Tagged: Georgia

Supreme Court Remands Case for Re-sentencing on Batson Violation

On May 23, 206, the Supreme Court decided Foster v. Chatman, No. 14-8349 (U.S. 2016), a thirty-year old death penalty case raising Batson claims of racial selection of the trial jury. The court remanded the case, presumably for a new trial. You can read an analysis by Professor Bennett Gershman in his latest titled How Prosecutors Get Rid of Black Jurors. 

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ICC Opens Another Preliminary Examination – Burundi

Fatou Bensouda, the ICC’s Prosecutor, announced in her statement that a preliminary examination has been initiated into Burundi on-going crisis, allegedly involving more than 430 persons killed, at least 3,400 people arrested, and over 230,000 Burundians forced to seek refuge. As reported in an earlier post, the Prosecutor has been watching the ongoing situation in Burundi since early 2015, commenting on the then-upcoming election, fulfilling the OTP’s early warning function and preemptively calling for peace and cease of violence. It appears however, that her prevention efforts within Burundi, a State Party to the Rome Statute, unfortunately fell short because about a year later, she is initiating a preliminary examination.

Preliminary examination may be initiated by the Prosecutor, referral from a State Party or Security Council, or a 12(3) declaration by a State that is not a Party to the Rome Statute. In this case, the Prosecutor exercised its vested authority to begin examination. The purpose of such examination is to review and assess information available so far to determine whether a reasonable basis to proceed with investigation exists. Article 53(1) of Rome Statute requires Prosecutor to consider issues of jurisdiction (often focusing on the Court’s subject matter jurisdiction), admissibility (comprising of both complementarity and gravity determination often focusing on the domestic prosecutorial and investigative efforts) and overall interest of justice.

Not every preliminary examination leads to authorization to investigate. In situations of Honduras, Republic of Korea, and the Vessels of Comoros, the Court found no reasonable basis to proceed with investigation, as required by art. 53(1), and concluded its preliminary examinations without prejudice, leaving the possibility to re-open examination available should additional information and evidence surface. On the other hand, in situations of Libya, Ivory Coast, Mali, Georgia, and CAR II, for example, the Court moved forward, finding reasonable basis to proceed and securing pre-trial chamber’s authorization to open investigation in these situations.

The ICC has seven open preliminary examinations at this time, making Burundi the eighth one. Three situations, Palestine, Ukraine and Iraq, are currently in Phase 2 – having the Court consider subject-matter jurisdiction. Four situations, Afghanistan, Colombia, Guinea, and Nigeria, have moved to Phase 3 – having the Court consider issues of admissibility. The Court issues reports on its preliminary examination conclusions each year sharing its findings in each situation and ensuring so the much needed transparency.

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The ICC’s Principle of Complementarity and Domestic Prosecutions

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.

Before a matter can be fully pursued by the International Criminal Court, the ICC Prosecutor must first in the course of a preliminary examination determine, among other jurisdictional requirements, whether national authorities are actively pursuing a case of potential concern to the ICC. This is because the principle of complementarity, set forth in the Preamble of the Rome Statute and given specificity in Article 17 of the Rome Statute, debars the ICC from pursuing possible crimes within its subject matter jurisdiction if a State that can assert jurisdiction over the matter is doing so.

Article 19 of the Rome Statute provides additional force to the complementarity principle. It states that “[t]he Court shall satisfy itself that it has jurisdiction in any case brought before it” and that “[t]he Court may, on its own motion, determine the admissibility of a case in accordance with Article 17.” Article 19 also allows certain individuals and States to challenge the admissibility of a case.

In one of its first cases, the ICC prosecuted Thomas Lubanga Dyilo, the leader of a group pursuing violent opposition to the government of the Congo – despite the fact that the Congo was pursuing charges against him for genocide and crimes against humanity. Because these charges did not specifically include the crime of enlisting children under age 15 to participate in hostilities (a crime within ICC’s subject matter jurisdiction), the ICC determined that it could pursue that charge against Lubanga, without violating the principle of complementarity. ICC prosecution of Lubanga on this charge resulted in 2012 in the first conviction achieved by the ICC.

In an October 2015 report, ICC Prosecutor Fatou Bensouda needed to address the complementarity issue when requesting authority from a Pre-Trial Chamber to open an investigation into 2008 conflict in the South Ossetia region of Georgia. As written earlier, this conflict includes possible crimes committed by South Ossetian forces rebelling against Georgia and by Georgian forces in response, and – potentially – by Russian forces that intervened in support of the rebels.

In August 2008, Prosecutor Bensouda’s predecessor opened a preliminary examination of this matter. ICC Protocol regarding preliminary examinations requires the Prosecutor to first determine whether there is a reasonable basis to believe that crimes within ICC jurisdiction have been committed. The OTP recently made an affirmative determination regarding the Georgian situation prior to 2015. In her October 2015 Request for Authorization, Prosecutor Bensouda mentions that the seven-year delay in presenting her request was caused by the need, pursuant to Article 17’s complementarity requirement, to monitor efforts by national authorities in Georgia and Russia undertaking investigations of crimes of concern to the ICC.

The Prosecutor further states that Russia’s investigations appear to be proceeding. However, although Georgia had been engaging in investigations since 2008, Georgian officials notified her Office in March of this year that, because of several difficulties, Georgia was discontinuing its investigations. Because of this discontinuance, the Prosecutor concludes that there is at this time no complementarity objection that would defeat her request to open an investigation into the Georgian situation.

An ICC Pre-Trial Chamber must now decide whether to authorize the Prosecutor to open an investigation. The Trial Chamber will determine, among other jurisdictional issues, whether an investigation comports with the principle of complementarity. As noted above, even should the Chamber grant the Prosecutor’s request, challenges to admissibility may be raised at later stages.

ICC Prosecutor Requests Authorization to Investigate a Conflict in Georgia Involving Russia

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.

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.

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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?