identifier: ICC-02/05-01/20 (Judgment on the appeal of Mr Abd-Al-Rahman against Pre-Trial Chamber II’s ‘Decision on the Review of the Detention of Mr Abd-Al-Rahman pursuant to rule 118 (2) of the Rules of Procedure and Evidence’)

text: the Statute

text: the Statute, article 19

text: the Statute, article 4

text: the Statute, article 58

text: the Statute, article 60

text: the Statute, article 61

text: the Statute, article 68

text: the Statute, article 81

text: the Statute, article 82

text: Original: English No. ICC-02/05-01/20 OA6 Date: 5 February 2021

text: THE APPEALS CHAMBER

text: Before: Judge Piotr Hofmański, Presiding Judge Chile Eboe-Osuji Judge Howard Morrison Judge Luz del Carmen Ibáñez Carranza Judge Solomy Balungi Bossa

text: SITUATION IN DARFUR, SUDAN

text: IN THE CASE OF THE PROSECUTOR v. ALI MUHAMMAD ALI ABD-AL-RAHMAN (‘ALI KUSHAYB’)

text: Public redacted version

text: No: ICC-02/05-01/20 OA6 1/16

text: Judgment to be notified in accordance with regulation 31 of the Regulations of the Court to:

text: The Office of the Prosecutor Counsel for Mr Abd-Al-Rahman

text: Ms Fatou Bensouda, Prosecutor Mr Cyril Laucci Ms Helen Brady

text: REGISTRY Registrar

text: Mr Peter Lewis

text: No: ICC-02/05-01/20 OA6 2/16

text: The Appeals Chamber of the International Criminal Court, In the appeal of Mr Ali Muhammad Ali Abd-Al-Rahman against the decision of Pre- Trial Chamber II entitled ‘Decision on the Review of the Detention of Mr Abd-Al- Rahman pursuant to rule 118 (2) of the Rules of Procedure and Evidence’ of 11 December 2020 (ICC-02/05-01/20-230-Red), After deliberation, Unanimously, Delivers the following

text: J U D G M E N T

text: The ‘Decision on the Review of the Detention of Mr Abd-Al-Rahman pursuant to rule 118 (2) of the Rules of Procedure and Evidence’ is confirmed.

text: REASONS

text: I. INTRODUCTION

text: Pre-Trial Chamber II rejected Mr Ali Muhammad Ali Abd-Al-Rahman’s request for interim release in its review of the circumstances underpinning his detention under

text: article 60

text: (3) of

text: the Statute

text: . Mr Abd-Al-Rahman brings this appeal of that decision, arguing that the reasons for his detention are grounded in inadmissible evidence. He further argues that the chamber failed to appreciate his personal circumstances in rejecting his request for interim release. The Appeals Chamber will review whether Pre-Trial Chamber II erred in finding that the circumstances warranting detention continue to exist.

text: II. PROCEDURAL HISTORY

text: On 27 April 2007, Pre-Trial Chamber I issued a warrant of arrest against Mr Abd- Al-Rahman for his alleged responsibility for crimes against humanity and war crimes

text: No: ICC-02/05-01/20 OA6 3/16 allegedly committed in the localities of Kodoom, Bindisi, Mukjar, Arawala and their

text: surrounding areas, in Darfur, Sudan, between August 2003 and March 2004.

text: On 16 January 2018, Pre-Trial Chamber II (the ‘Pre-Trial Chamber’) granted the

text: Prosecutor’s application to amend the first warrant of arrest pursuant to article 58(6) of

text: the Statute

text: by issuing a second warrant of arrest against Mr Abd-Al-Rahman for his

text: alleged responsibility for crimes against humanity and war crimes allegedly committed

text: in the locality of Deleig and surrounding areas, in Darfur, Sudan, between on or about

text: 5 to 7 March 2004.

text: On 9 June 2020, Mr Abd-Al-Rahman surrendered himself and was transferred to

text: the detention centre of the Court.

text: On 1 July 2020, Mr Abd-Al-Rahman filed a request before the Pre-Trial Chamber

text: for interim release to the territory of the host State pending trial, pursuant to article

text: 60(2) of

text: the Statute

text: . The Pre-Trial Chamber, Judge Rosario Salvatore Aitala acting as

text: Single Judge, rejected the request (‘First Interim Release Decision’). Mr Abd-Al

text: Rahman appealed that decision.

text: Decision on the Prosecution Application under

text: Article 58

text: (7) of

text: the Statute

text: , dated 27 April 2007 and registered on 15 May 2007, ICC-02/05-01/07-1-Corr, pp. 43-56; Prosecutor’s Application under Article 58(7), 27 February 2007, ICC-02/05-56. Public redacted version of “Prosecution’s application pursuant to

text: article 58

text: (6) of the

text: Rome Statute

text: to amend the warrant of arrest for ALI MUHAMMAD ALI ABD-AL-RAHMAN (“ALI KUSHAYB”) by adding new crimes”, 3 November 2017, ICC-02/05-01/07-73-Secret-Exp, 26 June 2020, ICC-02/05- 01/20-6-Red2 (confidential redacted version registered on 25 June 2020 (ICC-02/05-01/20-6-Conf- Red)). Public redacted version of ‘Second warrant of arrest for Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”)’, 16 January 2018,

text: -Secret-Exp, 11 June 2020,

text: -Red, p. 13 (ex parte version registered on 16 January 2018 (

text: -Secret-Exp); confidential version registered on 12 June 2020 (

text: -Conf)). See Report of the Registry on the Arrest and Surrender of Mr Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”), 10 July 2020, ICC-02/05-01/20-90-Conf-Exp (originally registered on 12 June 2020 under the case and document number ICC-02/05-01/07-85-Conf-Exp). Requête en vertu de l’Article 60-2, 1 July 2020, ICC-02/05-01/20-12. Decision on the Defence Request for Interim Release, 14 August 2020, ICC-02/05-01/20-115, p. 11. Mémoire d’appel de la décision ICC-02/05-01/20-115, 19 August 2020, ICC-02/05-01/20-120 (corrected version registered on the same day (ICC-02/05-01/20-120-Corr); English translation registered on 11 September 2020 (ICC-02/05-01/20-120-Corr-tENG)); Acte d’appel de la décision ICC- 02/05-01/20-115 en vertu de l’article 82-1-b du Statut de Rome et de la norme 65-5 du Règlement de la Cour, dated 20 August 2020 and registered on 21 August 2020, ICC-02/05-01/20-125.

text: No: ICC-02/05-01/20 OA6 4/16

text: On 8 October 2020, the Appeals Chamber issued its judgment (the ‘Abd-Al-

text: Rahman OA2 Judgment’) confirming the First Interim Release Decision.

text: After instructing the Prosecutor and Mr Abd-Al-Rahman to file observations for

text: the Pre-Trial Chamber’s review of Mr Abd-Al-Rahman’s detention pursuant to rule

text: 118(2) of the Rules of Procedure and Evidence (the ‘Rules’), on 11 December 2020,

text: the Pre-Trial Chamber ordered Mr Abd-Al-Rahman’s continued detention (the

text: ‘Impugned Decision’). It found that no changes of circumstances under article 58(1)(a)

text: and (b)(ii) had occurred in the factors underlying the First Interim Release Decision.

text: On 16 December 2020, Mr Abd-Al-Rahman filed a notice of appeal against the

text: Impugned Decision.

text: In accordance with the Appeals Chamber’s instructions, Mr Abd-Al-Rahman

text: filed his appeal brief on 4 January 2021 (the ‘Appeal Brief’) and the Prosecutor filed

text: her response on 11 January 2021 (the ‘Prosecutor’s Response’).

text: III. STANDARD OF REVIEW

text: The Appeals Chamber notes that there exists a lacuna in the provisions governing

text: interlocutory appeals under

text: article 82

text: of

text: the Statute

text: as regards the grounds of appeal

text: that a party may raise. In response, the Appeals Chamber has determined that a party

text: Judgment on the appeal of Mr Ali Muhammad Ali Abd-Al-Rahman against the decision of Pre-Trial Chamber II of 14 August 2020 entitled ‘Decision on the Defence Request for Interim Release’, ICC- 02/05-01/20-177. See also Separate concurring opinion of Judge Luz del Carmen Ibáñez Carranza to the Judgment on the appeal of Mr Ali Muhammad Ali Abd-Al-Rahman against the decision of Pre-Trial Chamber II of 14 August 2020 entitled ‘Decision on the Defence Request for Interim Release’, 8 October 2020,

text: -Anx. Public redacted version of ‘Decision on the Review of the Detention of Mr Abd-Al-Rahman pursuant to rule 118(2) of the Rules of Procedure and Evidence’, 11 December 2020, ICC-02/05-01/20-230-Red (confidential version registered on the same date (ICC-02/05-01/20-230-Conf)), para. 7, p. 10. Impugned Decision, paras 27-28. Notice of Appeal against Decision ICC-02/05-01/20-230-Red, dated 16 December 2020 and registered on 17 December 2020, ICC-02/05-01/20-234 (English translation registered on 31 December 2020 (ICC- 02/05-01/20-234-tENG)). Order on the conduct of the appeal proceedings, 18 December 2020, ICC-02/05-01/20-240. Appeal Brief against Decision ICC-02/05-01/20-230-Red, dated 1 January 2021 and registered on 4 January 2021, ICC-02/05-01/20-247-Red (confidential version registered on the same date (ICC- 02/05-01/20-247-Conf)); English translation registered on 4 February 2021 (ICC-02/05-01/20-247- Conf-tENG)). Public Redacted Version of Prosecution Response to the Defence “Mémoire d’appel de la décision ICC-02/05-01/20-230-RED” (ICC-02/05-01/20-247), ICC-02/05-01/20-252-Red, 22 January 2021 (with confidential Annex A (ICC-02/05-01/20-252-Conf-AnxA) (confidential version registered on 11 January 2021 (ICC-02/05-01/20-252-Conf)).

text: No: ICC-02/05-01/20 OA6 5/16 may raise the same grounds as for final appeals under

text: article 81

text: of

text: the Statute

text: . Particularly in this appeal, as it concerns the findings of the Pre-Trial Chamber in relation to the criteria under

text: article 58

text: (1) of

text: the Statute

text: , it is necessary to apply the permissible grounds of appeal under 81 of

text: the Statute

text: mutatis mutandis to appeals of decisions granting or denying release under

text: article 82

text: (1)(b) of

text: the Statute

text: With regard to the applicable standard of review, the Appeals Chamber recalls that

text: [i]n considering appeals in relation to decisions granting or denying interim release, the Appeals Chamber has previously held that it “will not review the findings of the Pre-Trial Chamber de novo, instead, it will intervene in the findings of the Pre-Trial Chamber only where clear errors of law, fact or procedure are shown to exist and vitiate the Impugned Decision”.

text: With respect to errors of law, the Appeals Chamber has held that it

text: will not defer to the Trial Chamber’s interpretation of the law. Rather, it will arrive at its own conclusions as to the appropriate law and determine whether or not the Trial Chamber misinterpreted the law. If the Trial Chamber committed such an error, the Appeals Chamber will only intervene if the error materially affected the Impugned Decision.

text: Regarding an alleged error of fact, the Appeals Chamber has held in the context of an appeal against a decision concerning interim release that,

text: its review is corrective and not de novo. It has explained that “[i]t will therefore not interfere unless it is shown that the Pre-Trial or Trial Chamber committed a clear error, namely: misappreciated the facts, took into account irrelevant facts or failed to take into account relevant facts”. As regards the “misappreciation of facts” the Appeals Chamber will not disturb a Pre-Trial or Trial Chamber’s evaluation of the facts just because the Appeals Chamber might have come to a

text: 15 See e.g., Situation in the Democratic Republic of Congo, Judgment on the Prosecutor’s appeal against the decision of Pre-Trial Chamber I entitled “Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58”, 23 September 2008, ICC-01/04-169 (OA) (ex parte version registered on 13 July 2006 (ICC-01/04-169-US-Exp)), paras 32-34; The Prosecutor v. Joseph Kony et al., Judgment on the appeal of the Defence against the “Decision on the admissibility of the case under

text: article 19

text: (1) of

text: the Statute

text: ” of 10 March 2009, 16 September 2009,

text: (OA3), paras 46-47. 16 The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé, Judgment on the appeal of Mr Laurent Gbagbo against the decision of Trial Chamber I of 10 March 2017 entitled “Decision on Mr Gbagbo’s Detention”, 19 July 2017,

text: -Red (OA10) (the ‘Gbagbo OA10 Judgment’), para. 14, referring to Appeals Chamber, The Prosecutor v. Laurent Gbagbo, Judgment on the appeal of Mr Laurent Gbagbo against the decision of Pre-Trial Chamber I of 11 July 2013 entitled “Third decision on the review of Laurent Gbagbo’s detention pursuant to

text: article 60

text: (3) of the

text: Rome Statute

text: ”, 29 October 2013,

text: -Red (OA4), para. 18 (footnote omitted). 17 Gbagbo OA10 Judgment, para. 15 and references cited therein.

text: No: ICC-02/05-01/20 OA6 6/16 different conclusion. It will interfere only in the case where it cannot discern how the Chamber’s conclusion could have reasonably been reached from the evidence before it. The Appeals Chamber applies a standard of reasonableness in assessing an alleged error of fact in appeals pursuant to

text: article 82

text: of

text: the Statute

text: , thereby according a margin of deference to the Trial Chamber’s findings. 14. The Appeals Chamber notes that, under

text: article 58

text: (1)(a) of

text: the Statute

text: , the standard of proof is ‘reasonable grounds to believe’ and, under

text: article 58

text: (1)(b) of

text: the Statute

text: , detention may be ordered if it ‘appears necessary’ to avoid the enumerated risks. Taking this into account, the above standard of appellate review will guide the analysis of the Appeals Chamber.

text: IV. MERITS

text: A. The Impugned Decision

text: The Pre-Trial Chamber rejected Mr Abd-Al-Rahman’s arguments regarding the inadmissibility of the evidence relied upon for the warrants of arrest, finding that even if his arguments had merit, the challenged evidence related only to an ‘insignificant’ amount of the total evidence relied upon. The Pre-Trial Chamber recalled that under

text: article 61

text: (6)(b) of

text: the Statute

text: Mr Abd-Al-Rahman ‘may challenge the admissibility of the evidence at the confirmation hearing’.

text: The Pre-Trial Chamber noted further the ‘limited progress’ that the Prosecutor and the Victims and Witnesses Unit were able to make regarding the setup of protective measures for witnesses. Nonetheless, it did not agree with Mr Abd-Al-Rahman’s contention that the Prosecutor was ‘somehow in breach of the [First] Interim Release Decision’ as there was ‘no indication that the Prosecutor did not take all feasible steps under the circumstances to comply with [the] instruction [to take reasonable steps to put in place mechanisms to protect potential witnesses and/or safeguard potential evidence]’.

text: 18 Gbagbo OA10 Judgment, para. 16 (footnotes omitted). 19 Impugned Decision, para. 26. 20 Impugned Decision, para. 26. 21 Impugned Decision, para. 31. 22 Impugned Decision, para. 31.

text: No: ICC-02/05-01/20 OA6 7/16

text: Finally, the Pre-Trial Chamber considered that Mr Abd-Al-Rahman’s health condition which was ‘reported to have improved’ did not warrant his release on humanitarian grounds.

text: B. Mr Abd-Al-Rahman’s submissions

text: Mr Abd-Al-Rahman raises three grounds of appeal.

text: Under his first ground of appeal, Mr Abd-Al-Rahman submits that the Pre-Trial Chamber erred in rejecting his argument that the inadmissibility of some of the evidence relied upon in the warrants of arrest constitutes a ‘change in circumstances’ justifying his release. In that regard, he argues that the Pre-Trial Camber erred in finding that the portion of the evidence he claimed to be inadmissible represented only an insignificant part of the evidence presented in the warrants of arrest and that he was required to direct his submissions to the entirety of the evidence referred to in the warrants of arrest.

text: Under his second ground of appeal, Mr Abd-Al-Rahman argues that the Pre-Trial Chamber erred in concluding that the Prosecutor was not in breach of the First Interim Release Decision regarding the measures taken for the protections of potential witnesses. He claims that the Pre-Trial Chamber contradicted its own conclusion in its decision on the second postponement of the confirmation hearing where it found that the Prosecutor had violated its instructions regarding the protection of her witnesses.

text: Mr Abd-Al-Rahman argues further that the Pre-Trial Chamber erred in not mentioning the absence of an agreement between Sudan and the Court, in violation of

text: articles 4

text: (2) and

text: (1) of

text: the Statute

text: , which makes it impossible for the Prosecutor to protect witnesses on the territory of Sudan.

text: Finally, under his third ground of appeal, Mr Abd-Al-Rahman argues that the Pre- Trial Chamber erred in failing to consider the particular circumstances of his detention

text: 23 Impugned Decision, para. 34. 24 Appeal Brief, paras 11-21. 25 Appeal Brief, paras 8, 12-16, 19, 21. 26 Appeal Brief, paras 22-25. 27 Appeal Brief, para. 22. 28 Appeal Brief, paras 8, 23.

text: No: ICC-02/05-01/20 OA6 8/16

text: 29 30 such as his advanced age, [REDACTED]. He avers that [REDACTED]. He argues also that [REDACTED].

text: C. The Prosecutor’s submissions

text: With respect to the first ground of appeal, the Prosecutor submits that Mr Abd- Al-Rahman fails to show any error in the Impugned Decision as he miscomprehends the nature of the Pre-Trial Chamber’s assessment under

text: article 58

text: (1)(a) of

text: the Statute

text: and ‘conflates the review of pre-trial detention with the confirmation of the charges’. The Prosecutor adds that Mr Abd-Al-Rahman fails to advance any arguments demonstrating any material impact of the alleged errors raised under his first ground of appeal and his arguments should be dismissed in limine.

text: Regarding the second ground of appeal, the Prosecutor argues that Mr Abd-Al- Rahman repeats arguments regarding the Prosecutor’s ability to protect witnesses and its impact on

text: article 58

text: (1)(b)(ii) of

text: the Statute

text: which the Appeals Chamber previously rejected.

text: Finally, with regard to the third ground of appeal, the Prosecutor argues that Mr Abd-Al-Rahman fails to show that the Pre-Trial Chamber was unreasonable in exercising its discretion to decline releasing Mr Abd-Al-Rahman on humanitarian grounds.

text: D. Determination by the Appeals Chamber

text: The Appeals Chamber observes that Mr Abd-Al-Rahman’s three grounds of appeal challenge the Pre-Trial Chamber’s review of the reasons for his continued detention. In particular, he argues that the Pre-Trial Chamber erred in its assessment of changes in the circumstances underlying his detention under

text: article 60

text: (3) of

text: the Statute

text: . This provision states as follows:

text: The Pre-Trial Chamber shall periodically review its ruling on the release or detention of the person, and may do so at any time on the request of the Prosecutor

text: 29 Appeal Brief, paras 26-29. 30 Appeal Brief, para. 28. 31 Appeal Brief, para. 28. 32 Prosecutor’s Response, paras 7-18. 33 Prosecutor’s Response, paras 19-26. 34 Prosecutor’s Response, paras 27-30. 35 Prosecutor’s Response, paras 33-38. No: ICC-02/05-01/20 OA6 9/16 or the person. Upon such review, it may modify its ruling as to detention, release or conditions of release, if it is satisfied that changed circumstances so require.

text: The procedure for the review of the ruling on detention arising from

text: article 60

text: (3) of

text: the Statute

text: has been explained by the Appeals Chamber as follows:

text: First, the Pre-Trial or Trial Chamber must identify the “ruling on release or detention” that needs to be reviewed, i.e. the initial decision made under

text: article 60

text: (2) of

text: the Statute

text: as well as any potential subsequent modifications made to that decision under

text: article 60

text: (3) of

text: the Statute

text: . Second, the Pre-Trial or Trial Chamber needs to consider whether there are “changed circumstances”, i.e. whether there is a “change in some or all of the facts underlying a previous decision on detention, or a new fact satisfying a Chamber that a modification of its prior ruling is necessary”. If there are changed circumstances, the Pre-Trial or Trial Chamber will need to consider their impact on the factors that form the basis for the decision to keep the person in detention. If, however, the Pre-Trial or Trial Chamber finds that there are no changed circumstances, that Chamber is not required to further review the ruling on release or detention.

text: Consequently, the Appeals Chamber will be guided by this jurisprudence when reviewing Mr Abd-Al-Rahman’s arguments raised under his three grounds of appeal.

text: First ground of appeal

text: Under his first ground of appeal, Mr Abd-Al-Rahman makes two main arguments: (i) the Pre-Trial Chamber committed an error of fact by finding that the challenged evidence is ‘only an insignificant part of the evidence presented in the warrants of arrest’, whereas Mr Abd-Al-Rahman alleges that the challenged evidence constitutes as much as 78 percent of the evidence relied upon for the first warrant of arrest; and (ii) the Pre-Trial Chamber committed an error of law by requiring him to make a showing which encompasses the evidence in its entirety, thereby making it

text: 36 The Prosecutor v. Jean-Pierre Bemba Gombo, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 6 January 2012 entitled “Decision on the defence’s 28 December 2011 ‘Requête de Mise en liberté provisoire de M. Jean-Pierre Bemba Gombo’”, 5 March 2012,

text: -Red (OA10) (confidential version registered on the same date (ICC-01/05- 01/08-2151-Conf)), para. 31 (footnotes omitted). See also Appeals Chamber, The Prosecutor v. Jean- Pierre Bemba Gombo, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 23 December 2014 entitled “Decision on ‘Defence Urgent Motion for Provisional Release’”, 20 May 2015,

text: -Red (OA11) (confidential version registered on the same date (

text: -Conf (OA11)), para. 44, referring to Appeals Chamber, The Prosecutor v. Jean-Pierre Bemba Gombo, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 28 July 2010 entitled “Decision on the review of the detention of Mr Jean-Pierre Bemba Gombo pursuant to Rule 118(2) of the Rules of Procedure and Evidence”, 19 November 2010,

text: (OA4), paras 46, 51-53. 37 Appeal Brief, paras 8, 12-14, 16-17.

text: No: ICC-02/05-01/20 OA6 10/16 impossible for him to discharge his burden for a request of interim release. The Appeals Chamber will address these argument in turn.

text: With respect to Mr Abd-Al-Rahman’s first argument, the Appeals Chamber notes that its scope of review is narrow. While Mr Abd-Al-Rahman challenged some of the evidence underpinning his warrants of arrest and detention as being inadmissible, the Appeals Chamber’s review only concerns the Pre-Trial Chamber’s finding that the volume of impugned evidence is ‘insignificant’. The Appeals Chamber observes that the Pre-Trial Chamber was careful not to pronounce itself on the admissibility of the contested evidence in the Impugned Decision, and the Appeals Chamber has tailored its review accordingly.

text: The Appeals Chamber emphasises that, as argued by the Prosecutor, any assessment of whether the conditions under article 58(1) are met would necessarily concern a qualitative – and not just quantitative – review of the evidence. Nevertheless, for the purposes of this appeal, the Appeals Chamber confines its determination to the arguments raised by the appellant. In this regard, the Appeals Chamber concurs with the Prosecutor that Mr Abd-Al-Rahman’s computations are ‘based on an arbitrarily narrow reading of the [first warrant of arrest]’.

text: The Appeals Chamber observes, contrary to Mr Abd-Al-Rahman’s assertion, that the Prosecutor relied upon 278 items of evidence for the summons to appear or alternatively the first and second warrants of arrest. On appeal, Mr Abd-Al-Rahman rather obliquely claims that there were 16 items of evidence accompanying the applications for warrants of arrest that should be found to be inadmissible. He also argues, without referring to any documents or discussing their significance, that there are an additional 25 items of inadmissible evidence that followed in subsequent disclosures. In light of the fact that the Prosecutor relied on 278 items of evidence,

text: 38 Appeal Brief, paras 8, 19. 39 Prosecutor’s Response, para. 7. 40 Prosecutor’s Response, para. 14. 41 Appeal Brief, paras 12-14. 42 Prosecutor’s Response, para. 13. See also Prosecution’s ninth progress report on the evidence review, translation and disclosure process, 8 January 2021, ICC-02/05-01/20-249, paras 4-5. 43 Appeal Brief, paras 12-13. 44 Appeal Brief, para. 14.

text: No: ICC-02/05-01/20 OA6 11/16 the Appeals Chamber finds that the Pre-Trial Chamber’s conclusion was reasonable that the amount of contested evidence is insignificant.

text: Concerning his second argument, that the Pre-Trial Chamber required Mr Abd- Al-Rahman to make a showing which encompasses the evidence in its entirety, the Appeals Chamber finds that he mischaracterises the Impugned Decision. The relevant section of the Impugned Decision states that

text: the amount of evidence that is claimed to be inadmissible on the basis of the alleged violation of the Court’s Information Protection Policy is relatively insignificant compared to the entirety of the evidence in support of the warrants of arrest. Consequently, the Chamber does not need to rule on the merits of the Defence’s arguments. The Appeals Chamber finds that the above statement of the Pre-Trial Chamber in no way required Mr Abd-Al-Rahman to direct his submissions to the entirety of the evidence, nor to make a showing which encompassed the entirety of the evidence. Consequently, Mr Abd-Al-Rahman’s argument is rejected.

text: In light of the foregoing, the Appeals Chamber finds no error in the Pre-Trial Chamber’s conclusion that the so-called ‘new circumstances’ argued by Mr Abd-Al- Rahman do not amount to changed circumstances under

text: article 60

text: (3) of

text: the Statute

text: and, accordingly do not warrant a modification of the First Interim Release Decision. Therefore, Mr Abd-Al-Rahman’s first ground of appeal is rejected.

text: Second ground of appeal

text: Under the second ground of appeal, Mr Abd-Al-Rahman argues that the Pre-Trial Chamber erred in fact and law by erroneously and inconsistently finding that the Prosecutor did not breach its orders regarding witness protection efforts. He argues that the Prosecutor could not have met these obligations without an agreement between the Court and Sudan as required under

text: article 4

text: (2) of

text: the Statute

text: . In that regard, Mr Abd-Al-Rahman submits that the Pre-Trial Chamber contradicted its finding made

text: 45 Appeal Brief, paras 8, 19. 46 Impugned Decision, para. 26 (emphasis added). 47 Appeal Brief, paras 18-21. 48 Appeal Brief, para. 22, referring to Impugned Decision, para. 31. 49 Appeal Brief, para. 23.

text: No: ICC-02/05-01/20 OA6 12/16 in the decision to postpone the confirmation hearing where it held that the Prosecutor violated its instructions regarding the protection of her witnesses in Sudan.

text: The Appeals Chamber recalls that, in the Abd-Al-Rahman OA2 judgment, it determined that the ‘Prosecutor’s inability to protect witnesses in Darfur/Sudan cannot be assessed in isolation as the Pre-Trial Chamber’s determination [as to whether detention is necessary to avoid any obstruction of the investigation or court proceedings] is also based on other considerations’. In particular, the Appeals Chamber found that, under the circumstances, it was irrelevant to a determination under

text: article 58

text: (1)(b)(ii) of

text: the Statute

text: that the Prosecutor may or may not be in a position to implement protective measures for witnesses. Consequently, Mr Abd-Al-Rahman’s arguments asserting that the lack of an agreement between the Court and Sudan render it impossible for the Prosecutor to protect witnesses merely re-litigates a matter already addressed by the Appeals Chamber.

text: Regarding the Pre-Trial Chamber’s decision to postpone the confirmation hearing, the Appeals Chamber finds that Mr Abd-Al-Rahman mischaracterises the Pre- Trial Chamber’s finding. In that decision, the Pre-Trial Chamber did not find that the Prosecutor had violated its instructions in relation to the setting up of mechanisms for the protection of her witnesses; rather, it found that the Prosecutor had violated its instruction on applying for an extension of time. In the relevant section of the decision, the Pre-Trial Chamber noted the Prosecutor’s explanations regarding the situation about witness protection measures and stated that

text: [i]t accepts that the Prosecutor has made genuine efforts under difficult circumstances and that it has proved impossible to resolve all issues. At the same time, the information provided by the Prosecutor suggests that there is hope of making some significant further progress in the relatively near future in relation to the 23 witnesses whose security situation has not yet been resolved. Under these circumstances, the Chamber is prepared to grant the Prosecutor some additional time.

text: 50 Appeal Brief, paras 22, 24, referring to Decision on the Prosecutor’s Second Request to Postpone the Confirmation Hearing and Requests for Variation of Disclosure Related Time Limits, 18 December 2020, ICC-02/05-01/20-238, (the ‘Decision on Confirmation Postponement’). 51 Abd-Al-Rahman OA Appeals Judgment, para. 26. 52 Abd-Al-Rahman OA Appeals Judgment, para. 27. 53 Decision on Confirmation Postponement, paras 10-11, 25. 54 Decision on Confirmation Postponement, para. 23.

text: No: ICC-02/05-01/20 OA6 13/16

text: This is consistent with the Pre-Trial Chamber’s finding in the Impugned Decision holding that there was ‘no indication that the Prosecutor did not take all feasible steps under the circumstances to comply with [the instruction about the witness protection measures]’. Therefore, the Appeals Chamber finds Mr Abd-Al-Rahman’s arguments regarding the Pre-Trial Chamber’s contradictory findings about the Prosecutor’s protection of witnesses to be unfounded.

text: In light of the foregoing, Mr Abd-Al-Rahman failed to show an error on the part of the Pre-Trial Chamber and, accordingly, his second ground of appeal is rejected.

text: Third ground of appeal

text: Under his third ground of appeal, Mr Abd-Al-Rahman argues that the Pre-Trial Chamber erred in law and fact in failing to consider the particular circumstances relating to his detention and its impact on his health. In this regard, the Pre-Trial Chamber held that, as Mr Abd-Al-Rahman’s health condition had improved, there was no basis for release on humanitarian grounds.

text: The Appeals Chamber recalls that the release from detention on humanitarian grounds is not expressly addressed in

text: the Statute

text: . The Impugned Decision concerned a review of detention under

text: article 60

text: (3) of

text: the Statute

text: . Neither

text: articles 58

text: nor 60 of

text: the Statute

text: , nor rule 199 of the Rules refer to the medical condition of the detained person when a chamber is considering interim or conditional release. Furthermore, regulation 103 of the Regulations of the Court assumes that medical problems of detained persons are treated within the detention centre. Here, the Appeals Chamber observes that Mr Abd-Al-Rahman did not produce any medical records upon which the Pre-Trial Chamber could base a decision to release him, with conditions or otherwise. In his

text: 55 Impugned Decision, para. 31. 56 Appeal Brief, paras 26-29. 57 Impugned Decision, para. 34. 58 Appeals Chamber, The Prosecutor v. Laurent Koudou Gbagbo, Judgment on the appeal of Mr Laurent Koudou Gbagbo against the decision of Pre-Trial Chamber I of 13 July 2012 entitled “Decision on the ‘Requête de la Défense demandant la mise en liberté provisoire du président Gbagbo’”, 26 October 2012,

text: -Red (OA) (confidential version registered on the same date (ICC-02/11-01/11- 278-Conf (OA)), para. 86.

text: No: ICC-02/05-01/20 OA6 14/16 submissions, he simply made an unsubstantiated claim that [REDACTED]. The Appeals Chamber finds these claims to be speculative.

text: In addition, Mr Abd-Al-Rahman refers to [REDACTED] and argues that the Pre- Trial Chamber committed an error of fact in disregarding [REDACTED]. The Appeals Chamber rejects this argument because Mr Abd-Al-Rahman did not refer to [REDACTED] in his submissions before the Pre-Trial Chamber and it, therefore, could not have taken into account that information.

text: Finally, Mr Abd-Al-Rahman also argues that the Pre-Trial Chamber erred in law by not taking into account the statement of the Council of Europe on the treatment of detained persons during the COVID-19 pandemic. The Appeals Chamber notes that Mr Abd-Al-Rahman did not raise this argument before the Pre-Trial Chamber; hence it could not have consider it when carrying out its review. In any event, even if this argument had been before the Pre-Trial Chamber, the Appeals Chamber observes that this non-binding statement of principles suggests that ‘efforts should be made’ to resort to ‘alternatives to deprivation of liberty’ to avoid close personal contact, in particular 62 63 in ‘situations of overcrowding’. This is stated in one of the ten principles. The other nine principles relate to the proper treatment of detained persons in the context of the COVID-19 pandemic while in detention, with special medical attention for those detained persons who are older. Far from requiring release, the Appeals Chamber finds that these principles in fact suggest that measures can be taken to protect the health and safety of detained persons while in detention. The Appeals Chamber notes that Mr Abd- Al-Rahman did not request any special measures in his submissions before the Pre-

text: 59 Appeal Brief, para. 26. 60 Appeal Brief, para. 28. 61 Appeal Brief , para. 29. 62 Council of Europe, Statement of principles relating to the treatment of persons deprived of their liberty in the context of the coronavirus disease (COVID-19) pandemic, issued on 20 March 2020, CPT/Inf(2020)13. 63 Principle no. 5: ‘As close personal contact encourages the spread of the virus, concerted efforts should be made by all relevant authorities to resort to alternatives to deprivation of liberty. Such an approach is imperative, in particular, in situations of overcrowding. Further, authorities should make greater use of alternatives to pre-trial detention, commutation of sentences, early release and probation; reassess the need to continue involuntary placement of psychiatric patients; discharge or release to community care, wherever appropriate, residents of social care homes; and refrain, to the maximum extent possible, from detaining migrants’. No: ICC-02/05-01/20 OA6 15/16

text: Trial Chamber. Therefore, the Appeals Chamber finds that the Pre-Trial Chamber did not err in law by failing to take into account these principles. 42. Accordingly, the Appeals Chamber rejects Mr Abd-Al-Rahman’s third ground of appeal.

text: V. APPROPRIATE RELIEF

text: In an appeal pursuant to

text: article 82

text: (1)(b) of

text: the Statute

text: , the Appeals Chamber may confirm, reverse or amend the decision appealed (rule 158(1) of the Rules). In the present case, for the reasons set out above, the Appeals Chamber rejects Mr Abd-Al- Rahman’s three grounds of appeal, and confirms the Impugned Decision. Judge Eboe-Osuji appends a separate opinion to this judgment. Done in both English and French, the English version being authoritative.

text: _____________________________ ____________________________ Judge Piotr Hofmański Presiding

text: th Dated this 5 day of February 2021 At The Hague, The Netherlands

text: No: ICC-02/05-01/20 OA6 16/16


court: icc

doctype: admissibility

identifier: ICC-02/05-01/20 (Decision on the Defence ‘Exception d’incompétence’ (ICC-02/05-01/20-302))

caseName: The Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman ("Ali Kushayb")

chamber: Pre-Trial Chamber II

decisionType: admissibility

publisher: International Criminal Court

title: Decision on the Defence ‘Exception d’incompétence’ (ICC-02/05-01/20-302)

text: the Statute

text: the Statute, article 11

text: the Statute, article 115

text: the Statute, article 12

text: the Statute, article 127

text: the Statute, article 13

text: the Statute, article 16

text: Rome Statute, article 19

text: the Statute, article 2

text: the Statute, article 21

text: the Statute, article 22

text: the Statute, article 24

text: the Statute, article 5

text: Rome Statute, article 57

text: the Statute, article 58

text: the Statute, article 6

text: the Statute, article 7

text: the Statute, article 8

text: the Statute, article 87

text: PRE-TRIAL CHAMBER II

type: rubrik

text: Before: Judge Rosario Salvatore Aitala, Presiding Judge Judge Antoine Kesia-Mbe Mindua Judge Tomoko Akane

type: stycke

text: SITUATION IN DARFUR, SUDAN

text: IN THE CASE OF

text: THE PROSECUTOR v. ALI MUHAMMAD ALI ABD-AL-RAHMAN (‘ALI KUSHAYB’)

text: Public

text: Decision on the Defence ‘Exception d’incompétence’ (ICC-02/05-01/20-302)

text: No: ICC-02/05-01/20 1/18 17 May 2021

text: Decision to be notified in accordance with regulation 31 of the Regulations of the Court to:

text: The Office of the Prosecutor Counsel for the Defence

text: Ms Fatou Bensouda Mr Cyril Laucci Mr Julian Nicholls

text: Legal Representatives of Victims Legal Representatives of Applicants

text: Ms Amal Clooney Mr Nasser Mohamed Amin Abdalla

text: Unrepresented Victims Unrepresented Applicants for Participation/Reparations

text: The Office of Public Counsel for Victims The Office of Public Counsel

text: Ms Paolina Massidda for the Defence

text: States Representatives Amicus Curiae

text: REGISTRY

text: Registrar Counsel Support Section

text: Mr Peter Lewis

text: Victims and Witnesses Unit Detention Section

text: Victims Participation and Reparations Other Section

text: No: ICC-02/05-01/20 2/18 17 May 2021

text: PRE-TRIAL CHAMBER II (the ‘Chamber’) of the International Criminal Court (the ‘Court’), in the case of The Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman (‘Ali Kushayb’), having regard to

text: articles 19

text: and

text: (2)(a) of the

text: Rome Statute

text: (the ‘Statute’) and rules 58 and 59 of the Rules of Procedure and Evidence (the ‘Rules’), issues this Decision on the Defence ‘Exception d’incompétence’.

text: I. PROCEDURAL HISTORY

text: On 31 March 2005, by adopting Resolution 1593 (2005) (‘Resolution 1593’) the United Nations Security Council (the ‘UN Security Council’ or ‘UNSC’) referred to the Prosecutor the situation in Darfur, Sudan, as of 1 July 2002, pursuant to

text: article 13

text: (b) of

text: the Statute

text: (the ‘Referral’). 2. On 27 April 2007, Pre-Trial Chamber I issued a warrant of arrest against Mr Abd- Al-Rahman for crimes against humanity and war crimes allegedly committed in the localities of Kodoom, Bindisi, Mukjar, Arawala and their surrounding areas (Darfur, Sudan) between August 2003 and March 2004 (the ‘First Warrant of Arrest’). On 16 January 2018, Pre-Trial Chamber II, in its previous composition, issued a second warrant of arrest against Mr Abd-Al-Rahman for crimes against humanity and war crimes allegedly committed in the locality of Deleig and surrounding areas (Darfur, Sudan) between on or about 5 to 7 March 2004 (the ‘Second Warrant of Arrest’).

text: On 9 June 2020, Mr Abd-Al-Rahman surrendered himself to the Court; on 15 June 2020, he made his first appearance before Judge Rosario Salvatore Aitala, acting 5 6 as Single Judge on behalf of Pre-Trial Chamber II. Upon the Prosecutor’s requests, the date for the commencement of the confirmation of charges hearing, initially set for

text: 1 S/RES/1593 (2005). 2 Decision on the Prosecution Application under

text: Article 58

text: (7) of

text: the Statute

text: , ICC-02/05-01/07-1-Corr; Warrant of arrest for Ali Kushayb,

text: -Corr. Second warrant of arrest for Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”), ICC-02/05-01/07- 74-Conf (public redacted version notified on 11 June 2020,

text: -Red). 4 Transcript of hearing, ICC-02/05-01/20-T-001-ENG. 5 Decision on the designation of a Single Judge, 9 June 2020, ICC-02/05-01/07-80. 6 Corrected Version of “Prosecution’s request to postpone the confirmation hearing”, 16 September 2020, ICC-02/05-01/20-157-Conf-Exp-Corr (confidential and public redacted versions notified on the same day, ICC-02/05-01/20-157-Conf-Red-Corr and ICC-02/05-01/20-157-Corr-Red); Prosecution’s second request to postpone the confirmation hearing and related deadlines, 3 December 2020, ICC-02/05-01/20- 218-Conf (public redacted version notified on 4 December 2020, ICC-02/05-01/20-218-Red).

text: No: ICC-02/05-01/20 3/18 17 May 2021

text: 7 December 2020, was later postponed, together with all related time limits, first to 22 7 8 February 2021 and then to 24 May 2021. 4. On 15 March 2021, the Defence submitted its ‘Exception d’incompétence’ challenging the jurisdiction of the Court in the present case pursuant to

text: article 19

text: (2)(a) of

text: the Statute

text: (the ‘Jurisdictional Challenge’ or ‘Challenge’). 5. On 19 March 2021, the Prosecutor filed the ‘Prosecution’s request to set out a procedure under rule 58(2) with respect to the Defence’s challenge of the Court’s jurisdiction (ICC-02/05-01/20-302)’, (i) requesting ‘the Chamber to permit the Prosecution, and other participants, to provide observations by 16 April 2021’; and (ii) suggesting ‘that Sudan be afforded the opportunity to provide observations to the Challenge by 3 May 2021’. 6. On 22 March 2021, the Defence filed its ‘Réponse à la Requête ICC-02/05-01/20- 313’, requesting the Chamber inter alia to (i) reject the Prosecutor’s request; and (ii) issue its decision on the Challenge as soon as possible before 24 May 2021. 7. On the same day, the Office of Public Counsel for Victims (the ‘OPCV’) filed the ‘Response on behalf of Victims to the Prosecution’s Request to set a procedure under Rule 58(2) of the Rules of Procedure and Evidence’, submitting inter alia that ‘Counsel […] will need at least 4 weeks to be able to present meaningful submissions on behalf of the victims’ and that ‘Sudan should be invited to file its observations by the deadline eventually established by the Chamber for the submissions of all other participants’.

text: On 25 March 2021, by its ‘Order setting time limits for submissions in relation to the Defence Exception d’incompétence (ICC-02/05-01/20-302)’, the Chamber decided that the Prosecutor, the UN Security Council, the victims and victim applicants

text: 7 Decision on Prosecutor’s Request for Postponement of the Confirmation Hearing and related deadlines, 2 November 2020, ICC-02/05-01/20-196. 8 Decision on the Prosecutor’s Second Request to Postpone the Confirmation Hearing and Requests for Variation of Disclosure Related Time Limits, 18 December 2020, ICC-02/05-01/20-238. 9 ICC-02/05-01/20-302. 10 ICC-02/05-01/20-313. 11 ICC-02/05-01/20-315. 12 ICC-02/05-01/20-318. 13 ICC-02/05-01/20-321.

text: No: ICC-02/05-01/20 4/18 17 May 2021 who had already communicated with the Court may submit written observations by no later than Friday, 16 April 2021 and clarified that this determination was ‘[w]ithout prejudice to [its] assessment as to the correct legal qualification of the matters raised’ in the Challenge. 9. On 16 April 2021, the Prosecutor submitted the ‘Prosecution’s response to the Defence challenge to the Court’s jurisdiction (ICC-02/05-01/20-302)’, requesting the Chamber to reject the Jurisdictional Challenge (the ‘Prosecutor’s Observations’). 10. On the same day, the OPCV and the Legal Representatives of Victims (the ‘LRVs’) respectively filed the ‘Submissions on behalf of Victims on the Defence’s Challenge to the Court’s Jurisdiction (“Exception d’incompétence” ICC-02/05-01/20- 302)’ (the ‘OPCV Observations’) and the ‘Response on behalf of the Victims to the Defence Exception d’incompétence (ICC-02/05-01/20-302)’ (the ‘LRVs Observations’), both requesting the Chamber to dismiss the Jurisdictional Challenge.

text: II. SUBMISSIONS

text: Defence for Mr Abd-Al-Rahman

text: The Defence requests the Chamber to find that the Court has no jurisdiction in the Abd-Al-Rahman case based on two grounds, the first of which based on arguments revolving around the alleged illegality of the UNSC Referral (the ‘First Ground’). In the Defence’s submission, if Resolution 1593 were to be found illegal the Court would be deprived of its jurisdiction in the Abd-Al-Rahman case, since that Resolution and the Referral contained in it constitute the sole trigger of the Court’s jurisdiction in the case. The legality of Resolution 1593 is questioned by the Defence based on the following arguments:

text: (i) Darfur, as opposed to Sudan as a whole, would not constitute a ‘situation’ suitable to be referred to the Court pursuant to

text: article 13

text: (b) of

text: the Statute

text: : according to the Defence, limiting a referral to a specific geographical area within the boundaries of a State would be contrary both to the intention of the drafters of

text: the Statute

text: and to the practice of the Court; in the specific instance of Darfur,

text: 14 ICC-02/05-01/20-347. 15 ICC-02/05-01/20-348. 16 ICC-02/05-01/20-351. No: ICC-02/05-01/20 5/18 17 May 2021 this would also be erroneous since Darfur ‘ne fait l’objet d’aucune définition légale contemporaine’ and ‘n’avait aucune existence légale ou administrative en 2005’. In the Defence’s submission, at the time of the adoption of Resolution 1593, the UNSC could only have referred to the Court under Chapter VII of the United Nations Charter the Situation in Sudan as a whole; by restricting the territorial scope of the referred situation to Darfur, the UNSC would have operated an unwarranted preselection of the crimes and cases that may fall within the Court’s jurisdiction in connection with that situation, which would be in violation of

text: article 13

text: (b) of

text: the Statute

text: and therefore invalidate both Resolution 1593 and the Referral operated by it (‘First Argument’);

text: (ii) paragraph 7 of Resolution 1593, stating that expenses incurred in connection with the Referral shall be borne by States Parties and not by the United Nations, would be in violation both of

text: article 115

text: (b) of

text: the Statute

text: , stating inter alia that expenses related to a referral by the UNSC shall in particular be provided by the United Nations, and of

text: article 13

text: of

text: the Statute

text: , requiring that the Court’s exercise of jurisdiction be in accordance with the provisions of

text: the Statute

text: (‘Second Argument’);

text: (iii) UN Security Council Resolution 2559 (2020), adopted on 22 December 2020 and terminating the mandate of the African Union-United Nations Hybrid Operation in Darfur (‘UNAMID’) (‘Resolution 2559’), would have also resulted in invalidating Resolution 1593, in particular by depriving the Court of the logistical and security support essential to the conduct of its activities in Sudan. Furthermore, Resolution 2559 would also have violated

text: articles 2

text: and

text: (6) of

text: the Statute

text: , respectively referring to the agreement governing the relationship between the Court and the United Nations and providing that the Court must be able to rely on the cooperation of an international organisation such as the United Nations; accordingly, the Referral itself would also have been invalidated by Resolution 2559 (‘Third Argument’). 12. The second ground relied upon by the Challenge is based on the assertion that, since Sudan was not a State Party to

text: the Statute

text: at the time of the Referral and of the events underlying the First and the Second Warrant of Arrest, the principles of nullum crimen sine lege and of non-retroactivity ratione personae of criminal law, respectively

text: No: ICC-02/05-01/20 6/18 17 May 2021 enshrined in

text: articles 22

text: (1) and

text: (1) of

text: the Statute

text: , would restrict the Court’s ability to exercise its jurisdiction to crimes against humanity and war crimes committed in the context of a non-international armed conflict, as respectively defined in

text: articles 7

text: and

text: of

text: the Statute

text: , only to the extent that those crimes, at the time of their alleged commission, were defined as such either in Sudan’s domestic law or in the international treaty and/or customary law applicable to Sudan (the ‘Second Ground’). Since, in the Defence’s submission, neither of these sources of law provided for the crimes against humanity and war crimes charged against Mr Abd-Al-Rahman at the time of their alleged commission, and the conflict ongoing in Sudan at the time of the events relevant to the charges was non-international in nature, the need to comply with the principles set forth in

text: articles 22

text: (1) and

text: (1) of

text: the Statute

text: would deprive the Court of its jurisdiction.

text: The Prosecutor

text: The Prosecutor submits that the ‘Defence submissions lack merit because they mistake the Court’s legal framework and the operation of referrals by the United Nations Security Council […], and improperly repeat previous submissions’. 14. With regard to the First Ground of the Challenge, the Prosecutor notes that ‘[t]here is no requirement that the territorial scope of a situation coincides with, or extends to, the totality of a State territory’ and that, accordingly, the territorial scope of the situation referred by UNSC Resolution 1593, i.e. Darfur, ‘is consistent with the Court’s legal framework and the Prosecutor’s obligations to investigate independently and objectively’. Moreover, the Prosecutor submits that the Second and Third Arguments of the Defence ‘are not only incorrect but also fail to raise any jurisdictional matters, and impermissibly attempt to re-litigate unsuccessful arguments from previous filings’: as such, they should both be dismissed in limine. More specifically, in the Prosecutor’s submission (i) ‘those aspects of UNSC Resolution 1593 relating to the financial responsibilities of the Assembly of States Parties’ do not ‘affect the Court’s judicial functions, or infringe upon

text: article 115

text: (b) of

text: the Statute

text: ’; and, (ii) ‘since the Court’s jurisdiction in Darfur is not contingent upon UNAMID’s presence in Darfur, withdrawal of UNAMID’s mandate (and its replacement) is unrelated to the exercise of the Court’s jurisdiction in Darfur’.

text: No: ICC-02/05-01/20 7/18 17 May 2021

text: As to the Second Ground of the Challenge, the Prosecutor submits that ‘the crimes charged in this case are fully consistent with […] the principle of legality’, as enshrined in

text: articles 22

text: (1) and

text: (1) of

text: the Statute

text: , and that the Defence would have mischaracterised their nature and scope. The Prosecutor takes the view that (i) the crimes against humanity and war crimes proscribed by

text: articles 7

text: and

text: of

text: the Statute

text: were evidently crimes falling within the jurisdiction of the Court in 2003 and 2004, i.e. at the time when the charged conducts occurred, since

text: the Statute

text: had already entered into force; and (ii) ‘[a] reasonable person in the position of Mr Abd-Al-Rahman was on reasonable notice, at the material time, that the charged conduct was criminal, not only on the basis of

text: the Statute

text: but also customary international law and even Sudanese domestic law’.

text: The OPCV and the LRVs

text: Both the OPCV and the LRVs submit that the Challenge should be rejected. 17. In the view of the OPCV, to the extent that both the First and the Second Grounds ‘put into question the legality of Resolution 1593 (2005) and the ensuing referral under

text: article 13

text: (b) of

text: the Statute

text: ’, the Challenge ‘must be dismissed in limine as the Chamber lacks the authority to review the legality of a Security Council resolution’. Should the Chamber find that it has the authority to address the arguments raised by the Defence, the OPCV notes that the UNSC ‘validly referred the Situation in Darfur […] in adopting Resolution 1593 (2005) and correctly identified its temporal and territorial parameters in accordance with the Court’s legal framework and practice’, namely in light of the fact that ‘the definition of the term ‘situation’ before the ICC has never been interpreted as necessarily encompassing the entirety of a State territory’. As regards the Defence’s arguments concerning the ‘financial resource management of the Court’s activities, and the question of UN funding in relation to expenses incurred due to referrals by the UN Security Council’, and ‘the UN cooperation, Court’s diplomacy, and in particular any impact of Security Council Resolution 2559 on the future prospects for logistical or security support to the Court’s activities and investigative missions in Sudan’, the OPCV takes the view that, even assuming that the Defence would have standing to address those matters, none of the issues it raises ‘affects the legality of Resolution 1593 (2005)’ and, therefore, the Court’s jurisdiction over the Situation in Darfur and the present case.

text: No: ICC-02/05-01/20 8/18 17 May 2021

text: With regard to the Second Ground of the Challenge, the OPCV submits that ‘the Defence’s arguments are based on a blatant misinterpretation of

text: the Statute

text: ’s relevant provisions’, in particular

text: articles 13

text: (b), 22 and 24 of

text: the Statute

text: . The OPCV asserts that (i) ‘Security Council referrals are necessarily retrospective’ and that the ‘limit to their retroactivity coincides with the date of the entry into force of

text: the Statute

text: ’, i.e. 1 July 2002: accordingly, the crimes of which Mr Abd-Al-Rahman is charged would ‘fall therefore squarely within the temporal scope of the Security Council’s referral’; furthermore, (ii) as member State of the United Nations, ‘Sudan has an obligation since 1 July 2002 to accept the material jurisdiction of the Court following a referral by the Security Council under Chapter VII of the UN Charter and

text: article 13

text: (b) of

text: the Statute

text: ’. 19. As to the First Ground of the Challenge, the LRVs submit that the UNSC Referral of the Situation in Darfur by Resolution 1593 does not violate any statutory provision, since (i)

text: the Statute

text: ‘does not limit the definition of a ‘situation’ to one relating to an entire state’, nor would there be a legal basis for ‘the legal authority of the Security Council to pass a resolution limited to a geographically delimited part of a country’ to be restricted; (ii) ‘the question of whether the United Nations has provided funding to the Court has no bearing on the issue of jurisdiction’; and (iii) the Defence has not sufficiently demonstrated ‘how termination of a peacekeeping mandate by the United Nations Security Council can be held to violate’

text: the Statute

text: ’s provisions. 20. As to the Second Ground of the Challenge, the LRVs take the view that the Court’s exercise of jurisdiction over the crimes alleged in the First and the Second Warrant of Arrest issued against Mr Abd-Al-Rahman is in accordance with the principle of legality. First, ‘[i]t is well established that war crimes and crimes against humanity were crimes under customary international law in 2003-2004, the time of the relevant conduct in this case’ and that the conduct was also criminalised under the general principles of law; second, since ‘the charges at issue in this case relate to 2003 and later’, the requirement of

text: article 24

text: (1) of

text: the Statute

text: ‘that the Court not adjudicate crimes committed before 1 July 2002’ is likewise fulfilled.

text: III. DETERMINATION BY THE CHAMBER

text: The Chamber notes

text: articles 2

text: and

text: of

text: the Statute

text: No: ICC-02/05-01/20 9/18 17 May 2021

text: A. Preliminary considerations: the timing of the Challenge

text: At the outset, the Chamber highlights that all but one of the elements relied upon in support of either the First or the Second Ground (namely, the terms of the Referral; the type of crimes charged against the suspect; and the specific questions allegedly arising in connection with the principles of legality and non-retroactivity of criminal law, as respectively enshrined in

text: articles 22

text: and

text: of

text: the Statute

text: ), existed and were known to the Defence since Mr Abd-Al-Rahman’s initial appearance before the Court; only the matter regarding the consequences on the Referral of UNSC Resolution 2559 (adopted and entered into force on 22 December 2020) came into existence during these proceedings. 23. The Chamber is cognisant that, as stated by the Defence, the jurisdiction of the Court may only be challenged once by a person or State and that

text: the Statute

text: only restricts a party’s discretion as to the time when this challenge should be brought by providing that, bar exceptional circumstances, this must happen prior to or at the commencement of the trial (

text: article 19

text: (4) of

text: the Statute

text: ). Accordingly, the choice of delaying the submission of the Challenge until this advanced stage of the proceedings cannot per se be considered as amounting to abuse of process, despite the fact that most of the arguments relied upon by the Defence existed or occurred at a date earlier than the suspect’s first appearance and that dozens of filings and decisions obviously premised on the existence of the Court’s jurisdiction have been submitted since then. 24. By the same token, the Chamber notes that some features of the Challenge might qualify as dubious in terms of good faith. First, the reiteration of lines of arguments previously submitted – and rejected – in various forms and before various instances; second, the choice to rely on an argument centred upon the non- international character of the conflict in Sudan, on which the Prosecutor and the Defence had just reached an agreement, thereby resulting in curtailing to some extent the Prosecutor’s very ability to respond to the argument.

text: B. The First Ground

text: First Argument: The Darfur situation does not constitute a ‘situation’ in accordance

text: with

text: the Statute

text: The concept and term of ‘situation’ has been devised, included in

text: the Statute

text: and construed with a view to identifying a specific set of events in respect of which credible No: ICC-02/05-01/20 10/18 17 May 2021 allegations of crimes are made, and hence to define and circumscribe the perimeter of the action of the Court. As such, it is instrumental in determining the scope of any investigation and prosecution and has its own precise meaning, which differs both from the one of ‘case’ and from the one of ‘territory of a State’ or ‘State’. As clarified by Pre-Trial Chamber I in the situation in the Democratic Republic of the Congo, and subsequently in the case of The Prosecutor v. Callixte Mbarushimana arising within it, a situation is ‘generally defined in terms of temporal, territorial and in some cases personal parameters’, possibly including ‘not only crimes that had already been or were being committed at the time of the referral, but also crimes committed after that time, in so far as they are sufficiently linked to the situation of crisis which was ongoing at the time of the referral’. 26. Accordingly, because of its specific meaning and function, the term ‘situation’ is other than the one of a ‘State’; the territorial scope of a State, on the one hand, and the territorial scope of a situation as the subject matter of a referral to the Court, on the other hand, do not necessarily overlap. It is therefore possible to envisage a situation both extending beyond, and restricted to a specific area located within, the territory of one State, as well as several situations within the territorial boundaries of one and the same State.

text: Article 13

text: of

text: the Statute

text: adopts the term ‘situation’ to identify the subject matter of a referral by the UN Security Council acting under Chapter VII of the United Nations Charter, without any further qualification; there is therefore no element indicating or otherwise warranting that a different approach should be taken when construing the term in the particular context of a Security Council referral. 27. In light of the above, it is unnecessary for the Chamber to address the Defence’s argument to the effect that, as a matter of internal territorial organisation of the State of Sudan, Darfur did not legally and administratively exist in 2005: since a situation is defined by the scope of the criminal action allegedly committed within it, rather than by pre-determined boundaries established for other purposes as a matter of

text: 17 Decision on the Applications for participation in the proceedings of VPRS 1, VPRS 2,VPRS 3,VPRS 4,VPRS 5 and VPRS 6 (Public Redacted Version), 17 January 2006 (notified on 19 January 2006), ICC- 01/04-101-tEN-Corr, para. 65. 18 Decision on the “Defence Challenge to the Jurisdiction of the Court”, 26 October 2011, ICC-01/04- 01/10-451, para. 16. No: ICC-02/05-01/20 11/18 17 May 2021 administrative or international law, it is irrelevant to assess the accuracy of that argument for the purposes of this decision. Second Argument: Resolution 1593 would be incompatible with article 115(b) of the

text: Statute

text: The issue of the financial contribution of the United Nations to the investigation and prosecution of cases arising from the Situation in Darfur was first raised by the Defence in its ‘Requête en vertu de l’Article 115-b’, dated 26 June 2020, and has since 20 21 been reiterated both before this Chamber and the Presidency. As the Chamber stated in its ‘Decision on the Defence request under

text: article 115

text: (b) of the

text: Rome Statute

text: ’ dated 23 July 2020, and reiterated when adjudicating the Defence’s request for leave to appeal that decision on 13 August 2020, ‘the Defence has no legal standing to either evaluate nor provide recommendations regarding the Court’s financial management’; furthermore, since ‘the Court’s statutory framework clearly distinguishes the role of the Court, as a judicial institution’ from that of the Assembly of States Parties, ‘which is responsible for considering and deciding on the Court’s budget’, ‘[t]here is no legal basis for the Chamber to engage in the financial matters of the Court’ and, regardless of the adequacy or appropriateness of financial conditions or arrangements relating to the Court, the judiciary ‘cannot play any role in the budgetary process, let alone in the negotiation of any financial agreements’. 29. The Chamber regrets and strongly censors the Defence decision to, yet again, try and have a previously rejected argument considered under a different angle. The weakness of the purported link between the Second Argument and the matter of jurisdiction is all too apparent from its very wording, which tries to hide the duplicative nature of the strategy by focusing on the alleged difference in petitum between the Challenge and previous requests, while failing to provide any reasoning as to how or

text: 19 ICC-02/05-01/20-10. 20 Demande d'autorisation d'interjeter appel de la “Decision on the Defence Request under

text: Article 115

text: (b) of the

text: Rome Statute

text: ” (ICC-02/05-01/20-101), 27 July 2020, ICC-02/05-01/20-105; Demande de reconsideration de la Décision ICC-02/05-01/20-110, 13 August 2020, ICC-02/05-01/20-113. 21 Requête en vertu des Articles 38-3-a, 43-2 et 115-b, 25 September 2020, ICC-02/05-01/20-165. 22 ICC-02/05-01/20-101. 23 Decision on the Defence Request for Leave to Appeal the ‘Decision on the Defence request under

text: article 115

text: (b) of the

text: Rome Statute

text: ’, ICC-02/05-01/20-110. No: ICC-02/05-01/20 12/18 17 May 2021 why a matter relating to the financial operation of the Court would have an impact on its jurisdiction. 30. The Chamber notes that reiterating one and the same argument for multiple purposes (and even before different fora) is a recurrent element of the strategy pursued by the Defence throughout these proceedings; a fact which has not escaped the attention of the Presidency. Called to ‘take appropriate measures to obtain funding from the United Nations […] in respect of the Darfur situation’, on the basis of a request relying on virtually the same arguments previously raised before this Chamber, and rejected by it, the Presidency dismissed the Defence request in limine, after pointing out that ‘duplication of proceedings is unwarranted, interferes with the expeditious administration of justice and may even be considered an abuse of process’. Third Argument: Resolution 1593 would have been replaced by Resolution 2559 in

text: December 2020 and would therefore now be obsolete

text: Similar flaws affect the Third Argument developed in support of the First Ground of the Challenge. Considerations relating to the perceived inadequacy of the support provided by the State of Sudan and/or the United Nations missions in Sudan has been repeatedly invoked as the basis for a series of requests to the Chamber, broadly referring to the Defence’s ability to carry out investigations in Sudan. The Chamber notes that no serious attempt is made to explain how this would relate and affect the jurisdictional parameters of the Court’s action and recalls that, in any event, as also stated by the Presidency, ‘issues concerning the general administration of the Court, including in matters of diplomatic relations, do not give rise to an entitlement to a remedy for parties in proceedings’ (emphasis added).

text: 24 Decision on the ‘Requête en vertu des Articles 38-3-a, 43-2 et 115-b’ dated 25 September 2020 (ICC- 02/05-01/20-165), 12 October 2020, ICC-02/05-01/20-180, para. 6. 25 Requête en vertu des Articles 4-2 et 68-1 du Statut, 14 December 2020, ICC-02/05-01/20-231-Conf- Exp (public redacted version notified on the same day, ICC-02/05-01/20-231-Red); Requête en vertu des Articles 2, 67-1-b et 87-6 du Statut et de la Norme 24bis-1 du Règlement de la Cour, 26 January 2021, ICC-02/05-01/20-269; Requête en vertu de l’Article 43-1 du Statut et de la Règle 13 du Règlement de Procédure et de Preuve with confidential ex parte Annexes 1-4, 29 January 2021, ICC-02/05-01/20-272- Conf-Exp (public redacted version notified on the same day, ICC-02/05-01/20-272-Red); Requête aux fins d’audience, 22 March 2021, ICC-02/05-01/20-317-Conf (public redacted version notified on the same day); Nouvelle Requête aux Fins de Convocation Urgente d’une Audience, 9 April 2021, ICC- 02/05-01/20-336. 26 Decision on the ‘Requête en vertu des Articles 38-3-a, 43-2 et 115-b’ dated 25 September 2020 (ICC- 02/05-01/20-165), 12 October 2020, ICC-02/05-01/20-180, para. 4. No: ICC-02/05-01/20 13/18 17 May 2021

text: For the purposes of this decision, it is therefore not necessary for the Chamber to comprehensively review the features of Resolution 2559, or to assess in detail the accuracy of the Defence’s assumptions as to its possible impact vis-à-vis other instruments governing the action of the United Nations and its field missions in Sudan. Suffice it to say, however, that (i) neither the Referral, nor Resolution 1593 are mentioned in Resolution 2559; (ii) the Preamble of Resolution 2559, far from making Resolution 1593 obsolete, explicitly reaffirms ‘all its previous resolutions […] concerning the situation in Sudan’ (emphasis added); and (iii) through Resolution 2559, the UNSC, by urging ‘the Government of Sudan to fully and swiftly implement the national Plan for Civilian Protection and to protect civilians in Darfur in accordance with international human rights law and international humanitarian law’, reaffirms its determination to pursue the aim of protecting civilians in Sudan, notwithstanding the end of the mandate of the UNAMID and including through the United Nations Integrated Transition Assistance Mission in Sudan (the ‘UNITAMS’), which counts among its objectives to ‘[a]ssist, advise and support the Government of Sudan to establish a secure and stable environment […] by providing effective support to national and local authorities on civilian protection […] in the conflict-affected areas [and] supporting the Government of Sudan in implementing the National Plan for Civilian Protection (S/2020/429)’. 33. More fundamentally, the Chamber notes that the very idea that the effect of an act triggering the jurisdiction of the Court could be simply taken away by a subsequent act – and one not even relating to the same subject matter – runs counter to fundamental and critical features of the system governing the exercise of the Court’s jurisdiction, as enshrined in

text: the Statute

text: as a whole. Specific mechanisms and guarantees have been built into

text: the Statute

text: precisely against the risk that, once established, the jurisdiction of the Court could be taken away by a simple act purportedly endowed with a contrary effect. The withdrawal of a State Party from

text: the Statute

text: , whilst provided for under

text: article 127

text: and therefore possible, has no effect on the previously established jurisdiction of the Court and takes effect only one year after the date of its receipt at the earliest; also, it has no impact either on already ongoing proceedings or on duties of

text: 27 S/RES/2559 (2020), para. 4; see also S/2020/429. 28 S/RES/2524 (2020), para. 2(iii)(c). No: ICC-02/05-01/20 14/18 17 May 2021 cooperation with the Court in connection with investigations and proceedings having commenced prior to the date on which the withdrawal became effective, nor does it otherwise prejudice ‘the continued consideration of any matter which was already under consideration by the Court’ prior to that date. 34. Furthermore, specifically in respect of UN Security Council referrals, the situation where the UNSC might consider it desirable to cancel the effects of a previous referral has been considered by the drafters of

text: the Statute

text: , and ruled upon in such a way as to make the Council’s manoeuvring space extremely limited. Once it has referred a situation, the UN Security Council is not allowed to simply withdraw its own act, even if it were willing to do so. Should it consider that an existing referral creates a risk to peace and security, the only possible action for the Council is to try and mitigate its effects on a temporary basis, by requesting a deferral ‘for a period of 12 months’, in compliance with the restrictive procedure set up in

text: article 16

text: of

text: the Statute

text: : the UNSC would have to adopt a resolution under Chapter VII of the United Nations Charter, based on a determination that commencing or proceeding with an investigation or prosecution before the Court on the basis of the original referral would be detrimental to the maintenance of international peace and security; a renewal of that request would have to comply with the same conditions. 35. Against this background, the contention that a subsequent UNSC resolution relating to administrative matters pertaining to the United Nations field missions in Darfur might have an impact or otherwise affect a previous UNSC referral to the Court appears deprived of any legal basis and therefore frivolous.

text: C. The Second Ground

text: The Chamber notes that the present case satisfies all the relevant statutory requirements of jurisdiction: Mr Abd-Al-Rahman is charged with crimes against humanity and war crimes, which are among those provided for in

text: the Statute

text: (jurisdiction ratione materiae), in respect of events having allegedly took place within the perimeters of the territory of Darfur, Sudan (jurisdiction ratione loci) between August 2003 and March 2004, i.e. after the entry into force of

text: the Statute

text: (jurisdiction ratione temporis). Since the requirements relating to the Court’s jurisdiction ratione loci and ratione personae are alternative, and the ratione loci parameter is satisfied, the

text: No: ICC-02/05-01/20 15/18 17 May 2021 fact that the suspect is not a national of a State Party is irrelevant for the purpose of establishing the jurisdiction of the Court. 37. The Defence does not make any convincing attempt at explicitly linking its arguments to any of these parameters of jurisdiction; rather, it seems to frame the Second Ground of the Challenge in such a way that it would have an impact on the temporal element of the Court’s jurisdiction. The Defence appears to suggest that, in order for the Court’s temporal jurisdiction to exist, it would be necessary not only that the charged events took place after the entry into force of

text: the Statute

text: , but also that, at the time of their commission, the relevant crimes were already criminalised and punished as such either by the criminal laws of the State which would ordinarily have jurisdiction, or as a matter of customary international law; in the absence of such criminalisation, a positive finding as to the existence of the jurisdiction of the Court ratione temporis would result in violating the fundamental principles of legality and non-retroactivity of criminal law, as enshrined in

text: articles 22

text: and

text: of

text: the Statute

text: . 38. In the view of the Chamber, the Defence’s argument unduly conflates the issue of jurisdiction and the ones relating to the principle of legality and non-retroactivity of criminal law, relies on a mischaracterisation of their respective purpose and scope and does not find support in the text of

text: the Statute

text: . 39.

text: Article 22

text: (1) (‘Nullum crimen sine lege’), included in Part 3 of

text: the Statute

text: , devoted to ‘General principles of criminal law’, requires that the conduct of the accused person, ‘at the time it takes place’, constituted ‘a crime within the jurisdiction of the Court’, i.e. fell within the jurisdiction ratione materiae of the Court as set forth in

text: articles 5

text: to

text: of

text: the Statute

text: . As put by the Prosecutor, the provision aims at ensuring that the Court ‘does not deviate from the intention of the drafters that it should apply the statutorily defined crimes, and no others’ and fulfils the crucial need to ensure that any potential accused benefit from the possibility to know in advance which acts and conducts may amount to the crimes provided in

text: the Statute

text: . These acts and conducts are listed and defined by

text: the Statute

text: and the Elements of Crimes in sufficient detail as to provide adequate information on which of them are punishable as international criminal offences and therefore suitable to entail criminal responsibility. As to article

text: 29 Prosecutor Observations, para. 10. No: ICC-02/05-01/20 16/18 17 May 2021

text: 24 (‘Non-retroactivity ratione personae’), also included in Part 3 of

text: the Statute

text: , it prevents the Court from exercising its jurisdiction vis-à-vis acts and conducts carried out prior to the entry into force of

text: the Statute

text: , i.e. before 1 July 2002. 40. The case against Mr Abd-Al-Rahman was brought by the Prosecutor before the Court on the basis of provisions detailing the prohibited conduct, which existed and were in force at the time of all of the events underlying the charges. The Chamber is satisfied that, under these circumstances, no violation of the principle of legality or nonretroactivity of criminal law can be detected. 41. Furthermore, the Chamber notes that the referral by the UN Security Council was included in

text: the Statute

text: as a tool suitable to potentially broaden the jurisdictional reach of the Court, namely by allowing it to exercise its jurisdiction vis-à-vis scenarios where crimes as defined in

text: the Statute

text: would be allegedly committed on the territory of States not party to

text: the Statute

text: and no nationals of a State Party would be involved. In the view of the Chamber, the Defence’s reading of the relevant statutory provisions, to the effect that a UNSC referral would only be compliant with the principle of legality and nonretroactivity of criminal law to the extent that it covers conducts already adequately criminalised either by the relevant State or States, or as a matter of customary international law at the time of their commission, would result in restricting its scope to such an extent as to call into question the very raison d’être of that particular triggering mechanism; indeed, adhering to that reading would result in preventing this mechanism from operating precisely vis-à-vis some of the scenarios which convinced the drafters of

text: the Statute

text: of its necessity, in particular those instances where a State is unwilling and/or unable (typically, because of the inadequacy of its own legal system) to investigate and prosecute the most serious crimes. 42. The Chamber is not persuaded by the Defence’s argument. Accordingly, the Second Ground is rejected and it is unnecessary for the Chamber to make a determination as to whether and to what extent, at the time of their commission, the conducts charged against Mr Abd-Al-Rahman were criminalised by either Sudan’s national law or as a matter of international customary law.

text: No: ICC-02/05-01/20 17/18 17 May 2021

text: FOR THESE REASONS, THE CHAMBER HEREBY

text: REJECTS the Defence Jurisdictional Challenge. Done in both English and French, the English version being authoritative.

text: Judge Rosario Salvatore Aitala,

text: Presiding Judge

text: _____________________________ _____________________________

text: Judge Antoine Kesia‐Mbe Mindua Judge Tomoko Akane

text: Dated this Monday, 17 May 2021 At The Hague, The Netherlands

text: No: ICC-02/05-01/20 18/18 17 May 2021

title: The Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman ("Ali Kushayb")

type: avgorande