3.1. Denying Judicial Guarantees in International Armed Conflicts: The War Crime of Denying a Fair Trial

With regard to IACs, Article 8(2)(a)(vi) of the ICC Statute borrows the wording of the GCsFootnote ⁴⁹ and criminalises the act of ‘wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial’Footnote ⁵⁰ as a grave breach of the GCs.

The ICC Elements of Crimes offer further clarification. They establish that the crime is materially satisfied when the perpetrator deprives one or more persons protected under one or more of the GCs of ‘a fair and regular trial by denying judicial guarantees as defined, in particular, in the third and the fourth Geneva Conventions of 1949’.Footnote ⁵¹

The Elements of Crimes first elucidate the necessity of resorting to the GCs to identify the categories of protected persons and infer the judicial guarantees of which violation is relevant for the offence. This seems a logical choice as the crime is derived from the GCs, which also establish the judicial guarantees to be afforded to protected persons during armed conflicts. As observed by Dörman, ‘at least the judicial guarantees mentioned in [GCs III and IV] are crucial for determining whether the trial was fair’.Footnote ⁵²

However, the Elements of Crimes do not refer only to the guarantees included in the GCs. The formula used by the drafters (‘judicial guarantees as defined, in particular, in the third and the fourth Geneva Conventions of 1949’)Footnote ⁵³ favours the inclusion in the material element of the crime of further judicial guarantees – notably, those contained in Article 75 of AP I.Footnote ⁵⁴ To identify the violation of which guarantees is relevant to trigger the crime, it is therefore necessary to interpret the offence in light of the guarantees enshrined in external sources, namely GC III, GC IV and AP I. This interpretative manoeuvre is also warranted by Article 21(1)(b) of the ICC Statute, which authorises the application of ‘[i]n the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict’.

The second important issue that the ICC Elements of Crimes clarify is that the offence under consideration is materially satisfied when ‘a fair and regular trial’ is denied, and this is ‘by denying judicial guarantees’.Footnote ⁵⁵ To comprehend this element, the definition of ‘judicial’ – meaning ‘relating to the administration of justice’ – should be underscored.Footnote ⁵⁶ This entails that ‘judicial guarantees’ is a broader category than the ‘rights to fair trial’ stricto sensu – that is, those referring to the trial itself.Footnote ⁵⁷ The category of ‘judicial guarantees’ comprises not only the rights to a fair trial (and the rights within a fair trial), but all those guarantees related to the criminal proceedings as a whole and their various stages. The Elements of Crimes thus suggest that ‘a fair and regular trial’ can potentially be denied, and the corresponding war crime committed, when a wide range of rights have been violated. The rationale behind this approach is that the criminal proceedings as a whole should be safeguarded to ensure their fairness for the accused (whether a suspect or a defendant).

This interpretation of ‘judicial guarantees’ – which can also be referred to as ‘fair proceedings rights’ or ‘fair proceedings guarantees’ – is consistent with the ordinary understanding of the category of ‘fair trial rights’. Contrary to what the label might suggest, the latter phrase is employed in the human rights language to include a wider category of rights than simply those that individuals enjoy at trial.Footnote ⁵⁸ A similar approach is also adopted by AP I. Among ‘the generally recognized principles of regular judicial procedure’, AP I includes rights to be afforded during the entire proceedings, and ‘substantial law’ guarantees, such as the principle of individual criminal responsibility.Footnote ⁵⁹

As mentioned, GC III, GC IV and AP I regulate the judicial guarantees to be afforded at the minimum to protected persons subject to criminal proceedings during IACs; they represent the starting point to give meaning to the war crime of denying a fair trial. Scattered among their various provisionsFootnote ⁶⁰ the GCs provide a detailed list of numerous non-renounceableFootnote ⁶¹ guarantees that are considered to be part of customary international law.Footnote ⁶² These rights are granted to different categories of protected persons – they are the ‘protected persons’ to which also Article 8(2)(a)(vi) of the ICC Statute refers. Two broad categories can be identified.

First, GC III protects prisoners of war – namely combatants who have fallen into the power of the enemy, and past and present members of the armed forces who have been reinterned in the occupied territories.Footnote ⁶³ Wounded, sick and shipwrecked persons – protected by GC I and GC II – who fall into the hands of the enemy are also considered prisoners of war.Footnote ⁶⁴ Prisoners of war are afforded judicial guarantees in relation to crimes committed both before and after capture.Footnote ⁶⁵

Second, GC IV, dedicated to the protection of ‘civilians’, safeguards a wider category of subjects, namely ‘those who at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict of the Occupying Power of which they are not nationals’ (hereafter, ‘civilians’).Footnote ⁶⁶ By analogy, civilians in the territory of any party to the conflict are also protected.Footnote ⁶⁷ The Convention states explicitly that judicial guarantees should be afforded also to internees who are in the national territory of the Detaining PowerFootnote ⁶⁸ and persons detained in occupied territories as spies, saboteurs or otherwise suspected of conducting activities that are hostile to the security of the Occupying Power.Footnote ⁶⁹ The International Criminal Tribunal for the former Yugoslavia (ICTY) has established that persons may be afforded protected status under GC IV even if they have the same nationality as their captors, as is the case for refugees or in ‘inter-ethnic’ conflicts.Footnote ⁷⁰

The guarantees ensured by GCs III and IV are integrated by Article 75(4) of AP I. This provision is recognised today as part of customary international lawFootnote ⁷¹ and represents the ‘minimum contemporary yardstick’ for judicial procedure in IACs.Footnote ⁷² It provides a non-exhaustive listFootnote ⁷³ of ‘fundamental guarantees’ and refers to those as ‘generally recognized principles of regular judicial procedure’. During the negotiation of Article 75(4) reference was made to the International Covenant on Civil and Political Rights (ICCPR),Footnote ⁷⁴ which is, in some cases, reproduced verbatim.Footnote ⁷⁵

On the one hand, the list provided by Article 75 of AP I restates more systematically the safeguards recognised in the GCs. Rather than spelling out detailed rules as do the GCs, it sets out principles employing concise statements which potentially include multiple safeguards. Article 75(4), for example, refers to ‘all necessary rights and means of defence’.Footnote ⁷⁶ On the other hand, it also affords rights that were previously not explicitly granted by the GCs, most notably, the presumption of innocence.Footnote ⁷⁷

AP I represents a ‘residual clause’.Footnote ⁷⁸ It grants protection to those persons suspected or convicted of a crime related to the IAC who are in the power of a party to the conflict and do not benefit from ‘more favourable treatment’.Footnote ⁷⁹ For these reasons, Article 75(4) of AP I is crucial in the analysis of the violation of which judicial guarantees amounts to a war crime; it gives a ‘summary of the law’Footnote ⁸⁰ in both its content and scope of application. However, since the Elements of Crimes state that the victims of the crime are those persons who are ‘protected under one or more of the Geneva Conventions of 1949’,Footnote ⁸¹ it is not clear whether the denial of a fair trial to those who are protected by AP I only would be criminalised.

The intersection of different sources that safeguard diverse categories of person renders the resulting system difficult to navigate. Mainly as a result of the levelling effect of Article 75(4) of AP I – which grants a short but substantial list of rights to a broad category of protected persons – it is often (though not always) the case that all categories of protected persons are granted the same rights. However, the guarantees are variously delineated in scope by GC III and GC IV. Such lack of uniformity seems frequently to be devoid of underlying logic, thus creating complications.

Limitations on space for this article prevent presenting – let alone analysing – the judicial guarantees provided by IHL sources in detail. Suffice it to observe here that the judicial guarantees afforded to prisoners of war and civilians are numerous and of a different nature. They can be classified as follows: (i) substantive law requirements, such as the principle of legality; (ii) institutional requirements, such as the right to be tried by an independent, impartial and regularly constituted court; (iii) procedural law requirements, which include the rights and means of defence, and Protecting Power's (and prisoners’ representative) assistance-related rights;Footnote ⁸² and, finally (iv) penalty-related requirements – namely those guarantees related to the imposition of penalties, such as the right not to be subjected to collective punishment.

When dealing with the judicial guarantees afforded by IHL sources, the scholarship often limits its analysis to the most ‘classical’ examples, which are drawn largely from IHRL, such as the right to defence, the ne bis in idem principle, and the right to be tried by an independent, impartial and regularly constituted tribunal. These are referred to as the ‘main’ guarantees ‘generally recognized as indispensable’.Footnote ⁸³ This approach, however, runs the risk of overlooking the importance of several other relevant rights that are to be afforded during armed conflicts, such as the Protecting Power's (and prisoner's representative) assistance-related rights. Such guarantees are not to be considered insignificant as they contribute to the realisation of the fairness of proceedings in IACs.

After having retraced the judicial guarantees that are relevant for the war crime of denying a fair trial in those provided by GC III, GC IV and AP I, some aspects of the material element of the offence have been clarified. It seems unequivocal that a denial of judicial guarantees that can deprive a protected person of a ‘fair and regular trial’ and thus trigger criminal responsibility can take place by an act or an omission. This has been confirmed by the case law of the ECCC.Footnote ⁸⁴ The first occurs when, for example, a protected person is coerced into confessing the commission of an offence. The second is even more frequent and occurs, for example, when the defendant is not afforded the assistance of defence counsel or an interpreter. The commission of the war crime of denying a fair trial by omission par excellence is the denial of any trial. The ECCC case law offers examples of this form of the crime.Footnote ⁸⁵ The only material act committed by the perpetrator in such cases is often the imposition of a punishment – most notably, the death penalty. One may thus question the relationship between this form of the war crime of denying a fair trial and other war crimes such as killing. This conundrum surfaced in the post-WWII cases.Footnote ⁸⁶

Several further questions concerning the interpretation of the material element of the war crime of denying a fair trial nevertheless remain unanswered. Some of the most important aspects that remain ambiguous and need to be clarified are the following.

1. (1) How should the meaning and scope of IHL judicial guarantees be interpreted? What is the role of IHRL and the related jurisprudence in their interpretation?

Most of the IHL provisions that afford judicial guarantees do not clarify the meaning and scope of the rights they establish. For instance, the identity of ‘all necessary rights and means of defence’ to be included under the ‘umbrella requirement’Footnote ⁸⁷ envisaged by AP I is not apparent;Footnote ⁸⁸ nor how ‘the essential guarantees of independence and impartiality as generally recognised’ prescribed by GC III should be read.Footnote ⁸⁹

Consideration of the meaning and scope of judicial guarantees is fundamental to understanding when a right is violated and, thus, when the war crime of denying a fair trial may be materially satisfied. If IHL guarantees are unclear, they will be variously interpreted. If IHL guarantees are variously interpreted, the material element of the war crime of denying a fair trial may acquire diverse possible extensions on a case-by-case basis, resulting in inequalities between defendants. The risk of potentially diverse results in the interpretation of fair proceedings rights is even more tangible considering that IHL and ICL are interpreted and applied in legal cultures that are extremely different from each other.

The scholarship has often underlined that the examination of the guarantees provided by IHL and IHRL – in particular, by Article 75 of AP I and Article 14 of the ICCPR – demonstrates that these are ‘nearly identical’Footnote ⁹⁰ or ‘more or less equivalent’.Footnote ⁹¹ Moreover, although the relationship between IHL and IHRL has given rise to much debate, it is unanimously recognised today that IHRL continues to apply, to a certain extent, during armed conflicts.Footnote ⁹² Hence, IHL and IHRL are to be applied simultaneously.Footnote ⁹³

Against this backdrop it is logical to wonder whether it is possible to use IHRL and the related jurisprudence of the human rights bodies to assist in the reading of IHL guarantees for the purpose of interpreting the war crime of denying a fair trial. Although the scholarship has encouraged this approach without bringing into question its validity,Footnote ⁹⁴ it is nevertheless necessary first to answer the question whether – and, if so, how – the rights protected by IHL (devised for armed conflicts) are any different in their scope from those provided by IHRL (envisaged for peacetime).

Furthermore, in analysing the war crime of denying a fair trial, the answer to the previous question should be adapted to the purposes of substantive ICL. It should in fact be considered that the interpretation of the war crime of denying a fair trial relies on IHL sources. If the interpretation of the IHL guarantees is based on IHRL, substantive ICL would automatically incorporate such standards in the criminalisation of the denial of a fair trial. This approach may expand the material element of the war crime, in tension with the nullum crimen sine lege principle as protected under Article 22 of the ICC Statute. In addition, the incorporation of human rights standards developed at the regional level may also pose cultural concerns as a result of possible differences in the understanding of judicial guarantees,Footnote ⁹⁵ thus undermining the universal aspiration of ICL.

The importance of answering the questions of how the meaning and scope of IHL's judicial guarantees should be interpreted, and what is the role of IHRL and the related jurisprudence in their interpretation is thus evident. Overlooking such queries may result in significant consequences for the interpretation and application of the war crime of denying a fair trial itself.

1. (2) Can the violation of all the single judicial guarantees listed in the IHL sources amount to a war crime? If not, the violation of which guarantees triggers criminal responsibility? Is an analysis of the fairness of the proceedings as a whole necessary?

States are required to ensure all the judicial guarantees provided by IHL sources. No derogation or suspension is possible.Footnote ⁹⁶ Violation of these guarantees exposes states to responsibility for internationally wrongful acts.Footnote ⁹⁷ However, only serious violations of IHL trigger criminal responsibility under ICL.Footnote ⁹⁸ One may wonder, therefore, whether the violation of any of the single judicial guarantees listed in the IHL sources, or only some of them, would satisfy the material element of the war crime of denying a fair trial. It is thus necessary to identify the violation of which guarantees triggers criminal responsibility, and whether an overall analysis of the fairness of the proceedings should be conducted.

On the war crime of sentencing or execution without due process in NIACs, the Elements of Crimes state that ‘the Court should consider whether, in the light of the all relevant circumstances, the cumulative effect of factors with respect to guarantees deprived the person or persons of a fair trial’.Footnote ⁹⁹ However, the same clarification is not made explicitly for the war crime of denying a fair trial. The question is whether the ‘cumulative effect’ principle should apply also to the crime in IACs or whether, in this case, the violation of every guarantee identified by IHL provisions amounts to a war crime. The rationale of the absence of a cumulative effect requirement for the war crime of denying a fair trial might be that the crime is more serious in IACs, for two possible reasons. First, it constitutes a grave breach of the GCs. Second, it applies most notably within armed conflicts between states, which are structurally more suitable than ANSAs in respecting judicial guarantees. However, this omission might also be a mere oversight.

Analysis of the available case law shows that multiple violations were always accounted for. The elements that the post-WWII case law has contemplated to establish the denial of a fair trial, however, are difficult to identify as reasoned judgments were not always delivered.Footnote ¹⁰⁰ When they were delivered, the ‘construction’ of the judgment often does not allow an understanding of what was regarded as ‘criminal’ and what as merely ‘evidence’.Footnote ¹⁰¹ The Law Reports themselves underline the difficulty in several passages, stating that ‘[i]t is impossible to draw up with certainty a complete catalogue of the aspects of the trial which were regarded … as contributing to its criminal character’.Footnote ¹⁰² Furthermore, the victims in the ECCC cases were held in detention and then executed, without any trial. Hence, the elements that are necessary to establish the war crime of denying a fair trial were not analysed separately as no trial was held at all.

This does not mean that the violation of certain single guarantees alone could not amount to a war crime. In the post-WWII Latza case, the holding of Judge Schei, sitting in the Supreme Court of Norway, seems to confirm this point by referring to a ‘hierarchy’ of rights. He stated that:Footnote ¹⁰³

Judge Berger, in the same case, similarly observed that the several ‘shortcomings’ that characterised the trial (including the violation of the right to be assisted by counsel) cast doubts ‘on the tenability of the trial as a whole’ but ‘individually or all of them together’ they were not ‘decisive in themselves’.Footnote ¹⁰⁴ What he considered ‘decisive’ was ‘whether there had been a fair trial before independent judges who delivered their judgment according to their free conviction’.Footnote ¹⁰⁵ These statements seem to suggest that the violation of the right to be tried by an independent and impartial tribunal can, in and of themselves, materially satisfy the war crime of denying a fair trial.

The UNWCC Law Reports commentator concluded that Latza confirmed that:Footnote ¹⁰⁶

However, neither Latza nor any other precedent has examined this issue in more depth, leaving much room for uncertainty. For example, what is meant by the expression that courts should consider whether ‘a sufficient number of the rights which they have regarded as forming part of the general right to a fair trial were sufficiently violated’? Are independence and impartiality the only ‘decisive’ guarantees that, alone, would justify criminalisation? When can the deprivation of judicial guarantees be considered to be serious enough to bring about denial of a fair trial and amount to a war crime regardless of an overall analysis of the fairness of the proceedings?

This position of uncertainty exposes the war crime of denying a fair trial to problems of application and jeopardises foreseeability of its criminalisation. Hence, it is crucial to seek a model to establish: (i) the violation of which one of the judicial guarantees listed in the IHL sources is enough in itself to materially satisfy the material element of the war crime of denying a fair trial; (ii) when an analysis of the fairness of the proceedings as a whole is necessary; and (iii) on the basis of which overall standards it can be established whether denial of a fair and regular trial has occurred.

1. (3) Is it possible to criminalise the violation of further judicial guarantees drawn, for instance, from IHRL?

The Elements of Crimes state that the war crime of denying a fair trial is materially satisfied when ‘[t]he perpetrator deprived one or more persons of a fair and regular trial by denying judicial guarantees as defined, in particular, in the third and fourth Geneva Conventions of 1949’.Footnote ¹⁰⁷ The addition of ‘in particular’ can be interpreted as allowing the inclusion in the material element of the crime of further judicial guarantees provided – potentially – by any source of law, and not just by the GCs or AP I. The question that arises is thus whether is it possible to criminalise the violation of further judicial guarantees drawn, most notably, from IHRL.

To consider rights stemming from IHRL as relevant for the material element of the crime would follow the trend – popular among international criminal tribunals – of using IHRL to clarify and interpret the often ambiguous provisions of ICL.Footnote ¹⁰⁸ While the phenomenon mainly concerned the accused's right to a fair trial,Footnote ¹⁰⁹ the definitions of crimes have not been spared either.Footnote ¹¹⁰ This tendency can be explained considering that ICL and IHRL are highly interrelated.Footnote ¹¹¹ At the dawn of ICL, Bassiouni recognised that ‘criminal proscription’ is the ‘ultima ratio modality of protection’ for human rights.Footnote ¹¹² Most international crimes are (mass) violations of human rights protected by IHRL – primarily the rights to life and physical integrity.Footnote ¹¹³ The war crime of denying a fair trial also criminalises the infringement of a right: the right to a fair trial. However, this does not mean that the violation of every right protected by IHRL is or should be criminalised.

As mentioned with regard to the interpretation of IHL judicial guarantees in light of IHRL and related jurisprudence, this approach should in fact be examined in the light of the risks that it may pose for the principle of legality and the universal aspiration of ICL. As such risks might even be increased in the direct criminalisation of the violation of judicial guarantees protected only by IHRL, the possibility of considering fair trial rights that are not included in the IHL sources relevant for the interpretation of the material element of the war crime of denying should be well pondered.

1. (4) Can the denial of a fair trial that does not end in a conviction or imposition of punishment amount to a war crime?

Eventually, a further point needs to be considered. What is the relevance of the outcome of the proceedings for the material element of the war crime of denying a fair trial? What if an unfair trial does not end in conviction or the imposition of punishment but in an acquittal, or if the proceedings are dismissed or halted? This might be a rare event, but it could nonetheless occur.

ICL provisions rule out the possibility of materially satisfying the offence in NIACs in that they require the ‘passing of sentences and the carrying out of executions’.Footnote ¹¹⁴ However, in IACs the wording of the ICC Statute seems to suggest that the violation of ‘the rights of fair and regular trial’ represents a war crime per se: there is no requirement for a sentence to be passed or a punishment to be imposed. Again, the rationale behind such an omission might be that the crime is more serious in IACs and states are required to satisfy higher standards of fairness. However, there are no elements to confirm that this was the reasoning and the issue remains unclear. Besides, all the available precedents concern cases in which victims were sentenced or punishment was imposed. Thus, the question remains to be answered.

3.2. Denying Judicial Guarantees in Non-International Armed Conflicts: The War Crime of Sentencing or Execution without Due Process

In NIACs, Article 8(2)(c)(iv) of the ICC Statute defines the war crime of sentencing or execution without due process as ‘[t]he passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable’. The persons protected by the provision are, as explicitly mentioned, ‘persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause’.Footnote ¹¹⁵

The ICC Statute borrows the wording of Common Article 3 GCs to criminalise its serious violations.Footnote ¹¹⁶ In comparing the ICC Statute provision with Common Article 3, the former has eliminated reference to all the judicial guarantees which are recognised as indispensable ‘by civilized peoples’. The wording of the ICC Statute has been also adopted by the Kosovo Law on Specialist Chambers and Specialist Prosecutor's Office.Footnote ¹¹⁷

The war crime of sentencing or execution without due process reveals a ‘shift in emphasis’ when compared with the war crime of denying a fair trial in IACs, which more broadly criminalises the denial of a ‘fair and regular trial’.Footnote ¹¹⁸ The shift is most likely a consequence of the different wordings used in the GCs as the ICL provisions change such wordings only slightly.Footnote ¹¹⁹

Article 8(2)(c)(iv) of the ICC Statute is a wordy and complex provision that needs to be examined in all its elements. PTC-I in the Al Hassan case had to take on the hard task of being the first judicial body to address the interpretation of the war crime. As will be demonstrated, it left many questions unanswered.

For the war crime of sentencing or execution without due process to be materially satisfied, the first element required by Article 8(2)(c)(iv) of the ICC Statute is ‘[t]he passing of sentences and the carrying out of executions’.Footnote ¹²⁰ Although the Statute uses the conjunction ‘and’, the Elements of Crimes clarify that the two elements should be considered as alternatives: ‘[t]he perpetrator passed sentence or executed one or more persons’.Footnote ¹²¹

Regarding the notion of ‘passing of sentences’, it is possible to borrow the interpretation that the recent ICRC Commentary to GC III gave to ‘sentence’ in Common Article 3, namely ‘[t]he judgement that a court formally pronounces after finding a criminal defendant guilty; the punishment imposed on a criminal wrongdoer’.Footnote ¹²² ‘Passing a sentence’ would thus mean, as confirmed by English legal dictionaries, ‘to announce a guilty person's punishment in a court of law’.Footnote ¹²³ This meaning is also confirmed by the French version of the ICC Statute and Elements of Crimes, which refer, respectively, to ‘condamnations prononcées’ and ‘prononcé une condamnation’. As emphasised by PTC-I, the focus is on the fact that such a decision has been delivered – it does not matter whether orally or in writing or whether it was executed.Footnote ¹²⁴ The passing of a sentence can also be inferred from the execution of the punishment when – taking into account the circumstances of the case, in particular the nature and context of the sentence passed and its execution modalities, if applicable – it can be ascertained that the execution was the result of the passing of the sentence, and was not used, for example, as a means of deterrence.Footnote ¹²⁵

More controversial is ‘the carrying out of executions’ aspect. The Elements of Crimes suggest that one possibility for materially satisfying the offence is that one or more persons were ‘executed’,Footnote ¹²⁶ thus apparently referring to death sentences. Similarly, the ICRC Commentary to GC II seems to interpret ‘executions’ in Common Article 3 as referring to death penalties.Footnote ¹²⁷ The Al Hassan defence also supported this reading, arguing that Common Article 3 ‘was intended to provide a framework for penalising death sentences that would otherwise be lawful under international law and IHL’.Footnote ¹²⁸ This interpretation, however, may have an illogical result. It would follow that while the passing of any sentence would suffice to satisfy the material element of the crime, only the execution of a death penalty (and not of any other punishment) would be criminalised.

An alternative interpretation considers the term ‘executions’ as referring to the execution of any sentence. Sivakumaran observed that the drafting history of Common Article 3 confirms this reading.Footnote ¹²⁹ Furthermore, Article 75(4) of AP I and Article 6 of Additional Protocol II to the GCs (AP II),Footnote ¹³⁰ drafted on the model of Common Article 3, explicitly refer to the execution of a ‘penalty’ in general. This may suggest that the drafters of the APs interpreted Common Article 3 as alluding to the execution of any penalty. This interpretation is not at odds with the ICC Statute, in which ‘the carrying out of executions’ can indeed refer to the execution of any sentence. However, it seems to be at odds with the Elements of Crimes.

In any case, in order to establish the crime, the Prosecutor must prove that there has been the passing of a sentence (in French, ‘condamnation’),Footnote ¹³¹ either explicit or implicit. PTC-I underscored that it is the passing of a sentence that allows this crime to be distinguished from other crimes, such as the crimes of torture, inhumane treatment and outrages upon personal dignity, which do not need the passing of a sentence.Footnote ¹³² A corollary is that there is no war crime of sentencing or execution without due process if an acquittal takes place or if the proceedings are halted. The Statute thus seems to resolve in NIACs a doubt that remains unresolved in IACs.

Article 8(2)(c)(iv) of the ICC Statute continues by stating that ‘[t]he passing of sentences and the carrying out of executions’ is performed ‘without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable’.

In an attempt to clarify the Statute, the Elements of Crimes state that:Footnote ¹³³

The crime is thus committed if a sentence is passed or an execution is carried out (i) without a previous judgment pronounced by a court (this is what PTC-I refers to as ‘direct conviction’);Footnote ¹³⁴ and (ii) where there is a previous judgment, but (a) the judgment was delivered by a court that is not ‘regularly constituted’, or (b) not affording the ‘judicial guarantees generally recognized as indispensable under international law’.Footnote ¹³⁵

Against this backdrop several doubts remain, some of which will now be addressed.

1. (1) When can a court be considered to be ‘regularly constituted’?

Article 8(2)(c)(iv) of the ICC Statute states that the war crime can be materially satisfied when there is no ‘previous judgement pronounced by a regularly constituted court’. It is thus crucial to comprehend what is meant by ‘regularly constituted court’.

The issue is particularly sensitive in NIACs, where ANSAs can also be parties to the conflict. Although the administration of justice is traditionally a state prerogative, in practice ANSAs have often established courts and conducted trials.Footnote ¹³⁶ ANSAs prosecute international crimes committed in relation to the armed conflict by its own members, civilians or opposing forces, and the participation in hostilities against the armed group.Footnote ¹³⁷ The legitimacy of ANSA courts, however, has been long debated. The idea of ANSAs administering justice is often contrasted and judged negatively.Footnote ¹³⁸ The scholarship now tends to agree that Common Article 3 and AP II do not require ANSAs to conduct trials and do not grant them a right to conduct trials, but they do not prevent them from doing so: they only prohibit unfair trials.Footnote ¹³⁹

According to the doctrine of command responsibility – which today is considered to apply also to commanders of ANSAs in NIACsFootnote ¹⁴⁰ – ANSA commanders have the obligation to take all necessary and reasonable measures within their powers to repress their subordinates (or to submit the matter to the competent authorities) if they knew or should have known they have committed war crimes. Otherwise, the commanders themselves will be criminally responsible.Footnote ¹⁴¹ Realistically, ANSAs are not willing to have state authorities try members of the group.Footnote ¹⁴² It is more reasonable to expect that an ANSA will try its own members. The ICC considered the availability of a judicial system to be an important element for the application of the doctrine of command responsibility.Footnote ¹⁴³

The phrase ‘regularly constituted court’ has been borrowed from Common Article 3. As neither Common Article 3 nor the official records of the Geneva Conference shed light on its meaning,Footnote ¹⁴⁴ the expression traditionally has been interpreted in different ways. A first popular approach refers to ‘regularly constituted court’ as meaning ‘established and organized in accordance with the laws and procedures already in force in a country’. This reading was suggested, most notably, by the ICRC study on customary IHL,Footnote ¹⁴⁵ and consequently adopted in the Hamdan case.Footnote ¹⁴⁶ However, the approach has been criticised precisely for preventing ANSAs from establishing their own courts.Footnote ¹⁴⁷ ANSAs are unlikely to have the capacity, in terms of sufficient resources and trained personnel, to establish courts that are ‘regularly constituted’ under national law,Footnote ¹⁴⁸ and their courts are unlikely to be in accordance with the rules in force in the country. It is only those groups that have control of territory that might be able to achieve this applying existing legislation, either relying on existing courts or setting up a parallel judicial system.Footnote ¹⁴⁹

Another part of the scholarship has attempted to interpret the ‘regularly constituted court’ requirement in a manner that does not prevent a priori ANSAs from conducting trials, but only the conducting of unfair trials. If the requirement is construed too narrowly, it could clash with the inherent ‘ad hoc’ and ‘transient’ nature of ANSA courts.Footnote ¹⁵⁰ The expression has thus been interpreted to mean, more generally, ‘established by law’.Footnote ¹⁵¹ In this case the requirement would not prevent ANSAs from establishing their own courts as it would include the ‘law’ of the ANSA.Footnote ¹⁵² It is in fact argued that in NIACs it is often the case that the national legislation of the state and the law of the ANSA coexist,Footnote ¹⁵³ and both parties can conduct trials according to their own applicable laws.Footnote ¹⁵⁴ This would be the case for those armed groups that are sufficiently organised to enact laws and establish courts accordingly. As underlined by the domestic case law, ‘the principle of sovereignty does not prevent a non-state actor from establishing a Court’.Footnote ¹⁵⁵

The Elements of Crimes state that a court is not ‘regularly constituted’ when (‘that is’)Footnote ¹⁵⁶ ‘it did not afford the essential guarantees of independence and impartiality’.Footnote ¹⁵⁷ At the Preparatory Commission for the ICC, the Belgian proposal, which omitted reference to the requirements of independence and impartiality, was rejected.Footnote ¹⁵⁸ PTC-I stated that the travaux préparatoires of the Elements of Crimes show the intention of the drafters to employ an objective criterion in establishing a link between a ‘regularly constituted court’ and the statutory guarantees.Footnote ¹⁵⁹ In so doing, the Elements of Crimes follow the approach of AP II. AP II had already substituted the requirement of ‘regularly constituted’ courts provided by Common Article 3 with that of courts ‘offering the essential guarantees of independence and impartiality’,Footnote ¹⁶⁰ borrowed from Article 84 of GC III.Footnote ¹⁶¹ The meaning of Common Article 3 has thus been loosenedFootnote ¹⁶² considering that the ‘regularly constituted court’ requirement could have posed difficulties for ANSAs.Footnote ¹⁶³

The less ‘formalistic’ notion of ‘regularly constituted court’ adopted by the Elements of Crimes simplifies the establishment of courts for ANSAs,Footnote ¹⁶⁴ taking into account ‘the reality’ of NIACs.Footnote ¹⁶⁵ PTC-I underlined that the Elements of Crimes put the emphasis on the capacity of the tribunal to conduct a fair trial, more than on the manner in which the tribunal is established.Footnote ¹⁶⁶ The ‘essential guarantees of independence and impartiality’ are thus considered the ‘touchstones’ of a regular constitution.Footnote ¹⁶⁷ The Elements of Crimes created a form of hierarchy among judicial guarantees, with independence and impartiality at the top.Footnote ¹⁶⁸

Notwithstanding the clarification provided by the Elements of Crimes, the definition of ‘regularly constituted court’ is still open to debate. Neither the Statute nor the Elements of Crimes define the notions of independence and impartiality. For this reason, PTC-I argued that independence and impartiality must be read in light of the interpretation given by human rights bodies, according to Article 21(3) of the ICC Statute.Footnote ¹⁶⁹

This prompts two questions. One may wonder whether it is reasonable to borrow the notions of independence and impartiality from IHRL, which have been devised specifically with courts run by states during peacetime in mind.Footnote ¹⁷⁰ The most recent ICRC Commentary on GC III seems to share this doubt in stating that the interpretation given to ‘independence’ and ‘impartiality’ by human rights bodies is ‘relevant in the context of common Article 3, at least for courts operated by State authorities’.Footnote ¹⁷¹ This statement seems to imply that they might not be relevant (or should at least be adapted) for courts operated by ANSAs. The second question is whether ANSA-run courts can genuinely be independent and impartial within the meaning of IHRL. These requirements can in fact be ‘challenging’ for ANSAs to respect.Footnote ¹⁷² This is the case not only when the groups establish courts to try government personnel and other ‘enemies’,Footnote ¹⁷³ but also when they lack, for example, trained personnel who are independent of the executive. Moreover, distinctions between the different branches of ANSAs are not always clear.Footnote ¹⁷⁴

The Al Hassan confirmation of charges proceedings show that the Elements of Crimes have not appeased the debate concerning the meaning of ‘regularly constituted court’. The OTP argued that the definition of ‘regularly constituted court’ must be a ‘functional rather than a formal one’, and ‘regularly constituted’ courts do not necessarily have to be an organ of the state; otherwise, it would be impossible for ANSAs to establish any court.Footnote ¹⁷⁵ However, it also argued that when an ANSA tribunal does not respect the law already in force in the territory in which the group acts, the tribunal is not ‘regularly constituted’ and does not respect the guarantees of independence and impartiality.Footnote ¹⁷⁶ The OTP considered the systematic application of the law that is duly promulgated in accordance with the constitution of the state and international law to be a fundamental characteristic of all independent and impartial judicial institutions and an essential aspect of their identity.Footnote ¹⁷⁷ The only exceptions to the principle are possible when IHL authorises ANSAs not to abide by the laws in force, and the previous laws are less compatible with internationally recognised human rights than the new laws applied by the group.Footnote ¹⁷⁸

PTC-I did not delve into the debate and only referred to the independence and impartiality requirements provided by the Elements of Crimes. In this way it seems to dismiss the arguments of the Prosecutor. However, as the issue is controversial both in light of the application of the war crime of sentencing or execution without due process in NIACs and for the interpretation of Common Article 3, it deserves more attention. Whether ANSAs are compelled to apply pre-existing national laws is a question that cannot be overlooked.

This outline demonstrates how far the meaning of the ‘regularly constituted court’ requirement is from being clear.

1. (2) What are the ‘judicial guarantees generally recognized as indispensable under international law’?

Article 8(2)(c)(iv) of the ICC Statute establishes that the war crime of sentencing or execution without due process can be materially satisfied also when ‘[t]he passing of sentences and the carrying out of executions’ is performed ‘without … affording all judicial guarantees which are generally recognized as indispensable’.

It was mentioned that the Elements of Crimes clarify, in a footnote, that a cumulative approach is necessary:Footnote ¹⁷⁹ ‘the Court should consider whether, in the light of all relevant circumstances, the cumulative effect of factors with respect to guarantees deprived the person or persons of a fair trial’. Hence, the proceedings as a whole should be considered.Footnote ¹⁸⁰ Nevertheless, it is possible that, in the light of the circumstances of the case, the violation of one single guarantee is sufficient to establish the crime.Footnote ¹⁸¹ One guarantee can be crucial and its violation alone can taint the regularity of the procedure,Footnote ¹⁸² as it has been argued for the war crime of denying a fair trial in IACs.Footnote ¹⁸³ PTC-I has deemed it appropriate first to assess independence and impartiality.Footnote ¹⁸⁴ If a violation of these principles is established, it is not necessary to continue the evaluation: the tribunal is not in compliance with the ICC Statute.Footnote ¹⁸⁵

Having said this, it is essential to comprehend what are the ‘judicial guarantees which are generally recognized as indispensable’. The wording employed by Article 8(2)(c)(iv) is substantially different from that used for IACs, where the reference is, more generally, to the ‘rights of fair and regular trial’. The provision seems to underline that only the violation of ‘indispensable’ judicial guarantees triggers criminal responsibility. This needs to be taken into account in interpreting the crime.

Neither the Statute nor the Elements of Crimes mention what these guarantees are. During the drafting of the Statute, a proposal submitted to include a detailed list of guarantees was rejected.Footnote ¹⁸⁶ A group of states, for example, argued that the list could have been considered on the basis that every other right not in the list was not indispensable.Footnote ¹⁸⁷ Another group feared that including a list would mean that the violation of one right contained in the list would necessarily constitute a war crime in itself.Footnote ¹⁸⁸

Common Article 3, on which the wording of the Statute is based, does not offer a list of safeguards either. There was discussion at the 1949 Diplomatic Conference of whether to include a list or to make reference to the guarantees contained in the GCs,Footnote ¹⁸⁹ but neither proposal met with success.Footnote ¹⁹⁰ The IHL scholarship observes that there are three (alternative or cumulative) possible approaches on how to read Common Article 3.Footnote ¹⁹¹

First, it can be interpreted in light of Article 6 of AP II.Footnote ¹⁹² The ICRC delegate at the 1974–77 Diplomatic Conference made clear that Common Article 3 and Article 6 of AP II are to be read together.Footnote ¹⁹³ Article 6(2) of AP II states that ‘no sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality’. The provision continues with a non-exhaustive list of the minimum judicial guarantees that ‘in particular’ need to be afforded during NIACs.Footnote ¹⁹⁴ The guarantees recognised by Article 6 of AP II are also considered to be part of customary international law.Footnote ¹⁹⁵ However, Article 6 applies only to states and those ANSAs that exercise control over part of a territory of a contracting party, so much so that they are able ‘to carry out sustained and concerted military operations’ and to implement the Protocol.Footnote ¹⁹⁶ As a consequence, ANSAs in control of no territory are bound by Common Article 3 only, which, as mentioned, does not provide a list of minimum guarantees and sets an ambiguous standard.Footnote ¹⁹⁷ IHL sources thus seem to provide for a ‘sliding scale of obligations’.Footnote ¹⁹⁸

A second possible approach is to look also at the IHL sources to be applied in IACs, in particular AP I.Footnote ¹⁹⁹ Article 75(4) of AP I is in fact deemed by part of the scholarship to be customary law applicable both in IACs and NIACs.Footnote ²⁰⁰ Although Article 6 of AP II largely overlaps with Article 75(4) of AP I, having both been inspired by the ICCPR,Footnote ²⁰¹ AP I provides for three guarantees that are not found in AP II: (i) the right to examine, or have examined, witnesses against the defendants and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them; (ii) the right to have the judgment pronounced publicly; and (iii) the ne bis in idem principle. Allegedly the first two were not included in AP II because some delegates wished to keep the list ‘as short as possible’.Footnote ²⁰² However, it is not clear why it was decided to exclude (only) those two and not others. The ne bis in idem principle was not included because it ‘could not apply between the courts of the governments and the courts of the rebels’.Footnote ²⁰³ The most recent ICRC Commentary to GC III nevertheless clarifies that the first two guarantees should apply also in NIACs because they are essential for a fair trial and are present in the main human rights instruments.Footnote ²⁰⁴ Moreover, the ne bis in idem principle should apply within the same party, in the same way as the guarantee is provided by AP I.Footnote ²⁰⁵

The third possible approach is to move from the IHL domain and look at IHRL and related jurisprudence.Footnote ²⁰⁶

Although part of the scholarship has argued that the ‘content’ of AP II, AP I and IHRL cannot be ‘transported ipso facto’ to interpret Common Article 3,Footnote ²⁰⁷ PTC-I in the Al Hassan case seems to have embraced all of these approaches in interpreting the war crime of sentencing or execution without due process. It argued that Article 6(2) of AP II and Article 75 of AP I are to be taken into account pursuant to Article 21(1)(b) of the ICC Statute; and human rights instruments (including those of a regional nature) and related jurisprudence are to be considered according to Article 21(3) of the ICC Statute.Footnote ²⁰⁸ Hence, PTC-I refers to several rights as determinant factors in assessing the fairness of a trial. Among these, some are not included in AP II but do appear in AP I (such as the ne bis in idem principle) or are even only in IHRL (such as the right to be tried without excessive delay, the right to a public trial, and the right to a reasoned judgment).Footnote ²⁰⁹ In doing so, PTC-I places many different IHL and IHRL sources on the same level and confirms that judges are prone to consider guarantees stemming from IHRL as relevant for the material element of the war crimes of denying judicial guarantees.Footnote ²¹⁰ After all, this approach was already supported by the scholarshipFootnote ²¹¹ and is considered to be justified in that it follows the approach adopted by the ICTY in defining, for example, the war crime of torture.Footnote ²¹²

The modus operandi followed by PTC-I, however, raises doubts. One may wonder whether all of these sources are suitable for integrating into the material element of an international crime. Article 6 of AP II is applicable only to ANSAs in control of a territory. PTC-I did not argue that Article 6 was applicable in the Al Hassan case because the ANSAs active in Mali had control over the territory. The issue seems to have been disregarded. Moreover, nor has the application of Article 75(4) of AP I been justified. As Sivakumaran observed, the application in NIACs of IHL sources designed for IACs creates problems because they do not take into consideration the peculiarities of NIACs and ANSAs.Footnote ²¹³ Moreover, the appropriateness of considering IHRL standards (including those of a regional nature) to be relevant in the interpretation of the material element of the war crime of denying a fair trial has already been put into question; the same applies for the war crime of sentencing or execution without due process. In brief, PTC-I assumes that IHRL and IHL standards conceived for states are equally applicable to ANSAs. The issue is even more thorny considering that it is controversial whether (and, if so, to what extent) ANSAs – especially those not in control of territory – are bound by human rights law.Footnote ²¹⁴

All this considered, a list of ‘indispensable’ judicial guarantees the violation of which triggers criminal responsibility in NIACs should be considered. The list should take into account, first, that Article 8(2)(c)(iv) of the ICC Statute, in defining the war crime of sentencing or execution without due process, refers to ‘judicial guarantees which are generally recognized as indispensable’. Second, it should consider the peculiarities involved in the setting up of courts and the administration of justice by ANSAs, including those not in control of territory. If this process of identification is fundamental in IHL,Footnote ²¹⁵ it is even more so in substantive ICL.

1. (3) How should the meaning and scope of IHL judicial guarantees be interpreted? What is the role of IHRL and the related jurisprudence in their interpretation?

As in IACs, the interpretation of some of the judicial guarantees provided by IHL sources is not straightforward. The problems referred to above in respect of the war crime of denying a fair trial in IACsFootnote ²¹⁶ apply also to the war crime of sentencing or execution without due process in NIACs. Cultural concerns, in particular, have already emerged in the Al Hassan case.

In her opening statement in the Al Hassan trial, the Prosecutor felt the need to emphasise that the case is not directed against any religion or system of law or thought – it is just a criminal case concerning serious crimes.Footnote ²¹⁷ However, at the pre-trial stage, the Prosecutor deemed ta'azirs to be arbitrary and thus in violation of the nulla poena sine lege principle.Footnote ²¹⁸ In the Sharia, ta'azirs are those criminal violations for which penalties are not set by the Quran and are thus left to the discretion of a judge, who decides on the basis of ‘Islamic and community standards’.Footnote ²¹⁹ Scholars have objected that strict interpretations of the nulla poena sine lege principle – which require, for example, specifications of the penalties in tariffs provided by the written law – are not necessarily part of the customary international law interpretation of the principle of legality.Footnote ²²⁰

This issue was disregarded in the PTC-I decision; the Chamber only explicitly rejected the defence argument according to which ta'azirs do not satisfy the ‘severity threshold’ that should characterise international crimes.Footnote ²²¹ In order to meet this requirement, the defence argued that the ICC Statute is called upon to punish conduct that all the principal legal systems of the world consider sufficiently serious to amount to an international crime.Footnote ²²² However, gravity is not the only issue here; cultural concerns weigh just as much.

If the judicial guarantees provided in IHL sources are not interpreted in a strict fashion – for the purpose of the application of the war crimes of denying judicial guarantees – some features of the criminal law systems of certain legal cultures may always satisfy the material element of the crimes. As emphasised by the defence, the Sharia cannot be ‘synonymous with the commission of [international] crimes … this premise will inveigle the ICC into a clash of civilizations, which will undermine any prospect of advancing the universalisation of the Rome Statute’.Footnote ²²³

Finally, a further difficulty needs to be taken into account in interpreting the war crime of sentencing or execution without due process in NIACs. As already mentioned, given the possible involvement of ANSAs in the administration of justice, it may be that the judicial guarantees to be applied in NIACs are to be interpreted differently from those in IACs in order to take into account the features that characterise NIACs and ANSAs.