Reparations: The US and the International Criminal Court

Reparations provides redress to victims for crimes. Reparations can take many forms.  According to Redress.org, the four main forms of reparations include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition: “Restitution is designed to re-establish the situation which would have existed had the wrongful act not occurred.  Compensation should be provided for any economically assessable damage which result from the act.  Rehabilitation is to include medical, psychological, and other cares and services, as well as measures to restore dignity and reputation.  Satisfaction and guarantees of non-repetition includes verification of facts and full public disclosure of the truth; a declaratory judgment” [1]

 Reparations at is based on a victim’s understanding of justice.  International Criminal Court functions not simply to punish perpetrators of violence, but, also to protect victims against injustice.  It is important to note that:

“The court has the option of granting individual or collective reparation, concerning a whole group of victims or a community, or both. If the court decides to order collective reparation, it may order that reparation to be made through the Trust Fund for Victims and the reparation may then also be paid to an inter-governmental, international or national organization.” [2]

This focus on the needs of victims by the court has led to the establishment of the Trust Fund for Victims.  The TFV was created as a result of Article 79.  This increased push towards victim recognition could be said to be associated with the significant shift in the perception of legal reparations from pre-world war II to now.  The first major request for reparations came as a result of war.  Pre-World War I, reparations had a connotation of payment by national losers to winners of conflict (Buxbaum, 319).  Post-World War II, there was an increased recognition of the importance of individuals and collectives as recipients of reparations.

               While reparations as outlined in the ICC do not appear in US criminal law, there is a history of reparations in the United States.  The most pertinent case is US reparations for Japanese American internment.  However, the word “reparations” is not used outside of this historical context in the US criminal system.  There is, nonetheless, an established system of restitution in place within the US criminal justice system as well as allowances for compensation and civil damages.

               Restitution is provided by those convicted of a crime to their victims.  Upon conviction, the court has the ability to order the defendant to give restitution to victims, if he/she has the ability to pay.  According to the National Center for Victims of Crime website, “restitution can cover any out-of-pocket losses directly relating to the crime.”[3] Compensation is state sponsored and given by the state.  Eligibility must be shown in order for compensation to be granted.  In the US, restitution allows victims financial redress without applying while compensation and civil damages requires action victim participation.  While compensation is not court ordered, civil damages is court ordered as a result of victims winning a lawsuit against the perpetrator in civil court.

               The importance of reparations does not lie only in providing victims with opportunities to gain redress.  The recognition of reparations as an integral aspect of justice demonstrates the importance and focus on victims in the criminal justice system, whether internationally or domestically.  Reparations provides an impetus for restorative justice where the focus is not just punishing criminals, but also sincere attempts to bring back the victims to the status they had previously in some way.

Written by: Chinonye Alma Otuonye

References:

Buxbaum, Richard (2005). A Legal History of International Reparations. Berkeley Journal of International Law, 23(2), 314-346.

Cullinan, Sarah (2001). Torture Survivors’ Perceptions of Reparation: Preliminary Survey. Retrieved from http://www.redress.org/downloads/publications/TSPR.pdf

Goodwin, Catherine M (1998). The Imposition of Restitution in Federal Criminal Cases. Federal Probation. Retrieved from http://www.ussc.gov/sites/default/files/pdf/training/online-learning-center/supporting-materials/Imposition-of-Restitution-in-Federal-Criminal-Cases.pdf

International Criminal Court Web Portal. 2003. Web. 29 October 2015. Retrieved from http://www.icc-cpi.int/EN_Menus/ICC/Disclaimer/Pages/terms%20of%20use.aspx

National Center for Victims of Crime (2004). Restitution. Retrieved from https://www.victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-crime-victims/restitution

Redress. 2001. Web. 29 October 2015. Retrieved from http://www.redress.org/what-is-reparation/what-is-reparation

The Trust Fund for Victims. Web. 29 October 2015 2015. Retrieved from http://www.trustfundforvictims.org/trust-fund-victims, http://www.trustfundforvictims.org/financial-information

UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: http://www.refworld.org/docid/3ae6b3a84.html [accessed 27 October 2015]

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[1] Cullinan, Sarah (2001). Torture Survivors’ Perceptions of Reparation: Preliminary Survey. Retrieved from http://www.redress.org/downloads/publications/TSPR.pdf

[2] International Criminal Court Web Portal. 2003. Web. 29 October 2015. Retrieved from http://www.icc-cpi.int/EN_Menus/ICC/Disclaimer/Pages/terms%20of%20use.aspx

[3] National Center for Victims of Crime (2004). Restitution. Retrieved from https://www.victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-crime-victims/restitution

South Africa and the Worrisome Call to Withdraw from ICC

On October 11, 2015, South Africa’s ruling party, the African National Congress (ANC), announced its intention to withdraw South Africa from the ICC.  South Africa was one of the major African proponents of the creation of the ICC and one of the first to sign and ratify, and include its standards in its domestic law.  With South Africa’s global role as a moral leader slowly waning in the post-Mandela era, this shift in attitude about the ICC proves worrisome if it indeed happens.  The South African image of being advocates of human rights hangs in the balance. 

According to the Rome Statute, Article 127, “A state party may, by written notification addressed to the Secretary General of the United Nations, withdraw from this Statute.  The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.” (Article 127(1) Rome Statute) With regards to their obligations: “A state shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have been accrued” (Article 127(2) Rome Statute) In essence, while South Africa may withdraw soon they will still be party members until a year after their request for withdrawal which will still hold South Africa accountable.

South Africa’s announcement comes after its failure to detain Sudanese President Omar Al-Bashir.  The ICC issued a warrant for the Bashir for war crimes, crimes against humanity, and genocide and with South Africa a party member it had an obligation to detain him.   Upon the announcement, ANC representative Obad, stated that the ICC had lost its direction and that powerful nations “trample” human rights and pursue “selfish interest” alluding to the targeting of African nations by the ICC since its inception.[i]  South Africa power in the AU provides a worry that this could lead to a potential “African-wide walkout from the court.”

The rhetoric of an ICC bias towards African nations has been long standing.  According to The Guardian, President Zuma stated: “In the eyes of the African Leaders, the ICC is biased. Only Africans they are interested [sic].  This is what has made Africa feel we need to relook at our participation.  It looks like it is just meant for us” (Musker, 2015).  President Zuma appears to be neglecting the ICC’s current investigations in non-African countries such as Colombia, Georgia, Honduras, Iraq, Palestine, Afghanistan, and Ukraine.  The African bias argument also fails to have a complete understanding of the court system.  Of the eight cases the ICC has pursued in Africa thus far two have been referred by the United Nations Security Council-Sudan and Libya- and four have been self-referrals, in which the state involved has requested the assistance of the court-the Democratic Republic of Congo, the Central African Republic, Uganda and Mali.  Article 13 of the Rome Statute, states that the court has jurisdiction if: “(a) A situation in which one or more of such crimes (outlined in Article 5) appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations;(c) The prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.” (Article 13 (a)(b)(c)).

Currently, the South Africa situation is fluid as a result of attacks by both domestic and International civil societies against the decision and the impending result in the Assembly of State Parties meeting in November. 

Written by: Chinonye Alma Otuonye

References:

Kersten, Mark (2015). Sudan, South Africa and the Future of the International Criminal Court in Africa. The Washington Post. Retrieved from https://www.washingtonpost.com/blogs/monkey-cage/wp/2015/10/13/sudan-south-africa-and-the-future-of-the-international-criminal-court-in-africa/

Musker, Saul (2015). Why South Africa is Wrong to Leave the International Criminal Court. The Guardian. Retrieved from http://www.theguardian.com/world/2015/oct/14/why-south-africa-is-wrong-to-leave-the-international-criminal-court

Nkosi, Milton (2015). What South Africa Leaving the International Criminal Court Would Mean. BBC News. Retrieved from http://www.bbc.com/news/world-africa-34509342

Pizzi, Michael (2015). South Africa threatens to Withdraw from ICC, Alleging Anti-African Bias. Al Jazeera America. Retrieved from http://america.aljazeera.com/articles/2015/10/12/south-africa-threatens-to-withdraw-from-icc-alleging-anti-african-bias.html

Styrdom, TJ (2015). South Africa Plans to Leave International Criminal Court. Reuters. Retrieved from http://www.reuters.com/article/2015/10/11/us-safrica-icc-idUSKCN0S50HM20151011

UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: http://www.refworld.org/docid/3ae6b3a84.html [accessed 27 October 2015]

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[i] Strydom, TJ, “South African Plans to Leave International Criminal Court,” Reuters. (2015), http://www.reuters.com/article/2015/10/11/us-safrica-icc-idUSKCN0S50HM20151011

UN High Commissioner for Human Rights Calls for Hybrid Court in Sri Lanka: What About the ICC?

               On September 16 of 2015, the UN High Commissioner for Human Rights, Zeid Ra’ad Zeid Al-Hussein, made a statement on the atrocities that occurred in Sri Lanka as a result of its 26 year long civil war.  This war between the Sri Lankan government and the Liberation Tigers of Tamil Eelam (LTTE) resulted in scores of crimes against civilians including unlawful killings, deprivation of liberty, enforced disappearances, torture, and sexual and gender based violence, as outlined by the report published by the Office of the United Nations High Commissioner of Human Rights. 

After the Sri Lankan government defeated the rebel forces, there has been a new emphasis on reconciliation and healing of the country.  To achieve this healing, the new government committed to dealing with issues of accountability.  While the UN and the Commission for Human Rights have acknowledged this venture, there is a belief by the UN High Commissioner for Human Rights and Human Rights council that Sri Lankan government cannot deal alone with such serious crimes.  As noted in the “Report of the Office of the United Nations High Commissioner for Human Rights on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka,” section seven, article 75 “the commitment by the new Government to pursue accountability through a domestic process is commendable…But the unfortunate reality is that Sri Lanka’s criminal justice system is not yet ready or equipped to conduct the ‘independent and credible investigation’ into the allegations contained in the OISL report, or ‘to hold accountable those responsible for such violations’, as requested by the Human Rights Council” (Human Rights Council, “Report of the Office of the United Nations High commissioner for Human Rights on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka”).

Following this conclusion of the Sri Lankan government incapability of adequately managing reconciliation by itself, the report outlined its recommendation of a hybrid court in which international judges, prosecutors, lawyers, and investigators are integrated with local counterparts in a hybrid court.  As outlined in Section eight, Article 88, “ The High Commissioner remains convinced that for accountability to be achieve in Sri Lanka, it will require more than a domestic mechanism.  Sri Lanka should draw on the lessons learnt and good practices of other countries that have succeeded with hybrid special court, integrating international judges, prosecutors, lawyers and investigators.  Such a mechanism will be essential to give confidence to all Sri Lankans, in particular the victims, in the independence and impartiality of the process, particularly given the politicization and highly polarized environment in Sri Lanka.  OHCHR stands ready to continue providing its advice and technical assistance in the design of such a mechanism.” (Human Rights Council, “Report of the Office of the United Nations High commissioner for Human Rights on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka”)

Since Sri Lanka is not a party to the ICC’s Rome Statue, the Commissioner recommends that Sri Lanka ratify the Rome Statue as well as include the criminalization of war crimes, genocide, and crimes against humanity in its domestic legislation.  The recommendation for such a hybrid court also calls for a significant support by the International community.  The Commissioner asks for the “ United Nations system and [its] member states to provide technical and financial support for the development of transitional justice mechanisms provided that they meet international standards; set up a coordination mechanism among donors in Sri Lanka to ensure focused and concerted efforts to support the transitional justice process.” (Human Rights Council, “Report of the Office of the United Nations High commissioner for Human Rights on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka”)

Now there is no explicit information as to how this hybrid court will be set up.  Its establishment will be in conjunction with the Sri Lankan government and will take special notice of the wants of the Tamil people. 

In relation to the ICC, the report makes it clear that the hybrid court in Sri Lanka will not serve as a substitute for nor does it display any ineffectiveness or illegitimacy of the ICC.  Rather the Commissioner emphasizes that the hybrid court is a necessary step in managing the Sri Lankan atrocities because Sri Lanka is not a state party to the Rome Statue.  Moreover, the Commissioner makes clear his recommendation for Sri Lanka to ratify the Rome statute and become a state party.  In this manner, the recommendation of a hybrid court in Sri Lanka in no way establishes a move by the UN away from the ICC but instead calls for the continued expansion of the court’s jurisdiction.  

Written by Chinonye Alma Otuonye

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.

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[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, 7478^th 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

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

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