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The Criminal Responsibility of Those Suspected of Torture

On 3 December 2014, the Senate Select Committee on Intelligence’s Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program was declassified thereby providing the world for the first time with an “official” version of the United State’s anti-terrorism program run by the CIA. A lot has already been written about what techniques were used by the American intelligence community, whether they led to any actionable intelligence (in particular if the information gathered played any part at all in locating Osama bin Laden), and whether the particular techniques amounted to torture. A lot has also been said about whether or not the United States should prosecute those responsible for authorizing CIA interrogation techniques that amounted to torture. However, one part of this situation has not been fully analyzed – other than the individual who carried out the interrogation (and possibly their immediate supervisor), who else would be liable for prosecution?

Put plainly, where does the buck stop?

The only way to answer this question, as a matter of law, is to take the generally accepted facts about the program, and apply potentially applicable laws of criminal responsibility. I say potentially as there is no set law on criminal responsibility at the international level – and torture is an international crime.

At the moment, there are two potentially applicable doctrines of criminal responsibility at the international level. The first is that applied by the United Nations ad-hoc International Criminal Tribunals created in the 1990’s. The second is the doctrine adopted by the International Criminal Court. Both doctrines are potentially applicable in that the case could (eventually) go before the ICC – an albeit unlikely event – should the United States join the court. Likewise, the issue could wind up before an ad hoc internationalized or international tribunal should the political winds move in that direction. In any case, the question remains academic for the time being.

Before turning to the doctrines of responsibility, it will be necessary to set out some basic and generally accepted facts of the program so that the doctrines can be applied. For the sake of this article, I will assume that at least some of the interrogation techniques used by the CIA amount to torture. That question has been debated enough elsewhere.

The doctrine adopted by the United Nations International Criminal Tribunals is generally referred to as Joint Criminal Enterprise, or JCE. It comes in three different versions, however, only the third version – the most expansive – will be of interest here as it would be able to reach the greatest number of individuals. This doctrine states that,

With regard to the third category, what is required is the intention to participate in and further the criminal activity or the criminal purpose of a group and to contribute to the joint criminal enterprise or in any event to the commission of a crime by the group. In addition, responsibility for a crime other than the one agreed upon in the common plan arises only if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk.[1]

While the quote sets out two different requisites, there are in fact three: that the accused participate in a criminal plan, that the crime was foreseeable even though it was not the object of the criminal plan, and that the accused willingly took the risk that the crime would be committed. The additional factor is required because it would be too expansive to hold an individual for crimes committed in the furtherance of a legal plan in the same way which is allowed when the underlying scheme is already illegal.[2]

The question arises as to what the criminal enterprise in question would be regarding the CIA interrogation program. All responses to this question will themselves be controversial, and would detract from the overall discussion here, much like the issue of whether or not the CIA techniques amounted to torture. For the sake of argument, let us assume that the interrogation program itself – regardless of the techniques used – would constitute an illegal act.[3] If this were the case, any individual within the administration that formulated or actively participated in the implementation of the interrogation program could potentially be held liable for acts of torture carried out during the implementation of said program. This could include those who designed the program, authorized the program or knowingly implemented the program. This may seem broad, and it is, but it is also an accepted reach for the law in order to hold those who lead criminal groups accountable for the actions of their collaborators.

The view would be slightly different if the matter were to be brought before the International Criminal Court due to the fact that the doctrine of JCE is not applied by the court. At the ICC it is sufficient that a crime is committed during the implementation of a common plan between the accused and another, under the following circumstances:

(i) that the co-perpetrators have agreed: (a) to start the implementation of the common plan to achieve a non-criminal goal, and (b) to only commit the crime if certain conditions are met; or

(ii) that the co-perpetrators (a) are aware of the risk that implementing the common plan (which is specifically directed at the achievement of a non-criminal goal) will result in the commission of the crime, and (b) accept such outcome.[4]

Under this doctrine, there is no need to determine if the underlying plan was criminal in nature. It is sufficient that a criminal act was a reasonable possibility in achieving their goal.

The significance of the difference between the ICC and UN doctrines of responsibility is that an individual can be tried for a crime even if they did not actively participate in a crime, but that they knew one could occur in the course of an otherwise legal endeavor. This knowledge could simply be that the accused knew one of their associates commonly committed crimes of a specific type under the given circumstances.[5]

For there to be criminal responsibility under this doctrine of responsibility, it would need to be shown that the member of the administration engaged in a common agreement to allow certain types of activity (say, enhanced interrogation techniques) and that they should have known that this could lead to torture, and accepted that risk. Responsibility under this doctrine is potentially much more expansive due to the fact that there is not need for voluntary or knowing participation in a criminal plot, but only the intentional engagement in activity with others while knowing that it is possible that a crime could be committed in the normal course of events: something that is extremely likely in a war setting.

The bottom line is that a colorable argument could be made that high-level American officials are criminally responsible for crimes committed as part of the CIA interrogation program. This means that they could be indicted and prosecuted under generally recognized principles of international criminal law, in particular universal jurisdiction for torture.[6] Under no circumstances should the United States permit its officials to be tried abroad, this would simply be a political blunder of unprecedented proportions. The only way to avoid this possibility entirely is to prosecute those who could be responsible under the above theories of criminal responsibility within the United States justice system.


[1] ICTY, Prosecutor v. Tadic, Judgment, 15 July 1999, IT-94-1-A, ¶ 228.

[2] This is the theory of responsibility if the accused did not order or otherwise aid and abet in the commission of the torture.

[3] One aspect of the program was the unwilling removal of individuals from one country to a “black site” where they were not allowed contact with the outside world without court process. This could be viewed as “illegal,” regardless of whether or not the country of origin permitted the removal. See, International Covenant on Civil and Political Rights, Article 9 (“1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement [sic]. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”)

[4] ICC, Prosecutor v. Lubanga, 14 March 2012, ICC-01/04-01/06, Judgment Pursuant to Article 74 of the Statute, ¶¶ 982, 984 (requiring that implementation embodied a sufficient risk that, if events follow the ordinary course, a crime will be committed.

[5] See, for example, Ibid. at ¶¶ 1072 – 1083, 1109, 1111-1112.

[6] There are debates as to whether this is perfect universal jurisdiction, or an imperfect jurisdiction that requires the presence of the accused on the national territory, however, this is a debate for a different place and time.

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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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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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Preliminary Examinations at the ICC in 2013

Yesterday, 25 November 2013, the Office of the Prosecutor (OTP) at the International Criminal Court (ICC) released its annual report on preliminary investigations. This document sets out what actions were taken by the OTP in the consideration of potential situations that have been brought to the attention of the office. The report sets out the state of the examinations, whether the OTP believes there is jurisdiction, reasonable basis to believe crimes have been committed, whether there is an admissibility issue and whether the crimes are serious enough to be tried by the ICC.

10 potential situations were under examination by the OTP during this reporting period. They were:

Afghanistan – relating to the non-international armed conflict in that country;

Honduras – allegations of crimes committed following the ouster of former President Zelaya in 2009;

The Mavi Marmara Incident – relating to the Gaza Freedom Flotilla;

Republic of Korea – relating to alleged attacks by North Korea;

Colombia – relating to the drug war;

Georgia – relating to the 2008 war with Russia;

Guinea – relating to the 28 September Massacre;

Nigeria – relating to Boko Haram;

Mali – relating to the recent violence in that country; and

Palestine – relating to crimes allegedly committed during Israel’s occupation.

Of these potential situations, 3 are in Africa, 2 are in Asia, 2 are in Latin America, 1 involves the States of the former Soviet Union and 2 derive from the Israeli/Palestinian conflict. The only situation to progress to the opening of official investigations, Mali, is from Africa.

All the preliminary examinations are still pending except for Mali (as noted an investigation was opened) and Palestine, where the OTP stood by an earlier decision about the invalidity of the referral. However, the OTP indicated a road that may lead to a different determination in the future.

Of the preliminary examinations, four of them included interesting pronouncements of law by the OTP: Honduras, Mavi Marmara, Korea and Palestine. I would like to address each briefly, in turn.

Honduras

In 2009, then president of the Republic of Honduras was arrested and removed from the country by members of the armed forces. This event triggered large-scale protests and allegations of severe human rights abuses against protestors by the newly installed authorities. Information was sent to the OTP alleging that these violations amounted to Crimes Against Humanity (CAH). In the end the OTP determined – at least at this stage – that the reported violations of Human Rights Law while severe, there was insufficient grounds to believe that they were CAH due to the apparent lack of a governmental plan or policy to commit them and/or nexus with that plan should it exist.

The most interesting part of this document is that it takes for granted that the removal of Zelaya was a coup. I have written about these events before, and it seems to me that the issue has not been analyzed enough. In any case, the characterization of the events is not relevant to the determination of whether crimes within the jurisdiction of the court were in fact committed.

Mavi Marmara

The Mavi Marmara incident relates to the “Gaza Freedom Flotilla” and the Israeli raid that prevented it from reach Gaza. The OTP underwent an analysis very similar to that in a prior post on this blog. So far, review has only been conducted as to the jurisdiction of the court. The next step is for the OTP to determine whether there are reasonable grounds to believe crimes within that jurisdiction have been committed. Then it will be necessary to determine if the cases are admissible.

This decision is notable for its direct application of the rule that a ship is a “floating territory” of the flag State, and therefore sufficient for founding the court’s jurisdiction.

Korea

The OTP determined that there is jurisdiction over alleged crimes committed by the North Korean military in South Korea (a shelling incident and an attack on a military vessel). The next step in the process is to determine whether there are grounds to believe specific crimes were committed.

The interesting part of this decision is that jurisdiction is based on the simple fact that the specific incidents in question were uses of military force between States. The OTP found that the simple recourse to the use of armed force between States, even if not in a continual fashion, is sufficient to create an international armed conflict.[1] This reading of the law is not out of line with international pronouncements on the nature of international armed conflict. However, it does beg reason to say that a single incident of military to military force is enough give rise to an international armed conflict. Border incidents, for example, have long been recognized as not meeting the threshold of the beginning of an armed conflict.[2] I do not mean to say that the events in question are insufficient, only that the OTP analysis leaves much to be desired.

Palestine

In 2012 the OTP announced that it would not initiate an investigation in to allegations of crimes in Palestine as there was no consensus that Palestine was a State capable of granting the court jurisdiction.[3] Since that decision, Palestine has been recognized as a non-member Observer State at the UN, that is, it has been recognized as a State by the General Assembly. However, the OTP found that since the “referral” was made in 2009, before Palestine was recognized by the General Assembly, it could not grant the court jurisdiction. The implicit logic leads one to believe that the OTP would accept a new referral from Palestine as being valid.

This is perhaps the most interesting decision in the whole OTP annual report. If I have interpreted it correctly, and the authorities in Palestine so choose, we could see the ICC with jurisdiction (at least in the view of the OTP) over alleged crimes in the occupied territories. If there have been accusations that the ICC has been politicized in the past, they will be nothing compared to what is said if the court finds it has jurisdiction. The political arena in the Middle East may be getting ready for an earthquake.


[1] ¶ 111 of the OTP report.

[2] Nicaragua v. United States, ICJ at ¶¶ 164, 211, 249.

[3] See my earlier post here.

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More Contempt at the ICC

Yesterday, the ICC announced four arrest warrants have been issued on contempt charges arising out of the case against Jean-Pier Bemba Gombo. The charges are against Bemba himself, his attorney, a member of the DRC parliament and another member of his defense team. Alleged crimes include presenting false evidence and witness tampering.

The press release is available here.

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Travels of an Internationally Wanted Man

Donald Sutherland currently stars in a TV series where a crack squad of international agents working for the International Criminal Court (ICC) investigate trans-national crime and arrest the masterminds of horrible crimes. They conduct multi-national investigations, collecting evidence and bringing the perpetrators to justice. No criminals are safe.

Back in reality, the well-known mandate of the ICC is limited to the international crimes of genocide, crimes against humanity and war crimes.[1] There is also no crack squad of international agents seeking out those suspected of committing these crimes and bringing them before the court. This lack of an enforcement arm and its consequences are thrown into stark relief by the case of Sudanese President Omar Hassan Ahmad Al Bashir.

Mr. Al Bashir is wanted by the court on charges arising from the violence in the Darfur region of Sudan. While Sudan is not a State party to the ICC, the United Nations Security Council referred the situation of Darfur to the court in 2005.[2] The court, after in depth investigations by the Office of the Prosecutor (OTP), issued warrants for Al Bashir’s arrest in 2009 on charges of war crimes and later on charges of genocide.[3] These warrants, according the ICC, are grounds for the States party to the ICC statute to arrest Mr. Al Bashir notwithstanding the fact that he is an incumbent head of State and would otherwise be immune from arrest in other countries.

The African Union (AU), however, has taken a very different view. According to that organization, the members of the AU cannot arrest Mr. Al Bashir while he is attending AU events in other countries as this would constitute an interference in Sudan’s participation in the organization.[4] Consequently, Mr. Al Bashir has traveled to different countries throughout the AU to participate in conferences. Most recently last week to participate in a conference on HIV/AIDS, Tuberculosis and Malaria.[5]

Pre-Trial Chamber II, currently seized of the situation in Darfur and composed of judges Trendafilova, Kaul and Tarfusser, took note of Mr. Al Bashir’s trip to Nigeria and issued a decision ordering Nigeria to take him into custody and transfer him to the court under threat of referring the country to the UNSC or the Assembly of States Parties for non-compliance.[6] Nigeria did not arrest Mr. Al Bashir.

This is not the first time that a Pre-Trial Chamber of the ICC has ordered a country hosting Mr. Al Bashir to arrest him. It is obviously not the first time that the order has been ignored. This whole situation squarely poses the question of whether or not the ICC made a mistake in issuing the arrest warrant or the subsequent arrest orders. There is also the issue of the conflicting decisions of the ICC and the AU as to the precedence of immunity to attend AU meetings and the lack of head of State immunity for purposes of arrest and trial at the ICC. This last situation will need to be authoritatively resolved in order to ensure the proper and legal functioning of the court.

Should the ICC have issued the arrest warrant for Al-Bashir in the first place?

This is a delicate question and depends on what angle the question is analyzed from. There is the political angle and then there is the legal angle. The first relates, in large part, to whether one considers the court to be a legitimate actor on the international scene and whether serious international crimes were in fact committed in Darfur. While this is an interesting subject, its consideration will take us a bit far afield. For present purposes, I will assume that the ICC properly has jurisdiction over the situation in Darfur, that the alleged crimes were committed and that Mr. Al Bashir is in fact responsible for them.

Under these circumstances, I do not think that the ICC could have decided not to issue the arrest warrants. It would be the height of hypocrisy for an institution such as the ICC to decline to prosecute international crimes simply because the accused is a head of State. This is in fact the purpose for which the court was created. The problem is that the issuance of the arrest warrants places the ICC in direct conflict with the AU and every time Al Bashir is not arrested the standing of the court and its effectiveness are undermined.

Resolution of the Dispute between the ICC and the AU

The continual refusal of AU member States to arrest and surrender Al Bashir to the ICC, along with the statements of the AU that doing so would be a violation of international law, are troubling and present a serious block to the court properly asserting its role in the international community. These conflicting positions on the arrestablitiy of the Sudanese president creates tension between two important international organizations that both have as their purposes the protection of human rights. This tension means that cooperation between them will be more difficult in other situations.

This kind of conflict between international organizations needs to be resolved. It is true that the ICC statute says that any questions about the interpretation of the rules applicable to trials before the court are to be interpreted by the court itself. However, a treaty (such as the ICC statute) cannot bind the AU as it is not a party.[7] This is an international dispute that should not be decided unilaterally by one the organizations. The dispute should be decided by a third party neutral, and the best choice in this case  (ICJ) is the International Court of Justice.

Conclusion

The issues involved in the prosecution of international crimes are complex, all the more so because the ICC does not have any enforcement arm of its own. The court must rely on the will of States to cooperate, arrest and transfer subjects to the seat of the court for trial. When some States do no wish to assist the court, or they assert legal bars to cooperation, the ICC has the authority under its statute to determine issues of immunity. However, where the State in question is not a party to the statute this can be problematic. The only way to resolve the decision is to refer the issue of cooperation and immunity to a third party neutral to decide, and the best option is the ICJ due to its standing and universal character.


[1] There is also the specter of Aggression within the jurisdiction of the court. However, this jurisdiction has not yet been activated.

[2] Art. 12, sets out that the court will have jurisdiction only where the crime was committed on the territory of a State party, the accused is a national of a State party or the United Nations Security Council has referred the case to the court.

[3] Prosecutor v. Al Bashir, ICC-02/05-01/09, Warrant of Arrest for Oman Hassan Ahmad Al Bashir, PTC I, 4 March 2009; Prosecutor v. Al Bashir, ICC-02/05-01/09, Second Warrant of Arrest for Oman Hassan Ahmad Al Bashir, PTC I, 12 July 2010.

[5] Prosecutor v. Al Bashir, ICC-02/05-01/09, Decision Regarding Omar Al-Bashir’s Visit to the Federal Republic of Nigeria, PTC-II, ¶ 5, 15 July 2013.

[6] Ibid.

[7] It is true that some of the individual member States of the AU are members of the ICC and so the court’s interpretation of the statute is authoritative vis-a-vis these States. However, the same can be said of the AU’s interpretation of its own provisions and treaties. The State then is under two competing obligations that cannot be reconciled. The same problem, the same conflict between the organizations is therefore present and needs to be resolved.

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The Raid on the Mavi Marmara – Can the ICC hear the case?

Yesterday, the Associated Press reported that the Union of Comoros (an island State in the Indian ocean between Madagascar and mainland Africa) has filed a “complaint” regarding the 2010 Israeli raid on a Turkish backed flotilla heading to Gaza with the International Criminal Court (ICC). The allegations specifically refer to the assault on the MV Mavi Marmara, a Turkish owned but Comoros flagged vessel, where nine protestors/aid-workers were killed during a confrontation with Israeli soldiers in international waters. The Prosecutor of the ICC, Mrs. Fatou Bensouda, has announced that her office will open a preliminary investigation into the events.[1]

Leaving technical issues aside (for example, States do not lodge “complaints” with the ICC but refer situations), this situation raises two very interesting questions related to the ICC: (1) does the Mavi Marmara incident fall within the jurisdiction of the ICC?; (2) would such a case be admissible? These questions are not easily answered. I will do my best here to succinctly set out the law and some preliminary conclusions.

Jurisdiction of the ICC

The first question that must be answered is whether the ICC can exercise jurisdiction over the “complaint” brought to the Court by Comoros. To figure this out we must first look to the law governing the proceedings at the ICC.

Articles 5, 12 and 13 of the Rome Statute of the International Criminal Court (Rome Statute) sets out the scope of the court’s jurisdiction. Read together, these articles permit jurisdiction over genocide, war crimes, crimes against humanity and the crime of aggression[2] where the crime took place on the territory of a State party or the perpetrator was a national of a State party. The Rome Statute also allows for jurisdiction absent these requirements where the situation was referred to the ICC by the United Nations Security Council. Importantly, the concept of territory specifically includes “the State of registration of [a] vessel or aircraft” where a crime is alleged to have taken place.

The Mavi Marmara at the time of the flotilla raid was in international waters and flagged as being from Comoros, who is a State part to the Rome Statute and therefore a part of the ICC. Article 12 of the Rome Statute clearly and unequivocally states that crimes occurring on a vessel fall within the jurisdiction of the court if the State of registration is a party to the Court. Comoros is a State party to the Rome Statute.

It appears that there is little doubt that the alleged crimes that took place on the Mavi Marmara fall within the jurisdiction of the ICC. However, just because a matter falls within the jurisdiction of the court does not mean that it will entertain the case.

Admissibility

The ICC is not a court that is designed to investigate all crimes of international relevance. Instead, it exists as a compliment to national justice systems and is only to prosecute cases where the national authorities have abdicated their right to do so, either through inaction, a design to shield the accused or waiver. Article 17 provides in relevant part,

Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:

(a)     The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b)     The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(c)     The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

(d)     The case is not of sufficient gravity to justify further action by the Court.

In essence, the existence of prior criminal process by a competent national tribunal prevents the ICC from exercising jurisdiction over a particular crime.

The ICC operates based on the active nationality principle (jurisdiction over nationals who commit crimes) and territory (jurisdiction over acts occurring within a State’s borders). These countries are Israel and Comoros, respectively. It is natural to look first to these States to inquire if there has been a previous or if there is an ongoing criminal action against the accused.

Israel conducted two different investigations into the Mavi Marmara incident, neither of which resulted in the recommendation of bringing criminal cases against those involved.[3] However, given the nature of the allegations and the long standing contentions about the legality of the Gaza blockade, the Israel action alone could be argued (and I by no means am saying that I would believe such an argument) that these investigations were designed to shield the accused and justify the military action. The investigations then would not be enough to render the situation inadmissible before the ICC as Israel would be considered “unwilling […] to carry out the investigation or prosecution ”.

Using the ICC basis of jurisdiction, this leaves the Union of Comoros, the State on whose territory the alleged crimes were committed. There is no public news of any such investigation.[4] All else being equal, an ICC investigation might make sense under these circumstances. However, there are other grounds upon which States can assert jurisdiction.

International law also permits States to assert jurisdiction over alleged crimes when the victim is a national of that State, or in some limited cases, under a universal jurisdiction theory. These cases will also serve as a bar to the ICC’s investigating and prosecuting a particular case as article 17 on refers to “State with jurisdiction” not the territorial and national States only.

The soldiers involved in the Mavi Marmara incident have been investigated in other States as well. Turkey has conducted an investigation and opened criminal cases against some of those involved.[5] South Africa has done the same.[6] Investigations in these States cannot be said as designed to shield the accused. The Prosecutor should immediately reject the “complaint” filed by Comoros as there have been national level investigations. The ICC does not exist to obtain a different result after prior process, but to take action when there has in effect been no prior process.

Conclusion

While the ICC would have jurisdiction over any alleged crimes falling within its mandate that occurred during the Mavi Marmara raid, those cases would be inadmissible due to prior actions at the State level.

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