Judge de Brichambaut in May 2017 that he and the other judges in the Bemba et al. case agreed ‘interlocutory appeals shouldn’t even exist, we will ignore it’, have further fuelled concern that the statutory provision is not being fully implemented.166 It is therefore an issue that requires further monitoring and analysis. d. Efforts to expedite proceedings at the expense of the accused In response to criticism of the length of the ICC’s first cases and pressure from states parties,167 the ICC has made expediting the criminal process a top priority.168 In 2011, the Court established a ‘Working Group on Lessons Learnt’ process169 made up of interested ICC judges, which has so far proposed several amendments to the Rules of Procedure and Evidence,170

163 Judgment on the Prosecutor’s appeal against the oral decision of Trial Chamber I pursuant to article 81(3)(c)(i) of the Statute, Gbagbo and Blé Goudé (ICC-02/11-01-15-1251-Red2), Appeals Chamber, 21 February 2019. 164 Opinion of Judge Cuno Tarfusser, supra note 135, at § 117. 165 Research of decisions on whether to grant leave to appeal conducted by students of the Melbourne Law School’s International Criminal Justice Clinic in 2017 reviewed 66 applications by the defence for leave of which seven were granted. 166 See K. J. Heller, ‘Problematic statements by the French Judge at the ICC’, Opinio Juris, 3 May 2019, available online at http://​opiniojuris​.org/​2019/​05/​03/​problematic​-statements​-by​-the​-french​-judge​ -at​-the​-icc/​(visited 18 September 2019). 167 See J. O’Donohue, ‘The ICC and the ASP’, in Stahn (ed.), The Law and Practice of the International Criminal Court, supra note 12, at 118. 168 See ICC press release, ‘ICC Judges agree on measures to improve efficiency of criminal process’ (ICC-CPI-20150622-PR1121), 22 June 2015, available online at https://​www​.icc​-cpi​.int/​Pages/​item​ .aspx​?name​=​pr1121​&​ln​=​en (visited 18 September 2019). 169 See P. Ambach, ‘The “Lessons Learnt” Process at the International Criminal Court—A Suitable Vehicle for Procedural Improvements?’, Zeitschrift für Internationale Strafrechtsdogmatik, at 854–867, available online at http://​www​.zis​-online​.com/​dat/​artikel/​2016​_12​_1074​.pdf (visited 18 September 2019). 170 Ibid. at 860–864; see also O’Donohue, supra note 167, at 118–120.

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356  The Elgar companion to the International Criminal Court adapted the Regulations of the ICC171 and established a Chambers Practice Manual.172 Particular progress seems to have been achieved in streamlining the pre-trial process and the transition to trial as well as clarifying procedures relating to disclosure. However, despite commitments that expeditiousness will be achieved ‘without negatively impacting on fairness’,173 some of the proposed rule changes appear to favour the prosecution or scale back on the rights of the accused. Amendments to Rule 68 adopted by the Assembly in 2013 go much further than their purported purpose to ‘reduce the length of proceedings and streamline evidence presentation’.174 Of particular concern, new Rule 68(C) permits Chambers to admit potentially incriminating statements that go to the acts and conduct of the accused without cross-examination by the defence of the statement giver. Other controversial proposals have been proposed by the Working Group on Lessons Learnt that scale back on the Court’s obligations to translate prosecution witness statements into a language that the accused fully understands175 and to remove certain procedural safeguards for the rights of the accused in trials of offences against the administration of justice.176 Following concern by some states177 and NGOs,178 these amendments have not been adopted, although they remain under consideration by the Assembly’s Working Group on Amendments. The need to expedite the criminal process also appears to have been a consideration in the decisions of some trial chambers to defer ruling on the relevance and admissibility of evidence in some cases.179 Judge de Brichambaut stated that by not accepting interlocutory appeals it

171 See e.g., ICC Press Release, ‘ICC Judges amend the Regulations of the Court’ (ICC-CPI-20170720-PR1326), 20 July 2017, available online at https://​www​.icc​-cpi​.int/​Pages/​item​.aspx​ ?name​=​pr1326 (visited 18 September 2019). 172 Chambers Practice Manual, 3rd edn., 12 May 2017, available online at https://​www​.icc​-cpi​.int/​ chambers​_practice​_manual (visited 18 September 2019). 173 Judge Silvia Fernández de Gurmendi, ‘Fair trial in a confluence of legal traditions’, Keynote presentation on the occasion of the commemoration of the Day of International Criminal Justice, 12 July 2017, available online at https://​asp​.icc​-cpi​.int/​iccdocs/​asp​_docs/​Events/​ICJDay/​2017/​2017​-DICJ​ -170712​-ST​-ICC​-President​-ENG​.pdf (visited 18 September 2019). 174 Report of the Working Group on Amendments, ICC-ASP/12/44, 24 October 2013, § 8. 175 Report of the Bureau on Study Group on Governance, ICC-ASP/13/28, 28 November 2014, Annex 1, § 5. 176 Report on the Adoption by the Judges of Provisional Amendments to Rule 165 of the Rules of Procedure and Evidence, 29 February 2016. 177 See Report of the Working Group on Amendments, ICC-ASP/15/24, 8 November 2016, at 4–7. 178 See e.g., Amnesty International, Amendments to Rule 165 of the International Criminal Court’s Rules of Procedure and Evidence must ensure fair trials and the rights of the accused, 28 September 2016, available online at https://​www​.amnesty​.org/​en/​documents/​ior53/​4910/​2016/​en/​ (visited 18 September 2019). 179 Decision on Prosecution Requests for Admission of Documentary Evidence (ICC 01/05-01/13-1013-Red, ICC-01/05-01/13-1113-Red, ICC-01/05-01/13-1170-Conf), Bemba et al. (ICC-01-05-01/13-1285), Trial Chamber VII, 24 September 2015, § 12: ‘a significant amount of time is saved by not having to assess an item’s relevance and probative value at the point of submission and again at the end of the proceedings; Decision on the submission and admission of evidence, Gbagbo and Blé Goudé (ICC-02/11-01/15-405), Trial Chamber I, 29 January 2016, § 14: ‘deferral will prevent (or at least significantly circumscribe) the need for multiple—and possibly contradictory—rulings on one and the same item of evidence and thus contribute to the expeditiousness of the trial’; Initial Directions on the Conduct of the Proceedings, Ongwen (ICC-02/04-01/15-497), Trial Chamber IX, 13 July 2016, § 25.

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Human rights compliance  357 allowed the Trial Chamber ‘to reach a decision from the beginning of the trial process to the end of the trial process in 400 days’.180 Relying on the right of the accused to trial without undue delay, the ICC often conflates fairness and expeditiousness as though they are the same side of the coin.181 But this ignores the real possibility that measures to expedite the process may come into conflict with other rights of the accused, such as the right to adequate time and facilities for the preparation of the defence, which should never be considered to be ‘undue delay’. As the Appeals Chamber has noted: ‘[w]hile expeditiousness is an important component of a fair trial, it cannot justify a deviation from statutory requirements’.182 Therefore, where a conflict arises, the rights of the accused expressly listed in Article 67 and other internationally recognized human rights that the Court must respect in accordance with Article 21(3) must take precedence over broader ambitions for expeditiousness. e. Pressure to convict For some commentators, the Katanga case was emblematic of incoherence towards the very notion of fairness in international criminal justice, with the ICC caught between its imperative goal of ‘end impunity’ and conducting trials with ‘full respect for the rights of the accused’.183 Indeed, according to the Appeals Chamber, Regulation 55, which was applied in the case to recharacterize the charges at the end of the joint trial, was adopted by a plenary of judges for the purpose of closing ‘accountability gaps’.184 In the Appeals Chamber’s view, failing to permit a Trial Chamber to revisit the legal characterization that was confirmed by the Pre-Trial Chamber at the end of the confirmation procedure ‘bears the risk of acquittals that are merely the result of legal qualifications confirmed in the pre-trial phase that turn out to be incorrect, in particular based on the evidence presented at trial. This would be contrary to the aim of the Statute to “put an end to impunity” (fifth paragraph of the Preamble)’.185 While there is some merit in the argument, it is this emphasis on ending impunity and avoiding ‘technical acquittals’,186 not to mention how Regulation 55 was applied in the Katanga case, that has sounded alarm bells for many fair trial advocates, leading them to question

Transcription of speech by Judge Marc Perrin de Brichambaut at Peking University Law School (Beijing) on 17 May 2017, available online at https://​www​.icc​-cpi​.int/​RelatedRecords/​CR2019​_02039​ .PDF (visited 18 September 2019). 181 See e.g., Second Court’s report on the development of performance indicators for the International Criminal Court, 11 November 2016, stated that ‘the concepts of expeditiousness and fairness are in fact intertwined and affecting each other, and that relevant indicators may either relate to both or that fairness-related values many need to be read in light of expeditiousness and vice versa’. It went on to define common indicators that focused solely on the speed of the proceedings. 182 Judgment on the appeals of Mr. Jean-Pierre Bemba Gombo and the Prosecutor against the decision of Trial Chamber III entitled ‘Decision on the admission into evidence of materials contained in the prosecution’s list of evidence’, supra note 127, §55. 183 Rigney, supra note 121, at 522–523. 184 Judgment on the appeals of Mr. Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled ‘Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court’, Lubanga (ICC-01/04-01/06-2205), Appeals Chamber, 8 December 2009, at § 77. 185 Ibid. 186 Minority Opinion of Judge Christine Van Den Wyngaert, Katanga, supra note 120, at § 10. 180

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358  The Elgar companion to the International Criminal Court whether Chambers have aligned themselves too closely with the aims of the prosecution to achieve convictions. That is not to say that the ICC judges have lost sight of judicial fairness. After all, the Court has so far delivered four acquittals (some of which are subject to appeals),187 refused to confirm charges against four persons188 and terminated cases against four other persons due to lack of evidence.189 Some ICC judges have publicly dismissed notions that convictions are a hallmark of the Court’s success.190 Nevertheless, serious concerns arising from the Katanga case in the context of expectations that the ICC should deliver convictions in the small number of cases that it prosecutes at substantial expense to the international community must not be downplayed. Indeed, there is a thin line between taking measures to avoid technical acquittals—which may arise in substantive and procedural law—and developing a system of subtle show trials.191 Meeting their obligations to ensure that trials are fair and fully respect the rights of the accused, demands that the ICC Judges are vigilant in applying the existing legal framework192 and exercise utmost caution when considering efforts to expand their powers and discretion.

187 Judgment pursuant to article 74 of the Statute, Ngudjolo (ICC-01/04-02/12-3-tENG), Trial Chamber II, 12 April 2013; Judgment on the appeal of Mr. Jean-Pierre Bemba Gombo against Trial Chamber III’s ‘Judgment pursuant to Article 74 of the Statute’, Bemba (ICC-01/05-01/08-3636-Red), Appeals Chamber, 8 June 2018; Reasons for oral decision of 15 January 2019 on the Requête de la Défense de Laurent Gbagbo afin qu’un jugement d’acquittement portant sur toutes les charges soit prononcé en faveur de Laurent Gbagbo et que sa mise en liberté immédiate soit ordonnée, and on the Blé Goudé Defence no case to answer motion, Gbagbo and Blé Goudé (ICC-02/11-01-15-1263), Trial Chamber I, 16 July 2019. 188 Decision on the Confirmation of Charges, Abu Garda (ICC-02/05-02-09-243-Red), Pre-Trial Chamber I, 8 February 2010; Decision on the Confirmation of Charges, Mbarushimana (ICC-01/04-01/10-465-Red), Pre-Trial Chamber I, 16 December 2011; Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, Ruto, Kosgey and Sang (ICC-01/09-01/11-373), Pre-Trial Chamber II, 23 January 2012; Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, Muthaura, Kenyatta and Hussein Ali (ICC-01/09-02/11-382-Red), Pre-Trial Chamber II, 23 January 2012. 189 Decision on the withdrawal of charges against Mr. Muthaura, Muthaura and Kenyatta (ICC-01/09-02/11-696), Trial Chamber V, 18 March 2013; Decision on the withdrawal of charges against Mr. Kenyatta, Kenyatta (ICC-01/09-02/11-1005), 13 March 2015; Decision on Defence Applications for Judgments of Acquittal, Ruto and Sang (ICC-01/09-01/11-2027-Red-Corr), Trial Chamber V(a), 5 April 2016. 190 Decision of Defence Applications for Judgments of Acquittal, Ruto and Sang (ICC-01/09-01/11 -2027-Red-Corr), Trial Chamber V(A), 5 April 2016, at 63: Judge Eboe-Osuji stated ‘Conviction in every criminal case is never the hallmark of success—or “performance indicator”, to borrow a fashionable phrase—for a court of law. The hallmark of success for a court of law is, quite simply, to do justice. No more, no less. It does not matter which party is the beneficiary when justice is done.’ Minority Opinion of Judge Christine Van Den Wyngaert, Katanga, supra note 120, at § 310 ‘The Court’s success or failure cannot be measured just in terms of “bad guys” being convicted and innocent victims receiving reparation. Success or failure is determined first and foremost by whether or not the proceedings, as a whole, have been fair and just …’. 191 See G. Simpson, Law, War and Crime (Cambridge: Polity Press, 2017), at 116: ‘in the use of novel legal procedures and newly minted substantive laws, the trials held in The Hague reveal some uncomfortable parallels with the classic show trials’. 192 See e.g., D. Robinson, ‘The Identity Crisis of International Criminal Law’, 21 Leiden Journal of International Law (2008) 925–963 which argues that many aspects of international criminal law,

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Human rights compliance  359 3.D

Ineffective Approaches to the Rights of Victims and Witnesses193

Despite significant efforts and investment, the ICC has struggled to give effect to the rights of victims and witnesses in the Statute across multiple situations with insufficient resources. Victim and witness protection demands have been high in most of the situations under investigation, with little or no reliable national witness protection systems to support the ICC’s work. Allegations of witness interference have emerged in almost all of the ICC’s cases194 and a significant number of victims are considered to be at such serious risk that they require relocation to other countries. The ICC estimates that around 170 witnesses and victims, as well as 480 dependents could be under the protection and care of its Victims and Witnesses Section in 2020.195 Yet, at the end of 2018—partly due to the ICC’s unconvincing strategy of framing such cooperation as ‘voluntary’, when a much stronger argument could be made that relocation forms part of states parties’ general obligation to cooperate with the Court196—only 20 of the 122 states parties had entered into agreements to relocate victim and witnesses.197 As a result, many of those who have committed to engage in the international criminal justice process are subject to temporary protection arrangements meaning that they are ‘unable to durably settle in a new environment, and live in constant anxiety inherent to temporary situations’.198 High numbers of victims seeking to participate and obtain reparation in many of the cases affirm the relevance and importance of the Rome Statute’s ambitious victims’ mandate. 199 But this has also raised practical and administrative challenges that have been exacerbated by inconsistent and ineffective approaches by different Chambers and under-investment by the Court and states parties. This has led to confusion, frustration and poor outcomes for many victims. In its first cases, the ICC granted participatory status to thousands of victims. 200 However, many others missed out due to ineffective outreach,201 confusing application processes202 and

including the definitions of crimes, principles of liability and defences involve serious departures from fundamental principles of ‘a liberal criminal justice system’. 193 For a more detailed analysis of the ICC’s approach to victims’ rights see G. Carayon and J. O’Donohue, ‘The International Criminal Court’s Strategies in Relation to Victims’, 15 Journal of International Criminal Justice (2017), 567–591. 194 Office of the Prosecutor Strategic Plan 2016–2018, 6 July 2015, § 27; Open Society Justice Initiative, Witness Interference in Cases before the International Criminal Court (2016), at 2–3 available online at https://​www​.opensocietyfoundations​.org/​sites/​default/​files/​factsheet​-icc​-witness​-interference​ -20161116​.pdf (visited 18 September 2019). 195 Proposed Programme Budget for 2020 of the International Criminal Court, supra note 94, at 168. 196 Art. 86 ICCSt. 197 Report of the Court on cooperation, ICC-ASP/17/16, 29 October 2018, at § 59. 198 Report of the Court on cooperation, ICC-ASP/15/9, 11 October 2016, at § 44. 199 See the annual breakdown of new applications for participation and reparation between 2010 and 2018 in Report on the activities of the International Criminal Court, ICC-ASP/18/3, 25 July 2019, Annex V. 200 Proposed Programme Budget for 2020 of the International Criminal Court, supra note 94, at § 446 states that there are 8,174 victims participating in proceedings before the Court. 201 Carayon and O’Donohue, supra note 193, at 572–574. 202 For a summary of a number of different approaches adopted by different Chambers see Report of the Court on the implementation in 2013 of the Revised Strategy in Relation to Victims, ICC-ASP/12/41, 11 October 2013, at §§ 30–33.

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360  The Elgar companion to the International Criminal Court unrealistic deadlines.203 More recent progress has, however, been made toward addressing the procedure for admission of victims in the Chambers Practice Manual.204 In a number of cases, victims accepted to participate have not been given a choice or even adequately consulted in the appointment of their common legal representative.205 Legal representatives have complained that a lack of resources undermines their ability to perform the role, in particular to keep in regular contact with their clients.206 The 2017 expert study of the legal aid system recognized that the system was not sufficiently tailored to the work of legal representatives and called for a legal aid policy dealing exclusively with victims’ representation.207 A new legal aid policy is being developed that will hopefully address this issue. However, as with defence legal aid, any increase in funding is likely to meet opposition from the Committee on Budget and Finance and a number of states parties. At the time of writing, the ICC has issued reparation orders in the Lubanga,208 Katanga209 and Al Mahdi210 cases. The two latter orders have endorsed the principles on reparation developed in Lubanga211 that, in accordance with Article 21(3), draw significantly from human rights law and standards. However, chambers have adopted different procedures for victims to apply for reparation, approaches to consulting with victims and modalities of reparation, leading to very different outcomes in each case. For example, in the Lubanga case, child soldier victims were restricted to collective reparation;212 in the Katanga case, victims were awarded a combination of collective and individual measures;213 and in Al Mahdi, individual reparation was reserved for those considered to be most affected directly by the crimes and collective measures were awarded to the community as a whole in Timbuktu.214 As all three convicted persons were determined to be indigent, the onus has fallen on the Trust Fund for Victims to implement the orders, but it is funded primarily by inconsistent voluntary contributions from states parties and has limited resources to perform its functions. The Appeals Chamber’s decision to overturn the conviction of Jean-Pierre Bemba, which led to the termination of the reparation process that had been commenced by Trial Chamber III following the trial judgment, has raised further questions about the timing and conduct of See e.g., First Report on Applications to Participate in the Proceedings, Ongwen (ICC-02/04-01/15-530), Registry, 2 September 2016, §§ 12–13: in order to meet the deadline for applications set by the judges, VPRS had to experiment with limiting its assistance to one person per household, excluding many victims. 204 Chambers Practice Manual, supra note 172. 205 See Human Rights Watch, ‘Who Will Stand for Us? Victims’ Legal Representation at the ICC in the Ongwen Case and Beyond’, (2017), available online at https://​www​.hrw​.org/​report/​2017/​08/​29/​who​ -will​-stand​-us/​victims​-legal​-representation​-icc​-ongwen​-case​-and​-beyond (visited 18 September 2019). 206 See e.g., Urgent request by the Victims’ Representative pursuant to regulations 83(4) of the Regulations, Ruto and Sang (ICC-01/09-01/11-420), Trial Chamber V, 1 June 2012. 207 Rogers, Assessment of the ICC’s Legal Aid System, supra note 146, at § 310. 208 Order for reparations (amended), Lubanga (ICC-01/04-01/06-3129-AnnxA), Appeals Chamber, 3 March 2015. 209 Order for Reparations pursuant to Article 75 of the Statute, Katanga (ICC-01/04-01/07-3728-tENG), Trial Chamber II, 24 March 2017. 210 Reparations Order, Al Mahdi (ICC-01/12-01/15-236), Trial Chamber VIII, 17 August 2017. 211 Order for Reparations pursuant to Article 75 of the Statute, Katanga, supra note 209, § 30; Reparations Order, Al Mahdi, supra note 210, at § 26. 212 Order for reparations (amended), Lubanga, supra note 208, at § 53. 213 Order for Reparations pursuant to Article 75 of the Statute, Katanga, supra note 209, § 281. 214 Reparations Order, Al Mahdi, supra note 210, §§ 83 and 89. 203

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Human rights compliance  361 reparation processes.215 Having engaged with a group of experts appointed by the Chamber, which had prepared a detailed report including recommendations for a reparation order,216 the legal representative of victims reported to the Chamber that victims experienced ‘disappointment and hopelessness’ at the decision to terminate the process.217 At its 17th session, the Assembly of States Parties requested the ICC to update its 2013 Strategy in Relation to Victims, which provides an important opportunity for the Court to seek to resolve many of these issues.218 Following a retreat by the Assembly’s Bureau in June 2019, the Bureau is also considering a range of measures aimed at strengthening the Court and the Rome Statute system,219 including appointing experts to advise the Assembly and the ICC on victim participation and reparation.

4.

STRENGTHENING THE ICC’S HUMAN RIGHTS RECORD

The Rome Statute promised an ICC that would achieve the highest standards of fairness to the accused, break new ground in giving effect to the rights of victims and witnesses and comply with internationally recognized human rights in all aspects of its work. It set a high bar that the Court in practice has so far strived, but often struggled, to clear in the face of internal incoherence, competing expectations, lack of state cooperation and insufficient resources. If the ICC is to build its credibility and maintain its integrity in an increasingly volatile international political environment and survive the inevitable attacks against its work, its human rights record must be strengthened. First and foremost, the onus must be on the ICC to prioritize human rights compliance in all aspects of its work over and above competing ambitions such as the expeditiousness of proceedings or ending impunity for perpetrators. This requires a clear definition of institutional purpose and understanding of fairness taking into account the rights and interests of all parties and participants. In this regard, Judge Van Den Wyngaert was correct when she stated: My view is that the trial must be first and foremost fair towards the accused. Considerations about procedural fairness for the Prosecutor and the victims and their Legal Representatives, while certainly relevant, cannot trump the rights of the accused. After all, when all is said and done, it is the accused—and only the accused—who stands trial and risks losing his freedom and property. In order for a court of law to have the legal and moral authority to pass legal and moral judgment on someone, especially when it relates to such serious allegations as international crimes, it is essential, in my view, to scrupulously observe the fairness of the proceedings and to apply the standard of proof

215 See e.g., ‘Bemba case highlights need for reparative justice’, Human Rights in International Justice, 10 October 2018, available online at https://​hrij​.amnesty​.nl/​bemba​-case​-highlights​-need​-for​ -reparative​-justice/​(visited 18 September 2019). 216 Expert report on reparation, Bemba (ICC-01/05-01/08-3575-Anx-Corr2-Red), Trial Chamber III, 30 November 2017. 217 Legal Representatives of Victims’ joint submissions on the consequences of the Appeals Chamber’s Judgment dated 8 June 2018 on the reparations proceedings, Bemba (ICC-01/05-01/08-3649), Trial Chamber III, 12 July 2018, § 2. 218 Strengthening the International Criminal Court and the Assembly of States Parties, ICC-ASP/17/ Res.5, § 110. 219 Agenda and decisions, Seventh meeting of the Bureau of the Assembly of States Parties, 17 July 2019.

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362  The Elgar companion to the International Criminal Court consistently and rigorously. It is not good enough that most of the trial has been fair. All of it must be fair.220

To ensure that the rights of the accused are fully respected in every case it is particularly important that adequate time and facilities, including sufficient legal aid to prepare an effective defence, be prioritized to ensure equality of arms. A coherent, thorough and transparent approach to the admission and adjudication of evidence must be adopted and applied in all cases. Fair trial concerns should be addressed as they arise through interlocutory appeals rather than at the end of the trial. With the benefit of more than 15 years of experience, it is also now time for the ICC to establish consistent and effective procedures and approaches to implement victims’ rights to participation and reparation across all cases through further development of the Chambers Practice Manual and the Court’s Strategy in relation to victims. While the ICC cannot deliver justice and full and effective reparation to all victims, it should seek to achieve as much as possible within the limits of its mandate and other external challenges by establishing a system of reparative justice that can act as a catalyst for all victims to pursue and be provided with remedies at the national level.221 In interpreting and applying the Statute and all sources of law, the ICC must comply with the special rule in Article 21(3) by ensuring consistency with internationally recognized human rights. To ensure that the rule is applied transparently and effectively, consideration should be given to requiring all decisions to include a statement of whether or not issues of compliance with internationally recognized human rights arise and, if so, an explanation of how they have been addressed. As highlighted throughout, many challenges are beyond the control of the ICC and compliance is often made impossible by lack of state cooperation and significant underfunding. The Court should be more transparent about the consequences of these failings and much clearer in making demands of states. But states parties must take primary responsibility for addressing their failings in relation to the human rights compliance of the Court. An apparent renewed commitment by the Bureau to strengthen the ICC and Rome Statute system in the lead-up to the 18th session of the Assembly is an important opportunity to confront these challenges. In particular, consideration should be given to establishing a subsidiary body that monitors states parties’ efforts to support the human rights compliance of the Court, provides a forum to discuss and resolve common challenges and to make recommendations to states parties and the Assembly on cooperation, funding and other needs. Finally, it is vital that the human rights organizations that were instrumental in creating the Court refocus their efforts on ensuring that human rights challenges are addressed. Having played such a key role in establishing the ICC, they must prioritize efforts to ensure that it complies with human rights, including by monitoring proceedings, identifying human rights concerns and advocating effective solutions, including through litigation. When the ICC and states fail to meet their human rights obligations, they must demand accountability, remedies and necessary reforms.

Minority Opinion of Judge Christine Van Den Wyngaert, Katanga, supra note 120, at §§ 310–311. See ‘Bemba case highlights need for reparative justice’, supra note 215.

220 221

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15. Re-writing sex and gender in international criminal law Rosemary Grey and Louise Chappell

1. INTRODUCTION In libraries and universities devoted to the study of international law, portraits of white, male scholars and jurists abound. These, after all, are the ‘fathers’ of international law. It should come as no surprise then, that international laws relating to initiating and waging war tend to reflect a male worldview.1 For example, writing in the seventeenth century, Hugo Grotius is said to have portrayed women and children as ‘bystanders, beings not fully conscious of the world around them—not actors, but rather objects, in the tableau of the battlefield’.2 A century later, Emer de Vattel argued that because nations cannot sustain themselves without procreation, ‘a nation of men therefore has a right to procure women’, and if that ‘right’ is not met, the nation ‘may justly have recourse to force’.3 Over the course of the twentieth century, the laws of war started to be applied to hold individual statesmen and military leaders to account—that is, responsibility was imposed on individual people, rather than only on states. This field of international law, which now spans war crimes, crimes against humanity, genocide, and aggression, became known as international criminal law (ICL). The last three decades have seen a rapid development in the practice of ICL, beginning with the creation of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993. One of the most important developments in this period has been the shift away from international law’s historically masculine orientation, and towards a more inclusive worldview. This is partly a result of the increased participation of women in ICL, including within the judiciary, in high-level prosecutor positions, and in treaty-making processes. But it is also the result of an ever-expanding feminist scholarship in the field of international criminal law, and the advocacy of women’s rights and gender justice activists in this field, who have challenged archaic and masculinist narratives of conflict, so that the experiences of women and other marginalized groups become visible. A defining feature of this feminist scholarship and activism has been the attention to gender-based crimes, particularly crimes of sexual violence. Attention to this category of crimes is necessary because, historically speaking, gender-based crimes have received very H. Charlesworth and C. Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester University Press, 2000). 2 D. Amann, ‘The Post-Postcolonial Woman or Child’, 30(1) American University International Law Review (2014) 41–52, at 47–48. 3 E. de Vattel, The Law of Nations or, Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns (Philadelphia: T. & J.W. Johnson, 1867), at 272–273 (§ 122, Chap. IX, Book II) (‘Right of carrying off women’). De Vattel conceded that ‘no woman in particular can be constrained in her choice’ but had nothing to say about how the marginal social and economic position of women that might make any such ‘choice’ illusory. 1

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364  The Elgar companion to the International Criminal Court little attention in the field of international criminal law. The reason is in part because of the disproportionate impact of these crimes on a marginalized group, namely, women and girls. Women and girls were not at the centre of international or national governance, and thus, their particular experiences tended to be overlooked or trivialized in international and national justice processes. Such a pattern is common among relatively powerless groups. As Lisa Davis has explained: ‘War-time abuses against people who are marginalized within their societies are rarely documented. As a result, such violations are excluded from human rights discourse and from justice processes. In effect, they are left out of history.’4 The 1998 Rome Statute for the International Criminal Court (ICC), which entered into force in 2002, creates new opportunities to re-write conventional histories of war so that the experiences of marginalized groups come to the fore. In particular, the Statute enables experiences of gender-based crimes to move to the centre of narratives of war and genocide told by the Court. It does so by providing the ICC Office of the Prosecutor with a clear mandate to investigate and prosecute gender-based crimes—including, but not limited to, crimes of sexual violence. This is the result of concerted activism during the Rome Statute negotiations by women’s rights advocates operating as the Women’s Caucus for Gender Justice, together with the advocacy and support of like-minded states. In this chapter, we analyse the ways in which feminist reformers have sought to challenge convention narratives of conflict during the ICC’s creation, and we consider the extent to which narratives have changed in the practice of the Court. The chapter charts the role of feminist actors in unsettling gender narratives in international criminal law, particularly through the ICC. We seek to provide a nuanced discussion of dominant narratives, counter-narratives and what we call counter-counter-narratives across the different stakeholder communities engaging with the Court. As we show, the reforms that feminists have sought in this respect have changed over time: while making sexual violence visible in war narratives was the initial priority, more recent feminist activism and scholarship have focused on changing the explanations provided for this sexual violence, and ensuring that gender-based crimes which are not sexual in character are investigated and prosecuted also. The feminist actors identified in this chapter have come from varying backgrounds. First, they include feminist legal scholars and human rights activists—in short, feminist law reformers—who have sought to make international criminal law more responsive to the gender dimensions of international crimes. In addition, they include gender-sensitive practitioners working within international criminal courts and tribunals: that is, investigators, prosecutors, and judges who have grappled with the challenges of prosecuting and adjudicating gender-based crimes within existing legal frameworks, and within time and resource(s) constraints. And crucially, they include state representatives, such as delegates involved in the Rome Statute negotiations and beyond, who have supported proposals to make international criminal law more gender-aware. The chapter shows that despite the effort of these actors, changing conventional, masculinist narratives of conflict has neither been straightforward nor completely successful. Shaping and embedding narratives that counter the mainstream in institutions is always more difficult than it seems. New counter-narratives always raise contentions, reflecting potential new priorities, L. Davis, ‘Reimagining Justice for Gender-Based Crimes at the Margins: New Legal Strategies for Prosecuting ISIS Crimes Against Women and LGBTIQ Persons’, 24(3) William & Mary Journal of Women and the Law (2018) 513–558, at 516. 4

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Re-writing sex and gender in international criminal law  365 new relationships and new ways of interpreting the world.5 Controversy is especially evident when it comes to reshaping sex and gender narratives, as the process will always involve a recalibration of power relations, including between dominant (usually male) and subordinate (usually female and marginalized sex and gender identities) members of society. International criminal tribunals, like all institutional settings, have experienced these controversies. Within this field, feminist legal actors have faced contention on at least two fronts. They have needed to push against those seeking to maintain existing gender narratives. At the ICC, this has included certain states parties, Court officials, academics, and other stakeholders who either actively worked against feminist law reformers in an effort to maintain women’s subordinate position for religious, cultural or political reasons, or have wilfully or absent-mindedly ignored new gender justice frames.6 In this sense, we can say feminist efforts to shift the frame of women and gender operates as a counter-narrative to the gender status quo. There also exists a second layer of contestation that has come from within the feminist legal community itself—among these actors, there has been a contest of ideas about which narratives are the most valuable in advancing women’s rights and acknowledging gender justice claims. Specifically, as will be discussed below, there are feminists that argue that the narrative emphasizing the end of impunity for sexual violence crimes is not only too narrow, but it can also create further harms. Sometimes critiquing these efforts as ‘governance feminism’,7 these ‘alternative’ feminist interlocutors advance what might be called a ‘counter-counter-narrative’: these narratives work against both the ‘mainstream’ and also against feminist actor voices that emphasize impunity and subjection. Thus, in the field of international criminal law, changing the narrative around gender violence is a difficult and ongoing process: it requires activism within and outside the system, and navigating conflicts on multiple fronts. Who has the right to speak ‘for’ women, and the right to determine which narratives of gender violence are told, is a highly contested question. Our aim here is not to answer this question, but to show how different voices within and outside feminism have grappled with this question in the context of international criminal law. After this discussion in Section 1, the chapter is divided into five further sections. Section 2 focuses on a central demand of feminist scholars and activists: the increased visibility of sexual violence in proceedings before international criminal courts. As we show, this counter-narrative has been embraced in the ICC, at least insofar as female experiences of sexual violence are concerned. Section 3 discusses other ways that feminists have sought to re-write official narratives of war, including by reframing rape as a weapon of war, and by surfacing the concept of ‘gender’ in international criminal law. Section 4 explores the opposition that feminists in the field of international criminal law have encountered. This includes challenges within feminism, including critiques about a perceived over-emphasis on sexual 5 V. Lowndes and M. Roberts, Why Institutions Matter: The New Institutionalism in Political Science (London: Palgrave, 2013). 6 V. Oosterveld, ‘Constructive Ambiguity, Legal Uncertainty and the Meaning of “Gender” for the International Criminal Court’, 16(4) International Feminist Journal of Politics (2014) 563–580; L. Chappell, ‘Contesting Women’s Rights: Charting the Emergence of a Transnational Conservative Patriarchal Network?’, 20(4) Global Society (2006) 491–519; L. Chappell, The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy (Oxford: Oxford University Press, 2016), at 30–50. 7 J. Halley, ‘Rape at Rome: Feminist Interventions in the Criminalization of Sex-Related Violence in Positive International Criminal Law’, 30(1) Michigan Journal of International Law (2008) 1–123.

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366  The Elgar companion to the International Criminal Court violence crimes, as well as resistance from conservatives. Bringing these threads together, Section 5 considers how the narrative around gender violence in international criminal courts evolved in the years ahead. Section 6 offers our conclusions about the challenges of rewriting narratives around gender violence in international criminal law. We illustrate our arguments by reference to ICC cases up until September 2019—the Rome Statute’s 21st year. Our examples come mainly from cases which are approaching the end of trial or have passed that milestone, namely the Lubanga, Ngudjolo & Katanga, and Ntaganda cases, all of which concern the 2002–2003 conflict in Ituri, Democratic Republic of Congo (DRC), and the Bemba case, which focused on the 2002–2003 conflict in the Central African Republic (CAR).8 Due to their advanced stage of proceedings, these cases offer the most scope for analysis. However, occasional reference is made to other cases that show how the court-authored narratives continue to evolve.

2.

VISIBILITY OF SEXUAL VIOLENCE

Challenging conventional narratives of war so that sexual violence becomes visible has long been a focus of feminist scholarship in the practice of international criminal law. Until recently, the focus of this scholarship has been on female experiences of sexual violence. However, increasingly, feminists have sought to raise the visibility of sexual violence against men and boys too. In this section, we discuss these efforts to increase attention to sexual violence crimes and consider how far the ICC has progressed in this regard. 2.A

Female Experiences of Sexual Violence

For centuries, access to women’s bodies has been considered one of the ‘spoils of war’. Despite this long history of sexual violence against women and girls, the issue received very little attention in international criminal law until recently.9 For the most part, these crimes were overlooked in international treaties. At best, they were described as violations of ‘honour’, rather than as crimes causing extremely serious physical and mental harm.10 Sexual violence against women and girls also received little attention in the prosecutions in the tribunals that marked the start of modern international criminal law, namely the International Military Tribunal at Nuremberg, and the International Military Tribunal for the Far East in Tokyo.11 This pattern continued into the 1990s, following the creation of

8 The trial has also concluded in the Al Mahdi case, from the situation in Mali. However, as that case was not concerned with sexual or gender-based crimes, it is not discussed here. 9 K. Askin, ‘Prosecuting Wartime Rape and Other Gender Related Crimes: Extraordinary Advances, Enduring Obstacles’, 21 Berkeley Journal of International Law (2003) 288, at 294–296; 299–300; 303–305; R. Copelon, ‘Gender Crimes as War Crimes: Integrating Crimes against Women into International Criminal Law’, 46 McGill Law Journal (2000) 217–349, at 220–221. 10 Copelon, ibid. at 221; C. Niarchos, ‘Women, War, and Rape: Challenges Facing the International Tribunal for the Former Yugoslavia’, 17(4) Human Rights Quarterly (1995) 629–690, at 674. 11 Copelon, ‘Gender Crimes as War Crimes’, supra note 9, at 221–223; Askin, ‘Prosecuting Wartime Rape’, supra note 9, at 300–303; K. Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals (Leiden: Martinus Nijhoff, 1997), at 129–202; G. Kirk MacDonald, ‘Crimes of Sexual Violence: The Experience of the International Criminal Tribunal’, 39 Columbia Journal of

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Re-writing sex and gender in international criminal law  367 the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). A well-known example is the ICTR’s first case, Akayesu, which did not, at the commencement of trial, include any charges for the widespread rape of women in the Taba commune. Another example stems from the ICTY’s first case, Tadić, when the Prosecutor’s early filings described the sexualized torture of male detainees as more ‘serious’ than the repeated gang-rape of female detainees in facilities run by the Serbian forces.12 It took inventions from feminist scholars and activists in the form of amicus curiae briefs, together with the persistence of progressive tribunal investigators, prosecutors, and judges, to ensure that sexual violence was investigated and charged in the ICTY and ICTR, allowing a new narrative about the prevalence and gravity of these crimes to emerge.13 Of the two tribunals, the ICTY was more successful in shaping this new narrative. Its case law confirms that sexual violence can constitute crimes against humanity including torture, enslavement, and persecution on political, racial, and/or religious grounds, and grave breaches of the 1949 Geneva Conventions including torture, wilfully causing great suffering, inhumane treatment, and outrages on personal dignity.14 The ICTR was less effective at investigating and prosecuting sexual violence crimes. It gave rise to some groundbreaking cases, including the Akayesu case, in which sexual violence was regarded as an act of genocide, a crime against humanity, and a war crime.15 However, after Akayesu, the ICTR Prosecutor’s Office paid less attention to these crimes, with one critic taking the view that it ‘neglected, de-emphasised, or at times botched’ the prosecution of sexual violence crimes.16 These developments in the ad hoc tribunals coincided with, and influenced, efforts to raise the profile of sexual violence crimes in the Rome Statute. Leading this advocacy was the Women’s Caucus for Gender Justice (the Caucus), a network of feminist scholars and activists who organized a lobby group that joined the ICC Statute Preparatory Committee in February 1997 and remained a strong presence throughout negotiations for the Rome Statute and the ICC Elements of Crimes.17 Together with like-minded states, the Caucus was largely successTransnational Law (2010) 1–17, at 10; R. Grey, Prosecuting Sexual and Gender-Based Crimes at the International Criminal Court: Practice, Progress, and Potential (Cambridge: Cambridge University Press, 2019), at 69–79. 12 Copelon, ‘Gender Crimes as War Crimes’, supra note 9; Grey, ‘Prosecuting Sexual and Gender-Based Crimes at the ICC’, supra note 11, at 79–80. 13 Askin, ‘Prosecuting Wartime Rape’, supra note 9, at 318–346; Copelon, ‘Gender Crimes as War Crimes’, supra note 9, at 223–233; B. Van Schaack, ‘Engendering Genocide: The Akayesu Case Before the International Criminal Tribunal for Rwanda’ (Santa Clara Law School Digital Commons, 2008). 14 See Askin, ‘Prosecuting Wartime Rape’, supra note 9, at 321–346; H. Brady, ‘The Power of Precedents: Using the Case Law of the Ad Hoc International Criminal Tribunals and Hybrid Courts in Adjudicating Sexual and Gender-Based Crimes at the ICC’, 18 Australian Journal of Human Rights (2012) 75–108; S. Brammertz and M. Jarvis (eds), Prosecuting Conflict-Related Sexual Violence in the ICTY (Oxford: Oxford University Press, 2016). 15 Askin, ‘Prosecuting Wartime Rape’, supra note 9, at 318–321; Van Schaack, ‘Engendering Genocide’, supra note 13. 16 Idem, ‘Obstacles on the Road to Gender Justice: The International Criminal Tribunal for Rwanda as Object Lesson’, 17 American University Journal of Gender, Social Policy & the Law (2009) 363–406, at 367. 17 See B. Bedont and K. Hall-Martinez, ‘Ending Impunity for Gender Crimes Under the International Criminal Court’, 6 Brown Journal of World Affairs (1999) 65–85; Chappell, The Politics of Gender

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368  The Elgar companion to the International Criminal Court ful in its campaign to give the ICC a clear mandate to investigate and prosecute sexual violence crimes: the Rome Statute lists sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and ‘any other form of sexual violence of comparable gravity’ as crimes against humanity,18 and the same acts as war crimes in both international and non-international armed conflicts.19 Another success, from the perspective of feminist reformers, was the avoidance of any mention of ‘honour’ in the description of these crimes, reflecting a new understanding of the gravity of these crimes. Sexual violence was also recognized as a potential act of genocide in the ICC Elements of Crimes—a development that followed the ICTR’s Akayesu judgment, which was issued three months after the adoption of the Rome Statute.20 Seen narrowly, these efforts to raise the profile of conflict-related sexual violence in the ICC and other international courts amount to a call for accountability, with the goal to impose penal consequences on those people ‘most responsible’ for these crimes. But there are also broader benefits to raising the profile of these crimes, beyond that retributive rationale. First, it has an expressive function: it is a way of denouncing these crimes on behalf of the ‘international community’; a way of signalling a global commitment to ending impunity for sexual violence crimes.21 It may also offer some material redress to the victims, in the event of a conviction for the crimes.22 Most relevantly, for the purposes of this chapter, the inclusion of these crimes can reshape popular narratives of war. It ensures that these crimes become part of what Nicola Henry calls the ‘collective memory’ of war.23 Following the Rome Statute’s entry into force in 2002, how much has changed in this respect? It must be said that during the ICC’s first decade of operations, impunity for sexual violence against women and girls remained a grave concern. Few charges of this nature were confirmed, and there were some glaring omissions in the charges laid. The most notable example was in the Lubanga case, concerning the use of child soldiers by an armed group in the DRC. In this case, the prosecution at trial made allegations of widespread sexual violence crimes against female child soldiers within Lubanga’s group. Yet it made no such allegations at the pre-trial stage: the (then) Prosecutor resisted calls from civil society to include charges for sexual violence at that stage. As a result of the prosecution’s initial silence on this issue, there was no accountability or reparation for the sexual violence allegedly perpetrated against

Justice, supra note 6, at 88–129; Copelon, ‘Gender Crimes as War Crimes’, supra note 9; A. Facio, ‘All Roads Lead to Rome, But Some Are Bumpier than Others’, in S. Pickering and C. Lambert (eds), Global Issues: Women and Justice (Sydney: Sydney Institute for Criminology, 2004) 308; M. Glasius, The International Criminal Court: A Global Civil Society Achievement (London: Routledge, 2006) 77–93; V. Oosterveld, ‘The Definition of Gender in the Rome Statute of the International Criminal Court: A Step Forward or Back for International Criminal Justice?’, 18 Harvard Human Rights Journal (2005) 55–84. 18 Art. 7(1)(g) ICCSt. 19 Art. 8(2)(b)(xxii) and 8(2)(e)(vi) ICCSt. 20 Art. 6(b) EoC. 21 M. deGuzman, ‘An Expressive Rationale for the Thematic Prosecution of Sex Crimes’, in M. Bergsmo (ed.), Thematic Prosecution of International Sex Crimes (Torkal Opsahl Academic EPublisher, 2012) 11. 22 Art. 75 ICCSt. 23 N. Henry, ‘Silence as Collective Memory: Sexual Violence and the Tokyo Trial’ in Y. Tanaka, T. McCormack and G. Simpson (eds), Beyond Victor’s Justice? The Tokyo War Crimes Trial Revisited (Leiden: Brill/Nijhoff, 2010) 263.

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Re-writing sex and gender in international criminal law  369 the female child soldiers. Rather, the majority of the Trial Chamber held, quite justifiably, that this sexual violence fell outside the charges against the accused.24 However, the ICC has made important strides since that first trial. In recent years, the ICC Office of the Prosecutor has prioritized the investigation and prosecution of sexual violence crimes—against both female and male victims—in line with its 2014 Policy Paper on Sexual and Gender-Based Crimes (‘Gender Policy’).25 It has also brought sufficient evidence to ensure that sexual violence charges are routinely confirmed and sent to trial.26 The ICC’s latest case, concerning alleged leaders of the anti-balaka movement in the Central African Republic, indicates that the trend towards accountability for sexual violence is continuing. In line with the Office of the Prosecutor’s early statements concerning this situation,27 and with other reports,28 this latest case from the Central African Republic includes charges for sexual violence crimes.29 Yet despite these improvements, convictions for sexual and gender-based crimes in the ICC remain elusive. The Court’s first conviction for sexual violence crimes, which came in the Bemba case, was reversed on appeal.30 However, the 2019 Ntaganda judgment delivered a second conviction for sexual violence crimes.31 Should that second conviction stand on appeal, the ICC can make its first reparations order in respect of sexual violence crimes. 2.B

Male Experiences of Sexual Violence

In recent years, sexual violence against male victims has received greater attention from feminist scholars and activists in the field of international criminal law. To some extent, this concern has been present since the early days of feminist interventions into this field. For example, during the Rome Statute negotiations, the Women’s Caucus insisted that sexual violence crimes be defined in gender-neutral terms, in order to capture both male and female

E.g. L. Chappell, ‘The Gender Injustice Cascade: “Transformative” Reparations for Victims of Sexual and Gender-Based Crimes in the Lubanga Case at the International Criminal Court’, 21(9) International Journal of Human Rights (2017) 1223–1242; N. Hayes, ‘Sisyphus Wept: Prosecuting Sexual Violence at the International Criminal Court’, in W. Schabas, Y. McDermott and N. Hayes (eds), The Ashgate Research Companion to International Criminal Law (Farnham, UK: Ashgate, 2013), at 7; K. O’Smith, ‘Prosecutor v. Lubanga: How the International Criminal Court Failed the Women and Girls of the Congo’, 54(2) Howard Law Journal (2013) 467–500; Grey, ‘Prosecuting Sexual and Gender-Based Crimes at the ICC’, supra note 11, at 128–142. 25 ICC Office of the Prosecutor, Policy Paper on Sexual and Gender-Based Crimes (June 2014). 26 Grey, ‘Prosecuting Sexual and Gender-Based Crimes at the ICC’, supra note 11, at 247–307. 27 ICC Office of the Prosecutor, Report on Preliminary Examination Activities 2014 (5 December 2018), §§ 203, 205. 28 E.g. Report of the Secretary-General on conflict-related sexual violence, UN Doc. S/2017/249, 15 April 2017, § 20; Letter dated 19 December 2014 from the Secretary-General addressed to the President of the Security Council, UN Doc. S/2014/928, 22 December 2014, §§ 474–482; Human Rights Watch, ‘They Said We Are Their Slaves’ Sexual Violence by Armed Groups in the Central African Republic (2017), available online at https://​www​.hrw​.org/​report/​2017/​10/​05/​they​-said​-we​-are​-their​-slaves/​sexual​ -violence​-armed​-groups​-central​-african (visited 7 October 2019), at 53–62 and 76–86. 29 Public redacted version of ‘Document Containing the Charges’, Ngaïssona and Yekatom (ICC-01/14-01/18), Pre-Trial Chamber II, 18 September 2019, §§ 385–386, 421–424, 485–488, 587–588. 30 Appeal Judgment, Bemba (ICC-01/05-01/08-3636-Red), Appeals Chamber, 8 June 2018. 31 Judgment, Ntaganda (ICC-01/04-02/06-2359), Trial Chamber VI, 8 July 2019. 24

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370  The Elgar companion to the International Criminal Court victims.32 However, for the most part, male experiences of sexual violence continue to be marginalized in the narratives produced by international criminal courts.33 A telling example can be seen in the AFRC, RUF and Taylor cases, which were tried in the Special Court for Sierra Leone. In those cases, the Prosecutor’s indictment referred to sexual violence crimes by rebel soldiers, but only against women and girls. The flaw in that approach became apparent at trial when testimony of sexual violence crimes against men and boys emerged too. The RUF Trial Chamber corrected this omission by reading evidence of sexual violence against male victims into the indictment. By contrast, the AFRC and Taylor trial judgments declined to cure the defect in the indictment, with the result that there was no accountability for sexual violence against men and boys in either case.34 The marginalization of male experiences of sexual violence has not gone unnoticed in the feminist literature. To the contrary, in responses to experiences such as that of the Special Court for Sierra Leone, feminist scholars are increasingly addressing this issue.35 This same trend can be seen in the work of non-governmental organizations (NGOs) in this field. For example, the Women’s Initiatives for Gender Justice, the most active gender justice grouping of the 2,500 NGOs in the Coalition for the ICC, dedicated a section of its annual report to the issue of sexual violence against men and boys for the first time in 2018.36 By engaging with this issue, feminists have contributed to broader efforts to ensure that male experiences of sexual violence are not lost in official narratives of war. To some extent, the ICC has contributed to shifting this narrative. For example, in the Bemba case, the Prosecutor brought charges for the rape of female and male civilians in the Central African Republic. The Trial Chamber was persuaded beyond reasonable doubt that several of those rapes occurred and that Bemba, whose troops committed the rapes, was criminally responsible.37 The Majority of the Appeals Chamber later reversed the finding on Bemba’s criminal responsibility but left the finding that the rapes occurred undisturbed.38 More recently,

P. Spees, ‘Women’s Advocacy in the Creation of the International Criminal Court: Changing the Landscapes of Justice and Power’, 28(4) Signs (2003) 1233–1254, at 1240. 33 E.g. S. Sivakumaran, ‘Sexual Violence Against Men in Armed Conflict’,18 European Journal of International Law (2007) 253–276; D. Lewis, ‘Unrecognized Victims: Sexual Violence Against Men in Conflict Settings Under International Law’, at 27 Wisconsin International Law Journal (2009) 1–49; C. Dolan, ‘Victims Who Are Men’, in F. Ní Aoláin et al. (eds), The Oxford Handbook of Gender and Conflict (Oxford: Oxford University Press, 2018) 86–102. 34 V. Oosterveld, ‘The Gender Jurisprudence of the Special Court for Sierra Leone: Progress in the Revolutionary United Front Judgments’, 44(1) Cornell International Law Journal (2001) 49–74, at 70–71. 35 E.g. Chappell, The Politics of Gender Justice, supra note 6, at 122–123; Hayes, supra note 24, at 41–42; R. Grey and L. Shepherd, ‘“Stop Rape Now?” Masculinity, Responsibility, and Conflict-Related Sexual Violence’, 16 Men and Masculinities (2013) 115–135; C. S. Mibenge, Sex and International Tribunals: The Erasure of Gender from the War Narrative (Philadelphia: University of Pennsylvania Press, 2013), at 97–98; V. Oosterveld, ‘Sexual Violence Directed against Men and Boys in Armed Conflict or Mass Atrocity’, 10 Journal of International Law and International Relations (2014), 107–128. 36 Prior annual reports had discussed this issue, but had not featured a stand-alone section on it. See: Women’s Initiatives for Gender Justice, Gender Report Card on the International Criminal Court 2018 (December 2018), available online at http://​4genderjustice​.org/​pub/​Gender​-Report​_design​-full​-WEB​ .pdf (last visited 7 October 2019), at 148–153. 37 Judgment, Bemba (ICC-01/05-01/08-334), Trial Chamber, 21 March 2016, §§ 631–638. 38 Appeal Judgment, Bemba (ICC-01/05-01/08-3636-Red), Appeal Chamber, 8 June 2018. 32

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Re-writing sex and gender in international criminal law  371 in the Ntaganda case, the Prosecution led evidence that Ntaganda’s group raped and sexually violated men as well as women and girls.39 Both forms of sexual violence—against males and females—were part of the conviction in that case.40 Due to the significant media interest in the ICC, these cases have significant power to reshape popular conceptions of sexual violence. They demonstrate that women, girls, men, and boys are victimized in this way. That said, some opportunities to recognize sexual violence against men and boys have been missed. For example, in one of the cases concerning Kenya’s 2007–2008 post-election violence, the Prosecutor alleged that supporters of one party forced men to remove their pants to see if they were uncircumcised, as this would indicate their ethnicity and, by implication, their affiliation with the opposing party. After identifying their victims in this way, the perpetrators allegedly used rough tools to circumcise, or in some instances cut off, the victims’ genitals.41 The Prosecutor charged this conduct under the crime against humanity of ‘sexual violence’,42 a label with which the victims agreed.43 However, the Pre-Trial Chamber classified the conduct as ‘other inhumane acts’ because it did not view the violence as ‘sexual’ in nature.44 As a result of this decision, the sexual nature of the mutilations was obscured. A more recent example can be seen in the Ongwen case, which focuses on the LRA’s alleged use of ‘child soldiers’ and its attacks on internally displaced persons’ camps in Uganda. In many respects, the approach to sexual violence in this case is groundbreaking. It includes charges for a wide range of sexual violence crimes against women and girls, including forced pregnancy, which has never before been charged by any international tribunal,45 and forced marriage, a crime that combines sexual violence with non-sexual violence such as forced labour and deprivation of liberty.46 Yet there are no charges for sexual violence against men and boys in this case. This gap became conspicuous midway through the trial when counsel for one group of victims sought leave to introduce the testimony of three men who were allegedly subjected to sexual violence by LRA soldiers during one of the relevant attacks.47 They argued: It is widely recognised that men’s experience of sexual violence is under-reported, particularly in those societies where male victims of sexual violence are subjected to particular forms of stigma and shame. Addressing this subject in the course of the public proceedings which are being widely

E.g. Ntaganda Prosecution’s closing brief, (ICC-01/04-02/06-2277), 20 April 2018, at §§ 160, 574. 40 Judgment, Ntaganda (ICC-01/04-02/06-2359), Trial Chamber VI, 8 July 2019, at §§ 545, 942. 41 Transcript, Muthaura et al. (ICC-01/09-02/11-T-5-Red-ENG), Pre-Trial Chamber II, 22 September 2011, at pp. 88(1)–91(25). 42 Ibid. See also Document Containing the Charges, Muthaura et al. (ICC-01/09-02/11-257-AnxA), OTP, 19 April 2011, Counts 5 and 6; at §§ 24, 32, 64. 43 Observations, Muthaura et al. (ICC-01/09-02/11-458), Victims’ Legal Representatives, 24 July 2012, at §§ 5–17. 44 Confirmation Decision, Muthaura et al. (ICC-01/09-02/11-382-Red), Pre-Trial Chamber II, 23 January 2012, at §§ 264–266. 45 R. Grey, ‘The ICC’s First “Forced Pregnancy” Case in Historical Perspective’, 15(5) Journal of International Criminal Justice (2017) 905–930. 46 V. Oosterveld, ‘Forced Marriage during Conflict and Mass Atrocity’, in F. Ní Aoláin et al., The Oxford Handbook of Gender and Conflict (Oxford: Oxford University Press, 2018) 241. 47 Victims’ Requests, Ongwen (ICC-02/04-01/15-1166), Legal Representatives of Victims, 2 February 2018, at §§ 16–22. Note: In the ICC, victims do not have a right to lead evidence, but the Trial Chamber can admit any evidence that it deems ‘necessary for the determination of the truth’. See Art. 69(3) ICCSt. 39

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372  The Elgar companion to the International Criminal Court followed in Uganda and internationally will give much needed recognition to this type of harm and its particularly damaging significance in times of conflict.48

The Trial Chamber did not allow this new evidence. It found that Ongwen had not been charged with any acts of sexual violence against males, and thus, these new allegations exceeded the factual scope of the case.49 The victims’ counsel urged the Chamber to reconsider that decision, in light of the importance of the evidence.50 However, the Chamber declined to reconsider its ruling, and so the testimony was never heard.51 The Chamber’s approach can be described as restrictive because, although it was too late to charge Ongwen with additional acts of sexual violence, the victims’ evidence was potentially relevant to establishing the context of those crimes for which he had already been charged.52 The Chamber acknowledged as much,53 but still did not permit the men to testify. These Kenyan and Ugandan cases indicate that sexual violence against men and boys remains at risk of being overlooked or mischaracterized, both in investigations and in the judicial decisions. While male experiences of sexual violence are increasingly part of the Court’s narrative, this issue is still lost or obscured in particular cases.

3.

CHANGING EXPLANATIONS FOR SEXUAL VIOLENCE

As detailed above, making sexual violence visible in court-authored narratives has long been an aim of feminist reformers, and continues to be so. However, feminists have not been content simply to make conflict-related sexual violence visible—that is, to ensure it is charged. They have also sought to reframe the way that sexual violence is explained so that the causes and significance of sexual violence are better understood. Two main counter-narratives have been advanced in this respect: that sexual violence is a weapon of war, and that it is a gendered crime. These counter-narratives and their uptake in the ICC are explored below. 3.A

Sexual Violence as a Weapon of War

For feminist scholars, one challenge has been to ensure that sexual violence is seen as part of war, ‘ethnic cleansing’, and genocide, rather than something incidental to the conflict. As part of this reframing effort, it has been important for feminist scholars, activists, and prosecutors to tackle the widespread assumption that conflict-related sexual violence is a ‘private’ or

Ibid. at § 20. Decision on the Legal Representatives for Victims Requests to Present Evidence, Ongwen (ICC-02/04-01/15-1199-Red), Trial Chamber IX, 6 March 2018, at §§ 55–59. 50 Request for reconsideration, Ongwen (ICC-02/04-01/15-1203), Legal Representatives of Victims, 12 March 2018. 51 Decision on the Legal Representative Request for Reconsideration, Ongwen (ICC-02/04-01/15-1210), Trial Chamber IX, 26 March 2018. 52 R. Grey, J. O’Donohue and L. Krasny, ‘Evidence of Sexual Violence Against Men and Boys Rejected in the Ongwen Case’, Human Rights in International Justice, 10 April 2018, available at https://​ hrij​.amnesty​.nl/​evidence​-sexual​-violence​-men​-boys​-rejected​-ongwen/​ (last visited 21 December 2018). 53 Decision on the Legal Representative Request for Reconsideration, Ongwen (ICC-02/04-01/15-1210), Trial Chamber IX, 26 March 2018, at § 10. 48 49

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Re-writing sex and gender in international criminal law  373 ‘personally motivated’ crime. Of course, in some instances, sexual violence is committed for personal reasons (such as when a male soldier enacts a violent sexual crime in order to shore up his status as ‘masculine’ and ‘powerful’ in the eyes of his peers).54 But sexual violence is also committed to achieve broader political goals, such as to shatter resistance among ‘the enemy’ or among the civilian population thought to harbour them; to torture an enemy; to demoralize or intimidate particular groups or compel them to flee; or to limit a group’s ability to reproduce itself, such as the forced sterilization of Jews and other minorities under Nazi rule.55 Moreover, as Oosterveld has explained, sexual violence is used to assert control and dominance over the civilian population. This is increasingly recognized in international criminal law, such as when the Special Court for Sierra Leone recognized that gendered ‘acts [by the Revolutionary United Front] were not intended merely for personal satisfaction or a means of sexual gratification for the fighter’, but were part of a ‘calculated and concerted pattern’ with ‘calculated consequences’ to disempower the civilian population.56 Persuading legal decision-makers to consider sexual violence in such terms has required persistence. As observed by Fionnuala Ní Aoláin in 2000: ‘There remains a limited understanding of the functionality of sex-based violence during war. There is ongoing intellectual and legal resistance to accepting the extensive empirical evidence that women’s bodies have been targeted as a method and means of war, not ancillary to military objectives, but innately linked to them’.57 Yet feminist scholars, activists, and court ‘insiders’ have invested significant energy into overcoming this resistance so that international courts recognize such political uses of sexual violence. This energy has been well spent, not only to produce more accurate historical records but because the assumption that sexual violence is necessarily ‘private’ can impede efforts to prosecute these crimes. That is because if judges cannot see when sexual violence crimes are connected to military or political strategies, they will be disinclined to convict military or political leaders (who comprise the majority of accused people in international courts) to account for these crimes.58 This is less concerning in ‘command responsibility’ cases, in which the accused is charged for his or her failure to prevent or repress crimes committed by their subordinates.59 However, it is a concern in cases where the accused is alleged to have ordered, incited, or otherwise intended the commission of the crimes.60

M. Eriksson Baaz and M. Stern, The Complexity of Violence: A Critical Analysis of Sexual Violence in the Democratic Republic of Congo, (SIDA/Nordiska Afrikainstitutet, 2010); idem, ‘Knowing Masculinities in Armed Conflict?: Reflections from Research in the Democratic Republic of Congo’, in F. Ní Aoláin et al. (eds), The Oxford Handbook of Gender and Conflict (Oxford: Oxford University Press, 2018) 533. 55 F. Ní Aoláin, ‘Sex-Based Violence and the Holocaust: A Re-evaluation of Harms and Rights in International Law’, 12(1) Yale Journal of Law & Feminism (2000) 43–84. 56 Oosterveld, ‘The Gender Jurisprudence of the SCSL’, supra note 34, at 68–70; citing Judgment, Sesay et al. (RUF case) (SCSL-04-15-T), Trial Chamber I, 2 March 2009, §§ 1347–1351. 57 Ibid. at 44. 58 M. Jarvis and K. Vigneswaran, ‘Challenges to Successful Outcomes in Sexual Violence Cases’, in S. Brammertz and M. Jarvis (eds), Prosecuting Conflict-Related Sexual Violence at the ICTY (Oxford University Press, 2016) 33, at 37–39. 59 For a detailed articulation of the ‘command responsibility’ doctrine, see Art. 28 ICCSt. 60 S. SáCouto and K. Cleary, ‘The Importance of Effective Investigation of Sexual Violence and Gender Based Crimes at the International Criminal Court’, 17 American University Journal of Gender, Social Policy & the Law (2009) 337–359, at 353–358. 54

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374  The Elgar companion to the International Criminal Court The ICC’s Ngudjolo & Katanga case highlights the need to keep challenging conventional understandings of sexual violence as incidental to the conduct of hostilities. The case concerned an attack on Bogoro, a primarily Hema village in Ituri, by forces from two other ethnic groups. In this case, the Prosecution emphasized the gendered nature of sexual violence against female civilians but was less effective at articulating the political significance of these crimes. Indeed, in his opening statements at trial, the Prosecutor implied that women were targeted for sexual violence only because of their gender, and not because of the inter-ethnic war. In his words, once the attack ended, … the horror was not over yet for the women of Bogoro. Once captured, some women hid their Hema identity to save their lives. Those later revealed as Hema were killed. The others were raped and forced into marriage as combatant wife [sic], or detained to serve as sexual slaves by Mr Katanga or Mr Ngudjolo’s soldiers. All these women were victimised on the basis of their gender. They were attacked in particular because they were women.61 (emphasis added)

Katanga, who supplied weapons used in the Bogoro attack, was later convicted for several crimes committed there including murder, pillage, and destruction of property. However, he was acquitted of rape and sexual slavery. Although the Trial Chamber found that those crimes had occurred, it was not satisfied that they formed part of the ‘common purpose’ (i.e., the shared objective) of the groups that attacked Bogoro.62 As several commentators observed, the Chamber’s interpretation of that evidence seemed to be coloured by the assumption that, whereas crimes such as murder, destroying property, and pillage were part of the attackers’ ‘common purpose’, the crimes of sexual violence were private, opportunistic acts.63 However, in other cases, the ICC Office of the Prosecutor has explicitly linked sexual violence crimes to military goals. The Bemba case is a clear example. This case included charges for the rape of male and female civilians in the Central African Republic. These rapes were allegedly committed by Bemba’s troops (the Mouvement de Libération du Congo or MLC), who were in the Central African Republic to assist its President to suppress a rebel coup. Throughout the case, the Prosecution linked the alleged rapes to that military goal. For example, its arrest warrant request argued that the MLC used murder, pillage, and rape ‘in an organized fashion and as a deliberate tactic to punish and humiliate the civilian population for allegedly sympathising with the rebels’. 64 The trial judgment echoed this narrative, stating: The MLC troops in the CAR did not receive adequate financial compensation and, in turn, self-compensated through acts of pillaging and rape. Moreover, MLC soldiers committed acts of

61 Transcript, Ngudjolo & Katanga (ICC-01/04-01/07-T-80-ENG), Trial Chamber II, 24 November 2009, 25(19–25). 62 Judgment, Katanga (ICC-01/04-01/07-3436-tENG), Trial Chamber II, 7 March 2014, at §§ 1663–1664. 63 K. Askin, ‘Katanga Judgment Underlines Need for Stronger ICC Focus on Sexual Violence’, Open Society Foundations, 11 March 2014, available at https://​www​.opensocietyfoundations​.org/​voices/​ katanga​-judgment​-underlines​-need​-stronger​-icc​-focus​-sexual​-violence (last visited 23 December 2018); Chappell, The Politics of Gender Justice, supra note 6, 119–121; B. Inder, ‘A Critique of the Katanga Judgment’, Speech at the Global Summit to End Sexual Violence in Conflict, London, 11 June 2014, available at http://​www​.iccwomen​.org/​documents/​Global​-Summit​-Speech​.pdf (last visited 23 December 2018). 64 Arrest Warrant Request, Bemba (ICC-01/05-01/08-26-Red), OTP, 9 May 2008, at § 53.

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Re-writing sex and gender in international criminal law  375 murder and rape in order to punish civilians who were suspected rebels or rebel sympathisers, or for MLC losses, and against those who resisted acts of pillaging.65

A similarly nuanced representation of sexual violence can be seen in the Ntaganda case, which concerns crimes allegedly committed by the Union des Patriotes Congolais (UPC), a militia in the DRC whose members came primarily from the Hema ethnic group. In this case, the Prosecution linked the sexual violence to inter-ethnic war in Ituri, arguing: ‘Rape and sexual slavery were not merely unforeseeable byproducts of the attack or the acts of a few renegade soldiers. Rather, sexual violence crimes were a means of inflicting violence: an integral part of the UPC plan to drive the non-Hema population out of a territory the UPC sought to control’.66 In its 2019 trial judgment, the Trial Chamber accepted this argument that sexual violence was an integral part of the UPC’s strategy. In the Chamber’s words, ‘Regarding acts of sexual violence, the Chamber notes that the unfolding of the operations shows that these acts were, like the acts of killings and other acts of physical violence, a tool used by UPC/FPLC soldiers and commanders alike to achieve their objective to destroy the Lendu community in the localities under assault’.67 3.B

Surfacing ‘Gender’ in Narratives of Sexual Violence

Another change that feminists have pressed for is to make gender, understood as a social construct, part of the explanation for conflict-related sexual violence crimes. This became necessary because, once the visibility of sexual violence increased, it was portrayed as politically or ethnically charged. Yet there was little acknowledgment of its gendered character—that is, little discussion of how the social position of men and women, respectively, contributes to sexual violence in war. This concern was exemplified in reporting on the Bosnian war, which referred to ‘genocidal rape’. This label focused on the way that rape was used by Serb forces as a tool of genocide against the Bosnian Muslim population, without an acknowledgement that most of these rapes were committed by men, and against women and girls. Seeking to make gender part of the story, feminist scholars since the 1990s have embraced the concept of intersectionality to argue that victims are targeted on grounds such as ethnicity and nationality intersecting with gender grounds.68 A leading example of this counter-narrative came from feminist scholar and activist Rhonda Copelon in her 1994 essay on ‘surfacing gender’. In this article, Copelon argued that the rapes that occurred during the Bosnian conflict were both genocidal and gendered.69 In her words:

Judgment, Bemba (ICC-01/05-01/08-334), Trial Chamber, 21 March 2016, at § 678. Ntaganda Prosecution’s closing brief, supra note 39, at § 568. 67 Judgment, Ntaganda (ICC-01/04-02/06-2359), Trial Chamber VI, 8 July 2019, at § 805. 68 E.g., D. Buss, ‘The Curious Visibility of Wartime Rape: Gender and Ethnicity in International Criminal Law’, 25 Windsor Yearbook of Access to Justice (2007) 3–22; D. Buss, ‘Sexual Violence, Ethnicity, and Intersectionality in International Criminal Law’, in E. Grabham et al. (eds), Intersectionality and Beyond (London: Routledge, 2009) 105–123; Mibenge, supra note 35; V. Oosterveld, ‘Prosecuting Gender-Based Persecution as an International Crime’, in A. de Brouwer et al. (eds), Sexual Violence as an International Crime: Interdisciplinary Approaches (Cambridge: Intersentia, 2013) 57. 69 R. Copelon, ‘Surfacing Gender: Re-Engraving Crimes against Women in Humanitarian Law’, 5 Hastings Women’s Law Journal (1994) 243–265. 65 66

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376  The Elgar companion to the International Criminal Court It is necessary to ‘surface’ gender in the midst of genocide, and at the same time, to avoid dualistic thinking. We must critically examine the claim that rape as a tool of ‘ethnic cleansing’ is unique, worse than or not comparable to other forms of rape in war or in peace, at the same time that we recognize that rape together with genocide inflicts multiple, intersectional harms.70

In the intervening years, other feminist scholars and activists have taken up Copelon’s challenge to ‘surface’ gender in narratives about war. For example, Doris Buss and Chiseche Salome Mibenge have both challenged the narrative that emerges from ICTR jurisprudence, in which sexual violence was presented as political and/ or ethnically motivated violence, but not as gender-based violence. In their view, that flawed presentation of sexual violence appears to have been constructed to satisfy Article 3 of the ICTR Statute, which contains a definition of crimes against humanity requiring proof of a ‘widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds’. Both Buss and Mibenge offer an alternative interpretation in which sexual violence during the 1994 Rwandan conflict is explained by reference to intersecting variables, including ethnicity, age, class, political affiliation, and gender. Buss does so to understand sexual violence against women specifically, whereas Mibenge considers sexual violence against both women and men.71 By linking conflict-related sexual violence to gender norms and hierarchies, feminist scholars have advanced a new narrative that counters the standard view. Rather than being seen as an aberrant act, explicable only by reference to the state of war, sexual violence is understood as at least partly continuous with pre-war ideas about roles of women vis-à-vis men in the societies concerned. Thus, violent gang-rapes of women and girls by enemy soldiers can be seen as partly enabled by entrenched ideas about men’s entitlement to women’s bodies,72 and the rape of men is often intended and experienced as a form of ‘emasculation’ or ‘homosexualization’—an interpretation premised on the belief that to be female or homosexual is to occupy an inferior status to that of a heterosexual man.73 This call to ‘surface’ gender in narratives of sexual violence has been heeded in the ICC, at least by the Office of the Prosecutor. This is consistent with the 2014 Gender Policy, which states that the Office will undertake a ‘gender analysis’, meaning ‘a consideration of whether, and in what ways, crimes, including sexual and gender-based crimes, are related to gender norms and inequalities’.74 The aforementioned Bemba case is a good example. In that case, the Office of the Prosecutor acknowledged that the MLC’s motivations for sexual violence differed according to the victims’ gender. For example, its arrest warrant explained that ‘[w]omen were raped on the pretence that they were rebel sympathizers. Men were also raped as a deliberate tactic to humiliate civilian men and demonstrate their powerlessness to protect their families.’75 Returning to these themes at the end of the trial, the Prosecution argued that the MLC:

Ibid. at 247 (emphasis added). Buss, ‘Curious Visibility’, supra note 68; Buss, ‘Sexual Violence, Ethnicity, and Intersectionality’, supra note 68; Mibenge, supra note 35. 72 C. Cockburn, ‘The Continuum of Violence: A Gender Perspective on War and Peace’, in W. Giles and J. Hyndman (eds), Sites of Violence: Gender and Conflict Zones (Oakland: University of California Press, 2004) 24. 73 Sivakumaran, supra note 33; Dolan, supra note 33. 74 ICC Office of the Prosecutor, supra note 25, at 4. 75 Arrest Warrant Request, Bemba (ICC-01/05-01/08-26-Red), OTP, 9 May 2008, at 50. 70 71

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Re-writing sex and gender in international criminal law  377 … committed rape as a key part of their attack against a civilian population. The effect of this policy was to victimize the civilian population and render them powerless. This was particularly evident from [the troops’] rape of men with authority, in plain view, in order to send a message that they had absolute power, that [the troops] were in complete control and the formerly powerful were now powerless.76

In addition, the Prosecution suggested that a view of women as ‘war booty’ heightened the risk of rape for female civilians. For example, it argued that: ‘Bemba had an army of 20,000 men, but he paid no wages to the men. To buy their loyalty, he allowed them to live off of the civilian population to do as they will … And for an MLC soldier who was involved in this operation, that meant live off the local population, steal their belongings, abuse the girls and women.’77 Likewise, gender norms were part of the Prosecution’s explanation for sexual violence in the Ntaganda case. In particular, the Prosecution argued that the UPC commanders motivated the troops by telling them that by participating in attacks, they would score benefits such as food, money, mattresses, and women.78 In other words, the commanders exploited the view of women as ‘spoils of war’ in order to incentivize men to fight. The Prosecution’s case indicated that the sexual abuse of women and girls within the UPC was linked to a sense of male entitlement. For example, on the first day of trial, Prosecutor Bensouda cited evidence that, within the UPC, abducted women and girls were known as ‘guduria’ (in Swahili, a communal cooking-pot), meaning that they were ‘reduced to objects which soldiers and commanders could pass around and use for sex whenever they pleased’.79 These quotations are emblematic of the case, in which sexual violence was presented as a weapon of war and an example of the objectification of women by men. The 2019 Ntaganda trial judgment is less explicit on the subject of gender norms. It recognizes that female child soldiers were treated differently to the boys: they were regularly raped by commanders, used by commanders as domestic servants, and were made to dress as ‘prostitutes’ and enter enemy camps in order to spy on the enemy.80 However, it shows no interest in the gendered attitudes that led to this different treatment between male and female child soldiers, nor the gendered attitudes that contributed to the rape of male and female civilians by Ntaganda’s troops. In this case, as in other cases, the Office of the Prosecutor seems more committed to gender analysis than the Chamber.

4. COUNTER-COUNTER-NARRATIVES As the above discussion shows, feminist efforts to challenge the conventional narratives of wartime sexual violence have had some impact on the ICC. In particular, the ICC Office of

76 Transcript, Bemba (ICC-01/05-01/08-T-364-Red-ENG), Trial Chamber III, 12 November 2014, 21(15–19). 77 Ibid. 78 Ibid. at § 416. 79 Transcript, Ntaganda (ICC-01/04-02/06-T-23-ENG), Trial Chamber VI, 2 September 2015, 14(5–9). 80 Judgment, Ntaganda (ICC-01/04-02/06-2359), Trial Chamber VI, 8 July 2019, at §§ 404, 406–413.

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378  The Elgar companion to the International Criminal Court the Prosecutor has shown a willingness to make both male and female experiences of sexual violence a central theme in its cases, and to explain the gendered nature of these crimes. Yet there have been challenges to the counter-narrative advanced by feminists—that is, there have been ‘counter-counter-narratives’. Much of this resistance comes from conservative states and NGOs outside the feminist movement. However, there has also been resistance within the feminist scholarship, in relation to specific reforms that other feminists have supported and fought for. These counter-counter-narratives produced by conservatives and by other feminists are discussed below. 4.A

Religious and Cultural Opposition

In both international and domestic jurisdictions, efforts to challenge gender inequality often meet resistance where they conflict with widely held religious or cultural beliefs. For example, religious justifications are often used to limit women’s access to abortion, and to outlaw discrimination against lesbian, gay, bisexual, intersex, and transgender (LBGTI) groups.81 While not all religious groups or cultural conservatives are obstructive, most major world religions are patriarchal, and even in secular societies, they continue to exert major influence over decisions of the state. International criminal law has not been exempted from this pattern. In particular, the drafting history of the Rome Statute was affected by religious and cultural opposition, with the effect that efforts to expressly criminalize gender-based violence were in several cases watered down. Three flashpoints stand out: the proposed reference to persecution on ‘gender’ grounds; the provision on the interpretation of the Statute; and the definition of a crime of forced pregnancy. At the Rome Conference, the proposal to define persecution on ‘gender’ grounds as a crime against humanity polarized debate among states, feminist non-governmental actors, and conservative non-governmental representatives.82 The Women’s Caucus came to the Rome Statute negotiations with a clear definition of ‘gender’, understanding it as ‘the socially constructed differences between men and women and the unequal power relationships that result. Gender indicates that the differences between men and women are not essential or inevitable products of biological sex differences.’83 However, this definition antagonized conservative delegates. During the Rome Statute preparatory commissions and at the Rome Conference, the Holy See and several majority-Muslim and majority-Catholic countries contested the inclusion of the notion of gender-based (rather than sex-based) persecution on the basis that the inclusion of this crime could provide the grounds for homosexual, transgender or intersex people to claim rights under the Statute.84 The final wording in the Statute reflects what Australian delegate

81 E.g. D. Otto, ‘Holding up Half the Sky, but for Whose Benefit?: A Critical Analysis of the Fourth World Conference on Women’, 6 Australian Feminist Law Journal (1996) 7. 82 Oosterveld, ‘The Definition of “Gender”’, supra note 17; Copelon, ‘Gender Crimes as War Crimes’, supra note 9; Bedont and Hall-Martinez, supra note 17. 83 Women’s Caucus for Gender Justice, Recommendations and Commentary for December 1997 PrepCom on the Establishment of an International Criminal Court, United Nations Headquarters, 1–12 December 1997, at 1. 84 Bedont and Hall-Martinez, supra note 17, at 68; Copelon, ‘Gender Crimes as War Crimes,’ supra note 9, at 236; Oosterveld, ‘The Definition of “Gender”’, supra note 17; Oosterveld, ‘Constructive Ambiguity’, supra note 6.

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Re-writing sex and gender in international criminal law  379 Steains called a ‘delicate compromise’ between these negotiators.85 The definition, included in Article 7(3), states: ‘The term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above’. The definition encapsulates two competing narratives. On the one hand, by mentioning the ‘context of society’, the definition underscores a feminist understanding of gender as a social phenomenon. On the other, the inclusion of ‘two sexes’ and the additional clause disallowing other interpretations, reflect the narrative of conservative religious and state-based actors who hold the view that gender must be understood as a biological fact and not as socially constructed.86 Now embedded in the Rome Statute, the tension between these two gender narratives remains unresolved and will remain so until the ICC is given the opportunity to adjudicate on the meaning of gender.87 However, the ICC Office of the Prosecutor’s Gender Policy interprets gender as a social construct, signalling that the Office is ready to advance that interpretation in court when the time comes.88 A second contentious issue during the Rome negotiations concerned the provision on the interpretation of the Statute. Due to the historical exclusion of women and gender issues from international criminal law, the Caucus insisted that the ICC be required to apply and interpret the law in a manner consistent with internationally recognized human rights treaties— including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1979) and be without adverse distinctions on various grounds, including gender.89 Reflecting their gender equality narrative, the Caucus argued these steps were ‘particularly indispensable with respect to crimes of sexual and gender-based violence and is required by the international mandate to eliminate discrimination against women and end impunity for violence against women’.90 Women’s Caucus lobbying on this provision again sparked resistance and controversy. The Holy See and many of the same states involved in the ‘gender-based persecution’ issue resisted the inclusion of gender discrimination in the Rome Statute. Some state delegations sought to remove the clause completely while others were content to retain the clause but to remove any reference to gender.91 In the end, the provision was included when key states including Australia, Canada, the US, the Netherlands, and France, amongst others, supported the position of the Women’s Caucus, pointing to the well-established recognition in a range of international rights documents of non-discrimination on gender grounds.92 However, as this experience shows, pursuing progressive narratives of gender equality and non-discrimination involved significant contestation and compromise with those seeking to uphold the gender status quo. A third area of contention during Rome Statute negotiations was the inclusion of the crime of forced pregnancy as a war crime and crime against humanity.93 Attention to the issue of 85 C. Steains, ‘Gender Issues’ in R. S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute (The Hague: Kluwer Law International, 1999) 357, at 371. 86 Ibid. at 371–372. See also Copelon, ‘Gender Crimes as War Crimes’, supra note 9, at 236. 87 Oosterveld, ‘Constructive Ambiguity’, supra note 6. 88 ICC Office of the Prosecutor, supra note 25, at 3. 89 Women’s Caucus for Gender Justice, supra note 83, at 25. 90 Ibid. 91 Steains, supra note 85, at 372. 92 Ibid. at 372. 93 Glasius, supra note 17, at 89; Copelon, ‘Gender Crimes as War Crimes’, supra note 9, at 234.

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380  The Elgar companion to the International Criminal Court forced pregnancy arose primarily in response to the Bosnian war, in which Serbian soldiers reportedly raped Bosnian Muslim women and then confined them so that they would be forced to bear ‘Serbian’ babies.94 This narrow conception of forced pregnancy, excludes the experience of countless women and girls who are impregnated through rape and unable to access safe abortion in conflict settings.95 Nonetheless, because of its links with ‘ethnic cleansing’—a practice that had garnered international attention and been widely condemned by states—the majority of states at Rome were committed to expressly criminalizing it in the Rome Statute. The Women’s Caucus was instrumental in ensuring that the Statute’s definition of this crime was not restricted to situations where the victim was impregnated as a means of ethnic cleansing.96 The strongest opposition to the inclusion of the crime of forced pregnancy came from the Holy See and the same states which had opposed the references to ‘gender’ in the Rome Statute.97 This bloc, together with so-called ‘pro-life’ NGOs, feared that recognition of forced pregnancy in the Statute could establish grounds for prosecuting states which failed to provide abortions on demand.98 Reflecting an alternative narrative, certain Arab states joined the move to obstruct the provision, not because of their opposition to abortion but a more general fear that criminalizing these acts could open the door to international intervention in domestic laws in general, including interference with the applications of Sharia law.99 The Holy See and other ‘pro-family’ groups were sympathetic to the position of these delegates, arguing that provisions such as enforced pregnancy were the start of a slippery slope towards ‘the abandonment of national sovereignty, and the establishment of a tyrannical world government’.100 Women’s Caucus activists considered spurious the objections voiced by these religious and state contenders. In the view of the Women’s Caucus, this debate was in part an excuse to introduce the politics of abortion into the ICC agenda. As it noted at the time: ‘It is difficult to understand how the debate about the crime of enforced pregnancy has become a debate about abortion. National laws which criminalize the termination of pregnancy are not violations under international law and thus would not come within the ICC’s jurisdiction.’101 In the end, a compromise definition was reached, which gives the ICC Prosecutor the power to prosecute forced pregnancy, but defines the crime in terms narrow enough to satisfy countries concerned about the impact on national abortion law. It states: ‘“Forced pregnancy” means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.’102

94 See K. Boon, ‘Rape and Forced Pregnancy under the ICC Statute: Human Dignity, Autonomy and Consent’, 32 Columbia Human Rights Law Review (2001), 634–75, at 656. 95 Grey, supra note 45. 96 Ibid. 97 Steains, supra note 85, at 366. 98 Glasius, supra note 17, at 88–89. 99 Chappell, ‘Contesting Women’s Rights’, supra note 6. 100 Campaign Life Coalition 1998, quoted in Glasius, supra note 17, at 82. 101 Women’s Caucus for Gender Justice, ‘Women’s Caucus Advocacy during the Rome Statute Negotiations: The Crimes of Forced Pregnancy’, undated, available online at http://​iccwomen​.org/​ wigjdraft1/​Archives/​oldWCGJ/​icc/​iccpc/​rome/​forcedpreg​.html (last visited 28 December 2018). 102 Art. 7(2)(f) ICCSt.

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Re-writing sex and gender in international criminal law  381 The adoption of the Rome Statute did not put to rest tensions between the Women’s Caucus and religious forces. This became apparent in 1999 during the negotiations for the Elements of Crimes, when several Muslim states tried to insert a caveat that would prevent the ICC from prosecuting sexual violence crimes which were committed in accordance with religious or cultural norms.103 The proposal was clearly inconsistent with the Rome Statute and was ultimately not successful. However, it served as a reminder that the compromises reached at Rome are fragile, and of the idea that the Statute’s expansive list of gender-based crimes represents an ongoing threat to conservative sex and gender narratives. 4.B

Challenges within Feminism

Divergent views are part of feminist scholarship and activism. The field of international criminal law is no exception. As feminist reformers have challenged conventional narratives of war, discordant views within feminist circles have emerged. For example, a contentious issue within feminist scholarship has been the increased attention to sexual violence in international criminal courts. Many feminists have pushed for and celebrated this development, as detailed above. However, others have been more wary about where this development has led. Their concern is that the issue of sexual violence has come to dominate discussions about gender and conflict, with the result that other important issues, such as the economic impact of war on women and girls, are marginalized. For example, writing in 2000, Hilary Charlesworth and Christine Chinkin argued that the increased focus on sexual violence in the practice of international criminal law was not as progressive as it appears. In their view, this development was no more than ‘tinkering with the international legal regime’ and did not resolve the ‘continued subordination’ of women and girls in many parts of the world.104 Judith Gardam has voiced a similar concern. In her view, the focus on sexual violence ‘has undoubtedly pushed into the shade what fragile developments there were that took a wider view of women and IHL [international humanitarian law]’.105 Janet Halley has also resisted the increased attention to sexual violence. In her view, by focusing on sexual violence, feminist advocates have perpetuated the view that rape is ‘a fate worse than death’.106 For Halley, such claims diminish the severity of other kinds of wartime violence, including fatalities, and play into the idea that rape is so serious that it justifies more war in order to protect a state’s ‘own’ women.107 Another critical voice has been Karen Engle, who argues that, in the process of developing a narrative about sexual violence crimes, feminists have tended to present women solely as victims. In Engle’s view, this stereotype of women is inaccurate and disempowering. It fails to recognize that even in situations of extreme

L. Chappell, ‘Women’s Rights and Religious Opposition: The Politics of Gender at the International Criminal Court’, in Y. Abu-Laban (ed.), Gendering the Nation State: Canadian Comparative Perspectives (Vancouver: University of British Columbia Press, 2008) 139; Grey, ‘Prosecuting Sexual and Gender-Based Crimes at the ICC’, supra note 11. 104 Charlesworth and Chinkin, supra note 1, at 335. 105 J. Gardam, ‘A New Frontline for Feminism and International Humanitarian Law’, in M. Davies and V. Munro (eds), The Ashgate Research Companion to Feminist Legal Theory (Farnham, UK: Ashgate, 2013) 225, at 217–218. 106 J. Halley, ‘Rape in Berlin: Reconsidering the Criminalisation of Rape in the International Law of Armed Conflict’, 9(1) Melbourne Journal of International Law (2009) 78, at 80. 107 Ibid. at 115–116. 103

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382  The Elgar companion to the International Criminal Court violence, women exercise some political and sexual agency. It also ignores the uncomfortable truth that women can be perpetrators, as well as victims.108 Some feminist scholars, including Halley, have applauded Engle’s critique.109 Others consider Engle’s insistence that women continue to exercise agency in war as idealistic, and perhaps naïve. For example, Gardam has expressed ‘alarm’ at Engle’s ‘tendency to downplay the issue of systemic power’, and argued that ‘to talk of sexual and political agency for anyone during such times of social disintegration takes on a somewhat unrealistic air’.110 The notion that conflict-related sexual violence has received too much attention in international criminal law is perhaps premature. After all, as we noted above, reported sexual violence crimes have been left off the charges in several ICC cases, with the result that sexual violence is not always visible in cases where it would be expected to be. In addition, the ICC Office of the Prosecutor is yet to have any convictions for sexual violence confirmed on appeal, suggesting that accountability, as well as visibility, remains a pressing concern. However, it is clear that sexual violence is not the only form of gender-based violence that needs to be addressed. We return to this point in the chapter’s conclusion, which considers opportunities for developing a broader narrative of gender violence at the ICC. Another important counter-counter-narrative is that developed by Chiseche Salome Mibenge, who has expressed concerns about the representation of ‘sexual slavery’ in international criminal law. The Rome Statute was the first instrument to expressly define ‘sexual slavery’ as a war crime and crime against humanity, alongside the older offence of enslavement. This was the result of feminist lobbying. As Mibenge observes, the Women’s Caucus for Gender Justice pushed to have ‘sexual slavery’ enumerated as a distinct crime in the Rome Statute, and the resultant definition of this crime was lauded by several feminist commentators.111 Yet in the view of Mibenge, this distinction between ‘enslavement’ and ‘sexual slavery’ is problematic: it obscures the truth that control over a person’s sexuality has long been integral to enslavement, as histories of transatlantic slavery show.112 The implication that enslavement does not ordinarily include sexual exploitation, together with many other violations of a person’s autonomy, is, therefore, a ‘worrying development’.113 Mibenge has also offered a thought-provoking critique of the depiction of ‘forced marriage’ in the Sierra Leone Truth Commission, which has implications for the portrayal of this offence in the ICC. She observes that, in its analysis of ‘forced marriage’, the Commission implied that abuse of ‘bush wives’ by rebel soldiers during the civil war was precipitated or legitimized by traditional marriage customs in Sierra Leone.114 For Mibenge, this comparison was based on gross generalizations about the nature of pre-war marriage practices in Sierra Leone, and reinforced ‘a dominant narrative that is wont to represent African women not only as victims

K. Engle, ‘Feminism and Its (Dis)Contents: Criminalizing Wartime Rape in Bosnia and Herzegovina’, 99 American Journal of International Law (2005) 778–816. 109 E.g. Halley, ‘Rape in Berlin’, supra note 106, at 119–120. 110 J. Gardam, ‘A New Frontline for Feminism and International Humanitarian Law’, in M. Davies and V. Munro (eds), The Ashgate Research Companion to Feminist Legal Theory (Farnham, UK: Ashgate, 2013) 225. 111 Mibenge, supra note 35, at 152. 112 Ibid. at 143. 113 Ibid. at 151. For a similar critique, see P. Sellers, ‘Wartime Female Slavery: Enslavement?’, 44 Cornell International Law Journal (2001) 115–142. 114 Mibenge, supra note 35, at 103. 108

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Re-writing sex and gender in international criminal law  383 of armed conflict but as rape victims of a militarized African masculinity’.115 Mibenge’s perspective on the Sierra Leone Truth Commission echoes Ratna Kapur’s critique about the representation of women in international human rights law, namely, that: ‘[w]omen in the Third World are portrayed as victims of their culture, which reinforces stereotyped and racist representations of that culture and privileges the culture of the West’.116 These critiques by Mibenge and Kapur are an important addition to the largely Western orientation of feminist scholarship on international criminal law. They serve as a warning that, when analysing experiences of conflict-related violence across cultures, feminist scholars must take care not to perpetuate inaccurate and offensive narratives about the place of women in the so-called ‘Third World’.

5.

WHERE TO NEXT?

In terms of next steps, feminist counter-counter-narratives suggest that responses to gender-based violence in international criminal law must not focus on sexual violence alone. There are many other crimes which can be gendered, and which are yet to be recognized in those terms. Fortunately, the Rome Statute is well suited to this task. Its provisions refer both to ‘gender violence’ and to ‘sexual violence’, indicating that the concept of ‘gender violence’ was intended to be broader than ‘sexual violence’ alone.117 This understanding is evident in the records of the Rome Statute negotiating process. In that forum, the Women’s Caucus and like-minded states insisted the Statute should recognize ‘gender violence’, in addition to ‘sexual violence’. To illustrate the utility of the former term, the Canadian delegates gave the example of civilian men being rounded up and killed because they were seen as being capable of waging war—‘an ability imputed to them on the basis of their sex, their age and their sociological role as potential soldiers’.118 The Women’s Caucus and like-minded states also insisted that the Rome Statute defined persecution on ‘gender’ grounds as a crime against humanity. Again, they were successful in this regard, although the statutory definition of ‘gender’ left some important questions unresolved, as explained further below. This crime of gender-based persecution can occur without sexual violence—there are many other gendered acts that will suffice. For example, targeting boys to serve as child soldiers due to gender-specific assumptions about their strength and ferocity could constitute gender-based persecution, as could subjecting women and girls to forced labour in certain sectors, such as domestic work, due to gender-specific ideas about what constitutes women’s work. In other words, gender-based persecution can be committed through the intentional deprivation of any fundamental rights on gendered grounds, in connection with any other crime enumerated in the Statute.119 Ibid. at 7. R. Kapur, ‘The Tragedy of Victimization Rhetoric: Resurrecting the “Native” Subject in International/Post-Colonial Feminist Legal Politics’, 15(1) Harvard Human Rights Journal (2002) 1–38, at 6. 117 E.g. Art. 42(9), 54(1)(b), 68(1) ICCSt. 118 Steains, supra note 85, at 388. 119 Art. 7(1)(g) ICCSt enumerates the crime against humanity of ‘[p]ersecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined 115 116

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384  The Elgar companion to the International Criminal Court It has taken some time for international criminal courts and tribunals to embrace this broader conception of gender violence. For the most part, when the terms ‘gender’ or ‘gender-based crime’ have been used, they have functioned as synonyms for sexual violence crimes. However, at the ICC, there are signs that the narrative is shifting. Increasingly in ICC cases, crimes without a clear sexual component are described as ‘gender-based crimes’.120 The Office of the Prosecutor has led this shift in terminology, including through its 2014 Gender Policy, which explains that the term ‘gender-based crimes’, is not limited to sexual violence.121 Likewise, in its courtroom advocacy, the Office has made broad use of the term ‘gender-based crimes’. For example, in the Ongwen case, the Prosecution used this term to describe the forced domestic labour performed by forced ‘wives’ and ‘ting tings’ (female maids) in the LRA, as well as using the term to describe sexual violence crimes.122 However, it has taken a long time for ICC prosecutors to take full advantage of the Rome Statute in this respect, by bringing charges for the crime against humanity of persecution on ‘gender’ grounds. Indeed, has taken until 2019 for the OTP to seek confirmation of a charge of persecution on ‘gender’ grounds. This occurred in the Al-Hassan case, the ICC’s second case concerning the takeover of Timbuktu, Mali, by Islamist militants in 2012–2013. In this case, Prosecutor Bensouda has included two charges for persecution: one on ‘religious’ grounds, which relates to the Islamists’ attempt to force their version of religion onto the local population as a whole; and one on ‘gender’ grounds, which relates to violence against Timbuktu’s female population, who were forced into marriages with Islamist fighters, barred from participating in public life, and punished if they did not comply with the strict dress code that the Islamists imposed on women.123 Thus, the acts charged as ‘gender-based persecution’ in this case include violations of civil and political rights—including the right to liberty, to freedom of association, and to equality—as well as sexual violence crimes.124 This charge of gender-based persecution is a step forward, in terms of moving beyond the narrow focus on ‘sexual violence’ as if that were the only gendered crime. However, there is scope for many more such steps in the ICC’s jurisprudence in the decades to come. Crimes in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court’. Art. 7(2)(g) ICCSt specifies that ‘persecution’ means ‘the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity’. 120 The question of what makes an act ‘sexual’ is itself subject to debate. At the very least, it includes those acts coded as ‘forms of sexual violence’ in the Rome Statute, namely rape, sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilization. In ICTY and ICTR jurisprudence, other acts such as forced nudity are also described as ‘sexual’ crimes. See Grey, ‘Prosecuting Sexual and Gender-Based Crimes at the ICC’, supra note 11; R. Grey, ‘What makes violence “sexual?”’, panel discussion at the 17th session of the Assembly of States Parties to the ICC, co-hosted by Argentina, Australia, Costa Rica, New Zealand, Republic of Korea, Sweden, Switzerland, United Kingdom, and Women’s Initiatives for Gender Justice, 10 December 2018, The Hague. 121 The policy states: ‘“Gender-based crimes” are those committed against persons, whether male or female, because of their sex and/or socially constructed gender roles. Gender-based crimes are not always manifested as a form of sexual violence. They may include non-sexual attacks on women and girls, and men and boys, because of their gender.’ ICC Office of the Prosecutor, supra note 25, at 3. 122 Prosecution’s Pre-Trial Brief, Ongwen (ICC-02/04-01/15-533), OTP, 6 September 2016, at §§ 500–700. 123 Arrest Warrant Request, Al-Hassan (ICC-01/12-01/18-1-Red), OTP, 20 March 2018, at § 50. 124 Arrest Warrant Request, Al-Hassan (ICC-01/12-01/18-1-Red), OTP, 20 March 2018, at §§ 162–174.

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Re-writing sex and gender in international criminal law  385 which do not appear gendered on their faces, such as the destruction of protected buildings such as schools and hospitals, may well be gendered on closer inspection. A nuanced gender narrative would encompass all such crimes. In addition, charging for persecution on intersecting gender and other grounds would be a valuable development, in terms of making visible the relationships between gender, race, ethnicity, and other characteristics.125 These examples reflect a broader point, namely, that gender violence is more than sexual violence alone.

6. CONCLUSION Over the last three decades, feminist scholars and actors have worked hard to rewrite the narrative of gender violence in international criminal law. This effort to rewrite trial narratives has met significant contestation, both from actors seeking to maintain the gender status quo and from within feminist circles. The latter has critiqued feminist law reformers for over-emphasizing women’s experiences of sexual violence at the expense of all other crimes, reinforcing the idea of women as passive victims, and heaping too much praise on a legal system which does little to challenge structural gender inequality. They have presented a ‘counter-counter-narrative’ in each of these areas, to which feminist law reformers have responded by refining their narrative and claims. Meanwhile, opposition has also come from conservatives, especially those seeking to limit women’s access to the right to equality and reproductive rights. There has also been resistance to a broad reading of gender that could re-envision sex and gender relations under international criminal law, including in ways that embrace the rights of LGBTIQ minorities. Despite the push-back in both directions, in this chapter we have demonstrated that feminist law reformers have made significant progress and achieved success in reframing narratives about gender and violence in international criminal law. This is evidenced by the fact that sexual violence is now a significant feature of narratives of war and conflict, including at the ICC. Many court actors, especially Prosecutor Bensouda, are increasingly recognizing the gravity of sexual and other gender-based crimes and are working to reframe interpretations of these crimes under international law. These shifts indicate that the efforts of feminist scholars and activists to change how war is narrated are starting to have an effect. In addition, the portrayal of women and girls as perennial victims is also starting to change. In terms of representation, we have seen a shift both in terms of greater recognition of women as victims, prosecutors, defenders, and judges at the ICC. Their presence in and of itself helps shift the narrative of women as helpless to one where they are viewed as agents. Furthermore, women and girls are not only being represented as victims, nor as passive participants in war. They are also represented as combatants and child soldiers, as direct perpetrators, and occasionally as political leaders, such as in the case of Simone Gbabgo. The framing around men and boys is also slowly evolving to demonstrate their vulnerability in times of war and conflict, including being targets of crimes of sexual and gender-based violence and persecution. However, as we have noted, sexual violence is not always visible in trial narratives, and accountability for sexual violence remains a concern. Moreover, although the Office of the Prosecutor is increasingly depicting sexual violence as a gendered crime, this conception of

See Oosterveld, ‘Prosecuting Gender-Based Persecution’, supra note 68.

125

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386  The Elgar companion to the International Criminal Court sexual violence is not being mirrored in judgments. Nor are judgments analysing the gendered dimensions of non-sexual crimes—which as we have suggested, is an area for reform. In short, an analysis of ICC cases shows that surfacing the complexities of gender-based crimes is exceptionally difficult, especially in a permanent (as opposed to ad hoc) international court in which every new case can potentially introduce variations in gender norms and practices. Teasing out the interrelationships between these factors requires trained, focused, dedicated staff, which does not always sit neatly with the ICC’s other priorities or resources. Given its primary role as a criminal justice body, designed to focus on the guilt or innocence of the accused, the complexities of victims’ experiences can all too easily slip out of view. Clearly, feminist effort in reframing international criminal law remains an ongoing project. Court insiders and outsiders must continue to work to shift the long-held narrative about women’s secondary position under the law, keep a focus on sexual violence but include other crimes, and ensure that variations in conflict, ethnic, and political contexts feature in any analysis about the impact of crimes. They must also remain on alert to push back against the proponents of narratives which seek to uphold the gender status quo. The actors who support this position have been a powerful voice contesting feminist counter-narratives before and in the development of the Rome Statute system. Given the pattern of their international engagement,126 it is highly likely that these proponents will seek to intervene again if and when the ICC turns its attention to sexual orientation and gender-based prosecutions. While contest from conservative forces can be expected, there may also be opportunities for feminist actors to form new alliances with civil society and states. This is because, as Davis observes, ‘As the international community continues to grant broader recognition of individuals’ rights to be free from discrimination and violence on the basis of gender, including gender expressions based on sexual orientation and gender identity, the time is ripe for the ICC to act.’127 Shifting the narrative of international criminal law from one where women and gender minorities are marginal, helpless, and in need of protection to one where they are central, powerful, and able to fight for themselves and others have only been partially successful. Feminist legal reformers have made the most of every opportunity available to them to reflect this more affirmative view. Understanding that their position will always be contested, from within and without, these reformers have shown the capacity for compromise and negotiation, and for patience and acceptance of incremental change. As the Rome Statute system moves into its third decade, feminist scholars and actors remain engaged in the pursuit of a more gender-sensitive international criminal law, one that better takes into account voices from the Global South, and which reflects the reality of women and men’s lived experience in times of war.

Chappell, ‘Contesting Women’s Rights’, supra note 6. Davis, supra note 4, at 515.

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16. Mission uncertain: what communities does the ICC serve? Margaret M. deGuzman

1. INTRODUCTION Earlier chapters of this book have highlighted some of the ICC’s strengths and challenges as it strives to establish its role in the global legal order. This final chapter addresses a particularly intractable challenge: the absence of a clear mission for the Court. Apart from general statements, the ICC’s founders made little effort to agree on a mission or goals for the Court. As Frédéric Mégret’s chapter in this book explains, the states, non-governmental organizations and international organizations that created the Court engaged in complex negotiations involving divergent agendas and resulting in many compromises. The outcome is a Statute with significant ambiguities and little specificity about the institution’s purposes and priorities. Despite the absence of a clear mission, the ICC has made important contributions to the cause of justice, however conceived, as the chapters of this book attest. For instance, Rosemary Grey and Louise Chappell detail the Court’s work to increase visibility of crimes of sexual violence; Sara Wharton examines its promotion of defendants’ rights; and Jonathan O’Donohue highlights its work in the area of human rights generally. Nonetheless, as the Court’s supporters look to the future, it is important to inquire whether the absence of a clear institutional mission at the ICC hinders its effectiveness. This chapter argues that it does. An institution’s mission is a broadly conceived purpose that reflects its values and can be translated into goals and priorities.1 Adherence to a mission promotes institutional effectiveness, which depends on the extent to which an institution pursues, and achieves, agreed institutional goals. As Yuval Shany has written, to determine the effectiveness of an international court ‘one has to identify the court’s aims or goals … and ascertain a reasonable time frame for meeting some or all of these goals’.2 Thus, to be strongly effective, a court must do what its creators and supporters intend for it to do. When those intentions are unclear, the institution is likely to struggle. Many observers, including several in this book, agree that the ICC is struggling.3 Drawing on the Rome Statute’s preamble, the ICC has identified as its mission: ●● to investigate and try the most serious crimes of concern to the international community; ●● as a court of last resort complementing national jurisdictions; and R. D. Ireland and M. A. Hitt, ‘Mission Statements: Importance, Challenge, and Recommendations for Development’, 35 Business Horizons (May–June 1992) 34. 2 Y. Shany, ‘Assessing the Effectiveness of International Courts: A Goal-Based Approach’, 106 AIJL (2012) 225, at 230. 3 See e.g., R. Hamilton, ‘Africa, the Court, and the Council’, Chapter 11 of this book (discussing challenges related to charges of politicization); A. G. Kiyani, ‘Re-narrating selectivity’, Chapter 13 of this book (discussing challenges related to selectivity). 1

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388  The Elgar companion to the International Criminal Court ●● with the aim of ending impunity and preventing such crimes.4 The crimes that are the subject of this mandate are those over which the Court has jurisdiction: war crimes, aggression, crimes against humanity, and genocide. The Office of the Prosecutor has articulated a similar mission: [T]he mission of the Office of the Prosecutor embraces the effective and efficient conduct of preliminary examinations, investigations and prosecutions of the perpetrators of the crime of genocide, crimes against humanity, war crimes, and the crime of aggression, so as to help end impunity for the commission of such crimes, respond to the suffering of victims and communities affected by them, and thus contribute to their prevention in the future.5

The essence of each of these missions is the idea of ‘ending impunity and preventing’ serious international crimes. If the ICC had the resources to prosecute most, or even a substantial portion of these crimes, such mission statements might be sufficient for it to develop goals that it could implement effectively. Unfortunately, the proliferation of international crimes, and the Court’s relatively limited resources, mean that it can address only a small fraction of the crimes within its jurisdiction. As such, the mission of seeking to end impunity for serious international crimes is simply too broad to help ensure the Court’s effectiveness. The Court’s Strategic Plans appropriately articulate performance goals related to such issues as the efficiency of proceedings, cooperation with states, and professionalism.6 Achieving these goals should promote the Court’s ability to fairly and efficiently convict and punish defendants without violating their rights. However, in light of the Court’s necessary selectivity,7 a more refined sense of purpose is necessary to ensure its effectiveness. Although there are many ways the ICC’s mission could be refined, an important first step is to more clearly identify the community or communities the Court should seek to benefit through its work. Criminal law institutions typically arise within, and seek to benefit, particular communities. National criminal justice systems serve national communities and operate under national legislation that often reflects national criminal justice goals such as retribution, deterrence, and rehabilitation. The mission of national criminal law institutions is thus to implement the national community’s criminal justice values, which are reflected in such legislation. In contrast, it is unclear what community the ICC is tasked with serving, and thus what values should guide its work. Three narratives about the Court’s mission as it relates to target communities can be discerned in much of its work and in commentary about the Court. First, the Court’s mission is often identified as the pursuit of ‘global justice’. This narrative implicitly posits the existence

Office of the Prosecutor, Strategic Plan 2019–2021, 17 July 2019, International Criminal Court, available online at https://​www​.icc​-cpi​.int/​itemsDocuments/​20190726​-strategic​-plan​-eng​.pdf, at 4; Preamble ICCSt. (asserting the parties’ ‘Determin[ation] to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes’). 5 Strategic Plan 2019–2021, supra note 4, at 8. 6 See e.g., ibid.; Office of the Prosecutor, Strategic Plan 2016–2018, 16 November 2015, International Criminal Court, available online at https://​www​.icc​-cpi​.int/​iccdocs/​otp/​EN​-OTP​_Strategic​ _Plan​_2016​-2018​.pdf; Office of the Prosecutor, Strategic Plan 2012–2015, 11 October November 2013, International Criminal Court, available online at https://​www​.icc​-cpi​.int/​iccdocs/​otp/​OTP​-Strategic​-Plan​ -2013​.pdf. 7 For a discussion of this issue, see A. G. Kiyani, ‘Re-narrating selectivity’ in this book. 4

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Mission uncertain: what communities does the ICC serve?  389 of a global community with values and goals that the Court should seek to implement.8 Supporters of the global justice narrative often cite the Rome Statute’s preambular reference to the Court’s role in helping to end impunity for crimes of ‘concern to the international community as a whole’. A second narrative centers local communities as the Court’s primary communities of interest. This narrative tends to position the victims of particular crimes before the Court as its central community of interest; and supporters point to the significant role that victims are given in the Rome Statute. Another version of the local justice narrative frames the Court’s mission as contributing to transitional justice more broadly in countries where international crimes have been committed. The third narrative suggests that the ICC should seek to serve both global and local communities simultaneously. This narrative is probably most pervasive—Court actors and commentators tend to cite both global and local goals depending on the context of their claims. This chapter refers to the three narratives as the global, local, and hybrid narratives of the ICC’s mission respectively. The categories ‘global’ and ‘local’ simplify complex and interrelated relationships and processes. In fact, the categories mask important sites of contestation. As Leila Ullrich has pointed out, ‘the fault lines of justice contestations run not only between the ICC and affected communities, but also through the Court and victim communities’.9 The same is even more obviously true of the amorphous ‘global community’. Nonetheless, for present purposes it is not necessary to disaggregate the categories because this chapter does not advocate any particular mission for the Court. Instead, the Chapter’s goal is to demonstrate that different understandings of the ICC’s mission can yield different decision-making strategies. The next section sets the stage for the argument by briefly describing the three narratives. The chapter then turns, in Section 3, to its central argument about the potential impacts of the narratives on ICC decision making. Although the Court’s mission can influence virtually any decision it makes, the chapter focuses on some of the more important decisions, including how it manages its relationship with other national and international institutions, which situations and cases the Court investigates and prosecutes, how it interprets its applicable law, and its approach to sentencing and reparations. The chapter concludes with a plea for increased dialogue about the ICC’s role in the world.

2.

THREE NARRATIVES ABOUT THE ICC’S MISSION

The ICC’s founders, judges, prosecutors, and supporters frequently talk about the Court as an instrument of global justice. In a statement to the International Bar Association before the Rome Conference, then-United Nations Secretary General Kofi Annan eloquently evoked this narrative:

The author elaborates on this idea in M. M. deGuzman, Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal Law (Oxford, Oxford University Press, 2020), at 18–32 (‘The institutions, norms, and doctrines of international criminal law point to the existence of a global justice community.’). 9 L. Ullrich, ‘Beyond the “Global–Local Divide”: Intermediaries, Victims and the Justice Contestations of the International Criminal Court’, 14 Journal of International Criminal Justice (2016) 543, at 547. 8

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390  The Elgar companion to the International Criminal Court In the prospect of an international criminal court lies the promise of universal justice. That is the simple and soaring hope of this vision. We are close to its realization. We will do our part to see it through till the end. We ask you ... to do yours in our struggle to ensure that no ruler, no State, no junta and no army anywhere can abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished.10

Although Annan surely knew that the proposed Court would be unable to ensure accountability for all perpetrators of human rights violations around the world, he believed it would promote global justice by reassuring ‘the innocents of distant wars and conflicts’ that they have a right to justice. The Court would promote ‘universal justice’ by sending this message out to people everywhere. Many of the state representatives who negotiated the Rome Statute made similar statements.11 The ICC’s first Prosecutor, Luis Moreno-Ocampo, portrayed the Court as ‘Seeking Global Justice’,12 and its current Prosecutor, Fatou Bensouda, described the ICC as ‘A Sui Generis System for Global Justice’.13 The Coalition for the International Criminal Court identifies universal ICC membership as the solution to the problem of ‘uneven global access to justice’.14 Many scholars write about the ICC as an institution of global justice.15 The concept of global criminal justice is of recent genesis. The inception of the idea is usually traced to the founding of the post-World War II Nuremberg and Tokyo Tribunals. However, although those Tribunals claimed to act on behalf of the world,16 they were estab-

10 K. Annan, ‘Advocating for an International Criminal Court’, 21 Fordham International Law Journal (1997) 363, at 366. 11 See e.g., United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 4th Plenary Meeting, UN Doc. A/CONF.183/SR.4 (15 June–17 July 1998), § 44 (‘Mr. Spasov (The former Yugoslav Republic of Macedonia) said that an international criminal court would fill a gap in the international legal system, would give a clear signal to the perpetrators of serious crimes that they would be brought to justice, and would help to guarantee universal respect for human rights and fundamental freedoms.’). 12 L. Moreno-Ocampo, ‘The International Criminal Court: Seeking Global Justice’, 40 Case Western Reserve Journal of International Law (2008) 215. 13 F. Bensouda, ‘The ICC Statute—An Insider’s Perspective on a Sui Generis System for Global Justice’, 36 North Carolina Journal of International Law & Commercial Regulation (2011) 277. 14 Coalition for the International Criminal Court, ‘Global Justice for Atrocities’, available online at http://​www​.coalitionfortheicc​.org/​fight/​global​-justice​-atrocities (visited 13 May 2020). 15 See e.g., ‘Pursuing Global Justice through International Criminal Law’, 13 Journal of International Criminal Justice (2015) (symposium on the influence of the concept of global justice on international criminal law); F. Mégret, ‘In Whose Name?: The ICC and the Search for Constituency’, in C. De Vos, S. Kendall, and C. Stahn (eds), Contested Justice: The Politics and Practice of International Criminal Court Interventions (Cambridge: Cambridge University Press, 2015) 23–45 (discussing how the portrayal of international criminal law as seeking global justice affects the legitimacy of the ICC); V. Popovski, ‘International Criminal Court: A Necessary Step Towards Global Justice’, 31 Security Dialogue (December 2000) 405–419 (discussing the role of the ICC in effectuating global justice). 16 See e.g., International Military Tribunal of Nuremberg Preamble IMTSt. (‘Now therefore the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics … in the interests of all the United Nations … have concluded this Agreement.’) (emphasis added); C. Nielsen, ‘From Nuremberg to The Hague: The Civilizing Mission of International Criminal Law’, 14 Auckland University Law Review (2008) 81, at 81 (‘The real complaining party at your bar is Civilization.’) (quoting opening statement of Chief Prosecutor Joseph Keenan at Tokyo Tribunal).

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Mission uncertain: what communities does the ICC serve?  391 lished by the victorious allies to adjudicate the crimes of their vanquished foes and have been criticized as victors’ justice.17 The subsequently established ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR) were more international in the sense that they were established by the Security Council under its mandate to restore and maintain peace and security, but their work was limited to particular geographic and temporal spaces, which constrained their ability to speak on behalf of the global community. In a sense, then, the ICC is the first criminal law institution that can claim a truly global mission. The Court was established by a treaty adopted by almost all of the world’s states, albeit with some powerful dissenters, and its jurisdiction extends to all corners of the world, at least when the Security Council makes a referral. Perhaps in part because of its short lifespan, commentators have devoted little attention to the implications of the concept of global criminal justice for decision making. Yet the challenges of identifying and implementing global values, goals and priorities are hard to underestimate. No global legislature exists to pronounce on such matters. The ICC’s Assembly of States Parties can provide quasi-legislative guidance, but it does not represent the many states not parties to the Statute that can nonetheless be subject to its jurisdiction through a Security Council referral. Moreover, global socio-economic inequalities pose an ever-present danger that any values identified as global are in fact efforts to project power to further disadvantage weaker members of the global community.18 The analysis below of potential decision-making outcomes under a global justice paradigm does not seek to address, let alone resolve, such issues. Rather, it suggests some potential consequences for the Court of adopting a global justice mission in an effort to demonstrate the importance of further discussion of this issue. The second narrative—that the ICC is primarily a vehicle for local justice—is also a frequent theme in discussions about the Court.19 This narrative often centers the victims of particular situations before the Court as the primary communities of interest for the Court’s work. Sara Kendall and Sara Nouwen have documented the significant extent to which actors inside the ICC, as well as outsiders supporting the Court’s work, have engaged in this narrative.20 Victims’ interests are invoked as a ‘telos of the work of the ICC’ by the Court’s prosecutors and judges, as well as by international governmental and non-governmental organizations.21 Barry Sanders confirms that: ‘It has become almost ritualistic for international criminal trials to be justified in terms of their capacity to meet the perceived desires of victims for truth, accountability, and healing.’22 For instance, an ICC policy paper recognizes victims’ ‘right to have their

17 See e.g., R. H. Minear, Victors’ Justice: Tokyo War Crimes Trial (Princeton: Princeton University Press, 1971), at 13 (‘The trials were designed not only to punish wrongdoers but also to justify the right side, our side.’). 18 See generally C. Schwöbel (ed.), Critical Approaches to International Criminal Law: An Introduction (Abingdon: Routledge, 2014). 19 See e.g., Mégret, supra note 15, at 36–42 (discussing the ‘local turn’ in thinking about the ICC’s constituencies). 20 S. Kendall and S. Nouwen, ‘Representational Practices at the International Criminal Court: The Gap between Juridified and Abstract Victimhood’, 76 Law and Contemporary Problems (2013) 235, at 239–240. 21 Ibid. at 239. 22 B. Sander, ‘The Expressive Limits of International Criminal Justice: Victim Trauma and Local Culture in the Iron Cage of the Law’, 5 European Society of International Law Conference Paper Series (2015) 1, at 6.

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392  The Elgar companion to the International Criminal Court distinct needs and interests taken into account by the Court and in the Court’s activities’;23 and its most recent strategic plan sets as a goal to ‘[f]urther develop the Court’s approach towards victims in all phases of the judicial proceedings’.24 A report of the International Federation for Human Rights places ‘victims at the center of justice’ in the ICC’s work.25 Another version of the local justice narrative positions the ICC as a mechanism of transitional justice, with the central purpose of addressing the justice needs of societies emerging from conflict or oppressive regimes. For instance, Linda Keller has asserted that: ‘The goal of the ICC is to provide a foundation for rebuilding society after mass violence, through prosecution of the perpetrators and reparations for the victims.’26 Some authors focus in particular on the Court’s role in rebuilding the rule of law in affected societies.27 The local justice narrative presents no fewer implementation challenges than does the global justice vision of the ICC’s mission. Such a mission would require the ICC to identify and seek to effectuate the justice goals of the communities most affected by the crimes the Court adjudicates. Although the values, goals, and priorities of local communities may sometimes be easier to identify than those of the more dispersed global community, international criminal law tends to operate in contexts where communities have been, and often continue to be, torn apart. The crimes under the ICC’s jurisdiction—war crimes, crimes against humanity, genocide, and aggression—are usually committed in circumstances of extreme social and political upheaval. In such conditions, local communities are likely to be especially divided in their goals and priorities. The Kenya situation illustrates this problem. Although some Kenyans supported criminal justice for those accused by the ICC, others disagreed so strongly that they elected two of them president and deputy president of the country.28 A further difficulty with a local justice mission for the ICC is that it would require prosecutors, judges and others in The Hague to identify and seek to implement the goals and priorities of a community of which they are not part, and with which they may not even be familiar.29 Prosecutors and judges in national communities often have statutory and policy guidance 23 Court’s Revised Strategy in Relation to Victims (Revised Strategy), ICC-ASP/11/38, 5 November 2012, available online at https://​asp​.icc​-cpi​.int/​iccdocs/​asp​_docs/​ASP11/​ICC​-ASP​-11​-38​-ENG​.pdf, at § 15A. 24 Strategic Plan 2019–2021, supra note 4, at 3. 25 International Federation for Human Rights, ‘Victims at the Center of Justice: Reflections on the Promises and the Reality of Victim Participation at the ICC (1998–2018)’, 11 December 2018, available online at https://​www​.fidh​.org/​IMG/​pdf/​droitsdesvictimes730a​_final​-2​.pdf (visited 13 May 2020). 26 L. Keller, ‘Seeking Justice at the International Criminal Court: Victims’ Reparations’, 29 Thomas Jefferson Law Review (2007) 189, at 189; see also O. C. Okafor and U. Ngwaba, ‘The International Criminal Court a “Transitional Justice” Mechanism in Africa: Some Critical Reflections’, 9 International Journal of Transitional Justice (2014) 1, at 1 (‘Much scholarly writing on the International Criminal Court (ICC) gives the impression that the Court can function effectively as a primary transitional justice mechanism in Africa …’). 27 See e.g., A. Pemberton et al., ‘Coherence in International Criminal Justice: A Victimological Perspective’, 15 International Criminal Law Review (2015) 339, at 352 (noting that ‘[i]t is assumed that trials for previous atrocities will automatically contribute to rebuilding the rule of law’.). 28 In 2013, two ICC defendants, Uhuru Kenyatta and William Ruto, were elected president and deputy president of Kenya, respectively. 29 For example, Madeline Morris, who worked closely with the Rwandan government in crafting its ‘Organic Law’ in response to the Rwandan genocide, commented on its use in the first two opinions issued by the ICTR: ‘In each of those opinions, reference is made at various points to Rwandan national law. In almost every such reference the ICTR gets Rwandan law wrong. And these inaccuracies are

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Mission uncertain: what communities does the ICC serve?  393 about community goals and priorities, as well as their own lived sense of the community’s values. Although community outreach and research can certainly inform international prosecutors and judges, these are not a strong substitute for experience or community membership. The third narrative is a hybrid one that views the Court’s mission as equally devoted to global and local goals. This vision of the ICC is rarely articulated explicitly, but can be deduced from statements by Court actors and scholars writing about the Court. For instance, in its strategy paper on the role of victims, the Court articulates as a guiding principle: ‘A commitment to serving as a catalyst for improving realisation of the rights of victims of genocide, crimes against humanity and war crimes worldwide on the international and local levels’.30 Jeremy Sarkin has argued that the ICC should seek both to deter human rights violations around the world and to contribute to restorative and transitional justice in the countries affected by the crimes it adjudicates.31 A hybrid mission for the ICC necessarily reflects the difficulties of each of the other two options: if the Court chooses to pursue global goals in a given context it faces the challenge of ascertaining what those are, and if it seeks to effectuate national community objectives it must identify the appropriate community and its priorities.32 Moreover, the hybrid model involves a further layer of complexity in that it requires the Court to decide when to pursue global versus local goals, rather than having a fixed overarching agenda. Even the decision about when to decide this question is complicated. Decisions about which sets of goals to pursue could be made at any number of stages in the process. The Court could pursue global goals in some situations, and local goals in others, or choose different sets of goals for different cases within a situation, or even for different decisions within a case. For instance, it might use global values to make procedural decisions, and local values to identify sentences—or vice versa. Finding principled ways to make such decisions presents obvious challenges. Although the Rome Statute fails to specify a central community of interest, one aspect of the Court’s mission is clear: that the Court should seek to prevent crimes. As noted above, the Statute’s preamble declares the parties’ determination ‘to put an end to impunity … and thus to contribute to the prevention of [serious international] crimes’.33 Prevention can take many forms including specific deterrence and incapacitation of individuals, general deterrence of community members, and positive general prevention: the expression of norms that influence societies to obey the law. As the discussion below demonstrates, the kinds of preventive strategies the ICC should pursue differ depending on how its mission is conceived.

not trivial.’ M. H. Morris, ‘Rwandan Justice and the International Criminal Court’, 5 ILSA Journal of International & Comparative Law (2009) 351, at 352. 30 Revised Strategy, supra note 23, at § 15 (emphasis added). 31 J. Sarkin, ‘Enhancing the Legitimacy, Status and Role of the International Criminal Court by Using Transitional Justice or Restorative Justice Strategies’, 6 Interdisciplinary Journal of Human Rights Law (2012) 83, 84. 32 Cf. C. Aptel, ‘Prosecutorial Discretion at the ICC and Victims’ Right to Remedy: Narrowing the Impunity Gap’, 10 Journal of International Criminal Justice (December 2012) 1357 (‘It thus appears that the ICC prosecutors struggle in balancing two different objectives, namely, on one hand, their intent to preserve their discretionary powers to select situations and cases as unrestrained as possible, and, on the other, their declared wish to incorporate the views and interests of victims in the prosecutorial strategy.’). 33 Preamble ICCSt.

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394  The Elgar companion to the International Criminal Court

3.

MISSION-BASED DECISION MAKING

The three missions elaborated above have distinct implications for decision making at the Court. This section provides some insights into some of the potential consequences of adopting each mission in an effort to demonstrate the importance of forging greater clarity about the ICC’s role in the world. The discussion is far from exhaustive; institutional missions can impact a wide array of decisions. Rather, it seeks to illustrate the importance of mission-based decision making and the kinds of challenges it presents for the Court. It examines decisions about how the Court should navigate its relationships with other national and international institutions, which situations and cases it should investigate and prosecute, when the Court should end its work in situations, and how it should allocate punishment and reparations. 3.A

Relationships with Other Institutions

The Court’s mission has important implications for its relationships with other institutions, both national and international. This includes, most obviously, national systems adjudicating or considering adjudication based on connections to the crimes at issue, but also national systems exercising or seeking to exercise universal jurisdiction. It also includes the Court’s relationship with the Security Council, and potentially with any regional courts established in the future with jurisdiction over Rome Statute crimes. Under its Statute, the ICC is to be ‘complementary to national criminal jurisdictions’.34 A case is inadmissible before the ICC when it ‘is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution’.35 How the Court ought to interpret this complementarity principle depends to a significant degree on the nature of its mission. The Court’s current interpretation aligns well with a global justice mission. The Court has held that complementarity only requires it to desist from investigating or prosecuting when national authorities are doing so with regard to the same individuals for substantially the same conduct as the ICC.36 This interpretation enables the Court to proceed with investigations and prosecutions of some suspects for some crimes, even when national authorities are simultaneously pursuing other suspects for related crimes. Indeed, the Court has held that assurances from local authorities that investigations are imminent or that persons with similar levels of responsibility are being investigated are insufficient to preclude the ICC’s exercise of jurisdiction.37 The Court’s interpretation of the complementarity principle can be viewed as a ‘burden sharing’ approach.38 Rather than viewing itself as subordinate to national authorities, the Art. 1 ICCSt. Art. 17 ICCSt. 36 Judgment on the Appeal of the Republic of Kenya Against the decision of Pre-Trial Chamber II of 30 May 2011 titled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute’, Kenyatta and others (ICC-01/09-02/11 OA), Appeals Chamber, 30 August 2011, § 40. 37 Ibid. at §§ 40–41. 38 C. Stahn, ‘Complementarity: A Tale of Two Notions’, 19 Criminal Law Forum (2008), 87–113, at 89 (discussing different approaches to complementarity, including burden sharing); P. McAuliffe, ‘From Watchdog to Workhorse: Explaining the Emergence of the ICC’s Burden-Sharing Policy as an Example of Creeping Cosmopolitanism’, 13 Chinese Journal of International Law (2014) 259, at 259 (explaining 34 35

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Mission uncertain: what communities does the ICC serve?  395 Court’s interpretation places it in a horizontal relationship with them. This approach is compatible with a global justice mission for the ICC because it enables the Court to pursue global justice goals, such as norm expression, even when national authorities are simultaneously pursuing national justice goals in related cases, and even when such authorities object to the exercise of the ICC’s jurisdiction. Another way to interpret complementarity that is more compatible with a local justice mission is to require the Court to act only as a last resort. The narrative that the ICC is a ‘court of last resort’ is reflected in its mission statement,39 and is pervasive in the literature and commentary,40 including some chapters in this book.41 The Court’s Prosecutor has also endorsed this narrative.42 Although the ‘last resort’ could theoretically be to global justice, this narrative suggests that the ICC’s purpose is not to pursue independent goals, but rather step into the shoes of national systems that are unwilling or unable to act. This view of complementarity makes the concept essentially synonymous with subsidiarity—national adjudication should take precedence over international whenever possible.43 The ‘last resort’ approach to complementarity suggests that the Court should take a stricter approach to admissibility than is reflected in the ‘same person, same conduct’ test it has adopted. If the Court is truly to operate only as a last resort, it should presumably allow states significant leeway to determine when and whom to prosecute in order to satisfy the requirements of complementarity. Indeed, one of the Appeals Chamber judges in the Kenya situation dissented on that basis. The Kenyan state had represented to the Court that it was in the process of reforming its criminal justice system to enable prosecutions for the crimes alleged at the ICC, and that it was investigating suspects at the same level of responsibility as those the ICC had accused.44 The majority of the Appeals Chamber held that such promises of future activity regarding similarly situated suspects were insufficient to meet the requirements of complementarity.45 Judge Ušacka dissented, arguing for a more flexible approach that better respects state sovereignty.46 This dissent aligns with a national justice mission for the Court. that, under the burden-sharing approach, ‘the Office of the Prosecutor initiates prosecutions of the leaders who bear the most responsibility for the most egregious crimes and encourages national prosecutions for the lower-ranking perpetrators’). 39 Preamble ICCSt., supra note 4, and accompanying text. 40 See e.g., E. Mendez, Peace and Justice at the International Criminal Court: A Court of Last Resort, (Cheltenham, Edward Elgar Publishing, 2010); P. Kirsch, ‘The Role of the International Criminal Court in Enforcing International Criminal Law’, 22 American University International Law Review (2007) 539, 543. 41 See Y. M. Dutton, Chapter 12 of this book; A. K. A. Greenawalt, Chapter 4 of this book. 42 Strategic Plan 2016–2018, supra note 6, at § 37. 43 H. M. E. Khen, ‘Revisiting Universal Jurisdiction: The Application of the Complementarity Principle by National Courts and Implications for Ex-Post Justice in the Syrian Civil War’, 30 Emory International Law Review 261, at 276. 44 Application on Behalf of the Government of the Republic of Kenya Pursuant to Article 19 of the ICC Statute, Prosecutor v. Ruto and others and Prosecutor v. Kenyatta and others (ICC-01/09-01/11 and ICC-01/09-02/11), Pre-Trial Chamber II, 31 March 2011, § 5. 45 Kenyatta and others, supra note 36. 46 Separate and Dissenting Opinion of Judge Anita Ušacka, Judgment on the Appeal of the Republic of Kenya Against the Decision of Pre-Trial Chamber of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute’, Kenyatta and others (ICC-01/09-01/11), Appeals Chamber, 20 September 2011, § 28.

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396  The Elgar companion to the International Criminal Court Because national courts are generally better able than the ICC to pursue national justice goals, under a local justice mission they should be given the greatest possible opportunity to do so before the ICC steps in. The Court’s mission could also affect how it approaches situations involving the exercise, or potential exercise, of universal jurisdiction by states with no connections to the crimes or perpetrators in a situation. A national justice mission might suggest the ICC should defer liberally to states willing to exercise universal jurisdiction, at least when it views those systems as equally capable as itself of stepping into the shoes of the non-functioning state system. The ICC may sometimes provide an advantage over a substitute national system, such as when the volunteer state is suspected of motives unrelated to providing justice for the communities affected by the crimes. Often, however, states exercising universal jurisdiction are likely to be as adept as the ICC at providing substitute justice. Indeed, they may sometimes be more effective, such as when the state exercising universal jurisdiction is a neighbor of the affected state or otherwise has close historical ties with the latter. A global justice mission, on the other hand, suggests that the ICC should defer less readily to national systems exercising or seeking to exercise universal jurisdiction. Although national courts exercising universal jurisdiction often claim to be adjudicating on behalf of the global community,47 they lack the global stature and broad membership of the Court. Assuming the ICC has strong legitimacy, it is better placed to identify and implement global goals than are the justice systems of individual states. For instance, an ICC conviction is likely to send a more powerful message of global condemnation than a conviction in a national system exercising universal jurisdiction, thereby having a greater preventive impact. Similar questions of deference may arise if any regional courts with criminal jurisdiction become operational. The African Union has already agreed to grant the African Court of Human and Peoples’ Rights such jurisdiction, although the Court’s statute has yet to be ratified. If such a regional court seeks to investigate or prosecute situations and cases that are also of interest to the ICC, the latter will have to decide whether, and under what circumstances, to defer to the regional court. Under a national justice vision of the ICC’s role, broad deference to regional courts makes sense, at least when those courts also have a national justice vision of their missions. If a regional court’s goal is also to replace non-functioning national justice systems, it may make little difference whether the regional or international court fulfills that mission in a given situation, assuming the institutions are comparable in their legitimacy and effectiveness. Indeed, the greater proximity of the regional court to relevant national systems may make it more adept at fulfilling national justice goals. On the other hand, if the ICC has a global justice role, or the regional court has a distinct regional justice mission, or both, the question of when each should defer to the other becomes more complex. Under those circumstances, the institutions will have to determine which sets of goals should be privileged in deciding how to proceed in situations in which both have jurisdiction. If no principled way to make such determinations can be identified, they may simply have to adopt default procedural rules, such as the ‘first in time’ rule.

See e.g., Demjanjuk v. Petrovsky (776 F2d 571, 582–583) (6th Cir. 1985)) (‘The underlying assumption is that the crimes are offenses against the law of nations or against humanity and that the prosecuting nation is acting for all nations. This being so, Israel or any other nation, regardless of its status in 1942 or 1943, may undertake to vindicate the interest of all nations by seeking to punish the perpetrators of such crimes.’). 47

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Mission uncertain: what communities does the ICC serve?  397 Beyond admissibility, the Court’s mission also has implications for the broader question of how it seeks to ‘complement’ national systems. First, the national justice mission arguably requires broader consideration of national justice values beyond criminal law values. Although Article 1 of the Rome Statute refers to the ICC complementing ‘national criminal jurisdictions’, the interests of justice provision can be read to allow the ICC to complement national systems more broadly, including, for instance, by deferring ICC prosecution in the interests of peace or reconciliation. Second, the ICC’s agenda could also influence the extent to which it devotes resources to encouraging and assisting national courts in investigating and prosecuting international crimes, which is often called ‘positive complementarity’.48 A global justice mission might suggest a modest allocation of resources to this task, given that allocating resources to helping individual national jurisdictions promotes global prevention only indirectly. On the other hand, if the ICC’s purpose is to replace non-functioning national systems, it makes sense to allocate significant resources to seeking to repairing local systems, thereby freeing ICC resources for situations that are truly beyond repair. In this vein, Lisa Laplante has argued that the Court should engage in ‘proactive complementarity’, seeking to influence proceedings even in situations that could not trigger its jurisdiction.49 Likewise, a local justice mission would support the ICC making substantial efforts to assist states seeking to exercise universal jurisdiction to reserve the Court’s prosecutorial resources for situations where no national system is willing and able to adjudicate. The extent to which the ICC adopts a global or local justice mission could also affect its relationship with the UN Security Council. The Security Council is tasked with the restoration and maintenance of international peace and security.50 As part of that mission, the Security Council has the power to refer situations to the ICC. The question of when ICC prosecution is in the interests of peace and security should relate to the goals the ICC is pursuing. If the Court is primarily filling in for unavailable national justice systems, using its resources to prosecute a significant number of cases in a small number of situations, the Security Council should take a narrow view of when ICC action is in the interests of peace and security. Such prosecutions, while helpful at the local level, are unlikely to affect global peace and security significantly. A broader global justice mission, on the other hand, supports a more liberal approach to Security Council referrals because the ICC can select cases within situations that most strongly support international peace and security. For instance, the Security Council can refer situations to the Court involving political leaders abusing power to promote conflict, and the Court can limit its prosecutions in those situations to top leaders, thereby significantly affecting the potential for greater international peace and security.

See e.g., Human Rights Watch, Pressure Point Appendix I: Positive Complementarity in Preliminary Examinations, May 2018, available online at https://​www​.hrw​.org/​sites/​default/​files/​report​ _pdf/​ij0418​_appendix​.pdf, at 155. (‘In seeking to influence national justice efforts, the [Office of the Prosecutor] needs to have strategies addressed to both bolstering a government’s political will to support independent investigations and bridging capacity gaps, or, in the language of the Rome Statute, overcoming “unwillingness” and “inability”, terms which have increasingly come to be used as shorthand for two pillars of positive complementarity activities.’); Strategic Plan 2019–2021, supra note 4, at § 5(d). 49 L. Laplante, ‘The Domestication of International Criminal Law: A Proposal for Expanding the International Criminal Court’s Sphere of Influence’, 43 John Marshall Law Review (2010) 635–680, at 669. 50 Art. 39 UN Charter. 48

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398  The Elgar companion to the International Criminal Court A hybrid justice mission for the Court would complicate decision making in each of these areas. It is difficult to envision how the Court, or other institutions with which it interacts, could make decisions that address both agendas, or how they could effectively coordinate around such a complex decision-making process. A hybrid mission would thus increase the importance of continuous communication among institutions to ensure that each is aware of the others’ goals. 3.B

Selection Decisions

Just as the Court’s mission should affect how it relates to other institutions, it should also influence how the Court selects among admissible situations and cases. Situations are geographic and temporal spaces in which crimes within the Court’s jurisdiction appear to have been committed, and cases are comprised of particular charges against particular individuals. The Statute leaves case selection entirely within the discretion of the prosecutor. For situations, on the other hand, it is unclear how much discretion the prosecutor or judges have to engage in selection. The prosecutor’s discretion is clearest with regard to proprio motu situations, in which the prosecutor ‘may’ seek the Court’s permission to investigate under certain conditions.51 On the other hand, for situations referred to the Court by states or the Security Council, the Statute specifies that the prosecutor ‘shall’ initiate investigations into situations when there is a ‘reasonable basis to proceed’.52 The prosecutor has read this language to preclude discretionary situation selection, whether based on a mission, or otherwise.53 Yet the Statute instructs the prosecutor, in determining whether there is a reasonable basis to proceed, to consider ‘whether … [t]aking into account the gravity of the crime and the interests of the victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice’.54 The judges are empowered to review determinations that an investigation is not in the interests of justice on their own motion, in which case the prosecutor’s decision is only effective if confirmed by the judges.55 This ‘interests of justice’ provision could be interpreted to allow the Court—either the prosecutor or the judges on review—to reject situations that fail to align with its mission. Thus far, however, neither the Prosecutor nor judges have taken such a broad view of the provision. In policy statements, the Prosecutor has asserted that the

Art. 15(1) ICCSt. (emphasis added). Art. 15(3) (emphasis added). 53 The Office of the Prosecutor, Policy Paper on Preliminary Investigations, International Criminal Court, November 2013, available online at https://​www​.icc​-cpi​.int/​iccdocs/​otp/​OTP​-Policy​_Paper​ _Preliminary​_Examinations​_2013​-ENG​.pdf (last visited 20 May 2020), at § 2 (Stating that the Office of the Prosecutor will ‘collect all relevant information necessary to reach a fully informed determination of whether there is a reasonable basis to proceed with an investigation. If the Office is satisfied that all the criteria established by the Statute for this purpose are fulfilled, it has a legal duty to open an investigation into the situation.’). 54 Art. 53(1)(c) ICCSt. 55 Art. 53(3)(b) ICCSt. 51 52

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Mission uncertain: what communities does the ICC serve?  399 interests of justice should be invoked only exceptionally,56 and the Appeals Chamber rejected a Pre-Trial Chamber holding that included an expansive interpretation of the provision.57 Thus, although the discussion below assumes that the Court can ‘select’ among admissible situations based on its understanding of its mission, the prosecutor and judges have yet to embrace such discretion. Unless the Court adopts a broader understanding of the ‘interests of justice’ than currently prevails, or finds situation selection discretion elsewhere in the Statute, other entities will share in the responsibility of ensuring the Court’s situations advance its mission. In particular, state parties and the Security Council will have to take the Court’s mission into account when deciding whether to refer situations. 3.B.1 Situation selection A global mission for the ICC suggests it should adjudicate situations that have the greatest possible global preventive impact. Although a comprehensive analysis of how such situations can be identified is beyond the scope of this chapter, a few reflections based on the ICC’s nature and resources can provide a sense of how global selection goals might differ from those linked to local or hybrid justice missions. First, in contrast to local justice, global justice usually will not support selecting situations based on a need for specific deterrence— deterrence of particular individuals. While all crime prevention in some sense benefits all people, deterring particular individuals from committing crimes generally does not strongly affect the wellbeing of the global community as a whole. There are exceptions. For instance, when an individual with significant power, such as a head of state, is perpetrating systematic crimes, removing that person from power may provide a significant worldwide benefit, such as decreasing regional instability and conflict. In such exceptional cases, specific deterrence could be a global justice goal. Second, general deterrence on a global scale requires different considerations than it usually does on a local scale. For instance, one study found that ‘the ICC is more likely to deter actors when they are sensitive to social pressure’.58 For government actors, such pressure might come from states threatening to withhold assistance, and for rebel groups it might flow from a need for international legitimacy.59 Thus, in situations where relevant actors have demonstrated insensitivity to social pressure, ICC adjudication may be an ineffective deterrent. Additionally,

56 The Office of the Prosecutor, Policy Paper on the Interests of Justice, International Criminal Court, September 2007, available online at https://​www​.icc​-cpi​.int/​nr/​rdonlyres/​772c95c9​-f54d​-4321​ -bf09​ -73422bb23528/​ 143640/​ iccotpinterestsofjustice​ .pdf (visited 13 May 2020), at 3 (‘Taking into consideration the ordinary meaning of the terms in their context, as well as the object and purpose of the Rome Statute, it is clear that only in exceptional circumstances will the Prosecutor of the ICC conclude that an investigation or a prosecution may not serve the interests of justice.’); Policy Paper on Preliminary Examinations, supra note 53, at § 71 (‘In light of the mandate of the Office and the object and purpose of the Statute, there is a strong presumption that investigations and prosecutions will be in the interests of justice, and therefore a decision not to proceed on the grounds of the interests of justice would be highly exceptional.’). 57 Judgment on the Appeal Against the Decision on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, Situation in the Islamic Republic of Afghanistan (ICC-02/17-138), Appeals Chamber, 5 March 2020. 58 H. Jo and B. A. Simmons, ‘Can the International Criminal Court Deter Atrocity?’, 70 International Organization (2016) 443, at 446. 59 Ibid. at 454.

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400  The Elgar companion to the International Criminal Court because deterrence is strongly dependent on the likelihood of punishment,60 which is generally low at the ICC, efforts to pursue this goal at the global level may require strategic targeting. For instance, the Court can increase the likelihood that certain categories of perpetrators will be punished, such as leaders, by focusing its efforts on that category. It can do the same by focusing on particular categories of crimes within its jurisdiction, such as those committed on an especially large scale. Such efforts are reflected in some of the Prosecutor’s selection policies.61 In adopting targeting policies in service of global justice, the Court must be careful not to foreclose entirely the possibility of ICC prosecution of certain perpetrators or certain crimes to avoid eliminating whatever small deterrent potential it may have for those categories. In particular, it is important that the Court not interpret the Statute to limit its ability to prosecute any particular categories of perpetrators or crimes, but only signal discretionary priorities. This issue was at the heart of a debate between Pre-Trial and Appeals Chamber judges in one of the Court’s first cases. The Pre-Trial Chamber interpreted the Statute’s gravity threshold for admissibility as limiting the Court’s reach to cases involving systematic or large-scale crimes committed by leaders.62 It sought to justify this interpretation in part on the grounds that the Court would best serve the cause of deterrence by focusing on leaders. In overturning the decision, the Appeals Chamber pointed out that limiting admissible cases to those involving leaders could undermine deterrence for all crimes not committed by leaders.63 In light of its limited resources on the one hand, and its global stature on the other, the Court may be best able to contribute to global crime prevention by focusing on norm expression, or positive general prevention: expressing global norms in an effort to influence global behaviors.64 To pursue this goal, the Court would select situations—and cases—that best express the global norms most in need of expression.65 Some ICC policies seem to reflect this goal, including the Prosecutor’s policy of giving priority to cases involving such under-prosecuted

60 V. Wright, Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of Punishment, The Sentencing Project (2010), available online at https://​www​.sentencingproject​.org/​wp​-content/​uploads/​ 2016/​01/​Deterrence​-in​-Criminal​-Justice​.pdf, at 4 (‘Criminological research over several decades and in various nations generally concludes that enhancing the certainty of punishment produces a stronger deterrent effect than increasing the severity of punishment.’). 61 See e.g., Policy Paper on Preliminary Investigations, supra note 53, at § 103 (announcing policy of ‘investigating and prosecuting those most responsible for the most serious crimes’); Strategic Plan 2012–2015, supra note 6, at § 21 (‘The Office has followed a prosecutorial strategy based on the following principles: Investigating and prosecuting the most responsible perpetrators …’); but see Strategic Plan 2016–2018, supra note 6, at § 35 (‘Where deemed appropriate, the Office will implement a building-upwards strategy by first investigating and prosecuting a limited number of mid- and high-level perpetrators in order to ultimately have a reasonable prospect of conviction for the most responsible.’). 62 Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58, Lubanga (ICC-01/04-01/06), Pre-Trial Chamber, 10 February 2006, § 63. 63 Judgment on the Prosecutor’s Appeal Against the Decision of Pre-Trial Chamber I Entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58’, Lubanga (ICC-01/04-169), Appeals Chamber, 13 July 2006, § 73. 64 C. Stahn, Justice as Message: Expressivist Foundations of International Criminal Justice (Oxford University Press, 2020), at 338 (noting that ‘[e]xpressivism is very closely related to positive general prevention, which seeks to encourage norm promotion and moral education.’). 65 See generally ibid.

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Mission uncertain: what communities does the ICC serve?  401 norms as the prohibitions on sexual and gender-based violence, the recruitment and use of child soldiers, and the destruction of cultural property.66 A local crime prevention mission would counsel in favor of different situation selection goals and strategies. Before becoming involved in a situation, the Court would need to ascertain the local community’s goals and determine whether ICC prosecution has a reasonable chance of advancing those goals. In some situations, local communities may disfavor ICC prosecution, or indeed any prosecutions at all. For instance, they may prefer to defer prosecution in the hopes of promoting peace, or favor other types of responses to criminal conduct more in line with local cultural norms. Along these lines, Elizabeth Ludwin King has argued that the ICC should interpret the ‘interests of justice’ to allow it to defer to states favoring non-prosecutorial methods of accountability and reconciliation under some circumstances.67 Even assuming local communities support prosecution, ICC prosecution may not be the best way to pursue their goals. For a community seeking to deter particular people or kinds of crimes, the limited number of prosecutions the ICC is able to pursue may do little to advance their goals. Indeed, it could harm local perceptions of justice if limited prosecutions are perceived as unfair or unbalanced. Under such circumstances, the Court may best serve local justice by supporting the efforts of local actors, rather than becoming directly involved in the situation. Positive complementarity, as well as the threat of ICC prosecution, can be important ways for the ICC to provide indirect support to local efforts. As explained above, a local justice mission suggests the ICC should provide significant logistical and other support to local systems interested in prosecuting international crimes, and that it should allow states substantial leeway to develop their investigative and prosecutorial responses before intervening. A hybrid justice mission would require the ICC to select situations in ways that accommodate both global and local preventive agendas. This will be easiest in situations where the goals of global and local communities are aligned, or at least compatible. In other situations, however, global and local preventive agendas will conflict, making a hybrid approach challenging. This might be the case, for instance, when the global community wants to deter a particularly powerful individual, but large portions of the local community support the individual. One approach to resolving such tensions might be for the ICC to become involved only in situations where global and local agendas align. Implementing this approach would raise other

The Office of the Prosecutor, ‘Policy Paper on Case Selection and Prioritisation’, International Criminal Court, 15 September 2016, available online at https://​ www​ .icc​ -cpi​ .int/​ itemsDocuments/​ 20160915​_OTP​-Policy​_Case​-Selection​_Eng​.pdf (visited 20 May 2020), at § 46 (‘The Office will pay particular attention to crimes that have been traditionally under-prosecuted, such as crimes against or affecting children as well as rape and other sexual and gender-based crimes. It will also pay particular attention to attacks against cultural, religious, historical and other protected objects as well as against humanitarian and peacekeeping personnel.’); Strategic Plan 2012–2015, supra note 6, at §§ 58–63 (outlining its plan to ‘[e]nhance the integration of a gender perspective in all areas of our work and continue to pay particular attention to sexual and gender based crimes and crimes against children’); Strategic Plan 2019–2021, supra note 4, at 5 (‘[D]uring the Strategic Plan 2019–2021, the Office will finalise its ongoing work toward the adoption of a comprehensive policy on the protection of cultural heritage within the Rome Statute legal framework, which will also cover the important issue of victimisation in the context of such crimes.’). 67 E. Ludwin King, ‘Does Justice Always Require Prosecution?: The International Criminal Court and Transitional Justice Measures’, 45 George Washington International Law Review (2013) 85. 66

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402  The Elgar companion to the International Criminal Court challenges, however, including that of determining how much of the local population must object to ICC prosecution for the Court to decline involvement. 3.B.2 Case selection Mission-based case selection raises similar considerations to those discussed above. A global preventive mission focused on general deterrence would suggest the Prosecutor should select cases that have the greatest chance of promoting global deterrence. This might mean limiting the kinds of crimes and cases according to emerging evidence of the ICC’s deterrent impact. Expressive or positive general preventive goals would mandate that cases that will best promote important norms, including under-prosecuted norms, will be privileged, even if other cases involve greater amounts of harm. In contrast, a local preventive agenda would make case selection dependent on local priorities. For instance, if relevant local communities are particularly focused on deterring war crimes involving economic harms, the ICC should give priority to those crimes even if states parties prefer the institution to focus on crimes involving loss of life. Indeed, difficult questions could arise if local norms strongly conflict with global norms. For instance, in a local community where crimes of sexual and gender-based violence are routinely left unprosecuted, should the ICC also overlook these crimes? Many of the Court’s supporters would bridle at the suggestion, and yet a positive response could flow from the idea that the ICC is temporarily fulfilling the role of the local system. Likewise, local communities might prefer not to prosecute a popular political leader despite strong evidence that the leader committed serious crimes in the Court’s jurisdiction. A Court committed to fulfilling local priorities might forgo prosecuting such a leader. With regard to the scope of ICC prosecutions, Cecile Aptel has argued that fulfilling the Court’s obligation to victims of crimes within its jurisdiction requires the Court to prosecute a large number of cases in each situation to ‘deliver justice to many more victims’.68 She argues that victims’ demands for accountability are not satisfied when the ICC merely prosecutes leaders. Victims may want direct perpetrators held accountable in order to specifically deter them from committing additional crimes.69 In her view, the ICC is failing its obligation to victims in part due to its concern for a different constituency, the international community, which has interests in security that conflict with victims’ rights.70 A hybrid justice approach to case selection might suggest the ICC should select some cases that fulfill global justice priorities, and others that align with local priorities. Thus, if the local community preferred an emphasis on economic crimes, and the global community was focused on crimes of sexual violence, the ICC could pursue some cases involving each. Likewise, if the global community’s focus was on top leaders, but local communities wanted to see justice done to those who more immediately harmed victims, defendants from each category could be selected. Of course, for this approach to be effective, careful messaging about why cases were selected would be important.

Aptel, supra note 32, at 1359. Ibid. at 1370. 70 Ibid. at 1359. 68 69

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Mission uncertain: what communities does the ICC serve?  403 3.C

Exit/Completion Strategy

Another set of decisions impacted by the Court’s vision of its mission concerns how many cases the ICC should prosecute in a given situation before ‘exiting’ and turning its attention and resources to other situations. This often called the ‘completion strategy’.71 A global prevention mission would likely counsel in favor of a small number of prosecutions in most situations in order to extend the Court’s resources to more situations. Such a broad geographic spread of the Court’s activities would best convey the message that leaders anywhere in the world can be targeted and should therefore desist from committing crimes. Moreover, a small number of prosecutions in each situation may be sufficient to achieve the necessary norm expression, especially given the ICC’s global platform. A global prevention agenda might therefore suggest that the Court should exit situations relatively quickly once key leaders have been prosecuted and important norms expressed so that resources can be reallocated to new situations. Alternatively, as Kevin Heller has argued, situations could remain formally open even after resources are reallocated to achieve some residual preventive benefit.72 In contrast, local preventive goals such as general deterrence may require a significantly larger number of prosecutions, including of mid- and lower-level perpetrators, before the ICC exits a situation.73 In the local context, norm expression may be viewed as a longer-term goal, and there may be a short-term expectation that prosecution will affect the decision-making calculi of specific actors contemplating committing crimes. Under this framework, therefore, the ICC may need to spend more resources on prosecutions in fewer situations than it would under the global justice vision. Indeed, exiting a situation without prosecuting the right kinds and quantities of cases may actually undermine local justice goals, for instance, by exacerbating tensions among groups. The strategic impact of national justice systems becoming available after the ICC has become involved in a situation may also differ depending on the Court’s mission. In a local justice paradigm, once national courts become able to assume the adjudicative role, the ICC should presumably exit quickly because a functioning local system is better able to pursue local goals. On the other hand, if the ICC’s mission is to promote global justice, the same conclusion does not necessarily follow. Local courts may not be able to effectuate deterrence at the global level or to express global norms as effectively as the ICC. A hybrid justice mission for the ICC would render the question of exit particularly complex. For instance, if such a mission were being pursued by prosecuting some cases aimed at global prevention and others geared toward national prevention, the ICC’s exit decision would be based on whether each of these goals has been adequately fulfilled. It is difficult to envision how such a determination would be made, however, and any exit decision would likely be controversial with one constituency or the other. See  Strategic Plan 2019–2021, supra note 4, at § 4. For discussion of issues related to competition strategy, see What Might Be Some Elements of an ICC Completion Strategy for Situations Under Investigation?, ICC Forum, 24 February 2020, available at https://​iccforum​.com/​completion (last visited 19 May 2020). The term ‘completion strategy’ originated when the Security Council sought to terminate the work of the ad hoc International Criminal Tribunals for Former Yugoslavia and Rwanda. See Security Council Resolutions for ICTR and ICTY, SC Res. 1503, 28 August 2003. 72 K. J. Heller, ‘The OTP Should Not Close Investigations Unless Absolutely Necessary’, ICC Forum, 24 February 2020, available at https://​iccforum​.com/​completion (last visited 19 May 2020). 73 Aptel, supra note 32, at 1370–1371. 71

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404  The Elgar companion to the International Criminal Court 3.D

Applicable Law

The Court’s mission should also influence how it understands its applicable law. Article 21 of the Rome Statute sets forth the law the Court is to follow. The Court’s primary sources of law are its Statute, Elements of Crimes, and Rules of Procedure and Evidence. Secondarily, the Court is to consult ‘applicable treaties and the principles and rules of international law’. And finally, when those sources prove inadequate, it must turn to ‘general principles of law derived from the national law of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime’.74 The primary sources—the Statute, Elements, and Rules—are easiest to apply as they are set forth in documents adopted by the states parties. Nonetheless, they require interpretation and exercises of discretion that can be affected by the Court’s understanding of its mission. For instance, the Statute provides that the Court may sit outside the Hague, ‘whenever it considers it desirable’,75 and the Rules of Procedure allow the Court to leave the Hague ‘where the Court considers that it would be in the interests of justice’.76 Like the concept of ‘interests of justice’ for purposes of admissibility, this idea requires interpretation and exercises of discretion that ought to depend in part on the Court’s mission. If the Court is pursuing a local justice mission, it is likely to more frequently be in the interests of justice for it to hold hearings in the communities most affected by the crimes than under a global justice mission. Such in situ sittings could enable the judges to gain a more intimate understanding of local communities and their goals, and provide the affected communities a greater sense that justice is being done for them. Similarly, the Court’s approach to legal rules related to the role of victims in ICC proceedings should depend on its mission. The Statute provides: Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.77

Under the Rules of Procedure and Evidence, victims’ representatives may participate in proceedings, including hearings, unless the Chamber decides their views should be presented in writing.78 Victims’ representatives may even question witnesses if the Chamber grants permission.79 The Court’s mission ought to guide it in making determinations about when it is appropriate to allow victims to participate in proceedings. A global justice mission likely diminishes the importance of victim participation. Indeed, such participation may even detract from the promotion of global justice goals if it encourages the Court to make decisions that benefit victims but fail to promote broader global goals. On the other hand, benefiting victims might be considered to be a global goal, which could increase the usefulness of victim participation. However, since such a goal would likely aim for victims in a given situation to serve as rep 76 77 78 79 74 75

Art. 21(1)(c) ICCSt. Art. 3 ICCSt. Rule 100 ICC RPE. Art. 68 ICCSt. Rule 91 ICC RPE. Rule 91(3) ICC RPE.

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Mission uncertain: what communities does the ICC serve?  405 resentatives for broader classes of victims globally, even in this scenario, limits on the kinds of victims and nature of their participation would likely make sense. If the Court’s central mission instead is to benefit the local populations in situations it adjudicates, much broader victim participation could be useful to advance this goal. The secondary sources give rise to additional mission-based questions. For instance, the Court must decide which treaties ought to be considered ‘applicable’. A global justice mission would likely limit applicable treaties to those that have been universally or almost universally ratified, as those most clearly represent the views of the global community. A local justice mission, on the other hand, could lead the Court to apply treaties that are in force for the states most affected by the crimes at issue in the situation before the Court. A similar question concerns which national laws should be consulted in determining ‘general principles of law derived from the national law of legal systems of the world’—the final source of law.80 In drafting the Statute, states took different positions on how directly the Court should be allowed to apply national laws.81 Some states felt that it would never be appropriate for an international criminal court to apply national laws directly, while others took the view that national laws should be applied in some circumstances.82 How the Court resolves this issue should depend on its vision of its role in the world. A global justice mission would suggest the Court should rarely, if ever, reference ‘the national laws of States that would normally exercise jurisdiction over the crime’, focusing instead on developing a global criminal legal system. A national justice focus, in contrast, would suggest that relevant national laws should be referenced more frequently in ascertaining applicable general principles for a given situation. A hybrid justice mission raises even greater complications in each of the areas above. If the Court is sometimes pursuing global goals, but at others is seeking to implement local priorities, should it change its approach to applicable law accordingly? This seems likely to risk inconsistencies that threaten the Court’s legitimacy. On the other hand, consistently interpreting law in line with one or the other mission would threaten the Court’s ability to perform a hybrid justice role. 3.E

Sentencing and Reparations

The Court’s understanding of its mission should also guide how it allocates punishment and reparations. Yet as Mark Drumbl’s chapter in this book demonstrates, the ICC’s sentencing practice to date does little more than ‘gesture’ toward rationales for punishment.83 A global justice mission would require the Court to develop and apply a uniquely global set of sentencing and reparation norms. In doing so, it would have to identify the global values and goals that should drive its decisions. For instance, it would have to determine the relative importance of retributive and utilitarian objectives to the global community. A retributive approach to

See generally M. M. deGuzman, ‘Article 21 Applicable Law’, in O. Triffterer and K. Ambos (eds), Commentary on the Rome Statute of the International Criminal Court (3rd edn., Munich: C. H. Beck Publishing, 2016). 81 Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN Doc. A/CONF.183/2/Add/1, 14 April 1998, at 46–47. 82 Ibid. 83 M. Drumbl, ‘Penalties and punishment’, Chapter 6 of this book. 80

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406  The Elgar companion to the International Criminal Court sentencing requires decision-makers to determine the amount of punishment each perpetrator deserves by considering their moral culpability and the harm their crime caused. The quantum of punishment allocated to each offender is supposed to match that offender’s quantum of desert. Utilitarian sentencing values require decision-makers to ascertain the amount of punishment that most efficiently promotes desired social goods, especially crime prevention. As already discussed, the goal of crime prevention can be pursued in various ways, including through individual and general deterrence, incapacitation, reconciliation, and norm expression. Under a local justice framework, the Court should identify and apply local sentencing norms. This would require it to examine national legislation regarding the goals of punishment, as well as to understand how norms of punishment are applied by local courts. Its goal would be to sentence perpetrators in line with sentences in the most relevant national system for crimes of similar seriousness, with similar mitigating and aggravating circumstances. How the Court would sentence under a hybrid justice mission would depend on the nature of its hybridity. If certain cases were considered ‘global justice cases’, and others were geared toward local justice, its sentencing norms could vary accordingly. Alternatively, entire situations might fall into one category or another. Another option might be to use local sentencing norms in all cases, and to pursue global justice in other ways, such as through public statements about cases aimed at fulfilling a global expressive agenda. This could serve both the goal of global prevention, and that of punishing in line with local expectations. The Court’s approach to reparations should also depend on its goals. The Statute provides the Court with substantial leeway in allocating reparations, stating: The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.84

Reparations may be awarded on an individual or collective basis.85 If the Court’s central mission is a global one, it generally will not make sense to award reparations to individual victims. Perhaps on rare occasions the award of individual reparations could help to send a global message about the importance of addressing victim needs in particular ways or in specific kinds of cases. In fact, even collective reparations may not be especially important for fulfilling global justice goals. For a local justice mission, on the other hand, both individual and collective reparations could be of central importance.86 Moreover, it would be important to consult the victims themselves about the kinds of reparations they desire.87

Art. 75(1) ICCSt. Rule 97 ICC PRE. 86 But see L. Keller, ‘Seeking Justice at the International Criminal Court: Victims’ Reparations’, 29 Thomas Jefferson Law Review (2007) at 189–217, at 191 (arguing that ‘to contribute to the healing of victims and society’ the Court should ‘favor collective reparations for a broad range of victims’). 87 International Federation for Human Rights, Enhancing Victims’ Rights Before the ICC (2013), available online at https://​www​.fidh​.org/​IMG/​pdf/​fidh​_victimsrights​_621a​_nov2013​_ld​.pdf (visited 18 May 2020), at 27. 84 85

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Mission uncertain: what communities does the ICC serve?  407

4. CONCLUSION In December 2019, the ICC Assembly of States Parties adopted a resolution asserting that it is ‘[g]ravely concerned by the multifaceted challenges facing the International Criminal Court and the Rome Statute system in ending impunity and preventing future crimes’, and ‘[m]indful of the fact that those challenges have multiple causes’.88 The Assembly commissioned an Independent Expert Review of the Court, as part of a broader institutional review, to make recommendations about governance, the judiciary, and investigations and prosecutions.89 This Chapter has argued that an important cause of the challenges facing the Court is the absence of clarity about whether the Court’s mission is primarily to promote global justice, local justice, or some combination. Therefore, for efforts such as the Independent Expert Review to substantially increase the ICC’s effectiveness, they will have to address the question of what communities the Court should strive to serve, and how it should prioritize when its efforts on behalf of different communities are in tension. This is a highly complex question, fraught with potential political controversy. For instance, any suggestion that victims’ needs should not be at the center of the Court’s work will be met with strong resistance. Nonetheless, in light of the Court’s serious resource constraints, it is likely to continue to struggle until its mission is refined.

Review of the International Criminal Court and the Rome Statute system, ICC-ASP/18/Res.7, 6 December 2019. 89 Ibid. 88

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Index

Abu Garda case 84, 86, 88–9 accountability ICC’s pursuit of 262 for international crimes 181 actors, in negotiation of Rome Statute 22–9 civil society 26–8 state/non-state divide 23 states 23–6 United Nations 28–9 ad hoc counsel 216, 220 ad hoc international criminal tribunals 34, 44, 59, 117, 130, 205, 215, 219, 226, 282, 391 jurisprudence of 43 admissibility ‘complementarity’ principle 62, 66–7 alternative justice mechanisms 77–80 due process 75–7 prosecutorial discretion 80–81 same person/same conduct 70–74 self-referrals 68–70 concept of 62 connection with theory of ICL 64 Court’s experience with 65 Court’s rejection of Libya’s challenge in Gaddafi case 74 of evidence 161 gravity to justify further action by the Court 81–95 Ntaganda case 82–4, 86 prosecutorial discretion 85–95 subsequent cases 84–5 grounds of 67 institutional allocation of authority over 64 judicial obligation to evaluate 67 judicial review of 95 jurisdiction with respect to 62 legal test for 64 purposes of 404 requirements of 71 right to challenge 67 role in defining the mission of the ICC 63 Rome Statute provisions on 65–8 sua sponte authority 62 Advocacy Project 14 African Charter on Human and Peoples’ Rights 349 African civil society 109, 125, 257 African Court of Justice and Human Rights 112, 396

jurisdiction over international and transnational crimes 113 African Regional Criminal Court 113 African sovereignty, protection of 106 African States and leaders, mistreatment of 309–12 African States Parties 105, 256–8 African Union (AU) 261, 275 Extraordinary Summit of 119 frustration with the UN Security Council 276 objections to ICC’s jurisdiction over nationals of non-States Parties 119 Peace and Security Council 268–70 on protection of the human rights 120 aggression, criminalization of 7, 12, 13, 18, 40, 96, 363, 392 Rome Statute on 60 Akayesu case 367–8 Al-Bashir case 98, 106–7, 112–14, 121, 123 Appeals Chamber’s decision in 127 Al Bashir, Omar 106, 169, 187 arrest warrants against 108, 114, 127, 252, 301 atrocities committed in Darfur 187 ICC case against 300 indictment of 309 waiver of immunity 115 Al-Hassan case 384 Al Mahdi case 137–8, 182, 194–9, 202, 350, 360 Al-Senussi, Abdullah 95, 347–8 Al-Senussi case 72, 347–8 alternative justice, mechanisms of 65, 77–80 American Society of International Law 15 Amnesty International 3, 13–14, 27, 225, 338 Annan, Kofi 6, 28, 190, 272, 389–90 Rwanda debacle 28 ‘anti-Africa court’ narrative 261, 277 anti-African bias 325 anti-ICC campaign 117, 192, 202 Apartheid Convention 318 apartheid-era crimes, prosecutions for 324 ‘a-political court’ narrative 261–2 appeal, right to 208 Arab League 121, 263, 270 arrest warrants 127, 181 enforcement of 186 issuance of 186–7 for sexual violence crimes 197 Assembly of States Parties (ASP) xii, 26, 108, 111, 124, 150, 156, 207, 311, 361, 391, 407

408 Margaret deGuzman and Valerie Oosterveld - 9781785368233

Index  409 creation and role of 231–5 key challenges for 245–60 limiting the court’s work via budgetary restrictions 248–50 maintaining prosecutorial and judicial independence 245–8 non-cooperation in executing arrest warrants 250–54 withdrawal from the Rome Statute 254–60 key functions of 235–44 amendments to the Rome Statute 240–43 budget negotiations 239–40 election of judges, prosecutor, and deputy prosecutor 236–9 Omnibus Resolution 243 Rules of Procedure and Evidence 240–43 thematic topics 243–4 legal aid budget 222 powers of 234–5 referral powers of 247 Rome negotiations 231–2 Rome Statute on 232 Rules of Procedure of 232–3 structure of 233–4 Working Group on Amendments 241–2, 356 Association Internationale de Droit Pénal 4–5, 15 atrocity crimes 99, 105, 127, 145, 186 commission of 127 prosecutions of 235, 257 AU–ICC relationship, deterioration of 268 Banda case 91–2 Bandung Conference (1954) 12 Bassiouni, Cherif 5–6, 10, 15, 117 Bemba sentencing case 133–6, 166, 225, 350, 355, 369–71 Bensouda, Fatou 80, 87, 181, 198–9, 256, 261, 275, 324, 390 bilateral immunity agreements (BIAs) 105 Bolton, John 117 Bosnian war 282, 375, 380 Broache, Michael 302–4 burden of proof 175–6 Bush, George W. 117, 263 bush wives, abuse of 383 capacity selectivity, problem of 322–3 capital punishment 9–10, 12, 16 Catholic Church 22 Chambers of the Court 177, 212, 324 Chambers Practice Manual 208, 356, 360, 362 Chapman, Terrence 290

Charles Taylor case 97 Charlesworth, Hilary 381 Charney, Jonathan 8 Charter of the United Nations 11, 148 Chapter VII of 59, 150, 155–6, 174 Chatham House Rule 7 Chaudoin, Stephen 290 child soldiers Ituri conflict 72 Lubanga case 368 plight of 70 recruitment and use of 303, 317, 368, 401 charges related to 72, 142 Chinkin, Christine 381 Christianity 22 civil society organizations 22, 25, 26–8, 109, 110, 185, 340 Clinton, Bill 117 Coalition for the International Criminal Court (CICC) 14, 27, 250, 390 Code of Crimes Against the Peace and Security of Mankind 4, 102, 318 Code of Judicial Ethics 211 Commission on the Balkan Wars 15 Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties (1919) 99 Committee of Former Nuremberg Prosecutors 13 Common Market for Eastern and Southern Africa Summit (COMESA) 112 compensation, for victims 337–8 complementarity, doctrine of 44, 62, 66–7, 100 alternative justice mechanisms 77–80 Court’s interpretation of 394 due process 75–7 grounds of 67 prosecutorial discretion 80–81 same person/same conduct 70–74 self-referrals 68–70 test for 68 concordance, defence of 314 conditionality, policy of 253 conflict-related crimes xiii Congo conflict Broache’s case study of 302–4 CNDP/M23 violence against civilians 303–4 ICC’s conviction of Lubanga 303 ICC’s intervention during 302–4 Ntaganda’s negotiation for amnesty 304 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 379 Convention on the Prevention and Punishment of the Crime of Genocide 4 core crimes

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410  The Elgar companion to the International Criminal Court aggression 52 crimes against humanity 52 genocide 52 terrorism as 52 war crimes 52 as wrongs in a universal sense 56 cosmopolitan justice 40 Cote d’Ivoire 73, 179, 331, 345, 347 Council of Europe 6, 97 coup d’état 133 Court see International Criminal Court (ICC) court of last resort 62, 69, 96, 280, 387, 395 Court proceedings, fairness and efficiency of 207 Crawford, James 5 ‘crime producing’ states 26 crimes against humanity 4, 7, 37, 51, 52, 55, 72, 73, 79–80, 96, 101, 115, 182, 189, 280, 287, 367, 380, 392 arrest warrant 71 Bemba sentencing case 133–6 committed against a minority group 71 committed during the post-election violence in Kenya 191 definition of 59, 64 ICC’s jurisdiction in 83 interpretation of 64 mass rape as 309 of murder and rape committed by soldiers 135 sexual slavery 382 of sexual violence 371 crimes against peace 4, 101 crimes against persons 137 crimes against property 137 crime scenes, preservation of 149 criminal accountability 56 criminal justice, on prosecution of perpetrators 340 criminal justice systems 44, 204, 283, 307 criminal punishment, evil of 57 criminal responsibility, for the crimes 73, 83 cross-border abductions 163 cross-border financial transactions 153 cross-examination, of evidence 337 cultural crimes, fight against 198 cultural destruction efforts to combat 199 as tool of war 138 cultural property, destruction of 138, 401 cultural superiority, notion of 311, 315 culture of authority, concept of 61 culture of justification, concept of 61 customary international law 37, 53, 97–8, 101, 107, 112, 117–18, 120–21, 123–4, 252, 316 rule of 97, 120 Dakar Declaration 264

Danner, Allison 289–91 Darfur (Sudan) conflict 267–72, 309 arrest warrant against al-Bashir 301 conflicts between tribal communities 299 deployment of UN peacekeepers 270 Doha negotiations (2009) 300 genocide 300 government-sponsored militia 299 ICC’s intervention in 299–302 peace negotiations 299 Wegner’s narrative on ICC’s impact on 299–302 Darfur resolutions 174 Davis, Lisa 307, 364 Dayton Peace Agreement 155 decision-making on applicable law 404–5 on exit/completion strategy 403 global criminal justice and 391 mission-based 394–406 Office of the Prosecutor’s (OTP) 181, 314, 323 process of 83 prosecutorial 183 on relationships with other institutions 394–8 selection decisions 398–402 case selection 402 situation selection 399–402 on sentencing and reparations 405–6 strategies of xiii Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) 340 defence counsel ad hoc counsel 216 administration of justice 219 appointment of 216 barriers to effectiveness of 227 Code of Professional Conduct for Counsel 218 Article 14 of 219 competence of 218 defendant’s right to 217–18 duty of 216 ethical obligations of 218–19 in Gadaffi case 220 legal aid 221–4 Office of the Public Counsel for the Defence (OPCD) 220–21 role in protecting the right of individuals 215 Defence Organ 229 defence, right of 204 defendants’ rights, protection of concerns regarding adequate 224–30 by defence counsel 215 and establishment of the ICC 230 by judges 207

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Index  411 by Registry 212 deGuzman, Margaret 85 delayed-action casualties 318 Deputy Prosecutor 211, 233, 235–6, 269 Deputy Registrar 211 deterrence, concept of general 284 justification for pursuing justice and accountability 285 specific 284 de Vattel, Emer 363 Diplomatic Conference by Singapore (1998) 103 diplomatic conference negotiation (Rome Conference) by consensus 8 on creation of ICC 21 decision time dynamics of 33–40 issues 40–45 and densification of the international legal order 36 emergency assemblies 32 on enhancing ICC’s legitimacy 42–4 idea of an ICC v the ICC 33–5 law v politics 35–8 maximalist v minimalist views 38–40 process of 21 relationship of justice and power 41–2 setting the stage for actors 22–9 format 29–32 on universalism and pluralism 44–5 Diplomatic Conference of Plenipotentiaries 3, 28, 52 diplomatic immunities 171 of Court personnel 100 Dirty Wars, crimes during 323 division of labor 63, 66 Doha negotiations (2009) 300 domestic inter-state practice 172 Draft Code of Crimes Against the Peace and Security of Mankind 102, 318 Draft of the International Association of Penal Law (1928) 100 Draft of the London International Assembly (1941) 100 DRC Decision case 114 drug crimes 12, 52, 317 drug trafficking 17, 50–51, 55–6, 58, 241, 260 due process complementarity and 75–7 principles of 66 Duterte, Rodrigo 277 Dyilo, Thomas Lubanga 82, 349

economic impact, of war on women and girls 381 ‘e-Court’ system 214 Elements of Crime 32, 43, 58, 235, 368, 381, 404 El-Sheik, Sharm 268–9 El Zeidy, Mohammed 66 enforced prostitution 368 enforced sterilization 368 environmental destruction, crimes related to 146 equality of arms, concept of 206, 216, 222, 227–8, 230, 362 escape of the person, measures to prevent 171 ethnic cleansing 372, 376, 380 European Court of Human Rights (ECtHR) 158, 175–6 European monarchs, right to wage war 120 European Parliament 105 European Union 253 Stabilization and Association Process 156 evidence adjudication of 352 admissibility of 161 determination of 161 rule on 351 cross-examination of 337 destruction of 167 exclusionary rules for inadmissibility of 165 hearsay evidence 337 presentation of false evidence 219 Rome Statute framework on rules of 129–32 signals intelligence as 160 tampering of 165–9 unlawfully obtained 158–62 Expert Report on the Court’s Legal Aid system (2017) 218 Extraordinary Chambers in the Courts of Cambodia 101, 223, 226 fairness of ICC proceedings 226 fair trial 45, 227 cross-cutting concerns over 353–8 efforts to expedite proceedings at the expense of the accused 355–7 inadequate legal aid 353–4 interim and post-acquittal release 354–5 pressure to convict 357–8 restrictive application of article 82(1) (d) 355 ICC concerns over 349–61 approaches to the rights of victims and witnesses 359–61 cross-cutting fair trial concerns 353–8 fairness in the first cases 349–53 principle of 212 requirements of 158 rights of 207, 336

Margaret deGuzman and Valerie Oosterveld - 9781785368233

412  The Elgar companion to the International Criminal Court and rights of the accused 339 Fédération internationale des ligues des droits de l’homme 14, 27 female experiences, of sexual violence 366–9, 385 feminist law reformers 364 feminist scholarship and activism 363–4, 366, 381 ‘first in time’ rule 396 Food and Agriculture Organization (FAO) 6 forced marriage, depiction of 382 forced pregnancy, crime of 368, 378, 380 impact on national abortion law 380–81 power to prosecute 380 recognition under Rome Statute 380 format, of Rome diplomatic conferences democracy/authoritarianism 31–2 fragmentation/holism 30–31 secrecy/transparency 29–30 French Constitutional Council 104 functioning of ICC, without state compliance case selection 178–9 coercive measures in 153–7 collection goals and procedural requirements 150 de facto authorities in 157–8 design and practice 149–52 enforceability of rulings 147 irregular arrest 162–5 issue of non-cooperation 147 judicial measures drawing of inferences 175–8 non-compliance finding and referral 172–5 legitimacy and enforceability of court rulings 147 negotiation of rule amendments 151 non-coercive measures in 152–3 non-compliance referral mechanism 174 preventative measures in immunities vs absconding 169–72 witness interference and evidence tampering 165–9 remedial measures against 173 sanction for non-compliance 149 by substituting domestic authority in case of ‘unable’ state 153–5 ‘unwilling’ state 155–7 statutory-based mechanism, to remedy non-compliance 175 by unlawfully obtained evidence 158–62 when cooperation fails 152–79 Furundžija case 118 gacaca tribunals 77–8 Gaddafi case 73–6, 80, 220 Gallant, Kenneth 204

Garda case 91–2 Gardam, Judith 381 Gaza flotilla raid (2010) 87–95, 332 Gbagbo case 164, 166 gender-based crimes 186, 237, 346, 363–4, 369, 376, 381, 384, 386 gender-based persecution, notion of 378–9 gender-based violence 133, 197, 366, 402 complexities of 386 concept of 383 criminalization of 378 prohibitions on 401 sexual violence see sexual violence gender discrimination 379 gender equality 379 gender justice 338, 363, 365, 370 general deterrence 143–4, 168, 175, 284, 399, 402–3, 406 Geneva Conventions 88 genocidal rape 375 genocide 51–2, 96, 101, 280, 309, 363, 372, 392 Genocide Convention (1948) 28, 51, 58 Article IV of 97, 101, 115 Article VI of 101, 115 exclusion of immunity in 115 invoking of personal immunities under 115 object and the purpose of 115 ratification of 115 geographic selectivity, problem of 314–15, 320–21 global community 389, 391–2, 396, 399, 401–2, 405 global criminal justice, concept of 390–91 global justice 388–92, 395–7, 399–400, 402–7 Global North 265, 272 Global South 8, 308, 315, 318, 386 gravity to justify admissibility of case by ICC 81–95 judicial resistance to 85 Ntaganda case 82–4 Prosecution’s evaluation of 90 prosecutorial discretion 85–95 Gaza flotilla raid 87–95 in Iraq 86–7 subsequent cases 84–5 Grotius, Hugo 363 group-based selectivity anti-Africa selectivity 329 brief history of 330–31 implications of 331–2 from Nuremberg to the Hague 330–31 guduria 377 Hague Convention (1907) 3, 99 Halley, Janet 381–2 harm principle 57 Haute Cour Militaire 348

Margaret deGuzman and Valerie Oosterveld - 9781785368233

Index  413 Heads of State African Union resolutions to limit prosecutions against 108 crimes committed by 100 arrest for 107 criminal responsibility of 100 excusal from trial in exceptional circumstances 111 immunity of 99–100, 114 absolute immunity 121 in criminal proceedings 104 inter-State immunity from the criminal jurisdiction 121 obligations under international law to accord 122 removal of 104 temporal immunities 125 prosecution before an international court 120 ratione personae of 123 right of 120 hearsay evidence 336–7, 351 Heller, Kevin 403 Hillbrecht, Courtney 292–3 Honduras 183 human rights abuses 174, 281, 283, 287, 334, 344 commission of 174 human rights law in African Union 120 compliance of 335 concerns and compliance challenges 343–61 deference to unfair national trials 347–9 ICC fair trial concerns 349–58 ineffective approaches to the rights of victims and witnesses 359–61 unequal access to justice 344–7 cross-examination 336 frameworks of other international criminal courts 335–8 ICC’s compliance with 335 ICC’s Strategy in Relation to Victims 361 and internationally recognized human rights 341–3 for protection of victims and witnesses 340 rights of the accused 336 fair trial and 339 right to justice 120 under Rome Statute 334, 338–43 strengthening ICC’s human rights record 361–2 UN War Crimes Commission on 336 on victim participation and reparation 340–41 victims’ rights and 336 violations of 173, 390, 393 human rights movement 27

growth of 338 Human Rights Watch 14, 27, 81, 301 ICC Prosecutor 73, 80, 183, 211, 256, 398 case selection procedure 178–9 policy paper on 178 evaluation of gravity 90 informal expert paper 78 investigation into post-election violence in Kenya 108 proprio motu powers 189–90, 312 illicit drugs, international trafficking of 52 immunities bilateral immunity agreements (BIAs) 105 in criminal proceedings 104 exclusion in Genocide Convention 115 of Heads of State 99–100 ICC controversies regarding 104–16 international community’s commitment to rejecting 107 from prosecution 285 removal of 104 under Security Council Resolution 1593 114, 122 self-referrals 105 US objection to ICC’s jurisdiction over non-State Party nationals 105 waiver of 115 imprisonment, sentence of 348 Independent Expert Review (IER) 234, 407 Inter-American Court of Human Rights (IACtHR) 175–6 interests of justice, concept of 404 inter-ethnic war 374–5 intergovernmental organizations (IGOs) 6, 30, 98 internally displaced persons 371 Internal Oversight Mechanism (IOM) 234 International Commission of Jurists 14, 27 International Committee of the Red Cross 3, 5–6, 27 International Covenant on Civil and Political Rights (ICCPR) Article 14 of 337 DRC’ and DRC’s ratifications of 348 international crimes accountability for 181 penology of 146 proliferation of 388 International Criminal Court (ICC) x, 12, 21, 33–5, 49, 280, 334 admissibility criteria see admissibility Advisory Opinion on Al-Bashir case 127 Resolution 1593 114 Appeals Chamber 68, 73, 83, 123, 132, 142, 252, 399

Margaret deGuzman and Valerie Oosterveld - 9781785368233

414  The Elgar companion to the International Criminal Court decision in the Al-Bashir case 127 on human rights abuses 334 Senussi Appeal 76–7 case against Abdullah Al-Senussi 347 case against al-Bashir 300 case law of 7, 72, 77 Coalition for 10, 14, 27 Code of Judicial Ethics 211 commitment to 25 complementarity framework 80 controversies regarding immunities 104–16 creation of 21, 24, 26, 51, 104 decision-making process 83 Defence-focused structures of 229–30 deference to unfair national tribunals xiii Elements of Crimes 368, 381 establishment of 6, 13 efforts for 99 original understanding in 99–104 Financial Rules and Regulations 235 functioning without state compliance see functioning of ICC, without state compliance grounds for inadmissibility of case 66 human rights record 361–2 impact on peace and justice 288 impact on peace and violence 293 institutional challenges for 79 and institutional interests 185–8 interpretation of the complementarity principle 394 intervention during Congo conflict 302–4 Libya conflict 292–3, 298–9 Sudan conflict 298–302 Ugandan conflict 294–8 interventions in the Central African Republic (CAR) 187 jurisdiction over aggression 12, 96 nationals of non-States Parties and government officials 119 legal aid system 213 legal and social deterrent effects 291 national justice vision of 396 non-cooperation of AU Members with 109 objections of the African Union to ICC’s jurisdiction over the nationals of non-States Parties 119 obligation to victims of crimes 402 opposition to 25 political campaign against moral and legal legitimacy of 117 Preparatory Committee 3, 102

Pre-Trial Chamber 41, 68, 73, 75–6, 80, 82, 85–7, 252, 344, 346 review of the OTP’s decision 90 pursuit of justice in northern Uganda 294 on recruitment of and use of child soldiers 72 referral of suspected crimes to 68 involving crimes committed within its own territory 68 Regulations of 356 rejection of Libya’s admissibility challenge in the Gaddafi case 74–6 relationship to domestic institutions 68 Rome Statute of 3, 53 Rule 134 in trial procedure 111 Rules of Procedure and Evidence 84, 129–32 ruling on Libyan amnesty law 80 ‘same person/same conduct’ test 65, 70–74 sentencing practice see sentencing practice and policy, of ICC status as a ‘court of last resort’ 62, 69, 395 Statute of see Rome Statute (18 July 1998) Statute Preparatory Committee 367 subject-matter jurisdiction categorization of 51–3 contestation of 53–6 expansion of 52 on status of the crimes 57 targeting of weaker states 310 threat of prosecution 289 Trial Chamber 69, 144, 339, 350 trials of Kenyatta and Ruto 110 UK’s membership of 86 US campaign against 105, 125 ‘Working Group on Lessons Learnt’ process 355 International Criminal Defence Attorneys Association (ICDAA) 215 international criminal institutions 209 international criminal justice 22–4 Africa and 264–6 American exception to 118 institutions of 144 international criminal law (ICL) 63, 146, 308, 363, 378 application of 146 Draft Statute 82 ICC admissibility requirements and 64 offenses under 49 International Criminal Tribunals 34, 62, 97, 130 International Criminal Tribunal for Rwanda (ICTR) 34, 59, 101, 126, 132, 158, 205–7, 321, 337, 340, 367, 391 Akayesu judgment 368

Margaret deGuzman and Valerie Oosterveld - 9781785368233

Index  415 International Criminal Tribunal for the former Yugoslavia (ICTY) 59, 101, 126, 132, 138, 155, 157, 158, 205–7, 223, 226, 253, 282, 336, 340, 391 Appeals Chamber 164, 227 creation of 282, 363, 367 Trial Chamber 118, 227 Special Court for Sierra Leone (SCSL) 101, 132, 205 International Federation of Human Rights (FIDH) 250 international humanitarian law (IHL) 204, 381 international human rights law 27 International Law Association (ILA) 4, 15, 99–100 International Law Commission 4–5, 10–11, 13, 52 Code of Crimes Against the Peace and Security of Mankind 4 codification of Nuremberg principles 28 Draft Code of Crimes against the Peace and Security of Mankind (1996) 102, 318 Draft Statute for an International Criminal Court (1994) 66, 101–2 Nuremberg Principles 101 provision on victim and witness protection 340 international law, principle of 101 international legitimation 79 International Military Tribunal (IMT) 13 for the Far East 62, 336, 366 London Charter for 100 Nuremberg trial 62, 336, 366 International Nuremberg Academy 145 international obligation to prosecute 45 international penal tribunal 4, 101, 115 international prosecutions, during conflicts 50, 71, 117, 281–4, 333, 393 international sentencing 128, 143, 146 International Society for the Reform of Criminal Law 5 inter-situational selectivity, problem of 324–6 inter-state disputes, tribunals for 4 inter-state reparations, as remedy for violations of the rules 99 Iraq 183 Islamic State in Syria and Iraq 198 Israeli Defence Forces 332, 346 Ituri conflict 72 ius puniendi 96 Jo, Hyeran 291–2 judges 207–12 appointment of 208 competences in criminal trial practice 208 conduct of trials 212 procedure for removing 224

role in protection of defendants’ rights 207 judicial cooperation, principles of 161 judicial fairness 349, 358 judicial independence and impartiality 211 judicial measures, against non-compliance drawing of inferences 175–8 finding and referrals 172–5 jus cogens status 36, 96, 115–16, 118, 123–4, 126 jus gentium, concept of 56 justice-based selectivity, problem of 323–4 justice–power relationship 41–2 Kampala Review Conference (2010) 12, 53, 241 war crimes amendments adopted in 241 Katanga case 68–9, 130, 141–3, 144, 225, 348–50, 357, 358, 366, 374 Keïta, Xavier-Jean 220 Kenya civil society 110 Court of Appeals 125 crimes against humanity 182 ICC’s intervention in 189–93, 272–4 costly miscalculation 192–3 miscalculating cooperation 191–2 opportunity to change the narrative 189–90 political cases 193 Jubilee Alliance 191 Kenyans for Peace with Truth and Justice 110 membership in the ICC 272 National Accord 191 post-election violence 182, 191 Security Council Resolution on the Kenya deferral 111 Waki Commission 191 withdrawal from the Rome Statute 109–10 Kenyatta, Uhuru 110, 119, 182, 191–2, 273–4 Kersten, Mark 282, 294–6, 298–9 Khmer Rouge regime 138 King, Elizabeth Ludwin 401 Kirsch, Philippe 6, 12, 31, 46 Ku, Julian 285 land grabbing, crimes related to 146 law of nations and peoples 56 Lawyers Committee for Human Rights 27 League of Arab States 6, 121 League of Nations 4, 8 Convention for the Prevention and Punishment of Terrorism (1937) 66 Lee, Roy 28 legal aid 221–4 legality, principle of 130 lesbian, gay, bisexual, intersex, and transgender (LBGTI) groups 378, 385

Margaret deGuzman and Valerie Oosterveld - 9781785368233

416  The Elgar companion to the International Criminal Court liability, principle of 316 Libya conflict ICC’s intervention during 292–3 Kersten’s views in ICC’s impact on 298–9 NATO’s military action 293, 298 non-military solution 298 ouster of Qaddafi 298 prospects for peace 298 protection of civilians against government abuses 298 Qaddafi’s response to negotiation efforts 299 Libyan amnesty law, ICC ruling on 80 Libyan justice system 347 life after conviction 145 life imprisonment 9, 129–30, 132 London International Assembly Statute 100 jurisdiction over war crimes 100 Lord’s Resistance Army (LRA) 79, 184, 187, 200, 281, 287–8, 295–6, 331 Lubanga case 70, 72, 130, 132, 134, 138–41, 164, 225, 360, 368 Lubanga, Thomas 82, 138–41, 225, 303, 349 ICC’s conviction of 303 Malabo Protocol 113, 124, 126, 146 male experiences, of sexual violence 369–72 Mali, ICC’s intervention in 193–9 Al Mahdi charges of sexual violence crimes against 197 cooperation with the OTP 195 guilty plea and cooperation with investigators 197 surrender of 194–5 guilty plea 195–8 OTP’s strategic plan and Policy Paper on Sexual and Gender Based Crimes 196 on war crimes committed during civil war 193 window of cooperation 194 malum in se, notion of 56 malum prohibitum, notion of 56 marginalization, concept of 284, 286, 288, 297, 299, 301, 304, 308, 370 marginalized groups 363, 364 mass atrocities 71, 79, 186, 188, 280, 282–5, 283–4 mass killings 309 material selectivity, problem of 317–19, 330 Member States of EU 189, 196, 265, 273 obligations under the UN Charter 148 mens rea 136 Mibenge, Chiseche Salome 376, 382–3 mission for ICC 387 decision making 394–406 applicable law 404–5 on exit/completion strategy 403

on relationships with other institutions 394–8 selection decisions 398–402 sentencing and reparations 405–6 ‘first in time’ rule 396 ‘global’ and ‘local’ 389 global justice mission 395, 404, 406 hybrid justice mission 405 ‘interests of justice’ provision 398 national justice mission 396 for promotion of universal justice 390 with regard to proprio motu situations 398 relationship with the UN Security Council 397 Rome Statute’s preamble and 387–8 Strategic Plans 388 three narratives about 389–93 morality, principles of 57 Moreno-Ocampo, Luis 86, 181, 184, 187, 191, 200, 261, 275, 280, 324, 390 Mueller, Suzanne 192 national criminal jurisdictions 151, 394, 397 national criminal justice systems 388 national interest, concept of 46 national justice mission 396, 403 national justice systems, effectiveness of 347 national laws, of the state 153 national security prejudice 150, 175, 177–8 ne bis in idem 67, 350 negotiation by consensus 8 of ICC’s institutional interests 188 neo-colonialism 310, 314, 317, 332 Ngaïssona, Patrice-Edouard 187 Ngudjolo, Mathieu 166, 225, 349–50, 374 Ní Aoláin, Fionnuala 373 Nkunda, Laurent 302–3 no-action motion 8 no-case-to-answer motion 166 Non-Aligned Movement 12, 42 non-compliance referral mechanism 174 non-governmental organizations (NGOs) 5, 10, 13–14, 370 ‘pro-life’ NGOs 380 non-prosecution of ICC crimes 78 No Peace Without Justice 14, 27, 281, 283 North Atlantic Treaty Organization (NATO) 155 military action in Libya to protect civilians 298 military campaign against Qaddafi 293 Partnership for Peace programme 156 role in Yugoslav civil war 332 Ntaganda case 82–4, 85, 86, 166, 302–4, 353, 366, 369, 371, 377 nuclear weapons criminalization of the use of 32

Margaret deGuzman and Valerie Oosterveld - 9781785368233

Index  417 inclusion in list of prohibited weapons 39 prohibition of 38 nullem crimen sine lege, nulla poena sine lege, principle of 54 Nuremberg Principles (1950) 101, 204 fair trial protections 205 Nuremberg Trial 117, 126, 205 Nuremberg Tribunal 34, 50, 51, 107, 117, 126, 204, 282, 331, 390 Nzelibe, Jide 285 Obama, Barack 117 campaign of targeted killing by drones 119 Office of the Prosecutor (OTP) 71, 80–81, 87, 133, 191, 207, 212, 228, 234, 280, 287, 312, 323, 346, 369, 376, 378 criminal conduct 128 decision-making authority of 181, 314, 323 decision to close a preliminary examination 183 draft Policy on Children 140 on enforcement of arrest warrants issued by the Court 186 invocation of gravity 87 Policy Paper on Case Selection and Prioritisation 183–4 Policy Paper on Sexual and Gender Based Crimes 196, 369, 379 power to act independently of states 313 Pre-Trial Chamber’s review of 90 proprio motu 325 prosecutorial opportunism 182, 196 selection of situations and cases 183 Office of the Public Counsel for the Defence (OPCD) 213, 220–21, 249 establishment of 221 official secrecy, pleas of 175 omnibus resolution 231, 236, 243 Ongwen case 79–80, 166, 168, 182, 200–203, 353, 384 operational selectivity, problem of capacity selectivity 322–3 inter-situational selectivity 324–6 justice-based selectivity 323–4 opinio juris 123, 125 Organization of African Unity 265 Ottawa Landmines Convention 26 Oxford Companion to International Criminal Justice 319 Paris Peace Conference (1919) 13 Commission on Responsibilities of 4 pax Americana 119 ‘peace versus justice’ debate 304

in context of ICC 287–9 contours of 283 historical context of 282–3 ICC’s impact on 289–304, 306 Jo’ and Simmons’s theory 291–2 ‘justice’ side of 283–5 Kersten’s theory 294–6 Kersten versus Wegner theory 294 ‘peace’ side of 285–7 on prospects for peace in Darfur (Sudan) conflict 299–302 Libyan conflict 298–9 Ugandan conflict 294–8 qualitative case studies 293–304 quantitative studies large-N 289–92 small-N 292–3 Simmons’ and Danner’s theory 289–91 Wegner’s theory 296–8 personality principle 36 pillage, crime of 136 politicization of ICC 262–4 politicized prosecutions, risk of 263, 332 Preparatory Commission 231, 241, 378 Pre-Trial Chamber (PTC) 106, 154, 157, 208, 217, 311, 399 recommendations on ‘measures to prevent the escape of the person’ 171 procedural selectivity, problem of 319–20 ‘pro-life’ NGOs 380 proportionality, concept of 61, 162, 167 proprio motu powers 41, 47, 83–4, 189–90, 312–14, 325, 328–9, 398 prosecution, threat of 285, 289 prosecutorial discretion, role of 85–95, 182 Gaza flotilla raid 87–95 in Iraq 86–7 prosecutorial opportunism 181, 187 between a Court and an international organization 185–8 against the ICC 199–202 ICC intervention in Kenya 189–93 Mali 193–9 miscalculated 189–93 negotiating of 199–202 Office of the Prosecutor (OTP) 182 and selective outcomes of negotiated interests 188 and state manipulation 199–202 theory of xi, 182–5 public corruption, charges of 71 public international law, doctrines of 107, 123, 315, 328 public order 44

Margaret deGuzman and Valerie Oosterveld - 9781785368233

418  The Elgar companion to the International Criminal Court quasi-veto power 35 raison d’être 147, 183 rape, crime of 136, 186, 375 as a crime against humanity 136 gang-rapes 376 genocidal rape 375 Katanga case 141 rape victims of a militarized African masculinity 383 ratione materiae 39, 43, 49, 50, 60, 97, 117 jurisdiction of 39 ratione personae 43, 122, 123 ratione temporis 43 referrals from states 190 ‘Regional Custom’ for Africa 125 Registrar 211 key responsibilities of 212 Registry of the Court 106, 212–15 Counsel Support Section (CSS) 212 defence-related aspects of 214 Defence-support functions 214 Legal Aid Policy 222 legal representation of defendants 212 maintenance of databases and training programmes 229 Note Verbale 106 ReVision Project 214, 220–21 role in protecting defendants’ rights 212, 213 role in protection of defendants’ rights 212 rehabilitative programming 145 reparations, Court’s approach to 405–6 repression, of international crimes 35–6 restorative justice 78 Review Conference 12, 17, 52–3, 127, 240–41, 244 ReVision Project 214, 220–21 proposal to create Defence Office 220 Revolutionary United Front 373 Robinson, Darryl 8, 70, 203 Rome Conference (June 1998) 3–19, 338, 378, 389 area of penalties 9 Committee of the Whole 6–7 conduct of the negotiations 5–10 coordinators of 7 diplomatic conference negotiation see diplomatic conference negotiation (Rome Conference) Drafting Committee 15 Final Act of 52 groups, caucuses and individuals 10–16 for international law-making 19 negotiation by consensus 8 no-action motion 8 Observers’ Notes 7 official name of 28

Official Records of 7–8 package deal 18–19 Plenary of 6, 31 Preparatory Committee 12, 30 Review Conference 52 Rules of Procedure 8 struggle to reach consensus 16–19 ‘summary records’ of the sessions 7 tour de table 9 Working Groups 9 Committee on the Whole 9 working groups at 31 Rome Statute (18 July 1998) xii, 3–4, 11, 13, 40, 50, 77, 83, 89, 101, 185, 230, 364 acceptance by States 107 adoption of 8–9, 22, 96, 280 amendments to 12 Andorra’s ratification of 42–3 Article 8 of 87 Article 15 of 12 Article 16 of 11, 12, 108, 266, 270, 272 Article 17 of 68–9, 76, 241–2 Article 20 of 80 Article 27 of 98, 103, 169, 242 Article 36(3)(a) of 208 Article 56 of 217 Article 64(2) of 207 Article 65 of 350 Article 67 of 217 Article 68(8)(b) of 207 Article 69 of 351 Article 70 of 219, 242 Article 78 of 129 Article 98 of 98, 103, 104, 107, 122, 126, 169 Article 103 of 140 Article 112 of 232 Article 123 of 52 authorization of capital punishment 12 Chinese ratification of 42 on crime against aggression 60 definition of crimes against humanity 64 drafting process of 215 framework on rules of procedure and evidence 129–32 human rights framework 334, 338–43 ICC’s jurisdiction under 53 inter-relationship between Article 27 and Article 98 of 169 jurisdiction over the four core crimes 52 on jurisdiction with respect to admissibility 62 Kenya’s withdrawal from 109–10 legislative history of 103 legitimacy of 50 through contestation 60–61 negotiations of 13, 78

Margaret deGuzman and Valerie Oosterveld - 9781785368233

Index  419 actors in 22–9 format 29–32 object and purpose of 123 Part 9 of 149–50, 178 positive law 129–32 Preamble to 134 process of drafting 61 provisions on admissibility 65–8 on reparations made to victims 131 return to first principles 116–26 rules of jurisdiction 90 procedure and evidence 129–32 sexual violence crimes under 368 States Parties to 106, 116 subject-matter jurisdiction of 50 Trust Fund for Victims 128 violation of 125 vote on 8 withdrawal from 254–60 Royal Commonwealth Society 13 Rule 134 in ICC’s trial procedure, amendment of 111 Rules of Procedure and Evidence 207, 337, 351, 404 amendments to 355 positive law 129–32 Rome Statute framework and 129–32 Rule 20 of 212 Rule 27 of 257 Rule 145(1)(c) of 134–5 Rule 165 of 242 Rule 223 of 140 sentencing practice and policy 132–43 unresolved challenges 143–5 life after conviction 145 penological objectives and disconnects 143–5 Rules of the Court Chapter 8 of 211 Regulation 54 of 211 Regulation 67 of 218 Regulation 76(1) of 216 Rule 35 of 210 Rumsfeld, Donald 263 Ruto, William Samoei 110 Rwandan Patriotic Front (RPF) 268 Salvation Army 13 ‘same person/same conduct’ test 65, 70–74, 95 Sanders, Barry 391 ‘Scandinavian’ court 39 scope of ICC prosecutions 402 selectivity, at ICC Afghanistan decision 328–9 defence against and acceptance of 312–15

design selectivity geographic selectivity 320–21 material selectivity 317–19 procedural selectivity 319–20 temporal selectivity 321–2 and ‘dual selectivity’ in ICL 315 group-based 329–32 institutional intersectionality and 308 mistreatment of African States and leaders 309–12 multidimensional view on 315–26 design selectivity 317–22 operational selectivity 322–6 operational selectivity capacity selectivity 322–3 inter-situational selectivity 324–6 justice-based selectivity 323–4 perspectives on 307 reconstruction of 308 significance of 326–32 statute-sourced 321 self-amnesty 78, 79 self-referrals 65, 68–70, 105, 188, 200–201, 265, 277, 312–13 sentencing practice and policy, of ICC 132–43 Al Mahdi case 137–8 Bemba case 133–6 jurisprudence in 128 Katanga case 141–3 Lubanga case 138–41 mission-based 405–6 Rule 145(1)(c) 134–5 unresolved challenges 143–5 life after conviction 145 penological objectives and disconnects 143–5 sexual orientation 386 sexual slavery 141, 374–5, 382 as crimes against humanity and war crimes 198 in international criminal law 382 under Rome Statute 368, 382 sexual violence 27, 72, 186, 197, 363, 385, 402 to achieve political goals 373 to assert control and dominance over the civilian population 373 causes of 372 challenges within feminism 381–3 changing explanations for 372–7 committed for personal reasons 373 conflict-related 368, 372–3, 376, 382 convictions for 382 counter-counter-narratives 378–83 crime against humanity of 371 crimes under Rome Statute 368 against female child soldiers 368

Margaret deGuzman and Valerie Oosterveld - 9781785368233

420  The Elgar companion to the International Criminal Court female experiences of 366–9, 385 functionality of 373 as gendered crime 386 during Kenya’s 2007–2008 post-election violence 371 by LRA soldiers 371 male experiences of 369–72 marginalization of 370 under-reporting of 372 against men and boys 370 MLC’s motivations for 376 as ‘personally motivated’ crime 373 religious and cultural opposition 378–81 significance of 372 stigma and shame associated with 372 surfacing ‘gender’ in narratives of 375–7 visibility of 366–72 as weapon of war 372–5 Sharia law, applications of 380 Sierra Leone Truth Commission 382–3 signals intelligence, as evidence 160 Simmons, Beth 289–91, 291–2 social defense 44 social deterrence 291 social policy judgements 63 socio-economic inequalities 391 South Africa 113 South Ossetia 179 sovereignty, principle of 99 Soviet Union, break-up of 13 Special Court for Sierra Leone (SCSL) 97, 101, 132, 205, 370, 373 Special Tribunal for Lebanon 223, 226 Special Working Group on the Crime of Aggression 241 specific deterrence 144, 284, 393, 399 stare decisis, doctrine of 128 state sovereignty 44, 395 protection of 65 States Parties to the Rome Statute 98, 106, 112, 116, 120, 251, 255, 309, 354 state-to-state mutual assistance 54 Statute of the International Criminal Court see Rome Statute (18 July 1998) statute-sourced selectivity 321 Study Group on Governance 234 Sui Generis System for Global Justice 390 summons 5, 178 suppression conventions 51 surrender, of the person 98, 103, 105, 171, 178 Tadić case 367 Tadros, Victor 57 Taliban 158, 179, 328 temporal selectivity, problem of 321–2

Terra Viva newspaper 14 terrorism 12, 50, 51 as core crime 52 terrorist crimes, definition of 54 Tokyo Tribunal 34, 107, 117, 205, 330–31, 390 Tolbert, David 206 tout court 325, 329 transnational criminal law 51, 146 travaux préparatoires 7, 46, 135 treaty crimes 17, 51–8 Triffterer, Otto 7, 15, 104 Trump, Donald 117, 125 Trust Fund for Victims 128, 131, 233, 235, 341, 360 Ugandan conflict amnesty law 296 amnesty to LRA fighters 79 humanitarian crisis 199 ICC’s intervention in 182, 297 International Crimes Division 201 Kersten versus Wegner views on 294 Lord’s Resistance Army (LRA) 79, 184, 200, 281, 287–8, 295–6, 305, 331 Ongwen’s trial 80 People’s Defence Forces 184 political responsibility for 201 Ullrich, Leila 389 Union des Patriotes Congolais (UPC) 375 United Nations (UN) 185 Human Rights Council 91 on promotion of international criminal justice 28 Secretary General 91 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court see Rome Conference (June 1998) United Nations General Assembly 3, 28, 108 Ad Hoc Committee of 5, 10 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) 340 Resolution 260(III) 4 Sixth Committee of 5 United Nations Secretariat 28 Codification Division of 31 United Nations Security Council 11, 21, 34, 64, 108, 148, 174, 183, 185, 189, 264, 266–7, 275, 278, 288, 313, 325, 336 AU’s frustration with 276 Commission on the Balkan Wars 15 Court’s relationship with 266 permanent members of 11, 267 referral of the Libya situation 292–3

Margaret deGuzman and Valerie Oosterveld - 9781785368233

Index  421 relation with ICC global or local justice mission 397 Resolution 1593 114, 122 Resolution on the Kenya deferral 111 right to refer situations to the Court 12 universal jurisdiction 11, 18, 22, 31, 36, 394, 396–7 UN peacekeeping missions, reauthorization of 266 unwillingness, concept of 45, 66, 68–9, 75–7, 152 Versailles, Treaty of 4, 99, 204 Article 227 of 4 victor’s justice, framing of 330 video technology, use of 111 Vienna Convention on the Law of Treaties 120 Vinjamuri, Leslie 281 violence against women or children 133, 209, 366, 368, 376, 379 Waki Commission 191 war crimes 4, 25, 33, 37, 51, 55, 79, 96, 101, 115, 251, 280, 287, 336, 363, 392 amendments adopted in Kampala 241 Bemba sentencing case 133–6 committed by British soldiers in Iraq 86–7 committed during the Malian civil war 193 definition of 10, 37 of destruction of cultural property 138 by Israeli forces in intercepting Gaza Freedom Flotilla 87–95 jurisdictional threshold in 43 Katanga sentencing case 141–3

London International Assembly Statute on jurisdiction over 100 during non-international armed conflict 10 rape cases 73 sexual slavery 382 on use of nuclear weapons 9 war on women and girls, economic impact of 381 war-time abuses 364 Wegner, Daniel 294, 296–8, 299–302, 305 witness 211 false testimony by 219 ILC’s provision on protection of 340 interference 165–9 allegation of 151 protection and support 336 questioning of 212 safety and security of 168 women as ‘spoils of war,’ view of 366, 377 women as ‘war booty,’ view of 377 Women’s Caucus for Gender Justice 14, 364, 367, 370, 378–80, 382 Women’s Initiatives for Gender Justice 370 women’s rights, advocacy of 363–5 World Federalist Movement 14, 27 world order, framework for 59–60 World War II courts 4, 16, 62, 65, 337, 390 Xi, Jinping 125 Yekatom, Alfred 187 Yerodia case 104, 121–2

Margaret deGuzman and Valerie Oosterveld - 9781785368233