Milestones in International Criminal Justice: Recent Judgments and New Developments

International Law Meeting Summary Milestones in International Criminal Justice: Recent Judgments and New Developments

Dapo Akande Lecturer, University of Oxford Olympia Bekou Associate Professor, University of Nottingham Steven Powles Doughty Street Chambers Chair: Elizabeth Wilmshurst Associate Fellow, International Law, Chatham House

28 June 2012

The views expressed in this document are the sole responsibility of the author(s) and do not necessarily reflect the view of Chatham House, its staff, associates or Council. Chatham House is independent and owes no allegiance to any government or to any political body. It does not take institutional positions on policy issues. This document is issued on the understanding that if any extract is used, the author(s)/ speaker(s) and Chatham House should be credited, preferably with the date of the publication or details of the event. Where this document refers to or reports statements made by speakers at an event every effort has been made to provide a fair representation of their views and opinions, but the ultimate responsibility for accuracy lies with this document’s author(s). The published text of speeches and presentations may differ from delivery.

Meeting Summary: Milestones in International Criminal Justice

INTRODUCTION The meeting was hosted jointly between Chatham House and Doughty Street Chambers to discuss milestones in international criminal justice and was the third in a series of joint seminars to be held on this topic. The meeting was not held under the Chatham House Rule and an audio recording of the event is available on the Chatham House website.

The meeting addressed three recent developments in international criminal law: the judgements handed down on the conviction of Charles Taylor, former president of Liberia, by the Special Court for Sierra Leone and the conviction of Thomas Lubanga Dyilo, by the International Criminal Court (the ICC); the subject of complementarity in relation to the arrest warrants issued by the ICC for certain Libyan suspects; and the problem of immunity under international law for high officials such as Presidents and Foreign Ministers.

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Olympia Bekou1: Legal Headlines from New Case Law The Lubanga2 judgment is 593 pages long and the Taylor3 judgment is 2,533 pages. I have decided to focus on a number of issues that cut across those two judgments, mindful of the fact that these judgments are from two separate international tribunals. The International Criminal Court is the permanent tribunal and the Special Court for Sierra Leone (SCSL) exists as an internationalized hybrid tribunal. Both judgments are important. The Lubanga decision was obviously important as it was the first judgment to be rendered by the ICC. Taylor is equally significant as it is the most important decision by the SCSL and it involves a former head of state. The two judgments also have something else in common. They both took an inordinate amount of time to complete. Lubanga took about six years and took 600 pages of ink. Taylor took about four years to complete and both are somewhat disappointing. When I finished reading the Taylor judgment this morning, I thought, is that it? What am I supposed to do with this now? A substantive issue that is important for both cases is the use of child soldiers. In the Lubanga case the majority refused to give a definition of what constitutes the use of child soldiers to actively participate in hostilities – the core of the war crimes. The judges implied that such a decision should be made on a case by case basis. I find myself agreeing here with Judge Odito Benito, the judge who rendered a separate and dissenting opinion. She said in her dissenting opinion that as this was the first judgment on the issue of child soldiers at the ICC and considering that this was the key issue of the decision, the Court should have taken the time to clarify the remit of use as set out in the Statute. Another curious point about the Lubanga decision is the use of targeting in order to determine active participation in hostilities. The Court held that the underlying element and therefore the determinative factor of active participation is whether the child is exposed to danger as a potential target. I think this is rather problematic as the Court did not make clear what they meant by ‘target’. What did the Court have in mind: a lawful target as defined in the law of armed conflict or a target in a more general sense? In the Taylor judgment, conscripting or enlisting children under the age of 15 years into armed forces or groups was also one of the counts. Of course, the SCSL has a number of decisions on that matter. In fact, many of these are cited in the Lubanga case. What is important in the Taylor judgment is that Taylor has been found guilty as an aider and abettor in conscripting and enlisting children. This is quite an interesting fact. Moving on to gender based crimes: in the Taylor decision, there were three counts of sexual violence in the indictment which were rape, sexual slavery as crimes against humanity and outrages upon personal dignity as a war crime. The trial chamber found Taylor guilty of aiding and abetting these crimes through the provisions of arms and ammunition, military personnel, operational support and moral support; and they found him guilty of planning these crimes. This is the first time a former head of state was convicted as being responsible for various forms of sexual violence. What is also important in terms of sexual violence is that the SCSL looked at the contextual elements of the crimes. They, I think, came to the right conclusion departing from the

1 Speaking in a personal capacity and not on behalf of the ICC’s Legal Tools Project.

2 ICC, The Prosecutor v. Thomas Lubanga Dyilo, Cited at: http://www.icc- cpi.int/Menus/ICC/Situations+and+Cases/Situations/Situation+ICC+0104/Related+Cases/ICC+0104+0106/ Court+Records/Chambers/Appeals+Chamber/

3 The Special Court for Sierra Leone, The Prosecutor v. Charles Ghankay Taylor, Cited at: http://www.scsl.org/LinkClick.aspx?fileticket=k%2b03KREEPCQ%3d&tabid=107

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AFRC judgment. The crime of sexual slavery cannot be included under the crime of terrorizing the civilian population because it is a crime of opportunity. This cannot be committed with the intent to cause fear in the civilian population. I think this is the right conclusion. Overall, the Taylor judgment represents a milestone in terms of gender justice. Not least because it provides that the leaders can be recognized to be responsible, even though they are far away from the theatre of conflict. They are responsible by supporting and encouraging the violence of others or make no attempt to prevent or punish it. As regards the sexual violence issue in the Lubanga decision, the majority of the Court did not adopt a standpoint on sexual violence coming under the use of child soldiers. The Special Rapporteur on Children in Armed Conflict had testified before the ICC and had urged the Court to include any sexual act perpetrated against child soldiers. However, I am sympathetic towards the Court in refusing to consider sexual violence as a constitutive element of using child soldiers. While the criminalization of sexual violence before the ICC would be welcome, it should not be introduced through the back door, as it would have been the case in the Lubanga judgment. The onus here is on the prosecutor. The charge on sexual violence was dropped; the Court reached the right conclusion by not introducing it. Judge Odito Benito did not agree and in her dissenting opinion explained this. She adopts a more purposive and human rights oriented view. She adopts the view that the Court is not there simply to decide upon the guilt or innocence but is also there for the progressive development of international law. If we take a victim-centric approach, perhaps this view of Judge Odito Benito is more sympathetic. There have been commentators who have adopted this position. But reaching this conclusion would be deeply problematic from a legal perspective. Primarily, this is because this would have to be tied to the targeting question, as already mentioned. In my view, this would violate the principle of legality.

Now, a few words on individual criminal responsibility and co-perpetration. The Lubanga trial concerned co-perpetration as the basis of liability. I think that the majority was right to hold that co-perpetration is established when the individuals are aware that implementing a common plan ‘will’ result in the commission of the crime, rather than that it ‘may’ result, which was the standard applied in previous ICC decisions, as this suggested the application of dolus eventualis, which is not what the wording of the Statute intended. In Lubanga we saw the inclusion of this concept of ‘essential contribution’ as a requirement to establish co-perpetration which the majority concluded was necessary, in order to distinguish co-perpetration from accessorial liability, something they considered to be a less serious form of liability. I find myself agreeing with Judge Fulford in his separate opinion. What Judge Fulford argued was that there is no such requirement in the Statute and therefore this requirement should not be included. So, what he proposed was what he called a ‘plain text approach’ which was more in line with the Statute. Moving on to the issue of liability in the Taylor judgment, joint criminal enterprise (JCE) was not upheld by the trial chamber and Charles Taylor was found guilty on all accounts, but only as an aider and abettor. The judges rejected the prosecution’s allegations that Taylor participated in a JCE to commit the crimes alleged in the indictment. They also said that there was insufficient evidence of command responsibility. The result is a finding that Taylor committed these crimes only as an accomplice and the Court explicitly refused to hold him responsible as a principal perpetrator. It is possible that this may be fixed on appeal. JCE III was developed by the International Criminal Tribunal for former Yugoslavia (ICTY) where individuals were convicted not only of serious crimes that they knew or intended but also those that were objectively foreseeable to the extent they belonged to a joint criminal enterprise with others. But in the Special Court JCE was charged even when this enterprise was not criminal. Perhaps what the Court is trying to do here is bring JCE

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back to the element of criminality. A similar approach was taken in the Lubanga decision. We had problems with procedural questions in both the Taylor and the Lubanga judgments. In the Lubanga case, the question of intermediaries has taken an inordinate amount of time and almost led to the dismissal of the case. The Chamber was very critical of the use of intermediaries. Large numbers of evidential problems could be traced back to them. The OTP have problems in collecting evidence on the ground. But the collection of evidence is a clear prosecutorial task and we can’t possibly start outsourcing that task. In Taylor, there have also been criticisms of the prosecution but they were of a slightly different nature. There were allegations that the prosecution was paying witnesses to testify and the fact also that a lot of prosecutorial evidence has been dismissed. This is testament to the bad quality of collected evidence. On the issue of sentencing, we have seen that Taylor was convicted to 50 years of imprisonment. He will be spending this time here in the UK. There have been criticisms of 50 years for aiding and abetting. In the sentencing judgment - which is another 44 pages - he was found to be in a particular position because of the nature of the crimes and because he was a head of state. In Lubanga, we don’t have the sentencing judgment yet. The Prosecutor requested 30 years and he would be prepared to drop it to 20 years if Lubanga was prepared to make a public apology and commit himself to work to prevent future crimes. Finally, a few words about how the judgments have been received on the ground. The Lubanga case has met with indifference in Congo; Lubanga has been seen as a scapegoat by his own tribe. The Lendu tribe, (who are against Lubanga) do not want to react because they are waiting for the decisions in Katanga and Ngudjolo-Chui cases. In the case of Taylor, we have to consider the impact of the decision in both Sierra Leone and Liberia. In Sierra Leone, there has been some frustration because of the impunity gap. The average people on the ground suffered from crimes committed by lower criminals who have never been indicted. The average Sierra Leonean has never visited the SCSL as it is too formal. In Liberia, the overall reaction was unenthusiastic: Taylor was not charged with many crimes in Liberia but only with supporting a foreign war; and some Liberians think that Taylor shouldn’t have been accountable for his crimes all together. In response to the speaker’s remarks, a participant noted that in the Taylor judgement, the description of the concept of aiding and abetting would send a very strong message to defence department officials providing assistance either to government forces or to rebel forces who are committing crimes under international law - also, to private companies who are similarly involved.

Steven Powles: Complementarity in the ICC: Libya In February 2011, the United Nations Security Council (UNSC) unanimously referred the situation to the ICC prosecutor for investigation. In May, the prosecutor issued arrest warrants against Colonel Gadhafi, his son Saif Gadhafi and his right hand man, Abdullah Senussi for crimes against humanity. The pre-trial chamber of the ICC accepted all three applications for arrest warrants. In July, the registry formally requested Libya to arrest and transfer those three individuals. In October 2011, Colonel Gadhafi was killed; in November 2011, Saif Gadhafi was captured. More recently, this year, Abdullah Senussi was arrested in Mauritania. In January of this year, the Libyan prosecutor general commenced an investigation into the allegations notwithstanding that the Libyan prosecutor had already begun an investigation. The ICC reiterated its request for the transfer and surrender of Saif Gadhafi. On 1 May www.chathamhouse.org 5 Meeting Summary: Milestones in International Criminal Justice

2012, a jurisdictional issue arose. Libya sought to challenge the jurisdiction of the ICC pursuant to Article 19 (2) of the ICC Statute,4 on the basis that it was investigating the same case, concerning the same individual and the same crimes. Shortly thereafter, on 12 June 2012, the pre-trial Chamber formally postponed execution of the request to surrender Saif Gadhafi pending the determination of Libya’s challenge to admissibility. The Government of Libya bases its challenge on Article 19 and on the basis of complementarity. Under the principle of complementarity, where a domestic state is not prosecuting or is “unwilling or unable” to prosecute, only then will the ICC jurisdiction come into play. The ICC has explained that there is a two-step process in determining whether something is admissible: first is there a national prosecution system? Secondly, where this exists, is the state genuinely willing and/or able to carry out the prosecution. The ICC has confirmed that the principle of complementarity applies, irrespective of whether the case has been referred to the ICC by the UNSC or whether the state concerned is a state party. So, even though Libya has been referred to the ICC by the UNSC, this principle of complementarity applies. Libya has the first bite of the cherry.

The application filed by Libya on the 1st May 2012 challenges the admissibility of the prosecution of Saif Gadhafi and Abdullah Senussi before the ICC. The Government of Libya say they are actively carrying out an investigation on Saif Gadhafi and Abdullah Senussi; the Government are committed to post-conflict transitional justice and reconciliation and have a genuine willingness to bring them to justice in furtherance of building a new and democratic Libya governed by the rule of law. They acknowledge an immense number of post-conflict challenges but stress that the National Transitional Council (NTC) is committed to restoring the human rights situation. They claim to be gradually re-establishing justice by re-opening courts and calling judges. They also stress the need for national ownership of the trials as a foundation for reconciliation, democracy and rule of law. The Government regard these trials as a matter of high importance in order to show that Libya can conduct fair trials. If there are any shortcomings in the process, they say that they will seek support from the international community, especially from specialist UN bodies. They stress that they have taken real steps in investigating so far; they have a list of all the people they have interviewed which includes members of Gadhafi’s family, military personnel and his close associates. They claim that the investigation that they are conducting concerns the same persons and the same conduct as the ICC prosecutor’s investigation. They also refer to the provisions pertaining to fair trials within the 2011 Libyan Constitution, ensuring the independence of the judiciary. They stress that Libya is party to the International Covenant on Civil and Political Rights (ICCPR). In their view the principle of complementarity gives states the benefit of the doubt in determining whether they can conduct an investigation or prosecution. They say that allegations that the state’s efforts are not genuine must be proved. They insist that their efforts to investigate are genuine and refute any allegations that Saif Gadhafi has been subjected to any physical abuse. The prosecutor questions whether the state is genuinely willing and able and explains that Saif Gadhafi has not yet had a defence counsel appointed in national proceedings. They also point to the strange relationship between the NTC and the Zintan militia. Before the pre-trial Chamber reaches any firm conclusions as to the admissibility of this case, it should, in the prosecution’s view, accept Libya’s offer to produce more evidence, particularly on their ability. The prosecution accept that there is no need to analyse the fairness of Libya’s criminal justice system; there is no evidence that Libya is trying to shield the defendants. They say that the pre-trial Chamber should not embark on a speculative exercise to consider how the rights of

4 Rome Statute of the International Criminal Court, Cited at: http://www.c- fam.org/docLib/20080625_Rome_Statutes_Criminal_Ct.pdf

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the suspects in this case will be respected during the course of proceedings. The ICC should, however, monitor the proceedings as they go forward. The victims question whether the prosecution is genuine. They note that the NTC has failed to secure the transfer of Saif Gadhafi from the Zintan Brigades into the custody of authorities. They also point to reports that negotiations have failed between Zintan fighters and the Government and that the Zintan fighters are concerned that the Government are not able to ensure that Saif Gadhafi will not escape if moved to Tripoli. They stress that the victims favour an international trial and doubt whether national courts are properly equipped to deal with the situation at hand. Crucially, the victims believe that the national system cannot provide for the safety of victims who may or may not participate on any national proceedings. The main issue for the ICC, in this case, seems to be whether Saif Gadhafi can have a fair trial in Libya itself. There is no doubt that the Government of Libya clearly desires to prosecute him and punish him with the highest possible penalty. The real issue is whether he will have a fair trial as part of that process. That should be of concern not only to Saif Gadhafi but also to his alleged victims, to the prosecutor and the international community as a whole. Ultimately, crimes against humanity are crimes that are said to “shock the very conscience of humanity.” (ICC Statute) The whole international community has a vested interest in ensuring that those involved are held to account, but fairly and in accordance with international legal principles. If Saif Gadhafi is ultimately convicted domestically, if that process is unfair and biased – how can that possibly be said to be justice for the victims and the people he is alleged to have abused? It is inherent in the concepts of ‘unwilling’ and ‘unable’ that a state should be required to provide not only a trial, but a fair trial. It is crucial, I would say, that a state not only be able to put someone on trial but give them a fair trial. Domestic proceedings must be independent and in accordance with due process requirements. Ironically, under Article 21 (3), there is no clear indication that the state be required to give a fair trial. But if a state says we can put someone on trial, and it is not a fair trial, that should be recognised by the international community. Questions arise as to the detention of the ICC defence team in Libya. The situation highlights some very real concerns about the relations between the Zintan brigade and the NTC. If international observers cannot go to Libya and carry out their responsibilities impartially without the risk of the Libyan authorities subjecting them to detention, how can it be said that the Libyan Government can rely on the international community to ensure that the trial is fair and proper? Finally, what will happen if the ICC rejects the Government of Libya’s challenge to admissibility? Notwithstanding the motion, Saif Gadhafi has to be transferred to the ICC. State parties to the ICC Statute have an obligation to comply with ICC orders. Libya is not a state party to the ICC Statute but is bound to cooperate by virtue of the Security Council resolution referring the situation to the Court. In the case of the ICTY and the International Criminal Tribunal for Rwanda (ICTR), which were established by UNSC resolutions, the latter provided in each case that all states shall cooperate fully with the Tribunal concerned and shall comply with requests and orders. By contrast, the Council resolution referring the Libyan situation to the ICC requires only Libya to cooperate; other states are merely urged to cooperate – a much lower obligation than in the ICTY and ICTR. Therefore, it might be worth noting pragmatic alternatives to prosecution at the ICC. For example, the Government of Libya could enter into an agreement to set up a hybrid tribunal with a mixture of local and international judges. Or, as urged by the Government of Libya, the ICC could adopt a method of positive complementarity to ensure that international officials have as much involvement in the domestic process as possible. Finally, one alternative could be to grant the right of individual petition under the ICCPR; the first optional protocol would give Saif Gadhafi, or anyone in

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Libya, the option to make a complaint to the UN Human Rights Committee if any rights under the ICCPR are violated. There could be some international oversight by an international body applying an international standard. However, it is important to ensure that Saif Gadhafi receives a fair trial, whether in Libya or at the ICC. In response to the speaker’s remarks, the question was raised in discussion whether, while everyone has a fair trial, is it for the ICC in the course of its determination of complementarity to achieve that, or is it for international human rights bodies to enquire into the matter. That question will be for the ICC itself to decide. On the same point, a participant recommended reading the comment by Jonathan O’Donohue in the European International Law Blog (EJIL)5 on whether genuineness, for the purpose of complementarity, includes the concept of fairness and why Article 21 (3) would trump any interpretation with regard to genuineness. The other point made by the same speaker was that Libya has not defined war crimes or crimes against humanity as crimes under national law. Arguably, they are therefore unable to prosecute as they have failed to define the crimes.

Dapo Akande: Problems with Immunities and the ICC In the Taylor case a former head of state was convicted by the SCSL. Charles Taylor was the head of state at the time that he was indicted in 2003. The SCSL had to deal with the question of immunities in 2004. They held that serving heads of state did not have immunity from prosecution before an international criminal tribunal. In the context of the ICC, the issue of immunity has also been significant; three of the people for whom the ICC has issued arrest warrants were either serving heads of state or former heads of state: President Bashir of Sudan, Colonel Ghadafi of Libya and Laurent Gbagbo of Côte d’Ivoire. In the context of Darfur, the question of immunity of the President has been significant in contributing to some of the tensions between the ICC and the African Union. The African Union has insisted that because President Bashir is President of a country that is not party to the ICC Statute, he is immune from prosecution and immune from arrest. The African Union Assembly have adopted a number of resolutions in which they have called on members of the African Union not to cooperate with the ICC on the Bashir case. Indeed a number of African states did fail to arrest Bashir when he travelled to those countries – they included states which were parties to the Rome Statute, as well as those who were not. For some time the ICC ignored this immunity issue in relation to Bashir; the pre-trial chamber condemned African states which had refused to arrest Bashir and reported those states to the UNSC, but it did not deal specifically with the issue of immunity, raised by the African Union. There is a problem regarding the treatment of the immunity issue in the ICC. The problem is that when the prosecutor makes a request for an arrest warrant, it is made ex parte and almost by definition the prosecutor has no interest in raising the issue of immunity. So, it is conceivable that the issue is not raised at all. It is possible for the accused person to raise the issue of immunity subsequently but in circumstances where a serving head of state takes the view that the tribunal is acting in some way illegitimately or illegally under international law, the more likely option, as has happened in the cases of Libya and Sudan, is to ignore the tribunal. This should place an obligation on the judges to raise the immunity issue themselves.

5 Jonathan O’Donohue, “The ICC must consider fair trial concerns in determining Libya’s application to prosecute Saif-al-Islam Gaddafi nationality”, EJIL, Cited at: http://www.ejiltalk.org/the-icc-must-consider- fair-trial-concerns-in-determining-libyas-application-to-prosecute-saif-al-islam-gaddafi-nationally/

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Unfortunately, in the case of the ICC, unlike the SCSL, it was an issue that the judges chose to ignore for a couple of years. This had the unfortunate effect, in my view, of contributing to the tension between the ICC and the African Union. The African Union were of the view that their arguments in relation to this question were simply being ignored. In the case of the SCSL, however, the Court appointed Special Counsel to deal with the immunity issue in 2004. In December 2011, the pre-trial chamber of the ICC finally delivered a detailed decision on the issue. It was dealt with in the context of the failure of the governments of Malawi and Chad to arrest Bashir when he had visited those countries. The pre-trial chamber agreed with the SCSL’s decision in 2004, holding that serving heads of state do not have immunity from prosecution before international criminal tribunals. Furthermore, they held that that lack of immunity extends to attempts to arrest these serving heads of state at a national level. So, not only do they not have immunity at an international level, but states were free to act at the behest of the international tribunal and to arrest serving heads of state. The ICC pre-trial chamber held that these principles applied even in the case of head of state that was not a party to the Rome Stature. In my view, this is a poorly reasoned decision. In effect it erases two provisions of the Rome Statute. As explained, the pre-trial chamber did not have arguments from counsel and this may be the cause of the poor reasoning of the decision. There was no attempt at all to address arguments that would have been put forward on the other side.

The key question that arises for the ICC is this: to what extent, if at all, do international law immunities (the immunities that international law accords to certain state officials) apply in the context of ICC prosecutions? That question arises at two levels. First, is there immunity from prosecution by the ICC? Secondly, is there immunity from arrest by national authorities that are acting at the behest of the ICC? These are two separate questions and both are important because the ICC, in the context of cooperation, requires national authorities to assist in the arrests of suspects before the ICC. As a reminder, the immunities that international law provides before domestic courts apply to heads of state, heads of government, and possibly foreign ministers. These individuals have immunity from prosecution while they are in office. This was confirmed by the International Court of Justice (ICJ) in the Arrest Warrant Case (Democratic Republic of Congo v. Belgium).6 That immunity before domestic authorities extends even to allegations of having committed international crimes. What is the position when we turn to an international tribunal, the ICC specifically? The ICC Statute has two provisions that deal with this question: Article 27 and Article 98. The two provisions, on their face, appear to be contradictory. Article 27 provides that immunities which may attach to the official capacities of a defendant shall not bar the Court from exercising jurisdiction. Article 98 provides on the other hand that the Court may not proceed with a request for arrest or surrender which would require the requested state to act inconsistently with its obligations under international law with respect to immunities. One way of looking at the interplay between these two provisions is to refer back to my two questions. Article 27 deals with the issue of prosecution before the Court: no immunity before the Court. But Article 98 deals with the second question, which concerns cases of arrest at the national level at the behest of the Court: immunity in those circumstances is preserved. But, in my view that is not the right way to interpret these two provisions. Article 27 also removes immunity even at the national level with respect to ICC parties. In other words, when Article 27 says immunity shall not bar the Court from exercising jurisdiction, that provision applies also to the Court’s ability to request arrest and surrender at the

6 International Court of Justice, Arrest Warrant of 11 April 2000, Cited at: http://www.icj- cij.org/docket/index.php?p1=3&p2=3&k=36&case=121&code=cobe&p3=4

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national level and it also removes the immunities of officials of ICC parties. Any other interpretation deprives Article 27 of all meaning. In most cases the Court will only be able to exercise jurisdiction based on an arrest by a national authority; if immunities are preserved at national level, the Court will never be able to exercise jurisdiction under Article 27. There are other arguments that support that interpretation. In my view, the best way to interpret the interplay between the two Articles is to say that state parties to the ICC have waived whatever international law immunities their officials may have under international law. Article 98 preserves the immunities of non- state parties. Further, whatever the Rome Statute says, non-state parties are not bound by the Statute. So, even if Article 27 said “no immunities for non-state parties”, this would not of itself suffice to remove the immunities of non-state parties. Article 98 is a reflection of that immunity that is accorded to them. The difficulty of this argument, and this is faced in relation to Bashir, is: what is the position, in relation to a non-state party, when the Court is dealing with the case as a referral from the UN Security Council? The ICC pre-trial chamber in December 2011 took what I would call the ‘nuclear option’: they said that there is no immunity before international tribunals at all, not simply for international crimes but no immunity at all. They referred to a list of provisions with regard to previous international tribunals which in their view support this conclusion. I indicated earlier that I think this is a very weak decision because this lengthy list that they refer to fails to take into account two things. First, the provisions concerned do not strictly refer to immunity; they are provisions stating that the official capacity of a defendant does not exclude criminal responsibility. This is, of course, correct but that is not to say that that particular defendant is not immune from the particular jurisdiction of a tribunal. Secondly, they fail to note that, with respect to the Nuremburg Tribunal, ICTY and ICTR, these instruments are binding on the relevant states. In other words, these instruments, if they remove immunity, have legal force with respect to the particular states whose immunity has been removed. There is a simple treaty law question as to whether that immunity can be removed by a treaty to which states are not parties. The answer to that is no, under treaty law. The argument that the pre-trial chamber puts, with respect to this view, is that immunity is intended to prevent states from interfering in the affairs of other states. That is the reason that we have immunity – so that one state cannot arrest and put on trial the head of state of another state. They go on to say that this reasoning does not apply in the case of international tribunals because those tribunals are obviously independent and they are not acting at the behest of particular states. The problem with this argument is that international tribunals are established by states; the argument suggests that what one state may not do individually, it can do in cooperation with other states. At the moment, the African Union is discussing the extension of the jurisdiction of the African Court of Human Rights to include criminal cases. On the view of the ICC pre-trial chamber, it would be perfectly legitimate for the African Court of Human Rights to make this jurisdiction universal to apply to foreign heads of state. That would be fine, according to this argument, because it would be an ‘international tribunal’. We do not have a definition of what an international tribunal is but, presumably, the argument is that it is an international tribunal created by an international instrument and that suffices. The pre-trial chamber need not have chosen the ‘nuclear route’. I agree with their conclusion that President Bashir does not have immunity, but the preferable option would have been to say that because the situation was referred to the ICC by the UNSC, the Council has in effect conferred jurisdiction on the ICC in accordance with the Statute. Under the UN Charter, Sudan is obliged to accept that jurisdiction on the basis of the UNSC resolution. Sudan is accordingly bound by the provisions of the Statute, including Article 27 which is the provision which removes immunity. In response to a question, the speaker added that non-state parties were not obliged to arrest Bashir. Such a state has no obligation, neither under the ICC Statute nor under the UNSC resolution. More interesting is the question whether the non-state www.chathamhouse.org 10 Meeting Summary: Milestones in International Criminal Justice

party is permitted to arrest Bashir: under international law, ordinarily Bashir would have immunity from arrest in another state. The question would be: is there anything that removes that immunity which allows the other state to arrest Bashir? My response to this would be, yes. While the UNSC resolution does not oblige non-state parties to surrender him, it permits it because the effect of imposing ICC jurisdiction is to remove the immunity, under the argument in relation to Article 27; but it does not create an obligation. Domestic law would also be relevant. Another participant mentioned the Arrest Warrant Case of the International Court of Justice in which the Court said that there would not be immunities before international criminal courts. The instruments referred to before the Court (and previously mentioned by Dapo Akande) were designed to reflect international law applicable in national courts. The speaker’s response was that the ICJ’s judgment in the Arrest Warrant Case did provide that there was not immunity before certain international criminal tribunals, but it was a very broad and vague statement; it referred to Article 27 of the ICC Statute and of course to the provisions in the Nuremburg Charter and the ICTY Statute. But, that does not answer the point that the instruments in questions were binding on the states with respect to which they were being applied. The ICJ did not say anything about whether an international criminal tribunal would have jurisdiction over non-state parties. What they said almost forecloses any argument before the ICC, because in the ICJ’s view there is no immunity before any international tribunal. There would have been no need for any court to consider whether there was immunity before certain international tribunals if there is no immunity before any international tribunal.