ICC in the Media, Update #23

As we reported in earlier blog posts, late on Saturday night the United Nations Security Council, in a rare act of consensus, referred the situation in Libya to the International Criminal Court. Since we have already analyzed the content of the referral, we will focus on the media's coverage of the event. Elizabeth Evenson of Human Rights Watch reportedly said on Sunday that "[i]t is very positive that the ICC is being looked to by the Security Council as a possible tool for accountability." ICC Prosecutor Ocampo has made a statement that he has formed a team to begin collecting information and hopes to decide within days whether to open a formal investigation. A preliminary probe must establish whether crimes within the jurisdiction of the ICC have been committed, such as crimes against humanity, before any more significant investigations are launched. U.N. Secretary General Ban Ki-moon has suggested that as many as 1,000 individuals have lost their lives in the conflict to date, but more investigation is needed to acquire accurate and complete information. The media has remained quite silent on the other activities of the International Criminal Court during this time, but the on-going cases and investigations are continuing in the background. Photo Credit: Associated Press.

AMICC Analysis of UN Security Council Referral of Libya Situation to the ICC

On Saturday, February 26 the UN Security Council unanimously adopted Resolution 1970 to address the ongoing crisis in Libya and to refer the situation there to the ICC Prosecutor. Since Libya is not a State Party to the Rome Statute, the referral provides the basis for ICC jurisdiction over alleged crimes committed in Libya since February 15. It invites, but cannot require, the ICC Prosecutor to open an investigation into crimes within the Court’s jurisdiction. This resolution may mark the beginning of a new era in the work of the Court and in its relationship with the US. It is quite possible that there will be further referrals, supported by the US, of the cases of fallen leaders in other countries in the Middle East.

The text of the resolution directly addresses the ICC referral in six of its paragraphs. (Many of the other 38 paragraphs and the two annexes deal with sanctions, travel bans and the freezing of assets.) The first is preambular paragraph 12 which recalls Article 16 of the Rome Statute, a provision which describes the ability of Security Council to defer ICC investigations and prosecutions for renewable periods of 12 months. It mirrors preambular paragraph 2 of Resolution 1593 (2005) which referred the Darfur, Sudan situation to the Court. It is unclear to us why this preambular paragraph was included. There is no corresponding operative paragraph in either resolution. The present resolution, like 1593, does not mention Article 13(b) which states how the Court’s jurisdiction may be triggered by a Security Council referral. However, the resolution itself appears to meet the requirements of Article 13(b) since it was adopted under Chapter VII of the UN Charter.

Operative paragraphs 4 and 5 state the referral, limited to crimes that occurred since February 15, 2011, and require the cooperation of Libyan authorities. Similar to Resolution 1593, the resolution reiterates that non-States Parties to the Rome Statute have no obligation to cooperate but nonetheless urges other countries and concerned regional and international organizations to cooperate. In contrast to the Darfur resolution, Resolution 1970 does not take note of the existence of immunity agreements which the Bush administration claimed were authorized by Article 98(2) of the Rome Statute. Over 100 of these agreements were concluded by the Bush administration as an effort to shield US nationals from the reach of the ICC, though the practice petered out in the second term of that administration.

Operative paragraph 6 purports to grant exclusive jurisdiction over non-Libyan nationals of countries that are not ICC States Parties to the courts of their nationalities, subject to waiver. This closely tracks operative paragraph 6 of the Darfur resolution. It should be noted that under the UN Charter the Security Council can give orders to UN Member States but cannot bind other international organizations. As such, the ICC could ignore this provision, though it would likely try to avoid this situation. Operative paragraph 7 invites the ICC Prosecutor to report regularly to the Security Council, as it did with in Darfur resolution.

The final operative paragraph on the ICC referral, OP8, recognizes that the UN will not bear any costs associated with the referral. This provision, like the Article 16 reference and the non-cooperation for non-States Parties clause, are in line with provisions that the US has insisted on in the past. We do not know at this time whether the US requested it, though it is likely that the US delegation was again concerned about the possibility of jurisdiction over US nationals and complaints from Congress about US funds supporting an ICC investigation.

Resolution 1970 is another example of the US supporting the ICC when it is in the American national interest, a trend which will help the US to the gain the comfort with the Court that is necessary for a close and productive relationship that could eventually lead to the US joining the Court. Accountability for the alleged crimes in Libya is of great interest in the US, and even gained the attention of Senator Robert Menendez (D-NJ) who last week proposed a resolution urging action by the ICC. This latest resolution reaffirms US support for the ICC as an international organization and as an important institution in dealing with major atrocities. The US co-sponsored and voted in favor of Resolution 1970, two positive actions in comparison with its limited decision to abstain from voting on Resolution 1593 on Darfur.

UN Photo/Evan Schneider

Statement by ICC Prosecutor Luis Moreno-Ocampo on Libya

"The decision to do justice in Libya should be taken by the Libyan people. Currently, Libya is not a State Party to the Rome Statute. Therefore, intervention by the ICC on the alleged crimes committed in Libya can occur only if the Libyan authorities accept the jurisdiction of the Court, (through article 12(3) of the Rome Statute). In the absence of such step, the United Nations Security Council can decide to refer the situation to the Court. The Office of the Prosecutor will act only after either decision is taken". AMICC will continue to monitor the situation with the referral here and on our website, www.amicc.org

Source: Office of the Prosecutor

AMICC Convener John Washburn on the ICC and the Revolts in the Middle East

Calls are mounting in the media and in Washington for ICC action on the carnage and killings in Middle East revolts. Letters and op-eds in the New York Times and editorials in the Washington Post, among others, have urged ICC investigations and trials, especially in Libya. New Jersey Senator Robert Menendez (D) has introduced a resolution in the US Senate calling for Court action in Libya. These US reactions have been encouraged by similar demands in Europe and by international condemnations such as the statement by UN High Commissioner for Human Rights Navi Pillay and in the Security Council.

Some of these demands do not recognize that because the countries where uprisings are happening do not belong to the ICC, it cannot have jurisdiction over them unless a new government voluntarily accepts it or the Security Council refers a situation to the Court. The ICC prosecutor has recently emphasized this in a brief statement on Libya.

Nonetheless, it is very likely that some of the Middle East revolutions will produce ICC investigations, prosecutions and trials. The ICC was designed deliberately as a permanent court which could start to deal with crimes as they occurred, rather than being established only afterward, as with the tribunals for Rwanda and the former Yugoslavia. It can therefore partly satisfy the urge for immediate action which is so clear in the calls on it now.

Despite the Prosecutor’s rather absolute statement of no investigation because there can be no jurisdiction in Libya, he has in fact done evaluations and assessments of several situations in which there is no present prospect of ICC jurisdiction. He will come under heavy pressure to do the same in the Middle East.

Since new or surviving governments are unlikely to have the will or political coherence to declare acceptance of ICC jurisdiction, it will have to come through Security Council referrals. There are several things to remember about referrals: the US abstained on resolution 1593 referring the Darfur, Sudan situation to the ICC, and is likely to abstain or even support a referral of crimes it has already forcefully condemned; the Court does not have to accept a referral; since a referral conveys an entire situation, not just specific cases, the Court may investigate crimes in that situation by anyone on any side; and the ICC jurisdiction a referral may activate can only take on a few persons with the finally greatest and ultimate responsibility for the very most serious atrocity crimes.

ICC in the Media, Update #22

This week the international community has remained focused on events in the middle east, particularly in Libya. In response to numerous requests, including by Libya's deputy ambassador at the U.N., ICC Prosecutor said on Wednesday that the ICC would not prosecute reported crimes against humanity in Libya unless referred by the U.N. Security Council or Libya itself. In the Kenya post-election violence case four men charged with killing nine people during the 2008 violence have reportedly requested to have their cases transferred to the ICC. The application was rejected by a Kenyan high court, but the accused have contacted the ICC's Office of the Prosecutor regarding the matter. The ICC judges recently rejected named potential perpetrator Sang's application to bar the issuance of summons or arrest warrants. The judges warned against suspects filing duplicitous applications, and did not review the merits of Sang's applications having recently rejected similar applications from suspects Ruto and Ali. Although the suspects are still fighting to have the ICC cases deferred, they have begun selecting top international lawyers to represent them at trial. We reported last week that President Kibaki had controversially selected individuals for top judicial positions without consulting with Prime Minister Odinga. The United States State department spokesperson made a statement on Sunday urging Kenya to resolve its judicial appointment controversy. After a week of debate over the move Kibaki announced on Tuesday that he would withdraw his nominations and allow the Judicial Service Commission to determine who will fill the positions. This move follows a ruling by the Nairobi High Court that the action was unconstitutional.

In other news, the Lubanga trial is set to resume after ICC judges rejected the defense's application to dismiss the case on the grounds that the Prosecutor abused court process when one of the intermediaries allegedly bribed and coached a witness. A further explanation of the judge's decision is expected to be released shortly. A witness for the prosecution in the on-going Bemba trial recently admitted that he made an error in his application of the age of his daughter at the time she was raped by Bemba's soldiers, but apparently it has now been resolved. Photo credit: Daily Nation.

ICC in the Media, Update #21

This week the media's gaze remains focused on Kenya and the attempts of President Kibaki and named ICC suspects to gain a U.N. Security Council deferral for Kenya's post-election violence. Reportedly 29 civil society groups have begun lobbying the government to cease its deferral efforts, have urged the President to dismiss Kenyatta and Ruto (named by the ICC) from his cabinet and, most importantly, have insisted that he stop working closely with the suspects.

Many are concerned that the suspects had a hand in selecting new members of the judiciary which, if a domestic tribunal is created, would essentially amount to the perpetrators selecting the investigators, prosecutors and judges that will ultimately decide their cases. Furthermore, opposition leader and Prime Minister Odinga claims that he was not sufficiently consulted in the process. Reportedly many civil society organizations do not think that Kenya will succeed in proving to the Security Council that a deferral is necessary for international peace or security concerns. Nevertheless, Kibaki, Kenyatta, Ruto and their supporters continue to rally support for a U.N. Security Council deferral. Kibaki recently met with a number of envoys from Security Council states presumably to discuss the deferral. Last week the Minister on Foreign Affairs wrote to all permanent and observer nations of the security council seeking support for the deferral saying that it will allow a local mechanism to come into existence. This move is contrary to the advice of several top advisors who say that achieving a deferral is highly improbable; the suspects are better served by spending their time and resources in crafting a strong defense.

Many Kenyans, including victims of post-election violence, are reportedly relieved that a deferral will most likely not be achieved because they do not believe that a credible tribunal will be created domestically. For them, the attempts to avoid ICC prosecution combined with the fact that the perpetrators remain powerful and respected political actors despite their possible guilt, show that Kenya is not serious about bringing those responsible to justice. This view is shared by a significant segment of society, as shown by a recent poll finding that 57% of Kenyans still want those most responsible to be tried at the ICC and 61% are against attempts to pull out of the ICC. Although the deferral attempt is the most widely publicized attempt, those named by the ICC have also made other efforts to escape the proceedings. Mr. Sang, a named journalist, has filed documents at the Court accusing the Prosecutor of acting out of ulterior motives and seeks several orders from the court that would prevent the issuance of summons, if only temporarily. William Ruto also made an application to the Court to prevent the issuance of summons, which was recently rejected by ICC judges. The judges did, however, scold Ocampo for having released the name of former Police Commissioner Ali before the judges ruled on the status of his application.

In other news, witness testimony continues in the ICC's Jean-Pierre Bemba trial. A witness testified yesterday that Bemba's soldiers shot civilians out of anger after losing a battle to CAR soldiers. It appears that the Philippines may be on its way to becoming a state party to the ICC. The nation signed the Rome Statute in 2000, but has yet to ratify it. Reportedly the primary government agency opposed to the ratification has recently changed its stance, just in time for the ICC President's visit scheduled for next month. Many hope that the treaty will now be ratified without delay. Video Credits: Capital FM.

ICC in the Media, Update #20

Amidst the extensive media coverage of Egypt and other nations this week the ICC still found its way into the news. Most significantly, the African Union has come forward in support of Kenya's request to delay ICC trials against some of its most powerful politicians. Kenya VP Musyoka has stated that Kenya will now attempt to lobby the Security Council to defer the proceedings. However, he has insisted that measures will be taken to ensure that justice is done through domestic proceedings. President Kibaki has taken a similar stance, which has been widely criticized as a flimsy attempt to shield 2012 presidential hopeful Kenyatta and other prominent politicians named by the ICC. Even Prime Minister Odinga, one of the ICC's most loyal supporters in Kenya, is reportedly in favor of reviving plans for a domestic tribunal. U.S. Deputy Secretary of State has stood up in support of the ICC proceedings, saying that the U.S. strongly backs the ICC's involvement in the 2008 Kenyan post-election violence. President of the ICC's Assembly of States Parties Christian Wenawesar has expressed his concern over Kenya's possible request to the U.N. Security Council. Such an action would be contrary to cooperation with the ICC, and would implicitly suggest that the situation is a threat to international peace and security. The ASP President has instead encouraged Kenya to work with the ICC which could, if Kenya demonstrates substantial efforts toward creating a local mechanism, grant Kenya a deferral. In the interim, Kenya's High Court has issued an order stopping the ICC's taking of statements from former security chiefs on the ground that it conflicts with an article in Kenya's new constitution. The case has been forwarded to the Chief Justice for further proceedings.

In other news, this week the Bemba trial has continued to hear witness testimony. Most of the stories heard involved rape, pillaging and physical violence. The trial will continue on Monday with the testimony of Witness 82. In the wake of Sudan's referendum vote an AU official has stated that the U.S. and France are considering supporting a Security Council deferral for the ICC case against President Bashir of Sudan to encourage peace in the region. Officials have said, however, that if this were to happen it would not be until south Sudan gains independence in July. Photo Credit: BBC News (displaying a scene from the 2008 post-election violence).