Tagged: ICC Prosecutor

The International Criminal Court Issues a Ruling in the 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 May 21, 2014, the ICC Appeals Chamber, in a divided vote, rejected Libya’s appeal of an ICC Pre-Trial Chamber’s May 31, 2013, ruling that Libya’s criminal investigation of Saif Al-Islam Gaddafi was not sufficient to bar the ICC from conducting its own criminal proceedings against him. On February 26, 2011, the U.N. Security Council, pursuant to Chapter VII of the U.N. Charter and Article 13(b) of the Rome Statute, adopted Resolution 1970 referring the situation in Libya to the ICC for investigation of the violence occurring since 15 February 2011 between the Libyan government, then headed by Muammar Gaddafi, and anti-government protesters. In UN S.C. Res. 1970, the Security Council

[d]eplor[ed] the [Libyan government’s] gross and systematic violation of human rights, including the repression of peaceful demonstrators, [expressed] deep concern at the deaths of civilians, [and] reject[ed] unequivocally the incitement to hostility and violence against the civilian population made from the highest level of the Libyan government.

Following an investigation by the Prosecutor’s Office, on June 27, 2011, an ICC Pre-Trial Chamber issued arrest warrants for Muammar Gaddafi, his son Saif Al-Islam Gaddafi, and Gaddafi’s brother-in-law Abdullah Al-Senussi, on charges of crimes against humanity for murder and persecution. On November 22, 2011, the ICC terminated its case against Muammar Gaddafi following his death.

On May 13, 2014 (a week before the Appeals Chamber announced its ruling), the ICC Prosecutor reported to the Security Council on the situation in Libya and asserted that

Libya continues to be under a pending obligation to surrender [Saif Al-Islam Gaddafi] to the Court [and that] [t]he Government of Libya should immediately surrender Saif Al- Islam Gaddafi to the Court or give reasons for its inability to do so.

An issue on appeal was the proper interpretation of Article 17(1)(a) of the Rome Statute, which requires the ICC to find that a case is not admissible to the ICC when “[t]he case is being investigated or prosecuted by a State which has jurisdiction over it.” Article 19(2)(b) provides that such a State may raise an admissibility challenge in order to retain exclusive jurisdiction of the case. It was undisputed in the appeal that Libya was proceeding with an investigation of Saif Al-Islam Gaddafi that included some incidents referred to in the ICC’s arrest warrant for him. A significant issue on appeal was: How much similarity and overlap between the matters investigated by a domestic jurisdiction and an ICC investigation was required in deciding whether the scope and contours of a domestic investigation would render a ‘case’ inadmissible to the ICC under Article 17?

Libya argued that when interpreting Article 17, the principle of complementarity creates a strong presumption favoring domestic prosecution. By a 4-1 decision, the Appeals Chamber rejected Libya’s argument and held that the evidence provided by Libya regarding its investigation was insufficient to demonstrate that the actions for which Libya was investigating Saif Al-Islam Gaddafi included all matters for which the ICC sought to prosecute him.

In her dissenting opinion, Judge Ušacka explained that the majority’s interpretation of Article 17 did not give sufficient consideration to the importance of the complementarity principle. After reviewing the ICC’s previous admissibility decisions, she asserted in paragraph 39 of her dissent that Libya’s appeal

is the first admissibility case before the Court in which a State has submitted a wealth of information about its ongoing proceedings and has clearly expressed the will to investigate and prosecute the same suspects as well as conduct that is arguably even broader than that contained in the warrants of arrests.

Judge Ušacka added in paragraph 65 “as a concluding remark on the subject of complementarity,” that “the overall goal of the [Rome] Statute to combat impunity can … be achieved by the Court through means of active cooperation with the domestic authorities.” Judge Ušacka would have remanded the case to the Pre-Trial Chamber for consideration of the admissibility issue under a standard that she thought gave more adequate consideration to the Article 17 principle.

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.

Related Readings:

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.

The International Criminal Court’s Jurisdiction over Charles Blé Goudé

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 authorities delivered Charles Blé Goudé to the International Criminal Court pursuant to an arrest warrant for Blé Goudé issued by the ICC. This raises an issue as to whether the ICC is the appropriate forum for the prosecution of Blé Goudé. See Ivory Coast Delivers Suspect to the International Criminal Court for additional background information.

As a result of an investigation by the ICC Prosecutor into the Ivory Coast Situation authorized in October 2011, three ICC arrest warrants have thus far been made public: for former President Gbagbo (Nov. 23, 2011), for Blé Goudé (Dec. 21, 2011), and for Simone Gbagbo (Feb. 29, 2012). All are Ivory Coast nationals potentially subject to prosecution in the Ivory Coast. The warrants for all three are based on the same four counts of crimes against humanity alleged to have been committed during the same period (from Dec. 16, 2010 to April 12, 2011). The Ivory Coast has delivered Laurent Gbagbo and Charles Blé Goudé to the ICC. However, according to news reports the Ivory Coast has stated its intention not to deliver Simone Gbagbo to the ICC but to prosecute her in its domestic courts, despite the fact that when the Pre-Trial Chamber issued the arrest warrant for her, it directed the ICC Registry to transmit a request to the Ivory Coast government to surrender her to the ICC.

This presents an interesting issue about complementarity. The Preamble of the Rome Statute “[r]ecall[s] that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes,” and “[e]mphasiz[es] that the International Criminal Court … shall be complementary to national criminal jurisdictions.” Article 17 of the Statute requires the ICC to defer to domestic jurisdiction unless the State with jurisdiction “is unwilling or unable genuinely to carry out the investigation or prosecution.”

The ICC Prosecutor addressed the Article 17 issue in January of last year reporting that the Prosecutor’s Office would open an investigation into the Situation in Mali, the most recent of the eight Situations currently before the ICC, which was referred to ICC for investigation in July 2012. The Prosecutor, finding support in ICC Pre-Trial Chamber opinion interpreting Article 17, stated in paragraph 136 that “[t]he absence of national proceedings is sufficient to render a case admissible.” By this logic, it would be appropriate for the ICC to prosecute Laurent Gbagbo and Charles Blé Goudé (because the Ivory Coast has chosen not to prosecute them) but not to prosecute Simone Gbagbo (because the Ivory Coast intends to prosecute her) – even though all three individuals are charged with responsibility for the same crimes on the territory of the Ivory Coast during the same time period.

Unless extenuating circumstances in the Ivory Coast suggest otherwise, this presents a possibility that State Parties – or non-State Parties who accept ICC jurisdiction pursuant to Article 12(3) – may choose selectively to prosecute some high authorities but not others, based on reasons of the State’s own choosing.

Such a possibility seems inconsistent with the Preamble of the Rome Statute and with policy statements issued by organs of the ICC. The Office of the Prosecutor and the Bureau of Assembly of States Parties have endorsed a “positive complementarity” policy to encourage and assist States to prosecute in their national courts crimes that may fall within the ICC’s subject matter jurisdiction.

William Schabas, a respected scholar on ICC issues, has addressed the complementarity issue as posed by Mali’s referral. Prof. Schabas stated that “[t]he profound flaw in the ‘self-referral’ model is that it flies in the face of ‘positive complementarity’. If Mali wants to ensure that its rebels are prosecuted, the Court should encourage it to do so by itself.”

An ICC Pre-Trial Chamber has scheduled a hearing for August 2014 to confirm the charges against Blé Goudé. At the hearing, Blé Goudé will have the opportunity to challenge the Court’s jurisdiction and the charges against him. Whether or not Blé Goudé, exercises his right under Article 19(2)(a), to challenge the admissibility of his case, Article 19(1) states that “[t]he Court may, on its own motion, determine the admissibility of a case in accordance with article 17.”

How the Pre-Trial Chamber deals with this matter will be important for the ICC’s complementarity jurisprudence.