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Interests of Justice? The ICC urgently needs reforms

Published on June 11, 2019        Author: 
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The demands for an “independent evaluation” through a small group of experts, formulated by four former presidents of the Assembly of State Parties of the International Criminal Court (ICC) and accompanied by several critical blogs (see, inter alia, here, here, here and here) is the outcome of several controversial court decisions and the Court’s manifest problem in its decision-making process, i.e., its serious governance problems.

Probably the most controversial decision, made on 12 April 2019, concerns the rejection by Pre-Trial Chamber (PTC) II of the Prosecutor’s application of the initiation of a (formal) investigation into the Afghanistan situation involving crimes allegedly committed by the Taliban, Afghan and US military forces. The PTC based its decision on a broad interpretation of the ambiguous concept of “interests of justice” (Art. 53(1)(c) Rome Statute) and the expected lack of cooperation by Afghanistan and the USA, allegedly resulting in limited chances of a successful investigation. Thereby the Chamber converts the interests of justice concept into a utilitarian efficiency clause which is predicated on the possible success of the proceedings. Not only is this difficult to reconcile with the rationale of the said concept but also incompatible with the wording of Art. 53(1)(c) which links the “interest of justice” to, inter alia, the gravity of the crime and the interests of the victims. Yet, both of these criteria speak for the opposite result than that reached by the Chamber, namely the opening of the formal investigation. For the gravity of the crimes is acknowledged by the Chamber itself and the victims’ interests are reflected by the submission of information by hundreds of them during the preliminary examination. If a Chamber considers that despite the existence of gravity and interests of victims “an investigation would not serve the interests of justice”, i.e. “nonetheless” (Art. 53(1)(c)) the existence of these criteria, it must show that there are more important “substantial reasons” which displace the prima facie interests of justice (derived from gravity and victims’ interests) in favour of opening a formal investigation. In other words, while the term “nonetheless” makes clear that there may be countervailing considerations which may speak against the opening of an investigation despite gravity and victims’ interests, these countervailing considerations must be thoroughly substantiated and, at any rate, do not turn the interests of justice clause into a mere, free floating policy factor which gives a Chamber an unfettered discretion (see also Ambos, Treatise International Criminal Law Vol. III, 2016, p. 390). The present Chamber fails to grasp these complexities and therebyshows a lack of sensibility with regard to the “interests of justice” concept. Thus, it is not surprising that the decision has met serious criticisms in the international criminal law blogsphere (see here, here, here and here) and the Prosecutor filed a leave to appeal request on 7 June 2019. The most recent Appeals Chamber decision from the 6 May 2019, denying the personal immunity of the then Sudanese President Al-Bashir and interpreting the non-immunity rule of Art. 27 Rome Statute as one of customary law, has also received some criticism (see here and here) but ultimately deserves support (see here and here) since it confirms the historical (Nuremberg) trend of non-immunity in international criminal justice. Read the rest of this entry…

 

Reforming the International Criminal Court: Is it Time for the Assembly of State Parties to be the adults in the room?

Published on May 8, 2019        Author: 
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The self-inflicted misfortunes of the International Criminal Court continue. The recent Pre-Trial Chamber decision not to authorise the opening of an investigation in Afghanistan has already generated considerable controversy (see here, here, here, here and here). The rather surprising news that Judge Ozaki would be allowed to continue to serve part time on the Court while becoming Japan’s ambassador to Estonia has also drawn criticism. And, of course, on Monday the Al Bashir immunity decision was handed down. Amidst the hubbub, one other development has gone relatively unremarked. The first four presidents of the ICC Assembly of States Parties (ASP) have released a joint op-ed through the Atlantic Council entitled “the International criminal court needs fixing”. For present purposes, it is enough to note several key points.

The op-ed calls for “an independent assessment of the court’s functioning by a small group of international experts”. This call appears triggered by the Afghanistan decision which they see as expressing “a lack of confidence that the Court could successfully carry out the job.” The rest of the piece pursues two central points – and a cluster of worrying claims. Read the rest of this entry…

 

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…

 

The ICC’s Impact on National Justice: Can the ICC Prosecutor Catalyze Domestic Cases?

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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 

The International Criminal Court (ICC) is a court of last resort. Under the court’s treaty, the Rome Statute, which marks its 20th anniversary this year, the world’s worst crimes are admissible before the ICC only if national authorities do not genuinely investigate and prosecute cases. Far from simply a jurisdictional limitation, this principle of “complementarity” transforms the ICC from a single institution into a broader system for prosecuting international crimes, rooted in national courts.

Bolstering national proceedings is crucial to giving full effect to the Rome Statute system. It’s also necessary to broaden victims’ access to justice. The number of situations in which the ICC should act is probably far greater than the court’s founders envisioned. The ICC’s limited resources—provided all too sparingly by its member countries—mean it is struggling to keep up.

More attention should be paid to the ICC’s potential as an active player on national justice. Under the concept of “positive complementarity” it can serve as part of a wide array of efforts to press and support national authorities to carry out genuine investigations and prosecutions. The ICC is not a development agency, but it can lend expertise, broker assistance between other actors, and maintain focus on the need for accountability.

This is the case when the ICC opens its own investigations, as there will be a need for additional domestic investigations and prosecutions to bring comprehensive accountability. But the ICC’s Office of the Prosecutor has a particularly important role to play when it is still considering whether to open an investigation, during “preliminary examinations.”

This is because the prosecutor’s office has unique leverage in some of these preliminary examinations. If national authorities have an interest in avoiding ICC intervention, they can do that by conducting genuine national proceedings. By making the most of this leverage, the prosecutor’s office can be an effective catalyst for justice. The office recognizes that opportunity and has made it a policy goal to encourage national proceedings when it is feasible.

Human Rights Watch supports these efforts, given that they could help extend the reach of justice. But building on a set of 2011 recommendations, we wanted to take a fresh look at whether and how this policy is working, with a view toward strengthening its effect.

Our findings are set out in a May 2018 report, Pressure Point: The ICC’s Impact on National Justice; Lessons from Colombia, Georgia, Guinea, and the United Kingdom. 

Read the rest of this entry…

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

Published on August 6, 2018        Author:  and
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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
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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
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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…

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

Published on December 4, 2017        Author: 
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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…

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

Published on October 24, 2016        Author: 
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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…