Palestine and the International Criminal Court

The Prosecutor of the International Court recently issued a statement on the Court’s jurisdiction over crimes committed in the Occupied Palestinian Territories. I have copied it below, but the official version can be found here.

Recent media reports and commentaries have erroneously suggested that the International Criminal Court (ICC) has persistently avoided opening an investigation into alleged war crimes in Gaza due to political pressure. As Prosecutor of the ICC, I reject this baseless allegation in the strongest terms. It is devoid of any merit.

When an objective observer navigates clear of the hype surrounding this issue, the simple truth is  that the Office of the Prosecutor of the ICC has never been in a position to open such an investigation for lack of jurisdiction. We have always, clearly and publicly, stated the reasons why this is so.

The Rome Statute, the ICC’s founding treaty, is open to participation by states. As Prosecutor, I can only investigate and prosecute crimes committed on the territory or by the nationals of states that have joined the ICC Statute or which have otherwise accepted the jurisdiction of the ICC through an ad hoc declaration to that effect pursuant to article 12-3 of the Statute.

This means that, at the present time, the alleged crimes committed in Palestine are beyond the legal reach of the ICC, despite the arguments of some legal scholars that fundamental jurisdictional rules can be made subject to a liberal and selective interpretation of the Rome Statute. As such, they appear to advocate that as the object and purpose of the ICC is to end impunity for mass crimes, the Court ought to intervene, even where clear jurisdictional parameters have not been met. This is neither good law nor makes for responsible judicial action.

The Palestinian Authority sought to accept the jurisdiction of the ICC in 2009.  The Office of the Prosecutor carefully considered all of the legal arguments put forth and concluded in April 2012, after three years of thorough analysis and public consultations that Palestine’s status at the United Nations (UN) as “observer entity” was determinant – since entry into the Rome Statute system is through the UN Secretary-General, who acts as treaty depositary. The Palestinian Authority’s “observer entity” status at the UN at that time meant that it could not sign up to the Rome Statute. As Palestine could not join the Rome Statute, the former Prosecutor concluded that it could not lodge an article 12-3 declaration bringing itself under the ambit of the treaty either, as it had sought to do.

On 29 November 2012, Palestine’s status was upgraded by the UN General Assembly (UNGA) to “non-member observer State” through the adoption of resolution 67/19. The Office examined the legal implications of this development for its purposes and concluded that while this change did not retroactively validate the previously invalid 2009 declaration lodged without the necessary standing, Palestine could now join the Rome Statute.

That Palestine has signed various other international treaties since obtaining this “observer State” status confirms the correctness of this position. Nonetheless, to date, the Rome Statute is not one of the treaties that Palestine has decided to accede to, nor has it lodged a new declaration following the November 2012 UNGA resolution. It is a matter of public record that Palestinian leaders are in the process of consulting internally on whether to do so; the decision is theirs alone to make and the ICC Prosecutor cannot take this decision for them.

By the very nature of the Court’s mandate, every situation in which I act in my capacity as ICC Prosecutor will be politically fraught. My mandate as Prosecutor is nonetheless clear: to investigate and prosecute crimes based on the facts and exact application of the law in full independence and impartiality.

Whether States or the UN Security Council choose to confer jurisdiction on the ICC is a decision that is wholly independent of the Court.  Once made, however, the legal rules that apply are clear and decidedly not political under any circumstances or situation. In both practice and words, I have made it clear in no uncertain terms that the Office of the Prosecutor of the ICC will execute its mandate, without fear or favour, wherever jurisdiction is established and will vigorously pursue those – irrespective of status or affiliation – who commit mass crimes that shock the conscience of humanity. The Office’s approach to Palestine will be no different if the Court’s jurisdiction is ever triggered over the situation.

It is my firm belief that recourse to justice should never be compromised by political expediency. The failure to uphold this sacrosanct requirement will not only pervert the cause of justice and weaken public confidence in it, but also exacerbate the immense suffering of the victims of mass atrocities. This, we will never allow.

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Argentina v. USA?

The Seal of the ICJArgentina has requested that the United States of America accept the jurisdiction of the International Court of Justice (ICJ) regarding recent decisions by US courts against Argentina. The ICJ only has jurisdiction over those cases where all necessary State parties consent to jurisdiction of the Court. The press release can be found here.

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The Temptations of International Criminal Justice: Part One – Ukraine

ICCThe International Criminal Court (ICC) – to date the only permanent, multi-lateral institution created to prosecute cases of international crimes – has not had the easiest time of it. In fact, the Court has been plagued by many different accusations regarding its operations. One of the most persistent critiques it that the ICC has an anti-Africa bias.[1]

Since the entry into force of the Rome Statute – the Court’s founding document – on 1 July 2002, the ICC has opened 21 cases arising from 8 situations.[2] All of the accused are from African countries, only two of which not being from sub-Saharan Africa. Further supporting claims of an anti-Africa bias is the fact that the Office of the Prosecutor (OTP) has declined to open investigations into alleged crimes in Venezuela and Palestine – two of the few situations brought to the Court’s attention that are outside of Africa.[3] In the last weeks the Court has received, and the OTP opened preliminary examinations into, two additional referrals[4] – one referring to Iraq and the other to Ukraine.

UN Security CouncilThese two situations provide a tempting opportunity for the ICC to show that it is willing not only to take on cases outside of Africa, but also cases that involve potential allegations against government officials of the great powers – States with permanent seats on the United Nations Security Council (UNSC). Notwithstanding the need for the ICC to branch out and take on cases arising from events in locations other than Africa, and to challenge the great powers, the Court would do well to steer clear of both these situations. In the coming weeks I will write more about this subject. For now, this first post will discuss the situation in Ukraine.

The Situation in Ukraine

Recent events in Ukraine have been making international news for some time. The current round of troubles began with the street protests leading to the occupation of Maidan square by “pro-western” protestors in November of last year. The protests, at times violent, arose from the refusal of then president Yanukovych to sign an agreement with the European Union that would have led to greater ties between the regional block and Ukraine. He chose instead to pursue closer ties with Russia.[5] The protests escalated until February of this year with the overthrow of the Yanukovych government and his subsequent flight to Russia. The new regime in Kiev immediately began to have problems in the east of the country where there is a majority of ethnic Russians. These troubles have led to the annexation of Crimea by Russia and violent unrest in eastern Ukraine that has seen claims of criminal behavior by both sides.[6] While the new government in Kiev is supported by the West, Russia has supported – to an extent that is not entirely clear – separatists in the East.

Allegations have been made that the Yanukovych government illegally targeted civilians during the protests leading to his ouster in a way that amounts to the commission of international crimes. After the fall of his government, there have been allegations of crimes being committed against Russian speakers by those associated with the new regime that could in turn amount to international crimes.

This context is important in order to understand the scope of the referral by the new regime in Kiev, regardless of the veracity of either side’s claims of crimes by their opponents.

Ukraine’s Acceptance of Jurisdiction

The authorities in Kiev referred the situation in Ukraine from 21 November 2013 to 22 February 2014, covering only the period of the street protests in the capital that led to the overthrow of the Yanukovych government.[7] In effect, the authorities in Kiev have made a referral (technically an acceptance of jurisdiction pursuant to Article 12(3) of the Rome Statute) that would de facto only expose their political rivals to prosecution – a mighty tool in the continuing conflict ravaging that country. The OTP has since announced that it is conducting a preliminary evaluation of the situation.[8]

A One-Sided Referral

Kiev’s clever limitation of their referral would not be the first time that the ICC had to deal with a situation where the referring government wanted to encourage the Court to move against its opponents without risking prosecution of regime members. In the situation concerning the Lord’s Resistance Army (LRA), Uganda tried to refer only the crimes of the insurgent group and not those allegedly committed by government militias and armed forces. The OTP however decided that a referral of a situation to the ICC is ipso facto a referral of all crimes committed by either side of the conflict in question. In other words, States cannot just refer the crimes of their opponents. However, this was a case of the government trying to exclude liability arising out of contemporaneous acts to those that they were trying to refer to the Court. The situation in Uganda was an ongoing insurgency that saw attacks by the LRA and reprisals by government forces over a period of time.

The situation in Ukraine is different in at least one fundamental way. Here, the crimes allegedly committed by one side predominately occurred during the timeframe of the referral to the Court, while the crimes allegedly committed by the new government would have occurred after that time period. Kiev’s acceptance of jurisdiction poses the same dilemma as that of Uganda’s referral as to the one-sidedness of the prosecutions sought by the Court. Of course there are crucial differences, not the least of which is the fact that Uganda is a State party to the Rome Statute, so that there is no question of jurisdiction over crimes outside the scope of the referral in that case. Ukraine of course is not a State party so the ICC would lack jurisdiction outside of any acceptance thereof. In the face of this limitation the ICC should not simply mechanically proceed based on the scope of the referral by Ukraine as doing so would risk irreparable harm to the Court and the nascent permanent system of international criminal justice.[9]

Allowing the new authorities in Kiev to avoid responsibility through the use of a clever temporal limitation of their referral would undermine the message sent by the Court in the situation in Uganda – all sides are equal before the ICC and States cannot use the Court as a weapon against their political and military adversaries. It would send the wrong message about the purpose of international criminal justice if the Court (either the OTP or the chambers when they hear the issue) were to proceed with investigations and/or prosecutions based on such a limited referral or acceptance of jurisdiction. The message would be that if you are able to seize the government of a State, you could refer the crimes of your predecessors to the Court without risking prosecutions for the crimes you commit after taking power. State power as protection from prosecution, one of the central evils that international criminal justice was designed to remove.

Conclusion

Ukraine’s acceptance – or granting – of jurisdiction to the ICC is an attractive opportunity of the Court to show that it is not “anti-African” and to take on one of the great powers, Russia. However, while this may be true, the referral is also dangerous in that it could set a precedent on how to arrange the prosecution of political enemies before an international body thereby rendering the ICC nothing more than a pawn in the game of international Real Politick. The OTP and the Court as a whole must be careful not to allow this important institution to become anything other than an agent of justice by investigating and prosecuting crimes committed by all sides to a conflict, not just those that may have committed crimes first (or last). The failure of the ICC to successfully deal with this referral is nothing less than a mortal threat to the credibility of international criminal justice.

[1] See, e.g., http://iccforum.com/africa; http://www.gulf-times.com/opinion/189/details/367879/international-criminal-court-is-accused-of-anti-africa-bias; http://sites.thehagueuniversity.com/africans-and-hague-justice/home.

[2] Of the 30 accused before the court of committing international crimes, 8 remain at large (4 in one case alone from 2005), 3 have died before being taken into custody for trial, the charges against 4 were not confirmed, 3 have not been transferred for trial at the Court even though in custody of local authorities, the arrest of 2 was not confirmed, 1 has been acquitted, 7 are on trial or waiting for the confirmation of charges and 2 have been convicted. This is my count based on the current (17 May 2014) list on the ICC website. It may be that some names are no longer listed and my total count is therefore off. Also, I did not count those on trial for offenses against the administration of justice.

[3] See, http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/comm%20and%20ref/Pages/communications%20and%20referrals.aspx.

[4] I am using the term her in a broader sense then the technical one used at the ICC. I mean simply that two new situations have been brought to the attention of the Court.

[5] In the background of this conflict are the divisions in Ukraine between ethnic Ukrainians and ethnic Russians.

[6] See, e.g., http://en.wikipedia.org/wiki/Euromaidan; http://online.wsj.com/news/articles/SB10001424052702303948104579533341029784038.

[7] See, http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr997.aspx.

[8] See, http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr999.aspx.

[9] The Court’s current problems have in no small part led to suggestions of creation another ad hoc court for South Sudan instead of referring the situation to the Court. See,

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Is there such a thing as a Bar on Double Jeopardy in International Criminal Law?

On February 3, 2014, the Office of the Prosecutor (OTP) at the International Criminal Tribunal for the Former Yugoslavia (ICTY) filed a request to reconsider the acquittal of former Chief of Staff of the Yugoslav Army Momčilo Perišić for aiding and abetting crimes committed in Sarajevo and Srebrenica between 1993 and 1995. He was acquitted by the Appeals Chamber of the ICTY based on the legal determination that in order to aid and abet crimes, one must have a specifically directed the crimes in question. Subsequent decisions by the ICTY have called this legal finding into question. The OTP now seeks to undo what it sees as an injustice. Should they be allowed to reopen the case after acquittal on appeal?

The Rules of Procedure and Evidence (RPE) of the tribunal allow for a decision or judgment to be “reviewed.” Rule 119 provides as follows:

Where a new fact has been discovered which was not known to the moving party at the time of the proceedings before a Trial Chamber or the Appeals Chamber, and could not have been discovered through the exercise of due diligence, the defence or, within one year after the final judgement has been pronounced, the Prosecutor, may make a motion to that Chamber for review of the judgement. If, at the time of the request for review, any of the Judges who constituted the original Chamber are no longer Judges of the Tribunal, the President shall appoint a Judge or Judges in their place.

The formal requirements for such a motion are that there is a new “fact” and, in this case, that the request is made within one year of the issuance of the judgment in question.

Starting with the second requirement, we can see that it has clearly been satisfied. The Perišić judgment was issued on February 28, 2013, while the request was filed on February 3, 2014, just under the wire. The more interesting question is whether a determination of law is a new “fact” that can be raised to review a judgment of acquittal. I do not believe it is. Legal interpretations should not be considered “facts” for the purpose of a review of a judgment of acquittal for two reasons, one dealing with a simple interpretation of the rule and the other with general principles of justice.

The rule requires there to be a new “fact” that was not discoverable at the time in order to review a judgment. “Facts” are items of proof tending to demonstrate that the underlying crime in fact took place. These indicia are then interpreted in light of applicable law to see if they satisfy the elements of the crime in question. The OTP’s request in this case is not related to the first half of this equation, the facts, but to the second part, the law. The OTP should not be allowed to change the result of the trial simply on the clear wording of the rule.

Even if the differing legal interpretations should be considered as “facts,” they would still have to be “new,” or undiscoverable at the time of the original proceedings. This is clearly not the case here. The OTP made arguments along the lines being advanced in the request for review. It is just that the Appeals Chamber at the time rejected those arguments and made a contradictory ruling of law. Now, based on other authority, the OTP wishes to have that ruling reconsidered, this is nothing more than an attempt to get a second bite at the apple.

It is a general principle of justice that a person shall not be tried more than a single time for the same crime. This is known both as the prohibition on double jeopardy and the principle of ne bis in idem. It is enshrined in various national constitutions and international human rights documents. The rule not only protects individual rights but, like the related doctrine of res judicata, provides a needed finality to judgments and legal proceedings. The OTP in this case already had its chance to prove the crimes allegedly committed by Mr. Perišić. They failed to do so as the Appeals Chamber made a legal ruling, one that cannot be appealed as the chamber is the final instance of appeal, excluding his culpability. The OTP would like to revisit that judgment now and have Mr. Perišić re-judged based on a different legal standard. This is exactly what the prohibition on double jeopardy is designed to prevent. Justice cannot be effected through the application of a system that violates basic principles of justice.

There is a debate right now in international criminal law as to whether aiding and abetting requires there to be “specific direction.” Indicia at the moment appears to be moving away from such a requirement. Whatever the outcome of this legal evolution will be, it should not be used to retry those who have already been acquitted on appeal.

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Issues of Immunity: India v. USA

On 12 December 2013, Federal authorities in New York City arrested Mrs. Devuani Khobragade – an Indian consular official – on charges of visa fraud and making false statements. The charges arise out of allegations that Mrs. Khobragade paid her house keeper less than minimum wage after pledging to do so in the housekeeper’s visa application. Such declarations are required to obtain visas for domestic workers to enter the United States.

Immediately after the arrest, Mrs. Khobragade claimed she was not subject to trial because, as a diplomat, she should benefit from personal immunity. Then, following these statements, she was transferred from the Indian consular mission in New York City to the United Nations diplomatic mission. The United States claims any such transfer will not effect the criminal trial. This post will analyze both of these claims: (1) if Mrs. Khobragade is entitled to immunity as a consular official and (2) if her transfer to the United Nations mission would prevent her trial.

Consular Immunity

Article 43 of the Vienna Convention on Consular Relations of 1963 provides that,

Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.

This provision provides for “functional immunity,” or, in other words, immunity from suit based on official acts. Visa applications and the employment of a domestic are not and should not e considered “official” acts. Their only connection to the work of the mission is that they allow the consular agent more time to work, as they will not need to tend to housework. However, if this were to an official at, all acts by the consular agent could be “official” in that they allow the agent to go about their day. Such total immunity from jurisdiction for the individual agent is better conceived of as “personal immunity” and is not established anywhere in the Vienna Convention on Consular Relations. In fact, it is implicitly excluded.

Article 41(3) of the convention reads in pertinent part,

If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities.

The convention clearly allows the institution and prosecution of criminal cases against consular officials. While agents may not be arrested based on minor charges (as set out in article 41(1)), they are liable to imprisonment upon conviction (this is article 41(2)). These provisions clearly set out the consular officials do not benefit from personal immunity and may therefore be prosecuted.

Considering that the charges against Mrs. Khobragade do not involve “official” acts and her post did not carry personal immunity, the United States may properly prosecute her based on allegations of Visa fraud and making false statements.

Diplomatic Immunity

The Indian solution to the problem of Mrs. Khobragade’s forthcoming trial has been to transfer to the diplomatic mission to the United Nations. A post, it is believed, will prevent her trial. This part of the post will evaluate this proposition.

Article 31(1) of the Vienna Convention on Diplomatic Relations of 1961 states that,

A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.

This rule is not subject to conditions. It is true that article 41(1) sets out that diplomatic agents must respect the law of the receiving State. However, this has nothing to do with immunity or ability to arrest or being subject to trial. Article 39(1) of the convention establishes when immunity begins, and when it ends. It reads,

Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry of Foreign Affairs or such other ministry as may be agreed.

The immunity continues until the diplomat has had a reasonable amount of time to leave the country as set out in article 39(2).

The terms of the convention clearly subtract diplomats from the jurisdiction of the host State, no exceptions (except waiver by the sending State). This personal immunity ceases upon departure of the diplomat, at which point prosecutions for criminal may be begun, or presumably, resumed. Even if this were not the case, and a prosecution could legitimately continued, the diplomatic agent would not be required to appear in court and could not be taken into custody on conviction. Any enforcement would have to wait until the person lost their diplomatic status, at which point they would already be out of the country and outside the reach of the domestic justice system (extradition could be requested, but it is very unlikely any such request would be granted).

In the present case, should Mrs. Khobragade take up a diplomatic post at the Indian mission to the United Nations, she will likely be out of reach of the American justice system.

There are still some details of this matter than cannot be addressed in a blog post such as this, not all the facts are in. Questions remain as to whether the charges against Mrs. Khobragade are well founded. Information is also lacking regarding the exact procedural mechanisms that are necessary for her to officially transfer to the Indian diplomatic mission to the United Nations. Whatever the specifics, however, it would seem to be counter intuitive if she were allowed to escape justice (and remain in New York) due solely to the clever shuffling of paper resulting in her job moving from one Indian office to another. Unfortunately, from the outside it is not possible to gain access to all the necessary documents to fully analyze the situation and determine what should happen in this specific case.

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East Timor vs. Australia

On 18 December 2013, the Democratic Republic of Timor-Leste initiated proceedings before the International Court of Justice (ICJ) against the Commonwealth of Australia alleging that the latter violated diplomatic immunity in entering the former’s embassy without permission. More information on these events can be found here.

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The Netherlands v. Russia, Criminal Jurisdiction and The Case of the Artic Sunrise

On 22 November 2013 the International Tribunal for the Law of the Sea (ITLOS) issued provisional measures ordering the Russian Federation to release the Dutch vessel the Artic Sunrise and her crew from detention and allow them to leave the country. The dispute is about Russian jurisdiction to arrest the vessel (in a technical sense) and prosecute her crew for crimes they allegedly committed. The issue at the heart of the dispute is whether or not Russia violated its obligations under the United Nations Convention on the Law of the Sea (UNCLOS) by taking the vessel and her crew into custody while they were in the exclusive economic zone without first asking the Netherlands government for permission to board.

ITLOS ordered the provisional measures because it accepted that the failure to comply with such an order would irreparably harm the Netherlands’ interests pending resolution of the dispute between the two countries. The interests considered by the tribunal being the condition of the vessel and the crew’s liberty interests, both of which being harmed by their detention. As a guarantee pending the resolution of the international dispute (and to guarantee payment of any damages to Russia) the tribunal ordered that the Netherlands take out a bond of 3.6 million.

Russia, for its part, has stated that it will ignore the order for provisional measures, as it does not accept that jurisdiction of the tribunal. In fact, Russia did not participate in the hearing on the Dutch request for the tribunal to intervene.

What makes the issue so interesting is that it appears to conflate the issue of a potential infraction of an international obligation (such as the arrest of the vessel) that is capable of being resolved by the payment of money (economic loss) and the enforcement of national criminal laws (against the crew for their alleged crimes). These two issues are of a type different, one is inherently “civil” in nature while the other has to do with public order. A bond, such as that ordered by the tribunal, can work to guarantee compensation for Russia should the Netherlands lose the suit and be forced to pay – which is the purpose of seizing the boat in the first place. The same cannot be said for the release of the vessel’s crew.

The enforcement of criminal law is not about money (or at least it should not be). The idea behind penal sanction is that punishment will not only deter the culprit from violating the law a second time, but the existence of punishment will deter others from committing crimes in the first place. If the crew of the Artic Sunrise are guilty of crimes under the Russian penal code, their release will effectively prevent their punishment and thereby undermine the effectiveness of Russian criminal justice. Even assuming, however, that these considerations are not relevant, that would still not mean Russia would lack the legal ability to try the crew of the Artic Sunrise because the vessel was seized in violation of UNCLOS.

There is an internationally recognized principle that those who break the law may be tried even if their initial arrest was made in contravention of the law, known as the male captus, bene detentus rule. This rule has been explicitly accepted as a matter of International Criminal Law, and has been applied by States to justify national prosecutions. Some countries object to the validity of this rule of law and choose, as a matter of national law to prevent trial after illegal arrest. No rule of generally applicable customary international law requires such a result.

ITLOS did not address the issues of the enforcement of criminal law or male captus, bene detentus. The basis for its issuing the precautionary measures vis-à-vis the crew of the Artic Sunrise is not clear. It would have been great benefit had the tribunal decided to explain its decision, unfortunately, it did not.

In the end, Russia should comply with the order to release the Artic Sunrise and accept the bond on this matter. This is the correct legal result and it could be good as a political bargaining chip. When it comes to the custody of the crew, however, I cannot say that Russia is entirely in the wrong, at least as a matter of international law on the exercise of criminal jurisdiction.

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