Tagged: Preamble

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.

Related Readings:

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.

Related Readings:

The ICC Asks the UN Security Council for Additional Support of Its Work

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.

As reported in the October 24, 2014 press release, the Prosecutor of the International Criminal Court, Mrs. Fatou Bensouda, on October 23, 2014, addressed the United Nations Security Council on ways the Council can provide more effective support to the International Criminal Court (ICC).

The relationship between the ICC and the Security Council, which the Prosecutor addressed, has important implications for the ICC’s goal to end impunity for grave international crimes. Unlike the International Court of Justice, which was established in 1945 by the U.N. Charter as the U.N.’s principal judicial organ, the International Criminal Court is a judicial body independent of the U.N. The ICC was established through a separate treaty – the Rome Statute that entered into force in 2002 – with different jurisdictional predicates focusing on prosecution of individuals alleged to have committed grave crimes of an internationally recognized nature that are within the ICC’s subject matter jurisdiction.

Despite the ICC’s independent status, the Preamble of the Rome Statute “reaffirm[s] the Purposes and Principles of the Charter of the United Nations [which require] that all States shall refrain [from acting with force] in any … manner inconsistent with the Purposes of the United Nations.” In addition, Article 13(b) of the Statute accords the Council the capability to refer to the Court for criminal investigation matters the Council deems appropriate pursuant to its responsibility under Chapter VII of the U.N. Charter “to maintain or restore international peace and security.”

Article 13(b) provides the Council with the opportunity for the first time to invoke its Chapter VII authority to initiate criminal investigations before a standing international criminal court. Before the ICC’s establishment, the Council, when confronted with situations in which severe crimes threatening international peace occurred, had to provide for both investigation and prosecution through special resolutions and particularly crafted statutes that created ad hoc tribunals, such as those for the former Yugoslavia and for Rwanda.

The authority accorded to the Council by Article 13(b) is powerful and important because it authorizes the Council to refer to the ICC Prosecutor investigation of crimes within the ICC’s subject matter jurisdiction where the ICC’s other jurisdictional predicates would otherwise be lacking. The Council can refer to the ICC Prosecutor investigation of crimes in situations even when the alleged crimes do not occur on the territory of a State Party to the Rome Statute or were not committed by a national of a State Party.

The Security Council has utilized its Article 13(b) authority thus far to refer two situations to the ICC: Darfur, Sudan (2005) and Libya (2011). The ICC Prosecutor has been actively pursuing cases in both of these situations.

Following the Council’s Sudan referral, an ICC court issued arrest warrants for Sudanese president Omar Hassan Ahmad al Bashir in March 2009 and again in July 2010, charging him with co-perpetrator responsibility on multiple counts alleging crimes against humanity, war crimes, and genocide relating to the bloody conflict in Sudan.

Several African States have declined to execute these warrants when Al Bashir traveled to these States for diplomatic purposes. As reported previously on this blog, in April of this year an ICC Pre-Trial Chamber chastised the Democratic Republic of Congo (DRC) for failing to comply with ICC requests for Al Bashir’s arrest when in February 2014, he visited the DRC to participate in a summit conference of African leaders.

In her October 23 address to the Council and during the discussion that followed, Prosecutor Bensouda gave prominent attention to issues relating to the Darfur situation. She called on the Council, when issuing its Article 13(b) referrals, to advise States of their cooperation responsibilities in the stronger terms that it used in its resolutions creating the ad hoc tribunals. She urged the Council to call on U.N. Member States to cooperate in the arrest of suspects under ICC arrest warrants, and she urged the Council to consider ways to address the failure of States to comply with such obligations.