Tagged: challenge to admissibility

The ICC’s Principle of Complementarity and Domestic Prosecutions

POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

Before a matter can be fully pursued by the International Criminal Court, the ICC Prosecutor must first in the course of a preliminary examination determine, among other jurisdictional requirements, whether national authorities are actively pursuing a case of potential concern to the ICC. This is because the principle of complementarity, set forth in the Preamble of the Rome Statute and given specificity in Article 17 of the Rome Statute, debars the ICC from pursuing possible crimes within its subject matter jurisdiction if a State that can assert jurisdiction over the matter is doing so.

Article 19 of the Rome Statute provides additional force to the complementarity principle. It states that “[t]he Court shall satisfy itself that it has jurisdiction in any case brought before it” and that “[t]he Court may, on its own motion, determine the admissibility of a case in accordance with Article 17.” Article 19 also allows certain individuals and States to challenge the admissibility of a case.

In one of its first cases, the ICC prosecuted Thomas Lubanga Dyilo, the leader of a group pursuing violent opposition to the government of the Congo – despite the fact that the Congo was pursuing charges against him for genocide and crimes against humanity. Because these charges did not specifically include the crime of enlisting children under age 15 to participate in hostilities (a crime within ICC’s subject matter jurisdiction), the ICC determined that it could pursue that charge against Lubanga, without violating the principle of complementarity. ICC prosecution of Lubanga on this charge resulted in 2012 in the first conviction achieved by the ICC.

In an October 2015 report, ICC Prosecutor Fatou Bensouda needed to address the complementarity issue when requesting authority from a Pre-Trial Chamber to open an investigation into 2008 conflict in the South Ossetia region of Georgia. As written earlier, this conflict includes possible crimes committed by South Ossetian forces rebelling against Georgia and by Georgian forces in response, and – potentially – by Russian forces that intervened in support of the rebels.

In August 2008, Prosecutor Bensouda’s predecessor opened a preliminary examination of this matter. ICC Protocol regarding preliminary examinations requires the Prosecutor to first determine whether there is a reasonable basis to believe that crimes within ICC jurisdiction have been committed. The OTP recently made an affirmative determination regarding the Georgian situation prior to 2015. In her October 2015 Request for Authorization, Prosecutor Bensouda mentions that the seven-year delay in presenting her request was caused by the need, pursuant to Article 17’s complementarity requirement, to monitor efforts by national authorities in Georgia and Russia undertaking investigations of crimes of concern to the ICC.

The Prosecutor further states that Russia’s investigations appear to be proceeding. However, although Georgia had been engaging in investigations since 2008, Georgian officials notified her Office in March of this year that, because of several difficulties, Georgia was discontinuing its investigations. Because of this discontinuance, the Prosecutor concludes that there is at this time no complementarity objection that would defeat her request to open an investigation into the Georgian situation.

An ICC Pre-Trial Chamber must now decide whether to authorize the Prosecutor to open an investigation. The Trial Chamber will determine, among other jurisdictional issues, whether an investigation comports with the principle of complementarity. As noted above, even should the Chamber grant the Prosecutor’s request, challenges to admissibility may be raised at later stages.

ICC Confirms Case Against Simone Gbagbo

POST WRITTEN 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.

On May 27, 2015, the Appeals Chamber of the International Criminal Court (ICC) issued a decision confirming that the ICC case against Ivory Coast national Simone Gbagbo is not jurisdictionally barred to the ICC because of efforts undertaken by Ivory Coast to conduct its own criminal investigations against her.

As discussed in our previous post, the ICC confronted a situation regarding the three Ivory Coast nationals for whom it issued arrest warrants, all of whom were charged with responsibility for alleged crimes against humanity (including murder, rape and other forms of sexual violence, persecution and other inhumane acts) committed by supporters of defeated President Laurent Gbagbo against civilians in the aftermath of the Ivory Coast presidential election in November 2010. This violence resulted in the death of more than three thousand people.

Pursuant to the ICC arrest warrants, Ivory Coast (Côte d´Ivoire) authorities delivered Laurent Gbagbo and militia commander Charles Blé Goudé to The Hague for ICC prosecution on the crimes alleged in the warrants. But Ivory Coast refused ICC orders to deliver Simone Gbagbo and instead asserted that, pursuant to Articles 17 and 19 of the ICC Statute, her case was not admissible to the ICC on the ground that Ivory Coast was investigating and preparing to prosecute her.

After reviewing Ivory Coast’s arguments and supporting documents, an ICC Pre-Trial Chamber rejected the admissibility challenge because the Chamber determined that although Ivory Coast submitted evidence indicating that it was investigating Ms. Gbagbo for economic crimes, crimes against the State, and certain other matters, it was not prosecuting her for the crimes against humanity for which the ICC sought to prosecute her.

Ivory Coast appealed this decision in an effort to deny ICC jurisdiction over Ms. Gbagbo. In arguments to the Appeals Chamber, it employed several tactics, which included (1) submitting evidence of its investigative actions against Ms. Gbagbo that it undertook after the Pre-Trial Chamber’s decision, (2) attempting to challenge several points made by the Pre-Trial Chamber not as factual findings but as legal rulings (which would require more exacting review by the Appeals Chamber), and (3) characterizing acts for which it was investigating Ms. Gbagbo as “preparatory acts” for crimes within ICC jurisdiction.

In addition to Ivory Coast’s arguments, the Appeals Chamber considered arguments by all other concerned Parties. Given the Pre-Trial Chamber’s findings that procedural activities undertaken by Ivory Coast judicial authorities were “sparse and disparate” and did not cover the serious matters that the ICC sought to prosecute, it is perhaps not surprising that Ms. Gbagbo advanced arguments “fully supporting the Appeal.” On the other hand, the ICC Prosecutor and the Office of Public Counsel for Victims (representing victims of the Ivory Coast violence) provided arguments supporting the ICC’s admissibility of the case.

In its May 27 decision, the Appeals Chamber rejected all of the arguments submitted by Ivory Coast and by Ms. Gbagbo and confirmed the Pre-Trial Chamber’s decision that the ICC case against Ms. Gbagbo is admissible.

In rejecting Ivory Coast’s submission of evidence of its investigations subsequent to the evidence it presented to the Pre-Trial Chamber, the Appeals Chamber stated that by making such submissions Ivory Coast was “attempt[ing] to seek a new ruling on admissibility, rather than a review of the proceedings before the Pre-Trial Chamber.” The Appeals Chamber noted that under Article 19(4), “[t]he admissibility of a case … may be challenged only once.” Accordingly, the Chamber held that Ivory Coast couldn’t use this additional information to support what would in effect constitute a second challenge to admissibility. However, an ICC press release reporting on the Appeals Court’s decision notes that Article 19(4) also states that “[i]n exceptional circumstances, the Court may grant leave for a challenge to be brought more than once.”

Ivory Coast became a State Party to the ICC in February 2013. Article 89 of the Rome Statute requires “State Parties [to] comply with [ICC] requests for arrest and surrender.” It will be interesting to see whether Ivory Coast complies with this obligation, or whether it seeks to make use of the “exceptional circumstances” provision to make a second challenge to the admissibility of this case.