Tagged: Security Council referral

The Humanitarian Crisis in Syria

POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

An article in the New York Times on October 6, 2015 on the conflict in Syria states that the conflict “has left 250,000 people dead and displaced half the country’s population since it started in 2011.”

This horrifying statement is contained in a dependent clause in a sentence in the sixth paragraph of an article on Russia’s intervention in the Syrian conflict. This placement unfortunately may reflect that the massive human suffering in Syria is becoming an afterthought to the quarrels among world powers regarding Syria.

What is happening to the people of Syria is difficult for most people to imagine. Americans will remember that thousands of their fellow citizens were displaced from their homes when Hurricane Katrina struck New Orleans in 2005. Most of these have returned home, but many have been unable to do so because what were their homes no longer exists.

The forced evacuation of a city like New Orleans is a frightening event. The present writer was one of those who experienced it. On the morning before the hurricane struck, I learned from radio reports that Katrina was not veering off, would hit the city in about 24 hours with great destruction, and all should evacuate. Not having a car, I stuffed some things in a kit bag, left my apartment in the Uptown District, and started walking toward downtown – not knowing where in particular I was going or what was going to happen to me. I managed to make my way to the Superdome, where about 25,000 others and I took shelter in harsh conditions for five days, before being evacuated.

The difficulties that my fellow refugees and I experienced at that time were as nothing compared to the terror and extreme hardships now being experienced by the people of Syria. We were evacuating our city, not our country. And our displacement was caused by a natural disaster, whose effects, for the most part, were temporary. It is a very different thing to be forced to flee not only your home, but also your country, because vicious people are more than willing to kill you and your family because of your political sympathies or because of your religious beliefs or because you just happen to be in the way.

The horrendous numbers of dead and displaced in Syria strongly support a conclusion that such massive suffering could not have happened without the commission of war crimes and crimes against humanity by participants in the conflict. Whether there will ever be investigation or prosecution of such crimes by the International Criminal Court is far from clear. The U.N. Security Council has authority under the ICC’s Statute and Chapter VII of the U.N. Charter to refer the Syrian situation to the ICC, but such referral is unlikely because of the veto power of one or more of the Council’s permanent members.

The Preamble of the ICC’s Statute articulates its ratifiers’ “[d]etermin[ation] to put an end to impunity for the perpetrators” of “grave crimes [that] threaten the peace, security and well being of the world.” It seems that regarding what is happening in Syria, this goal will remain for the moment a mere aspiration, and, as the quarrel among world powers intensifies, the suffering of the Syrian people will remain an afterthought.

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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 ICC Reports on 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 November 12, 2014, ICC Prosecutor Fatou Bensouda presented the U.N. Security Council with a report on “the deteriorating situation” in Libya, calling the Council’s attention to several disturbing matters that the OTP is confronting in its work in Libya.

The Security Council referred the situation in Libya to the ICC in 2011, pursuant to the authority accorded to it by Article 13(b) of the Rome Statute and by Chapter VII of the U.N. Charter. This was the second time the Council referred a situation of violent internal conflict to the ICC; the first time was in 2005, with respect to the violence in Darfur, Sudan. The ICC Prosecutor has been pursuing cases against several suspects in both of these situations.

In both, the ICC has encountered severe difficulties in carrying out its responsibilities. With respect to the Darfur situation, four of the suspects subject to ICC arrest warrants remain at large. As noted here, earlier this year the Prosecutor asked the Council for further assistance in dealing with the failure of several countries to execute the ICC arrest warrant for Sudan President Omar al-Bashir. As noted here, in April 2014 the ICC Pre-Trial Chamber issued a rebuke to the Democratic Republic of the Congo for failing to arrest al-Bashir when the Chamber, having advance notice of al-Bashir’s visit to the DRC, issued a request to the DRC for his arrest. The DRC is a State Party to the Rome Statute; Article 86 of the Statute requires that “State Parties shall … cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.”

With respect to the Libya situation, Prosecutor Bensouda advised that despite elections in Libya in June 2014, political instability is increasing as two governments vie for legitimacy. She also noted that there have been several assassinations and numerous threats made against human rights workers, judges, prosecutors, and others. She reported that the deteriorating security situation in the country is making it very difficult for her Office to pursue its work, including, among other matters, the Office’s ability to investigate “new instances of mass crimes allegedly committed by the rebel forces.”

The Prosecutor expressed her Office’s “great concern” regarding “the continued failure of the Government of Libya to surrender Saif Al-Islam Gaddafi to the custody of the International Criminal Court.” On June 27, 2011, the ICC issued an arrest warrant for Saif Al-Islam Gaddafi on two counts of crimes against humanity but he remains at large. Regarding Abdullah Al-Senussi, whom the ICC previously sought for prosecution, the Prosecutor stated that because of the on-going violence in Libya that may endanger the possibility of a fair trial for Al-Senussi, she may apply for review of decisions by ICC courts deferring to Libya’s prosecution of him.

Prosecutor Bensouda called upon Libya for cooperation, and she stated that “the international community could be more proactive in exploring solutions in order to tangibly help restore stability and strengthen accountability for Rome Statute crimes in Libya.”

The Prosecutor’s October 23 and November 12 statements to the Security Council suggest that ICC prosecutions of cases following a Security Council referral are encountering difficulties that go beyond those encountered by prosecutors authorized to prosecute cases in the ad hoc tribunals established through Security Council resolutions prior to the Rome Statute’s entry into force in 2002. If the ICC is to be able to carry out its responsibilities – especially with regard to Security Council referrals – the Prosecutor seems to be correct that additional support for the ICC will be needed from the Security Council, from States affected, and from the international community in general.