Tagged: investigation

ICC Opens Second Investigation into Central African Republic

On September 24, 2014 Fatou Bensouda, the Prosecutor of the International Criminal Court (ICC), announced in a press release her decision to open a second investigation in the Central African Republic (CAR). Pursuant to Arts. 13(a) and 14 of the Rome Statute, the transitional government of CAR referred its situation “regarding crimes allegedly committed on CAR territory since 1 August 2012” to the Office of the Prosecutor (OTP). Once such a State Party referral is received, the Prosecutor opens a preliminary examination, according to Article 18, to assess whether the OTP can proceed with an investigation. In accordance with article 53(1), the Prosecutor’s office conducted an independent preliminary examination and concluded that

[t]he information available provides a reasonable basis to believe that both the Séléka and the anti-balaka groups have committed crimes against humanity and war crimes including murder, rape, forced displacement, persecution, pillaging, attacks against humanitarian missions and the use of children under fifteen in combat. The list of atrocities is endless. I cannot ignore these alleged crimes, [Prosecutor Bensouda stated].

Article 53(1) Report of the Situation in the Central African Republic II outlines the scope of preliminary examination conducted by the OTP, which includes analysis of the preconditions to Court’s jurisdiction, the Court’s subject-matter jurisdiction over the alleged crimes, the admissibility issues articulated in Article 17, and the overall interest of justice. The conclusions of the preliminary examination provided reasonable basis for the OTP to initiate an investigation. You may follow the developments in both situations on the Court’s website:

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.

The Jonathan Fleming Case: Investigation of Wrongful Conviction

With an interesting perspective on the problem of wrongful convictions, the investigators, Kim Anklin and Bob Rahn, tell the story of how they helped uncover and produce the evidence that established a wrongful conviction in Brooklyn. Take a moment to read the full article about the Jonathan Fleming case, written by one of the investigators.

Kim Anklin, The Investigation of a Wrongful Conviction: The Jonathan Fleming Case. 

5 Ways Technology Boosts Crime-Fighting

POST WRITTEN BY: Daphne Holmes*

Technology helps law enforcement agencies and justice personnel stay one step ahead of criminals, furnishing new ways to detect and prevent crimes, as well as helping prosecutors convict offenders. And since emerging technology is available on both sides of justice, the cat-and-mouse game between perpetrators and police is never-ending, requiring continual adjustments from law enforcement agencies.

The good news for public safety is that crime rates have generally decreased over the past two decades, due in part to advancements in crime detection and deterrent technology. Since effective policing leans heavily on the rapid sharing of sensitive crime-related data; the recent explosion in information technology is a positive development for law enforcement agencies. Identification technology, social media, and mobile capabilities also enhance public safety, enabling justice staff to do their business more efficiently and respond to unfolding investigations in real-time.

While technology poses challenges for law enforcement agencies, which continually strive to keep up with technology-based criminal enterprises; it does more good than harm in the fight against crime. Tech advancements in law enforcement include the following capabilities, which illustrate how quickly things change alongside technology.

Sharing Information
Law enforcement agencies are spread throughout a national criminal justice system that involves, regional, state, and local authorities, each administering their policing efforts independently. Too often in the past, lack of access to timely information prevented various agencies from coordinating their efforts adequately. Advances in the way agencies share information and use criminal identification systems have led to tighter connections between independent law enforcement organizations and universal enforcement standards across jurisdictions. Sharing information about offenders also has a positive preventative impact, helping keep guns out of the hand of dangerous criminals and barring offenders from certain types of employment.

Security and Surveillance Upgrades
Property crimes continue to decrease statistically, so security and video surveillance upgrades have improved public safety dramatically. Camera technology, for example, produces modern models with higher image quality than past versions, and the size of high-quality cameras has also diminished, allowing them to be concealed for covert surveillance. Face-recognition technology is particularly rewarding, enabling law enforcement officials to literally pick faces from crowds.  In fact, the technology is so accurate as to create privacy-rights controversies among those who feel it is too intrusive.

Social Media
Though it is a social trend as much as it is a technological breakthrough, social media use nonetheless furnishes law enforcement advantages for agencies that use the technology effectively. For example, criminals leave trails using social media platforms, so justice agencies turn to Facebook, Twitter and other channels for vital clues and insight into criminal behavior. The technology also enables officers to distribute information directly to concerned citizens, informing them of unfolding crimes and dangerous developments.

Social media links law enforcement directly to the public at large, so it is a great tool for spreading descriptions, videos and other information about criminals. Communicating in real-time closes the crucial gap between the point at which crimes occur and when investigations begin, enabling citizens to respond with timely information.

Crime Mapping Technology
Modern computing power speeds up data analysis and enables law enforcement to track crime trends geographically. What was once accomplished through countless man-hours pouring over data is now a matter of a few mouse clicks. Crime mapping enables agencies to zero-in on problem areas, stepping-up enforcement efforts and assisting in bringing in fugitives. Like highly sophisticated “pin-maps” highlighting crime location, mapping and geographic profiling give enforcement officers clear snapshots of crime trends.

Mobile Technology
Mobile technology furnishes an electronic trail of texts, emails, calls and GPS location information that law enforcement uses to solve cases. Smartphones are so widespread the contact information and other data they contain give officers a starting point for their investigations, which often unfold in arrests directly related to information gleaned from mobile devices and usage. Using advanced digital forensics technology, investigators find links between suspects and their crimes, which might go unnoticed without mobile connections. In addition to investigative benefits, mobile technology speeds communication between officers, agencies and citizens.

Technology will never replace solid investigative work, but modern advances assist law enforcement efforts to stay ahead of criminals. Mobile technology, social media, and rapid access to information contribute to better enforcement and prevention. And crime-mapping and video surveillance breakthroughs also increase public safety, enabling justice agencies to direct resources to where they are needed most.

*Daphne Holmes is a writer from ArrestRecords.com. She can be reached at daphneholmes9@gmail.com.

Opinions expressed in this post are those of the author and do not reflect the position of the Pace Criminal Justice Center or its Board of Advisors.  

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.