Wednesday, August 12, 2015

The Relationship between the ICC and the UN Security Council




Recent events in Ukraine and Syria have spurred interest in the UN Security Council's ability to request a referral of a situation to the ICC.   Kenyan officials have also drawn attention to the Council when they seek out a request by the Council for a deferral of the situation in Kenya.  This post intends to inform readers about the historical and present relationship between the ICC and the UN Security Council.
The International Criminal Court (ICC) was established at a United Nations (UN) conference as an independent international organization.  While the two organizations share common goals of preventing and responding to mass atrocities, they operate independently of one another.  However, the Rome Statute includes two provisions regarding the UN Security Council which coincide with the responsibilities of the Council as established in the UN Charter.
Chapter VII of the UN Charter grants primary responsibility to the UN Security Council to maintain international peace and security.  The ICC’s Rome Statute instructs ICC judges on how to respond to a Security Council request for a referral of a situation before the ICC, even if these situations involve non-state parties to the Rome Statute.  The Rome Statute also instructs the Court on how to respond to a request for a deferral of a situation by the Security Council.  If the Council finds that ICC involvement would interfere with a situation on the Council’s agenda, it can defer the situation for up to a year, and the request can be renewed indefinitely.  While the ICC can reject a request for a referral, it cannot reject a request for a deferral.  The Security Council is acting under Chapter VII of the UN Charter when it refers and defers situation; thus, this authority does not come from the Rome Statute. 
The UN Security Council issued two situation referrals since the ICC’s establishment in 2002.   The referrals are issued through resolutions.  UN Security Council resolutions are binding upon UN member states.  As of August 2015, there are 193 member states of the UN, and there are 123 states parties to the Rome Statue of the ICC.   Furthermore, any resolution that is vetoed by one of the 5 permanent members of the Security Council (United States, Russia, China, United Kingdom, and France) will not be passed.  It is important to be aware that these resolutions differ from resolutions passed by the UN General Assembly.  General Assembly resolutions are non-binding, and so they act as recommendations to member states.
The Security Council issued its first referral to the ICC in March 2005, following a report by the UN International Commission of Inquiry on violations of international humanitarian and human rights law in Darfur.[i]  Resolution 1593 was passed 11-0 with four abstentions from the U.S., Algeria, China, and Brazil.  In the resolution, the Council demands that the government of Sudan and related parties to the conflict in Darfur cooperate with the ICC.  The Council also urges all states to cooperate, while recognizing that non-state parties to the Rome Statute do not have an obligation to do so.  The Council also encourages the ICC to support domestic efforts to promote the rule of law in Darfur.  Furthermore, the resolution says that states contributing to international activities in the Sudan that are not parties to the Rome Statute shall have exclusive jurisdiction over its nationals, unless that right is waived by the state.  The resolution also notes that expenses incurred in connection with the referral are to be covered by parties to the Rome Statute or states that have contributed voluntarily; the UN would not cover any of the expenses.  These two provisions were included at the strong request of the United States.  The Prosecutor opened an investigation in June 2005.  Several arrest warrants were issued in the years following, including one for Omar al-Bashir, the President of the Republic of Sudan, who recently evaded arrest when attending a meeting of the African Union in South Africa.
Security Council Resolution 1970 referred the situation in the Libyan Arab Jamahiriya to the ICC in February 2011.  The resolution passed unanimously, and the section regarding the ICC contained much of the same wording as Resolution 1593.  However, it contains a more comprehensive condemnation of the situation.  Apart from the ICC referral, the resolution also contains instructions for an arms embargo on the Libyan Arab Jamahiriya, as well as a travel ban and asset freeze on a number of individuals.  Furthermore, the Council called upon UN members to “facilitate and support the return of humanitarian agencies and make available humanitarian and related assistance in the Libyan Arab Jamahiriya.”[ii]  The Prosecutor opened an investigation in March 2011.  Three arrest warrants were granted in June 2011, one of which remains active as of August 2015.  Muammar Gaddafi’s case was terminated following his death.  He was the Libyan Head of State at the time.  Abudllah al-Senussi’s case was dismissed after the Appeals Chamber confirmed Pre-Trial I’s decision that the case was inadmissible before the ICC.  The final warrant is for Saif al-Islam Gaddafi, the son of Muammar Gaddafi, for two counts of crimes against humanity.  Saif al-Islam Gaddafi remains in the custody of Libyan officials who refuse to hand him over to the court, despite the binding Security Council Resolution.  In July 2015, a Libyan court convicted a number of officials who had served under Muammar Gaddafi, including Saif al-Islam Gaddafi and Abdullah al-Senussi.  They were both sentenced to death.  Many have questioned whether these legal proceedings and the detention of these individuals are fair and humane.   Furthermore, Libya’s bid to prosecute Saif al-Islam Gaddafi had been rejected by ICC judges.
Critics argue that the Security Council has not done enough to support the Court in these two situations.  The ICC does not have the same type of enforcement mechanisms as the Council, and these critics contend that the Council should have a greater role in enforcing ICC arrest warrants.  Fatou Bensouda, the Chief Prosecutor of the ICC, criticized the Council in December 2014 for failing to be “spurred into action,” noting that the Council has never provided a “strategic recommendation” to her office in regard to the situation in Libya.  She called upon the Council again in June 2015 to establish greater efforts in ensuring that Sudan complies with the Council’s resolution.  She also urged states parties to establish a better way to arrest individuals wanted by the ICC.[iii]
In that December 2014 statement, Bensouda also stated that “UN reports are an important and unique source of public information that [the Office of the Prosecutor] relies on for its activities in most situations.”[iv]  However, the ICC is an independent organization which conducts independent investigations.  The findings of a UN report do not determine the outcome of an ICC investigation.


[i] UN Security Council, Security Council Resolution 1593 (2005) on Violations of International Humanitarian Law and Human Rights Law in Darfur, Sudan, 31 March 2005, S/RES/1593 (2005)
[ii] UN Security Council, Security Council resolution 1970 (2011), 26 February 2011, S/RES/1970 (2011)
[iii] UN Security Council, 7478th Meeting Coverage, 29 June 2015, SC/11954
[iv] Bensouda, Prosecutor of the International Criminal Court, Statement to the UN Security Council on the Situation in Darfur, pursuant to UNSCR 1593 (2005), 12 December 2014, http://www.icc-cpi.int/iccdocs/otp/stmt-20threport-darfur.pdf

Written by Michaela Dougherty

Monday, June 01, 2015

ICC Prosecutor's Meeting with "Group of Friends of the ICC"


            An informal gathering of the “Friends of the ICC”, convened on May 13, 2015 at the Headquarters of the United Nations in New York for a round table discussion with Fatou Bensouda, Chief Prosecutor of the International Criminal Court.  The Friends of the ICC is the caucus formed by countries that are particularly in support of the Court.  Its formation began during the negotiations of the Rome Statute.  The Friends of the ICC is a large group with no formal rules about who can participate and includes several organizations such as Human Rights Watch.  Active participants are countries from most of Western Europe, Latin America and many from Africa.  A number of current issues and concerns related to the ICC were addressed.
            Fatou Bensouda brought up funding issues that the Court is currently facing.  She said that unexpectedly being able to bring charges against  Dominic  Ongwen has meant scaling back activity on other cases due to budget constraints.  Ongwen is a member of the Lord’s Resistance Army, a sectarian military and religious group in northern Uganda and South Sudan.  He is allegedly guilty of four counts of war crimes (murder, cruel treatment of civilians, intentionally directing an attack against a civilian population and pillaging) and three counts of crimes against humanity (murder, enslavement and inhumane acts of inflicting serious bodily injury and suffering). In 2015, he escaped detention, was captured by a Seleka rebel group, and delivered to the US Embassy in Kigali which arranged with the  help of other countries to have him sent to the ICC.  Having Ongwen in its custody came as a surprise to the Court.
Bensouda’s comment is in keeping with past statements she has made to the UN, insisting that the court will not be able to act on referrals unless they come with money.  Fatou Bensouda went on to explain that the Court needs financial support to fully address its multiple responsibilities.  This includes ensuring sufficient and timely investigation before the case begins, being able to build a strong prosecutorial case and supporting the Trust Fund for Victims.  The Trust Fund for Victims (TFV) is an independent institution within the ICC  that provides reparations to victims.                
            Also on the examination of possible crimes, Bensouda talked about how the Court was attempting to improve its current strategies and policies in regards to this task.  These changes include more open-ended investigations as opposed to deciding the focus of the investigation early on. 
Another change is avoiding reliance on witness testimony when building a case.  This could be in connection to difficulties (such witnesses being threatened away from testifying before the court) that the Court has faced in pursuing cases such as the ones resulting from the Kenya situation though such was not stated by Bensouda during the meeting.  Bensouda asserted during the meeting that increasing resources available to the teams undertaking formal investigations increased their output as shown in all recent cases leading to charges against subjects.  Bensouda also mentioned that other aspects of her policy for the OTP that she would like to implement include refocusing policies about children which has started including both the children involved in the armed conflict as well as those affected by it.
In the following discussion, the Permanent Representative of the Palestine Authority to the UN questioned Bensouda on whether charges will be pressed against Israel for the continued existence of the settlements.  Bensouda maintained that the OTP is still carrying out a preliminary examination, which she stressed is not an official investigation, of the Palestine situation.  She explained that while she encourages Israel to cooperate in the investigation, her office is obligated to examine the actions of both sides of the possible case and to obtain their cooperation. Also, if either side chooses not to cooperate, she will have to find the evidence elsewhere. It was also explained that the Office has not yet fully assessed if crimes under the Rome Statute have been committed and if the situation falls under the jurisdiction of the ICC.  She went on to say that the OTP seeks to finalize these rulings as soon as possible. 
During the discussion, the representative of Kenya expressed the belief that the country was not being appropriately represented in the UNSC and because of this, he wanted to convene a group of countries outside the Council.  It seemed clear that he hoped that this group could put pressure on the UNSC and the ICC after the long series of contentions between the institutions and the country.
            Other current subjects in questions to Bensouda included the terrorist group ISIL.  The prosecutor explained that while the jurisdiction of the ICC is limited in this particular conflict, charges are still possible.  This is because while Iraq and Syria have not yet ratified the Rome Statute, there are still nationals of state parties involved in the conflict.  That said, it is primarily the responsibility of these state parties to investigate the crimes.  Should they fail to do so, Bensouda asserted that a UN Security Council referral would be the best starting point.
On the Libya situation, Bensouda reiterated her stance from yesterday, saying that the international community should be more proactive in ending the conflict and that the Office was actively investigating the possibility of other cases involved in the situation. She emphasized that the Office faces challenges of insufficient access and resources in properly investigating these crimes.   She also expressed her gratitude to members of the Security Council in their calling for the surrendering of Saif al-Islam Gaddafi.
            Bensouda was asked about the possibility of members of Boko Haram being charged by the Court.  Bensouda remarked that the ICC has already indicated that the crimes being committed in Nigeria by Boko Haram are crimes against humanity and that a mission was sent to Nigeria before the elections took place.  As such, the crimes occurring there may possibly fall under the jurisdiction of the Court.
            It is worth noting that Bensouda heavily emphasized her commitment to transparency and non-politicization of the Court.  This was warmly received by the members of the Friends.  Several of the members recognized that this would be a difficult task in some of her upcoming decisions.
After Bensouda left, there was a second session of the discussion.  During this time, reports were given by the liason between the UN Security Council and the Friends.  The report was on the activities that the UNSC conducts in connection with the ICC.  There was also a report from the Argentine representative on the activities of the New York Working Group.  The New York Working Group is an organization based in New York which was convened by the bureau of the ICC to act as a committee on various issues and to advise the bureau on them.
Written by Rebecca Leaf

Friday, May 15, 2015

ICC Prosecutor's Remarks to the "Group of Friends of the ICC"



 The ICC’s Office of the Prosecutor (OTP) operates with an open-door policy. Prosecutor Fatou Bensouda emphasized this while addressing the "Group of Friends of the ICC" (GoF) this past Wednesday, May 13. Her remarks directly followed her biannual briefing to the United Nations Security Council (UNSC) on the situation in Libya. Bensouda gave an overview to the GoF of the OTP’s activities, commented on new policies adopted by the office, and identified challenges that it currently faces.
           
            In outlining details of the Palestine-Israel situation at the Court, Bensouda reiterated points communicated in previous statements issued by the OTP. Namely, she sought to distinguish a preliminary examination (PE) from a formal investigation. Underscoring that the OTP conducts preliminary examinations without “fear or favor,” Bensouda explained that the Office examines several factors during a PE. The OTP examines the applicability of ICC jurisdiction (i.e. gravity threshold), national proceedings in the interest of complementarity, and the interests of justice.

Ultimately, a PE involves reviewing available information to determine whether there is a “reasonable basis to proceed with an investigation pursuant to the criteria established by the Rome Statute.”  The OTP renders a determination only when it has sufficient facts and legal findings to decide whether an investigation is justified. She informed the GoF that her office’s PE of the Palestine-Israel situation will comprehensively cover all alleged crimes committed by both sides. To this end, she encouraged Israel to cooperate with the OTP as it proceeds in its examination.

            Bensouda also assessed the ICC’s jurisdiction over the Islamic State of Iraq and the Levant (ISIL) and recognized challenges her Office faces in connection to the Libyan cases. She declared that the Court does not have territorial jurisdiction over ISIL, as neither Iraq nor Syria is party to the Rome Statute. Even so, she asserted that there are nationals of state parties amongst the ranks of ISIS. Yet, because those of the top echelon of ISIL are Iraqi and Syrian – and thus beyond the ICC’s reach – Bensouda urged State parties to be creative in their approach to end the impunity from which ISIL currently benefits. Particularly, she mentioned an article 12(3) declaration or a UNSC referral both as viable means through which ISIL may be brought to the Court.

            Echoing her remarks made to the UNSC on Libya, Bensouda also communicated that the security situation in Libya is one that deeply troubles her. In an effort to address the situation, her Office has encouraged the formation of an ‘international contact group’ on justice issues through which material, legal and other support could be provided to Libya. Bensouda underscored that the OTP is continually monitoring the situation, asserting that she will “not hesitate to take action to end the state of impunity in Libya.”

Citing Dominic Ongwen’s long-awaited surrender and subsequent arrival at the Court as evidence that the Court is both “permanent and patient,” Bensouda highlighted the extent to which the ICC – and the OTP more specifically – has developed in recent years. With the increase in both the Court’s scope and caseload, Bensouda noted that her Office has had to prioritize the assignment of funds and other resources, leaving some cases lacking. She specified that this was particularly true in light of Ongwen’s arrival at the Court.

            In general, Bensouda noted that resources available to the Office do not match the current demand. She specifically identified the need for increased financial support for the Trust Fund for Victims (TFV) and the insufficiency of the ASP’s designated budget. The provision of reparations plays a key role in delivering reparative justice to victims. To ensure that victims’ rights to reparations are appropriately served, Bensouda called on more States to contribute funds to the TFV. She also indicated that the Court’s budget must be increased so that the ICC can effectively fulfill its mandate. In addition to identifying the need for increased funding, Bensouda specified that non-cooperation of states in hosting convicted persons and witness location have posed challenges for the OTP. The Registrar and the OTP are currently addressing these issues.  

            The OTP has benefited from several positive developments since Bensouda began as Prosecutor. When first taking office, Bensouda established an internal review that led to the creation of the 2012- 2015 OTP Strategic Plan. This strategic plan has enhanced the Office’s efficiency and analysis function. The admissibility threshold for evidence has heightened as well, with the OTP demanding trial-ready evidence as early as the “Confirmation of Charges” hearing. Building on this momentum, Bensouda shared that the new Strategic Plan for 2016-2018 is already underway. As the drafting of this plan progresses, the OTP is also enhancing its case selection policy, developing performance indicators, and establishing an institutionalized “lessons learned” policy.

            Bensouda stressed that the OTP will operate independently, impartially and with the utmost transparency as it moves forward and continues to build on its preexisting successes. Given the advent of the Palestine-Israel situation at the Court, demonstrating this institutional independence is especially important. We will monitor the OTP’s actions to ensure that this independence is maintained.


Written by Michaela Connolly


Monday, April 27, 2015

ICC and Palestine-Israel: Q&A



Why did the ICC make a decision about Palestine’s statehood in 2009 and not do so in 2015?

On January 2009, the Palestinian Authority (PA) tried to exercise a non-State Party’s right to file a declaration of acceptance of ICC jurisdiction. With no guidance on this question from the United Nation’s General Assembly (UNGA) or international law, the Office of the Prosecutor (OTP) had no other option but to make a determination on the statehood status of the PA. The OTP determined that the PA was not a state eligible to make the declaration. In January 2015, Palestine presented Ban Ki-Moon, the UN Secretary General (UNSG), with both a second declaration and a document of ratification. This invoked his administrative responsibilities under international law as the depository of the Rome Statute. In light of the UNGA 2012 decision granting Palestine “non-member observer State” status, the UNSG determined that Palestine now had statehood status and eligibility to ratify the Rome Statute. Accordingly, when Palestine approached the ICC thereafter, it was already a State Party to the Statute, leaving the ICC with no decision to make on Palestinian statehood.

Does the ICC’s involvement in situations and cases constitute an intervention?

In describing the Court’s involvement in cases and situations, use of the term intervention implies that the ICC takes the initiative in seeking these out. This is not the case. As delineated in the Rome Statute, there are several ways through which a situation may be brought to the Court. Situations can be referred to the Prosecutor by State Parties and by the UN Security Council. Non-State Parties may also bring a situation forward through lodging a declaration. Additionally, the Prosecutor may initiate an investigation proprio motu with respect to a crime falling within the Court’s jurisdiction. In making this determination, the Prosecutor takes into consideration any information brought forward on crimes under the Court’s jurisdiction, including information sent by individuals, groups, States, intergovernmental or non-governmental organizations. The Prosecutor does not act on his or her own accord, but through the information brought to his/ her office. Before proceeding to a formal investigation, the Prosecutor must have the approval of the Pre-Trial Chamber.

As Palestine came to the ICC as a State Party, why did it also come forward with a declaration?

When a State accedes to or ratifies the Rome Statute, it accepts jurisdiction of the Court from the day on which it becomes a Party onward. Through submitting a declaration, the Government of Palestine further accepted jurisdiction of the Court for acts committed since June 13, 2014. It is only through such a declaration that a State may accept retroactive jurisdiction from the ICC.

Should the ICC be active in peacekeeping, peace-building, or the resolution of conflicts?

The Court exists as an institution having the power to exercise its jurisdiction over persons for the “most serious crimes of international concern.” The ICC operates as an international criminal court. It was not established to engage or partake in peacekeeping, peace-building or the resolution of conflicts. In order to avoid interference in peace negotiations by ICC prosecutions, the Rome Statute instructs ICC judges to comply with a UNSC resolution requesting deferral of action on a case for one year.

ICC Second Vice-President Judge Kuniko Ozaki presents Minister of Foreign Affairs of Palestine, Dr. Riad Al-Malki, with a special edition Rome Statute (Photo: ICC).

Read further on the differences between Palestine's 2009 and 2015 declarations here: http://amicc.org/icc/cases.


Written by Michaela Connolly