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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. (para. 1)

Article 98(1) of the Statute does not itself stipulate, recognise or preserve any immunities. It is a procedural rule that determines how the Court is to proceed where any immunity exists such that it could stand in the way of a request for cooperation. (para. 5)

Resolution 1593 gives the Court power to exercise its jurisdiction over the situation in Darfur, Sudan, which it must exercise ‘in accordance with [the] Statute’. This includes article 27(2), which provides that immunities are not a bar to the exercise of jurisdiction. … Sudan cannot invoke Head of State immunity if a State Party is requested to arrest and surrender Mr Al-Bashir. … Accordingly, there was also no immunity that Jordan would have been required to ‘disregard’ by executing the Court’s arrest warrant. And there was no need for a waiver by Sudan of Head of State immunity. (para. 7)

Judgment in the Jordan Referral re Al-Bashir Appeal, 6 May 2019

Finally, the long-awaited International Criminal Court (ICC) Appeals Chamber Judgment on Head of State immunity arrived. Unsurprisingly, it contrives to bridge the disparate reasonings of the Pre-Trial Chambers’ decisions while, in no small measure, attempting to expand its international personality and jurisdictional reach. If the United States (US), Russia, and China did not get the Malawi memo – that by virtue of United Nations Security Council (SC) Resolution 1593 they endorse that Heads of States not party to the ICC Statute are not immune from ICC jurisdiction, then the Appeals Chamber’s Judgment in the Jordan Referral re Al-Bashir Appeal (Judgment) puts them on clear notice.

Some will rejoice; others (legal purists and sticklers for applying, as opposed to making, the law) will not. Based on the Judgment, Head of State immunity before international courts is virtually abolished. Continue reading “The ICC Appeals Chamber’s Judgment in the Jordan Referral: Oh! What a tangled web it weaves when first it practices to conceive”

In summary, the Chamber believes that, notwithstanding the fact all the relevant requirements are met as regards both jurisdiction and admissibility, the current circumstances of the situation in Afghanistan are such as to make the prospects for a successful investigation and prosecution extremely limited. Accordingly, it is unlikely that pursuing an investigation would result in meeting the objectives listed by the victims favouring the investigation, or otherwise positively contributing to it. It is worth recalling that only victims of specific cases brought before the Court could ever have the opportunity of playing a meaningful role in as participants in the relevant proceedings; in the absence of any such cases, this meaningful role will never materialise in spite of the investigation having been authorised; victims’ expectations will not go beyond little more than aspirations. This, far from honouring the victims’ wishes and aspiration that justice be done, would result in creating frustration and possibly hostility vis-a-vis the Court and therefore negatively impact its very ability to pursue credibly the objectives it was created to serve.

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, para 96

By now much has been written about the International Criminal Court (ICC) Pre-Trial Chamber’s (PTC) Decision on the Situation in the Islamic Republic of Afghanistan, in which it put the kibosh on the Office of the Prosecutor’s (OTP) efforts to investigate, among other things, crimes allegedly committed by US armed forces and the Central Intelligence Agency, including contractors and other persons under their effective control (see here and here for my earlier posts on the OTP’s efforts to pursue this situation). Invoking Article 53(1)(c) of the ICC Statute the PTC found:

Having determined that both the jurisdiction and the admissibility requirements are satisfied, it remains for the Chamber to determine, in accordance with article 53(1)(c) of the Statute, whether, taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice. (para 87) Continue reading “Invoking the Interests of Justice: self-preservation or self-destruction”

Linking: Connecting or joining something to something else.

Linkage: The action of linking or the state of being linked.

Oxford Dictionary

In my previous post I drew a comparison between what little we know about the US Special Counsel Robert Mueller’s Report and what might be a useful lesson for ICC Prosecutor Fatou Bensouda, namely, that it is best not to charge unless there is reliable and relevant evidence for a conviction — not just when there is sufficient evidence to charge.

My advice may appear cheeky and self-serving as it is coming from a criminal defense lawyer – why trust someone with an obvious stake in the game? And if overreaching, overcharging, and overtrying a case leads to an acquittal, why would a defense lawyer get in the way by offering any advice that might yield more positive results for the prosecution? Continue reading “The kitchen sink, needles in the haystack, spaghetti on the wall: how not to charge & why proofing charts work”

“[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

“[W]hile this report does not conclude that the President committed a crime, it also does not exonerate him.”

From US Special Counsel Robert Mueller’s Report, as quoted by US Attorney General William Barr in a letter to the US Congress, 24 March 2019

After two years of hearing on the news and social media about the Russia probe, election interference, counterintelligence investigations, hacking of emails, WikiLeaks, potential obstruction of justice and so much more, the investigation led by US Special Counsel Robert Mueller came to an end. Some were elated, some were disappointed, and some were left wanting — not knowing what to make of the four page summary provided by US Attorney General William Barr, who in less than two days read, digested, and summarized Mueller’s nearly 400-page report (while also having time to look at the alleged million plus pages of evidence). Frankly, until the report is released — if and to the extent it is released — it is pure speculation to draw any reasonable and rational conclusions other than from the quoted text which, undeniably, establishes that President Donald Trump, the prime target of the investigation, will not be charged with any crimes. Nor will his son, son-in-law, and other associates — at least not by Mueller. Whether a sitting president can be charged is, in my mind, not even a close call: there is nothing unconstitutional about charging and prosecuting a sitting president — even if there is a Justice Department policy paper that says that it would not be cool to do so. Continue reading “What can ICC Prosecutor Bensouda learn from Special Counsel Mueller: Just because you can doesn’t mean you should”

We have moved from the heady cosmopolitanism of the 1990s and its post-Cold War institution-building to a period of tribunal and law-making fatigue, along with resurgent nationalism and its emphasis on impermeable sovereignty. We should be slow to ask for the Court to be reshaped to reflect present realities, as such as a Court would likely be a hollowed-out, pointless shell. At the same time, it is dangerous for a legal institution to get too far ahead of the surrounding political environment. The ICC perhaps reflected the zeitgeist of its time – the idea that the promise of law is that power should always be accountable; nonetheless, that may make it the wrong court for these times.

Douglas Guilfoyle, This is Not Fine: The International Criminal Court in Trouble, Part I EJIL:Talk! 21 March 2019

It is hardly a revelation that political and accountability pressures are seducing heads of once enthusiastic ICC club-joining States (such as the Philippines) to reassess, reprove, and retreat — taking their toys and going home, or, as it were, putting their head in the sand and indulging in self-delusion: by withdrawing from the ICC so as to disappear allegations of crimes falling under the ICC’s jurisdiction. Hardly sound thinking. Crimes once committed no more disappear than does the need for accountability. Walking away from the ICC does not end the story. It may hamper the ICC in completing its investigation, it may frustrate it from making arrests and prosecuting those charged with crimes, and it might add more chinks in the ICC’s already battered armor, but un-signing the Rome Statute and exiting from the ICC’s Assembly of States Parties is not going to sound the ICC’s death knell. The way the ICC is carrying on, unless it mends its ways, that is a job it will do for itself.

Continue reading “Philippinexit: Inevitable but inconsequential “

Attorney Bryan Miller recently commented on my post Pompeo’s thuggish threats against the ICC: a Trumpian call or electioneering hyperbolic fodder?   Occasionally, a comment comes along that demands more than just a brief response. This is one of them. For convenience, Bryan’s comment and my response appear back to back.

Continue reading “Comment and Reply to Comment on Pompeo Post”