Tagged: Rome Statute

ICC Pursues the Arrest of Al Bashir

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 9, 2014, the Pre-Trial Chamber II of the International Criminal Court (ICC) issued a decision chastising the Democratic Republic of the Congo (DRC) for failing to comply with ICC requests for the arrest and surrender of Omar Al Bashir, the President of Sudan.

In March 2005, the U.N. Security Council adopted a resolution referring the Situation in Darfur, Sudan, to the ICC for investigation. This was the first time the Security Council referred a situation to the ICC pursuant to Chapter VII of the U.N. Charter and Article 13(b) of the ICC’s Rome Statute. Following an investigation by the ICC Prosecutor, the ICC issued two arrest warrants for Al Bashir, first in March 2009 and second in July 2010, charging him with responsibility for war crimes, crimes against humanity, and genocide, committed during the bloody conflict in Darfur.

The Pre-Trial Chamber’s rebuke of the DRC was occasioned by the DRC’s failure to arrest Al Bashir when in late February 2014, he visited the DRC to participate in a summit conference of African leaders to discuss matters of common economic concern in Eastern and Southern Africa. Having advance notice of this visit, the Pre-Trial Chamber issued a request to the DRC to arrest and surrender Al Bashir, pursuant to the previously issued warrants. The DRC is a State Party to the Rome Statute, and Part IX of the Statute requires State Parties to cooperate with the ICC with regard, among other matters, to the arrest and surrender of persons for whom the ICC has issued an arrest warrant.

Among its reasons for not arresting Al Bashir during his February visit, the DRC asserted that it was obligated to respect Al Bashir’s immunity as a head of state, despite the fact that Article 27 of the Rome Statute does not recognize head of state immunity as a bar to ICC prosecution. The DRC, not implausibly, found authority for its position in Rome Statute Article 98(1), which states that the ICC “may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.” Sudan is such a “third State,” not being a State Party.

The Pre-Trial Chamber found the DRC’s claim unavailing because of the Security Council’s referral of the Sudan Situation to the ICC. The Chamber stated in paragraph 31 of its Decision that the Security Council, when referring the Darfur Situation by way of a Resolution pursuant to its Chapter VII authority, “implicitly lifted the immunities of Omar Al Bashir ….” (Both the DRC and Sudan are U.N. members, subject to Security Council authority.)

The Chamber forcefully stated in paragraph 33 of its decision that compliance with a Security Council referral to the ICC was of paramount importance; otherwise such a referral “would never achieve its ultimate goal … to put an end to impunity.”

The Chamber found that the DRC’s failure to arrest Al Bashir constituted a failure of the DRC to comply with its obligations to cooperate with the ICC. Accordingly, the Chamber stated that it was referring its decision to the Security Council and to the Assembly of State Parties.

The Chamber has made a strong statement in support of the ICC’s mandate. But its decision will continue some of the political controversies in which the ICC has been involved, especially given the fact that the DRC and Sudan are member States of the African Union, which has criticized the ICC for allegedly giving excessive and inappropriate attention to affairs in Africa.

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.

Ivory Coast Delivers Suspect to the International Criminal Court

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 (Côte d´Ivoire) authorities delivered Charles Blé Goudé to the International Criminal Court (ICC) in The Hague, pursuant to an arrest warrant issued by an ICC Pre-Trial Chamber on December 21, 2011. The warrant was based on information that Blé Goudé bears responsibility for crimes committed by militia forces under his command in the aftermath of the Ivory Coast presidential election in November 2010. After the election, a civil war broke out between forces of former President Laurent Gbagbo (who lost his bid for re-election) and supporters of the newly elected President Alassane Ouattara. More than 3,000 people were killed during this civil war. Blé Goudé, a supporter of Gbagbo, is accused of being responsible as an “indirect co-perpetrator” on four counts of crimes against humanity: murder, rape and other forms of sexual violence, other inhumane acts, and persecution. All of these acts are listed in Article 7 of the ICC’s Rome Statute as the basis for a charge of crimes against humanity “when committed as part of a widespread or systematic attack directed against any civilian population ….”

The Ivory Coast was not a Party to the ICC’s Rome Statute at the time the crimes charged were committed. The Ivory Coast deposited its instrument of ratification of the Rome Statute on February 15, 2013.  However, many years earlier, in April 2003, the Ivory Coast Government under then-President Gbagbo accepted ICC jurisdiction over crimes committed on its territory during a previous period of violence. This was done pursuant to Rome Statute Article 12(3), which provides that a non-State Party may lodge a declaration with the ICC accepting jurisdiction over acts committed on its territory that constitute crimes within the ICC’s subject matter jurisdiction. By letters to the ICC in December 2010 and May 2011, newly elected President Ouattara reaffirmed the validity of the April 2003 Declaration (original) and his government’s willingness to cooperate with the ICC.

Following these letters, the ICC Prosecutor requested authorization from the Pre-Trial Chamber to initiate an investigation of the Ivory Coast Situation, which the Chamber provided in October 2011. The Chamber found that information submitted by the Prosecutor provided reasonable grounds to believe that pro-Gbagbo forces committed crimes against civilians that are within the ICC’s subject matter jurisdiction. Among the materials submitted by the Prosecutor were several public reports authored by Human Rights Watch and by the United Nations High Commissioner for Human Rights, informing of murders and rapes committed by pro-Gbagbo forces against civilians who were, or were suspected to be, loyal to Alassane Ouattara.

When two months later, in December 2011, the Pre-Trial Chamber issued the arrest warrant for Blé Goudé, it noted that the Prosecutor’s submission that Blé Goudé is liable as an “indirect co-perpetrator” under Rome Statute Article 25(3)(a) “may well need to be revisited in due course with the parties and participants.” Article 61 of the Rome Statute requires that within a reasonable time after an accused person has been surrendered to the Court, the Pre-Trial Chamber must hold a hearing to confirm the charges. This hearing will provide Blé Goudé an opportunity to challenge the charges against him. It will be the Pre-Trial Chamber’s duty to determine, on the basis of the hearing, whether, pursuant to Article 61(7), “there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged.” If one or more of the charges are confirmed and the case goes to trial, the Trial Chamber must be convinced, pursuant to Article 66(3), of the defendant’s guilt beyond a reasonable doubt.

The International Criminal Court Convicts Katanga for War Crimes and Crimes Against Humanity

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 7, 2014, a Trial Chamber of the International Criminal Court (ICC) rendered a guilty verdict against Germain Katanga, relating to an investigation commenced in June 2004 by the ICC Prosecutor into the Situation in the Democratic Republic of the Congo (DRC). This is the second conviction achieved by an ICC Prosecutor since the entry into force of the ICC’s Rome Statute on July 1, 2002.

The ICC’s first conviction was rendered in 2012 against Thomas Lubanga Dyilo. The Lubanga Case also arose out of the Prosecutors’ investigation of the DRC situation. Lubanga, the leader of an armed group opposed to the DRC government, was convicted pursuant to Article 8 of the Rome Statute of the war crime of conscripting children into his military forces.

Germain Katanga, who also led an armed force opposed to the DRC, was also convicted of Article 8 war crimes. Notably, however, he was also found guilty on one count of a crime against humanity, pursuant to Article 7(1)(a) of the Rome Statute. This represents the first conviction the ICC Prosecutor has obtained on a charge of crimes against humanity.

Pursuing a charge of crimes against humanity requires the ICC Prosecutor, under Article 7(1) of the Rome Statute, to prove that the underlying criminal acts were committed “as part of a widespread or systematic attack directed against any civilian population ….”

During the 1990s prior to the entry into force of the Rome Statute, the United Nations Security Council, pursuant to its authority under Chapter VII of the U.N. Charter, enacted the Statutes of the International Criminal Tribunal for the former Yugoslavia and the International Tribunal for Rwanda. These statutes contain similar requirements for prosecution of crimes against humanity.

In accordance with these statutory requirements, the ICTY and the ICTR have obtained convictions against many defendants on charges of crimes against humanity. While these cases are not binding on ICC Court, when in September 2008 the ICC Pre-Trial Chamber confirmed the crimes against humanity charge against Katanga, it explicitly referenced and found guidance from the ICTY and ICTR cases regarding their interpretation of the elements required to sustain a crimes against humanity charge.

The Trial Chamber found Katanga not guilty of some of the war crimes charged and one of the crimes against humanity charged. Both the Defense and the Prosecutor have 30 days within which to appeal the judgment. The Trial Chamber will soon conduct proceedings with respect to the sentence and reparations for the victims.