Thursday, June 07, 2018

The Rohingya Crisis in Myanmar and Possible ICC Jurisdiction

Since August 2017, Myanmar’s security forces have driven more than 670,000 Rohingyas to flee to neighboring Bangladesh, creating an enormous refugee crisis in the region. The forces allegedly committed “killings, rape, torture, enforced disappearance, … and the destruction and looting of hundreds of villages … intended to drive the Rohingya population out of Myanmar.” [1] The international community has documented and criticized the magnitude of the atrocities as well as the well-organized, systematic nature of the attacks. The UN High Commissioner for Human Rights described the attacks as “a textbook example of ethnic cleansing.”[2] In addition, the UN Special Rapporteur for human rights in Myanmar stated that the attacks “bear the hallmarks of a genocide.”[3] International non-governmental organizations such as Human Rights Watch, Amnesty International, and Médecins Sans Frontières have published credible and consistent reports on the atrocities. Media outlets such as Reuters, Al Jazeera, BBC, and the New York Times have widely covered the atrocities as well.

At first glance, the International Criminal Court seems to lack jurisdiction over the alleged crimes because Myanmar is not a State Party to the Rome Statute. However, the ICC Prosecutor, Ms. Fatou Bensouda, argues that the Court may exercise jurisdiction over Myanmar’s alleged commission of the crime of deportation because “an essential legal element of the crime – crossing an international border – occurred on the territory of a state which is a party to the Rome Statute (Bangladesh).”[4]

Specifically, Prosecutor Bensouda argues that both the nature of the crime of deportation and of the territorial jurisdiction provided in the Court’s Rome Statute allow it to exercise jurisdiction in this situation. First, the crime of deportation inherently requires a victim to cross an international border and enter a second, receiving country. Thus, she says an essential legal element of this cross-border crime is completed in that second state (Bangladesh). The Prosecutor compares the nature of the crime of deportation to that of cross-border shooting in that “the crime … is not completed until the bullet (fired in one State) strikes and kills the victim (standing in another State).”[5]

Second, the Prosecutor argues that the Court may exercise jurisdiction because the Statute requires “at least one legal element of the crime to have occurred on the territory of a State Party.”[6] Thus, the Court may exercise jurisdiction on the crime of deportation either if the originating State is a State Party to the Court or if the receiving, second State is a State Party. Therefore, although Myanmar, the originating State, is not a State Party to the Court, Bangladesh, the receiving state, is, thus bringing the crime within the Court’s territorial jurisdiction. Based on this line of reasoning, the Prosecutor filed a request for a ruling on the question of territorial jurisdiction to the Court’s President of the Pre-Trial Division.

A favorable ruling by the Pre-Trial Chamber would either allow the Prosecutor to initiate an independent preliminary examination or allow Bangladesh to refer the case to the Court. An unprecedented favorable ruling may have broader, resonating implications for future ICC cases. For example, as in the case of Myanmar and Bangladesh, Syria is not a State Party to the Court, but Jordan is, and the atrocities that have occurred in Syria has caused hundreds of thousands of Syrians to flee to Jordan. The Pre-Trial Court’s decision on the question of territorial jurisdiction in cross-border situations may open a door to investigating and prosecuting crimes allegedly committed by non-State Parties when an essential element of the crime is committed in the territory of a State Party.

Written by Amy Gina Kim
______________


[1] Office of the Prosecutor, Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, April 9, 2018, ICC-RoC46(3)-01/18-1, 6, https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-RoC46(3)-01/18-1
[2] High Commissioner for Human Rights, Opening Statement to the 36th session of the Human Rights Council, September 11, 2011, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22044&LangID=E
[3] Special Rapporteur on the situation of human rights in Myanmar, Report of the Special Rapporteur on the situation of human rights in Myanmar, March 9, 2018, http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session37/Documents/A-HRC-37-70.docx
[4] Office of the Prosecutor, Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, 3.
[5] Office of the Prosecutor, 14.
[6] Ibid.


Friday, April 27, 2018

Al Hassan Case at the ICC - Gender Crimes

Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud ("Al Hassan"), a Malian national born on 19 September 1977, faced ICC charges of sexual and gender-based crimes. On 4 April 2018, he made his first appearance before the ICC after the Pre-trial Chamber issued the arrest warrant for him on 27 March 2018. The confirmation of charges hearing was scheduled provisionally for 24 September 2018. The case against AI Hassan was recorded under the ICC Mali situation, which was referred by the government of Mali to the ICC to investigate alleged crimes committed on the territory of Mali by its nationals since January 2012. This is also the second case in Mali situation after the case against Mr. AI Mahdi, who among a long list of charges was also declared guilty of the war crime of attacking religious and historic buildings in Timbuktu, Mali, in June and July 2012, and was sentenced 9 years’ of imprisonment for his commission of crime.  


According to the arrest warrant, Mr. Al Hassan is alleged to have been involved in the activities of armed groups AI-Qaida in the Islamic Maghreb ("AQIM") and Ansar Eddine which took control of the city of Timbuktu. He is alleged to have committed crimes and religious and gender-based persecution against the civilian population in Timbuktu. Specifically, the Pre-Trial Chamber has concluded that the evidence submitted by the Office of the Prosecutor is sufficient enough to provide reasonable grounds to believe that Mr. AI Hassan has committed crimes against humanity (torture, rape and sexual slavery; persecution of the inhabitants of Timbuktu on religious and gender grounds; and other inhumane acts) and war crimes (rape and sexual slavery; violence to person and outrages upon personal dignity; and attacks intentionally directed against buildings dedicated to religion and historic monument in Timbuktu, Mali, between 2012 and 2013. He is further charged with arbitrary punishment of civilians without trial in Timbuktu who broke the rules and prohibitions imposed by those armed groups. These requirements affect all areas of public life.

In particular, the case against Mr. AI Hassan shows ICC’s commitment to prosecute sexual and gender-based violence and to protect the interests of victims and witnesses of such crimes, which is a very important subject to many Americans who feel deeply about it. The Rome Statute is the first international treaty permanently enforcing international law about various forms of sexual and gender-based crimes, including rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and other forms of sexual violence. Recognizing the enormous obstacles and challenges to the effective investigation and prosecution of these crimes, the Prosecutor has included this issue as strategic goals in her Strategic Plan 2012-2015. In addition, The Office of the Prosecutor Policy Paper on Sexual and Gender-Based Crimes launched in June 2014 affirms the commitment of the Office to paying special attention to sexual and gender-based crimes in line with statutory provisions and provides clear and comprehensive guidance on issues regarding with sexual and gender-based crimes in all aspects of operations.
                                                                                                

Written by Yixuan Ouyang

Thursday, April 26, 2018

The significance of the International Criminal Court: Celebrating the ICC’s 20th Birthday in the US


On April 16 2018, as part of the global celebration of the 20th anniversary of the Rome Statute of the International Criminal Court (ICC), AMICC held a moderated discussion on the importance and challenges of the ICC. We were honored to have Roy Lee (former Executive Secretary to the International Criminal Court Conference), Lori Damrosch (Hamilton Fish Professor of International Law and Diplomacy) and Jelena Pia-Comella (Deputy Executive Director of the Coalition for the ICC) as panelists. John Washburn (Convener of the American NGO Coalition for the ICC) was the moderator of the discussion.

The Rome Statute is the founding treaty of the ICC, and its creation in 1998 marked a milestone in seeking international justice by subjecting sensitive military and security matters to international law and holding powerful perpetrators accountable for crimes. During the event, panelists discussed the uniqueness of the ICC, its relationship with the United Nations, the interaction between the Rome Statute and general international law,  and the meaning of this 20th anniversary celebration.

Mr. Washburn began the conversation by introducing highlights of the ICC, demonstrating that it is a not a branch of government nor an organ of the UN, but a freestanding and independent criminal court which has the right to determine its own jurisdiction. It tries only individuals for legal reasons. One key point about the ICC legal process is that the Office of the Prosecutor (OTP) is required to conduct a preliminary examination to determine whether there is sufficient reason to proceed with a formal investigation. If the Prosecutor concludes that the examination provides the basis for achieving a formal investigation, she would request, or in some cases go forward on her own initiative, a formal investigation. Another strong difference between the powers of domestic courts and the ICC is that the ICC has no enforcement power, so State Parties must act on their obligations under the Rome Statute to arrest the accused person. Therefore, it is very crucial for the ICC to strengthen cooperation with State Parties that will provide enforcement. Moreover, a very important aspect of the Court that attracts favorable attention in the United States is that the Court has special services for victims, which includes one office organizing and paying reparation to victims and another providing legal assistance and representation to victims throughout proceedings.

Professor Lee then discussed the Court’s principle of complementarity, asserting that it was not until 1990s did supporters of a permanent international criminal court decide that instead of a super court, it should have a supplementary court which complements national criminal jurisdiction. Only when a state is unwilling or unable to exercise jurisdiction, does the ICC come in. This approach was well received by states and it has become the basic principle of the ICC. However, this principle has not been fully implemented yet and we need to further address how to encourage those countries which have not joined the the Court to incorporate the ICC into their national jurisdictions.

Professor Damrosch acknowledged the Court’s success and commented that the very existence and the activities of the Court or the processes by which the crimes addressed by the Court get brought into national legal systems may have had some sort of deterrent effect on the commision of those crimes. She also talked about the interaction between the Rome Statute and the broader system of international law, explaining that the Rome Statute is embedded one way or another in just about every chapter of international law curricula, such as the principle of consent, the entry into force and withdrawal.

Then Ms. Pia-Comella talked about the meaning of the anniversary and the current status of preparations for celebration events. She asserted that this anniversary is both a celebration and a commemoration. The Rome Statute has criminalized the use of child soldiers and the empirical evidence has shown that this provision has deterred the commission of this crime. Meanwhile, we are celebrating in terms of the promotion of human rights. The Court has very groundbreaking provisions for victims’ representation and protection, and especially the victims of sexual and gender-based violence and conflict. We are using the 20th anniversary to raise awareness and to link it to other issues. For example, this year is also the 70th anniversary of the genocide prevention treaty. In addition, the celebration will help us garner even more support, full understanding and honest discussion to push forward the concept of complementarity, and to gather broader political support for the Court.

At the end of the discussion, panelists engaged the audience in a series of questions about international legal issues, the ongoing ICC situations, and the Court’s future relationship with the US.

Written by Yixuan Ouyang

Friday, April 13, 2018

Activating the Crime of Aggression at the ICC in 2018


The development of the Crime of Aggression has involved a lengthy deliberation among civil society and governments which culminated in its approval by the Assembly of State Parties at the International Criminal Court in 2017. Delegates could not reach a consensus on the definition, breadth, or application of the crime of aggression at the creation of the Rome Statute in 1998; however, delegates compromised at the time to include the crime of aggression in the Rome Statute Article 5 of the crimes within the jurisdiction of the Court after the negotiation of a definition.  At a Review Conference in 2010 in Uganda, delegates negotiated the definition and purview of the crime to facilitate State Party ratifications of amendments to the Rome Statute at an Assembly of State Parties (ASP) thereafter.

The Kampala Review Conference disagreed about a provision—specifically whether State Parties should enable the Court’s jurisdiction over aggression through either opting out if unwilling to accept a broadly inclusive application of the provision or opting in to choose the jurisdiction of the Court with the new amendments to the Statute. The US, as an observer delegation rather than a State Party delegation, had advocated for the opt-in option and broad Security Council referral control during the Preparatory Commission following the Rome conference. At the Kampala Conference, most countries felt that a consensus had been achieved on definition and breadth of the amendments. However, it later appeared that some disagreements over jurisdiction remained. During the 2017 ASP, delegates further negotiated between the majority advocating for a “broad view” by which states can elect to opt out of the ICC’s jurisdiction for the aggression amendments and the strong minority advocating for a “narrow view” of ICC jurisdiction requiring states to opt in to the provision. Ultimately, delegates voted to adopt the aggression amendments at the 2017 ASP along the narrow view—State Parties must opt in to accept the amendments to enable their enforcement in the state territory and over the nationals of those State Parties.

Defining the Crime of Aggression is actually not a new concept. United States delegates had advocated during the Rome Conference for the inclusion of the Crime of Aggression in the Rome Statute with the requirement that the Security Council must refer cases to the Court as a final effort to solidify the crime in the initial text; however, there was no consensus for the requirement at the time. Concern about ICC jurisdiction over acts of aggression proved to be one critical reason that the Bush administration would not sign the Rome Statute. The administration was concerned that US military activities internationally could be considered crimes of aggression.

This was a departure from previous US positions on the crime of aggression. US efforts to prosecute the crime of aggression extend back to the International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East (Tokyo). In The Journal of International and Comparative Law, Jennifer Trahan described, “The Nuremberg Tribunal deemed ‘crimes against peace’ to be ‘the supreme international crime, only differing from other war crimes in that it contains within itself the accumulated evil of the whole.’ Trahan also pointed to the prohibition of aggressive use of force enshrined in U.N. Charter Article 2(4), which precludes use of force against the “territorial integrity” or “political independence” of any state, unless authorized by U.N. Security Council Chapter VII enforcement actions or Article 51 arguments of individual or collective self-defense.[1]

The new definition of the crime of aggression is as follows:
“‘crime of aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”[2]
The amendments then include a list of actions that would qualify as an “act of aggression”: “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations… [including any] of the following acts, regardless of a declaration of war, shall… qualify as an act of aggression:
            (a)  The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;
            (b)  Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;
            (c)  The blockade of the ports or coasts of a State by the armed forces of another State;
            (d)  An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;
            (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;
            (f)  The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;
            (g)  The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.”[3]
If any acts fell under these categories but were authorized by the Security Council or were for individual or collective self-defense, they would not qualify as crimes of aggression.[4]

To initiate any investigation on a crime of aggression, a referral can originate from the Security Council, a State Party, or the Office of the Prosecutor with Pre-Trial Chamber approval.[5] The aggression amendments do not allow the ICC jurisdiction over Non-States Parties, or their nationals, unless the case is referred by the Security Council for Non-State Parties. Therefore, this stipulation offers the Permanent Five Security Council members who are not State Parties—namely the US, Russia, and China—de facto immunity from the Court’s jurisdiction because of their vetoes.[6] (For clarity, the ICC only tries individuals, so such cases and resultant trials only involve the culpability of the most senior level leadership.) The aggression amendments will enter into force for State Parties that have ratified them by July 17, 2018, which is also the 20th anniversary of the ICC’s founding treaty, the Rome Statute.[7]

There are some potential complications that will need to be considered. Are states that ratify the Rome Statute after the adoption of the amendments subject to the amendment or must they additionally ratify it? Can non-State Parties by a special declaration accept the Court’s jurisdiction in relation to these amendments?[8] For these questions and other grey areas, the ICC judges have the discretion to determine the breadth and limitations of the aggression amendments. Despite limitations to the Court’s jurisdiction over the crime of aggression, the beginning of the Court’s jurisdiction over this critical fourth crime on the 20th anniversary of the creation of the Rome Statute marks a momentous milestone and progress for the Court.


Written By Amanda Schmitt



[1] Trahan, Jennifer. “An Overview of the Newly Adopted International Criminal Court Definition of the Crime of Aggression.Journal of International and Comparative Law, Vol. 2, Iss. 1, Article 3. March 2016. 33.
[3] The Rome Statute. ICC. 7-8.
[4] Trahan, Jennifer. “An Overview of the Newly Adopted International Criminal Court Definition of the Crime of Aggression.” 39.
[5] Trahan, Jennifer. “An Overview of the Newly Adopted International Criminal Court Definition of the Crime of Aggression.” 41.
[6] Trahan, Jennifer. “An Overview of the Newly Adopted International Criminal Court Definition of the Crime of Aggression.” 41.
[7]Historic activation of jurisdiction over crime of aggression at International Criminal Court.” Coalition for the International Criminal Court. December 15, 2017.

Monday, April 02, 2018

The Palestine-Israel Situation at the ICC: an update of the Prosecutor’s preliminary examination in Palestine


On January 16, 2015, the Prosecutor of the International Criminal Court (ICC), Mrs, Fatou Bensouda, launched a preliminary examination into the situation in Palestine to determine whether there is a reasonable basis to proceed with a formal investigation. Specifically, the Prosecutor will, on the basis of evidence available, consider jurisdiction, the admissibility of alleged crimes, domestic prosecution of them, their seriousness and the interests of justice. If these criteria are met, since the Prosecutor is addressing the situation on her own initiative, she might ask the Pre-trial Chamber to authorize a formal investigation. Such an investigation could lead to an arrest warrant and eventually a trial.

While the Prosecutor has not made a final decision on the crimes to be pursued and persons to charge, she has declared that she has assessed a large amount of relevant materials and has made significant progress in her analysis of both factual and legal matters that are crucial to the determination of a formal investigation. Crimes that are likely to be examined are war crimes and crimes against humanity committed by both Israelis and Palestinians in the West Bank and East Jerusalem since 13 June 2014.

The Office of the Prosecutor (OTP) has put its focus on the settlement activities in the West Bank and East Jerusalem, in particular as they involve the alleged transfer of people into and from those occupied territories.

With regard to the 2014 Gaza conflict, the OTP has considered reported incidents which appear to be the most serious in allegedly harming civilians and/or are representatives of the main types of conduct considered by the Office, including the alleged targets and objects hit by attacks and the geographical areas which appear to be most seriously affected by attacks. The Prosecutor is required to conduct a fully independent, impartial and thorough examination under the strict guidance of the Rome Statute (the Court’s founding treaty) and she will examine potential crimes committed by both Israelis and Palestinian individuals equally, using the same criteria and procedures.

The Rome Statute established an international organization composed of states. On 29 November 2012, the UN General Assembly adopted Resolution 67/19 granting Palestine “non-member state” status. On 2 January 2015, Palestine deposited its instrument of accession to the Rome Statute with the UN Secretary-General (UNSG). In its capacity as depositary and on the basis of the General Assembly resolution, the UNSG accepted Palestine’s accession to the Rome Statute. As a result, Palestine became the 123rd State Party to the ICC, giving the ICC jurisdiction over crimes committed on the territory of Palestine. The Office acknowledged the Secretary General’s decision and concluded that ICC jurisdiction over the Palestine situation began on 29 November, 2012.

There is no timeline provided in the Statute for a final decision on preliminary examination. However, based on the recent proceedings and announcements, it seems that the Prosecutor is more likely than not to be authorized to initiate a formal investigation. If this happens, it could place the Prosecutor in direct and open opposition to the US. The Trump administration position on the ICC as an organization is unclear, but will probably be hostile, given its attitude towards international institutions, which will be strengthened by recent changes in senior officials, and its expected very strong reactions to the ICC’s involvement in Afghanistan and potentially in Palestine. Parts of the U.S. public will share these reactions. Under these circumstances, we provide the general public with this brief blog as background information for the Palestine/Israel situation at the ICC.

For more information, please refer to the two documents published recently by AMICC that provide both a brief overview and a detailed full background of the Prosecutor’s preliminary examination.

Written by Yixuan Ouyang