magnify
Home Posts tagged "International Criminal Court"

Rome Statute at 20: Suggestions to States to Strengthen the ICC

Published on August 6, 2018        Author:  and
Twitter
Facebook
Google+
LinkedIn
Follow by Email

This year marks the 20th anniversary of the adoption of the Rome Statute, the treaty that established the International Criminal Court (ICC, Court), the world’s only permanent tribunal with a mandate to investigate and prosecute genocide, crimes against humanity, war crimes, and the crime of aggression. The euphoria that greeted its adoption has been tempered by an appreciation of its limits. Disappointment with the Court’s record has led to pessimism about the future of international criminal justice generally. Critics point out that the ICC has spent nearly US$1.5 billion since it began operations in 2002 and, in that time, convicted just three people on charges of war crimes and crimes against humanity.

The truth is more nuanced

But the ICC is more active, and its cases more complex, than many of its critics realize. The ICC has brought cases against 42 individuals, resulting in eight convictions (five for witness tampering). Cases have failed, for a variety of reasons – including state obstruction of access to evidence, and bribery and intimidation of witnesses – at the pre-trial, trial and appeal stages. Four persons are currently on trial; another is in ICC custody at the confirmation of charges stage. A large proportion of those charged are fugitives.

Another key point is that the ICC is a court of last resort. It does not have primacy of jurisdiction like the tribunals for the former Yugoslavia (ICTY), Rwanda (ICTR), Sierra Leone (SCSL), and Cambodia (ECCC). Instead, the ICC’s guiding principle is complementarity: it will not intervene if a State is genuinely investigating or prosecuting. So, by design, the ICC’s duty to investigate and prosecute is deferential to domestic jurisdictions, which can result in challenging circumstances for all involved. Unlike predecessor tribunals, the Office of the Prosecutor (OTP) must devote considerable resources to encouraging, and assessing the progress of, domestic legal processes.

The Court carries a heavy workload and is forced to spread its resources thinly. Whereas the ICTY, ICTR, SCSL and ECCC had scores of lawyers and analysts poring over evidence from one conflict, the ICC has to deal with many. It is currently carrying out “preliminary examinations” in Afghanistan, Colombia, Gabon, Guinea, Iraq, Nigeria, Palestine, the Philippines, Ukraine and Venezuela. It is conducting investigations in Uganda, the DRC, Darfur, the Central African Republic (CAR), Libya, Côte d’Ivoire, Mali, Georgia and Burundi. Each requires mastering a complex conflict with shifting alliances, an array of State and non-State actors, and dozens of societal factors central to a proper contextual understanding. Each requires gaining access to reliable evidence necessary to determine which party is responsible for which crimes, and whether the state is genuinely investigating or prosecuting. This requires a great deal of diplomatic engagement with numerous States. Read the rest of this entry…

 

Time to Investigate European Agents for Crimes against Migrants in Libya

Published on March 29, 2018        Author: , and
Twitter
Facebook
Google+
LinkedIn
Follow by Email

In March 2011, the ICC Office of the Prosecutor of the international criminal court opened its investigation into the situation in Libya, following a referral by the UN Security Council. The investigation concerns crimes against humanity in Libya starting 15 February 2011, including the crimes against humanity of murder and persecution, allegedly committed by Libyan agents. As the ICC Prosecutor explained to the UN Security Council in her statement of 8 May 2017, the investigation also concerns “serious and widespread crimes against migrants attempting to transit through Libya.” Fatou Bensouda labels Libya as a “marketplace for the trafficking of human beings.” As she says, “thousands of vulnerable migrants, including women and children, are being held in detention centres across Libya in often inhumane condition.” The findings are corroborated by the UN Support Mission in Libya (UNMSIL) and the Panel of Experts established pursuant to Resolution 1973 (2011). Both report on the atrocities to which migrants are subjected, not only by armed militias, smugglers and traffickers, but also by the new Libyan Coast Guard and the Department for Combatting Illegal Migration of the UN-backed Al Sarraj’s Government of National Accord – established with EU and Italian support.

These acts are not usually regarded as the bread and butter of international criminal law. Yet, for influential observers, they have seemed to reinstitute a modern form of slavery and to conjure images of mass arbitrary killings reminiscent of atrocity. For example, in a statement from November 22, 2017, French President Emmanuel Macron invoked slavery, explaining that trafficking in Libya has become a crime against humanity. For its part, the International Organisation for Migration, via its Missing Migrant project, has documented 46,000 cases of dead or missing worldwide since 2000.

During the whole time, however, various observers have pointed to the complicity of European countries with the relevant acts. Since 2011, Forensic Oceanography has been doing important investigative work in which the ethically fraught European involvement in preventing migration from Libya has been unfolded. Amnesty International has exposed a dark web of collusion, whereby EU states and Italy in particular have used Libyan militia to ensure migrants do not make it across the Mediterranean. Last December, John Dalhuisen, Amnesty International’s Europe Director, denounced European governments for:

“not just be[ing] fully aware of these abuses; by actively supporting the Libyan authorities in stopping sea crossings and containing people in Libya, they are complicit in these abuses.”

In perhaps the most recent evidence of such complicity, Italian authorities have seized the Spanish NGO rescue boat Open Arms and initiated a criminal investigation against members of its crew. The Open Arms, in response to a call from MRCC Rome of March 15, 2018, had rescued 218 people on the high seas and subsequently refused to deliver them to the (so-called) Libyan Coast Guard. After a row lasting several hours and including death threats, the vessel headed north for a medical evacuation in Malta, before requesting permission to disembark in Sicily. Despite Italy’s authorization, the captain and mission coordinator have been charged on counts of “criminal association” and “facilitation of irregular migration”. Italy claims they were obliged to hand over the survivors to Libya under its NGO Code of Conduct, disregarding that that would have amounted to refoulement. Italy thus flouted the requirement of delivery to a “place of safety” under the maritime conventions. It has become overwhelmingly clear that Libyan rescue operations in the Mediterranean are tantamount, as Charles Heller put it, to a plan of “rescue at gunpoint.”

Read the rest of this entry…

 

Formal, Functional, and Intermediate Approaches to Reparations Liability: Situating the ICC’s 15 December 2017 Lubanga Reparations Decision

Published on January 4, 2018        Author:  and
Twitter
Facebook
Google+
LinkedIn
Follow by Email

On 15 December 2017, the International Criminal Court (ICC) Trial Chamber II found Thomas Lubanga Dyilo, former President and Commander-in-Chief of the UPC/FPLC, responsible for reparations in the amount of USD 10,000,000 — the largest ICC reparations order issued to-date. The Lubanga case was the first to reach the reparations stage — yet controversy surrounding procedural requirements delayed the Chamber’s determination of Lubanga’s monetary liability. Last month’s decision answered some of these procedural questions, and raised new ones. This piece breaks down Trial Chamber II’s 15 December 2017 decision, and situates it alongside Trial Chambers’ recent assessments of monetary liability in the Katanga and Al Mahdi cases. We suggest that we have now seen ICC Trial Chambers assess defendants’ monetary liability for reparations via formal, functional, and intermediate approaches.

Lubanga was convicted on 14 March 2012 of enlisting and conscripting children under the age of 15, and using them to actively participate in hostilities from 1 September 2002 until 13 August 2003. On 7 August 2012, Trial Chamber I delivered the ICC’s first-ever order for reparations, authorising only collective reparations. On 3 March 2015, the Appeals Chamber overturned part of the Trial Chamber’s decision and issued an amended order for reparations, giving a newly constituted Trial Chamber II (composed of Judges Brichambaut, Herrera Carbuccia and Kovács) the confined tasks of a) determining the amount for which Lubanga was responsible, and b) monitoring and overseeing the implementation of the order. In its Judgment and order, the Appeals Chamber did not identify the number of victims who suffered harm as a result of Lubanga’s crimes. Nor had Trial Chamber I provided a figure in its original Judgment, although it found the crimes were widespread.

As explained in an article published last year, heated procedural debates soon emerged, as Trial Chamber II and the Trust Fund for Victims (TFV) clashed in their understandings of their respective mandates: while the Chamber believed it needed to identify and “approve” victims entitled to reparations as a prerequisite to determining Lubanga’s monetary liability, the TFV believed this was unnecessary, and something the TFV should do during implementation (the TFV had estimated there were 3,000 potentially eligible victims). Similarly, while the Trial Chamber believed that it needed to determine the extent of the harm caused to victims to establish Lubanga’s liability, the TFV thought that the extent of the harm was already described adequately in the Judgment, Sentencing Decision, and decisions on victims participation. However, in what appeared to be a change of its original position, the Trial Chamber acknowledged mid-proceedings that the victims identified by the TFV were a sample, but did not comprise the totality, of victims potentially eligible for reparations, namely those who suffered harm as a result of the crimes for which Lubanga was convicted. This shift proved foundational to the Trial Chamber’s 15 December 2017 decision. Read the rest of this entry…

 
Comments Off on Formal, Functional, and Intermediate Approaches to Reparations Liability: Situating the ICC’s 15 December 2017 Lubanga Reparations Decision

Election Rules for ICC Judges: A Balanced Bench Through Quasi-Quotas

Published on December 4, 2017        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

At its 16th session starting today (Monday 4 December) in New York, the ICC Assembly of States Parties (ASP) will proceed to elect six new judges for the Court. In doing so, the ASP will follow a special procedure that has no precedent in any other international organization, and probably also not in any domestic context. Among the election officers of ICC States Parties, these rules are primarily known for being complicated, to put it mildly. What gets less attention though is the fact that these rules have also been quite successful in achieving their goal: namely of nudging States Parties toward electing a bench of judges that is balanced in terms of regional representation, gender, and legal expertise.

In previous years, I have had the pleasure of facilitating the review of these rules (which resulted in only minor adjustments). In that context, I was tasked to prepare an informal guide to the election rules, so that they could be more easily understood. Pasted below is the brief explanation of the election procedure contained in the guide, which also contains a more detailed commentary of specific provisions.

The idea behind the system (originally developed by my predecessor as legal advisor to the Mission of Liechtenstein in New York, Jonathan Huston) is quite intriguing. It came up as delegations at the ICC PrepComm – tasked with preparing the ground for the future sessions oft he ASP – were deeply divided over how to design the election rules for judges. Some wanted quotas for regions (as is the case for many UN bodies), some wanted additional gender quotas. Others wanted no such restrictions. And then there was also the binding requirement of the Rome Statute to elect a minimum number of judges with certain expertise (criminal law vs. International law). Read the rest of this entry…

 
Comments Off on Election Rules for ICC Judges: A Balanced Bench Through Quasi-Quotas

International and Domestic Implications of South Africa’s Withdrawal from the ICC

Published on October 24, 2016        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

In the early hours of Friday 21 October 2016, it was revealed that the South African Minister of International Relations and Cooperation had issued official notification of South Africa’s withdrawal from the International Criminal Court (a copy of the instrument of withdrawal can be seen here). This was received by the UN Secretary-General, starting the prescribed 12-month notice period for withdrawal from the Court (Article 127 of the Rome Statute). This announcement came as a shock to many in the legal community in South Africa and abroad. While the South African government had expressed unhappiness with the Court, and had previously threatened withdrawal, there was no public indication that an official decision to withdraw had been taken, nor had any public consultation taken place on the matter in Parliament or elsewhere.

This decision will have significant implications for the legal landscape in South Africa, and likely also for the position of other African States in the ICC. It is also possible that it will lead to the fundamental weakening of the ICC itself. Here I consider various implications of this sudden announcement, both from the domestic South African and international perspectives. First, I address the status of the instrument of withdrawal in international and domestic law. I then look at the impact of withdrawal for the enforcement of international criminal law in South Africa. Finally, I address some possible consequences for the ICC itself.

Is it Legal?

The first question is whether the notice of withdrawal signed by the Minister is lawful, from the lenses of international and domestic law, given that this was a purely Executive act that was not preceded by any form of public or parliamentary consultation, let alone approval. Similar questions arise in the context of the Brexit ‘Article 50’ debate. While it seems that the instrument of withdrawal is likely sufficient to take effect in international law, it is doubtful that the domestic legal requirements have been adhered to. Read the rest of this entry…