Tagged: UN Security Council

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.

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.

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.

After 20 Years of Existence, ICTY and ICTR Begin Preparations to Close

On June 5, 2014, Judge Theodor Meron, President of the ICTY, and Judge Vagn Joensen, President of the ICTR, addressed the 15 member Security Council on the work each tribunal has accomplished over the past twenty years of existence. The International Criminal Tribunal for Rwanda (ICTR) was established after the 1994 genocide where 800,000 men, women, and children – “overwhelmingly Tutsi, moderate Hutu and Twa” – were systematically killed over the course of 100 days, and the tribunal marked 20 years of existence in April 2014. The International Criminal Tribunal for the former Yugoslavia (ICTY) was established to deal with war crimes that took place during the conflicts in the Balkans during the 1990’s and will mark 20 years in existence on November 8, 2014.

Judge Theodor Meron, President of the ICTY, stated

Since its establishment by this council the ICTY has been the subject of diverse and ambitious expectations. For some observers the tribunals were the means by which victims and witnesses of horrific crimes have had and continue to have an opportunity to be heard and an opportunity to obtain a sense of justice.

Judge Vagn Joensen, President of the ICTR, stated

Rwanda’s achievements over past 20 years are quite impressive, including the creation of stable and functioning government whose commitment to national reconciliation and strengthening of the rule of law can be seen through one example of its vigorous effort to rebuild its justice system. 8 November 2014 will mark 20 years since this esteem Council saw it fit at the initial request of Rwanda to create this international tribunal. We hope that the international community will use this occasion as an opportunity to mark Rwanda’s achievements, as well as to further study the lessons learned from what was only an experiment in the international justice in 1994.

The representatives of both tribunals further called on the need for Member States to cooperate to support the efforts accomplished so far and to complete what remains to be done, after the tribunals close, including apprehension of the remaining fugitives. Judge Meron further noted that international tribunals alone  cannot solve “long-running historical conflicts;” they must be part of a “panoply of transitional justice measures.”

Currently, the tribunals are working closely with the Mechanism to transition the remaining responsibilities, including services to vulnerable victims and witnesses, supervising the enforcement of sentences across two continents, and addressing requests for assistance from national jurisdictions. The Mechanism’s archives section works closely with ICTY and ICTR on the preparation and transfer of records to the custody of the Mechanism.

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Special Tribunal for Lebanon Confronts a Challenge to Its Legitimacy

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 Thursday, May 29, 2014, the Special Tribunal for Lebanon (STL) held a hearing on charges that it had issued on April 24, 2014, against two Lebanese journalists and two media organizations for contempt and obstruction of justice. The charges alleged that the journalists contravened the Tribunal’s order by publishing the names of witnesses who might appear for the Prosecution in the major criminal case before it. As reported earlier this year, the STL has indicted five members of Hezbollah for responsibility in connection with a February 14, 2005 bomb attack that killed Lebanese Prime Minister Rafiq Hariri and about twenty other victims.

According to the Daily Star of Lebanon, Ibrahim al-Amin, editor-in-chief of Al-Akhbar, one of the journalists charged with contempt, appeared at the May 29 hearing via video-link from a remote room from which he walked out after vehemently denouncing the contempt proceeding as politically biased and illegitimate.

In his prepared statement to the Tribunal, Amin, referring to the fact that the STL was set up by the U.N. Security Council in cooperation with the Lebanese Government, said, “I do not accept the legitimacy of this court which was invented by the Security Council, which has never guaranteed global security.” He added that “[w]e all know that local, regional and international powers which stand behind the creation of the tribunal are the same that instigate enduring wars in my country, against my people, and against its heroic resistance that is standing up to American, European and Israeli terrorism.”

The contempt proceeding has added to the troubling factional political controversies confronted by the STL. The outcome will have significant implications for the effectiveness and credibility of an international criminal tribunal – especially one that seeks to pursue a mandate issued by the Security Council.