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The ICC and US Retaliatory Visa Measures: Can the UN Do More to Support the Privileges & Immunities of the Prosecutor?

Published on April 23, 2019        Author:  and
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On 12 April 2019, the ICC Pre-Trial Chamber II decided to reject the Prosecutor’s request to open an investigation into the situation in Afghanistan on the grounds that an investigation would not be “in the interests of justice,” though it found that the case otherwise satisfied the requirements of jurisdiction and admissibility set forth in the Rome Statute (see recent posts here). The ruling came on the heels of the US revocation on 5 April of ICC Prosecutor Fatou Bensouda’s visa for entry to the US, and prior US threats to take action against the ICC for examining the situations in Afghanistan and Palestine.

While the Pre-Trial Chamber (PTC) made no direct mention of recent US hostility towards the ICC, it appears to have implied, and others have suggested (here, here, and here), that such pressure played a role in the decision. As the PTC noted, “subsequent changes within the relevant political landscape both in Afghanistan and in key States (both Parties and non-Parties to the Statute), coupled with the complexity and volatility of the political climate still surrounding the Afghan scenario, make it extremely difficult to gauge the prospects of securing meaningful cooperation from relevant authorities for the future […]” (para. 94).

Senior US officials were quick to claim victory and take credit for the development, ostensibly linking US pressure to the outcome. Alluding to a potential appeal of the PTC decision, as well as the Prosecutor’s preliminary examination into the situation in Palestine, President Trump menaced that US actions against the ICC could continue: “any attempt to target American, Israeli or allied personnel for prosecution will be met with a swift and vigorous response.”

This post considers how the United Nations can—and may be obliged to—play a bigger role in helping to protect the Prosecutor and her team from one form of this US hostility towards the Court: visa restrictions. Despite US obligations under the US-UN Headquarters Agreement to allow the transit of individuals conducting business at UN Headquarters, some ambiguity surrounds the question of when and under what conditions the US will allow the Prosecutor access to Headquarters now that her visa has been revoked. Read the rest of this entry…

 

The Hole in the Doughnut – The OTP Strategic Plans and Self-Regulatory Actions in International Criminal Law

Published on April 10, 2019        Author:  and
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The past months have been turbulent at the ICC. The shower of critiques seems to have obscured that, although it is already April 2019, the OTP has not yet published its 2019-2021 Strategic Plan. The Strategic Plan is the main document through which the OTP publicizes its strategy and policies (see Regulation 14 of the Regulations of the Office of the Prosecutor). The goal of the Strategic Plan is to provide ‘transparency and clarity’ on the OTP work, making its actions predictable and allowing others to ‘plan their actions taking into consideration the Office’s work’ (para. 11, 2009-2012 Strategic Plan).

The first Strategic Plan was published in 2006 and, since then, three more came out (2009-2012, 2012-2015, and 2016-2018). In October 2018, the ASP Committee on Budget and Finance reported that it had been informed by the OTP that ‘the Strategic Plan for 2019-2021 is about to be finalized, after the completion of an internal consultation process within the OTP’ (para. 58) and that a draft would be circulated in November 2018 among relevant stakeholders. In December of the same year, the ASP stressed that it is expecting the Strategic Plan for 2019-2021 to be published at the end of the first quarter of 2019. Five months later and at the end of the first quarter, here we are, with no public Strategic Plan in sight. The Court may be facing another turbulence soon.

The Prosecutor has broad discretionary powers to select situations and cases, and enjoys great administrative independence. With the exception of budget approval and management oversight by the ASP (art. 112(b) and (d) of the Statute), other ICC organs cannot limit nor direct the actions of the OTP, and the Prosecutor has full authority over the administration of the OTP and of its resources. However, as per arts. 4 and 34 of the Statute, the Prosecutor is still a public official, and the OTP is still an organ of an international organization. Their freedom to administrate their resources and actions is therefore limited to their institutional functions and roles. 

Dworkin described discretion as a doughnut hole: it does not exist except as an open surrounded by a restrictive belt Read the rest of this entry…

 
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Some Reactions to Douglas Guilfoyle’s Posts on the Troubles of the ICC

Published on April 1, 2019        Author: 
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Editor’s note: This post is a response to Douglas Guilfoyle’s recent three part series: ‘This is not Fine: The ICC in Trouble‘ (Part I, Part II, Part III).

It is as if someone at the Court saw Douglas Guilfoyle’s first post here at EJIL:Talk! on the ICC’s troubles and decided that it was crucial to immediately prove him right. 

Last week, on the 22 march 2019, the Court made public a decision from the plenary of Judges allowing Judge Ozaki, who is sitting in the Ntaganda case (currently in the deliberations phase), to also commence her duties as the Japanese ambassador to the Republic of Estonia concurrently to her function as an ICC Judge. Here is not the place to analyse this decision, but it is for me symptomatic of the bubble in which the institution (here the Judges) lives where they seem blind to outside perceptions. Indeed, how can the vast majority of Judges not see that for most people the exercise of a political/diplomatic function is by its very nature incompatible with a judicial function? As noted by the three judges who dissented: 

For the minority, it was evident that the performance of an executive or political function for a State Party by an individual who remained a Judge of the Court was entirely likely to affect public confidence in judicial independence.

This decision is proof – if there was any need for more than provided in the Court’s practice in the past 15 years – of the relevance and timeliness of the 3-part blog series by Douglas explaining why the ICC is not fine and what should be improved. It is a thoughtful and detailed analysis of the Court’s woes and I agree both with its general evaluation and with most of the specific points raised. 

In this post, I would like to humbly propose not so much a response, but a reaction to some of the arguments put forward.

The Utility or Futility of the Pre-Trial Chamber

I would tend to agree with Douglas that today, one has the feeling that the confirmation of charges phase is a waste of time, for example because decisions on the confirmation of charges actually provide very little guidance on the content of the charges (including modes of liability) and relevant evidence. The process appears cumbersome and long and in need of a reform. I would not, however, be as critical as Douglas for a series of reasons. Read the rest of this entry…

 
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Understanding the State Party Referral of the Situation in Venezuela

Published on November 1, 2018        Author: 
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Since 8 February 2018, the situation in Venezuela has been the subject of an ongoing preliminary examination by the Office of the Prosecutor of the International Criminal Court. On Wednesday 26 September 2018, however, a coalition of States Parties to the Rome Statute composed of Argentina, Canada, Chile, Colombia, Paraguay, and Peru jointly submitted a referral of the situation in Venezuela to the Prosecutor. In this referral, it was requested that the Prosecutor open an investigation into the commission of crimes against humanity allegedly committed in Venezuela under the government of President Nicolás Maduro, beginning on February 12, 2014. This referral, the ninth referral received by the Prosecutor, is not only the first referral to be submitted by a “coalition” of States Parties, but also one (directly) concerning a situation occurring on the territory of another State Party.

Pursuant to article 13 and 14 of the Rome Statute, a referral by a State Party is one of the three triggering mechanisms under which the Court may exercise its jurisdiction. It represents a formal request by a State Party (or in this case States Parties) for the Prosecutor to initiate an investigation on crimes allegedly committed in a situation. Furthermore, it gives the referring State Party the opportunity to present supporting documentation regarding the situation in question. It does not, as explained by the Prosecutor in her response to the Venezuela referral, automatically lead to the opening of an investigation. Instead, as a triggering mechanism, it leads the Prosecutor to apply the statutory criteria to assess whether the referred situation warrants investigation. This process, otherwise referred to as a preliminary examination, entails an evaluation of the criteria set out in article 53(1) of the Statute. In the event that the Prosecutor decides to initiate an investigation on a situation referred to her by a State Party, she is not required to seek authorisation from the Pre-Trial Chamber to proceed.

The legal effect of a State Party referral is therefore limited to three key aspects: it can trigger a preliminary examination by the Prosecutor; it can act as a formal submission of new information vis-à-vis article 14(2); as well as allowing for the initiation of an investigation (if the Prosecutor decides so) without the need for judicial authorization by the Pre-Trial Chamber.

In applying these aspects to the Venezuela referral, it appears that its legal effect is rather limited. Read the rest of this entry…

 

A Prudential, Policy-Based Approach to the Investigation of Nationals of Non-States Parties

Published on May 30, 2018        Author:  and
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On 22 May, Palestinian Foreign Minister Riyad al-Maliki submitted a referral to the International Criminal Court (ICC) regarding the situation in Palestine since 13 June 2014, with no end date.  This follows the Prosecutor’s statements on 8 April and 14 May responding to the situation on the Gaza border (which were themselves unusual, if not unique, examples of OTP practice).  As with the proposed investigation of US nationals in the Situation in Afghanistan, the Myanmar and Bangladesh issue that is under consideration and the investigation of Russian conduct in Georgia and Ukraine, the question of whether, and if so how, the ICC may exercise jurisdiction over nationals of non-state parties absent a Security Council referral is pressing once again.

By proceeding with investigation of Russian conduct in Georgia and Ukraine, Israeli conduct in Gaza and the West Bank, and American conduct in Afghanistan, legal issues which arise upon exercise of the Court’s enforcement jurisdiction will foreseeably give rise to challenges both before the ICC, as well as in national jurisdictions during surrender proceedings. This contribution suggests that a prudential, even cautious, policy-based approach to the investigation of nationals of non-states parties may help the OTP avoid pitfalls resulting from proceeding without sufficient regard to non-states parties’ jurisdictional objections. Read the rest of this entry…

 
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