Tagged: International Criminal Court

Three More Countries Ratify Amendments to the Rome Statute on the Crime of Aggression

In a 9/29/14 press release, the President of the Assembly of States Parties to the Rome Statute announced that Latvia, Poland, and Spain deposited their respective instruments of ratification of the 2010 amendments to the Rome Statute on the crime of aggression. Article 5 of the Rome Statute enumerates the crimes within the subject matter jurisdiction of the International Criminal Court (ICC). Although article 5(d) always listed the crime of aggression as one of the crimes within the Court’s jurisdiction (since 1998), it was not until the June 2010 Review Conference of the Rome Statute, that article 8 bis (Crime of Aggression) was articulated, amending so the Rome Statute. Article 8 bis and all other amendments related to the crime of aggression were inserted in the Rome Statute by resolution RC/Res. 6 of 11 June 2010. 

Further, as stated in article 15 bis (2), “[t]he Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties,” leaving States Parties with ample time to decide whether to ratify the amendments or not. Lichtenstein became the first State Party to ratify the crime of aggression amendments on 8 May 2012, followed by Samoa, Trinidad & Tobago, and most recently Latvia, Poland, and Spain. There are so far 18 States Parties that have ratified or accepted the amendments on the crime of aggression as articulated during the 2010 Review Conference held in Kampala, Uganda.

The crime of aggression amendments were not the only amendments achieved during the 2010 review conference. Additionally, as stated in resolution RC/Res. 5 of 10 June 2010, a set of amendments pertaining to article 8 of the Rome Statute were also adopted. These amendments addressed “the characterization of the use of certain weapons during non-international armed conflict as war crimes.” There are so far 21 States Parties that have ratified or accepted these amendments pertaining to article 8, also including Latvia, Poland, and Spain.

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.

July 17, The Day of International Criminal Justice, Commemorates the Adoption of the Rome Statute

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.

July 17 is designated as the Day of International Criminal Justice because on July 17, 1998, the Rome Statute, the founding treaty of the International Criminal Court, was adopted at a diplomatic conference in Rome.

In a press release on July 10, 2014, the ICC stated that the State Parties to the Rome Statute “decided to commemorate [July 17 as a] unique date, recognising the efforts of the international community to strengthen the emerging system of international criminal justice and to put an end to impunity for the perpetrators of the most serious crimes of international concern, namely genocide, war crimes, crimes against humanity, and the crime of aggression.”

The Rome Statute entered into force on July 1, 2002, upon ratification of 60 countries. At this time, some 120 countries have become parties to the Statute. The Court currently has before it eight situations (all involving countries on the African continent), and the ICC Prosecutor has brought 21 cases relating to those situations. The Prosecutor is conducting preliminary investigations relating to matters in several other countries, including Ukraine.

The ICC Prosecutor has succeeded in convicting two defendants relating to the Situation in the Democratic Republic of the Congo. One of these convictions (against Thomas Lubanga Dyilo) is still on appeal. As noted in a previous post, the other conviction (against Germain Katanga) became final when appeals were terminated on June 25, 2014.

The ICC Prosecutor Responds to Demands for Higher Evidentiary Standards

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 June 25, 2014, the Office of the ICC Prosecutor formally established a Scientific Advisory Board to assist the Office in its investigatory and prosecutorial work. The Board will consist of sixteen forensic experts whose task will be to inform the Office of scientific and technological developments helpful to the Prosecutor’s capability to collect and analyze scientific evidence.

The establishment of the Board represents an effort by the Prosecutor’s Office to upgrade the quality of evidence it presents to ICC Pre-Trial and Trial Chambers. In recent years, scholarly commentators have criticized international courts and tribunals, including criminal courts and tribunals, for failing to require and utilize fact findings based on scientific examination.

In its October 11, 2013 Strategic Plan, the Prosecutor’s Office noted that ICC judges were requiring “higher evidentiary standards” and “more and different kinds of evidence” from the Office. In response to this demand, the Plan stated that the Office’s Investigative Division will, among other things,

enhan[ce] its capabilities to collect other forms of evidence … in particular scientific evidence [and will] validat[e] its investigative standards with a panel of international experts.

In a June 27, 2014 press release, the Prosecutor’s Office stated that

[t]he work of the Board will be crucial to the Office’s efforts, as reflected in its new Strategic Plan, to strengthen its investigative capabilities and enhance the quality of its deliverables when it comes to scientific evidence collection and analysis.

In the effort to carry out its mandate under the Rome Statute, the Prosecutor’s Office has to work with limited resources in very difficult environments. It is to be hoped that the establishment of the Scientific Advisory Board will assist the Office in the challenges it faces.

Related Readings:

Commentators criticizing fact applications by international courts, including criminal courts and tribunals:

The International Criminal Court Achieves a Landmark

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.

June 25, 2014 marked a significant date in the history of the International Criminal Court; the ICC Prosecutor and the Defense for Germain Katanga discontinued their appeals regarding Katanga’s March 7, 2014 conviction on most (but not all) of the charges against him and his twelve year sentence issued on May 23, 2014. The discontinuance of the appeals in this case means that the judgment and sentence against Katanga are now final. This is the first time such finality has been achieved in a case that the ICC Prosecutor pursued to conviction.

The ICC Prosecutor achieved a conviction on March 14, 2012 against Thomas Lubanga Dyilo, and Lubanga was sentenced on July 10, 2012. However, appeals in the Lubanga case are still pending. As noted in a previous post, Germaine Katanga was convicted on charges of war crimes and crimes against humanity relating to the situation in the Democratic Republic of the Congo.

In a statement released on June 26, 2014, ICC Prosecutor Fatou Bensouda said,

This first conviction with finality at the ICC is a clear signal to all those who might seek to perpetrate such crimes, putting them on notice that, sooner or later, justice will be served.

As the next step in the process, the ICC Trial Chamber with responsibility for the Katanga case will consider possible reparations to victims of the crimes for which Germain Katanga was convicted.