Tagged: crimes against humanity

The ICC Reports on 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 November 12, 2014, ICC Prosecutor Fatou Bensouda presented the U.N. Security Council with a report on “the deteriorating situation” in Libya, calling the Council’s attention to several disturbing matters that the OTP is confronting in its work in Libya.

The Security Council referred the situation in Libya to the ICC in 2011, pursuant to the authority accorded to it by Article 13(b) of the Rome Statute and by Chapter VII of the U.N. Charter. This was the second time the Council referred a situation of violent internal conflict to the ICC; the first time was in 2005, with respect to the violence in Darfur, Sudan. The ICC Prosecutor has been pursuing cases against several suspects in both of these situations.

In both, the ICC has encountered severe difficulties in carrying out its responsibilities. With respect to the Darfur situation, four of the suspects subject to ICC arrest warrants remain at large. As noted here, earlier this year the Prosecutor asked the Council for further assistance in dealing with the failure of several countries to execute the ICC arrest warrant for Sudan President Omar al-Bashir. As noted here, in April 2014 the ICC Pre-Trial Chamber issued a rebuke to the Democratic Republic of the Congo for failing to arrest al-Bashir when the Chamber, having advance notice of al-Bashir’s visit to the DRC, issued a request to the DRC for his arrest. The DRC is a State Party to the Rome Statute; Article 86 of the Statute requires that “State Parties shall … cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.”

With respect to the Libya situation, Prosecutor Bensouda advised that despite elections in Libya in June 2014, political instability is increasing as two governments vie for legitimacy. She also noted that there have been several assassinations and numerous threats made against human rights workers, judges, prosecutors, and others. She reported that the deteriorating security situation in the country is making it very difficult for her Office to pursue its work, including, among other matters, the Office’s ability to investigate “new instances of mass crimes allegedly committed by the rebel forces.”

The Prosecutor expressed her Office’s “great concern” regarding “the continued failure of the Government of Libya to surrender Saif Al-Islam Gaddafi to the custody of the International Criminal Court.” On June 27, 2011, the ICC issued an arrest warrant for Saif Al-Islam Gaddafi on two counts of crimes against humanity but he remains at large. Regarding Abdullah Al-Senussi, whom the ICC previously sought for prosecution, the Prosecutor stated that because of the on-going violence in Libya that may endanger the possibility of a fair trial for Al-Senussi, she may apply for review of decisions by ICC courts deferring to Libya’s prosecution of him.

Prosecutor Bensouda called upon Libya for cooperation, and she stated that “the international community could be more proactive in exploring solutions in order to tangibly help restore stability and strengthen accountability for Rome Statute crimes in Libya.”

The Prosecutor’s October 23 and November 12 statements to the Security Council suggest that ICC prosecutions of cases following a Security Council referral are encountering difficulties that go beyond those encountered by prosecutors authorized to prosecute cases in the ad hoc tribunals established through Security Council resolutions prior to the Rome Statute’s entry into force in 2002. If the ICC is to be able to carry out its responsibilities – especially with regard to Security Council referrals – the Prosecutor seems to be correct that additional support for the ICC will be needed from the Security Council, from States affected, and from the international community in general.

ICC Opens Second Investigation into Central African Republic

On September 24, 2014 Fatou Bensouda, the Prosecutor of the International Criminal Court (ICC), announced in a press release her decision to open a second investigation in the Central African Republic (CAR). Pursuant to Arts. 13(a) and 14 of the Rome Statute, the transitional government of CAR referred its situation “regarding crimes allegedly committed on CAR territory since 1 August 2012” to the Office of the Prosecutor (OTP). Once such a State Party referral is received, the Prosecutor opens a preliminary examination, according to Article 18, to assess whether the OTP can proceed with an investigation. In accordance with article 53(1), the Prosecutor’s office conducted an independent preliminary examination and concluded that

[t]he information available provides a reasonable basis to believe that both the Séléka and the anti-balaka groups have committed crimes against humanity and war crimes including murder, rape, forced displacement, persecution, pillaging, attacks against humanitarian missions and the use of children under fifteen in combat. The list of atrocities is endless. I cannot ignore these alleged crimes, [Prosecutor Bensouda stated].

Article 53(1) Report of the Situation in the Central African Republic II outlines the scope of preliminary examination conducted by the OTP, which includes analysis of the preconditions to Court’s jurisdiction, the Court’s subject-matter jurisdiction over the alleged crimes, the admissibility issues articulated in Article 17, and the overall interest of justice. The conclusions of the preliminary examination provided reasonable basis for the OTP to initiate an investigation. You may follow the developments in both situations on the Court’s website:

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:

ICC Pursues the Arrest of Al Bashir

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 April 9, 2014, the Pre-Trial Chamber II of the International Criminal Court (ICC) issued a decision chastising the Democratic Republic of the Congo (DRC) for failing to comply with ICC requests for the arrest and surrender of Omar Al Bashir, the President of Sudan.

In March 2005, the U.N. Security Council adopted a resolution referring the Situation in Darfur, Sudan, to the ICC for investigation. This was the first time the Security Council referred a situation to the ICC pursuant to Chapter VII of the U.N. Charter and Article 13(b) of the ICC’s Rome Statute. Following an investigation by the ICC Prosecutor, the ICC issued two arrest warrants for Al Bashir, first in March 2009 and second in July 2010, charging him with responsibility for war crimes, crimes against humanity, and genocide, committed during the bloody conflict in Darfur.

The Pre-Trial Chamber’s rebuke of the DRC was occasioned by the DRC’s failure to arrest Al Bashir when in late February 2014, he visited the DRC to participate in a summit conference of African leaders to discuss matters of common economic concern in Eastern and Southern Africa. Having advance notice of this visit, the Pre-Trial Chamber issued a request to the DRC to arrest and surrender Al Bashir, pursuant to the previously issued warrants. The DRC is a State Party to the Rome Statute, and Part IX of the Statute requires State Parties to cooperate with the ICC with regard, among other matters, to the arrest and surrender of persons for whom the ICC has issued an arrest warrant.

Among its reasons for not arresting Al Bashir during his February visit, the DRC asserted that it was obligated to respect Al Bashir’s immunity as a head of state, despite the fact that Article 27 of the Rome Statute does not recognize head of state immunity as a bar to ICC prosecution. The DRC, not implausibly, found authority for its position in Rome Statute Article 98(1), which states that the ICC “may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.” Sudan is such a “third State,” not being a State Party.

The Pre-Trial Chamber found the DRC’s claim unavailing because of the Security Council’s referral of the Sudan Situation to the ICC. The Chamber stated in paragraph 31 of its Decision that the Security Council, when referring the Darfur Situation by way of a Resolution pursuant to its Chapter VII authority, “implicitly lifted the immunities of Omar Al Bashir ….” (Both the DRC and Sudan are U.N. members, subject to Security Council authority.)

The Chamber forcefully stated in paragraph 33 of its decision that compliance with a Security Council referral to the ICC was of paramount importance; otherwise such a referral “would never achieve its ultimate goal … to put an end to impunity.”

The Chamber found that the DRC’s failure to arrest Al Bashir constituted a failure of the DRC to comply with its obligations to cooperate with the ICC. Accordingly, the Chamber stated that it was referring its decision to the Security Council and to the Assembly of State Parties.

The Chamber has made a strong statement in support of the ICC’s mandate. But its decision will continue some of the political controversies in which the ICC has been involved, especially given the fact that the DRC and Sudan are member States of the African Union, which has criticized the ICC for allegedly giving excessive and inappropriate attention to affairs in Africa.

Ivory Coast Delivers Suspect to the International Criminal Court

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 (Côte d´Ivoire) authorities delivered Charles Blé Goudé to the International Criminal Court (ICC) in The Hague, pursuant to an arrest warrant issued by an ICC Pre-Trial Chamber on December 21, 2011. The warrant was based on information that Blé Goudé bears responsibility for crimes committed by militia forces under his command in the aftermath of the Ivory Coast presidential election in November 2010. After the election, a civil war broke out between forces of former President Laurent Gbagbo (who lost his bid for re-election) and supporters of the newly elected President Alassane Ouattara. More than 3,000 people were killed during this civil war. Blé Goudé, a supporter of Gbagbo, is accused of being responsible as an “indirect co-perpetrator” on four counts of crimes against humanity: murder, rape and other forms of sexual violence, other inhumane acts, and persecution. All of these acts are listed in Article 7 of the ICC’s Rome Statute as the basis for a charge of crimes against humanity “when committed as part of a widespread or systematic attack directed against any civilian population ….”

The Ivory Coast was not a Party to the ICC’s Rome Statute at the time the crimes charged were committed. The Ivory Coast deposited its instrument of ratification of the Rome Statute on February 15, 2013.  However, many years earlier, in April 2003, the Ivory Coast Government under then-President Gbagbo accepted ICC jurisdiction over crimes committed on its territory during a previous period of violence. This was done pursuant to Rome Statute Article 12(3), which provides that a non-State Party may lodge a declaration with the ICC accepting jurisdiction over acts committed on its territory that constitute crimes within the ICC’s subject matter jurisdiction. By letters to the ICC in December 2010 and May 2011, newly elected President Ouattara reaffirmed the validity of the April 2003 Declaration (original) and his government’s willingness to cooperate with the ICC.

Following these letters, the ICC Prosecutor requested authorization from the Pre-Trial Chamber to initiate an investigation of the Ivory Coast Situation, which the Chamber provided in October 2011. The Chamber found that information submitted by the Prosecutor provided reasonable grounds to believe that pro-Gbagbo forces committed crimes against civilians that are within the ICC’s subject matter jurisdiction. Among the materials submitted by the Prosecutor were several public reports authored by Human Rights Watch and by the United Nations High Commissioner for Human Rights, informing of murders and rapes committed by pro-Gbagbo forces against civilians who were, or were suspected to be, loyal to Alassane Ouattara.

When two months later, in December 2011, the Pre-Trial Chamber issued the arrest warrant for Blé Goudé, it noted that the Prosecutor’s submission that Blé Goudé is liable as an “indirect co-perpetrator” under Rome Statute Article 25(3)(a) “may well need to be revisited in due course with the parties and participants.” Article 61 of the Rome Statute requires that within a reasonable time after an accused person has been surrendered to the Court, the Pre-Trial Chamber must hold a hearing to confirm the charges. This hearing will provide Blé Goudé an opportunity to challenge the charges against him. It will be the Pre-Trial Chamber’s duty to determine, on the basis of the hearing, whether, pursuant to Article 61(7), “there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged.” If one or more of the charges are confirmed and the case goes to trial, the Trial Chamber must be convinced, pursuant to Article 66(3), of the defendant’s guilt beyond a reasonable doubt.