On 3 March 2015, the Appeals Chamber (AC) of the International Criminal Court (ICC) rendered its judgment on the principles and procedures of reparation. The decision is of systemic significance for international criminal justice, since it establishes a liability regime for reparations that is grounded in the principle of accountability of the convicted person towards victims. This new “principle of liability to remedy harm’ complements the punitive dimensions of ICC justice (e.g. conviction, sentence). It differs from purely civil forms of liability due to its connection to criminal proceedings which requires reconciliation of both, the rights of victims and the rights of the convicted person. This contribution analyzes the merits and risks of the judgment It argues that the decision marks significant progress over the initial Trial Chamber decision (TC), since it increases the expressivist dimensions of reparation proceedings and the prospects of participatory justice. But it also highlights existing tensions in the decision, such as its limited attention to societal frictions created through reparations, and its minimalist approach to non-accountability related objectives of reparation.
After days of speculation, the clouds have begun to clear over Palestine’s strategy at the ICC. Ever since the Security Council rejected a draft resolution on December 30, 2014 designed to upgrade Palestine’s status to full Member State of the UN and imposing a 12-month deadline on a negotiated solution to the Israeli-Palestinian conflict, the media overwhelmingly reported that Palestine signed the Rome Statute. Yet there was no word on the ICC website and no official information confirming these reports.
The uncertainty grew as the holidays came to an end. Finally, on January 5th, the ICC issued a press release. Contrary to all expectations, however, it appeared that Palestine had submitted a declaration under Article 12(3) of the Statute on December 31st. When using this procedure, states confer jurisdiction to the Court on a one-time, ad hoc, basis. By using this procedure, states do not become party to the Rome Statute, the founding document of the International Criminal Court.
The ICC’s Office of the Prosecutor recently released its annual report on preliminary examinations. The big news, analyzed by many commentators, is that the OTP is conducting a preliminary examination of alleged crimes of torture by U.S. forces in Afghanistan. In the highly unlikely eventuality that the OTP does not close the investigation on one of a variety of procedural grounds, it could be the Court’s first confrontation with a powerful Western state, and its first proceedings against nationals of a non-member state for actions on the territory of a member state.
But the U.S. is not the only major power and non-state party that the report throws down the gauntlet to. The 2014 report announced that a full investigation of potential Russian crimes committed in Georgia may be opened “in the near future.” Since 2008, the OTP has been investigating “the situation in Georgia,” that is, the 2008 Russo-Georgian war, that resulted in Russia cementing its control over occupied parts of Georgia while also conquering new territory. The investigation focuses on ethnic cleansing by Russian-backed forces of ethnic Georgians from Russian-occupied territory in Georgia (South Ossetia). The OTP has concluded that there is a reasonable basis to believe that these actions “amounted to the crime against humanity of forcible transfer of ethnic Georgians under article 7(1)(d).”
Leadership accountability or symbolic responsibility?
Using nationality jurisdiction to focus on the accountability of ‘foreign fighters’ is likely to entail a fundamental shift in prosecutorial policy. The OTP has traditionally defended a focus on leadership accountability, i.e. prosecution of ‘those who bear the greatest responsibility for the most serious crimes’. This concept was a cornerstone of prosecutorial strategy during the Ocampo era, and has been applied in early prosecutorial practice (e.g., Prosecutorial Strategy 2009-2012). The OTP has slightly adjusted its strategy in its Strategic Plan 2012-2015 (para. 22) where it recognized the need to gradually build cases upwards. It defended a bottom-up approach based on ‘limitations in investigative possibilities and/or a lack of cooperation and the required evidentiary standards’. It argued that the Office would first investigate and prosecute ‘a limited number of mid- and high-level perpetrators’ in order to ultimately ‘have a reasonable chance to convict the most responsible’. It also noted that the Office would consider ‘prosecuting lower level perpetrators where their conduct has been particularly grave and has acquired extensive notoriety’ since such a strategy would ‘in the end be more cost-effective than having unsuccessful or no prosecutions against the highest placed perpetrators’.
It is tempting to say that the International Criminal Court (ICC) should open a preliminary examination into the violence of the self-proclaimed Islamic State of Iraq and Syria (‘Islamic State’, hereinafter IS). IS has branded itself as an enemy of the West. Its atrocities are attacks on the very foundation of human dignity and conceptions of civilization. They shock the conscience of humankind. Some of the rhetoric denies the very norms and rules on which international law has been built for centuries. Evidence of atrocities is displayed publicly to illustrate power and spread fear. Records indicate that high numbers of nationals of ICC State Parties have been mobilized as so-called foreign fighters, including nationals of Western countries, North Africa (e.g., Tunisia) and the Middle East (e.g., Jordan). The ICC is in a position of vulnerability. It is under perceived pressure to ‘get out of Africa’.
At first sight, all of the factors make IS a perfect target for ICC intervention. Prosecutor Bensouda noted in an interview on 20 November that the Office of the Prosecutor (OTP) would consider options of ICC engagement. ICC assessment is at an early stage, i.e. Phase 1 of preliminary examinations where the OTP makes an initial assessment of all information to analyse the seriousness of information received and identify the crime base. But taking IS crimes to the ICC poses particular problems that deserve careful consideration. Starting it on a wrong premise might compromise some of the very foundations on which the legitimacy of the ICC is based.
Does 19 + 11 Equal 30?: the Nitty Gritty of the Law of Treaties and the Kampala Amendment to the Rome Statute on the Crime of Aggression
Sometimes, it seems that it is the reality of international law that provides one with questions of treaty law that probably even a sophisticated international law professor would have had problems inventing.
On November 19, 2014, San Marino became the 19th State to have ratified the amendments to the Rome Statute on the crime of aggression. At the same time, Art. 15bis, para 2 and Art. 15ter, para. 2 of the Rome Statute in identical terms provide that “[t]he Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties” and further provided that under Art. 15bis, para. 3 and Art. 15ter, para. 3 respectively, a decision has been adopted by the Assembly of States Parties to activate the Court’s jurisdiction concerning the crime of aggression, such decision to be taken at the earliest in 2017.
What is worth noting, however, is that by now there are also eleven States, namely Cabo Verde, Côte d’Ivoire, Grenada, Guatemala, the Maldives, the Phillipines, St. Lucia, Tunisia, Vanuatu, Moldova and the Seychelles that have ratified the Rome Statute after the Kampala amendment on the crime of aggression was adopted. All of those States, when ratifying the post-Kampala Rome Statute, did so without expressing an intention not to be bound by the treaty as amended. This raises the intriguing question whether 19 + 11 equal 30, i.e. whether these new contracting parties ought to be counted towards the quorum required, as mentioned, by Art. 15bis, para 2 and Art. 15ter, para. 2 of the Rome Statute in order for the Court to exercise its jurisdiction.
Jean-Baptiste Maillart is a PhD Candidate at the University of Geneva and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights.
Article 12(2)(a) of the Rome Statute provides that the ICC may exercise its jurisdiction over a crime if the “State on the territory of which the conduct in question occurred” is a party to the Statute or has accepted the Court’s jurisdiction by a declaration. It has become commonplace to paraphrase that provision as stating that the Court may exercise its territorial jurisdiction over a crime that has been committed within the territory of a State Party. For instance, the late Judge Hans-Peter Kaul wrote [p. 607] “if a core crime is committed by an individual in the territory of a State Party to the Statute, the ICC will have jurisdiction” (see also the commentaries of Schabas [p. 285], Bourgon [p. 564] and Haupais [p. 582]). The Court itself uses the exact same wording: “[…] under article 12(2) of the Statute one of the two alternative criteria must be met: (a) the relevant crime was committed in the territory of a State Party or […] (b) the relevant crime was committed by a national of a State Party […]” (ICC-01/04-01/07-262 [§. 14]); see also for instance ICC-02/11-14 [§. 187] or ICC-01/09-19-Corr [§. 175]).
However, a careful and literal reading of Article 12(2)(a) leads to a different conclusion. The Court has jurisdiction over a crime when “the conduct”of this crime occurred on the territory of a State party, not when the crime was committed there. Some scholars addressing Article 12 (e.g., Wagner [p. 485] and Vagias [p. 53]) have pointed out the exact terminology used, but none have considered whether it could have any practical effect. This post considers, on the basis of the traditional interpretation of the term “conduct”, a possible challenge to the ICC’s jurisdiction over certain cross-border crimes where, if Article 12(2)(a) said “commission”, it would undoubtedly have jurisdiction. In other words, it could be argued that it is incorrect to read “conduct occur[ing]” on certain territory as equivalent to “commission of a crime” on that territory. The post also proposes a counter-argument in favor of jurisdiction. Read the rest of this entry…
Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Israel Treiman Faculty Fellow at Washington University School of Law and has been the Director of the Whitney R. Harris World Law Institute since 2007.
Douglas J. Pivnichny, JD, is the Whitney R. Harris World Law Institute Fellow at Washington University School of Law in St. Louis, Missouri, and a masters candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.
The Crimes Against Humanity Initiative and Recent Developments at the ILC
On Thursday, July 17, the International Law Commission moved the topic of crimes against humanity from its long-term to its active agenda and appointed Professor Sean D. Murphy as Special Rapporteur. The Rapporteur’s charge is to prepare a First Report, which will begin the process of proposing Draft Articles to the Commission for its approval. The expectation is that, in due course, the Commission will send a complete set of Draft Articles for use as a convention to the United Nations General Assembly. This was a crucial step in filling a normative gap that has persisted despite the development of international criminal law during the past decades: the absence of a comprehensive global treaty on crimes against humanity.
The Commission’s interest in this topic was sparked by the work of the Crimes Against Humanity Initiative, launched by Professor Leila Sadat of Washington University School of Law in 2008. The Initiativeset out to study the current state of the law and sociological reality regarding the commission of crimes against humanity and to address the gap in the current international legal framework by drafting a global, comprehensive model convention on crimes against humanity. Ambitious in scope and conceptual design, the Initiative has been directed by a distinguished Steering Committee and consulted more than 300 experts in the course of elaborating and discussing the Proposed International Convention for the Prevention and Punishment of Crimes Against Humanity (Proposed Convention), published by Cambridge University Press in English, French and Spanish in Forging a Convention for Crimes Against Humanity (1st ed., 2011; 2nd ed., 2013). Arabic, Chinese, German and Russian translations are also available. Read the rest of this entry…
I do not at all want to trivialize the human tragedy that is the downing of Malaysia Airlines flight MH17 over Ukraine last week, nor for that matter the parallel unfolding tragedies on the ground in Ukraine and in Israel and Gaza, by engaging in some premature lawyerly analysis. But, in reading on the unfolding story of the aircraft’s demise, I nonetheless couldn’t help but think how that story is very likely to find its epilogue in an international courtroom. The facts of MH17’s destruction are obviously far from clear, and are not going to become much clearer in the near future, but the number of possible scenarios is limited – the aircraft was (most likely) destroyed by Ukrainian rebels with Russian-supplied weapons, or (less likely) by either Ukranian or Russian state agents (who may have acted ultra vires). And not only did the downing of MH17 deepen a major existing international crisis, but it directly affected a number of states other than Ukraine and Russia, such as Malaysia and the Netherlands, not to mention the families of the victims themselves. This raises both the incentives and the opportunities for international litigation, in addition to whatever proceedings may ensue before domestic courts or international fact-finding missions.
Consider, first, the possibility that a case or cases regarding MH17 might end up before the European Court of Human Rights. Both Russia and Ukraine are of course parties to the ECHR, and readers will recall that one of the first acts of the new government in Kiev in response to the Crimea crisis was to lodge an inter-state application against Russia in Strasbourg, on which the Court ordered provisional measures. It is perfectly possible for the downing of MH17 to be an issue in the existing or a new inter-state case, or indeed one brought by a third state, such as the Netherlands, since the majority of the victims had Dutch nationality. And obviously the families of the victims may also bring individual applications against either Russia or Ukraine.
In addition to whatever direct involvement these states may have had in the destruction of the aircraft, they could also be held liable for other internationally wrongful acts. For example, Ukraine could be responsible for failing to secure the right to life of the victims and failing to comply with its substantive positive obligations under Article 2 ECHR by deciding not to close the relevant airspace for civilian traffic. Russia could be held responsible for providing the rebels with anti-aircraft weaponry without sufficient safeguards (e.g. appropriate training of the missile crews), thus creating the risk that this weaponry could be used against civilian targets. Both states could be held responsible for failing to secure an effective investigation into the incident. Obviously the facts could yet develop and some very complex preliminary issues could arise (e.g. the extent of Russia’s control over the Ukrainian rebels and the question of the ECHR’s extraterritorial application), but all these points seem arguable.
On 22 January 2009, the Palestinian Minister of Justice, on behalf of the Palestinian National Authority (PNA), lodged a declaration recognizing the jurisdiction of the International Criminal Court (ICC) (pictured left) ‘for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002.’ On 3 April 2012, the ICC Office of the Prosecutor concluded that the preconditions to the exercise of jurisdictionwere not met, arguing that Palestine had only been granted ‘observer’, not ‘Non-member State’ status by General Assembly (GA). The Prosecutor considered that the Declaration ‘was not validly lodged’ (Report on Preliminary Examinations Activities 2013, para. 236). However, the Prosecutor also said that ‘allegations of crimes committed in Palestine’ could be considered ‘in the future’ if the ‘competent organs of United Nations … resolve the legal issue relevant to an assessment of article 12 …’. On 29 November 2012 the UN GA – by 138 votes to 9, with 41 abstentions – decided ‘to accord to Palestine non-member observer State status.’ (GA Res. 67/19 of 4 Dec. 2012, para. 2) (see previous EJIL:Talk! Posts here, here and here)
With this decision, the legal issue raised in the Prosecutor’s decision has been resolved. Palestine has been ‘upgraded’ from a mere ‘observer’ to a ‘Non-member State’. The formal declaration of statehood, which some previously considered a missing precondition to Palestine’s status as a State (Ronen, JICJ 8(2010), 26; Shany, JICJ 8 (2010), 337), has been produced by the GA. And this notwithstanding the possible lack of complete fulfilment of the Montevideo criteria (in particular the effective government criterion; cf. Shaw, JICJ 9 (2011), 307 ff.). The view that Palestine is now a State is not only the prevailing view among scholars (Zimmermann, JICJ 11(2013), 303; Ronen, JICJ 12 (2014) 8; contra still Kontorovich, JICJ 11 (2013), 979), but above all has been confirmed by treaty practice since the GA Resolution, i.e., the accession of Palestine to at least 15 international treaties (accepted by the respective depositaries). This means that Palestine, represented by its government, can now not only trigger ICC jurisdiction by way of a declaration under Article 12(3) of the ICC Statute but also directly accede to the ICC Statute (albeit without retroactive effect, cf. Articles 11(2), 126(2)). While there is no longer a need to overcome the lack of statehood by way of a functional interpretation of Article 12(3) (Shany, JICJ 8 (2010), 329; Pellet, JICJ 8(2010), 981, the new Article 12(3) power suffers from several limitations. Those limitations will be the focus of this post (leaving aside the subsequent ‘ordinary’ obstacles, especially gravity, admissibility and interests of justice, to turn an ICC situation into a formal investigation of a case). Here are the four problems with Article 12(3) that I see.
First, Article 12(3) is premised on a delegation-based theory of jurisdiction (Shany, JICJ 8(2010), 331-2), i.e., the ‘State’ within the meaning of the provision delegates a part of its jurisdiction to the ICC. Of course, this presupposes that the State possesses the jurisdiction it wants to delegate in the first place. Here Annex II of the 1995 Israeli-Palestinian Interim Agreement (‘Oslo II’) comes into play. According to its Article I, the Palestinian criminal jurisdiction is limited to ‘offenses committed by Palestinians and/or non-Israelis in the Territory’. ‘Territory’ refers to the West Bank and the Gaza Strip, in principle including East Jerusalem. Indeed, this is the Palestinian territory internationally recognized as a ‘single territorial unit’ (Art. IV Declaration of Principles 1993 [Oslo I]; Art XI(1) Oslo II). Of course, on the one hand, Palestinian jurisdiction does not extend to the Area C in the West Bank (including Israeli settlements and military installations). On the other hand, while Israel does not, in principle, claim sovereignty over the West Bank and Gaza, it does so with regard to East Jerusalem. Thus, on the basis of Oslo, Palestinian criminal jurisdiction is severely limited both ratione personae and ratione loci.
To get around these limitations one may argue that Oslo, having been agreed between Israel and the PLO, as the representative of the Palestinian people (GA Res. 67/19, para. 2), can neither bind the PNA, which only came into existence with Oslo, nor, a fortiori, the government of the now formally recognized State of Palestine. Read the rest of this entry…