ICC in the Media, Update #24

March has been a very productive month for the International Criminal Court. As we reported earlier, the United Nations Security Council referred the situation in Libya to the ICC, Pre-Trial Chamber II decided to issue summons for the six named suspects in the Kenya investigation, and the Court continues proceedings in its numerous ongoing cases. The ICC's formal investigation into the situation in Libya is in full swing. ICC Prosecutor Ocampo has received confirmations that Gaddafi's forces have fired on peaceful demonstrators. However, Ocampo has also said that if opposition forces behave similarly they will also face scrutiny. To ensure a fair investigation the Prosecutor has welcomed information from potential suspects regarding their efforts to punish perpetrators and prevent atrocities. President Obama has made a statement supporting the ICC holding accountable the perpetrators of atrocities in Libya.

In response to the issuance of summons by the ICC for the "Kenya six" members of government have said that the government will fight both the admissibility and jurisdiction of the cases. However, members of the ODM party, who have supported an ICC intervention from the beginning, have said that neither they nor the Cabinet were consulted in the matter. According to Kenya's Secretary General until official process for determining government action has been abided by, the pronouncement that the government will challenge the ICC should be merely taken as a personal view of a handful of cabinet members. Members of the ODM party are reportedly taking steps to ensure that the six suspects will not have access to money for legal fees set aside from public funds because "It is wrong to assist the suspected perpetrators when the victims of the violence are still suffering." In the meantime the U.N. Security Council has confirmed receipt of Kenya's request to defer the investigation. Members of the U.N.S.C. and U.N. will now meet with Kenya to discuss the request. Earlier this week a Kenya High Court refused to order the government not to act on the summons issued by the ICC. Reportedly all six suspects have confirmed that they will abide by the summonses to appear before the Court. In the interim Prosecutor Ocampo has requested that Muthaura and Uhuru do not partake in their responsibilities relating to the police and Witness Protection Committee.

In other news the ICC has confirmed that two Sudanese rebel leaders will stand trial. No date has yet been set for the commencement of suspects Jerbo and Banda's trial. In the ongoing Bemba trial witnesses continue to provide testimony. Witness 29 recently testified that after being raped by three of Bemba's soldiers she contracted HIV. The Philippines is well on its way to ratifying the Rome Statute. The President has endorsed the ratification, which now must be approved by a 2/3 majority of the Senate to be complete. This move is well aligned with the ICC President's visit to the region last week. Ratification efforts are also well underway in Malaysia where the cabinet is in the process of approving membership to the Rome Statute. Photo: Kenya's Secretary General; Credit: Capital FM.

John Washburn's Interview with US Ambassador-at-Large for War Crimes Issues Stephen J. Rapp: Transcript Excerpts Now Available

On December 7, 2010 AMICC Convener John Washburn invited US Ambassador-at-Large for War Crimes Issues Stephen J. Rapp for a conversation in AMICC’s offices at the headquarters of the United Nations Association of the USA in New York a video of which we posted on AMICC’s blog. Transcript excerpts related to the US approach toward the ICC, including the development of the US policy toward the ICC, are now available on AMICC's website.

AMICC's Analysis of Heritage Foundation Criticism of UNSC Referral of Libya to the ICC

In Heritage WebMemo #3180 Brett Schaffer and Steven Groves conclude that the recent referral by the Security Council of the situation in Libya to the International Criminal Court (ICC), shows that international justice cannot be severed from political motivations and that this confirms that the United States is right to be wary of the Court. Their argument for this conclusion is that both the referral and the Prosecutor’s decision to act on it with an investigation are premature. They see the provision (known as “complementarity”) in the Court’s Rome Statute that it defer to genuine and appropriate national investigations and trials as requiring the Court to wait in a situation like Libya until a successor government is in place. Accordingly, they charge that in making the referral now the Security Council has "fallen victim to political pressure” and in responding the Prosecutor has let his “decision be driven by political expediency.”

These assertions are based on a serious misreading of the Statute. A major motive in the international community for the creation of the ICC was dissatisfaction that none of the existing international criminal tribunals such as those for Rwanda and Yugoslavia were able to act against crimes in progress. The ICC was therefore specifically designed as a permanent court that can act on evidence that conduct amounting to a crime within its jurisdiction has happened whether or not that conduct continues to go on.

The Rome Statute clearly requires the Court to defer to national investigations or prosecutions which an appropriate country already has the resources and the will to pursue. It is evident in the Statute and its history that its framers were anxious to avoid a situation where a country could indefinitely delay ICC proceedings by making promises for the future.

Finally, the article sees politically motivated haste in the Prosecutor’s decision to investigate despite his lack of representatives inside Libya and the challenges of gathering evidence about crimes there. In fact, the prosecutor’s first duty was to find enough evidence to justify the formal investigation he has now begun. That investigation must in turn collect the detailed and exhaustive evidence required to meet the much higher standard for arrest warrants. The prosecutor may not have his own people in Libya now, but it is likely that the revolutionaries will welcome them. Moreover, there are ample other sources in journalists, Interpol, refugees and information from governments and NGOs. The prosecutor successfully used sources like these to support formal investigations and arrest warrants in Darfur, from which he was almost entirely excluded. He has just announced that he is turning to such sources now in the formal investigation.

The ICC is a Court empowered to act in response to information and requests about current crimes. In response to its design and not to political influences, it is so acting in its response to the alleged and likely atrocities in Libya.

ICC judges send Darfur rebel case to trial, issue summonses for Kenya suspects

In a series of decisions made public today, ICC pre-trial judges approved a Darfur case for trial and issued summonses to appear for six individuals suspected of post-election atrocities in Kenya.

In the first, issued yesterday in the Darfur situation, Pre-Trial Chamber I ruled that there is sufficient evidence for Abdallah Banda and Saleh Jerbo to be tried for war crimes, including violence to life, attacking a peacekeeping mission and pillaging, resulting from an attack on an African Union mission in Haskanita, Sudan.

Today, Pre-Trial Chamber II issued two decisions in the Kenya situation:

- Decision on the Prosecutor's Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali

- Decision on the Prosecutor's Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang

These two decisions relate to alleged atrocities committed in 2007 post-election violence in Kenya. The summonses request the appearance of the suspects on April 7 and include alleged charges. The Prosecutor had requested summonses to appear in place of arrest warrants because he believed the suspects would appear voluntarily.

ICC Prosecutor opens formal investigation in Libya; US Senate passes resolution supporting ICC action

The ICC announced today that the ICC Prosecutor had opened a formal investigation into the situation in Libya. The UN Security Council adopted Resolution 1970 on Saturday which referred the situation to the Prosecutor, thereby granting the Court jurisdiction over alleged crimes committed there since February 15. The resolution did not, and could not, require the ICC to act. Since the Security Council referred the situation, under the Court’s Rome Statute the Prosecutor did not need the permission of the Pre-Trial Chamber to open an investigation. However, the Prosecutor will not necessarily be able to proceed quickly given the difficulty of investigating in Libya and the challenges of an ongoing conflict.

In addition to this recent decision, last night the US Senate passed by unanimous consent a resolution on Libya which praised the Security Council referral of the Libya situation to the ICC. This resolution had been championed by Senator Robert Menendez (D-NJ).

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