The International Criminal Court at a Crossroads

by Samuel Linehan

International Criminal Court

The International Criminal Court

The challenges for the International Criminal Court posed by state non-cooperation and potential new situations were considered at a panel discussion hosted by Chatham House and Doughty Street Chambers on 11 March 2015.

The panellists were Shehzad Charania, Legal Adviser and Head, International Law Team, British Embassy, The Hague; Liz Evenson, Senior Counsel, Human Rights Watch; and Dr Rod Rastan, Legal Adviser, Office of the Prosecutor, International Criminal Court. The chair was Elizabeth Wilmshurst. The Chatham House Rule was not applied.

State non-cooperation

General observations

Liz Evenson noted that there are different modes and levels of cooperation with the ICC. Some obstacles can be overcome; for example remote investigation may be possible where there is no access to a territory. However, as reflected in the new OTP investigative policy, in situ investigations are preferable. Other obstacles cannot be overcome, such as refusal to execute an arrest warrant. The Kenya situation demonstrated the effect of non-cooperation on the outcome of proceedings.

Rod Rastan emphasised that cooperation is fundamental to a court which lacks the investigative and enforcement apparatus of a developed jurisdiction. The issue was not resolved by the Rome Statute, as the only remedy for non-cooperation is a reference to the UN Security Council or the Assembly of States Parties. This requires a collective response from the international community. Cooperation worked at the ICTY, as initial hesitation was overcome with the assistance of NATO and the EU.

Shehzad Charania considered what the international community can do in the face of non-cooperation. In the Darfur Situation, the matter was referred to the Security Council by the Pre-Trial Chamber. The signs there are not good, despite the UK’s support for the ICC. The same is true of the Libya Situation. An indication of the current climate is the fact that at present the Security Council cannot even agree to acknowledge a letter from the President of the ICC. The low point was the failure to refer the situation in Syria. However there are some signs of progress. The ICC has a central position in various policy debates, for example on the protection of women and journalists in conflict. The Security Council has never entered into discussion of concrete measures in response to non-cooperation; the obvious response would be sanctions. The Assembly of States Parties has agreed to avoid all non-essential contact with indictees. Continue reading

UN Commission Wants International Tribunal to Prosecute Perpetrators in Central African Republic

CAR Commission

Fatimata M’Baye (right) and Philip Alston, two members of the International Commission of Inquiry on the Central African Republic (c)Loey Felipe

Two members of the International Commission of Inquiry on the Central African Republic (CAR), yesterday called for the establishment of an international tribunal to prosecute perpetrators of war crimes committed in CAR.

Fatimata M’Baye and Philip Alston, two of the UN Commission’s three members, reported that crimes against humanity and war crimes have been widely committed by all parties in the ongoing conflict.

M’Baye and Alston warned that “unless the world pays attention and holds perpetrators accountable, the situation in CAR could very much spiral into genocide.”

According to the latest report of the Commission, the UN is currently in negotiations to establish a criminal court to prosecute ‘political players’ who have committed crimes against humanity.

“If that goes ahead we are extremely concerned in making sure that a majority of the judges must come from the international community…We do not believe that national judges have that type of independence,” law professor Alston said.

Meanwhile, the International Criminal Court (ICC) has opened investigations into atrocities committed in CAR since 2012. However, according to Mbaye, the ICC can only prosecute a few top leaders and there is a need for justice on a much larger scale.

More than two years of civil war and sectarian violence resulted in the killing of at least 5,000 people. According to UN estimates, nearly 440,000 people remain displaced inside the country while some 190,000 have sought asylum across the borders.

Palestine’s ICC Accession: Risks and Rewards

By Dr Miša Zgonec-Rožej

Handout picture showing Abbas signing international agreements in the West Bank city of Ramallah

Palestinian President Mahmoud Abbas signs 20 international treaties, including the Rome Statute of the ICC, in Ramallah on 31 December 2014

On 6 January, the UN secretary-general confirmed that Palestine will accede to the Rome Statute of the International Criminal Court (ICC). Palestine’s accession has, unsurprisingly, prompted certain countries – including Israel, the US and a number of European states – to warn of potentially grave consequences. It is certainly a risky venture for Palestine given political tensions in the region, but it may deter future war crimes in the Israeli-Palestinian conflict, and marks another step towards statehood for Palestine.

Palestine’s accession will confer jurisdiction on the Court in relation to crimes committed within the territory claimed by Palestine. Although Israel has not ratified the Rome Statute, crimes allegedly committed by Israeli nationals in the territory claimed by Palestine will fall within the ICC’s jurisdiction. The ICC will also have jurisdiction over crimes committed by Palestinians outside the territory claimed by Palestine, including in Israel. Crimes falling within the ICC jurisdiction are limited to genocide, war crimes and crimes against humanity. But the accession can only confer on the Court jurisdiction over crimes committed after the Rome Statute enters into force for Palestine on 1 April. And until the borders of Palestinian territory are clearly defined and the status of occupied territories resolved, the ICC’s territorial jurisdiction will remain contentious.

In order to bring past crimes within the ICC’s jurisdiction, Palestine, on 1 January, lodged a declaration under Article 12(3) of the Rome Statute, retroactively accepting the Court’s jurisdiction. Although in principle such declarations can extend to crimes committed after 1 July 2002, when the Rome Statute entered into force, Palestine decided to limit it to crimes committed since 13 June 2014. The declaration, if accepted by the ICC, would therefore bring into the ICC’s jurisdiction last summer’s conflict in Gaza but not earlier military operations. Continue reading

Palestine to join ICC on April 1

Palestinian Foreign Minister Riad al-Malki leaves the ICC at the Hague ©Reuters

Palestinian Foreign Minister Riad al-Malki leaves the ICC at the Hague ©Reuters

UN Secretary-General Ban Ki-moon has officially announced that Palestine will join the International Criminal Court (ICC) on April 1, 2015. The Palestinians submitted the documents ratifying the Rome Statute last Friday, January 2.

In addition, the Palestinian government lodged a declaration to the ICC Registrar, Herman von Hebel, under article 12(3) of the Rome Statute stating Palestine’s acceptance of the jurisdiction of the ICC since 13 June 2014. The jurisdiction ratione temporis of the ICC over crimes committed in Palestine could therefore cover both Operations Brother’s Keeper and Protective Edge.

To date, 122 countries have ratified the Rome Statute, with the notable exceptions of the United States and Israel.

Palestine Signs the Statute of the International Criminal Court

Mahmoud AbbasLast Wednesday, Palestinian leader Mahmoud Abbas signed the Rome Statute to join the International Criminal Court (ICC).

He signed the Rome Statute, the ICC’s founding treaty, at a Ramallah meeting.

However, the International Criminal Court will only acquire jurisdiction over war crimes, crimes against humanity and acts of genocide on Palestinian territory when Palestine will have ratified the Rome Statute.

The signature follows the rejection of a UN Security Council resolution demanding an end to the Israeli occupation of the Palestinian territories by late 2017.

Eight members of the Security Council voted for that resolution, while it needed the support of at least nine members in order to pass.

“We want to complain. There’s aggression against us, against our land ” […] “The Security Council disappointed us”, Mr Abbas said.

The Palestinian Authority sought to accept the jurisdiction of the ICC back in May 2009 by way of an Article 12(3) declaration. In April 2012, the Office of the Prosecutor determined that since Palestine was an “observer entity,” it could not ratify the Rome Statute.

In November 2012, the UN upgraded Palestine’s membership status to that of a non-observer member state. Writing in an op-ed for The Guardian in August 2014, Prosecutor Fatou Bensouda stated that the effect of this upgraded status was such that Palestine could now join the Rome Statute.

Criminal Complaint Against Nigerian General Buhari To Be Filed With The International Criminal Court On Short Notice

by Göran Sluiter

Muhammadu Buhari

General Muhammadu Buhari

Today, 15 December 2014, it is announced that a further petition will be filed on short notice with the Prosecutor of the International Criminal Court (ICC) in the Hague. The petition calls for the criminal investigation and ultimate prosecution of General Muhammadu Buhari – the All Progressive Congress party candidate in the 2015 Nigerian presidential elections.

Buhari is suspected of having committed crimes against humanity through the instigation of post election violence in 2011 in which more than 800 innocent Nigerians died and countless churches and schools in the northern parts of the country were destroyed. On April 16, 2011, during one of Buhari’s campaign rallies he -and some C.P.C Political/ party stalwarts- called upon his party supporters and loyalists “to destroy, kill and maim men, women, and children” who were opposed to his candidature.

A petition was originally filed with the ICC in the aftermath of the 2011 atrocities by the non-sectarian Northern Coalition for Democracy and Justice (NCDJ). However, as Buhari, a former military ruler, has now formally launched a fresh attempt to return to power in the February elections, a decision has been made to supplement the 2011 petition with additional facts and legal analysis, and a renewed request for the ICC Prosecutor to urgently launch criminal investigations due to mounting concerns that Nigeria may again witness the killing and bloodshed of innocent civilians. Continue reading

ICC President Calls on the United States to Ratify the Rome Statute

Judge Song

Judge Sang-Hyun Song, President of the International Criminal Court

On the 10th of December 2014, one day after the release of the US Senate Intelligence Committee’s report on torture, President Sang-Hyun Song of the International Criminal Court (ICC) called on the US to ratify the Rome Statute in order to help furthering the promotion of accountability for human rights violations through effective and efficient litigation of international crimes.

Judge Sang-Hyun Song, elected as president of the ICC in 2009, noted that, although the ICC is not a human rights court in the strict sense, it was created to help protect core human rights and values. “With its mandate to fight impunity for the most serious crimes under international law […] one could say that the ICC is a criminal court with a strong human rights perspective.”

Mr Sang-Hyun Song acknowledged that “the ICC will never be able to stop impunity on its own.” Which has also never been the intention. He added that “it is primarily the job of States themselves to investigate and prosecute serious international crimes.”

He emphasised that the ICC is a court of last resort and that it can investigate and prosecute only when national jurisdictions in question are unwilling or incapable of doing so. In the case of the US torture claims, it seems that the US is indeed unwilling to prosecute the US officials responsible for the torture committed against suspects after the 9/11 attacks. Continue reading

ICC ASP Accepts Palestine as Non-State Party Observer

International Criminal Court

The International Criminal Court

Yesterday, at an open meeting of the Assembly of States Parties (ASP) of the International Criminal Court (ICC) held in New York, the ASP accepted Palestine as a “non-state party observer.” This is the same status as that awarded to other non-signatory states to the Rome Statute, such as the United States or Russia.

Rule 94 of the Rules of Procedure states that at the beginning of every session of the Assembly, the President, subject to the adoption of the Assembly, may invite states which are not parties to the Rome Statute and which have not signed the final act nor the statute to attend the assembly proceedings.

Al Jazeera’s Diplomatic Editor James Bays identified the acceptance as

“symbolic but adds to the international momentum for Palestinian statehood and has legal repercussions. If Palestine now applies to join the Rome Statute, it will be much harder to reject them. The acceptance clearly brings war-crimes trials against Israelis one step closer.”

The President of the ASP, however, warned that the effect of the acceptance was limited:

“The Assembly takes the following decisions on procedure independently and without prejudice to decisions taken for other purposes, including the decisions of any other organization or any organ of the court concerning legal matters before it.”

The Palestinian Authority sought to accept the jurisdiction of the ICC back in May 2009 by way of an Article 12(3) declaration. In April 2012, the Office of the Prosecutor determined that since Palestine was an “observer entity,” it could not ratify the Rome Statute. In November 2012, the UN upgraded Palestine’s membership status to that of a non-observer member state. Writing in an op-ed for The Guardian in August 2014, Prosecutor Fatou Bensouda stated that the effect of this upgraded status was such that Palestine could now join the Rome Statute.

To date, the Palestinian Authority has not taken any further steps to ratify the Rome Statute.

ICC Prosecutor Withdraws Charges Against Kenyan President

President Kenyatta (c) AP

Kenyan President Uhuru Kenyatta © AP

Yesterday, the Prosecutor of the International Criminal Court, Fatou Bensouda, filed a notice to withdraw charges against Kenyan President Uhuru Kenyatta citing a lack of evidence in the case. In her press release, Prosecutor Bensouda stated that there was no reasonable prospect of conviction at trial on the basis of the evidence before her. She acknowledged that

 

“this is 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.”

She cited a number of key difficulties that her Office has faced in the prosecution of President Kenyatta for crimes against humanity including the death of key Prosecution witnesses and the withdrawal of others on the grounds of fear; the recanting by key witnesses of their accounts to investigation teams; and the Kenyan Government’s non-compliance with the investigation.

Fergal Gaynor, the legal representative of victims in the case said that the Kenyan Government had done everything in its power to obstruct the progress of the case.

Her decision comes following the 3 December refusal by the Trial Chamber to further adjourn the start of Mr Kenyatta’s trial pending the Government of Kenya’s compliance with the Prosecution’s request for records.

A withdrawal of charges is not legally an acquittal and the case against President Kenyatta may be reopened or brought in a different form if new evidence comes to light.

Prosecutor Bensouda called yesterday a “dark day for international criminal justice.”

ICC: Forthcoming Bemba Verdict Significant for Sexual Violence

Jean-Pierre Bemba during his trial (c) Reuters
Jean-Pierre Bemba during his ICC trial in 2013    © Reuters

The International Criminal Court (ICC) recently heard closing speeches in the case against former vice-president of the DRC, Jean-Pierre Bemba. 

Bemba is charged with command responsibility for war crimes and crimes against humanity allegedly committed by troops from the Movement for the Liberation of the Congo (MLC) when they went into the Central African Republic in 2003 to assist then-President Patassé with quashing a rebellion.

The Prosecution allege that the MLC troops were under Bemba’s effective command and control, that he knew or ought to have known that they were committing crimes, and that he failed to take steps to prevent the crimes or punish the soldiers.

Sexual violence has been a prominent part of the case against Bemba. Then-Prosecutor Luis Moreno-Ocampo said in his opening speech that:

“Women were raped systematically to assert dominance and to shatter resistance; men were raped in public to destroy their authority, their capacity to lead.”

According to the Prosecution, Bemba’s troops systematically raped, pillaged and murdered civilians in the CAR and committed hundreds of sexual assaults within a few days.

Defence counsel for Bemba, Peter Haynes QC, demanded Bemba’s acquittal contending that he did not receive information that crimes were being committed; that the troops fought under the command of CAR’s national armed forces and not Bemba; and that he tried to prevent the crimes.

iLawyer Guénaël Mettraux considers the judgment, which is due in 2015, to be a potential benchmark ruling, setting the standards by which political or military leaders will be held responsible for crimes committed by their subordinates:

“The decision might have relevance around the world because the ICC could very well set a precedent for other situations.”

Whilst sexual violence has been charged in other cases before the ICC, most famously in Lubanga and Katanga and Ngudjolo, all three defendants were acquitted on these counts.

The CAR continues to experience ongoing conflict and some observers are sceptical about the effect that the ICC judgment could have in the region. Patrick Vinck, researcher at the Harvard Humanitarian Institute warns that the trial, which took place 10 years after the atrocities, is not only a failure of the ICC but a failure of the international community to help the CAR achieve peace.