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).

Call for papers: The Israel Law Review

Dear Colleagues,

please find quoted below a message from the Chief Co-Editors of The Israel Law Review:

Dear Colleagues,

With the advent of a new year, we write to inform you of important changes in the Israel Law Review and to invite you to submit a written contribution to the journal, which is now published by the Minerva Center for Human Rights at the Hebrew University of Jerusalem.

The Israel Law Review is the oldest and most prestigious law journal appearing in English in Israel, published for more than 40 years under the academic auspices of the Faculty of Law at the Hebrew University of Jerusalem. The Faculty of Law recently decided to transform the Israel Law Review from a general law review to a publication focused on public law and human rights in times of tension, conflict and transformation, and to place it under the academic and organizational leadership of the Minerva Center for Human Rights. This new move gives formal expression to already-existing trends in the profile of the materials published by the Israel Law Review. More broadly, this new focus acknowledges a growing interest in the ability of public law and human rights norms and institutions to meet the challenges faced by societies under pressure, and is indicative of the increased relevance of comparative and international scholarship to existing debates in and on such societies.

The Israel Law Review will continue to publish three issues per year. These issues will continue to be distributed in paper and electronic form (in Lexis and Hein on Line). The issues will contain, as before, long articles, shorter notes and book reviews submitted to the journal by a variety of authors from around the world. All submissions are subject to a "double-blind review" process by two or more referees, and undergo technical and style editing by the Israel Law Review student editors (supervised and assisted by an academic editor, Dr. Yaël Ronen; a technical editor, Ms. Michele Manspeizer; and an executive editor, Adv. Danny Evron). The general policy of the Law Review, as well as overall responsibility for its contents and format, will lie with the two editors-in-chief: Prof. Yuval Shany (Hebrew University of Jerusalem) and Prof. Sir Nigel Rodley ( University of Essex ).

In its new format, the Israel Law Review is assisted in its work by an international board of editors composed of prominent public law and human rights experts – Prof. Aharon Barak (former President of the Israeli Supreme Court), Prof. Daphna Barak-Erez (Tel-Aviv University), Prof. Antonio Cassese (Florence University), Prof. Malcolm Feeley (University of California, Berkeley), Prof. Jochen Frowein (Max Planck Institute for Comparative Public Law and International Law, Heidelberg), Prof. Francoise Hampson (University of Essex), Prof. Vicki Jackson (Georgetown University), Dr. Michael Karayanni (Hebrew University of Jerusalem), Prof. Eckart Klein (Potsdam University), Prof. Mordechai Kremnitzer (Hebrew University of Jerusalem), Prof. David Kretzmer (Hebrew University of Jerusalem), Prof. Fionnuala Ní-Aoláin (University of Minnesota, University of Ulster), Prof. Frances Raday (College of Management Academic Studies, Rishon Le Zion), Prof. William Schabas (National University, Ireland), Prof. Malcolm Shaw (Leicester University) and Prof. Henry Steiner (Harvard University).

We, at the Minerva Center , strongly encourage you – academics interested in public law and human rights issue relating to societies facing tension, conflict and transition - to consider submitting your future work for publication in the Israel Law Review. We are committed to a prompt and professional review and printing process, and believe that we can offer you an attractive and prestigious publication platform.

More information on the submission and publication process can be found on the Israel Law Review website -http://law.huji.ac.il/eng/pirsumim.asp?cat=735 . We and the rest of the law review staff will gladly answer any question you may have concerning the journal and publishing in it (please refer any such queries to: ilr@savion.huji.ac.il).

We wish you a happy 2010!

Prof. Yuval Shany and Prof. Sir Nigel Rodley – Chief Co-Editors

African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (23 October 2009)

ASIL, 14 November 2009

Click here for document (approximately 27 pages)

On October 23, 2009, the African Union (AU) approved the Convention for the Protection and Assistance of Internally Displaced Persons in Africa. The Convention will come into force within 30 days of ratification by fifteen of the fifty-three AU member states. The Convention aims to “[p]romote and strengthen regional and national measures to prevent or mitigate, prohibit and eliminate root causes of internal displacement as well as provide for durable solutions” and to “[e]stablish a legal framework for preventing internal displacement, and protecting and assisting internally displaced persons in Africa.”

The adoption of the Convention is a major regional human rights development which had as its basis the Guiding Principles on Internal Displacement (Guiding Principles) initially promulgated in 1998. The Guiding Principles, founded on international humanitarian and human rights law, are guidelines used by international organizations and governments to effectively help and protect IDPs. According to the Guiding Principles, IDPs are

persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.

The reliance on the Guiding Principles is clear from the text of the Convention. Like the Guiding Principles, the Convention obligates all member states to protect IDPs in any type of armed internal conflict or natural disasters, including “[d]isplacement caused by any act, event, factor, or phenomenon of comparable gravity to all of the above and which is not justified under international law, including human rights and international humanitarian law” (cf.Convention, Article 4(4)(h) and Guiding Principles, Scope and Purpose, para. 2).

While the Convention is a big step toward codifying the Guiding Principles, some have criticized its weak accountability mechanism. This is especially troubling given that more than eleven million internally displaced persons are in Africa.

МИД Польши просит США выслать войска для защиты от России

Министр иностранных дел Польши Радослав Сикорский призывает США разместить подразделения американских вооруженных сил на территории республики.

«Нашим желанием было бы получить американские войска, размещенные в нашей стране, как щит против русской агрессии», - сказал Сикорский, выступая в Центре стратегических и международных исследований в Вашингтоне. При этом он добавил, что «пока в Польше только шесть американских солдат».

«Мы пограничная страна НАТО и знаем, что это значит», - заявил глава польского МИДа.
Сикорский отметил, что особую обеспокоенность у Варшавы вызвали крупномасштабные учения, проведенные в сентябре Россией и Белоруссией, которые, по его словам, включали имитацию использования ядерного оружия и инсценировку высадки на польское побережье.

«Нам не понятно, что стоит за этими учениями, какое известие Россия хочет послать миру, проводя самые крупные учения на границах НАТО с момента распада Советского Союза», - заявил Сикорский.

«Когда 10 лет назад Польша вступила в НАТО, России было сделано обещание, что значительные силы НАТО не будут направляться в регион», - сказал он.

«Однако никто в то время не говорил, что никогда и никакие силы не будут размещены, и это дело, которое следует сделать», - заявил глава МИД Польши.

Сикорский также сообщил, что в Польше прошел «первоначальный дискомфорт», вызванный отказом Вашингтона от размещения на территории республики элементов ПРО.
«Это - дело прошлое», - сказал он. «В отношении нового плана у нас нет проблем», - проинформировал Сикорский, передает «Интерфакс».

Комитет СФ по обороне поддержал закон об использовании ВС за рубежом

Профильный комитет Совета Федерации по обороне и безопасности поддержал в четверг внесенный президентом РФ законопроект об использовании вооруженных сил (ВС) РФ за пределами страны и рекомендовал верхней палате одобрить его на пленарном заседании 30 октября. Председатель комитета Виктор Озеров напомнил, что, в соответствии с документом, формирования ВС могут оперативно использоваться за пределами России для отражения вооруженного нападения на воинские формирования РФ, дислоцированные за рубежом, для отражения или предотвращения вооруженного нападения на другое государство, обратившееся к России с соответствующей просьбой, а также для защиты граждан РФ, находящихся за рубежом, от вооруженного нападения на них. "Также, в соответствии с внесенным законопроектом, формирования ВС РФ могут быть использованы в целях борьбы с пиратством", - сказал он РИА Новости.

При этом Озеров обратил внимание на то, что решение об оперативном использовании ВС принимает президент РФ на основании соответствующего постановления Совета Федерации. Именно глава государства определяет общую численность воинских формирований и срок их использования, сказал сенатор. "Мы поддерживаем этот закон, поскольку он создает полноценную правовую базу для оперативного использования российских вооруженных сил за пределами страны и способствует тем самым укреплению безопасности российского государства и российских граждан", - заявил председатель комитета. По словам Озерова, возможность использования вооруженных сил для защиты своих граждан прописана в законодательстве многих стран.

Права на данный материал принадлежат РИАНовости (29.10.2009).

Госдума рассмотрит закон о применении Вооруженных сил РФ за рубежом

Госдума в пятницу рассмотрит в третьем, окончательном чтении внесенный президентом РФ законопроект "Об обороне", касающийся оперативного использования Вооруженных сил РФ за пределами территории страны. Документ предусматривает, что формирования Вооруженных сил (ВС) России могут оперативно использоваться за пределами территории страны для отражения вооруженного нападения на формирование ВС РФ, другие войска или органы, дислоцированные за пределами России, отражения или предотвращения вооруженного нападения на другое государство, обратившееся к России с соответствующей просьбой, защиты граждан РФ, находящихся за рубежом, от вооруженного нападения на них. Формирования ВС также могут быть использованы в целях борьбы с пиратством и обеспечения безопасности судоходства. Решение об оперативном использовании Вооруженных сил принимается президентом РФ на основании соответствующего постановления Совета Федерации. Общую численность воинских формирований, район их действия, стоящие перед ними задачи и срок использования определяет глава государства. Комплектование и обеспечение указанных формирований осуществляет Минобороны РФ. Действующий закон предусматривает использование формирований ВС РФ за пределами территории страны только для решения задач по пресечению международной террористической деятельности, выполнения задач в соответствии с международными договорами РФ. Другие основания для использования российских воинских формирований за рубежом законом не предусмотрены. Но сложившаяся ситуация затрудняет оперативность подготовки и принятия соответствующих решений верховным главнокомандующим Вооруженными силами (в России им является президент) в определенных экстремальных ситуациях, например, в таких, как грузинская агрессия против Южной Осетии в августе 2008 года, что угрожает национальным интересам России, правам и законным интересам ее граждан, говорится в заключении комитета Госдумы по обороне.

Права на данный материал принадлежат РИАНовости (23.10.2009).

Who can be detained in the "War on Terror"? The Emerging Answer

ASIL Insight
October 20, 2009
Volume 13, Issue 18

By Faiza Patel

Introduction

Soon after the United States launched its “war on terror” by attacking the Taliban regime of Afghanistan, U.S. courts were asked to consider who could be detained as part of this conflict. The Supreme Court partially resolved the question in 2004 in Hamdi v. Rumsfeld, holding that the government could detain individuals, including US citizens, who were part of or supporting Taliban forces and engaged in armed conflict against the US.[1] It sidestepped the broader question of the outer bounds of the category of people who could be detained as an “enemy combatant,” leaving it to the lower courts to define. Four years later, the Court's decision in Boumediene v. Bush[2] cleared the way for detainees held at the U.S. Naval Facility in Guantánamo Bay, Cuba, to challenge their detention in U.S. courts – and for federal district court judges in the District of Columbia to grapple with the questions left open by Hamdi.[3]
As the Guantánamo cases were winding their way to decision, a new President took office and the government refined its position on who could be detained. The Bush administration had claimed the non-reviewable authority to detain any person it deemed an “enemy combatant” based on the inherent authority of the President as Commander in Chief and, alternatively, on Congress's Authorization for Use of Military Force (AUMF).[4] The Obama administration dropped the label “enemy combatant.” Based on the AUMF, it claimed authority to detain those suspected of involvement in the 9/11 attacks and, more broadly:

those who were part of Taliban or al-Qaeda forces, or associated forces that were engaged in hostilities against the United States or its coalition partners; and

those who substantially supported Taliban or al-Qaeda forces, or associated forces that were engaged in hostilities against the United States or its coalition partners.[5]

In the government's view, this would cover persons who committed a belligerent act, or directly supported hostilities, in aid of enemy armed forces.

This Insight explores the main issues involved in determining the scope of the category of persons who may be detained in the “war on terror,” looking at both recently issued ICRC guidance and key cases in U.S. federal courts.

Recognition of Organized Armed Groups

In May 2009, the International Committee of the Red Cross (ICRC) issued a report defining direct participation in hostilities (ICRC Guidance),[6] in which it recognized for the first time that organized armed groups belonging to a party to the conflict are – like the members of a State's army – legitimate targets of military action.[7] Civilians, on the other hand, remain protected except when they directly participate in hostilities.[8] The ICRC cited to Common Article 3 of the Geneva Conventions to support this position. Common Article 3 provides that “[p]ersons taking no active part in hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause” must be treated humanely.[9] The ICRC reasoned that the reference to “members of armed forces” suggested that Common Article 3 assumed that non-State parties to a conflict would have armed forces that were distinct from the civilian population. The ICRC found further support for this principle in Additional Protocol II to the Geneva Conventions, which recognizes the existence of “armed forces,” “dissident armed forces” and “other organized armed groups” fighting on behalf of non-State actors.[10]

The ICRC Guidance emphasizes that its purpose is only to explain who should be considered a protected civilian for purposes of targeting during hostilities. However, as is evident from the discussion below, the distinction between civilians and combatants for targeting purposes is the starting point from which U.S. courts have analyzed whether the law of war allows detention in the “war on terror.” In undertaking this analysis, U.S. courts have relied extensively on the ICRC's interpretations of the Geneva Conventions.[11] The ICRC Guidance thus provides a useful yardstick for analyzing the results reached in the Guantánamo cases.

Even though they did not take account of the ICRC Guidance, all Guantánamo cases decided thus far have found that members of organized armed groups in non-international armed conflicts are subject to detention under the laws of war. Judge Walton analyzed the issue at length in his influential opinion in Gherebi v. Obama.[12] He noted that the Supreme Court ruled in Hamdi that the authorization of the use of force against enemy nations encompassed the right to detain enemy fighters as a fundamental incident of waging war. Given that the AUMF authorized the same use of force against enemy organizations, Judge Walton concluded that “it stands to reason that Congress intended to confer upon the President the same authority to detain individuals fighting on behalf of enemy organizations that it conferred on him with respect to enemy nations.”[13] He therefore held that under the AUMF the government could detain individuals fighting on behalf of enemy organizations (i.e., members of organized armed groups), as well as those fighting on behalf of enemy nations.

In considering whether this holding comported with the laws of war, Judge Walton rejected the argument that these laws supported detention as an incident of war in international armed conflicts (such as that at issue in Hamdi), but not in non-international armed conflicts (such as that at issue in Gherebi).[14] Judge Walton concluded that the Geneva Conventions did not authorize detention in either type of conflict. Rather, they pre-supposed that such detention would occur and regulated its conditions.[15]

Turning to the scope of the government's detention authority, Judge Walton rejected the argument that the Geneva Conventions recognized only two categories of people in non-international armed conflict: members of the State's armed forces and civilians (with the latter permissibly subject to attack only when directly participating in hostilities). Like the ICRC, Judge Walton relied upon Common Article 3 and Additional Protocol II to recognize a third category: the “armed forces” of non-State actors who are actively participating in hostilities. He further held that, because Common Article 3 required a State to treat humanely “members of armed forces...placed hors de combat by...detention,” it implied that the State could detain such persons.[16]

A month later, in Hamlily v. Obama, Judge Bates canvassed the laws of war and reached a similar conclusion.[17] These two cases have been enormously influential and have been followed by several judges in reviewing later cases.[18]

Chain of Command v. Combat Function

Several Guantánamo cases have held that a person who takes orders from an al-Qaeda or Taliban command is a member of one of those groups and can be detained. In Gherebi, the court held that the key question was “whether an individual ‘receive[s] and execute[s] orders' from the enemy force's combat apparatus, not whether he is an al-Qaeda fighter.”[19] It further held that an al-Qaeda member whose job was to house, feed or transport fighters could be detained as part of the enemy armed forces regardless of his involvement in actual fighting. On the other hand, an al-Qaeda doctor or cleric, or the father of an al-Qaeda fighter who sheltered his son out of familial loyalty, could not be detained.[20] The Guantánamo cases that have not followed this approach have also accepted that a person's support of al-Qaeda or the Taliban would be a sufficient basis for detention (see discussion below).[21] They have therefore not examined the criteria for membership in an armed group, but have instead looked broadly at the individual's behavior vis-à-vis the relevant armed group.[22]

Both approaches clash with the ICRC's position that organized armed groups “consist[] only of individuals whose continuous function it is to take a direct part in hostilities.”[23] Under the ICRC's view, persons who perform political and administrative functions, individuals who accompany or support armed groups, but whose function is not direct participation in hostilities (e.g., recruiters, trainers, financiers, propagandists), weapons support specialists and those who collect intelligence would not be considered as members of an armed group. Many of these people would, however, fall within US courts' definition of members of an armed group.

Substantial Support

Perhaps the most controversial element of the detention authority claimed by the U.S. is the right to detain those who “substantially supported” enemy forces. While some Guantánamo cases have unquestioningly accepted this standard, several have indicated deep discomfort with importing what is essentially a domestic criminal law standard into the law of war. i explicitly rejected detention on the basis of substantial support.[24] Gherebi defined the problem away. It accepted the “substantial support” standard, but interpreted it as equivalent with being “part of” the “armed forces” of an enemy organization.[25] Two additional judges have adopted the Hamlily approach and rejected “substantial support” as a basis for detention.[26]

Although the ICRC did not address the issue of “substantial support,” the concept appears to be at odds with its limited definition of “armed groups.” Also, the ICRC has emphasized that only the armed forces of a non-State party – and not the political and administrative apparatus of the non-State party – are subject to military action.[27] This distinction would be undermined if “substantial support” of al-Qaeda or the Taliban was considered as sufficient to allow detention under the AUMF.

Conclusion

The Guantánamo cases present an interesting microcosm for studying the development of the laws of war, as applied in the context of the “war on terror.” The recognition of “organized armed groups” as permissible objects of hostilities in non-international armed conflicts by both the ICRC and U.S. courts is an important step forward in the clarification of the law. On the other hand, as demonstrated above, there are some fundamental inconsistencies in approach amongst the decisions rendered thus far. There are also questions as to whether these decisions are consistent with applicable international law.

The extension to non-international armed conflicts of the detention power recognized in Hamdi for inter-State conflicts is an area in which there could be a divergence between the two regimes. Although the Gherebi and Hamlily courts provided convincing arguments for the proposition that the Geneva Conventions did not authorize detention in any type of conflict but that detention was simply a normal incident of inter-State conflict, they did not fully address whether detention in a non-international armed conflict was authorized as an incident of war rather than under domestic law (for example, by examining state practice). Such analysis would seem to be required by the Supreme Court's decision in Hamdi, which interpreted the authorization to use force to encompass detention authority based on “longstanding law-of-war principles.”[28] The Hamdi Court explicitly cautioned that “[i]f the practical circumstances of a given conflict are entirely unlike those that informed the development of the law of war that understanding may unravel.”[29] The non-international aspects of the “war on terror” undoubtedly present practical circumstances that are very different from the context in which the laws of war evolved. In particular, the geographical and temporal boundaries of the conflict are so much more malleable than those of all previous wars that there is ample room for appellate courts to come to a different view than that taken thus far in the Guantánamo cases.

The differences between the ICRC and U.S. courts on how to determine who is “part of” an armed group are also striking. The ICRC model is narrower than even the narrowest model adopted by the U.S. courts. This discrepancy may be explained by the timing of the issuance of the ICRC Guidance. More importantly, the ICRC's “continuous combat function” model was developed for purposes of distinguishing who is a combatant in the conduct of hostilities, and perhaps membership in an organized armed group would be construed more widely in the context of detention. At the same time, U.S. courts have consistently relied on Geneva Convention principles of distinction – which apply to targeting – for understanding who can be detained in the “war on terror,” and have been respectful of the ICRC's views on this question. This suggests that, at the very least, the ICRC Guidance should inform the analysis of detention authority in future decisions.

Although progress in this complex area has been slow, the decisions already rendered in the Guantánamo cases reveal the outlines of the categories of people who, at least according to domestic US law, can be detained in the “war on terror.” As these cases make their way through the appellate process, these outlines will no doubt become clearer.

About the Author

Faiza Patel, an ASIL member, is an attorney in the Liberty and National Security Project at the Brennan Center for Justice at N.Y.U. School of Law.

Endnotes

[1] Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004).
[2] Boumediene v. Bush, _US_, 128 S. Ct. 2229, 2262, 171 L. Ed. 2d 41 (2008).
[3] The Guantánamo habeas cases have all been brought before the federal district courts of the District of Columbia.
[4] Authorization for Use of Military Force, Pub. L. No. 107-40, SS 1-2, 115 Stat. 224 (2001).
[5] See Gherebi v. Obama, 609 F. Supp. 2d 43, 53 (D.D.C. 2009). In addition to dropping the label “enemy combatant,” the principal change made by the Obama Administration was to add the qualifier “substantially.”
[6] International Committee for the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities, available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/direct-participation-report_res/$File/direct-participation-guidance-2009-icrc.pdf (last visited Sept. 14, 2009) [hereinafter ICRC Guidance].
[7] Id. at 27. The “organized armed groups” recognized by the ICRC are exclusively “the armed or military wing of a non-State party: its armed forces in a functional sense.” Id. at 32. Other types of affiliation or support for a non-State party to a conflict would not lead to membership of an organized armed group.
[8] Id.
[9] Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (emphasis added); Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 3, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 286 (same).
[10] Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts art. 1, June 8, 1977, 1125 U.N.T.S. 609.
[11] Gherebi, 609 F. Supp. 2d at 63-67; Hamlily v. Obama, 616 F. Supp. 2d 63, 73-74 (D.D.C. 2009). In Hamlily, the District Court specifically noted, as part of its consideration of the detention issue that the ICRC had stated that the definition of “direct participation in hostilities” was unsettled. Id. at 74, n.14. See also Hamdan v. Rumsfeld, 548 U.S. 557, 619, n.48 (noting that the ICRC is “referred to by name in several provisions of the 1949 Geneva Conventions” and that, “[t]hough not binding law,” its commentary on the Geneva Conventions is, “as the parties recognize, relevant in interpreting the Conventions' provisions”).
[12] Gherebi, 609 F. Supp. 2d at 55.
[13] Id.
[14] It had been argued by petitioner Khan that the conflict between the United States and the Taliban government, which was at issue in Hamdi was international, while the conflict between the United States and organizations like Al Qaeda was non-international. Id. at 56. The court did not take a position on the character of the conflict. Id. at 55, n.7, but rather rejected the idea that the difference in the character of the conflict was relevant for purposes of deciding who could be detained under the Geneva Conventions. Id. at 60-61.
[15] Id. at 61.
[16] Id. at 65.
[17] Hamlily, 616 F. Supp. 2d at 74 .
[18] See Mattan v. Obama, 618 F. Supp. 2d 24, 26 (D.D.C. 2009); Al Mutairi v. United States, No. 02-828, 2009 U.S.Dist. LEXIS 66868, at *17 (D.D.C. July 29, 2009); Al Odah v. United States, No. 02-828, 2009 U.S.Dist. LEXIS 78222, at *14 (D.D.C. Aug. 24, 2009); Al Rabiah v. United States, No. 02-828, 2009 U.S.Dist. LEXIS 88936, at *18-19 (D.D.C. Sep. 17, 2009). Judge Leon of the D.C. District Court has followed a different approach. He decided the first of the Guantánamo cases before the government revised its proposed standard. At that time, he accepted the standard applied in the Combatant Status Review Tribunals under the Military Commissions Act of 2004. Under this view, an enemy combatant subject to detention was “an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners.” Boumedienne v. Bush, 583 F. Supp. 2d 133, 135 (D.D.C. 2008). He has continued to follow this approach, which is not dissimilar from the one proposed by the US government. Gharani v. Bush, 593 F. Supp. 2d 144, 147 (D.D.C. 2009); Al Bihani v. Bush, 594 F. Supp. 2d 35, 38 (D.D.C. 2009); Hammamy v. Obama, 604 F. Supp. 2d 240, 243 (D.D.C. 2009). One judge of the D.C. District Court, Judge Kessler, has accepted, without discussion, the government's proposed standard. Ahmed v. Obama, 613 F. Supp. 2d 51, 54 (D.D.C. 2009).
[19] Gherebi, 609 F. Supp. 2d at 69; accord Hamlily, 616 F. Supp. 2d at 75; Al Mattan, 618 F. Supp. 2d at 26 (adopting Hamlily); Al Odah, 2009 U.S.Dist. LEXIS 78222, at *14. See also Al Bihani, 594 F. Supp. 2d 35 (upholding detention of a cook in the 55th Arab Brigade because he followed orders of al-Qaeda commander).
[20] See Hamlily, 616 F.Supp.2d at 75; Al Mattan, 618 F. Supp. 2d at 26 (adopting Hamlily); Al Odah, 2009 U.S.Dist. LEXIS 78222, at *14. See also Al Bihani, 594 F. Supp. 2d 35.
[21] Al Mattan, 618 F. Supp. 2d at 26 (adopting Hamlily); Al Odah, 2009 U.S.Dist. LEXIS 78222 at *14. See also Al Bihani, 594 F. Supp. 2d 35.
[22] See Gharani, 593 F. Supp. 2d at 147-149; Hammamy, 604 F. Supp. 2d at 243-244; Ahmed, 613 F. Supp. 2d at 59-66.
[23] ICRC Guidance, supra note 6, at 33.
[24] Hamlily, 616 F. Supp. 2d at 76. Since Hamlily rejected the substantial support standard, it also rejected the government's view that persons who directly supported hostilities in aid of enemy armed forces were subject to detention under the laws of war.
[25] Gherebi, 609 F. Supp. 2d at 70.
[26] Mattan, 618 F. Supp. 2d at 26; Al Mutairi, 2009 U.S.Dist. LEXIS 66868, at *17-18; Al Odah, 2009 U.S.Dist. LEXIS 78222, at *16; Al Rabiah, 2009 U.S.Dist. LEXIS 88936, at *18-19. On the other hand, as discussed previously, see, supra note 17, Judge Leon has adopted the Combatant Status Review Tribunal, which includes the concept of support.
[27] ICRC Guidance, supra note 6, at 32.
[28] Hamdi, 542 U.S. at 594.
[29] Id.

Independent Fact-Finding Mission on the Conflict in Georgia (September 2009)

Click here for document (approximately 500 pages)

The Independent Fact-Finding Mission on the Conflict in Georgia, established by a decision of the Council of the European Union on December 2, 2008, has issued its final report concluding that the 2008 conflict between Russia and Georgia was in violation of international humanitarian and human rights law. The report, which is meant to “[i]nvestigate the origins and the course of the conflict in Georgia,” gives a brief but telling overview of the internal and international elements that led to the shelling of the South Ossetian capital Tskhinvali by Georgian armed forces during the night of August 7 –8, 2008, and concludes that all parties involved had failed to fulfill their international obligations in the aftermath of the attack.

The report analyzes military actions by Russia and Georgia separately. It begins by considering whether Georgia's initial shelling of Tskhinvali was in accordance with international law. The report concludes that the attack was not justifiable under international law, even if Georgia's claim of Russia's imminent attack was correct, because an “armed response would have to be both necessary and proportional.” The report then explains that since the initial attack against South Ossetian forces was illegal under international law, the subsequent counterattack against Georgian forces “did conform to international law in terms of legitimate self-defence.” But, applying the same principle of necessity and proportionality, the report adds that “any operations of South Ossetian forces outside of the purpose of repelling the Georgian armed attack, in particular acts perpetrated against ethnic Georgians inside and outside South Ossetia, must be considered as having violated International Humanitarian Law and in many cases also Human Rights Law.” The report indicates that the lack of “an ongoing armed attack by Russia before the start of the Georgian operation” meant that Georgia's initial attack —using force against Russian peacekeeping forces on Georgian territory—was not justified.

In considering Russia's military actions, the report uses a different analysis. It notes that Russia's “immediate reaction in order to defend Russian peacekeepers” was legal so long as it was proportionate. However, with respect to Russia's subsequent “military campaign deeper into Georgia,” the report concludes “that much of the Russian military action went far beyond the reasonable limits of defence.”

It follows . . . that insofar as such extended Russian military action reaching out into Georgia was conducted in violation of international law, Georgian military forces were acting in legitimate self-defence under Article 51 of the UN Charter. In a matter of a very few days, the pattern of legitimate and illegitimate military action had thus turned around between the two main actors Georgia and Russia.

The remainder of the report deals with the questions of whether the use of force by Russia was justified as a “humanitarian intervention” and whether Russia was obligated to use military action to protect its citizens living in South Ossetia. (The report concludes that neither justification could be recognized.)

The report also briefly discusses allegations of genocide and ethnic cleansing. With respect to claims of genocide, the report states that “allegations of genocide committed by the Georgian side in the context of the August 2008 conflict and its aftermath are neither founded in law nor substantiated by factual evidence.” As to the allegations of ethnic cleansing by South Ossetian forces or irregular armed groups, the report concludes that “several elements suggest the conclusion that ethnic cleansing was indeed practised against ethnic Georgians in South Ossetia both during and after the August 2008 conflict.”

For more on the Mission's report, please refer to the above document.

Source: American Association of International Law

United Nations Security Council Resolution 1889 (5 October 2009)

Click here for document (approximately 5 pages)

The United Nations Security Council has unanimously adopted a resolution requesting “Member States, international and regional organisations to take further measures to improve women's participation during all stages of peace processes, particularly in conflict resolution, post-conflict planning and peacebuilding, including by enhancing their engagement in political and economic decision-making at early stages of recovery processes.” The Council reaffirmed the importance of resolution 1325 (2000) on “women and peace and security,” requesting the Secretary General to provide periodic reports on its implementation.

The Council also condemned sexual violence against women during armed conflict, calling upon all parties to conflicts to stop such violations and set up mechanisms for the prosecution and investigations of these actions. Furthermore, the Council urged Member States and the international community to develop plans and strategies to address women's needs in post-conflict situations. Finally, the Council asked the “Secretary General to report to the Security Council within 12 months on addressing women's participation and inclusion in peacebuilding and planning in the aftermath of conflict”.

Source: American Association of International Law

United Nations Security Council Resolution 1888 (30 September 2009)

Click here for document (approximately 7 pages)

The United Nations Security Council has unanimously adopted a resolution that provides measures and mechanisms to address violence against women and children during armed conflict. In particular, the Council “decid[ed] to include specific provisions . . . for the protection of women and children from rape and other sexual violence in the mandates of United Nations peacekeeping operations.” The Security Council also expressed the intent to identify “women's protection advisers” (WPAs), to be chosen from gender and human rights experts, and has asked the Secretary General to assess “the need for, and the number and roles of WPAs” in United Nations peacekeeping operations.

The Council asked the Secretary General “to appoint a Special Representative to provide coherent and strategic leadership, to work effectively to strengthen existing United Nations coordination mechanisms, and to engage in advocacy efforts . . . to address . . . sexual violence in armed conflict.” In addition, the Council requested that the Secretary General “identify and take the appropriate measures to deploy rapidly a team of experts to situations of particular concern with respect to sexual violence in armed conflict.” Furthermore, the Council affirmed its aim to consider acts of sexual violence against children and women “when adopting or renewing targeting sanctions in situations of armed conflict.” Consequently, the Security Council requested that the Secretary General “present specific proposals on ways to ensure monitoring and reporting in a more effective and efficient way within the existing United Nations system on the protection of women and children from rape and other sexual violence in armed conflict and post-conflict situations”.

Source: American Association of International Law