Int'l Criminal Court Archives | Page 3 of 3

Trump Administration Threatens Sanctions against International Criminal Court

September 14, 2018 by Bruce Zagaris Leave a Comment

On September 10, 2018, U.S. National Security Advisor John Bolton delivered his first major policy speech[1] before the Federalist Society. Bolton clarified that the Trump Administration will use any means necessary to protect U.S. citizens, and those of its allies, from unjust prosecution by the International Criminal Court.[2]

Bolton said a major reason for his remarks was that on November 3, 2017, the ICC’s Chief Prosecutor issued a statement concerning her request to start an investigation into the situation in Afghanistan. The Chief Prosecutor indicated the investigation would target the Afghan National Security Forces, the Taliban, and the Haqqani network, as well as war crimes allegedly committed by U.S. service members and intelligence professionals during the Afghan war since May 1, 2003.

According to Bolton “our worst predictions about the ICC’s professed and overly broad prosecutorial powers were confirmed” when “the ICC prosecutor requested authorization to investigate alleged war crimes committed by U.S. service members and intelligence professionals during the war in Afghanistan.”

He continued that “(n)either Afghanistan nor any other party” to the treaty had solicited the investigation. “Literally any day now, the ICC may announce the start of a formal investigation against these American patriots.” He observed that many Americans worked on Afghanistan matters “in the wake of the 9/11 attacks.”[3]

Bolton announced that, if the ICC formally opens an investigation, the Trump Administration will consider the following steps: negotiate even more binding, bilateral agreements to prohibit countries from surrendering U.S. persons to the ICC; to the extent allowed by U.S. law; ban ICC judges and prosecutors from entering the U.S.; sanction their funds in the U.S. financial system, and prosecute them in the U.S. criminal system; consider acting in the UN Security Council to limit the ICC’s authority, including to ensure that the ICC does not exercise jurisdiction over U.S. nationals and the U.S. allies that have not ratified the Rome Statute; and take action against entities and persons who cooperate with the ICC with respect to cases against U.S. nationals.

Bolton explained the Trump Administration will protect American constitutionalism, its sovereignty, and its citizens. Bolton observed that, as Trump said in his first foreign policy speech as a Presidential candidate in April 2016, given in the same Mayflower Hotel that Bolton delivered his talk, the Trump promised “in every decision we make, we will put the interests of the American People first.”

In his remarks, Bolton explained that the ICC was established in July 2002 with the entry into force of the Rome Statute. While the U.S. originally signed the Rome Statute at the very end of the Clinton Administration, it was not submitted to the Senate for ratification. In May 2002, President George W. Bush authorized the then-Under Secretary of State John Bolton to “unsign” it based on the view of the U.S. government that it was fundamentally illegitimate.

Bolton explained the U.S. government’s position to unsign the Rome treaty is based on concerns of the U.S. government that the ICCC has broad, unaccountable powers that posed a significant threat to U.S. sovereignty and its constitutional protections. Bolton said it is a fundamental principle of international law that a treaty is binding only on its parties, and that it does not establish obligations for non-parties without their consent.

In August 2, 2002, the American Service Members Protection Act[4] was enacted. The goal of the law is “to protect United States military personnel and other elected and appointed officials of the United States government against criminal prosecution by an international criminal court to which the United States is not party.” Introduced by U.S. Senator Jesse Helms (R-NC) and U.S. Representative Tom DeLay (R-TX) Among other things, Sec. 2004 (22 U.S.C. 7423) precludes any U.S. government entity, court, or state or local agency or court from cooperating with the ICC in response to a request for cooperation submitted by the ICC for a letters rogatory, extradition, and any other support. In addition, no funds appropriated under any provision of law may be used for the purpose of assisting the investigation, arrest, detention, extradition, or prosecution of any United States citizen or permanent resident alien by the ICC.

Sec. 2008 (22 U.S.C. § 7427) authorizes the President of the U.S. to use all means necessary and appropriate to bring about the release of, any person described in subsection (b) who is being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court. The persons described in Sec. 2008(b) are covered U.S. person, any covered allied person (member of a NATO if the NATO country is not a party to the ICC), and individuals detained or imprisoned for official actions taken while the individual was a covered U.S. person or a covered allied person, and in the case of a covered allied person, upon the request of such government.

The act also prohibits U.S. military aid to countries that are party to the court. However, exceptions are allowed for aid to NATO members, major non-NATO allies, Taiwan, and countries that have entered into “Article 98 agreements”, agreeing not to hand over U.S. nationals to the court. The president may waive this prohibition if he determines that to do so is “important to the national interest of the U.S.

The Rome Statute includes Article 98, which states:

“Article 98(2) Cooperation with respect to waiver of immunity and consent to surrender:

The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.”

The international agreements mentioned in Article 98(2) of the Rome Statute are referred to by several terms, including Article 98 agreements, bilateral immunity agreements (BIAs),impunity agreements, and bilateral non-surrender agreements. Starting in 2002, the United States began negotiating these agreements with individual countries, and has concluded at least one hundred such agreements. Countries that sign these agreements with the United States agree not to surrender Americans to the jurisdiction of the International Criminal Court. The Coalition for the International Criminal Court lists 100+ agreements in its factsheet on the Status of US Bilateral Immunity Agreements.[5] Bolton promised to extend the number of Article 98 agreements and to ensure compliance of the existing agreement.

Bolton also revealed that right before his speech the State Department ordered the closure of the Palestine Liberation Organization office in Washing, explaining that the PLO “has not taken steps to advance the start of direct and meaningful negotiations with Israel.”[6] The Palestinians have filed complaints against Israel in the ICC. Bolton said “we will not allow the ICC, or any other organization, to constrain Israel’s right to self-defense.”[7] At present the ICC has a preliminary examination on alleged crimes committed in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.[8]

[1] Karen DeYoung and Loveday Morris, PLO ordered to close office in U.S., Wash. Post, Sept. 11, 2018, at A1 col. 3.

[2] John Bolton, Protecting American Constitutionalism and Sovereignty from the International Criminal Court, Sept. 10, 2018 https://www.whitehouse.gov/briefings-statements/protecting-american-constitutionalism-sovereignty-international-criminal-court.

[3] DeYoung and Morris, supra.

[4] ASPA, Title 2 of Pub.L. 107–206, H.R. 4775, 116 Stat. 820.

[5] Coalition for an International Criminal Court, Status of U.S. Bilateral Immunity Agreements (BIAs) http://www.iccnow.org/documents/CICCFS_BIAstatus_current.pdf.

[6] DeYoung and Morris, supra.

[7] Id.

[8] See ICC , Preliminary Examination, Focus: Alleged crimes committed in the occupied Palestinian territory, including East Jerusalem, since 13 June 2014 https://www.icc-cpi.int/palestine.

International Criminal Court Confirms Its Jurisdiction over Crimes Against the Rohingya

September 14, 2018 by Michael Plachta Leave a Comment

On September 6, 2018, the Pre-Trial Chamber I (PTC) of the International Criminal Court (ICC) in a move that commentators have haild as “surprising,” “bald,” “innovative,” and “significant,”[1]ruled 2-1 that the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.[2]

This ruling was delivered following a request submitted by the ICC Prosecutor (OTP) pursuant to Article 19(3) of the Statute.[3] The OTP’s request was the first of its kind filed at the Court.[4]

The prosecutor’s office admitted that the coercive acts relevant to the deportations occurred on the territory of a State which is not a party to the Rome Statute (Myanmar). However, the Prosecution considers that the Court may nonetheless exercise jurisdiction under Article 12(2)(a) of the Rome Statute because an essential legal element of the crime—crossing an international border—occurred on the territory of a State which is a party to the Rome Statute (Bangladesh).[5]

The Court ruled it can prosecute Myanmar for alleged crimes against humanity against the Rohingya people, an “unprecedented decision” that could expose the country’s politicians and military leaders to charges.[6] The decision states that even though Myanmar is not a state party of the Rome Statute, its leaders can still be investigated for the crime of deportation.

The Court began by dealing with the core issue in this case –the question of jurisdiction. The judges chose to rely on the broadly-recognized principle of la compétence de la compétence or Kompetenz‑Kompetenz According to the principle, any international tribunal has the power to determine the extent of its own jurisdiction. In this case, the Chamber found that it has the power to entertain the Prosecutor’s request under Article 119(1) of the ICC Rome Statute.[7]

The Court noted that it is equally endowed with the power to determine the limits of its own jurisdiction. Indeed, Chambers of the ICC have consistently upheld the principle of la compétence de la compétence.[8]

The PTC noted that, in an April statement, the Myanmar government stressed that “Myanmar is not a party to the Rome Statute” and “the proposed claim for extension of jurisdiction exceeds the well enshrined principle that the ICC is a body which operates on behalf of, and with the consent of States Parties.”Nonetheless, the Chamber found that, in some circumstances consistent with principles of international law, the Statute may have an effect on States not Party to the Rome Statute.,.[9]

The Chamber stresseed that more than 120 States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity called the “International Criminal Court,” possessing objective international personality, and not merely personality recognized by them alone, together with the capacity to act against impunity for the most serious crimes of concern to the international community as a whole and which is complementary to national criminal jurisdictions.[10]

The judges also observed that “the objective legal personality of the Court does not imply either automatic or unconditional erga omnes jurisdiction.”.The conditions for the exercise of the Court’s jurisdiction are set out, first and foremost, in Articles 11, 12, 13, 14 and 15 of the Statute.[11]

Turning to the issue sub judice, the Chamber considered that it must first determine the scope of Article 7(1)(d) of the Statute before it can address the question whether the preconditions for the exercise of the Court’s jurisdiction pursuant to Article 12(2)(a) of the Statute have been satisfied. In this regard, the Chamber considers that the preconditions for the exercise of the Court’s jurisdiction pursuant to article 12(2)(a) of the Statute are, as a minimum, fulfilled if at least one legal element of a crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party.[12]

Based on its legal analysis, the Chamber concluded that “acts of deportation initiated in a State not Party to the Statute (through expulsion or other coercive acts) and completed in a State Party to the Statute” (when victims crossed the border to a State) are included within the application of Article 12(2)(a) of the Statute. It follows that, in the circumstances identified in the OTP Request, the Court has jurisdiction over the alleged deportation of the Rohingya from Myanmar to Bangladesh, “provided that such allegations are established to the required threshold.”[13]

Having delivered this ruling, the Chamber went further, deciding that “the rationale of its determination as to the Court’s jurisdiction in relation to the crime of deportation may apply to other crimes within the jurisdiction of the Court as well.”[14] If it were established that at least an element of any crime within the jurisdiction of the Court, as defined in Article 5 of the Statute, or part of such a crime is committed on the territory of a State Party, the Court might exercise jurisdiction pursuant to Article 12(2)(a) of the Statute.

Specifically, the judges explained that when the threshold and evidentiary requirements are met the Court might also have jurisdiction over the crime against humanity of persecution pursuant to Article 7(1)(h) of the Statute as well as “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health” (Article 7(1)(k) of the Statute).[15]

In this context, the Chamber noted that, following their deportation, members of the Rohingya live in appalling conditions in Bangladesh[16] and that the Myanmar government impedes their return to Myanmar.[17] Under international human rights law, no one may be arbitrarily deprived of the right to enter one’s own country.[18]

Finally, the Chamber rules that should the Prosecutor request authorization to open an investigation pursuant to Article 15 of the Statute or initiate an investigation pursuant to another legal basis, it falls within the OTP prerogatives to apply the preconditions for the exercise of the Court’s jurisdiction pursuant to Article 12(2)(a) of the Statute as stipulated and defined in the present decision.[19]

In the final remarks, the PTC I noted that the Prosecutor appears to situate her Request in the context of a “pre-preliminary examination.” The judges explained, however, that the statutory documents of the Court do not envisage a “pre-preliminary examination stage.” In the Chamber’s view, rather, the steps taken by the Prosecutor do not precede a preliminary examination, but are part of that examination, “whether formally announced or not.”[20]

One commentator argues that, following the ruling of the PTC I, the Court also has jurisdiction over a particular form of genocide, referred to as “conditions of life” genocide.[21] According to the Elements of Crimes, that form of genocide include, inter alia, has the following elements: (i) The perpetrator inflicted certain conditions of life upon one or more persons; (ii) The conditions of life were calculated to bring about the physical destruction of that group, in whole or in part; (iii) The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.

It remains to be seen whether the present decision delivered by the Pre-Trial Chamber I and followed by the opening of investigation by the ICC Prosecutor will be a real step towards achieving justice for the Rohingya, or whether these actions only create an illusion of an outcome which is hard to deliver.[22]

* Professor Plachta specializes in criminal law and international criminal law. He has authored numerous publications on a wide range of problems concerning law enforcement and international cooperation in criminal matters. He currently teaches criminal law and European criminal law at the University of Security in Poznan, Poland.

[1] Marlise Simons, International Criminal Court Opens Door to a Rohingya Inquiry, New York Times, September 6, 2018.

[2] ICC Pre-Trial Chamber I rules that the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh, Press release, September 6, 2018, ICC-CPI-20180906-PR1403.

[3] War Crimes Prosecutor Seeks Jurisdiction Over Rohingya Deportations, The New York Times, April 9, 2018.

[4] Michael Plachta, Justice for Rohingya: ICC Prosecutor Requests Ruling on Jurisdiction to Open Investigation, 34 Int’l Enforcement L. Reporter 127-130 (2018).

[5] International Criminal Court, Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, April 9, 2018, ICC-RoC46(3)-01/18-1, at 30-31.

[6] Michael Safi, ICC says it can prosecute Myanmar for alleged Rohingya crimes, The Guardian (UK), September 6, 2018.

[7] International Criminal Court, Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute”, September 6, 2018, ICC-RoC46(3)-01/18, para. 30.

[8] Id., para. 32.

[9] Id., para. 44.

[10] Id., para. 48.

[11] Id., para. 49.

[12] Id., para. 64.

[13] Id., para. 73.

[14] Id., para. 74.

[15] Id., para. 76.

[16] The horrific conditions in the refugee camps in Bangladesh have been described in the UNICEF report available at https://reliefweb.int/report/bangladesh/bangladesh-humanitarian-situation-report-no21-rohingya-influx-4-february-2018.

[17] Decision, supra note 7, para. 77.

[18] See. e.g., Article 12(4) of the International Covenant on Civil and Political Rights, 16 December 1966, UNTS vol. 999, p. 171.

[19] Decision, supra note 7, para. 79.

[20] Id., para. 82.

[21] Kevin Jon Heller, The ICC Has Jurisdiction over One Form of Genocide in the Rohingya Situation, http://opiniojuris.org.

[22] Michael Plachta, Does the Rohingya Tragedy Amount to International Crime?, 34 Int’l Enforcement L. Reporter 30-33 (2018).

Trump Administration Threatens Sanctions against International Criminal Court

September 10, 2018 by Bruce Zagaris Leave a Comment

On September 10, 2018, in a speech before the Federalist Society U.S. National Security Advisor John Bolton said the Trump Administration will use any means necessary to protect U.S. citizens, and those of its allies, from unjust prosecution by the International Criminal Court.

In his remarks Bolton explained that the ICC was established in July 2002 with the entry into force of the Rome Statute. While the U.S> originally signed the Rome Statute at the very end of the Clinton Administration, it was not submitted to the Senate for ratification. In May 2002, President George W. Bush authorized the then-Under Secretary of State John Bolton to “unsign” it based on the view of the U.S. government that it was fundamentally illegitimate.

The current issue of the IELR will provide a more comprehensive account of the remarks by Bolton and implications.

This Week at the ICC: Rome Statute Turns 20, ICC Elects New President and Seven Judges

March 15, 2018 by Zarine Kharazian Leave a Comment

The past week has been an eventful one at the International Criminal Court (ICC). Here are some additional updates on what has been going on at the Hague tribunal, just as it gears up to celebrate the 20^th anniversary of its founding treaty, the Rome Statute:

On Friday, March 9, six new ICC judges were sworn in. The new judges are: Luz del Carmen Ibañez Carranza (Peru), Solomy Balungi Bossa (Uganda), Tomoko Akane (Japan), Reine Alapini-Gansou (Benin), Kimberly Prost (Canada) and Rosario Salvatore Aitala (Italy). Notably, five of the six are women, and two are from African countries.
On Sunday, March 11, the Court elected Nigerian Judge Chile Eboe-Osuji as its new president. He takes over the position from Argentinian Judge Silvia Fernàndez, and will serve a three-year term. Judge Robert Femr of Czech Republic and Judge Marc Perrin de Brichambaut of France were elected as the First and Second Vice Presidents, respectively. According to his bio on the ICC website, Judge Eboe-Osuju has served on the ICC for nine years. Prior to joining the ICC, he served as the Legal Advisor to the UN Commission for Human Rights and as a legal expert to Nigeria’s delegation to the ICC-ASP Special Working Group on the Definition of the Crime of Aggressio

The election of Judge Eboe-Osuju, as well as the swearing in of Judge Solomy Balungi Bossa and Judge Reine Alapini-Gansou is particularly important in the context of accusations from some of its members that the ICC is biased against Africans. The election of an African president and African judges, however, is unlikely to resolve the Court’s crisis of legitimacy on its own.

Duterte Announces Philippines Will Withdraw from the International Criminal Court

March 15, 2018 by Bruce Zagaris Leave a Comment

On March 15, 2018, Philippine President Rodrigo Duterte announced his government will withdraw the Philippines from the Rome Treaty that established the International Criminal Court.

The announcement follows approximately five weeks after the ICC opened a preliminary examination into thousands of death connected to Duterte’s violent campaign against suspected drug users and dealers. On February 7, 2018, the ICC Prosecutor announced she was opening a preliminary examination into crimes allegedly committed in this State Party since at least July 1, 2016.

Art. 127(1) of the Rome Treaty provides that a state party’s withdrawal takes effect one year after the United Nations secretary general receives written notification.

Art. 127(2) provides that a state party must continue to cooperate with the Court even after it withdraws and its withdrawal does not prejudice in any way the continued consideration by the Court of any matter that was already under consideration by the Court prior to the effective date of the withdrawal.

In practice, the announcement will give the ICC one year to complete its preliminary examination and, if confirmed, to then conduct its case.

Duterte’s statement said the decision to withdraw was due to “baseless, unprecedented and outrageous attacks ” by U.N. officials and an effort by the ICC prosecutor to obtain jurisdiction “in violation of due process and presumption of innocence.” (Emily Rauhala, Duterte pulls out of treaty of court probe, Wash. Post, Mar. 15, 2018).

The Prosecutor started her investigation as a result of submissions by bar associations and civil society in the Philippines.

The IELR will have an article on this matter.

ICC Launches Preliminary Examination into the Philippines’ Drug War

February 20, 2018 by Sheel Patel Leave a Comment

The International Criminal Court (ICC) has launched a preliminary examination into Philippine President Rodrigo Dutarte for his brutal “drug war.” Since 1988, when Dutarte was mayor of Davao City, over 12,000 drug suspects have been killed, reportedly at the hands of the state.

Dutarte’s hard line on drugs was actually an integral part of his presidential campaign, which makes him less receptive to public criticism. He continues to belittle and even jail public activists who speak about his brutality. Many of these killings have been reported to be extra-judicial in nature, which means that they strip the offenders of a proper legal process.

This situation is even more troubling because the Dutarte administration is actively working to justify the legality of the killings. No one in the administration acknowledges the illegality of the President’s harsh plan, effectively squandering the voice of those that are demanding judicial hearings.

The ICC released a statement on February 8 that it would begin a preliminary examination into the situation at hand. This examination does not begin the formal indictment process; rather, it is to determine whether or not the case falls under ICC jurisdiction. Such a process can take months or even years to complete. The formal investigation process can only begin after this investigation yields positive results. Dutarte is seemingly unfazed by this news, however, even urging the ICC to go ahead and try to indict him.

Even if charges against Dutarte are filed, which will most likely be for committing crimes against humanity, the ICC must rely on the Philippine government to physically arrest him and bring him to the Court in The Hague, Netherlands. Such an extraction would be difficult, seeing that Dutarte already has a significant hold on his bureaucracy. In the past few years, the legitimacy and efficacy of the ICC has been called to question.

The outcome of this case, if the ICC takes it on, may either quell or enflame current criticism of the court. In October of 2017, Burundi withdrew from the ICC largely in part of recent discussion surrounding a bias against African states. So far, nine out of ten of the ICC’s cases have involved African states.

If the case against Dutarte goes through, it will be the first ICC investigation of an Asian state. If the ICC does decide to indict Dutarte and is unable to arrest and imprison him, however, there may be more qualms regarding its effectiveness in actually bringing impunity to criminals. Sudanese President Omar al-Bashir has had two warrants for his arrest since 2010, but continues to remain in power because the ICC has been unable to pressure the Sudanese government to hand him over. If Dutarte can avoid arrest, the ICC may take a significant hit in its ability to deter future criminals, thus calling its efficacy into serious question.

Sheel Patel is an editorial intern at the International Enforcement Law Reporter.

ICC Chief Prosecutor Requests Judicial Authorization to Investigate Possible War Crimes in Afghanistan

November 3, 2017 by Zarine Kharazian 2 Comments

On Friday, the International Criminal Court’s (ICC) chief prosecutor, Fatou Bensouda, announced that her office would be seeking authorization to launch an investigation into possible war crimes committed during the U.S. intervention in Afghanistan. Bensouda, a Gambian lawyer, said in a statement:

For decades, the people of Afghanistan have endured the scourge of armed conflict. Following a meticulous preliminary examination of the situation, I have come to the conclusion that all legal criteria required under the Rome Statute to commence an investigation have been met.” In due course, I will file my request for judicial authorisation to open an investigation, submitting that there is a reasonable basis to believe that war crimes and crimes against humanity have been committed in connection with the armed conflict in Afghanistan.

The ICC made public its preliminary examination into the situation in Afghanistan in 2007. In a 2016 report, the Office of the Prosecutor concluded that “there is a reasonable basis” to believe that the following crimes were committed:

Crimes against humanity and war crimes by the Taliban and the Haqqani Network;
Torture and “ill-treatment” by Afghan government forces, including national intelligence and law enforcement agencies;
War crimes of torture and “related ill-treatment” by U.S. military forces deployed in Afghanistan, as well as by the Central Intelligence Agency (CIA) in various detention facilities from 2003-2004, and possibly up to 2014.

Afghanistan ratified the Rome Statute, the treaty from which the ICC derives its jurisdiction, in February 2003. The Office argues that the ICC thus has jurisdiction over Rome Statute crimes committed in the country, including those committed by U.S. military and intelligence officials, from May 2003 onwards. The U.S. government, however, may protest the ICC’s claim to jurisdiction over Americans operating in Afghanistan by countering that the U.S. has never ratified the Rome Statute, and thus has not delegated to the international court criminal jurisdiction over U.S. nationals.

The ICC has faced fierce criticism from various governments, especially from African nations, for its perceived pro-Western bias. Since the court’s founding, nine out of the ten cases (the exception of Georgia) that have advanced to the full investigation stage have involved countries located in Africa. As far as individuals, the court has only investigated Africans leaders thus far.

The perception that the ICC is biased against Africans and in favor of the West has fueled a crisis of legitimacy regarding the international court, with several countries, among them Sudan, Gambia, South Africa, and Burundi, announcing their intent to withdraw from the Rome Statute in the near future. Just last week, Burundi became the first country to officially leave the court.

Bensouda’s decision to push ahead with the Afghanistan investigation, especially if her office delves into American military and intelligence officials’ possible culpability in the conflict, has the potential to revive non-Western countries’ faith in the ICC, which would in turn help bolster the court’s legitimacy.

Neither the CIA nor the Trump administration has commented on Bensouda’s decision thus far. If the investigation is approved by the judges, Bensouda may take several months to decide whether to bring charges, and if so, against whom.

Burundi Becomes First Nation to Withdraw From the International Criminal Court

October 27, 2017 by Zarine Kharazian 5 Comments

Burundi President Pierre Nkurunziza |Source: CNN

On Friday, Burundi officially withdrew from the International Criminal Court (ICC), an ICC spokesperson has confirmed. Last October, Burundian President Pierre Nkurunziza signed a decree to withdraw the country from the Rome Statute, the treaty that established the International Criminal Court’s (ICC) structure and jurisdiction. That withdrawal takes effect today. The small east African nation is the first country to ever withdraw from the court, which was established in 1998 to try high-level war crimes and other crimes against humanity, such as genocide.

2015 Political Violence Triggers ICC Investigation into Nkurunziza’s Administration

President Nkurunziza’s decision comes amidst increased scrutiny of his administration from the court following a period of political violence in Burundi. The violence began in April 2015, after Nkurunziza announced his decision to run for a third presidential term. His announcement triggered a failed military coup, widespread protests, and a fierce and violent crackdown on the opposition that has left more than 430 people dead. According to the U.N. Refugee Agency, more than 300,000 Burundians have fled the country since the protests began. Most have sought refuge in neighboring Tanzania and Rwanda.

In April 2016, the ICC’s chief prosecutor, Fatou Bensouda, announced that she was launching a preliminary investigation into the situation in Burundi. “My Office has reviewed a number of communications and reports detailing acts of killing, imprisonment, torture, rape and other forms of sexual violence, as well as cases of enforced disappearances,” Bensouda stated. “All these acts appear to fall within the jurisdiction of the ICC.”

Will Other States Follow Suit?

Burundi is accusing the ICC of being biased against African states. This allegation is not novel; in February 2017, the African Union made headlines by passing a non-binding resolution calling for the withdrawal of its member states from the ICC. The resolution cited the “systemic disadvantage” that African nations face before the court as grounds for the withdrawal. To date, four out of ten of the court’s preliminary examinations and nine out of ten of the cases that advanced to the full investigation stage have involved African states. In addition, all of the individuals brought to trial before the ICC have been African. Bensouda has previously pointed out, however, that in six of the nine Africa-based cases under full investigation, the court intervened at the request of the country involved.

The African Union’s resolution, however, proved unsuccessful. Of the 55 member states, only Burundi, South Africa, and Gambia announced an intention to withdraw from the ICC, and Sudan and Gambia later retracted their pledges.

It remains to be seen whether Burundi’s withdrawal will inspire other African states under international scrutiny to do the same. The African continent’s attitude towards the ICC is by no means monolithic – several African countries, among them Nigeria, Senegal, and Botswana, either rejected the African Union’s “collective withdrawal” resolution outright or later expressed regret at their fellow member states’ decisions to withdraw.

Nonetheless, the perception held by many that the ICC disproportionately targets Africans and undermines African states’ sovereignty undercuts the court’s legitimacy. As an international body, the court lacks an enforcement mechanism; instead, it relies on its member states to execute warrants of arrest. If African states perceive bias against them in the court’s investigations, they will be less likely to fulfill their “duty to cooperate” per the Rome Statute. In short, the ICC has an image problem – and that problem in turn impairs the international court’s ability to dispense justice.

The “Father of International Criminal Law,” M. Cherif Bassiouni (1937-2017)

September 27, 2017 by Zarine Kharazian Leave a Comment

M. Cherif Bassiouni, an Egyptian-American law professor hailed by many in academic and policy circles as “the father of international criminal law,” passed away on September 25, 2017. He was 79. The cause of death was reported to be complications from multiple myeloma.

Mahmoud Cherif Bassiouni was born in Cairo, Egypt, on December 9, 1937. His father was an Egyptian diplomat to India. In 1956, while a young Bassiouni was studying law in France, the Suez Crisis broke out. Bassiouni returned to Egypt to serve in the Egyptian army, and fought against the attack on the Sinai Peninsula.

In 1964, Bassiouni received his law degree from Indiana University, and also received a doctorate of law from George Washington University. As a legal scholar, Professor Bassiouni was incredibly prolific. In his six decade long career, he published 256 scholarly articles and over 30 books on topics ranging from international extradition to the Islamic criminal justice system.

Professor Bassiouni with Barack Obama Chicago, IL | 2008

Professor Bassiouni was not only a scholar of international law, but a human rights champion. As vice-chair of the UN General Assembly, he helped establish the International Criminal Court, earning him a Nobel Peace Prize nomination in 1999. He has investigated war crimes and human rights violations in the former Yugoslavia, Rwanda, and Afghanistan, among other countries. In 1990, he co-founded the International Human Rights Law Institute at DePaul University, where he had taught for over six decades.

Opinio Juris has published a farewell note by Professor Bassiouni that his students sent out posthumously from his email account to his list of friends and acquaintances. He is survived by his wife, Elaine Klemen-Bassiouni, a stepdaughter, Lisa Capitanini, and two grandchildren.

ABA and World Community Celebrate International Criminal Justice Day

July 18, 2017 by Bruce Zagaris Leave a Comment

Yesterday, the American Bar Association (ABA) and the international community celebrated International Criminal Justice Day. https://www.americanbar.org/news/abanews/aba-news-archives/2017/07/statement_of_abapre.html

In particular, the ABA and the international community recognized that 15 years ago the International Criminal Court (ICC) was created. Today depending on your perspective the ICC has accomplished significant victories in bringing prosecutions and holding trials that have been judged to meet international standards of fairness. However, the ICC suffers from a shortage of resources and inability to implement its orders. Its reliance on other countries to carry out arrest warrants and requests for witnesses to testify mean that in a number of cases countries do not comply. Just as in national courts many cases are politicized. Many , if not most defendants, have significant resources and utilize criminalized power structures to resist indictment or prosecution by the ICC.

As some of the key powers, such as the China, United States, and Russia are not members of the ICC, the Court often lacks the ability to carry out its mandates.

As the production and distribution of arms, including sophisticated weapons like drones, increasingly become available to both state and non-state actors, the ability of persons in international and internal conflicts to perpetrate mass destruction becomes easier and the growth of international atrocities outpaces the ability of the ICC and the international community to stop such conflicts and adjudicate the violations of the laws of war.

Increasingly, one of the values of the ICC is to help other ad hoc criminal tribunals as the latter try to develop and implement norms to meet best standards of operation.

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Trump Administration Threatens Sanctions against International Criminal Court

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The “Father of International Criminal Law,” M. Cherif Bassiouni (1937-2017)

ABA and World Community Celebrate International Criminal Justice Day

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