Tagged: Ukraine

Reminder: Event – Global Cybercrime Threat – Domestic to Int’l Cyber Investigation

Please join the Criminal Justice Institute, Criminal Justice Society, and Technology Encryption & Cyber Law Society on Wednesday, September 28 at 4:00 – 6:00 PM in Room OG-01 (Ottinger Building, Ground Level) for an event titled The Global Cybercrime Threat: And How One Successful Criminal Prosecution Brought Few International Cybercriminals to Justice. Come and engage with John Bandler, Esq., Pace Law Class of 2002 alumni, as he discusses a “groundbreaking investigation that started with a report of credit card fraud and eventually uncovered the global cybercrime industry with participants from New York and California to Ukraine and Russia.”

See the details of the event here.

Event: Global Cybercrime Threat – Domestic to International Cyber Investigation

Please join the Criminal Justice Institute, Criminal Justice Society, and Technology Encryption & Cyber Law Society on Wednesday, September 28 at 4:00 – 6:00 PM in Room OG-01 (Ottinger Building, Ground Level) for an event titled The Global Cybercrime Threat: And How One Successful Criminal Prosecution Brought Few International Cybercriminals to Justice. Come and engage with John Bandler, Esq., Pace Law Class of 2002 alumni, as he discusses a “groundbreaking investigation that started with a report of credit card fraud and eventually uncovered the global cybercrime industry with participants from New York and California to Ukraine and Russia.”

See the details of the event here.

ICC Opens Another Preliminary Examination – Burundi

Fatou Bensouda, the ICC’s Prosecutor, announced in her statement that a preliminary examination has been initiated into Burundi on-going crisis, allegedly involving more than 430 persons killed, at least 3,400 people arrested, and over 230,000 Burundians forced to seek refuge. As reported in an earlier post, the Prosecutor has been watching the ongoing situation in Burundi since early 2015, commenting on the then-upcoming election, fulfilling the OTP’s early warning function and preemptively calling for peace and cease of violence. It appears however, that her prevention efforts within Burundi, a State Party to the Rome Statute, unfortunately fell short because about a year later, she is initiating a preliminary examination.

Preliminary examination may be initiated by the Prosecutor, referral from a State Party or Security Council, or a 12(3) declaration by a State that is not a Party to the Rome Statute. In this case, the Prosecutor exercised its vested authority to begin examination. The purpose of such examination is to review and assess information available so far to determine whether a reasonable basis to proceed with investigation exists. Article 53(1) of Rome Statute requires Prosecutor to consider issues of jurisdiction (often focusing on the Court’s subject matter jurisdiction), admissibility (comprising of both complementarity and gravity determination often focusing on the domestic prosecutorial and investigative efforts) and overall interest of justice.

Not every preliminary examination leads to authorization to investigate. In situations of Honduras, Republic of Korea, and the Vessels of Comoros, the Court found no reasonable basis to proceed with investigation, as required by art. 53(1), and concluded its preliminary examinations without prejudice, leaving the possibility to re-open examination available should additional information and evidence surface. On the other hand, in situations of Libya, Ivory Coast, Mali, Georgia, and CAR II, for example, the Court moved forward, finding reasonable basis to proceed and securing pre-trial chamber’s authorization to open investigation in these situations.

The ICC has seven open preliminary examinations at this time, making Burundi the eighth one. Three situations, Palestine, Ukraine and Iraq, are currently in Phase 2 – having the Court consider subject-matter jurisdiction. Four situations, Afghanistan, Colombia, Guinea, and Nigeria, have moved to Phase 3 – having the Court consider issues of admissibility. The Court issues reports on its preliminary examination conclusions each year sharing its findings in each situation and ensuring so the much needed transparency.

Related Readings:

Ukraine Expands Its Acceptance of ICC Jurisdiction

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.

Violence in Ukraine has troubled that nation and the world community for about two years. Recently, Ukraine has renewed and expanded its efforts to afford the International Criminal Court jurisdiction to investigate and prosecute those responsible for mass crimes committed on its territory. Ukraine is now alleging that Russia is responsible, in part, for such crimes.

Ukraine is not a State Party to the ICC’s Rome Statute. However, as written about in April 2014 post, Ukraine lodged an Article 12(3) declaration, which allows a non-Party State to accept the Court’s jurisdiction over crimes within its subject matter jurisdiction that are committed on the State’s territory. Ukraine’s 2014 declaration alleged that crimes against humanity were committed during internal strife in Ukraine between November 2013 and February 2014, responsibility for which it alleged was attributable to Ukraine’s former President and possibly other senior officials in his government. The ICC Prosecutor has been conducting a preliminary investigation regarding this matter but has not yet decided whether to seek authorization to open a formal investigation that would expand her investigative powers and allow for filing of charges against individuals.

Ukraine has now gone further. In a September 8, 2015 press release the ICC reported that the ICC Registrar acknowledged receipt of a second Article 12(3) declaration by Ukraine, in which Ukraine expands its acceptance of ICC temporal jurisdiction from beyond February 2014 to the indefinite future. Importantly, the declaration attributes responsibility for post-February 2014 war crimes and crimes against humanity to “senior officials of the Russian Federation and leaders of terrorist organizations.” Thus, Ukraine’s second declaration opens a politically potent issue, asking the ICC Prosecutor to conduct at least a preliminary investigation into Russia’s alleged involvement in the violence in Ukraine.

In its September 8 press release, the ICC noted that “[t]he provisions of Part 9 of the Statute relating to international cooperation and judicial assistance apply.” Part 9 of the Rome Statute imposes on State Parties the responsibility “to cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” The Russian Federation, however, is not a State Party to the Rome Statute, and thus has no such responsibility to the ICC.

It will be interesting to see how this matter will develop.

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.