Tagged: International Criminal Court

International Criminal Court Welcomes Palestine as a State Party

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.

To follow up on an earlier post, on April 1, 2015 at a ceremony at The Hague the representatives of the International Criminal Court (ICC) welcomed Palestine as the 123rd Party to the ICC’s Rome Statute. The ICC representatives expressed hope that Palestine’s acceptance of the Rome Statute will contribute to the Statute’s goal of ending impunity for grave crimes of an international dimension.

Mindful of hotly contested issues relating to the Palestinian territory of Gaza, from which Hamas has launched attacks against Israel and in which Israel has launched attacks against Hamas, Judge Kuniko Ozaki, delivering Welcoming Ceremony remarks in the capacity of Acting President of the ICC, reminded Palestine that by becoming a State Party, it accepted the obligations (set out in Part 9 of the Rome Statute) requiring a State Party to “cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.”

The ICC Office of the Prosecutor (OTP) recently addressed issues relating to Gaza. In May 2013, the OTP opened a preliminary examination into an incident on May 31, 2010 relating to Israel’s naval blockade of Gaza. At issue was whether the OTP had sufficient basis to open a formal investigation regarding war crimes allegedly committed by members of the Israeli Defense Force (IDF) when they boarded registered vessels of ICC State Parties that were attempting to defy the blockade. After conducting a preliminary examination for approximately 17 months, on November 6, 2014 the OTP issued a report pursuant to Article 53(1) of the Rome Statute, in which it thoroughly reviewed the matter and decided not to open a formal investigation.

The OTP’s report concludes that Israel’s stated purpose for the blockade was to interdict arms shipments that it considered would be used by Hamas for attacks against Israel. In May 2010, groups opposing the blockade organized a flotilla to bring humanitarian aid to the Palestinians and also to protest and to encourage international condemnation of the blockade. Israel had offered to allow the humanitarian aid to be delivered to Palestine by other means. On May 31, 2010, IDF personnel boarded some of the vessels after providing a warning. Several passengers on board one of the vessels violently resisted the IDF, but this resistance was not of such a degree as to disqualify the resisting passengers’ status as protected persons under the Geneva Conventions. While the information available did not support several potential charges, there was a reasonable basis to believe that the IDF willfully killed ten of the 500+ passengers, caused serious injury to several others, and committed outrages upon personal dignity of others. Nevertheless, the scale of the crimes involved, given the surrounding circumstances, did not meet the gravity requirement of Articles 17(1)(d) and 53(1)(d) of the Rome Statute.

Further, Rome Statute Article 8, defining war crimes, provides somewhat different rules depending on whether the acts in question were committed in the context of an international or non-international armed conflict. Addressing this issue, the OTP report concluded that “the prevalent view within the international community is that Israel remains an occupying power in Gaza” because of several controlling measures taken by Israel – despite Israel’s withdrawal of its forces from Gaza and the dismantling of Israeli settlements there in 2005. Citing basic principles of the international law of occupation, the OTP concluded that because Israel retains the capability of exercising effective control over Gaza, hostilities between Israel and Hamas implicated an international armed conflict.

Thus, if Israel is in fact in effective control of Gaza, ICC investigation of Gaza-related violence will likely be hampered because Israel, not being a Party to the ICC Statute, has no obligation to comply with ICC investigations. On the other hand, Palestine can find support in the international law of occupation, referenced by the OTP, stating that occupation of a State over part of the territory of another State does not displace the sovereignty of the latter over the occupied territory.

2015 Pace International Criminal Court Moot

Pace Law School is proud to host the 15th annual Pace International Criminal Court Moot: Qualifying Round of the Americas on March 21-22, 2015 and welcome the participating teams. Preliminary rounds begin on Saturday, March 21, 2015 at 9:00 AM and the semi-final and final rounds will be held on Sunday, March 22, 2015 followed by a reception and award ceremony. The 2015 case presents the participating teams with the following issues:

  1. Whether Astafur is competent to make an Article 12(3) Declaration, triggering the jurisdiction of the Court over war crimes committed in Pantos, despite its lack of effective control over the territory of Pantos at the time of submission of the Declaration;
  2. Whether the Court has jurisdiction under the objective territorial principle over crimes committed by a Non-Party State (Braanos) via cyberspace that have an effect in a State (Astafur) that has lodged an Article 12(3) Declaration;
  3.  Whether the widespread disruption of communications and electricity during a revolt against the government of Astafur via Distributed Denial of Service attack constitutes a war crime; and
  4. Whether there must be two different victims’ legal teams under separate Victims’ Legal Representatives in this case because one portion of the victims supported secession and the other favored remaining part of Astafur.

Are you interested in judging the competition and earn CLE credits? Contact the Director, Prof. Matthew Brotmann directly at PaceICCMC@gmail.com.

From the Director of ICC Moot, Prof. Matthew Brotmann

Pace logo for ICCPace Law School has partnered Leiden University’s Grotius Center to become the official moot competition of the International Criminal Court. The upcoming competition to be held at Pace Law School is the qualifying round for the ICC Trial Competition to be held in The Hague, May, 2015. The top teams from each country competing in the Round of the Americas advance to the finals in The Hague, to compete against qualifying teams from other areas of the world. The Round of the Americas is open to all law students from the North, Central and South America as well as the Caribbean region. All other international students compete in the qualifying rounds at The Hague, unless requested otherwise.

Each team submits three memorials (briefs) requiring the students to research and develop arguments based on the three participants in ICC prosecutions, i.e., the Prosecution, the Defence and the Victims’ Advocates or Government Counsel, a new role developed for the first time for the International Criminal Court. These memorials are evaluated by legal scholars, and prizes are awarded for best brief, second place runner-up, and third place runner-up in each of the three categories of memorials. Perhaps the most exciting feature of the Moot, and one unique to this competition, is that each team of students participates in three rounds of oral arguments and has the opportunity of arguing all three perspectives: prosecutor, defence counsel and victims’ advocate or government counsel. Participating students all commented that they had never experienced a better way of learning the substantive and procedural law in a given area and fully developing the arguments of the parties than by having the opportunity to make those arguments from all three perspectives during the Moot.

The purpose of the Competition is to develop expertise in international criminal law, as practiced in the forum of the International Criminal Court. It is hoped that over time, the Competition will also educate a wider public, here and abroad, in the jurisdiction, procedures and substantive law that is utilized by the ICC in the prosecution of individuals charged with War Crimes, Crimes against Humanity, Genocide, and Crime of Aggression.

Keynote addressees and final round judges of past moots have included Amb. David Scheffer (former US Ambassador-at-Large for War Crimes Issues), Col. Linda Strite Murnane (ICTY), Judge Martin G. Karopkin (ECCC), Ms. Peggy Kuo (former Trial Attorney, ICTY), Prof. Benjamin Ferencz (former Prosecutor, Nuremburg), and Mr. Trevor Chimimba (UN). Mr. Roland Adjovi, former Senior Legal Officer of Trial Chamber III at the ICTR and Ms. Louise Doswald-Beck, Director of the University Centre for International Humanitarian Law (UCIHL) and former head of the Legal Division of the International Committee of the Red Cross, amongst others.

For further information, please see our website at www.law.pace.edu/icc or contact Prof. Matthew Brotmann at PaceICCMC@gmail.com.

The ICC Prosecutor Proactively Addresses the Situation in Nigeria

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 February 2, 2015, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, issued a statement calling on all parties to refrain from violence in the Nigerian elections, which were originally scheduled to be held in February 2015.

The Prosecutor’s statement regarding the danger of election-related violence is grounded in ICC experience. She noted that “[e]xperience has shown that electoral competition, when gone astray, can give rise to violence and in the worst case scenarios, even trigger the commission of mass crimes that ‘shock the conscience of humanity.’” Severe factional post-election violence in Kenya (in 2007-08) and Ivory Coast (in 2010-11) led the Prosecutor to bring criminal charges against individuals in both countries.

The Prosecutor’s warning regarding Nigeria has teeth because preliminary examination conducted by her Office into previous violence in Nigeria have advanced to phase 3 (of four phases). Analysis in phase 3 follows upon previous determination that there is a reasonable basis to believe that requirements for the ICC’s subject matter and territorial jurisdiction can be met, and focuses on the question of whether investigation by national authorities is sufficient so as to preclude further investigation by the ICC.

The Prosecutor is looking into allegations of violence committed by Nigerian security forces, while also giving particular focus to widely reported actions by the Nigerian insurgent group, Boko Haram. On May 8, 2014, the Prosecutor issued a public condemnation of Boko Haram’s abduction of over 200 schoolgirls. In her February 2, 2015 statement, she noted that such actions, “which shock the conscience of humanity,” must be prosecuted by Nigerian authorities or by the ICC.

The ICC’s authorizing statute focuses on the investigation and prosecution of crimes already committed. It does not explicitly set out specific responsibility for the Prosecutor to take proactive measures to prevent future crimes. Nevertheless, in its November 2013 Policy Paper on Preliminary Examinations, the Office of the Prosecutor (OTP) stated that “prevention of crimes” is one of “the overarching goals of the statute.” Accordingly, the OTP will work “proactively,” which includes “issu[ing] public, preventive statements in order to deter the escalation of violence and the further commission of crimes ….”

To achieve these goals, the Prosecutor noted that she was sending a team from her Office to Nigeria “to further engage with the authorities and encourage the prevention of crimes.” She forcefully stated, “[n]o one should doubt my resolve, whenever necessary, to prosecute individuals responsible for the commission of ICC crimes.”

Following the Prosecutor’s February 2 statement, the Nigerian electoral commission announced that it was postponing the elections until March 28, 2015. The commission said the postponement was necessary because troops needed to protect polling stations in northern Nigeria, which had been diverted to address an upsurge of violence by Boko Haram. The postponement has met with diverse reactions in Nigeria and elsewhere. While some view it as necessary to prevent the disenfranchisement of voters in the north, others suspect it is part of an effort to keep the current government in power.

The State of Palestine Ratifies Rome Statute and Accepts the Court’s Jurisdiction

In a controversial move, the State of Palestine became the 123rd State Party to the Rome Statute when it deposited its instruments of accession to the UN. According to the depositary notification, the action was effected on January 2, 2015 and the Rome Statute will enter into force for the State of Palestine on April 1, 2015 in accordance with Article 126(2).

In the meantime, however, the State of Palestine filed Article 12(3) declaration accepting the International Criminal Court’s jurisdiction

for the purpose of identifying, prosecuting and judging authors and accomplices of crimes within the jurisdiction of the Court committed in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.

Unlike the other Article 12(3) declarations filed with the Court so far (as previously discussed here, here, and here), the Palestinian one does not identify a specific time frame within which the Court is entitled to exercise its jurisdiction. On the contrary, it specifically articulates that it “shall be valid for an unspecified period of time,” ensuring that the Court can exercise its jurisdiction within Palestinian territory until the Rome Statute enters into force on April 1, 2015. At that point, Article 12(3) declaration is likely to have little or no importance since the Rome Statute, as the later-in-time instrument, will be in force.

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?