Tagged: Article 12(3)

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.

Ukraine: The ICC’s Authority Grows as Another Non-State Party Accepts Its Jurisdiction

Ukraine gained its independence from the former Soviet Union in 1991 when its parliament adopted the Act of Independence. Since then, Ukraine has worked to stabilize and grow as a new sovereign and independent state with the hope of joining the European Union. That hope was quashed in late 2013 when Viktor F. Yanukovych, then-president of Ukraine, won election for the third time (whether he actually won and whether it was done democratically is debated to date) and began to work closely with Russia rather than the European Union.

In November 2013, protests in Kiev and across Ukraine began. These protests continue today, resulting in almost one hundred dead and thousands injured. In light of the situation, Ukraine, not a party to the International Criminal Court (ICC) referred the situation to the Court, via declaration dated April 9, 2014, and accepted the Court’s jurisdiction. The Registrar of the ICC received this declaration on April 17, 2014.

In the Declaration of the Verkhovna Rada of Ukraine, Ukraine asks the Court to hold senior officials of Ukraine criminally liable for alleged crimes against humanity committed during peaceful protests that took place in Ukraine between Nov. 21, 2013 and Feb. 22, 2014,

namely Yanukovych Viktor Fedorovych – the President of Ukraine – and other officials to be determined by the Prosecutor….

Ukraine utilized the mechanism under Article 12(3) of the Rome Statute, which “enables a State not party to the Statute to accept the exercise of jurisdiction of the Court.” With acceptance of the jurisdiction comes the cooperation obligations described and enumerated under Part 9 of the Rome Statute. The next step is for the Office of the Prosecutor (OTP) to decide whether to initiate investigation into the referred situation. On Friday, April 25, 2014, as reported in the ICC’s press release, Fatima Bensouda

has decided to open preliminary examination into the situation in Ukraine in order to establish whether the Rome Statute criteria for opening an investigation are met.

This is the second time a State that is not party to the Rome Statute referred a situation to the Court. The first situation referred to the Court via the Article 12(3) mechanism was the Situation in the Republic of Côte d’Ivoire. Both situations, Côte d’Ivoire and Ukraine, present an interesting step in the evolution of the ICC’s jurisprudence that was anticipated in the Rome Statute (Article 12(3)) but used only twice. Cases currently pending at the ICC were either referred to the ICC by a State party or the Security Council, or investigation was initiated proprio motu by the Prosecutor. However, Article 12(3) offers a State that has not signed onto and ratified the Rome Statute, an international multilateral treaty, the chance to nevertheless accept the obligations and protections thereunder on a temporary basis.

One may argue that the 12(3) mechanism is circumventing the checks and balances guaranteed in Article 17 of the Statute, which makes the ICC’s jurisdiction complementary to a national jurisdiction. Article 17 states that a case is inadmissible to the ICC where

the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.

But because the process under Article 12(3) is initiated by a State not party to the Statute and is voluntary, it is the State that effectively gives up its own jurisdiction protected via Article 17 and accepts the one of ICC.

And how does this development affect the authority and power of the ICC? Greatly, because it is viewed as an authority with ability to carry out justice even by those who have not yet signed and ratified the Statute.

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