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Home International Tribunals Archive for category "International Criminal Court"

A “Hybrid” Tribunal for Daesh?

Published on May 4, 2016        Author: 

On 21 April 2016, Professor Robert Cryer published a concise analysis of the possible consequences of a resolution adopted by the UK House of Commons a day earlier, including of a possible referral of the situation involving crimes – war crimes, crimes against humanity, and, in particular, genocide – committed by members of Daesh to the International Criminal Court (ICC). Although Professor Cryer noted, quite appropriately, that “political realities in the S[ecurity] C[ouncil] mean that there may be a veto on a resolution sending the matter to the ICC”, there are even more limitations to the likelihood of this proposal. This post briefly discusses these other limitations and suggests an alternative way to proceed.

Legal and Practical Limitations of the ICC Jurisdiction

It is unlikely that the ICC would get to deal with Daesh’s crimes in the foreseeable future. The Court does not presently have territorial jurisdiction with respect to the situation in Syria and Iraq, since neither of these States is a Party to the Rome Statute. Theoretically, the Court might exercise personal jurisdiction with respect to crimes committed by foreign members of Daesh who are nationals of States Parties to the Statute – but this is also unlikely, by virtue of the ICC principle of complementarity: if such individuals are found in the territory of a State Party to the Rome Statute, they are likely to be handed over to the States of which they are nationals, or to be tried in the State where they are apprehended (aut dedere aut judicare).

In turn, the likelihood of the situation in Syria being referred to the ICC by the UN Security Council is close to zero, because such a referral would imply the Court’s jurisdiction not only with respect to crimes under international law committed by members of Daesh (for the concept of crimes under international law, see: G. Werle and F. Jessberger, Principles of International Criminal Law, p. 32) but also with respect to those committed by Syrian armed forces, their internal opponents, and – last but not least – by members of foreign armed forces currently present in the country. Yet, there seem to be further good reasons not to refer the situation involving crimes committed by members of Daesh to the ICC at all, but to follow an alternative route. Read the rest of this entry…

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The Assembly of State Parties to the International Criminal Court Decides to Delete Article 124 of the Rome Statute

Published on April 12, 2016        Author: 

A little noticed but still significant event during last year’s Assembly of State Parties of the International Criminal Court (ICC) was the decision to delete article 124 of the Rome Statute. Article 124, titled “Transitional Provision”, reads as follows:

Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.

The gist of article 124 was to allow State Parties, upon becoming Party to the Rome Statute, to preclude the Court from exercising jurisdiction over war crimes (article 8) for a period of seven years. Only France and Colombia ever made use of article 124, and each country did so for very particular reasons, which I will not elaborate further here. Suffice it to note that France withdrew its declaration under article 124 in 2008 and that the Columbian declaration made in 2002 expired in 2009. Still, for a court that prides itself on permitting no reservations, no statute of limitations, and no immunities from prosecution, even for heads of state, many have considered article 124 as an inappropriate exemption from the Court’s quintessential principle that there shall be no impunity for any of the crimes under its jurisdiction.

The deletion of article 124 is important not only in its own right, but also because of how it occurred. State Parties deliberated extensively about whether to adhere to the standard amendment procedure outlined in article 121 or if a simple decision by the Assembly would suffice. The result of this debate can be indicative of how States will approach procedural questions of a similar nature in the future, not least when the Assembly in 2017 moves to activating the crime of aggression (on which see this post). Read the rest of this entry…

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An International Court of Justice Advisory Opinion on the ICC Head of State Immunity Issue

Published on March 31, 2016        Author: 

Earlier this week, I wrote about the recent decision of the South African Supreme Court of Appeal holding that the South African government had violated its obligations in failing to arrest Sudanese President Bashir when he attended the African Union Summit in South Africa last June. That decision is just the latest in the ongong saga about whether serving heads of States, particularly heads of states not party to the Rome Statute of the International Criminal Court (ICC), have immunity when they are wanted by the ICC. The issue has been a particularly toxic one in the relations between the African Union (AU) and the ICC. The AU continues to insist that Bashir and all serving heads of states are immune from arrest and prosecution and Bashir has now travelled to numerous African (and other states) including a number of states that are party to the ICC Statute (see the Bashir Watch website – and also here – for information on the states that Bashir has travelled to, as well as those which have denied him access). The AU Assembly (of heads of states and governments) has made a number of proposals in an attempt to put an end to the prosecution of Bashir, including a proposal for deferral of the case under Article 16 of the Rome Statute ( see Assembly/AU/Dec.547(XXIV) (June 2015)). It has also encouraged African states to put forward amendments to the Rome Statute (see Ext/Assembly/AU/Dec.1(Oct.2013). Following that suggestion, Kenya proposed an amendment to Article 27 of the Rome Statute which would provide for immunity of heads of states and their deputies (see p. 16 of this report of the ICC Assembly of States Parties Working Group on Amendments). I am sure that everyone knows that the chances of success on such an amendment is precisely zero. For the amendment to come into force, seven-eights of the parties to the ICC Statute would have to ratify it (under Art. 121(4) of the Statute) and it is inconceivable that this will happen.

However, the AU has made one suggestion which I think ought to be taken up. This is the proposal (see p. 9-10 of this document) that the International Court of Justice be asked to render an advisory opinion on the immunity of heads of states or other senior officials of states not party to the ICC (for earlier discussion of this proposal see my posts here and here). Despite the fact that the ICC has ruled on the question of Bashir’s immunity on several occasions (including in cases regarding non-cooperation by Malawi and Chad, DRC and South Africa), there are, in my view, good reasons to try to have the ICJ address the issue. Some of those reasons are legal and others political. Read the rest of this entry…

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The Situation Concerning the Mavi Marmara at the ICC: What might the next move of the Prosecutor be?

Published on March 22, 2016        Author: 

In early summer 2010, around fifty people were seriously injured and ten Turkish nationals died on a vessel which was part of the ‘Freedom Flotilla’: the Mavi Marmara ship. The incident saw the establishment of a UN Human Rights Council fact-finding mission, a separate panel of inquiry appointed by the UN Secretary-General, a Turkish Commission and a Israeli Commission of Inquiry (aka “Turkel Commission”). The Israeli Defense Force (IDF)’s storming of the ‘Freedom Flotilla’, have subsequently been subject to judicial proceedings both domestically in Turkey, and internationally at the International Criminal Court (ICC).

In May 2014, four arrest warrants were released by Istanbul’s Seventh High Criminal Court against former IDF Chief of Staff Gabi Ashkenazi, former Navy Chief Eliezer Marom, former Military Intelligence Chief Amos Yadlin and former Naval Intelligence chief Avishai Levy. A year earlier, on 14 May 2013, a referral was received by the ICC Office of the Prosecutor (OTP) from the authorities of the Comoros, a State Party to the Rome Statute of the ICC, in relation to the Humanitarian Aid Flotilla’s incident (registered vessels situation). Six months after Turkey issued its arrest warrants, the OTP announced in its report under Article 53 (1) Rome Statute that it had decided not to investigate the registered vessels situation.

OTP’s decision not to investigate was based on the ‘gravity’ criteria of the Rome Statute. According to the OTP, ‘the potential case(s) likely arising from an investigation into this incident would not be of “sufficient gravity” to justify further action by the ICC.’ In so doing, the OTP did not consider the other two criteria for declining to investigate, namely, complementarity and the interests of justice. As Kevin Jon Heller predicted, the Comoros ‘appealed’ the OTP’s decision and on 16 July 2015, the ICC Pre-Trial Chamber (PTC) requested the Prosecutor to reconsider its decision not to open an investigation. Acting under Article 53 (3) (a), the PTC took issue with several aspects of the OTP’s decision not to investigate (see comments here and here).

In this post, my aim is to analyze the OTP’s decision not to investigate on the basis of gravity and the PTC’s request to the OTP to reconsider its decision. I argue that OTP’s gravity assessment was hasty and came at the expense of assessing the potential complementarity of the Turkish proceedings. Read the rest of this entry…

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Ukraine vs. Russia in International Courts and Tribunals

Published on March 9, 2016        Author: 

In early January 2016, Ukraine affirmed its intention to bring a claim against Russia before the ICJ under the International Convention for the Suppression of the Financing of Terrorism (‘Financing of Terrorism Convention’). Further announcements were made in late January and February 2016 as to both an additional claim in the ICJ under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and a claim under the United Nations Convention on the Law of the Sea (UNCLOS). This post provides a brief overview of pending and prospective cases originating from the conflict between Russia and Ukraine.

Cases pending before international court and tribunals

Ukraine is currently seeking to challenge Russia’s actions on its territory in the European Court of Human Rights and the International Criminal Court. Three inter-State cases initiated by Ukraine concerning Russia’s actions in Crimea and Eastern Ukraine are currently pending before the ECtHR (the first inter-State case by Ukraine against Russia was discussed here). In September 2015, Ukraine also lodged a Declaration under Article 12(3) of the Rome Statute of the International Criminal Court recognising its jurisdiction with respect to the acts committed on its territory since 20 February 2014. It is true that acceptance of the jurisdiction of the ICC by Ukraine may not necessarily lead to the prosecution of Russian citizens fighting in the Eastern Regions. It is, nonetheless, another avenue used by Ukraine to put the conflict between the two States before international judges.

Russia’s actions in Crimea and Eastern Ukraine have also resulted in individual cases brought against Russia at the international level under international human rights law and international foreign investment law. As of October 2015, more than 1,400 applications seemingly related to the events in Crimea or Eastern Ukraine, lodged against both Russia and Ukraine or against one of those States, are pending before the ECtHR.

Several cases were initiated before the PCA against Russia under UNCITRAL rules apparently concerning investments located in Crimea. One of these cases, for instance, concerned interference with property situated in Crimea. Incidentally, in reply to the commencement of the arbitral proceedings in this case, Russia sent a letter stating that it did not recognise the jurisdiction of the arbitral tribunal. Despite Russia’s request not to regard the letter as consent to participation in arbitral proceedings, Read the rest of this entry…

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AJIL Unbound Symposium on the Crime of Aggression

Published on March 3, 2016        Author: 

In June 2010, parties to the Statute of the International Criminal Court (ICC) meeting in Kampala, Uganda agreed amendments to the ICC Statute which would allow the ICC to prosecute the crime of aggression. However, they also agreed that the Court would only be able to exercise jurisdiction with respect to the crime of aggression subject to a further decision to be taken after 1 January 2017 and only after the ratification or acceptance of the amendments by thirty States Parties [Arts. 15bis(2) & (3); Arts. 15ter(2) & (3), ICC Statute].  In 2010, this may have seemed a long delay before the Court would be able to exercise jurisdiction over the crime. However, with 26 ratifications or acceptances of the amendments and more seemingly to follow, ICC jurisdiction over aggression appears to be just round the corner. This is therefore a good time to give serious consideration to the implications that ICC jurisdiction over the crime of aggression will have both with regard to international law but also in international politics.

The American Journal of International Law’s online Companion AJIL Unbound has just published a symposium on the crime of aggression under the Statute of the International Criminal Court, which I had the pleasure of editing. The symposium publishes a number of responses to the lead article in the April 2015 issue of the American Journal of International Law by Harold Koh and Todd Buchwald: “The Crime of Aggression: The United States Perspective“, 109 AJIL 257, 292 (2015). In that piece, Harold Koh and Todd Buchwald, both of whom were leaders of the U.S. delegation at the Kampala review Conference, consider a range of issues raised by the impending activation of the ICC’s jurisdiction over the crime of aggression. They provide a critique of the definition of the crime of aggression provided for in the amendments to the ICC Statute agreed in Kampala, Uganda in 2010; examine issues relating to the jurisdiction of the Court and domestic courts over that crime; and consider the role of the Security Council with respect to aggression. One of the main focuses of their piece is a consideration of how best to prevent the new jurisdiction over the crime of aggression from chilling uses of force they consider legitimate, particularly humanitarian intervention that is not authorized by the Security Council. In the July 2015 issue of the American Journal of International Law, Alain Pellet and Bing Bing Jia respond to Koh and Buchwald. The AJIL Unbound symposium, in addition to an introduction by me, includes four pieces which provide further consideration of issues relating to the crime of aggression and some responses to the Koh & Buchwald article.   Read the rest of this entry…

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Pre-Trial Chamber of the International Criminal Court Authorizes Initiation of Investigation in Georgia

Published on February 1, 2016        Author: 

On 27 January 2016, the ICC Pre-Trial Chamber I (PTC) authorized the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) to open an investigation into the situation in Georgia, specifically focusing on allegations of war crimes and crimes against humanity during and in the immediate aftermath of the August 2008 armed conflict. In the absence of a state party or the Security Council referral, the OTP filed the request for authorization in October 2015, seven years after initiating its preliminary examination. The investigation can cover alleged crimes by three groups: South Ossetian forces, armed forces of Georgia and armed forces of the Russian Federation. Georgia is a party to the Rome Statute, while the Russian Federation is not.

This post focuses only on the aspects of the PTC decision and the OTP’s request that raise the most questions, namely selection of crimes and of potential cases and admissibility of those cases, with specific emphasis on complementarity.

Crimes within the Jurisdiction of the ICC

The primary targets for the OTP’s investigation appear to be alleged crimes against ethnic Georgians, including forcible displacement and destruction of property, between 8 August and 10 October 2008 in the Russian occupied South Ossetia and adjacent areas. Read the rest of this entry…

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Immunity of Heads of State on the Retreat

Published on January 11, 2016        Author: 

On December 31st, the United Nations Dag Hammarskjöld Library tweeted that its most popular item of 2015 was my book entitled “Immunity of Heads of State and State Officials for International Crimes”.

The tweet immediately led to an intense controversy on Twitter and to a number of articles (here or here). Many commentators suggested that the book has been popular because diplomats were looking for ways to protect themselves or their bosses. Some also claimed that it was a poor sign for the United Nations. The news website Vox wrote: “The UN is full of delegates representing awful dictatorships, and the book that got checked out the most from the UN library was about … how to be immune from war crimes prosecution. That does not seem like a good thing!”

Numerous commentators jumped to the conclusion that the book was some sort of recipe to escape prosecution for international crimes. But in fact, rather than for criminal dictators, the book is for committed prosecutors and judges. In particular, it contains a detailed analysis of the relevant customary international law. Read the rest of this entry…

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The new enemy of mankind: The Jurisdiction of the ICC over members of “Islamic State”

Published on November 26, 2015        Author: 

President Obama has called the recent Paris terror attacks an “attack on all of humanity”. In doing so, he has touched upon the core of so-called crimes against humanity. Due to their quantitative and qualitative dimensions and their utter disregard for fundamental values, such crimes are directed not only against individual persons, but against humanity as a whole. The link to a State was abandoned in the Statutes of the UN Ad Hoc Tribunals in 1993 (ICTY) and 1994 (ICTR) and then, with a universal claim,  in 1998 with the definition adopted in Article 7 of the Rome Statute of the International Criminal Court (ICC). Since then, it has been possible for crimes against humanity to be committed by non-state actors. Their traditional State-based rationale – punishing the representatives of the morally perverted State that uses its power against its own citizens without restraint – can be transferred to non-state actors. When these actors, like the so-called Islamic State (IS), send suicide assassins into a concert hall to execute innocent civilians, this reveals a level of moral perversion that is typical of crimes against humanity. That the perpetrators invoke God when doing so makes the matter even worse. Religiously motivated perpetrators of crimes against humanity not only deny their victims’ right to exist, but in doing so place themselves above us “unbelievers” as part of a supposedly divine mission; in fact, they act in the same manner as the crusaders they claim to be fighting against.

A perpetrator of a crime against humanity is “hostis humani generis”, an enemy of mankind. The concept was used to refer to pirates long before crimes against humanity existed. The IS is far worse than pirates, and its acts carry all of the hallmarks of crimes against humanity. While this may have been doubted before Paris, after the attacks these doubts are gone with the wind. In the dry technical language of the so-called context element of crimes against humanity, the attacks represent a widespread and systematic attack directed against the civilian population. The attack targeted a large number of civilians and had been planned in a premeditated fashion. The intentional killing of more than 100 people constitutes the required single act of ‘murder’. As a consequence, the ICC has jurisdiction ratione materiae, without any need for recourse to war crimes. This makes the matter simpler, as it is highly controversial – despite the unambiguous language of the French President Hollande (“acte de guerre”) – whether an armed conflict can actually exist between a transnational non-state actor and a State under current International Humanitarian Law.

However, does the ICC also have formal jurisdiction over acts committed by members of Islamic State? Read the rest of this entry…

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The International Court of Justice and the Concept of Aggression: Lessons for the ICC?

Published on July 3, 2015        Author: 

The Kampala Amendments to the Statute of the International Criminal Court (ICC) adopted in June 2010 define the crime of aggression for the purposes of the ICC Statute and set out the conditions under which the ICC will exercise jurisdiction with respect to that crime. It was decided in Kampala that the aggression amendments will only become operational, in the sense that the ICC can only exercise jurisdiction over the crime of aggression: (i) one year after the aggression amendments have come into force for at least 30 States and (ii) if the ICC Assembly of State Parties adopts a further decision to activate that jurisdiction, with 1 January 2017 being the earliest date for the adoption of that decision [Arts. 15 bis (2) & (3) & 15ter (2) & (3), ICC Statute]. Given that 23 states have now ratified or accepted the aggression amendments and that 1 January 2017 is under 18 months away, the activation of the ICC’s jurisdiction over the crime of aggression is not very far away at all [see this report on action by other states considering ratification]. As that moment – when the ICC is able to exercise jurisdiction over aggression approaches – attention will turn (back) to a couple of issues that remain unresolved with respect to the interpretation of the Kampala amendments. One of those issues is whether the Court will be entitled to exercise jurisdiction over the nationals of a party to the Rome Statute which has not accepted the aggression amendments but which is alleged to have committed aggression on the territory of a state party that has ratified or accepted those amendments (see previous discussion here & here). The second issue is the interpretation to be given to the definition of the crime of aggression under the Kampala amendments.

Article 8 bis(1), of the ICC Statute provides that: “For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”

The relationship between the concept of the “crime of aggression” and of “act of aggression” under the ICC Statute and under general international law respectively remains unclear. Under the Kampala amendment only an “act of aggression” which by “character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations” can amount to the “crime of aggression” attracting individual criminal responsibility. Despite attempts in interpretive Understandings adopted in Kampala to give guidance with respect to the definition of the crime, the ICC will have its work cut out in establishing what amounts to a manifest violation of the UN Charter such that it should be regarded as the crime of aggression.

As the concept of aggression is one which relates not merely to individual criminal responsibility but builds on state responsibility for unlawful uses of force, it is instructive to examine how the International Court of Justice (ICJ) has dealt with the concept of aggression. Read the rest of this entry…

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