 |
UN Security Council Referrals to the ICC and the Principle of Legality
|
|
|
|
UN Security Council Referrals to the ICC and the Principle of Legality
Written by Gabriel M. Lentner
Introduction
On 1 November 2021, the Appeals Chamber (AC) of the International Criminal Court (ICC) rendered an interesting judgment relating to a jurisdictional challenge brought by the Defence in the case of Ali Muhammad Ali Abd-Al-Rhaman (“Ali Kushayb”). The challenge is noteworthy because it confronted the Court with novel issues of law relating to the basis and extent of its jurisdiction in cases of UN Security Council Referrals (as provided for in art 13(b) of the Rome Statute, RS). Even though it rejected all challenges, the AC did clarify important legal issues corrected some of the reasoning of the Pre-Trial Chamber II.
In essence, this decision is about the application of the principle of legality or nullum crimen sine lege before the ICC in situations in a non-party state referred to it by the UN Security Council (UNSC). The reasoning provided for in the judgment clarifies several pertinent issues regarding the basis, scope and extent of its jurisdiction in these cases. The fact that Judge Ibá ñ ez’s expressed a separate opinion for the unanimous conclusion, as well as its broader implications for situations involving ad hoc declarations (Art 12 RS), illustrates the importance of a closer look. This is because in both situations, the UNSC referral as well as ad hoc declarations, the ICC is exercising jurisdiction over individuals who are neither nationals of a state party nor committed the alleged offence on the territory of a state party.
This post will focus on these issues in more detail. It will not review the rather uncontroversial findings regarding arguments around an alleged misinterpretation of the legal definition of “situation” in art 13 RS (paras 16-29), the issue of funding of UNSC referrals (paras 30-47), or the contention that UNSC Resolution 2559 (2020), which terminated the African Union-United Nations Hybrid Operation in Darfur, invalidated the referral and thus removed the ICC’s jurisdiction. All these challenges were rejected by the AC.
The Defence’s Argument: Sudan and UNSC Resolution 1593
The case is best understood against the backdrop of the first UNSC referral of a situation to the ICC. A UN fact-finding commission submitted a comprehensive report in January 2005, in which the authors ‘concluded that war crimes and crimes against humanity had been committed by members of the Government forces and the Janjaweed militia’ (para 78). For the first time, a referral to ICC was adopted in March of 2005 with UNSC Resolution 1593.
The judgment is the first in which the ICC had to directly deal with jurisdictional challenges brought in a case arising out of this referral (and not only address the controversial issue of immunities of heads of states, see discussions of the Jordan Appeal Judgement here).
The Defence contended that ‘the Court could not […] exercise the jurisdiction that the Security Council had intended to refer to it’ (para 79). The argument was essentially building on the absence of ratification of the Statute by Sudan. In light of the principle of nullum crimen sine lege, they argued that only crimes defined at the time of the offences in Sudanese national law, international law in force applied to Sudan or customary international law could be applied to Mr Ali Muhammad Ali Abd-Al-Rahman. Reviewing those sources of law, they found that none of those applicable sources of law defined the specific crimes stated in the warrants of arrest.
|
|
|
The AC rejected this argument as unpersuasive and used this opportunity to clarify some basic issues surrounding the ICC’s jurisdiction in situations referred to it by the UNSC.
Principle of Legality is Fundamental in International Law…
It first clarified that the general legal framework of the Statute also applies in situations referred to it by the UNSC under art 13(b) RS, referencing its statement in the Jordan re al Bashir Appeal (para 80). The AC also reiterated that it must do so ‘in a manner that is consistent with internationally recognised human rights as set out in article 21(3) of the Statute’ (para 83). In this respect, the doctrine of nullum crimen sine lege is fundamental in international law, the AC added and referred to art 11(2) of the UDHR and scholarly authorities on this question (para 84).
This line of reasoning follows what Marko Milanovic has concluded about the nature of the Rome Statute already in 2011 (here at 52). The article analysed the question of whether the provisions defining international crimes in the Statute are binding on individuals, i. e. whether they are substantive or jurisdictional in nature. Marko found that the Statute is best viewed to be substantively binding to individuals but only in cases of territoriality and nationality (see also AS Galand here). In cases where the ICC exercises jurisdiction on the basis of either a UNSC referral involving a non-party state or an ad hoc declaration, the Statute is only jurisdictional in nature (with respect to ad hoc declarations Talita de Souza Dias disagrees at 86). In those instances, the Court would need to establish whether the charges conform to custom (or have any other binding national or international source). As Talita pointed out, the nullum crimen principle prohibits substantive not (mere) formal retroactivity (here at 67). This means that only because the RS becomes binding formally after the relevant conduct, there is no violation of the principle in cases where its provisions are not interpreted beyond those of some other prior sources of law found, such as in CIL. To ensure the interpretation of the RS to this end, Marko suggests ‘reading down’ the Statute by reference to Art 21(3) and the principle of legality, just as the AC seems to have done in this case (For the issue of recharacterization of crimes and its consistency with the principle of legality see Talita de Souza Dias’ article here).
Invoking the requirement of legality under human rights law applying Art 21(3) RS, the AC adopts the standard that ‘a court may exercise jurisdiction only over an individual who could have reasonably expected to face prosecution under national or international law’ (para 85). Doing so, it explicitly refers to the jurisprudence of the ECtHR to place emphasis on the concepts of ‘foreseeability’ and ‘accessibility’ (para 85).
|
|
|
