Tagged: war crimes

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:

Can Killing of Innocent Civilians at War be Justified?

POST WRITTEN BY: Syed Alam (’17), J.D. Pace Law School

According to the ICRC Principles of Distinction between Civilians and Combatants Rule 1, one of the pillars of international humanitarian law permits military commanders to direct operations against military objectives. At the same time, however, Rule 1 also requires that military commanders distinguish between civilian and military object. This concept was already codified in St. Petersburg Declaration of 1868, which states that States engaging in a war should only commit acts that will help them to weaken the military forces of the enemy party.

It is the duty of the military commander to determine who civilians are and who military opponents are. At time of war, every military force faces a threat from their opponent; however, it hardly faces threats from civilians. Thus, civilians should not be harmed during any war. It is the duty of the military commander to take such steps and measures as to prevent harm to civilians.

How do we define civilians? According to article 50(1) of the Additional Protocol 1 of the Geneva Conventions, 1949, civilians are the persons who do not belong to one of the categories mentioned in articles 4(A)(1)-(3) and 4(A)(6) of the Third Geneva Convention 1949. The categories listed are member of armed forces, member of militias or member of volunteer corps. A person who by any act is not facilitating or acting as part of the armed conflict is a civilian. Additionally, as held by the criminal tribunal in Blaskić, “[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A, Judgement, ¶ 111 (Int’l Crim. Trib. for the Former Yugoslavia Jul 29, 2004).

According to article 50(3) of the Protocol 1 of the Geneva Conventions 1949, even if a civilian population includes some armed people, still they do not lose their civilian status. For example, if militants enter a park filled with civilians – an attack cannot be launched in the park even if intended to only target the militants because under the principle of distinction the civilians ought to be protected. The criminal tribunal in Prosecutor v. Stanislav Galić further confirmed this principle and held that “[a] population may qualify as ‘civilian’ even if non-civilians are among it, as long as the population is predominantly civilian.” Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Judgement, ¶ 143 (Int’l Crim. Trib. for Former Yugoslavia Nov. 30, 2006).

According to article 51 of the Protocol 1 of the Geneva Conventions 1949, the protections civilian enjoy during wartime include:

  • Protection against any danger arising out of military operations.
  • Civilians should never be the objects of attack. Any act to spread terror among the civilian people is prohibited.
  • Unless and until civilians take direct part in hostilities, civilians enjoy all the protections mentioned in this article.
  • Indiscriminate attacks such as attacks not directed against a specific military object, methods or means of combat that are not specifically applied to a military object, attacks which do not distinguish between civilian object and military object.
  • Any attack done to several military objects, situated within a civilian locality, bombardment upon such area in prohibited.  Any act, which might result into suffering of civilians, is prohibited.
  • Attack towards the civilians by the way of reprisal is prohibited.
  • Civilians should never be used to shield any military object, to immune it from military operations, by any of the parties.

Under article 8 of the Rome Statute, war crime includes grave breaches of Geneva Conventions of 1949 and also violation of any laws and customs of international laws regarding international armed conflict. As discussed above, Geneva Convention of 1949 made it a crime to kill civilians during war. Article 8 of the Rome Statute re-affirms that position. Thus, killing civilians during war is a war crime.

Although international authorities put forth effort to protect civilians, the history speaks for itself – civilians are often not spared. Although, adequate international laws are in place, States engaged in war often overlook this principle of distinction. The law appears clear – civilian killing in war is a crime. The question then is why these international laws are ignored? States have often used the term ‘collateral damage’ to justify the killing of civilians. However, human life is priceless and no cause is big enough to spare innocent human life. The United Nations should find a way to enforce the international laws addressing civilian killing in war for the sake of humanity.

ICC Prosecutor Asked to Reconsider a Matter Involving Israel’s Blockade of Gaza

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.

On July 16, 2015, a 2-1 majority of Pre-Trial Chamber I issued a strongly worded decision finding what it termed numerous “material” errors in the ICC Prosecutor’s decision not to open a formal investigation of war crimes allegedly committed by members of the Israeli Defense Forces (IDF) in May 2010 when they intercepted and boarded ships that were attempting to penetrate Israel’s naval blockade of Gaza.

As I mentioned in an earlier post, on November 6, 2014 the ICC Prosecutor issued a report explaining that after months of review, she declined to open a formal investigation of the matter. The report was issued under Article 53(1) of the Rome Statute in response to a request of ICC State Parties, including the Union of Comoros, whose vessels were boarded by the IDF during the May 2010 incident. The report concluded that although there was a reasonable basis to believe that members of the IDF willfully killed ten of the 500+ passengers on one of the vessels, caused serious injury to several others, and committed outrages upon personal dignity of others, a formal investigation was unwarranted because the crimes involved, given the surrounding circumstances, would fail to meet the gravity requirement of Article 17(1)(d) of the Rome Statute.

In January 2015, the Union of Comoros invoked the opportunity provided by Article 53(3)(a) to request the Pre-Trial Chamber seized of the matter to review the Prosecutor’s decision not to proceed and to request reconsideration of the decision. Comoros’s application challenged several conclusions in the Prosecutor’s report.

In its July 16, 2015 decision, the Chamber’s majority discounted some of these challenges but agreed with several others regarding the Prosecutor’s alleged failure to properly address factors relevant to the gravity determination.

Addressing standard of review, the majority stated that a request pursuant to Article 53(3)(a) requires a Chamber “to exercise independent judicial oversight” and apply “exacting legal requirements.” It added that “[i]n the presence of several plausible explanations of the available information,” the Prosecutor must open an investigation so that she can “properly assess the relevant facts.”

Applying this standard, the majority faulted the Prosecutor for at times deciding against investigation of matters on which there were conflicting claims. Of particular importance, the majority suggested that the Prosecutor may have “willfully ignored” credible evidence that the IDF fired upon one of the vessels prior to boarding. Such evidence, if established, would support the proposition that there was a systematic plan to attack civilians on that vessel.

Accordingly, the Chamber issued a request to the Prosecutor to reconsider her decision not to investigate the situation.

The Chamber’s decision involves procedural issues regarding a Chamber’s Article 53(3)(a) review that will have to be resolved in the future. In his dissenting opinion, Judge Péter Kovács argued that, among other failings he perceived, the majority “introduced for the first time a standard for reviewing negative decisions undertaken [by a prosecutor pursuant to Article 53(1)] without explaining the legal basis for its endorsement.” In Judge Kovács’s view, “the Pre-Trial Chamber’s role is merely to make sure that the Prosecutor has not abused her discretion in arriving at her decision not to initiate an investigation ….” Reviewing the evidence and submissions, he concluded that the Prosecutor did not abuse her discretion in this matter.

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.

Three More Countries Ratify Amendments to the Rome Statute on the Crime of Aggression

In a 9/29/14 press release, the President of the Assembly of States Parties to the Rome Statute announced that Latvia, Poland, and Spain deposited their respective instruments of ratification of the 2010 amendments to the Rome Statute on the crime of aggression. Article 5 of the Rome Statute enumerates the crimes within the subject matter jurisdiction of the International Criminal Court (ICC). Although article 5(d) always listed the crime of aggression as one of the crimes within the Court’s jurisdiction (since 1998), it was not until the June 2010 Review Conference of the Rome Statute, that article 8 bis (Crime of Aggression) was articulated, amending so the Rome Statute. Article 8 bis and all other amendments related to the crime of aggression were inserted in the Rome Statute by resolution RC/Res. 6 of 11 June 2010

Further, as stated in article 15 bis (2), “[t]he Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties,” leaving States Parties with ample time to decide whether to ratify the amendments or not. Lichtenstein became the first State Party to ratify the crime of aggression amendments on 8 May 2012, followed by Samoa, Trinidad & Tobago, and most recently Latvia, Poland, and Spain. There are so far 18 States Parties that have ratified or accepted the amendments on the crime of aggression as articulated during the 2010 Review Conference held in Kampala, Uganda.

The crime of aggression amendments were not the only amendments achieved during the 2010 review conference. Additionally, as stated in resolution RC/Res. 5 of 10 June 2010, a set of amendments pertaining to article 8 of the Rome Statute were also adopted. These amendments addressed “the characterization of the use of certain weapons during non-international armed conflict as war crimes.” There are so far 21 States Parties that have ratified or accepted these amendments pertaining to article 8, also including Latvia, Poland, and Spain.