Saturday, February 25, 2012

Opportunity costs

Editor's note: This column is adapted from the February 2012 edition of Louisville Bar Briefs.

Opportunity is knockingOpportunity is knocking. What will you pay to open the door?

In previous columns, I have given basic information about law school admissions. I have also shown prospective students how to evaluate law school debt as a crucial first step in determining their return on educational investment. Those columns have culminated in an article, "A Degree of Practical Wisdom: The Ratio of Educational Debt to Income as a Basic Measurement of Law School Graduates’ Economic Viability," that will soon appear in the William Mitchell Law Review. I now wish to push the conversation deeper into the economic subtleties of what students can realistically expect to pay for law school — and what they can realistically expect to gain in exchange.

Read the rest of this post . . . .At the risk of overestimating my own literary powers, I deliberately intended the title of this column, "Opportunity Costs," to convey multiple layers of meaning. As a noun phrase, opportunity costs refer to a basic principle in economics. To an economist, every action, every choice must be assessed according to what the consumer has elected to forgo. Today's legal profession reflects every bit of the strain that grips the broader economy. It almost certainly is undergoing deeper structural changes that will affect lawyers' earnings for years to come. In that light, every prospective law student bears the responsibility to mind the particulars of economics as the dismal science. Going to law school commits you to a three-year wait on full-time earnings. Those three years will not be spent developing skills, honing expertise, or cultivating connections in some other field. All educational debt is nondischargeable, and there are no refunds on tuition, fees, books, or supplies.

Bountiful harvestDo understand. All of us in legal education fervently hope for bountiful season after bountiful season of law school applicants. I simply want to emphasize that students' eventual experience, during school and after graduation, will depend deeply on their expectations before matriculation. If you are contemplating law school but will go only if you hit a certain prestige level, you probably should not apply. If you are applying solely to please someone else — a parent, a spouse, a faceless figure named "Bourgeois Society" whispering at your back — you emphatically should stop the application process and devote your energy instead to mustering the courage to say "no." If you can imagine something you truly would rather do than to be a lawyer, then by all means spend those thousand days chasing another dream. Disappointment is the nearest friend of unrealistic expectations. Misunderstanding the enterprise of legal education and the eventual practice of law will undermine your success. Conversely, arming yourself now with research and deep introspection, long before you get your first tuition bill, represents a down payment on satisfaction and an actual, quantifiable livelihood.

I now reach a second level at which I want this column's title to be understood. Approach the phrase opportunity costs as a complete sentence, with a one-word subject and a one-word, one-verb predicate. Let me repeat my opening paragraph: "Opportunity is knocking. What will you pay to open the door?" Law school as opportunity demands that you open the door. Most economists would describe legal education as an experience good. Its quality and its value to you as the consumer become fully apparent only after you commit. Indeed, those very experts on consumer behavior might well describe law school as a credence good. You can't tell whether going was worth the while till long after you've left, and perhaps not even then. Even after you decide to attend and have spent four, five, six semesters on doctrinal details and practical experiences in a clinic, an externship, and a public service placement, validation of return on investment awaits the first job offer. There is a deep temptation to treat legal education as a search good, as though the culmination of each student's best efforts to engage classmates and professors during school can be distilled into single-dimension scalar measures of an extended experience — all in advance of the first three years of a lifelong professional commitment.

Let me be clear. No. No third party, let alone one that has put no skin of its own in the game, can realistically evaluate each student's educational experience or the broader market's eventual reaction to each student's accomplishments during school. That is not how it works. Global capitalism teems with products whose price, quality, and value are immediately apparent and readily enable sophisticated purchasers to make rational decisions to buy, sell, hedge, or sit out. West Texas crude. Durum wheat. But not education. Nor, for that matter, legal services.

This brings me to the final set of subtleties that I hoped to convey by naming this column, "Opportunity Costs." Focus on that word, opportunity. I will make a few observations about how law school graduates make money. As a teacher of law who has always taken pride in his own knowledge of economics and taken pains to share that knowledge with students, I can't resist one teaching more lesson in economics. And as a producer of legal scholarship informed by economics, I want to set out my own agenda — I want to lay down an intellectual marker — for future work on this subject.

Black swansIn one of the chapters of The Black Swan: The Impact of the Highly Improbable, Nassim Nicholas Taleb recalls his own days at the Wharton School of Business and how one classmate urged him to pursue only those careers that were "scalable." So began the tale of how Taleb, one of the true geniuses of our time, threw his talents into trading securities as opposed to pursuing some craft whose payout hinged on his own efforts. Whereas a single bet on the capital markets — shorting collateralized mortgage obligations, going all in on European sovereign debt on the assumption that the European Central Bank and German politicians would never permit default — can move or destroy staggering amounts of wealth with no meaningful difference in effort, almost everyone else, even in an information-based economy, earns a paycheck based on some multiple of hours expended.

Again, I will mince no words. In the terms that Taleb has described, the overwhelming majority of livelihoods in law more closely resemble those of barbers, butchers, and bakers. Government attorneys, in-house counsel, and a very significant number of lawyers in highly leveraged, multiple-partner firms derive their compensation on a basis that lends itself to accurate calculation on an hourly basis. Lawyers working on any variant of the contingency fee model, far from achieving escape velocity from nonscalable work, bear the extra burden of assessing the likelihood of getting paid by a particular client for a particular case. Only the narrow tier of equity partners have a stream of income that remotely resembles those of Taleb's "scalable" professionals. This is no different from medicine. Most physicians belong in exactly the same category. Revenue depends on patients seen and treated. The overwhelming majority of cardiologists draw their pay from the number of hearts cured. A tiny, lucky fraction might win a product patent for a stent or a process patent for a revolutionary surgical procedure. But even in medical specialties, runaway profit on some sort of nonscalable business model is a spectacularly rare exception. Human optimism emboldens us to hope for outsized gains. Human wisdom counsels us to work for realistic goals.

More sophisticated economic analysis of the potential payout from legal education demands, at a minimum, a human capital asset pricing model akin to modern portfolio theory's basic tool for pricing companies and investments. For an introduction to modern portfolio theory through an application of its principles to a set of legal problems, I invite you to download "Modern Disaster Theory: Evaluating Disaster Law as a Portfolio of Legal Tools," which I will soon publish in the Emory International Law Review. The tradeoff between legal education's costs — from opportunity cost in the most traditional sense to the best available projections of educational debt service — and the economic gain from a law degree boils down, as does virtually every other question of professional training, to calculations based on probabilities, variances, and correlations. Like capital markets, though, truly accurate answers must also account for a host of unpredicted contingencies (what Taleb calls "Black Swans"), to say absolutely nothing of unruly emotional and behavioral factors that wreak havoc on the most quantitatively elegant economic models.

All of that, as economics textbooks and instructors like to say, is an exercise to be left for the reader. In this instance, for the writer as well. For now, I return to a very modest twist on my original question. The law school opportunity knocks. What are you, prospective student, willing to pay to open the door?

Thursday, February 16, 2012

The ICC Pre-Trial Chamber's Non-Cooperation Decision on Malawi

by Tour

December Pre-Trial Chamber I rendered its decision on the refusal of
Malawi to arrest Sudanese President al-Bashir when he visited the
country in October 2011 to attend a summit of the Common Market for
Eastern and Southern Africa. The Chamber found that Malawi: (i) failed
to comply with its obligations to consult with the Chamber by not
bringing the issue of Omar al-Bashir's immunity to the Chamber for its
determination and (ii) failed to cooperate with the Court by failing to
arrest and surrender Omar Al Bashir to the Court, thus preventing the
Court from excising its functions and powers under the Statute. As a
result, the Chamber referred Malawi to the Security Council through the
Secretary General of the United Nations and, to the Assembly of States
Parties to the Statute. (The Chamber initially asked the Registry to
refer the Decision but later issued a corrigendum requesting the
President of the Court to do so under Regulation 109(4) of the
Regulations of the Court.)

The 22-page decision itself
is important in a number of respects. First and foremost, it addresses
the effect of the immunity of heads of state (both sitting and former)
on the cooperation obligations of states parties (such as Malawi) under
the Rome Statute. Second, in its decision the Court for the first time
weighed in on the effect of the African Union’s various non-cooperation
decisions on the cooperation obligations on African states parties to
the Rome Statute. Although it did so in respect of al-Bashir, its
position on the question will likely have future implications for the
decisions in respect of the proceedings in Kenya. 

the Decision has taken on greater significance in light of developments
at the AU’s 18th Ordinary Summit, where the body not only criticized
the Decision but also asked the AU Commission "to consider seeking an
advisory opinion from the International Court of Justice regarding the
immunities of state officials under international law". If this should
this materialise (a big if), the Decision would prefigure the ICJ’s
opinion (to a greater or lesser extent, depending on its correctness).
More immediately, the next AU Summit is scheduled to take place in
Malawi in June. President al-Bashir will no doubt attend that meeting,
with the blessing of Malawi, putting Malawi in direct violation of the PTC, making the correctness of the Decision all the more

The immunity question

me begin by pinning my colours to the mast. When it comes to question
of immunity under the Rome Statute I support the view – taken by Gaeta
and others – that there is a clear distinction between the Court's
exercise of its jurisdiction (regulated, inter alia, by article 27(2))
and the cooperation of states in the arrest and surrender of individuals
under the Rome Statute (to which article 98(1) applies). In my opinion,
both the text of the Statute, as well as the context of the relevant
provisions, support such an interpretation. Moreover, while the issue of
requests for surrender of an accused and the exercise of jurisdiction
are easy to conflate in practice, the Court's exercise of jurisdiction
is conceptually distinct from states' fulfillment of their cooperation
obligations. (I would argue that the Court has accepted this much
through its somewhat clumsy two-stage approach to the issuance of an
arrest warrant). While some might balk at what they view as a
conservative, overly-technical interpretation of the Statute, separating
the Court's jurisdiction from the cooperation obligations of states is
in fact necessary when (a) the Court wishes to exercise jurisdiction in
circumstances when no cooperation obligations are engaged (such as
voluntary surrender - see Abu Garda - or surrender by a non-state actor
such as Nato); or (b) if the Security Council wishes to extend the
cooperation obligations beyond the treaty-based confines of the Statute
(which it hasn't yet done but it clearly can: see Security Council
Resolution 827 (1993) and SCR 995 (1994)).

the PTC nominally accepted this distinction, throughout its decision it
implicitly, and ultimately explicitly, elides the two, concluding that
“the unavailability of immunities with respect to prosecutions by
international courts applies to any act of cooperation by States which
forms an integral part of those prosecutions” (para. 44). In my opinion
this undermines the PTC’s entire immunity argument. As Dov Jacobs notes,
had the PTC taken this distinction seriously then would have only
considered article 98(1), and not article 27(2). As it happens, due to
its somewhat confused (and confusing) approach, the PTC ended up basing
its decision on the proper interpretation of article 98(1) anyway (as it
was on the question of the application of the immunity of officials of
states that are not party to the Statute – Sudan – that the PTC was
asked to address, not immunity generally).  However, even its article 98
argument relies in part on the elision of articles 27 and 98.

that as it may, even if one accepts the position adopted by the PTC(and
a number of academics) – that there is no meaningful distinction between
the Court’s exercise of its jurisdiction and the obligations on states
parties when it comes to immunity – one still faces the difficulty of
reconciling article 27(2) (which removes immunity in respect of the
former) with article 98 (which implies its continued relevance in
respect of the latter). Broadly speaking, there are two ways around the
‘problem’ of article 98 when it comes to arresting Heads of State like

  • The first, and predominant approach, is to interpret article 27(2) –
    which provides that “immunities or special procedural rules which may
    attach to the official capacity of a person...shall not bar the Court
    from exercising its jurisdiction over such a person” – as a waiver of
    immunity by states parties in respect of their officials (relying on the
    doctrine of effective construction): the article 27 waiver argument.
    This approach has been further developed to apply in situations of
    article 13(b) referrals by the Security Council, in which case
    non-states parties referred to the Court (such as Sudan) are deemed to
    be parties for the purposes of such proceedings and, therefore, the
    waiver operates in respect of their officials as well: the article 27 waiver 2.0 argument. (See Dapo Akande on this) 

  • The alternate route around article 98(1) is by reading down (or wishing
    away) the relevant ‘obligations under international law with respect to
    the State or diplomatic immunity of a person...of a third State’, thus
    making article 98(1) inapplicable. (See van der Vyver).

in reaching the conclusion that immunity is not a bar to either the
exercise of its jurisdiction or the cooperation of states parties under
the Rome Statute, the PTC went ahead and adopted both approaches.

The PTC began by endorsing the article 27 waiver argument insofar as states parties are concerned. Noting (at para. 18):

Chamber notes the Observations from the Republic of Malawi where they
say that ‘Sudan, of which His Excellency President Al Bashir is Head of
State, is not a party to the Rome Statute and, in the considered opinion
of the Malawi authorities. Article 27 of the Statute which, inter -
alia, waives the immunity of the Heads of State and Government, is not
applicable’. The remarks suggests that Malawi concedes, and the Chamber
agrees, that a waiver of immunity would obviously not be necessary with
respect to a third State which has ratified the Statute. Indeed,
acceptance of article 27(2) of the Statute, implies waiver of immunities
for the purposes of article 98(1) of the Statute with respect to
proceedings conducted by the Court.”

However, as Sudan is not a party to the Rome Statute the straightforward article 27 waiver argument did not solve the problem presented by al-Bashir. One might have expected the PTC to adopt the article 27 waiver 2.0 argument:
extending the application of the Rome Statute – and the waiver of
immunity under article 27(2) – to Sudan (and al-Bashir) by operation of
SCR 1593. The PTC did not do so however, rather it changed tack and
applied the alternate approach: it ‘read down’ article 98, and as a
result concluded that it did not apply. In sum, it argued that there is
no conflict between Malawi's obligations towards the Court and its
obligations under customary international law that would make article
98(1) applicable as “customary international law creates an exception to
Head of State immunity when international courts seek a Head of State's
arrest for the commission of international crimes”. (para. 43)

aside the correctness of the PTC’s conclusion on the status of  head of
state immunity under customary international law momentarily, to my
mind there are a number of problems with the approach adopted by the PTC
generally. The first is that it makes the its earlier endorsement of
the article 27 waiver argument superfluous: if customary
international law immunities do not apply to sitting or former heads of
states before international courts (such as the ICC) then there is
nothing for states parties to waive under article 27(2). This is messy
(and possibly contradictory – see below), but not fatal. The second,
more serious, problem with this reasoning is that is renders article
98(1) largely redundant. Notably, the Court does not limit the its
conclusion in any way – for example in terms of the nature of the Court
or the crime in question – rather it concludes that there is no
customary international law immunity applicable to any person tried by
any international court for any crime. As a result it renders article
98(1) - which only has application to the extent that there is some form
of immunity in play – a dead letter. The problem here is the doctrine
of effective construction, often (incorrectly in my view) put to the
service of the article 27 waiver argument. This doctrine – based on the maxim Ut Res Magis Valeat Quam Perea
(“That the thing may rather have effect than be destroyed”) requires
courts to ‘avoid interpretations which would leave any part of the
provision to be interpreted without effect’ (Maxwell on Statutory
Interpretation (1969), 45). When it comes to the Court’s construction of
article 98 there can be no doubt that this doctrine presents a
formidable obstacle.

The problems do not end there.
Even if one presumes the PTCs approach is correct, that that article 98
can be read in this manner, it still has to demonstrate that customary
international law does in fact remove immunity for such crimes before
international courts. Here too its arguments are far from watertight.

Broadly speaking, the PTC bases its customary international law (CIL) argument on the following four 'indicators':

  • First, “immunity for Heads of State before international courts has
    been rejected time and time again dating all the way back to World War
    1” (para. 38);

  • Second, “there has been an increase in Head of State prosecutions by international courts in the last decade” (para. 39);

  • Third, “the [Rome] Statute now has reached 120 States Parties in its
    9 plus years of existence, all of whom have accepted having any
    immunity they had under international law stripped from their top
    official” by virtue of the article 27(2) waiver argument (para. 40);

  • Fourth, these 120 states “have ratified this Statute and/or
    entrusted this Court with exercising "its jurisdiction over persons for
    the most serious crimes of international concern" (para. 41).

Each one of these
are problematic in some respect. As a starting point, I have a problem
with the elements of the PTC’s argument that rely in one way or another
on the Rome Statute. To my mind, by relying on the Rome Statute as
evidence of CIL, the PTC’s argument is circular: article 98 doesn’t
apply because CIL says so, but CIL says so (partly) because article 98
does not apply. Put differently, the Rome Statute can only be advanced
in support of a CIL removing immunity to the extent that it itself
removes such immunity. But it can only be said to remove such immunity
if article 98 does not apply! As a result, the ratification of the Rome
Statute by states can only be evidence of state practice of such a
rule if those states understood the Rome Statute as removing immunity.
(Notably, the fact that 33 African states ratified the Rome Statute, and
subsequently (through the AU) took the position that immunity does
apply is significant, but does not factor in to the Chamber’s decision.)
In addition, article 27 is in and of itself a problematic indicator of a
CIL rule removing immunity in such instances, as it presumes there is
something to waive.

The PTC’s other (non-Rome-Statute-based) arguments are also problematic.

in concluding that “immunity for Heads of State before international
courts has been rejected time and time again dating all the way back to
World War 1” the PTC cites a long list of supporting evidence. However,
most of the examples cited by the PTC relate to the criminal
responsibility of heads of state, not immunity as a procedural bar to
their prosecution (viz. Statute of the IMT, Statute of the Tokyo
Tribunal, UN Principles, Code of Crimes, ICTY Statute, ICTR Statute and
SCSL Statute). In fact, the only two references that address immunity
are the 1919 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties and the ICJ’s Arrest Warrant decision.

While the 1919 Commission
did imply that immunity did not apply before international courts, and
the resultant article 227 of the Treaty of Versailles contemplated the
trial of former German Emperor William II for “a supreme offence against
international morality and the sanctity of treaties”. Article 227 also
noted that “[t]he Allied and Associated Powers will address a request to
the Government of the Netherlands for the surrender to them of the
ex-Emperor in order that he may be put on trial”. Famously, the request
was ever acceded to by the Netherlands. As such, the Court’s reference
to the Commission’s Report alone is insufficient at best, and at worst
misleading. What is more, it is worth noting that ex-Emperor was no
longer Head of State at the time of the Commission’s report.

Admittedly, in relying on the ICJ’s Arrest Warrant
decision the Chamber is on safer ground, particularly since the Court
specifically refers to article 27(2) of the Rome Statute. However, this
reference was made by the Court in passing, and I would argue fails to
take seriously the difference between jurisdiction under article 27(2),
and state cooperation under article 98 – the latter of which was
not considered by the ICJ -  as well as the difference between 'international courts' (see below). Be that it may, even if the PTC's reliance on the Arrest Warrant is well-placed, its reliance on the other sources is not.

in reaching this conclusion the PTC chose not to distinguish between
different international courts, rather it chose to address the question
of immunity before such courts en bloc, glossing over the
difference between them. (Phrasing the question thus: “whether, under
international law, either former or sitting heads of States enjoy
immunity in respect of proceedings before international courts” (para.
22)). On the PTC’s version, the removal of such immunity is automatic
given the supranational nature of these courts; which precludes the
rationale for granting such immunity in the first place from applying to
them. In this regard it states (para. 34):

argued by Antonio Cassese, the rationale for foreign state officials
being entitled to raise personal immunity before national courts is that
otherwise national authorities might use prosecutions to unduly  impede
or limit a foreign state's ability to engage in international action.
Cassese emphasised that this danger does not arise with international
courts and tribunals, which are ‘totally independent of states and
subject to strict rules of impartiality’

might point out that the ‘danger’ might not arise directly in the case
of international courts, but might well do so indirectly in respect of
national authorities cooperating with these courts. In any event, with
respect, while this line of reasoning certainly persuasive insofar as
why immunities ought not apply, I don’t think it suffices to
remove them axiomatically. Rather, to my mind the question of whether
immunity applies before an international court (and by extension in
respect of cooperation obligations) depends on (i) the Statute of that
Court, and (ii) “the nature of the tribunal: how it was established and
whether the state of the official sought to be tried is bound by the
instrument establishing the tribunal”. [Akande, ‘International Law
Immunities and the International Criminal Court’, 98(3) AJIL (2004),
407-433, at 417.]

If this is the case – that the
nature of the international court is relevant – then the purported
customary international law rule removing such immunity before
international courts might be similarly conditioned. That is to say, the
differences between international courts might result in immunity
being removed in the case of one and not another. In this regard, the
crucial distinction between the ICC and all previous international
tribunals in that it was established by a universal, multilateral treaty
(i.e. the consent of states) and not by a Security Council Resolution
(ICTY, ICTR) or by a Special Agreement between a state and the UN, or an
agreement amongst victorious powers or a peace treaty.

There is an argument to be made that the difference between the ICC and the ad hoc
tribunals is nonexistent in the case of article 13(b) referrals by the
Security Council (such as Sudan). This line of reasoning underpins the article 27 waiver 2.0 argument,
and may have informed the PTC's decision to note “[i]n this particular
case, the Chamber notes that it is exercising jurisdiction following a
referral by the United Nations Security Council made under Chapter VII
of the United Nations Charter, in accordance with article 13(b) of the
Statute”. However, without further elaboration we do not know whether
the PTC was relying on this argument. In any event, this argument is
distinct from the argument actually made by the PTC: that there is not
CIL immunity before any international criminal court whatsoever and
therefore article 98 has no application. The simple point is that the
PTC’s discussion of the practice of other international tribunals, as
support for the removal of immunity before international courts under
customary international law, is at the very least incomplete without
some consideration of the differences between (and within) such courts.

PTC’s argument that “there has been an increase in Head of State
prosecutions by international courts in the last decade” is particularly
poor. Not only does it fail to distinguish between the different
international courts which removed such immunities (which not only
include SC-established  courts but also the ‘hybrid’ SCSL), but it
conflates the ‘initiation of proceedings’ with the removal of immunities.
Moreover, all the cases it cites are – in one way or another –
distinguishable from that of al-Bashir. Firstly, Messrs Taylor and
Gbagbo were former heads of state (here the Court appears to be
conflating functional and personal immunity, again). Moreover, Gbagbo’s putative immunity was arguably waived by the Cote d’Ivoire
either (i) when it referred the situation to the Court, or (ii) when it
surrendered Gbagbo to the Court. While the position of Ghaddafi more
closely resembled that of al-Bashir, that situation never reached the
stage of proceedings at which immunity might have been raised. And if it
had, arguably the ‘new’ Libyan government would have been happy to
waive his immunity.

In addition to these, the Court
adopts a number of other, poorly explained arguments – perhaps in the
hope of achieving what Dov Jacobs labels ‘the cheerleader effect’ – but
which smack a little of desperation at times. For example:

  • The PTC notes: “It is facially inconsistent for Malawi to entrust
    the Court with this mandate and then refuse to surrender a Head of State
    prosecuted for orchestrating genocide, war crimes and crimes against
    humanity. To interpret article 98(1) in such a way so as to justify not
    surrendering Omar Al Bashir on immunity grounds would disable the Court
    and international criminal justice in ways completely contrary to the
    purpose of the Statute Malawi has ratified.” (para. 40) This absolute
    purposive approach is potentially limitless. Any impediment to the
    Court’s pursuit of its mandate would fall on this argument.

  • It argues that “even some States which have not joined the Court
    have twice allowed for situations to be referred to the Court by United
    Nations Security Council Resolutions, undoubtedly in the knowledge that
    these referrals might involve prosecution of Heads of State who might
    ordinarily have immunity from domestic prosecution.” (para. 40) This is
    particularly poor, for obvious reasons.

  • It cites the ‘vertical’ nature of its cooperation regime (as opposed
    to “the inter-state cooperation regime which exists between sovereign
    States”). With respect, the PTC is completely confused at this point. It
    is conflating its ability to compel cooperation from states
    parties under the Rome Statute – itself a controversial subject – with
    the obligations states have under customary international law to
    afford immunity to officials of third states. What is more, even if the
    Court’s coercive power over states can be equated with their obligations
    of immunity (to the extent that it can compel a state to violate such
    obligations apparently), the PTC’s assertion completely avoids the
    question as article 98 explicitly limits the Court’s power in this
    regard by noting that “The Court shall not...”. 

  • Equally concerning is the Court’s invocation of the jus puniendi
    of the international community as mandating it to act “when States have
    failed to prosecute those responsible for the crimes within its
    jurisdiction” (paras. 45-46).

The AU non-cooperation decisions

it is not likely to attract the same attention as the PTC's handling of
the immunity question, its findings on the (ir)relevance of the
Malawi’s obligations under the AU’s non-cooperation decisions are
equally important. 

First, some background. In July
2008, in response to the Prosecutor’s request for an arrest warrant for
al-Bashir, the AU’s Peace and Security Council (PSC) requested that the
ICC’s proceedings in respect of Bashir be suspended under article 16 of
the Rome Statute. A year later the AU Assembly adopted a decision in
Sirte – driven by Libyan leader at the time, Muammar Gaddafi – calling
on its members to defy the international arrest warrant issued by the
ICC for Bashir by refusing to cooperate with the Court pursuant to
article 98 of the Statute. Meeting in July 2010 in Kampala, the AU
Assembly reiterated its Sirte decision, but dropped the reference to
article 98 and – at the insistence of certain ICC states parties –
inserted a paragraph requesting member states to “balance, where
applicable, their obligations to the AU with their obligations to the
ICC” (the ‘balancing paragraph’). Although the Assembly did not repeat
its decision once again in its July 2011 meeting in Malambo, alluded to
it (and its binding nature) by “[reaffirming] that by receiving
President Bashir, the Republic of Chad, Kenya, and Djibouti were
discharging their obligations under Article 23 of the Constitutive Act
of the African Union and Article 98 of the Rome Statute as well as
acting in pursuit of peace and stability in their respective regions”.
The decision was reportedly repeated most recently at the 18th AU Summit
last month.

Notably, Malawi did not in fact
raise the non-cooperation decisions as a basis for its refusal to
arrest al-Bashir (nor could it have, for reasons discussed below). It
merely “[informed] the esteemed Registry of the Court of the ICC that
Malawi, as a member of the African Union, fully aligns itself with the
position adopted by the African Union with respect to the indictment of
the sitting Heads of State and Government of countries that are not
parties to the Rome Statute”. This was merely a restatement of the
position it adopted itself on the issue. Rather, it was the PTC that
raised the non-cooperation decisions of the AU (at para. 15):

Chamber notes… the various African Union resolutions requiring its
members not to cooperate with the Court regarding the warrant of arrest
against Omar Al Bashir. The sole legal justification the African Union
gives for why its legal position is compatible with the Statute is by
reference to "the provisions of Article 98 of the Rome Statute of the
ICC relating to immunities". The Chamber considers the specific
provision referenced by the African Union to be article 98(1) of the
Statute. Therefore, the Chamber's analysis, contained below, as to how
article 98(1) of the Statute relates to the present circumstances will
also address the legal viability of the African Union position relied
upon by the Republic of Malawi.”

a preliminary point, the idea that the ICC has the power to determine
the obligations of states under the AU is itself problematic. At the
outset of the case, the PTC underlined its “sole decide
whether immunities are applicable in a particular case”. (para. 11) The
Court relied on article 119(1) [which provides that "[A]ny dispute
concerning the judicial functions of the Court shall be settled by the
decision of the Court"] and rule 195(1). Notably, the PTC did not limit
its authority to the determination of its own jurisdiction (competence de la competence),
but rather interpreted its authority to include the effect of
immunities on states parties’ obligations under the Rome Statute (the
cooperation obligations of states parties), and their rights and
obligations under customary international law. This is in itself an
ambitious and far-reaching interpretation of its power. However, by
considering and dismissing the effect of the AU obligations in the way
that it did, the Court expanded its authority to includes the rights and
obligations of Malawi under a wholly separate legal instrument: the AU
Constitutive Act.

the heart of the Court’s era is a misunderstanding of the legal nature
of AU decisions. In dismissing the relevance of the AU non-cooperation
decisions the Court relies on the (incorrect) supposition that the AU’s
decisions, in order to be valid, must comply with the Rome Statute. In
this regard the Court notes (at para 15):

sole legal justification the African Union gives for why its legal
position is compatible with the Statute is by reference to "the
provisions of Article 98 of the Rome Statute of the ICC relating to

on this, the Court assumes that the AU position can be dealt with by
showing it is not legally compliant with the Rome Statute, in the same
way that Malawi arguments are not. However, the AU is not party to the
Rome Statute, and it itself is under no obligations to comply with the
Rome Statute. As an international organisation, the AU is perfectly
capable of creating binding legal obligations on its member states in
accordance with its empowering statute. Those
obligations are distinct from the obligations its member states might
have under another legal instrument, in this case the Rome Statute.

Court’s position is understandable. The AU itself has, albeit not
consistently, referred to article 98 in its non-cooperation decisions.
However, to my mind at least, the binding nature of decisions of the AU are not
conditional on the correctness of that body's interpretation of article 98.
Nor is the AU bound by the PTC’s interpretation thereof. The AU clearly
views article 98 differently, and apparently is willing to go all the
way to the ICJ to prove its interpretation is correct. However,
regardless of the political basis or justification for the AU
noncooperation decisions, their legal force under international law lies
in the AU’s Constitutive Act. Therefore,
the legally relevant questions are (i) whether the AU assembly has the
power under its Constitutive Act to require members not to cooperate,
and (ii) whether the decisions were intended to be binding and what they
intended to enjoin states to do.

In our position paper on the subject,
Max and I have argued that the answer to (i) is yes, while (ii) is more
complex. We suggest that states wishing to balancing the possibly
competing obligations might – using the doctrine of effective
construction – read down the binding nature of the AU’s non-cooperation
decisions in light of the ‘balancing paragraph’ contained therein.  That
argument is made more difficult in light of the omission of the
‘balancing paragraph’ from the most recent AU decisions, and the
inclusion of the statement that “by receiving President Bashir, the
Republic of Malawi, like Djibouti, Chad and Kenya before her, were
implementing various AU Assembly Decisions on non-cooperation with the
ICC on the arrest and surrender of President Omar Hassan Al Bashir of
The Sudan”. Notably, in the most recent decision the Court not only
cites article 98 of the Rome Statute but also article 23(2) of its
Constitutive Act, which states:

Member State that fails to comply with the decisions and policies of
the Union may be subjected to other sanctions, such as the denial of
transport and communications links with other Member States, and other
measures of a political and economic nature to be determined by the

if (ii) is satisfied – i.e. the non-cooperation decisions were intended
to be binding on member states and require them not to cooperate without exception – Malawi is under competing obligations under the AU and Rome Statute.

this is the case, the question arises as to whether the competing
obligations on Malawi could be resolved by reference to hierarchy. To my
mind, the only two vehicles for doing so would be the resort to jus cogens
or to article 103 of the UN Charter. For reasons discussed fully in the
position paper, I do not think either one applies in this instance. As
such, Malawi is under competing, and legally ‘equal’, obligations in
respect of al-Bashir and must elect which one to follow, and suffer the
wrath of disobeying the other.

Notably, the PTC seems
to imply that there is a hierarchy that governs the relationship between
obligations under the Rome Statute and Malawi’s obligations vis-à-vis
the AU. Not only does it presume that AU decisions must be ‘compatible’
with the Rome Statute, but later in the Decision it notes: “Malawi,
and by extension the African Union, are not entitled to rely on
article 98(1) of the Statute to justify refusing to comply with the
Cooperation Requests” (para. 37). One reading of this statement is that
the AU non-cooperation decision’s legal force is limited by the
obligations placed on Malawi under the Rome Statute, i.e. that the
Malawi’s ability to create obligations under the AU Statute are limited
by its obligations under the Rome Statute. Here the PTC’s assertion that
it is enforcing the jus puniendi of the ‘international
community’ takes on greater emphasis. This raises interesting question
regarding the PTC's own conception of its role within the international
legal order.

In this regard, it is interesting to note the
difference between the PTC’s formulation of its own power, and its
formulation of that of the African Union. Both are international
organisations, established by treaties based on the consent of states.
The Rome Statute has been ratified by two-thirds of the world’s states
(although as Bill Schabas points out, its member states do not represent
as numerically significant a portion of the world’s people), while the
African Union has achieved universal ratification within Africa.

Ultimately, all
of this is irrelevant to the PTC decision as I don’t think that it
should have considered the AU
noncooperation decisions and the resultant obligations on member states
in any detail. What the PTC could and should have said is that Malawi’s
obligations under the AU Act are irrelevant for the purposes of
determining its obligations under the Rome Statute to cooperate and
whether it had violated those obligations by failing to arrest

Concluding remarks

noted above, the importance of getting the immunity question right
cannot be overstated.  It implicates not just the first trial of a head
of state by the ICC, but the relationship between African states and the
ICC more broadly. Unfortunately, while I appreciate the ethical appeal
of the PTC's conclusion,  I think the approach is has taken and its
reasoning leave a lot to be desired. Perhaps its somewhat one-sided
consideration of the arguments available in respect of this issue is a
product of the nature of the non-cooperation proceedings.  Nevertheless,
I think the Court should have done better in making out its case for
the irrelevance of al-Bashir's immunity for the purposes of Malawi's
cooperation obligations. Certainly, there are better arguments to be
made in this conclusion (I think the article 27 waiver 2.0 argument would
have been more compelling, and less expansive). Moving ahead, I think
it is these arguments that should inform the debate on this issue,
whether it goes to the ICJ or not, as with respect I think the PTC's
decision has done little to move the debate forward. As far as the AU
non-cooperation decision are concerned, I think the PTC should have been
more conservative in its approach to their relevance as well, if it was
to consider them at all.


Thursday, February 2, 2012

Updated: Africa's ICC gripes heading to the ICJ?

by Tour

After the African Union’s 18 Summit of Heads of State and Government – its first in its ‘magnificent', new Headquarters (courtesy of China) – things remain more or less the same as far as the AU/ICC standoff is concerned, with one notable exception.

The meeting was overshadowed by the failed attempts to elect a Chairperson for the AU Commission, with neither the incumbent Jean Ping, nor the challenger South African Nkosazana Dlamini-Zuma, able to secure the two-thirds majority necessary under the AU’s Constitutive Act, notwithstanding four ballots (the last of which Ping faced unopposed). In the end the Assembly appointed a committee to chart a way forward before the next meeting in June 2012, in the meantime Mr Ping remains in office. The failure to elect Dlamini-Zuma was disappointing. Not only is she a capable candidate with the proven track record, but Mr Ping has been one of the most outspoken critics of the ICC. Although this failure had little to do with the ICC, and everything to do with ideological, linguistic and political divisions on the continent.

Those who were hoping that the ICC might get a smoother ride at the AU in a post-Gaddafi era will be disappointed. Reports suggest that, for the most part, the AU's position on the ICC remains unchanged, with the body repeating its request that the Security Council defer the ICC proceedings in Sudan and Kenya, reiterating its non-cooperation decision in respect of al-Bashir.

There was one important innovation in the AU's ICC position: a request to the AU Commission "to consider seeking an advisory opinion
from the International Court of Justice regarding the immunities of
state officials under international law".

It’s not clear what route African states envisage taking in this regard. The AU Commission itself of course cannot approach the ICJ for an advisory opinion. The General Assembly would be able. The Security Council would arguably be a more appropriate avenue – by virtue of the role it plays in international criminal justice generally, and under the Rome Statute in particular. The question is whether AU could convince the Security Council members to play ball. This seems unlikely, not least of all because Western Powers, including permanent members and ICC states the UK and France, are most likely content with the Pre-Trial Chamber’s position on the subject. What is clear is that the fact that the AU has tasked its Commission with taking this forward
means that the position of Chairperson of the Commission is all the more important for ICC supporters.

As an alternative, the AU might consider using the contentious proceedings approach. For example, Sudan could bring a case against an ICC state party – in particular those countries subject to PTC decisions such as Kenya and Malawi. Sudan has expressed some doubt regarding this approach for fear that it might not get the response it wants from the Court and would be bound by it.

In addition, there is a third option (of sorts): article 119 of the Rome Statute. You will recall that African Ministers of Justice have in the past recommended that the issue of the relationship between articles 27 and 98 be referred to the Assembly of States Parties (ASP) of the ICC in terms of article 119 of the Rome Statute. (See ‘Ministerial Meeting of African States Parties to the Rome Statute of the ICC’ 8 - 9 June 2009 Addis Ababa, MinICC/Legal.) Article 119, which relates to ‘general disagreements’, states that “disputes that do not pertain to judicial functions – that arise between two or more state parties – and relate to the interpretation or application of the Statute”, shall be referred to the ASP who can: (i) seek to settle the dispute itself or; (ii) make recommendations on further means of dispute settlement, notably including referral to the International Court of Justice in conformity with the Statute of that Court.

A number of questions arise regarding this avenue. First and foremost is the question of whether this issue of state cooperation in the arrest of al-Bashir relates to ‘judicial functions’ of the Court or would qualify as a dispute (i) not pertaining to judicial functions, (ii) arising between two or more state parties and (iii) concerning the interpretation or application of the Statute. How this question is answered might well depend on position on takes on the article 27/98 relationship. More specifically, those who favour the article 27 waiver argument would likely see article 98 disputes as concerning the judicial function of the Court. On the hand, those who maintain a strict separation between the exercise of jurisdiction by the Court and cooperation obligations on states parties – such as Gaeta and a few others (including myself) – might consider such a dispute as a non-judicial one, governed by article 119(2) of the Rome Statute. African states seems to think article 119(2) is the appropriate mechanism for resolving this dispute, although unfortunately that will make little difference to most observers. Who decides what is ‘judicial’ and what is ‘other’ is not clear – and quite circular – but if it goes to the ASP an unpleasant north-south divide might emerge. What is more, even if it is determined that article 119(2) – and the ICJ – is the appropriate route, questions remain regarding how this will play out. Chiefly, which two states will be the parties to the dispute.

The route chosen by African states would influence the subject matter of the dispute to be resolved by the Court. If an advisory opinion is sought it could address a broad range of legal issues such as (i) immunity before international courts under international law (although this was addressed obiter in the Arrest Warrant case, it might be further clarified), (ii) immunity under the Rome Statute, both generally and in respect of cooperation obligations on states in particular, and (iii) the effect (if any) of Security Council resolutions referring matters to the Court on (i) and (ii). If African states go the contentious proceedings route then a similarly wide range of issues would be implicated. However, should the article 119(2) approach be taken then the Rome Statute would seemingly require the question posed to the Court to be more narrowly tailored to the question of immunities under the Rome Statute as a dispute “concerning the interpretation or application of the Statute”.

The upshot of the above difficulties (and many more no doubt) mean that there is long way to go before the AU’s concerns regarding the ICC reach the ICJ, if ever. However, I think the resort to the ICJ should be welcomed (and encouraged) as a postive step towards a legal solution to a problem with immense political significance. In fact, I would argue that the AU – and African states – have not been given enough credit for their tendency to address their gripes about the ICC (and international justice more generally) within an (international) legal framework, as opposed to adopted more blunt, political approaches. This is testament to both the relevance of international law, and the stock that African states place in its ability to resolve matters of international concern in a fair and predictable manner. This faith remains, notwithstanding the unfortunate attempts of powerful states to manipulate this system and its norms for their own less laudable ends.

UPDATE 2: See Julian Ku's discussion on this topic (and comments) at Opinio Juris.

UPDATE 3: Dapo Akande's post on EJILTalk! is a must-read.