Tagged: UN Security Council

UN Mechanism for International Criminal Tribunals

As mentioned in our earlier posts the ad hoc international criminal tribunals have been preparing to transition their responsibilities to the Mechanism after completing their mandate and marking 20 years of existence in 2014. The International Criminal Tribunal for Rwanda (ICTR) closed on Dec. 31, 2015 and the Mechanism assumed it work as part of its mission to preserve and promote the legacy of the tribunal.

The Mechanism for International Criminal Tribunals (the MICT) 

was established by the United Nations Security Council on 22 December 2010 (S/RES/1966 (2010)) [acting under Chapter VII of the UN Charter] to carry out a number of essential functions of the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY), after the completion of their respective mandates.

The SC Res. 1966 in its Annex I includes the Statute of the Residual Mechanism articulating the Machanism’s competence, functions, structure, and organization, the election of judges, rules of procedure and evidence, the role of the Prosecutor and Registry, investigation, trial, right of the accused, protection of victims and witnesses, judgments and penalties, appellate procedures, enforcement of sentencing, pardons, and management of the archives. The Mechanism has two branches; one covering the remaining functions of the ICTR and the other of the ICTY. According to the Mechanism’s website, it is tasked with “continuing the jurisdiction, rights and obligations and essential functions of the ICTR” and “maintaining the legacy of both institutions.”

The President of the ICTY, Theodor Meron in its address to the UN Security Council on June 7, 2012 stated:

By establishing the Mechanism, the Council has helped to guarantee that the closure of the two pioneering ad hoc tribunals does not open the way for impunity to reign once more.

The Mechanism commenced action on July 1, 2013 temporarily overlapping with the ICTR and ICTY as both tribunals complete their outstanding mandates. The Security Council expects the Mechanism to function until it is decided otherwise with periodic reviews of its progress every 2 years. The first progress report (S/2015/883) was compiled and submitted in November 2015 for the Security Council review in 2016. In paragraphs 52-59 of the status report, President Meron describes the purpose and function of the Archives and Records stating that the Mechanism has the responsibility to manage, maintain, preserve and provide access to archives of the Mechanism and the two tribunals, as required under art. 27 of the Mechanism’s statute.

It is the Mechanism’s website ensuring access to information and documents related to the tribunals as well as the documents related to the Mechanism’s work, including basic documents (statute, rules of procedure and evidence, regulations and policies, reports and publication and budget), as well as links to the ICTR and ICTY archives (including basic documents, cases, news, reports, etc.), and links to review reports submitted to the Security Council on the progress of the Mechanism, news, and documents related to cases handled by the Mechanism.

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:

U.S. Commission Calls for ICC Investigation of ISIL

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 30, 2015, the U.S. Commission on International Religious Freedom (USCIRF) issued its annual report on the condition of religious freedom around the world. In this report, the USCIRF recommends, among other things, that the U.S. Government call upon the UN Security Council to refer to the International Criminal Court (ICC) the widely publicized violence attributed to the Islamic State of Iraq and the Levant (ISIL).

The USCIRF is an independent, bipartisan U.S. federal government advisory body created by Congress through the International Religious Freedom Act of 1998 (IRFA). The USCIRF’s statutory mandate includes monitoring religious freedom conditions globally and making recommendations for U.S. policy. IRFA mandates that the USCIRF base such recommendations on international human rights instruments such as the UN Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights, and the Helsinki Accords.

The USCIRF’s 2015 annual report, which covers the period from January 31, 2014 through January 31, 2015, addresses troubling humanitarian issues in 33 countries. The report gives special attention to abuses committed in Syria and Iraq by forces associated with the Islamic State of Iraq and the Levant (ISIL). It states that in both of these countries “ISIL has unleashed waves of terror upon Yazidis and Christians, Shi’a and Sunnis, as well as others who have dared to oppose its extremist views.” The report charges ISIL with responsibility for summary executions, forced conversions, rape, sexual enslavement, abduction of children, and destruction of houses of worship.

Based on these findings, the USCIRF recommends that the U.S. Government “call for or support a referral by the UN Security Council to the [ICC] to investigate ISIL violations in Iraq and Syria against religious and ethnic minorities, following the models used [by the Security Council] in Sudan and Libya.”

The USCIRF’s report and recommendations regarding ISIL (aka ISIS) are in substantial accord with the published statements of the ICC Prosecutor. As written about previously, the ICC Prosecutor has expressed her grave concern about ISIL, while noting that in the absence of a Security Council referral, her office’s ability to investigate ISIL’s activities is limited by the ICC’s jurisdictional requirements.

Related Readings:

  • U.S. Commission on International Religious Freedom, Annual Report (2015).

The ICC Prosecutor Addresses Allegations Against ISIS

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 8, 2015, International Criminal Court Prosecutor Fatou Bensouda issued a statement responding to inquiries her Office has received regarding the widely publicized violence attributed to armed forces acting on behalf of the military and political organization known as ISIS. She noted that such violence is reported to include

mass executions, sexual slavery, rape and other forms of sexual and gender-based violence, torture, mutilation, enlistment and forced recruitment of children and the persecution of ethnic and religious minorities, not to mention the wanton destruction of cultural property.

The International Criminal Court is the only standing international criminal court available to investigate and prosecute crimes of an international character (such as those attributed to ISIS) when such crimes are not investigated and prosecuted by national courts. However, as a treaty-based institution, ICC jurisdiction is limited by rules consented to by State Parties relating to the alleged crimes at issue (subject matter jurisdiction) and to territorial and other requirements.

On August 15, 2014, the U.N. Security Council, acting under its Chapter VII powers took measures with respect to international peace and security and adopted S/RES/2170 (2014), condemning ISIS and other groups “for ongoing and multiple criminal terrorist acts aimed at causing the deaths of civilians and other victims, destruction of property and of cultural and religious sites, and greatly undermining stability.” Res. 2170 calls on U.N. Member States to take measures to interdict the flow of funding and recruits to ISIS. The Security Council has not as yet, however, referred the matter of ISIS-related violence to the ICC, as it could do under Article 13(b) of the Rome Statute.

The crimes allegedly committed by ISIS are of a scale and nature that would likely meet the ICC subject matter jurisdiction requirements – at least for initiating a preliminary investigation by the Prosecutor. However, that by itself is not sufficient to allow the Prosecutor, acting on her own initiative, to pursue an investigation. In the absence of a Security Council referral, either territorial jurisdiction (the alleged crimes were committed on the territory of a State Party) or personal jurisdiction (the alleged crimes were committed by a national(s) of a State Party) would need to be met.

The crimes alleged against ISIS were reported to be committed on the territory of Syria and Iraq, neither of which is an ICC State Party. Either country could nevertheless lodge an Article 12(3) declaration allowing the ICC to investigate, but at this point, neither has done so. Therefore, territorial jurisdiction is currently lacking.

As to the other alternative, the Prosecutor stated that she has information that “significant numbers” of ISIS fighters are nationals of ICC State Parties, including Tunisia, Jordan, France, the United Kingdom, Germany, Belgium, the Netherlands and Australia. She noted that some of these individuals may have committed crimes within the ICC’s subject matter jurisdiction. She noted also, however, that the information available to her Office indicates that the leadership of ISIS is composed primarily of nationals of the non-Party States of Iraq and Syria. Accordingly, given the OTP’s policy to focus on those most responsible for the commission of mass crimes, the prospect of exercising personal jurisdiction over any nationals of State Parties “appears limited” and “the jurisdictional basis for opening a preliminary examination into this situation is too narrow at this stage.”

Noting that “ISIS continues to spread terror on a massive scale in the territories it occupies,” the Prosecutor stated that she “remain[s] profoundly concerned by this situation” and that she will continue efforts, in consultation with relevant States, to gather further information. She emphasized the international community’s “collective duty … to respond to the plight of victims whose rights and dignity have been violated.”

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.