Gbagbo and Blé Goudé Acquittal: The ICC’s Standard of Review in “No Case to Answer” Applications

By: Adam DiSimine, Junior Research Associate, PILPG-NL

On March 31, 2021, the Appeals Chamber of the International Criminal Court (ICC) upheld the acquittal of Laurent Gbagbo and Charles Blé Goudé, finalizing their release from custody.  Mr. Gbagbo and Mr. Blé Goudé had previously been acquitted by Trial Chamber I of the ICC for crimes against humanity allegedly committed in Côte d'Ivoire in 2010 and 2011.  The Prosecutor had appealed the Trial Chamber’s decision on two grounds: (i) a failure to meet statutory requirements concerning the delivery of verdict and reasons and (ii) the standard of proof used when assessing evidence in “no case to answer” applications.  This blog post will take a close look at the second ground of appeal and examine the Appeals Chamber’s ruling on the appropriate standard of review when the ICC is deciding “no case to answer” applications.  It will begin with a brief look at the ICC’s prior treatment before examining both the majority opinion and the dissenting opinion of Judge Luz del Carmen Ibáñez Carranza in the Gbagbo and Blé Goudé appeal.

Prior Standards of Review

A “no case to answer” application allows an accused to request acquittal after the Prosecution has presented its case on the basis of insufficient evidence.  In the past, the ICC has been criticized for an inconsistent approach throughout its case law.  Part of the reason for this is that the Rome Statute of the International Criminal Court (Rome Statute) does not provide for an explicit standard of review in “no case to answer” applications.  As a result, the judges of the ICC are left to their own discretion when considering applications.  In the Ruto case, the Trial Chamber established that the standard of review only requires a determination of whether the court “could” convict an accused.  The Trial Chamber emphasized “could” and affirmed that the standard to be applied was not the same as that for conviction.  Conversely, some scholars have argued that by citing jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the ICC also endorsed a standard of proof beyond a reasonable doubt.  Later, in the Gbagbo and Blé Goudé case, the Trial Chamber established that the standard of review would require the Prosecution to meet the requirements for conviction, as set out in Article 66 of the Rome Statute, requiring proof of guilt beyond reasonable doubt.   As a result of this seeming inconsistency, the ruling by the Appeals Chamber is a welcome clarification.

The Majority Opinion

In their lengthy decision on the appeal of the “no case to answer” decision, the Appeals Chamber affirmed the standard of review established by the Trial Chamber in the Gbagbo and Blé Goudé case.  The Appeals Chamber noted that the applicable test found in ICTY and national jurisprudence requires acquittal “where the evidence thus far presented is insufficient in law to sustain a conviction on one or more of the charges.”  The Appeals Chamber went on to note that the proper application of this test makes it “wholly appropriate and correct to articulate the standard of proof at the level of proof beyond reasonable doubt and nothing less.”  As a result, the Appeals Chamber cemented the higher standard of beyond reasonable doubt, which is necessary for conviction.  As noted by the Appeals Chamber, this standard is consistent with the tests of several national jurisdictions.  If the evidence presented by the Prosecution at the end of its case would not be sufficient to convict the accused, then a Trial Chamber may grant a “no case to answer” application and acquit the accused.  The decision of the Appeals Chamber was well reasoned and based on an extensive review of prior practices of other courts.  It opined not only on the applicable test to be applied but also on the standard for assessing the credibility and reliability of evidence, providing practical guidance to future judges. 

The Dissenting Opinion

The dissenting opinion of Judge Luz del Carmen Ibáñez Carranza provides novel ideas on this topic.  Most importantly, Judge Ibáñez Carranza rejects the appropriateness of “no case to answer” applications in their entirety.  In her opinion, the use of a “no case to answer” procedure is not established in the Rome Statute, “has no applicable rules of procedure or evidence [and] has completely disrupted the balance of the Rome Statute System” in the Gbagbo and Blé Goudé case.   Judge Ibáñez Carranza casts the Rome Statute System as a sui generis legal system and asserts the existence of “no case to answer” applications contravenes principles of fairness and due process.  A delicate balance of interests was carefully crafted by the States Parties and this case has allowed judges to disrupt that balance by developing a mechanism not envisioned by the Rome Statute System.  Her dissenting opinion demonstrates the ongoing debate and uncertainty within the ICC itself on the treatment of “no case to answer” applications.  It may also serve as a nudge to States Parties to clarify the appropriateness of “no case to answer” applications before the ICC. 

Conclusion

Ultimately, the decision of the Appeals Chamber, while not unanimous, will provide future Trial Chambers with guidance as they entertain “no case to answer” applications from accused persons who believe the Prosecutor has not presented sufficient evidence.  The decision of the Appeals Chamber in the Gbagbo and Blé Goudé case has affirmed the high standard the Prosecution must meet to successfully present a “no case to answer” application by the defense.  This is the most recent in a string of ICC decisions on this subject and provides a welcome degree of predictability in an uncertain area of international criminal law.

The U.K. Overseas Operations Bill

By: Katherine Grzadkowska, JUNIOR RESEARCH ASSOCIATE, PILPG-NL

On April 29, 2020, the Overseas Operations (Service Personnel and Veterans) Bill (OOB, the Bill) received royal assent and will shortly be adopted into United Kingdom (U.K.) law.  The Bill has been touted by the current Conservative government as being crucial in tackling “vexatious claims and [ending] the cycle of re-investigations against [the U.K.’s] Armed Forces.”  Nevertheless, the OOB is highly controversial as it may modify the application of international law in the context of British overseas military operations.  Although the House of Lords has recently made important amendments, this post will examine some of the remaining concerning aspects of the OOB in light of the U.K.’s international human rights obligations.  

Background 

The OOB’s was drafted in response to the thousands of “spurious legal claims” against soldiers and the Ministry of Defence (MoD) after the U.K.’s missions in Iraq and Afghanistan in the early 2000s.  Many of these cases were “lodged using legal aid with the Iraq Historic Allegations Team (IHAT), which was set up to examine serious accusations” arising from the Iraq missions.  While some had merit, the vast majority of these cases were unfounded, frivolous and/or vexatious, and their investigations resulted in a significant drain of the British judiciary and military’s resources. 

Although the OOB seeks to limit such claims from arising in the future, the Bill has a number of contentious provisions.  The OOB contains a “presumption against prosecution” if litigation is commenced five years after the date on which the criminal conduct is alleged to have occurred.  After five years, U.K. prosecutors will only permit criminal proceedings in “exceptional” circumstances.  In fact, prosecutions will only be allowed if the applicant receives the Attorney General’s express consent.  Furthermore, British prosecutors will have to give special consideration to a number of mitigating circumstances, such as the mental stress endured by service personnel in the context of military duties. 

The OOB also amends the Human Rights Act 1998 that allows the U.K. Secretary of State to derogate from the European Convention on Human Rights (ECHR) whenever the U.K. engages in future “significant overseas operations.” 

Recent Amendments by the House of Lords

Originally, the OOB applied to nearly all types of claims arising in overseas operations, with the exception of crimes against humanity of a sexual nature, as contemplated under Article 7(1)(g) of the Rome Statute of the International Criminal Court (ICC Statute).  This meant that all other violations of international criminal law or war crimes would be subject to the presumption against prosecution after the passage of five years - contrary to the U.K. 's obligations to investigate grave offences under the ICC Statute, the Convention Against Torture, and customary international humanitarian law.  The House of Lords recently amended this provision and made torture, war crimes, and other non-sexual crimes against humanity exempt from the application of the OOB making the Bill more inline with the afore mentioned sources of international law. 

Remaining Concerns of the Proposed Legislation 

While the House of Lords’ amendments were a step in the right direction, the OOB still has a number of concerning aspects in terms of U.K. 's human rights obligations.  As a party to the ECHR, the U.K. is bound by rulings of the European Court of Human Rights (ECtHR), which has held that in certain circumstances, the ECHR may apply extraterritorially to overseas military operations.  Where the ECHR applies, states parties are obliged to properly investigate human rights violations committed by soldiers stationed overseas and ensure that victims “have an effective remedy before a national authority.”  As the OOB currently stands, certain human rights violations and crimes not meeting the severity of those addressed by the House of Lords amendment will be subject to the presumption against prosecution.  These aspects of the OOB could incentivize the Ministry of Defence to conduct less stringent or flawed investigations and to even “leave investigations incomplete” in order to take advantage of the presumption against prosecution.

In fact, the drafters of the OOB have included the ability for the U.K. to derogate from the Convention entirely.  While Article 15 of the ECHR allows for derogation from its human rights provisions during times “of war or other public emergency threatening the life of the nation,” the OOB’s derogation provision would apply more broadly to any “significant overseas operations” including “peacekeeping […and] operations for dealing with terrorism, civil unrest or serious public disorder.”  Although state parties have evoked Article 15 in times of domestic disorder, terrorist threats, and emergencies, no such derogations to the ECHR have been made for modern instances of extraterritorial armed conflict or other kinds of military operations contemplated in the OOB.  The fact that the OOB could allow for derogation in nearly any event where U.K. soldiers are deployed overseas may go beyond the narrow derogation as contemplated in the ECHR. 

Conclusion 

The complex balance between international criminal law, humanitarian law, and human rights law is certainly blurred during times of extraterritorial military activity.  Yet, the OOB may have gone too far in favor of “lawfare” at the cost of the U.K.’s international obligations.  While the House of Lords has made significant amendments, when it comes into force, the OOB will limit the possibility of holding U.K. troops accountable for their wrongful conduct abroad.   As a result, avenues for redress for foreign victims will be greatly restricted. 

Balancing national security and the right to a fair trial: the UK Supreme Court’s decision on the Shamima Begum case

By: Henry Smith, Junior Research Associate, PILPG-NL

On February 26, 2021, the Supreme Court (SC) of the United Kingdom (UK) upheld the Home Office’s decision to deny Shamima Begum the right to return home and personally contest the revocation of her British citizenship.  This decision overturned a previous ruling by the Court of Appeal (CA).  The SC’s decision has sparked criticism for supposedly setting a precedent for the Home Office to disregard the human right to a fair trial and procedural safeguards.  This post will look at how the SC balanced the right to a fair trial and national security interests, how its approach differed from the CA’s approach, and the problems that it may cause.

Facts of the case

Shamima Begum left the UK in February 2015, at 15 years of age, to join the Islamic State (IS) in Syria.  Four years later, Begum was captured by Syrian Kurd forces and taken to a detention camp, where she was later found by journalists.

The UK Home Office, the state department responsible for immigration and security, immediately stripped Begum of her British citizenship based on Section 40 of the British Nationality Act of 1981, which provides that any person may have their citizenship revoked in the interest of the “public good.”  The argument was that Begum was a member of IS and, therefore, posed a threat to national security.

Begum requested leave to enter the UK so that she could appeal in person the decision that canceled her citizenship, but the Home Office rejected the request. She took the claim to the CA which ruled in her favor, determining that she should be allowed to enter.  In turn, the Home Secretary appealed to the SC, which overturned the ruling and held that the decision to allow her re-entry was at the discretion of the Home Secretary. 

Balancing national security and the right to a fair trial

The main point in which the SC diverged from the CA was the balancing between Begum’s right to a fair trial and national security concerns.

The CA first rejected the assessment made by the Home Office of the national security risks posed by Begum’s re-entry.  It argued that Begum posed a less serious risk than other individuals who had previously been denied the right to return on the grounds of national security because she had never actively engaged in hostilities.  According to the CA, the potential risk posed by her return could be managed by arresting her upon arrival and keeping her in custody until the end of the trial.  The CA then asserted that Begum’s right to a fair trial outweighed the national security concerns.  As a result, the only solution would be to grant her leave to enter the UK so that she could effectively appeal the canceling of her citizenship.

The Supreme Court concluded differently.  With regards to the national security risks posed by Begum’s return, the SC affirmed that the CA should not have made its own assessment.  Instead, it should have accepted the assessment made by the Home Secretary, who had been entrusted with that responsibility by the democratically elected Parliament.  As for the conflict between the right to a fair trial and national security, the SC argued that the latter should not prevail over the former.  According to the SC, if a public interest makes it impossible for a case to be heard fairly, then courts cannot hear it.  The SC acknowledged that it would be impossible for Begum to fairly appeal the cancelation of her citizenship while detained in Syria.  It determined that her appeal should be suspended until she “is in a position to play an effective part in it without the safety of the public being compromised.”

Assessment of the Supreme Court’s decision

Two main criticisms arise from the SC’s conclusion.  Firstly, it renders Begum’s right to appeal the cancelation of her citizenship virtually meaningless.  The hearing of her appeal would depend on her leaving the detention camp in Syria.  However, her best chance of leaving is through a successful appeal.  If Begum’s British citizenship were reinstated, the UK could  the be under the obligation to repatriate her as a means to secure her right to life and her freedom from torture or inhumane treatment, as established in the European Convention on Human Rights.  The existence of such an obligation is the subject of similar cases brought by French women against France before the European Court of Human Rights.  In effect, the SC’s decision leaves Begum in a contradictory situation where she can only appeal if she leaves the detention facility, which in turn will most likely only happen after a successful appeal.

Secondly, it sets a precedent for the UK Home Office to act with a high degree of discretion in assessing national security matters.  While it can be argued that the Home Office has the democratic legitimacy to make these assessments, the courts should be able to evaluate whether fundamental safeguards have been observed.  By refusing to do so, and leaving the decision entirely up to the Home Office, the SC might be removing from the courts the capacity of ensuring the observance of legal safeguards.  This is particularly concerning considering that there are estimates of 50 British women and children being held in Syrian detention camps under conditions which may amount to torture or other inhumane treatment, as described by a United Nation’s Special Rapporteur.

Concluding remarks

While the SC’s decision to suspend Begum’s appeal was intended to secure her right to a fair trial without trumping the Home Office’s national security concerns, the SC effectively rendered it extremely unlikely that she could exercise her right to appeal the cancelation of her citizenship.  Additionally, it conferred on the Home Office a considerable amount of discretion in determining those security issues.  It remains to be seen how this precedent will impact the cases of others who are still detained in similar circumstances.

The Requirement to Exhaust Domestic Remedies and the Future of Climate Change Litigation before the ECtHR

By: Daria Stanculescu, Junior Research Associate, PILPG-NL

On September 3, 2020, six Portuguese children and young adults aged eight to 21 brought an application before the European Court of Human Rights (ECtHR) against 33 Council of Europe member states, including all states of the European Union, the United Kingdom, Switzerland, Russia, Norway, Turkey, and Ukraine.  The application, logged as Duarte Agostinho and Others v. Portugal and Others, raises complex issues related to admissibility and shared responsibility among states for climate change.  This blog post will focus on the requirement to exhaust domestic remedies and the problem it poses for this case.  It will also provide an alternative to bringing future climate-related claims before the ECtHR that does not require the exhaustion of domestic remedies.

Facts of the Case

The applicants allege that the states are contributing to climate change by failing to take effective measures to reduce their greenhouse gas emissions.  These claims are not new.  Claimants brought similar arguments in the Urgenda case, in which the Dutch Supreme Court ordered the Netherlands to reduce its emissions by 25% by the end of 2020.  The Duarte Agostinho case is, nonetheless, significant as it is the first case concerning climate change appearing before the ECtHR.  The applicants allege violations of Articles 2 (the right to life), 8 (the right to private and family life), and 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR).  Upon asking the applicants to comment on their claims, the ECtHR also raised the application of Article 3 ECHR (prohibition of torture or inhuman or degrading treatment or punishment) of its own accord.  While this is not unheard of, it is notable that the Court raised the issue of the individuals’ rights under Article 3, as this provision has not been raised in relevant domestic cases, such as the Urgenda case.  The case is currently pending an admissibility examination by the Court.  One of the admissibility requirements the applicants must meet is the exhaustion of domestic remedies.

Exhaustion of domestic remedies

The requirement to exhaust domestic remedies compels individuals to first use available procedures under national law before bringing a complaint to the ECtHR.  Since the applicants are lodging their case against 33 states, making use of domestic remedies in each of these states would have taken several years.  As a result, the applicants, in this case, have not exhausted domestic remedies and are attempting to rely on an exception to this rule.  

The non-exhaustion of domestic remedies can be problematic, as the ECtHR is subsidiary to national systems that safeguard human rights.  The ECtHR does not replace national courts but works alongside them.  The purpose of the requirement is that the national system can remedy the alleged violation of the Convention rights first before the ECtHR is allowed to adjudicate on the state’s behavior. 

Although the requirement to exhaust domestic remedies can be decisive, the ECtHR has highlighted the need to apply it with a degree of flexibility and without excessive formalism.  The Court has established exceptions to the exhaustion of domestic remedies rule.  In the Duarte Agostinho case, the applicants argue the rule should not apply due to the absence of an adequate domestic remedy.  The applicants rely on two main arguments that, in their opinion, justify such a statement: that it would not be feasible to pursue domestic proceedings against each of the states, considering the urgency of climate change, and that pursuing domestic remedies in each of the states would impose an unreasonable burden on them.  The decision of the Court regarding these arguments will determine if the case will be heard on the merits.

The Future of Climate Change Litigation before the ECtHR

If the Court dismisses the Duarte Agostinho case for not exhausting domestic remedies, the decision may raise doubts about the suitability of the ECtHR in dealing with future climate change-related claims by individuals.  However, the ECtHR also supports other types of claims.  A possible alternative to individual proceedings, like Duarte Agostinho, would be a request made by a state for an advisory opinion.  Under Protocol 16, which entered into force in 2018 for the states that ratified it, the ECtHR can issue advisory opinions on questions concerning the application and interpretation of the ECHR.  Such opinions can only be requested by the highest courts and tribunals of a state.  Although advisory opinions are not binding, they may provide clarity on how the ECHR applies in climate change cases.  This approach would allow the ECtHR to address the material issue without encountering problems stemming from the requirement to exhaust domestic remedies.

Conclusion

The ECtHR’s decision in Duarte Agostinho raises expectations, as it is yet to be seen how the Court rules on the admissibility requirements, particularly regarding the exhaustion of domestic remedies.  Regardless of the outcome of the proceedings, Duarte Agostinho embodies an influential case for climate change litigation before the ECtHR.  However, individual claims are not the only path for the ECtHR to rule on climate change.  Protocol 16 provides a non-binding alternative, through which the Court can rule on climate change issues, without requiring the exhaustion of domestic remedies.

Swiss Ban on Face Coverings: Lessons from the French Experience

By: Adam DiSimine, Junior Research Associate, PILPG-NL

Through a narrow but binding vote by referendum last month, Swiss citizens passed a call for a measure banning the wearing of full-face coverings in public places.  The ban has been described by some as an attack on Muslim women.  In fact, Amnesty International called the ban discriminatory, alleging that it violates women’s rights to freedom of expression and religion.  The government will now have two years to prepare a law to implement the measure.  As lawyers and policymakers work to draft a piece of legislation in the coming months, they may look to prior cases before the European Court of Human Rights (ECtHR) and the United Nations Human Rights Committee (UNHRC).  This post will look at two such cases brought against France for a similar ban on face coverings and identify the considerations weighed by these bodies when determining such a ban’s legal status.  It is important to note, legal compliance is only one of several factors relevant for contextualizing this issue.  Placing the ban in a broader setting is essential to understand its causes and effects. 

The French Ban

In April 2011, France became the first European state to legislatively ban full-face coverings in Europe.  Following the enactment of the law, three cases were brought that challenged its validity - one before the ECtHR and two before the UNHRC.  In S.A.S. v. France, the ECtHR ruled that the ban on face coverings was compliant with the European Convention on Human Rights (ECHR).  Conversely, in Yaker v. France and Hebbadi v. France, the UNHRC found that the ban constituted a violation of the prohibition of discrimination based on gender and religion under the International Covenant on Civil and Political Rights (ICCPR).  As Switzerland is a party to the ECHR, it may be possible for applicants to bring a similar case against Switzerland before the ECtHR.  Switzerland has not ratified the optional protocol to the ICCPR and so a case cannot be brought before the UNHRC in this instance, but its rulings help inform Swiss obligations under the ICCPR nonetheless.

S.A.S. v France

In S.A.S. v. France, the ECtHR found that, while the French ban impaired the rights of women, who wish to wear a face-covering for religion, to private life, and to manifest religion, it did not violate the ECHR.  In fact, the ban was a necessary and proportionate measure in pursuit of preserving the conditions of “living together” under the exception of “protection of the rights and freedoms of others”.  While acknowledging that the ban had a broad scope (as it applied to all public places), the ECtHR noted that the ban did not forbid wearing other types of religious clothing and that sanctions connected with violating the ban were “among the lightest that could be envisaged”.  As a result, the ECtHR focused much of its decision considering whether the limitation was a necessary and proportionate restriction.  Factors that were relevant when making its determination included both - the nexus of the ban with religion and the nature of the penalties to be imposed for non-compliance.  The ECtHR is likely to engage in a similar analysis if called on to evaluate the Swiss ban.

Yaker v. France

In Yaker v. France (and similarly in Hebbadi v. France), the UNHRC determined the ban discriminated against Muslim women based on gender and religion.  The UNHRC came to this finding due to the ban’s negative effects on Muslim women based on a distinction that was neither necessary nor proportionate to a legitimate interest.  In reaching its decision, the UNHRC noted two relevant factors.  First, there were several exceptions to the ban, so the ban was effectively focused on Muslim face coverings (and in practice, it had primarily been enforced against Muslim women).  Here, the UNHRC focused on the actual effects of the ban and its real-world implications.  Second, criminal penalties were applied for violations of the ban.  The use of criminal sanctions, sometimes on multiple occasions, was found to be a disproportionate punishment for violations of the law.   When assessing whether a limitation is proportionate under the ICCPR, the UNHRC evaluated the discriminatory effects by virtue of the exceptions to the law.   In addition, just as in S.A.S. v. France, the UNHRC has shown that the nature of the penalties imposed in the event of non-compliance with the ban will be a factor when assessing proportionality.   

Conclusion

It remains to be seen what form the new Swiss legislation implementing the ban on full-face coverings will take following the referendum.  As particulars are negotiated and drafted in the near future, a close examination of the factors considered by the ECtHR and UNHRC provide guidance on the form such a ban will need to take in order to have a chance at being compliant with the ECHR and ICCPR.