A comment on the critical reactions to the Special Tribunal for Lebanon Hariri Judgment

Posted on August 20, 2020 | 1 comment

A few days ago, on the 18 August 2020, the Trial Chamber of the Special Tribunal for Lebanon issued its long awaited Judgment following the trial relating to the assassination of Rafik Hariri in 2005. The Trial Chamber convicted one of the Accused, Ayyash, acquitting the remaining three: Oneissi, Mehri and Sabra.

The public reading of the summary of the Judgment started at 11am and ended at around 3.45pm, with a 30-minute break in the middle. It was therefore a very long and very detailed summary, at times difficult to follow, even for someone who is familiar with the case and the proceedings.

The Judgment itself is 2682 pages (including annexes and separate/dissenting opinions of the Judges) so obviously, don’t expect a detailed analysis of it anytime soon. I do note that as far as I can tell, the Judgment is only available in English, not in Arabic or French, which means that those most affected by the work of the STL cannot read it, even if they wanted to…

For those interested in my “live” thoughts on the summary Judgment, you can read the (very long) thread I wrote as the summary was being read out.

Just based on the summary, it was very clear how much the Prosecution case was based on weak circumstantial evidence and how little evidence the Prosecutor actually submitted on the details of the conspiracy itself, other than the clearly obvious fact that the assassination of Rafik Hariri was decided at some point in time and then carried out. 

I hope to provide more thoughts on the actual Judgment in the future, once I find time to read it, but what I did want to reflect on today is the reactions to the Judgment itself.

I’m sure that when myself and others finally go through the Judgment, we will find reasons to comment on it and even criticise it on discrete legal, procedural and factual points.

What I find striking is that the cascade of critical commentary (on the fact that the STL might have been a waste of money, that it did not deliver justice to the victims by failing to provide the relevant political context of the assassination, that it shows the limits of Trials in absentia, that it failed in establishing a credible precedent in prosecuting terrorism internationally, etc.) seems to be directed at the STL generally as an institution rather than at the Judgment itself.

For example, the fact that the STL was possibly too expensive would still be arguably true, even if all Accused had been convicted. More generally, the opportunity of creating such a massive institution for essentially one incident could have been questioned more or less from day one. Why wait for the Judgment to point it out? Such late criticism of this kind suggests that what bothers some people is less the cost than the acquittals… This is not something surprising obviously. I’ve been following reactions to the issuance of international judgments for many years now and regularly commented on such reactions here on Spreading the Jam, more particularly lamenting how acquittals are automatically considered as failures, as if international trials should necessarily conclude with a conviction. 

The same is true of the political context: for those who have followed the proceedings since the beginning, it should not come as a surprise that the Judgment only minimally addresses alleged Hezbollah and Syrian involvement in the assassination. Indeed, this was never the focus of the Prosecution case and, from what I understand, the Prosecution did not present much evidence in that respect. In other words, the Judgment, whether it ended in acquittals or convictions, was never going to satisfy those who would have wanted some clear findings on the broader organisation of the conspiracy and who instigated at a higher hierarchical level than the Accused.

Equally puzzling is the idea that this Judgment shows the limits of trials in absentia. The fact that trials in absentia are problematic in many respects, especially for the Defence, is uncontroversial. But it is not in my view illustrated so much by the Judgment itself. Indeed, 3 of the 4 Accused were acquitted despite the fact that it is harder for the Defence to work in such circumstances.

Also well known for anyone following the STL was the fact that the Prosecution case relied exclusively on circumstantial evidence and would have required the Judges to base any conviction on a considerable amount of “reasonable inferences” (often a politer way of describing speculative more or less educated guesses in international judgments) to find the Accused guilty. 

The bottom line is that the STL was always going to be a far too expensive experiment, and more importantly was always going to be at risk of not meeting the objectives that had been, possibly unrealistically, assigned to it, was always at risk of being a purely theoretical exercise, remote from the reality of what was actually happening in Lebanon or important for the Lebanese, especially 15 years after the facts.

Again, there is nothing wrong with criticising the STL as an institution. Some people, like myself, have been doing this for many years now. For example, I was never convinced by the extremely creative approach adopted by the Appeals Chamber to recognise the existence of a crime of terrorism under international law, nor by its case-law on corporate criminal liability (see here and here).

Already in 2011, commenting on some earlier in my view unconvincing procedural decisions by the STL, I noted: 

The Tribunal is certainly alive, but, torn between different logics, orders and traditions, one has to wonder whether it should have been created at all, and, now that it has, whether is should not be allowed to be “borne away by the waves, and lost in darkness and distance”.

(The quote is the last line from Mary Shelley’s Frankenstein, a less-than-subtle allusion to the “hybrid” nature of the STL…)

In 2014, in a great volume on the STL edited by Nidal Jurdi and Amal Alamuddin and David Tolbert, I concluded a fairly critical chapter on the STL rules of procedure where I considered that the Judges were like referees trying to “steal the show” of a football game in the following way: 

It is only if the STL refocuses on the game that is actually being played in the territory where the crimes were committed rather than focusing on the procedural niceties being played in The Hague that it will have any chance of actually delivering on its promise of justice. If not—beyond all the technical discussions on the procedural framework of the STL—what is the point of setting up rules for a game, which nobody is in fact playing, and more importantly, which nobody may be watching anymore? The ultimate risk is therefore not really that the referee could be stealing the show but rather that there might not actually be a show anymore to steal, just an empty pitch and the echoes of the now departed spectators dying out as the last floodlights are inexorably being switched off, one by one.

In other words, I was suggesting that the STL might become, with time, an irrelevant and purely academic exercice with no real-world effect, a show nobody would be watching.

I therefore do not necessarily disagree with the criticism I am hearing since the Judgment came out. What I find somewhat unsatisfactory today is those commentators who are only now coming out of the woods with criticism of the STL, which could have been expressed years ago, simply, it seems, because the trial ended up in acquittals.

If these commentators truly believe what they now say, they should have had the intellectual honesty to say it many years ago already, with the inevitable conclusion, irrespective of the outcome of the trial, that the STL might have been a failed experience. It is too easy for these commentators to come out with this conclusion now, after the battle, simply because there is now the easiest target in ICL for them to always be on the “good side of history”: a (partial) acquittal.

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Shooting the Messenger? A response to Kip Hale’s call for the ICC community to engage in self-examination

Posted on June 1, 2020 | Leave a comment

cross-posted on Justice in Conflict.

Kip Hale has written a blog post on Justice in Conflict entitled “time to look into the mirror: ICC community in Need of Perspective”. For Kip, “this article’s goal is to hopefully spur a larger discussion – and maybe even some progress – concerning the lack of self-awareness and self-examination in our community”.

Kip levels a certain number of critiques against the community of ICC commentators, which would require a more thorough discussion than the next few paragraphs. But hopefully the following comments can begin to contribute to the larger discussion that Kip invites us to have.

Let me start, uncharacteristically maybe, with a point of agreement, and to put it in simpler terms than Kip did in his post : there are indeed, out there, a number of commentators who simply do not know what they are talking about. More specifically, it is not uncommon for some outside observers to ignore or not be aware of the internal dynamics of the institution, its history or even, sometimes, its applicable law.  As a consequence, they might provide inaccurate portrayals of the work of the Court.

This applies to lawyers but also to experts from other fields that take an interest in the ICC. For example, I’ve argued elsewhere, in a Leiden Journal of international law editorial, that a number of critical scholars run the risk of missing the mark in their analysis because they will ignore key aspects of the ICC’s work by refusing to peek inside the box of its legal and institutional intricacies.

If Kip had stopped there, essentially lamenting the lack of competence of some commentators, I could have more or less supported his position (although one could then wonder if making such an obvious point – “I wish people were competent at their jobs” –   would really have deserved a blog post at all), with a couple of caveats.

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ICC PTC authorises investigation in Bangladesh/Myanmar: some thoughts

Posted on November 15, 2019 | 1 comment

Big news, came out of the ICC yesterday, a mere few days after the proceedings initiated by Gambia at the ICJ against Myanmar: Pre-Trial Chamber III has authorised the opening of an investigation in the situation of Bangladesh/Myanmar. This decision follows a decision in September 2018 where PTC I found that the Court could theoretically exercise jurisdiction in such a situation, despite Myanmar not being a State Party (I commented on that decision here) and the Prosecutor’s request last summer (which I reflected upon here).

There are a number of interesting takeaways from the decision which I want to briefly address here.

1) Assessment of evidence

Back in July, I raised the point that the OTP request did not contain an explanation of how it assessed available information. I found that problematic, especially given the challenges that exist when using open source material, such as NGO and UN reports.

Apparently, this is not a problem for the PTC, which provides no indication of its understanding of the standard of proof during a preliminary examination, nor does it provide any methodological explanation of how it independently assessed available information. Essentially, the PTC seems to have taken any “finding” in a human rights report at face-value, which, even at such an early stage of the proceedings, cannot be an adequate approach for a criminal court. 

2) The territorial exercise of jurisdiction question

In order to deal with the central issue here (the fact that the alleged incidents all took place on the territory of a non-State party, with the involvement of nationals of a non-State party), the PTC had to discuss several matters. I found this part of the decision actually quite pleasant and intellectually stimulating to read, but I must confess, I did not always get how its different parts fit one with another. It is as if several really interesting preparatory memos were copied and pasted together in the final decision without the final polishing work on making sure that it all fit in a coherent argumentation.

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ICC OTP requests authorisation to open an investigation into the Myanmar situation: three comments

Posted on July 8, 2019 | 3 comments

Last Friday, 5 July 2019, the Prosecutor if the International Criminal Court filed a request under article 15 to be able to open an investigation into the situation of Myanmar. This is no surprise, as she had notified her intention to do so on the 12 June 2019, which led to the constitution of a Pre-Trial Chamber to that effect.

I don’t necessarily have too many comprehensive comments on the substance of the request at this points, but having read through the request, I wanted to put forward three initial thoughts I had, which mostly relate to choices in terms of drafting.

  • The jurisdictional issue

As those following these proceedings will know, the current request was preceded by a decision last September, following a request from the Prosecutor under Article 19(3) of the Rome Statute, whereby a majority of PTC I considered, in a nutshell, that even though Myanmar was not a State party, the ICC could exercise jurisdiction in relation to the crime of deportation to the extent that one element of the crime (the crossing of an international border) did take place on the territory of a State party, here Bangladesh. The PTC also found that the ICC could possibly exercise jurisdiction over other Rome Statute crimes if it could also be established that one element of the crime took place on the territory of a State party.

Putting aside my doubts about whether it was appropriate to use article 19(3) like this in the first place (see here), I note that in the current request, the Prosecutor essentially takes the September 2018 jurisdictional decision as a given and does not explain this newly composed Pre-Trial Chamber what exactly what the reasoning of the other PTC was in relation to 1) considering deportation as a discrete crime under the Rome Statute and 2) its understanding of « conduct » in article 12(2)(b).

Given the discussions surrounding the use of 19(3) and the substance of the September 2018 decision, I would have expected the Prosecutor to do a little more explaining (convincing) in this respect, because it cannot be assumed that the new Pre-Trial Chamber will simply follow the prior decision in this respect.

Three additional small points in respect to jurisdiction:

– It is interesting to note how the OTP brings in other « crimes » (such as killings and rape) as evidence of the coercive nature of the displacement. This is quite smart I would say, but it does questions. Indeed, these « crimes » were entirely committed on the territory of a non-State Party and the Court cannot directly exercise jurisdiction over them, which means that any potential Accused cannot be charged for them. However, concretely they would be part and parcel of the discussion of deportation and any pronouncement of the Court on such questions would necessarily involve discussion of individual responsibility. In other words, any potential Accused would in effect be charged and convicted for these acts under the guise of deportation, which could reasonably be construed as an impermissible circumvention of the jurisdictional limitations of Article 12(2).

– At this point in time, the OTP reasoning on the link between these coercive acts and the deportation is quite embryonic. Indeed, logically, you would expect the Prosecutor to demonstrate a link between specific groups of refugees in Bangladesh and the alleged crimes constituting the coercive acts. However, the Prosecutor simply states that: « The coincidence in time between the peak of the violence and large numbers of Rohingya crossing into Bangladesh may, of itself, show a causal link between the coercive acts and the victims’ displacement to Bangladesh » (par. 113). While this might be sufficient at this stage of the proceedings, this should not be sufficient moving forward if an actual investigation takes place because conflating correlation and causation is not an acceptable investigatory methodology.

– Given the Prosecutor’s flexible inclusion of other « crimes » as underlying acts of coercion, I’m genuinely curious why genocide was not discussed. Now, I’m not familiar enough with the current debate going on about this, but there are a lot of claims of genocide being made. It would therefore interesting to know whether the non-inclusion of genocide is due to 1) lack of jurisdictional territorial link given the particular circumstances of this situation, 2) lack of actual evidence of genocide in the evidence provided to the OTP (as opposed to ethnic cleansing for example) and/or 3) a strategic choice to stay away from the issue.

  • The evaluation of the « interests of justice »

The request includes the usual (based on recent practice of the OTP) couple of pages indicating that “The Prosecution has identified no substantial reasons to believe that an investigation into the situation would not be in the interests of justice” (par. 290).

I have no strong views on this either way, but I do wonder whether this question might not have deserved a change of approach, given that this request in the first one to be filed since the Afghanistan decision. This latter decision and the fact that the OTP appealed is only mentioned in passing in a footnote (fn 774).

However, one could have imagined that the Prosecutor would present in more detail than it does here at least its understanding of the legal framework applicable to « interests of justice » determination, especially when it comes to the margin of discretion (if any) afforded to a PTC in reviewing an OTP request, rather than just referring the Judges to its appeals brief.

More discussion would appear all the more justified that this situation seems to fall squarely in the Afghanistan logic, given that it involves alleged conduct that took place entirely (putting the legal nicety of the « crossing of the border » criteria) on the territory of a non-State party by non-State party nationals, with virtually zero chance of cooperation. If there was ever a time to explicitly challenge the Afghanistan understanding of the « interests of justice » in a request, it was now.

Maybe there is a strategic choice here to not insist too much on this, on the double assumption that 1) the current PTC will know what the debate is about and 2) possibly that the Afghanistan decision is and will remain an isolated decision. Time will tell whether it was a good choice.

Of course, logically if I were the current PTC, I would not issue any decision until the Afghanistan appeal has been resolved one way or another.

  • The OTP’s approach to the assessment of available information.

As is well known, during the preliminary examination, the Prosecutor does not have autonomous investigation powers and must rely on publicly available information or information voluntarily shared by various sources (States, NGOs, etc.). This investigatory dependence on outside sources raises the question of what methodology needs to be followed by the OTP in assessing the seriousness of such information.

I recently submitted a communication to the OTP on this issue, specifically addressing methodological difficulties arising from relying extensively on human rights reports during a Preliminary Examination, such as the over-use of anonymous hearsay, the unverifiability of sources, the impossibility of assessing the credibility of alleged witnesses or the sometimes less ideal legal analysis put forward.

What is particularly relevant for the current discussion is that in that report I support my claim that the OTP should rigorously assess third-party material partly on the fact that the OTP itself has in the past, both in policy documents and in requests, clearly highlighted its autonomous obligation to assess the credibility and reliability of third-party reports.

For example, in the Afghanistan request, the Prosecutor indicated (par. 29):

The Prosecution has evaluated sources and their information following a consistent methodology based on criteria such as relevance (usefulness of the information to determine the commission of crimes within the jurisdiction of the Court), reliability (trustworthiness of the provider of the information as such), credibility (quality of the information in itself, to be evaluated by criteria of immediacy, internal consistency and external verification), and completeness (the extent of the source’s knowledge or coverage vis-à-vis the whole scope of relevant facts). It has endeavoured to corroborate the information provided with information available from reliable open and other sources.

This paragraph is directly copied from the Burundi request (par. 26) a few months prior.

In a similar fashion, in the Georgia request, the Prosecutor indicated par. 48):

Notwithstanding the low threshold that is applicable at this stage, neither theProsecution nor the Chamber should rely on information that is not credible or reliable. This is clear from the statutory requirement of determining whether the information available establishes a reasonable basis to believe that one or more crimes within the jurisdiction of the Court have been committed. Similarly, the Prosecutor, and the Chamber, must analyse and evaluate the seriousness of the information and the reliability of the source. To hold otherwise would require the Court to take any allegation made by any source at face value.

Given these systematic methodological clarifications in the most recent OTP requests, I was surprised that they have disappeared altogether from the Myanmar request, which simply states that: « The sources relied upon in this Request are amongst those considered by the Prosecution to be sufficiently reliable and credible for the proposition for which they are relied on » (par. 29).

Of course, you might consider that this is just a cosmetic difference and that this does not mean that the OTP did not concretely seriously assess available information. Maybe (although I note that the terms reliable, reliability, reliable, credible, credibility, authenticity, corroborate, corroboration and corroborated appears, taken all together, 13 times in a 146-page request). But I am still young and naive and believe that there is a reason why a party makes certain claims or not. As a result, I wonder why the OTP felt it necessary to explicitly lay down some methodological points in all recent requests, but not in the Myanmar request.

As an aside, I don’t understand why the annex listing information used is not publicly available (at least in redacted form), given that arguably a large number of sources will be public sources.

In conclusion, and generally, this request is a perfect case study in the ongoing debate about the balance that needs to be struck between the aspirational vocation of the ICC and its need to be realistic about what it can achieve (see recently Mark Kersten on this), and the related discussion about managing expectations created by ICC activities among affected communities.

I would think those who consider that the ICC cannot give up on being aspirational will likely think that the balance has been struck adequately here, within the jurisdictional limitations of the Court (although the genocide issue will obviously be a sticking point, given the weight of this issue in public discourse on the situation of the Rohingya).

I’m personally not too sure. The fact remains that both legally (the jurisdictional argument is not as solid as it should be) and practically (irrespective of the legal argument on deportation, this is essentially a situation relating to a non-State party), the ICC could be seen to be straying here on the very periphery, at best, of what it can deal with and the chances of anything concrete coming out of this are very slim.

This does not necessarily mean that the OTP should not have moved forward, but, at the very least, those reporting on this (NGOs and journalists alike) should be careful on how they present this move and its possible outcome, so as not to create unrealistic expectations that,  if they should  not be met, will contribute to plague the Court’s legacy in years to come.

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Q&A regarding the “Q&A REGARDING APPEALS CHAMBER’S 6 MAY 2019 JUDGMENT IN THE JORDAN REFERRAL RE AL-BASHIR APPEAL”

Posted on May 17, 2019 | 3 comments

THIS HASTILY DRAFTED DOCUMENT IS NOT PART OF THE COMMENTARY TO THE APPEALS JUDGMENT. IT IS ISSUED PURELY FOR PURPOSES OF PUBLIC INFORMATION. THE AUTHORITATIVE PRONOUNCEMENTS OF THE AUTHOR CAN BE FOUND HERE.

Q: On 6 May 2019, the Appeals Chamber of the International Criminal Court issued its Judgement in the Jordan Referral Re Al-Bashir Appeal. On 16 May 2019, the Court issued an anonymous Q&A in relation to that Judgment which discussed not only the Judgment, but public reactions to it on twitter and on blogs. What are your thoughts on this?

A: This is quite an extraordinary practice which I have personally never witnessed before. If one must take a positive take on it, one could say that it is a nice example of openness and dialogue on the part of the Court when confronted to criticism.

However, this might be a too optimistic spin. Given the defensive tone of the Q&A and some of the pronouncements contained therein, it sounds more like a petty attempt at stifling criticism of ICC decisions, by attacking those who issued such criticism. Moreover, given these attacks, it is very surprising that they appear in an anonymous document. We should at least know from what organ of the Court this comes from, given that the Q&A format formally suggests some distance between the person asking the questions and the person answering them. At least, all those who expressed vigorous criticism of the Judgment did so in their own name and accept any public scrutiny of their views.

Q: You mention “attacks” against those having expressed criticism of the Judgment, what do you mean by that?

A: Well, to be fair, the anonymous author of the responses does indicate that “There is nothing new, extra-ordinary or wrong about judgments of courts of law generating discussion among those who have a view”. This seal of approval by the Court (or one of its organs?) telling me and others that it is not “wrong” to comment on ICC decisions, as we have done for years now, is a relief because we have collectively been asking ourselves the existential question of whether we should always approve of ICC Judgments, as the earthly embodiment of the will of the international community as a whole and the progressive betterment of mankind.

That being said, some of the comments made in the Q&A do seem to be unnecessary attacks on the professionalism of the commentators of the Judgment. Indeed, the anonymous author of the responses claims that:

In the era of social media, it is hoped that observers would properly study the Court’s judgments and decisions before rushing to comment on them. Hastily made comments, particularly when made before the commentator has even read the judgment in question, will fail to appreciate the totality and nuances of the Court’s reasoning, and may wholly misrepresent the decision or judgment. At the same time, those first comments appearing on social media frequently tend to dominate the ensuing discussion as they are tweeted and retweeted, regardless of their accuracy.

There is much to be said about this.

First of all, this remark suggests that it is inappropriate to comment on the Judgment as it is being delivered in open Court. However, why would that be a problem? One would imagine that the summary of the Judgment, while obviously not authoritative, does reflect what the Judgment says. If the public (which includes the observers) cannot understand the summary without the full Judgment,  or if the summary creates a risk of misrepresenting the Judgment, then why bother with a summary at all?

Second of all, and more fundamentally, it is not for the Court to decide what legitimate commentary should look like. If a person misrepresents a Judgment, it is that person’s problem, not the Court’s. Plus, it is obvious that, under the guise of criticising hastiness, the anonymous author of the response does not have in mind those who immediately defended the Judgment.

Third of all, the anonymous author of the responses seems to have a poor understanding of the dynamics of twitter. Tweets create a unique opportunity for a rich debate about issues. And the exchanges that took place immediately after the Judgment followed exactly this pattern, with numerous discussions ensuing between critics and defenders of the Judgment, and even between critics of the Judgment. The idea that our followers are uncritical sheep is somewhat offensive.

Fourth of all, I would be curious for the anonymous author of the responses to point to even one observer of the Court who retracted their initial views about the Judgment after having read the full text and the separate opinion. If anything, a number of the hasty observers expressed the view that these documents, when considered together, actually created more confusion about the actual Judgment. In fact, if you read the reactions on social media since the Q&A was released, it is very clear that some experts are still confused with the scope and reasoning of the Judgment, several weeks now after it was issued. So clearly, our initial reaction was well-informed enough and our criticism had nothing to do with hastiness or rushing in.

Finally, there is a fundamental lack of self-reflection on the part of the anonymous author of the responses, coupled with a disdain for those who disagreed with the decision. The implication is that we disagreed simply because we did not understand the details (the “nuances”) of the reasoning of the Chamber. Behind the empty claim that disagreement is fine, there is therefore the suggestion that we are, to put it simply, incompetent. Which means that the Prosecutor (who it should be recalled did not even argue for the customary law route), most of the amicus who appeared before the Court, the representatives of Jordan, the AU, the Arab League, the numerous experienced academics and practictioners who criticised the Judgment afterwards are all incompetent.

The anonymous author of the responses goes even further by specifically targetting “lawyers” in a generic way and invoking their professional obligations:

Lawyers engaging in public commentary should exercise particular caution and remain mindful of the cardinal principles that guide the conduct of lawyers, including that of honesty, integrity and fairness. This principle adequately covers the need to be fair when criticising courts and judges. Notably, the rules of professional ethics in most legal systems impose special caution on criticism of judges and courts, not because it is wrong to criticise them, but because they are generally not in a position to respond to specific criticisms. It does not mean that judges and courts may not be criticised. It only means that they be criticised fairly. There is an ethical obligation to reflect facts and circumstances accurately and fairly.

Setting aside the irony of claiming that Judges “are generally not in a position to respond to specific criticisms” in a document where it is exactly what is being done, this passage confuses a commentator who happens to be a lawyer and and a lawyer acting in that capacity before a particular Judge, which shows a misunderstanding of the judicial process. Lawyers are as free as any other observer to comment on judicial decisions and the reference to “professional ethics” can only be interpreted as an inadmissible veiled threat of sanctions in case of criticism of a Judgement that might not be considered as “fair” (whatever that means). It is nothing less than a threat to freedom of expression.

Q: But doesn’t the remainder of the Q&A demonstrate how some observers misrepresented the Judgment, by responding to some of the criticism?

A: Indeed, the anonymous author of the responses engages in a weird dialogue with the critics in relation to the substance of their disagreement with the Judgment. However, on these points, the answers given are far from satisfactory.

You will have noted that the anonymous author of the responses clearly misrepresents the Judgment in the first page of the Q&A. Indeed, it is claimed that:

The Appeals Chamber decided that the Pre-Trial Chamber’s finding that Jordan had failed to comply with its obligation to cooperate with the Court was correct: Jordan should have arrested Mr Al-Bashir when he was on Jordanian territory and surrendered him to the ICC. The Appeals Chamber essentially confirmed the Pre-Trial Chamber’s interpretation of articles 27(2) of the Rome Statute as well as of the effect of UN Security Council resolution 1593 (2005) on Sudan’s position vis-à-vis the Court, which had led the Pre-Trial Chamber to this conclusion.

However, the Appeals Chamber made an important addition: it clarified that, in any event, Mr Al-Bashir did not enjoy immunity as a Head of State vis-à-vis the ICC under customary international law, including in respect of an arrest by a State Party to the Rome Statute at the request of the ICC. Thus, the Appeals Chamber added an additional pillar on which the conclusion that Jordan should have arrested Mr Al-Bashir rested. The Appeals Chamber’s decision in this regard was unanimous.

When you read this, you have the impression that the main point of the Judgment was the discussion of the UNSC justification for the removal of immunities and that the customary law discussion was a mere, albeit important, addition. An afterthought so to speak.

But that is not what the Judgment does. It deals with the customary law issue first, claiming that is it the central and most important question raised in the appeal. It is even the first key finding of the Judgment. The Appeals Chamber went out of their way to make put this issue at the heart of the appeal, despite the fact that it was not even on appeal in the first place, but now, faced with the criticism, is trying to minimise that aspect. If that is not misrepresentation, I don’t know what is.

Q: Ok, but what about the other answers given in the Q&A? 

A: Well let’s take as an example, the anonymous author’s discussion of the distinction between jurisdiction and immunity. I feel compelled to reproduce it in full (sorry for your readers, anonymous interviewer), in order to avoid being accused of misrepresenting it:

This is an erroneous understanding of the Appeals Chamber’s judgment. It was specifically recognised in the Joint Concurring Opinion of four out of the five judges (incorporated by reference in the main judgment) that immunity and jurisdiction are not the same thing. The judges wrote that there is no immunity before an international criminal court in its exercise of ‘proper jurisdiction’ does not mean the court in question has that ‘proper jurisdiction’ to begin with. The existence of jurisdiction depends on its own source. Since customary international law is not known to confer jurisdiction on international courts, it means that the jurisdiction of an international court is prescribed in a written instrument. If that instrument is a treaty, then that treaty binds only those that are party to it. The Rome Statute is a treaty that binds the parties to it. But the written instrument that prescribes the jurisdiction of an international court can also be a Security Council resolution adopted under Chapter VII of the UN Charter, such as was the case here. In conclusion, it was made clear that in the absence of applicability of the Rome Statute or the presence of Security Council resolution, the ICC would have no jurisdiction. All this was actually made very plain in the Joint Concurring Opinion.So, if there is no jurisdiction to begin with, the question of immunity from that jurisdiction does not engage. But, when there is jurisdiction -as in this case, through a combination of Security Council resolution and the Rome Statute -and there is claim of immunity from it, then it becomes necessary to examine the basis or source of that claim of immunity.

First of all, you will note the apparent contradiction in the first two lines: how can it be an erroneous understanding of the Appeals Judgment when the explanation for the Appeals Chamber’s position (the distinction between jurisdiction and immunity) was not even in the Judgment, but in the separate opinion? If it was key to the understanding of the Judgment, why was it not in it?

Second of all, the Q&A claims that this separate opinion is incorporated by reference into the main Judgment. But how can a separate opinion signed by only four of the five Judges be incorporated in a unanimous Judgment? the fact that the fifth Judge refused to sign the separate opinion must mean that she did not agree with it. If she had, it would not be a separate opinion, it would be the Judgment itself. So there is a logical flaw in claiming that the whole of the separate opinion should be considered to be part of the Judgment.

Of course, you could argue that the specific paragraphs of the separate opinion which are referenced in the Judgment can be considered to have been approved by the five Judges. But this presents a problem on this particular issue: the paragraphs of the separate opinion where the jurisdiction/immunity distinction is discussed (par. 447-449), which are essentially the paragraphs summarized in the Q&A, are actually never referred to in the main Judgment, so can they be deemed to have been incorporated by reference in the Judgment?

Third of all, putting this minor incorporation problem aside and looking at the substance of the argument, it seems to state the obvious while not responding to some observer’s concerns at all. Our concern was that the Appeals Chamber’s reasoning would allow two States who individually could not arrest a sitting head of State because of his immunity (even for international crimes, even under universal jurisdiction principles) could confer jurisdiction on an international court for international crimes (by a bilateral treaty for example) and this would magically remove head of State immunity, the joint venture between the two States being able to do what the States separately could not do. In our scenario, the international tribunal in question would have jurisdiction, conferred by treaty. So responding to that by saying that the issue of immunity does not arise if the international tribunal has no jurisdiction in the first place is completely beside the point.

As an aside, one could even question whether the author of the Q&A/the authors of the separate opinion are not confusing jurisdiction and the exercise of jurisdiction. Indeed, it could be argued a UNSC referral is a trigger mechanism allowing the Court to exercise jurisdiction, but does not as such grant the ICC jurisdiction. Of course, to accept this, you would have to follow my oft-repeated analysis that Article 12 is not a jurisdictional provision, but if you look at the title of the Article you can see that…

Q: Sorry to interrupt, but you’re starting to confuse everyone now… let’s get back on track. You just mentioned the ambiguous status of the separate opinion in relation to the Judgment. In the Q&A, it is said that this is not unusual. How do you respond to that?

A: Most of those who raised this issue  have been following, studying, practicing ICL for years even decades. Some of us are even experts specifically in the analysis of separate and dissenting opinions. So to be given a lecture on the nature and function of separate/dissenting opinions is somewhat insulting.

Of course, over the years, there have been a number of quirky separate opinions in ICL (in Katanga for example, the two Judges from the majority wrote a joint concurring opinion (so concurring with themselves) which was in fact a response to the dissenting opinion to the Judgment). But these practices remain rare and difficult to justify.

In the present case, it is perfectly legitimate for an observer to wonder exactly why a large chunk of the separate opinion (for example relating to the nature of UNSC referrals, the nature of international tribunals or the case law relating to the customary law status on immunities) is not in the main Judgment and what to do with a 190-page separate opinion written by 4 of the 5 Judges of the Chamber in a unanimous decision.

Q: Thank you for taking the time to answer our questions on such short notice. Do you have any final thoughts on the Q&A?

A: Clearly, this Q&A has taken everyone by surprise. Reactions I’ve seen on the maligned twitter network suggest quasi-unanimous lack of understanding at what exactly the authors of the Q&A were trying to achieve. The Q&A leaves this uneasy impression of being both condescending (using a tone you might reserve for a small child) and childish (it’s not fair…).

I also wonder why now, about this particular decision. Because honestly, on the scale of criticism, the reaction to the Immunities Judgment pales in comparison to the reaction to the decision not to open a decision in the situation of Afghanistan, which was shredded immediately after it came out. Yet the Q&A document for the Afghanistan decision is very basic, just one page simply presenting the findings of the PTC. Where is the positive defence of that decision, which constitutes a decision by the Court? Where is the explanation of why the Afghanistan decision is fantastic and simply misunderstood? Where is the chastising of all those nasty commentators who criticised it hastily? Could it be that this time, it involves the Appeals Chamber, rather than a mere Pre-Trial Chamber? If true, this would mean that the “Court” is more willing to go out on a limb to defend certain Judges rather than others, which should not be the case.

Overall, I don’t see how this is a good communications strategy on the part of the Court. This defensiveness and aggressivity gives out an impression of weakness and nobody will change their mind based on the Q&A. As someone wise told me today, silence in such cases should always be the default option. I’m of course incapable of taking this advice, against my better judgment, but maybe the ICC should consider it seriously.

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