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Home International Tribunals Archive for category "International Criminal Court" (Page 23)

Would the addition of a Genocide Charge to the Bashir Arrest Warrant Change the Position on Immunity?

Published on March 24, 2009        Author: 

The Pre-Trial Chamber of the ICC issued an arrest warrant for Sudanese President Omar Bashir only with respect to war crimes and crimes against humanity and rejected the Prosecutor’s request for a charge of genocide. Marko (and Kevin Jon Heller at Opinio Juris) have (rightly, in my view) criticized the reasoning by which the majority of the Chamber held that the materials provided by the prosecution failed to provide reasonable grounds to believe that Bashir and the Government of Sudan acted with the special intent to destroy the groups being targeted in Darfur. The Prosecutor has now appealed the decision of the PTC to reject the genocide charge. If the Appeals Chamber were to add the genocide charge to the arrest warrant, the decision would have an impact on whether other States may arrest Bashir. This is because it could then be argued that the genocide charge creates an obligation arising under the Genocide Convention 1948 for parties to that treaty to cooperate with the ICC, including an obligation of arrest.

 In the 2007 merits judgment in the Bosnian Genocide Convention Case, the International Court of Justice held (paras. 439-450) that the obligation to punish genocide contained in the Genocide Convention also includes an obligation to cooperate with competent international courts including an obligation to arrest persons suspected of genocide. In that case, the ICJ found that Serbia had violated this obligation by failing to arrest and surrender, to the ICTY, persons wanted by that tribunal in connection with the genocide in Srebrenica. The ICJ relied on Article VI of the Convention which provides that

 Persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

 The court implied an obligation on States to cooperate with such competent international tribunals and to arrest persons wanted by the tribunal when the State on whose territory the person is found has accepted the jurisdiction of that tribunal. Read the rest of this entry…

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Distinctions between the Legal Position of ICC Parties and Non-Parties Regarding Aggression

Published on March 21, 2009        Author: 

The International Criminal Court (ICC) recently released the latest report of the Special Working Group (of the Assembly of States Parties) on the Crime of Aggression.  Art. 5 of the ICC Statute includes the crime of aggression as one of the crimes within the jurisdiction of the Court. However, the Court may only exercise jurisdiction over it once a provision has been adopted defining the crime and setting out the conditions under which the Court shall exercise over it. In anticipation of the ICC Review Conference to be held in 2010, the Special Working Group has been developing proposals on aggression.  The latest report reveals that the members of the Group are largely agreed on the definition of the crime of aggression which is based on General Assembly Resolution 3314 (1974) on the “Definition of Aggression.” According to the definition proposed by the Group:

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.

“Act of aggression” is then said to mean:

the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: . . .

However, deep divisions remain over the role of the Security Council when attempts are made to invoke the jurisdiction of the ICC over aggression. In particular there is no agreement on whether the approval of the Security Council is required for the Prosecutor to proceed with an investigation regarding aggression and on whether a determination of aggression by the General Assembly or the International Court of Justice should suffice for the Prosecutor to proceed.  Questions also remain as to how the amendments regarding aggression are to become operatonal and as to whether the Security Council may refer a situation concerning aggression to the ICC before the entry into force of the amendments but after the Review Conference adopts a definition. The latter issue raises questions about the interpretation of Art. 121(5) of the Statute and whether there is a difference between the position of State parties and non-parties under the Statute. Read the rest of this entry…

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Who is Obliged to Arrest Bashir?

Published on March 13, 2009        Author: 

Last week, the International Criminal Court issued an arrest warrant for the Sudanese President, Omar Al Bashir. The Pre-Trial Chamber of the ICC directed the ICC Registry to transmit a request for arrest and surrender of Bashir to (i) all States Parties to the ICC Statute and (ii) all United Nations Security Council members that are not States Parties to the Statute. Does this mean that these States are under an obligation to arrest Bashir were him to travel to their territory? Are these States even permitted by international law to arrest Bashir? It remains to be seen whether Bashir would be bold enough to leave Sudan. For example would he attend the Heads of States meeting of the African Union or perhaps wish to attend the annual session of United Nations General Assembly in New York. Were Bashir to travel abroad, States, particularly non-parties to the ICC Statute (like Ethiopia and the United States) would be faced with these tricky questions

 The answer to these questions depend on the extent to which international law accords immunity to Heads of States and on the legal nature of Security Council referrals of situations to the ICC. Many have noted the significance of an international tribunal issuing an arrest warrant for a serving Head of State. Of course, this is not the first time that this has happened. The ICTY issued a warrant for Milosevic while he was head of the State of the Federal Republic of Yugoslavia and the Special Court for Sierra Leone indicted Charles Taylor while he was President of Liberia. Christine Chung notes in her post below that there has been no hand-wringing by other States about Bashir’s immunity and suggest that this is a matter of interest only to academics. States may not have commented on this issue but this is only because States have not as yet been faced with the question. States will only be faced with the question if Bashir travels abroad and they are called upon to arrest him. In that scenario, States will have to consider not only this particular case but also the precedents that they wish to set. They will also have to consider what obligations they may have under the ICC Statute, under other treaties (including the UN Charter) and under customary international law.

While, the ICC Pre-Trial Chamber implicitly answered one part of the immunity question in its decision, it has not disposed of the entire question. The Pre-Trial Chamber in para 41considered that

the current position of Omar Al Bashir as Head of a state which is not a party  to the Statute, has no effect on the Court’s jurisdiction over the present case.

The PTC reached this decision based on four considerations the most important of which are that: (i) Art. 27 of the ICC provides that the Statute applies equally to all persons without distinction based on official capacity and that immunities which may attach to official capacity under national or international law shall not bar the Court from exercising jurisdiction; and (ii) the Security Council by referring the Darfur situation to the Court has accepted that the investigation and prosecution shall take place in accordance with the framework set out in the Statute.

Implied in the Court’s statement is the view, that the Security Council has implicitly adopted Art. 27 and thus implicitly sanctioned the exercise of jurisdiction by the Court over a serving head of State who would otherwise be immune from jurisdiction. I do not disagree with this. Any other view would leave Article 27 without effect.

However, the Court does not have power of arrests. Unless Bashir surrenders voluntarily, it will have to depend on a State to arrest Bashir. The question that then arises is whether Bashir is immune from arrest by national authorities. Read the rest of this entry…

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Justice for Bashir: What’s Different Today?

Published on March 5, 2009        Author: 

Christine Chung is a Senior Fellow at the Schell Center for International Human Rights, Yale Law School where she teaches “The International Criminal Court: Prospects for Global Justice.” Ms. Chung was the first senior trial attorney appointed at the Office of the Prosecutor of the International Criminal Court and worked in The Hague from 2004 to 2007.

If you’re looking for the justification for the front-page media headlines about the ICC warrant naming Sudanese President Omar al-Bashir, there are two, to my mind. First, the world’s permanent international criminal court has charged a sitting head of State, and sister States aren’t close to hand-wringing over immunity. (My academic colleagues are a different matter – read, for example, Marko and Dapo). Yesterday’s decision might be the nail in the coffin of the era in which heads of State escaped being called to account for perpetrating atrocities.

Second, the decision of Pre-Trial Chamber I to decline to include the charge of genocide requested by Prosecutor Luis Moreno Ocampo (by a 2-1 vote) reinforced that pursuing a genocide charge is, for an international prosecutor, fraught with peril. The old legal issues of how to define an “ethnic” group and where to find the specific intent to destroy a group (in the usual case, where there is no direct evidence) were very much in evidence in the Chamber’s split opinions. On top of those, the Judges wrestled with questions about the degree to which the ICC should adopt or follow genocide jurisprudence from the ICJ and the ad hoc tribunals, the proper interpretation of the “reasonable grounds” standard applicable at the stage of evaluating a request for an ICC arrest warrant, and how to reconcile the Rome Statute provisions with the ICC Elements of Crimes. Bottom line: the need to settle the law of this new Court, if anything, further complicates the already extremely difficult business of proving genocide.

As fascinated as we lawyers are by judicial decision-making, though, it’s more important in Bashir’s case to identify what did not change yesterday. Read the rest of this entry…

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ICC Issues Arrest Warrant for Bashir, but Rejects the Genocide Charge

Published on March 4, 2009        Author: 

(Updated)

Today the International Criminal Court issues an arrest warrant for Omar al Bashir, the serving President of Sudan, for crimes against humanity and war crimes in Darfur. (The decision is now available here). The news were expected after a leak a few weeks ago. What came as a pretty big surprise, however, is that the Pre-Trial Chamber rejected the genocide charges against Bashir. Though many commentators, including myself, have expressed skepticism that the prosecution would be able to prove beyond a reasonable doubt the existence of genocide in Darfur at trial, the test for the issuance of an arrest warrant is much lower. Under Article 58(1) of the Rome Statute, all the prosecution had to prove to obtain an arrest warrant was that there were reasonable grounds for believing that the person in question committed the crimes charged.

It is a bit strange that the prosecution was unable to furnish such proof at this stage of the proceedings in respect of the genocide charge. Either that, or the judges themselves implicitly employed a higher standard. As a matter of policy, I certainly agree with the judges – it is better that the genocide charge is dropped now, than for a probable acquittal on the genocide charge to overshadow Bashir’s guilt on other charges after an eventual trial. Legally, however, the decision to reject the genocide charges could be somewhat suspect. (Similar thoughts from Kevin Heller, who rightly points out that the prosecution can appeal the PTC’s rejection of the genocide charge.)

Read the rest of this entry…

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