By Dr Miša Zgonec-Rožej*
Omar Al Bashir
South Africa’s failure to arrest the Sudanese president is the latest incident in a troubled relationship between the court and African states.
Sudan President Omar Al-Bashir was allowed to leave South Africa on 15 June in defiance of a temporary order issued a day earlier by the High Court in Pretoria, which required South African authorities to prevent him from leaving the country until an application submitted by a human rights group was heard by the court. Just hours after Bashir’s departure from South Africa after attending the African Union (AU) summit in Johannesburg, the court ordered that President Al-Bashir be arrested and surrendered to the International Criminal Court (ICC).
As a state party to the ICC, South Africa thereby breached its obligation under the Rome Statute to execute the ICC arrest warrant issued against the president. This highlights an ongoing problem for the ICC: without states’ cooperation, and lacking its own enforcement mechanisms, the court is forced to leave cases suspended indefinitely.
Lack of immunity
President Bashir has been sought by the ICC for his alleged involvement in genocide, crimes against humanity and war crimes committed during the conflict in Darfur. Sudan is not a party to the Rome Statute which established the ICC, but the ICC has jurisdiction as a consequence of a 2005 referral to it by the UN Security Council of the situation in Darfur. The African Union, however, has continually opposed the prosecution by the ICC of heads of states during their term of office. The AU has requested the suspension of proceedings against President Bashir and called upon AU members not to arrest and surrender him. Continue reading
- Date: 10 June 2015
- Time: 19:00h
- Fee: Free
- Venue: T.M.C. Asser Institute
- Organiser: T.M.C. Asser Institute, the Coalition for the International Criminal Court (CICC) and the Grotius Centre for International Legal Studies of Leiden University
- Address: R.J. Schimmelpennincklaan 20-22 , The Hague , Netherlands
Opening remarks and moderation: Gaelle Carayon, REDRESS
- Facilitating the choice of counsel and representation, views from civil society, Jean Philippe Kot, Avocats sans Frontieresµ
- The challenges of providing effective representation, views from a victims’ legal representative, Fidel Nsita, LRV
- Ongoing and prospective avenues for an improved representation, views from the Registry, Fiona McKay, Head Victims Participation and Reparation Section
SCL Lectures are public and free of charge. Registration is not necessary, seats are available on a first-come-first-served basis.
The International Criminal Court
Deputy Prosecutor of the International Criminal Court, Mr. James Stewart, spoke at a conference on “Transitional Justice in Colombia and the Role of the International Criminal Court” held in Colombia last week. He noted that the role of the Court had not been without some public controversy and that it was time to put that role into its proper perspective.
The Office of the Prosecutor (OTP) opened a preliminary examination of the situation in Colombia in 2004, which is on-going, but to date it has not proceeded with an investigation.
Mr. Stewart highlighted that a situation of transitional justice, as exists in Colombia, only engages the mandate of the ICC Prosecutor, if the authorities of the State concerned are not themselves conducting genuine proceedings for such crimes, i.e. if they are unable or unwilling to act.
Up to and including June 2013, the OTP has received 141 communications under Article 15 in relation to the situation in Colombia. 94 of these are currently analysed in the context of preliminary examination.
In November 2012, the OTP published an interim report summarising the findings of the preliminary examination into Colombia. According to this report, there was a reasonable basis to believe that crimes against humanity were committed by various parties to the conflict. It was also suggested that various groups may have been responsible for committing war crimes. Continue reading
Mathieu Ngudjolo Chui ©ANP
Mathieu Ngudjolo Chui, the first defendant to be acquitted by the International Criminal Court (ICC) has been deported to Kinshasa, capital of the Democratic Republic of the Congo (DRC), on Monday 11 May. Media confirmed that Ngudjolo arrived back in the DRC on Monday evening where he was escorted by five European police officers before leaving the Kinshasa airport surrounded by friends and family.
In a secret video, shared online last week, Ngudjolo spoke out about death threats and his concerns about being killed or receiving the death penalty when expelled to the DRC. He fears his live is in danger in the DRC as he has made incriminating statements about the current leaders of the country during his trial at the ICC.
Human Rights Watch also expressed concern about Ngudjolo’s return and said that “we and others will be looking to the Congolese authorities to ensure Mathieu Ngudjolo’s safety and security once he is back in Congo”.
The 44-year-old former leader of the Nationalist Integrationlist Front (FNI) militia was acquitted of the charges of war crimes and crimes against humanity by Trial Chamber II of the ICC on 18 December 2012, who ordered his immediate release. Straight after his acquittal he applied for asylum in the Netherlands which was denied by the Dutch authorities, but he was allowed to stay in the Netherlands pending his appeal.
On 27 February 2015, the ICC Appeal Chamber confirmed the decision of the Trial Chamber acquitting Ngudjolo Chui of charges of crimes against humanity, putting a final end to the trial that had started in 2009. After the ruling, the Dutch authorities immediately arrested Ngudjolo and transferred him to Schiphol airport to return him to the DRC that same day. His lawyer filed a new asylum claim at the last minute, and Ngudjolo was escorted off the aircraft. The new claim was rejected a few days later.
Unconfirmed sources say that after his arrival in Kinshasa yesterday, Ngudjolo subsequently fled to an unknown destination. According to the president of the Congolese Association for access to justice (l’Association congolaise pour l’accès à la justice), who is also Ngudjolo’s lawyer, he has currently no information about the whereabouts of his client.
William Ruto and Joshua Sang at the International Criminal Court (ICC)
Last week, the Dutch embassy in Nairobi confirmed that a Kenyan government official was arrested at Amsterdam’s Schiphol Airport, carrying false papers. He did not enter the Netherlands but was imprisoned and then sent back to Kenya.
The Kenyan official in question would have tried to meet ICC witness 727 in the Netherlands, who is the last Kenyan prosecution witness set to testify in the Kenyan trials against Deputy President William Ruto and journalist Joshua Sang.
Witness 727 is currently hiding in the Netherlands, refusing to testify following serious intimidation, says his lawyer Goran Sluiter.
According to him, “it’s clear that the ICC has fully underestimated these cases. If the Kenyan trials had been calm and quiet, it might have been the right treatment. But now the ICC is ruled by fear of Kenya and the African Union. They should step up action against suspects.”
Many (possible) witnesses are said to have been intimidated in the Ruto and Sang trials. The case against President Uhuru Kenyatta was dropped by the Prosecution because of a lack of evidence.
by Samuel Linehan
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.
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
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.
By Dr Miša Zgonec-Rožej
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
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.
Last 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.