by Samuel Linehan

The challenges for the International Criminal Court posed by state non-cooperation and potential new situations were considered at a panel discussion hosted by Chatham House and Doughty Street Chambers on 11 March 2015.

The panellists were Shehzad Charania, Legal Adviser and Head, International Law Team, British Embassy, The Hague; Liz Evenson, Senior Counsel, Human Rights Watch; and Dr Rod Rastan, Legal Adviser, Office of the Prosecutor, International Criminal Court. The chair was Elizabeth Wilmshurst. The Chatham House Rule was not applied.

State non-cooperation

General observations

Liz Evenson noted that there are different modes and levels of cooperation with the ICC. Some obstacles can be overcome; for example remote investigation may be possible where there is no access to a territory. However, as reflected in the new OTP investigative policy, in situ investigations are preferable. Other obstacles cannot be overcome, such as refusal to execute an arrest warrant. The Kenya situation demonstrated the effect of non-cooperation on the outcome of proceedings.

Rod Rastan emphasised that cooperation is fundamental to a court which lacks the investigative and enforcement apparatus of a developed jurisdiction. The issue was not resolved by the Rome Statute, as the only remedy for non-cooperation is a reference to the UN Security Council or the Assembly of States Parties. This requires a collective response from the international community. Cooperation worked at the ICTY, as initial hesitation was overcome with the assistance of NATO and the EU.

Shehzad Charania considered what the international community can do in the face of non-cooperation. In the Darfur Situation, the matter was referred to the Security Council by the Pre-Trial Chamber. The signs there are not good, despite the UK’s support for the ICC. The same is true of the Libya Situation. An indication of the current climate is the fact that at present the Security Council cannot even agree to acknowledge a letter from the President of the ICC. The low point was the failure to refer the situation in Syria. However there are some signs of progress. The ICC has a central position in various policy debates, for example on the protection of women and journalists in conflict. The Security Council has never entered into discussion of concrete measures in response to non-cooperation; the obvious response would be sanctions. The Assembly of States Parties has agreed to avoid all non-essential contact with indictees.

Kenyatta

Turning to the Kenyatta case, Rod Rastan said that an adjournment was sought as it was considered that there were no reasonable prospects of a conviction. This conclusion was reached after the evidence deteriorated below the required standard. In particular, the reliability of two of the three key insider witnesses was called into question. The charges were not withdrawn immediately as there was an outstanding cooperation issue in relation to the records requests, which needed to be litigated. The Trial Chamber decided not to make an Article 87(7) Rome Statute referral to the Assembly of States Parties; this has recently been certified for appeal. These matters have all taken place in the context of severe witness intimidation in Kenya. The Government of Kenya has suggested that the OTP’s investigative duty has been imposed on them; this does not take into account the cooperation regime envisaged by the Rome Stature. The charges have been withdrawn without prejudice, but the trial is unlikely to resume soon. However Ruto and Sang and Barasa are ongoing.

Shehzad Charania discussed the diplomatic side of the case. This included the Government of Kenya’s application for an Article 16 deferral, and its attempts to modify the Rules of Procedure and Evidence. In relation to the presence of the accused, the question was how a head of state could be tried without any adverse effect on the population of his country. The Assembly of States Parties ultimately determined that the presence of the accused was both a right and an obligation, and left the decision on presence to the Trial Chamber. The Government of Kenya did not entirely carry the day: the amendment to Rule 68 provided additional gateways for admission of prior recorded testimony.

Rod Rastan noted that the wording of Article 63(1) ‘shall be present’ afforded a very limited discretion to excuse the accused. This question engages a number of issues, including the victims’ interests and the integrity of the process. The decision to subpoena witnesses in Ruto and Sang is a significant positive development, which has transformed the Court’s powers. Although states cannot be required to transfer witnesses to The Hague, they can be required to facilitate witness testimony in situ or via videolink.

Liz Evenson considered that the challenges in Kenyatta were ‘legendary.’ Things could however have been done differently. There was a feeling at the Assembly of States Parties that something had to be offered to counter the threat of a mass African Union walkout. This was dangerous; there is no need for a court that changes its rules to suit the powerful. What was needed was a firm stance and faith in judicial discretion. In the aftermath of Kenyatta, both the OTP and the VWU should examine their practices. There are resource management issues in relation to the lack of thorough investigation at the earliest stages. The new policy of making sure a case is trial-ready before seeking arrest is a positive development.

The African Union

Shehzad Charania considered that in reality there was no actual risk of an African Union walkout, as the body did not have a common position. The vast majority of African Union states support the ICC. On the proposed International Criminal Chamber of the African Court of Justice and Human Rights, it was noted that the proposed head of state immunity remains controversial; so far only four states have ratified this protocol. There is also a funding issue; it is not clear that the EU will support a court that grants such broad immunity. However the Chamber could fit into the complementarity regime: for example it could try mid-level leaders and leave top-level leaders to the ICC.

Rod Rastan observed that there are a lot of competing views in the African Union. The ICC would welcome a credible regional court; there is plenty of work to go round. In principle, a complementarity regime that includes regional as well as national courts could work. However, the ICC would need to be able to bind regional courts.

New situations

Islamic State

Rod Rastan noted that the ICC lacks territorial jurisdiction in Syria and Iraq, but has nationality jurisdiction over some members of Islamic State. The issues here are complementarity, with some states actively prosecuting Islamic State members; and the policy of focusing on those most responsible, who in this case are not state party nationals.

Liz Evenson considered that the ICC should act here as a court of last resort, considering that states are already prosecuting Islamic State members. It is always important that the ICC can conduct balanced investigations into those on both sides of a conflict.

Shehzad Charania observed that there is high-quality evidence available from video recordings, defectors and so on. This evidence is better than that which was available to the ICTY.

Conclusions

Liz Evenson noted that the Assembly of States Parties policy on Article 87(7) referral of non-cooperation only envisages a dialogue with the affected states. There is a lack of enforcement power which should be addressed.

Rod Rastan concluded that the challenge for the ICC was to maintain its effectiveness against powerful actors and in the face of instability.

Shehzad Charania observed that the collapse of Kenyatta had highlighted the question of cooperation.  The UK intends to act as a model of state cooperation during the Iraq Preliminary Examination. He concluded on the ‘obligatory optimistic note’ that the ICC is busier than ever, and is here to stay.