Tagged: Omar al-Bashir

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.

The ICC Reports on Situation in Libya

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 November 12, 2014, ICC Prosecutor Fatou Bensouda presented the U.N. Security Council with a report on “the deteriorating situation” in Libya, calling the Council’s attention to several disturbing matters that the OTP is confronting in its work in Libya.

The Security Council referred the situation in Libya to the ICC in 2011, pursuant to the authority accorded to it by Article 13(b) of the Rome Statute and by Chapter VII of the U.N. Charter. This was the second time the Council referred a situation of violent internal conflict to the ICC; the first time was in 2005, with respect to the violence in Darfur, Sudan. The ICC Prosecutor has been pursuing cases against several suspects in both of these situations.

In both, the ICC has encountered severe difficulties in carrying out its responsibilities. With respect to the Darfur situation, four of the suspects subject to ICC arrest warrants remain at large. As noted here, earlier this year the Prosecutor asked the Council for further assistance in dealing with the failure of several countries to execute the ICC arrest warrant for Sudan President Omar al-Bashir. As noted here, in April 2014 the ICC Pre-Trial Chamber issued a rebuke to the Democratic Republic of the Congo for failing to arrest al-Bashir when the Chamber, having advance notice of al-Bashir’s visit to the DRC, issued a request to the DRC for his arrest. The DRC is a State Party to the Rome Statute; Article 86 of the Statute requires that “State Parties shall … cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.”

With respect to the Libya situation, Prosecutor Bensouda advised that despite elections in Libya in June 2014, political instability is increasing as two governments vie for legitimacy. She also noted that there have been several assassinations and numerous threats made against human rights workers, judges, prosecutors, and others. She reported that the deteriorating security situation in the country is making it very difficult for her Office to pursue its work, including, among other matters, the Office’s ability to investigate “new instances of mass crimes allegedly committed by the rebel forces.”

The Prosecutor expressed her Office’s “great concern” regarding “the continued failure of the Government of Libya to surrender Saif Al-Islam Gaddafi to the custody of the International Criminal Court.” On June 27, 2011, the ICC issued an arrest warrant for Saif Al-Islam Gaddafi on two counts of crimes against humanity but he remains at large. Regarding Abdullah Al-Senussi, whom the ICC previously sought for prosecution, the Prosecutor stated that because of the on-going violence in Libya that may endanger the possibility of a fair trial for Al-Senussi, she may apply for review of decisions by ICC courts deferring to Libya’s prosecution of him.

Prosecutor Bensouda called upon Libya for cooperation, and she stated that “the international community could be more proactive in exploring solutions in order to tangibly help restore stability and strengthen accountability for Rome Statute crimes in Libya.”

The Prosecutor’s October 23 and November 12 statements to the Security Council suggest that ICC prosecutions of cases following a Security Council referral are encountering difficulties that go beyond those encountered by prosecutors authorized to prosecute cases in the ad hoc tribunals established through Security Council resolutions prior to the Rome Statute’s entry into force in 2002. If the ICC is to be able to carry out its responsibilities – especially with regard to Security Council referrals – the Prosecutor seems to be correct that additional support for the ICC will be needed from the Security Council, from States affected, and from the international community in general.

ICC Pursues the Arrest of Al Bashir

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 9, 2014, the Pre-Trial Chamber II of the International Criminal Court (ICC) issued a decision chastising the Democratic Republic of the Congo (DRC) for failing to comply with ICC requests for the arrest and surrender of Omar Al Bashir, the President of Sudan.

In March 2005, the U.N. Security Council adopted a resolution referring the Situation in Darfur, Sudan, to the ICC for investigation. This was the first time the Security Council referred a situation to the ICC pursuant to Chapter VII of the U.N. Charter and Article 13(b) of the ICC’s Rome Statute. Following an investigation by the ICC Prosecutor, the ICC issued two arrest warrants for Al Bashir, first in March 2009 and second in July 2010, charging him with responsibility for war crimes, crimes against humanity, and genocide, committed during the bloody conflict in Darfur.

The Pre-Trial Chamber’s rebuke of the DRC was occasioned by the DRC’s failure to arrest Al Bashir when in late February 2014, he visited the DRC to participate in a summit conference of African leaders to discuss matters of common economic concern in Eastern and Southern Africa. Having advance notice of this visit, the Pre-Trial Chamber issued a request to the DRC to arrest and surrender Al Bashir, pursuant to the previously issued warrants. The DRC is a State Party to the Rome Statute, and Part IX of the Statute requires State Parties to cooperate with the ICC with regard, among other matters, to the arrest and surrender of persons for whom the ICC has issued an arrest warrant.

Among its reasons for not arresting Al Bashir during his February visit, the DRC asserted that it was obligated to respect Al Bashir’s immunity as a head of state, despite the fact that Article 27 of the Rome Statute does not recognize head of state immunity as a bar to ICC prosecution. The DRC, not implausibly, found authority for its position in Rome Statute Article 98(1), which states that the ICC “may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.” Sudan is such a “third State,” not being a State Party.

The Pre-Trial Chamber found the DRC’s claim unavailing because of the Security Council’s referral of the Sudan Situation to the ICC. The Chamber stated in paragraph 31 of its Decision that the Security Council, when referring the Darfur Situation by way of a Resolution pursuant to its Chapter VII authority, “implicitly lifted the immunities of Omar Al Bashir ….” (Both the DRC and Sudan are U.N. members, subject to Security Council authority.)

The Chamber forcefully stated in paragraph 33 of its decision that compliance with a Security Council referral to the ICC was of paramount importance; otherwise such a referral “would never achieve its ultimate goal … to put an end to impunity.”

The Chamber found that the DRC’s failure to arrest Al Bashir constituted a failure of the DRC to comply with its obligations to cooperate with the ICC. Accordingly, the Chamber stated that it was referring its decision to the Security Council and to the Assembly of State Parties.

The Chamber has made a strong statement in support of the ICC’s mandate. But its decision will continue some of the political controversies in which the ICC has been involved, especially given the fact that the DRC and Sudan are member States of the African Union, which has criticized the ICC for allegedly giving excessive and inappropriate attention to affairs in Africa.