Tagged: impunity

More States To Withdraw from the ICC?

Shortly after three African States (Burundi, Gambia, and the Republic of South Africa) announced their intention to leave the International Criminal Court (each citing their own specific reasons), on November 16, the Russian Foreign Ministry issued a statement announcing its intention not to ratify the Rome Statute stating that

The ICC as the first permanent body of international criminal justice inspired high hopes of the international community in the fight against impunity in the context of common efforts to maintain international peace and security, to settle ongoing conflicts and to prevent new tensions. Unfortunately the Court failed to meet the expectations to become a truly independent, authoritative international tribunal.

The Russian President issued a Decree on the intention not to become party to the Rome Statue, becoming a fourth state to openly point out its disappointment with the institution.

On the same day,the High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, in a press release called on the international community to not give up on the Court and to “stand by the Rome Statute and the Court.” He emphasized the need to stand with this institution and continue to support it.

To make matters worse, just one day after the Russian announcement, Philippine President Rodrigo Duterte, speaking from his home, also threatened to withdraw from the International Criminal Court by stating

They [Russians] may have thought the International Criminal Court is [useless], so they withdrew their membership … I might follow. Why? Because these shameless bullies only picked on small countries like us.

Some speculated that Duterte’s statement was nothing more than just a well-timed response to Prosecutor Bensouda’s statement on the situation in the Philippines, in which Bensouda made it very clear that anyone engaging in any form of acts of mass violence could potentially be prosecuted by the Court.

Whether in response to OTP’s statement or just in light of the exodus of State Parties from the ICC, Philippines is the fifth state, in a span of less than a month, to publicly disavow its loyalties to and faith in the Court and its effectiveness.  It will be interesting to see how the rest of the international community and the Court itself tackles these, hopefully, temporary setbacks.

More States Announce Intention to Withdraw from the ICC

Following Burundi’s example, two more African States announced their intention to leave the International Criminal Court: South Africa and Gambia.

South Africa has had a controversial relationship with the ICC since last year when it disregarded its responsibility to cooperate with the Court by refusing to arrest the then-visiting Sudanese President Omar al-Bashir. South Africa argued that such an obligation was in direct conflict with its domestic laws governing diplomatic immunity. Although the South African Court later ruled that letting President al-Bashir leave South Africa in 2015 was ‘disgraceful’, the South African Government has continued to state that the Rome Statute (namely Art. 27 addressing non-recognition of any form of immunity) is in direct conflict with South Africa’s Diplomatic Immunities and Privileges Act. The decision to withdraw from the ICC will become effective one year from the day the document withdrawing from the ICC was signed, October 19, 2016.

Following South Africa, Gambia this week also announced its intention to leave the ICC. In the televised announcement, Information Minister Sheriff Bojang said that

[t]his action is warranted by the fact that the ICC, despite being called the International Criminal Court, is in fact an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans.

Gambia cites reasons that are similar to those given by Burundi – that the ICC targets African States. In fact, the Court’s mandate, as stated in the Preamble of the Rome Statute, is to fight impunity by ensuring that “the most serious crimes of concern to the international community as a whole must not go unpunished.” The Court is tasked with focusing on the international community, yet it has predominantly focused on number of African States. So far, the Court has officially investigated the Democratic Republic of Congo, Uganda, Central African Republic, Sudan, Kenya, Libya, Mali, Côte d’Ivoire, and Georgia; and the Court has conducted preliminary examinations (not always leading to opening an official investigation), among others, in Palestine, Afghanistan, Honduras, Republic of Korea, Nigeria, Colombia, Georgia, Guinea, Libya, Ukraine, Iraq, Venezuela, and Burundi.

This recent development by three African states – Burundi, Gambia, and South Africa – based on the allegation that the Court targets Africa presents a major blow to the already unstable reputation of the International Criminal Court, the first permanent criminal court of its kind.

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Burundi: The First State to Withdraw from the ICC

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.

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Case Selection and Prioritization at the ICC

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.”

The Humanitarian Crisis in Syria

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.

An article in the New York Times on October 6, 2015 on the conflict in Syria states that the conflict “has left 250,000 people dead and displaced half the country’s population since it started in 2011.”

This horrifying statement is contained in a dependent clause in a sentence in the sixth paragraph of an article on Russia’s intervention in the Syrian conflict. This placement unfortunately may reflect that the massive human suffering in Syria is becoming an afterthought to the quarrels among world powers regarding Syria.

What is happening to the people of Syria is difficult for most people to imagine. Americans will remember that thousands of their fellow citizens were displaced from their homes when Hurricane Katrina struck New Orleans in 2005. Most of these have returned home, but many have been unable to do so because what were their homes no longer exists.

The forced evacuation of a city like New Orleans is a frightening event. The present writer was one of those who experienced it. On the morning before the hurricane struck, I learned from radio reports that Katrina was not veering off, would hit the city in about 24 hours with great destruction, and all should evacuate. Not having a car, I stuffed some things in a kit bag, left my apartment in the Uptown District, and started walking toward downtown – not knowing where in particular I was going or what was going to happen to me. I managed to make my way to the Superdome, where about 25,000 others and I took shelter in harsh conditions for five days, before being evacuated.

The difficulties that my fellow refugees and I experienced at that time were as nothing compared to the terror and extreme hardships now being experienced by the people of Syria. We were evacuating our city, not our country. And our displacement was caused by a natural disaster, whose effects, for the most part, were temporary. It is a very different thing to be forced to flee not only your home, but also your country, because vicious people are more than willing to kill you and your family because of your political sympathies or because of your religious beliefs or because you just happen to be in the way.

The horrendous numbers of dead and displaced in Syria strongly support a conclusion that such massive suffering could not have happened without the commission of war crimes and crimes against humanity by participants in the conflict. Whether there will ever be investigation or prosecution of such crimes by the International Criminal Court is far from clear. The U.N. Security Council has authority under the ICC’s Statute and Chapter VII of the U.N. Charter to refer the Syrian situation to the ICC, but such referral is unlikely because of the veto power of one or more of the Council’s permanent members.

The Preamble of the ICC’s Statute articulates its ratifiers’ “[d]etermin[ation] to put an end to impunity for the perpetrators” of “grave crimes [that] threaten the peace, security and well being of the world.” It seems that regarding what is happening in Syria, this goal will remain for the moment a mere aspiration, and, as the quarrel among world powers intensifies, the suffering of the Syrian people will remain an afterthought.

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