Tagged: ICC Prosecutor

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.

Ukraine Expands Its Acceptance of ICC Jurisdiction

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.

Violence in Ukraine has troubled that nation and the world community for about two years. Recently, Ukraine has renewed and expanded its efforts to afford the International Criminal Court jurisdiction to investigate and prosecute those responsible for mass crimes committed on its territory. Ukraine is now alleging that Russia is responsible, in part, for such crimes.

Ukraine is not a State Party to the ICC’s Rome Statute. However, as written about in April 2014 post, Ukraine lodged an Article 12(3) declaration, which allows a non-Party State to accept the Court’s jurisdiction over crimes within its subject matter jurisdiction that are committed on the State’s territory. Ukraine’s 2014 declaration alleged that crimes against humanity were committed during internal strife in Ukraine between November 2013 and February 2014, responsibility for which it alleged was attributable to Ukraine’s former President and possibly other senior officials in his government. The ICC Prosecutor has been conducting a preliminary investigation regarding this matter but has not yet decided whether to seek authorization to open a formal investigation that would expand her investigative powers and allow for filing of charges against individuals.

Ukraine has now gone further. In a September 8, 2015 press release the ICC reported that the ICC Registrar acknowledged receipt of a second Article 12(3) declaration by Ukraine, in which Ukraine expands its acceptance of ICC temporal jurisdiction from beyond February 2014 to the indefinite future. Importantly, the declaration attributes responsibility for post-February 2014 war crimes and crimes against humanity to “senior officials of the Russian Federation and leaders of terrorist organizations.” Thus, Ukraine’s second declaration opens a politically potent issue, asking the ICC Prosecutor to conduct at least a preliminary investigation into Russia’s alleged involvement in the violence in Ukraine.

In its September 8 press release, the ICC noted that “[t]he provisions of Part 9 of the Statute relating to international cooperation and judicial assistance apply.” Part 9 of the Rome Statute imposes on State Parties the responsibility “to cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” The Russian Federation, however, is not a State Party to the Rome Statute, and thus has no such responsibility to the ICC.

It will be interesting to see how this matter will develop.

ICC Prosecutor Asked to Reconsider a Matter Involving Israel’s Blockade of 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 July 16, 2015, a 2-1 majority of Pre-Trial Chamber I issued a strongly worded decision finding what it termed numerous “material” errors in the ICC Prosecutor’s decision not to open a formal investigation of war crimes allegedly committed by members of the Israeli Defense Forces (IDF) in May 2010 when they intercepted and boarded ships that were attempting to penetrate Israel’s naval blockade of Gaza.

As I mentioned in an earlier post, on November 6, 2014 the ICC Prosecutor issued a report explaining that after months of review, she declined to open a formal investigation of the matter. The report was issued under Article 53(1) of the Rome Statute in response to a request of ICC State Parties, including the Union of Comoros, whose vessels were boarded by the IDF during the May 2010 incident. The report concluded that although there was a reasonable basis to believe that members of the IDF willfully killed ten of the 500+ passengers on one of the vessels, caused serious injury to several others, and committed outrages upon personal dignity of others, a formal investigation was unwarranted because the crimes involved, given the surrounding circumstances, would fail to meet the gravity requirement of Article 17(1)(d) of the Rome Statute.

In January 2015, the Union of Comoros invoked the opportunity provided by Article 53(3)(a) to request the Pre-Trial Chamber seized of the matter to review the Prosecutor’s decision not to proceed and to request reconsideration of the decision. Comoros’s application challenged several conclusions in the Prosecutor’s report.

In its July 16, 2015 decision, the Chamber’s majority discounted some of these challenges but agreed with several others regarding the Prosecutor’s alleged failure to properly address factors relevant to the gravity determination.

Addressing standard of review, the majority stated that a request pursuant to Article 53(3)(a) requires a Chamber “to exercise independent judicial oversight” and apply “exacting legal requirements.” It added that “[i]n the presence of several plausible explanations of the available information,” the Prosecutor must open an investigation so that she can “properly assess the relevant facts.”

Applying this standard, the majority faulted the Prosecutor for at times deciding against investigation of matters on which there were conflicting claims. Of particular importance, the majority suggested that the Prosecutor may have “willfully ignored” credible evidence that the IDF fired upon one of the vessels prior to boarding. Such evidence, if established, would support the proposition that there was a systematic plan to attack civilians on that vessel.

Accordingly, the Chamber issued a request to the Prosecutor to reconsider her decision not to investigate the situation.

The Chamber’s decision involves procedural issues regarding a Chamber’s Article 53(3)(a) review that will have to be resolved in the future. In his dissenting opinion, Judge Péter Kovács argued that, among other failings he perceived, the majority “introduced for the first time a standard for reviewing negative decisions undertaken [by a prosecutor pursuant to Article 53(1)] without explaining the legal basis for its endorsement.” In Judge Kovács’s view, “the Pre-Trial Chamber’s role is merely to make sure that the Prosecutor has not abused her discretion in arriving at her decision not to initiate an investigation ….” Reviewing the evidence and submissions, he concluded that the Prosecutor did not abuse her discretion in this matter.

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 Prosecutor Expresses Concern About Upcoming Elections in Burundi

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.

In a statement issued on May 8, 2015, the ICC Prosecutor expressed concern about “the growing tensions in [Burundi] and reports that violence ahead of the [forthcoming] elections may escalate, which could lead to the commission of serious crimes falling within the jurisdiction of the International Criminal Court.” She warned that “[a]ny person who incites or engages in acts of mass violence, including by ordering, requesting, encouraging or contributing in any other manner to the commission of crimes within ICC’s jurisdiction is liable to prosecution before the Court.” She advised that “[her] Office, in accordance with its mandate under the Rome Statute, will be closely following developments in Burundi in the weeks to come and record any instance of incitement or resort to violence.”

As discussed in our previous post, the ICC Prosecutor proactively expressed similar concerns about elections to be held in Nigeria, warning that her Office stood ready to investigate election-related violence in that country that might provide for ICC jurisdiction.

Subsequently, reports indicated that the Nigerian elections proceeded reasonably well. Reuters reported that “[d]espite some technical glitches and the killing of more than a dozen voters by Boko Haram gunmen, the election has been the smoothest and most orderly in Nigeria’s history.” In her May 8 statement, the Prosecutor commented on the Nigerian election and stated that “[t]he recent elections in Nigeria have shown how commitment to peaceful elections by the electoral candidates can prevent mass violence.” While it cannot be determined at this time whether the Prosecutor’s statement in advance of the Nigerian elections contributed to a reasonably peaceful outcome, it may well have done so.

The Prosecutor’s statement about Burundi represents a further step in pursuit of her Office’s policy, articulated in the November 2013 Policy Paper on Preliminary Examination, to “issue public, preventive statements in order to deter the escalation of violence and the further commission of crimes.” Her statement regarding Nigeria addressed a situation in which her Office had previously commenced a preliminary investigation. Although Burundi, as Nigeria, is a State Party to the ICC Statute, the Prosecutor has not as yet opened an investigation into matters in Burundi. Accordingly, the Prosecutor’s May 8 statement represents a further initiative to also perform early warning function in line with the OTP’s prevention efforts.