International Criminal Court Review Conference Resolutions

Click here for ICC Review Conference Web site

The Review Conference of the Rome Statute concluded in Kampala, Uganda, on June 11, 2010. Remarkably, the Conference adopted a resolution amending the Rome Statute to include a definition of the crime of aggression and provisions for activation of the Court’s jurisdiction over the crime. The definition is based on 1974 United Nations General Assembly Resolution 3314 (XXIX).

In addition, the States Parties adopted a resolution amending Article 8 of the Rome Statute (allowing the Court to prosecute as a war crime the employment of certain poisonous weapons and expanding bullets, asphyxiating or poisonous gases, and all other liquids and materials, when such employment takes place in armed conflict not of an international character); and a resolution preserving in its current form Article 124, which allows new States Parties to exclude for seven years from the Court’s jurisdiction war crimes allegedly committed by its nationals or on its territory, but agreeing to review its provisions at the 14th session of the Assembly of States Parties.

Other notable resolutions adopted at the Conference include a resolution regarding the impact of the Rome Statute system on victims and affected communities; a resolution dealing with complementarity; and a resolution on the enforcement of sentences.

For more detailed information about the ICC Review Conference, check out the ASIL Insight by David Scheffer on this topic. See also the ASIL ICC Review Conference blog.

Source: ASIL

United Nations Security Council Presidential Statement on Israeli Operation against Gaza-Bound Aid Convoy (1 June 2010)

Click here for document (approximately 1 page)

In an emergency session, convened in the hours following the Israeli military operation in international waters against six ships carrying humanitarian aid to Gaza, which led to the death of ten civilians and the wounding of many others, the Security Council issued a presidential statement condemning the loss of life and expressing deep regrets regarding the use of force.

The Security Council also called for the “immediate release” of the seized ships and the civilians in Israeli custody. Finally, the Security Council called “for a prompt, impartial, credible and transparent investigation conforming to international standards.”

The blockade of Gaza, which was strengthened in 2007 when Hamas came into power, has been criticized by the international community, including the Security Council, as being unsustainable. Following a global outcry in the aftermath of the flotilla incident, Israel has reportedly eased the blockade, allowing necessary humanitarian aid to enter Gaza.

Source: ASIL

EU – US 2010 Declaration on Counterterrorism (3 June 2010)

Click here for document (approximately 3 pages)

The United States and the European Union (including its Member States) have issued a declaration detailing several measures necessary in “forging a durable framework to combat terrorism within the rule of law.”

The declaration emphasizes the need to ensure that all measures taken by the two parties are “in accord with . . . fundamental values and with full respect for the sovereignty of nations and the rule of law.” Notably, both parties reaffirmed their commitment “to implement prohibitions on torture, as well as on cruel, inhuman and degrading treatment and punishment.” Also significant is the parties’ commitment to ensure that terrorist suspects receive a fair and effective trial, “within a legal framework that provides for meaningful due process rights.” Finally, the declaration stresses the need to avoid racial, ethnic, and/or religious discrimination in combating terrorism. With respect to this latter commitment, the Spanish Interior Minister Alfredo Rubalcaba, whose country currently chairs the European Union, declared that “[t]his declaration is a message to the Muslim world . . . . We will be firm in the defence of our values, but we will show our tolerance vis-à-vis other cultures.”

Source: ASIL

ASIL Insight: The First Review Conference of the Rome Statute of the International Criminal Court

The First Review Conference of the Rome Statute of the International Criminal Court

By David Kaye

Introduction

Twelve years ago this summer, hundreds of delegations—from governments, non-governmental organizations, international organizations and elsewhere—cheered the establishment of the first permanent international criminal court in Rome. At the time, Rome Conference Chairman Philippe Kirsch exulted to the Conference newspaper, Terraviva: "This is an extraordinary moment, a historical moment. I am not sure to what extent those present here know how important this is for the future of humankind."[1] Much has happened in the years since Rome to clarify the significance of that moment. The Rome Statute of the International Criminal Court (ICC) entered into force in 2002.[2] The ICC has become a fully operational tribunal, seeking the arrests of individuals from Uganda, the Democratic Republic of Congo, Sudan and the Central African Republic, launching an investigation in Kenya, examining other situations and beginning three trials.[3] It not only seeks to hold accountable those it accuses of war crimes, crimes against humanity, and genocide; it has become an actor in domestic and international politics, in the countries where it pursues cases and in those countries that are non-States Parties anxious about the reach of its jurisdiction.

From May 30th to June 11th, the 111 States Parties to the Rome Statute—along with observer delegations from non-States Parties, NGOs, civil society, and others—will have an opportunity to assess the development of the ICC over the past decade when they gather in Kampala, Uganda, to hold their first Review Conference. While the Conference will take stock of the progress of the Court in a variety of areas and consider a handful of proposals on other matters, the negotiation of an amendment to add aggression as a crime under ICC jurisdiction promises to overshadow all else. At the same time, the United States will participate as an observer, bringing to Kampala not only a new level of American engagement and support but also strong opposition to any resolution of the aggression issue that fails to give the United Nations Security Council a pivotal role. All the while, the absence from the Court’s detention facility in The Hague of several high-profile accused individuals—such as Sudan’s President Omar Hasan al-Bashir and the Ugandan Lord’s Resistance Army’s Josephy Kony—will serve as a reminder that States Parties still have some distance to go before the Court operates as a credible response to mass atrocities.
This Insight takes an advance look at key issues on the agenda at Kampala.[4]

Aggression

Under the Rome Statute, the ICC may now exercise jurisdiction over three categories of crimes: genocide, crimes against humanity, and war crimes. The Court may not exercise jurisdiction over a fourth crime, aggression, until the State Parties adopt a provision "defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime."[5]

Aggression has a distinguished pedigree in international law, principally dating from the immediate aftermath of World War II. The United Nations Charter grants the Security Council the power to determine the occurrence of an act of aggression.[6] While the General Assembly adopted a Definition of Aggression in 1974,[7] the Security Council itself has never defined the term. The Charter of the International Military Tribunal (IMT) at Nuremberg designated a "war of aggression" as a crime against peace,[8] while the IMT for the Far East, the Tokyo Tribunal, similarly defined as a crime against peace "a declared or undeclared war of aggression."[9] Both the Nuremberg and Tokyo Tribunals convicted several high-ranking German and Japanese leaders, respectively, of the crime of aggression (and acquitted several others). Since that time, a number of international instruments have restated the criminality of aggression.[10] However, the international criminal tribunals since Nuremberg and Tokyo have not followed their steps, instead possessing jurisdiction only over war crimes, crimes against humanity, and genocide.

Notwithstanding its place in the post-war pantheon of international crimes, aggression was among the key controversies at the Rome Conference in 1998, and participants in Rome were unable to reach agreement on its definition or the mechanism to trigger the Court’s jurisdiction.[11] Since 2002, States Parties and others (including non-party governments and NGOs) participated in a working group (known as the "Princeton Process") to develop a consensus definition of aggression and the conditions under which the Court may exercise jurisdiction. Several prominent non-States Parties, including China, participated in these discussions; however, the Bush Administration decided that the United States would not participate. In the absence of the United States, participants achieved a definition for which a consensus has seemingly emerged. However, they failed to achieve consensus with respect to jurisdiction.
The proposed definition provides a substantive legal definition of the crime of aggression as
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.[12]

The proposal defines an act of aggression as "the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations."[13] Modeled on the UN General Assembly’s 1974 Definition of Aggression, the proposal provides a list of seven acts that qualify as acts of aggression.[14]

The proposal is arguably consistent with contemporary understandings of the jus ad bellum.[15] Yet much remains open to interpretation. For instance, how serious must an act of aggression be to merit ICC attention? To what extent would humanitarian justifications of force, such as those envisaged by the Responsibility to Protect,[16] be taken into account by the Court? Would the Court consider the examples of aggressive force illustrative or exhaustive?

Jurisdiction presents a much more serious obstacle to adoption of an aggression amendment. States and NGOs broadly agree that the Court could exercise jurisdiction where the Security Council has already determined an act of aggression (assuming all other elements required for jurisdiction are met). They differ over whether such a determination should be required before the Court may open an investigation, as the permanent Security Council members desire. The Review Conference will need to determine whether a Security Council trigger is required or whether other mechanisms—such as the Prosecutor’s independent powers or a General Assembly referral—might enable the initiation of an investigation.

One alternative to the Security Council requirement would be to require the "aggressor State" to consent to ICC jurisdiction, which would achieve the functional equivalent of a Security Council trigger for the Council’s permanent members (assuming they would not provide such consent). Still, a large plurality of States Parties oppose such a requirement. A poll of States Parties during the March resumed session of the Assembly of States Parties (ASP) indicated continued lack of consensus, with the vast majority of delegations opposing the Security Council requirement.[17]
The Obama administration clearly is anxious about the Kampala outcome; it undoubtedly wishes to support the ICC, but a negative outcome on aggression (from its perspective) could conceivably undermine such engagement. The U.S. Ambassador at Large for War Crimes Issues, Stephen J. Rapp, told the ASP in November in The Hague that "[o]ur view has been and remains that . . . jurisdiction should follow a Security Council determination that aggression has occurred."[18] State Department Legal Adviser Harold Koh amplified this position in March, indicating that the Obama Administration strongly favors the requirement of a Security Council trigger and casting doubt on the compatibility of the definition with customary international law.[19] France and the United Kingdom—the two permanent Security Council members that are parties to the Rome Statute—share the U.S. jurisdictional concerns, but whether they can find a creative solution that meets everyone’s needs remains to be seen.[20]

After several years of negotiations, States Parties have found resolution of the jurisdictional issues to be elusive. In this light, it may well be that the Review Conference will fail to conclude the aggression negotiations. One possibility might involve a piecemeal approach: the adoption of a definition but the deferral of the negotiations over jurisdiction, thereby keeping aggression out of the ICC until some later negotiation. It is uncertain whether such an approach would be acceptable to those States strongly supportive of adding the crime of aggression to the Rome Statute.

The War Crimes Opt-out

Article 124 of the Rome Statute enables a party to opt out of the war crimes jurisdiction of the Court (Article 8) for an initial period of seven years after the entry into force of the Statute for that party. It also mandates a review of the opt-out by the Review Conference. France strongly sought this provision in Rome in 1998, but it withdrew its opt-out declaration in 2008. Colombia is the only other country to have exercised the opt-out, but its declaration expired this fall. The opt-out was highly controversial in Rome, but its impact has been minimal. Given the limited use of the provision, State Parties will have difficulty arguing that retaining Article 124 will entice non-parties to ratify the Rome Statute. Thus far, States Parties acknowledge the limited value of Article 124, but whether a consensus in favor of its deletion has emerged remains unclear.

Proposed Amendments

States Parties have proposed a number of amendments to the Rome Statute. Mexico proposed the criminalization of the use or threat of use of nuclear weapons.[21] The Netherlands proposed a new Rome Statute crime of terrorism.[22] Norway proposed new language to deal with the enforcement of sentences.[23] Trinidad and Tobago proposed jurisdiction over drug offenses.[24] South Africa and the African Union, reflecting their opposition to the arrest warrant for Sudanese President al-Bashir, proposed amending Article 16 to make it easier for outside parties to seek the deferral of a case pending before the Court.[25] None of these amendments will be subject to formal discussion at the Review Conference, as the ASP decided to establish working groups to develop each of these proposals at subsequent meetings of States Parties.[26]
One proposal by Belgium will be considered by the Review Conference.[27] The proposal would extend the criminalization in international armed conflict of three existing categories of weapons – poison and poisoned weapons, gases, and certain kinds of long-prohibited bullets – to non-international armed conflict. The proposal has received broad support among States Parties but very little substantive discussion; unless serious concerns are raised, it should be a strong candidate for adoption in Kampala.

Stocktaking

In addition to the treaty-based work, the Review Conference will hold a number of "stocktaking" sessions. As currently conceived, the exercise will involve a review of the complementarity regime, the Statutory mechanism by which the Court defers to ongoing investigations and prosecutions in domestic tribunals; cooperation with the Court; the ICC’s impact on victims and affected communities; and the interaction of "peace and justice."[28] The sessions will be designed around keynotes and panels of experts on the four topics. Although it is difficult to predict, it seems unlikely that the stocktaking exercise will amount to a probing review of the ICC’s strengths and weaknesses in these areas and lead to concrete recommendations and proposals.

Conclusion

The ICC Review Conference is likely to involve hard work (especially on the definition of aggression), workaday treaty considerations (focusing on the war crimes opt-out and the Belgian proposal), and assessment (stocktaking). Amidst this busy schedule, the Court, States Parties, and NGOs should not shy away from critically reflecting on what the Court has done right and wrong over the past several years. The Review Conference provides an important moment to examine the Court’s performance to ensure that it is fulfilling objectives established more than a decade ago.

The Review Conference, of course, also presents an opportunity for the United States to take stock of its own relationship to the Court. The Obama administration has already advanced the relationship with a concrete proposal to meet with the chief prosecutor to find where it might make contributions.[29] The aggression negotiations, however, guarantee that the new relationship will have elements of disharmony, as U.S. Government representatives will likely push hard for a required Security Council trigger. The administration will face pressure in Washington to step away from a new era of cooperation with the Court if the aggression negotiations lead to a bad result from the U.S. perspective. In that sense, the stakes in Kampala are high, providing a key test not only for U.S. policy but for the future of the institution and international justice.

About the Author:

David Kaye, a member of the ASIL Executive Council and co-editor of the Insight series, is Executive Director of the International Human Rights Program at UCLA School of Law. He led a team of six UCLA Law School students in the School’s International Justice Clinic to the ASP Meeting in The Hague in November.

Endnotes

[1] See And They Took It, TERRAVIVA: CONF. DAILY NEWSPAPER, available at http://www.ips.org/icc/tv180701.htm.
[2] Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 3 (entered into force July 1, 2002), available at http://untreaty.un.org/cod/icc/statute/romefra.htm [hereinafter Rome Statute].
[3] Basic information on current ICC activities may be found at the ICC web site, Situations and Cases, http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/.
[4] For more detailed analysis of the Review Conference, see UCLA School of Law, International Justice Clinic, The Road to Kampala: U.S. Participation in the Review Conference of the International Criminal Court (Apr. 2010), available at http://law.ucla.edu/humanrights; and Vijay Padmanabhan, From Rome to Kampala: The U.S. Approach to the 2010 International Criminal Court Review Conference, Council on Foreign Relations Special Report (Apr. 2010), available at https://secure.www.cfr.org/publication/21934/from_rome_to_kampala.html.
[5] Rome Statute, supra note 2, art. 5(2).
[6] UN Charter art. 39.
[7] See G.A. Res. 3314, U.N. GAOR 29th Sess., Supp. No. 31, U.N. Do. A/9631 (Dec. 14, 1974).
[8] Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal, Aug. 8, 1945, 82 U.N.T.C. 280, available at http://www.icrc.org/ihl.nsf/FULL/350?OpenDocument.
[9] Charter of the International Military Tribunal for the Far East art. 5(a).
[10] See YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 112-113 (3rd ed. 2001).
[11] For a brief overview of the aggression negotiations at Rome, see Herman von Hebel & Darryl Robinson, Crimes within the Jurisdiction of the Court, in THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE 79, 81-85 (Roy S. Lee ed., 1999).
[12] Proposal of Amendment by Liechtenstein, U.N. Doc. C.N.727.2009.TREATIES-7 (Oct. 29, 2009), available at http://www.adh-geneva.ch/RULAC/news/LiechtensteinCN727EN.pdf.
[13] Id.
[14] Id.
[15] But see Michael J. Glennon, The Blank-Prose Crime of Aggression, 35 Yale J. Int’l L. 71 (2010), available at http://www.yjil.org/index.php?option=com_content&view=article&id=130:blank-prose-crime-of-aggression&catid=6:archives.
[16] G.A. Res. A/RES/60/1, ¶ 138, U.N. Doc. A/RES/60/1 (Oct. 24, 2005); and S.C. Res. 1674, ¶ 4, U.N. Doc. S/RES/1674 (Apr. 28, 2006) (the Security Council reaffirmed the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect).
[17] A discussion of the various options now on the table for jurisdictional purposes may be found at Assembly of States Parties to the Rome Statute of the International Criminal Court, Resumed 8th Sess., Annex II: Report of the Working Group of the Review Conference, ICC-ASP/8/20/Add.1, at 42-45, 49-52, (Mar. 22 – 25, 2010), available at http://www.icc-cpi.int/NR/rdonlyres/C125A0AE-9069-45CE-80F6-75665F6619E4/0/ORASPR8ENGANNEXES.pdf.
[18] Stephen J. Rapp, Ambassador at Large for War Crimes Issues, Speech to the Assembly of States Parties (Nov. 19, 2009), available at http://www.icc-cpi.int/iccdocs/asp_docs/ASP8/Statements/ICC-ASP-ASP8-GenDeba-USA-ENG.pdf.
[19] See Harold H. Koh, Legal Advisor U.S. Dept. of State, Statement Regarding Crime of Aggression at the Resumed Eighth Session of the Assembly of States Parties of the International Criminal Court (Mar. 23, 2010), available at http://usun.state.gov/briefing/statements/2010/139000.htm; and Harold H. Koh, Obama Administration and International Law, Speech at the Annual Meeting of the Am. Soc. Int’l L. (Mar. 25, 2010), available at http://www.state.gov/s/l/releases/remarks/139119.htm.
[20] For a discussion of the debate over the modality for adoption and entry-into-force of an aggression amendment, see The Road to Kampala, supra note 4, at 13-14.
[21] Proposal of Amendment by Mexico, U.N. Doc. C.N.725.2009.TREATIES-6 (Oct. 29, 2009), available at http://www.icc-cpi.int/NR/rdonlyres/4420B7E1-F93D-4D08-AF5C-3B07C1C3E6F1/0/MexicoCN725EN.pdf.
[22] Proposal of Amendment by The Netherlands, U.N. Doc. C.N.723.2009.TREATIES-5 (Oct. 29, 2009), available at http://www.adh-geneva.ch/RULAC/news/NetherlandsCN723EN.pdf.
[23] Proposal of Amendment by Norway, U.N. Doc. C.N.713.2009.TREATIES-4 (Oct. 29, 2009), available at http://www.icc-cpi.int/NR/rdonlyres/C6E2893C-D4BD-4DD2-8F70-63D220190D9F/0/NorwayCN713EN.pdf.
[24] Proposal of Amendment by Trinidad and Tobago, U.N. Doc. C.N.737.2009.TREATIES-9 (Oct. 29, 2009), available at http://www.icc-cpi.int/NR/rdonlyres/03DAF164-78C7-4129-A0BD-91534F80BF81/0/TrinidadTobagoCN737EN.pdf.
[25] Proposal of amendment by South Africa, C.N.851.2009.TREATIES.10 (Nov. 30, 2009).
[26] Press Release, Assembly of States Parties to the Rome Statute of the International Criminal Court [ASP], Assembly of States Parties Concludes its Eighth Session, ICC-ASP-20091126-PR481 (Nov. 27, 2009), available at http://www.icc-cpi.int/menus/asp/press%20releases/press%20releases%202009/assembly%20of%20states%20parties%20concludes%20its%20eighth%20session.
[27] See Resolutions Adopted by the Assembly of States Parties, ICC/ASP/8-20, Annex III, at 41, Belgium: Proposal of Amendment, available at http://www.icc-cpi.int/iccdocs/asp_docs/ASP8/OR/OR-ASP8-Vol.I-ENG.Part.II.pdf; see also a fuller Belgian proposal dealing with additional categories of weapons, not forwarded to the Review Conference, U.N. Doc. C.N.733.2009.TREATIES-8 (Oct. 29, 2009), available at http://www.icc-cpi.int/NR/rdonlyres/3798777A-F998-4B22-9F3D-5B25940CD299/0/BelgiumCN733EN.pdf.
[28] See Res. ICC-ASP/8/Res.9 (Mar. 25, 2010), available at http://www.icc-cpi.int/iccdocs/asp_docs/Resolutions/ICC-ASP-8-Res.9-ENG.pdf.
[29] See Stephen J. Rapp, U.S. Ambassador at Large for War Crimes Issues, Statement Regarding Stocktaking at the Eighth Resumed Session of the Assembly of States Parties of the International Criminal Court (Mar. 23, 2010) available at http://usun.state.gov/briefing/statements/2010/138999.htm.

Decision Pursuant to Art. 15 of the ICC Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya (31 March 2010)

Click here for document (approximately 163 pages)

The Pre-Trial Chamber II of the International Criminal Court recently granted the Prosecutor’s request to commence an investigation of crimes against humanity allegedly committed in Kenya.

The majority concluded that the evidence presented by the Prosecution, along with the lower standard of proof applicable at this particular stage, provided reasonable basis to believe that crimes against humanity were committed in Kenya. This decision clears the way for the Prosecution to investigate crimes against humanity committed between 1 June 2005 (date on which Kenya became a state party to the Rome Statute) and 26 November 2009 (date on which the Prosecutor filed the request to investigate).

Judge Hans-Peter Kaul strongly dissented. He believed that the crimes committed in Kenya in relation to the post-election violence of 2007–2008 did not qualify as crimes against humanity under the Court’s statute. As such, he noted, the Court lacked jurisdiction.

Treaty and Protocol Between the US and Russia on Measures for the Further Reduction and Limitation of Strategic Offensive Arms (8 April 2010)

Click here for Treaty (approximately 17 pages); click here for Protocol (approximately 165 pages)

The United States and Russia have signed a nuclear-arms-reduction treaty in Prague, thus agreeing to reduce and limit their “strategic offensive arms” arsenals. If ratified, the agreement will remain in force for ten years “unless it is superseded earlier by a subsequent agreement on the reduction and limitation of strategic offensive arms”.

The parties also agreed that the right to withdraw from the treaty will be triggered if either party determines that “extraordinary events” jeopardize their “supreme interest”.

Times Online reports that the agreement would require Russia and the United States, “holders of more than 90 per cent of the world’s nuclear weapons – to slash their respective arsenals by about a third and reduce launchers by a half within seven years”.

Another issue that the treaty does not discuss but that the parties will inevitably face is disposal of the nuclear arms. According to a NY Times article, “[t]he plutonium that is the key ingredient in thousands of nuclear weapons sidelined in the new arms control treaty between the United States and Russia is likely to be around for decades at least, according to experts”.


Source: American Society of International Law

ASIL Insight: The ICC Appeals Chamber Decision on the Warrant of Arrest in Prosecutor v. Bashir

By Saira Mohamed

Introduction

On February 3, 2010, the Appeals Chamber of the International Criminal Court (ICC) ruled that the court's Pre-Trial Chamber had erred in refusing to issue an arrest warrant on charges of genocide for Omar Hassan Ahmad al-Bashir, the President of Sudan.[1] The Pre-Trial Chamber had issued a warrant in March 2009 on charges of crimes against humanity and war crimes, but it found that there was insufficient evidence to support the genocide charges that the Prosecutor had alleged.[2] Although it did not reach a conclusion as to whether a warrant must be issued with respect to the genocide charges, the Appeals Chamber's decision both provides some clarification of the standards required under the Rome Statute for issuance of an arrest warrant and offers an opportunity for reflection on the Appeals Chamber's interpretation of the limits of its powers with respect to the bodies it reviews. This Insight provides background to this important and potentially charged decision and explores its potential impact on the judicial and prosecutorial organs of the Court.

Background to the Decision

The action against Bashir originated in the July 2008 request of the ICC Prosecutor for an arrest warrant on three counts of genocide, five counts of crimes against humanity, and two counts of war crimes, based on Bashir's alleged role as the "mastermind" behind atrocities committed against the people of Darfur, where hundreds of thousands have been killed and millions have been forced from their homes.[3] The request for a warrant, which marked the first time a sitting head of state has been pursued by the ICC, was met with defiance by the Government of Sudan. Today, Bashir remains in power; he recently received the official nomination of his political party to make a bid for the presidency in nationwide elections to be held later this year.[4]

The Pre-Trial Chamber unanimously granted the Prosecutor's request for a warrant, but with one dissent it issued the warrant only for charges of crimes against humanity and war crimes.[5] Soon after, the Prosecutor filed an application for leave to appeal the Pre-Trial Chamber's decision.[6] Under the Rome Statute, appeals are not available for all interim decisions. Instead, Article 82(1) enumerates four categories of decision that may be appealed, including three that are appealable as of right, and a fourtha decision "that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings"[7] that requires permission of the chamber issuing the decision.[8] The Pre-Trial Chamber granted the request for appeal, filed under this final provision of Article 82(1), in June 2009.[9]

The "Reasonable Grounds" Standard

The central issue on appeal concerned the proper interpretation of Article 58(1)(a) of the Rome Statute, which holds that the Pre-Trial Chamber "shall, on the application of the Prosecutor, issue a warrant of arrest of a person" if "[t]here are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court."[10] In its decision to issue the arrest warrant only for charges of war crimes and crimes against humanity, the majority of the Pre-Trial Chamber held that because the existence of genocidal intent was "only one of several reasonable conclusions" that could have been drawn from the evidence, the Prosecution had failed to satisfy the evidentiary burden set forth in the Rome Statute to support the warrant on charges of genocide.[11] In its appeal, the Prosecution challenged this interpretation of the "reasonable grounds" standard of Article 58(1)(a), arguing that it equated "reasonable grounds" with a "higher level of proof," an argument that was also made by Judge Usacka in dissent from the majority of the Pre-Trial Chamber.[12] Instead of requiring that genocidal intent be the only reasonable inference available, the Prosecution argued, the Pre-Trial Chamber should have required simply that genocidal intent was one reasonable inference available.[13]

The Appeals Chamber agreed. The Pre-Trial Chamber's standard, it held, was "higher and more demanding" than what is required under the Rome Statute.[14] In rejecting the Pre-Trial Chamber's interpretation of Article 58, it distinguished the evidentiary threshold required for issuance of an arrest warrant"reasonable grounds to believe"both from the stricter standard required for the later stage of confirmation of charges"substantial grounds to believe"[15] and from the even more rigorous standard ultimately required for conviction"beyond reasonable doubt."[16] According to the Appeals Chamber, the Pre-Trial Chamber's interpretation of "reasonable grounds" would impose on the Prosecutor a requirement of proof "beyond reasonable doubt."[17]

Significance of the Decision

From the perspective of those eager to see some progress in the prosecution of Bashir, in the development of international criminal law, or in the work of the Court overall, the Appeals Chamber's decision may appear to have little import. The Appeals Chamber did not add genocide charges to the warrant for Bashir's arrest; it merely remanded to the Pre-Trial Chamber for a new determination under a proper reading of Article 58(1)(a).[18] Indeed, the Pre-Trial Chamber could still find in its next round of review that the Prosecutor has not shown reasonable grounds to believe that Bashir is criminally responsible for genocide; or even if it does amend the warrant to add genocide charges, the same result could have been reached if the Prosecutor sought later to amend the charges to include genocide at the confirmation of charges stage, rather than appealing at the warrant stage.[19] Nor did the Appeals Chamber provide a definition or test for a proper interpretation of "reasonable grounds to believe"; although the Appeals Chamber detailed the flaws in the decision it was reviewing, it left that power of interpretation to the Pre-Trial Chamber. The decision by the Appeals Chamber did not even appear to satisfy the Rome Statute's requirement that permission for appeal should be granted only where "an immediate resolution by the Appeals Chamber may materially advance the proceedings."[20] Far from an "immediate" resolution, the Appeals Chamber issued its narrow ruling, finding error and remanding to the Pre-Trial Chamber for a new decision, more than seven months after the Pre-Trial Chamber had granted the Prosecutor leave to appeal in the first place.

Despite its apparent emptiness, however, the Appeals Chamber decision concerning the Bashir warrant represents a valuable resource to study the development of international criminal law and the Court. As a preliminary matter, the fact that genocide charges could have been added at the confirmation of charges stage, without months of a drawn-out appeals process, does not vitiate the interest in correcting the Pre-Trial Chamber's incorrect interpretation of the Article 58(1)(a) standard. Had the Prosecutor chosen not to appeal, the Pre-Trial Chamber's unduly rigorous threshold for establishing "reasonable grounds to believe" sufficient to support an arrest warrant surely would have affected future casesinvolving not only genocide, but also charges of other crimes. From this perspective, the Appeals Chamber decision was not a seven-month exercise in futility; it was a necessary and significant step in interpretation and application of the Rome Statute.

Beyond its importance for development of international criminal law, the decision also provides some insight into the Appeals Chamber's understanding of its role in reviewing interim decisions. The Prosecution requested that the Appeals Chamber either direct the Pre-Trial Chamber to issue an arrest warrant on the genocide counts, or, in the alternative, to remand the matter to the Pre-Trial Chamber to determine whether it must issue an arrest warrant for genocide.[21] The Appeals Chamber indeed has either power: In contrast to the rules governing an appeal of a final judgment, which are set forth in detail in Article 83, the Rome Statute provides little guidance on the procedures or impact of an appeal of an interim decision, and the Rules of Procedure, which provide that the Appeals Chamber "may confirm, reverse, or amend the decision appealed," grant great discretion to the Appeals Chamber.[22]

By finding error in the decision not to grant the warrant for genocide charges but choosing to remand to the Pre-Trial Chamber for the ultimate determination, the Appeals Chamber showed great restraint in its approach to its position relative to other institutions of the Court. It protected the Pre-Trial Chamber's responsibility for monitoring the investigatory work of the Office of the Prosecutor, leaving to the Pre-Trial Chamber the task of striking a balance between holding the Prosecutor in check through the requirement of adequate evidence to support an arrest warrant and granting the Prosecutor sufficient latitude consistent with the Rome Statute to support charges where appropriate. Like its 2008 decision on the definition of gravity required for admissibility, in which the Appeals Chamber held that the Pre-Trial Chamber had erred in its interpretation of gravity but refused the request of the Prosecutor that the Appeals Chamber identify the correct interpretation on its own,[23] the Appeals Chamber has set out for itself a limited role in interlocutory appealsbut a role that bears great power despite its limits. By ensuring that the Pre-Trial Chambernot the Appeals Chamberremains the gatekeeper to the issuance of arrest warrants and confirmations of charges,[24] the Appeals Chamber has maintained through the Bashir decision a balance on the relative powers of the Office of the Prosecutor, Pre-Trial Chamber, and Appeals Chamber, and has preserved the vitality and relevance of each body relative to the other.

At the same time, the decision could alter the dynamic between the Office of the Prosecutor and the Pre-Trial Chamber, which may interpret the Appeals Chamber's opinion as a call for greater deference by the Pre-Trial Chamber when reviewing charging documents submitted by the Prosecutor. The potential for fewer checks on the Office of the Prosecutor, especially in light of the controversy already surrounding the decision to pursue Bashir,[25] could lead to heightened allegations concerning the absence of checks on the power of the Prosecutor.

Conclusion

The ICC's pursuit of Bashir will likely run a long course. More than eighteen months after the Prosecutor announced that he was seeking an arrest warrant for the Sudanese president, Bashir remains the leader of the Government of Sudan. Based on the progress made so far, it seems likely that the arrest warrant for Bashir may never be executed; pouring the ICC's resources into determining which charges may form the basis of this warrant suggests that, for better or worse, the work of the Court is divorced from realities on the ground. Although the Appeals Chamber's decision on the warrant may have questionable impact on Bashir himself, this Insight has shown that the decision protects an important standard in the ICC's pre-trial powers, preserves the separation between the different branches of the Court, and suggests an awareness on the part of the Appeals Chamber of its crucial role in maintaining a balance among these institutions' powers and responsibilities.

About the Author: Saira Mohamed, an ASIL member, is the James Milligan Fellow at Columbia Law School.

Endnotes

[1] See Prosecutor v. Bashir, No. ICC-02/05-01/09-OA, Judgment on the Appeal of the Prosecutor Against the "Decision of the Prosecution's Application for a Warrant Against Omar Hassan Al Bashir," ¶ 1 (Feb. 3, 2010) [hereinafter Appeals Chamber Warrant Judgment].
[2] See Prosecutor v. Bashir, No. ICC-02/05-01/09, Decision on the Prosecution's Application for a Warrant of Arrest Against Omar Hassan Ahmad Al Bashir, at 92 (Mar. 4, 2009) [hereinafter Pre-Trial Chamber Warrant Decision].
[3] International Criminal Court, Office of the Prosecutor, Situation in Darfur, The Sudan, Summary of the Case: Prosecutor's Application for Warrant of Arrest Under Article 58 Against Omar Hassan Ahmad Al Bashir, at 1, available at http://www.icc-cpi.int/NR/rdonlyres/64FA6B33-05C3-4E9C-A672-3FA2B58CB2C9/277758/ICCOTPSummary20081704ENG.pdf.
[4] See Beshir Nominated by His Party for Sudan Re-Election, AGENCE FRANCE PRESS, Jan. 12, 2010.
[5] See Pre-Trial Chamber Warrant Decision, supra note 2, at 92.
[6] See Prosecutor v. Bashir, No. ICC-02/05-01/09, Prosecution's Application for Leave to Appeal the "Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir," at 3 (Mar. 10, 2009).
[7] Rome Statute of the International Criminal Court art. 82(1)(d), July 17, 1998, 2187 U.N.T.S. 90, 137 [hereinafter Rome Statute]. The three categories that are appealable as of right are (1) decisions jurisdiction or admissibility; (2) decisions granting or denying release of the person being investigated or prosecuted; and (3) decisions of the Pre-Trial Chamber made pursuant to Article 56(3) of the Statute. See id. art. 82(1)(a)(c); see also Robert Roth & Marc Henzelin, The Appeal Procedure of the ICC, in 2 THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 1535, 154850 (Antonio Cassese et al. eds., 2002).
[8] See WAR CRIMES RESEARCH OFFICE, INTERLOCUTORY APPELLATE REVIEW OF EARLY DECISIONS OF THE INTERNATIONAL CRIMINAL COURT, at 1213 (Jan. 2008), available at http://www.wcl.american.edu/warcrimes/documents/01-2008InterlocutoryAppeals.pdf.
[9] See Prosecutor v. Bashir, No. ICC-02/05-01/09, Decision on the Prosecutor's Application for Leave to Appeal the "Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir," at 10 (June 24, 2009).
[10] Rome Statute, supra note 7, art. 58(1)(a).
[11] See Pre-Trial Chamber Arrest Warrant Decision, supra note 2, ¶ 159.
[12] See Prosecutor v. Bashir, No. ICC-02/05-01/09, Decision on the Prosecution's Application for a Warrant of Arrest Against Omar Hassan Ahmad Al Bashir, Separate and Partly Dissenting Opinion of Judge Anita Uacka, at 57 (Mar. 4, 2009).
[13] See Prosecutor v. Bashir, No. ICC-02/05-01/09 OA, Prosecution Document in Support of Appeal Against the "Decision on the Prosecution's Application for a Warrant of Arrest Against Omar Hassan Ahmad Al Bashir," ¶¶ 3, 3743 (July 6, 2009) [hereinafter Prosecution's Appeal of Warrant Decision].
[14] Appeals Chamber Warrant Judgment, supra note 1, ¶ 39.
[15] Rome Statute, supra note 7, art. 61(7).
[16] Id. art. 66(3).
[17] See Appeals Chamber Warrant Judgment, supra note 1, ¶ 33 (Feb. 3, 2010) ("Requiring that the existence of genocidal intent must be the only reasonable conclusion amounts to requiring the Prosecutor to disprove any other reasonable conclusions and to eliminate any reasonable doubt. If the only reasonable conclusion based on the evidence is the existence of genocidal intent, then it cannot be said that such a finding establishes merely reasonable grounds to believe.' Rather, it establishes genocidal intent beyond reasonable doubt."').
[18] See id. ¶ 42.
[19] See Rome Statute, supra note 7, art. 61(7)(c)(ii) (providing that the Pre-Trial Chamber may request the Prosecutor to consider amending charges "because the evidence submitted appears to establish a different crime within the jurisdiction of the Court"); see also id. art. 61(9) ("After the charges are confirmed and before the trial has begun, the Prosecutor may, with the permission of the Pre-Trial Chamber and after notice to the accused, amend the charges."). Notably, in December 2009 the Appeals Chamber reversed a decision of Trial Chamber I that had allowed for a legal "recharacterization" of the facts in Lubanga. The Appeals Chamber held that the Trial Chamber could not change the legal characterization of the facts to support charges that were not originally confirmed by the Pre-Trial Chamber because the "facts and circumstances" in the confirmation of charges did not support the new charges, a violation of Article 74(2) of the Rome Statute. See Prosecutor v. Lubanga, No. ICC-01/04-01/06, Judgment on the Appeals of Mr. Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 Entitled "Decision Giving Notice to the Parties and Participants that the Legal Characterisation of the Facts May Be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court," ¶ 112 (Dec. 8, 2009).
[20] Rome Statute, supra note 7, art. 82(1)(d).
[21] See Prosecution's Appeal of Warrant Decision, supra note 13, ¶ 65.
[22] INT'L CRIM. CT. R. P. & EVID. 158(1).
[23] See Situation in the Democratic Republic of Congo, Judgment on the Prosecutor's Appeal Against the Decision of Pre-Trial Chamber I Entitled "Decision on the Prosecutor's Application for Warrants of Arrest, Article 58," ¶¶ 8889; see also Beth Van Schaack, Atrocity Crimes Litigation: 2008 Year-In-Review, 7 NW. J. INT'L HUM. RTS. 170, 17683 (2009).
[24] See David Scheffer, A Review of the Experiences of the Pre-Trial and Appeals Chambers of the International Criminal Court Regarding the Disclosure of Evidence, 21 LEIDEN J. INT'L L. 151, 153 (2008).
[25] See Colum Lynch, Africans Defend Sudan's Indicted Leader as International Court Under Fire, WASH. POST, June 30, 2009, 2009 WLNR 12462101 (describing questions surrounding motivations and prosecutorial strategy of the ICC Prosecutor).