Mugesera is Now in Rwanda

Leon Mugesera has been returned to Rwanda where he can be expected to stand trial for incitement to genocide. His final procedural gasps succeeded on very temporarily in resisting transfer from Canada.
This is the third important recent development regarding transfer or return of genocide suspects to Rwanda to stand trial. In earlier postings on this blog, reference has been made to recent rulings of the Appeals Chamber of the International Criminal Tribunal for Rwanda and of the European Court of Human Rights, both of them favourable to such transfers.
Now, Rwanda faces a great challenge. It must ensure that the accused persons receive fair trials.
Great efforts have gone into building a justice system in Rwanda that is capable of ensuring this. Compared with the justice system I saw when I first visited Rwanda in January 1993, the progress is absolutely incredible. But that doesn't make the challenge any less daunting at this point.
If Rwanda succeeds, it will represent a very important milestone in the delivery of justice and in the struggle against impunity. It needs all of the support and encouragement we can provide at this point.

Thoughts on the Kenya Confirmation Decisions

Last week, Pre-Trial Chamber of the International Criminal Court II issued two decisions in the cases concerning the post-election violence that took place in Kenya in 2008. These decisions ruling on the confirmation of the charges, which is a pre-trial stage in the proceedings governed by article 61 of the Rome Statute. The Pre-Trial Chamber must decide whether there are “substantial grounds” supporting the allegations of the Prosecutor, failing which it does not allow the case to proceed to trial.

In the recent decisions, which concerned six individuals, two of the accused were successful while the other four are set over for trial. Some or all of them may seek permission to appeal the decisions.

A Low Score for the Prosecutor

Succeeding with only four of six accused at this preliminary stage, where the Prosecutor must demonstrate “substantial grounds” but need not satisfy a burden of proof of “preponderance of evidence”, let alone “beyond a reasonable doubt”, is not very impressive. The Prosecutor should be able to assess weak cases before they get to this stage.

In total, four cases have been rejected by the Pre-Trial Chambers at the stage of the confirmation hearing (in addition to the two last week, Abu Garda (Sudan) and Mbarushimana (DRC)). Overall, some fourteen suspects have been subject to confirmation hearings. A score of 10 out of 14 is not very impressive. That’s a failure rate of 29%.

Comparisons with the performance of the ad hoc tribunals are useful in assessing the performance of the Prosecutor of the International Criminal Court. There is no equivalent procedural stage, which might lead one to conclude that the weak cases have to wait to the trial stage to get filtered out. The closest that the ad hoc tribunals come to anything equivalent is the defence motion to dismiss that occurs at the close of the prosecution’s case. Indeed, the Prosecutor of the International Criminal Court has made the same analogy (see para. 68 of Muthaura et al. decision). Dismissal of charges at this stage of the proceedings by the ad hoc tribunals is virtually unknown.

We might expect to see a rate of acquittal at the ad hoc tribunals comparable to the rate of rejection at the confirmation hearing stage. Following this reasoning, the acquittal rate at the ad hoc tribunals should be even higher than 29%, given that at trial the defence need only raise a reasonable doubt, and is in a position to fully challenge the prosecution’s evidence.

But this is not what we see at the International Criminal Tribunal for the former Yugoslavia. By my count, there have been final judgments in 94 cases. Only 13 of these have been acquittals. That is a failure rate for the Prosecutor of the Yugoslavia tribunal of 14%, less than half the equivalent statistic for the confirmation hearing stage at the International Criminal Court.

The Prosecutor of the International Criminal Court may feel that the judges of the Pre-Trial Chamber are too demanding. But all they seem to be doing is weeding out the cases that will lead to acquittals at trial, and it is hard to argue with that. The problem seems to be with the Prosecutor, who is not discerning enough with the cases with which he chooses to proceed. Such a high rate of dismissal of charges at the confirmation hearing stage has many negative consequences, among them: it wastes the time and resources of the Court; it creates false hopes for victims; it causes injustice to the individual accused, who may spend considerable time in custody or otherwise in jeopardy with respect to charges that ultimately are not substantial enough to justify a trial.

The role of defence evidence

            In the two Kenya cases, defence counsel produced a very significant amount of evidence in order to challenge the charges. They relied upon article 61(6) entitles the defence to ‘Challenge the evidence presented by the Prosecutor’ and ‘Present evidence’.

            The Prosecutor takes the position that the Pre-Trial Chamber is to accept the prosecution evidence tendered at the stage of the confirmation hearing as long as it is relevant. ‘It should avoid attempting to resolve contradictions between the Prosecution and Defence evidence, because such resolution is impossible without a full airing of the evidence from both sides and a careful weighing and evaluation of the credibility of the witnesses. That will occur at trial.’ (See para. 67 of Muthaura et al. decision).

If this is indeed the position, it is difficult to understand the interest that the defence would have in producing any evidence at all. There might be occasional cases where the defence would want to put testimony on the record, perhaps out of concern that a witness would die or be otherwise unavailable at trial. But this would be very much the exception rather than the rule.

In the Kenya decisions, the judges reject the Prosecutor’s submission. They say that they undertake a “free assessment of the evidence” regardless of the party that submits it. At various points in the lengthy ruling they consider the evidence submitted by the defence but, in general, it is rejected in favour of the Prosecutor’s evidence.

What is the standard of proof here? On the one hand, according to the Statute the Prosecutor is required to establish “substantial grounds” rather than proof “beyond a reasonable doubt”, which is the standard at the trial stage. But what does that mean for the defence evidence? Presumably it is not enough for the defence to raise a reasonable doubt. In order to succeed at the confirmation hearing, must it succeed in challenging the prosecution evidence on a preponderance of evidence standard? Or must the defence establish its case “beyond a reasonable doubt”? It is unfortunate that the decisions do not provide much clarity here.

The defence evidence is rejected, but we do not entirely understand whether it is because the judges had doubts about its reliability or its relevance, or because it was overpowered by the Prosecutor’s evidence. Apparently, the Prosecutor did not produce any live witnesses and relied entirely upon statements, whereas the defence brought many witnesses to the confirmation hearing. Is the issue of the “quality” of the witnesses irrelevant here?

Perhaps the judges are trying to send a quiet message to the defence that they should not waste their time submitting evidence at the confirmation hearing unless it is truly overpowering. There is a danger that if they open the door too widely to defence evidence at the confirmation hearing, this will force the Prosecutor to produce more evidence as well, and then what should have been a rather brief  preliminary proceeding will turn into a miniature trial.

            There are probably too many different standards of proof in the Rome Statute. The lowest is the “reasonable basis” standard for authorization of an investigation (art. 15). Then we go to “reasonable grounds” for issuance of an arrest warrant (art. 58) followed by “substantial grounds” at the confirmation hearing and “beyond a reasonable doubt” at trial (art. 66).  How can these be distinguished. Well, a “reasonable basis” is lower than “reasonable grounds”. “Substantial grounds” are higher than “reasonable grounds”. It is all very arcane. The lower standards of “reasonable basis” and “reasonable grounds” seem to work because they are applied in uncontested or ex parte proceedings. But at the confirmation hearing, where there may be a robust defence, the mystery of what this standard consists of becomes more serious.

The confirmation hearing is an unprecedented proceeding within the international criminal justice system. The defence is entitled to better guidance as to the value of producing evidence, and the standard it must meet in order to rebuff the prosecution.

Judge Kaul’s Dissent

            As in previous Kenya decisions, Judge Hans-Peter Kaul dissents. His main difficulty with the cases has been expressed in earlier rulings. He considers that crimes against humanity require a nexus with State policy, and he interprets the reference to “State or organizational policy” in article 7(2)(a) of the Statute accordingly. It is a view with which several academic commentators including myself are in agreement.

            There are some interesting thoughts in Judge Kaul’s latest dissent about prosecutorial policy. In particular, he refers to the statement issued by the Prosecutor in 2006 announcing his decision not to proceed with an investigation in Venezuela. To my knowledge, this may be the first time that a judge of the Court has considered the overall policy of the Prosecutor by comparing cases that are actually underway with those where the Prosecutor has chosen to do nothing.

Young Penalists Course in Siracusa

The International Institute of Higher Studies in Criminal Sciences is holding its 12th Specialization Course in International Criminal Law for Young Penalists on "Assessing Patterns of Transnational
Organized Crime, the International Criminal Responsibility of Non-State Actors, and the Effectiveness of the International Enforcement System". The course will take place from May 20th to May 30th and is open to all international graduate law students. It is held in Siracusa, Italy, in beautiful Sicily.
The deadline for application submissions is March 25th, 2012. ISISC will select 60 participants who should have at a minimum a first degree in law, having graduated in the last eight years (between 2004 - 2012), and be 35 years of age or under. Furthermore, the Institute will offer 10 scholarships to applicants from Developing and Less Developed Countries.
All relevant information and the application form are available here. (www.isisc.org). Please do not hesitate to contact ISISC for any questions or concerns you may have at icl-2012@isisc.org.

A Nasty Judgment from the European Court of Human Rights in a refoulement case

Yesterday, the European Court of Human Rights dismissed an application by two individuals, Harkins and Edwards, who were resisting extradition to the United States. The issue of the death penalty was relatively secondary, because diplomatic assurances had been given by the Americans authorities and the Chamber considered these to be satisfactory, enjoying a presumption of good faith.

The heart of the case was the threat that the two men would face a mandatory sentence of life imprisonment without any hope of release on parole if convicted upon return to the United States. In the trade, this is called ‘LWOP’ (‘life without parole’).

Agreeing that this was a very plausible outcome, particularly in the Harkins case, the unanimous Chamber said it was

prepared to accept that while, in principle, matters of appropriate sentencing largely fall outside the scope of Convention (Léger, cited above, § 72), a grossly disproportionate sentence could amount to ill-treatment contrary to Article 3 at the moment of its imposition. However, the Court also considers that the comparative materials set out above demonstrate that “gross disproportionality” is a strict test and, as the Supreme Court of Canada observed in Latimer (see paragraph 73 above), it will only be on “rare and unique occasions” that the test will be met. (para. 133).

According to the Chamber,

193. … the Court notes that he faces a mandatory sentence of life imprisonment without parole, which, as it has indicated, requires greater scrutiny than other forms of life sentence. However, the Court is not persuaded that such a sentence would be grossly disproportionate in his case. Although he was twenty years of age at the time of the alleged offence, he was not a minor. Article 37(a) of the United Nations Convention on the Rights of the Child demonstrates an international consensus against the imposition of life imprisonment without parole on a young defendant who is under the age of eighteen. It would support the view that a sentence imposed on such a defendant would be grossly disproportionate. However, the Court is not persuaded that Article 37(a) demonstrates an international consensus against the imposition of life imprisonment without parole on a young defendant who is over the age of eighteen. Equally, although the applicant has provided a psychiatrist’s report showing him to be suffering from mental health problems, as the Government have observed, that report stops short of diagnosing the applicant with a psychiatric disorder. Therefore, while the Court accepts that the applicant has some mitigating factors, it is not persuaded that the applicant possesses mitigating factors which would indicate a significantly lower level of culpability on his part.

The Court accepts that the sentence which the first applicant faces would be unlikely to be passed for a similar offence committed in the United Kingdom, particularly when there is no felony murder rule in England and Wales. The Court also notes that the Supreme Court of Canada, in Martineau, has found that the rule is contrary to the fundamental principles of justice. Therefore, the Court would not exclude that a sentence imposed after conviction under the felony murder rule could, in a sufficiently exceptional case, amount to a grossly disproportionate sentence. This would be particularly so if the sentence was one of mandatory life imprisonment without parole but the facts of the case involved a killing in respect of which there was no real culpability on the part of the defendant.

140.  Second, as the Court has stated, an Article 3 issue will only arise when it can be shown: (i) that the first applicant’s continued incarceration no longer serves any legitimate penological purpose; and (ii) his sentence is irreducible de facto and de iure. The first applicant has not yet been convicted, still less begun serving his sentence (cf. Kafkaris and Léger, cited above, and Iorgov v. Bulgaria (no. 2), no. 36295/02, 2 September 2010). The Court therefore considers that he has not shown that, upon extradition, his incarceration in the United States would not serve any legitimate penological purpose. Indeed, if he is convicted and given a mandatory life sentence, it may well be that, as the Government have submitted, the point at which his continued incarceration would no longer serve any purpose may never arise. It is still less certain that, if that point were ever reached, the Governor of Florida and the Board of Executive Clemency would refuse to avail themselves of their power to commute the applicant’s sentence (see paragraph 52 above and Kafkaris, cited above, § 98).

Accordingly, the Court does not find that the first applicant has demonstrated that there would be a real risk of treatment reaching the Article 3 threshold as a result of his sentence if he were extradited to the United States. The Court therefore finds that there would be no violation of Article 3 in his case in the event of his extradition.

In a general sense, the Court took the view that issues of disproportionate sentencing do not arise at the moment the sentence is imposed, but much later, when it can be shown that there is no longer any valid penological purpose to continued detention. The problem in an extradition case is that the European Court of Human Rights will no longer be available once the applicants are back in the United States.

The decision includes a discussion of the distinction between inhuman treatment and torture. The Court revisits this old issue, and finds that in the context of extraterritorial application of the Convention the distinction is not of much significance.

The right-wing press in the United Kingdom are ecstatic about this decision, a change from the general pattern of harsh attacks on the European Court

David Scheffer : All The Missing Souls

I’ve been meaning to write about David Scheffer’s book All the Missing Souls since it was issued late last year.

Yesterday’s very favourable book review in the Financial Times by Philippe Sands brings it to the attention of readers here in the UK, and internationally, and prompts me to comment after an unusually lengthy winter break this year.

As would be expected, Philippe Sands is critical of the US policy, but he is also full of respect for David Scheffer’s account. As the first Ambassador at large for War Crimes Issues, David Scheffer was literally at the centre of what is the most fertile period in the development of international criminal law since the Nuremberg Trial. For that reason alone, his book demands attention.

It is full of anecdote, of course, but also a tremendous amount of substance. Since leaving the administration, in January 2001, Professor Scheffer has developed an impressive academic profile. He is a prolific writer on criminal justice topics. His insights into the dynamics of the evolving US policy in international criminal justice are invaluable.

Amongst the many textbooks in international criminal law, David Scheffer’s book is refreshingly different. It makes good reading for specialists and for students, yet it is also highly accessible to a broad public. This is a must acquisition for the international criminal law bookshelf.

BS Watch

Readers of the blog may have seen, from time to time, reference to scurrilous attacks from the blog named ‘UN Watch’.  On Friday, its headline story noted the third anniversary of the Goldstone Report, the colloquial label given to the report of the Commission of Inquiry into the Gaza war.

It gloats over what it calls the retraction by Richard Goldstone of ‘The core charges of the report—that Israel's leadership intentionally plotted to murder Palestinian civilians, and did so from racist motives’. But they were not the 'core charges'. They were actually very secondary and marginal charges in the report, and to my knowledge the only ones on which Richard Goldstone has changed his mind. 

The real core charge is that Israel pursued a strategy that it had developed in Lebanon in 2006 of massive destruction of the civilian infrastructure. The goal was to punish the Palestinians in Gaza for their support of Hamas. I don’t think anyone has come up with a good argument against this conclusion of the report. I suspect that UN Watch would agree that this was the policy being pursued by the Israeli military in Gaza. Probably UN Watch supports such a policy.

Friday’s blog continues: ‘Overnight, anti-Israel intellectuals who had hailed Goldstone as a modern-day saint turned on him with a vengeance, especially those uneasy with their Jewish ancestry, such as Roger Cohen, Richard Falk and William Schabas.’

First, I have never turned on my good friend Richard Goldstone, ‘with a vengeance' or otherwise. I am not ‘anti-Israel’, although I obviously cannot support many of its government’s policies and actions. Nor am I commonly attacked for my Jewish ancestry, with which I am comfortable and proud. Anti-Semitism crops up in unexpected places.

Mugesera Case: Yet Another Twist in the Debate about the Rwandan Justice System

To anyone who has followed the recent history of Rwanda, and particularly those familiar with the case law of the International Criminal Tribunal for Rwanda, the name Leon Mugesera will be well-known. His role in fomenting the climate of anti-Tutsi hatred that led to the 1994 genocide is discussed in several of the judgments, notably the first major ruling of the Tribunal in the Akayesu case.

This is from paragraph 99 of the Akayesu judgment:

…there were other propaganda agents, the most notorious of whom was a certain Léon Mugesera, vice-president of the MRND in Gisenyi Préfecture and lecturer at the National University of Rwanda, who published two pamphlets accusing the Tutsi of planning a genocide of the Hutu. During an MRND meeting in November 1992, the same Léon Mugesera called for the extermination of the Tutsi and the assassination of  Hutu opposed to the President. He made reference to the idea that the Tutsi allegedly came from Ethiopia and, hence, that after they had been killed, they should be thrown into the Rwandan tributaries of the Nile, so that they should return to where they are supposed to have come from. He exhorted his listeners to avoid the error of earlier massacres during which some Tutsi, particularly children, were spared. (references omitted).

Mugesera fled Rwanda prior to the genocide. Through a network of friends and allies, he made his way to Canada and successfully obtained resident status. In 1994, the Canadian government began proceedings to remove him from the country.

There was a long series of decision by immigration courts, culminating in an appeal to the Supreme Court of Canada, that he lost.

In the meantime, he initiated some litigation of his own, amongst other things suing the editor of this blog for defamation, a case he soon chose to abandon once he realised the energy that the lawyers of my former University in Montreal were prepared to devote to fighting the frivolous complaint.

Since the 2005 judgment of the Supreme Court, he has exhausted the remaining procedures available under Canadian law. Finally, after nearly 17 years, the end of his stay in Canada seems to be near.

The arguments about the alleged innocence of his remarks and the purported honesty of his refugee claim have now been rejected decisively and he has no more arguments in that area. His final challenge involves an attack on the Rwanda justice system. Mugesera claims that if returned to Rwanda, as the Canadian government now plans, he will be exposed to serious human rights violations.

This has been a familiar debate in recent years, with a number of related cases before national courts in Europe as well as the so-called Rule 11bis transfer decisions by the International Criminal Tribunal for Rwanda.

It seems that the tide has largely turned. Recently, the European Court of Human Rights rejected a complaint by a Rwandan who argued that if he were to be sent back by Sweden this would constitute refoulement contrary to the European Convention on Human Rights. Also last year, a Trial Chamber of the International Criminal Tribunal for Rwanda declared that improvements in the Rwandan justice system mean it was now acceptable for cases to be transferred there.

A Canadian immigration tribunal reached the same decision in early December, and it was on that basis that the proceedings to remove Mugesera in early January were undertaken.

Last week, a final attempt by Mugesera before the Federal Court of Canada was dismissed.

Then, the United Nations Committee Against Torture intervened with a provisional measures request to the Canadian government asking that deportation be suspended until the Committee can consider the merits. And a judge of the Quebec Superior Court granted a one-week interim injunction against the government.
For some accounts on the case by Canadian-based academics, see Rob Currie's blog and the posting on it by Fannie Lafontaine.  

Canadian public opinion (not to mention Rwandan public opinion) is frustrated by these delays and cannot understand why the proceedings were so protracted. In particular, newspaper editorials have been encouraging the government not to follow the provisional measures request by the Committee Against Torture. See the Globe and Mail and the Montreal Gazette.

Canadian officials have defied such requests in the past, and it will be unfortunate if the legal authority of the Committee Against Torture is further tarnished by the whole business.

Mugesera sued me back in 1997 because I said then that he should be sent back to Rwanda to answer the charges against him. When the University lawyers studied the tapes of my interviews and comments, they noted that I had consistently stated that Mugesera was presumed innocent, but that he should be put on trial in Rwanda for the serious charges against him. I haven’t changed my position by one iota.

I think his days in Canada are clearly nearing an end, although in this case one has learned to be prepared for the unexpected. We are still waiting for the Appeals Chamber of the International Criminal Tribunal for Rwanda to rule definitively on the transfer cases. Eventually, and hopefully sooner rather than later, Rwanda will be given a real opportunity to demonstrate that it can deliver fair trials. If it succeeds, an important chapter in attempts to address the 1994 genocide will be closed.

***

A postscript. In another Rwanda-related development, last week a French commission of inquiry into the famous plane crash which marks the starting point of the genocide concluded that the rocket that fired the missile came from the government military base close to Kigali airport. The report largely discredits the findings of French judge Jean-Louis Bruguière, who had promoted the thesis that the plane was shot down by RPF forces under orders from Paul Kagame. With last week’s report, that theory has lost a huge amount of traction. The Bruguière report, which was often cited by genocide deniers, is now largely discredited, and by an authoritative report from France itself.

See Linda Melvern’s column on this in The Guardian.

International Criminal Justice and its Relationship with National Courts

Two recent developments highlight some of the interesting relationships between international criminal justice institutions and national legal systems.

Yesterday, a Dutch Court ruled that three witnesses who had travelled to The Hague to testify in the Katanga trial have the right to apply for refugee status in the Netherlands. The ruling reverses an earlier decision made by the Dutch Immigration and Naturalization Service but confirms decisions issued by the Trial Chamber of the International Criminal Court released a few months ago and discussed on this blog.

Meanwhile, in Paris, the French government has refused to cooperate with the International Criminal Tribunal for the former Yugoslavia in its attempts to arrest Florence Hartmann, who has been convicted of contempt of court. The French authorities took the view that they are required by virtue of the Security Council resolution to cooperate in apprehending persons suspected of committing international crimes but that they have no duty as regards administrative matters like contempt. As permanent members of the Security Council and therefore godfathers of the Tribunal, I suppose they ought to know.

According to the New York Times, a spokesman for the Foreign Ministry in Paris, said that it would be impossible for France to fulfill the request because judicial agreements between France and the Tribunal do not apply to offenses sich as contempt of court.

What is the next step? I suppose the Tribunal should report France to the Security Council for non-compliance. I wonder what will happen then.

Obama, Medvedev and Hu Jintao may be Prosecuted by International Criminal Court, Pre-Trial Chamber Concludes

Pre-Trial Chamber I of the International Criminal Court issued a ruling earlier this week that has the consequence of stripping Obama, Medvedev and Hu Jintao of their immunity before the Court. This would mean, for example, that charges could be introduced against President Obama for the conduct of US forces in Afghanistan (which is a State Party to the Rome Statute) in the same way as they have been introduced against President Bashir for the conduct of Sudanese forces in Darfur (where jurisdiction results from a Security Council).

The decision does not of course mention Obama, Medvedev and Hu Jintao. It concerns the possible immunity of President Bashir.

Over seven pages, in a decision condemning Malawi for its failure to arrest Bashir, the Pre-Trial Chamber reviews a number of authorities. The decision reads like a lawyer’s brief, in that it is entirely one-sided. The Chamber does not address the difficulties or the arguments that go against its position. This is regrettable, but perhaps to be expected when it is a decision is issued in the absence of representations from the defence. Can it be a wise practice for the Pre-Trial Chamber to attempt to address serious and difficult matters of international law in the absence of detailed argument. Under such circumstances, shouldn’t a Chamber at least make an effort to confront the inconvenient arguments that stand in its way.

For example, it reaches the rather trite conclusion that there can be no immunity of a head of state before an ‘international tribunal’. But nowhere does it define an international tribunal or suggest how one is to be identified. It may well be that there are various types of international tribunal, and that rules of immunity apply differently depending upon the type of tribunal. In the famous Arrest Warrant case, the International Court of Justice said that immunity would not be available before ‘certain international criminal courts, where they have jurisdiction’. By implication, the International Court of Justice was saying that immunity would remain before ‘certain international criminal courts’. The Pre-Trial Chamber’s statement is much more absolute.

The issue of immunity was already addressed by the Pre-Trial Chamber that issued the arrest warrant against Bashir in March 2009. It is not apparent why this differently constituted Pre-Trial Chamber felt compelled to issue a new opinion, presenting the matter somewhat differently. Perhaps, in another year, yet another Pre-Trial Chamber, with different members, will issue yet another ex parte decision on the matter.

The legal argument of the Pre-Trial Chamber this time around is not very compelling. It cites authority from the 1919 Commission on Responsibilities but without noting that this was not the position taken by the Paris Peace Conference and is not reflected in the Treaty of Versailles. The Treaty of Versailles does indeed propose to try the German Emperor, in art. 227, but with the consent of Germany. That is why it is in the Treaty. If Germany’s consent were no required for the victors to try its head of state, then the proposed international tribunal would have been found in a separate agreement between the victors alone.

Then the Pre-Trial Chamber turns to the post-second world war tribunals. The citations do not refer to the issue of head of state immunity but rather to the defence of official capacity. There is a distinction. This can be seen in the Rome Statute itself, where article 27(1) deals with official capacity and article 27(2) deals with immunity.

I could go on. This is a complicated question. Much has been written. The Chamber does not refer to any of the thoughtful academic contributions on this subject, by scholars like Dapo Akande and Paola Gaeta.

There is an argument – although it is not without its own problems – by which there is no immunity for the likes of Bashir before the International Criminal Court because this is implied by the Security Council resolution referring Sudan to the Court. That, at least, is a more nuanced and subtle proposition. It would mean that Obama, Medvedev and Hu would continue to enjoy immunity from the Court except in the unlikely event of a Security Council referral that concerned them. In the final sentence of its opinion, the Pre-Trial Chamber notes that jurisdiction results from a Security Council referral, but it does not indicate why this might be significant.

But the Pre-Trial Chamber has gone much further in this recent ruling. Indeed, it seems to take the position that there is no immunity given that the International Criminal Court is an international tribunal. Presumably therefore article 27(2) is entirely superfluous.

Authority cited by the Pre-Trial Chamber includes some simplistic rulings from the ad hoc tribunals. But the ad hoc tribunals can claim to have been the offspring of the Security Council. Immunity would not be applicable there because the Tribunal is not created by a State but rather by the international community acting collectively.

The reason that the same analysis cannot apply to the International Criminal Court is that it is created by the 120 States Parties. The International Criminal Court is a treaty-based court. In principle, the Rome Statute can only bind member states. Article 27(2) removes immunities from heads of state. This only applies to heads of state of States Parties and cannot be invoked against heads of state of non-party States.

Some will argue that with 120 States Parties, the Court has reached a critical mass whereby it can really claim a degree of universality. This is not too convincing an argument either. The Court may have more than half the States in the world, but it does not represent half the population of the world. Vanuatu (population 250,000), the latest State to join the Court, did not make much impact in this respect.

If there is no immunity before any international criminal court, as the Pre-Trial Chamber seems to hold, would it be possible for Nauru, Monaco, Andorra, Taiwan and the Palestinian Authority to join together and create an international criminal tribunal where the President of the United States would be stripped of the immunity that he would otherwise possess before the national courts of those countries?

The immunity of heads of states results from customary international law. They cannot be deprived of it because other States so decide, whether they do this by their domestic law or by treaty. It is precisely for that reason that article 27(2) was included in the Statute. In the absence of article 27(2), even States Parties would be able to invoke immunity.

It would be very interesting to hear the position of the United States, Russia and China on this point, because it concerns them and their heads of State. In the 2005 report on Darfur, the late Antonio Cassese suggested that rulings by international criminal tribunals on points of law that are not subsequently contested by States may become accepted as custom. So it might be useful for the big powers that have not joined the Court to make their views on this known. I suspect that they agree with Bashir, and not with the Pre-Trial Chamber.

For more on this, see also Dov Jacob's blog.

Africa, Fatou Bensouda and the International Criminal Court

Warmest congratulations to Fatou Bensouda, of The Gambia, who has just been elected Prosecutor of the International Criminal Court. This is a stellar achievement for Ms Bensouda, who has many years of experience in international criminal justice, including eight as Deputy-Prosecutor of the Court itself.

Her election is being heralded as a gesture of reconciliation to African states by the Court. Certainly, she will be able to articulate the Court’s policies and speak to the people of Africa in a sensitive and appropriate way, something that regrettably cannot be said of her predecessor, Luis Moreno-Ocampo. Her comments always seem to be measured and thoughtful. Above all, those to whom she speaks sense that she respects them and takes their own views and sensitivities into account.

African States initially welcomed the Court, and ratified the Rome Statute in large, impressive numbers.  But in more recent years, Africa has turned lukewarm towards the institution. This is sometimes explained by the Court’s exclusive focus on conflicts in Africa. But Africans were keen on the Court precisely because they expected it to address their own troubled situations, and it never made sense that they would dislike the Court because it had too many African cases.

The root of the problem is not an obsession with Africa but rather a slow but perceptive shift of the Court away from the apparent independence shown in its early years towards a rather compliant relationship with the Security Council and the great powers.

The strategic choices made by the Prosecutor placed it within the comfort zone of the United States and its close allies. And as the Court increasingly looked like a piece of the larger international system, dominated as it is by powerful states from the North, Africa’s ardour for the institution has waned.

For example, when challenged by the peace and justice dialectic, the Prosecutor has suggested that while justice is the responsibility of the Court, peace falls to the Security Council. The African Union indicated its discontent with this perspective by a proposed amendment to the Rome Statute acknowledging a role for the General Assembly, where Africa’s role is more entrenched than in the Security Council, which has no permanent African members. The amendment was not realistic, but it underscored the problem. It is better for the Court to offer a comprehensive answer that balances peace and justice rather than to suggest it is part of a tag team, where the other player is the Security Council.

All of this is to say that while Fatou Bensouda will undoubtedly be a much better interlocutor with African States than Luis Moreno-Ocampo, the rift can only be healed by changes in policy. She (and the Court) will only regain the confidence of African states by courageous policy decisions. She deserves all of our encouragement in this difficult challenge.

There is an interesting discussion of her appointment on Al Jazeera that includes our own eloquent Joseph Powderly, a doctoral student at the Irish Centre for Human Rights and now a young professor at Leiden University in The Hague.