Tagged: complementarity

The ICC Prosecutor Proactively Addresses the Situation in Nigeria

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 February 2, 2015, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, issued a statement calling on all parties to refrain from violence in the Nigerian elections, which were originally scheduled to be held in February 2015.

The Prosecutor’s statement regarding the danger of election-related violence is grounded in ICC experience. She noted that “[e]xperience has shown that electoral competition, when gone astray, can give rise to violence and in the worst case scenarios, even trigger the commission of mass crimes that ‘shock the conscience of humanity.’” Severe factional post-election violence in Kenya (in 2007-08) and Ivory Coast (in 2010-11) led the Prosecutor to bring criminal charges against individuals in both countries.

The Prosecutor’s warning regarding Nigeria has teeth because preliminary examination conducted by her Office into previous violence in Nigeria have advanced to phase 3 (of four phases). Analysis in phase 3 follows upon previous determination that there is a reasonable basis to believe that requirements for the ICC’s subject matter and territorial jurisdiction can be met, and focuses on the question of whether investigation by national authorities is sufficient so as to preclude further investigation by the ICC.

The Prosecutor is looking into allegations of violence committed by Nigerian security forces, while also giving particular focus to widely reported actions by the Nigerian insurgent group, Boko Haram. On May 8, 2014, the Prosecutor issued a public condemnation of Boko Haram’s abduction of over 200 schoolgirls. In her February 2, 2015 statement, she noted that such actions, “which shock the conscience of humanity,” must be prosecuted by Nigerian authorities or by the ICC.

The ICC’s authorizing statute focuses on the investigation and prosecution of crimes already committed. It does not explicitly set out specific responsibility for the Prosecutor to take proactive measures to prevent future crimes. Nevertheless, in its November 2013 Policy Paper on Preliminary Examinations, the Office of the Prosecutor (OTP) stated that “prevention of crimes” is one of “the overarching goals of the statute.” Accordingly, the OTP will work “proactively,” which includes “issu[ing] public, preventive statements in order to deter the escalation of violence and the further commission of crimes ….”

To achieve these goals, the Prosecutor noted that she was sending a team from her Office to Nigeria “to further engage with the authorities and encourage the prevention of crimes.” She forcefully stated, “[n]o one should doubt my resolve, whenever necessary, to prosecute individuals responsible for the commission of ICC crimes.”

Following the Prosecutor’s February 2 statement, the Nigerian electoral commission announced that it was postponing the elections until March 28, 2015. The commission said the postponement was necessary because troops needed to protect polling stations in northern Nigeria, which had been diverted to address an upsurge of violence by Boko Haram. The postponement has met with diverse reactions in Nigeria and elsewhere. While some view it as necessary to prevent the disenfranchisement of voters in the north, others suspect it is part of an effort to keep the current government in power.

ICC Annual Summary: Reports on 2014 Preliminary Examination Activities

To follow up on our previous post, the International Criminal Court (ICC) in its December 2, 2014 press release published its annual Report on Preliminary Examination Activities conducted between Nov. 1, 2013 and Oct. 31, 2014. “Preliminary Examination” is a process by which the ICC determines whether a situation referred to it meets the legal criteria established by the Rome Statute to warrant investigation by the Prosecutor.

As the annual report explains in its introduction,

preliminary examination of a situation by the Office may be initiated on the bases of: a) information sent by individuals or groups, States, [IGOs], or [NGOs]; b) a referral from a State Party or the Security Council; or c) a declaration accepting the jurisdiction of the Court lodges pursuant to article 12(3) by a State which is not a Party to the Statute.

Article 53(1)(a)-(c) establishes that the Office shall consider jurisdiction, admissibility and the interest of justice when determining whether there is a reasonable basis to proceed with an investigation. The preliminary examination is an independent analysis of facts and information available. The ‘reasonable basis’ standard has been defined by Pre-Trial Chamber II to require that “there exists a sensible or reasonable justification for a belief that a crime falling within the jurisdiction of the Court has been or is being committed.”

During this past year, the ICC conducted preliminary examination in eleven situations: Afghanistan, Central African Republic, Colombia, Georgia, Guinea, Honduras, Iraq, Nigeria, Republic of North Korea, Registered Vessels of Comoros, Greece and Colombia, and Ukraine. In three situations the preliminary examination has been concluded. The Court found reasonable basis to proceed with an investigation into the Situation in the Central African Republic II and announced the opening of new investigation. Two situations (Republic of North Korea and Registered Vessels of Comoros, Greece, and Cambodia) were closed because the Prosecutor did not find reasonable basis to proceed with investigation. 

There are eight situations remaining in the preliminary examination stages. Five (Afghanistan, Colombia, Georgia, Guinea, and Nigeria) situations are in the third phase of examination when the Office considers admissibility by looking at the complementarity and gravity principle articulated in article 17. Three (Honduras, Iraq, and Ukraine) situations are in the second phase when the Office considers jurisdiction (temporal, either territorial or personal, and material).

With respect to the situation in Ukraine, the annual report outlines the Office’s activities since the situation was referred to the Court via article 12(3) declaration and it states that it focused on “gathering available information from reliable sources in order to assess whether the alleged crimes fall within the subject-matter jurisdiction of the Court.” The Office requested information from the Government of Ukraine, from representatives of Ukrainian civil society, delegation of members of the Ukrainian Parliamentary Committee on the Rule of Law and Justice, and the Office also conducted a mission in Kiev. The Office concludes that it will continue to

gather, verify, and analyse” information to determine whether “there is a reasonable basis to believe that crimes within the jurisdiction of the Court have been committed during the Maidan event in Ukraine.

The International Criminal Court Issues a Ruling in the Situation in Libya

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 21, 2014, the ICC Appeals Chamber, in a divided vote, rejected Libya’s appeal of an ICC Pre-Trial Chamber’s May 31, 2013, ruling that Libya’s criminal investigation of Saif Al-Islam Gaddafi was not sufficient to bar the ICC from conducting its own criminal proceedings against him. On February 26, 2011, the U.N. Security Council, pursuant to Chapter VII of the U.N. Charter and Article 13(b) of the Rome Statute, adopted Resolution 1970 referring the situation in Libya to the ICC for investigation of the violence occurring since 15 February 2011 between the Libyan government, then headed by Muammar Gaddafi, and anti-government protesters. In UN S.C. Res. 1970, the Security Council

[d]eplor[ed] the [Libyan government’s] gross and systematic violation of human rights, including the repression of peaceful demonstrators, [expressed] deep concern at the deaths of civilians, [and] reject[ed] unequivocally the incitement to hostility and violence against the civilian population made from the highest level of the Libyan government.

Following an investigation by the Prosecutor’s Office, on June 27, 2011, an ICC Pre-Trial Chamber issued arrest warrants for Muammar Gaddafi, his son Saif Al-Islam Gaddafi, and Gaddafi’s brother-in-law Abdullah Al-Senussi, on charges of crimes against humanity for murder and persecution. On November 22, 2011, the ICC terminated its case against Muammar Gaddafi following his death.

On May 13, 2014 (a week before the Appeals Chamber announced its ruling), the ICC Prosecutor reported to the Security Council on the situation in Libya and asserted that

Libya continues to be under a pending obligation to surrender [Saif Al-Islam Gaddafi] to the Court [and that] [t]he Government of Libya should immediately surrender Saif Al- Islam Gaddafi to the Court or give reasons for its inability to do so.

An issue on appeal was the proper interpretation of Article 17(1)(a) of the Rome Statute, which requires the ICC to find that a case is not admissible to the ICC when “[t]he case is being investigated or prosecuted by a State which has jurisdiction over it.” Article 19(2)(b) provides that such a State may raise an admissibility challenge in order to retain exclusive jurisdiction of the case. It was undisputed in the appeal that Libya was proceeding with an investigation of Saif Al-Islam Gaddafi that included some incidents referred to in the ICC’s arrest warrant for him. A significant issue on appeal was: How much similarity and overlap between the matters investigated by a domestic jurisdiction and an ICC investigation was required in deciding whether the scope and contours of a domestic investigation would render a ‘case’ inadmissible to the ICC under Article 17?

Libya argued that when interpreting Article 17, the principle of complementarity creates a strong presumption favoring domestic prosecution. By a 4-1 decision, the Appeals Chamber rejected Libya’s argument and held that the evidence provided by Libya regarding its investigation was insufficient to demonstrate that the actions for which Libya was investigating Saif Al-Islam Gaddafi included all matters for which the ICC sought to prosecute him.

In her dissenting opinion, Judge Ušacka explained that the majority’s interpretation of Article 17 did not give sufficient consideration to the importance of the complementarity principle. After reviewing the ICC’s previous admissibility decisions, she asserted in paragraph 39 of her dissent that Libya’s appeal

is the first admissibility case before the Court in which a State has submitted a wealth of information about its ongoing proceedings and has clearly expressed the will to investigate and prosecute the same suspects as well as conduct that is arguably even broader than that contained in the warrants of arrests.

Judge Ušacka added in paragraph 65 “as a concluding remark on the subject of complementarity,” that “the overall goal of the [Rome] Statute to combat impunity can … be achieved by the Court through means of active cooperation with the domestic authorities.” Judge Ušacka would have remanded the case to the Pre-Trial Chamber for consideration of the admissibility issue under a standard that she thought gave more adequate consideration to the Article 17 principle.

Ukraine: The ICC’s Authority Grows as Another Non-State Party Accepts Its Jurisdiction

Ukraine gained its independence from the former Soviet Union in 1991 when its parliament adopted the Act of Independence. Since then, Ukraine has worked to stabilize and grow as a new sovereign and independent state with the hope of joining the European Union. That hope was quashed in late 2013 when Viktor F. Yanukovych, then-president of Ukraine, won election for the third time (whether he actually won and whether it was done democratically is debated to date) and began to work closely with Russia rather than the European Union.

In November 2013, protests in Kiev and across Ukraine began. These protests continue today, resulting in almost one hundred dead and thousands injured. In light of the situation, Ukraine, not a party to the International Criminal Court (ICC) referred the situation to the Court, via declaration dated April 9, 2014, and accepted the Court’s jurisdiction. The Registrar of the ICC received this declaration on April 17, 2014.

In the Declaration of the Verkhovna Rada of Ukraine, Ukraine asks the Court to hold senior officials of Ukraine criminally liable for alleged crimes against humanity committed during peaceful protests that took place in Ukraine between Nov. 21, 2013 and Feb. 22, 2014,

namely Yanukovych Viktor Fedorovych – the President of Ukraine – and other officials to be determined by the Prosecutor….

Ukraine utilized the mechanism under Article 12(3) of the Rome Statute, which “enables a State not party to the Statute to accept the exercise of jurisdiction of the Court.” With acceptance of the jurisdiction comes the cooperation obligations described and enumerated under Part 9 of the Rome Statute. The next step is for the Office of the Prosecutor (OTP) to decide whether to initiate investigation into the referred situation. On Friday, April 25, 2014, as reported in the ICC’s press release, Fatima Bensouda

has decided to open preliminary examination into the situation in Ukraine in order to establish whether the Rome Statute criteria for opening an investigation are met.

This is the second time a State that is not party to the Rome Statute referred a situation to the Court. The first situation referred to the Court via the Article 12(3) mechanism was the Situation in the Republic of Côte d’Ivoire. Both situations, Côte d’Ivoire and Ukraine, present an interesting step in the evolution of the ICC’s jurisprudence that was anticipated in the Rome Statute (Article 12(3)) but used only twice. Cases currently pending at the ICC were either referred to the ICC by a State party or the Security Council, or investigation was initiated proprio motu by the Prosecutor. However, Article 12(3) offers a State that has not signed onto and ratified the Rome Statute, an international multilateral treaty, the chance to nevertheless accept the obligations and protections thereunder on a temporary basis.

One may argue that the 12(3) mechanism is circumventing the checks and balances guaranteed in Article 17 of the Statute, which makes the ICC’s jurisdiction complementary to a national jurisdiction. Article 17 states that a case is inadmissible to the ICC where

the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.

But because the process under Article 12(3) is initiated by a State not party to the Statute and is voluntary, it is the State that effectively gives up its own jurisdiction protected via Article 17 and accepts the one of ICC.

And how does this development affect the authority and power of the ICC? Greatly, because it is viewed as an authority with ability to carry out justice even by those who have not yet signed and ratified the Statute.

Related Readings:

The International Criminal Court’s Jurisdiction over Charles Blé Goudé

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 March 22, 2014, Ivory Coast authorities delivered Charles Blé Goudé to the International Criminal Court pursuant to an arrest warrant for Blé Goudé issued by the ICC. This raises an issue as to whether the ICC is the appropriate forum for the prosecution of Blé Goudé. See Ivory Coast Delivers Suspect to the International Criminal Court for additional background information.

As a result of an investigation by the ICC Prosecutor into the Ivory Coast Situation authorized in October 2011, three ICC arrest warrants have thus far been made public: for former President Gbagbo (Nov. 23, 2011), for Blé Goudé (Dec. 21, 2011), and for Simone Gbagbo (Feb. 29, 2012). All are Ivory Coast nationals potentially subject to prosecution in the Ivory Coast. The warrants for all three are based on the same four counts of crimes against humanity alleged to have been committed during the same period (from Dec. 16, 2010 to April 12, 2011). The Ivory Coast has delivered Laurent Gbagbo and Charles Blé Goudé to the ICC. However, according to news reports the Ivory Coast has stated its intention not to deliver Simone Gbagbo to the ICC but to prosecute her in its domestic courts, despite the fact that when the Pre-Trial Chamber issued the arrest warrant for her, it directed the ICC Registry to transmit a request to the Ivory Coast government to surrender her to the ICC.

This presents an interesting issue about complementarity. The Preamble of the Rome Statute “[r]ecall[s] that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes,” and “[e]mphasiz[es] that the International Criminal Court … shall be complementary to national criminal jurisdictions.” Article 17 of the Statute requires the ICC to defer to domestic jurisdiction unless the State with jurisdiction “is unwilling or unable genuinely to carry out the investigation or prosecution.”

The ICC Prosecutor addressed the Article 17 issue in January of last year reporting that the Prosecutor’s Office would open an investigation into the Situation in Mali, the most recent of the eight Situations currently before the ICC, which was referred to ICC for investigation in July 2012. The Prosecutor, finding support in ICC Pre-Trial Chamber opinion interpreting Article 17, stated in paragraph 136 that “[t]he absence of national proceedings is sufficient to render a case admissible.” By this logic, it would be appropriate for the ICC to prosecute Laurent Gbagbo and Charles Blé Goudé (because the Ivory Coast has chosen not to prosecute them) but not to prosecute Simone Gbagbo (because the Ivory Coast intends to prosecute her) – even though all three individuals are charged with responsibility for the same crimes on the territory of the Ivory Coast during the same time period.

Unless extenuating circumstances in the Ivory Coast suggest otherwise, this presents a possibility that State Parties – or non-State Parties who accept ICC jurisdiction pursuant to Article 12(3) – may choose selectively to prosecute some high authorities but not others, based on reasons of the State’s own choosing.

Such a possibility seems inconsistent with the Preamble of the Rome Statute and with policy statements issued by organs of the ICC. The Office of the Prosecutor and the Bureau of Assembly of States Parties have endorsed a “positive complementarity” policy to encourage and assist States to prosecute in their national courts crimes that may fall within the ICC’s subject matter jurisdiction.

William Schabas, a respected scholar on ICC issues, has addressed the complementarity issue as posed by Mali’s referral. Prof. Schabas stated that “[t]he profound flaw in the ‘self-referral’ model is that it flies in the face of ‘positive complementarity’. If Mali wants to ensure that its rebels are prosecuted, the Court should encourage it to do so by itself.”

An ICC Pre-Trial Chamber has scheduled a hearing for August 2014 to confirm the charges against Blé Goudé. At the hearing, Blé Goudé will have the opportunity to challenge the Court’s jurisdiction and the charges against him. Whether or not Blé Goudé, exercises his right under Article 19(2)(a), to challenge the admissibility of his case, Article 19(1) states that “[t]he Court may, on its own motion, determine the admissibility of a case in accordance with article 17.”

How the Pre-Trial Chamber deals with this matter will be important for the ICC’s complementarity jurisprudence.