Challenges and Opportunities: Audio-Visual Evidence in International Criminal Proceedings

Posted on March 4, 2020 by Mark Kersten

The following guest post was written by Jelia Sane and Chiara Gabriele. Jelia Sane is a barrister at Doughty Street Chambers, London, specialised in the areas of international criminal law, international humanitarian law and human rights. Chiara Gabriele is a Legal Advisor for the Great Lakes program at TRIAL International. She joined the NGO in 2015 and has been based in Bukavu (DRC) since 2017. 

(Imagine: Open University)

International criminal courts and tribunals (ICTs) have long admitted audiovisual material in evidence, including photographs, videos and audio recordings. Photographs and moving images have been relied on since the first war crimes trials at Nuremberg. In the 1990s, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) considered satellite imagery and film footage captured by journalists, amongst others.

More recently, the establishment of the International Criminal Court (ICC), Special Court for Sierra Leone (SCSL), and Special Tribunal for Lebanon (STL) has coincided with the popularisation of the internet, in particular of social media, along with the proliferation of mobile phone and communications technology. Individuals are increasingly uploading potentially relevant and probative evidence of international crimes online, especially on social media platforms. Indeed, to date, over 4 million videos of the Syrian conflict have been uploaded on YouTube alone. There are more hours of footage of the Syrian conflict than have passed since the war began in 2011. ICC investigators and prosecutors are increasingly collecting user-generated digital and open-source evidence for use at trial. The Office of the Prosecutor collected digital evidence for the first time in 2008 in the  Bemba case and video evidence was introduced in Prosecutor v Thomas Lubanga Dyilo, the first trial before the Court. By 2011, this kind of evidence had been collected in the Kenya, Ivory Coast and Libya investigations. The Court now has an ‘e-Court Protocol’, designed to ensure  the “authenticity, accuracy, confidentiality and preservation” of the record of court proceedings.

Audio-visual evidence can be a valuable source of evidence in international criminal trials. Footage from mobile phones, photographs, and videos can link a suspect to the scene of a crime; pinpoint the time and place of an incident; capture dimensions of an event that may lie beyond the recollection of a witness; and provide a credible, real-time, and objective record of a situation. The risk that information will be lost, manipulated, or destroyed is reduced, particularly in cases where evidence is preserved in a digital format. At the same time, the widespread availability of audio-visual technologies and the proliferation of “citizen” journalists and “user generated” material can raise thorny evidentiary challenges for courts, in terms of establishing provenance, authenticity, and chain of custody, amongst others. These challenges have yet to be specifically addressed in the procedural rules of the ICTs, whose approach to date has largely been to assess evidence of this nature on a case by case basis and by reference to the standard rules and principles applicable to other forms of evidence.

Audio-visual material is generally admitted as a form of documentary evidence. The term “document” has been broadly interpreted in this context to mean  “anything in which information of any description is recorded”, this encompasses  paper documents as well as  photographs and the content of audio and video recordings If the material is stored on, received, or transmitted by, an electronic device such as a smartphone, it will also be considered as digital evidence. In both cases, the “document” itself may also be preserved as physical evidence. As with other types of evidence, there are no universal standards governing the admissibility of audio-visual material. However, the admissibility threshold in ICTs is generally low relative to that of national systems, particularly common law jurisdictions.

Trial judges at the ICC for example have wide discretion to admit any evidence provided that it is (i) prima facierelevant; (ii) prima facie probative; and (iii) sufficiently relevant and probative as to outweigh any prejudicial effect its admission may cause. Relevance turns on whether the evidence makes “the existence of a fact in issue more or less probable”. Probative value is considered in terms of the reliability and authenticity of the evidence, as well as the extent to which it is likely to influence the determination of a fact at issue. This is a fact-specific inquiry that takes into account numerous factors, including the origin, form, content and date of the documentary evidence; where and in what circumstances it was seized; the chain of custody after seizure; the corroboration of the contents of the document with other evidence; and the nature of the document itself (e.g. whether it contains any signatures or stamps). Trial judges must also consider the potentially prejudicial effect of admission. Open source or user-generated evidence may raise specific challenges in this regard. For example, if a video is exceedingly graphic, or attacks the character of the accused without shedding much light on the facts in issue, it may be excluded as prejudicial. As for evidentiary weight, this will turn on the intrinsic quality of the evidence and on the totality of the evidence admitted at trial. Continue reading →

Posted in Guest Posts, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice | Tagged , | 1 Comment

Inching Towards Investigation? Seeking ICC Justice and Complementarity in Ukraine

Posted on February 25, 2020 by Mark Kersten

The following is a guest post by Ania Kwadrans, a lawyer, Senior Policy Advisor at the Refugee Hub, and a Master’s Student at Oxford’s International Human Rights Law Program. The post and the author’s attendance to the 18th Assembly of States Parties to the International Criminal Court are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

Firefighters seen here tackling a blaze following an attack on several houses Kuibishevskiy, near the airport in Donetsk, Ukraine on Nov. 20 2014. (Photo: Menahem Kahana / PRI)

It has been almost six years since the International Criminal Court (ICC) opened a preliminary examination into the situation in Ukraine. Many readers might thus be wondering: what is happening? What does the Court plan to do? Will an investigation be opened? What actions are being taken in Ukraine itself to address alleged war crimes and crimes against humanity? In this post, I offer an update on the Ukraine situation and summarize key findings of the ICC Prosecutor and views of observers of the situation and investigation in Ukraine.

Background

On 5 December 2019, coinciding with the 18th Assembly of States Parties (ASP), the ICC Prosecutor Fatou Bensouda issued her office’s 2019 Report on Preliminary Examination Activities. This included an update on the Office of the Prosecutor’s (OTP) activities in Ukraine, which has been under preliminary examination since 25 April 2014.

Although Ukraine is not a State Party to the Rome Statute of the International Criminal Court (Rome Statute), Article 12(3) of the Statute enables non-States Parties to accept the Court’s jurisdiction with respect to specific crimes. The Government of Ukraine took this step on 17 April 2014 and 8 September 2015, accepting jurisdiction of the ICC over alleged crimes committed on its territory since 21 November 2013 (OTP Report on Preliminary Examinations, paras. 256-258).

The first of three situations being examined by the ICC concern violence that occurred starting on 21 November 2013 when mass protests erupted in Maiden Independence Square in reaction to then President Viktor Yanukovych’s decision to not sign an agreement that would bring Ukraine into closer cooperation with the European Union. At least 50 anti-government protesters were killed, some shot by snipers. Hundreds were injured.

Following EU-led mediation, a new government was constituted on 21 February 2014, and on 22 February 2014 President Yanukovych was removed from office by vote of Parliament (OTP Report on Preliminary Examinations, paras. 260-261). The new government was met with growing protests, particularly in eastern Ukraine and in Crimea. On 26-27 February 2014, Russian military personnel together with members of local militia progressively occupied the Crimean peninsula. On 18 March 2014, the Russian Federation announced a formal annexation of this territory and has continued to control it ever since. Meanwhile, in eastern Ukraine, protests devolved into violent conflict between Ukrainian armed forces engaging in an “anti-terror operation” and armed anti-government protesters which continued for more than five years. According to the Global Conflict Tracker, violence in eastern Ukraine has resulted in the deaths of more than 10,300 individuals and the displacement of 1.5 million. The situations in Crimea and eastern Ukraine are also under investigation by the OTP. Continue reading →

Posted in Complementarity, Guest Posts, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Ukraine | Tagged | Leave a comment

Sudan’s Omar al-Bashir may finally face justice for Darfur. But the work is not yet done

Posted on February 21, 2020 by Mark Kersten

Omar Al-Bashir during recent proceedings in Sudan where he was convicted on charges of corruption (Photo: Mohamed Nureldin Abdallah / Reuters)

Former Sudanese dictator Omar al-Bashir may soon face trial before judges of the International Criminal Court.

Take a moment. Read that again. Let it sink in.

The ICC shook the diplomatic world in 2009 when it issued a warrant for Mr. al-Bashir over the atrocities in Darfur, where a horrendous conflict had already cost the lives of thousands in what is widely acknowledged as a genocide. It marked the first time the court had indicted a sitting head of state.

Many worried the announcement would complicate conflict-resolution efforts there, but for more than a decade, there was no movement to hold Mr. al-Bashir accountable. Sudanese authorities now say they are prepared to let the ICC prosecute the deposed president.

The details of exactly how he may be “surrendered” to the ICC remain unclear. According to journalists in close contact with the Sudanese government, authorities want to hand over Mr. al-Bashir to ICC officials for possible prosecution in Sudan, not the court’s home of The Hague.

While theoretically possible, the court has previously rejected opportunities to sit and prosecute individuals in the countries in which the atrocities were committed. Having the trial in Sudan would make the ICC dependent on Sudanese authorities for security, witness protection and logistics. That could undermine attempts to bring to justice other alleged or implicated perpetrators – including key members of Sudan’s current transitional leadership.

The possibility is nevertheless worth careful consideration. It would ensure greater access for victims to any trial of Mr. al-Bashir, and a partnership between the ICC and Sudanese judiciary could potentially contribute to rebuilding the rule of law in Sudan.

At the same time, Mr. al-Bashir’s prosecution by the ICC is far from a done deal. It was apparently a concession to victims of violence in Darfur during peace talks to end the conflict there. Justice for Mr. al-Bashir appears to be a bargaining chip in negotiations.

Still, some optimism is warranted. Since Mr. al-Bashir’s ousting last year, Sudan’s political scene has transformed. While key members of its transitional leadership are themselves allegedly implicated in atrocities, the new regime is eagerly seeking reconciliation with the international community as well as relief from sanctions.

It is no coincidence that officials declared that Mr. al-Bashir would be surrendered to the ICC within just hours of the United Nations Secretary-General calling for Sudan to be removed from the list of state sponsors of terrorism. More concessions like this may be needed to push Sudanese authorities to commit to putting Mr. al-Bashir before ICC judges.

That said, the latest developments also illustrate the extent to which the ICC depends on domestic political dynamics for opportunities to prosecute alleged war criminals. It also shows how limited an impact the court has on the situations in which it intervenes. Continue reading →

Posted in Darfur, International Criminal Court (ICC), International Criminal Justice, Omar al-Bashir, Sudan | 1 Comment

What Happens Now with Omar Al-Bashir?

Posted on February 20, 2020 by Mark Kersten

A version of this article was originally posted at The National. Many thanks to the editors and writers there for their work and encouragement.

Omar Al Bashir has already been prosecuted for corruption and related offences in Sudan. AP Photo

Omar Al Bashir during his recent prosecution for corruption and related offences in Sudan. (Photo: AP)

The world watched with interest when it was announced that Sudanese authorities were planning to “hand over” Omar Al Bashir, the ousted president, to the International Criminal Court.

It has been more than 10 years since the ICC issued the first of two warrants for Al Bashir. Despite outstanding obligations on states to co-operate with the Court and surrender Al Bashir to The Hague, he travelled widely, including to member-states of the ICC. Justice for Darfur was neglected. States such as South Africa hosted Al Bashir and threatened to pull out of the ICC when the Court admonished their invitations. European nations worked closely with the regime in Khartoum to stanch immigration from Africa. Powerful actors, including members of the UN Security Council that had referred Darfur to the ICC in the first place, went silent on justice for Al Bashir.

But then Al Bashir fell from grace in the eyes of his countrymen and women. The Sudanese – though notably not the international community – had enough of him. Many citizens have since pushed for the former leader to be punished for his involvement in atrocities. They might just get their wish.

Now, the question is not “will Al Bashir be brought to justice”, but where and how. According to Sudan’s justice minister, the country is considering numerous options: “One possibility is that the ICC will come here so they will be appearing before the ICC in Khartoum, or there will be a hybrid court maybe, or maybe they are going to transfer them to The Hague. That will be discussed with the ICC.”

A trial at the ICC

When Sudan announced that Al Bashir would be tried by the ICC, many initially assumed that the former president would be prosecuted in The Hague. This would be a remarkable U-turn for a state that has historically been among the most ardent antagonists of the Court.

However, it appears that some Sudanese officials are concerned that Al Bashir might testify against them if he goes before ICC judges. But an ICC trial in The Hague remains a possibility: for Sudan, shipping Al Bashir off to another continent would rid them of a potential headache and garner “brownie points” for supporting international justice efforts, in line with Khartoum’s desire to rehabilitate its global image.

If Al Bashir does end up in The Hague, however, the ICC had better be ready. His prosecution would be the most complex in the Court’s history. It would be the first time that a perpetrator stood before ICC judges facing charges of genocide – a charge that is notoriously difficult and time-consuming to try. If Al Bashir is handed over, investigators would have to kick their activities into high gear and would need the co-operation of Khartoum.

An ICC Trial in Sudan

The Court has considered holding some in-country hearings on multiple occasions, including in northern Uganda, the Democratic Republic of Congo and Kenya. On each occasion, the ICC declined doing so, primarily for security and financial concerns. The ICC is extremely risk averse and would refuse to put staff in danger.

Moreover, in addition to accommodation and travel, security costs would likely be prohibitory. Allocating so much of the Court’s limited funding to so-called in situ trials might not be of interest to ICC staff or to the states that fund it. The Court needs to spread what little money it has to progress investigations, including those related to the Rohingya crisis, Venezuela and Ukraine. Continue reading →

Posted in Darfur, Genocide, Hybrid Courts, Hybrid Tribunals, International Criminal Court (ICC), International Criminal Justice, Omar al-Bashir, Sudan | 1 Comment

‘Injustice Anywhere is a Threat to Justice Everywhere’ – Palestine, Israel, and the ICC

Posted on February 3, 2020 by Mark Kersten

The following post was written for a symposium entitled ‘Sometimes They Come Back’: The Question of the ICC’s Territorial Jurisdiction in Palestine. The symposium organizers are Triestino Mariniello and Chantal Meloni. Be sure to check it out over at Opinio Juris!

Rockets fired from Gaza city into Israel in March 2019 (Photo: Amir Cohen / Reuters)

You would think it was reason to celebrate: there is a distinct possibility of an international court investigating alleged international crimes in a region of the world where such atrocities are well-documented, yet accountability scant. Then again, we are talking about a subject that gets many people’s knickers in a knot: the possibility of the International Criminal Court (ICC) investigating crimes committed in Palestine. Even respected proponents of international justice have lined up to proffer reasons as to why an ICC investigation should be thwarted. In doing so, they project a vision of international criminal justice that should only be available some places, some of the time. There are major costs to this view – for both Palestine and Israel, for the ICC, and for the project of international criminal justice. The ICC route has its limitation, but efforts to achieve even a modicum of accountability for Palestinians and Israelis deserve support.

Is it really that complicated?

There continues to be a debate among international lawyers and scholars as to whether Palestine is a state. The ICC Prosecutor herself acknowledged that “the question of Palestine’s Statehood under international law does not appear to have been definitively resolved.” Some observers are genuinely interested in this debate. Others pipe up when there is a possibility of accountability in the region and instrumentalize the debate to foment uncertainty about whether Palestinian and Israeli victims deserve international criminal justice.

But it may not actually be all that complicated for the ICC. As the ICC Prosecutor has explained:

there are sufficient indicia of statehood to enable the ordinary operation of the ICC Statute… [M]y office has analyzed as relevant — the assessment conducted by a number of different competent and informed bodies, such as the International Court of Justice, the UN General Assembly, the UN Security Council, the Secretary-General and several UN coordinators, rapporteurs and committees.

The real question before judges isn’t whether Palestine is a state for the purposes of an ICC investigation, but where, exactly Palestinian statehood starts and stops. There are good arguments to suggest that a criminal court is not best placed determine the territorial boundaries of states. For those concerned and interested in being productive, however, energy would be better spent in finding an appropriate forum to determine the territory of Palestine, rather than pretending that it somehow isn’t a member-state of the Court.

Today, the majority of the world’s states (137 in total) recognize Palestine statehood, including most ICC states. The only major regional outliers in are states in Europe and North America. The Court itself not only recognizes Palestine as a member state for the purposes of the Rome Statute, but spelled out to Palestinian authorities exactly what was needed to be recognized as such. It would be unimaginable now for the Court to tell Palestine that, while it followed every step required of it, it doesn’t matter because judges have decided now that it’s not enough. As Prosecutor noted, “it would be strange to permit Palestine to join the court, but to deny to it the natural consequence of its accession, which is to exercise the court’s jurisdiction on its territory.” It wouldn’t just be strange, though. It would be insulting and unjust.

Any decision by ICC Judges to deny Palestinian statehood (for the purposes of the Rome Statute) would also have devastating political consequences for the Court’s relations with key constituencies. There are states, state actors, as well as critics expecting the ICC to keel before the political bullying of powerful states. It will only fulfil their view that the Court only works against the weak and bows before the strong.

Netanyahu’s bumbling and bullying campaign to discredit the Court

Palestine became a member-state of the ICC in January 2015. Israeli Prime Minister Benjamin Netanyahu, who also held the same position then, had over five years to organize an effective campaign to preclude the Court’s Prosecutor seeking to investigate atrocities in Palestine. He has failed to do so but has, incidentally, raised the costs of opposing an ICC investigation into Palestine. Continue reading →

Posted in ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Israel, Palestine | Tagged | 1 Comment

The thousands still missing: Sri Lanka after decades of war and a decade of ‘peace’

Posted on January 23, 2020 by Mark Kersten

B. Aloka Wanigasuriya joins JiC for this post on the ongoing injustice of missing persons in Sri Lanka. Aloka is an Australian lawyer and a PhD scholar at the Faculty of Law, University of Copenhagen (Denmark).

Sri Lankan mothers from the “Dead and Missing Person’s Parents” organisation holding photographs of their loved ones during a protest in Jaffna (Photo: AFP)

During Sri Lanka’s civil war and following its aftermath, many people disappeared. To this day, many still remain missing. 15 November 2019 marked 1000 days since family members of missing persons from the formerly war-ravaged north of Sri Lanka started protesting against the disappearances. The continuous roadside protests, held in five key locations across the island nation, Kilinochchi, Mullaithivu, Trincomalee, Vavuniya and Maruthankarny (Jaffna district), started in January 2017. Those protesting, seek detailed information regarding their missing loved ones and demand closure. However, their calls for answers seem to have fallen on deaf ears. Instead of providing them with answers, last week, the Sri Lankan president stated that their relatives were dead. Against this backdrop, this post outlines the general state of reports of disappearances that emerged during and following the civil war, steps taken in Sri Lanka to address the situation and a brief, final note on prospects for obtaining justice and answers.

The civil war in Sri Lanka, fought between Sri Lankan government forces and the guerrilla force, the Liberation Tigers of Tamil Eelam (LTTE), came to an end in May 2009. An estimated 20,000 individuals, many of whom belong to the minority Tamil ethnic group, are still missing. Most disappeared during and following the final stages of the war. Some were forcibly conscripted by the LTTE and have not been heard from since. Others disappeared throughout the 26-year-long civil war but well before the final military offensive too place. Stories abound of how some surrendered themselves to the security forces during the last stages of the war, never to be heard from or seen again.

One such incident relates to the Tamil Catholic priest, Father G.A. Francis Joseph who is said to have negotiated the surrender of over a 100 (some claim the number to be as high as 360) individuals (including LTTE members and young children) to the Sri Lankan military in Mullaitivu. They were last seen being driven away in military busses. They are still missing. Others are claimed to have been abducted by security forces before the civil war entered its final stages. During the formal screening process for internally displaces persons (IDPs), some were arrested by the authorities at military checkpoints for suspected LTTE membership. Family members believed they would be processed by the military and then returned back to their families. Some still believe that their relatives are alive and being held by the security forces. This blog post does not attempt to provide a comprehensive overview of all missing persons cases. However, the reality remains that a decade has elapsed since the end of the civil war with relatives having received little or no information regarding the whereabouts of the missing individuals or what happened to them.

Hopes were dashed last week when the newly elected Sri Lankan president Gotabaya Rajapaksa (the former controversial Sri Lankan defence secretary during the last phases of the civil war), stated that those who disappeared during the final stages of the war were dead. Rajapaksa has informed the United Nations Resident Coordinator Hanna Singer that his government would provide the necessary support to families of the missing persons. He has further contended that most of the missing individuals were either taken or forcibly conscripted by the LTTE. According to the president, following necessary investigations, death certificates would be issued for missing persons (indicating the end of the practice of issuing ‘certificates of absence’ for missing persons, which started in 2016).

During the weekend, many took to social media, declaring the president’s statement insufficient. Some see it as a way to bypass accountability and avoid investigations. Many demand an explanation as to how the missing persons perished and where their remains are located. Human rights activists had previously expressed similar views. For instance, the executive director of the Colombo-based Centre for Policy Alternatives, Dr. Pakiasothi Saravanamuthu, places emphasis on the quest for information regarding what happened to the missing persons.

Previously, families of some of the missing persons filed habeas corpus applications in Sri Lankan courts seeing information regarding the whereabouts of their loved ones. They have also met with senior government officials including the former Sri Lankan president (during his term in office), but to no avail. Continue reading →

Posted in Guest Posts, Missing Persons, Sri Lanka, Transitional Justice | Tagged | 5 Comments

Could Iran Seek the International Criminal Court’s Intervention for Sanction Relief?

Posted on January 20, 2020 by Mark Kersten

The following guest post, by Mohammad Hadi Zakerhossein, explores the possibility of the International Criminal Court investigating alleged harms wrought upon civilians by the U.S. sanctions regime against Iran. Mohammad is a lecturer at the University of Tehran. The views here expressed here are his and do not necessarily represent those of the JiC. 

A woman walks past a mural depicting Iran’s flag (Photo: Getty)

In recent days, the world’s attention has been focused on the assassination of General Soleimani and the Iran’s military response to the attack. Much of the current debate centers on conflict between two states and legality of their actions against each other. But what about the wider picture and the legality and effect of Washington’s sanctions regime on the people of Iran?

The current military conflict has occurred against the backdrop of what many view as an economic war. Following withdrawal from the Joint Comprehensive Plan of Action (JCPOA), the US re-imposed stringent and comprehensive sanctions against Iran. Sanctions have been designed to put Iran under a “maximum pressure campaign”, “placing unprecedented stress on Iran’s economy, [and] forcing Tehran to make increasingly difficult choices”. Despite US government claims that it has kept a ‘humanitarian window’ open in its sanction’s regime, according to Human Rights Watch, “the consequences of US sanctions have posed a serious threat to Iranian’s right to health and access to essential medicines”. Given the fact that the US policy is targeted against the civilian population in Iran too, many view the US sanctions as an inhumane act causing great suffering and serious injury to the health of its people and possibly even a crime against humanity. If so, would Iran have recourse at the ICC?

In response to the US economic war, Iran has waged a campaign of lawfare. In 2018, Iran established proceedings against the US in the International Court of Justice (ICJ), claiming that the US should be held responsible due to violations of its treaty-based obligations arising from Treaty of Amity.

A factual account should be provided to reveal the true nature of sanctions, and to represent the US measures as potentially criminal actions against Iranian civilians who appear to be taking the brunt of the sanctions regime. Given their adverse effects on the health of Iranians, sanction might be labelled as an inhumane act as referred to in paragraph ‘K’ of Article 7 of the Rome Statute. This act that is inhumane due to its harmful and injurious consequences occurs in the context of a systematic and widespread attack against the civilian population in Iran. There is no humanitarian window in the US sanctions’ regime. Medicines are apparently excluded from the sanctioned items. Nonetheless, because of the strict limits on banking and financial services, Iran is absolutely unable to obtain what is necessary for the survival of its citizens. Again, it is civilians who suffer the consequences. Although the US may lack an intent to directly cause suffering and injury for Iranians, it is clear that in this suffering would the logical consequence of the sanctions. In spite of its knowledge, the US deliberately fails to change the circumstances that could grant Iranians access to what is necessary for their survivals.

Therefore, given the overwhelming and probative evidence of the adverse effects of sanctions on Iranians, Iran could seek to show that sanctions on medicines and what is necessary for survival constitute a crime against humanity as defined in the Rome Statute. Iran therefore might become interested in bringing sanctions to the attention of the ICC’s prosecutor in order to establish the truth and create its own narratives of the nature of sanctions and their actual effects of Iranians. Bringing the sanctions to the ICC could be an effective way to internationalize the current crisis in Iran that hurts the civilian population, but it might also come at the risk of exposing Iranian actions to criminal investigation and prosecution by the Court. Now, a procedural question arises: how can Iran bring the situation to the ICC, given the fact that Iran is neither a State Party to the Rome Statute and does not intend to join the Court.

There is a solution. As a non-member State, Iran has a right to accept the Court’s jurisdiction under Article 12(3) exclusively over a specific ‘situation’, namely the situation of the US sanctions against Iran. An accepting State has an authority that resembles the United Nations Security Council (UNSC). Under the Statute, the UNSC has a right to refer to the Office of the Prosecutor (OTP) a ‘situation’ in which one or more of the ICC crimes appears to have been committed. Referrals pertain to situations, which differ from the notions of crimes and cases. It is in the context of a situation that one or more crime is committed, and a case is formed.

Put simply, an accepting States have a similar right. A non-member State may accept the Court’s jurisdiction over a specific ‘situation’. Here, crimes without nexus with the referred situation clearly fall outside of the Court’s jurisdiction. However, an accepting State has a right to accept the Court’s jurisdiction in a general mode, that is without limiting the Court’s jurisdiction over a specific situation, whereas the Security Council’s referrals are necessary situational. Continue reading →

Posted in Crimes against humanity, Guest Posts, International Criminal Court (ICC), International Criminal Justice, Iran, Sanctions, United States | Tagged | 2 Comments

What is the Use of the ICC?

Posted on January 13, 2020 by Mark Kersten

Shehzad Charania joins JiC for this brilliant review of a recent debate and conversation regarding the future of the International Criminal Court (ICC). Shehzad is the Director of the Attorney General’s Office and International Law Adviser to the PM’s Office. He was the Legal Adviser to the British Embassy in The Hague between 2013 and 2016. He is on the Steering Group of the London Conference on International Law. Previous contributions by Shehzad (including some terrific interview of ICC staff) can be found here.

Members of the panel (Photo: Shehzad Charania)

Background: The inaugural London Conference on International Law (LCIL) in October 2019 brought together international law academics, judges, practitioners, representatives of civil society, business leaders, and other stakeholders to see how States and other actors engage with international law. Panels ranged from subjects as diverse as international law and cyber and the prohibition on the use of force, to trade and investment, maritime security and climate change. Shehzad Charania chaired a panel entitled What is the Use of the ICC, with the former ICC President Silvia Fernandez de Gurmendi, ICC Deputy Prosecutor James Stewart, British Ambassador to the Netherlands Peter Wilson and Dr Sarah Nouwen of Cambridge University. 

With the adoption of the Rome Statute of the International Criminal Court (ICC) in 1998, then UN Secretary General Kofi Annan called the ICC “a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law”.  Philippe Kirsch, Head of the Canadian Delegation and Conference Chair, and later the Court’s first President, called the ICC “the future of humanity”.  The President of the Conference, Giovanni Conso of Italy, said the international community had written “a new page of history with a message that it would never again tolerate impunity. Yet in April 2019 four former Presidents of the ICC’s Assembly of States Parties, some of whom were at the Rome Conference, made the following observations in a joint Op-Ed:

the powerful impact of the Court’s central message is too often not matched by its performance as a judicial institution. We are disappointed by the quality of some of its judicial proceedings, frustrated by some of the results, and exasperated by the management deficiencies that prevent the Court from living up to its full potential.

With the panel, I set out to explore the stark contrast between the messages of hope and optimism 21 years ago, to the Court’s most prominent supporters questioning the value of the Court today. I begin by asking James Stewart whether the ICC and specifically the Office of the Prosecutor (OTP) has lived up to the expectations set down in Rome. Stewart responds by accepting that “it is not going to satisfy the audience to say that it is too early to tell”. Rather, he recognises the “anxiety and impatience for results”. At the same time however, he notes that the ICC has been designed by States to act as a “backstop” or “failsafe mechanism” so that where States who have the primary responsibility to prosecute genocide, war crimes and crimes against humanity are unwilling or unable to investigate or prosecute Rome Statute crimes, “only then will the ICC step in to ensure justice is done”. Stewart accepts that the OTP has experienced “real setbacks”, but he emphasises the notable successes which are evidence that the OTP is able to achieve results, such as the successful convictions of Ahmad Al Faqi  Al-Mahdi, Bosco Ntaganda – on all counts of war crimes and crimes against humanity, and Jean-Pierre Bemba Gombo and his co-defendants for crimes against the administration of justice.

But wasn’t referring to over twelve failed prosecutions compared to only three final convictions for core crimes, and excoriating criticism from Judges as merely a “setback” somewhat of an understatement, I ask?  With respect to the judgments, Stewart is clear that the OTP is open to constructive criticism – emphasising the word “constructive”. But he is clear that the way the OTP operates today is very different to how it has operated in the past. “The Office is continually improving the way it works,” he says, “optimising systems, bringing out the best in our people, and creating a culture to ensure critical thinking and self-reflection”.

I ask Silvia Fernandez to consider the challenges facing the judiciary. Fernandez replies that “they are the same as when I left”, the key challenge being to “expedite proceedings and enhance their quality”. Picking up on Stewart’s comment, she notes that while the judges have indeed been critical of the OTP, “it is important that they too exercise self-reflection to look into their own actions and processes”. Fernandez accepts that this is easier said than done. First, many of the problems which impact on the length of proceedings are beyond the control of the Judges, such as insufficient cooperation and the protection of witnesses. Second, she says that the “lack of a collegial approach” from the Judges must be tackled. Without addressing the problem, there will be “even more fragmented decision-making with multiple separate and dissenting opinions, leaving real uncertainty as to the state of the law”. Third, while the harmonisation of practices and procedures will go some way towards achieving the goal of greater efficiency, there will be times when Judges have to recommend changes to the Rules of Procedure and Evidence. But Fernandez laments that “this avenue has been virtually closed off because of an insistence by States to seek unanimity for amending the RPE”.  This is not required under the Rome Statute but, she argues, “States are prepared to allow a single one of their member to block – sometimes for political reasons – what are technical changes necessary to increase the efficiency of proceedings”.

I then ask Peter Wilson to set out the challenges for States Parties to the Rome Statute. He names three. First, there must be real engagement by States in order to articulate common objectives vis-a-vis the Court. This is not easy within a context where it is “difficult enough just to agree the ASP agenda”. The second challenge is non-cooperation: tackling this is vital to the Court’s success. It goes to the heart of the relationship between States and the Court, and, he says, “it remains imperative that every State voices its concern when the Court makes findings of non-cooperation, rather than let a small handful of States who do speak out suffer repercussions when they take a stand”. Third, it is important for States like the UK “to have the space to speak out to say that not everything is right with the Court”. This should not be taken to mean that those who do this – like the four former ASP Presidents – do not support the Court. In the past, States have been reluctant to say publicly what they have been voicing in private. But this has changed, enabling “an open conversation about the need for reform”. To the UK, a reform process will be “a chance to strengthen the Court, not undermine it” – but Wilson accepts that those within the institution feel under attack and so there is a need to ensure the message is delivered correctly. Continue reading →

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All but a Pipe Dream? Seeking Justice for Wartime Atrocities in Sri Lanka

Posted on November 14, 2019 by Mark Kersten

B. Aloka Wanigasuriya joins JiC for this post on the chances of Sri Lanka achieving justice and accountability for atrocities committed during the country’s civil war. This piece coincides with the ten-year anniversary of the end of the war. Aloka is an Australian lawyer and a PhD scholar at the Faculty of Law, University of Copenhagen (Denmark).

Instead of being prosecuted for alleged war crimes, Shavendra Silva was recently appointed to Sri Lanka’s second-highest army ranking (Photo: Reuters)

In May 2019, Sri Lanka marked ten years since the end of its civil war that raged for nearly three decades between government troops and the guerrilla force, Liberation Tigers of Tamil Eelam (LTTE). An estimated40,000 civilians perished during the final offensive, which lasted from January to May 2009, and allegations emerged of the commission of serious international crimes by both parties to the war.

Calls to establish a UN-mandated international justice mechanism to investigate the alleged international crimes appear to have fallen on deaf ears. As Sri Lanka has not ratified the Rome Statute it is not subjected to the jurisdiction of the International Criminal Court (ICC). Therefore, the ICC cannot currently prosecute alleged crimes committed in Sri Lanka. The only avenue for ICC prosecution is through a UN Security Council referral of the situation to the Court – and the chances of that happening are slim to none. No domestic prosecutorial avenues exist for seeking criminal justice for these alleged international crimes. Since the end of the war, several attempts have been made by victims and human rights groups to bring the alleged perpetrators of these crimes to justice either through utilizing the national laws of other states not party to the conflict (for example through filing civil suits) or through the application of universal jurisdiction. However, due to a host of political reasons, the current possibilities of accountability look bleak.

Extraterritorial prosecution

 In September 2017, citing “the absence of credible action in Sri Lanka to ensure accountability for alleged violations of international human rights law and international humanitarian law”, the UN High Commissioner for Human Rights advocated for the use of universal jurisdiction. However, as repeated previous failed attempts indicate, the exercise of universal jurisdiction to bring perpetrators of the alleged international crimes to justice isn’t an easy task. In 2012, a US court rejected a lawsuit against the then Sri Lankan president, Mr. Mahinda Rajapaksa reasoning that as a foreign head of state, he enjoyed immunity from prosecution. Similarly, in late 2010 an attempt at seeking an arrest warrant against Mr. Rajapaksa and senior members of his entourage during a visit to the UK came to naught. In 2011, a similar attempt seeking his arrest during his visit to Australia for the Commonwealth Heads of Government Meeting was rejected by the then Australian Attorney-General due to head of state immunity.

In the past, incumbent and former heads of state such as Charles Taylor (former president of Liberia) and Slobodan Milosevic (former president of Serbia and the Federal Republic of Yugoslavia) have been prosecuted by international criminal courts and tribunals. However, such cases have been rare. Recently, states have been reluctant to arrest current or former heads of state from other countries. For example, despite an ICC arrest warrant being in place for his apprehension, the former Sudanese president, Omar Al Bashir managed to travel unhindered to numerous countries. However, in a recent turn of events, the Appeals Chamber of the ICC in its judgment in the Jordan Referral re Al-Bashir Appeal, held that neither State practice nor opinio jurissupports the existence of head of state immunity under customary international law vis-à-vis an international court. This was also held to be relevant “for the horizontal relationship between States when a State is requested by an international court to arrest and surrender the Head of State of another State”. However, given indications of a possible request for an advisory opinion from the ICJ, this is unlikely to be the final word on the immunities issue.

Previously, in instances such as in (i) the prosecution of former Chilean leader, General Pinochet, and (ii) the ICJ Arrest Warrant Case (Democratic Republic of the Congo v. Belgium, 2000) concerning the Belgian arrest warrant issued against the incumbent foreign minister of the DRC, attempts were made to apply universal jurisdiction to prosecute individuals using a second state’s domestic legal system. Of these, the latter could be relevant to the Sri Lankan situation given its links to the alleged commission of war crimes and crimes against humanity, and the personal immunities extended to certain categories of state officials. Here, the ICJ found no exception under customary international law that strips away the immunity from criminal jurisdiction granted to incumbent government ministers who are suspected of committing war crimes or crimes against humanity. This suggests however that this personal immunity terminates at the cessation of the state official’s official duties, hence exposing them to the possibility of prosecution. Still, due to states not wishing to be exposed to a diplomatic minefield, the chances of a second state arresting and prosecuting individuals such as the former president of Sri Lanka on international atrocity crime charges through exercising universal jurisdiction remains slim. Continue reading →

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Empty promises? Why State Leaders Renege on the Commitment to the International Criminal Court

Posted on October 30, 2019 by Mark Kersten

Marco Bocchese joins JiC for this piece exploring why state leaders renege on their commitments to the International Criminal Court (ICC) and, especially, why they do so after joining the ICC. Marco is currently a visiting assistant professor at the University of Illinois at Chicago (UIC), Department of Political Science. His academic article on this subject, After Ratification: Predicting State Compliance with ICC Treaty Obligations, can be found here. 

Rodrigo Duterte, President of the Philippines (Photo: Aaron Favila / AP)

This is not a good moment in time for international law, let alone for human rights. Leaders of developed and developing nations alike are increasingly pushing back against legal obligations which, while often enshrined in international treaties their very governments ratified, now assertedly hinder the adoption of bold measures and policies aimed to address serious domestic issues.

To give but one example, Filipino president Rodrigo Duterte must have seen international laws as unnecessary hurdles in the way of his signature ‘war on drugs’ when in March 2018 he announced the decision to withdraw his country from the Rome Statute of the International Criminal Court (ICC). According to official figures, Duterte’s‘war on drugs’has resulted in 6.600 people killed since his election to the presidency in 2016, although human rights activists claim the death toll is much higher, at 27.000 casualties.  Unfortunately for the ICC and its remaining—but unwavering—supporters, Duterte was neither the first nor the only to bail out of the international criminal justice system established in Rome twenty-one years ago.

Just like Duterte, other heads of state who allegedly ordered or were otherwise implicated in the commission of serious crimes have either withdrawn or threatened to withdraw their country from the Rome Statute. The list includes former Gambian president Yahya Jammeh, former South African president Jacob Zuma, and current Burundian president Pierre Nkurunziza, though only the latter was  eventually able to withdraw his country from the Rome Statute. Legal and ethical considerations aside, the decision to leave the Rome Statute systems prompts a question which is not just theoretically intriguing, but also rich with policy implications: Why do countries that leave the ICC ratify a treaty like the Rome Statute in the first place?

In my latest study, published in the International Criminal Law Review, I carried out the first survey of diplomats from over 190 permanent missions to the United Nations headquarters in New York City. These are foreign policy experts—many, but not all, with legal expertise—whose responsibilities include advising their respective capitals on international law issues and negotiate the content and precise wording of treaties and other international law instruments. These diplomats, along with their predecessors, were the main actors in drafting the Rome Statute before its text was finalized in Rome in the summer of 1998; but their active involvement in the ICC never stopped. Today, permanent missions are involved in the vetting of judges, budget discussions and earmarks, advocacy and public diplomacy initiatives, and the monitoring of country situations whose gravity may warrant a UN Security Council referral to the Court—as happened in the past with Sudan-Darfur (2005) and Libya (2011). Most notably, many of these missions have worked tirelessly alongside NGOs to persuade non-state parties to ratify the Rome Statute and join the ambitious international criminal justice enterprise.

My study reveals that diplomats see state motives for ratification as a reliable predictor of future compliance with treaty obligations. In other words, they do not trust countries whose ratification was either pressured or rewarded to comply with Rome Statute provisions or cooperate with international investigations or prosecutions. While it is theoretically possible for state authorities to change attitudes towards the ICC after ratification, diplomats remain skeptical that governments who ratify the Rome Statute for interest-driven reasons will later come around and uphold the values underpinning said treaty. If states join the ICC for reasons other than to be good stewards of human rights and international criminal justice, they won’t become such stewards just by becoming part of the Rome Statute system. In all, the mere ratification of a treaty no longer warrants expectations of future compliance. Continue reading →

Posted in Guest Posts, Human Rights, International Criminal Court (ICC), International Criminal Justice | Tagged | 2 Comments