In addition to the seven investigations being conducted by the International Criminal Court (ICC), its Office of the Prosecutor (OTP) conducts preliminary examinations of other situations to determine if an official investigation should be conducted. Four such possible preliminary examinations deserve comment.
Syria. This June there were reports that Syrian opposition and human rights groups had asked the OTP to seek authorization for an investigation into alleged crimes by the Syrian government and that discussions about a possible U.N. Security Council referral of the Syrian situation to the ICC were occurring.[1] Since then the Syrian regime has continued to attack and kill protesters with at least 3,500 protesters killed since the uprising began in March.[2] So far the OTP has not commented on Syria.
Recently four U.S. Senators (Dick Durbin, Benjamin Cardin, Robert Menendez and Barbara Boxer) sent a letter to the U.S. Ambassador to the U.N. (Susan Rice) asking for such a Security Council referral. They said, “The people of Syria deserve to know that the people of the United States understand their plight, stand behind them, and will work to bring justice to the country.” The Security Council, the Senators added, should be deeply troubled by the “credible threats to . . . [the] safety” of the U.S. Ambassador to Syria that forced him to leave the country. Security Council referral of Syria to the ICC also has been endorsed by the New York Times.[3]
Palestine. In January 2009, the Palestinian National Authority lodged a declaration with the ICC under Article 12(3) of the Rome Statute which allows States not party to the Statute to accept the Court’s jurisdiction. Later (October 2009) representatives of the Authority and the Arab League visited the Court to support the Authority’s ability to delegate its jurisdiction to the ICC.[4]
The OTP will examine issues related to its jurisdiction: first whether the declaration accepting the exercise of jurisdiction by the Court meets statutory requirements; and second whether crimes within the Court’s jurisdiction have been committed. The Office will also consider whether there are national proceedings in relation to alleged crimes. The OTP has not made any determination on the issue, and recently the Prosecutor said that the issue of Palestinian statehood would have to be resolved elsewhere before the OTP issued any kind of statement on this request.[5]
The recent, and so far unsuccessful, efforts of the Authority to obtain U.N. membership for Palestine have heightened interest in the Authority’s seeking an ICC investigation of Israel’s military actions in the Gaza. Being a member of the U.N. would strengthen the Authority’s argument for ICC jurisdiction over alleged crimes committed by Israel in Gaza.[6]
Liberia. Before Liberia’s recent re-election of Ellen Johnson Sirleaf Tubman as its president, the OTP released a public statement that it was monitoring the pre-election activities of all of the candidates and political parties and that “resorting to violence will not be tolerated.”[7]
Roman Catholic Church Officials. In September a U.S. human rights NGO (the Center for Constitutional Rights) and the Survivors Network of Those Abused by Priests filed a complaint with the OTP seeking an investigation of high-level Vatican officials for alleged cover-up of rapes and sexual violence committed by individual priests as a crime against humanity.[8]
This application poses serious questions as to whether the ICC has jurisdiction over such claims, and I anticipate it will take a long time for the OTP to make any public statement about this request. I will be surprised if the OTP decides to seek approval for such an investigation from the Pre-Trial Chamber of the Court.
[1] Post: International Criminal Court: Possible U.N. Security Council Referral of Syrian Human Rights Abuses to ICC (June 6, 2011).
[2] Bakhi & Gladstone, Syria Faces New Threats as Opposition Seeks Allies, N.Y. Times (Nov. 15, 2011).
[3] US senators: Charge Assad before ICC, Google News (Oct. 25, 2011); Editorial, The Killing in Syria Goes On, N.Y. Times (Nov. 16, 2001).
[4] ICC, Palestine, www2.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor; Dunphy, An Interview with Luis Moreno-Ocampo (Oct. 1, 2011), http://amicc.blogspot.com.
[5] Id.; Dunphy, An Interview with Luis Moreno-Ocampo (Oct. 1, 2011), http://amicc.blogspot.com.
[6] Reuters, Committee Is Deadlocked Over Palestinian Membership Bid, N.Y. Times (Nov. 11, 2011); Maccarone, The Palestinian Authority’s Application for United Nations Membership and Its Implications for the International Criminal Court (Sept. 27, 2011), http://www.amicc.org/docs/Palestine_and_the_ICC.pdf.
[7] ICC prosecutor “monitoring” Liberia elections, expatica. com (Oct. 14, 2011).
[8] Center for Constitutional Rights, In the Case Against Vatican Officials for Rape and Sexual Violence, We’ve come to the End of the Beginning (Sept. 27, 2011).
Comment: U.N. Human Rights Commissioner Calls for Security Council Referral of Syria to ICC
On December 2nd, the U.N. High Commissioner for Human Rights, Navi Pillay, said that the U.N. Security Council should refer the human rights situation in Syria to the ICC. She reported that since March of this year, more than 4,000 people have been killed; tens of thousands have been arrested and more than 14,000 are in detention. In addition, at least 12,400 have sought refuge in neighboring countries and additional tens of thousands have been internally displaced. (Assoc. Press, UN Human Rights Chief Urges ICC Referral of Syria Crimes, N.Y.Times (Dec. 2, 2011; U.N. High Comm. for Human Rights, Statement by UN High Commissioner for Human Rights Navi Pillay at the Human Rights Council 18th Special Session to examine the situation of human rights in the Syrian Arab Republic (Dec. 2, 2011).)
This followed the November 28th report of the Independent International Commission of Inquiry on Syria that had been established by the U.N. Human Rights Council. (U.N. High Comm. for Human Rights, The findings of the Independent Commission of Inquiry on Syria (Nov. 28, 2011).)
Comment: U.N. Commissioner for Human Rights Urges U.N. Security Council To Refer Syrian Situation to the ICC
On December 12th the U.N. High Commissioner for Human Rights, Navi Pillay, met with the U.N. Security Council to review the deteriorating situation in Syria. She said that an estimated 5,000 citizens had been killed by the regime and that crimes against humanity had been committed. She urged the Council to refer the situation to the International Criminal Court.
In response, Syrian state television condemned a conspiracy against the country’s government, and Syria’s U.N. ambassador said the 5,000 figure was incredible.
Two permanent members of the Security Council, China and Russia, are opposed to such a referral to the ICC. In addition, Russia is supplying Syria with cruise missiles and has announced deployment of military ships to prevent a blockade of the country.
(U.N. High Comm. Human Rts., Syria: Pillay calls for urgent action to halt violence (Dec. 12, 2011); Black, Syria blasts call for ICC investigation by UN human rights commissioner, Guardian (Dec. 13, 2011); Editorial, Syria: back to the future, Guardian (Dec. 13, 2011).)