Tagged: admissibility

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.

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.

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.

ICC Opens Second Investigation into Central African Republic

On September 24, 2014 Fatou Bensouda, the Prosecutor of the International Criminal Court (ICC), announced in a press release her decision to open a second investigation in the Central African Republic (CAR). Pursuant to Arts. 13(a) and 14 of the Rome Statute, the transitional government of CAR referred its situation “regarding crimes allegedly committed on CAR territory since 1 August 2012” to the Office of the Prosecutor (OTP). Once such a State Party referral is received, the Prosecutor opens a preliminary examination, according to Article 18, to assess whether the OTP can proceed with an investigation. In accordance with article 53(1), the Prosecutor’s office conducted an independent preliminary examination and concluded that

[t]he information available provides a reasonable basis to believe that both the Séléka and the anti-balaka groups have committed crimes against humanity and war crimes including murder, rape, forced displacement, persecution, pillaging, attacks against humanitarian missions and the use of children under fifteen in combat. The list of atrocities is endless. I cannot ignore these alleged crimes, [Prosecutor Bensouda stated].

Article 53(1) Report of the Situation in the Central African Republic II outlines the scope of preliminary examination conducted by the OTP, which includes analysis of the preconditions to Court’s jurisdiction, the Court’s subject-matter jurisdiction over the alleged crimes, the admissibility issues articulated in Article 17, and the overall interest of justice. The conclusions of the preliminary examination provided reasonable basis for the OTP to initiate an investigation. You may follow the developments in both situations on the Court’s website:

TODAY – Cell Phone Searches after Riley: Investigative and Evidentiary

Pace Criminal Justice Institute is co-hosting a CLE TODAY – Tuesday, October 7, 2014 at 6:00 pm – 8:30 pm titled Cell Phone Searches after Riley: Investigative and Evidentiary, in the Law Library Moot Court Room, at Pace Law School, White Plains, NY.

Join the panel of speakers including Professors David Bender, David Dorfman, and Bennett Gershman, Bronx A.D.A. and ’88 alumni Thomas Kapp, and Town of Greenburgh Chief of Police and ’06 alumni Chris McNerney as they discuss the implications of the United States Supreme Court decision Riley v. California, No. 13-132, 13-212, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). In Riley, the Court consolidated two criminal appeals that both involved a defendant challenging the admissibility of evidence found during police officers’ warrantless search of data stored on the defendant’s cell phone.

Attendees can earn up to 2.5 CLE skills credit. We look forward to seeing you there!