Tagged: Rome Statute

ICC Annual Summary: Reports on 2014 Preliminary Examination Activities

To follow up on our previous post, the International Criminal Court (ICC) in its December 2, 2014 press release published its annual Report on Preliminary Examination Activities conducted between Nov. 1, 2013 and Oct. 31, 2014. “Preliminary Examination” is a process by which the ICC determines whether a situation referred to it meets the legal criteria established by the Rome Statute to warrant investigation by the Prosecutor.

As the annual report explains in its introduction,

preliminary examination of a situation by the Office may be initiated on the bases of: a) information sent by individuals or groups, States, [IGOs], or [NGOs]; b) a referral from a State Party or the Security Council; or c) a declaration accepting the jurisdiction of the Court lodges pursuant to article 12(3) by a State which is not a Party to the Statute.

Article 53(1)(a)-(c) establishes that the Office shall consider jurisdiction, admissibility and the interest of justice when determining whether there is a reasonable basis to proceed with an investigation. The preliminary examination is an independent analysis of facts and information available. The ‘reasonable basis’ standard has been defined by Pre-Trial Chamber II to require that “there exists a sensible or reasonable justification for a belief that a crime falling within the jurisdiction of the Court has been or is being committed.”

During this past year, the ICC conducted preliminary examination in eleven situations: Afghanistan, Central African Republic, Colombia, Georgia, Guinea, Honduras, Iraq, Nigeria, Republic of North Korea, Registered Vessels of Comoros, Greece and Colombia, and Ukraine. In three situations the preliminary examination has been concluded. The Court found reasonable basis to proceed with an investigation into the Situation in the Central African Republic II and announced the opening of new investigation. Two situations (Republic of North Korea and Registered Vessels of Comoros, Greece, and Cambodia) were closed because the Prosecutor did not find reasonable basis to proceed with investigation. 

There are eight situations remaining in the preliminary examination stages. Five (Afghanistan, Colombia, Georgia, Guinea, and Nigeria) situations are in the third phase of examination when the Office considers admissibility by looking at the complementarity and gravity principle articulated in article 17. Three (Honduras, Iraq, and Ukraine) situations are in the second phase when the Office considers jurisdiction (temporal, either territorial or personal, and material).

With respect to the situation in Ukraine, the annual report outlines the Office’s activities since the situation was referred to the Court via article 12(3) declaration and it states that it focused on “gathering available information from reliable sources in order to assess whether the alleged crimes fall within the subject-matter jurisdiction of the Court.” The Office requested information from the Government of Ukraine, from representatives of Ukrainian civil society, delegation of members of the Ukrainian Parliamentary Committee on the Rule of Law and Justice, and the Office also conducted a mission in Kiev. The Office concludes that it will continue to

gather, verify, and analyse” information to determine whether “there is a reasonable basis to believe that crimes within the jurisdiction of the Court have been committed during the Maidan event in Ukraine.

ICC Calls for Surrender of Two Suspects

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 December 10 and 11, 2014, Pre-Trial Chamber I of the International Criminal Court (ICC) issued decisions calling for delivery to the ICC of two persons under its arrest warrants.

The December 10 finding of non-compliance by Libya, under article 87(7), relates to Saif al-Islam Gaddafi, for whom the ICC issued an arrest warrant in May 2011, charging him with crimes against humanity allegedly committed by Libyan security forces under his command during anti-government protests. The December 11 decision on the admissibility relates to Simone Gbagbo, for whom the ICC issued an arrest warrant in February 2012, charging her with responsibility for crimes against humanity regarding violence committed by government forces against political opponents of her husband, former President Laurent Gbagbo, relating to the November 2010 Ivory Coast presidential election.

Ivory Coast was asserting its right under Rome Statute articles 17 and 19 to challenge the admissibility of Simone Gbagbo’s case on the ground that it was prosecuting her for the same crimes charged in the ICC arrest warrant. In the Gaddafi case, ICC courts had previously rejected Libya’s challenge to the admissibility of the ICC case against him and reminded Libya of its obligation to surrender him to the Court. Libya is not a State Party to the Rome Statute, but in February 2011 the U.N. Security Council acting under its Chapter VII powers issued a Resolution 1970 referring the Libyan situation to the Court and requiring Libyan authorities to fully cooperate with the ICC. The issue before the Court was whether Libya failed to comply with this obligation.

In the Ivory Coast situation, as blogged about earlier, the ICC issued arrest warrants against Ivory Coast nationals Laurent Gbagbo, Simone Gbagbo, and Charles Blé Goudé – all on the same charges relating to the same events. The Ivory Coast government chose to surrender Laurent Gbagbo and Charles Blé Goudé to the ICC, but not Simone Gbagbo. The government’s reasons for this selection are not fully apparent from court documents. Nevertheless, the Ivory Coast decided to challenge the admissibility of Simone Gbagbo’s case. The Court rejected this challenge, finding that the Ivory Coast government failed to show that it was investigating and prosecuting Gbagbo for the same criminal conduct alleged by the ICC Prosecutor. The Court concluded that Ivory Coast must “surrender Simone Gbagbo to the Court without delay.”

With respect to the Gaddafi case, the Court found that Libya failed to comply with repeated requests to deliver Gaddafi to the Court and also failed to comply with requests to return to the Defense privileged documents that Libyan authorities had seized from Gaddafi’s defense counsel. Determining that Libya was depriving the defendant of his rights and preventing the Court from fulfilling its mandate, the Court, under article 87(7), referred the matter to the Security Council, so that the Council may consider measures to secure Libya’s compliance.

ICC had previously utilized article 87(7) to inform the Security Council of the failure of authorities in Chad, Malawi, and the Democratic Republic of the Congo to arrest and surrender Sudanese President Omar al-Bashir, for whom ICC issued arrest warrants charging him with responsibility for war crimes, crimes against humanity, and genocide, committed during the conflict in Darfur. Al-Bashir remains at large.

In the week preceding the Gaddafi finding, the Trial Chamber V(B) rendered Decision on Prosecution’s application for a finding of non-compliance under article 87(7) stating that the Government of Kenya, a State Party to the Rome Statute, had breached its treaty obligation by failing to provide the Prosecutor with access to information necessary for the case against Kenyan President Kenyatta on charges of crimes against humanity committed during the 2007-2008 post-election violence in Kenya. As a result of Kenya’s breach, ICC Prosecutor Bensouda withdrew the charges against Kenyatta without prejudice. In a December 5, 2014 press release, Bensouda stated that this was “a painful moment for the men, women and children who have suffered tremendously from the horrors of the post-election violence, and who have waited, patiently, for almost seven years to see justice done.”

The Kenyatta, al-Bashir, Gaddafi, and Simone Gbagbo cases illustrate the difficulties the ICC confronts in carrying out its responsibilities to prosecute grave international crimes.

The ICC Asks the UN Security Council for Additional Support of Its Work

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.

As reported in the October 24, 2014 press release, the Prosecutor of the International Criminal Court, Mrs. Fatou Bensouda, on October 23, 2014, addressed the United Nations Security Council on ways the Council can provide more effective support to the International Criminal Court (ICC).

The relationship between the ICC and the Security Council, which the Prosecutor addressed, has important implications for the ICC’s goal to end impunity for grave international crimes. Unlike the International Court of Justice, which was established in 1945 by the U.N. Charter as the U.N.’s principal judicial organ, the International Criminal Court is a judicial body independent of the U.N. The ICC was established through a separate treaty – the Rome Statute that entered into force in 2002 – with different jurisdictional predicates focusing on prosecution of individuals alleged to have committed grave crimes of an internationally recognized nature that are within the ICC’s subject matter jurisdiction.

Despite the ICC’s independent status, the Preamble of the Rome Statute “reaffirm[s] the Purposes and Principles of the Charter of the United Nations [which require] that all States shall refrain [from acting with force] in any … manner inconsistent with the Purposes of the United Nations.” In addition, Article 13(b) of the Statute accords the Council the capability to refer to the Court for criminal investigation matters the Council deems appropriate pursuant to its responsibility under Chapter VII of the U.N. Charter “to maintain or restore international peace and security.”

Article 13(b) provides the Council with the opportunity for the first time to invoke its Chapter VII authority to initiate criminal investigations before a standing international criminal court. Before the ICC’s establishment, the Council, when confronted with situations in which severe crimes threatening international peace occurred, had to provide for both investigation and prosecution through special resolutions and particularly crafted statutes that created ad hoc tribunals, such as those for the former Yugoslavia and for Rwanda.

The authority accorded to the Council by Article 13(b) is powerful and important because it authorizes the Council to refer to the ICC Prosecutor investigation of crimes within the ICC’s subject matter jurisdiction where the ICC’s other jurisdictional predicates would otherwise be lacking. The Council can refer to the ICC Prosecutor investigation of crimes in situations even when the alleged crimes do not occur on the territory of a State Party to the Rome Statute or were not committed by a national of a State Party.

The Security Council has utilized its Article 13(b) authority thus far to refer two situations to the ICC: Darfur, Sudan (2005) and Libya (2011). The ICC Prosecutor has been actively pursuing cases in both of these situations.

Following the Council’s Sudan referral, an ICC court issued arrest warrants for Sudanese president Omar Hassan Ahmad al Bashir in March 2009 and again in July 2010, charging him with co-perpetrator responsibility on multiple counts alleging crimes against humanity, war crimes, and genocide relating to the bloody conflict in Sudan.

Several African States have declined to execute these warrants when Al Bashir traveled to these States for diplomatic purposes. As reported previously on this blog, in April of this year an ICC Pre-Trial Chamber chastised the Democratic Republic of Congo (DRC) for failing to comply with ICC requests for Al Bashir’s arrest when in February 2014, he visited the DRC to participate in a summit conference of African leaders.

In her October 23 address to the Council and during the discussion that followed, Prosecutor Bensouda gave prominent attention to issues relating to the Darfur situation. She called on the Council, when issuing its Article 13(b) referrals, to advise States of their cooperation responsibilities in the stronger terms that it used in its resolutions creating the ad hoc tribunals. She urged the Council to call on U.N. Member States to cooperate in the arrest of suspects under ICC arrest warrants, and she urged the Council to consider ways to address the failure of States to comply with such obligations.

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:

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.