Tagged: ICC Prosecutor

U.S. Commission Calls for ICC Investigation of ISIL

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 30, 2015, the U.S. Commission on International Religious Freedom (USCIRF) issued its annual report on the condition of religious freedom around the world. In this report, the USCIRF recommends, among other things, that the U.S. Government call upon the UN Security Council to refer to the International Criminal Court (ICC) the widely publicized violence attributed to the Islamic State of Iraq and the Levant (ISIL).

The USCIRF is an independent, bipartisan U.S. federal government advisory body created by Congress through the International Religious Freedom Act of 1998 (IRFA). The USCIRF’s statutory mandate includes monitoring religious freedom conditions globally and making recommendations for U.S. policy. IRFA mandates that the USCIRF base such recommendations on international human rights instruments such as the UN Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights, and the Helsinki Accords.

The USCIRF’s 2015 annual report, which covers the period from January 31, 2014 through January 31, 2015, addresses troubling humanitarian issues in 33 countries. The report gives special attention to abuses committed in Syria and Iraq by forces associated with the Islamic State of Iraq and the Levant (ISIL). It states that in both of these countries “ISIL has unleashed waves of terror upon Yazidis and Christians, Shi’a and Sunnis, as well as others who have dared to oppose its extremist views.” The report charges ISIL with responsibility for summary executions, forced conversions, rape, sexual enslavement, abduction of children, and destruction of houses of worship.

Based on these findings, the USCIRF recommends that the U.S. Government “call for or support a referral by the UN Security Council to the [ICC] to investigate ISIL violations in Iraq and Syria against religious and ethnic minorities, following the models used [by the Security Council] in Sudan and Libya.”

The USCIRF’s report and recommendations regarding ISIL (aka ISIS) are in substantial accord with the published statements of the ICC Prosecutor. As written about previously, the ICC Prosecutor has expressed her grave concern about ISIL, while noting that in the absence of a Security Council referral, her office’s ability to investigate ISIL’s activities is limited by the ICC’s jurisdictional requirements.

Related Readings:

  • U.S. Commission on International Religious Freedom, Annual Report (2015).

The ICC Prosecutor Addresses Allegations Against ISIS

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 8, 2015, International Criminal Court Prosecutor Fatou Bensouda issued a statement responding to inquiries her Office has received regarding the widely publicized violence attributed to armed forces acting on behalf of the military and political organization known as ISIS. She noted that such violence is reported to include

mass executions, sexual slavery, rape and other forms of sexual and gender-based violence, torture, mutilation, enlistment and forced recruitment of children and the persecution of ethnic and religious minorities, not to mention the wanton destruction of cultural property.

The International Criminal Court is the only standing international criminal court available to investigate and prosecute crimes of an international character (such as those attributed to ISIS) when such crimes are not investigated and prosecuted by national courts. However, as a treaty-based institution, ICC jurisdiction is limited by rules consented to by State Parties relating to the alleged crimes at issue (subject matter jurisdiction) and to territorial and other requirements.

On August 15, 2014, the U.N. Security Council, acting under its Chapter VII powers took measures with respect to international peace and security and adopted S/RES/2170 (2014), condemning ISIS and other groups “for ongoing and multiple criminal terrorist acts aimed at causing the deaths of civilians and other victims, destruction of property and of cultural and religious sites, and greatly undermining stability.” Res. 2170 calls on U.N. Member States to take measures to interdict the flow of funding and recruits to ISIS. The Security Council has not as yet, however, referred the matter of ISIS-related violence to the ICC, as it could do under Article 13(b) of the Rome Statute.

The crimes allegedly committed by ISIS are of a scale and nature that would likely meet the ICC subject matter jurisdiction requirements – at least for initiating a preliminary investigation by the Prosecutor. However, that by itself is not sufficient to allow the Prosecutor, acting on her own initiative, to pursue an investigation. In the absence of a Security Council referral, either territorial jurisdiction (the alleged crimes were committed on the territory of a State Party) or personal jurisdiction (the alleged crimes were committed by a national(s) of a State Party) would need to be met.

The crimes alleged against ISIS were reported to be committed on the territory of Syria and Iraq, neither of which is an ICC State Party. Either country could nevertheless lodge an Article 12(3) declaration allowing the ICC to investigate, but at this point, neither has done so. Therefore, territorial jurisdiction is currently lacking.

As to the other alternative, the Prosecutor stated that she has information that “significant numbers” of ISIS fighters are nationals of ICC State Parties, including Tunisia, Jordan, France, the United Kingdom, Germany, Belgium, the Netherlands and Australia. She noted that some of these individuals may have committed crimes within the ICC’s subject matter jurisdiction. She noted also, however, that the information available to her Office indicates that the leadership of ISIS is composed primarily of nationals of the non-Party States of Iraq and Syria. Accordingly, given the OTP’s policy to focus on those most responsible for the commission of mass crimes, the prospect of exercising personal jurisdiction over any nationals of State Parties “appears limited” and “the jurisdictional basis for opening a preliminary examination into this situation is too narrow at this stage.”

Noting that “ISIS continues to spread terror on a massive scale in the territories it occupies,” the Prosecutor stated that she “remain[s] profoundly concerned by this situation” and that she will continue efforts, in consultation with relevant States, to gather further information. She emphasized the international community’s “collective duty … to respond to the plight of victims whose rights and dignity have been violated.”

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.

ICC Calls for Surrender of Two Suspects

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 December 10 and 11, 2014, Pre-Trial Chamber I of the International Criminal Court (ICC) issued decisions calling for delivery to the ICC of two persons under its arrest warrants.

The December 10 finding of non-compliance by Libya, under article 87(7), relates to Saif al-Islam Gaddafi, for whom the ICC issued an arrest warrant in May 2011, charging him with crimes against humanity allegedly committed by Libyan security forces under his command during anti-government protests. The December 11 decision on the admissibility relates to Simone Gbagbo, for whom the ICC issued an arrest warrant in February 2012, charging her with responsibility for crimes against humanity regarding violence committed by government forces against political opponents of her husband, former President Laurent Gbagbo, relating to the November 2010 Ivory Coast presidential election.

Ivory Coast was asserting its right under Rome Statute articles 17 and 19 to challenge the admissibility of Simone Gbagbo’s case on the ground that it was prosecuting her for the same crimes charged in the ICC arrest warrant. In the Gaddafi case, ICC courts had previously rejected Libya’s challenge to the admissibility of the ICC case against him and reminded Libya of its obligation to surrender him to the Court. Libya is not a State Party to the Rome Statute, but in February 2011 the U.N. Security Council acting under its Chapter VII powers issued a Resolution 1970 referring the Libyan situation to the Court and requiring Libyan authorities to fully cooperate with the ICC. The issue before the Court was whether Libya failed to comply with this obligation.

In the Ivory Coast situation, as blogged about earlier, the ICC issued arrest warrants against Ivory Coast nationals Laurent Gbagbo, Simone Gbagbo, and Charles Blé Goudé – all on the same charges relating to the same events. The Ivory Coast government chose to surrender Laurent Gbagbo and Charles Blé Goudé to the ICC, but not Simone Gbagbo. The government’s reasons for this selection are not fully apparent from court documents. Nevertheless, the Ivory Coast decided to challenge the admissibility of Simone Gbagbo’s case. The Court rejected this challenge, finding that the Ivory Coast government failed to show that it was investigating and prosecuting Gbagbo for the same criminal conduct alleged by the ICC Prosecutor. The Court concluded that Ivory Coast must “surrender Simone Gbagbo to the Court without delay.”

With respect to the Gaddafi case, the Court found that Libya failed to comply with repeated requests to deliver Gaddafi to the Court and also failed to comply with requests to return to the Defense privileged documents that Libyan authorities had seized from Gaddafi’s defense counsel. Determining that Libya was depriving the defendant of his rights and preventing the Court from fulfilling its mandate, the Court, under article 87(7), referred the matter to the Security Council, so that the Council may consider measures to secure Libya’s compliance.

ICC had previously utilized article 87(7) to inform the Security Council of the failure of authorities in Chad, Malawi, and the Democratic Republic of the Congo to arrest and surrender Sudanese President Omar al-Bashir, for whom ICC issued arrest warrants charging him with responsibility for war crimes, crimes against humanity, and genocide, committed during the conflict in Darfur. Al-Bashir remains at large.

In the week preceding the Gaddafi finding, the Trial Chamber V(B) rendered Decision on Prosecution’s application for a finding of non-compliance under article 87(7) stating that the Government of Kenya, a State Party to the Rome Statute, had breached its treaty obligation by failing to provide the Prosecutor with access to information necessary for the case against Kenyan President Kenyatta on charges of crimes against humanity committed during the 2007-2008 post-election violence in Kenya. As a result of Kenya’s breach, ICC Prosecutor Bensouda withdrew the charges against Kenyatta without prejudice. In a December 5, 2014 press release, Bensouda stated that this was “a painful moment for the men, women and children who have suffered tremendously from the horrors of the post-election violence, and who have waited, patiently, for almost seven years to see justice done.”

The Kenyatta, al-Bashir, Gaddafi, and Simone Gbagbo cases illustrate the difficulties the ICC confronts in carrying out its responsibilities to prosecute grave international crimes.