Thursday, March 12, 2015

Challenge, not crisis, at the ICC

In both his more recent post, “The ICC’s Crisis Mentality and the Limits of Global Justice” and in a late-February publication entitled, “Yes, the ICC is in Crisis. It Always Has Been,” Mark Kersten of Justice in Conflict asserts that the ICC is not only an institution in crisis, but that it is one that needs to be in crisis. By definition, “crisis” typically refers to an acutely dangerous or life-threatening situation that often constitutes a decisive moment. To say that the ICC is in constant crisis is a serious misuse of the term. 

The Court does face – and is currently addressing – issues impeding its development. Contrary to Kersten’s claim that the Court has failed to acknowledge its limits, ICC Prosecutor Fatou Bensouda has expressly identified challenges in front of the Court. Bensouda has drawn particular attention to the issue of inadequate resources. Lack of sufficient resources and an inadequate budget hinder the Court’s ability to maintain and ensure high quality trial conduct. Without the necessary resources, the Court’s outreach efforts are also compromised. The Office of the Prosecutor (OTP) is currently making efforts to meet this challenge. Specifically, the OTP’s Strategic Plan for June 2012 – 2015 proposes three budget increases over a period of four years. With resources appropriate to match the ever-increasing number of preliminary examinations, investigations and prosecutions, the Court will be better equipped to execute its mandate.

The issue of resources is connected to the problem of enforcement. Without a police force or military of its own, the Court relies heavily on the cooperation of States. The Court can only reach its full potential when it has the unprejudiced assistance of States, and from the United Nations Security Council (UNSC) when it refers cases to the ICC. When collaboration is lacking, the Prosecutor does not hesitate to say so. As recently as this week, Bensouda has drawn attention to the non-cooperation of the UNSC and member states regarding the Security Council’s referral of the situation in Darfur.

In his more recent blog post, Kersten also asserts that the ICC “tends to pragmatically align itself with the interests of the UN Security Council and States Parties by only focusing on one side of the conflict.” The situations from which this accusation may arise do present particular challenges for the Prosecutor. For example, a delicate situation can arise when available evidence dictates that charges must be brought against a member of government that has brought a case to the ICC. In the same vein, if appropriate evidence is present for one side in a case but not another, the Prosecutor faces a unique quandary. Should the Prosecutor proceed with the available evidence? Should the Prosecutor risk jeopardizing an involved person’s right to a trial without undue delay by deferring the case until such evidence exists on the opposing side? Although one cannot deny the legitimacy of these challenges, their existence does not indicate bias by the Prosecutor toward one particular side of a conflict.

Just as bias does not exist toward one side or another in a particular case, bias does not exist in the process by which situations are chosen by the Court. Kersten declares that “the ICC has been unable or unwilling to open official investigations into states outside of the African continent.” To date, it is true that five African states have requested that the ICC start investigations into their territories. However, equally relevant is the OTP’s current conduct of preliminary investigations into seven situations outside of the continent.  

Ultimately, although Kersten is right in his identification of some difficult ICC issues, he is mistaken in claiming that such challenges constitute a crisis for the Court. Instead, they are an inherent and continuing part of the Court’s work for which it must find permanent ways to confront.

Written by Michaela Connolly

Wednesday, March 04, 2015

Yesterday's complete policy on reparations gives important guidance to future Trial Chambers

Yesterday, 3 March 2015, the Appeals Chamber pronounced its judgment in the case of Thomas Lubanga Dyilo (DRC) regarding reparations to victims. Mr. Lubanga’s case was groundbreaking as the Court’s first. Mr. Lubanga was found guilty on 14 March 2012, which generated the need to deal for the first time with questions about reparations. The Trial Chamber concluded that it should make its decision a complete policy on reparations, which the Trial Chambers and Trust Fund for Victims could apply when making judgments about handling reparations in the future.

The policy was appealed by both sides. The Appeals Chamber modified and amended the "decision establishing the principles and procedures to be applied to reparations" and thus established the final principles for reparation. Since it is the Appeals Chamber’s first judgment elaborating on who where and why to award reparations, the judgment is epoch-making for the ICC. It is a most important step because the Statute calls for a reparation scheme, but does not lay out its details. The provision of reparations in the Statute is a unique feature that recognizes the need to provide effective remedies for victims in court proceedings, which has not been recognized before. 

The Appeals Chamber confirmed in its policy that the judgment may provide both individual and collective reparations, but that reparations in the case of Mr. Lubanga will be awarded only collectively. Thus, the Appeals Chamber instructed the TFV to compose a plan of how to implement collective reparations, which would describe how to implement the principles the Appeals Chamber established. The principles are general concepts, which the Trial Chamber can apply to a future case in light of its specific circumstances. For example, according to the principles not only persons, families and groups of people but also legal entities will be entitled to reparations. 

One of the Appeal Chamber’s key amendments of the principles links the responsibility of reparations intrinsically with the convicted. Therefore, Mr. Lubanga has, contrary to the Trial Chamber’s judgment, now become liable for the reparation to the victims. This makes a difference for later cases both emotionally for the victims and instrumentally regarding who pays what. If the TFV for instance advances its resources in order to enable the implementation of the order, it will be able to claim reimbursement of there from Mr. Lubanga at a later date.

This reparations policy, refined by the Appeals Chamber, is likely to be controversial but it does provide the TFV with much needed guidance in the proceedings with reparations. The Appeals Chamber instructed the implementation to be finished in six months in which all victims are to be treated fairly and equally, regardless of whether they participated in the trial proceedings.

Written by Kathrine G. Lodberg

Friday, February 27, 2015

Court demonstrates professionalism and maturity in Chui Appeal

Today, 27 February 2015, the Appeals Chamber of the International Criminal Court pronounced its judgment confirming, by a 3-2 majority, the decision of Trial Chamber II acquitting Mathieu Ngudjolo Chui of charges of crimes against humanity and war crimes. The conduct of this case by the prosecutor and judges has turned out to be completely professional. It has proceeded according to the standards of acknowledged national criminal justice systems around the world. Secondly this clearly impartial judgment demonstrates the internal independence between the offices of the court. 

The Appeals Chamber grounded its decision on technical matters of evidence and process which according to the Chamber did not meet the standard of proof “beyond reasonable doubt”. The judgments of both the Trial Chamber and Appeals Chamber demonstrate the strong emphasis ICC judges give to high-quality and extensive evidence at all stages of a case. It has been clear that the Prosecutor, Fatou Bensouda, will make every effort to meet this requirement in future cases. 

The court has shown that only relevant and admissible items will be admitted into evidence and that every item will undergo a very exhaustive examination. Moreover, the failure to prove the allegation beyond a reasonable doubt does not mean that the Chamber believes that the attack on the village did not happen. Therefore, the judgment “does not negate the fact that crimes were committed in Bogoro or the suffering of the victims” (Fatou Bensouda). 

Written by Kathrine G. Lodberg

Wednesday, January 28, 2015

Statement of the Prosecutor clarifies Palestine's eligibility to ratify Rome Statute

A previous post reported ICC Prosecutor Fatou Bensouda’s press release announcing a preliminary investigation into the Palestine-Israel situation. There is currently continued confusion concerning Palestine’s eligibility for accession to the Rome Statute. The Prosecutor’s press release addressed this issue.

In her statement, the Prosecutor distinguishes between the eligibility of Palestine’s  Rome Statute article 12(3) declaration lodged on January 22, 2009 and Palestine’s more recent ratification of the Rome Statute and simultaneous presentation of a new, second declaration. When Palestine lodged the first declaration with the ICC in 2009, Palestine’s status at the United Nations (UN) existed as “an observer entity.” There were no general international law provisions to guide the Court on how it should respond to this situation. It therefore made its own decision that Palestine was not a state eligible to make the declaration.

As the Prosecutor pointed out in her statement, the UN General Assembly granted Palestine “non-member observer State” status on November 29, 2012. Palestine thereafter presented both the second declaration and a document of ratification to UN Secretary General (UNSG), Ban Ki Moon. This invoked his responsibilities under international law as “depository” of the Rome Statute. These responsibilities are to manage ratifications of those treaties which designate him for this status. Acting in this capacity as depository, the UNSG independently determined, in light of the General Assembly’s 2012 decision, that Palestine now had statehood status and eligibility to ratify the Rome Statute. He therefore accepted Palestine’s accession to the Rome Statute on January 6, 2015, following Palestine’s deposit of the instruments of accession. Under international law, once the depository has acted, officials or judges of the ICC are pre-empted from making any determination about Palestine’s eligibility to ratify the Rome Statute, a fact underscored in the Prosecutor’s statement.

We accept and agree with the Prosecutor’s explanation of this pre-emption.

Written by Michaela Connolly

Friday, January 16, 2015

Prosecutor opens preliminary examination of Palestine situation

ICC Prosecutor Fatou Bensouda announced today in a press release that she has opened a preliminary investigation into the Palestine-Israel situation. The press release is significant not only because it identifies the Prosecutor’s first steps following Palestine becoming a State Party to the ICC , but also because it underscores her commitment to the independence and impartiality of the Court.

As stated by the Prosecutor, a preliminary examination differs significantly from an investigation. A preliminary examination 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 Court’s Rome Statute does not impose any deadline for this examination.  The Office of the Prosecutor (OTP) will render a determination only when it has sufficient facts and legal findings to decide whether an investigation is justified.

The Prosecutor also takes special care to identify the reasons for why Palestine is considered a State and thus eligible for accession to the Rome Statute.  In doing so, she emphasizes that it is not the ICC that determines a State’s eligibility to join the Court. She explains this by describing how Palestine’s eligibility was in fact established. Through reference to the United Nations General Assembly (UNGA) Resolution 67/19 – resolution upgrading Palestine to non-member observer state in the UN – the Prosecutor explains that the eligibility of Palestine to accede to the Rome Statute was contingent on Palestine’s statehood status in the UN. 

The Prosecutor makes it expressly clear in today’s press release her determination that her office will proceed in examining the Palestine situation impartially. As the preliminary examination progresses, we will monitor the Prosecutor’s actions to confirm that this impartiality persists, and will provide further information as events unfold.

Written by Michaela Connolly