New Decisionscand and a Whiff of Crisis at the International Criminal Court

Two new and significant rulings were issued this week by the International Criminal Court. Trial Chamber II dismissed a challenge to admissibility by the defence in Katanga et al.: http://www2.icc-cpi.int/iccdocs/doc/doc700134.pdf. It is currently available in French only, as are most of the decisions of the Trial Chamber to date. The Chamber finds that challenges to admissibility pursuant to article 19(4) must be made prior to the confirmation hearing, unless they concern the ne bis in idem issue. The Chamber provides what is probably the most developed attempt at interpretation of a provision in the case law of the Court to date.
The Chamber also rules that the ‘inactivity’ of the Democratic Republic of Congo is not inconsistent with the duty on States to bring perpetrators to justice which is set out in the preamble. The Chamber says that an inactive State that in effect defers prosecution to the Court rather than undertake it on its own is nevertheless in compliance with its obligations, providing that it transfer the person promptly to the Court and otherwise cooperates. This idea was first advanced, but only summarily, in Pre-Trial Chamber I’s decision in early 2006 on issuance of the Lubanga arrest warrant.
The other decision is the confirmation of the charges in Bemba: http://www.icc-cpi.int/iccdocs/doc/doc699541.pdf. It has detailed and fascinating developments on the definitions of crimes and on the concept of command responsibility, which is discussed for the first time in the case law of the Court. It is particularly satisfying to see the reference, in footnote 446, to an article by one of our distinguished doctoral graduates, Mohamed Elewa Bader, who is now a lecturer at Brunel University in London: M. E. Badar, 'The Mental Element in the Rome Statute of the International Criminal Court: A Commentary from a Comparative Law Perspective', 19 Criminal Law Forum p. 473.
at pp. 475-476.
I was in The Hague last week and picked up much discussion about what has become a real crisis for the Court concerning the composition of its Appeals Chamber. In March, following the swearing in of the five new judges, the plenary agreed upon the new composition of the Appeals Chamber, ‘elevating’ two judges from Pre-Trial Chamber I. There was a problem with this that was obvious to everyone: because the two judges had been sitting for several years on the Pre-Trial Chamber, they were ‘contaminated’ with respect to cases and situations that were already proceeding. In effect, they could only hear appeals concerning matters before the other Pre-Trial Chamber. It didn’t seem to make much sense at a practical level, and we can only speculate as to why this was done.
I was told that the Committee on Budget and Finance and the Assembly of States Parties both reacted with letters to the Court asking it to reconsider the decision. So the plenary of judges met again last Monday. They voted, by nine to seven, not to change their original decision. The two judges who were named to the Appeals Chamber voted and, presumably, made up the majority. Without them, the vote would have been seven to seven.
This entire business is not a healthy development at the Court. It reflects a group of judges who appear themselves to be divided in a way that cannot contribute to the spirit of collegiality that the Court requires in these difficult times. On the outside, it will increase frustration by the States that make up the Assembly of States Parties. At some point, if their requests to the Court are dismissed as this one was, they will be tempted to try more draconian measures, such as denial of funding or even threats to withdraw from the Statute altogether.
None of this is visible on the website, of course, but it is an open secret in The Hague. If you want to learn more about it, you only need to hang out in the bars and restaurants of the city for a few days, or better still, the Court’s own cafeteria.