Tagged: investigation

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.”

International Criminal Court Welcomes Palestine as a State Party

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.

To follow up on an earlier post, on April 1, 2015 at a ceremony at The Hague the representatives of the International Criminal Court (ICC) welcomed Palestine as the 123rd Party to the ICC’s Rome Statute. The ICC representatives expressed hope that Palestine’s acceptance of the Rome Statute will contribute to the Statute’s goal of ending impunity for grave crimes of an international dimension.

Mindful of hotly contested issues relating to the Palestinian territory of Gaza, from which Hamas has launched attacks against Israel and in which Israel has launched attacks against Hamas, Judge Kuniko Ozaki, delivering Welcoming Ceremony remarks in the capacity of Acting President of the ICC, reminded Palestine that by becoming a State Party, it accepted the obligations (set out in Part 9 of the Rome Statute) requiring a State Party to “cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.”

The ICC Office of the Prosecutor (OTP) recently addressed issues relating to Gaza. In May 2013, the OTP opened a preliminary examination into an incident on May 31, 2010 relating to Israel’s naval blockade of Gaza. At issue was whether the OTP had sufficient basis to open a formal investigation regarding war crimes allegedly committed by members of the Israeli Defense Force (IDF) when they boarded registered vessels of ICC State Parties that were attempting to defy the blockade. After conducting a preliminary examination for approximately 17 months, on November 6, 2014 the OTP issued a report pursuant to Article 53(1) of the Rome Statute, in which it thoroughly reviewed the matter and decided not to open a formal investigation.

The OTP’s report concludes that Israel’s stated purpose for the blockade was to interdict arms shipments that it considered would be used by Hamas for attacks against Israel. In May 2010, groups opposing the blockade organized a flotilla to bring humanitarian aid to the Palestinians and also to protest and to encourage international condemnation of the blockade. Israel had offered to allow the humanitarian aid to be delivered to Palestine by other means. On May 31, 2010, IDF personnel boarded some of the vessels after providing a warning. Several passengers on board one of the vessels violently resisted the IDF, but this resistance was not of such a degree as to disqualify the resisting passengers’ status as protected persons under the Geneva Conventions. While the information available did not support several potential charges, there was a reasonable basis to believe that the IDF willfully killed ten of the 500+ passengers, caused serious injury to several others, and committed outrages upon personal dignity of others. Nevertheless, the scale of the crimes involved, given the surrounding circumstances, did not meet the gravity requirement of Articles 17(1)(d) and 53(1)(d) of the Rome Statute.

Further, Rome Statute Article 8, defining war crimes, provides somewhat different rules depending on whether the acts in question were committed in the context of an international or non-international armed conflict. Addressing this issue, the OTP report concluded that “the prevalent view within the international community is that Israel remains an occupying power in Gaza” because of several controlling measures taken by Israel – despite Israel’s withdrawal of its forces from Gaza and the dismantling of Israeli settlements there in 2005. Citing basic principles of the international law of occupation, the OTP concluded that because Israel retains the capability of exercising effective control over Gaza, hostilities between Israel and Hamas implicated an international armed conflict.

Thus, if Israel is in fact in effective control of Gaza, ICC investigation of Gaza-related violence will likely be hampered because Israel, not being a Party to the ICC Statute, has no obligation to comply with ICC investigations. On the other hand, Palestine can find support in the international law of occupation, referenced by the OTP, stating that occupation of a State over part of the territory of another State does not displace the sovereignty of the latter over the occupied territory.

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.

Ferguson After Grand Jury

The killing of Michael Brown in Ferguson, Missouri, has been in the media forefront since the tragic shooting in August 2014 but it gained new traction recently when the Ferguson Grand Jury decided not to indict police officer Darren Wilson. Traditionally, a grand jury hearing is a one-sided presentation of the facts and evidence by the prosecutor. Not here, however: District Attorney Robert McCulloch decided to let the grand jury hear all the evidence, including a narrative statement by the target. Why? Take a moment to explore this question and read Reflecting on the Ferguson Grand Jury by Joel Cohen & Bennett L. Gershman.

The central irony in this case is that the familiar abuses in the grand jury process typically occur when prosecutors refuse to present all of the evidence and, indeed, hide evidence that might have led a grand jury to refuse to indict – to vote a “no true bill.” What is particularly odd about the Ferguson Grand Jury presentation is the complaint that by his decision to present all of the evidence, McCulloch actually dis-served the prosecution. Why did McCulloch take these steps? We do not know, and we are likely never to know.

Professors, Prosecutor, and Police Chief Address Cell Phone Searches after Riley

POST WRITTEN BY: Rebecca Arbolino (’16), Pace law School

On October 7, 2014, Pace Law School CLE and the Pace Law School Criminal Justice Institute co-hosted “Cell Phone Searches after Riley: Investigative and Evidentiary Issues.” The CLE commenced in the Gerber Glass Law Library Moot Court Room. Streaming video of the event was available online from Pace Law School.

Pace Law Professors Bennett Gershman, David Dorfman, and David Bender, along with two distinguished Pace Alumni, discussed the implications of the recent Supreme Court decision in Riley v. California.  Professor Bender is not only a professor at Pace Law but also a sole practitioner with extensive experience in technology and privacy litigation. Thomas Kapp, an Assistant District Attorney for Bronx County, and Chris McNerney, Esq., the Chief of Police for the Town of Greenburgh, added insight and practical depth to the scholarly panel. The moderator, Pace Law School 3L Annmarie Stephanic, began the event with a recorded webinar conversation between Prof. Gershman, a former defense litigator and prosecutor and A.D.A. Thomas Kapp. After the webinar, the panelists discussed Fourth Amendment issues after Riley. Finally, the panelists answered questions from attendees.

Webinar

The webinar elucidated the main issues presented by Riley. Professor Gershman remarked upon Riley as a “landmark case.”  Riley is the first Supreme Court decision about police intrusion upon technological privacy, and Gershman found that the decision’s unanimity was “startling.”

A.D.A. Kapp explained that the practical implications for policing are minor: most prosecutors find it prudent not to use evidence acquired through warrantless cell phone searches. Rules for New York State and other states for searches incident to valid arrests required warrants to search cell phones before Riley in the absence of exigent circumstances or consent. According to Kapp, since the scope of Riley’s holding is limited to cell phones, warrantless searches of digital devices such as flash drives and digital cameras are still permissible.

Gershman agreed with the limited scope of Riley, but applied the reasoning therein to other devices like laptops: if an item’s immense storage capacity heightens the privacy intrusion of searching that item, then searches of digital devices similar to cell phones involve a heightened individual privacy interest. Under the Fourth Amendment reasonableness balancing test for warrantless searches, the question is whether any legitimate government interest outweighs the intrusion upon individual privacy interest. If the heightened privacy interest in cell phones expressed in Riley applies to similar devices like laptops, then the scales may tip toward requiring warrants to search those similar devices.

Kapp called Riley “a seminal case for the digital world” because the Supreme Court finally recognized the individual “right to digital privacy.”

Panel Discussion

Following the showing of the webinar, the panel discussion began with Prof. Bender explaining the rapid changes in privacy law. Privacy law changes in response to developments in technology such are drones and data mining.

Prof. Dorfman ignited the conversation with a criminal defense perspective: although police can often obtain a search warrant quickly, problems specific to searches of cell phones arise in applying for and issuing warrants. For example, if an officer arrests someone for selling drugs and he discovers a cell phone on the arrestee’s person, then is there a sufficient nexus between the drug selling and cell phone to establish probable cause for searching the cell phone? Prof. Dorfman further remarked upon Riley’s impacts for particularity in warrants to search cell phones: if cell phones contain immense amounts of data and are subject to heightened privacy interests, then do warrants to search cell phones require more particularity than they did before Riley?

Police Chief McNerney explained that officers in New York State almost always apply for a search warrant to search a cell phone. In applying for a search warrant, the officer asks for permission to search all possible areas in which he may obtain evidence of the crime, and the judge limits the officer’s requests. Satisfying the particularity requirement is thus the province of judges.

A.D.A. Kapp predicted that search warrants for both cell phones and other digital devices like computers will soon be subject to heightened particularity requirements. Although the particularity requirement presents specific problem in the context of digital searches, judges may decide to limit the scope of digital searches by issuing particularized warrants thereof.

Prof. Gershman mentioned the doctrine of minimization. Minimization requires particularity in order to avoid the search of information that is either privileged or unrelated to the crime.

Despite the Circuit Split about the particularity requirement for digital search warrants, Prof. Bender suggested the following procedure as a way to satisfy the doctrine of minimization. Officers create a bitstream copy, or mirror image, of the data to be searched. After a neutral third party conducts the search of the bitstream copy, the third party then provides officers with only information that is both non-privileged and relevant to the offense.

Prof. Dorfman further elaborated upon the framers’ concerns about “general searches.”  The doctrine of minimization and the particularity requirement are designed to prevent such searches. The Riley court explained that a search of a person’s cell phone is more intrusive than a search of his house is. The problem with particularity in searches of cell phones arises because of the plain view doctrine. For example, if officers are conducting a valid search for contraband ‘X’, then officers can seize contraband ‘Y’ so long as contraband ‘Y’ is in plain view during the search for contraband ‘X’. Evidence in plain view of crimes irrelevant to the authorized search is especially problematic in searches of cell phones with immense storage capacities.

According to Chief McNerney, the constitutionality of cell phone searches ultimately “boils down to reasonableness.” Prof. Dorfman explained, however, that “reasonableness” is not all-or-nothing: an individual who uses technology does not necessarily relinquish his right to privacy.

Prof. Gershman and the panelists ended the discussion with the framers’ intent: the framers themselves could not have imagined a device like a cell phone. Surprisingly, though, the Supreme Court originalists agreed that cell phones deserve heightened privacy protection. The Supreme Court pushes principles until they become illogical. In United States v. Robinson, 414 U.S. 218 (1973), the assumption that defendant had no expectation of privacy in his cigarette pack rang true. In Riley, however, the assumption that defendants had no expectation of privacy in their cell phones became illogical.

Q &A Session

An astute attendee asked about the significance of Riley’s warrant requirement, given the various exceptions thereto. Namely, if warrantless searches are permissible when no exigent circumstance exists, the owner consents to the search, or the officer conducts an inventory search, then does the warrant requirement change anything?

Although the panel understood exigent circumstances as a valid exception to the warrant requirement for nearly any search, panelists opined about consent and inventory searches. Chief McNerney explained that consent can be problematic.  The NYPD, for example, required specific, written consent forms instead of verbal consent.

A.D.A. Kapp wondered if the exception for inventory searches applies to cell phones: if cell phones are containers, then inventory searches thereof ensure that the owner cannot later claim that data is missing. Riley does not address whether a warrantless inventory search to catalog cell phone data is reasonable under the Fourth Amendment. Prof. Dorfman responded that an inventory search cannot be a ruse for an investigative search: the police have the burden to create a non-investigatory procedure for inventory searches.

Prof. Dorfman also inquired about whether warrantless searches of other digital devices stored in a vehicle fall under the automobile exception to the warrant requirement. Riley requires a warrant for cell phones within a legal automobile stop, even when officers have probable cause to believe that there is contraband inside the automobile. Riley does not, however, address whether searches of similar devices require warrants within the context of the automobile exception.

Another attendee asked about Riley’s rejection of applying the container analogy to cell phones: are there further implications for searches of similar, non-container devices? The panel agreed that Riley’s rejection of the container analogy to cell phones implies changes in the future of digital searches, but expressed that Riley does not illuminate the nature of those changes. Prof. Dorfman explained the impossibility of applying the constitutional text and framers’ intent to searches of intangible things like digital data: such application is like trying to fit “a square peg into a round hole.”  Prof.  Bender said that it may be best for the legislature to answer such questions.

Prof. Gershman concluded the discussion stating that both the judiciary and the legislature are “behind the curve perpetually” in the light of rapidly changing technology.