Tagged: Office of the Prosecutor

2015 Pace International Criminal Court Moot

Pace Law School is proud to host the 15th annual Pace International Criminal Court Moot: Qualifying Round of the Americas on March 21-22, 2015 and welcome the participating teams. Preliminary rounds begin on Saturday, March 21, 2015 at 9:00 AM and the semi-final and final rounds will be held on Sunday, March 22, 2015 followed by a reception and award ceremony. The 2015 case presents the participating teams with the following issues:

  1. Whether Astafur is competent to make an Article 12(3) Declaration, triggering the jurisdiction of the Court over war crimes committed in Pantos, despite its lack of effective control over the territory of Pantos at the time of submission of the Declaration;
  2. Whether the Court has jurisdiction under the objective territorial principle over crimes committed by a Non-Party State (Braanos) via cyberspace that have an effect in a State (Astafur) that has lodged an Article 12(3) Declaration;
  3.  Whether the widespread disruption of communications and electricity during a revolt against the government of Astafur via Distributed Denial of Service attack constitutes a war crime; and
  4. Whether there must be two different victims’ legal teams under separate Victims’ Legal Representatives in this case because one portion of the victims supported secession and the other favored remaining part of Astafur.

Are you interested in judging the competition and earn CLE credits? Contact the Director, Prof. Matthew Brotmann directly at PaceICCMC@gmail.com.

From the Director of ICC Moot, Prof. Matthew Brotmann

Pace logo for ICCPace Law School has partnered Leiden University’s Grotius Center to become the official moot competition of the International Criminal Court. The upcoming competition to be held at Pace Law School is the qualifying round for the ICC Trial Competition to be held in The Hague, May, 2015. The top teams from each country competing in the Round of the Americas advance to the finals in The Hague, to compete against qualifying teams from other areas of the world. The Round of the Americas is open to all law students from the North, Central and South America as well as the Caribbean region. All other international students compete in the qualifying rounds at The Hague, unless requested otherwise.

Each team submits three memorials (briefs) requiring the students to research and develop arguments based on the three participants in ICC prosecutions, i.e., the Prosecution, the Defence and the Victims’ Advocates or Government Counsel, a new role developed for the first time for the International Criminal Court. These memorials are evaluated by legal scholars, and prizes are awarded for best brief, second place runner-up, and third place runner-up in each of the three categories of memorials. Perhaps the most exciting feature of the Moot, and one unique to this competition, is that each team of students participates in three rounds of oral arguments and has the opportunity of arguing all three perspectives: prosecutor, defence counsel and victims’ advocate or government counsel. Participating students all commented that they had never experienced a better way of learning the substantive and procedural law in a given area and fully developing the arguments of the parties than by having the opportunity to make those arguments from all three perspectives during the Moot.

The purpose of the Competition is to develop expertise in international criminal law, as practiced in the forum of the International Criminal Court. It is hoped that over time, the Competition will also educate a wider public, here and abroad, in the jurisdiction, procedures and substantive law that is utilized by the ICC in the prosecution of individuals charged with War Crimes, Crimes against Humanity, Genocide, and Crime of Aggression.

Keynote addressees and final round judges of past moots have included Amb. David Scheffer (former US Ambassador-at-Large for War Crimes Issues), Col. Linda Strite Murnane (ICTY), Judge Martin G. Karopkin (ECCC), Ms. Peggy Kuo (former Trial Attorney, ICTY), Prof. Benjamin Ferencz (former Prosecutor, Nuremburg), and Mr. Trevor Chimimba (UN). Mr. Roland Adjovi, former Senior Legal Officer of Trial Chamber III at the ICTR and Ms. Louise Doswald-Beck, Director of the University Centre for International Humanitarian Law (UCIHL) and former head of the Legal Division of the International Committee of the Red Cross, amongst others.

For further information, please see our website at www.law.pace.edu/icc or contact Prof. Matthew Brotmann at PaceICCMC@gmail.com.

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 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:

The ICC Prosecutor Responds to Demands for Higher Evidentiary Standards

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 June 25, 2014, the Office of the ICC Prosecutor formally established a Scientific Advisory Board to assist the Office in its investigatory and prosecutorial work. The Board will consist of sixteen forensic experts whose task will be to inform the Office of scientific and technological developments helpful to the Prosecutor’s capability to collect and analyze scientific evidence.

The establishment of the Board represents an effort by the Prosecutor’s Office to upgrade the quality of evidence it presents to ICC Pre-Trial and Trial Chambers. In recent years, scholarly commentators have criticized international courts and tribunals, including criminal courts and tribunals, for failing to require and utilize fact findings based on scientific examination.

In its October 11, 2013 Strategic Plan, the Prosecutor’s Office noted that ICC judges were requiring “higher evidentiary standards” and “more and different kinds of evidence” from the Office. In response to this demand, the Plan stated that the Office’s Investigative Division will, among other things,

enhan[ce] its capabilities to collect other forms of evidence … in particular scientific evidence [and will] validat[e] its investigative standards with a panel of international experts.

In a June 27, 2014 press release, the Prosecutor’s Office stated that

[t]he work of the Board will be crucial to the Office’s efforts, as reflected in its new Strategic Plan, to strengthen its investigative capabilities and enhance the quality of its deliverables when it comes to scientific evidence collection and analysis.

In the effort to carry out its mandate under the Rome Statute, the Prosecutor’s Office has to work with limited resources in very difficult environments. It is to be hoped that the establishment of the Scientific Advisory Board will assist the Office in the challenges it faces.

Related Readings:

Commentators criticizing fact applications by international courts, including criminal courts and tribunals: