In the wake of Monday’s decision by the ICC Appeals Chamber confirming that Jordan was under an obligation to arrest and surrender Omar Al-Bashir, there have been a flurry of excellent blog posts from various commentators (see for example, the posts by Dov Jacobs, Ben Batros, Dapo Akande, Asad Kiyani and Hemi Mistry). For the most part, these posts have focused on the most controversial aspect of the decision, namely the Appeals Chamber’s recourse to customary international law for what appears to be its primary basis for denying Head of State immunity to Omar Al-Bashir. The Judges could discern no opinio juris or state practice that would support the existence of such immunity vis-à-vis an international court in the proper exercise of its jurisdiction (paras. 100-119, or for ease of reference, “Road 1”).

Having so found, the Appeals Chamber then proceeded to equally find that as Sudan was obliged to “cooperate fully” by virtue of UNSC Resolution 1953 which triggered ICC jurisdiction, article 27(2) was automatically in force. Consequently, Sudan could not claim any immunity in respect of Al-Bashir, nor could Jordan claim that such immunity needed to be waived before effecting his arrest (paras. 120-149, or “Road 2”). In addition, the Appeals Chamber made passing reference to the fact that the Convention against Genocide also necessitated the arrest of Al-Bashir (para. 161).

I will leave to more learned scholars than I to debate the substantive legal propriety of the reasoning on immunities in Road 1. Instead, this post takes a more procedural perspective, and considers that the Chamber arguably should not have pursued Road 1 at all, because – as the Appeals Chamber itself acknowledges – Road 1 was not strictly on appeal.

As recalled by the Appeals Chamber, the three issues certified for appellate review were as follows:

i) The Chamber erred with respect to matters of law in its conclusions regarding the effects of the Rome Statute upon the immunity of President Al-Bashir, including its conclusions that Article 27(2) of the Rome Statute excludes the application of Article 98; that Article 98 establishes no rights for States Parties; that Article 98(2) does not apply to the 1953 Convention; and that even if Article 98 applied it would provide no basis for Jordan not to comply with the Court’s request;

ii) The Chamber erred with respect to matters of law in concluding that U.N. Security council resolution 1593 (2005) affected Jordan’s obligations under customary and conventional international law to accord immunity to President Omar Hassan Ahmad Al-Bashir; and

iii) Even if the Chamber’s Decision with respect to non-compliance was correct (quod non), the Chamber abused its discretion in deciding to refer such non- compliance to the Assembly of States Parties and the U.N. Security Council. (Al-Bashir Appeal Decision, para. 17)

Clearly, issues (i) and (ii) are confined to specific provisions of the Rome Statute, and the effect of those provisions on Al-Bashir’s immunity in the wake of UNSC Resolution 1953. The abstract question of whether a Head of State generally enjoys immunity before an international court was not certified for appeal. What is more, the Appeals Chamber recognises this, but deems it not to be problematic. It nevertheless considered Road 1 to be “intrinsically linked” to the question on appeal (para. 98). But this logic is internally inconsistent, as the Chamber’s own findings later reveal. This is because the Appeals Chamber goes on to confirm the legality of Road 2, the UNSC route affirmed by the Pre-Trial Chamber. If Road 2 was indeed correct, then there was no need to embark on Road 1. The “intrinsic link” therefore doesn’t appear to be one that demands judicial enquiry. With this in mind, let us next recall the standard of appellate review:

A. Standard of Review

33. With respect to errors of law, the Appeals Chamber has previously found that it:

[…] will not defer to the Trial Chamber’s interpretation of the law. Rather, it will arrive at its own conclusions as to the appropriate law and determine whether or not the Trial Chamber misinterpreted the law. If the Trial Chamber committed such an error, the Appeals Chamber will only intervene if the error materially affected the Impugned Decision.

[…] A judgment is ‘materially affected by an error of law’ if the Trial Chamber ‘would have rendered a judgment that is substantially different from the decision that was affected by the error, if it had not made the error’. (Al-Bashir Appeal Decision, para. 33)

Thus, the Appeals Chamber should only intervene where there has been an “error of law” that has “materially affected” the decision, and a “substantially different” decision would have been made but for the error.

Having traversed Road 1 of its own accord, the Appeals Chamber goes on to repeatedly find that in respect of Road 2, the Pre-Trial Chamber’s interpretation of the Statute – and specifically the applicability of article 27(2) – was “correct in law” and that it “did not err” (see paras. 119, 126, 131, 132, 149).

What the Appeals Chamber fundamentally disagrees with (see para. 119) is the Pre-Trial Chamber’s assertion that it was unable to find “a rule in customary international law that would exclude immunity for Heads of State when their arrest is sought for international crimes by another State, even when the arrest is sought on behalf of an international court, including, specifically, this Court”, thus justifying the initial journey on Road 1.

However, even if this finding was an error (and indeed, properly on appeal), as the Appeals Chamber states – and this is very much a contested point, as others have noted – it arguably was not an error that “materially affected” the decision, nor would there have been a substantially different conclusion, as the Appeals Chamber itself acknowledges at para. 119. This is because Road 2 leads to the same destination: Jordan should still have arrested and surrendered Omar Al-Bashir because he enjoyed no immunity.

The need to pursue Road 1 is made all the more puzzling by the Appeals Chamber’s own acknowledgement that “the issues in this appeal ultimately rest on a proper construction of the provisions of the Rome Statute, in particular articles 27(2), 86, 89 and 98 of the Statute” (para. 97). If this holds true, adherence to article 21(1), which requires the Court to “apply in the first place, the Statute […]”, the present appeal would have been readily disposed of by confirming the legality of Road 2 without the need to resort to customary international law and Road 1, and simply affirming the Pre-Trial Chamber’s conclusion on the immunity question.

Finally, two points regularly made by parties in appellate litigation at the ICC is that the Appeals Chamber has previously declined to enter findings where any discussion of the issues raised would be “abstract and hypothetical,” and that it does not exist to render “advisory opinions“.

Yet, by taking, and affirming, Road 1, the Appeals Chamber appears to have done exactly that.

For those interested in the Dominic Ongwen case, or issues relating to evidence and prosecuting sexual and gender-based crimes at the International Criminal Court, my new article has recently been published online by the International Criminal Law Review. The article examines how the testimony of 7 alleged “forced wives” to Dominic Ongwen was preserved in the pre-trial phase, before the trial proper actually began. Here is the abstract:

 Article 56 of the Rome Statute allows for the preservation of evidence that may not be available at trial. In 2015, this provision was invoked to record the testimony of seven vulnerable victims of sexual and gender-based crimes in the Dominic Ongwen case. Occurring in the pre-trial phase of the case, before charges were pleaded or even confirmed, this overlooked development sets an important judicial precedent at the International Criminal Court (ICC). It represents a milestone precedent for future cases, not just in terms of circumventing situations of witness interference, but more importantly, in safeguarding vulnerable victims and witnesses, and preserving their evidence for any eventual trial.

Beyond the Hague is excited to welcome Dr. Rachel Killean for this guest post on the recent appeal judgement at the Extraordinary Chambers in the Courts of Cambodia. Rachel holds a PhD from Queen’s University Belfast, in which she examined the extent to which international criminal courts can respond to the needs and interests of victims. In particular, her research focused on the role of victims within the ECCC.

On the 23^rd November 2016, the Supreme Court Chamber (SCC) of the Extraordinary Chambers in the Courts of Cambodia (ECCC) released its appeals judgment in Case 002/01, upholding the life sentences given to Khieu Samphan and Nuon Chea, two former senior leaders of the Khmer Rouge regime. The judgment rejects the accused’s allegations of fair trial breaches, and upholds convictions for crimes against humanity of murder, persecution on political grounds and other inhumane acts.

However, the SCC did not uniformly support the conclusions of the Trial Chamber (TC), and a number of convictions were reversed on the basis that there was insufficient evidence to support the TC’s conclusions. The SCC also excluded the applicability of joint criminal enterprise III, finding that at the time the crimes were committed (1975-1979) criminal liability based on making a contribution to the implementation of a common criminal purpose was limited to crimes that were actually encompassed by the common purpose. This blog post seeks to provide a brief overview of the background to this judgment and some comments on its findings.

The ECCC is tasked with addressing the crimes perpetrated during the Khmer Rouge regime, a communist regime which seized power in Cambodia on 17 April 1975, and over the next three years, eight months and 20 days are believed to have caused the deaths of at least 1.7 million people, either directly through execution, or through the starvation and illness caused by their policies of forced labour.

(Photo credit: www.eccc.gov.kh)

The appeals judgment in Case 002/01 brings to an end the first segment of the ECCC’s ongoing series of trials against Khieu Samphan and Nuon Chea. The case originally involved four accused. However, Ieng Thirith, the former Minister of Social Affairs during the Khmer Rouge, was found unfit to stand trial in November 2011, while the case against her husband Ieng Sary, the former Minister of Foreign Affairs, was similarly dropped on 14th March 2013 following his death the same day.

These incidents brought into sharp relief the risks associated with pursuing justice for crimes perpetrated over forty years ago, and a decision was made to sever the substantial case against the remaining defendants into a series of sub-trials. Case 002/01 was thus controversially limited to the forced movement of the population from Phnom Penh and later from other regions, and the execution of Khmer Republic soldiers at Toul Po Chrey execution site immediately after the Khmer Rouge takeover in 1975.

The initial Trial Judgment was released on the 7^th of August 2014. The TC found that both accused had participated in a joint criminal enterprise to achieve the common purpose of implementing a rapid socialist revolution through a ‘great leap forward’ by whatever means necessary. The Chamber found that this common purpose was implemented through policies to forcibly displace people from cities and towns and between rural areas, and a policy to target former Khmer Republic officials.

Nuon Chea and Khieu Samphan were thus found to have committed the crimes against humanity of murder, political persecution and other inhumane acts (comprising forced transfer, enforced disappearances and attacks on human dignity) during the movements of the population, and murder and extermination through executions of Khmer Republic officials.

This judgment was not without its critics. In addition to resulting in appeals from both Nuon Chea and Khieu Samphan highlighting several hundred alleged errors of law and fact, the judgment was criticized by trial observers for “(1) repeated failures to resolve conflicting or internally inconsistent accounts, and (2) a strong tendency toward vagueness and lack of precision, including a failure to justify the findings by reference to specific weighing of the evidence; and failure to specify how the burden of proof beyond a reasonable doubt was met in regard to what other inferences, if any, could plausibly be drawn from the evidence on which the Court chose to rely.“

It appears the SCC shared some of these concerns, as is evidenced by its reversal of a number of the two accused’s convictions. For example, when reversing the conviction for the crime against humanity of extermination in relation to the evacuation of Phnom Penh, the SCC observed that the TC had not established the required scale of death, but had relied on “estimates that had been given as to the death toll” (para 536) and had sought to address this limitation by “not making a concrete finding as to the minimum death toll” (para 537). Similarly, in relation to extermination during the second population transfer, the SCC noted that the evidence provided “insufficient support for the Trial Chamber’s extrapolation that deaths occurred on a ‘massive scale’” (para 556), and again reversed the finding of extermination.

Again, when quashing the conviction of persecution during the second population transfer, the SCC noted that the TC had relied on only “a small sample of the individuals who had been affected by the population transfer” (para 633), and that the crime was not reasonably established (para 863).

The SCC found that the TC convictions of extermination, murder and persecution on political grounds in relation to the execution of Khmer Republic officials was based on “hearsay, out-of-court statements and documents” (para 888), and evidence of “inherently low probative value, with hardly any discussion as to their relevance, reliability and potential corroboration (para 891).” Indeed, the SCC noted “marked inadequacies in the evaluation of the evidence” and a consistent failure to engage with fundamental issues affecting the strength of the evidence (para 970). As a result, despite finding that there was evidence of Khmer Republic officials being murdered, it was found that the liability of the accused had not been proven, and the convictions were reversed.

In relation to the Co-Prosecutors’ appeal in relation to JCE III, the SCC found that although the appeal was procedurally inadmissible, it gave the SCC the opportunity to analyse the concept of JCE III. In upholding the finding that JCE III was not customary international law at the time the crimes were committed, the ECCC has vindicated critics of this extended mode of liability, who have disputed its existence since the ICTY controversially outlined JCE in its Tadić appeals judgment. How this finding will affect the Co-Prosecutors’ strategy, particularly in relation to the charges of genocide, remains to be seen.

This appeal judgment is an important contribution to the legacy of the ECCC. While delivering accountability for the grave crimes perpetrated during the Khmer Rouge is an important goal, the legitimacy of the Court depends on judgments being well reasoned and fair. In choosing to reverse some of the more contentious findings, while maintaining the life sentence due to the gravity of the crimes, the SCC has hopefully improved the reputation of the ECCC’s jurisprudence and enhanced its contribution to international criminal law more broadly.

From 27-28 June 2014, Bangor Law School and the Bangor Centre for International Law will host a conference on proof in international criminal trials. It promises to be of great interest to academics and practitioners alike.

Here is the conference abstract:

“There is now an impressive body of literature on the precise scope, context and application of evidentiary rules in international criminal trials. However, the issues surrounding proof and reasoning on evidence in international criminal law have remained relatively under-examined to date. By bringing together judges, practitioners and leading scholars on evidence, international criminal procedure and analytical methods, this conference will comprehensively address issues related to proof in international criminal proceedings. These issues include, inter alia, the means by which inferences are drawn, how reasoning on findings of fact is articulated in judgments, and how witness credibility is assessed. Participants will analyse some of the challenges of fact-finding in the complex context of international criminal trials, which often involve large masses of evidence and hundreds of witnesses.”

Conference speakers include:

• Professor Terence Anderson, University of Miami;
• Professor Nancy Combs, College of William and Mary School of Law;
• Judge Teresa Doherty, Residual Special Court for Sierra Leone;
• Professor John Jackson, University of Nottingham;
• Dr Mark Klamberg, University of Uppsala;
• Dr Yassin M’Boge, Leicester University;
• Dr Yvonne McDermott, Bangor University;
• Professor Paul Roberts, University of Nottingham;
• Professor William Twining, University College London.

The programme for the conference is available here. To register, please follow this link.