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Of Temporal Jurisdiction and Power Struggles in the ICC’s Palestine Investigation

Published on January 22, 2020        Author: 

 

It’s been five years since Palestine made the much-awaited move of requesting the International Criminal Court to investigate crimes allegedly committed by Israel “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.” Like last month’s decision of the Prosecutor announcing her intention to open an investigation, it was made public in the midst of the holiday season. At the time, Palestine invoked Article 12(3) of the Rome Statute – which gives a state not a party to the Rome Statute the right to accept the jurisdiction of the Court on a one-time basis. A day after it made this request, Palestine acceded to the Rome Statute. 

Shortly thereafter, I re-traced the steps taken by Palestine to gain access to the International Criminal Court up and until December 2014. Those steps were part of a wider effort to expand Palestine’s participation in international bodies, from UNESCO to WIPO and the International Court of Justice (first by appearing in the Wall advisory proceedings, later by bringing a contentious case against the United States).

That Palestine chose to make a declaration under 12(3) and accede to the Rome Statute was intriguing to say the least. The reason behind this double move by Palestine was, I argued, to be found in its impact on the temporal jurisdiction of the Court. Palestine sought to grant the Court with the broadest possible temporal jurisdiction, one that includes crimes committed before and after December 2014. This was a deliberate strategy, which bore its fruits in the Prosecutor’s recent decision.

Becoming a party to the Rome Statute granted the Court’s temporal jurisdiction vis-à-vis crimes committed after the entry into force of the Statute – in this case acts committed after April 1, 2015. The declaration made under Article 12(3) extended such jurisdiction to crimes committed between June 13, 2014 and April 1, 2015. This explains why Palestine was able to request the investigation of acts that occurred prior to April 1, 2015.

Read the rest of this entry…

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Alternative Charges and Modes of Liability in the Latest CAR Case at the ICC – Trouble Ahead?

Published on January 21, 2020        Author: 

 

On 20 December 2019, Pre-Trial Chamber II partially confirmed the charges against Alfred Yekatom and Patrice Ngaïsonna, two co-accused in the first case to arise from the Prosecutor’s investigation into the 2013 conflict in the Central African Republic. Notably, for numerous charged incidents the judges considered that the threshold of “substantial grounds to believe” was not established, mainly with regard to allegations against Ngaïsonna.

However, for the charges that were confirmed for trial, the decision’s treatment of the charged modes of liability raises some curious eyebrows. Two aspects stand out. First, the Chamber’s treatment of alternative charging, and second, its handling of the principal mode of liability under the Rome Statute, article 25(3)(a). Upon closer examination, the Chamber’s interpretation and application of the law in these two aspects represents a sharp turn away from existing jurisprudence, and arguably erodes the coherence of the charges. Consequently, the confirmation decision – which is supposed to provide clarity for the parties at trial – creates more uncertainty by pushing to the Trial Chamber issues that would be better resolved at this stage. This post considers how both of these areas were dealt with by the Pre-Trial Chamber, and how the trial may be affected going forward.

Alternative Charging

In the Document Containing the Charges (“DCC”), the Prosecution charged modes of liability in the alternative, arguing that where evidence establishes multiple legal characterisations of the same facts, “it is appropriate that charges be confirmed under all substantiated modes of liability, and left to the Trial Chamber to determine which of those legal characterisations meets the standard of proof at trial.” (para. 625)

In the present case, the full array of modes were alleged: Ngaïsonna was charged under article 25(3)(a), (c) and (d), i.e., as a direct co-perpetrator, assisting and/or through common purpose liability. Yekatom was charged under article 25(3)(a), (b), (c) and (d), i.e., as a direct and indirect co-perpetrator, ordering, assisting, and/or common purpose liability, as well as command responsibility under article 28 (see pp. 136-164 of the DCC for a helpful breakdown of the alleged modes per incident).

For charges that were confirmed, the judges declined to confirm all of the pleaded modes. For example, with regard to Yekatom, where the evidence established responsibility under article 25(3)(a) or (b), the Chamber repeatedly deemed it “unnecessary” to subsequently address responsibility under (c) or (d). (see e.g., paras. 99-100)

However, the rejection of (c) and (d) appears conceptually misplaced. If the criminal contribution of a suspect is deemed to be evident in the sense of article 25(3)(a), then such a contribution could likewise be legally characterised in the sense of (c) or (d), as “assisting” or as “any other contribution.” The Chamber does not engage with the consistent jurisprudence which has permitted alternative charging of modes, nor does it refer to the Chambers Practice Manual (updated recently in October 2019) that expressly endorses it, and which warns – as academics and dissenting judges previously have – of the spectre of Regulation 55:

In the charges, the Prosecutor may plead alternative legal characterisations, both in terms of the crime(s) and the person’s mode(s) of liability. In this case, the Pre-Trial Chamber will confirm alternative charges (including alternative modes of liability) when the evidence is sufficient to sustain each alternative. It would then be the Trial Chamber, on the basis of a full trial, to determine which one, if any, of the confirmed alternative is applicable to each case. This course of action should limit recourse to Regulation 55 of the Regulations, an exceptional instrument which, as such, should be used only sparingly if absolutely warranted. In particular, it should limit the improper use of Regulation 55 immediately after the issuance of the confirmation decision even before the opening of the evidentiary debate at trial. (emphasis added) (Chambers Practice Manual, 2019, para. 67).

With respect to Yekatom, the Chamber also declined to confirm article 28, the mode of command responsibility, noting that “the narrative of the relevant events as emerging from the available evidence is such that Yekatom’s conduct resulted in the realisation of the objective elements of the crimes, rather than only consisting in the mere failure to prevent or repress crimes committed by other persons.” (para. 58) Again, the Chamber’s approach here is conceptually askew. A commander can actively engage in criminal conduct, while also failing to repress the crimes of their subordinates, or to later refer them to the competent authorities for investigation. This logic was noted by the Pre-Trial Chamber in Ongwen, where, faced with a similar situation, nevertheless retained article 28 on the docket (Ongwen Confirmation Decision, para. 147). Read the rest of this entry…

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Playing Safe or Hide and Seek? The ICC Prosecutor’s Request for a Ruling on the Court’s Territorial Jurisdiction in Palestine

Published on January 10, 2020        Author: 

 

On 20 December 2019, the Office of the Prosecutor (OTP) of the ICC issued a Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine (“Prosecution request”). The request by Fatou Bensouda’s office was filed on the same day as the publication of a detailed memorandum drafted by the Office of the Attorney General for the State of Israel (“OAG’s memorandum”), outlining the reasons why the ICC has no jurisdiction over Palestine. In a nutshell, the 34-pages memorandum argues that in the situation in the State of Palestine the fundamental precondition to jurisdiction enshrined in the Rome Statute – namely, that a State having criminal jurisdiction over its territory and nationals has delegated such jurisdiction to the Court – is clearly not met. The ICC Prosecutor presents a contrary view. Whilst the Prosecutor believes that the Court does indeed have the necessary jurisdiction in this situation, she is “mindful of the unique history and circumstances of the Occupied Palestinian Territory” (i.e. the Prosecutor considers that the Court’s territorial jurisdiction extends to the Palestinian territory occupied by Israel during the Six-Day War in June 1967, namely the West Bank, including East Jerusalem, and Gaza; this territory is delimited by the “Green Line” agreed on in the 1949 Armistices), and “seek[s] judicial resolution of this matter at the earliest opportunity” (§§ 3-5 of the Prosecution request). Without hoping to provide an exhaustive overview of the complex issues at stake, it is worth taking a closer look at the OTP’s request to Pre-Trial Chamber I (PTC I) and sharing some initial thoughts on its possible outcomes.

Background of the Prosecution request

As is well known, on 1 January 2015 the Government of Palestine lodged a declaration under Article 12(3) of the ICC Statute accepting the Court’s jurisdiction over alleged crimes committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014”. On 2 January 2015, the Government of Palestine acceded to the Rome Statute by depositing its instrument of accession with the UN Secretary-General. Following the accession, the Rome Statute entered into force for the State of Palestine on 1 April 2015. On 16 January 2015, the OTP opened on its own initiative a preliminary examination into the situation in Palestine. On 22 May 2018, Palestine also referred this situation to the Prosecutor, pursuant to Articles 13(a) and 14 of the Rome Statute. The preliminary examination into the situation in Palestine resulted in the determination that all the statutory criteria under the Rome Statute for the opening of an investigation have been met(ish?). Read the rest of this entry…

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Time to fix the Rome Statute and add the crime of starvation in non-international armed conflicts!

Published on December 3, 2019        Author: 

This week the Assembly of State Parties to the Rome Statute of the International Criminal Court (ASP) meets in The Hague for its 18th session. On the agenda is the Swiss proposal to amend Article 8 (“War crimes”) of the Rome Statute by adding a non-international armed conflict version of the war crime of starvation of civilians as a method of warfare. The present post discusses the Swiss proposal and explains why it is high time to amend the Rome Statute as per the Swiss proposal, and that in fact the drafting history of the Statute shows that the omission to include this crime into Article 8(2)(e) was accidental, making it even more important to now fix this mistake.

In 1998, the States negotiating the Rome Statute included the war crime of “[i]ntentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions” in Article 8(2)(c), a paragraph that lists “serious violations of the laws and customs applicable in international armed conflict”, “[o]ther” than the grave breaches of the 1949 Geneva Conventions included in the first paragraph, which also concern international armed conflict (IAC). As readers will know, the question whether the Rome Statute should include war crimes committed in times of non-international armed conflict (NIAC) was hotly debated by the delegates in Rome. Fortunately, with the ICTY’s case law and the scope of the ICTR Statute having paved the way, the States reached consensus to include NIAC war crimes. Violations of Common Article 3 to the 1949 Geneva Conventions were listed in Article 8(2)(c), and a large number of the ‘other serious violations of the laws and customs applicable in times of international armed conflict’, listed in Article 8(2)(b) of the ICC Statute, were reproduced in Article 8(2)(e), which relates to NIAC. However, among the crimes that were not reproduced was the war crime of starvation and impeding humanitarian access.

The failure to do so has been criticised for good reason (e.g., Werle, Kress, and more recently, Bartels, and D’Alessandra and Gillett). In addition to the war crimes related to prohibited weapons (addressed below), the only other violations not included for NIAC are the conduct of hostilities crimes Article 8(2)(c)(ii), intentionally directing attacks at civilian objects, Article 8(2)(b)(iv), the crime of causing excessive collateral damage, and Articles 8(2)(viii), (xiv), and (xv). The last three provisions deal with occupation and “nationals of the hostile party”, and therefore obviously do not have a NIAC equivalent. The Additional Protocol I general prohibition to attack civilian objects and the prohibition to launch attacks that may be expected to cause incidental damage that would be excessive in relation to the concrete and direct military advantage anticipated, which both apply during IACs, do not appear in Additional Protocol II relating to NIACs. As a result, it was hard in 1998 for the proponents of a more extensive set of NIAC crimes to argue that these prohibitions constituted customary IHL also in time of NIAC, and no NIAC versions of these war crimes were included in Article 8 (see Bartels, pp 292-293). However, the foregoing makes the omission of a NIAC crime of starvation all the more puzzling, because Additional Protocol II does explicitly prohibit the starvation of the civilian population.

Read the rest of this entry…

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The Gambia’s gamble, and how jurisdictional limits may keep the ICJ from ruling on Myanmar’s alleged genocide against Rohingya

Published on November 21, 2019        Author: , and

 

On 11 November, The Gambia filed an Application instituting proceedings and requesting provisional measures at the International Court of Justice (ICJ) in relation to the genocide allegedly committed by Myanmar against the Rohingya (for a first analysis of the Application, see this post by Priya Pillai). As notably reported by The New York Times and The Washington Post, the application is at least in part a personal quest for justice by The Gambia’s Minister of Justice and Attorney General, Abubacarr Marie Tambadou, who acts as The Gambia’s Agent and previously worked for the prosecutor of the International Criminal Tribunal for Rwanda. The Gambia’s application is backed by the Organisation of Islamic Cooperation (of which The Gambia is a member) and its legal team is led by the US law firm Foley Hoag (see here). As we will argue below, the peculiar origins of this quest for justice may well be determinative for the establishment of the ICJ’s jurisdiction.

Regarding the atrocities committed against the Rohingya, the UN Human Rights Council’s Independent International Fact-Finding Mission on Myanmar has found ‘that the factors allowing the inference of genocidal intent are present’ (see here, para 1441). While there appears little reason to disagree with the Fact-Finding Mission’s conclusion, in this post we will not examine substantively whether the atrocities complained of constitute genocide. Instead, we will briefly sketch why it makes sense for The Gambia to seize the ICJ while proceedings relating to the Rohingya are already going on at the International Criminal Court (ICC), after which we will address the request for provisional measures.

Different nature of the ICJ and ICC Proceedings

Just three days after The Gambia submitted its application to the ICJ, Pre-Trial Chamber III of the ICC authorized the Prosecutor to investigate the situation in Myanmar/Bangladesh (see here). As Myanmar is not a party to the Rome Statute, and as the position of China and Russia make a UN Security Council referral highly unlikely (see eg here), the Prosecutor has opened an investigation on her own initiative. The investigation ‘geographically’ focuses on Bangladesh, Myanmar’s neighbouring country to which over 742.000 Rohingya refugees have fled (see here). Bangladesh is a party to the Rome Statute, and accordingly provides a jurisdictional link to the Court. Read the rest of this entry…

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Part II: What can be done about the length of proceedings at the ICC?

Published on November 18, 2019        Author:  and

 

Editor’s note: This is Part II of a two-part post. See Part I here.

Recent improvements

In recent years, the Assembly of States Parties, Presidency, Chambers, Registry, and Office of Prosecutor have all made efforts to make the ICC proceedings more efficient.

Back in 2010, the Assembly of States Parties established the Study Group on Governance to expedite the proceedings, and enhance the ICC’s efficiency and effectiveness. In 2012, the ICC created the Working Group on Lessons Learnt to take stock of existing practices and consider measures for improvement. These two groups have, together, galvanised other efforts to tackle the issue. Such efforts include proposing amendments to the Rules of Procedure and Evidence, in particular rules 132 bis and 68, later adopted by the Assembly of States Parties.

By a resolution in December 2014, the Assembly of States Parties requested the development of qualitative and quantitative performance indicators for the Court. The first report on performance indicators was published in November 2015 with the stated goal that ICC proceedings should be “expeditious, fair and transparent at every stage”. It identified ten non-exhaustive factors as likely to affect the length of proceedings. It suggested that these factors could be used to provide benchmark estimates for the likely duration of cases and that the degree of variance from such benchmarks would be the eventual performance indicator. The 2015 report identified three other areas of concern: the interstitial periods between different stages of the proceedings, judicial reaction time in providing decisions on filings, and the fullest possible use of the courtrooms. Read the rest of this entry…

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Part I: What can be done about the length of proceedings at the ICC?

Published on November 15, 2019        Author:  and

 

Editor’s note: this is Part I of a two-part post.

“Judgement does not come suddenly; the proceedings gradually merge into the judgement.”

Franz Kafka, The Trial

Jean-Pierre Bemba made his first appearance before the Pre-Trial Chamber in July 2008. His trial began in November 2010 and lasted four years. Two more years passed before the Trial Chamber found him guilty in March 2016. Another two years passed before the Appeals Chamber finally acquitted him in June 2018. He had been in custody for almost a decade. Other trials at the ICC have lasted nearly as long.

Long proceedings are not unique to the ICC. The most striking case must be the Nyiramasuhuko et al trial at the ICTR. There were six accused, arrested between 1995 and 1998. The trial began in June 2001. All six were convicted ten years later, in June 2011. Their appeals were not resolved until December 2015, by which time one of them had been in detention, awaiting the final resolution of proceedings, for twenty years.

The problem of lengthy criminal proceedings plagues domestic judicial systems, too. Indeed, a significant number of applications before the European Court of Human Rights (“ECtHR”) concern alleged violation of the right to a fair trial within a reasonable time under article 6 of the European Convention of Human Rights (“ECHR”). The extent of the problem in certain countries has prompted the ECtHR to resort to the so-called ‘pilot judgment’ procedure.

What is a reasonable length for criminal proceedings? Read the rest of this entry…

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Of Babies, Bathwater, and List B Judges at the International Criminal Court

Published on November 13, 2019        Author: 

 

The Open Society Justice Initiative recently released an excellent report on the selection of judges at the International Criminal Court (“Raising the Bar”). It is a detailed and thoughtful report combining often eye-opening interviews and desk scholarship. It makes a number of very important recommendations about improving the process by which ICC judges are nominated and elected. In this post, however, I wish to take issue with one of the report’s key recommendations. It is only one recommendation, but it is an idea which is increasingly frequently put forward in various fora as a sine qua non of effective International Criminal Court reform.

This is the suggestion that the only criterion for appointment to the ICC judiciary should be excellence in the practice of criminal law. Thus, the suggestion goes, the statutory provision that judges may be elected either on the basis of expertise in criminal law and practice (the “List A” judges) or expertise in relevant areas of international law and practice (the “List B” judges) should be abolished.

The Open Society Justice Initiative report certainly lends significant credence to the view that the List B route to the ICC bench has on occasion been used to appoint lawyers who have spent their career as diplomats and not prosecutors, defenders, judges, or scholar-practitioners.

However, the idea that a significant number of the Court’s woes would be corrected if only it were properly staffed with solid criminal law judges is, I think, overstated. Let’s briefly consider a few of the decisions of the Court which have been most maligned in recent commentary. Read the rest of this entry…

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The Other Poisoned Chalice: Unprecedented Evidentiary Standards in the Gbagbo case? (Part 3)

Published on November 6, 2019        Author: 

In this three-part series I seek to draw attention to legally-unprecedented and epistemologically-unsound evidentiary standards emerging at the ICC, particularly in the Gbagbo case.  The mainstream reaction to the Gbagbo case has been to accept the narrative that the problem lies entirely with evidence.  However, when the majority derides the “questionable quality of much of the evidence” (§1608), it speaks from a lens of Cartesian standards. If one reads the judgment instead through the lens of more typical legal standards, the evidence is harrowing.  Thousands of diverse items of evidence – eye-witnesses, videos, insiders, experts, and forensic and documentary evidence – attest to hundreds of instances of killing, wounding, raping, torturing and burning of civilians by police and other pro-Gbagbo forces.

At Nuremberg, Robert Jackson warned that giving the defendants an unfair trial would be a poisoned chalice for the tribunal itself.  My concern is that opposite extreme is also a poisoned chalice.  An exclusive focus on the interests of the accused, to the exclusion of all other considerations, leading to rarified and ungrounded standards, will also collapse the system.  If unchecked, these standards can only lead to repeated collapses of investigations and prosecutions.  We are at an interesting moment, because scholars are rightly warning against ‘crisis narratives’, and I myself have appealed for less alarmism.   Nonetheless I think that evidentiary standards are now one of the most crucial topics for study and reform.

The previous two posts (see Part I here and Part II here) gave only a cursory outline of problematic approaches to evidence and examples thereof. I will now touch on two related points, (1) evidentiary expectations for crimes against humanity and (2) investigative criticisms that overlook the applicable legal regime, and then I will conclude. Read the rest of this entry…

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The Other Poisoned Chalice: Unprecedented Evidentiary Standards in the Gbagbo Case? (Part 2)

Published on November 6, 2019        Author: 

My aim in this three-part series is to start a conversation about unusual and problematic evidentiary standards emerging at the ICC.  These standards flow from a commendable impulse to uphold the highest standards, but they entail an unprecedented and unattainable exactitude. In my view, if these standards take hold, they will result in the repeated crashing of complex cases, making them especially poorly suited for precisely the types of cases the ICC is mandated to deal with. 

In my view, the more common and appropriate approach, seen in national and international practice, is even-handed, holistic, experiential and practical.  The experiential approach draws on human experience.  It employs sound methods of reasoning, such as triangulation, extrapolation, interpolation, and inference to best explanation, and thus it is can work judiciously with patterns and inferences.  It is also practical: it bears in mind feasibility and procedural economy.

For brevity, I will call the alternative, emerging approach the “Cartesian” approach. I introduced its features in part 1 of this series, such as its hyperscepticality, atomism, and fixation with certainty and speculative doubts.  In this post I will give some additional examples of problematic evidentiary approaches as seen in the Gbagbo trial decision.  As the judgments are over 1300 pages, I am only able to outline some of the concerns and some examples in the most general and cursory.  My hope is to trigger an invigorated discussion of international criminal evidence law.

Read the rest of this entry…

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