Nice Work, If You Can Get It

Today, the Appeals Chamber of the International Criminal Court released its long-awaited decision on the arrest warrant application in the case of President Al-Bashir of Sudan. Last March, a Pre-Trial Chamber issued an arrest warrant, for crimes against humanity and war crimes, but denied the charge of genocide. On the appeal of the Prosecutor, it was held that the Pre-Trial Chamber imposed too rigorous a standard and the case has been returned for it to rule again.
This is all much ado about nothing. Given the close overlap between genocide and crimes against humanity, even with the existing arrest warrant the Prosecutor would be unconstrained in producing relevant evidence that might lead to a conclusion that genocide was taking place. The judges would be relatively free to add a conviction for genocide, if they thought it appropriate. What the Pre-Trial Chamber was doing, however, was giving the Prosecutor some helpful guidance: don’t be obsessed about trying to establish genocide, because the case looks frail.
Such interlocutory decisions of the International Criminal Court require leave to appeal. In the Bashir arrest warrant case, this was granted by the Pre-Trial Chamber on 24 June 2009. It has taken the Appeals Chamber more than seven months to rule on this rather simple issue. It cannot, in fact, have been very complicated, because today’s judgment is only 18 pages long, most of which consists of a recital of the procedural history and the positions taken by the parties. There are really only 5 pages of substance in the ruling. And the original justification for the interlocutory appeal is to obtain an ‘immediate resolution’ of the issue (see article 82).
Why does it take so long? It can’t be because the judges of the Appeals Chamber are overworked. I did a review of the output of the Appeals Chamber over the past twelve months. I’ve left out the essentially administrative decisions, involving selection of a presiding judge, authorisation to participate and other similar matters, all of them ancillary to ‘real’ appeals. Here is the result:

• Lubanga, legal characterisation decision, 12/9/09
  43 pp., of which 14 pp. of substance
  
• Bashir, arrest warrant decision, 3/2/10
  18 pp, of which 5 pp of substance
  
• Bashir, decision on victim participation, 28/1/10
  7 pp., of which 2 pp. of substance
  
• Bashir, application for participation, 9/11//09
  8 pp., of which 2 of substance
  
• Katanga, admissibility decision, 25/9/09
  44 pp., of which 16 pp of substance
  
• Bemba, interim release decision, 2/12/09
  33 pp, of which 15 pp of substance
  
• Bemba, amicus curiae decision, 9/11/09
  7 pp., of which 1 p. of substance
  
• Bemba, victim participation, 20/10/09
  10 pp., of which 5 pp. of substance
  
• Bemba, decision on suspensive effect, 3/9/09
  8 pp., of which 4 pp. of substance
  
• Kony et al., admissibility, 16/9/09
  35 pp., of which 15 pp. of substance
  

To this should be added two individual or dissenting opinions, both of them penned by Judge Song, totalling less than ten pages.
When I say ‘of substance’, this is because most of the decisions consist of a review of the proceedings and the positions of the parties, something that a second-year law student or a good intern could prepare.
So, that means that the total output of the five judge of the Appeals Chamber, with their legal assistants, for a twelve-month period, is 213 pages of decisions, of which 79 pages are of real substance. Each one of our LLM students in the programme at the Irish Centre for Human Rights has to produce more in order to get their degree!
One might also look at the transcripts of proceedings before the Appeals Chamber. Based on the Court’s website, it would seem that the Appeals Chamber held five days of hearings over the past twelve months.
Four of the ten significant Appeals Chamber decisions of the past twelve months involve accused persons who have not been apprehended and are not in custody!
Let me be clear that I am not blaming the judges of the Appeals Chamber for this state of affairs. They are doing their jobs. They can only hear the appeals that come to them from the Trial and Pre-Trial Chambers, with the exception of the cases they must hear as of right (over the past year, there were two such appeals, one of them involving defendants not in custody).
In the more than six years since the Appeals Chamber began functioning full time there have been, of course, no appeals on the merits, because no trial has been completed. It seems likely that over the next four to five years there will probably be no more than four appeals on the merits. International human rights law only requires an appeal from a guilty verdict. It is hard to justify a full-time Appeals Chamber, as this record indicates. Would it not make more sense to have a stand-by Appeals Chamber, whose judges might tear themselves away from other pursuits to manage the five days of hearings a year and to review the 70 pages of substantive judgments?
We could also consider limiting further or even eliminating entirely the practice of interlocutory appeals. Are they really necessary? Perhaps the paucity of output from the Appeals Chamber is simply an indication of how unimportant such interlocutory appeals really are. If they were really so necessary, we would expect the case law of the Appeals Chamber to be more substantial and more significant.
Most national criminal justice systems rarely if ever see an interlocutory appeal in criminal trials. They delay the proceedings, and they may prove to be of no relevance if the accused is ultimately acquitted. Why not wait for the verdict?
Take the Bashir arrest warrant as an example. To my knowledge, even the ad hoc tribunals have never had appeals from the issuance of an arrest warrant or indictment. There, the judge rules on the matter and if the Prosecutor is unhappy, too bad. We move on. At the International Criminal Court, on the other hand, seven months are consumed deliberating on the matter and then drafting a rather laconic opinion.
As the Gershwin tune goes, ‘nice work if you can get it’!