April 17, 2019
The last two weeks saw some important developments in the news regarding the International Criminal Court (ICC).
On 11 April 2019, Sudanese President Omar Hassan Ahmad Al-Bashir was ousted from his position by the Sudanese military. Only three days earlier, on 8 April 2019, the Appeals Chamber released a scheduling order for delivery of judgment in the Jordan Referral re. the Al-Bashir Appeal to deliver its appeal judgment on 6 May 2019 at 9:30 a.m. The decision would have been the long-awaited one by the Appeals Chamber of the ICC on the immunity of the sitting Head of State of a Non-State Party vis-à-vis a State Party of the ICC, involving the interpretational problem of Articles 27 and 98. Arguably, it is now uncertain whether the Appeals Chamber can decide on the merits of the matter after the ouster of Al-Bashir.
Another news item related to the ICC is the withdrawal of Malaysia from ratification of the Rome Statute by reason of political confusion, though Malaysia had deposited the instrument of accession to the Rome Statute on 4 March 2019. As the Statute will enter into force for Malaysia on 1 June 2019, Malaysia wants to withdraw ratification by June.
Lastly, on 12 April 2019, the Pre-Trial Chamber II of the ICC issued a decision on the authorization of an investigation into the situation in Afghanistan and was unanimous that an inquiry at this stage would not serve the interests of justice and, accordingly, rejecting the request. This is the first case in which the Pre-Trial Chamber substantially exercised judicial review power over the existence of “interests of justice,” finding that opening an investigation would unlikely be successful because of the unavailability of witnesses and suspects given a lapse of time and non-cooperation by relevant State Parties and Non-State Parties of the Rome Statute. Resource constraints also made the Pre-Trial Chamber focus on authorizing a successful investigation by the Office of Prosecutor. The decision was issued one month after the announcement of the Secretary of State of the United States regarding visa constraints on individuals directly responsible for any ICC investigation of US personnel. President Donald Trump welcomed the decision. While the ICC faces budgetary constraints and pressure over efficiency and effectiveness from the States Parties of the Rome Statute, what remains controversial is the appropriateness of the Pre-Trial Chamber to limit and intervene prosecutorial discretion on the basis of resource constraints. The decision requires further legal and political analysis.
© Hitomi Takemura