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The Decentralisation of International Crimes: A shift from the central criminal apparatus at the ICC?

Published on December 27, 2018        Author: 

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In her statement to the UN Security Council on November 2018, Fatou Bensouda vowed to search ‘outside of Libya’ for accountability of global actors in the migration context. This is one of the many moves by the Office of the Prosecutor (OTP) in their prosecutorial trajectory towards a more holistic approach. Such an approach widens the accountability net to capture crimes and potentially responsible actors, which would otherwise fall outside the geographical scope of the ICC’s “situations”.

In this post, I argue that this new approach, which has largely passed under the radar, is both desirable and justified. In what follows, I make three propositions. First, the ICC has by far adopted, in practice, a localised approach stressing system criminality. Second, in light of the globalisation of international crimes, this orthodox approach may be obsolete by failing to reflect and assert accountability comprehensively. The proliferation of cross-border transactions and the enhanced risk of transnational harms would require no less than modernising current prosecutorial strategies to properly respond to the changing faces of international crimes. The last proposition suggests that this new approach is justified and imminent out of practicality to fulfil the Court’s mandate.

The Orthodox Approach

Since the first case in Lubanga, it has been the customary practice of the ICC to localise liabilities. This means the Court would ordinarily zoom in on a particular (non-)State structural apparatus of power, and build a case theory upon it. The natural task of the Prosecution would be to identify and re-construct in abstracto the hierarchical structure that sustained the commission of crimes, and to translate it into respective responsibilities of criminal participants in concreto. Terms such as ‘organised apparatus’ and ‘hierarchical criminal network’ are common languages replete in the work of the Prosecution and Chambers. Read the rest of this entry…

 
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The Katanga and Al Mahdi Appeals Judgments and the Right of Access to Justice for Victims: Missed Opportunity?

Published on April 9, 2018        Author: 

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On 9 March 2018, the International Criminal Court (ICC) Appeals Chamber rendered two judgments on reparations, namely the Al Mahdi and Katanga cases. The general principles and approaches of ICC reparations have been previously addressed in this blog (here and here). This time, the two appeals judgments were the first occasions for the Court to review the right of access to justice for victims during these reparations proceedings. InAl Mahdi, the Trial Chamber delegated the task of eligibility screening to the Trust Fund for Victims (TFV), thereby allegedly failing to accord victims a right to judicial assessment of their applications for reparations by a competent tribunal. In Katanga, it was argued that the right of victims to receive continuous legal representation was essential for a meaningful and practical right to claim reparations, given the complexity of the proceedings.    

At the outset, both rights to judicial assessment by a tribunal and to legal representation come within the purview of the right of access to justice, a right guaranteed in international human rights instruments (ICCPR article 14(1); ECHR article 6(1); ACHR article 8(1); ACHPR article 7(1)). The purpose of this post is not to say that the appeals judgments were incorrect in affirming the Trial Chamber’s decisions on these issues because the rights of victims had been violated. Rather, it takes a helicopter view on the way these issues have been dealt with. Whereas the Al Mahdi judgment recognises that the judicial assessment of reparations must ultimately be before trial chambers, the Katanga judgment dodged the relevance of continuous legal representation of victims to their right of access to justice during the reparations proceedings.

Bearing in mind that chambers are obliged to ensure the compliance of international human rights law (Rome Statute, article 21(3); ICC Rules of Procedure and Evidence, Rule 97(3)), both judgments may have indicated a judicial practice of non-interventionism within the Court by over-relying on procedural discretions.

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