Pre-Trial Chamber Research Articles

The Prosecutor’s Request Concerning the Rohingya Deportation to Bangladesh: Certain Procedural Questions

AbstractOn 9 April 2018, the Prosecutor of the International Criminal Court filed a request seeking the composition of a Pre-Trial Chamber, in order to decide whether the Court has territorial jurisdiction over the Rohingya deportation from Myanmar to Bangladesh as a crime against humanity. This filing is a first for the Court on at least two fronts; it is the first time the Prosecutor has asked the Court to interpret Article 12(2)(a) and apply qualified territoriality; it is also the first time the Prosecutor has asked for a ruling on jurisdiction under Article 19(3).This study explores certain procedural questions emerging from this request, such as the Court’s authority to decide while its jurisdiction is ‘dormant’; the function of Article 19(3) within the Rome Statute’s overall system concerning jurisdictional determinations; issuing a decision on jurisdiction, while avoiding prejudice to subsequent proceedings and without rendering meaningless the right to challenge jurisdiction under Article 19(2) of the Statute. The article accepts that the request is a step in the right direction, as it signals the Prosecutor’s determination to investigate the Rohingya crisis. However, the manner and timing of its presentation give rise to plausible claims of incompatibility with the Court’s procedural framework. Arguably, the Court may well instruct the Prosecutor to assume the risk of wasting precious resources and proceed with further investigations, pending the final determination of the jurisdictional question at a later stage.

The Expressive Nature of Law: What We Learn from Conjugal Slavery to Forced Marriage in International Criminal Law

The March 2016 Confirmation of Charges Decision of the Pre-Trial Chamber of the International Criminal Court in Prosecutor v. Dominic Ongwen characterized the practice of forced conjugal association as the crime against humanity of ‘other inhumane acts’. This decision of the Pre-Trial Chamber comes amidst an unsettled jurisprudence on the legal characterization of the practice of forced conjugal association. The unsettled nature of the jurisprudence has led to inconsistencies in the legal characterization of forced conjugal association as either forced marriage as an ‘other inhumane act’ or sexual slavery, a variant of the general rubric of slavery. Accordingly, this article analyses the expressive effects of the labelling by contemporary international criminal courts and tribunals of forced conjugal association as either forced marriage as an ‘other inhumane act’ or slavery.

Making Invisible Children Visible: An Appraisal of the Lubanga Decision

In 2012, the International Criminal Court (ICC) delivered decisions concerning the atrocities perpetrated by Thomas Lubanga Dyilo, a former rebel leader active in the Ituri Province of the Democratic Republic of Congo (DRC). ICC’s Pre-trial Chamber I accused Thomas Lubanga Dyilo of being co-perpetrator of the crime of enlisting and conscripting children under the age of 15 years old into his army and using them to participate in hostile activities, which amounted to three counts under two different enumerated war crimes. As the first case adjudicated by the ICC, it not only addressed the human rights crisis which threatens children in the DRC, but also created a legal precedence for the charge of war crime and the mode of responsibility. The decisions of The Prosecutor v. Thomas Lubanga Dyilo established a jurisprudential milestone for international criminal law and stressed some challenges that the ICC will have to face in making future decisions. Taking Lubanga’s ICC trial as its premise, this essay addresses issues pertaining to child soldiers. First, the history of child soldiering in the DRC will be examined by exploring the background of the Lubanga case, including the social context of the conflicts in the DRC. Second, the circumstances of the case and the legal reasoning behind the decision will be summarized, specifically highlighting the legal controversies surrounding the ruling and the establishment of a reparation system for child soldiers involved in the case. Finally, the criticisms and influence of the Lubanga decision will be assessed.

Discretion and the Gravity of Situations at the International Criminal Court

This article offers a new perspective on the gravity notion in Article 17(1)(d) of the Statute. It demonstrates that it is impossible to determine gravity to ‘exacting legal requirements’, as the Pre-Trial Chamber in the situation of the registered vessels of the Union of the Comoros, Greece and Cambodia found. Instead, the Prosecutor is equipped with some ‘interpretative discretion’ that allows adjustment to the factually diverse situations that the International Criminal Court (icc) is confronted with. This form of discretion, however, is distinct from those procedural discretionary processes that have to be used to select which situations to investigate. Interpretative discretion nevertheless requires as much consistency as possible. As pathways to achieve that, this article challenges the concept of situational gravity. It further proposes to exclude any perpetrator-based element in the gravity assessment to harmonise the interpretation of gravity for potential and real cases before the icc.

Prosecutor v. Al-Bashir

On July 6, 2017, Pre-Trial Chamber II of the International Criminal Court (the Court or ICC)—composed of Judges Tarfusser, Perrin de Brichambaut, and Chung—held that South Africa violated the Rome Statute of the ICC (Rome Statute) by failing to arrest and surrender to the Court President Omar Al-Bashir of Sudan when he visited the country in June 2015. However, the Court did not refer the matter to the ICC Assembly of States Parties (ASP) or the United Nations Security Council (UNSC) pursuant to Article 87(7) of the Rome Statute. The decision added South Africa to a list of ICC state parties that have failed in their Rome Statute obligations with respect to the incumbent head of state of Sudan. It also marked the first time that the ICC Office of the Prosecutor (OTP), all ICC states parties, and the United Nations (UN) were invited to present their views and argue fully what is perhaps the most legally contentious and politically sensitive issue that the ICC has faced in its history.

International Criminal Court Prosecutor Recommends Investigation of Potential War Crimes in Afghanistan, Including Actions by U.S. Military and Central Intelligence Agency

On November 14, 2016, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) released its annual Report on Preliminary Examination Activities (the Report). The Report contained the OTP's updates on preliminary examinations of several situations, including in Afghanistan. Of particular note, the OTP announced that it had identified a reasonable basis to seek Pre-Trial Chamber authorization for an investigation into allegations of war crimes committed by the United States—primarily from 2003 to 2004, but in some cases as recently as December 2014.

The Scope of Appeal on Complementarity Issues before the icc

On 27 May 2015, the Appeals Chamber of the International Criminal Court (icc) issued a judgment on the appeal of Côte d’Ivoire against the decision of Pre-Trial Chamber i of 11 December 2014 entitled “Decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo”. As a result of this decision, the path to prosecute Simone Gbagbo lies open. The Appeals Chamber confirmed the opinion expressed by the Pre-Trial Chamber that there were no obstacles in the form of national prosecutions which would exclude the icc’s jurisdiction pursuant to the principle of complementarity. This judgment is not only important from the point of view that the icc has found no basis to find the case inadmissible on the grounds of lack of complementarity, but even more so because of the procedural issues at stake. In this decision, solutions can be found that are crucial with regard to the scope and methods of appellate review before the icc.

Everything Is Relative, Even Gravity

In 2014, the Office of the Prosecutor of the International Criminal Court found that war crimes allegedly committed during the 2010 interception and boarding of the Comorian-registered Mavi Marmara , off the coast of Gaza, were of insufficient gravity to initiate an investigation. The Union of the Comoros sought review of this decision by Pre-Trial Chamber I, which concluded that the gravity evaluation was incorrect and requested the Prosecutor to reconsider her decision. This essay explores the two approaches taken to gravity assessment, and advances an alternative view based on the need to take into account the relevant factual circumstances — in this case, crimes aboard a vessel.

Head of State Immunity and the Rome Statute: A Critique of the ptc’s Malawi and drc Decisions

The scope and effect of the Head of State immunity doctrine before the International Criminal Court has prompted much discussion following the 2011 decision of the first Pre-Trial Chamber concerning the immunity of serving Sudanese President, Omar Al Bashir. The ptcI held that, as a matter of customary international law, there existed an exception to Head of State immunity where such official is sought by an international court with jurisdiction, here the icc. In an apparent retreat, a differently constituted ptc in 2014 based the inapplicability of such immunity on the terms of Security Council Resolution 1593. Using the 2011 and 2014 ptc decisions as a critical lens, and drawing upon recent material, this article assesses the proper application of Head of State immunity under Article 98(1) of the Rome Statute.

The ‘Great Escape’: In Pursuit of President Al Bashir in South Africa

In 2008 the first Chief Prosecutor of the International Criminal Court (‘the Court’ or ‘ICC’) Luis Moreno Ocampo, had shifted his prosecutorial strategy with regard to the situation in Sudan by deciding to pursue the serving President of Sudan, Omar al Bashir, whereas before, his strategy had been to request the Pre-Trial Chamber to issue summons for persons deemed to be mid-level individuals in the Khartoum government. Acting on that referral, the Prosecutor initiated investigations into the situation in Darfur beginning June 2005. On 14 July 2008, the Prosecutor filed an application requesting the Pre-Trial Chamber to issue a warrant of arrest against President Bashir, which was granted on 4 March 2009. Subsequently, warrants of arrest were issued for Al Bashir on 4 March 2009 and on 12 July 2010, with the second warrant being issued to reflect the inclusion of the charge of genocide in the indictment. This article examines how this "Great Escape", on the light of the last events.

Context at the International Criminal Court

The evolution of international criminal law leading to a permanent International Criminal Court has endeavoured to assert jurisdiction over the most serious crimes of international concern. However, the increasingly cross-border nature of modern conflict perpetrated by quasi-governmental and rebel forces in addition to the lack of universality in adopting the Rome Statute have created jurisdictional gaps where attacks that ought to fall within the ICC’s jurisdiction do not. In this article, I propose a contextual approach to jurisdiction normatively to be adopted by the Court’s Office of the Prosecutor and Pre-Trial Chamber in investigating and eventually prosecuting crimes under the Rome Statute. Under this contextual approach, I contend that both the Prosecutor and Pre-Trial Chamber are able to consider evidence outside the traditional notions of territorial and temporal jurisdiction to conceptualize a conflict in its entirety. The totality of cross-border and inter-temporal evidence should be considered when deciding whether to investigate attacks that the Prosecutor has a reasonable basis to believe fall within the Court’s jurisdiction. Adopting a contextual approach honors the Rome Statute’s current procedural and textual framework. Procedurally, the multi-step jurisdictional framework, the “Funnel Approach,” — beginning with the preliminary examination of a situation and proceeding to the arrest warrant for an accused — provides flexibility to admit extra-jurisdictional evidence. Textually, the open-ended ‘gravity’ threshold does not limit the Prosecutor to considering evidence within the Rome Statute’s territorial or temporal limitations. The argument for considering an expansive contextual approach when deciding whether to assert jurisdiction was recently put forth by Comoros pursuant to the Gaza Flotilla Raid. Nonetheless, there are examples in both the ad hoc tribunals and the ICC of information considered outside the Rome Statute’s strict jurisdictional limitations. By adopting a policy of expansive jurisdiction at the preliminary examination and investigation stages, the Court will aptly fill the impunity gap. This approach is not without its limitations and potential criticisms including a conflict with state sovereignty, a potential tendency to (further) politicize the Prosecutor’s role and that of the Pre-Trial Chamber and a penchant for ambiguous jurisdictional determinations.

Squaring the Circle?

Answering the question of whether international law prohibits sexual violence by armed groups against child soldiers in their own ranks should be straightforward: it is prohibited. However, as seen in recent cases before the International Criminal Court (ICC), this is not necessarily the case. The present article critically discusses two approaches suggested in ICC jurisprudence, namely prosecuting sexual violence against children as constitutive of the war crime of ‘using [children] to participate actively in hostilities’ (Article 8(2)(e)(vii) of the ICC Statute), or directly as the war crime of ‘committing rape [or] sexual slavery’ (Article 8(2)(e)(vi) of the ICC Statute). First, it is shown that prosecuting sexual violence under the crime of using children to participate actively in hostilities is unconvincing. Abusing children for sexual purposes does not fall under the scope of active participation in hostilities. If it did, this could have the unintended consequence of depriving children of their civilian status and protection under other provisions of the ICC Statute and international humanitarian law (IHL). Second, it is argued that in the Ntaganda case the Pre-Trial Chamber (PTC) circumvented the question of whether and to what extent children may generally lose their civilian status and protection under IHL if they become member of a party’s armed forces. If children join armed groups or armed forces, the questions arise whether IHL addresses intra-party violence, and under what conditions such violence can be prosecuted as a war crime in non-international armed conflicts.

Arrest Warrants at the International Criminal Court: Reasonable Suspicion or Reasonable Grounds to Believe?

Pre-trial detention is not advance punishment and the deprivation of liberty should only occur if necessary in the interests of justice. Striving to achieve this objective, Article 58 of the Rome Statute dictates that an arrest warrant shall be issued if there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the court. The Pre-Trial Chamber has over the years relied on the reasonable suspicion threshold sourced from the European Convention on Human Rights (echr) as an elucidation of the reasonable belief standard. It is argued that the reliance on echr is misplaced in the context of the evidentiary thresholds present in the Rome Statue. Textually, reasonable belief is a higher standard than reasonable suspicion. Instead, it is submitted that the Court should rely on the prima facie case jurisprudence from the icty to interpret the threshold for Article 58.

Escape from Johannesburg?

The June 2015 visit of Sudanese President Al-Bashir to South Africa captured not only the legal community’s attention, but the attention of the entire world. For a brief moment, it appeared that he might have to face the serious accusations levelled against him by the International Criminal Court (‘ICC’) in The Hague. However, that was not (yet) to be. This paper provides a step-by-step account of the relevant events relating to President Al-Bashir’s visit as well the explanation offered by the South African government of how it was that President Al-Bashir was able to leave the country in violation of an interim court order. In addition, it considers the written judgment of the North Gauteng High Court of South Africa – holding that President Al-Bashir was not protected from arrest by virtue of Head of State immunity. On that matter, whilst the judgment was convincing in its rejection of the weak arguments presented by the State, its consideration of Head of State immunity – a matter not directly argued by the State – suffers from a lack of clarity. Lastly, this paper examines the position articulated by ICC Pre-Trial Chamber II on the issue of President Al-Bashir’s Head of State immunity: that it was implicitly removed via the text of UN Security Council Resolution 1593 (2005) which referred the Darfur situation to the ICC. It does so in light of the European Court of Human Right’s pronouncement in Al-Jedda: that if the UN Security Council, pursuant to its resolutions, intended for States to act in a manner that would otherwise be inconsistent with their international obligations (in that case, international human rights law) then it would have used clear and explicit language to do so.

The Flotilla Case before the icc: The Need to Do Justice While Keeping Heaven Intact

This article analyses the decision of the icc Pre-Trial Chamber of 16 July 2015 in which it requested the Prosecutor to reconsider its decision not to initiate an investigation into the situation of the registered vessels of the Union of the Comoros, Greece and Cambodia. In 2010, the Israeli Defense Forces (idf) had intercepted a humanitarian aid flotilla that was trying to breach one of its naval blockades. The Prosecutor deemed the case of insufficient gravity to initiate an investigation. By requesting the Prosecutor to reconsider its decision, the Pre-Trial Chamber created a precedent vis-à-vis the boundaries of prosecutorial discretion. This article addresses the test of Article 53(1) icc Statute and inquires whether the Pre-Trial Chamber applied a correct standard of review. Whilst concluding that the Chamber erred in this standard, the authors introduce a standard of review that anticipates the interrelationship between prosecutorial discretion and judicial review.

The Implications of the Visit of Al Bashir to South Africa for International and Domestic Law

The article examines whether the North-Gauteng High Court in South Africa came to the right conclusion, both in terms of the applicable international and domestic law, in its decision of 15 June 2015 concerning Al Bashir. As will be illustrated below, the international law assessment turns on one’s interpretation of the inter-relationship between articles 27(2) and 98(1) of the ICC Statute, as well UNSC Resolution 1593 (2005). This analysis will inter alia make reference to the ICC Pre-Trial Chamber II decision of 14 April 2014 against the Democratic Republic of Congo (‘DRC’). The circumstances of that decision were very similar to the one against South Africa. It resulted from a visit by Al-Bashir to the DRC in 2014, in order to attend a meeting of the Common Market for Eastern and Southern Africa (‘COMESA’). The DRC, a state party to the ICC Statute, failed to comply with a request for arrest and surrender of Al Bashir to the ICC. It justified its position by relying on the AU decision not to surrender any sitting head of state to the ICC. The national law assessment turns on the status of the Implementation Act and the host-state agreement in the domestic legal order, as well as the requirement in section 233 of the Constitution of the Republic of South Africa, 1996 (‘Constitution’) that domestic law has to be interpreted in an accordance with international law as far as reasonably possible. The role of interpretation is of particular importance when determining the impact of UNSC 1593 (2005) and the Pre-Trial Chamber II decision against South Africa within the domestic legal order.

The ICC Judicial Finding on Non-cooperation Against the DRC and No Immunity for Al-Bashir Based on UNSC Resolution 1593

This article assesses, as unconvincing, the various criticisms raised by Pre-Trial Chamber II (PTC II) in its judicial finding on non-compliance by the Democratic Republic of Congo (DRC), after the International Criminal Court (ICC) state party failed to arrest and surrender the President of Sudan during a visit in the country in 2014. This Chamber has been reproached for the nonchalance with which it has abandoned the custom-based approach followed by Pre-Trial Chamber I in its previous Malawi and Chad decisions and for the consequent continuing uncertainty it has raised about the correct interpretation of Article 98(1) in relation to Article 27(2), customary international law and Security Council (SC) Resolution 1593. The article argues that the conclusion reached by PTC II that no impediment exists at the horizontal level between DRC and Sudan in respect of the execution of the 2009 and 2010 Court requests to arrest and surrender Al-Bashir, is correct. It contends that the Court cannot be blamed for having decided finally to turn to the most convincing approach to the issue of immunity of officials of states not parties to the Statute. Far from having resorted to an ‘implausible’ reading of Resolution 1593, the Chamber’s conclusion that Sudan should be treated similarly to a party to the ICC Statute, not by virtue of its consent, but by the compulsory nature of SC power under Chapter VII of the United Nations Charter, is supported by the general interpretative principles applicable to SC resolutions and by the collective intent of the SC to demand justice from the International Criminal Court. The Chamber’s request for the arrest and surrender of Al-Bashir, therefore, is not an ultra vires act. Furthermore, the link established by the Court between Article 97 and 98(1) of the Statute has the merit of shifting the pendulum towards a cooperation regime more vertical than that which is normally considered. The article concludes that the time has come for the Court to abandon its excessively prudent attitude towards refusals of states parties to comply with its requests and to draw support from all available legal sources to strengthen its requests of cooperation (including the Genocide Convention).

Questioning the Standard of Proof

The article begins with a discussion of the judicial debate on the confirmation procedure before the International Criminal Court, which arose in the pretrial proceedings in the Gbagbo case. The author argues that in finding that a confirmation of the charges decision should be based on ‘the strongest possible case based on a largely completed investigation’, Pre-Trial Chamber I imposed too high a standard of proof, and that adopting such standards could potentially disrupt proceedings by blurring the boundaries between pretrial and trial stages. This would ultimately be detrimental to the rights of the accused, both in terms of the right to a speedy trial and the presumption of innocence. Even if available evidence does not appear sufficient to sustain a possible conviction at trial, a case could still be worthy of trial if the PreTrial Chamber established that doubts and inconsistencies regarding the credibility of the evidence would be more properly addressed and solved through the examination of witnesses.

‘Reasonable Grounds to Believe’

Under Article 58(1) of the Rome Statute of the International Criminal Court (ICC), should the prosecutor present information that meets, inter alia, the evidentiary threshold of ‘reasonable grounds to believe’ that the person has committed a crime within the jurisdiction of the ICC, as well as the other conditions set out in Article 58, the Pre-Trial Chamber issues a warrant of arrest. Following a critical assessment of the interpretations given by the ICC of this threshold test of ‘reasonable grounds to believe’, this article shows that elucidations at the ICC are a potential source of confusion rather than guidance on what is required to satisfy this criterion. The lack of clarity has lowered the standard, with detrimental effects on actual judicial oversight of the exercise of prosecutorial discretion and the defendant’s right to liberty.

Complementarity in Practice: The ICC’s Inconsistent Approach in the <i>Gaddafi</i> and <i>Al-Senussi</i> Admissibility Decisions

Complementarity represents a seminal feature of the International Criminal Court (ICC), created as an instrument of last resort. It translates into the legal rules of Article 17 of the Rome Statute, which need to be developed through the Court’s judicial activity. The challenges brought by Libya to the admissibility of the cases against Saif Gaddafi and Abdullah Al-Senussi offered the ICC a chance to clarify some aspects of complementarity. In particular, they touched upon two crucial elements of Article 17: the criterion of “otherwise” inability to carry out proceedings, and the extent to which fair trial breaches matter for the purpose of assessing unwillingness. The Pre-Trial Chamber I, while dismissing the challenge concerning Gaddafi, held the case against Al-Senussi inadmissible before the Court. The Appeals Chamber subsequently upheld both these holdings. This paper, carrying out a comparative analysis, points out the inconsistency affecting the two decisions, which is due to a conflicting assessment of the same element: Libya’s failure to provide the accused with legal counsel. The author contends that, in the Al-Senussi case, the lack of legal representation resulted in Libya’s inability and unwillingness to carry out the trial. Accordingly, the Chambers should have held the case admissible before the Court, as they did with Gaddafi. Also, the author suggests that incoherent approaches to similar situations expose the Court to a recurrent accusation: that of being heavily influenced by political factors.