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Home Posts tagged "complementarity"

Colombia: Time for the ICC Prosecutor to Act?

Published on April 2, 2019        Author:  and
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The controversy evolving around the role and competence of the Colombian Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, SJP) has reached a new peak: Colombian President Iván Duque initiated a frontal attack against the Jurisdiction’s statutory law that goes beyond all previous assaults directed against the country’s Transitional Justice (TJ) system. We argue in this post that the current developments are an alarming threat to the Colombian peace process, and that President Duque’s most recent intent to impede the proper functioning of SJP has the potential to challenge any meaningful existence of that jurisdiction. Ultimately, we argue that this highly critical situation could (and probably should) prompt the Prosecutor of the ICC to take action.      

Previous attempts to weaken the Transitional Justice Process

It is not the first time that President Duque has attempted to undermine the country’s TJ-process. During his election campaign in August 2018, he announced that he would seek amendments to the Final Peace Agreement which was reached in 2016 between the Colombian government  and the Revolutionary Armed Forces of Colombia – Peoples Army (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo, FARC-EP). After his election, Duque’s parliamentary group in the Colombian Congress (Centro Democrático, CD) has turned his words into action launching a proposal for a constitutional amendment that would deny all TJ-organs (including the SJP) access to confidential information affecting national security. The proposal would inhibit the work of all TJ-mechanisms and thus amounts to a frontal attack on the whole system, as has been commented in a previous post.

In October 2018, a new proposal issued by the Colombian Congress suggested the creation of special chambers within the SJP with the sole competence to try members of the Colombian Armed Forces. As a sort of military jurisdiction, whose impartiality and independence is more than questionable, it would unduly privilege members of the Armed Forces involved in international crimes. Thereby, it further threatens to undermine the SJP’s crucial function as the single mechanism responsible to bring all parties of the conflict to justice.

Even though the Colombian Congress has not adopted both proposals so far, they evince the government’s obvious intent to undermine the SJP’s constitutional framework and hinder its proper functioning.

The latest attack on the Special Jurisdiction for Peace

On 10 March, the government doubled down on its attempts to derail Colombia’s TJ-system: President Duque partially objected to the Statutory Law on the Administration of Justice of the SJP Read the rest of this entry…

 

A Complementarity Toolkit?

Published on December 10, 2018        Author: 
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Editor’s Note: This post is part of our Joint Symposium with Justice in Conflict on Human Rights Watch’s Report, Pressure Point: The ICC’s Impact on National Justice 

In the long-term, bolstering national proceedings is crucial in the fight against impunity for the most serious crimes, and is fundamental to hopes for the ICC’s broad impact. It can also restore trust in national institutions, which have been severely damaged or have failed completely in a context of armed conflict or systematic repression.

A recent Human Rights Watch report provides a detailed examination of how the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) can trigger domestic investigations and prosecutions into serious crimes, looking at Colombia, Georgia, Guinea and the United Kingdom as case studies. The report discusses a range of practical actions that the OTP can take as part of its complementarity activities during the admissibility phase of its analysis, and how these actions have played out in various contexts.

In and of itself, the report is a fascinating and useful overview of the chronology of the OTPs engagement in Colombia, Georgia, Guinea and the United Kingdom, with insights and analysis from individuals who played a role in each situation – insider accounts from civil society activists, officials from national prosecuting and judicial authorities, diplomats, and OTP staff.

One of the most enlightening elements that comes out from Human Rights Watch’s research is the detailed examples of various actions that the OTP has taken in different situations. Drawing them out and compiling them, it is striking that they comprise a coherent and practicable toolkit of complementarity measures. They also fall squarely in line with the steps that national prosecutors have to take to retain control over proceedings in their countries. Broadly speaking, they fall into five steps — Read the rest of this entry…

 
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Complementarity (in)action in the UK?

Published on December 7, 2018        Author: 
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Editor’s Note: This post is part of our Joint Symposium with Justice in Conflict on Human Rights Watch’s Report, Pressure Point: The ICC’s Impact on National Justice 

In response to the 2014 re-opening of an International Criminal Court (ICC) preliminary examination into the situation in Iraq, Britain put in place legal measures to address the alleged crimes committed by UK forces in Iraq currently being examined by the ICC. These measures include a specialized investigatory unit, known as the Iraq Historic Allegations Team (IHAT), replaced last year by a smaller service police investigation, known as SPLI. British authorities argue that their efforts represent “a clear demonstration of complementarity in action”, therefore precluding an ICC investigation.

In Pressure Point – a recent research report by Human Rights Watch (HRW) investigating the claims made about positive complementarity in four case studies, including the Iraq / UK situation – HRW rightly paints a more murky picture of the legal processes in Britain as well as the ICC’s ability to influence them. Indeed, HRW observes that legal responses in Britain have been “piecemeal, ad-hoc, and almost exclusively driven by the efforts of individual victims, their families, and legal representatives”. It also concludes that the ICC’s examination “neither catalyzed national investigative activities in the UK, nor impacted the existing domestic structure established to address allegations of abuses by British armed forces in Iraq” in any significant way. My own research similarly points to significant challenges in making positive complementarity work in the Iraq / UK situation.

In this post, I consider some of the key challenges for ensuring positive complementarity in Britain and reflect on what this tells us more broadly about the ICC’s complementarity regime. Read the rest of this entry…

 

Joint Symposium with Justice in Conflict on Human Rights Watch’s Report on The ICC’s Impact on National Justice

Published on December 6, 2018        Author:  and
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While investigations by the International Criminal Court (ICC) have received the lions’ share of attention and scrutiny from scholars and observers, there has been a growing interest in the impact of the ICC’s preliminary examinations. The preliminary examination stage requires the ICC Prosecutor to ascertain whether alleged crimes fall within the Court’s jurisdiction, whether the crimes are of sufficient gravity to warrant investigation, whether there are ongoing proceedings related to those alleged crimes, and whether an investigation into alleged atrocities would be in the “interests of justice”. If the answer to each is ‘yes’, then the Prosecutor can seek an official investigation.

There are currently ten open preliminary examinations across four continents: Afghanistan, Colombia, Guinea, Iraq/UK, Nigeria, Palestine, the Philippines, Bangladesh/Myanmar, Ukraine, and Venezuela. But what have the political and legal impacts of these preliminary examinations been? Have they galvanized greater interest in achieving accountability? What lessons can be drawn from preliminary examinations to date in order to improve the prospects of justice?

To answer these and other questions, EJIL:Talk! and Justice in Conflict are delighted to host a discussion of the Human Rights Watch report, Pressure Point: The ICC’s Impact on National Justice – Lessons from Colombia, Georgia, Guinea, and the United Kingdom, and of ICC Preliminary Examinations more generally.

The symposium coincides with the Assembly of States Parties (ASP) to the ICC, which begins its annual session this week. One of the highlights of the ASP is the release of the Office of the Prosecutor’s (OTP) 2018 Report on Preliminary Examination Activities. The report summarises the activities of the Office with regard to situations which are under preliminary examination by the Prosecutor.  

Read the rest of this entry…

 
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The Duty to Investigate Civilian Deaths in Armed Conflict: Looking Beyond Criminal Investigations

Published on October 22, 2018        Author: 
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Writing in the Times last Friday, General David Petraeus, former commander of US Central Command, added his voice to the familiar refrain that ‘European human rights law’ has given rise to the ‘judicial pursuit of British soldiers and veterans’. Petraeus may be correct in stating that the British emphasis on criminal investigations would never obtain in the US, but looking at some of the legal issues behind his claims undercuts his assumption that ‘restoring the primacy of the law of armed conflict’ would remove scrutiny over the actions of military personnel on the battlefield.

A year after the winding up of the Iraq Historic Allegations Team (IHAT), the controversies over accountability for the UK’s military action in Iraq certainly show few signs of going away. Sections of the press continue to mount a vociferous campaign against the residual work of the Iraq Fatality Investigations (IFI), while calls for investigations into alleged civilian fatalities from more recent UK military action over Mosul are growing.

I reflected on this experience in the course of completing a chapter on international legal obligations to investigate civilian deaths for a new book just published, The Grey Zone: Civilian protection between human rights and the laws of war. The many years of investigations in the UK have arguably resulted in a failure either to deal effectively with outstanding allegations or to deliver justice to many Iraqi victims. This perception may of course be influenced by continuing political disagreement over international military action in Iraq, but it also stems from the particular approach the UK has taken to investigating violations, including the heavy reliance on criminal law. In the current generation of devastating air campaigns, what lessons can be learnt?

UK practice

Beside the need to address public concern about the conduct of military action in Iraq, UK practice on investigations has been driven largely by duties under the International Criminal Court Act 2001 and the Human Rights Act 1998.

The UK’s approach was established early in Iraq (and later applied to UK operations in Afghanistan), with all incidents involving civilian casualties being referred for investigation to the Service Investigation Branch of the Royal Military Police. Comparing US military investigations with those of other states in Naval Law Review in 2015, Commander Sylvaine Wong of the US Navy JAGC noted that the UK had, ‘as a matter of domestic policy, taken the most dramatic steps to rely solely on criminal law enforcement investigations for incidences of civilian casualties.’ Read the rest of this entry…

 
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Another Challenge for Colombia’s Transitional Justice Process: Aggravated Differential Treatment between Armed Forces and FARC

Published on October 19, 2018        Author: 
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A new proposal for a constitutional amendment has caused another highly controversial debate in Colombia. The proposal foresees the creation of “special chambers” within the Colombian Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, SJP) with the exclusive competence to try members of the Armed Forces. Just a quick reminder: The Final Peace Agreement was concluded between the Colombian Government and the Revolutionary Armed Forces of Colombia – People’s Army (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo, FARC-EP) in November 2016. It introduced the SJP as the Peace Agreement’s single legal mechanism, responsible for bringing all parties to the conflict to justice. The new government and its party in the Colombian Congress (“Centro Democrático”) are keen to make some reforms to the SJP. A few weeks ago we have discussed here a proposal to radically limit the access of the SJP and other organs of the Colombian TJ System to information related to national security. The now proposed constitutional amendment is the result of a debate that had already started earlier this year at the time of the negotiations regarding the SJP’s Rules of Procedure and Evidence (RPE). It evolved around the introduction of Article 75 RPE which provides for a special procedure for the Armed Forces in relation to the crimes committed during the armed conflict. The rule was finally adopted and ultimately paved the way for this recent proposal.

The authors of the proposal (among them former President Alvaro Uribe Vélez, one of the Peace Agreement’s most vocal opponents) consider that the Armed Forces “have fought in the name and in favor of the legitimate State”, including those members  that committed crimes not eligible for amnesty; in contrast, the FARC are characterized as just a “criminal organization pursuing criminal purposes” (Explanatory Statement to the proposal (ES), p. 11 [all translations by the author]). The proposal’s aim is, of course, to strengthen the position of the Armed Forces, especially of those members involved in international crimes and thus possibly subject to national or international proceedings. However, as it stands the proposal will do a disservice to the Armed Forces which should rather stick to the existing mechanisms of the SJP in order to have higher security with regard to the International Criminal Court (ICC). For reasons of space, I cannot explain here the multiple problems of the proposal with regard to the current Colombian constitutional system (especially, but not exclusively regarding the SJP), and its international obligations (regarding the jurisprudence of the Inter-American Court of Human Rights, the ICC and under International Humanitarian Law). Instead, I will focus on the serious problem that the proposal creates for its presumed beneficiaries with regard to the preliminary examination undertaken by the ICC’s Office of the Prosecutor (OTP).

The proposal has implications for the application of the complementarity principle, which regulates the relationship between national jurisdictions and the ICC. 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: 
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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…