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THE ICC PROSECUTOR’S GUIDELINES ON PLEA AGREEMENTS – let’s make a deal

The Prosecutor should exercise particular caution before agreeing to seek the withdrawal or amendment of charges which have been traditionally under-prosecuted, such as crimes against or affecting children, sexual and gender-based crimes, attacks against cultural, religious, historical and other protected objects, as well as attacks against humanitarian and peacekeeping personnel.

Guidelines for Agreements Regarding Admission of Guilt, October 2020, para. 20

Some four years after Al Mahdi’s guilty plea was accepted based on an agreement reached with the Prosecutor for a nine-year sentence for one count of destruction of cultural heritage (mausoleums and mosques in Timbuktu) – and no other charges such as killings for which there seemed to be sufficient evidence to charge (see my prior posts here and here) – the Office of the Prosecutor (OTP) issued its Guidelines for Agreements Regarding Admission of Guilt (Guidelines) on 12 November 2020. Why now? It is not as if plea agreements have been a much sought-after commodity by the OTP. Lamentably.

The Guidelines are somewhat wanting. More of a basic policy paper for internal use and a PR piece for external purposes, the Guidelines provide vague “guidance” on whether, when, under what circumstances and subject to which terms the OTP will enter into plea agreements. Rather than drilling down on the specifics of the Guidelines (a pithy seven-pages), I will be providing some practical considerations and guidance for a more robust practice in negotiating plea agreements. But first, some prefatory remarks on why “plea bargaining” is misunderstood and gets a bad rap at the international(ized) criminal tribunals and courts. Continue reading “THE ICC PROSECUTOR’S GUIDELINES ON PLEA AGREEMENTS – let’s make a deal “

A Pragmatic Assessment of the Pre-Trial Chamber’s Ruling on the ICC’s Territorial Jurisdiction in Palestine: membership comes with privileges, not just responsibilities

The Chamber notes that Palestine acceded to the Statute in accordance with the procedure defined in article 125(3) of the Statute. On 2 January 2015, Palestine submitted its instrument of accession to the Statute, and became a State Party to the ICC on 1 April 2015, following the entry into force of the Statute in its territory. The United Nations Secretary-General circulated Palestine’s instrument of accession among the States Parties before accepting it and no State Party, except for Canada, manifested any opposition at the time. Palestine’s accession was subsequently accepted by the United Nations Secretary-General on 6 January 2015 and, on 1 April 2015, the then President of the Assembly of States Parties to the Rome Statute (the ‘Assembly of State Parties’) greeted Palestine in a welcoming ceremony, which ‘marked the entry into force of the Rome Statute for the State of Palestine […] thereby becoming the 123rd State Party’…. Moreover, since its accession, Palestine has contributed to the Court’s budget and has participated in the adoption of resolutions by the Assembly of State Parties.¹ Situation in the State of Palestine, ICC-01/18-143, Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine,’ 5 February 2021, para. 100 (footnotes omitted).

Stripped from the politics, the lobbying, the bellicose threats, and the doomsday rhetoric surrounding the Prosecutor’s request pursuant to Article 19(3) of the Rome Statute for a ruling on the Court’s territorial jurisdiction in Palestine, the ruling by Pre-Trial Chamber I should not have come as a surprise. If considered pragmatically.

Anyone interested in the nitty-gritty of the Pre-Trial Chamber’s ruling should carefully pour over the majority and minority views spanning over 230 pages. There are also hundreds of pages of submissions and amici curiae briefs for anyone wishing to chase this ruling down the rabbit hole. As for further elucidation of this ruling and its significance, there are plenty of press releases, cautionary statements, and outright threats by the former Trump Administration in the US (as well as the Biden Administration’s objection to the ruling), easily found by surfing the internet. Continue reading “A Pragmatic Assessment of the Pre-Trial Chamber’s Ruling on the ICC’s Territorial Jurisdiction in Palestine: membership comes with privileges, not just responsibilities”

Footnotes[+]

ICC Judges Yield to the Experts’ Recommendations in Amending the Code of Judicial Ethics: a welcomed but modest tinkering to an otherwise impressionistic code of conduct

From the Experts’ consultation process, this lack of collegiality is said to have manifested itself in a variety of ways: poisonous relations, both judicial and personal, following the elections of the Presidency; public expressions of the lack of respect by a Judge towards other Judges; limited Chamber deliberations; excessive adherence and devotion to a Judge’s own legal system; very late circulation of draft written decisions; infrequent intra-Chamber and Intra-Division communications; existence of cliques, factions or open friction among Judges; lashing of disparaging comments on colleagues on the issuance of decisions; deliberate snubbing of associates; persistent failure to reach unanimity; and non-communication.

Independent Expert Review of the International Criminal Court and the Rome Statute System Final Report, 30 September 2020, para. 463.

In 2005, the ICC Judges adopted what may have been considered back then a groundbreaking Code of Judicial Ethics. Groundbreaking not for its contents, but rather for drafting and adopting a code that was to be “advisory in nature and have the object of assisting judges with respect to ethical and professional issues with which they are confronted” (Art. 11.1). Perhaps because the code was merely seen as advisory, its significance, or better yet, its obligatory nature was unacknowledged – at least by some of the judges.Codes of judicial ethics regulate the judiciary by providing guidance on the judges’ duties, responsibilities, and conduct towards other judges, the parties, witnesses, staff, and the judicial institutions – courts and tribunals. When providing clear and definitive rules governing the judges’ behavior, codes of judicial ethics effectively legislate, whereas when merely providing vague guidance with nebulous and undefined terms, they tend to be susceptible to mailable interpretations, equivocation, inconclusiveness, and ill-compliance. Of course, devising detailed rules for every ethical eventuality a judge is likely to encounter is unrealistic. Judicial canons should be pithy, expressing general principles. Preferably, they should also be accompanied by detailed prescriptive and proscriptive provisions that flush out the canons, and a commentary informing the object and purpose of the canons.

The ICC Code of Judicial Ethics provides no commentary but does merge canonical principles with more fleshed out provisions. Overall, it is a useful Code – at least to career judges and experienced litigators (prosecutors and lawyers) who arrive at the ICC to don the judicial two-toned blue robe. Even for those with prior national experience (who far too often are prisoners of their own legal system), a code that is scant in guidance, inexact in the meaning of terms, and lacking explanatory comments, will be appreciated and applied through their provincially narrow perspective. And it is not just the Code that is interpreted in this fashion – it cuts across all aspects of judges’ interpretation and application of statutory provisions, rules, and regulations. Not to mention their interactions with their colleagues and others. That’s where collegiality comes in. Continue reading “ICC Judges Yield to the Experts’ Recommendations in Amending the Code of Judicial Ethics: a welcomed but modest tinkering to an otherwise impressionistic code of conduct”

The ICC-ASP Independent Expert Review: Scrutinizing the past / proposing the future

Inherent in the structure of any international court or tribunal is the dual nature of the institution: the ICC is both a judicial entity (ICC/Court) and an international organisation (ICC/IO). As a judicial entity, the Court must benefit from judicial independence. As an international organisation, States Parties reasonably expect to be able to guide and shape the institution. Contradictions can arise between the two attributes of the ICC, and in practice such differences have led to tension between the ICC and the ASP. Whereas the dual nature of the ICC cannot be changed, employing this distinction can improve the clarity of reporting lines and improve cooperation.

Independent Expert Review of the International Criminal Court and the Rome Statute System, Final Report (IER), 30 September 2020, para. 26 (internal citations omitted).

Since we are starting a new year, it may be good to reflect on the 2020 Independent Expert Review (IER) of the International Criminal Court (ICC) and the Rome Statute System, commissioned by the Assembly of States Parties (ASP):

with a view to making concrete, achievable and actionable recommendations aimed at enhancing the performance, efficiency and effectiveness of the Court and the Rome Statute system as a whole, taking full account of the working languages of the Court, and submit those to the Assembly and the Court for consideration.¹ Review of the International Criminal Court and the Rome Statute System, ICC-ASP/18/Res.7 (2019), para. 6.

Hemingwayesque in prose (modestly adorned short, plain sentences), Tolstoyesque in length (War and Peace in size and discordance), and Trumanesque in bluntness (unvarnished, curt, straight-talk), the final report of IER of the ICC is a dark, disenchanting, dispiriting read. But a must-read, nonetheless. Anyone currently working or hoping to work at the ICC, anyone working in any of the international(ized) criminal courts or tribunals, and anyone involved in establishing or aspiring to establish any future such courts, would be well served to carefully review and reflect on this report. Continue reading “The ICC-ASP Independent Expert Review: Scrutinizing the past / proposing the future”

Footnotes[+]

Dawn over Midnight: a brighter future for international norms

O! say, can you see, by the dawn’s early light …

Francis Scott Key’s poem The Defence of Fort McHenry, later renamed The Star Spangled Banner, recounts the Battle of Baltimore during the War of 1812. Detained by the British, Key witnessed the bombardment of Fort McHenry on the night of 13-14 September 1814. As dawn was breaking, he feared he would see the dreadful sight of the Union Jack flying over Fort McHenry. Instead, elatedly, he saw the Star Spangled Banner, the American flag, proudly standing. The Americans had prevailed. The tumultuous Trump presidency, which, to half the nation and many others around the globe, has felt like an incessant bombardment of insults, venom, and ill-will, is coming to an end. The battle for the soul of America has yet to be won, the struggle for a more perfect union remains, but dawn is breaking. Continue reading “Dawn over Midnight: a brighter future for international norms”

The ICC Appeals Chamber’s Judgment in the Jordan Referral: Oh! What a tangled web it weaves when first it practices to conceive

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”

Invoking the Interests of Justice: self-preservation or self-destruction

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

Related image 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”

The kitchen sink, needles in the haystack, spaghetti on the wall: how not to charge & why proofing charts work

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”

What can ICC Prosecutor Bensouda learn from Special Counsel Mueller: Just because you can doesn’t mean you should

“[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”

Philippinexit: Inevitable but inconsequential

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 “