Tagged: State Party

ICC Prosecutor Requests Authorization to Investigate a Conflict in Georgia Involving Russia

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.

The ICC Prosecutor Fatou Bensouda is seeking authorization to investigate possible war crimes and crimes against humanity committed seven years ago in the context of a clash between Russia and Georgia. The conflict involves the effort by the former Soviet Union Republic Georgia to retain control of its region of South Ossetia.

In an October 13, 2015 Request for Authorization, the Prosecutor asks an ICC Pre-Trial Chamber I to authorize investigation of possible crimes within ICC jurisdiction committed between July 1 and October 10, 2008 in South Ossetia. In 2008, South Ossetian rebel forces took military action to gain independence, and Georgia responded with force to retain control. The Russian Federation sent military forces into South Ossetia to support the rebels. These forces then occupied South Ossetia during the time at issue.

After hundreds of people were killed and thousands of ethnic Georgians were forcibly displaced from their homes in South Ossetia, both Georgia and Russia maintained in the area troops designated as peacekeeping forces.

The Prosecutor’s Request for Authorization finds, pursuant to Rome Statute Article 15, a reasonable basis to believe that South Ossetian forces committed war crimes and crimes against humanity relating to forcible displacement of ethnic Georgians, and that war crimes were committed by South Ossetian forces against Georgian peacekeepers and by Georgian forces against Russian peacekeepers.

The submission suggests that further investigation, if authorized, might implicate Russian nationals in criminal activity. It notes substantial military, financial, and other assistance provided by Russia to South Ossetia and states that available information indicates that South Ossetian forces could not have continued with forcible displacement of ethnic Georgians “but for the occupation of Georgian territory by Russian armed forces and the military advances that preceded the occupation.” Pointedly, “information available indicates that at least some members of the Russian armed forces participated” in war crimes relating to displacement. Related charges of crimes against humanity would require evidence that Russian military or governmental authorities pursued a policy of displacing ethnic Georgians. The report states that such evidence is lacking “at this stage.”

Authorization to investigate would represent the first time the ICC has addressed a conflict on the European continent as all other nine currently open situations before the ICC involve countries on the African continent.

ICC entry would also be bold because the ICC would be intervening on its own initiative into a conflict involving a major world power and in a situation where there is an “ongoing tense relationship between Georgia and the Russian Federation” noted in the report. As a State Party to Rome Statute, Georgia could have referred the matter to the ICC, but it did not. The Prosecutor is pursuing this matter on her own initiative, following up on her predecessor’s initiative to open a preliminary examination of the situation in Georgia in August 2008.

As a State Party, Georgia has accepted obligations set out in Part 9 of the Rome Statute to cooperate with ICC investigations. Russia did not ratify the treaty establishing the Rome Statute, but it did sign it, and Russia also acceded to the Vienna Convention on the Law of Treaties. Article 18(a) of the VCLT requires a State that has signed a treaty “to refrain from acts which would defeat the object and purpose of a treaty.” Given the nature of the conflict at issue, however, the cooperation of the parties involved may be tailored to accord with partisan interests. The Prosecutor reports that she has engaged with, and received information from, authorities in Georgia and Russia. She cautions, however, that “[w]hen assessing the information in [her] possession, the Prosecutor has…taken into account the possible bias and interests from parties to the conflict, and has therefore primarily focused…examination on allegations corroborated by third parties.”

In support of her request for authorization, the Prosecutor notes receipt of requests from several possible victims of the conflict and from seven Georgian and international human rights organizations seeking justice for victims and punishment of the perpetrators.

An ICC Pre-Trial Chamber I must now decide whether to grant the request for investigation. If the Chamber does so, the ICC will enter a new and challenging phase in its work.

Related Readings:

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.

The State of Palestine Ratifies Rome Statute and Accepts the Court’s Jurisdiction

In a controversial move, the State of Palestine became the 123rd State Party to the Rome Statute when it deposited its instruments of accession to the UN. According to the depositary notification, the action was effected on January 2, 2015 and the Rome Statute will enter into force for the State of Palestine on April 1, 2015 in accordance with Article 126(2).

In the meantime, however, the State of Palestine filed Article 12(3) declaration accepting the International Criminal Court’s jurisdiction

for the purpose of identifying, prosecuting and judging authors and accomplices of crimes within the jurisdiction of the Court committed in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.

Unlike the other Article 12(3) declarations filed with the Court so far (as previously discussed here, here, and here), the Palestinian one does not identify a specific time frame within which the Court is entitled to exercise its jurisdiction. On the contrary, it specifically articulates that it “shall be valid for an unspecified period of time,” ensuring that the Court can exercise its jurisdiction within Palestinian territory until the Rome Statute enters into force on April 1, 2015. At that point, Article 12(3) declaration is likely to have little or no importance since the Rome Statute, as the later-in-time instrument, will be in force.

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 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.