Tagged: Office of the Prosecutor

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.

Related Readings:

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.”

ICC Prosecutor Expresses Concern About Upcoming Elections in Burundi

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.

In a statement issued on May 8, 2015, the ICC Prosecutor expressed concern about “the growing tensions in [Burundi] and reports that violence ahead of the [forthcoming] elections may escalate, which could lead to the commission of serious crimes falling within the jurisdiction of the International Criminal Court.” She warned that “[a]ny person who incites or engages in acts of mass violence, including by ordering, requesting, encouraging or contributing in any other manner to the commission of crimes within ICC’s jurisdiction is liable to prosecution before the Court.” She advised that “[her] Office, in accordance with its mandate under the Rome Statute, will be closely following developments in Burundi in the weeks to come and record any instance of incitement or resort to violence.”

As discussed in our previous post, the ICC Prosecutor proactively expressed similar concerns about elections to be held in Nigeria, warning that her Office stood ready to investigate election-related violence in that country that might provide for ICC jurisdiction.

Subsequently, reports indicated that the Nigerian elections proceeded reasonably well. Reuters reported that “[d]espite some technical glitches and the killing of more than a dozen voters by Boko Haram gunmen, the election has been the smoothest and most orderly in Nigeria’s history.” In her May 8 statement, the Prosecutor commented on the Nigerian election and stated that “[t]he recent elections in Nigeria have shown how commitment to peaceful elections by the electoral candidates can prevent mass violence.” While it cannot be determined at this time whether the Prosecutor’s statement in advance of the Nigerian elections contributed to a reasonably peaceful outcome, it may well have done so.

The Prosecutor’s statement about Burundi represents a further step in pursuit of her Office’s policy, articulated in the November 2013 Policy Paper on Preliminary Examination, to “issue public, preventive statements in order to deter the escalation of violence and the further commission of crimes.” Her statement regarding Nigeria addressed a situation in which her Office had previously commenced a preliminary investigation. Although Burundi, as Nigeria, is a State Party to the ICC Statute, the Prosecutor has not as yet opened an investigation into matters in Burundi. Accordingly, the Prosecutor’s May 8 statement represents a further initiative to also perform early warning function in line with the OTP’s prevention efforts.

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.