International Justice and Diplomacy - by Fatou Bensouda

International Justice and Diplomacy

The New York Times March 20, 2013 Wednesday

By FATOU BENSOUDA

SINCE the International Criminal Court became operational in 2002, we have witnessed an unprecedented integration between peace and security and international justice.

The I.C.C. Office of the Prosecutor is investigating and prosecuting cases in eight situations -- Uganda, Democratic Republic of Congo, Central African Republic, Darfur, Kenya, Libya, Ivory Coast and Mali. The Office has also made a substantial contribution to international peace and security by proactively collecting information and monitoring situations under preliminary examination, including those in Guinea, Georgia, Colombia, Honduras, Korea, Nigeria and Afghanistan.

Yet despite this, we consistently hear voices questioning whether perpetrators of crimes against humanity, war crimes and genocide should always be prosecuted. This question has long been asked: Peace or justice? Shall we strive for peace at all costs, sacrificing justice on the way, or shall we soldier on in the pursuit for justice to end impunity?

Past negotiations have done just that: sacrificed justice for peace. Yet history has taught us that the peace achieved by ignoring justice has mostly been short-lived, and the cycle of violence has continued unabated.

As the I.C.C. is an independent and judicial institution, it cannot take into consideration the interests of peace, which is the mandate of other institutions, such as the United Nations Security Council.

However, justice can have a positive impact on peace and security: this is what the U.N. secretary general, Ban Ki-moon, calls the ''shadow of the Court'' -- its preventative role, and its capacity to diffuse potentially tense situations that could lead to violence by setting a clear line of accountability. History will judge how the shadow of the I.C.C. may have contributed to peaceful elections in Kenya.

Other voices say the I.C.C. is an obstacle to peace. This is narrow and short-sighted. On the contrary, if anything, the ''shadow of the Court'' has helped to isolate individuals wanted by the I.C.C., or to kick-start negotiations.

(example)
In the case of the Lord's Resistance Army (L.R.A.) in Uganda, for example, I.C.C. arrest warrants against Joseph Kony and his top commanders are widely acknowledged to have played an important role in bringing the rebels to the negotiating table in the Juba Peace Process. This despite the threat by the L.R.A. to withdraw from the peace talks if arrest warrants remained in force.

Blackmail or ''golden exiles'' are no longer the ways to achieve sustainable peace. If the international community is to work toward long-lasting peace, critics must question why peace had proven elusive in a country such as Uganda long before these warrants were issued.

The role of the I.C.C. has never precluded or put an end to any peace process. While we should not presume that warlords are rational actors, and that every situation will be the same, the Court's impact on peace until now has been noted, and has proved to be a spur to action.

If we have learned anything from history, it is that accountability and the rule of law have been recognized as fundamental preconditions to provide the framework to protect individuals and nations from massive atrocities, to promote peace and international security, and to manage conflicts. Not only was prosecuting crimes seen as satisfying conceptions of fundamental justice, but also as a means to prevent their perpetration.

The debate about peace versus justice or peace over justice is a patently false choice. Peace and justice are two sides of the same coin. The road to peace should be seen as running via justice, and thus peace and justice can be pursued simultaneously.

The pursuit of justice, whether it be through national or international prosecutions, and the pursuit of peace, whether it be through truth and peace negotiations, can, and must, work together. They should not be seen as oppositional, not alternatives, but complementary.

All actors involved in situations where mass crimes have taken or are taking place -- whether they are judicial institutions, mediators, peace negotiators, political leaders, civil society -- have a crucial role to play, refining their strategies, adjusting to the legal limits, and coordinating their efforts to ensure a comprehensive and long-lasting peace.

My Office will continue to work hard to ensure justice for the victims and accountability for the perpetrators, and to contribute to the prevention of future crimes.

Fatou Bensouda is the Prosecutor of the International Criminal Court. She is speaking Wednesday at the Forum for New Diplomacy hosted by the International Herald Tribune and the Académie Diplomatique Internationale.

ICC Decides on Immunities and Privileges of Defence Counsel and ICC Staff

ICC Decides on Immunities and Privileges of Defence Counsel and ICC Staff

Published on March 6, 2013        Author: Dapo Akande

http://www.ejiltalk.org/icc-decides-on-immunities-and-privileges-of-defence-counsel-and-icc-staff/

Last week, the Pre-Trial Chamber of the International Criminal Court issued a decision with important implications for the privileges and immunities of counsel acting at the ICC, and also of ICC staff. In its decision, the Pre-Trial Chamber confirmed that the immunities provided for in Article 48 of the ICC Statute apply to defence counsel and to staff of the ICC involved in the ICC proceedings against Saif Gaddafi. It also held “that the inviolability of documents and materials related to the exercise of the functions of the Defence constitutes an integral part of the treatment that shall be accorded to the Defence pursuant to article 48(4).” This means that these documents may not be seized by States, and in this particular case, the ICC held that Libya is under an obligation to return such seized documents.

The decision arose out of the detention in Libya, last June, of four members of staff of the ICC, including Melinda Taylor a lawyer at the Office of the Public Counsel for Defence (OPCD). The ICC staff were detained by the militia holding Saif Gaddafi (who is represented by the OPCD) when they were in Libya to meet with Saif. At time of the detention, I and others argued that these detained persons were entitled to immunity from criminal process in Libya (see previous post).

There are three interesting points that arise out of this decision. The first relates to the applicability of the Statute (and in particular Art. 48) to Libya. The second relates to which part of Art. 48 applies to defence counsel employed by OPCD. The third, and perhaps most important, point is that the decision  implies the applicability of the 2002 Agreement on the Privileges and Immunities of the International Criminal Court to States that have not ratified it.

First, in relying on Article 48, the Pre-Trial Chamber has confirmed the argument that I made at the time that this provision of the Statute is binding on Libya, though Libya is not a party to the Statute and though the Security Council did not say explicitly that the whole Statute is binding on Libya. The explanation for this is that Libya’s obligation, under UN Security Council Resolution 1970, is an obligation to cooperate in accordance with the Statute (see previous post).

The second point is that Pre-Trial Chamber relied only on Art. 48(4) which refers to the immunities of “counsel, experts, witnesses or any other person required to be present at the seat of the Court” but did not refer to Art. 48(3) which refers, inter alia, to the immunities of the “staff of the Registry.” In my previous post, I had argued that both are applicable to defence counsel provided by the OPCD. This argument is based on the fact that the OPCD is a part of the ICC Registry, though it is independent. The Pre-Trial Chamber decision may be seen as an implicit rejection of the argument I put forward but the Chamber did not elaborate on this. I would like to see an argument that says OPCD lawyers are not part of the registry staff though OPCD is a part of the Registry. The failure to refer to Art. 48(3) is especially curious given that not all of the four detained personnel were part of OPCD. Some were clearly Registry staff. So why not refer to the provision that best fits them?

The third point, and perhaps ultimately the most important, is the fact that the Pre-Trial Chamber not only “noted” 2002 Agreement on the Privileges and Immunities of the International Criminal Courtbut seemed to apply it. Art. 48 provides that the privileges and immunities it provides for exist “in accordance with the agreement on privileges and immunities of the Court”. In its decision, the Pre-Trial Chamber held that:

“in accordance with article 26 of the Agreement on Privileges and Immunities of the International Criminal Court, it is not for this Chamber to determine whether there are grounds for waiving the privileged nature of the Defence documents seized in Zintan.”

This suggests that the Chamber took the view that the provisions of the Agreement was determinative. Libya is not a party to this agreement and  it seems to me that the only way to argue that the Agreement is determinative is that Art. 48 suggests that it is. But if Art. 48 makes the Agreement on Privileges and Immunities binding on Libya, this suggests that the agreement is also binding for those States party to the Rome Statute, even if they have not ratified the Agreement. Such an argument would be far reaching as it would mean that States are bound by a treaty that they have not ratified. However, it is not easy to see what else Art. 48 of the Rome Statute means when it refers to immunities “in accordance with” the Agreement on Privileges and Immunities.

analysis of the merits of the referral of the Syria Situation to the ICC

http://opiniojuris.org/2013/01/14/fifty-seven-countries-call-for-referral-of-the-syria-situation-to-the-icc-analysis-of-the-merits-of-the-referral-and-concerns-as-to-its-implementation/

Fifty-Seven Countries Call for Referral of the Syria Situation to the ICC: analysis of the merits of the referral and concerns as to its implementation

by Jennifer Trahan      January 14th, 2013 

[Jennifer Trahan is associate clinical professor at the Center for Global Affairs at the NYU School of Continuing and Professional Studies (NYU-SCPS). She is also chair of the American Branch of the International Law Association International Criminal Court Committee and was a member of the American Bar Association’s 2010 International Criminal Court Task Force.]

Today, January 14, 57 U.N. Member States from Africa, Asia, Europe and Latin America, coordinated by Switzerland, sent a letter requesting the U.N. Security Council to refer the situation in Syria to the International Criminal Court for investigation and prosecution.

The UN Security Council should make the referral; in fact, it should have done so already months ago.  Because Syria is not a party to the ICC’s Rome Statute, the Court would not have jurisdiction over the crimes in Syria absent the referral.

Mass crimes

With an estimated 60,000 fatalities, and reason to suspect both war crimes and crimes against humanity have occurred, referral is clearly warranted.  Underlying crimes according to the UN’s independent international Commission of Inquiry on Syria include “patterns of summary execution, arbitrary arrest, enforced disappearance, torture, including sexual violence, as well as violations of children’s rights…”

The UN Security Council, which may refer “situations” to the ICC pursuant to Rome Statute article 13(b), has previously referred both the situations in Darfur (SC res. 1593) and Libya (SC res. 1970) to the ICC for investigation and prosecution.  The latter referral was made after far fewer fatalities had occurred than have occurred in Syria.  Security Council action is needed if the Council is to retain institutional legitimacy and consistency in its relationship with the ICC and to show its resolve in addressing large-scale crimes.

Impunity at the national level

The Syrian judiciary is not addressing the crimes that are occurring, and there is no reason to suspect that, under the current government, there would be national court trials.

If there were to be a future change of government, the ICC referral still makes sense.  If a future government were to contain vestiges of the past regime, national court trials could be impeded by efforts to “shield” perpetrators from justice.  If a future government were to consist of an entirely new regime, national trials could become vengeful affairs— overzealous prosecutions lacking due process—such as Saddam Hussein’s trial before the Iraqi High Tribunal.

If there actually were to be future credible national trials, the referral would have done no harm (it would not supplant good faith national investigations and prosecutions under the “complementarity” provisions of Rome Statute article 17), and in fact could provide incentive for holding national trials.

As in all referrals, the referral would be of the “situation” in Syria , so would not be limited to crimes by the Assad government and military, but would encompass opposing Syrian forces as well.

Whether to exclude nationals from non-States Parties from the referral

The Swiss letter states that the referral should be made “without exceptions.”  This is a reference to the fact that past referrals by the UNSC excluded jurisdiction over nationals of non-States Parties (for instance, should they become part of a troop deployments in the countries at issue).  This raises a complex question, but suffice is to say that such automatic exclusion of nationals of non-States Parties appears to engender resentment in the international community.  To begin with, three permanent members of the UN Security Council are non-States Parties to the ICC (Russia, China and the U.S.), so there already exists the imbalance that these countries have the power to vote for or veto ICC referrals, yet crimes committed on their territories are not subject to ICC jurisdiction (and they have the power to veto referrals involving their own nationals).  A further level of insulation of troops from non-States Parties as part of a referral increases such imbalance, but also seems unnecessary in a situation such as the present one, where no such troops are deployed.  (Were there future deployments of troops from non-States Parties, this issue would no doubt resurface and could then be addressed.)

Whether UN funding should accompany the referral

The Swiss letter also asks that if the referral occur that the Security Council “commit the necessary resources.”  Past referrals of the Darfur and Libya situations came with no funding.  Given the ICC’s tight budget and ever-expanding docket and expectations placed on it, such lack of funding is indeed problematic for the Court.  Investigating and prosecuting crimes requires significant financial expenditures.  A strong case can be made that the UN Security Council should not preclude UN funding.  While current U.S. legislation precludes the US from directly funding the ICC, it is unclear that this necessarily precludes use of UN dues.

The need for Security Council follow-up

Finally, the Swiss letter asks that if the Security Council makes the referral, that it facilitate “execution of potential arrest warrants.”  This is significant.  The past Darfur and Libya referrals were made without any commitment by the Security Council to follow-up efforts to ensure that ICC trials actually occur.  (Thus, for example, none of the Darfur arrest warrants have ever been executed).  It is high time to ensure that when the Security Council makes a referral that it undertakes some obligation to conduct follow-up, including in the areas of arrests.

If the crimes and violence occurring in Syria are going to be deterred to any extent, that will not occur without a credible threat of prosecutions.  Right now, the only way to make that threat serious is through a UN Security Council referral.  The ICC would provide a reliable, fair and neutral forum for prosecuting high level perpetrators.

U.S. Cash Rewards Program to Include International Criminal Court Arrests

http://opiniojuris.org/2013/01/10/u-s-cash-rewards-program-to-include-international-criminal-court-arrests/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+opiniojurisfeed+%28Opinio+Juris%29

U.S. Cash Rewards Program to Include International Criminal Court Arrests

by Jennifer Trahan   January 10th, 2013

[Jennifer Trahan is associate clinical professor at the Center for Global Affairs at the NYU School of Continuing and Professional Studies (NYU-SCPS). She is also chair of the American Branch of the International Law Association International Criminal Court Committee and was a member of the American Bar Association’s 2010 International Criminal Court Task Force.]

Congress recently approved a bill expanding the U.S.’s “Rewards for Justice” program to include apprehension of individuals wanted by international tribunals such as the International Criminal Court.  The bill, passed by the Senate on December 20 and House on January 3, and promoted by U.S. Ambassador-at-Large for Global Criminal Justice Stephen J. Rapp, covers rewards for information leading to

the transfer to or conviction by an international criminal tribunal (including a hybrid or mixed tribunal), of any foreign national accused of war crimes, crimes against humanity, or genocide ….

While the U.S. Government still clearly remains wary of the ICC and is not anticipated to ratify the ICC’s Rome Statue at any time in the near future, the legislation is a further positive step that strengthens U.S. constructive engagement with the Court.  Other recent positive developments include U.S. deployment of 100 special operations forces as military advisers to Uganda to assist with the apprehension of members of the Lords Resistance Army led by Joseph Kony;   statements by State Department Legal Advisor Harold H. Koh that the U.S. respects its obligations as signatory to the ICC’s Rome Statute (obligations the second Bush Administration attempted to revoke);  and U.S. participation at ICC-related meetings, including meetings of the Assembly of States Parties to the ICC.

During the second term of the Obama Administration, the U.S. should further solidify the US-ICC relationship by formally reactivating U.S. signatory obligations and articulating a clear policy position of U.S. support for the Court, which is designed to prosecute the worst instances of genocide, war crimes and crimes against humanity.  Congress should repeal the ban on direct U.S. financial support of the Court, to which the U.S. has supported referral of the situations in Libya and tacitly supported referral of the Darfur situation.  The U.S. should also press for referral by the U.N. Security Council of the situation in Syria, which has now claimed an estimated 60,000 fatalities, to the Court for investigation and prosecution.

Statement on the detention of four ICC staff members

http://www.icc-cpi.int/menus/icc/press%20and%20media/press%20releases/news%20and%20highlights/pr815?lan=en-GB

Press Release: 22.06.2012

Statement on the detention of four ICC staff members

ICC-CPI-20120622-PR815

On Friday, 22 June 2012, Mr. Abdelaziz Al-Hassadi, Attorney General of Libya, heading a high level Libyan delegation, visited the International Criminal Court (ICC) in The Hague (Netherlands) where he met with the ICC President, Judge Sang-Hyun Song, the ICC Registrar Silvana Arbia, and other ICC officials to discuss the situation of the four ICC staff members held in Zintan, Libya, following their mission to visit Saif Al-Islam Gaddafi, who is subject toprosecution before the ICC for alleged crimes against humanity.

During the meeting, Mr. Al-Hassadi presented to the ICC officials information regarding the visit of the four staff members to Zintan on 7 June 2012.

The ICC President thanked the Attorney General for visiting the Court. He expressed appreciation for the mutual trust confirmed in the meetings and welcomed the commitment of the Libyan authorities to cooperate fully with the ICC in accordance with United Nations Security Council resolution 1970 (2011). The President underlined the shared interest of the ICC and the Libyan authorities that Saif Al-Islam Gaddafi and Abdullah Al-Senussi should face justice.

The ICC takes very seriously the information reported by Libyan authorities in relation to the ICC staff members’ visit. The ICC fully understands the importance of the matter for the Libyan authorities and the people of Libya.

The Court attaches great importance to the principle that its staff members, when carrying out their functions, should also respect national laws. The information reported by the Libyan authorities will be fully investigated in accordance with ICC procedures following the return of the four staff members. For this purpose, the Court will be seeking further background information from the Libyan authorities. The ICC will remain in close contact with the Libyan authorities to inform them of progress.

The ICC deeply regrets any events that may have given rise to concerns on the part of the Libyan authorities. In carrying out its functions, the Court has no intention of doing anything that would undermine the national security of Libya.

When the ICC has completed its investigation, the Court will ensure that anyone found responsible for any misconduct will be subject to appropriate sanctions.

In fulfilling its mandate to end impunity and providing justice to victims, the ICC is ready to assist national authorities with their investigations if requests are submitted to the Court. The ICC is committed to continued mutual cooperation with the Libyan authorities and will do everything it can to assist them.

The ICC is extremely grateful to the Libyan authorities for their commitment to take all necessary action for the release of the Court’s staff members and their speedy reunification with their family members.

No winners in ICC-Libya standoff

No winners in ICC-Libya standoff

http://mideast.foreignpolicy.com/posts/2012/10/08/no_winners_in_icc_libya_standoff

Mark Kersten   Monday, October 8, 2012 

(battle b/w the Libyan transitional government and the ICC over where to try Muammar al-Qaddafi's son Saif al-Islam and the former regime's mysterious intelligence chief Abdullah al-Senussi; the aims of both parties turned out to be undermined )

Libya's embattled transitional government is not only struggling to appoint a cabinet, disarm its powerful militias, and deal with the aftermath of the attack on the U.S. consulate in Benghazi. It is also locked in a tense battle with the International Criminal Court (ICC) over where to try Muammar al-Qaddafi's son Saif al-Islam and the former regime's mysterious intelligence chief Abdullah al-Senussi. Since the fall of Qaddafi's regime and the assertion of a newly sovereign Libya, the ICC's intervention has degenerated into a controversial and, at times, acrimonious battle between Libya's new rulers and the Court over where the highly prized indictees should be tried. Over the past year, Libya's transitional government has sought to demonstrate its effective sovereignty to its citizens and the world by proving itself able and willing to prosecute senior members of the Qaddafi regime. At the same time, the ICC has striven to establish itself as an effective institution that can have positive effects on post-conflict accountability. However, the fight over where to try Saif and Senussi may ultimately serve to undermine the aims of both the ICC and Libya -- not to mention the pursuit of post-Qaddafi justice.

(Whereabouts of both indictees)

The ICC intervened in Libya when the United Nations Security Council referred the deteriorating situation in the country to the ICC on February 26, 2011. With unprecedented speed, the Court opened an investigation in early March and, in June 2011, issued arrest warrants for Libyan leader Muammar al-Qaddafi, Saif al-Islam, and Abdullah al-Senussi. Following the death of Qaddafi in October 2011, only Saif, his father's former heir apparent, and Senussi, the former intelligence chief many believe was responsible for the murder of 1,200 Libyans in the 1996 Abu Salim Prison Massacre, remained alive. As the regime crumbled in the summer of 2011, both went on the run. In November 2011, Saif was captured by Zintani militiamen in the southern desert expanses, disguised in traditional Tuareg robes. He was subsequently taken to Zintan where he remains to this day. Despite recurrent rumors that Senusssi had also been arrested, it was only after a joint operation between Mauritania and France in March that he was finally detained. After months of speculation -- and to the surprise of many -- Senussi was extradited to Libya in early September.

(the basis of the Libyan government for exercising jurisdiction - complementarity)

Government officials have been adamant that both be tried by Libyan judges in Libya and not at the ICC. As Ahmed Jehani, Libya's representative to the Court declared: "No amount of pressure will push Libya" to surrender Saif al-Islam or Senussi. But both remain wanted by the ICC. As a result, in May Libya filed an admissibility challenge at the Court, claiming that it was actively investigating Saif and Senussi and that, therefore, the case was inadmissible at the ICC under the Court's principle of complementarity which grants the ICC the ability to investigate and prosecute only when the host state is unable or unwilling to do so.

(the Libyan government helps its case; Ocampo's lenience toward the gov. ; international community uninterested in supporting the ICC)

To help its case, Libya unveiled a refurbished courtroom in Tripoli as well as a luxurious prison complex outside of the capital where it was claimed that Saif would be held during his trial. The ICC's former prosecutor, Luis Moreno-Ocampo, appeared content to rest on the laurels that the Court had contributed positively to Libya's pursuit of accountability. He capitulated to Libya's demands to try its prized prisoners in Libya and, rather controversially, appeared with officials from Libya's National Transitional Council (NTC) on a number of occasions. In January, Moreno-Ocampo even declared that, "I respect that it's important for the cases to be tried in Libya ... and I am not competing for the case." Moreno-Ocampo's remarks reflected the rather stark reality that the ICC would end up empty-handed. Not only has there been no inclination amongst Libyan officials to transfer Saif or Senussi to The Hague, but the international community -- particularly the U.N. Security Council -- has shown virtually no interest in supporting the Court's mandate in Libya. In short, very few international political actors with any influence have been willing to wield it in support of the Court.

(the argument for the ICC’s trial – death penalty; the legitimacy of Libyan judicial system)       

Still, proponents and staff of the ICC clearly disagreed with Moreno-Ocampo's lenience toward the NTC. There remain prevalent fears -- likely for good reason -- that Saif and Senussi will receive the death penalty, a verdict in deep contradiction with the basic impulse of human rights advocates and many international lawyers. Others point to the fact that Libya's judiciary was virtually non-existent for four decades and consequently lacks the capacity to impartially and legitimately try Saif or Senussi. But the battle over their fate has not only taken place between the ICC and Libya's new rulers. It has also occurred within the ICC, exposing bitter tensions.

(the division within the Court)

Responding to Moreno-Ocampo's unprecedented lenience toward Libya's obligations to the ICC, the Office of Public Counsel for the Defense (OPCD), formally appointed to represent Saif, criticized the prosecutor for applying double-standards and even requested that the ICC's Pre-Trial Chamber remove Moreno-Ocampo from the case because of the "objective appearance that the Prosecutor is affiliated with both the political cause and legal positions of the NTC government." The Appeals Chamber ultimately rejected the OPCD's motion but not before issuing an unprecedented rebuke of the prosecutor's behavior, ruling that it "was clearly inappropriate in light of the presumption of innocence" and "may lead observers to question the integrity of the Court as a whole." Despite ongoing animosity, however, no one could have foreseen the debacle that was the illegal arrest and detention of ICC defense counsel staff.

(the illegal arrest and detention of ICC defense counsel staff)

Notwithstanding widespread recognition that ICC staff qualify for diplomatic immunity, four staff members, including Australian lawyer Melinda Taylor, were detained following a meeting with Saif in Zintan on June 7 on allegations that they had been "spying." What followed was a microcosm of the ICC's experience in Libya. Reflecting the international community's general lack of concern with the Court's work in post-Qaddafi Libya, with the exception of a weakly worded statement, the Security Council appeared entirely apathetic. It also quickly became clear that the staff's detention was politically motivated. Nick Kaufman, a lawyer for the Qaddafi family, noted that the four ICC staff members had "fallen victim [to] this hostility which is because of the intensity of the litigation," and that ICC "filings contributed to cementing the, shall we say, anger of the local authorities holding Saif." It later emerged that Libyan authorities had arrested the staff as "retaliation" for the defense counsel's previous filings. Still, with few options available and following public statements from Australia's Foreign Minister Bob Carr encouraging them to apologize to Libya, the ICC eventually submitted a formal statement of regret for any "difficulties" caused by its staff. Stunningly, Moreno-Ocampo appeared to blame the ICC staff for their predicament, declaring that "[i]t's not what we would expect of the Court, of the defence."

(alternatives that could have been pursued)

It is important to remember that it did not have to be this way. The polarizing battle between proponents of a trial in Libya versus those advocating a trial in The Hague deflected attention from legal and political options that existed which could have satisfied the interests of Libya and the ICC. Two of these alternatives are particularly noteworthy. First, the ICC could have held an in situ trial wherein ICC judges would hear cases and temporarily sit in Libya. Second, the trials could have been held in sequence, with Saif and Senussi tried in Libya and then transferred to The Hague (or vice versa). Both of these options could have met the need for the NTC to retain its sovereignty and demonstrate its commitment to international law and justice. It also would have allowed the ICC to hear key cases and demonstrate that it is willing and able to be politically sensitive to the desire of Libyans to see justice served where crimes occurred rather than divorcing proceedings from victims and survivors. Of course, neither an in situ trial nor a sequencing of trials would have been perfect or risk-free options. However, both could have avoided the animosity of the current debate regarding the fate of Saif and Senussi by finding a middle ground to serve the interests of both Libya and the ICC -- not to mention the interests of justice. Unfortunately, neither of these options were sufficiently elaborated or explored by Libya or the ICC.

(the risk the ICC has to take if it were to accept the admissibility challenge)

So what does all this mean for post-Qaddafi justice, Libya, and the ICC? A major hurdle in Libya's admissibility challenge was overcome with the extradition of Senussi. Had the Libyan government not been able to demonstrate that it has custody of Saif and Senussi, it would have been difficult, if not impossible, for ICC judges to accept the government's admissibility challenge. Yet, while the Libyan government has engaged the ICC from the beginning -- something that must be acknowledged -- accepting Libya's admissibility challenge risks implicitly endorsing the behavior of Libya in illegally arresting and detaining ICC staff protected by diplomatic immunity. The judges may also resist siding with Libya to avoid the appearance of endorsing the death penalty for Saif or Senussi, a verdict that many observers believe would be all but certain if they were tried in the country. Moreover, the Pre-Trial Chamber may rule that delays in putting Saif on trial (he has been held in detention without trial for almost a year) constitute a violation of international due process and, consequently, rule against Libya's admissibility challenge.

(Libya’s desired reputation tarnished)

Equally important, Libya's desired reputation as an emerging democratic state that respects human rights and the rule of law has been tarnished. Commenting on the detention of Taylor and the ICC staff in Libya, Richard Goldstone wrote, "[w]hat is effectively an act of kidnapping also regrettably demonstrates that there is as yet no rule of law in Libya domestically. Ultimately, what has happened has justified the insistence by the ICC that Saif should be tried in The Hague." When Senussi was extradited, Sir Geoffrey Robertson stated that Senussi faced "not justice, but revenge" in Libya. These views are common amongst advocates of international criminal justice and reflect widespread concern that Libya is fostering a culture of selective justice and impunity.

It seems probable that the ICC's intervention in Libya will have greater effects on the Court than on Libya, particularly in terms of how it will function in fragile, post-conflict contexts in the future. This finding is, in itself, of significance, as it contradicts a generally held assumption that whenever the ICC intervenes in ongoing or recently concluded conflicts, its primary impact will be on the decision-making of state actors. In Libya, however, this does not appear to be the case. More specifically, the authority and legitimacy of the ICC seem likely to suffer in the wake of its intervention in Libya. Of course, this is in large part due to the failure of the international community, particularly the members of the U.N. Security Council that put the ICC's intervention into Libya in motion, to support the Court's work in Libya. But the ICC's own decision-making may also have significant ramifications on its future capacity to function effectively in conflict and post-conflict contexts. First, the Court's apology to Libya is likely to affect the capacity of ICC staff to operate in similar environments in the future. The ICC's apology to Libya in the Taylor affair appeared to send the message that the illegal arrest and detention of ICC staff was, at least in part, the fault of the Court. The danger is that this could set a precedent and encourage states to abuse the rights of ICC staff. Second, the OTP's leniency toward Libya and its currying favor with the NTC is something that must be more critically addressed as it has diminished the Court's perception as an impartial and independent institution. Third, the bitter divisions that have emerged within the Court must be resolved. To ultimately be an effective, independent and impartial Court, the ICC must have a well-functioning OTP and OPCD. Lastly, the ICC may want to think more carefully in the future about accepting Security Council referrals. The Libyan experience demonstrates that the Council is willing to instrumentalize the Court but unwilling to lend it much in terms of political support. Together, these developments will have implications on the capacity of the ICC to contribute to the pursuit of conflict and post-justice for the foreseeable future.

The battle for, and pursuit of, post-conflict justice in Libya has been rife with missed opportunities, misguided decision-making, and controversy. Post-Qaddafi Libya, is unlikely to ever seriously consider giving up its prized prisoners to the ICC. The international community, especially the U.N. Security Council, walked away from its obligations to the ICC a long time ago. After a challenging and tumultuous period of unprecedented controversies, it may now be time for the ICC to reconsider its role as well.

Mark Kersten is a PhD candidate in International Relations at the London School of Economics. His work focuses on the nexus of international criminal justice and conflict resolution, specifically examining the effects of the ICC on peace processes and negotiations in northern Uganda and Libya. He is also the creator and co-author of the blog, Justice in Conflict

http://www.academia.edu/1947980/Justice_After_the_War_The_ICC_and_Post-Gaddafi_Libya

Liechtenstein Becomes First State to Ratify Crime of Aggression

Liechtenstein Becomes First State to Ratify Crime of Aggression

(Coalition for the International Criminal Court), May 8, 2012  

(Ambassador Christian Wenaweser (left), permanent representative of Liechtenstein to the United Nations,

with Benjamin Ferencz (right), former Nuremberg prosecutor.)

Today, 8 May 2012, Liechtenstein became the first state party to the Rome Statute—the founding treaty of the International Criminal Court (ICC)—to ratify the crime of aggression. This crime is one of two new crimes added to the Statute following the 2010 Kampala Review Conference.  It seeks to criminalize the use of armed force by one state against another and in violation of the United Nations (UN) Charter.

The second new crime, which prohibits the use of certain weapons in a non-international armed conflict, (War Crimes) was also ratified by Lichtenstein today. San Marino was the first to ratify this crime on 26 September 2011.

The crime of aggression

At the Review Conference, which took place from 31 May to 11 June 2010 in Kampala, Uganda, ICC states parties adopted provisions governing the terms of the Court's ability to investigate and prosecute individuals for the crime of aggression (article 8bis). States agreed upon a jurisdictional regime for the crime of aggression, which provides separate procedures depending on whether the situation was referred by the UN Security Council, or whether it came before the ICC through a state referral or upon the ICC prosecutor's initiative. The Review Conference determined that the activation of jurisdiction is still subject to a positive decision by the Assembly of States Parties—the Court’s governing body—which cannot be taken before 1 January 2017 and one year after the ratification or acceptance of the amendments by 30 states parties, whichever is later. 

The unique position of the crime of aggression within the Rome Statute:  In a compromise reached during the negotiation of the Rome Statute in 1998, Article 5 of the Rome Statute lists the crime of aggression as one of the core crimes under the Court’s jurisdiction. However, in contrast to the other three crimes (genocide, crimes against humanity and war crimes), the Court remained unable to exercise jurisdiction over the crime of aggression as the Statute did not define the crime or set out jurisdictional conditions.

Adoption of the crime of aggression in Kampala: after two weeks of intense debate and years of preparatory work, on 11 June 2010, the Review Conference of Rome Statute (held in Kampala, Uganda between 31 May and 11 June 2010) adopted by consensus amendments to the Rome Statute which include a definition of the crime of aggression and a regime establishing how the Court will exercise its jurisdiction over this crime.

http://www.scribd.com/doc/92971261/RC-Res-6-ENG

RC-Res.6-ENG

The conditions for entry into force decided upon in Kampala provide that the Court will not be able to exercise its jurisdiction over the crime until after 1 January 2017 when a decision is to made by States Parties to activate the jurisdiction.

Definition of the crime of aggression: Article 8 bis adopted in Kampala defines the individual crime of aggression as the planning, preparation, initiation or execution by a person in a leadership position of an act of aggression. Importantly, it contains the threshold requirement that the act of aggression must constitute a manifest violation of the Charter of the United Nations.

An act of aggression is defined as the use of armed force by one State against another State without the justification of self-defense or authorization by the Security Council. The definition of the act of aggression, as well as the actions qualifying as acts of aggression contained in the amendments (for example invasion by armed forces, bombardment and blockade), are influenced by the UN General Assembly Resolution 3314 (XXIX) of 14 December 1974.

The threshold and formulation of this definition, draws heavily upon the pre-existing language and general provisions in the Rome Statute and the UN Charter, and reflects a compromise made by many States and in the lead up to the Review Conference.

The conditions for exercise of jurisdiction: The text of articles 15 bis and 15 ter set out the conditions for the Court’s exercise of jurisdiction over the crime of aggression. In contrast to the other crimes in the Statute, these articles establish a unique jurisdictional regime outlining when the ICC Prosecutor can initiate an investigation into a crime of aggression.

Where a ‘situation’ is referred to the Prosecutor by the UN Security Council, article 15 ter of the Statute provides that the Court’s jurisdiction is triggered in the same manner as with the other crimes in the Statute, meaning the Prosecutor may proceed with an investigation into the crime of aggression.

In contrast to Security Council referrals, under article 15 bis, the Prosecutor may only proceed with an own motion (proprio motu) investigation or an investigation based on a State referral of a situation into the crime of aggression:

after first ascertaining whether the Security Council has made a determination of the existence of an act of aggression (under article 39 of the UN Charter) and waiting for a period of 6 months;

where that situation concerns an act of aggression committed between States Parties; and

after the Pre-Trial Division of the Court has authorized the commencement of the investigation. 

Article 15 bis also provides that States Parties may opt-out of the Court’s jurisdiction under the article by lodging a declaration of non-acceptance of jurisdiction with the Court’s Registrar. Such a declaration can be made at any time (including before the amendments enter into force) and shall be reviewed by the State Party within three years.    

Non-State Parties have been explicitly excluded from the Court’s jurisdiction into a crime of aggression under this article when committed by that State’s nationals or on its territory. 

Both articles 15 bis and 15 ter note that any determination by an organ outside of the Court (such as the Security Council) will be without prejudice to the Court’s own finding of an act of aggression. 

Adoption and entry into force:  The amendments were adopted by consensus in accordance with article 5(2) of the Statute and will enter into force under article 121(5). However, the provisions of both article 15 bis and article 15 ter provide that the Court will not be able to exercise its jurisdiction over the crime of aggression until:

at least 30 States Parties have ratified or accepted the amendments; and

a decision is taken by two–thirds of States Parties to activate the jurisdiction at any time after 1 January 2017. 

Article 8 of the Rome Statute

The amendment to article 8 of the Rome Statute (or "Belgian proposal") extends the use of certain weapons as war crimes in non-international conflicts, namely the use of poison, poisoned weapons, asphyxiating, poisonous or other gases and all analogous liquids, materials or devices as well as the use of bullets that expand or flatten in the body. Read more.

Belgium submitted to the 8th session of the ASP three proposals for amendments to Article 8 of the Rome Statute regarding the criminalization of certain weapons as war crimes. Of the three proposals it was decided that only the first of the proposals put forward by Belgium would be submitted to the Review Conference.

This first proposal extends the criminalization of the use of poison, poisoned weapons, asphyxiating, poisonous or other gases and all analogous liquids, materials or devices as well as the use of bullets that expand or flatten in the body to armed conflicts not of an international character. The use of the weapons listed in this draft amendment is already incriminated by article 8, paragraph 2, b), xvii) to xix) of the Statute in case of an international armed conflict.

The following will be submitted to the Review Conference:

Amendment 1

1. Add to article 8, paragraph 2, e), the following: “ xvii) Employing poison or poisoned weapons;

xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;

xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions.”

ICC denies jurisdiction over accusations of Israeli war crimes during the attack on Gaza in late 2008

International court denies Palestinian call for inquiry

BYLINE: MARLISE SIMONS , April 5, 2012 Thursday, IHT

The International Criminal Court's chief prosecutor has turned down a longstanding request by the Palestinian Authority to investigate accusations of Israeli war crimes during the three-week war against Hamas in the Gaza Strip that began in late 2008.

ICC has no jurisdiction over the Palestinian territories for lack of statehood

In a statement issued by his office on Tuesday, the prosecutor, Luis Moreno-Ocampo, did not address the issue of whether crimes may have occurred, saying only that his office had no jurisdiction over the Palestinian territories until the United Nations, or the nations that have joined the court - 121 at present - recognized them as a state. A bid by the Palestinians to join the United Nations appears to have stalled, and Mr. Moreno-Ocampo's nine-year term ends this summer.

In early 2009, when the Palestinian Authority first requested the prosecutor's intervention, Mr. Moreno-Ocampo said he lacked any legal basis to examine the case, since neither Israelis nor Palestinians had recognized the court.

The efforts made by the Palestinian Authority

But the Palestinian Authority quickly presented a written commitment unilaterally recognizing the court's jurisdiction for ''acts committed on the territory of Palestine'' dating from 2002. The prosecutor's office also said that it had been told by the authority ''that Palestine has been recognized as a state in bilateral relations by more than 130 governments and by certain international organizations.'' Mr. Moreno-Ocampo said then that he would seek the broadest possible range of opinions on whether it was possible to deal with the Palestinian request.

A lawyer in the prosecutor's office, which had received nearly 400 requests to look into allegations of war crimes during the fighting between Israel and Hamas militants, said it ''did not seem like a case'' in which the question of jurisdiction was obvious.

Israel position

''It took more than a year for Israel to even talk about the issue with the prosecution,'' said a lawyer familiar with the case. ''Israel did not want to be seen as contributing anything, or as having anything to do with the court. Eventually it sent answers via proxies.''

The Arab League

The Arab League, which had been highly critical of the court since it issued an arrest warrant for President Omar Hassan al-Bashir of Sudan, was eager to provide its views in this case. ''The Arab League had been distant, and the fact that they became fully engaged was very interesting,'' the lawyer said.

Some Western governments and other critics of Israeli attacks on the Gaza Strip have also said that Hamas violated the rules of war with its attacks on Israeli civilians during the war, which lasted until early 2009.

Some groups still express hope that a prospective Palestinian state can take its case to the court, because it has found few places to seek justice.

Political rather than legal – (DO- I don’t understand.. unless UNSC referral, it would be a quite stretch, as Palestinian Authority is arguably not state, state party to the Rome)

The many rounds of consultations that preceded the statement Tuesday have revealed more about the political currents that can swirl around the court than about how laws of war may be applied.  But the statement did seem to answer one pending question: Palestinian officials cannot hope to gain implicit recognition of statehood through the court.