Tagged: national jurisdiction

The ICC Prosecutor Addresses Allegations Against ISIS

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 8, 2015, International Criminal Court Prosecutor Fatou Bensouda issued a statement responding to inquiries her Office has received regarding the widely publicized violence attributed to armed forces acting on behalf of the military and political organization known as ISIS. She noted that such violence is reported to include

mass executions, sexual slavery, rape and other forms of sexual and gender-based violence, torture, mutilation, enlistment and forced recruitment of children and the persecution of ethnic and religious minorities, not to mention the wanton destruction of cultural property.

The International Criminal Court is the only standing international criminal court available to investigate and prosecute crimes of an international character (such as those attributed to ISIS) when such crimes are not investigated and prosecuted by national courts. However, as a treaty-based institution, ICC jurisdiction is limited by rules consented to by State Parties relating to the alleged crimes at issue (subject matter jurisdiction) and to territorial and other requirements.

On August 15, 2014, the U.N. Security Council, acting under its Chapter VII powers took measures with respect to international peace and security and adopted S/RES/2170 (2014), condemning ISIS and other groups “for ongoing and multiple criminal terrorist acts aimed at causing the deaths of civilians and other victims, destruction of property and of cultural and religious sites, and greatly undermining stability.” Res. 2170 calls on U.N. Member States to take measures to interdict the flow of funding and recruits to ISIS. The Security Council has not as yet, however, referred the matter of ISIS-related violence to the ICC, as it could do under Article 13(b) of the Rome Statute.

The crimes allegedly committed by ISIS are of a scale and nature that would likely meet the ICC subject matter jurisdiction requirements – at least for initiating a preliminary investigation by the Prosecutor. However, that by itself is not sufficient to allow the Prosecutor, acting on her own initiative, to pursue an investigation. In the absence of a Security Council referral, either territorial jurisdiction (the alleged crimes were committed on the territory of a State Party) or personal jurisdiction (the alleged crimes were committed by a national(s) of a State Party) would need to be met.

The crimes alleged against ISIS were reported to be committed on the territory of Syria and Iraq, neither of which is an ICC State Party. Either country could nevertheless lodge an Article 12(3) declaration allowing the ICC to investigate, but at this point, neither has done so. Therefore, territorial jurisdiction is currently lacking.

As to the other alternative, the Prosecutor stated that she has information that “significant numbers” of ISIS fighters are nationals of ICC State Parties, including Tunisia, Jordan, France, the United Kingdom, Germany, Belgium, the Netherlands and Australia. She noted that some of these individuals may have committed crimes within the ICC’s subject matter jurisdiction. She noted also, however, that the information available to her Office indicates that the leadership of ISIS is composed primarily of nationals of the non-Party States of Iraq and Syria. Accordingly, given the OTP’s policy to focus on those most responsible for the commission of mass crimes, the prospect of exercising personal jurisdiction over any nationals of State Parties “appears limited” and “the jurisdictional basis for opening a preliminary examination into this situation is too narrow at this stage.”

Noting that “ISIS continues to spread terror on a massive scale in the territories it occupies,” the Prosecutor stated that she “remain[s] profoundly concerned by this situation” and that she will continue efforts, in consultation with relevant States, to gather further information. She emphasized the international community’s “collective duty … to respond to the plight of victims whose rights and dignity have been violated.”

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.