Category: Int’l and Comparative Criminal Law

The ICC Prosecutor Proactively Addresses the Situation in Nigeria

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 February 2, 2015, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, issued a statement calling on all parties to refrain from violence in the Nigerian elections, which were originally scheduled to be held in February 2015.

The Prosecutor’s statement regarding the danger of election-related violence is grounded in ICC experience. She noted that “[e]xperience has shown that electoral competition, when gone astray, can give rise to violence and in the worst case scenarios, even trigger the commission of mass crimes that ‘shock the conscience of humanity.’” Severe factional post-election violence in Kenya (in 2007-08) and Ivory Coast (in 2010-11) led the Prosecutor to bring criminal charges against individuals in both countries.

The Prosecutor’s warning regarding Nigeria has teeth because preliminary examination conducted by her Office into previous violence in Nigeria have advanced to phase 3 (of four phases). Analysis in phase 3 follows upon previous determination that there is a reasonable basis to believe that requirements for the ICC’s subject matter and territorial jurisdiction can be met, and focuses on the question of whether investigation by national authorities is sufficient so as to preclude further investigation by the ICC.

The Prosecutor is looking into allegations of violence committed by Nigerian security forces, while also giving particular focus to widely reported actions by the Nigerian insurgent group, Boko Haram. On May 8, 2014, the Prosecutor issued a public condemnation of Boko Haram’s abduction of over 200 schoolgirls. In her February 2, 2015 statement, she noted that such actions, “which shock the conscience of humanity,” must be prosecuted by Nigerian authorities or by the ICC.

The ICC’s authorizing statute focuses on the investigation and prosecution of crimes already committed. It does not explicitly set out specific responsibility for the Prosecutor to take proactive measures to prevent future crimes. Nevertheless, in its November 2013 Policy Paper on Preliminary Examinations, the Office of the Prosecutor (OTP) stated that “prevention of crimes” is one of “the overarching goals of the statute.” Accordingly, the OTP will work “proactively,” which includes “issu[ing] public, preventive statements in order to deter the escalation of violence and the further commission of crimes ….”

To achieve these goals, the Prosecutor noted that she was sending a team from her Office to Nigeria “to further engage with the authorities and encourage the prevention of crimes.” She forcefully stated, “[n]o one should doubt my resolve, whenever necessary, to prosecute individuals responsible for the commission of ICC crimes.”

Following the Prosecutor’s February 2 statement, the Nigerian electoral commission announced that it was postponing the elections until March 28, 2015. The commission said the postponement was necessary because troops needed to protect polling stations in northern Nigeria, which had been diverted to address an upsurge of violence by Boko Haram. The postponement has met with diverse reactions in Nigeria and elsewhere. While some view it as necessary to prevent the disenfranchisement of voters in the north, others suspect it is part of an effort to keep the current government in power.

TrackMyCrime Keeps Crime Victims in UK Informed

The Telegraph, in London, reports that the UK Ministry  of Justice has launched TrackMyCrime, an online platform intended to allow victims easier access to information about police investigations of their cases. By logging on, victims can track the progress of a police investigation and send secure messages directly to officers working on their cases. In the future, the hope is that victims will be able to follow their cases through the courts as well, and ultimately, if there is a conviction, through an offender’s imprisonment and release.

Victims, the one group of people often overlooked yet the most affected by crime are getting a voice in the UK for now – and in a relatively efficient manner. Maybe other systems should take heed.  At the international level, the International Criminal Court and the various criminal tribunals and hybrid courts allow and support victims’ participation, but even there, the participation is limited to court proceedings.  In the United States, victims’ interests are said to be represented by the prosecutor’s office; however, they often are not a priority, particularly for a busy, urban prosecutors office. It appears that the United Kingdom has found a reasonable middle ground – allowing victims to be part of the investigation, to be informed about the progress of their cases, to have the ability to provide information, and, perhaps most importantly, to feel involved in the process.

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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.

Another State Ratifies Crime of Aggression Amendments

To follow up on our previous post, the International Criminal Court (ICC) reports in its December 8, 2014 press release that on December 5, 2014, another state, Georgia, deposited the instrument of ratification of the 2010 amendments to the Rome Statute on the crime of aggression. This ratification brings the number of ratifications of the crime of aggression amendments to a total of twenty so far. The press release further notes that Georgia “is the seventh country from the Eastern European Group to have ratified this set of amendments,” following Croatia, Estonia, Latvia, Poland, Slovakia, and Slovenia.

The crime of aggression was included in the Rome Statute in 1998 but the definition of the crime and the process by which the Court can exercise jurisdiction over this crime was not articulated until the 2010 Review Conference in Kampala, Uganda. These amendments are set to go in effect on January 1, 2017 and the Court will be able to exercise jurisdiction over the crime of aggression once thirty States Parties have ratified the amendments.

Article 8 bis (1) articulates the definition of crime of aggression as

the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

Article 8 bis (2) further states that act of aggression means

the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.

The definition directly draws on the principles articulated in and established by the UN Charter, namely Article 2(4). In light of the continuous situation in Ukraine and Crimea, can we expect more ratifications soon?

ICC Annual Summary: Reports on 2014 Preliminary Examination Activities

To follow up on our previous post, the International Criminal Court (ICC) in its December 2, 2014 press release published its annual Report on Preliminary Examination Activities conducted between Nov. 1, 2013 and Oct. 31, 2014. “Preliminary Examination” is a process by which the ICC determines whether a situation referred to it meets the legal criteria established by the Rome Statute to warrant investigation by the Prosecutor.

As the annual report explains in its introduction,

preliminary examination of a situation by the Office may be initiated on the bases of: a) information sent by individuals or groups, States, [IGOs], or [NGOs]; b) a referral from a State Party or the Security Council; or c) a declaration accepting the jurisdiction of the Court lodges pursuant to article 12(3) by a State which is not a Party to the Statute.

Article 53(1)(a)-(c) establishes that the Office shall consider jurisdiction, admissibility and the interest of justice when determining whether there is a reasonable basis to proceed with an investigation. The preliminary examination is an independent analysis of facts and information available. The ‘reasonable basis’ standard has been defined by Pre-Trial Chamber II to require that “there exists a sensible or reasonable justification for a belief that a crime falling within the jurisdiction of the Court has been or is being committed.”

During this past year, the ICC conducted preliminary examination in eleven situations: Afghanistan, Central African Republic, Colombia, Georgia, Guinea, Honduras, Iraq, Nigeria, Republic of North Korea, Registered Vessels of Comoros, Greece and Colombia, and Ukraine. In three situations the preliminary examination has been concluded. The Court found reasonable basis to proceed with an investigation into the Situation in the Central African Republic II and announced the opening of new investigation. Two situations (Republic of North Korea and Registered Vessels of Comoros, Greece, and Cambodia) were closed because the Prosecutor did not find reasonable basis to proceed with investigation. 

There are eight situations remaining in the preliminary examination stages. Five (Afghanistan, Colombia, Georgia, Guinea, and Nigeria) situations are in the third phase of examination when the Office considers admissibility by looking at the complementarity and gravity principle articulated in article 17. Three (Honduras, Iraq, and Ukraine) situations are in the second phase when the Office considers jurisdiction (temporal, either territorial or personal, and material).

With respect to the situation in Ukraine, the annual report outlines the Office’s activities since the situation was referred to the Court via article 12(3) declaration and it states that it focused on “gathering available information from reliable sources in order to assess whether the alleged crimes fall within the subject-matter jurisdiction of the Court.” The Office requested information from the Government of Ukraine, from representatives of Ukrainian civil society, delegation of members of the Ukrainian Parliamentary Committee on the Rule of Law and Justice, and the Office also conducted a mission in Kiev. The Office concludes that it will continue to

gather, verify, and analyse” information to determine whether “there is a reasonable basis to believe that crimes within the jurisdiction of the Court have been committed during the Maidan event in Ukraine.