The Rome Statute, the founding treaty of the ICC, has 119 State Parties and 32 signatories. Burundi became a State Party on September 24, 2004 when it deposited its instrument of ratification. In 2016, the ICC announced that it was opening a preliminary examination into Burundi based on the Court’s having been monitoring Burundi’s internal situation since early 2015. The focus of the examination is to look into allegations that 430 persons have been killed, at least 3,400 have been arrested and over 230,000 have been forced to seek refuge due to government action. The forthcoming 2016 Report on Preliminary Examination Activities of the Court will bring more detailed summary and overview of the Court’s inquiry.
However, recently, and in line with one of the more frequent criticisms of the Court that it only prosecutes African nationals, Burundi voted overwhelmingly (94 for, 14 abstained, and 2 against) to withdraw from the ICC. The law now needs to be signed by the Burundi President to become effective, potentially making Burundi the first State to leave the ICC.
In response to this development, the President of the Assembly of States Parties issued a statement expressing his concern, as follows:
[t]he withdrawal from the Statue by a State Party would represent a setback in the fight against impunity and the efforts towards the objective of universality of the Statute. I remind that all States Parties have the opportunity to share their concern before the Assembly of States Parties in accordance with the Statute and invite the Burundian authorities to engage in a dialogue.
As discussed in our previous posts, preliminary examination is a stage prior to official investigation. The ICC does not authorize official investigation at the end of every preliminary examination. During the preliminary examination stage, the Court identifies whether the situation meets the Court’s selection and prioritization criteria for opening an official investigation. The Court may decline to proceed to an official investigation for a variety of reasons, such as: a finding that the situation is not grave enough to proceed; a finding that its complimentary jurisdiction should not be invoked because a genuine investigation and prosecution is being carried out by national representatives; or a lack of evidence to support subject matter jurisdiction.
In any case, the preliminary examination in Burundi is likely to continue even if Burundi withdraws from the Court’s jurisdiction, because the withdrawal is not likely to be applied retroactively. However, if Burundi does withdraw, and the investigation moves forward, that withdrawal is likely to make difference during the enforcement and cooperation stages.
- OTP, Policy Paper on Preliminary Examinations (Nov. 2013).
BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.
In 1942, while France was under World War II German occupation, a novel telling the story of a murder was published in Paris by the renowned Gallimard publishing house. The author was a Frenchman born and raised in Algeria (at the time annexed by France) who completed a first draft of the novel in 1940 while, at age 26, he was working in Paris. In the decades following the war, this novel would be published in sixty languages and attract considerable attention because of the stark and challenging questions it posed about human violence and criminal justice. Its original title was L’Étranger; its title in English would be The Stranger in American editions and The Outsider in British editions.
The author was Albert Camus. For L’Étranger and other writings, Camus would be awarded the 1957 Nobel Prize in Literature, in acknowledgment of “his important literary production, which with clear-sighted earnestness illuminates the problems of the human conscience in our times.”
The events in the novel take place in Algeria and are narrated by an Algerian Frenchman named Meursault. The novel begins with Meursault learning that his mother, with whom he appears to feel no close attachment, died in a home for the aged to which he committed her, and subsequently attending her funeral, during which he showed no outward signs of grief. Not long afterwards, Meursault fatally shoots a man – identified in the novel only as an “Arab” – who was armed with a knife and was involved in a quarrel earlier that day with one of Meursault’s acquaintances. When pressing for a capital murder conviction, the Prosecutor uses testimony he construes as showing Meursault’s lack of feeling for his mother to portray him to the jury as a heartless man who callously killed the victim. Narrating the course of his trial and its immediately preceding events, Meursault is laconic, focused primarily on the present, and apparently detached from any of the connections to family, religion, or culture that support human life. It is not until he is condemned to decapitation by guillotine that Meursault dispenses with previous pedestrian and random observations and, with relentless honesty, becomes seriously focused on his fate and his confrontation with death.
In a novel published in Algeria in 2013 – some seventy years after publication of L’Étranger – Kamel Daoud, an Algerian writer and journalist, creatively revisits the events portrayed in L’Étranger. Daoud’s novel is narrated, many years after the crime, by the brother of Meursault’s victim. The narrator provides the reader with an account of his brother’s life and personality and reflects on the effects his brother’s murder had on him, his family, and his community. Issues regarding colonialism in Algeria, which are present but at times below the surface in L’Étranger, come to the fore in Daoud’s novel. The book, which has been translated from French into English under the title The Meursault Investigation, has received several literary awards, including the 2015 Prix Goncourt du Premier Roman for a novel written in French as an author’s first novel.
Recently, Alice Kaplan, the John M. Musser Professor of French and chair of the Department of French at Yale University, published Looking for The Stranger: Albert Camus and the Life of a Literary Classic (University of Chicago Press 2016). The book provides a fascinating account of Camus’ life and work, including his early career as a newspaper reporter covering criminal trials in Algeria and his work as a writer for a French underground journal supporting resistance to the Nazi occupation. Kaplan details the complicated series of the events involved in getting L’Étranger published in occupied France and discusses the book’s reception in the post-war years. She also comments on the perspective Daoud takes in The Meursault Investigation.
Kaplan’s book, when read together with the novels of Camus and Daoud, provides the reader with insight into an important chapter in intellectual and literary history, and with searching consideration of several criminal justice issues, including prosecutorial manipulation of character evidence, cross-cultural violence, and capital punishment.
From our most recent guest contributor, Julie Pabon, Esq., a 2006 Graduate of Elisabeth Haub School of Law at Pace University and currently serving as Senior Counsel of an Am Law 100 Firm focusing on environmental law, read the author’s review of a three month long trial in the United Kingdom, in which three men, all former low-level employees of Barclays Bank, were sentenced for activities that the U.K. Serious Fraud Office alleged to constitute “manipulation” of the London Interbank Offered Rate (“LIBOR”), a global interest rate benchmark.
Read the full article entitled The LIBOR Trials: An Example of Prosecution Overreach?
To maintain transparency of the proceedings of the Prosecutor’s Office, Fatou Bensouda, announced the issuance of a Policy Paper on Case Selection and Prioritisation (in English and French). As mentioned in the policy paper, the resources available to the Office do not allow it to look into every possible alleged case or situation and as such, the OPT must prioritize while continue to carry out its mandate and ensure that the “exercise of [prosecutorial] discretion in all instances is guided by sound, fair, and transparent principles and criteria.” The purpose of this paper is to set out “considerations which guide the exercise of prosecutorial discretion in the selection and prioritisation of cases for investigation and prosecution.” Aside from the Security Council and State Party referrals, the Prosecutor may initiate investigation proprio motu in accordance with Art. 15.
This paper is intended to be an internal document without giving rise to legal rights, and thus is subject to revisions. It explains the distinction between situations and cases. It highlights the importance of preliminary examinations in deciding whether to open an official investigation. It identifies the “gravity” element, as defined in Art. 17(1)(d) of the Rome Statute, as one of the predominant case selection criteria. It reaffirms the importance of the Court’s cooperation with national jurisdictions in carrying out the principles articulated in the Preamble of the Rome Statute, especially in situations when cases are not selected for investigation or prosecution by the OTP.
Under the complementary criminal justice system, as defined in Art. 17 of the Rome Statute, the Office further states that it will “encourage genuine national proceedings … and seek to cooperate and provide assistance to States, upon request, with respect to conduct [constituting] crime under national law, such as the illegal exploitation of natural resources, arms trafficking, human trafficking, terrorism, financial crimes, land grabbing or destruction of environment.” This adds to the Office’s commitments one protecting environment by ensuring that the destruction to natural environment does not go unpunished.
Among the many criteria to be considered when selecting cases for investigation by the Office are the already mentioned gravity in order to focus on the “most serious crimes within a given situation that are of concern to the international community as a whole”; the degree of responsibility of alleged perpetrators to ensure that “charges are brought against those persons who appear to be the most responsible for the identified crimes”; and the charges where the Office states to focus on “crimes that have been traditionally under-prosecuted, such as crimes against or affecting children, … rape and other sexual and gender-based crimes, … and attacks against cultural, religious, historical, and other protected objects as well as against humanitarian and peacekeeping personnel.”