Challenges in International Justice

Written by: Regina Paulose

Josh D. Scheinert wrote a post in the Huffington Post critiquing the possible failures of the ICC.[1] While his post raises interesting points, his critique seems a bit unfair.  Continue reading

The Ineffectiveness of the Rome Statute

Syria. Egypt. Libya. The Democratic Republic of Congo. These are just a few of the countries where international crimes continue unabated. Nations where the perpetrators of impunity continue with their activities confident that there is little that the international community can do. In Kenya, two international crime suspects were elected to the two highest offices in the land[1]. Which then begs the questions: What went wrong with the enforcement of the resolutions of the Diplomatic Conference of Plenipotentiaries convened in Rome in 1998? [2] Apart from creating an administrative body based at the Hague and thousands of well paying jobs for the boys what else is there to celebrate about this treaty?  Continue reading

Superior Orders under the Rome Statute: a Flawed Development

Individual criminal responsibility for the violation of the provisions of International Humanitarian Law is the matter of International Criminal Law. The latter, in turn, envisages different forms of responsibility for the crimes committed as well as certain grounds upon which one may be relieved of the aforementioned responsibility. Article 33 of the Rome Statute of the International Criminal Court deals with individual responsibility in cases of superior orders or the prescription of law and states that:

1.         The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:

(a)     The person was under a legal obligation to obey orders of the Government or the superior in question;

(b)     The person did not know that the order was unlawful; and

(c)     The order was not manifestly unlawful.

2.         For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.[1]

Several interesting issues should be pointed in respect to this. First, in order to relieve one of individual criminal responsibility under Article 33 its conditions (a), (b) and (c) have to be met cumulatively. Moreover, Article 33 won’t be of much help when committing a crime of genocide or a crime against humanity pursuant to an order of the government or a superior. Thus, given that the Rome Statute currently envisages only three crimes which fall under the jurisdiction of the Court (genocide, war crimes, crimes against humanity), meeting the aforementioned criteria cumulatively arguably relieves a person of criminal responsibility only for the committal of war crimes.

One should bear in mind that this provision of the Rome Statute is different from those of the Charter of the International Military Tribunal (the Nuremberg Tribunal), the Charter of the International Criminal Tribunal for the former Yugoslavia and the Charter of the International Criminal Tribunal for Rwanda which provided for individual criminal responsibility of subordinates notwithstanding the circumstances. The decision of the ICTY on the case of Dražen Erdemović is notable in this regard. On the 16 of July 1995 Dražen Erdemović, a soldier of the 10th Sabotage Detachment, and others received an order to execute 1000-1200 men and boys who had surrendered to the members of the Bosnian Serb police or army near Srebrenica. Erdemović allegedly resisted the order, but was then told that he either shot them, or hand his gun to another, and join those to be killed. Erdemović followed the order and performed the execution. He was brought before the ICTY and found guilty notwithstanding the circumstances since the ICTY Charter did not contain provisions on the relief of criminal responsibility.[2] This was fortunately fixed in the Rome Statute, yet, one might argue that the latter has its own flaws.

Since the provisions of Resolution RC/Res.6[3] adopted at the Kampala Conference and amending the Rome Statute do not affect Article 33, one can reasonably argue that meeting its three criteria cumulatively also relieves one of criminal responsibility for the committal of the crime of aggression. The definition of the crime of aggression is set in Article 8 bis (1) of the Rome Statute:

For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

To narrow it down a bit in order for there to be a crime of aggression there has to be an act of aggression which constitutes a manifest violation of the UN Charter. Bearing in mind that the three criteria have to be met cumulatively a person is relieved of criminal responsibility only if the order of a superior or the government is not manifestly unlawful. If these two statements are put together, the following question arises: can an order to perform an act constituting a manifest violation of the UN Charter be not manifestly unlawful? I doubt it.

Moreover, as argued by P. Gaeta, “if the performance of an order by a superior implies the commission of a war crime, the order cannot but be considered manifestly unlawful, given the very serious nature of the conduct prohibited by the international rules on such crimes. The illegality of an order which constitutes a grave breach of the 1949 Geneva Convention (such as the order to kill, torture or threat inhumanely persons protected by the Conventions) is obvious.”[4]

Therefore, the provision of Article 33(1)(c) of the Rome Statute read in conjunction with Article 33(2) is arguably futile since it can hardly be applied to any crime at all, however, in the absence of any judicial practices in this respect it is hard to tell whether the ICC will unconditionally decline the challenges raised under it. Moreover, currently the Court primarily focuses on superiors and given that it operates in a highly charged political atmosphere and still has to assert itself within the international community the application of Article 33(1)(c) is not likely to happen within the near future.

Written by Jan Guardian


[1]       UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, Article 33 [online][accessed 31 July 2013].

[2]       Prosecutor v. Dražen Erdemović (Sentencing Judgement), IT-96-22-Tbis, International Criminal Tribunal for the former Yugoslavia (ICTY), 5 March 1998 [online][accessed 31 July 2013].

[3]       Kampala Review Conference, Resolution RC/Res. 6, 13th Plenary Meeting, June 11, 2010, I.C.C. Doc. RC/Res. 6 [online][accessed 31 July 2013].

[4]       Paola Gaeta, The Defence of Superior Orders, 10 EJIL 172 (1999), p. 185 [online][accessed 31 July 2013].

Sound Sentencing? Aggravating Factors in Lubanga

Written by: Regina Paulose

Hidden deep within the Rome Statute and the ICC Rules of Procedure of Evidence (RPE) are the sentencing guidelines for the ICC. These articles receive very little attention. This is most likely because there has been only one case which has reached the sentencing phase at the ICC. How the Chamber interprets aggravating factors and the challenges that lay ahead in the use of aggravating factors is the focus of my article this month. Continue reading

Do Not Touch My President

The election of Uhuru Kenyatta and William Ruto as President and Deputy President of Kenya respectively brings again to the foreground the issue of immunity from prosecution. The two are currently suspects of international crimes facing charges at the International Criminal Court. Do they, by virtue of their current status, enjoy any immunity-whether functional or personal-from prosecution by the International Criminal Court? This question, especially in light of the provisions of the Rome Statute, might seem to be obviously in the negative. After all the provisions of Article 27 are patently unambiguous:

“This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government…shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence”
“Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person”

One must applaud the attempt by the drafters to ensure that impunity is fought on all fronts. True, criminals should not be allowed to use their positions to hide from the natural consequences of their actions. The echo of this call comes all the way from the Nuremburg Military Tribunal. Indeed even the United Nations General Assembly affirmed the Nuremburg principles by resolution thus:
“(1) any person who commits an act which constitutes a crime under international law is personally responsible and as such is liable to punishment; (2) that the act is not in violation of internal law within the host State does not exempt responsibility for it under international law; (3) the status of the defendant does not exempt him from responsibility under international law; (4) that the act was an order by the government or superior does not exempt it from responsibility under international law; (5) any person charged with a crime in violation of international law has a right to a fair trial; (6) the crimes in violation of international law are crimes against peace, war crimes and crimes against humanity; (7) collaboration in the foregoing crimes is a crime under international law” (i)

The ICC itself has also had occasion to ruminate on the question of the immunity of a serving head of state. In the Bashir case(ii) on an application for warrants of arrest against the current President of Sudan, the court stated that the “current position of Omar Al Bashir as Head of a state which is not a party to the Statute, has no effect on the Court’s jurisdiction over the present case…(since) one of the core goals of the Statute is to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole which, must not go unpunished”(iii) . Thus, President Bashir became the first sitting head of state to face criminal charges in an international court.
Whereas the court’s reading of the law in the Bashir decision seems prima facie correct there was a lost opportunity to provide further guidance on an otherwise still grey area. If a head of state is indicted, for example, what privileges is he entitled to during the trial? Surely the individual who is the personification of an independent sovereign state should not have the same treatment as a common criminal. It would make sense, for example, to allow the head of state to forego all but very necessary appearances in court in light of his/her often punishing work schedule and, more importantly, so as to ensure that the lives of the nation are not held in suspense for years as the trial proceeds. It would also seem appropriate to allow the head of state to waive, if s/he chooses, any personal appearances in court so as not to embarrass the state concerned.
I also submit that the supposed removal of the immunity of heads of states is not without exceptions. Article 98 of the Rome statute for example provides as follows:
“1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that
third State for the waiver of the immunity.

2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender”

If therefore, for example, the government of Sudan has a bilateral agreement with say the government of Malaysia where each country agrees not to release the other country’s citizens to the ICC then Bashir’s immunity would prevail whenever he visits Malaysia. A warrant of arrest to all and sundry, such as the one issued by the Bashir court is therefore questionable.
If the immunity of heads of states is taken away then how, pray tell, do we deal with the other treaties that provide protection to them? What of customary international law that provides that heads of states are “untouchable”? The Vienna Convention on Diplomatic Relations 1961 for example, provides that “the person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity”(iv) . The rationale for this is simple: the diplomat represents the sending State. The principle of sovereign equality of States would therefore not countenance a situation where the host state arrests or charges the diplomat. Similarly, what applies for the diplomat would apply to the head of state. It would be a legal misnomer for the diplomat to be protected in order to preserve the “purposes and principles of the Charter of the United Nations concerning the sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations”(v) while not affording the same level of protection to the heads of state. If, as has been decided, a host state cannot arrest or charge diplomats or heads of states in the national courts (vi), they should also not be able to arrest them at all (vii). The principle of sovereign equality of states is applicable at all times. Since there is no “international police force” any State that attempts to arrest a sitting head of state would be interfering with a cardinal principle of international law. Evidently therefore “the exercise of jurisdiction of international criminal courts can have serious consequences for the sovereign equality of states and the intercourse of international relations…just like the exercise of jurisdiction by domestic courts over foreign State officials, the ICC’s exercise of jurisdiction in such cases can engender severe repercussions for the fabric of inter-state relations. The exercise of jurisdiction by, the Court will affect, and be affected by, the same considerations of State sovereignty that inform the doctrine of head of state immunity and its application before domestic courts”(viii)

Lastly the practicality of removing the immunity of a sitting head of state is in doubt. Intricate relationships among states cannot allow this. With the knowledge of the repercussions of any attempt to arrest any sitting head of state, nay any senior government official, who, pray tell, would bell the cat?
_________________________________________________________________________(i) General Assembly Resolution, Affirmation of the Principles of International Law Recognized by the Charter of the Nurnberg Tribunal 95(I), 11 December 1946.

(ii) In the Case of the Prosecutor V. Omar Hassan Ahmad Al Bashir (“Omar Al Bashir”)- Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, No. ICC-02/05-01/09

(iii) Ibid para. 41-42

(iv) Article 29

(v) Preamble to the Convention

(vi) Heads of States immunity from the jurisdiction of national jurisdiction has been affirmed by the ICJ in Certain Questions of Mutual Judicial Assistance in Criminal Matters (Djibouti v France). For more see Immunities of State Officials, International Crimes, and Foreign Domestic Courts by Dapo Akande and Sangeeta Shah, EJIL (2010), Vol. 21 No. 4, 815–852- http://www.ejil.org/pdfs/21/4/2115.pdf

(vii) Admittedly, in the case of Prosecutor v Charles Ghankay Taylor, Case Number SCSL-2003-01-I, Decision on Immunity from Jurisdiction, 31 May 2004 the court held that “the principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.” But, since Mr Taylor was no longer serving as a head of state at the time, the considerations were different.

(viii) The Survival of Head of State Immunity at the International Criminal Court, Wardle, Phillip, Australian International Law Journal, Vol. 18