[UPDATED] To turn our lens to international criminal law for a moment, I recently attended the annual International Humanitarian Law Dialogs in Chautauqua, New York. This year’s theme was: Is the Justice We Seek The Justice They Want? The Dialogs regularly feature an International Prosecutors’ Roundtable updating attendees on important developments at the international criminal tribunals and within the field of international criminal law (ICL) more broadly. Part I of this series builds on this briefing and provides a brief summary of key moments in the past year and events on the horizon involving the International Criminal Court (ICC). Part II discusses the status of proceedings before other international/hybrid tribunals. Finally, Part III is dedicated to ICL cases proceeding before domestic courts around the world.

The ICC experienced many highlights—and some lowlights—in the past year. Starting with the latter….

Central African Republic: The biggest news emerging from the ICC was the stunning acquittal on appeal of Jean Pierre Bemba of international crimes committed in the Central African Republic (CAR). After being arrested in Belgium, Bemba had been unanimously convicted by the Trial Chamber of pillage, murder, and various forms of sexual and gender-based violence (SGBV). These crimes were charged as war crimes and crimes against humanity under a theory of superior responsibility—the first case to invoke this provision of the Rome Statute and the first rape conviction handed down. The Trial Chamber sentenced Bemba to 18 years’ imprisonment.

In an exceptionally terse opinion for such a momentous change of course, this verdict was reversed by a splintered 3-2 decision from the Appeals Chamber that dramatically departs from prior precedent and yet gives very little guidance to litigants before the Court going forward. Two key issues emerged in the appeal: the standard of review and the doctrine of command responsibility. The standard of review originally articulated by the ICC Appeals Chamber in early proceedings before the Court (and by other international appellate tribunals) had been a test of reasonableness: did the Trial Chamber reach a reasonable result? This standard is premised on deference to the Trial Chamber as the first order trier of fact. Although some national systems do conduct something akin to a second trial on appeal, this approach has never prevailed in ICL. Notwithstanding this established practice before the ICC, the Bemba Appeals Chamber appeared to give no virtually deference to the Trial Chamber’s findings and determined that it could interfere with the decision below to avoid a miscarriage of justice if it disagreed with some factual findings. Nor were the parties given any notice that the standard had changed under their feet.

When it comes to superior responsibility, the Appeals Chamber concluded that Bemba—as a remote commander—was entitled to a heightened degree of latitude in terms of the measures he was required to undertake to prevent abuses by his subordinates and punish the perpetrators. As one commentator has noted, it is as if the acts of rape and pillage in CAR committed themselves, since the direct perpetrators are unlikely to come before the Court. This outcome will no doubt produce perverse results, as commanders absent themselves from the field of battle in order to lessen their potential liability, only to diminish their ability to properly supervise their troops—all to the detriment of the civilian population. Although the substantive rulings are problematic, so too are the procedural impacts of the case on the efficiency and fairness of the Court, as Alex Whiting has detailed here.

This outcome is all the more disheartening given that Bemba and several compatriots were separately convicted under Article 70 of the Rome Statute for interfering in the administration of justice—the first such proceedings before the Court. These convictions confirmed that the Bemba record was polluted by corrupt evidence, including false testimony and scripted witnesses. Although the Article 70 proceedings were partitioned off from the Trial Chamber, the judges knew that the evidence had been impugned and had dismissed the testimony of a number of witnesses. The Appeals Chamber did not seem to take these contempt proceedings into account at all in the main trial. As it turned out, Bemba’s strategy to tamper with witnesses ultimately appears to have paid off in the trial of the merits.

The Article 70 convictions were largely confirmed on appeal except counts charging three defendants, including Bemba himself, with presenting evidence that a party knows is false or forged (Article 70(1)(b) of the Rome Statute). The Chamber ruled that this provision applies to the presentation of documentary evidence and not to the calling of witnesses, as in the case at hand. The Appeals Chamber also granted the Prosecutor’s appeal from the sentence, finding that the Trial Chamber had committed several errors with respect to the assessment of the gravity of the offences. Bemba et al. will be sentenced on September 17 in the contempt proceedings. Although Bemba had been nominated by his party to run for President in the DRC, in an effort to challenge to Joseph Kabila (who apparently is no longer a contender himself), this latter conviction likely eliminates his eligibility. Some have expressed disapproval to the OTP for pursuing the Article 70 charges, which consume prosecutorial resources and do not involve the Court’s core crimes. The final outcome of the Bemba case confirm the such criticism is misplaced.

With Bemba’s acquittal on the merits, over 5,000 victims of SGBV—men and women—have been left without justice, as movingly discussed in this JS post (upwards of 70% of the charges involved SGBV). Fortunately, this acquittal does not prevent the Trust Fund for Victims (TFV)—which is a separate entity also created by the Rome Statute—from aiding the victims. The TFV has accelerated the launch of a new initiative in CAR under its assistance mandate (which is separate and apart from its reparations mandate) that will involve “physical and psychological rehabilitation, as well as material support” for victims. As part of a policy lab project focused on the funding of international tribunals, a student of mine created a crowd-funding site for the Trust Fund to help support its activities in ICC situation countries (more details here). The TFV can accept voluntary contributions from multiple sources, including states and private persons. Several states have made generous contributions.

All told, no one in attendance at the Dialogs had anything positive to say about the Appeals Chamber’s treatment of the law or the facts in Bemba, and all were convinced that this decision will eventually be consigned to the jurisprudential scrapheap along with other aberrant judgments, such as the Yugoslavia Tribunal’s controversial decisions in Gotovina and Perišić.

Besides Bemba, progress was made on a number of current and new ICC situations over the last year.

The Mavi Marmara: In other matters before the Court, the referral by the Union of the Comoros was finally and definitively rejected, preserving a domain for prosecutorial discretionBy way of background, the Comoros submitted a referral to the ICC in May 2013 concerning an Israeli raid on a humanitarian aid flotilla bound for the embargoed Gaza strip. The flotilla included ICC State-Party-flagged vessels (Comoros, Cambodia, and Greece), which fall within the Court’s territorial jurisdiction per Article 12(2)(a) of the Rome Statute. This was the first referral of a situation by a State Party involving alleged crimes committed on the “territory” of another State Party. Following a preliminary examination, the Prosecutor declined to move forward with an investigation, reasoning that the events in question did not surpass the Court’s inherent gravity threshold. The Comoros appealed, and a Pre-Trial Chamber (PTC) asked the Prosecutor to “reconsider” her decision. The Prosecutor then appealed. The Appeals Chamber dismissed the appeal, by majority. In November 2017, the Prosecutor notified the PTC of her “final decision” that the record did not provide a reasonable basis to proceed with an investigation.

Venezuela: A second state referral may be forthcoming with respect to political violence in Venezuela, an ICC State Party. In September 2017, the Organization of American States appointed a panel of experts to consider potential international crimes committed in that country in connection with its unfolding political crisis. Echoing Article 53 of the Rome Statute, the panel determined that there were reasonable grounds to believe that crimes against humanity have been committed in the country and recommended that an OAS state refer the situation to the Court. Argentina is now considering just such a referral. The Office of the Prosecutor has already opened a preliminary examination into the situation in Venezuela in connection with the use of excessive force against civilians involved in political protests. A state referral would obviate the need for the Prosecutor to seek approval from a PTC to move forward with an investigation. This would be the first time a state party referred another state party for the latter’s alleged commission of international crimes. (The Comoros referral involved conduct allegedly committed on a state’s territory, but by a third state).

Mali: When it comes to Mali, a PTC issued an arrest warrant against Al Hassan Ag Abdoul Aziz Ag Mohamed on March 27, 2018. He was surrendered to the ICC several days later. A confirmation-of-charges hearing will be held in July of next year to determine if there is sufficient evidence to establish substantial grounds to believe that the accused committed each of the crimes charged. The Hassan case is related to the Ahmad Al Faqi Al Mahdi case, which involved war crimes committed in Timbuktu (specifically, the destruction of holy sites and other forms of cultural property). Marking a first for the ICC, Al-Madhi pled guilty in 2016; he has expressed remorse, apologized, and has tried to explain his actions. In August 2017, he was ordered to pay €2.7 million to the victims as compensation.

The Hassan case involves the same set of events, but covers an expanded list of war crimes and crimes against humanity. As a member of Ansar Eddine and the de facto chief of the Islamic police, Hassan stands accused of having taken part in the destruction of mausoleums and to have participated in implementing a policy of forced marriages in Timbuktu. This latter policy allegedly led to repeated rapes and the sexual enslavement of women and girls.

The international crime of forced marriage traces its origins to the work of the Special Court for Sierra Leone (SCSL) and has also appeared in a different form in indictments before the Extraordinary Chambers in the Courts of Cambodia (ECCC). There, forced marriages are being charged as an element of a state policy to assert complete control over every aspect of the lives of Khmer Rouge cadre and ordinary civilians, including marriage and procreation. Surveys of victims indicate that this practice was widespread during the Khmer Rouge era. In Ongwen’s confirmation of charges decision, the ICC determined that forced marriages (and forced impregnation) involving LRA members and abductees can be charged as the crime against humanity of “other inhumane acts.” The crime of forced marriage requires proof: (1) of the imposition of marriage without the victim’s consent and (2) that this forced conjugal association inflicted severe physical or mental suffering on the victims.

Democratic Republic of Congo: After a relatively smooth trial, a Trial Chamber of the Court has begun its deliberations in the case of Bosco Ntaganda, which concerns potential war crimes and crimes against humanity committed in the Ituri district of the Democratic Republic of Congo (DRC) in 2002-3. The crimes in question include charges of rape and sexual violence committed against girl soldiers within the armed group under his command in 2002-3, the National Congress for the Defense of the People. The OTP has yet to pursue any charges for Naganda’s later involvement in the brutal M23 rebel group from 2012 until he turned himself in to the U.S. Embassy in Rwanda in 2013. Unlike many other ICC defendants, Ntaganda took the stand in his own defense.

Côte d’Ivoire: Likewise, the evidence is fully in the record in the joint trial involving ex-head of state Laurent Gbagbo and Blé Goudé, which involves charges arising out of post-election violence in Côte d’Ivoire. The defense team has recently moved for an acquittal. Simone Gbagbo—Laurent’s wife, who had been convicted in a domestic court of, inter alia, undermining the security of the state—was recently pardoned (along with another 800 people) by the current president of the country, Alassane Ouattara. Parallel domestic charges of crimes against humanity led to an acquittal in trial proceedings human rights groups have called flawed.

Simone has also been indicted by the ICC, and the case was deemed admissible (which is to say it did not duplicate any domestic proceedings). However, Côte d’Ivoire insisted that it would prosecute her itself and refused to convey her to The Hague. This standoff remains unresolved.

Uganda: The Prosecutor has rested her case in the trial of Dominic Ongwen of the Lord’s Resistance Army, who stands accused in a 70-count indictment (a.k.a., the Document Containing the Charges (DCC) in ICC parlance) of committing war crimes and crimes against humanity against civilians in internally displaced camps (IDP) in Uganda. The Defense case begins in two weeks, with opening statements scheduled for September 18, 2018. Over 4K victims are represented at trial, the first to go forward involving Uganda and the LRA.

Sudan/Head of State Immunity: The ICC Appeals Chamber is also poised to take on the question of head of state immunity. These proceedings stem from a dozen or so findings of non-cooperation by the Court in connection with the travel of President Omar Al-Bashir of the Sudan, who has been indicted for genocide, crimes against humanity, and war crimes in Darfur. The Appeals Chamber will hold a hearing in December 2018, which will require it to clarify the interaction between Article 27 (abrogating multiple forms of immunity before the Court), Article 98 (preventing the Court from asking states parties to surrender a suspect if it would run counter to international obligations to accord state or diplomatic immunity to the person), and the Security Council’s power to implicitly override any customary international law immunities by virtue of referring a matter involving a non-state party to the Court.

Jordan and other states have argued that Bashir enjoys head of state immunity and so they cannot arrest him notwithstanding the warrants against him. The primary counter-argument is that the Security Council’s 2005 referral of the situation in Darfur to the Court implicitly removed any immunities Bashir might enjoy, effectively placing Sudan in the position of a state party particularly vis-à-vis ICC states parties who owe cooperation duties towards the Court. (A secondary counter-argument advanced by Judge Marc Perrin de Brichambaut in minority opinions is that the genocide indictment offers a second basis for rejected his immunity given the terms of the Genocide Convention, which brooks no immunity by virtue of Article IV). Although Bashir has been to Jordan, Uganda, and Chad this year (BashirWatch tracks his movements), only Jordan has appealed PTC II’s ruling on non-cooperation, which led to the present appellate proceedings. A number of academics and others have provided submissions to the Court. The hearing is scheduled for next week. (The problem of ICC fugitives is discussed more fully here).

Libya: The ICC issued a new arrest warrant against Mahmoud Mustafa Busayf Al-Werfalli in July 2018. He stands accused of committing execution-style killings of prisoners, acts apparently caught on video and broadcast on social media. Although there were rumours that he had turned himself in to his commanding officer, U.S. citizen Khalifa Haftar, it was then announced that he had escaped from custody. Werfalli remains at large. As we have reported, there is startling evidence that Haftar has also ordered summary executions, perhaps even the very acts that undergird the Werfalli indictment. Such conduct is unlawful under U.S. law and could be prosecuted as war crimes in U.S. courts (see my backgrounder here).

Saif Al-Islam Gadafi has petitioned the Court to declare the case against him inadmissible and in violation of the principle of double jeopardy on the grounds that he has already been tried in Libya for the same conduct as alleged by the OTP before the ICC. Gadafi’s case was earlier declared admissible before the Court, because he was in the custody of the Zintan militia and not the central authorities. Although he was a named defendant in a 2015 trial in Tripoli, Saif was effectively tried in absentia and sentenced to death. He was later released under somewhat mysterious circumstances, likely pursuant to an amnesty law. It is not clear if such a circumstance would render the case inadmissible before the Court. He too remains at large. A PTC already referred Libya’s non-compliance to the Security Council in 2014, with no visible effect.

Preliminary Examinations in Venezuela & the Philippines: The Office of the Prosecutor (OTP) has moved forward with several new potential situation countries. The OTP opened two new preliminary examinations into Venezuela and the Philippines. (Alex Whiting called for the latter here). As I have discussed, the Prosecutor undertakes a preliminary examination to determine whether the Court’s jurisdictional requirements are prima facie met. Venezuela has so far indicated that it will cooperate with the Court. Not so with respect to the Philippines. President Duterte—who previously dared the ICC to indict him—has announced that the Philippines will withdraw from the ICC, although his first effort to do so has been challenged before the Supreme Court by the local chapter of the Coalition for the International Criminal Court (CICC), among others, because it was not confirmed by 2/3 of the Senate.

Burundi: The Office of the Prosecution also opened an investigation into the situation in Burundi, which concerns violence committed in the wake of President Pierre Nkurunziza’s pursuit of third term that many consider unconstitutional. Moving proprio motu, the OTP obtained authorization from a PTC in closed proceedings just prior to when Burundi initiated its withdrawal from the Rome Statute. Other African states, including South Africa and the Gambia, have threatened to follow suit, but so far this has not come to pass.

Colombia: The preliminary examination remains underway in Colombia as well, even as the country continues to evolve its transitional justice program.

Afghanistan & Iraq: The OTP has also sought to open an investigation in Afghanistan following an extended preliminary examination. (See our deep dive discussion here). The PTC has yet to rule on the submission. The OTP is also considering allegations against U.K. soldiers in Iraq in the context of the conflict and occupation (2003-8) in a preliminary examination re-opened in 2014. In another example of complementarity, these cases are under investigation in the United Kingdom.  Many of these cases were first investigated by the Iraq Historical Allegations Team. As it turns out, the lawyer who originally advanced these cases, Phil Shiner, fabricated many of the underlying allegations and paid Iraqi middlemen for purported “evidence.” He has subsequently been disbarred. Amidst Parliamentary and public criticism, the IHAT was shut down on the direction of Sir Michael Fallon, the UK Defense Secretary, in June 2017, and the remaining viable cases were transferred to the Service Police Legacy Investigation (SPLI). Correction: Andrew Cayley—the former Co-Prosecutor of the ECCC and all-around ICL veteran—is the U.K.’s Director of Service Prosecutions; he and his team are providing close legal advice to these proceedings, but Cayley is not leading the investigations.

Myanmar: Finally, in an unprecedented move, the Prosecutor sought an early ruling on jurisdiction with regard to the plight of the Rohingya Muslims in Myanmar. (See earlier coverage here). Although Myanmar is not a party to the Rome Statute, neighboring Bangladesh is. The Prosecutor’s theory is that an essential element of the crime against humanity of deportation—the crossing of an international border—has taken place on the territory of a state party, thus satisfying Article 12(2)(a). The PTC has received a number of submissions from non-governmental organizations (including one from Guernica37 and a consortium of Bangladeshi civil society organizations) and victims’ counsel in support of jurisdiction and also arguing that the Court may be able to exercise pendant jurisdiction over other international crimes—including sexual violence and potentially genocide—if territorial jurisdiction exists over the deportations (see this skeptical view).  UPDATE: The Court ruled that it has jurisdiction over these events.

A Fact Finding Mission dispatched by the U.N. Human Rights Council recently concluded that war crimes and crimes against humanity are being committed in Myanmar and recommended that six named individuals from the Tatmadaw army should be investigated for genocide. It also called for the creation of an independent international investigative mechanism along the lines of the Syrian IIIM. Myanmar has not formally participated in the proceedings, although it has raised concerns about the jurisdictional ruling. Bangladesh, by contrast, has issued encouraging remarks. So far, the Security Council has not heeded calls to refer the situation to the ICC, which would allow the Court to exercise the full scope of the persecution suffered by this most vulnerable group.

Aggression: In other developments, the Assembly of States Parties (ASP) at its 16th session in December 2017 activated the Kampala aggression amendments as of July 17, 2018. As Alex Whiting has noted on these pages,

given how narrowly they defined the crime, and the scope of the ICC’s jurisdiction, its significance may be largely confined to its declarative and symbolic force, though this is a value that should not be underestimated.

The resolution issued by the ASP in connection with this activation appears to have resolved a longstanding debate over which states are bound by the aggression amendments: all current state parties (unless they affirmatively opt out, as is allowed) or only those state parties that affirmatively ratify the amendments (and do not avail themselves of the opt out). As it turns out, and as outlined by Austria in a discussion paper, the majority of states favored the ASP activating the amendments without attempting to resolve this debate through negotiations.

Thanks to a last-minute proposal by the United Kingdom and France, the more restrictive, opt-in option has prevailed. The activation resolution thus states at operative paragraph 2:

that in the case of a State referral or propio motu investigation the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments.

This resolution adds to the political understandings and pronouncements that encumber the Kampala amendments. It remains unclear what legal authority these supplementary texts enjoy given that they do not fit cleanly into the Vienna Convention on the Law of Treaty’s interpretive framework. Ultimately, of course, it will be for the Court to decide their impact. The activation resolution alludes to this by invoking the principle of judicial independence at operative paragraph 3:

Reaffirms paragraph 1 of article 40 and paragraph 1 of article 119 of the Rome Statute in relation to the judicial independence of the judges of the Court…

As at Kampala, the debate clocks had to be suspended in order to reach consensus in time. For a dramatic play-by-play account of these protracted negotiations around the crime of aggression, see this excellent article by Claus Kreß of Germany, who has been a central figure in these negotiations since their inception.

So far, 35 stated have ratified the amendments, mostly in Europe and Latin America (with Palestine a noteworthy exception).