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).

ICC in the Media, Update #19

This week the media has once again focused on the ICC's involvement in Kenya. We mentioned last week there were reports indicating that Kenya was seeking aid from the African Union to defer the case until Kenya can pull out of the Rome Statute. Reports this week confirm that a high ranking team of cabinet members led by VP Kalonzo Musyoka have visited fellow African nations seeking support to petition the Security Council to defer the situation in Kenya. The deferral, as set out in Article 16 of the Rome Statute, would last for a year and could be repeated by the Security Council a number of times. This plan reportedly suffered a serious setback on Tuesday at the AU Summit in Addis Ababa when the African Union rejected Kenya's request for the AU to help block ICC prosecutions. However, China has said that it will support Kenya from interference in internal affairs. In the interim the ICC has urged Kenya to deal directly with it as opposed to rallying the African Union. Head of the Assembly of State Parties Christian Weneweser has said that if Kenya is serious about setting up national proceedings, as Musyoka and President Kibaki have claimed, then the ICC will try to support it.

Many members of civil society oppose the government's attempt to escape ICC prosecution. MP Martha Karua has warned that avoiding the ICC may best aid the powerful in the 2012 elections, but it will have lasting negative consequences on everyday citizens. Furthermore, the government itself appears not to be unified on the issue of a deferral. Musyoka, in his campaign across the continent, purported to speak on behalf of President Kibaki. However, Prime Minister Odinga, who has spoken out against the deferral and Kenya's pulling out of the ICC, has confirmed that he was not consulted on Musyoka's activities.

In other news, Callixte Mbarushimana, wanted for crimes in the Democratic Republic of the Congo, has been handed over by the France to the International Criminal Court so that it can begin its proceedings against him. Witness testimony continues in the Jean-Pierre Bemba trial. Witnesses claim that Bemba's soldiers raped and sodomized them, often in front of their families. Finally, reports surfaced this week that South Sudan is considering becoming a member to the ICC if it secedes. Preliminary results from the referendum indicate that secession is likely. Photo Credit: Capital FM.

ICC in the Media, Update #18

For the past several weeks the media has primarily focused on the situation in Kenya. The ICC Prosecutor's naming of six potential perpetrators has stirred a great deal of controversy within Kenya and internationally. Reportedly members of Parliament passed a motion in late December asking the government withdraw its membership from the Rome Statute. Thusfar, neither the President nor Prime Minister has confirmed that they will withdraw. This move has attracted criticism within Parliament, Kenya and the international community. However, Article 127 of the Rome Statute stipulates that the withdrawal process takes over a year, during which time Kenya may be required to cooperate with existing investigations, according to the Kenya National Commission on Human Rights. Furthermore, a new poll has indicated six out of ten Kenyans want the ICC's involvement in post-election violence to continue. Several members of the government appear to have urged other countries to withdraw from the ICC, and are reportedly seeking African Union backing on Kenya's withdrawal. The government has not yet filed a motion asking the other countries within the AU to break their ties with the ICC, and it is not clear whether it intends to. In any event such a motion would take up to 60 days to be admitted for discussion. In early January Henry Kosgey, one of Kenya's named perpetrators, resigned from his position as Industrialization Minister after several corruption allegations. In other news,Callixte Mbarushimana, wanted for war crimes in the Democratic Republic of the Congo, will reportedly be transferred from France to the ICC by the end of January. After he is transferred to the Hague his trial can commence. Photo credit: Voice of America.

John Bolton Warns of ICC's Threat to US Sovereignty in Criticism of Customary International Law

In a new commentary by John Bolton, the former State Department official and US Ambassador to the United Nations argues that the Obama administration aims to subvert the US as a champion of the rule of law by imposing norms on it created through abuse of customary international law by the "academic Left." While recognizing that this type of law, which is based on the practice of countries, is at times sensible, Bolton goes on to imply that the International Criminal Court is one result of this perversion of customary international law which he views "as a fertile field for imposing [the academic Left's] own ideological standards internationally and binding countries to 'laws' they never explicitly approved."

In fact, the ICC was established and is governed by the Rome Statute treaty, hardly customary international law. Thus, Bolton's concerns that the "ICC's enormous potential prosecutorial power awaits only the opportunity to expand almost without limit" fail to recognize the limits placed on the ICC Prosecutor by the Rome Statute. These include jurisdiction limits based on persons, territory, time and the gravity of the crimes. In fact, as long as the ICC is not a State Party to the Rome Statute, the Court will not have jurisdiction over the United States and thus almost no ability to investigate US nationals.


UN Photo/Eskinder Debebe

Bemba Trial Resumes Today in The Hague

The trial against former Congolese Vice President Jean-Pierre Bemba Gombo resumes today in The Hague with the continuation of the prosecution case which began in November 2010. Bemba is charged with atrocities, including rape and gender crimes, allegedly committed in the Central African Republic by troops under his control. The trial is webcast on the ICC website with a 30-minute delay. The courtroom calendar is available here.