Tagged: arrest warrant

ICC Confirms Case Against Simone Gbagbo

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 May 27, 2015, the Appeals Chamber of the International Criminal Court (ICC) issued a decision confirming that the ICC case against Ivory Coast national Simone Gbagbo is not jurisdictionally barred to the ICC because of efforts undertaken by Ivory Coast to conduct its own criminal investigations against her.

As discussed in our previous post, the ICC confronted a situation regarding the three Ivory Coast nationals for whom it issued arrest warrants, all of whom were charged with responsibility for alleged crimes against humanity (including murder, rape and other forms of sexual violence, persecution and other inhumane acts) committed by supporters of defeated President Laurent Gbagbo against civilians in the aftermath of the Ivory Coast presidential election in November 2010. This violence resulted in the death of more than three thousand people.

Pursuant to the ICC arrest warrants, Ivory Coast (Côte d´Ivoire) authorities delivered Laurent Gbagbo and militia commander Charles Blé Goudé to The Hague for ICC prosecution on the crimes alleged in the warrants. But Ivory Coast refused ICC orders to deliver Simone Gbagbo and instead asserted that, pursuant to Articles 17 and 19 of the ICC Statute, her case was not admissible to the ICC on the ground that Ivory Coast was investigating and preparing to prosecute her.

After reviewing Ivory Coast’s arguments and supporting documents, an ICC Pre-Trial Chamber rejected the admissibility challenge because the Chamber determined that although Ivory Coast submitted evidence indicating that it was investigating Ms. Gbagbo for economic crimes, crimes against the State, and certain other matters, it was not prosecuting her for the crimes against humanity for which the ICC sought to prosecute her.

Ivory Coast appealed this decision in an effort to deny ICC jurisdiction over Ms. Gbagbo. In arguments to the Appeals Chamber, it employed several tactics, which included (1) submitting evidence of its investigative actions against Ms. Gbagbo that it undertook after the Pre-Trial Chamber’s decision, (2) attempting to challenge several points made by the Pre-Trial Chamber not as factual findings but as legal rulings (which would require more exacting review by the Appeals Chamber), and (3) characterizing acts for which it was investigating Ms. Gbagbo as “preparatory acts” for crimes within ICC jurisdiction.

In addition to Ivory Coast’s arguments, the Appeals Chamber considered arguments by all other concerned Parties. Given the Pre-Trial Chamber’s findings that procedural activities undertaken by Ivory Coast judicial authorities were “sparse and disparate” and did not cover the serious matters that the ICC sought to prosecute, it is perhaps not surprising that Ms. Gbagbo advanced arguments “fully supporting the Appeal.” On the other hand, the ICC Prosecutor and the Office of Public Counsel for Victims (representing victims of the Ivory Coast violence) provided arguments supporting the ICC’s admissibility of the case.

In its May 27 decision, the Appeals Chamber rejected all of the arguments submitted by Ivory Coast and by Ms. Gbagbo and confirmed the Pre-Trial Chamber’s decision that the ICC case against Ms. Gbagbo is admissible.

In rejecting Ivory Coast’s submission of evidence of its investigations subsequent to the evidence it presented to the Pre-Trial Chamber, the Appeals Chamber stated that by making such submissions Ivory Coast was “attempt[ing] to seek a new ruling on admissibility, rather than a review of the proceedings before the Pre-Trial Chamber.” The Appeals Chamber noted that under Article 19(4), “[t]he admissibility of a case … may be challenged only once.” Accordingly, the Chamber held that Ivory Coast couldn’t use this additional information to support what would in effect constitute a second challenge to admissibility. However, an ICC press release reporting on the Appeals Court’s decision notes that Article 19(4) also states that “[i]n exceptional circumstances, the Court may grant leave for a challenge to be brought more than once.”

Ivory Coast became a State Party to the ICC in February 2013. Article 89 of the Rome Statute requires “State Parties [to] comply with [ICC] requests for arrest and surrender.” It will be interesting to see whether Ivory Coast complies with this obligation, or whether it seeks to make use of the “exceptional circumstances” provision to make a second challenge to the admissibility of this case.

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.

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.

ICC Pursues the Arrest of Al Bashir

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 9, 2014, the Pre-Trial Chamber II of the International Criminal Court (ICC) issued a decision chastising the Democratic Republic of the Congo (DRC) for failing to comply with ICC requests for the arrest and surrender of Omar Al Bashir, the President of Sudan.

In March 2005, the U.N. Security Council adopted a resolution referring the Situation in Darfur, Sudan, to the ICC for investigation. This was the first time the Security Council referred a situation to the ICC pursuant to Chapter VII of the U.N. Charter and Article 13(b) of the ICC’s Rome Statute. Following an investigation by the ICC Prosecutor, the ICC issued two arrest warrants for Al Bashir, first in March 2009 and second in July 2010, charging him with responsibility for war crimes, crimes against humanity, and genocide, committed during the bloody conflict in Darfur.

The Pre-Trial Chamber’s rebuke of the DRC was occasioned by the DRC’s failure to arrest Al Bashir when in late February 2014, he visited the DRC to participate in a summit conference of African leaders to discuss matters of common economic concern in Eastern and Southern Africa. Having advance notice of this visit, the Pre-Trial Chamber issued a request to the DRC to arrest and surrender Al Bashir, pursuant to the previously issued warrants. The DRC is a State Party to the Rome Statute, and Part IX of the Statute requires State Parties to cooperate with the ICC with regard, among other matters, to the arrest and surrender of persons for whom the ICC has issued an arrest warrant.

Among its reasons for not arresting Al Bashir during his February visit, the DRC asserted that it was obligated to respect Al Bashir’s immunity as a head of state, despite the fact that Article 27 of the Rome Statute does not recognize head of state immunity as a bar to ICC prosecution. The DRC, not implausibly, found authority for its position in Rome Statute Article 98(1), which states that the ICC “may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.” Sudan is such a “third State,” not being a State Party.

The Pre-Trial Chamber found the DRC’s claim unavailing because of the Security Council’s referral of the Sudan Situation to the ICC. The Chamber stated in paragraph 31 of its Decision that the Security Council, when referring the Darfur Situation by way of a Resolution pursuant to its Chapter VII authority, “implicitly lifted the immunities of Omar Al Bashir ….” (Both the DRC and Sudan are U.N. members, subject to Security Council authority.)

The Chamber forcefully stated in paragraph 33 of its decision that compliance with a Security Council referral to the ICC was of paramount importance; otherwise such a referral “would never achieve its ultimate goal … to put an end to impunity.”

The Chamber found that the DRC’s failure to arrest Al Bashir constituted a failure of the DRC to comply with its obligations to cooperate with the ICC. Accordingly, the Chamber stated that it was referring its decision to the Security Council and to the Assembly of State Parties.

The Chamber has made a strong statement in support of the ICC’s mandate. But its decision will continue some of the political controversies in which the ICC has been involved, especially given the fact that the DRC and Sudan are member States of the African Union, which has criticized the ICC for allegedly giving excessive and inappropriate attention to affairs in Africa.

Ivory Coast Delivers Suspect to the International Criminal Court

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 March 22, 2014, Ivory Coast (Côte d´Ivoire) authorities delivered Charles Blé Goudé to the International Criminal Court (ICC) in The Hague, pursuant to an arrest warrant issued by an ICC Pre-Trial Chamber on December 21, 2011. The warrant was based on information that Blé Goudé bears responsibility for crimes committed by militia forces under his command in the aftermath of the Ivory Coast presidential election in November 2010. After the election, a civil war broke out between forces of former President Laurent Gbagbo (who lost his bid for re-election) and supporters of the newly elected President Alassane Ouattara. More than 3,000 people were killed during this civil war. Blé Goudé, a supporter of Gbagbo, is accused of being responsible as an “indirect co-perpetrator” on four counts of crimes against humanity: murder, rape and other forms of sexual violence, other inhumane acts, and persecution. All of these acts are listed in Article 7 of the ICC’s Rome Statute as the basis for a charge of crimes against humanity “when committed as part of a widespread or systematic attack directed against any civilian population ….”

The Ivory Coast was not a Party to the ICC’s Rome Statute at the time the crimes charged were committed. The Ivory Coast deposited its instrument of ratification of the Rome Statute on February 15, 2013.  However, many years earlier, in April 2003, the Ivory Coast Government under then-President Gbagbo accepted ICC jurisdiction over crimes committed on its territory during a previous period of violence. This was done pursuant to Rome Statute Article 12(3), which provides that a non-State Party may lodge a declaration with the ICC accepting jurisdiction over acts committed on its territory that constitute crimes within the ICC’s subject matter jurisdiction. By letters to the ICC in December 2010 and May 2011, newly elected President Ouattara reaffirmed the validity of the April 2003 Declaration (original) and his government’s willingness to cooperate with the ICC.

Following these letters, the ICC Prosecutor requested authorization from the Pre-Trial Chamber to initiate an investigation of the Ivory Coast Situation, which the Chamber provided in October 2011. The Chamber found that information submitted by the Prosecutor provided reasonable grounds to believe that pro-Gbagbo forces committed crimes against civilians that are within the ICC’s subject matter jurisdiction. Among the materials submitted by the Prosecutor were several public reports authored by Human Rights Watch and by the United Nations High Commissioner for Human Rights, informing of murders and rapes committed by pro-Gbagbo forces against civilians who were, or were suspected to be, loyal to Alassane Ouattara.

When two months later, in December 2011, the Pre-Trial Chamber issued the arrest warrant for Blé Goudé, it noted that the Prosecutor’s submission that Blé Goudé is liable as an “indirect co-perpetrator” under Rome Statute Article 25(3)(a) “may well need to be revisited in due course with the parties and participants.” Article 61 of the Rome Statute requires that within a reasonable time after an accused person has been surrendered to the Court, the Pre-Trial Chamber must hold a hearing to confirm the charges. This hearing will provide Blé Goudé an opportunity to challenge the charges against him. It will be the Pre-Trial Chamber’s duty to determine, on the basis of the hearing, whether, pursuant to Article 61(7), “there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged.” If one or more of the charges are confirmed and the case goes to trial, the Trial Chamber must be convinced, pursuant to Article 66(3), of the defendant’s guilt beyond a reasonable doubt.