Critical thoughts on Article 59(2) of the ICC Statute

Journal of International Criminal Justice

Volumn 4, Issue 3, 2006, Pages 448-465

  El Zeidy, Mohamed M ^a  

^a Egyptian Ministry of Justice   (Afghanistan)

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EID: 33750275932     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mql038     Document Type: Article

References (98)

1. Further information on the situations may be found on the Court's website at http://www.icc-cpi.int/cases.html (visited 10 May 2006).
2. The LRA leaders are Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen and Raska Lukwiya. See ICC, Press Release, Warrant of Arrest Unsealed Against Five LRA Commanders, 14 October 2005, available at http://www.icc-cpi.int/press/pressreleases/114.html (visited 10 May 2006). For an account of the Prosecutor's application for the issue of arrest warrants, see Decision on the Prosecutor's Application for Warrants of Arrest under Art. 58, ICC Doc. ICC-02/04, 8 July 2005, unsealed pursuant to Decision ICC-02/04-01/05-52, 13 October 2005, available at http://www.icc-cpi.int/library/cases/ ICC-02-04-01-05-1-US-Exp.English.pdf (visited May 2006); for the text of the warrants see ICC documents ICC-02/04-01/05-57, 13 October 2005; 4 ICC-02/04-01/05-56, 13 October 2005; ICC-02/04-01/05-55, 13 October 2005; ICC-02/04-01/05-54, 13 October 2005; ICC-02/04-01/05-53, 13 October 2005 (available online at: http://www.icc-cpi.int/cases/ current-situations/Uganda/ug-decision.html, visited 10 May 2006).
3. Also see KP Apuuli, 'The ICC Arrest Warrants for the Lord's Resistance Army Leaders and Peace Prospects for Northern Uganda', 4 Journal of International Criminal justice (2006) 179-187.
4. See Arts 58-61 ICCSL, Rules 117-130, 131, 185 ICC RPE.
5. On the drafting history of Article 59, see Report of the International Law Commission on the Work of its Forty-Sixth Session, Art. 29, at 98 [hereinafter 1994 ILC Draft];
6. Report of the Ad hoc Committee on the Establishment of an International Criminal Court, Art. 29, at 32 [hereinafter 1995 Ad hoc Committee Report]
7. Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. I, Art. 29, at 52-53 and Vol. II, Art. 29, at 139-145 [hereinafter 1996 Preparatory Committee Report]
8. Decisions Taken by the Preparatory Committee at its Session Heldfrom 1 to 12 December 1997, Art. 29, at 31-32
9. Report of the Inter-Sessional Meetingfrom 10 to 30 January 1998 in Zutphen, The Netherlands, Art. 53 (former 29), at 101-103
10. Report of the Preparatory Committee, Draft Statute & Draft Final Act, Art. 60 (former 29 and 53), at 106-108
11. Compendium of Draft Articles referred to the Drafting Committee by the Committee of the whole as of 9 July 1998, UN Doc. A/CONF.183/C.1/L.58, 9 July 1998, Art. 59, at 34-35
12. Report of the Drafting Committee to the Committee of the Whole, UN Doc. A/CONF.183/C.1/L.87, 15 July 1998, Art. 59, at 11-12
13. Draft Statute for the International Criminal Court, UN Doc. A/CONF.183/ C.1/L.76/Add.5, 16 July 1998, Art. 59, at 8-9.
14. See for example, 1996 Preparatory Committee Report Vol. I, at 52.
15. 1994 ILC Draft, supra note 4, at 98
16. 1995 Ad hoc Committee Report, supra note 4, at 32.
17. 1996 Preparatory Committee Report Vol. I, supra note 4, at 52.
18. Ibid., at 52, 67. This approach was backed by several proposals tabled during the 1996 Preparatory Committee's meetings,
19. see 1996 Preparatory Committee Report Vol. II, supra note 4, at 132-133, 135, 140, and also the proposals made by the informal group on judicial cooperation and enforcement, ibid., at 145.
20. Article 58 (1)(a) and (b) ICCSt. and Rule 117 (3) ICC RPE. Article 58(1)(a) and (b) stipulates: 'At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that: (i) There are reasonable grounds to believe that the person has committed a crime within the Jurisdiction of the Court; and (ii) The arrest of the person appears necessary: (a) To ensure the person's appearance at trial, (b) To ensure that the person does not obstruct or endanger the investigation or the court proceedings, or (c) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the Jurisdiction of the Court and which arises out of the same circumstances'.
21. However, see Decision on the Defence Motion on jurisdiction, Tadić (IT-94-1-T), Trial Chamber, 10 August 1995, §§ 37, 43; Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadić (IT-94-1-AR72), Appeals Chamber, 2 October 1995, §§ 61-64; Decision on the Defence Motion on Jurisdiction, Kanyabashi (ICTR-96-15-T, Trial Chamber, 18 June 1997, §§ 30-32. These decisions rejected the claim of jus de non evocando on several grounds. The most relevant here is that because the Security Council is acting under chapter VII, 'this involves some surrender of sovereignty by the members nations of the United Nations', Tadić Appeal, ibid., §63. On the roots and interpretation of the principle jus de non evocando in ancient and modern eras, see M. Plachta, '(Non-) Extradition of Nationals: A Neverending Story?', 13 Emory International Law Review (1999) 77, at 82, 88-91. Yet, in the case of the ICC the situation might be slightly different. It should not be forgotten that the ICC was not created by a Security Council decision; rather it is the result of a multilateral treaty subject to the consent of parties thereto. The Rome treaty was therefore drafted on the assumption that the priority would be given to trials before the national justice systems and the exception would be the ICC. Bearing this in mind, it could still be argued that Art. 59(3) does not entirely fit within the notion of complementarity.
22. See 1996 Preparatory Committee Report Vol. I, supra note 4, at 52.
23. Ibid.
24. See 1996 Preparatory Committee Report Vol. II, supra note 4, at 143-145.
25. An argument could be raised on the basis of Art. 27 of the Vienna Convention on the Law of Treaties to the effect that a state may not invoke its internal laws as a justification for its failure to perform a treaty; see Vienna Convention on the Law of Treaties, Art. 27 [hereinafter Evans VCLT]. An early application of this principle prior to the conclusion of the Vienna Convention is found in Exchange of Greek and Turkish Populations (Lausanne Convention VI, 30 January 1923, Art. 2), Advisory Opinion No. 10, 21 February 1925, PC.I.J, Series B, No. 10, at 19 (where the Court noted that 'a State which has contracted valid international obligations is bound to make in its legislation such modifications as may be necessary to ensure the fulfilment of the Obligations undertaken ... contracting Parties are [thus] obliged to bring their legislation into harmony with the [ratified] Convention'; as to the application of Art. 27 of the Vienna Convention, see for example, the Bulacio case, judgment of 18 September 2003, Inter-Am. Ct. H. R.(Ser. C) No. 100, §118.
26. 1997 US Dist LEXIS, 20714, at *6-20 (S.D.Tex. 17 December 1997). For a thorough discussion, see G. Sluiter, 'To Cooperate or not to Cooperate? The Case of the Failed Transfer of Ntakirutimana to the Rwanda Tribunal', 11 Leiden Journal of International Law (1998) 383-395.
27. This decision was later reversed by the United States Court of Appeals for the Fifth Circuit, see G. Sluiter, 'The Surrender of Ntakirutimana Revisited', 13 Leiden Journal of International Law (2000) 459-466.
28. Article 86 ICCSt.
29. C. Kress, 'General Obligation to Cooperate', in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article (Baden Baden: Nomos Veriagsgeselischaft, 1999), 1053.
30. Article 89(1) ICCSt.
31. For a different observation, see D. Rinoldi and N. Parisi, 'International Co-operation and Judicial Assistance Between the International Criminal Court and States Parties', in F. Lattanzi, W.A. Schabas (eds), Essays on the Rome Statute of the International Criminal Court, vol. I (Ripa Fagnano Alto: Il Sirente, 1999), at 349 (noting that: 'in accordance with the laws ... means that the arrest procedure (for example the time and the use of handcuffs) are determined by the laws of the State. Once the arrest has been carried out, the state responsible for the custody becomes, to use the term adopted in the Statute, the custodial State and must promptly bring the arrested person before its competent judicial authorities....').
32. Article 88 ICCSt.
33. The phrase 'in accordance with the proper process' appeared for the first time in a proposal tabled during the 1996 meetings of the Preparatory Committee. The text reads: 'A person arrested shall be brought promptly before a judicial officer in the custodial State who shall determine, in accordance with the law of that State, that the person has been arrested in accordance with the proper process and that the person's rights have been respected'. See 1996 Preparatory Committee Report Vol. II, supra note 4, at 141.
34. A. Schlunck, 'Arrest Proceedings in the Custodial State, in O. Triffterer (ed.), supra note 16, at 768. The author relies on Art. 29(1) of the 1994 ILC Draft which does not even mention the intended meaning behind the words 'duly served', see 1994 ILC Draft, at 99. Art. 29(1) reads 'A person arrested shall be brought promptly before a judicial officer of the State where the arrest occurred. The judicial officer shall determine, in accordance with the procedures applicable in that State, that the warrant has been duly served and that the rights of the accused have been respected', ibid. However, the phrase in the English language means served 'in a proper manner' or 'suitably', which is almost close in meaning to the current words 'proper process'.
35. Implementation of the Rome Statute of the International Criminal Court Act 2002, §10(1)(b) [hereinafter South African Act].
36. International Criminal Court Act 2002, §23(2)(b) [hereinafter Australian Act]. Generally on the Act, see G. Boas, An Overview of Implementation by Australia of the Statute of the International Criminal Court', 2 Journal of International Criminal Justice (2004) 179-190.
37. See for example, Australian Act, §§ 127-131.
38. International Criminal Court Act 2001, §5(6)(a) [hereinafter British Act].
39. International Crimes and International Criminal Court Act 2000, § 43(3)(C) [hereinafter New Zealand Act].
40. Generally on the Act, see J. Hay, 'Implementing the ICC Statute in New Zealand, 2 Journal of International Criminal Justice (2004) 191-210.
41. Similar fears arose during the discussions on Article 29(1) of the 1994 ILC Draft. 'The Commission acknowledges that there is some risk in entrusting these powers to a State official (usually a magistrate or some similar person exercising similar functions under national law) rather than before an organ of the Court,' see 1994 ILC Draft, at 99. However, this view did not find its way into later discussions. During the discussions of the 1996 Preparatory Committee, a question was raised as to the role of 'national authorities, in particular the judiciary, in the execution of the Court's requests'. There was a general support 'that the statute should permit involvement of national courts in the application of national law where those requirements were considered fundamental, especially to protect the rights of the individuals, as well as to verify procedural legality, see 1996 Preparatory Committee Report Vol. I, at 67.
42. See for example, Egyptian Court of Cassation, Criminal Appeal No. 1762, Judicial Year 31, 10 April 1962 (upholding a decision of the public prosecution office to dismiss a case of unlawful arrest). It should be noted, however, that in Egypt a public prosecutor is granted the powers of an investigating judge (juge d'instruction) as in a civil law system. Therefore the first competent judicial authority within the meaning of Art. 59(2) of the Statute would be the public prosecutor since the term habeas corpus is not known to civil law systems. On the jurisprudence of human rights bodies on this issue, see for instance, Albert Wilson v. Philippines, HRCee, Communication No. 868/1999, 11 November 2003, UN Doc. CCPR/C/79/D/868/1999, §7.5 (where HRC found violation of Art. 9(3) of the Covenant on the ground that the author was arrested without a warrant 'and hence in violation of domestic law'); Castillo Páez case, Judgment of 3 November 1997, Inter-Am. Ct. HR., §§ 56-61 (where the Court found violation of Art. 7 of the American Convention on Human Rights on several bases including unlawful arrest of the accused and consequently a violation of the domestic law which required the release of the accused in accordance with Art. 7(6)).
43. This may prompt the Court to decline to exercise jurisdiction. Domestic courts follow two different approaches. Some courts exercise jurisdiction despite illegal rendition of the accused on the basis of the latin maxim male captus bene detentus. Authority on this may be found in The Attorney General ofthe Government of Israel v. Adolf Eichmann, Israel District Court of Jerusalem, 12 December 1961, 36 ILR, at 57-76, and the Judgment of Supreme Court of Israel, 29 May 1962, 36 ILR, at 304-308
44. United States v. Alva rez-Machain, United States Supreme Court, 504 US 655 (1992). Yet, some courts refuse to exercise jurisdiction in cases of illegal rendition, R. v. Hartley, New Zealand Court of Appeal [Report: [1978] 2N.Z.L.R.199], 5 August 1977, 77 ILR, at 335 (addressing the possibility under the Court's discretionary powers to discharge the accused); State v. Ebrahim, South Africa Supreme Court (Appellate Division), [Report: 1991 SA 553]. February 1991, 95 ILR at 417
45. United States r. Toscanino, United States Court of Appeals, 2d Circuit, 500 F 2d 267 (1974).
46. New Zealand Act, §43. Yet the person concerned has to raise these issues before the district judge in order to be considered, §43 (4).
47. Ibid., §46(4). However, the District Court might order the continuation of detention pending appeal before the High Court, see § 67.
48. Australian Act, §23(1)(b)(3). Such release does not prevent the person from being re-arrested under a 'further' warrant issued under section 20 or 21, see §23(3).
49. South African Act, §10(1)(b)(c).
50. Ibid., §10(2).
51. Ibid., §§ 5, 8(c). If the magistrate refused to commit the person, his decision is subject to appeal before the High Court with jurisdiction over the case, see §8(b).
52. If the magistrate refused to commit the person his decision is subject to appeal before the High Court with jurisdiction over the case.
53. British Act, §§ 6, 8.
54. However, occasionally neither the question of jurisdiction nor the one on admissibility may have been ruled upon even when proceedings reach Art. 59 phase. See for example, Arts 89(2) and 95 ICCSt.
55. See warrants of arrest for Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen, and Raska Lukwiya, ICC documents ICC-02/04-01/05-53, 13 October 2005, §38; ICC-02/04-01/05-54, 13 October 2005, §38; ICC-02/04-01/05-56, 13 October 2005, §28; ICC-02/04-01/05-57, 13 October 2005, §26; ICC-02/04-01/05-55, 13 October 2005, §26.
56. One should not confuse the question of non-compliance with the rights of the arrested person per Art. 59(2) with the question of non-compliance to cooperate with an ICC request per Arts. 87(7) and 112(2) (f), which provide the Court with the discretionary power to 'make a finding to that effect and refer the matter to the Assembly of States Parties'. Article 87(7) deals with a broader question, that is, a failure to cooperate that results in 'preventing the Court from exercising its functions and powers under the Statute'. As to non-compliance with the prerequisites of Art. 59(2), it is not that the state fails to comply with the Court's request to cooperate, rather that the state in an effort to comply with the request of surrender violates the person's rights before the domestic courts. Accordingly, Arts 87(7) and 112(2)(f) do not seem to be applicable in this context.
57. Judgment of 11 April 1949: ICJ Reports 1949, at 180. The ICTY applies a parallel standard known as the Tribunal's 'inherent power'. For a recent decision, see Decision to Deny the Accused Marijan Križćc's Preliminary Motion to Challenge Jurisdiction, Križić's (IT-95-14-R77.4), Trial Chamber, 21 December 2005, §§ 10-11.
58. Slobodan Milosevic v. The Netherlands, Judgment in the Interlocutory Injunction Proceedings, President of the Hague District Court, Case No. KG 01/975, 31 August 2001, reprinted in 48 Netherlands International Law Review (2001), at 361.
59. The ICC RPE do not provide similar rules to those found in the ICTY - i.e. Rules 72 and 73 which empower the Tribunal to hear preliminary motions per Rule 72 or motions per Rule 73.
60. The last part of Art. 59(4) ICCSt. reads:'... It shall not be open to the competent authority in the custodial State to consider whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1(a) and (b)'.
61. Rule 117 §3 ICC RPE reads: 'A challenge as to whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1(a) and (b), shall be made in writing to the Pre-Trial Chamber. The application shall set out the basis for the challenge. After having obtained the views of the Prosecutor, the Pre-Trial Chamber shall decide on the application without delay'
62. Article 61(1) ICCSt. stipulates: 'Upon the surrender of the person to the Court, or the person's appearance before the Court voluntarily or pursuant to a summons, the Pre-Trial Chamber shall satisfy itself that the person has been informed of the crimes which he or she is alleged to have committed, and of his or her rights under this Statute ...'.
63. Article 67(1) ICCSt. reads: 'In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees...'.
64. Rule 121(1) ICC RPE reads: A person subject to a warrant of arrest or a summons to appear under article 58 shall appear before the Pre-Trial Chamber, in the presence of the Prosecutor, promptly upon arriving at the Court. Subject to the provisions of articles 60 and 61, the person shall enjoy the rights set forth in article 67 ...'.
65. See Art. 19 (2)(a) ICCSt.; Rules 58 and 133 ICC RPE.
66. The Court monitors the application of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed 4 November 1950, entered into force 3 September 1953, 213 UNTS 221, ETS 5 (ECOHR).
67. The HRC monitors the application of the International Covenant on Civil and Political Rights (ICCPR), adopted 16 December 1966, entered into force 23 March 1976, GA Res. 2200A (XXI), UN Doc. A/6316 (1966),999UNTS 171.
68. The IACHR monitors the application of the American Convention on Human Rights (Pact of San José) (ACHR), signed 22 November 1969, entered into force 18 July 1978, OASTS 36, O.A.S. Off. Rec. OEA/Ser.L/V/11.23, doc.21, rev.6 (1979).
69. See ECOHR, Art. 1; ICCPR, Art. 2; ACHR, Art. 1.
70. First Optional Protocol to the International Covenant on Civil and Political Rights, Arts 1, 2; ECOHR, Art. 34; ACHR, Art. 44.
71. Slobodan Milošević v. The Netherlands, App. No. 77631/01, Eur. Ct. H.R., Decision as to the Admissibility of the Application No. 77631/01, 19 March 2002.
72. Mladen Naletilić v. Croatia, App. No. 51891/99, Eur. Ct. H.R., Decision as to the Admissibility of the Application No. 51891/99, 4 May 2000. The decision of surrender was even supported in the appeal to both the Supreme and Constitutional Courts.
73. In this respect, only states are bound by the obligations arising from the decisions of the different human rights bodies. See I. Brownlie, Principles of Public International Law (6th edn, Oxford: Oxford University Press, 2003), at 654, who notes that international organizations (including the UN) do not enjoy the same rights and duties of states.
74. Decision on the Defence Motion onjurisdiction, Tadić (IT-94-1-T), Trial Chamber, 10 August 1995, §§ 33-34; Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadić (IT-94-1-AR72), Appeals Chamber, 2 October 1995, §§ 42-47. In his separate opinion in Tadić, judge Sidhwa went a step further and questioned the extent to which the Tribunal may be bound by decisions of human rights bodies, in particular the ECHR. He said: '[W]e have not been shown any grounds that this Tribunal in the criminal jurisdiction is bound to follow such decisions. At best they have a persuasive value ... I would treat the following view of both the European Court of Human Rights and of its Commission with respect and as being a source for guidance', Separate Opinion of judge Sidhwa on the Defence Motion for Interlocutory Appeal on jurisdiction, 2 October 1995, §66.
75. Decision on Preliminary Motions, Milošević (IT-02-54), Trial Chamber, 8 November 2001, §§ 8-9.
76. Article 21 ICCSt. The Statutes of the Ad hoc Tribunals lack any provision to that effect.
77. See Decision on the Prosecutor's Position on the Decision of Pre-Trial Chamber II to Redact Factual Descriptions of Crimes from the Warrants of Arrest, Motion for Reconsideration and Motion for Clarification, Case No. ICC-02/04-01/05, 28 October 2005, §19.
78. Ibid. This means that the ICC should be guided by decisions arising from other international judicial bodies as a secondary source and only 'where appropriate'; see the first sentence in Art. 21(1)(b).
79. See Decision on the Applications for Participation in the Proceedings of VPRS1 VPRS2, VPRS3, VPRS4, VPRS5 and VPRS6, Case No. ICC-01104, 17 January 2006, §§ 51-53 (where Pre-Trial Chamber I referred to the jurisprudence of the ECHR and the IACHR).
80. On the application by the ad hoc Tribunals see Decision on Preliminary Motion, Milošević (IT-02-54), Trial Chamber, 8 November 2001, § 48
81. Decision, Barayagwiza (ICTR-97-19-AR72), Appeals Chamber, 3 November 1999, §§ 73-77
82. On the application before domestic courts, see R. v. Horseferry Road Magistrates' Court, Ex parte Bennett, Decision of the House of Lords (1994) 1 AC 42, (1993) 3 All ER 138, (1993) 3 WLR 90, 24 June 1993.
83. C. Kress, '"Self Referrals" and "Waivers of Complementarity"': Some Considerations in Law and Policy', 2 Journal of International Criminology Justice (2004) 944-948, at 946
84. M.M. El Zeidy, "The Ugandan Government Triggers the First Test of the Complementarity Principle: An Assessment of the First State's Party Referral to the ICC', 5 International Criminal Law Review (2005) 83-119. at 99 ff.
85. El Zeidy, ibid, at 107.
86. Article 59(1) and (2) ICCSt.
87. Article 17(1)(a) and (b) ICCSt.
88. El Zeidy, supra note 66, at 105, 107
89. Kress, supra note 66, at 944.
90. For a discussion see B. Swart, 'General Problems', in A. Cassese et al. (eds), The Rome Statute of the International Criminal Court: A Commentary Vol. II (Oxford: Oxford University Press, 2002), at 1589.
91. Article 59 ICCSt.
92. See for example, 1994 ILC Draft, at 99
93. 1996 Preparatory Committee Report, Vol I, at 52, 64-66.
94. As the Permanent Court of International Justice stated: '... the clauses of a special agreement by which a dispute is referred to the Court must, if it does not involve doing violence to their terms, be construed in a manner enabling the clauses themselves to have appropriate effects', Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, P.C.I.J., Series A, No. 22, at 13. Moreover, in the Garbi et al. case, the Inter-American Court of Human Rights stated that the object and purpose of the American Convention 'is the effective protection of human rights ... [it] must, therefore, be interpreted so as to give it its full meaning and to enable the system ... to attain its "appropriate effects", Fairén Garbi and Solís Corrales Case, Preliminary Objections, Judgment of 26 June 1987, Inter-Am.Ct.H.R.(Ser.C) No. 2, §35. Of paramount importance is the avoidance of any restrictions in interpretation that would render the system in question 'inoperative, see Constantine et al. v. Trinidad and Tobago Case, Preliminary Objections, Judgment of 1 September 2001, Inter-Am.Ct.H.R.(Ser. C) No. 82, §73
95. Benjamin et al. v. Trinidad and Tobago Case, Preliminary Objections, Judgment of 1 September 2001, Inter-Am. Ct.H.R.(Ser.C) No. 81, §73.
96. EC.B. v. Italy (Merits and just Satisfactioq), App. No. 12151/86, Judgment of 28 August 1991, §§ 30-33
97. Generally, Frommelt v. Liechtenstein (Merits and Just Satisfaction), App. No. 49158/99, Judgment of 24 June 2004, §33
98. Öcalan v. Turkey (Merits), App. No. 00046221/99, Judgment of 12 March 2003, §116.