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)
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.
It’s known that it came in with the group that was present at the trial, because he couldn’t have had it in the prison, which casts suspicion on his defense team, or eventually someone from the Embassy; at any rate, someone who had access to Praljak before he entered the courtroom
Florence Hartmann, Express, 19 April 2019, p. 42
Florence Hartmann is no stranger to controversy, to unethical behavior, to criminal activity. At the apogee of her career at the International Criminal Tribunal for the former Yugoslavia (ICTY), she was the mouthpiece and spinmeister for the Office of the Prosecution (OTP), and in particular, Madam Carla Del Ponte, the then Prosecutor. Much to her surprise (hubris can be blinding) she was prosecuted by the very same office for which she worked. She crossed the line by disclosing classified information. Convicted, Hartmann was sentenced to pay a fine of €7,000.1 The imposition of that fine, payable in two installments, was affirmed by the Appeals Chamber of the ICTY on 19 July 2011. Hartmann failed to pay the fine, despite several notices from the Registrar. On 16 November 2011, the Appeals Chamber converted the fine to a term of imprisonment of seven (7) days. An inexcusably lenient slap on the wrist for someone who failed to surrender to serve her sentence for over four (4) years. Hartmann was finally arrested on 24 March 2016. She was granted early release on 29 March 2016, having served five (5) days in custody. Ironically, in light of her failure to pay the fine of €7,000, the Registrar found that she was able to remunerate counsel amounting to €59,094.50, and thus was ineligible for legal aid. That decision was affirmed by the President of the Mechanism in the Decision of of 4 July 2016.
The imposition of that fine, payable in two installments, was affirmed by the Appeals Chamber of the ICTY on 19 July 2011. Hartmann failed to pay the fine, despite several notices from the Registrar. On 16 November 2011, the Appeals Chamber converted the fine to a term of imprisonment of seven (7) days. An inexcusably lenient slap on the wrist for someone who failed to surrender to serve her sentence for over four (4) years. Hartmann was finally arrested on 24 March 2016. She was granted early release on 29 March 2016, having served five (5) days in custody. Ironically, in light of her failure to pay the fine of €7,000, the Registrar found that she was able to remunerate counsel amounting to €59,094.50, and thus was ineligible for legal aid. That decision was affirmed by the President of the Mechanism in the Decision of of 4 July 2016.
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.
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.
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.
“[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.
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.
I’m announcing a policy of U.S. visa restrictions on those individuals directly responsible for any ICC investigation of U.S. personnel. … These visa restrictions may also be used to deter ICC efforts to pursue allied personnel, including Israelis, without allies’ consent. … We’re prepared to take additional steps, including economic sanctions, if the ICC does not change its course.
With the benefit of hindsight, would the Cambodian government and the international community have joined hands and built the Extraordinary Chambers in the Courts of Cambodia (ECCC)? Possibly not. The Court has received more criticism than acclaim and is generally touted as a model not to be followed.
Nina H.B. Jørgensen, p. 359
Anyone interested in the trials, tribulations, and contributions of the Extraordinary Chambers in the Courts of Cambodia (ECCC) to the development of international criminal law and justice, look no further than Professor Nina H.B. Jørgensen’s outstanding primer, The Elgar Companion TO THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA (TheCompanion to the ECCC). If there are any doubts about the ECCC’s legacy, particularly its positive contribution to international criminal jurisprudence, Professor Jørgensen has put them to rest. Thanks to her critical analysis of the ECCC’s procedures, of the cases tried and currently under investigation, and of the jurisprudence the ECCC has produced over the past decade – especially considering the general environment and context in which the ECCC operates – it is hard not to be impressed with the accomplishments of the ECCC, despite its numerous shortcomings and disappointing failures. Continue reading “Book Review – The Elgar Companion to THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA”
But, Excellencies, Ladies and Gentlemen: any fear that the ICC is a usurper of national sovereignty proceeds from a clear misunderstanding of the nature of the ICC’s jurisdiction. That fear may indeed be implicated in the reluctance of some States to ratify the Rome Statute, as has been expressed around the world, where ratification has not yet taken hold.
But, even for the more able States, the ICC remains valuable – not as a usurper of sovereignty – but as a mirror of conscience. Such is the case where political will appears a little shy to address the needs of justice, behind the veil of sovereignty. It is noted in this connection that war crimes do occur in almost every war. And the culprits can come from the rank and file of the most disciplined and professional armed forces in the world, in spite of the best efforts of their commanders acting with unimpeachable good faith.
ICC President Judge Chile Eboe-Osuji, Speech to the United Nations General Assembly
International Criminal Court (ICC) President Judge Chile Eboe-Osuji addressed the United Nations (UN) General Assembly on 29 October 2018 with one overarching aim – to assuage the fears of many States and non-States Parties who view the ICC with alarm and skepticism as an organic international judicial institution that aspires to exercise jurisdiction well beyond the narrow contours of what the States Parties had agreed to when signing on to the Rome Statute. Measured, with generous usage of memorable quotes (one of his characteristic trademarks) and a whiff of thou doth protest too much, President Eboe-Osuji’s speech reads like an oblique response to US National Security Advisor John R. Bolton’s criticism of the ICC (see here).
As optimistic as one can be about the potential of the ICC, it is hard not to be a cynic, and even harder not to take with a grain of cynicism President Eboe-Osuji’s representations of the ICC’s abiding caution in exercising its jurisdiction narrowly, conservatively, and judicially. Not that he spoke with forked tongue, but when one looks at the recent Pre-Trial Chamber’s (PTC) Decision concerning the Rohingya, jurisdictional adventurism (mission creep) seems discretely afoot. Continue reading “The ICC is not a usurper: but is it inching towards being one?”