An ICC Trial Chamber brings the Kenyatta case closer to an end

By Dov Jacobs [Cross posted on Spreading the Jam

On 3 December 2014, a Trial Chamber at the International Criminal Court (ICC) issued two decisions in the case against President Kenyatta of Kenya. Together, these decisions bring the case yet closer to a close, even before the trial even started. As you might know, a few weeks ago, the Trial Chamber held two status conferences at which was discussed the question of Kenya’s alleged lack of cooperation with the Prosecutor’s investigation, the OTP request for another adjournment of the trial and the Defense’s corresponding request for a termination of the proceedings.

Today’s decisions when read together can only be read as an unmitigated disaster for the Office of the Prosecutor (OTP). In the cooperation decision, the Trial Chamber, while recognizing some elements of bad will on the part of Kenya, ultimately considers that it would be inappropriate to make a finding of non-compliance because ultimately “while cooperation by State Parties is crucial for the functioning of the Court, the primary responsibility for investigation lies with the Prosecution” (§85). In light of this, the Chamber considered that the OTP did not do all it could to follow through on its own request for cooperation. As noted by the judges (§88):

The Chamber considers that the approach adopted by the Prosecution to the cooperation was, in some respects, not reflective of a prosecutorial and investigative body effectively seeking to obtain the requested materials. If the primary objective of pursuing the cooperation request at this time was to actually obtain the requested materials, the Chamber would have expected to see a greater degree of diligence, persistence and, where necessary, flexibility on the part of the Prosecution. The Chamber does not accept that the Prosecution has no independent means of taking such an approach. It ought to be pursued both throughout the course of the cooperation and when ultimately seeking to persuade the Chamber that a finding under Article 87(7) of the Statute is warranted. In summary, considering the overall interests of justice and integrity of the proceedings, the Chamber does not consider that the requisite burden has been met.

This is a extraordinary indictment of the OTP’s perceived lack of diligence in the conduct of the investigation and follow-up of the cooperation request and justifies the finding that a finding of non-compliance is not warranted at this stage and that in any case “referral [of a state to the ASP] for the purpose of sanction should not be seen as a compensating for any deficiency on the part of the Part of the Prosecution in fully investigating and prosecuting the crimes under the jurisdiction of the Court” (§84).

The decision not to grant the adjournment follows the same logic. Essentially, the Chamber blames the OTP for the case falling apart (§52):

More generally, the Chamber also recalls its findings regarding the failure on the part of the Prosecution to take appropriate steps to verify the credibility and reliability of evidence on which it intended to rely at trial, being, in the Chamber’s view, the ‘direct reason’ for the Prosecution’s evidence falling below the required standard at such a late stage.

Given these circumstances, it would be unfair to the defendant to prolong the process any longer. In coming to this conclusion, the Chamber rightly rejects a number of points made by the OTP, and which I had criticized a few weeks ago when live tweeting the status conference.

For one, the Chamber considers that allegations that Mr. Kenyatta is responsible for the lack of cooperation of Kenya cannot be accepted without actual substantiation and that the proper route to address this would in any case be Article 70 of the Statute on offenses against the administration of justice (§53).

Second of all, the judges do not follow the OTP’s claim that the adjournment should be pronounced in order to send a message to States that they cannot frustrate the proper exercise of the function of the court by not cooperating. In my view, they do not reject this assertion strongly enough. They seem to accept the OTP’s point on principle, but say that it needs to be balanced with the rights of the accused (§44). For me, these issues are entirely unrelated. As the Chamber said in both decisions, the burden for building a good case rests on the OTP, not States and the existence of such a case should be the only relevant factor in proceeding to trial. The non-cooperation of a State, while a problem, should not be used to prejudice the defendant. If the drafters of the Rome Statute decided not to grant the Court with stronger powers against States, this is not the defendant’s fault.

Third of all, the judges courageously, given the sensitive dimension of the question, to let the “interests of victims” affect their decision. They note that:

in the context of criminal proceedings, the interests of victims must be balanced with other interests of justice. While the victims’ legitimate interests include seeing those responsible for the crimes committed being held accountable, the Chamber does not consider that, in light of the presumption of innocence, it would be in the interests of justice, or the interests of the victims, for the current proceedings to be continued on the speculative basis which has been presented.

Again on this point, I would have possibly framed this slightly differently. Indeed, the victims have “interests” while the defendant has actual “rights” that are at the heart of the fairness of the proceedings. The balancing test can therefore not be balanced, if I can express it it this way. But given the current practice of the Court in relation to victims, the Chamber can only be lauded for putting the rights of the defense first.

Finally, it should be noted that the Chamber did not follow the Defense’s clever , but unrealistic, invitation to enter a verdict of acquittal, which would conveniently triggered the ne bis in idem principle. Rather, the Chamber chooses to respect the last shred of discretion left to the Prosecutor at this stage: either show that there is enough evidence or drop the charges. This reminds me a little bit of the mafia boss who gets to the insider witness who was going to testify against him, leaves a loaded gun on the table and tells him: “you know what is the decent thing to do” before leaving the room…

Overall, in the circumstances, based on the OTP’s concession that its case is just not good enough to go to trial, one can only agree with the Trial Chamber’s decision.

What is the effect of this decision? it is obviously a huge success for Mr. Kenyatta who is likely to remain a free man and won the fight even before entering the ring.

From the Court’ perspective, things are a little ambiguous. On the one hand, the judges (and to some extent the OTP) took their responsibilities seriously in not proceeding to trial without a case. In a way, and rather counter-intuitively for some I’m sure, this actually proves that the system works. On the other hand, this is one more massive blow to the practices of the OTP in terms of investigations, the same week that Judge Usacka leveled the same criticism in a dissenting opinion in the Lubanga Appeals Judgment, and after difficulties faced in both the Katanga and Gbagbo cases. The OTP has been very vocal in the past few years about changing its investigative practices. Even accepting the genuineness of these claims, it is time for actual results to be seen in that respect.

For the Court generally, this case illustrates the difficulties of investigation senior political figures in power and raises doubts about the general efficiency of the process. Seven years after the post-electoral violence in Kenya that triggered these proceedings one cannot help but note the irony of the ICC telling Kenya, at the time, that it had not moved fast enough in prosecuting those responsible. If the Court is going to present itself as the judge of the adequacy of domestic measures to fight impunity, it should start setting the right example.

A Molotov Cocktail on the Principle of Legality: STL confirms contempt proceedings against legal persons

By Dov Jacobs [cross posted on Spreading the Jam]

In January 2014, a contempt judge of the Special Tribunal for Lebanon (STL) confirmed an indictment for contempt proceedings which included a legal person, a first for an international criminal tribunal. At the time, I raised some doubts about the reasoning of the judge, who applied a teleological reasoning that essentially allowed him to create law based on his own interpretative preferences. I also did not find convincing the idea that the interpretation of the term “person” for the purposes of contempt proceedings could be different than the interpretation of the same term in article 2 of the Statute of the Tribunal when it came to personal jurisdiction of the tribunal generally.

In July 2014, another contempt judge reversed the first ruling, considering that the term person should be interpreted narrowly in light of the principle of legality and could not include legal persons.

Last week, an Appeals Panel of the STL reversed this latter decision, held, by majority, that legal entities could be covered by contempt proceedings and, as a consequence, reinstated the proceedings against a media company. This decision is very interesting, and problematic, in the way it approaches the question of both inherent jurisdiction and general rules of interpretation and has just entered my top 10 worst argued decisions in ICL. It might even enter my top 3, along with the SCSL amnesty decision and the ICC Malawi decision on immunities.

It would take up too much space here to comment on the decision extensively, but I just want to highlight how the Appeals Panel has found the perfect Molotov cocktail to kill the principle of legality: the “spirit” of the statute combined with inherent jurisdiction.

  • The Spirit of the Statute

First of all, the decision seriously over-relies on what is called the “spirit” of the Statute as a source of interpretation, which, according to the judges, allows for a more “liberal” interpretation of the Rules (para. 27). This leads the judges to blame the contempt judge for interpreting the term “person” in accordance with the letter of the Statute rather than its spirit (!!!). The problem with that is that I don’t know what the “spirit” of the statute is. Trusting judges in relation to this spirit is like trusting the weird looking guy in the tent at the town fair that he can contact the spirit of your grandmother: he basically gets to tell you what he wants…

For the judges of the Appeals Panel, the spirit of the statute, in a nutshell, is the “fight against impunity” for those who obstruct the course of justice, which allows for a teleological interpretation that  includes legal entities. Once they have decided this, the judges look for anything under international law that would not allow them to interpret person in that way… At this point, it’s not even teleological interpretation anymore, it’s backwards reasoning in its purest form!

The Appeals Chamber makes an incredibly broad assessment of international and domestic pronouncements on corporate liability (in general, not necessarily for contempt!) to conclude that nothing prevents the judges from interpreting “person” in a broad way (para. 60).

Even  more amazing, the STL goes through the whole history of ICL where no legal entity was ever prosecuted for contempt or otherwise, but finds it unpersuasive, concluding that section with the extraordinary vague statement that “corporate criminal liability is on the verge of attaining, at the very least, the status of a general principle of law applicable under international law” (para. 67).

“On the verge of attaining”? What a marvelous new source of law. Following the progressive view of the Appeals Panel, I suggest that Article 38(1) of the ICJ Statute now read as follows:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;


e. Any norm on the verge of attaining the formal status of any of the above

  • The inherent jurisdiction of the Court

Inherent jurisdiction has always been a problematic issue, useful for creative judges over the years. But surely there has to be a limit to it. The problem is that the way the Appeals Panel uses it makes it extraordinarily large. There are a number of pronouncements in the decision on the (lack of) scope of the inherent jurisdiction of the tribunal, but this one wins the prize for honesty:

When operating within the realm of our inherent power, our jurisdiction remains undefined, only to be determined upon the crystallization of circumstances that call for a judicial pronouncement

In other words, we don’t know what our jurisdiction is, you don’t know what our jurisdiction is, but don’t worry and trust us: we’ll tell you when we get there. This cannot be how jurisdiction (inherent or otherwise) should work, especially in the current case of contempt (i.e, criminal) proceedings.

  • The end of the principle of legality

The problem with everything I have described so far is that we are here dealing with criminal charges, not a innocuous rule of procedure relating to the extension of the number of pages in a brief. Inherent jurisdiction cannot be used to trump the principles that should apply in criminal law matters, notably the principle of legality and its corresponding rules of interpretation: strict interpretation and in dubio pro reo. In that respect, someone should have pointed the judges to Article 22 of the Rome Statute.

In light of this, as pointed out by the dissenting judge, both human rights law and general principles of ICL should have led the judges to consider these basic principles in interpreting the term “person” in the RPE.

  • Some concluding thoughts

First, a logical point: as I pointed out in my previous post on this, for me the interpretation of term “person” in the RPE should necessarily mirror the interpretation of the term “person” in the Statute. If the STL cannot prosecute legal entities for killing Hariri, it cannot prosecute them for contempt. If not, as I said in my previous post and as picked up by the dissenting judge (who forgot to quote me…), the “spirit” of the statute would be that legal entities should not commit the horrendous and humanity-offending crime of publishing a list of witness, but can commit murder, bodily harm and terrorism without being bothered…

Second, a legal reasoning point: as with the first contempt judge who accepted the indictment for legal persons, the Appeals Panel essentially give us reasons why corporate entities ought to be held responsible for contempt. These might be valid reasons, but it’s not their job.

Third,  an argumentation point: the judges refer in an amazingly broad way to the evil that corporate entities can wrought upon the world. And this is just to extend contempt jurisdiction! It seems like overkill to me. What will the first international judge to prosecute a company for genocide be able to say?

Fourth, and finally, an endless point of frustration: the drafters of the STL Statute, in their infinite (lack of) wisdom, still thought it was a good idea to let judges write their own RPE. As a result, the RPE are written by the judges, can be changed by the judges as they please, and then get interpreted by the judges. In this context, it is somewhat farcical to see them pretend to find the higher “spirit” of the Statute, fill 30 pages of analysis of domestic legislation and international pronouncements on the responsibility of legal entities and provide general moral musings on corporate liability in order to divine the true meaning of the word “person”. But, judges wrote the RPE! Adding up pages of argumentation will not bring us any closer to telling us what they were thinking when they drafted the rules on contempt in the first place and answer this ultimately very simple question which seems to have been ignored in the entirety of these proceedings: if they thought that corporate liability for contempt was so important, to the point of it verging on attaining a legal status, why did they not include it, just to make everyone life easier down the road?

In any case, I’m not sure things are over yet. It is now 3-2 for judges who want to extend contempt to legal persons. Not a large consensus. Let’s see what happens next…

Draft Statute for Syria War Crimes Tribunal: A first commentary on a disappointing effort

Cross-posted on Spreading the Jam

Today, a prestigious group of experts publicly “unveiled” a draft statute for a Syrian Tribunal. The list of contributors is quite impressive, including leading scholars in the field (Scharf, Bassiouni, Schabas, Newton), former international Prosecutors (Crane, Desmond da Silva, Goldstone) and such prestigious personalities as David Scheffer (whose influence is obvious from the expression “atrocity crimes” in the proposed name of the tribunal) and Patricia Wild.

The text of the draft statute, including commentary, was made available to interested readers, and warrants some commentary of itself.

CAVEAT: It should be noted that the following commentary is based on a publicly available version of the text that is dated 27 August 2013. I have not been able to find any new version that might have been unveiled this morning. Should there be any new version which might include any changes relating to the points I discuss below, I’d be happy to amend my views accordingly.

  • On the context of the setting up of the Tribunal

From a technical perspective, the draft statute seems to only consider and prefers the option of domestic enactment of the law (Introduction and footnote 1). This has been a debated issue for all hybrid tribunals, which have been set up through a diversity of mechanisms (Treaty for Sierra Leone, UN Territorial Administration regulations for East Timor and Kosovo, UNSC Resolution for Lebanon, Treaty and national legislation for Cambodia, Provisional authority then national law for Iraq). Technically, this should lead to different situations in terms of relationship with national authorities and application of international law, but generally, these issues have tended to be ignored by all hybrid courts in favor of a common “we’re just different” approach. The current draft is no different, as there seems to be no notable impact on the language used in discussing the tribunal framework, other than the suggestions to “import” domestic procedural provisions (see below).

More generally, the introduction to the draft statute illustrates the form of illusionary neutrality of some promoters of international criminal law by suggesting on the one hand that all sides of the conflict would be prosecuted, but suggesting that the tribunal would be set up “presumably following a change of regime”. This is problematic because it seems to suggest that international justice mechanisms are compatible with political transitions. I’m not entirely sure that is true, or at least believe that this assumption needs to be questioned. Calling for accountability on all sides of the conflict might be a nice slogan, but it then leads to the question of who will then be in charge, given the fact that there is probably no one in this kind of situation with clean hands? I raised the same question a few years ago on Ivory Coast and have since then gotten my answer: only one side of the conflict is effectively being prosecuted, whether in Ivory Coast or at the ICC. The same would undoubtedly happen here, to a more or less big extent.

This in turn raises the question of adopting a more comprehensive approach to justice and peace-building that does not impose pre-conceived models of international justice on a given situation, as suggested by Carsten Stahn over at EJIL Tallk!.

  • On the relationship with the ICC

Discussions on the setting up of accountability mechanisms for Syria generally present things in a binary way. It’s either the ICC, or a special tribunal for Syria. Interestingly the draft statute considers that the two are not mutually exclusive. Indeed, in discussing the proposed personal jurisdiction of the tribunal, it mentions the fact that Syria could join the ICC and give retroactive jurisdiction to cover the civil war, but concludes that “the ICC traditionally takes jurisdiction over only a handful of highest level defendants, so there would still be a need for the Syria Tribunal to prosecute the next level of culpable civilian and military leaders” (footnote 4). 

This hypothetical scenario would be interesting in relation to how complementarity would work when a hybrid tribunal is involved, given that Article 17 only explicitly considers the situation where a “state” is exercising jurisdiction as a trigger for complementarity.

  • On some procedural aspects of the proposed tribunal

There are a number of open questions in the draft statute on the procedural framework of the proposed tribunal, which revisit traditional debates of the past few years, such as the issue of whether defendants can represent themselves, whether victims should be allowed to participate, whether trials in absentia should be authorized and the existence of an investigative judge. These questions bring in a number of cross-cutting considerations, from the past practice of other international tribunals to the need to give due consideration to Syrian legal traditions.

I feel the suggested flexibility in this respect welcome. I personally think that trials in absentia if obviously not ideal, should be a judicial policy option and I appreciate the fact that the document very clearly acknowledges, even if not referring directly to the ICC, that victim participation has revealed itself to be a problem (footnote 18):

Allowing victims and their counsel to participate in trials may present a myriad of logistical and legal challenges for this new court. This is particularly true in an extremely volatile and dangerous environment as exists, and will continue to exist, in Syria. The focus for the new court should be on ensuring that victims have a meaningful and constructive way to address the court in the post-trial stage of the proceedings and obtain restitution when feasible. Further, defendants will potentially be deprived of the right to an expeditious trial when victims participate. The cases heard by the new court will be extraordinarily complex, necessitating lengthy trials. Victim participation lengthens the trials even further, often presenting repetitious questioning of witnesses and additional filings for the court to address and decide upon, and for the defense to spend time refuting. Regarding equality of arms, victim participation and the ability of victims “to lead and challenge evidence” can create procedural disadvantage for the defense. When victims have the ability to lead evidence, allocation of the burden of proof becomes murky and defendants have a greater burden to contend with all of the additional information presented against them by victim participants. Although Syria has civil party participation in its courts, for the reasons stated above, the experts believe that a different approach may be more desirable for this Tribunal.

I perfectly agree with this statement and hope that any final statute would mirror this feeling. However, I wonder if, in prevision of a more than likely outcry from victim-orientied human rights organisations, the drafters should not have more explicitely laid out a detailed alternative where, even if victims could participate, the level and manner of such participation would be strictly delineated to avoid the ad hoc unpredictable approach at the ICC which ends up, in most cases, being detrimental to the rights of the defense.

  • On the applicable law of the proposed tribunal

Before going into more detail, just a word on what I think is one of most disturbing comments in the draft statute (footnote 30):

The crimes in this Statute are defined as they are in the Rome Statute establishing the  International Criminal Court. The crimes in the Rome Statute are further defined in an  instrument known as the “Elements of Crimes,” on which the Syrian Delegation joined  consensus in Rome. According to Article 15 of the International Covenant on Civil and Political Rights, a treaty that Syria has ratified, international crimes are lawfully  punishable even where there is no domestic law criminalizing them at the time of their  commission. International crimes, including those defined in the Rome Statute, are not subject to the prohibition on ex post facto application of criminal law

I think the authors make a vastly exaggerated reading of Article 15 of the ICCPR which states that:

“2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.”

For me, this provision was a kind of ex post facto saving clause for the Nuremberg trials and should be used with care. In this sense, this provision does not say that ex post facto application of international criminal law is never a problem, it just applies a more flexible (if debatable) definition of what does not constitute ex post facto criminalization. Second of all, it remains to be seen whether all crimes within the ICC statutes fall within the ambit of Article 15 of the ICCPR, which is far from clear.

More generally, I am always amazed at the carelessness with which some international criminal lawyers approach the fundamental issue of the principle of legality. I’ve argued against this elsewhere and think that there are in fact very few (if any) valid reasons to apply a less stringent approach to the principle of legality to international crimes and in international criminal courts than in any domestic system.

Moving on to the actual applicable law, on the face of it, there is nothing that notable in the draft statute, which seems to import definitions from the Rome Statute in relation to genocide, crimes against humanity and war crimes. One omission did strike me: in the provision on war crimes, the drafters did not reproduce Article 8(2)(f) of the Rome Statute on the minimum threshold of what constitutes an armed conflict as opposed to internal disturbances. This might not in fact make any difference in practice, as the judges of the tribunal would still be able to discuss this dimension, but I think it shows, once again, the ideological bias of the authors in trying to remove any obstacle for the march forward of ICL.

  • On the modes of liability of the proposed tribunal

Nowhere is this ideological bias more apparent than in the modes of liability. Indeed, while the draft seems to mostly adopt the ICC modes of liability, there are a couple of notable differences.

First of all, the provision on aiding and abetting is changed from the ICC Statute. While the Rome Statute reads as follows (Article 25(3)(c)):

For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

The draft statute removes the “for the purpose of facilitating the commission of such a crime” part. There is a footnote that is very explicit on the reason for that:

This revision avoids the problem that has surfaced in recent ICTY cases, that have interpreted “for the purpose of facilitating the commission of such a crime” as a substantial restriction.

In other words, the drafters do not like Perisic, which they see as a “problem” and want to make sure that it does not have a future. Whatever one thinks of the “specific direction” question, I think this way of using the statute for a Syria tribunal to push forward ideological agendas is slightly dishonest. It is not for this group of individuals to decide what is a “problem”, nor do they actually explain why it is a problem. Modes of liability, by definition, set “substantial restrictions” on what kind of conduct leads to responsibility and what kind of conduct does not. This cannot be a reason in itself to change the wording of the Rome Statute on this point.  Finally, this is a live current debate in international criminal law today, which cannot be just brushed aside casually by removing words from a statute.

I also note that such “choice” does not extend to other modes of liability, despite strong discussions and debates. For example, Article 25(3)(a) of the Rome Statute, which was interpreted in a rather novel way by the judges to create the much contested new mode of “indirect co-perpretation”, is imported without further commentary or clarification. This is probably due to the fact that it is not a “problem” because it expands individual responsibility, rather than create a “substantial restriction” on it…

The same holds true of the draft provision on superior responsibility, which removes the different mens rea thresholds contained in Article 28 of the Rome Statute between military commanders and civilian leaders. In essence, while at the ICC, they is no negligence mens rea for civilians, the draft statute has the same low threshold for both civilians and commanders. And the document does not even acknowledge this difference, or suggest a choice for the authority that would ultimately decide on the creation of the tribunal.

This is particularly dishonest in the present case, given that earlier in the document, the drafters refer to Syria being part of the consensus in Rome to justify importing the ICC crimes, only to ignore this aspect now in relation to the modes of liability.

UPDATE: I have deleted the paragraph on the “legal burden of proof”.Conclusions

I’m not convinced by this draft. I would expect such accumulation of expertise to produce something more convincing and less sloppy (see for example, the “general principals of criminal law”, or the inclusion of the witness protection provision under the heading of “rights of the accused”…). 

I also think that the attempts at pushing forward ideological agendas, particularly in relation to modes of liability is disturbing, in their systematic desire to make convictions more likely. This is possibly due to the fact that former prosecutors of international criminal tribunals appear so prominently in the list of contributors.

What this illustrates is more broadly what for me is a somewhat disturbing conflation between academia, policy, and legal and political activism. Indeed, this is not just a random academic exercise. The group of people that presented this draft are powerful and listened to academics and professionals in the field of international criminal law. With this, I think should come a responsibility to caution and a clear commitment to intellectual honesty in their assessment of the law, especially in delineating the law as it is and the law how they would prefer it to be. In other words, and to be clear, the drafters of the statute are perfectly free to propose any text they want, but they should be crystal clear on the fact that they are making normative claims in relation to debated issues in international criminal law today, rather than pretend that things are settled.

This “positivist” plea is not merely conceptual, it is (some would say ironically) a moral imperative. Indeed, such practice means that those who do it would no longer be justified in taking the moral high ground when others, such as government officials, for example, twist international law into authorizing torture or allowing the invasion of other countries without security council approval. This might appear as an extreme comparison, but what’s the difference between the two, other than the allegedly better intentions of some? And we all know where the road paved with good intentions generally lead us…