On 6 October, the International Criminal Court (ICC) issued its much-anticipated Abd-Al-Rahman trial judgment, in which the defendant was convicted of crimes against humanity and war crimes committed in Darfur, Sudan, between 2003 and 2004. Even before the trial judgment, the case had become paradigmatic for its decisions (here and here) scrutinizing for the first time how the principle of legality under art. 22(1) of the Rome Statute (RS) should be understood and applied in cases of referrals by the United Nations Security Council (UNSC) of situations in states non-parties to the RS. The issue became relevant because Sudan never ratified the RS, Abd-Al-Rahman is a Sudanese national, and the ICC’s jurisdiction in the case was based on a UNSC referral.
In November 2021, the Appeals Chamber (AC) quashed the most traditional legal interpretation of the principle of legality that the lower chamber had reaffirmed (here, §§38-42) and presented a different, more human rights-aligned understanding of this principle. Relying on art. 21(3) RS, the AC ruled that, if none of the two jurisdictional links under art. 12—territory and nationality—applies in the case, “it is not enough that the crimes charged can be found in the text of the Statute” (here, §86). Following the case-law of the European Court of Human Rights (ECtHR), the AC established that, in order to respect the principle of legality in a case like Abd-Al-Rahman, it is necessary to apply a three-prong test: (i) the charged offences were already criminalized at the time of their commission either by the domestic criminal law of the state or by conventional or customary international law applicable to this state; (ii) these external legal sources were accessible to the defendant; and (iii) criminal punishment was foreseeable to him/her (here, §86; welcoming the AC’s approach, see: Dias, Lentner, Galand, Staiano, Rikhof; opposing it, see Judge Ibáñez, §§93-95; Lemos).
Although the AC made a tentative finding that this three-prong test was a priori fulfilled in the case, it was up to the Trial Chamber (TC) to make a final determination in this regard (here, §§88-91). The TC rose to the occasion, assessing, in a dedicated section of its judgment, if the charges against Abd-Al-Rahman had legal basis in Sudanese domestic laws and whether these laws were accessible and foreseeable to him. The TC concluded that all these requirements were fulfilled in the case (here, §§28-60). The goal of this post is to critically evaluate the TC’s application of the principle of legality in the Abd-Al-Rahman trial judgment.
The applicable law
Other than the separate section addressing the principle of legality, the Abd-Al-Rahman judgment’s content is analogous to any other ICC trial judgment. The TC still based its legal findings and characterization of the facts on the RS and Elements of Crimes, notwithstanding the fact that the RS is not applicable law in the case. This stems from the fact that the TC determined that all charged crimes, as defined in the RS and Elements of Crimes, were equivalent to offences found in Sudanese domestic legislation (here, §51).
In my view, this is a correct outcome. The AC’s test for compliance with the principle of legality solely aims at assessing the compatibility between the crimes and the modes of liability in the RS with the applicable external sources. The test cannot function as giving leeway for the ICC to apply these external legal sources to convict the defendant or to arbitrarily cherry-pick which substantive law the Court will rely on. Deciding otherwise would contravene the rule in arts. 1, 5, 13, 22, and 23 RS that the ICC must operate in accordance with its Statute, regardless of how the Court’s jurisdiction is triggered (Jordan Referral re Al-Bashir, §135; for a different view, see Staiano, at 987, 991-992). This assertion is without prejudice to the specific and statutorily foreseen possibility of the ICC introducing external additional elements to the war crimes under arts. 8(2)(b) and (e) RS (Ntaganda, §§52-55).
In sum, even though the RS is not applicable law in the case, the legal framework of assessment by the ICC shall remain the RS, but only if and to the extent that the Statute is equivalent with the external applicable law at the time of the crimes. If the Court concludes that the charge brought by the Prosecution based on the RS does not match the external law actually applicable on the ground, the charge must be dismissed on this basis alone. It follows that if, hypothetically, the TC had concluded that one of Abd-Al-Rahman’s charges did not have legal basis on Sudanese domestic law, the TC would have been required to determine if the charge had legal basis in the international law binding upon Sudan at the tempus delicti. Only after concluding that the applicable national and international law did not offer legal foothold for the charge, the TC could dismiss it. The TC did not assess international law in the present case because the Chamber was satisfied that Sudan’s national legislation was already sufficient to substantiate all charges.
Additionally, the TC’s approach of framing its legal and factual assessment in the judgment solely on the basis of the RS refutes the argument by Lemos (at 226-228) that the AC’s new understanding of nullum crimen sine lege leads to “a problematic bifurcation of the applicable law at the ICC”. Arguably, the flaw in this critique is that the principle of legality does not render applicable at the ICC the external sources substantiating the charges. The purpose of relying on these external sources is simply to filter out the substantive provisions of the RS that the ICC cannot apply in the case because of that principle. This is clear from the fact that the TC still assessed Abd-Al-Rahman’s actions and convicted him on the basis of the RS, rather than the Sudanese domestic laws that were actually applicable to the defendant. A point for further discussion, however, is whether the in dubio pro reo principle could entail an exception to this point, allowing the ICC to apply external legal standards to the crimes and modes of liability under the Court’s jurisdiction if such external standards are more beneficial to the defendant than those of the RS (see Lemos, at 232).
Yet, Lemos (at 228) is correct in maintaining that, pursuant to the AC’s approach to legality, the extent to which the ICC can apply the RS may potentially vary from case to case. If one of the jurisdictional links under art. 12(2) RS applies in the case, all substantive provisions of the Statute become ordinarily applicable (here, §86). However, as noted above, in cases in which the conduct was committed by a national and in the territory of a state non-party to the RS, the full application of the Statute is not ensured, since the applicability of the substantive provisions of the RS in the case will depend on their degree of compatibility with the external legal sources binding in the state in question. In these particular cases, the ICC will be prevented from applying the specific crimes and modes of liability under the RS that do not have legal foothold in any of those external sources. This potential “variation” from case to case in the degree of applicability of the RS by the Court is the unavoidable fallout of exerting the ICC’s jurisdiction in the case while complying with the principle of legality.
Nevertheless, one should not unduly overstate the dangers of this “variation”. Most of the ongoing situations at the ICC refer to states parties to the RS, entailing that the latter remains applicable as usual in the cases arising from these situations. Furthermore, as determined by the AC, “the crimes under the Statute were intended to be generally representative of the state of customary international law when the Statute was drafted” (here, §89). This is pertinent because the crimes and modes of liability under the RS that reflect existing customary law can be applied to any case, no matter how the ICC’s jurisdiction was triggered. Although the AC’s finding is reasonable, it should be approached as an overall and iuris tantum assumption that must be thoroughly vetted in future judgments dealing with specific crimes and modes of liability (see Dias). In any case, it seems that instances in which the RS is not fully applicable will likely remain rare at the ICC.
The compatibility check
The TC’s compatibility check between the RS and the external applicable law (i.e., Sudanese legislation) had two key legal shortcomings. First, as Dias explained, the compatibility check must encompass not only the crimes, but also the modes of liability. The TC only addressed the charged offences, remaining silent on the external legal basis for the modes of liability that Abd-Al-Rahman was charged with under art. 25(3) RS (direct perpetration, co-perpetration, and ordering). The existence of some case-law asserting that art. 25(3) is not a codification of customary law (Taylor, §435; Katanga and Ngudjolo, §508) could cast doubt on the applicability of these modes of liability in the case.
Second, the TC’s evaluation of the compatibility check was strikingly vague. Instead of a concrete comparative appraisal, in which each charged crime under the RS is reviewed in light of its equivalent domestic legal provisions, the TC limited itself to producing a list of crimes and provisions from Sudan’s legal framework and concluding that “these crimes are analogous to the crimes charged in the present case” (here, §34). No more detailed assessment was offered.
Granted, the principle of legality does not impose on the TC the obligation to demonstrate that each charge was exactly identical to the crimes found in the applicable domestic or international law. The TC was also correct in claiming that “the test under Article 22(1) of the Statute does not require that the rules of international humanitarian law were implemented in the domestic legal system or that the definition of ‘international crimes’ was adopted in domestic law” (here, §50).
However, the TC had the burden to concretely assess whether each charge brought by the Prosecution under the RS went beyond or was more severe than the corresponding crimes under the applicable law (see Dias; Galand, at 955; Staiano, at 999-1000). Although the lack of domestic implementation of humanitarian law treaties in Sudan is not in and of itself decisive for a breach of art. 22 RS, this factor makes it even more plain that the TC should have carried out its compatibility check in a less cursory way (see Korbely, §§74-75). In essence, the highly general and superficial nature of the TC’s appraisal could be seen as problematic for not sufficiently protecting the defendant against prosecution on the basis of criminal provisions that are more severe than the applicable law at the relevant time (see Dias, at 76-83).
Besides these two shortcomings of a legal order, the TC could also be criticized on strategic or consequential terms, given its decision to base the compatibility check exclusively on the domestic laws of Sudan, particularly the 1991 Criminal Act, the 1986 People’s Armed Forces Act, and the 1998 Sudanese Constitution (here, §51). Although this decision in no way amounted to a legal error, it could be seen as a missed opportunity to clarify the customary status of Abd-Al-Rahman’s crimes, especially gender-based persecution (Martín, Galand, Dias). In line with positive complementarity, an authoritative finding by the TC on the customary nature of the relevant provisions of the RS could assist states in their domestic prosecution of core crimes, as they could rely on the RS as a framework for their trials even if they never ratified this treaty or never implemented its crimes in their domestic jurisdictions (Staiano, at 993-994). As Lentner recalled, such a finding could also strengthen the utility of the RS as an source of inspiration for codification efforts, since states are more inclined to replicate provisions they perceive as reflecting customary law (see Biazatti).
Lastly, the TC failed to respond a question that the AC also left unanswered: whether the UNSC referral had a legislating effect capable of rendering the RS applicable in Darfur after the referral (refuting such legislating effect, see Staiano, at 984-986; Milanović; Dias; Galand; Lentner; in favor of it, see Akande, at 340-342; Tsilonis, at 209-211). This is significant because, if the UNSC referral had this purported legislating effect, an assessment of the legal basis of the charges outside the RS would be unnecessary for the crimes committed after the referral. Whereas this question did not apply to Abd-Al-Rahman, as all his charged crimes were committed before the UNSC referral, this point could become relevant in Al Bashir and Gaddafi, as their arrest warrants cover acts committed after the UNSC referrals.
Accessibility and foreseeability
The TC followed the AC’s decision to incorporate the ECtHR’s accessibility and foreseeability test into the ICC’s legal framework, applying this test in the trial judgment (§§52-59). However, two important differences can be established between the ICC’s version of this test and how the ECtHR applies it. The Strasbourg Court often assesses foreseeability taking into account: (i) the “flagrantly unlawful nature” of the charged crimes (Milanković, §64); and (ii) the hypothetical assumption that the defendant received “appropriate legal advice” (Saakashvili, §141).
Although the AC replicated the “flagrantly unlawful nature” standard in its decision (§85; quoted in the trial judgment, §29), this element played no discernable role in the AC’s and TC’s factual assessment of foreseeability. The two chambers focused exclusively on Abd-Al-Rahman’s personal circumstances, with no reference to the blatant unlawfulness of the charged conduct (here, §§88, 91; here, §§52-55). Moreover, no mention of the “appropriate legal advice” standard can be found in the AC’s and TC’s judgments. In fact, the TC formulated the foreseeability test as follows: “Whether a reasonable person in the Accused’s position could have expected, at the time of his conduct, to find himself faced with the crimes charged” (here, §52). These developments, which partially set the ICC apart from the ECtHR’s particular approach to assess accessibility and foreseeability, constitute a positive step towards consolidating at the ICC a more holistic and compelling approach to the principle of legality (see Dias; Dias; Galand; Staiano, at 997-998).
Additionally, Staiano (at 993) presented a critique to the AC that could be extended to the TC: on their factual assessment, both chambers conflated accessibility and foreseeability, giving more attention to the latter, while overlooking the former. The conflation aspect of this critique is not necessarily convincing, since the ECtHR often reviews accessibility and foreseeability jointly (e.g., Šimšić, §§22-25; Kononov, §§234-244). The conclusive question is whether the requirements under accessibility and foreseeability were sufficiently examined by the chamber, notwithstanding the fact that they were applied somehow jointly. In sum, the fact that the TC conflated its evaluation of accessibility and foreseeability is not in and of itself a legal error.
However, I agree with Staiano that the TC could have assessed accessibility more substantially. On the one hand, the TC convincingly demonstrated that Abd-Al-Rahman had access to Sudan’s relevant laws, given his “exposure to the rules and institutions of the State” and the fact that he is fluent in Arabic, the language of those laws (here, §§54, 52). On the other hand, the TC failed to make a specific assessment of the content of the applicable Sudanese laws to determine if they were “sufficiently clear”, as instructed by the AC (here, §85). The TC merely entered the blanket conclusion that these laws “clearly described the prohibited conduct and crimes” (here, §59), without any concrete reasoning.
This deflective stance by the TC echoes the ICC’s typical resistance towards acting akin to a human rights court (Al-Senussi, §219). Nevertheless, in the specific context of assessing compliance with the principle of legality, this resistance should be set aside, at least partially, given the TC’s burden of measuring the degree of precision of Sudan’s criminal laws (Kimel, §§63-67). If the ICC would rather not evaluate the Sudanese national legislation in such a stringent way, the TC should have assessed the charges under applicable international law (Vasiliauskas, §§166-168).
Conclusion
Although the application of the principle of legality in the Abd-Al-Rahman trial judgment had some shortcomings, particularly in its compatibility check and accessibility assessment, the decision is a welcome development for not only replicating but also building upon the AC’s more human rights-oriented understanding of nullum crimen sine lege. At the same time, the judgment disclosed some of the complexities and challenges of applying this new understanding in concrete cases. Hopefully, future decisions will further cement this new approach to legality at the ICC, while clarifying and refining its legal elements in the unique context of this tribunal.