Tagged: Rome Statute

ICC Prosecutor Responds to Criticism Regarding the Court and Gaza

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 September 2, 2014, the ICC Prosecutor, Fatou Bensouda, issued a public statement in which she rejected as “baseless” criticisms in “[r]ecent media reports and commentaries,” which she said “have erroneously suggested that the International Criminal Court (ICC) has persistently avoided opening an investigation into alleged war crimes in Gaza due to political pressure.”

The Prosecutor stated that these criticisms were without merit because of the Rome Statute’s jurisdictional requirements. The Prosecutor did not (and could not, without investigation) argue that any alleged crimes committed by any participant in the conflict failed to meet the Statute’s subject matter requirements for genocide, war crimes, or crimes against humanity. The problem, rather, was the Statute’s other jurisdictional requirements that authorize the ICC to open an investigation only with respect to crimes alleged to have occurred on the territory of a State or by nationals of a State that has ratified the Rome Statute or has accepted ICC jurisdiction by an ad hoc declaration pursuant to Article 12(3) of the Statute. At this time, neither Israel nor the Palestinian Authority is a State Party to the Rome Statute, nor has either as yet filed an Article 12(3) declaration. (Palestine did file such a declaration in 2009, but it was found invalid for lack of standing.)

The Prosecutor noted that her Office after examination has concluded that because of UN General Assembly Res. 67/19 issued on November 29, 2012 upgrading Palestine’s status to a “non-member observer State,” Palestine could now accede to the Rome Statute or lodge an Article 12(3) declaration conferring jurisdiction to the ICC over the situation in Gaza. But it has not yet done so.

The Prosecutor in her statement referred to an additional mechanism through which the ICC could obtain authorization to investigate the situation in Gaza. Pursuant to Article 13(b) of the Rome Statute, the UN Security Council can act under its Chapter VII powers to authorize an ICC investigation, even if the alleged crimes were not committed on the territory of a State Party or by a national of a State Party. The Security Council has not taken such action as yet with respect to Gaza (nor has it done so with respect to the violence in Syria).

Amnesty International, a non-governmental organization whose mission is to protect human rights internationally, has called for the UN Security Council, the Palestinian Authority, and Israel to provide the ICC with jurisdiction to investigate and prosecute any persons responsible for committing war crimes and crimes against humanity in the current and past Israeli-Palestinian conflicts.

The Prosecutor concluded her September 2 statement by saying,

It is my firm belief that recourse to justice should never be compromised by political expediency. The failure to uphold this sacrosanct requirement will not only pervert the cause of justice and weaken public confidence in it, but also exacerbate the immense suffering of the victims of mass atrocities. This, we will never allow.

The ICC has been the target of many political criticisms and challenges, starting from its foundational conferences in the 1990s, and these challenges will, no doubt, continue for years to come. The ICC Prosecutor is to be commended for being proactive in addressing these challenges in an effort to support the credibility of the Court.

July 17, The Day of International Criminal Justice, Commemorates the Adoption of the Rome Statute

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.

July 17 is designated as the Day of International Criminal Justice because on July 17, 1998, the Rome Statute, the founding treaty of the International Criminal Court, was adopted at a diplomatic conference in Rome.

In a press release on July 10, 2014, the ICC stated that the State Parties to the Rome Statute “decided to commemorate [July 17 as a] unique date, recognising the efforts of the international community to strengthen the emerging system of international criminal justice and to put an end to impunity for the perpetrators of the most serious crimes of international concern, namely genocide, war crimes, crimes against humanity, and the crime of aggression.”

The Rome Statute entered into force on July 1, 2002, upon ratification of 60 countries. At this time, some 120 countries have become parties to the Statute. The Court currently has before it eight situations (all involving countries on the African continent), and the ICC Prosecutor has brought 21 cases relating to those situations. The Prosecutor is conducting preliminary investigations relating to matters in several other countries, including Ukraine.

The ICC Prosecutor has succeeded in convicting two defendants relating to the Situation in the Democratic Republic of the Congo. One of these convictions (against Thomas Lubanga Dyilo) is still on appeal. As noted in a previous post, the other conviction (against Germain Katanga) became final when appeals were terminated on June 25, 2014.

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:

The International Criminal Court Issues a Ruling in the 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 May 21, 2014, the ICC Appeals Chamber, in a divided vote, rejected Libya’s appeal of an ICC Pre-Trial Chamber’s May 31, 2013, ruling that Libya’s criminal investigation of Saif Al-Islam Gaddafi was not sufficient to bar the ICC from conducting its own criminal proceedings against him. On February 26, 2011, the U.N. Security Council, pursuant to Chapter VII of the U.N. Charter and Article 13(b) of the Rome Statute, adopted Resolution 1970 referring the situation in Libya to the ICC for investigation of the violence occurring since 15 February 2011 between the Libyan government, then headed by Muammar Gaddafi, and anti-government protesters. In UN S.C. Res. 1970, the Security Council

[d]eplor[ed] the [Libyan government’s] gross and systematic violation of human rights, including the repression of peaceful demonstrators, [expressed] deep concern at the deaths of civilians, [and] reject[ed] unequivocally the incitement to hostility and violence against the civilian population made from the highest level of the Libyan government.

Following an investigation by the Prosecutor’s Office, on June 27, 2011, an ICC Pre-Trial Chamber issued arrest warrants for Muammar Gaddafi, his son Saif Al-Islam Gaddafi, and Gaddafi’s brother-in-law Abdullah Al-Senussi, on charges of crimes against humanity for murder and persecution. On November 22, 2011, the ICC terminated its case against Muammar Gaddafi following his death.

On May 13, 2014 (a week before the Appeals Chamber announced its ruling), the ICC Prosecutor reported to the Security Council on the situation in Libya and asserted that

Libya continues to be under a pending obligation to surrender [Saif Al-Islam Gaddafi] to the Court [and that] [t]he Government of Libya should immediately surrender Saif Al- Islam Gaddafi to the Court or give reasons for its inability to do so.

An issue on appeal was the proper interpretation of Article 17(1)(a) of the Rome Statute, which requires the ICC to find that a case is not admissible to the ICC when “[t]he case is being investigated or prosecuted by a State which has jurisdiction over it.” Article 19(2)(b) provides that such a State may raise an admissibility challenge in order to retain exclusive jurisdiction of the case. It was undisputed in the appeal that Libya was proceeding with an investigation of Saif Al-Islam Gaddafi that included some incidents referred to in the ICC’s arrest warrant for him. A significant issue on appeal was: How much similarity and overlap between the matters investigated by a domestic jurisdiction and an ICC investigation was required in deciding whether the scope and contours of a domestic investigation would render a ‘case’ inadmissible to the ICC under Article 17?

Libya argued that when interpreting Article 17, the principle of complementarity creates a strong presumption favoring domestic prosecution. By a 4-1 decision, the Appeals Chamber rejected Libya’s argument and held that the evidence provided by Libya regarding its investigation was insufficient to demonstrate that the actions for which Libya was investigating Saif Al-Islam Gaddafi included all matters for which the ICC sought to prosecute him.

In her dissenting opinion, Judge Ušacka explained that the majority’s interpretation of Article 17 did not give sufficient consideration to the importance of the complementarity principle. After reviewing the ICC’s previous admissibility decisions, she asserted in paragraph 39 of her dissent that Libya’s appeal

is the first admissibility case before the Court in which a State has submitted a wealth of information about its ongoing proceedings and has clearly expressed the will to investigate and prosecute the same suspects as well as conduct that is arguably even broader than that contained in the warrants of arrests.

Judge Ušacka added in paragraph 65 “as a concluding remark on the subject of complementarity,” that “the overall goal of the [Rome] Statute to combat impunity can … be achieved by the Court through means of active cooperation with the domestic authorities.” Judge Ušacka would have remanded the case to the Pre-Trial Chamber for consideration of the admissibility issue under a standard that she thought gave more adequate consideration to the Article 17 principle.

Ukraine: The ICC’s Authority Grows as Another Non-State Party Accepts Its Jurisdiction

Ukraine gained its independence from the former Soviet Union in 1991 when its parliament adopted the Act of Independence. Since then, Ukraine has worked to stabilize and grow as a new sovereign and independent state with the hope of joining the European Union. That hope was quashed in late 2013 when Viktor F. Yanukovych, then-president of Ukraine, won election for the third time (whether he actually won and whether it was done democratically is debated to date) and began to work closely with Russia rather than the European Union.

In November 2013, protests in Kiev and across Ukraine began. These protests continue today, resulting in almost one hundred dead and thousands injured. In light of the situation, Ukraine, not a party to the International Criminal Court (ICC) referred the situation to the Court, via declaration dated April 9, 2014, and accepted the Court’s jurisdiction. The Registrar of the ICC received this declaration on April 17, 2014.

In the Declaration of the Verkhovna Rada of Ukraine, Ukraine asks the Court to hold senior officials of Ukraine criminally liable for alleged crimes against humanity committed during peaceful protests that took place in Ukraine between Nov. 21, 2013 and Feb. 22, 2014,

namely Yanukovych Viktor Fedorovych – the President of Ukraine – and other officials to be determined by the Prosecutor….

Ukraine utilized the mechanism under Article 12(3) of the Rome Statute, which “enables a State not party to the Statute to accept the exercise of jurisdiction of the Court.” With acceptance of the jurisdiction comes the cooperation obligations described and enumerated under Part 9 of the Rome Statute. The next step is for the Office of the Prosecutor (OTP) to decide whether to initiate investigation into the referred situation. On Friday, April 25, 2014, as reported in the ICC’s press release, Fatima Bensouda

has decided to open preliminary examination into the situation in Ukraine in order to establish whether the Rome Statute criteria for opening an investigation are met.

This is the second time a State that is not party to the Rome Statute referred a situation to the Court. The first situation referred to the Court via the Article 12(3) mechanism was the Situation in the Republic of Côte d’Ivoire. Both situations, Côte d’Ivoire and Ukraine, present an interesting step in the evolution of the ICC’s jurisprudence that was anticipated in the Rome Statute (Article 12(3)) but used only twice. Cases currently pending at the ICC were either referred to the ICC by a State party or the Security Council, or investigation was initiated proprio motu by the Prosecutor. However, Article 12(3) offers a State that has not signed onto and ratified the Rome Statute, an international multilateral treaty, the chance to nevertheless accept the obligations and protections thereunder on a temporary basis.

One may argue that the 12(3) mechanism is circumventing the checks and balances guaranteed in Article 17 of the Statute, which makes the ICC’s jurisdiction complementary to a national jurisdiction. Article 17 states that a case is inadmissible to the ICC where

the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.

But because the process under Article 12(3) is initiated by a State not party to the Statute and is voluntary, it is the State that effectively gives up its own jurisdiction protected via Article 17 and accepts the one of ICC.

And how does this development affect the authority and power of the ICC? Greatly, because it is viewed as an authority with ability to carry out justice even by those who have not yet signed and ratified the Statute.

Related Readings: