South Africa to Withdraw from the ICC

International Criminal Court New PremisesSouth Africa has formally begun the process of withdrawing from the International Criminal Court (ICC).

The Rome Statute, under which the ICC was set up, requires the arrest of heads of state for whom a warrant was issued.

The country’s Minister of justice, Michael Masutha, said that South Africa was “hindered” by certain parts of the Rome Statute, primarily the one that “compels South Africa to arrest persons who may enjoy diplomatic immunity under customary international law, who are wanted by the ICC for genocide, crimes against humanity, war crimes, to surrender such persons to the International Criminal Court.”

He said that South Africa wishes to give effect to the rule of customary international law which recognises the diplomatic immunity of heads of state and that the Rome Statute is ”in conflict and inconsistent” with such rule.

Last year, a South African court criticised the government for refusing to arrest Sudan’s President Omar al-Bashir.

Mr Bashir is wanted by the ICC on charges of genocide, war crimes and crimes against humanity over the conflict in the Darfur region.

Mr Bashir was attending an African Union summit in Johannesburg, when the South African government ignored an ICC request to arrest him.

Human Rights Watch has criticised South Africa’s decision.

“South Africa’s proposed withdrawal from the International Criminal Court shows startling disregard for justice from a country long seen as a global leader on accountability for victims of the gravest crimes,” said Dewa Mavhinga, the NGO’s Africa division senior researcher.

“It’s important both for South Africa and the region that this runaway train be slowed down and South Africa’s hard-won legacy of standing with victims of mass atrocities be restored,” Mr Mavhinga said.

A written notice of South Africa’s intention was submitted to the UN secretary general. The withdrawal from the ICC will be formalized one year after the notification. During the 12 months’ notice period, South Africa will remain under the Rome Statute.

Immunities and International Crimes – The Al-Bashir Conundrum

Sudanese President Omar al-Bashir during the 25th AU Summit in South Africa ©KIM LUDBROOK / EPA

Sudanese President Omar al-Bashir

On 13 October 2016, Professor Guénaël Mettraux and Professor John Dugard filed an amicus curiae brief before the Constitutional Court of South Africa In the matter between the Ministry of Justice and Constitutional  Development and the Southern African Litigation Center (“President Al-Bashir case”).

The proceeding are critically important to resolving the tension between a State’s obligation to respect the sovereign immunities of foreign state officials (including heads of states) and that State’s obligation to cooperate with the ICC.

In resolving this tension, Profs Mettraux and Dugard have laid down a series of important principles and effectively mapped a way out of the problem:

1. Immunities and international crimes – A brief historical overview

i. Traditional international law used to grant absolute immunity to heads of state in respect of all acts, commercial and criminal.

ii. Over time, international law started to carve out a number of exceptions to that general and absolutist principle (in particular in respect of commercial acts). This includes an exception to immunities as a defence and/or bar to jurisdiction when faced with international crimes charges (see next).

2. A customary international law exclusion of immunities as a defence and jurisdictional bar to international crimes prosecution

iii. Since at least the end of the Second World War and criminal prosecutions pertaining to that conflict, customary international law excludes the possibility for a Head of State (and other State officials) to rely on his immunity as a defence or as an objection to the jurisdiction of a court before which he appears on charges of international crimes (war crimes; crimes against humanity; or genocide).

iv. This is so whether the jurisdiction seeking to try him is a domestic or an international one. The loss of immunity in such a case is determined, not by the – national or international – character of the tribunal trying such a defendant, but by the international character of the underlying offence with which he is charged.

v. In the context of that exclusionary rule, none of the relevant instruments or relevant incidents of state practice draw a distinction between official and private acts of state officials. All conduct amounting to an international crime are encapsulated into the general exclusionary rule. Nor do these draw a distinction between sitting and former state officials. The exclusion of immunities as a defence and jurisdictional bar is absolute in its effect and pertains to any individual.

vi. Article 27 of the Statute of the ICC recognizes and gives effect to that general principle in the context of proceedings before the ICC. As a jurisdictional provision (dealing with one aspect of the Court’s jurisdiction ratione personae), Article 27 only deals with the effect (or, rather, the absence of effect) of an official position and related immunities on the jurisdiction of the Court itself. It does not regulate, nor purports to regulate, the effect of these immunities on the jurisdiction of any other court. Continue reading

Event: The Death Penalty and International Law

the-hague-institute-for-global-justiceDate: Wednesday 5 October 2016, from 18:30 – 20:00.

Venue: The Hague Institute for Global Justice (Sophialaan 10, The Hague).


  • Aaron Matta, Senior Researcher at the Hague Institute for Global Justice, will lead the conversation with:
  • Edward Fitzgerald QC, joint head of Doughty Street Chambers and member of Doughty Street International.
  • Professor Jennifer Trahan, Associate Professor at NYU.
  • Sadakat Kadri, author and barrister at Doughty Street Chambers.
  • Maya Foa, Director of Reprieve’s Death Penalty team.

The panel will debate some topical issues in relation to the (in)consistencies between the death penalty and international (human rights) law, including the use of the mandatory death penalty, the linkage between the International Criminal Court and the death penalty, capital punishment under international and Islamic law, and the use of specific methods of applying the death penalty as cruel and unusual punishment.

In order to register, please click here.

ICC: Jean-Pierre Bemba’s Defence Appeals his Conviction

160621-bemba-sentence-10-1The Defence for Mr. Jean-Pierre Bemba filed an appeal against his conviction for war crimes and crimes against humanity in front of the Appeals Chamber of the International Criminal Court (ICC).

The Defence criticized many of the findings of the Trial Chamber and claimed that the Bemba trial was in fact a mistrial.

The Defence highlighted a vast number of gaps in Mr. Bemba’s right to a fair trial, claiming for instance that the Prosecution was permitted to intercept and listen to telephone conversations between the accused and his lawyers, between the lawyers themselves, and between the lawyers and Defence witnesses.

The Defence also mentioned the vast amount of ex parte access to the Trial Chamber enjoyed by the Prosecution to discuss matters directly relevant to the Judgment itself.

The majority of the appeal, however, is dedicated to the flaws of the Trial Chamber’s findings on effective control, which, according to the Defence, ‘’fall far outside established military doctrine and practice’’ […] and ‘’deprive the Judgement of precedential value in shaping the future actions of commanders.’’

For the Defence, the Trial Chamber, having disregarded the evidence of both the Prosecution and Defence military experts, ‘’invented a theory of command responsibility which is a military impossibility’’ […] and ‘’conflated basic military principles, misunderstood and misapplied established legal doctrine and, most alarmingly, made key factual findings on the basis of no evidence.’’

The Defence adds that other fatal flaws undermine the conviction. The Defence referred to the fact that nearly two thirds of the underlying acts for which Mr. Bemba was convicted were not included or improperly included in the Amended Document Containing the Charges and fall outside the scope of the charges.

The Defence also pointed out that, to convict a person of a crime against humanity, a Trial Chamber must find that he knew that his conduct was part of a widespread attack on a civilian population. However, no such finding was made in this case against Mr. Bemba.

The Prosecution has two months within which to file a response.

In order to read a summary of the Defence Appeal, click here.

ICC: Al Mahdi Sentenced to 9 Years for the Destruction of Historic and Religious Buildings in Mali

Ahmad Al Faqi Al MahdiToday, Trial Chamber VIII of the International Criminal Court (ICC) unanimously convicted Ahmad Al Faqi Al Mahdi of the war crime of attacking historic and religious buildings in Timbuktu, Mali, in June and July 2012. The Court sentenced Al Mahdi to nine years’ imprisonment, deducting the time he has already spent in detention.

On 22 August 2016, at the opening of the trial, Al Madhi had already admitted guilt to the war crime consisting in attacking ten historic and religious monuments in Timbuktu, asking for forgiveness from the people of Timbuktu.

Al Mahdi was a member of Ansar Dine, a movement associated with Al-Qaeda in the Islamic Maghreb (AQIM) which took control of Timbuktu in 2012. As an expert on matters of religion, Al Mahdi was consulted by the leader of Ansar Dine in relation to the decision to destroy the mausoleums.

According to the Trial Chamber, Al Mahdi’s contribution to the destruction of the buildings, consisting of nine UNESCO World Heritage sites, was essential. He had overall responsibility for the execution phase of the attack and directly participated in the attacks on five of the protected buildings.

The Court considered that crimes against property are generally of less gravity than crimes against persons. However, the targeted buildings were not only religious buildings but had also a symbolic and emotional value for the inhabitants of Timbuktu. Continue reading

ICC Prosecutor Will Also Prioritise Environmental Destruction Cases

iccThis week, the Office of the Prosecutor of the International Criminal Court (ICC) published a detailed policy document which provides guidance on how the Office of the Prosecutor exercises its discretion in the selection and prioritisation of cases.

For the first time, the Office said that it would also prioritise crimes that result in the “destruction of the environment”, “exploitation of natural resources” and the “illegal dispossession” of land.

“The Office [of the Prosecutor] will give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land”, says the policy paper.

Cambodia seems to be a good example for this new ICC focus as a case has been lodged with the ICC on behalf of 10 Cambodians alleging that the country’s ruling elite, including its government and military, has perpetuated mass rights violations since 2002 in pursuit of wealth and power by grabbing land and forcibly evicting up to 350,000 people.

Broadening the priority cases to include land-grabbing would recognise that mass human rights violations committed during peacetime and in the name of profit could be just as serious as traditional crimes.

Reinhold Gallmetzer, a member of the ICC working group who drew up the policy document, said: “We are exercising our jurisdiction by looking at the broader context in which crimes are committed. We are extending the focus to include Rome statute crimes already in our jurisdiction.”

“Forcible transfer [of people] can already be a crime against humanity, so if it is committed by land-grabbing – whether as a result or a precursor – it can be included.”

First Trial Over Cultural Destruction to Open at the ICC

Ahmad Al Faqi Al MahdiThe trial in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi is scheduled to open tomorrow at the seat of the International Criminal Court (ICC) in The Hague.

Mr Al Mahdi is an alleged Islamic extremist charged of war crime through his involvement in the intentional destruction of religious buildings in the city of Timbuktu in Mali between about 30 June 2012 and 10 July 2012.

In 2012, Tumbuktu would have been under the control of armed groups, Al Qaeda in the Islamic Maghreb (“AQIM”) and Ansar Eddine, a mainly Tuareg movement associated with AQIM.

The Prosecution alleges that Al Mahdi was linked to those groups. His alleged orders consisted in the destruction of historic buildings including mausoleums and a mosque in Timbuktu. They were specifically identified, chosen and targeted precisely in light and because of their religious and historical character. Their destruction was considered as a serious matter by the local population.

Due to Mr Al Mahdi’s announced intentions to make an admission of guilt, the trial is expected to last for about a week, after which the judges will deliberate and in due course pronounce a decision on the guilt or innocence of the accused and the possible sentence.

If the accused does not plead guilty at the opening of the trial, the hearings will be reported to another date.

This is the ICC first case concerning the destruction of buildings dedicated to religion and historical monuments, which the ICC Prosecutor has called “a callous assault on the dignity and identity of entire populations, and their religious and historical roots”.

Mali’s government asked the Court in 2012 to investigate crimes committed on its territory. Prosecutors opened an investigation in 2013. Mr Al Madhi is the first suspect detained.

A Step Closer to Having the Crime of Agression under the ICC Jurisdiction

1. ilawyer photo - Palestine 30th ratification of the Kampala Amendment… A Step closer to having crime of aggression jurisdiction activated before the ICC

On 26 June 2016, Palestine ratified the amendments to the Rome Statute on the crime of aggression.

By this ratification, Palestine deposited the thirtieth instrument of ratification which opened the possibility of giving jurisdiction to the International Criminal Court (“ICC”) to try the crime of aggression.

Indeed, the provisions of articles 15 bis and ter of the Rome Statute provide that the ICC will not be able to exercise its jurisdiction over this crime until at least thirty States Parties have ratified or accepted the amendments; and a decision is taken by two–thirds of States Parties to activate the jurisdiction at any time after 1 January 2017.  Continue reading

Gaddafi Son Saif al-Islam ‘Released’ from Libya Jail

Saif Al-Islam GaddafiMuammar Gaddafi’s son Saif al-Islam has been released from custody after his death sentence was quashed, his British lawyer said.

Muammar Gaddafi’s most prominent son was sentenced to death in 2015 for crimes committed during the revolution that overthrew his father. The sentence had been quashed by Libya’s new UN-backed government this year, and Saif is now at an undisclosed location after being released from house arrest in the mountain town of Zintan where he had been held for five years.

“He’s been released from Zintan detention. The release, I’m told, was on 12 April – there was an order from the central government,” said his lawyer. “He’s in Libya, he’s in good health, he’s safe and he’s well.”

The claim could not be independently verified, and neither the UN-backed government in Tripoli or Zintan authorities have yet commented on the report.

In practical terms, an amnesty for Saif would not be a decision the government can enforce as Zintan is home to one of the most powerful Libyan militias, and any release would depend on agreement by Zintan leaders.

His captors in Zintan refused to transfer him to Tripoli, where he was sentenced to death in absentia by a court in July 2015. The verdict had drawn condemnation abroad, with Human Rights Watch saying the trial was riddled with legal flaws and carried out amid widespread lawlessness undermining the credibility of the judiciary.

Saif al-Islam is also wanted by the International Criminal Court (ICC) in The Hague, which issued an arrest warrant in 2011 on preliminary charges of crimes against humanity, murder and persecution for being part of the inner circle of his father’s regime.

Gaddafi’s lawyer said the ICC must now drop its case because of rules prohibiting a suspect from being tried twice for the same crimes.

“There was a trial, there was a conviction, he was sentenced to death. After that there was an amnesty,” he said. “I’m going to be filing an application that the case is inadmissible at the ICC under article 20 of the statute concerning double jeopardy.”

UNESCO and ICC Join Forces to End Impunity for Destruction of Cultural Heritage

Tumbuktu Mausoleum Ruins

The ruins of a Mausoleum in Tumbuktu

Today, the Director-General of the UN Educational, Scientific and Cultural Organization (UNESCO), Irina Bokova, met with the President of the International Criminal Court (ICC), Silvia Fernandez de Gurmandi, and Deputy Prosecutor James Stewart, to explore ways to deepen cooperation on the protection of cultural heritage and the fight against impunity of war crimes.

“UNESCO and ICC have come a long way together, to strengthen the rule of law, to change the mindset about the destruction of cultural heritage, and we are determined to go further, to end impunity for deliberate destruction of cultural heritage,” said Ms. Bokova.

Immediately after the attacks on the people and heritage of Mali, UNESCO raised the issue of the destruction of the mausoleums to the attention of the Court.

On 1 July, 2012, ICC Prosecutor Fatou Bensouda declared that this destruction constituted a war crime under the Rome Statute and then launched a preliminary examination into the violence that had been engulfing the country since January 2012.

The first suspect, Ahmed al-Faqi al-Mahdi, was transferred by the authorities of Mali and Niger to The Hague on 26 September 2015. His trial is scheduled to start on 22 August 2016.

The case of Mali made history in the fight against impunity – recognizing the restoration of justice and the rule of law as an essential step of any recovery process. This sets a historic precedent for similar cases in the future.

In this spirit, UNESCO and the ICC are sharing expertise and information about the importance of the sites, about why they were inscribed on the UNESCO World Heritage List, and the reason why their deliberate destruction can be considered a war crime.